Bluu Services Agreement and End User License Agreement
1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:(a) "Agreement” means this BLUU Services Agreement and End User License Agreement, and all of the terms and conditions referenced herein, which are hereby incorporated herein by reference.
(b) "BLUU” means Bluu, Inc., and its affiliates, agents and subcontractors.
(c) "BLUU Property” ” means the bluu® Cloud™ Services, U CHARGE® middleware and UCHARGE® Gateway Services, bluu® Kiosk™, bluu® Salon, bluu® Retail, bluu® Restaurant, the bluu® Extended Protection Plan Coverage, the FlexGift® Program, BLUU Trademarks, confidential information and any other property of BLUU or its licensors, and all copies thereof, in whole or in part, including, without limitation, all Proprietary Rights therein.
(d) "BLUU Trademarks” means any and all trademark(s) and/or logo(s) of BLUU, including without limitation bluu® Cloud™ Services, U CHARGE® middleware and UCHARGE® Gateway Services, bluu® Kiosk™, bluu® Salon, bluu® Retail, bluu® Restaurant, the bluu® Extended Protection Plan Coverage. FlexGift® is a registered trademark of United Merchant Services, Inc., and used by BLUU under a license agreement.
(e) "Card Services Agreement” means the merchant card processing agreement by and between Merchant and Processor for the provision of merchant card processing services.
(f) “End User License Agreement” or “EULA” means this Agreement and terms and conditions which pertain to computer software, media, database, printed materials and “online” electronic documentation used by merchant/end user under a grant of limited non-exclusive, non-sublicensable license.
(g) "Fees” means the total fees due from Merchant to BLUU hereunder, including without limitation, the fees for the Device, bluu® Cloud™ Monthly Fee, U CHARGE® Fee, Monthly Web Access Fee and Statement Fee, the Protection Plan fees and/or any other fees set forth on the Cover Page or otherwise set forth in this Agreement.
(h) “Kiosk” means a free-standing self-service computer terminals consisting of the cabinet, hardware, software, and accessories as provided by BLUU.
(i) "Merchant” or “End User” means merchant client purchasing the Device and Services, and using the same, hereunder.
(j) "Processor” means that certain merchant card processor providing processing services to Merchant.
(k) "Proprietary Rights” means all confidential information rights and all U.S. and foreign proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including, without limitation, copyrights, neighboring rights and moral rights; trade secret; trademark; and patent and other industrial property rights, and all registrations, applications and renewals thereof, now or hereafter in force throughout the universe.
(l) "Reseller” means any reseller through whom Merchant purchases the hardware, software, and Services provided hereunder.
(m) "Services” or “Software Product” means the bluu® Cloud™ Services, U CHARGE® middleware and UCHARGE® Gateway Services, bluu® Kiosk, bluu® Salon, bluu® Retail, bluu® the bluu® Extended Protection Plan Coverage, the FlexGift® Program and/or any other services or software provided by BLUU hereunder in connection therewith, depending on the services ordered by Merchant hereunder.
2. End User License Agreement2.1 LICENSE. The Software Product is protected by U.S. and international copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE PRODUCT is licensed, not sold.
2.2 GRANT OF LICENSE. EULA grants you, the SOFTWARE PRODUCT end-user a limited, non-exclusive, non-sublicensable license for the term of this EULA to use the SOFTWARE PRODUCT in object code form only for your internal business purposes. You may install and use one copy of the SOFTWARE PRODUCT, on a single computer or mobile device having a single processor.
2.3 TRANSFER OR ASSIGNMENT. In connection with the sale of all or substantially all or your assets or equity interests, prior written notice of which has been provided to BLUU, you may permanently transfer all of your rights under this EULA to such purchaser or assignee, provided you (a) retain no copies, (b) transfer all of the SOFTWARE PRODUCT (including all component parts, the media and printed materials, any upgrades, and this EULA), (c) the purchaser or assignee agrees to abide by all of the terms of this EULA, and (d) you and the purchaser or assignee have properly executed the BLUU EULA Transfer Agreement and paid the then-applicable re-licensing fee in full. If the SOFTWARE PRODUCT is an upgrade, any transfer must include all prior versions of the SOFTWARE PRODUCT and all of your rights therein, if any.
2.4 NO RETURNS OR REFUNDS. BLUU does not accept any returns and/or issue refunds whatsoever for the SOFTWARE PRODUCT under any circumstances.
2.5 REGISTRATION KEY. The use of the SOFTWARE PRODUCT may require a registration key from BLUU (or its authorized reseller) for full functionality, and BLUU reserves the right in its sole discretion to refuse requests for more than one registration key. The registration key may be a printable digital key, a non-printable file, sent by email or SMS, or any other mechanism used by BLUU for license activation purposes. You agree that you will not attempt to hack, crack, or otherwise override this registration key. You cannot disclose to any third party nor allow any third party to have access to or use your assigned registration key, except for an authorized reseller of BLUU for purposes of installation if necessary.
2.6 UPGRADES AND UPDATES. . If the SOFTWARE PRODUCT is labeled or otherwise identified by BLUU as an "upgrade" or “update”, you must be properly licensed to use a product identified by BLUU as being eligible for the upgrade or update in order to use the SOFTWARE PRODUCT. A SOFTWARE PRODUCT labeled or otherwise identified by BLUU as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for such upgrade. You may use the resulting upgraded product only in accordance with the terms of this EULA. If the SOFTWARE PRODUCT is an upgrade of a component of a package of software programs that you licensed as a single product, the SOFTWARE PRODUCT may be used and transferred only as part of that single product package and may not be separated for use on more than one computer.
2.7 OWNERSHIP. BLUU, its affiliates and/or its licensor(s) own all right, title, and interest in and to the SOFTWARE PRODUCT. Except as set forth herein, the EULA grants you no right, title, or interest in any intellectual property owned or licensed by BLUU, including (but not limited to) the SOFTWARE PRODUCT and BLUU trademarks (including but not limited to any images, photographs, animation, video, audio, music, text, database, and applets incorporated into the SOFTWARE PRODUCT), the accompanying, printed materials and any copies of the SOFTWARE PRODUCT are owned by BLUU. You may not copy the any printed materials accompanying the SOFTWARE PRODUCT.
2.8 USE RESTRICTION. You acknowledge that use of the SOFWTARE PRODUCT for purposes such as Competitor Evaluation, Reverse Engineering, Decompilation, and Disassembly is a violation of this EULA and you agree that such use constitutes material breach of this EULA.
2.9 ADDITIONAL TERMS AND CONDITIONIS. Depending on the software product you chose, there are additional EULA terms and conditions described under individual software product heading. You agree and accept that such additional terms and conditions apply when you use the particular software product from BLUU as a part of this Agreement.
2.10DISCLAIMER OF WARRANTY AND EXCLUSION OF CLAIMS. The SOFTWARE PRODUCT is provided “AS IS” without warranty of any kind. To the maximum extent permitted by the applicable law, BLUU further disclaims all warranties, whether express, implied, statutory, or by estoppels, including without limitation any implied warranties of merchantability, or fitness for a particular purpose. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, IN NO EVENT SHALL BLUU BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR ONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA.
3. bluu® Point, bluu® Kiosk, UP-T™, UP Timer™ or OTHER DEVICE. (If applicable)3.1 SERVICES THROUGH ASSIGNED DEVICE. Reseller or BLUU will provide to Merchant a new or refurbished device(s), and Merchant will receive related Services and/or features with Merchant’s assigned device(s) pursuant to these terms and conditions. BLUU may modify or cancel the Services or Software hereunder or take corrective action at any time without prior notice and for any reason, including, but not limited to, Merchant’s violation of any provision of this Agreement. Merchant agrees that BLUU or Processor may change or update the terms and conditions, including software features, and pricing, from time to time, which will govern Merchant’s use of the Services hereunder, subject to thirty (30) days’ notice.
3.2 NO RETURN POLICY. All sales of the device are final and no returns will be accepted other than as provided in the Protection Plan (as defined below), if applicable.
3.3 SALES TAX. Merchant shall be responsible for any sales tax and federal, state or local charges or taxes assessed to the Device purchased by Merchant.
3.4 REPRESENTATION AND WARRANTIES FOR DEVICE. To the extent that the third-party manufacturer’s warranties for the Device(s) shall be available to Merchant on a "pass-through” basis, Merchant shall make any warranty claims related to such third-party equipment directly to such third-party manufacturer. EXCEPT AS PROVIDED IN ANY THIRD-PARTY MANUFACTURER’S WARRANTY THAT IS AVAILABLE TO MERCHANT, THERE ARE NO EXPRESS, STATUTORY OR IMPLIED WARRANTIES FOR THE DEVICE, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AN EMPLOYEE, REPRESENTATIVE, RESELLER OR DISTRIBUTOR OF BLUU SHALL CREATE A WARRANTY FOR THE DEVICE AND MERCHANT MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
4. bluu® CLOUD SERVICES. (If applicable)4.1 SERVICES. Subject to the terms and conditions set forth here, BLUU shall provide to Merchant the bluu® Cloud services to (a) enable Merchant to retrieve various information uploaded from the Device and any other compatible equipment provided by BLUU or a Reseller to Merchant ("POS Equipment”), (b) store in BLUU’s servers such uploaded Merchant information, such as product, item and customer information, as well as transaction history and configuration data pertaining to POS Equipment and (c) such further features as provided by BLUU in connection therewith (collectively, the "bluu® Cloud Services”). Subject to the terms and conditions contained herein, Merchants may elect to receive, either: (i) full access to the bluu® Cloud Services features which may include basic setting, managerial and reporting functionality upon payment of the applicable bluu® Cloud Monthly Fee (as defined below); or (ii) limited access which includes basic setting only.
4.2 BANDWIDTH, STORAGE AND E-MAIL USAGE. For the bluu® Cloud Services, up to 2GB of total data capacity may be allowed for each Merchant. Merchant shall not abuse or engage in excessive bandwidth usage, and agrees to storage and e-mail usage limit of 2GB of total data capacity for the bluu® Cloud Services. If Merchant uses excessive bandwidth (as determined by BLUU), or storage space in excess of 2GB capacity, BLUU may, in its sole discretion may assess Merchant with additional charges, suspend bluu® Cloud Services, or terminate this Agreement.
4.3 MODIFICATIONS. At the discretion of BLUU, BLUU may modify or suspend bluu® Cloud Services or support services to comply with any rules, regulations and by-laws of the Card Companies and any federal, state or local laws or regulations, whether existing as of the date hereof or hereafter adopted or for any reason as determined necessary by BLUU.
4.4 COMMERCIAL ADVERTISEMENTS VIA E-MAIL; RESTRICTIONS. Merchant shall not use any services provided by BLUU, Merchant’s account or server to send or facilitate in any way the transmission of unsolicited commercial email in violation of any federal or state laws or regulations. BLUU will enforce substantial penalties, including charging Merchant for related network costs and terminating the account, for violations. Merchant agrees not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, "junk mail”, "spam” or chain letters’ (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. BLUU, in addition to any other rights afforded to BLUU under this Agreement, reserves the right to remove or disable access to any material that violates the foregoing restrictions. Neither BLUU nor Reseller shall have any liability to Merchant in the event that Merchant takes such action. Merchant agrees to defend and indemnify BLUU and Reseller against any claim arising out of a violation of Merchant’s obligations under this Section.
4.5 FEES. Except as otherwise set forth on the cover page, Merchant agrees to pay BLUU or authorized Reseller each month the bluu® Cloud Service fee for full access to the bluu® Cloud Service features (the "bluu® Cloud Monthly Fee”) by ACH as specified on the Merchant Application and in the manner provided herein. Merchant acknowledges that the bluu® Cloud Monthly Fee will not be prorated but that Merchant will be charged for the whole calendar month if Merchant uses bluu® Cloud Services for any day in any given month. Merchant hereby authorizes BLUU, or the authorized Reseller or their respective banks to debit any Merchant account (including any Merchant account maintained by Merchant to which access has been granted to any affiliate of BLUU) periodically for any fees or other payments due from Merchant to BLUU or the authorized Reseller hereunder. Merchant agrees and acknowledges that Merchant will be charged the bluu® Cloud Monthly Fee according to BLUU or the authorized Reseller’s then current price schedule plus any labor costs including without limitation onsite service costs, if applicable, subject to all of the limited rights, restrictions and obligations set forth herein.
4.6 OWNERSHIP AND RESTRICTIONS. BLUU or its licensors, if applicable, retain all ownership and intellectual property rights to BLUU programs or services including without limitation bluu® Cloud Services. BLUU owns the source code and retains all ownership and intellectual property rights to anything developed and delivered under this Agreement. Merchant may not: remove or modify any program markings or any notice of BLUU’s or its licensors’ proprietary rights; make the programs or materials resulting from any services available in any manner to any third party for use in the third party’s business operations; modify, make derivative works of, reverse compile or engineer, or disassemble any part of the services (including without limitation data structures), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to BLUU programs or services; disclose results of any services or program benchmark tests; and license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the services, BLUU programs or materials available, to any third party. Merchant may not copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, including without limitation electronic, mechanical, photocopying, recording or other means, and Merchant agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
4.7 LICENSE TO bluu® CLOUD SERVICES. In addition to the terms and conditions set forth in the Section 2 of this Agreement, Merchant has the nonexclusive, non-assignable, fully-terminable, limited right to use bluu® Cloud Services (in object form only) provided by BLUU hereunder solely for Merchant’s internal business operations and subject to the terms of this Agreement at Merchant’s business location or, if applicable, solely in connection with Merchant’s business operations using terminals or devices with application or service modules developed and authorized by BLUU. Merchant agrees that Merchant does not acquire under this Agreement any license or rights in, including without limitation, any software including BLUU software, source code or support and maintenance services, or any developed or customized software. At the end of this Agreement or the Services hereunder, any software license, if any, or Merchant’s right to access or use the BLUU programs or bluu® Cloud Services shall terminate.
5. bluu® EXTENDED PROTECTION PLAN (If applicable).5.1 PROTECTION COVERAGE. This bluu® Protection Plan (this "Protection Plan”) will allow Merchant to have Merchant’s bluu® POS hardware provided by BLUU or its authorized reseller (the "Covered Product”) replaced with a new or refurbished product pursuant to these terms and conditions when Merchant encounters the problems set forth in Section 5.2 below in connection with the Covered Product during normal usage for a period of two (2) years from the date Merchant purchases this Protection Plan (the "Coverage Term”). Merchant must purchase this Protection Plan within ninety (90) days from the date Merchant purchases the Covered Product. Merchant must pay a monthly fee of $14.99 and any applicable taxes per unit during the Coverage Term by ACH as specified on your Merchant Application. BLUU’s obligations under this Plan will be fulfilled in their entirety if BLUU replaces the Covered Product with a new or refurbished product pursuant to these terms and conditions. Replacement is limited to one product per year during the Coverage Term upon payment of $100 deductible fee (the "Coverage”), and BLUU will have no further obligations under this Protection Plan once the replacement is provided. This Protection Plan is inclusive of any manufacturer’s warranty that may exist during the Coverage Term. It does not replace the manufacturer’s warranty, but provides certain additional benefits during the Coverage Term. Replacement parts will be new, rebuilt or non-original manufacturer’s parts that perform to the factory specifications of the product at BLUU’s sole option. This Protection Plan does not cover repair or replacement of the Covered Product for any of the causes or provide coverage for any losses set forth in Section 5.7 below, entitled "WHAT IS NOT COVERED.”
5.2 PROTECTION PLAN. This Protection Plan provides coverage for parts and labor costs to repair or replace Merchant Covered Product where the problem is the result of a failure caused by:
(a) Normal wear and tear;
(b) Accidental damage from handling (ADH), such as damage from drops, spills and liquid damage associated with the handling and use of the Covered Product, if the coverage has been offered and purchased at the time of sale with this Protection Plan;
(c) Defective pixels when there are at least three (3) defective pixels throughout the entire display area;
(d) Dust, internal overheating, internal humidity/ condensation; and
(e) Defects in materials or workmanship. This Protection Plan also provides power surge/fluctuation protection.
Please see Section 5.8 entitled "POWER SURGE PROTECTION" for details.
5.3 COVERAGES. This Protection Plan provides protection for damage from drops, spills and liquid damage associated with the handling and use of the Covered Product. The plan does not provide protection against theft, loss, reckless, or abusive conduct associated with handling and use of the Covered Product, cosmetic damage and/or other damage that does not affect unit functionality, or damage caused during shipment between Merchant and BLUU or its service providers.
5.4 WHAT TO DO IF A COVERED PRODUCT REQUIRES SERVICE. Merchant must call Merchant’s Reseller (if purchased through a Reseller) or BLUU (if purchased directly) for any functionality problems. For any questions regarding this Protection Plan, Merchant can call BLUU toll-free at 1-800-303-2567 and explain the problem.
5.5 HOW BLUU WILL SERVICE MERCHANT’S ITEM. Depending on the item and failure circumstances, BLUU will either at its sole discretion:
(a) Provide a new or refurbished product of equal features and functionality; or
(b) Repair the Covered Product.
5.6 MERCHANT’S RESPONSIBILITIES Merchant must provide BLUU with a complete copy of proof of purchase. Merchant may provide such proof of purchase at time of claim. Merchant must properly maintain, store, and use Merchant’s item according to the manufacturer instructions.
5.7 WHAT IS NOT COVERED.
(a) Any product malfunction, or damage fraudulently described or materially misrepresented by Merchant;
(b) Maintenance, repair, or replacement necessitated by loss or damage resulting from any cause other than normal use and operation of the Covered Product in accordance with the manufacturer's specifications and owner's manual, including but not limited to, theft or loss, exposure to weather conditions, failure to properly clean, maintain or lubricate, operator negligence, misuse, abuse, improper electrical/power supply, improper equipment modifications, attachments or installation or assembly, vandalism, animal or insect infestation, battery leakage, or act of nature or any other peril originating from outside the Covered Product;
(c) Cosmetic damage to case or cabinetry or other non-operating parts or components which does not affect the functionality of the Covered Product;
(d) Damaged or defective LCD screens when the failure is caused by abuse or is otherwise excluded herein;
(e) Conditions that were caused by Merchant intentionally, or known by Merchant prior to purchasing this Protection Plan;
(f) Consumer replaceable or consumable batteries;
(g) Consumer replaceable or consumable items such as but not limited to toner, ribbons, ink cartridges, drums, belts, cables, printer heads, blades, strings, trim etc.;
(h) Product(s) with removed or altered serial numbers;
(i) Manufacturer defects or equipment failure which is covered by manufacturer's warranty, manufacturer's recall, or factory bulletins (regardless of whether or not the manufacturer is doing business as an ongoing enterprise);
(j) Damage to computer hardware, software and data caused by, including, but not limited to, viruses, application programs, network drivers, source code, object code or proprietary data, or any support, configuration, installation or reinstallation of any software or data; or
(k) Failures related to transportation damage, customer education, cleaning, preventive maintenance, "No Problem Found" diagnosis, non-intermittent issues that are not product failures.
5.8 POWER SURGE PROTECTION. This Protection Plan protects against the operational failure of the Covered Product resulting from a power surge while properly connected to a surge protector. Merchant may be asked to provide Merchant’s surge protector for examination.
5.9 SHIPPING. This Protection Plan covers UPS Ground (or the equivalent) delivery shipping charges only to repair or facilitate service during the Coverage Term, including shipping to the manufacturer if the manufacturer does not cover shipping charges to their facilities. Upon Merchant’s request and payment in the amount of $50, BLUU may deliver the Covered Product using (continental US) delivery by next day service. However, BLUU does not guarantee any delivery time.
5.10 CANCELLATION. Merchant may cancel this Protection Plan as long as any Coverage has not been used. To cancel it, Merchant may call BLUU toll-free at 1-800-303-2567. BLUU may cancel this Protection Plan at its option on the basis of nonpayment, fraud, or material misrepresentation by Merchant. If this Protection Plan was inadvertently sold to Merchant on a product which was not intended to be covered by this Protection Plan, BLUU will cancel this Protection Plan and return the full purchase price of the Protection Plan to Merchant. Written notice which includes the effective date of cancelation and reason for cancellation will be mailed to Merchant. If BLUU cancels this Protection Plan for nonpayment then BLUU will provide notice at time of cancellation.
6. U CHARGE® GATEWAY SERVICES. (If applicable)6.1 SERVICES. Subject to the terms and conditions of this Agreement, pass-through gateway services will be made available to Merchant through the U CHARGE® gateway to facilitate the transmission and reporting of certain merchant card transaction data between Merchant and various credit and debit card payment processors (collectively, the "U CHARGE® Services”). Merchant acknowledges and agrees that: (a) Reseller may perform its obligations hereunder and provide the U CHARGE ® Services through BLUU; (b) BLUU is a third party beneficiary of this Agreement and shall be entitled at any time to exercise any and all of the rights provided by Merchant to Reseller pursuant to this Agreement; (c) Merchant shall obtain, install, support and maintain the related hardware required to access and use the Services; (d) in connection with the Services, certain information about the number of transactions and methodology for such transactions (i.e., Internet protocol and dial-up) will be collected and shared with BLUU and any reseller of BLUU; and Reseller or BLUU may immediately suspend the Services with or without notice to Merchant (i) to prevent damages to, or degradation of, its network integrity which may be caused by Merchant, (ii) to comply with any law, regulation, court order, or other governmental request order which requires immediate action, (iii) to otherwise protect BLUU, Reseller or Reseller’s service provider in its good faith judgment from potential legal liability, and/or (iv) in the event fees hereunder are not paid when due.
6.2 FEES. Merchant agrees to pay to BLUU or authorized Reseller any fees due hereunder in connection with the U CHARGE® Services (the "U CHARGE® Fees”) as required in the Cover Page to this Agreement.
6.3 LICENSE TO U CHARGE® SERVICES. Subject to the terms and conditions set forth herein, Merchant has the nonexclusive, non-assignable, fully-terminable, limited right to use U CHARGE® Services (in object form only) provided by BLUU hereunder solely for Merchant’s internal business operations and subject to the terms of this Agreement at Merchant’s business location or, if applicable, solely in connection with Merchant’s business operations using terminals or devices with application or service modules developed and authorized by BLUU. Merchant agrees that Merchant does not acquire under this Agreement any license or rights in, including without limitation, any software including BLUU software, source code or support and maintenance services, or any developed or customized software. At the end of this Agreement or the services hereunder, any software license or right to access or use the BLUU programs or U CHARGE® Services granted to Merchant shall terminate.
6.4 RESTRICTIONS ON USE. In addition to any other restrictions set forth herein with respect to the Services, Merchant shall use the U CHARGE® Services only for bona fide transactions between Merchant and a cardholder. Merchant shall not allow any third party to use the U CHARGE® Services. BLUU retains all right, title and interest in and to the U CHARGE® Services and all related documentation and Merchant shall not take any action inconsistent with such ownership.
7.2 APPLICABLE LAWS, RULES AND REGULATIONS. Merchant acknowledges that there are certain federal, state and local laws, rules and regulations applicable to the issuance, use and acceptance of prepaid cards, stored value cards and/or gift cards and/or the operation of customer loyalty programs, specifically including, but not limited to, laws applicable to escheat. Merchant agrees that it has sole responsibility to comply with all such laws, rules, or regulations at all times. Merchant further agrees to provide assistance to BLUU with respect to compliance with any such laws, rules and regulations as may be applicable to BLUU with respect to the FlexGift® Program. Merchant will allow the recipient of a Gift Card under the FlexGift® Program to redeem the full value of the Gift Card. Merchant is responsible for keeping track of the value and any unredeemable balance of a Gift Card. Merchant is solely responsible for complying with any applicable escheat or abandoned or unclaimed property laws in connection with a Gift Card.
7.3 CUSTOMER DATA.
7.4 LIMITATION OF LIABILITY; NO REPRESENTATIONS OR WARRANTIES.
(a) BLUU SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES INCLUDING LOSSES RESULTING FROM DESTRUCTION OR DAMAGE OF RECORDS, LOAD FAILURE, LOST DATA OR LOST PROFITS. THE LIMIT OF MONETARY DAMAGES AGAINST BLUU UNDER ANY CIRCUMSTANCES SHALL BE THE AMOUNT PAID BY MERCHANT TO BLUU PURSUANT TO THE FLEXGIFT PROGRAM IN THE THIRTY (30) DAYS PRECEDING THE DATE ANY CLAIM AGAINST BLUU AROSE.
(b) THE FLEXGIFT PROGRAM, SITE, AND ALL RELATED CONTENT AND MATERIALS ARE PROVIDED ON AN "AS IS” BASIS. BLUU DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (A) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT WITH RESPECT TO THE FLEXGIFT PROGRAM, THE SITE OR ANY GIFT CARDS FURNISHED TO MERCHANT HEREUNDER OR (B) ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLIANCE OF THE FLEXGIFT PROGRAM, THE SITE OR THE USE, ISSUANCE OR ACCEPTANCE OF ANY GIFT CARDS WITH AND FEDERAL, STATE OR LOCAL LAWS, RULES OR REGULATIONS. BLUU DOES NOT WARRANT THAT THE FLEXGIFT PROGRAM, SITE OR RELATED CONTENT AND MATERIALS IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, THAT IT WILL MEET MERCHANT’S REQUIREMENTS, WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION OR WITHOUT INTERRUPTION, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. USE OF THE FLEXGIFT PROGRAM AND SITE IS AT MERCHANT’S OWN RISK AND MERCHANT IS SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO PROPERTY OR DATA THAT MAY RESULT.
(c) BLUU DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE PURCHASED USING A GIFT CARD, OR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR THE FLEXGIFT PROGRAM OR THROUGH ANY HYPERLINKED WEBSITE.
(d) BLUU shall not have any liability whatsoever for (A) any lost or stolen or unauthorized use of Gift Cards; or (B) any fraud and/or forgery in relation to the FlexGift® Program perpetrated by Merchant or a third party.
7.5 MERCHANT CONTENT LICENSE. Merchant may provide Merchant Content to BLUU for use in connection with the FlexGift® Program, and if Merchant provides such Merchant Content to BLUU, Merchant hereby grants to BLUU a nonexclusive, worldwide, royalty free license to use the Merchant Content in connection with the FlexGift® Program. "Merchant Content” means any content owned or licensed by Merchant (other than from BLUU), including such content provided by Merchant to BLUU for use in connection with the FlexGift® Program, including, but not limited to, trademarks, service marks, logos, domain names, trade names, graphics, images, text, software, and copyrightable materials.
7.6 TAXES. Merchant is responsible for determining what, if any, taxes apply to the redemption of Gift Cards and for collecting, reporting, and remitting the correct tax to the appropriate tax authority, if any. BLUU is not responsible for determining whether taxes apply or for collecting, reporting, or remitting any taxes arising from any transaction with or by Merchant.
7.7 DISPUTES; NO THIRD-PARTY BENEFICIARIES. All disputes between Merchant and its customers relating to any Gift Card or FlexGift® Program transactions shall be settled between the Merchant and its customers. All disputes between Merchants that are franchisors and franchisees shall be settled between such franchisor and franchisee. In no event shall any cardholder customer be a third-party beneficiary of this FlexGift® Program.
7.8 FEES. BLUU will commence billing for the Monthly Web Access Fee and Statement Fee from the date BLUU provides written acceptance and approval of this FlexGift® Agreement.
7.9 TERMINATION OF FLEXGIFT PROGRAM. BLUU shall have the right in its sole discretion to withhold or set-off any termination fees hereunder from any funds of Merchant then held by BLUU or charge to any account (credit card or otherwise) that Merchant has authorized BLUU to charge fees against any such termination fees. BLUU reserves the right to terminate this FlexGift® Program at any time for any reason.
7.10 INDEMNIFICATION. Neither BLUU nor Reseller shall have liability for any indirect, special, or consequential damages, including lost profits, arising in connection with the furnishing, performance, or use of the Device, POS Equipment or the performance of the Services under this Agreement. Merchant shall defend, indemnify and hold harmless BLUU and Reseller from and against any and all claims, losses, liabilities, costs (including attorney’s fees), damages and expenses arising from or related to: (a) Merchant’s breach of this Agreement; (b) any negligent or willful act or omission of Merchant; (c) any third party claim arising out of the processing services provided to Merchant and/or Merchant’s use of the Equipment; (d) the FlexGift® Program and/or the issuance, use or acceptance of Gift Cards; (e) any claim for sales tax or any other tax obligation arising from the issuance or redemption of a Gift Card or the provision of goods and/or services in connection therewith; (f) any claim by any local, state, or federal government entity for unredeemed Gift Cards or unredeemed cash values thereof, or any other amounts under any applicable escheat or abandoned or unclaimed property laws; (g) any failure of Merchant to honor a Gift Card; (h) any infringement of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by Merchant, including, without limitation, in connection with the Merchant Content or BLUU’s use thereof; (i) Merchant’s provision of goods, services, or information in connection with the FlexGift® Program; and/or (j) Merchant’s use or handling of Customer Data.
8.2 MERCHANT OBLIGATIONS. In addition to, and not in limitation of, Merchant’s other obligations hereunder; Merchant shall have the following obligations under this Agreement:
(a) Compliance with Laws. Merchant shall comply with all applicable laws, statutes and regulations, including any applicable network rules, affecting this Agreement and operation of Merchant’s business. Merchant shall maintain all registrations with governmental agencies or other offices which may be required under local law in order to properly conduct Merchant’s business. Merchant shall refrain from engaging in any activities or conduct which would cause BLUU to be in violation of the laws of any jurisdiction.
(b) No Alteration. Merchant agrees not to tamper with, abuse, misuse, alter or otherwise rearrange the Services or BLUU provided equipment, if any. Merchant shall not, and shall not permit or assist others to, do anything that may interfere with the Services or the network of BLUU or Reseller Service Providers or access thereto by other users of such networks
(c) Security. Merchant acknowledges that security safeguards, by their nature, are capable of circumvention and that BLUU does not and cannot guarantee that any information or content transmitted/received through the Services, cannot be accessed by unauthorized persons capable of overcoming such safeguards. Merchant is solely responsible for the security of data residing on servers owned or operated by Merchant, or a third party designated by Merchant (e.g., a Web hosting company, processor or other service provider).
(d) Use. Merchant shall be solely responsible for use of the Services by any of its employees, officers, directors, agent, and contractors.
(e) Licenses. Merchant shall be solely responsible for obtaining all necessary licenses and/or authorization for all software and equipment necessary for the provision of the Services. BLUU shall not be responsible if any changes in the Services cause equipment, hardware or software to become obsolete, require modification or attention, or otherwise affect performance of the same. Merchant acknowledges that the Services are designed for use with certain third-party programs. Merchant will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. BLUU does not warrant and shall not be responsible for services or software provided by unaffiliated third-party vendors. Merchant authorizes BLUU to disclose to any third-party vendor information concerning Merchant to the extent required to deliver the requested Services.
(f) Suspension of Services. BLUU reserves the right to take all actions, including immediate suspension of the Services, which it considers in its sole and absolute discretion are reasonably necessary to ensure compliance by Merchant with this Section 8.2. Merchant will be responsible for any and all additional costs, liabilities and expenses incurred by BLUU or Reseller resulting from Merchant’s breach of this Section 8.2.
8.3 MERCHANT WARRANTIES. Merchant represents and warrants to Reseller and BLUU that (a) this Agreement has been duly authorized, executed and delivered by it; (b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement constitutes its valid and binding obligation, enforceable in accordance with its terms; (d) the making of this Agreement does not violate any agreement, right or obligation existing between it and any other person or entity; and (e) Merchant shall comply at all times with applicable laws, statutes and regulations with respect to performance under or with respect to this Agreement.
8.4 TERM; TERMINATION.
(a) TERM. Merchant hereby agrees that the term of this Agreement shall be the longer of: (a) the term set forth on this Agreement; or (b) if the Merchant’s Processor is an affiliate company of BLUU, then the term set forth in the Card Services Agreement with the affiliated Processor. Merchant further agrees if the Processor is an affiliate of BLUU, BLUU is a third-party beneficiary of this Agreement and the Card Services Agreement, and shall be entitled at any time to exercise any and all of the rights provided by Merchant to Processor pursuant to the Card Services Agreement.
(b) TERMINATION BY BLUU. BLUU may terminate this Agreement upon thirty (30) days written notice to the Merchant. Notwithstanding the foregoing, BLUU may terminate BLUU provided services immediately for any of the following reasons at any time:
(i) the violation, omission, or breach by Merchant of any term or condition under this Agreement including without limitation any representation, warranty or covenant made by it under this Agreement;
(ii) the violation, omission, or breach by Merchant of any federal or state laws;
(iii) any failure by Merchant to comply with any association rules of a card association or the operating procedures of a card association;
(iv) BLUU deeming Merchant to be financially insecure;
(v) Merchant or any person owning or controlling Merchant's business being listed in the MATCH file maintained by Visa and MasterCard;
(vi) any card association notifying BLUU that it is unwilling to continue accepting Merchant's data or Merchant either never transmits Sales Data to Processor after receiving a merchant number or fails for 60 consecutive days to transmit Sales Data to Processor;
(vii) any failure by Merchant to make any payment due hereunder when due;
(viii) the Merchant ceasing to do business, or the Merchant filing a petition for bankruptcy or having an involuntary petition for bankruptcy filed against it, or becoming insolvent or commencing an assignment for the benefit of creditors; or
(ix) impossibility or impracticability of performance by BLUU due to changes in Card Company by-laws, rules and regulations, by-laws, rules and regulations of any other provider of services to BLUU, or federal, state or local laws, regulations, or ordinances, which this Agreement cannot reasonably be modified to accommodate, as determined in the sole discretion of BLUU.
(c) EFFECT OF TERMINATION. Upon termination of Services, Merchant shall pay to BLUU all sums due hereunder and outstanding, if any, and shall cease any and all use and access to the Services. Upon termination of the Services, the Account (as defined below) shall terminate and BLUU may permanently delete all of Merchant’s Content (as defined below) from BLUU’s system. It is Merchant’s responsibility to retrieve and/or transfer any Content stored with BLUU prior to any termination date. BLUU does not provide data retrieval services, data conversion services or data migration services. Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement (including without limitation, indemnification obligations and limitations of liability) will survive any termination of this Agreement or your use of the Services and remain in effect thereafter in accordance with their terms.
(a) Proprietary Rights. This Agreement does not convey to Merchant any ownership interest whatsoever in the BLUU Property, in whole or in part. Merchant acknowledges that BLUU is the sole and exclusive owner of all intellectual property rights in the BLUU Property. For the avoidance of doubt, all rights in the BLUU Property not expressly granted to Merchant are reserved by BLUU and its licensors, if applicable.
(b) Restrictions. Except for the limited license granted hereunder, Merchant does not have any rights in the BLUU Property. Merchant may not (i) sublicense, assign, lease, pledge or otherwise transfer Reseller’s rights in the BLUU Property or allow any security interest, lien or encumbrance to be created in or on such rights; (ii) copy, reproduce, reverse engineer (except solely to the extent applicable law prohibits reverse engineering restrictions), compile, remanufacture, modify, create derivative works or disassemble any portion of the BLUU Property, or in any way duplicate all or any portions of the BLUU Property, including translating the BLUU Property, in whole or in part, into another software language, without BLUU’s prior written consent; (iii) remove, modify or take any other action which would obscure the copyright, trademark or other proprietary notices contained in any BLUU Property or any copy thereof; or (iv) develop or create any software or other application that performs the same or substantially similar functions as the software used by BLUU.
(a) Registration. In order to access the Services, Merchant must first create and register an online account ("Account”). By registering an Account, Merchant represents and warrants that it is capable of entering into a legally binding agreement and that all required information submitted by Merchant to BLUU is current, complete and accurate. As part of the registration process, Merchant will be required to, among other things: (i) associate an email address with the Account; and (ii) provide a full legal name to be associated with Account, Merchant’s company name and EIN, business phone number, and business shipping and billing addresses. Merchant will also be requested to provide its Processor information (including merchant and terminal ID). Merchant agrees to maintain and promptly update its Account information in order to ensure that it remains true, accurate, current and complete. BLUU may, from time to time, require Merchant to provide additional information in evaluating its Account and eligibility to continue using the Services. BLUU reserves the right, in its sole and absolute discretion, to reject, suspend or terminate the Account (with or without notice).
(b) Security of Accounts. Merchant is solely responsible for maintaining the confidentiality and security of the Account password and for all activities that occur on or through the Account, and Merchant agrees to immediately notify BLUU if it suspects any unauthorized use of the Account or access to the password. Neither BLUU nor Reseller shall be responsible for any losses arising out of the unauthorized use of the Account. If Merchant discloses its password to anyone or shares Account access, Device and/or POS Equipment with other people, Merchant takes full responsibility for its actions. Where possible, users of public or shared devices should log out at the completion of each visit. If Merchant sells or returns a Device or POS Equipment, Merchant should logout and/or deactivate such device before doing so. If Merchant fails to log out or deactivate its Device or POS Equipment, subsequent users may be able to access certain of its Account information.
(c) Permissions. Merchant shall be solely responsible for setting access permissions to its Account to employees or other users, and neither BLUU nor Reseller shall have any liability for any permission granted in error or access by unauthorized personnel. Merchant is solely responsible for ensuring that its authorized users comply with the terms and conditions of this Agreement.
8.7 PCI COMPLIANCE. Merchant acknowledges that Merchant’s business must be compliant with the Payment Card Industry Data Security Standard ("PCI DSS”). Merchant shall cause its business to be in compliance with the PCI DSS requirements at all times.
8.8 SYSTEM REQUIREMENTS. Merchant must have a high-speed Internet connection, and hardware and software compatible with Services.
8.9 VIRUSES AND SECURITY. It is Merchant’s responsibility to have in place and maintain virus protection software and security for all of its systems and data, which such security shall include firewalls, passwords, physical security and access control policies. Merchant acknowledges that the security and protection of the network and the data and applications on that network, including protections against unauthorized access, is solely and entirely Merchant’s responsibility. A properly configured firewall is required for each site using a persistent connection to the public Internet or any private network where there is a potential for unauthorized access to the BLUU network. Merchant acknowledges that, to be effective, virus protection software, system passwords, and other security software require periodic and routine updates, which Merchant must obtain from its supplier or the manufacturer, as appropriate. BLUU disclaims any warranty, express or implied, that, after the initial installation by BLUU of any BLUU-proprietary software, Merchant’s data will remain virus-free. Support or services hereunder necessitated by computer viruses, or by any failure or breach of Merchant’s security for its systems or data, including, without limitation, damage caused by persons lacking authorized access, are not covered under this Agreement, and will be supplied only upon Merchant’s request. Merchant waives any claims hereunder against BLUU to the extent arising from Merchant’s failure to have or maintain current virus protection, or to the extent arising as a result of a failure or breach of Merchant’s security for its systems or data, or as a result of any unauthorized access to Merchant’s systems. If requested by Merchant, BLUU shall provide, on a commercially reasonable efforts and on a time-and-materials basis, support or services to address damage caused by, but not limited to, any of the following: Merchant’s failure to have current virus protection; Merchant’s failure to maintain virus protection; damage arising as a result of a failure of Merchant’s security for its systems or data; damage arising as a result of a breach of Merchant’s security for its systems or data; or damage as a result of any unauthorized access to Merchant’s systems. Such support and services shall be billed at the prevailing standard BLUU rates.
8.10 MERCHANT CONTENT. Merchant is solely responsible for its access to and use of the Services and any and all text, data, photos, graphics, images, logos, trademarks, trade names, service marks, promotions, specials, Account information, product and other information relating to its business (collectively, the "Content”) that Merchant or Merchants users submit or transmit to, through or in connection with Merchant’s use of the Services. Merchant represents and warrants that its Content shall not: (i) be false, inaccurate or misleading; (ii) be obscene, indecent, pornographic, defamatory, libelous, threatening, harassing, abusive or inflammatory; (iii) be fraudulent or involve the sale of illegal, counterfeit or stolen goods; (iv) infringe upon or misappropriate any third party’s copyright, patent, trademark, trade secret, or other intellectual property rights; (v) violate the terms of this Agreement; (vi) violate any applicable laws or regulations; (vii) contain or transmit any corrupted data or code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (viii) expose BLUU to, or appear to create, any kind of liability for BLUU. Merchant assumes all risks associated with its Content, including anyone’s reliance on its quality, accuracy, or reliability. Merchant agrees to allow BLUU to store or re-format Merchant’s Content on BLUU’s or other third-party servers and/or display such Content in connection with Merchant’s use of the Services in any way as BLUU chooses. BLUU reserves the right to remove any user (with or without notice) should BLUU determine, in its sole discretion, that the Services have been compromised or in any way used inappropriately. Merchant agrees to pay for all royalties, fees and any other monies owing any person by reason of Merchant’s Content. By providing such Content to BLUU, Merchant grant to BLUU a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right and license to use, reproduce, modify, adapt, publish, distribute, publicly display and publicly perform the Merchant’s Content in connection with Merchant’s use of the Services and for promoting the Services. BLUU reserves the right, in its sole and absolute discretion, to remove, modify or disable any Content posted on or through the Services at any time (with or without notice). BLUU will discontinue using any of the Merchant’s Content on or through the Services within a commercial reasonable period after Merchant removes such Content from its Account. In addition to any other right or license granted to BLUU hereunder, BLUU may also collect and use anonymized, aggregate data, including the Content, in connection with Merchant’s use of the Services for purposes of marketing, data analytics, and enhancing and optimizing the Services.
8.11 SECURITY. Merchant is solely responsible for any security breaches affecting cloud hosting servers or accounts. If Merchant’s server or website is in any way regarded as being responsible for or involved in an attack on or unauthorized access into another server or system, BLUU will shut it down immediately. In addition to any other indemnify obligation hereunder, Merchant hereby agrees to indemnify BLUU for any and all damages, costs, charges and expenses arising out of any security breaches affecting BLUU or any of its other customers, including without limitation any cost or expenses to fix such security breaches.
8.12 INVESTIGATION OF VIOLATIONS. BLUU may investigate any reported violation of this Agreement, or its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers or third parties. BLUU will not access or review the contents of any e-mail or similarly stored electronic communications except as required or permitted by applicable law or legal process.
8.13 ACTIONS. BLUU may restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or that potentially violates any laws. If BLUU becomes aware that Merchant has possibly violated this Agreement, any related policies or guidelines, third party rights or laws, BLUU may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating bluu® Services, (c) restricting or prohibiting any and all uses of content hosted on BLUU's systems, and (d) disabling or removing any hypertext links to third-party web sites, any content distributed or made available for distribution via bluu® Services, or other content not supplied by BLUU that, in BLUU's sole discretion, may violate or infringe any law or third party rights or that otherwise exposes or potentially exposes BLUU to civil or criminal liability or public ridicule. It is BLUU's policy to terminate repeat infringers. These rights of action, however, do not obligate BLUU to monitor or exert editorial control over the information made available for distribution via bluu® Services. If BLUU takes corrective action because of a possible violation, BLUU will not refund to Merchant any fees paid in advance for the corrective action.
8.14 DISCLOSURE RIGHTS. To comply with applicable laws and lawful government requests, to protect BLUU's systems and customers, or to ensure the integrity and operation of BLUU's business and systems, BLUU may access and disclose any information it considers necessary or appropriate, including without limitation user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on BLUU's servers and systems. BLUU may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
8.15 THIRD-PARTY SERVICES. Merchant acknowledges that BLUU uses third-party services (such as networking, connectivity, storage, fulfillment and related technology) to provide the Services. Except if Merchant has purchased a bundled package Services that includes these third-party services, such third-party service providers may charge Merchant additional fees in connection with Merchant’s use of the Services and it is Merchant’s sole responsibility to pay such fees. BLUU expressly disclaims all liability for the operation or security of such third-party services, for Merchant’s inability to use the Services as a result of such third-party services, for any act or omission of such third-party service providers, or for your breach of the terms of your contract with such third-party service providers as a result of using the Services.
8.16 SUPPORT AVAILABILITY. BLUU’s standard coverage time period for support is 9:00 am – 12:00 am EST (6:00 am – 9:00 pm PST) Monday – Saturday and 12:00 pm – 9:00 pm EST (9:00 am – 6:00 pm PST) on Sunday; provided, however, that BLUU will not provide support on Holidays (as defined below) or during times that BLUU reasonably determines (in its sole discretion) that systems and server maintenance is necessary. "Holidays” are defined as follows: New Year’s day (January 1st), Memorial Day (last Monday in May), Independence Day (July 4th), Labor Day (the 1st Monday in September), Thanksgiving Day (4th Thursday in November), and Christmas Day (December 25th). BLUU reserves the right to modify the times and dates on which it shall provide standard coverage.
8.17 REPRESENTATIONS AND WARRANTIES OF MERCHANT. Merchant hereby represents and warrants that it is a business entity duly organized, validly existing and in good standing under the laws of the state in which it was organized and has all requisite power and authority to execute this Agreement and to perform all of the agreements, undertakings, representations and warranties herein contained.
8.18 MERCHANT’S INDEPENDENT STATUS. Merchant is not an agent or authorized representative of BLUU.
8.19 DISCLAIMED WARRANTIES. BLUU exercises no control over, and accepts no responsibility for, the content of the information passing through BLUU's host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE BLUU CLOUD SERVICES AND U CHARGE SERVICES, ARE PERFORMED ON AN "AS IS" AND "AS AVAILABLE” BASIS AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING WITHOUT LIMITATION ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS, HOSTING SERVICES OR SERVICES THAT ARE INTERRUPTED, INACCURATE, UNRELIABLE, UNSECURE OR CONTAIN ERRORS. MERCHANT’S USE OF OR RELIANCE UPON THE SERVICES AND ANY THIRD-PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT MERCHANT’S SOLE RISK AND DISCRETION. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BLUU AND RESELLER DO NOT MAKE AND HEREBY DISCLAIM, AND MERCHANT WAIVES ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
8.20 LIMITATION OF LIABILITY. IN NO EVENT SHALL BLUU OR RESELLER BE LIABLE TO MERCHANT FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM USE, PROFITS OR GOODWILL) ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE DEVICE, POS EQUIPMENT AND/OR SERVICES UNDER THIS AGREEMENT, WHETHER OR NOT MERCHANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. IN NO EVENT SHALL BLUU OR RESELLER BE LIABLE TO MERCHANT OR ANY OTHER PARTY FOR ANY LOSS OF DATA OCCURRING AS A RESULT OF ANY PARTY’S USE OF THE DEVICE, POS EQUIPMENT AND/OR SERVICES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. MERCHANT WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS (INCLUDING PAYMENTS FOR GOODWILL) ON ACCOUNT OF ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT BY EITHER PARTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BLUU’S AND RESELLER’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL, IN NO CIRCUMSTANCE, EXCEED THE AMOUNT PAID BY MERCHANT HEREUNDER WITHIN THE LAST 12 MONTHS.
8.21 INDEMNIFICATION. Merchant shall defend, indemnify and hold harmless BLUU and Reseller from and against any and all claims, losses, liabilities, costs (including attorney’s fees), damages and expenses arising from or related to: (a) Merchant’s breach of this Agreement; (b) any negligent or willful act or omission of Merchant; and/or (c) any third-party claim arising out of Services or Protection Plan provided to Merchant and/or Merchant’s use of Services or Protection Plan.
8.22 GOVERNING LAW; CONSENT TO VENUE AND JURISDICTION; WAIVER OF JURY TRIAL. This Agreement shall be interpreted and construed in accordance with, and governed by, the internal laws of the State of New Jersey without reference to its conflict of law rules. Merchant and BLUU agree that each may bring claims against the other only in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. All actions, proceedings or litigation brought by BLUU or Merchant shall be instituted and prosecuted in the Superior Court of New Jersey, Bergen County, or the United States District Court for the District of New Jersey. By execution and delivery of this Agreement, each party hereby agrees and accepts to subject themselves to the exclusive jurisdiction of the aforementioned courts. Each party irrevocably consents to the service of process of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by certified mail, postage prepaid, or overnight courier. BLUU AND MERCHANT WAIVE, INSOFAR AS PERMITTED BY LAW, TRIAL BY JURY IN ANY ACTION, PROCEEDING OR LITIGATION BETWEEN BLUU AND MERCHANT.
8.23 COURT COSTS AND ATTORNEYS’ FEES. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement and BLUU and/or Reseller is the prevailing party, BLUU and Reseller shall be entitled to collect court costs, reasonable attorneys' fees, and other costs in addition to any other relief to which BLUU and/or Reseller may be entitled.
8.24 CHANGES TO THIS AGREEMENT. This is an agreement between BLUU and the Merchant. Merchant understands and acknowledges that any and all oral or written covenants or representations made by sales agents, Reseller or any other third party, whether express or implied, are not made with the prior written consent of BLUU, are not made on behalf of BLUU and will not have the force or authority to bind BLUU. Sales representatives and other third parties have NO legal authority to bind BLUU. Any such agreements, covenants and representations will not subject BLUU to any obligations, disputes or lawsuits that may arise from such agreements, covenants or representations. BLUU shall not be bound except in a writing executed by a duly authorized representative of BLUU.
8.25 CUSTOMER REFERENCE. Merchant’s business name and the city, state and country of Merchant’s business may be identified by BLUU in a list of its customers for marketing purposes without compensation. Merchant agrees (i) that BLUU or its affiliate may identify you as a recipient of the services provided hereunder and use Merchant’s logo and copyrighted information in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by BLUU or its affiliate for promotional purposes. If Merchant does not wish BLUU to identify Merchant as one of its customers in its marketing materials, Merchant must submit Merchant’s request in writing to BLUU, INC Attn: Sales Support 255 Route 17 South, Hackensack, NJ 07601 USA.
8.26 TRANSLATION. Notwithstanding any translation of this Agreement not in the English language, the English language version of this Agreement shall rule and the other language version shall be treated in the capacity of being created merely for the purpose of convenience.