BLU CAPITAL PARTNERS SERVICES AGREEMENT (EU)
1. USE OF THE BLU CAPITAL PARTNERS SERVICES
1.1 Rights Granted. Subject to the terms and conditions of this Service Agreement (“Agreement”) and the separately provided, confidential quote or estimate (“Quote” or “Estimate”), Blu Capital Partners grants to Client, during the Term (as defined in Section 4.1 below), a limited, non-exclusive, non-sublicensable, non-transferable (except as permitted in Section 7.2): right to use the Blu Capital Partners Services (as defined herein), and (b) license to reproduce, without modification, and internally use a reasonable number of copies of the Blu Capital Partners-provided user/client documentation relating to the Blu Capital Partners Services (e.g., user manuals, on-line help files, on-line research) (“Documentation”) solely in connection with the use of the Blu Capital Partners Services; provided that (a) through (b) are all solely in connection with Client’s internal business operations. Any copy or portion of the Documentation will continue to be subject to the terms and conditions of this Agreement. The Blu Capital Partners Services will be provided to Client and its designated users that are paid for by Client, which may include its employees, contractors, dealers/distributors and other third parties working for Client.
With respect to Client, the “Blu Capital Partners Services” includes the plan and/or products identified in the Quote.
1.2 Support Services. For so long as Client is current with its payment of the fees specified in the Quote, Blu Capital Partners will use reasonable efforts to provide support services relating to the Blu Capital Partners Services by phone and email as follows: (a) if the Quote indicates “Standard Support” or does not indicate it, (i) 9 am-5pm Central Eastern Time, Monday through Friday, excluding Dutch national holidays, or (b) if the Quote indicates “Premium Support”, 24 hours a day, 7 days a week.
1.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly required by applicable law, Client will not, and will not permit or authorize third parties to: (a) rent, lease, disclose, transfer, or otherwise permit third parties (other than designated users as described in Section 1.1 above) to use the Blu Capital Partners Services or Documentation; (b) use the Blu Capital Partners Services to provide services to third parties (e.g., as a service bureau); (c) breach, circumvent, tamper with or disable any security or other technological features or measures of the Blu Capital Partners Services; (d) attempt to probe, scan or test the vulnerability of any systems related to the Blu Capital Partners Services, including penetration or load tests, without Blu Capital Partners’s prior written approval for each test instance; or (e) reverse engineer, modify, adapt, hack or otherwise attempt to discover the underlying structure, technology or algorithms of the Blu Capital Partners Services. Client is responsible for all activity that occurs under its Blu Capital Partners Services account(s) but only in case of Client’s fault.
1.4 Compliance with Laws. Client will use the Blu Capital Partners Services and Documentation in compliance with all applicable laws and regulations. Blu Capital Partners will comply with all applicable laws and regulations in its performance of this Agreement.
1.5 Data Protection. Blu Capital Partners can from time to time act as a data processor (the “Data Processor”) in as far as any personal data are collected, processed or used by Blu Capital Partners in the course of providing the Blu Capital Partners Services, and Client shall be the responsible data controller (the “Data Controller”) with regard to the personal data of Client. The rights and obligations of the parties and any applicable safeguards for such collection, processing or use of personal data are specified in a separate Data Processing Addendum.
1.6 Protection against Unauthorized Use. Safeguarding the security of Client Data (as defined in Section 2.1 below) that resides within the Blu Capital Partners Services is a shared responsibility between Blu Capital Partners (as the Data Processor) and the Client (as the Data Controller) and, consequently: (a) Blu Capital Partners is responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store and/or process any Client Data that can be traced back to Blu Capital Partners’s personnel or Blu Capital Partners’s security control failure, and (b) in case of Client’s fault, Client is responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store and/or process any Client Data that can be traced back to Client’s personnel or Client’s security control failure. Furthermore, Blu Capital Partners is responsible for properly configuring and administering the Blu Capital Partners Services and taking appropriate measures to maintain the security, protection and backup of Client Data, including using encryption technology to protect Client Data, and to routinely archive Client Data. Client shall be responsible for Client Data that is added, modified, and removed from its Blu Capital Partners Services account and for maintaining the security of its systems that interface with the Blu Capital Partners Services and any account access passwords relevant to the Blu Capital Partners Services, and will use reasonable efforts to prevent any unauthorized use of the Blu Capital Partners Services and Documentation and immediately notify Blu Capital Partners in writing of any unauthorized use that comes to Client’s attention. If there is unauthorized use by anyone who obtained access to the Blu Capital Partners Services directly or indirectly through Client, Client will take all steps reasonably necessary to terminate the unauthorized use. Client will cooperate and assist with any actions taken by Blu Capital Partners to prevent or terminate unauthorized use of the Blu Capital Partners Services or Documentation.
1.7 Incident Management. In the event that Blu Capital Partners or Client becomes aware that the security of the Blu Capital Partners Services is adversely impacted, and this event subsequently leads to Client Data in Blu Capital Partners's control being subject to use or disclosure not authorized by this Agreement (a “Security Incident”), the knowledgeable party will promptly (but in any case not later than forty-eight (48) hours after becoming aware of such Security Incident): (a) assess the nature and scope of the Security Incident; (b) identify the Client Data involved, if any; (c) take appropriate steps to contain, control and stop the Security Incident; and (d) collaborate with the other party in providing relevant information that can be used to address and mitigate the impact of the Security Incident, subject to any request by law enforcement or other government agency to withhold such notice pending the completion of an investigation, except if required otherwise by Articles 33 or 34 of Regulation (EU) 2016/679. The obligation to notify a personal data breach to the supervisory authority according to Article 33 of Regulation (EU) 2016/679 as well as the obligation to communicate a personal data breach to the data subject according to Article 34 of Regulation (EU) 2016/679 remain unaffected.
1.8 Reservation of Rights. Blu Capital Partners reserves to itself all rights in and to the Blu Capital Partners Services and Documentation not expressly granted to Client under this Agreement.
2.1 Confidentiality. In connection with this Agreement, each party will have access to certain non-public information provided by and regarding the other party that is marked or otherwise should reasonably be understood to be treated as confidential (“Confidential Information”) including, for Client, its user email addresses, user names and passwords (“Client Data”). Except as otherwise permitted by this Agreement or as reasonably required for Blu Capital Partners to provide the Blu Capital Partners Services, each party shall keep confidential and not intentionally disclose to any third party (other than its directors, officers, employees, agents and representatives on a need-to-know basis) or use any Confidential Information of the other party; provided, however, that neither party shall be prohibited from disclosing or using Confidential Information that: (i) is publicly available or becomes publicly available through no act or omission of the receiving party, (ii) is or has been disclosed to such party by a third party who is not under an obligation of confidentiality with respect thereto, (iii) is or has been independently developed by such party, without use or reference to the other party’s Confidential Information, or (iv) must be used or disclosed under court order or applicable law, provided such use or disclosure is to the minimum extent required by such court order or applicable law. Blu Capital Partners will operate the Blu Capital Partners Services using reputable third party web service providers, co-location facilities and the like.
2.2 Feedback. If Client provides any feedback to Blu Capital Partners concerning the functionality or performance of the Blu Capital Partners Services (including identifying potential errors and improvements), Client hereby assigns to Blu Capital Partners all right, title, and interest in and to the feedback, and Blu Capital Partners is free to use and disclose the feedback without payment or restriction. However, in connection with its use of feedback, Blu Capital Partners will not disclose any information that identifies Client or any of its users to any third party, and will not use Client’s trademarks and logos without Client’s prior written consent.
3. FEES AND PAYMENT
3.1 Fees and Payment Terms. Client will pay Blu Capital Partners the fees specified in the Quote. Full payment for the Blu Capital Partners Services is due within five (5) business days of the Quotation Date (as defined in the Quote), unless otherwise set forth in the Quote. Fees for any additional services under the Term are payable in advance and due on the applicable anniversary of the renewal of the services. All amounts payable are denominated in Euros, and Client will pay all such amounts in Euros. Any payment not received from the Client by the due date shall accrue interest at the statutory rate. Client will be responsible for all taxes associated with the Blu Capital Partners Services, other than U.S. taxes based on Blu Capital Partners’s net income. All fees are non-refundable, except only if Client terminates this Agreement with immediate effect pursuant to Section 4.2 or is permitted to reduce prepaid fees.
3.2 Additional Hours. The number of Hours included in the baseline Fees shown in the Quote determines the initial invoice amount. If Client wants to add additional hours beyond the total included in the baseline Fees (“Additional Hours”), Client may purchase additional services in blocks of hours and for the price specified in the Quote. Additionally, Blu Capital Partners will periodically assess whether Additional Hours were used, and, if such, Blu Capital Partners will invoice Client for the number of Additional Hours.
3.3 Innovation Increase. Blu Capital Partners reserves the right to increase the fees for the Blu Capital Partners Services to reflect Blu Capital Partners’s continued innovation investment in the Blu Capital Partners Services. Any such increase will be invoiced in advance of the year during which such increase would take effect and will be based on the number of Client’s users at that time.
3.4 Fees for Professional Services. If set forth in the Quote, Client will pay Blu Capital Partners a professional services fee in exchange for Blu Capital Partners providing reasonable assistance with initial onboarding and deployment efforts as defined in more detail in a separate Statement of Work by and between Blu Capital Partners and Client.
3.5 Sandbox Accounts / Services. If set forth in the Quote, Blu Capital Partners may provide Client the use of “sandbox” user accounts or services for the Blu Capital Partners Services, each of which will be charged at an additional rate as specified in the Quote (as applicable).
4. TERM AND TERMINATION
4.1 Term. Unless this Agreement is terminated earlier in accordance with this Section 4, the initial term of this Agreement will be the period between the start of the provision of the Services by Blu Capital Partners and the end of the provision of the Services by Blu Capital Partners as set forth in the Quote (the “Term”), and will renew only on Client request unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current period.
4.2 Termination. If Client fails to timely pay any fees or otherwise breaches any term or condition of this Agreement, Blu Capital Partners may, without limitation to any of its other rights or remedies, immediately suspend the Blu Capital Partners Services with notice to Client until Client cures the applicable breach. The right to extraordinary termination due to important reason remains unaffected.
4.3 Post-Termination Obligations. If this Agreement is terminated for any reason or otherwise expires (a) Blu Capital Partners will, within thirty (30) days, delete all information uploaded by Client or its dto the Blu Capital Partners Services from its (and its subcontractors’) active and passive instances of the Blu Capital Partners Services, which shall include any archived information, backups and log files (it being understood that this information cannot be retrieved by Client after such termination or expiration), (b) each party will remove all of the other party’s Confidential Information from its (and its subcontractors’) systems, (c) Client will discontinue the use of all copies of the software provided with the Blu Capital Partners Services and all related Documentation and will destroy, and document in writing such destruction of, any embodiments of these materials stored in or on a reusable electronic or similar medium, including but not limited to memory, disk packs, tapes and other peripheral devices, and (d) upon request by Blu Capital Partners, Client will provide Blu Capital Partners with a written certification signed by an authorized Client representative certifying that all Client’s use of the Blu Capital Partners Services and Documentation has been discontinued. The provisions of Sections 2, 3 (with respect to payment obligations accrued during the Term), 4.3, 6 and 7 will survive any termination or expiration of this Agreement.
5. WARRANTIES; THIRD PARTY SERVICES
5.1 Warranties; Service Level Agreement. Each party represents and warrants to the other that this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms. Subject to the terms and conditions herein, Blu Capital Partners warrants 99.9% availability of the Blu Capital Partners Services. Availability of the services does not include unavailability due to Force Majeure (as defined in Section 7.5 below) or due to planned Blu Capital Partners inactivity with at least forty-eight (48) hours prior notice (email is sufficient) to Client.
5.2 Initial Defects. Blu Capital Partners's liability regardless of fault due to initial defects (§ 536a (1) Alt. 1 BGB) is excluded, unless Blu Capital Partners acted intentionally.
5.3 Expiry of Warranty Claims. Any warranty claims against Blu Capital Partners shall expire the earliest of i) the End Date of the provision of Services under this Agreement or ii) one (1) year, provided that Blu Capital Partners did not cause a defect intentionally or in case of breach of a guarantee.
5.4 Third Party Services. Blu Capital Partners provides connectors, which are configured by and at the Client’s discretion, for the Blu Capital Partners Services that interact with third party applications, and Blu Capital Partners may or may not have a commercial or contractual relationship with the providers of those applications. Blu Capital Partners monitors the working condition of these connectors and will use commercially reasonable efforts to resolve any issues that may arise from such a provider changing the login procedure of its application. However, Client acknowledges and agrees that Blu Capital Partners is not responsible for any changes to or functionality or defect of any third-party applications and that interoperability with the Blu Capital Partners Services can be broken temporarily or permanently at any time.
6. LIMITATIONS OF LIABILITY
6.1 Disclaimer of Indirect Damages. Blu capital partners will be liable without limitation in the event of claims for damages on the basis of gross negligence or wilful intent, as well as in cases where a guarantee of quality has been assumed or any defects have been concealed with malicious intent. Moreover, Blu Capital Partners will be liable without limitation in the event of a culpable injury to life, limb or health. In the case of slight negligence, Blu Capital Partners will be liable only if an obligation is violated and the fulfilment of this obligation is of essential importance to the attainment of the purpose of the contract (“Cardinal Obligation”). Any further liability of Blu Capital Partners is excluded. The limitation period for claims for damages against Blu Capital Partners expires after one (1) year; except for such cases covered by sentences 1 or 2.
7.1 Relationship. No agency, partnership, or joint venture is created as a result of this Agreement and neither party has any authority of any kind to bind the other party. Blu Capital Partners may use Client’s company name and logo on Blu Capital Partners website and further Blu Capital Partners may work with Client to develop a public case study, with final content subject to Client’s review and final approval.
7.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, except that Blu Capital Partners may assign this Agreement to a successor to all or substantially all of Blu Capital Partners’s related assets or business.
7.3 Subcontractors. Blu Capital Partners may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Blu Capital Partners remains responsible for all of its obligations under this Agreement.
7.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Quote, with the appropriate postage prepaid. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 7.4. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier.
7.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement (other than with respect to payment obligations) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including denial-of-service attacks, strikes, shortages, widespread security breaches (e.g., heartbleed bug), riots, fires, flood, storm, earthquakes, explosions, acts of God, war, terrorism, and governmental action (“Force Majeure”).
7.6 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the Netherlands, without reference to its conflicts of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods . Both parties agree to submit to the exclusive personal jurisdiction of the courts located in Amsterdam, the Netherlands for the purpose of resolving any dispute relating to this Agreement or the relationship between the parties. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
7.7 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Blu Capital Partners Services under this Agreement is found to be illegal, unenforceable, or invalid, Client’s right to use the Blu Capital Partners Services will immediately terminate.
7.8 Entire Agreement. This Agreement, including the Quote, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the terms of this Agreement and the Quote, the terms of the Quote shall prevail. All waivers and modifications to this Agreement must be in a written agreement signed by an authorized agent of both parties. Blu Capital Partners will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Client in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Blu Capital Partners specifically agrees to such provision in writing and signed by an authorized agent of Blu Capital Partners.