BLUE BITE PLATFORM
TERMS OF USE AND LICENSE AGREEMENT (TULA)

I. OBJECT OF TULA, CHANGES TO TULA

1. OBJECT OF TULA

1.1 - This Terms of Use and License Agreement ("TULA" applies to each registered user ("Licensee") of the cloud platform BLUE BITE PLATFORM ("BB Platform") provided by BLUE BITE 377 Park Ave South, 2nd Floor, New York, NY 10016, USA ("BLUE BITE").

1.2 - By using BB Platform Licensee is able to manage a network of NFC and QR Touchpoints and beacons and assign content to those objects purchased from BLUE BITE or any of its affiliated companies, e.g. venue type, venue name, lat/lon, etc. ("Object-Data"), which consist of a set of standard data ("Standard Data") and different sets of premium data offered by BLUE BITE ("Premium Data") (if purchased by Licensee) and use further functionalities of BB Platform.

1.3 - This TULA sets out the terms applicable for the use of 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").

2. CHANGES TO TULA

2.1 - These Terms are a binding agreement between Licensee and BLUE BITE. 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: www.bluebite.com/tula. Licensee's use of BB Platform and related services is governed by the version of the TULA in effect on the date BB Platform is accessed by Licensee.

II. USER ACCOUNT, LOGIN DATA, TERMINATION OF USE

USER ACCOUNT

3.1 - Use of 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 - BB Platform is a business platform for business customers of BLUE BITE. Therefore, consumers as well as minors and persons with limited legal capacity are not permitted to register.

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 BB Platform to registered users.

REGISTRATION PROCESS

4.1 - During the registration process Licensee applies for access to 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.

RESPONSIBILITY FOR LOGIN DATA

5.1 - Licensee is obliged

5.1.1 - to keep all registration data according to section 4.2 ("Login Data") confidential, not to communicate or disclose the Login Data to third parties (including without limitation other individuals within its organization, company or legal entity) and to protect the Login Data against intentional or accidental notice by third parties. No third party must be enabled to use the Login Data;

5.1.2 - to inform BLUE BITE immediately if Licensee has reason to assume that third parties have become aware of the Login Data or has indications of any form of unauthorized use of the Login Data;

5.1.3 - not to provide access to BB Platform to third parties.

5.2 - Licensee shall ensure that Named Users also comply with the obligations according to section 5.1.

5.3 - BLUE BITE shall not be liable for any damages resulting from any unauthorized use of BB Platform by third parties.

5.4 - Licensee shall be fully liable for each and every use or abuse of BB Platform and related software, computer systems and services which may be executed using Licensee's or a Named User's Login Data, unless Licensee can prove that such unauthorized use was not caused by actual fault of Licensee.

UPDATE OF DATA

Licensee shall keep updated the Licensee Data 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.

WITHDRAWAL OF ACCESS RIGHTS

7.1 - 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 statutory provisions.

7.2 - BLUE BITE will inform Licensee via e-mail about a withdrawal of Licensee's or a Named User's access rights.

7.3 - In case of a temporary withdrawal BLUE BITE will reactivate Licensee's or the Named User's Login Data after expiration of an adequate time period corresponding to the respective (assumed) violation of the TULA or statutory provisions. BLUE BITE will inform Licensee about the re-activation of the Login Data via e-mail.

7.4 - 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 use of BB Platform.

7.5 - Licensee's obligation to pay the agreed royalty, if any, shall remain unaffected by a withdrawal of Licensee's or a Named User's access rights. In case of a permanent withdrawal Licensee's payment obligation shall remain unaffected until this TULA has been validly terminated by either Party.

TERMINATION OF USE

8.1 - This TULA is concluded for an indefinite term. BLUE BITE may terminate this TULA for any reason upon ninety (90) days advance notice to the other Party. Licensee may terminate this TULA for any reason upon 4 weeks advance written notice, however, at the earliest 3 months after the TULA becomes effective. The notice may be issued by E-Mail.

8.2 - The Parties' right of termination for cause shall remain unaffected.

8.3 - Upon the termination becoming effective BLUE BITE is entitled to block Licensee's user account and disable Licensee's and the Named Users' Login Data.

8.4 - BLUE BITE is entitled to delete all of Licensee's data upon expiration of 90 days after the termination becomes effective and after the expiration of legal obligations to keep data records.

III. SERVICES AND AVAILABILITY; RIGHTS OF USE

SERVICES AND AVAILABILITY

9.1 - 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.

9.2 - BLUE BITE will use its best endeavors to provide access to BB Platform and all or certain parts of the Object-Data and related services subject to this TULA and applicable special terms. BLUE BITE reserves the right to improve, expand, change or delete Object-Data in whole or in part (e.g. in relation to functionalities).

9.3 - BLUE BITE will use reasonable endeavors 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.

RIGHTS OF USE

10.1 - BB Platform and Object-Data are protected under copyright law and other statutory provisions. BLUE BITE grants to Licensee the revocable, non-exclusive, non-transferable, worldwide right to access 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 and applicable special terms of use as well as with applicable statutory provisions.

10.2 - 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 lapse, in case of a temporary withdrawal limited to the period of such withdrawal according to section 7.3.

10.3 - Except as expressly permitted in this TULA, Licensee shall not (and shall not allow any third party to)

10.3.1 - decompile, disassemble, or otherwise reverse engineer BB Platform (except to the extent expressly permitted under applicable law); or

10.3.2 - 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.

V. ROYALTY; LICENSEE OBLIGATIONS

ROYALTY

11.1 - Use of BB Platform and access to Standard Data and Premium Data shall be purchased from BLUE BITE according to BLUE BITE’s respective current pricing list.

11.2 - Any royalty for access to Premium Data will be invoiced by BLUE BITE after issuance of a respective purchase order by Licensee. Payment will be due within 30 days after reception of the invoice by Licensee.

NO ILLEGAL, HARMFUL OR OFFENSIVE USE

12.1 - Licensee shall

12.1.1 - refrain from any form of unauthorized use of BB Platform, related services, or content provided via 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, Trojans, brute force attacks, spam or using other links, programs or procedures that are suited to damage BLUE BITE, 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 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 frictionless operation of 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.

DATA PROTECTION

13.1 - All data provided by BLUE BITE via BB Platform are non-personal data.

13.2 - Licensee must not 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.

V. WARRANTY; LIABILITY

NO WARRANTIES, INDEMNITIES OR LIABILITIES

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 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 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.

VI. MISCELLANEOUS

NO ASSIGNMENT

Licensee shall not be entitled to assign any rights or claims under this TULA without the prior written consent of BLUE BITE.

NO REPRESENTATION

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.

NO SET-OFF

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.

CHOICE OF LAW AND JURISDICTION

This Agreement 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. Exclusive place of jurisdiction for all disputes regarding rights and duties under this TULA, including its validity shall be [place].

SEVERABILITY

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.