Last Modified: July 2022
1.1 This Terms of Use and License Agreement ("TULA") applies to each registered user ("Licensee") of the BLUE BITE CLOUD PLATFORM ("BB Platform") provided by BLUE BITE, LLC ("BLUE BITE") under a SaaS Service Agreement. The terms set forth herein are a binding agreement between Licensee and BLUE BITE.
1.2 By using the BB Platform, Licensee is able to manage a group of physical or digital objects linked to a digital experience through NFC, QR, URL, WiFi, Bluetooth or any other connectivity protocol (“Objects”), and to manage the content associated with those Objects ("Object-Data") and use further functionalities of the BB Platform.
1.3 This TULA sets out the terms and conditions applicable for the use of the BB Platform by Licensee and the rights and obligations of BLUE BITE and Licensee (BLUE BITE and Licensee together as "Parties" or individually as "Party").
1.4 As used herein, the term "Order Form" shall mean an ordering document or online order specifying the services to be provided hereunder that is entered into between Licensee and BLUE BITE, including any addenda and supplements thereto.
1.5 As used herein, the term "Purchased Services" shall mean services that Licensee purchases under an Order Form, as distinguished from those provided pursuant to a free trial.
1.6 As used herein, the term "Interaction Data" shall mean data generated as a result of an interaction by a networked device with an Object.
2.1 BLUE BITE reserves the right to modify this TULA at any time and without prior notice by publishing the most current version of the TULA on the following website: http://www.bluebite.com/tula. Licensee's use of the BB Platform and any related services will be governed by the version of the TULA in effect on the date BB Platform is accessed by Licensee.
3.1 Use of the BB Platform requires the registration of a user account. There is no right to registration. BLUE BITE reserves the right to reject applications for registration without giving any reason.
3.2 The BB Platform is a business platform solely for customers of BLUE BITE.
3.3 Licensee may apply for several user accounts for named employees of Licensee ("Named Users"). These Named User accounts shall be deemed user accounts of Licensee and Licensee shall be fully liable for all Named User accounts.
3.4 BLUE BITE will grant the access to and use of the BB Platform to registered users in accordance with the terms and conditions set forth herein.
4.1 During the registration process Licensee may for access to the BB Platform by issuing a respective request to BLUE BITE (by e-mail or telephone) containing a valid e-mail address of Licensee and all Named Users ("Licensee Data").
4.2 Upon acceptance of Licensees registration request BLUE BITE will provide Licensee with passwords linked to the email addresses of Licensee and the Named Users ("Login Data").
5.1 Licensee is responsible for the following:
5.1.1 keeping all Login Data confidential and ensuring the Login Data is not disclosed to or used by third parties;
5.1.2 informing BLUE BITE immediately if Licensee has reason to assume that the Login Data has been disclosed to or used by a third party;
5.2 Licensee shall not to provide access to BB Platform to third parties.
5.3 Licensee shall ensure that Named Users also comply with the obligations set forth herein.
5.4 BLUE BITE shall not be liable for any damages resulting from any unauthorized use or access of the BB Platform by third parties.
5.5 Licensee is responsible for all Named Users’ use of and access to the BB Platform, as well as compliance with this Agreement and applicable laws. Licensee shall notify BLUE BITE immediately of any unauthorized access or use or if any account information is lost or stolen. If Licensee becomes aware of any violation of this Agreement by a Named User, it will immediately terminate such Named User’s access to the BB Platform and notify BLUE BITE in writing of such issue.
Licensee shall keep Licensee Data updated at all times and shall inform BLUE BITE about any change of the Licensee Data by amending the Licensee Data in the personal settings of BB Platform or, in case this is not possible, by sending the amended Licensee Data to BLUE BITE.
7.1 Use. Access to the BB Platform and access to Object-Data shall be purchased from BLUE BITE according to BLUE BITE’s respective current pricing list.
7.2 Fees. Licensee will pay all fees specified in the SaaS Services Agreement and Order Form. Unless otherwise agreed to in writing, fees are based on the number of Licensee Objects, and not actual usage, except in the case of Excess Interactions which are those interactions above the included interactions specified in the SaaS Services Agreement or Order form. If included interactions are not specified, they are equal to the greater of 100,000 (one-hundred thousand) or 1 (one) interaction per 1 (one) Licensee Object during the Term. The excess interactions are billed in accordance with the agreed upon billing period of the subscription at a rate of $0.10 per interaction ("Interaction Overages"), (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Term.
7.3 Invoicing and Payment. Licensee will provide BLUE BITE with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to BLUE BITE. If Licensee provides credit card information to BLUE BITE, Licensee authorizes BLUE BITE to charge such credit card for all Purchased Services. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, BLUE BITE will invoice Licensee in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Licensee is responsible for providing complete and accurate billing and contact information to BLUE BITE and notifying BLUE BITE of any changes to such information.
7.4 Overdue Charges. If any invoiced amount is not received by BLUE BITE by the due date, then without limiting BLUE BITE rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) BLUE BITE may require prepayment for future subscription renewals and orders.
7.5 Suspension of Service and Acceleration. If any amount owing by Licensee under this or any other agreement for BLUE BITE services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized BLUE BITE to charge to Licensee credit card), BLUE BITE may, without limiting BLUE BITE other rights and remedies, accelerate Licensee unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend BLUE BITE services to Licensee until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, BLUE BITE will give Licensee at least 10 days prior notice that Licensee account is overdue, before suspending services to Licensee.
7.6 Payment Disputes. BLUE BITE will not exercise BLUE BITE rights under Section 7. (Overdue Charges) or 7.5 (Suspension of Service and Acceleration) above if Licensee is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
7.7 Taxes. Licensee is responsible for all taxes, charges and duties applicable to each transaction, including without limitation any sales, use, value added, customs, excise, withholding and similar taxes and duties imposed by any federal, state, provincial, local or other government entity, excluding taxes based on BLUE BITE’S net income. If BLUE BITE is obligated to collect taxes, then the appropriate amount will be added to the applicable invoice. If Licensee is required to withhold or deduct any tax from any payment due hereunder, Licensee will increase the sum payable to BLUE BITE such that BLUE BITE receives an amount equal to the sum it would have received had Licensee made no withholding or deduction.
7.8 Future Functionality. Licensee agrees that Licensee purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by BLUE BITE regarding future functionality or features.
8.1 BLUE BITE is entitled to temporarily or permanently withdraw or limit Licensee's or a Named User's access rights to BB Platform, related services, and/or content provided via BB Platform, in particular Object-Data which were previously granted to Licensee by deactivating Licensee's or the respective Named User's Login Data if BLUE BITE has reason to assume that Licensee itself or a Named User violates or has violated any provision of this TULA or applicable laws.
8.2 BLUE BITE will notify Licensee via e-mail about any withdrawal of Licensee's or a Named User's access rights.
8.3 In case of a temporary withdrawal BLUE BITE will reactivate Licensee's or the Named User's Login Data after the violation is remedied to BLUE BITE’S satisfaction. BLUE BITE will inform Licensee about the re-activation of the Login Data via e-mail.
8.4 In case of a permanent withdrawal Licensee's or the Named User's Login Data cannot be re-activated and Licensee or the respective Named User shall be permanently excluded from the BB Platform.
8.5 Any withdrawal (wheatear permanent or temporary) will not affect Licensee's obligation to pay any and all fees.
9.1 The initial term of this TULA begins on the Effective Date and, unless terminated earlier pursuant to this TULA’S express provisions, will continue in effect until the termination date set forth in the Order Form. BLUE BITE may terminate this TULA for any reason upon ninety (90) days advance notice to Licensee. The notice may be issued via e-mail for purposes of this Section. Licensee may terminate this TULA for any reason upon four (4) weeks advance written notice, however, at the earliest sixty (60) days prior to the expiration of the Term specified in the Order Form.
9.2 Either Party may terminate this TULA, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 60 days after the non-breaching Party provides the breaching Party with written notice of such breach; or either Party may terminate this TULA, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.3 Upon expiration or earlier termination of this TULA, Licensee shall immediately discontinue use of the BLUE BITE Platform and, without limiting Licensee's obligations under this TULA, Licensee shall delete, destroy, or return all copies of BLUE BITE’S Confidential Information and certify in writing to the BLUE BITE that such Confidential Information has been deleted or destroyed. No expiration or termination will affect Licensee's obligation to pay all fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
9.4 All of Licensee's data will be deleted 90 days after the termination becomes effective, unless otherwise required by applicable law.
9.5 Those terms and conditions intended to survive the expiration or termination of this TULA shall do so.
10.1 BB Platform services consist of making available Object-Data to Licensee via a web user interface accessible through the BLUE BITE website and providing query and reporting capabilities as well as tag license management services.
10.2 BLUE BITE will use its best efforts to provide access to the BB Platform and all or certain parts of the Object-Data and related services subject to this TULA. BLUE BITE reserves the right to improve, expand, change or delete Object-Data in whole or in part (e.g. in relation to functionalities).
10.3 BLUE BITE will use reasonable efforts to hold access to BB Platform available to Licensee at any time. However, there may occur service interruptions or performance problems due to technical reasons, e.g. electricity shortfalls, emergency repairs, failure of telecommunication systems, maintenance, or network problems. BLUE BITE will make reasonable efforts to minimize such disruptions where it is within BLUE BITE's reasonable control.
10.4 BLUE BITE training purchased by Licensee as specified in the SaaS Services Agreement or Order Form, shall be available for a maximum of one (1) year from the start of the Term.
11.1 The BB Platform and Object-Data are protected under copyright law and other statutory provisions. During the Term BLUE BITE grants to Licensee a revocable, non-exclusive, non-transferable, worldwide right to access the BB Platform and use the BB Platform functionalities provided by BLUE BITE, including access to Object-Data, for its own internal business purposes, provided that this use complies with the provisions of these TULA, applicable laws and any other term agreed to by the parties.
11.2 In case of a withdrawal of the registration or the termination of this TULA – regardless of the reason – the right of use set forth above will terminate, in case of a temporary withdrawal limited to the period of such withdrawal according to section 8.3.
11.3 Except as expressly permitted in this TULA, Licensee shall not (and shall not allow any third party to):
11.3.1 reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any of the BB Platform or any part thereof; or
11.3.2 copy, modify, adapt, translate, enhance or otherwise create any derivative works or improvements of the BB Platform; or
11.3.3 bypass, breach, or disable any security device, copy control, or digital rights management tool, or other protection used by any of the BB Platform; or
11.3.4 develop, produce, market, distribute, license, sell, or otherwise make available any products or services, or any product or service components, that may or do compete with the BB Platform including any API’s or development kits that are based upon or otherwise a modification to the BB Platform; or
11.3.5 provide, lease, lend, use for timesharing or otherwise use or allow others to use BB Platform, related services and/or content provided via BB Platform, in particular Object-Data, to or for the benefit of third parties.
12.1 Licensee shall:
12.1.1 refrain from any form of unauthorized use of the BB Platform, related services, or content provided via the BB Platform, in particular Object-Data, including but not limited to attempts made to overcome or circumvent the security mechanisms of BB Platform or to otherwise incapacitate them, using computer programs enabling automatic data readouts, as well as using and/or circulating viruses, worms, Trojan horses, brute force attacks, spam or using other links, programs or procedures that are designed to damage BLUE BITE, the BB Platform, content provided via BB Platform, in particular Object-Data, or other users; and
12.1.2 take all necessary and reasonable steps to prevent or limit damage caused by the use of BB Platform, related services, or content provided via BB Platform, in particular Object-Data, in particular to arrange for the regular backup of its own data outside BB Platform.
12.1.3 not use or cause or encourage others to use the BB Platform for any illegal, harmful or offensive purposes. This includes transmitting, storing, displaying, distributing or otherwise making available content that is illegal, harmful or offensive, such as: (i) content that infringes or misappropriates any third party or third-party rights, in particular intellectual property rights; (ii)content that is defamatory, obscene, abusive, invasive of privacy, racist, sexually explicit, liable to have an undesirable influence on the moral development of young people or otherwise objectionable.
12.1.4 perform or cause or encourage others to perform any activity that may impair the operation of the BB Platform, including but not limited to (a) Denial of Service (DoS) attacks, (b) overloading the system by mail bombing, news bombing, broadcast attacks, or flooding techniques; or (c) monitoring or crawling techniques.
12.2 LICENSEE SHALL INDEMNIFY AND DEFEND BLUE BITE AGAINST ANY AND ALL LOSSES, DAMAGES AND EXPENSES (INCLUDING ATTORNEY’S FEES AND OTHER COSTS OF DEFENDING ANY ACTION) THAT IT MAY SUSTAIN OR INCUR AS A RESULT OF: (I) THE USE, OPERATION OR ACCESS OF THE BLUE BITE PRODUCTS OR SERVICES BY LICENSEE, (II) THE ALTERATION OR MODIFICATION OF THE PRODUCTS OR THE USE OR COMBINATION OF THE PRODUCTS WITH OTHER PRODUCTS OR DEVICES BY LICENSEE, (III) A NEGLIGENT OR WILLFUL ACT OR OMISSION OF LICENSEE OR (IV) THE BREACH BY LICENSEE OF THIS TULA.
13.1 All data provided by BLUE BITE via the BB Platform is non-personal data.
13.2 Licensee may collect, process or use personal data in the context of using BB Platform. Personal data shall have the meaning provided in Data Protection Directive 95/46/EC.
Licensee shall fully comply with the data protection and privacy legislation in all relevant jurisdictions and shall ensure that its employees, agents and contractors observe the provisions of such legislation and Licensee shall develop, implement, and maintain a comprehensive information security program that is written in one or more readily accessible parts and contains administrative, technical, and physical safeguards that are appropriate to (a) the size, scope and type of business of the Licensee obligated to safeguard the personal data under such comprehensive information security program; (b) the amount of resources available to such Licensee; (c) the amount of stored data; and (d) the need for security and confidentiality of both consumer and employee information. The safeguards contained in such program must be consistent with the safeguards for protection of personal data and information of a similar character set forth in any state or federal regulations by which the Licensee who collects such information may be regulated.
13.3 Blue Bite may retain and use Interaction Data, subject to the terms of its privacy policy (located at https://www.bluebite.com/privacy-policy/). Blue Bite will not share Interaction Data with any third parties unless Blue Bite: (i) has Licensee’s consent for any Interaction Data; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of Interaction Data is reasonably necessary to protect the rights, property or safety of Blue Bite, its users or the public.
14.1 BLUE BITE shall neither be held liable for third party content, nor shall it be liable for any damages or other failures resulting from any defects of Licensee's software or hardware or their incompatibility with the BB Platform. BLUE BITE shall also not be liable for any damages or other failures resulting from the fact that the Internet was not available or malfunctioning.
14.2 The use of the BB Platform and the respective services requires the use of special technical systems such as end user devices, software programs, transmission networks, telecommunications and other services provided by third parties, all of which may entail further costs. BLUE BITE does not provide such end user devices, software programs, communication channels, telecommunications services or other services and therefore will not assume any liability for such services provided by third parties
14.3 BB PLATFORM IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
14.4 NOTWITHSTANDING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BLUE BITE OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES, WHATSOEVER, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, THE CLAIMS OF THIRD PARTIES, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE BB PLATFORM, OR ARISING OUT OF THIS AGREEMENT, EVEN IF BLUE BITE OR ITS REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Licensee may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of BLUE BITE. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This TULA is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. No assignment or delegation shall relieve Licensee of any of its obligations under this TULA. BLUE BITE may assign any of its rights or delegate any of its obligations to any Affiliate or to any person acquiring all or substantially all of BLUE BITE'S assets without Licensee's consent.
The registration does not authorize either of the Parties to make any legally binding declarations on behalf of both Parties together, or on behalf of the respective other Party, nor does it authorize them to place the respective other Party under any obligation or to represent it in any other way.
Except as otherwise provided in this TULA, no Party shall be entitled to set-off any claims it may have under this TULA against any claims any other Party may have under this TULA unless the rights or claims of the Party claiming a right of set-off are not disputed or have been confirmed by final decision of a competent court or arbitral tribunal or – if claimed in legal proceedings – a decision on the rights and claims of the Party can be taken in the last oral hearing.
This TULA shall be governed, construed, and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws rules. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Any legal suit, action, or proceeding arising out of or related to this TULA shall be instituted exclusively in the courts located in New York County, New York and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Should one or more provisions of this TULA be or become invalid or unenforceable, this shall not affect the validity and enforceability of the remaining provisions of this TULA. The same shall apply if the TULA does not contain an essential provision. In lieu of the invalid or unenforceable provision, or to fill a contractual lacuna, such valid and enforceable provision shall apply which reflects as closely as possible the commercial intention of the Parties as regards the invalid, unenforceable or missing provision.
BLUE BITE expects Licensee to comply with all relevant Export Control laws and regulations. Further, Licensee agrees to respect BLUE BITE’S policy of not engaging in any direct or indirect transactions with Crimea, Cuba, Iran, North Korea, Sudan and Syria, or with individuals or entities of those countries or regions, involving its products, software and services. BLUE BITE will not engage, directly or indirectly, in business with restricted parties or in restricted end-uses. In performing its obligations and exercising its rights under the Agreement, Licensee shall, at all times, act ethically and in compliance with all applicable (i) legislation, regulations, codes of practice, guidance and other requirements of any relevant government, governmental or regulatory agency or authority, or other relevant body; (ii) common law; and (iii) any binding court order, judgment, or decree (collectively “Laws”) of the United States and any jurisdiction in which BLUE BITE and Licensee are established or conduct operations relating to the Agreement, including (without limitation) any applicable Laws in force from time to time regarding bribery, fraudulent acts, corrupt practices and/or money laundering (including without limitation, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act of 2010) and any applicable Laws in force from time to time regarding import/export regulations, tax and/or customs and duties (the “Import/Export Legislation”).
Licensee shall ensure that the products, and any other products or technology acquired from BLUE BITE under the Agreement, will not be exported, sold, diverted, transferred or otherwise disposed of in violation of the Import/Export Legislation, either in their original form or after being incorporated into other items.
Licensee recognizes and accepts that BLUE BITE has determined that it will not sell or support products to or in any country which is the subject of a sanctions program initiated by U.S. or E.U. laws. Additionally, because of the current political and humanitarian situation in as well as the reputational and business risks associated with trade with Cuba, Iran, Syria, Sudan, North Korea and the Crimea Region of Ukraine Currently held by Russia, at this time, BLUE BITE has determined that it will not sell to or support (including delivering spare parts and consumables) customers and users of its products located in those countries. As far as Myanmar (Burma) is concerned, sale and support to that country shall first be checked with BLUE BITE on a case-by-case basis. The list of countries may vary depending on international events and BLUE BITE will update this list accordingly. In addition, BLUE BITE may, in its sole discretion, determine not to sell or support products to entities listed on the restricted parties’ lists. Licensee will not be entitled to make any claim against Blue Bite in the event BLUE BITE refuses to sell and support Licensee in any of those countries or to sell to any of those entities. Licensee shall not export or re-export, directly or indirectly, any products to any of the countries listed above.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
