Terms and Conditions
The terms and conditions set forth herein constitute the full and complete agreement between you and [bluSPARC™] (“bluSPARC”). By using bluSPARC coaching services, online services, websites, web services, applications, application services, any software developed by bluSPARC, or any other products or services of bluSPARC (together the “bluSPARC Services,” as further defined in Section I below), you agree to be bound by the terms of this Agreement for your use of bluSPARC Services both past and present. The terms contained herein supersede and replace any other agreement or negotiation between you and bluSPARC, whether oral, written or otherwise, including any statements made to you by any representative of bluSPARC at any time.
- SERVICES. bluSPARC offers performance coaching services which includes the right to access and use bluSPARC’s mobile applications and online platform (the “bluSPARC System”), and the right to allow your employees for whom a subscription is purchased (each, a “User” and collectively, “Users”) to download and use bluSPARC’s mobile applications for specified periods (each, a “Subscription Period”) and to obtain standard bluSPARC support (collectively, the “bluSPARC Services” or just “Services”). bluSPARC will provide the Services pursuant to orders that You will submit through an order form (once accepted by bluSPARC, each, an “Order”). Each Order will include a description of the bluSPARC Services, the schedule for the delivery of the bluSPARC Services, the applicable Subscription Period, and the associated fees and payment terms for the bluSPARC Services. Each Order must be accepted by bluSPARC to become valid. Each valid Order will be deemed incorporated into this Agreement by reference and made an integral part of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order and the terms and conditions of this Agreement, the terms of this Agreement will govern.
- FEES. bluSPARC charges [Fees]. All such fees are subject to change with 30 days’ notice. Unless otherwise specified in any offer or promotion, the fees presented to the client are applicable to all transactions between you and BLUSPARC. Fees are paid by the client and are a flat fee structure for access to the bluSPARCTM app, coaching services and other ancillary services. In addition to the above-mentioned fees, BLUSPARC may also charge additional fees and specifically reserves the right to institute additional charges upon notice to you. BLUSPARC reserves the right to alter, change, amend or delete charges at its sole discretion. BLUSPARC further reserves the right to institute new services and charge fees in association with the provision of such new services as it deems appropriate.
- PAYMENT OF FEES. Payment for all Services are due at the commencement of any Period, unless specifically stated otherwise in the offer or promotion pursuant to which you have ordered or are ordering the Services. All payments shall be made prior to activation of your user account and at any applicable time thereafter. You further authorize BLUSPARC to perform like transactions for all subsequent Periods and other applicable fees on or during a reasonable period in advance of the commencement of any such subsequent Period until such fees are collected. It is your responsibility to provide BLUSPARC with bank transfer information that is sufficient to pay all fees due to BLUSPARC when those payments are due. If for any reason the bank transfer information you provided is insufficient to pay any fees at the commencement of any Period, BLUSPARC at its sole discretion will have the right to suspend and/or terminate your account or suspend Services under the Section VII of this Agreement. Refusal or rejection of any charge or any portion thereof is grounds for account suspension and/or termination at the sole option of BLUSPARC under the Section VII of this Agreement. In case of disputes regarding access, BLUSPARC has the right to limit access to Services at its sole discretion.
- ACCEPTABLE USE. BLUSPARC strictly enforces compliance with its acceptable use terms under this section. You agree to use the BLUSPARC services in full compliance with the terms set forth below. Failure to so comply is cause for immediate suspension and possible termination under Section VII of this Agreement.By accepting, you agree that:
- You are responsible for the actions of your Users;
- You will not violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government;
- You will not take any action which encourages or consists of any threat of harm of any kind to any person or property;
- You will not make or attempt any unauthorized access to any BLUSPARC services or accounts or Hosted Data (as such term is defined below);
- You will not attempt to install or run any executable software not installed by BLUSPARC on any BLUSPARC System;
- You will not infringe any copyright, trademark, patent, trade secret, or other proprietary rights of BLUSPARC or any third party user of BLUSPARC Services, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software;
- You will not offer, make available, or otherwise authorize any non-User to access BLUSPARC Services;
- Your payment for services does not constitute your ownership of that data or information; and
- You will not undertake any action which is harmful or potentially harmful to BLUSPARC or its infrastructure.
- OWNERSHIP OF INTELLECTUAL PROPERTY. You acknowledge that all right and title to any BLUSPARC property shall remain the sole property of BLUSPARC and that you have no right, title or interest therein. You agree not to attempt to copy, reproduce, reverse engineer, decompile, or disassemble any BLUSPARC property or BLUSPARC Service and you agree that any work that is derivative of BLUSPARC property is the sole property of BLUSPARC.
You are solely responsible for ensuring that your login information is utilized only by you or authorized Users. Your responsibility includes ensuring the secrecy and strength of your passwords. BLUSPARC shall have no liability resulting from the unauthorized use of your login information. If you use weak passwords or do not change your password frequently, you increase the risk of your password being discovered by unauthorized parties. If login information is lost, stolen, or used by unauthorized parties or if you believe that your Hosted Data has been accessed by unauthorized parties, it is your responsibility to notify BLUSPARC to request the login information be reset or unauthorized access otherwise be prevented. BLUSPARC will use commercially reasonable efforts to affect such requests as soon as practicable after their receipt.
- TERM. BLUSPARC may change the pricing for Services subsequent to the initial Term, in its sole discretion. Either party may terminate this Agreement for cause if the other party fails to cure any material breach of this Agreement (including a failure to pay fees) within ten (10) days after written notice. Upon any expiration or termination of this Agreement, (a) BLUSPARC will cease providing the Services, and (b) you and the Users will cease any access to the BLUSPARC platform, except Users may contract individually with BLUSPARC for coaching separately from BLUSPARC’s client relationship with you. Notwithstanding any terms to the contrary in this Agreement, (i) in addition to this sentence, Sections II, III, IV, V, VI, VII, IX, XI, XII, XII, and XIV will survive any termination or expiration of this Agreement, and (ii) no refunds will be issued.
Unless earlier terminated as set forth in this Agreement, this Agreement commences upon the date you first access, download or use the BLUSPARC Services (“Effective Date”) and continues to the end of the last effective Subscription Period.
- TERMINATION. For any reason set forth herein or in the event that you breach any term of this agreement, BLUSPARC may suspend or terminate your account by deactivating any access to BLUSPARC Systems or Services related to your account. Suspension hereunder shall specifically include the disabling of your access to Services or any access to information or data related to your account. Fees will continue to accrue on suspended accounts, and you continue to remain responsible for the payment of any such charges during the period of suspension. BLUSPARC reserves the right to terminate your account forthwith and without notice for any breach of this Agreement.
- WARRANTEES AND LIMITATIONS OF LIABILITY. BLUSPARC makes every reasonable effort to maintain operation of the Services. However, because many events and/or circumstances are beyond the control of BLUSPARC, BLUSPARC does not in any way warrant or otherwise guarantee the availability of the BLUSPARC system or applications and is not responsible for any delay, loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of BLUSPARC. BLUSPARC may, at its sole discretion, limit or deny access to its Systems or Services, if, in the judgment of BLUSPARC, such limitations or denials of access are required to assure the security of BLUSPARC’s network, security of its Systems or Services, or to prevent damage to its network, Systems, Services, or data stored on or within BLUSPARC’s Systems or Services.
ALL BLUSPARC SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE A SERVICE CREDIT EQUAL TO THE FEE PAID BY YOU TO BLUSPARC AS PRO-RATED FOR THE PERIOD CORRESPONDING EITHER TO ANY DOWN-TIME OR, IF CANCELLING SERVICE, TO THE PERIOD OF SERVICE FOR THE REMAINDER OF THE MONTH OF YOUR FIRST ALLEGATION OF ENTITLEMENT TO SUCH REMEDY FOLLOWING SAID ALLEGATION. IN NO EVENT SHALL BLUSPARC BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES. IN NO EVENT SHALL BLUSPARC BE RESPONSIBLE FOR ANY FEES PAID BY YOU TO ANY THIRD PARTY OR FOR ANY SERVICES RELATED THERETO.
- INDEMNITY. You agree to fully defend and indemnify and hold harmless BLUSPARC, its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this Agreement or your negligence whether active or passive or any negligence of BLUSPARC in any way related to your use of the Services or any portion thereof.
You agree to fully defend and indemnify and hold harmless BLUSPARC, its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Services or any portion thereof.
You agree that upon the assignment of your login information such as a username and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your login information. You further agree to defend and indemnify and hold harmless BLUSPARC of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential login information.
- ASSIGNMENT. This Agreement and the rights hereunder are not assignable or transferable except that BLUSPARC may freely assign any or all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of BLUSPARC, or to any affiliated company or successor in interest of BLUSPARC. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by BLUSPARC to any other party BLUSPARC will notify you within ninety (90) days and, excepting assignment solely of rights of resale of BLUSPARC Services, you have the right to terminate this Agreement by giving notice thereof in writing to BLUSPARC and any such termination shall become effective thirty (30) days after the receipt of such notice by BLUSPARC.
- SEVERABILITY. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
- CHOICE OF LAW/DISPUTE RESOLUTION. This Agreement will in all respects be governed by and construed and interpreted in accordance with the laws of the Commonwealth of Virginia without regard to its choice of law rules. Any claim or dispute associated with or arising out of this Agreement must be resolved exclusively by a state court located in Fairfax County, Virginia or, optionally, by the Federal District Court for the Eastern District of Virginia – Alexandria Division, where federal jurisdiction exists. The parties agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims or disputes. The parties waive any objection to the laying of venue for any suit, action, or proceeding in such courts. The substantially prevailing party in any action will be entitled to recover its costs and attorneys’ fees.
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST BLUSPARC ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. IN NO EVENT WILL EITHER PARTY SEEK TO HAVE ANY CLAIM ARISING HEREUNDER OR RELATING HERETO TRIED TO A JURY.
- NO AGENCY. Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between BLUSPARC and you.
- AMENTMENT. BLUSPARC may without advance notice amend this Agreement from time to time and will do so by posting the new Agreement on the BLUSPARC website or application in place of the old. Each and every such amendment shall be become effective immediately for you and Users of the Services including but not limited to all pre-existing and future accounts. It is your responsibility to periodically check the BLUSPARC website and application for updates of this Agreement.
- MISCELLANEOUS. BLUSPARC’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.Any rights not otherwise expressly granted by this Agreement are reserved by BLUSPARC.
Any rights not otherwise expressly granted by this Agreement are reserved by BLUSPARC.