IMPORTANT: READ THIS AGREEMENT BEFORE USING THE BLUETALON TECHNOLOGY AND/OR SERVICES, AS SUCH TERMS ARE DEFINED BELOW, AND AS FURTHER DESCRIBED HEREIN. THIS AGREEMENT APPLIES WHEN CLIENT IS CLICKING ON AN “ACCEPT” BUTTON RELATING TO THE BLUETALON TECHNOLOGY AND/OR SERVICES, OR OTHERWISE ACCESSING OR USING THE BLUETALON TECHNOLOGY AND/OR SERVICES, EITHER OF WHICH ACTIONS INDICATE CLIENT’S ACCEPTANCE OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF CLIENT, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND CLIENT TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU DO NOT HAVE SUCH AUTHORITY, BLUETALON IS UNWILLING TO ENTER INTO THIS AGREEMENT WITH YOU; ACCORDINGLY DO NOT CLICK ON AN “ACCEPT” BUTTON, OR ACCESS OR USE THE BLUETALON TECHNOLOGY AND/OR SERVICES.
THE FOLLOWING TERMS AND CONDITIONS FORM AN AGREEMENT (THE “AGREEMENT”) BETWEEN BLUETALON, INC. (“BLUETALON”) AND YOU EFFECTIVE AS OF THE DATE ON WHICH YOU CLICK ON AN “ACCEPT” BUTTON OR OTHERWISE ACCESS OR USE THE BLUETALON TECHNOLOGY AND/OR SERVICES (THE “EFFECTIVE DATE”). ”YOU” OR “CLIENT” MEANS THE PERSON OR ENTITY THAT IS AUTHORIZED BY THIS AGREEMENT TO USE THE BLUETALON TECHNOLOGY AND/OR SERVICES. THIS AGREEMENT, TOGETHER WITH ANY OTHER DOCUMENTS THAT ARE REFERENCED IN THESE TERMS AND CONDITIONS, APPLIES TO AND GOVERNS YOUR USE OF THE BLUETALON TECHNOLOGY AND/OR SERVICES.
1.1 “Affiliate” means with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).
1.2 “Agreement” means, collectively, the terms set forth or referenced below, and the attached exhibits, schedules, and amendments hereto, each of which are incorporated herein by this reference.
1.3 “BlueTalon Technology” means BlueTalon’s proprietary software and other technology licensed to Client hereunder, including any enhancements, modifications, and derivative works to any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto. The BlueTalon Technology will be provided in executable code only.
1.4 “Client Data” means any Client-specific data provided or submitted by Client or Users to or through the BlueTalon Technology.
1.5 “Confidential Information” means this Agreement, the BlueTalon Technology, BlueTalon pricing information, and any other information disclosed by one party (“Discloser”) to the other (“Recipient”) in connection with this Agreement.
1.6 “Delivery” means the date on which BlueTalon first makes the applicable BlueTalon Technology available to Client. The BlueTalon Technology will be made available in electronic form only.
1.7 “Documentation” means the manuals and online help BlueTalon provides for use in connection with the BlueTalon Technology.
1.8 “Electronic Communications” means any transfer, transmission, and/or receipt of text, images, data, or other information of any nature to, from, or through the BlueTalon Technology.
1.9 “Intellectual Property Rights” means patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection.
1.10 “License Term(s)” means the period(s) during which Users may use the BlueTalon Technology, as specified by BlueTalon.
1.11 “Maintenance and Support” means technical assistance and maintenance services, if any, to be provided by BlueTalon for the BlueTalon Technology, according to BlueTalon’s standard policies and procedures.
1.12 “Professional Services” means any of BlueTalon’s standard consulting, installation, training, and/or professional services to be provided to Client, as may be mutually agreed by BlueTalon and Client in writing (incorporating this Agreement by reference).
1.13 “Service(s)” means Professional Services and Maintenance and Support Services.
1.14 “Site” means a physical location specified by BlueTalon in writing, where Client may install, access, and/or use the BlueTalon Technology, and where Users may access and use the BlueTalon Technology through a corporate network.
1.15 “User” means Client’s employees, representatives, consultants, contractors, or agents who are authorized to use the BlueTalon Technology in connection with their performance of services for Client.
2. Provision of BlueTalon Technology; License Grant.
2.1 Delivery of BlueTalon Technology. Promptly following the Effective Date, BlueTalon will provide Client with the BlueTalon Technology. Client is responsible for installing the BlueTalon Technology on Client’s own computer equipment, except to the extent that the parties mutually agree in writing that BlueTalon will provide installation Services. Subject to the warranties in Section 8, all BlueTalon Technology is deemed accepted upon Delivery.
2.2 License Grant. Subject to the terms and conditions of this Agreement, BlueTalon hereby grants to Client a limited, non-exclusive, non-sublicenseable, and non-transferable license during the License Term, at the Site(s) (if any) and under other restrictions specified by BlueTalon in writing, to:
(a) Install and execute the BlueTalon Technology on Client’s servers at the specified Site(s) if any, and to allow Users to use the BlueTalon Technology, solely for Client’s internal business purposes relating to the processing of Client Data for Client’s internal business purposes, and solely for Client’s own benefit, in accordance with the Documentation and this Agreement; and
(b) Use and reproduce the Documentation (or excerpts thereof) as is reasonably necessary in support of Client’s permitted use of the BlueTalon Technology; and
(c) Reproduce, install, and execute the BlueTalon Technology on a backup server for backup, backup testing, disaster recovery and system failover purposes when Client’s production servers are inoperative because of circumstances outside Client’s control. Client agrees to maintain accurate and current records of all locations of backup copies.
2.3 License Restrictions. Client acknowledges that the BlueTalon Technology, and its structure, organization, and source code, and related Documentation constitute valuable trade secrets of BlueTalon and its suppliers. Accordingly, except as expressly permitted under Section 2.3 (if at all), Client will not:
(a) sublicense, sell, rent, transfer, assign, distribute, grant a security interest in, or otherwise commercially exploit the BlueTalon Technology (including by using the BlueTalon Technology in any service-bureau, timesharing, outsourcing, or similar arrangement);
(b) modify, adapt, recast, transform, or otherwise create a derivative work based on the BlueTalon Technology or Documentation or portion thereof;
(c) reverse engineer, disassemble, decompile, or otherwise attempt to derive the structure, sequence, or organization of the BlueTalon Technology source code, except as permitted by applicable law to achieve interoperability, if BlueTalon does not offer the means to do so when requested by Client;
(d) access the BlueTalon Technology in order to build a product using features, functions or graphics similar to the BlueTalon Technology;
(e) copy any features, functions or graphics of the BlueTalon Technology;
(f) combine or merge the BlueTalon Technology into another software product;
(g) if the BlueTalon Technology is licensed on other than a “site license” or “enterprise license” basis, allow individual User licenses to be shared or used by more than one individual User (except that User licenses may be reassigned to new Users replacing individuals who have terminated employment or otherwise changed job status or function and no longer need to use the Service for the purposes described in Section 2.3);
(h) remove or alter product identification, copyright, trademark, or other proprietary markings contained in the BlueTalon Technology or Documentation;
(i) use the BlueTalon Technology to: (i) send unsolicited or unlawful messages; (ii) send or store infringing, obscene, threatening, harmful, libelous, or otherwise unlawful material, including material harmful to children or violative of privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the BlueTalon Technology; or
(j) provide or disclose to, or permit use of the BlueTalon Technology by, persons other than Users, or at any site other than the Site (to the extent applicable).
Further, Client acknowledges and agrees that: (1) BlueTalon is not acting on Client’s behalf as a Business Associate or subcontractor; (2) the BlueTalon Technology and Services are not designed to, nor may be used to, store, maintain, process, or transmit protected health information (“PHI”); and (3) such BlueTalon Technology and Services will not be used in any manner that would require BlueTalon, the BlueTalon Technology, or the Services to be compliant with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”) as amended and supplemented, or their enabling regulations, or similar state laws or regulations. In the preceding sentence, the terms, “Business Associate”, subcontractor, “protected health information”, and “PHI” shall have the meanings described in HIPAA, HITECH, their enabling regulations, or similar state laws or regulations.
2.4 Term Licenses. For BlueTalon Technology licensed on a term basis, unless BlueTalon specifies otherwise in writing, the initial License Term begins on Delivery and continues for twelve (12) months. Thereafter, the applicable License Term will automatically continue at BlueTalon’s then-current fees for successive one (1) year renewal terms until the earlier of the date (a) a party gives the other party notice of termination of such licenses at least thirty (30) days prior to the end of the then-current term, or (b) a party terminates this Agreement pursuant to Section 7 below.
2.5 Free Trial/Evaluation Use. BlueTalon agrees to license the BlueTalon Technology to Client for a one-time no-fee evaluation period of not more than thirty (30) days (unless otherwise specified below or unless BlueTalon, in its sole discretion, agrees in writing (email sufficing) to extend for one or more periods of up to thirty (30) days each) (such period, the “Trial Period”). Notwithstanding anything set forth in this Agreement to the contrary, Client’s right to use the BlueTalon Software during the Trial Period will be limited to non-production use, for evaluation purposes only, and BlueTalon is not obligated to provide professional services or Maintenance and Support with respect thereto. BlueTalon may terminate and revoke Client’s access to and/or right to use the BlueTalon Technology provided in connection with a Trial Period at any time, in BlueTalon’s sole discretion, without any liability for any harm or damage arising out of or in connection with such termination and/or revocation. Unless BlueTalon agrees to extend the Trial Period license, the license will commence on the date on which BlueTalon first makes the BlueTalon Technology available to Client, and will expire on the on the earlier of: (a) thirty (30) days following the license commencement date, or (b) the start date of any purchased license and/or subscription ordered by Client for the same BlueTalon Technology, or (c) termination by BlueTalon in BlueTalon’s sole discretion. ANY CLIENT DATA THAT CLIENT ENTERS INTO THE BLUETALON TECHNOLOGY WILL BE PERMANENTLY LOST UNLESS CLIENT PURCHASES AND PAYS FOR A FEE-BASED LICENSE OR SUBSCRIPTION TO THE SAME BLUETALON TECHNOLOGY AS COVERED BY THE TRIAL AND EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING SECTIONS 8 (“REPRESENTATIONS AND WARRANTIES”) AND 9 (“INDEMNIFICATION”), DURING THE TRIAL PERIOD, THE BLUETALON TECHNOLOGY AND RELATED SERVICES (IF ANY) ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND, AND BLUETALON SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE BLUETALON TECHNOLOGY, RELATED SERVICES, OR OTHERWISE WITH RESPECT TO USAGE DURING THE TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10 (LIMITATION OF LIABILITY), CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO BLUETALON AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF THE BLUETALON TECHNOLOGY DURING THE TRIAL PERIOD, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3.1 Professional Services. BlueTalon will provide such resources and utilize such BlueTalon employees and/or consultants as BlueTalon deems necessary to perform any applicable implementation, training, consultation or other professional Services. The manner and means used by BlueTalon to perform such professional services are subject to BlueTalon’s sole discretion. Client agrees to provide BlueTalon with any required Client materials needed for BlueTalon to perform the professional services, and hereby grants BlueTalon a royalty-free, non-exclusive, worldwide license to use such materials for the sole purpose of enabling BlueTalon to perform the professional services described herein. BlueTalon will use commercially reasonable efforts to meet the Services schedules, and Client agrees to cooperate in good faith to allow BlueTalon to achieve completion of such professional services in a timely and professional manner. If achievement of any particular milestone is dependent upon performance of tasks by Client or by a third party outside of BlueTalon’s control, the projected dates for accomplishing such milestones will be approximately adjusted to reflect any changes in such tasks. Unless otherwise expressly set forth in this Agreement, BlueTalon is not providing to Client any BlueTalon Technology pursuant to this Section 3.1; such BlueTalon Technology is being provided, if at all, pursuant to the terms of Section 2.3 (“License Grant”) and subject to the restrictions set forth in Section 2.4 (“License Restrictions”).
3.2 Maintenance and Support. In consideration of Client’s payment of the applicable fees, BlueTalon will provide Maintenance and Support for the BlueTalon Technology during the License Term. Maintenance and Support begins on Delivery and continues for the License Term, as may be specified by BlueTalon in writing). Thereafter, and subject to BlueTalon’s end of life policy, Maintenance and Support will automatically continue for successive one (1) year renewal terms at BlueTalon’s then-current rates, until the earlier of the date: a party gives the other party notice of its intention not to renew Maintenance and Support at least thirty (30) days prior to the end of the then-current term, or (b) a party terminates this Agreement pursuant to Section 7 below. Except as otherwise provided in this Agreement, fees paid for Maintenance and Support are non-creditable and non-refundable. Additional details regarding Maintenance and Support are attached as Exhibit A hereto.
4. Client Responsibilities.
4.1 Responsibility for Users. Client will abide by all applicable laws, treaties and regulations in connection with use of the BlueTalon Technology. Client represents and warrants that each User is an authorized Client agent. Client will be responsible and liable for the acts and omissions of all Users in connection with this Agreement (such that any act or omission committed by a User that would, if committed by Client as a party to this Agreement, would be deemed a breach of this Agreement, will be deemed a breach hereof, regardless of whether or not a User is a signatory to this Agreement), as well as any and all access to and use of the BlueTalon Technology by any User or any other person logging in under a User ID registered under Client’s account or providing and/or receiving Client Data or other information through the BlueTalon Technology. Client acknowledges that Client’s access information, including User IDs and passwords of its Users, will be Client’s “key” to the BlueTalon Technology and, accordingly, Client will be responsible for maintaining the confidentiality of such access information (including each User ID and password). In addition, Client will ensure that each User agrees to and complies with the terms of any clickwrap license agreement that BlueTalon supplies in connection with any BlueTalon Technology that is installed on Client’s site. Client will: (i) notify BlueTalon immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to BlueTalon immediately and use reasonable efforts to stop immediately any copying or distribution of BlueTalon Technology that is known or suspected by Client or Client’s Users; and (iii) not impersonate another BlueTalon user or provide false identity information to gain access to or use the BlueTalon Technology.
4.2 Responsibility for Client Data. BlueTalon does not own any Client Data. Client, not BlueTalon, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Client Data, and BlueTalon shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Client Data not caused by BlueTalon.
4.3 Minimum Configuration. In order to use the BlueTalon Technology, Client agrees to purchase and implement the minimum required computer (including hardware and operating system) configurations, as set forth in BlueTalon’s configuration document applicable to the BlueTalon Technology, which may be updated from time to time. Without limiting the generality of the foregoing, Client agrees to acquire any third party licenses that BlueTalon, in its reasonable discretion, determines may be necessary to properly use the BlueTalon Technology. In the event that Client fails to employ the minimum configuration and/or acquire such licenses, BlueTalon will be excused from performing all software-related obligations under this Agreement, and BlueTalon will not be responsible for any failure of the BlueTalon Technology to operate properly, or at all.
5. Intellectual Property Ownership.
5.1 By Client. As between BlueTalon and Client, Client owns the Client Data. Client, not BlueTalon, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Client Data. Without limiting the generality of the foregoing, to the extent that Client has any ownership rights in or to the Client Data structures and/or models (excluding Client Data itself) Client hereby grants to BlueTalon a nonexclusive, perpetual, and irrevocable, royalty-free, fully paid up, license to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use such structures or models in any medium or format, whether now known or hereafter discovered, (ii) to use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived therefrom, and (iii) to exercise any and all other present or future rights therein.
5.2 By BlueTalon. BlueTalon owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the BlueTalon Technology and Documentation. The foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning. Client acknowledges that the BlueTalon name, the BlueTalon logo, and the product names associated with the BlueTalon Technology are trademarks of BlueTalon or third parties, and no license to such marks is granted herein. No jointly owned intellectual property is created under or in connection with this Agreement.
5.3 Aggregate Data. Subject to Section 5.1 (“By Client”), BlueTalon has the right to collect, and BlueTalon owns, the aggregated and statistical data derived from the use of the BlueTalon Technology (the “Aggregate Data”). Nothing herein shall be construed as prohibiting BlueTalon from accessing or utilizing the Aggregate Data for purposes of operating BlueTalon’s business, provided that BlueTalon’s use of Aggregate Data will not reveal the identity, whether directly or indirectly, of Client or of any individual or specific data entered by any individual using the BlueTalon Technology. In no event does the Aggregate Data include any personally identifiable information. Client agrees to reasonably cooperate with BlueTalon in connection with collecting Aggregate Data.
6. Billing and Payment.
6.1 Fees; Payment. Client will pay all fees or charges to Client’s account for the licenses and Services hereunder. Amounts are due and payable within thirty (30) days following the date of the invoice therefor. Except as otherwise specified herein: (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and data volume used and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of licenses purchased cannot be decreased during the relevant license term. Fees for any license or Service renewals will be due and payable prior to the applicable renewal date.
6.2 Taxes. All fees are exclusive of all taxes, levies, or duties, and Client will be responsible for payment of all such taxes, levies, or duties, excluding United States (federal or state) taxes based solely on BlueTalon’s income. Client will pay all fees to free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of fees will be Client’s responsibility, and Client will provide receipts issued by the appropriate taxing authority to establish that such taxes have been paid.
6.3 Effect of Nonpayment. This Agreement and Client’s right to use the BlueTalon Technology may be suspended or terminated if Client’s account falls into arrears. Unpaid amounts are subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law plus all collection costs. Client will continue to be charged for licenses and Services during any period of suspension. Upon termination of this Agreement, Client will pay the balance due on Client’s account, subject to the provisions of Section 7.2 (“Effect of Termination; Survival”).
6.4 Audit. During the term of this Agreement and for twelve (12) months thereafter, Client will permit BlueTalon or its representatives to review Client’s relevant records and audit usage to verify compliance with this Agreement no more than once every twelve (12) months, and at any time if a prior review has revealed a non-compliance. Inspections will be conducted during normal business hours and upon reasonable notice. Client will immediately pay any underpayment of amounts due, plus interest in an amount equal to one and one-half percent (1½%) of the underpayment per month, or the maximum legal rate, if less, calculated monthly from the date the underpayment was due until the date payment is made. All audits will be conducted at BlueTalon’s expense, except that if the results reveal an underpayment of five percent (5%) or more or a breach of this Agreement, Client will also reimburse BlueTalon for the reasonable cost of the audit. In lieu of such audit, and upon request of BlueTalon at any time, Client will certify its compliance with the terms of this Agreement.
7. Term; Termination.
7.1 Term; Termination. This Agreement commences on the Effective Date and, unless earlier terminated pursuant to the terms of this Agreement, will continue for the term of the applicable license. With regard to each License Term, if this Agreement (or the applicable License Term) has not terminated early, at least thirty (30) days prior to the expiration of a License Term, Client will, subject to this section, either: (a) renew the license for a renewal License Term equal in duration to the then-current License Term, at BlueTalon’s then-current fees or such other fees as the parties may mutually agree (provided that BlueTalon continues to make the applicable BlueTalon Technology modules available); or (b) allow the License Term to expire. In the event that Client fails to elect either (a) or (b), then (b) will apply. Either party may terminate this Agreement and the applicable License Term(s) upon the other party’s material breach that remains uncured for thirty (30) days following notice of such breach, except that in the event of a breach of Section 2.4 (“License Restrictions”) or 11 (“Confidentiality”), the cure period is five (5) days. Client agrees that BlueTalon reserves the right to modify, or discontinue offering, any BlueTalon Technology module effective as of the conclusion of Client’s then-current License Term, and that BlueTalon will not be liable to Client or to any third party of any modification of the BlueTalon Technology as described in this Section 7.1.
7.2 Effect of Termination; Survival. Upon the expiration or early termination of this Agreement: (a) any amounts (including expenses) owed to BlueTalon for licenses and completed Services and work in progress, will be immediately due and payable (provided, however, that, with regard to term licenses only, if this Agreement is terminated by Client for BlueTalon’s material breach in accordance with Section 7.1, no fees applicable to the remaining duration of the License Term (i.e., following the effective date of termination) are due (and, if such fees have prepaid by Client, Client will be entitled to receive a prorated refund of such prepaid fees applicable to the remaining period in the then-current License Term (i.e., post-termination); (b) all licenses granted under this Agreement and BlueTalon’s obligation to provide the BlueTalon Technology and any Services, and Client’s right to access the foregoing, will terminate; and (d) Sections 1 (“Definitions”), 2.4 (“License Restrictions”), 4 (“Client Responsibilities”), 5 (“Intellectual Property Ownership”), 6 (“Billing and Payment”), 7.2 (“Effect of Termination; Survival”), 8 (“Representations and Warranties”), 9 (“Indemnification”), 10 (“Limitation of Liability”), 11 (“Confidentiality”), and 12 (“General”) will survive.
8. Representations and Warranties.
8.1 Representations and Warranties.
(a) By Each Party. Each party represents and warrants that it has the power and authority to enter into this Agreement.
(b) By BlueTalon.
(i) Conformity with Specifications. BlueTalon warrants that the BlueTalon Technology, when used in accordance with the instructions in the Documentation and this Agreement, will conform to the applicable specifications for such BlueTalon Technology expressly set forth in the applicable Documentation, in all material respects. Client will have thirty (30) days following Delivery to notify BlueTalon of a breach of the foregoing warranty, in which event, BlueTalon’s entire liability and Client’s sole and exclusive remedy will be, at BlueTalon’s election, to either: (A) modify or replace the BlueTalon Technology so that it so conforms to such warranty; or (B) provide a refund of the fees paid for the affected BlueTalon Technology, and solely as to the applicable BlueTalon Technology-re, this Agreement, and Client’s right to use such BlueTalon Technology will immediately terminate. Any remedy provided by BlueTalon will not extend the original warranty period. BlueTalon will have no obligation under this Agreement to correct, and BlueTalon makes no warranty with respect to, errors caused by or relating to: (1) use of the BlueTalon Technology in a manner inconsistent with the Documentation or this Agreement; or (2) third party hardware or software misuse, modification, or malfunction.
(ii) Noninfringement. BlueTalon represents and warrants that the BlueTalon Technology, when used in accordance with the instructions in the Documentation and this Agreement, does not and will not infringe or misappropriate any third party’s copyright, trademark, or trade secret rights. As BlueTalon’s sole and exclusive obligation and Client’s sole and exclusive remedy for breach of the foregoing warranty, BlueTalon will indemnify Client as set forth in Section 9 (“Indemnification”).
(c) By Client. Client represents and warrants that Client has the right to process the Client Data through the BlueTalon Technology in connection with this Agreement, and that the Client Data does not and will not violate the terms or conditions of this Agreement, applicable law, or infringe or misappropriate any third party’s copyright, trademark, trade secret, or privacy rights. As Client’s sole and exclusive obligation and BlueTalon’s sole and exclusive remedy for breach of the foregoing warranty, Client will indemnify BlueTalon as set forth in Section 9 (“Indemnification”).
8.2 WARRANTY DISCLAIMERS. EXCEPT AS WARRANTED IN SECTION 8.1, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BLUETALON’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, PERSONAL COMPUTERS, AND ELECTRONIC COMMUNICATIONS. BLUETALON IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. ACCORDINGLY, ALTHOUGH BLUETALON AGREES TO EMPLOY CURRENT ENCRYPTION STANDARDS IN AN EFFORT TO MAINTAIN CLIENT DATA AS SECURE, CLIENT AGREES THAT BLUETALON IS NOT RESPONSIBLE FOR ANY DELAY, LOSS, ALTERATION, OR INTERCEPTION OF ELECTRONIC COMMUNICATIONS AND/OR CLIENT MATERIALS. CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT’S PURCHASES HEREUNDER ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY OR WRITTEN STATEMENTS MADE BY BLUETALON REGARDING FUTURE FUNCTIONALITY OR FEATURES. CLIENT ACKNOWLEDGES AND AGREES THAT BLUETALON MAY, IN PERFORMING ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, BE DEPENDENT UPON OR USE DATA, MATERIAL, AND OTHER INFORMATION FURNISHED BY CLIENT WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION THEREOF, AND THAT BLUETALON SHALL BE ENTITLED TO RELY UPON THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION IN PERFORMING THE SERVICES. IN PERFORMING THE SERVICES, BLUETALON MAY BE MAKING RECOMMENDATIONS AND PROVIDING ADVICE, BUT ALL DECISIONS AS TO IMPLEMENTING SUCH ADVICE AND RECOMMENDATIONS SHALL BE MADE BY AND SHALL BE THE SOLE RESPONSIBILITY OF CLIENT; BLUETALON SHALL NOT BE LIABLE TO CLIENT FOR ANY RESULT OBTAINED OR NOT OBTAINED AS A CONSEQUENCE OF CLIENT’S IMPLEMENTATION OF SUCH ADVICE OR RECOMMENDATIONS. THE INFORMATION CONTAINED IN THE BLUETALON TECHNOLOGY (INCLUDING THIRD-PARTY INFORMATION CONTAINED IN THE BLUETALON KNOWLEDGE-BASE) SHALL BE OBTAINED FROM SOURCES CONSIDERED BY BLUETALON TO BE RELIABLE, BUT THE ACCURACY AND COMPLETENESS THEREOF ARE NOT GUARANTEED, AND BLUETALON AND ITS THIRD-PARTY SUPPLIERS SHALL HAVE NO LIABILITY FOR ANY ERROR OR OMISSION WITH RESPECT TO THE INFORMATION PROVIDED OR THE DELIVERY OF THAT INFORMATION, REGARDLESS OF THE CAUSE OR SOURCE OF SUCH ERROR OR OMISSION.
9.1 By BlueTalon. BlueTalon will indemnify and hold Client harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with: (a) a claim alleging that the BlueTalon Technology directly infringes or misappropriates a copyright, trademark, or trade secret of a third party; (b) a claim arising from breach of this Agreement by BlueTalon. BlueTalon will have no indemnification obligation, and Client will indemnify BlueTalon pursuant to this Agreement, for claims arising from any infringement or misappropriation to the extent arising from: (i) Client’s or any User’s use of the BlueTalon Technology other than as permitted under this Agreement; (ii) the combination of the BlueTalon Technology with any Client or third party products, services, hardware, data, content, or business process(s); or (iii) from the modification of the BlueTalon Technology by any party other than BlueTalon or BlueTalon’s agents. The foregoing is BlueTalon’s sole and exclusive obligation for infringement claims.
9.2 By Client. Client will indemnify and hold BlueTalon harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with: (a) a claim alleging that use of the Client Data infringes a copyright, trademark, or trade secret, privacy, or publicity rights of a third party; (b) a claim arising from the breach of this Agreement by Client or Client’s Users; or (c) a claim by any supplier of data to Client (or used by Client or Client’s Users in connection with the BlueTalon Technology).
9.3 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim. The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).
10. Limitation of Liability.
10.1 Liability Cap. EXCEPT: (A) FOR A BREACH OF SECTION 2.4 (“LICENSE RESTRICTIONS”) BY CLIENT (FOR WHICH NO LIMITATION OF LIABILITY SHALL APPLY); OR (B) A BREACH BY EITHER PARTY OF SECTION 11 (“CONFIDENTIALITY”) (FOR WHICH THE LIABILITY LIMITATION SHALL BE ONE MILLION DOLLARS ($1,000,000) IN THE AGGREGATE); OR (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (FOR WHICH THE LIABILITY LIMITATION SHALL BE ONE MILLION DOLLARS ($1,000,000)) IN THE AGGREGATE, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CLIENT FOR THE THEN-CURRENT ANNUAL LICENSE TERM.
10.2 Liability Exclusions. NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE BLUETALON TECHNOLOGY, OR FOR ANY DATA OR CONTENT OBTAINED FROM OR THROUGH THE BLUETALON TECHNOLOGY, ANY INTERRUPTION, INACCURACY OR ERROR IN THE DATA OR CONTENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT ITS INDEMNIFICATION OBLIGATIONS ARE A DIRECT, RATHER THAN AN INDIRECT OBLIGATION OWED TO THE OTHER PARTY AND, ACCORDINGLY, THE FOREGOING DISCLAIMER WILL NOT BE CONSTRUED TO LIMIT EITHER PARTY’S OBLIGATION TO PAY AMOUNTS TO THIRD PARTIES PURSUANT TO SUCH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, SUBJECT TO SECTION 10.1. CLIENT ACKNOWLEDGES AND AGREES THAT BLUETALON’S LICENSORS WILL HAVE NO LIABILITY UNDER THIS AGREEMENT .
10.3 Limitations Fair and Reasonable. CLIENT ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
11.1 General. Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder. Recipient may not knowingly disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and in any case will not use less than the degree of care a reasonable person would use. The foregoing will not apply to any information that: (i) is in the public domain through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly disclosed to Recipient, without restriction, by another person with the legal authority to do so; (iv) Recipient independently develops without use of Discloser’s Confidential Information; (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement; or (vi) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that Recipient provides to Discloser prior notice of the intended disclosure and an opportunity to respond or object thereto.
12.1 Notices. Notices will be sent by first-class mail, overnight courier, or prepaid post, and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt. Client’s notices will be addressed to BlueTalon’s Chief Financial Officer or Vice President – Finance.
12.2 Assignment. Client may not assign this Agreement without BlueTalon’s prior written approval. Any attempted assignment in violation of the foregoing will be null and void.
12.3 Governing Law; Venue. This Agreement will be governed by California law, without regard to the conflicts of law provisions of any jurisdiction. Any claims arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the state and federal courts in San Mateo County, California; each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any such court in any such action or proceeding. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
12.4 Remedies. Except as provided in Sections 8 (“Representations and Warranties”) and 9 (“Indemnification”), the parties’ rights and remedies hereunder are cumulative. Client acknowledges that the BlueTalon Technology contains BlueTalon’s valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to BlueTalon for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy.
12.5 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Client and BlueTalon as a result of this agreement or use of the BlueTalon Technology or Services.
12.6 U.S. Government End Users. If Client is a branch agency or instrumentality of the United States Government, the following provision applies. If Client is the US Federal Government, BlueTalon provides the BlueTalon Technology, including related software and technology, in accordance with the following: Government technical data and software rights related to the BlueTalon technology include only those rights customarily provided to the public as defined in this Agreement. This customary access right and license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFARS 252.227-7015 (Technical Data – Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with BlueTalon to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights, must be included in any applicable contract or agreement.
12.7 Waiver. The failure of a party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing. No modification hereof will be effective unless in writing and signed by both parties.
12.8 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Client agrees that Section 10 (“Limitation of Liability”) will remain in effect notwithstanding the unenforceability of any provision in Section 8 (“Representations and Warranties”).
12.9 Force Majeure. If a party’s performance hereunder is prevented, hindered or delayed by elements of nature, acts of God, acts of war, acts or threats of terrorism, riots, civil disorders, rebellions, revolutions, strikes, labor disputes, failure of utilities or telecommunications, government action, or other causes outside of the reasonable control of the affected party, the affected party, upon giving prompt notice to the other party, will be excused from performance for the duration of the condition, provided that the affected party uses commercially reasonable efforts to mitigate the effects.
12.10 Non-Solicitation of Personnel. Neither party shall solicit, directly or indirectly, on its own behalf, any of the other party’s personnel during their participation in this Agreement, and for a period of twelve (12) months thereafter. The foregoing will not apply to, or be breached by, (a) advertising open positions, participating in job fairs, and conducting comparable activities to recruit skilled or unskilled help from the general public, or responding to individuals contacted through such methods; (b) responding to unsolicited inquiries about employment opportunities or possibilities from job placement agencies or other agents acting for unidentified principals; or (c) responding to unsolicited inquires about employment opportunities from any individual.
12.11 Export. Client will comply with all applicable export and import control laws and regulations in connection with any export activities in which Client engages with regard to the BlueTalon Technology. Client understands and acknowledges that the Licensed Software and/or services or underlying information or technology may not be downloaded or otherwise exported or re-exported (i) to Cuba, Iran, North Korea, Syria, the Crimea Region, or any other country or territory subject to a U.S. government embargo, or (ii) to any individual or entity on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List, or the U.S. Commerce Department’s Denied Parties List, Unverified List, or Entity List. BlueTalon will reasonably cooperate with Client in connection with the foregoing, including by providing information regarding the export control classification number(s) applicable to the BlueTalon Technology.
12.12 Entire Agreement. This Agreement comprises the entire agreement between Client and BlueTalon and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. In the event of a conflict between the terms of this Agreement and the terms of any document referenced herein, this Agreement will be controlling. Any preprinted terms on any Client ordering documents will have no effect on the terms of this Agreement and are hereby rejected, notwithstanding any such preprinted terms to the contrary. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. As used in this Agreement, the word “including” means “including but not limited to.”
Maintenance and Support
Subject to Client’s purchase of and payment for Maintenance and Support (as defined herein), these Maintenance and Support terms (the “Support Terms”) shall govern BlueTalon’s provision of Maintenance and Support to the BlueTalon licensee (“Client”).
1. DEFINITIONS. In these Support Terms, capitalized terms not defined herein shall be as defined in the Agreement:
“Agreement” means the applicable agreement(s) that provide Client with access to the BlueTalon Technology.
“Alternate Solution” means a solution or correction to an incident that allows the BlueTalon Technology to function substantially in accordance with the Documentation.
“Authorized Contacts” means the named Client employees or authorized agents who: (i) have sufficient technical expertise, training and/or experience with the BlueTalon Technology to perform Client’s obligations under these Support Terms; (ii) are responsible for all communications with BlueTalon regarding these Support Terms, including case submission and Incident reports; and (iii) who are authorized by Client to request and receive Maintenance and Support for the BlueTalon Technology on behalf of the Client.
“Business Days” means Monday to Friday during Normal Support Hours, excluding BlueTalon company holidays.
“Documentation” means BlueTalon’s end user guides provided with the BlueTalon Technology.
“Enhancement Request” means a request by Client to add functionality or enhance performance beyond the specifications of the BlueTalon Technology and are not included as part of Maintenance and Support.
“Extended Support Hours” are as specified by BlueTalon in writing.
“Incident” means a single support question or reproducible failure of the BlueTalon Technology to substantially conform to the functions and/or specifications as described in User Guides and reported by an Authorized Contact.
“Normal Support Hours” are 8:00 a.m. to 6:00 p.m. Pacific on Business Days.
“Response Time” means the targeted time period within which BlueTalon will use commercially reasonable efforts to contact Client to acknowledge receipt of an Incident report and to engage an appropriately skilled support resource, commencing from the time that BlueTalon receives all required information as specified in Section 4.2. Response Times are measured during Normal Support Hours.
“Severity Level” means the Severity Levels 1-4 as defined below:
“Severity Level 1 (Critical)” means an Incident where Client’s production use of the BlueTalon Technology is stopped or so severely impacted that Client cannot reasonably continue business operations. It may result in a material and immediate interruption of Client’s business operation that will cause a loss of Client data and/or restrict availability to such data and/or cause significant financial impact.
“Severity Level 2 (Significant)” means an Incident where one or more important functions of the BlueTalon Technology are unavailable with no acceptable Alternative Solution. Client’s implementation or production use of the BlueTalon Technology is continuing but not stopped; however, there is a serious impact on the Client’s business operations.
“Severity Level 3 (Less Significant)” means an Incident where: (a) important BlueTalon Technology features are unavailable but an Alternative Solution is available, or (b) less significant BlueTalon Technology features are unavailable with no reasonable Alternative Solution. Clients experience a minor loss of business operation functionality and/or an impact on implementation resources.
“Severity Level 4 (Minimal)” means an Incident that has a minimal impact on business operations or basic functionality of the BlueTalon Technology.
“Maintenance and Support” means the Maintenance and Support for the BlueTalon Technology provided by BlueTalon under the terms set forth herein, but do not include Enhancement Requests.
“Test Case” means Client’s instructions that allow BlueTalon to reproduce an Incident.
2. SCOPE OF THE SUPPORT TERMS.
2.1 Subject to the terms contained herein, BlueTalon shall use commercially reasonable efforts to address all Incidents which may arise from Client’s use of the BlueTalon Technology in accordance with Sections 4 and 5 below.
2.2 BlueTalon shall not have any obligation to provide Maintenance and Support with respect to any: (a) adaptations, configurations or modifications of the BlueTalon Technology made by Client or any third party; (b) Enhancement Requests; or (c) any items excluded pursuant to Section 5.
2.3 BlueTalon may offer professional services to help resolve issues that fall outside the scope of the Maintenance and Support. Any professional services shall be provided under a separate agreement and shall be subject to the Agreement or BlueTalon’s then-current consulting fees and terms.
3. TERM AND TERMINATION.
Subject to the terms set forth herein, and unless otherwise provided in the applicable Agreement, the initial term for Maintenance and Support will commence on the Effective Date and shall continue for a period of one (1) year. In the event that Client has not delivered a non-renewal notice to BlueTalon regarding the upcoming renewal term prior to the expiration of the then- current term, the term shall be automatically extended for successive renewal terms of one (1) year each unless either party provides written notice of non-renewal to the other at least thirty (30) days before such expiration. Fees for the Maintenance and Support on all subsequent renewals shall be set at then current BlueTalon pricing, unless otherwise agreed to by the parties. Client may not elect to purchase or renew Maintenance and Support for just a portion of its BlueTalon Technology or of its users who can access the BlueTalon Technology.
In addition to any other rights or remedies BlueTalon may have under these Support Terms or the Agreement, if Client is more than thirty (30) days delinquent in any payment obligation, then BlueTalon may, upon written notice to Client, suspend performance of the obligations set forth in these Support Terms until such delinquency is remedied.
Either party may terminate these Support Terms if the other party breaches a material term of these Support Terms and such breach is not cured within thirty (30) days after written notice thereof from the terminating party. BlueTalon shall refund the pro rata portion of fees paid by Client for Maintenance and Support provided pursuant to these Support Terms for the terminated portion of the term. Notwithstanding anything to the contrary herein or in the applicable Agreement, these Support Terms shall terminate upon expiration or termination of the Agreement or expiration or termination of Client’s license to access BlueTalon Technology.
4. INCIDENT REPORTING AND RESPONSE TIMES.
4.1 Authorized Contacts. All reports of Incidents must be made to BlueTalon by the Authorized Contact(s). The Client may substitute Authorized Contact(s) from time to time by giving BlueTalon prior written notice, including the relevant contact information for any new Authorized Contact.
4.2 Required Information. All Incident reports must, if applicable, include the following:
(a) Client’s name and/or identification number, if any, which BlueTalon shall provide to the Client soon after the Effective Date of these Support Terms.
(b) A reproducible Test Case that demonstrates the specific usage that causes the Incident being reported.
(c) Exact wording of all related error messages.
(d) A full description of the Incident and expected results.
(e) Any special circumstances surrounding the discovery of the Incident.
4.3 Severity Levels. BlueTalon will work with Client and will assign the appropriate severity level to all Incidents according to the Severity Level definitions. Severity Levels are assigned to allow prioritization of incoming Incidents. BlueTalon may reclassify Incidents based on the current impact on the BlueTalon Technology and business operations as described in the Severity Level definitions. If BlueTalon determines that an Incident is in fact an Enhancement Request, it shall not be addressed under these Support Terms.
4.4 BlueTalon’s Obligations. BlueTalon will make available Maintenance and Support access during Normal Support Hours for Client to report Incidents and receive assistance. On receipt of an Incident report, BlueTalon shall establish whether there is an Incident for which Client is entitled to Maintenance and Support under these Support Terms and, if so, shall:
(a) Confirm receipt of the Incident report and notify Client of the Incident case number that both parties must then use in any communications about the Incident.
(b) Work with Client to set a severity level for the Incident based on the criteria set forth herein.
(c) Analyze the Incident and verify the existence of the problem.
(d) Give Client direction and assistance in resolving the Incident pursuant to the terms described herein.
4.5 Response Time Goals.
4.6 Client’s Obligations. BlueTalon’s obligation to provide Maintenance and Support under these Support Terms are conditioned upon Client: (a) paying all applicable fees for Maintenance and Support prior to the date the Incident is reported; (b) having valid access to the BlueTalon Technology; (c) providing BlueTalon with all reasonable assistance and providing BlueTalon with data, information and materials as that are reasonably necessary; (d) procuring, installing and maintaining all equipment, telephone lines, communication interfaces and other hardware and BlueTalon Technology necessary to access the BlueTalon Technology; and (f) providing appropriate contact information for all Authorized Contacts(s).
5. EXCLUSIONS FROM MAINTENANCE AND SUPPORT.
BlueTalon will not be required to correct any Incident caused by (i) integration of any third party feature, program or device to the BlueTalon Technology or any part thereof; (ii) any non-conformance caused by unauthorized misuse, alteration, modification or enhancement of the BlueTalon Technology; or (iii) use of the BlueTalon Technology that is not in compliance with the Agreement.
These Support Terms are hereby incorporated by reference into the Agreement and represent the complete agreement between BlueTalon and Client regarding Maintenance and Support and supersedes any prior or contemporaneous agreements or communications or understandings, written or oral, relating to Maintenance and Support. These Support Terms will not be modified except by a properly executed written amendment between the parties. Any terms and conditions of any purchase order or other instrument issued by Client in connection with these Support Terms that are in addition to, inconsistent with or different from the terms and conditions of these Support Terms will be of no force or effect.