v. April 2020

These Specific Terms of Use (“Terms and Conditions”) shall be included in the Contract between Supplier and Client and govern the use of the BlueJeans video conferencing and collaboration service (“Service”) offered by BlueJeans Network, Inc. (“BlueJeans”). Other terms associated with the use of and subscription to the Service by the entity licensing the Service (“Client”), are set forth in a service order form that references these Terms and Conditions (“Service Order Form”). The Services may include BlueJeans Rooms as a Service services, in which case the Services will be subject to the terms applicable to such services. Any conflicting or additional terms and conditions are of no force or effect on BlueJeans unless agreed to in writing signed by an authorized officer of BlueJeans. These Terms and Conditions together with the Service Order Form are referred to as the “Agreement.” The Service is available to users to whom Client grants access to the Service under Client’s account (“Users”) as more fully described in the Service Order Form.

 

1.  ACCESS TO THE SERVICE

1.1 BLUEJEANS VIDEO CONFERENCING AND COLLABORATION SERVICE

1.1.1        Access Rights. Client’s Users may use and have access to the Service and the associated generally published technical documentation for the Service (“Documentation”) provided such use and access is for Client’s own internal business operations (and not for the benefit of a third party). Client agrees to use and access the Services in compliance with any restrictions on a Service Order Form. In some cases, Users may need to download, install and use software provided by BlueJeans in order to access the Service (“Software”) and BlueJeans licenses Client and Client’s Users to do so provided the Software is used only in conjunction with the Service. The Documentation may be provided in hard copy form or online. Client acknowledges that access to the Service via the Software may require that Client upgrade the Software as such upgrades become available.

 

1.1.2        Restrictions. Client agrees not to, directly or indirectly: (a) modify, translate, copy or create derivative works based on the Service or any element of the Software, (b) “frame” or “mirror” any content forming part of the Service, (c) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service or the Software in whole or in part, except as and only to the extent this restriction is prohibited by law, (d) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement, (e) remove or obscure any proprietary or other notice contained in the Service or (f) use the Service or Software in connection with the development or offering of a service or product substantially similar to the Service or copying the features or user interface of the Service. Client’s Users must be active participants in meetings or events conducted via the Services (individually and collectively “Meetings”).

 

1.1.3        Important Responsibilities.

 

1.1.4        Acceptable Use and Prohibited Uses. Client agrees to use the Service only in compliance with BlueJeans’ Acceptable Use Policy (located at https://www.bluejeans.com/acceptable-use-policy) and has read and acknowledges the Service is provided subject to BlueJeans’ Privacy Policy (located at https://www.bluejeans.com/privacy-policy). If Client becomes aware of any actual or potential violations of BlueJeans’ Acceptable Use Policy, such violation should be addressed to https://www.arkadin.com/client-support. It is Client’s responsibility to ensure that Client complies with all applicable laws and has the right to use the Service both as Client is using it, and where Users and participants in Client’s Meetings are located. Client represents and warrants that it is not a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring access to or control of items under this Agreement, or with which BlueJeans is prohibited from doing business. Client further represents that the Service shall not be used for or in connection with nuclear, chemical or biological weapons, weapons of mass destruction, missiles, unmanned aerial vehicles, and/or to support terrorist activities, each in a way that would violate any applicable law, or in any other way that would violate U.S. export controls or economic sanctions laws or regulations. If BlueJeans collects and provides Client with information relating to participants in Client’s Meetings, Client will (a) only use such information to contact the participants in connection with Client’s Meeting and (b) not share such information with any third parties. Client agrees to promptly notify BlueJeans and terminate use of the Service if Client discovers that any of the conditions described in this Section 1.4.1 apply. Without limiting any other remedies BlueJeans may have, BlueJeans may suspend any use of the Services that BlueJeans reasonably believes may be (or that is alleged to be) in violation of this Section 1.4.1.

 

1.1.5        User Accounts. Client may identify an individual as the administrator for the Service who will receive an administrative user name and password for Client’s account. Client will ensure that its Users are aware of and use the Service only in compliance with this Agreement. Client is responsible for all activities associated with the Service that occur under Client’s accounts. Client (a) is responsible for ensuring the security and confidentiality of all Users and administrator IDs and passwords for the Service, (b) shall prevent unauthorized access to, or use of, the Service, and (c) shall notify BlueJeans promptly of any unauthorized use of the Service or any breach, or attempted breach, of security of the Service.

 

1.1.6        Equipment. Client is responsible for obtaining and maintaining any equipment and ancillary services including video-enabled devices, video communication services, modems, hardware, servers, software, operating systems, networking, web servers, internet and telephone service (collectively, “Equipment”) needed to connect to, access or otherwise use the Service (and, to the extent applicable, the Software). Client is responsible for the security of its Equipment.

 

1.1.7        Third Party Products. If third party services, applications, code, hardware or products (“Third Party Products”) are integrated or used in connection with the Services, Client agrees that (a) BlueJeans makes no representations and disclaims all warranties, express or implied, regarding Third Party Products, (b) BlueJeans is not responsible and shall have no liability for Third Party Products or the unavailability of Third Party Products, (c) if Third Party Products are provided under a separate license or other agreement, such terms shall govern with respect to such Third Party Products, (d) Client is solely responsible and liable for its use of Third Party Products, (e) Client authorizes BlueJeans to share User Data (defined below) with providers of the Third Party Products as required for the operation of the Third Party Products, provided however, that BlueJeans is not responsible for any transmission, collection, disclosure, security, modification, use or deletion of User Data by or through Third Party Products or their providers, and (f) BlueJeans has no obligation to support any integrations of Third Party Products with the Services and may cease any integrations of Third Party Products at any time, in BlueJeans’ sole discretion.

 

1.2 BLUEJEANS ROOMS AS A SERVICE WITH DOLBY VOICE

1.2.1        BlueJeans Rooms as a Service (“RaaS”) is a subscription service that allows a Client to pay one fee for use of certain hardware, software, and support during the applicable Term. It may include features such as Calendar Integration and certain Dolby hardware for use with an out-of-box BlueJeans experience. As BlueJeans authorized partner of RaaS (the “Partner”), Partner will offer the RaaS as part of its portfolio. These Specific Terms of Use govern the use of Raas by Client following orders issued to Partner. Any additional terms related to use and subscription to Raas are set forth in the service order form (“Service Order Form”) that references these Specific Terms of Use. These Specific Terms of Use together with the Service Order Form are referred to as the “Agreement.” The RaaS is available to users to whom Client grants access under Client’s account (“Users”) as more fully described in the Service Order Form.

 

1.2.2        “Supplied Products” means any hardware, peripherals and other equipment specifically provided under the RaaS license, including any non-BlueJeans software which is included with or embedded in such equipment.

 

1.2.3        Supplied Products may only be shipped to and utilized in the United States of America, United Kingdom, France and Germany (the “Territory”); Client may not ship or install any Supplied Products outside of the Territory.

 

1.2.4        BlueJeans will ship all Supplied Products set forth on accepted Service Order Forms via standard ground shipping directly to Client’s address within the Territory as specified in the document Client receives for shipping purposes.

 

1.2.5        Client does not own, nor does it gain any title to or ownership interest in, any Supplied Products. Dolby Laboratories, Inc. (“Dolby”) is and shall remain the owner of all Supplied Products.  Dolby has the right to recover the Supplied Products from Client, including if BlueJeans -Dolby agreement is terminated or Partner or the Client ceases to operate in the ordinary course of business. Dolby is a third-party beneficiary to the Agreement with respect to Dolby’s ownership interest in the Supplied Products, including for the purpose of exercising Dolby’s rights above.

 

1.2.6        BlueJeans onboarding team collaborate with Partner and Client (as required) to ensure Supplied Products are installed by Partner’s subcontractors and operating.

 

1.2.7        Client agrees that it (i) does not acquire any title or ownership interest in the Supplied Products, (ii) may not pledge or encumber the Supplied Products, (iii) may not make any changes or modifications to the Supplied Products unless authorized to do so by Dolby or an authorized agent of Dolby, and (iv) may not violate any laws with respect to the Supplied Products, including any export regulations and consumer protection and safety laws. Once Client has used a Supplied Product for 4 years, it will be provided with a replacement Supplied Product. At that time BlueJeans will also provide a pre-paid shipping box for Client to return the already used Supplied Product. That Supplied Product must be returned according to instructions provided in the pre-paid shipping box within 30 days of receiving the replacement unit. Client will be billed by Partner a fee to the extent Client does not return the original Supplied Product.

 

1.2.8        The Supplied Products provided to Client may be refurbished to a like-new standard; nothing guarantees that the Supplied Product will be new product.

 

1.2.9        BlueJeans reserves the right to discontinue the Service if required by law, rule, regulation, or if BlueJeans agreements with Partner regarding the supply and provision of Supplied Products are terminated.

 

1.2.10      The Supplied Products may be varied at any time and in any manner, including the design, features, model numbers, technical specifications, configurations, or packaging, provided that any variation will not materially decrease the functionality of the Supplied Products unless such variation is required by applicable law or regulation.

 

1.2.11      BlueJeans may withdraw one or more Supplied Products if such withdrawal is required by applicable law or regulation. 

 

1.2.12      Loss/Damage to Supplied Product. Client will not bear the risk of loss until the Supplied Product is delivered to the Client address specified on the document provided for shipping purposes. Upon delivery of the Supplied Product to Client address as so specified, and until the  Supplied Product has been returned to BlueJeans, Dolby or an agent of Dolby (as instructed by BlueJeans or the Partner), Client bears all risk of loss, damage, theft, or destruction of the Supplied Product, and no such loss, damage, theft, or destruction will relieve Client of any of its obligations, provided that any such loss, damage, theft or destruction is not directly caused by or due to BlueJeans, Dolby or any of their authorized agent.

 

1.2.13      Product Replacement Request (Warranty). If Client requests a replacement of a Supplied Product during the Term due to damage caused by Dolby or an agent of Dolby or if the Supplied Product does not conform to the Limited Product Warranty located at www.bluejeans.com/raas-limited-warranty, Client may receive a warranty replacement as set forth in the Limited Product Warranty located at www.bluejeans.com/raas-limited-warranty.

 

1.2.14      Client must return the original Supplied Product as directed by Partner, to BlueJeans, Dolby or an authorized agent (as instructed by Partner). If the original Supplied Product is not returned to permit an evaluation of the Supplied Product, or if when returned it is determined that the original Supplied Product does not meet the requirements for the warranty replacement, then Partner will bill Client for the replacement product. 

 

1.2.15      Product Replacement Request (Non-warranty).  If Client requests a replacement of a Supplied Product during a Term, and the need for such replacement is not covered by the Limited Product Warranty located at www.bluejeans.com/raas-limited-warranty nor necessitated by damage caused by BlueJeans, BlueJeans will promptly send a replacement Supplied Product and Partner will bill Client a replacement fee.

 

1.2.16      Subject to Client’s compliance with these terms and Client’s RaaS-related Agreement, BlueJeans will extend to Client warranty coverage on Supplied Products in the Territory during the respective Terms as set forth in the Limited Product Warranty located at www.bluejeans.com/raas-limited-warranty. Client must contact Partner to request any warranty service.

 

1.2.17      No Other Warranties.  EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THE LIMITED WARRANTY PROVISION BELOW, NEITHER BLUEJEANS NOR ANY OF ITS AGENTS, PARTNERS OR AFFILIATED ENTITIES MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND BLUEJEANS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

 

1.2.18      At the expiration or termination of the Term, Client must return all Supplied Products as directed by BlueJeans or the Partner. Client will receive a Return Merchandise Authorization (“RMA”) and (if requested) a return shipping box for all Supplied Products to be returned, and within 30 days of obtaining each such RMA and applicable return shipping box, Client will return such Supplied Product to BlueJeans, Dolby or an agent of either (as directed by BlueJeans or the Partner) in substantially the same condition as when such Supplied Product was shipped to Client, excepting ordinary wear.  For each Supplied Product that is not returned as set forth herein, or if the returned Supplied Product is not returned in the same condition as when it was originally shipped to Client, Partner will bill Client a fee.

 

1.2.19      If Client is a United States government entity, all software distributed with or embedded in the Supplied Products are subject to the applicable end user license agreements accompanying such Supplied Products; are commercial computer software developed exclusively at private expense; are provided to the United States government only as commercial computer software (with Restricted Rights, as applicable); that use, duplication, and disclosure by civilian agencies of the United States government shall be in accordance with the terms of such end user license agreements and FAR 52.227-19(b), or its current equivalent; and that use, duplication, and disclosure by Department of Defense agencies is subject solely to the terms of the applicable end user license agreements as consistent with DFARS 227.7202 or its current equivalent.

 

1.2.20      Any sale, resale, license, sublicense, rent, timeshare or transfer of Rooms as a Service License is prohibited.

 

1.2.21      To utilize the Rooms as a Service Services, Client must have a Meetings or Events license. The Room license does not have a unique identifier required to host the Services.

 

1.2.22      The Room license may only be assigned to a specific Client-owned conference or meeting room. A license may not be shared or used other than as the account for that particular conference or meeting room.

 

UK, France or Germany Orders

Notwithstanding the above, a Client located in the UK, France or Germany may, in its Service Order Form, contract with Partner (or an authorized distributor or reseller of BlueJeans) in order to ship Supplied Products into said countries.  In such specific circumstances, in addition to the terms set forth above (including the referenced links), the following also apply:

  • Supplied Products may only be shipped to and utilized in the UK, France or Germany; Client may not ship or install any Supplied Products outside these countries
  • BlueJeans will ship all Supplied Products set forth on accepted Service Order Forms via standard ground shipping directly to Client’s address within these countries as specified in the Order Form or such other document that Partner may provide for shipping purposes. Partner will invoice for the RaaS service on the first shipment date of the Supplied Products. Any taxes charged to Client for the RaaS service will be based upon the shipped-to location and will be estimated on the Order Form.

In addition, with respect to the Warranty referenced above and at the applicable link above, in the RMA (defined in the Warranty) process, BlueJeans or its authorized agent will send a postage-paid shipping box for the return of the Supplied Product from within the above mentioned countries.

 

2.  PROPRIETARY RIGHTS AND FEEDBACK.

2.1   Ownership. Client acknowledges and agrees that (a) the Service, the Software and the Documentation are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, (b) BlueJeans owns and retains all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to the Service, the Software, the Documentation, any other deliverables, any and all related and underlying technology and any derivative works or modifications of any of the foregoing, (c) there are no implied licenses to Client under this Agreement and any rights not expressly set forth in this Agreement are hereby expressly reserved by BlueJeans, (d) the Software and access to the Service are licensed, not sold and Client acquires no ownership or other interest (other than the license rights expressly stated herein) in or to the Service, the Software and the Documentation and (e) the Service is offered as an on-line, hosted solution, and Client has no right to obtain a copy of the Service itself.

 

2.2   Feedback. From time to time, Client may provide to BlueJeans with suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Service or Software (“Feedback”). Feedback shall not be deemed to constitute Confidential Information or to impose any confidentiality obligations on BlueJeans. Client agrees that BlueJeans is free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

 

3.  CONFIDENTIALITY.

3.1   Confidentiality and Non-Use. Each party (the “Recipient”) understands that, in connection with this Agreement, the other party (the “Discloser”) may disclose business, technical or financial information relating to the Discloser’s business. Such information shall be considered the “Confidential Information” of the Discloser provided that it is marked or otherwise designated at the time of disclosure as “confidential” or “proprietary” or the like. BlueJeans’ Confidential Information includes, without any marking or further designation but always with respect to BlueJeans Services, (a) the pricing and other terms reflected in all Service Order Forms hereunder, (b) any trade secrets, know-how, inventions (whether or not patentable), techniques, ideas, or processes related to the Services, (c) the Software, (d) the design and architecture of the Services, (e) the computer code, internal documentation, and design and functional specifications of the Services (f) any problem reports, analysis and performance information related to the Services and (g) reports, analyses and/or other information relating to BlueJeans’ security and security practices (“Security Information”). Client’s Confidential Information includes, without marking or further designation, (i) the content, including Content (defined below), of videoconferences that Client creates and stores via the Services and (ii) the usernames and passwords of Client’s Users.

 

3.2   Obligations. Except in order to provide the Services or as otherwise permitted herein, during the Term and for a period of five (5) years after expiration or termination, the Recipient agrees (a) to use and disclose Confidential Information solely for the purpose of performing its obligations under this Agreement and (b) to protect the Confidential Information with at least the same degree of care it normally exercises to protect its own proprietary information of a similar nature, but in no event less than a reasonable standard of care.

 

3.3   Exceptions. The Discloser agrees that the foregoing obligations shall not apply with respect to any information that the Recipient can document (a) is or becomes generally available to the public through no fault of the Recipient, (b) was rightfully in its possession or known by it prior to receipt from the Discloser, (c) is rightfully disclosed to the Recipient without restriction by a third party that is not in violation of any obligation of confidentiality or (d) was independently developed without use of any Confidential Information of the Discloser (except for patentable subject matter, which shall not be subject to this exception). Notwithstanding the foregoing, subsections (b)-(d) will not apply with respect to Security Information.

 

3.4   The Recipient may disclose Confidential Information to the minimal extent required to be disclosed by law; provided that the Recipient will give the Discloser prompt notice to allow the Discloser a reasonable opportunity to obtain a protective order and such Confidential Information disclosed to the extent required by law shall otherwise remain confidential and subject to the protections and obligations of this Agreement.

 

3.5   Data. By the nature of providing the Service, BlueJeans collects certain data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (such as Meeting start/end times, number of Meetings conducted, meeting duration, underlying network quality in terms of latency, jitter, packet loss, etc. and breakdown of endpoints used (Polycom, Cisco, etc.)) (“Data”). BlueJeans shall have the right to collect and analyze such Data, and Client grants BlueJeans the right to use and disclose such Data (during and after the Term) solely in an aggregate or other de-identified form to improve and enhance the Services, for other development, diagnostic and corrective purposes in connection with the Services and other offerings, or otherwise in connection with BlueJeans’ business.

 

3.6   BlueJeans shall make available to Client upon request BlueJeans’ data processing agreement (“DPA”), also available at https://store.bluejeans.com/gdpr-admin-form for GDPR-compliant data processing. If the DPA is processed online, BlueJeans shall make available a non-executable copy of the terms for reference purposes to share with End Users in advance. Any Client’s or End User’s questions regarding the DPA or BlueJeans privacy practices shall be referred to the BlueJeans Privacy Team (privacy@bluejeans.com) and BlueJeans shall use commercially reasonable efforts to promptly respond to such Client’s or End User’s questions.

 

4.  USER DATA, CONTENT AND RECORDING.

4.1   User Data. In order to set up accounts and use the Services, Client may provide information, such as IP address, username, password, and personally identifiable information (e.g., name, phone number, email address, etc.) (“User Data”). Client grants BlueJeans and its subcontractors the right to store, process and retrieve User Data in connection with providing and supporting the Services. Client warrants that it has obtained required consent from Client’s Users to transfer User Data to BlueJeans and to process the User Data as contemplated by the Services, and agrees that BlueJeans may transfer to, store and process User Data where BlueJeans uses facilities in connection with the Services in order to provide the Services and support the Services. To the extent that User Data provided or disclosed by Client (as data controller or data exporter) is deemed “personal data” under applicable European Union law or regulation, (a) Client agrees that BlueJeans may transfer to, store and process User Data in the United States and/or another country outside the European Economic Area where BlueJeans uses facilities in connection with the Services in order to provide the Services and support the Services and (b) BlueJeans shall (i) comply with Client’s reasonable, lawful instructions relating to the security and confidentiality of the User Data, and will maintain administrative, physical, and technical safeguards intended to protect the security and integrity of the User Data and (ii) process the User Data only in accordance with Client’s lawful instructions or the lawful instructions of the data subject. If BlueJeans cannot comply with Section 4.1(b), Client’s sole and exclusive remedy shall be to terminate its consent to the Terms and Conditions and cease using the Services.

 

4.2   Content. Users may display, upload and store files, recordings, sound, music, graphics and images in connection with Client’s use of the Service (“Content”). Client represents and warrants that it owns or has the necessary permissions to use and authorize the use of Client’s Content. Client grants BlueJeans and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to host, cache, copy, store and display Client’s Content for the purpose of and in conjunction with providing and supporting the Service. Client acknowledges and agrees that, except as expressly set forth herein, (a) BlueJeans is not responsible in any manner for Client’s Content, (b) Client assumes all risks associated with its Content and the transmission of its Content and (c) Client has sole responsibility for the accuracy, quality, legality, and appropriateness of its Content.

 

4.3   Recording. The Service may provide a function that allows Users to record individual Meetings. Client has the option to enable or disable the recording function. Client is solely responsible for complying with all laws in any relevant jurisdiction when using this feature. BlueJeans has implemented technical and organizational measures designed to secure any Meetings that Client records and stores from accidental loss and from unauthorized access, use, alteration or disclosure. However, BlueJeans cannot guarantee that unauthorized third parties will not be able to defeat those measures. Client acknowledges that it stores such information at Client’s own risk.

 

5.  TERM AND TERMINATION.

5.1   Term and Renewal. Subject to earlier termination as provided below, these Terms and Conditions are effective for the term stated on the Service Order Form.

 

5.2   Effect of Termination. Upon expiration or termination of these Terms and Conditions for any reason, Client agrees to cease all use of the Service, Software and Documentation, installed or otherwise, and destroy all copies of any Software and Documentation that are in Client’s possession or control. BlueJeans may, upon such expiration or termination, deactivate or delete Client’s account and any related data, information and files, and bar any further access to such data, information and files.

 

5.3   Survival. Sections 2 (Proprietary Rights and Feedback), 3 (Confidentiality), 5.2 (Effect of Termination), 5.3 (Survival), 6.2 (Disclaimer) and 7 (Responsibility for Third Party Claims), 8 (Limitation of Liability), 9 (Changes), 10 (Governing law and Jurisdiction), 11 (Miscellaneous) will survive the non-renewal or termination of the Terms and Conditions.

 

6.  LIMITED WARRANTY AND DISCLAIMER.

6.1   Limited Warranty. BlueJeans warrants that the Service will be provided in material compliance with the Documentation and to maintain the Service in a manner that minimizes errors and interruptions in the Service. However, the Service may be temporarily unavailable for scheduled or emergency maintenance, either by BlueJeans or by third-party providers, or because of other causes beyond BlueJeans’ reasonable control. BlueJeans will use reasonable efforts to provide Client with advance notice of any scheduled maintenance.

 

6.2   DISCLAIMER. THE ABOVE WARRANTY IS CLIENT’S EXCLUSIVE WARRANTY AND BLUEJEANS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF TITLE AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, CLIENT ACKNOWLEDGES THAT THE SERVICE IS PROVIDED “AS IS” AND FURTHER ACKNOWLEDGES THAT BLUEJEANS DOES NOT WARRANT THAT (A) THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (B) THE SERVICE IS NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE OR (C) THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE. CLIENT IS RESPONSIBLE AND BLUEJEANS SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CLIENT’S PROPOSED USE OF THE SERVICE COMPLIES WITH APPLICABLE LAWS.

 

6.3   IF THE SERVICE PROVIDED IS A NO-CHARGE EVALUATION OR BETA RELEASE, THE FOLLOWING APPLIES IN PLACE OF SECTION 6.1 AND SECTION 6.2: NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE SERVICE IS PROVIDED BY BLUEJEANS IN AN “AS IS” CONDITION AS TO PERFORMANCE, ACCURACY, AND/OR COMPLETENESS WITH NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED.

 

7.   RESPONSIBILITY FOR THIRD PARTY CLAIMS.  Client agrees to defend any third party claim or action brought against BlueJeans to the extent based on Client’s alleged breach of Section 1.3, Section 1.4 or Section 4 and Client agrees to pay (a) any settlements that Client agrees to in a writing signed by an authorized officer, (b) final judgments awarded to the third party claimant by a court of competent jurisdiction, and (c) fines, penalties, or other costs that are imposed by a governmental or regulatory agency. BlueJeans will provide prompt written notice of any claim, provided that failure to do so shall only relieve Client to the extent that it is actually and materially prejudiced by any delay, and reasonable information and assistance to Client in the defense or settlement of the claim at Client’s expense.

 

8.   LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL BLUEJEANS (OR ANY SUPPLIER, LICENSOR OR CHANNEL PARTNER OF BLUEJEANS) BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY OR (C) ANY DAMAGES THAT EXCEED THE TOTAL FEES PAID AND/OR OWED BY CLIENT FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT BLUEJEANS (OR ANY SUPPLIER, LICENSOR OR CHANNEL PARTNER OF BLUEJEANS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

9.   CHANGES. BlueJeans reserves the right to modify and/or update the Service and/or any components thereof, the Documentation, its support policies, its security and privacy policies and any other information and/or policies at BlueJeans’ sole discretion and without notice; provided that BlueJeans will use commercially reasonable efforts to provide prior notice of such changes, and such changes shall not materially decrease the functionality of the Service that Client has subscribed to during the then current Term.

 

10.        GOVERNING LAW AND JURISDICTION. These Terms and Conditions, and any legal claim, suit, action or proceeding arising out of these Terms and Conditions, whether sounding in contract, tort or otherwise, shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provisions or rules in any jurisdiction. Each party irrevocably submits to the exclusive jurisdiction of the federal courts of the United States or the courts of the State of California, in each case located in Santa Clara County for the hearing of any such suit, action or proceeding to, and waives any objection based on improper venue or forum non conveniens.

 

MISCELLANEOUS. Notices to be given by either party to other pursuant to these Terms and Conditions shall be in writing and directed to the address provided in the applicable Service Order Form and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt) or (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid. Client may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of Client’s obligations or performance, under these Terms and Conditions, without BlueJeans’ prior written consent, which shall not be unreasonably withheld. Any purported assignment, delegation or transfer in violation of this provision is void. BlueJeans may assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Client’s consent. These Terms and Conditions are binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. If any court of competent jurisdiction adjudges any provision of these Terms and Conditions to be illegal, unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect and enforceable, but shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. These Terms and Conditions constitute the sole and entire agreement between the parties with respect to the subject matter contained herein, and replace and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Client agrees that any purchase order, website, purchasing portal, or other instrument issued by Client shall be for Client’s administrative purposes only and any terms and conditions contained therein shall be of no force or effect even if signed or otherwise accepted or acknowledged by BlueJeans. Except as provided herein, no waiver of, addition to, or amendment to any provision of these Terms and Conditions by any party shall be effective unless explicitly set forth in a signed writing. Except as otherwise set forth in these Terms and Conditions, no failure or delay to exercise any right, remedy, or power arising from these Terms and Conditions, in whole or in part, shall operate or be construed as a waiver thereof or preclude any further exercise thereof or the exercise of any other right, remedy, or power. Neither party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to civil disturbances, riot, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power or equipment, or any other circumstances or causes beyond a party’s reasonable control.