General Terms and Conditions

BY CLICKING THE “I ACCEPT,” “AGREE” OR OTHER ACKNOWLEDGMENT REFERENCING THIS AGREEMENT, OR BY ACCESSING OR USING THE BLUERUSH PRODUCTS OR PROFESSIONAL SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT ACCEPT THESE GENERAL TERMS, YOU MAY NOT ACCESS OR USE THE BLUERUSH PRODUCTS.

1. DEFINITIONS. In the General Terms:

   1. “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with, such party. “Control,” for purposes of this definition, means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
   2. “Agreement” means the General Terms, each Product Exhibit, each SOW (if any) and any other document executed by the parties.
   3. “Appliance(s)” means a virtual or hardware device containing the Software.
   4. “BlueRush Analytics” means information collected, generated and/or analyzed by the BlueRush Products such as log files, statistics, aggregated data and derivatives thereof.
   5. “BlueRush Product(s)” means the Appliance, Service or Software licensed and/or purchased by Customer under a Purchase Order.
   6. “Confidential Information” has the meaning set forth in Section 3.
   7. “Customer Data” means the Customer specific configurations and rules implemented in the BlueRush Products, and any Customer content processed by the BlueRush Products (e.g., electronic data or information) that is not Personal Data.
   8. “Customer Equipment” means Customer’s computer hardware, software and network infrastructure used to access Software.
   9. “Deliverable” means any software, studies, documentation and/or other materials prepared by BlueRush for the Customer as described in a Purchase Agreement or SOW for Professional Services.
   10. “Documentation” means the technical description of the BlueRush Product(s) contained in the then-current BlueRush Product descriptions made available by BlueRush to Customer upon license of the BlueRush Product(s).
   11. “Extension Term(s)” means each additional one- year (or other agreed upon period) subscription term for which the subscription term for a BlueRush Product is extended pursuant to Section 8.
   12. “Initial Term” means the initial subscription term for a BlueRush Product that is defined on the applicable Purchase Order.
   13. “License(s)” means the license metric (e.g., type and quantity) identified in the BlueRush sales quote and/or in the applicable Product Exhibit (which in turn may be referenced in the Purchase Order). Customer needs a License in order to legally use a BlueRush Product.
   14. “Personal Data” means data about an identifiable individual that is protected by privacy laws where the individual resides. Examples of personal data include name, religion, gender, financial information, national identifier numbers, health information, email addresses, IP addresses, online identifiers and location data.
   15. “Product Exhibit(s)” means the exhibit to these General Terms containing additional terms specific to the BlueRush Product(s) licensed to Customer.
   16. “Professional Services” means installation, implementation, data migration or other consulting services provided by BlueRush to Customer.
   17. “Purchase Order(s)” means an ordering document for a BlueRush Product issued by Customer or Reseller that contains at least the following information: product name, license quantity, subscription term, price, and billing contact.
   18. “Reseller” means a third party authorized by BlueRush to resell BlueRush Products directly to Customer.
   19. “Service” means any BlueRush Product licensed on a hosted basis as software as a service.
   20. “Software” means any BlueRush binary software programs licensed by BlueRush to Customer, together with all the Software Updates.
   21. “Software Update(s)” means each Software update and enhancement that BlueRush generally makes available at no additional charge to its customers who are current in payment of applicable Subscription Fees, or otherwise provides to Customer under this Agreement.
   22. “SOW” means each statement of work, engagement letter or other writing signed by BlueRush and Customer that describes the Professional Services and/or Deliverables provided by BlueRush. Each SOW shall reference this Agreement and will be subject to the terms and conditions hereof. Additionally, a BlueRush service brief identified in a Purchase Order is also considered an SOW but does not require a separate signature.
   23. “Subscription Fees” mean the fees paid by Customer for the right to use (and receive applicable Software Updates to) the applicable subscription based BlueRush Products for the Initial Term or Extension Term, as applicable.
   24. “Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
   25. “Templates” means the video or other templates included in the BlueRush Products. The Templates include without limitation demo content, designs, layouts, stickers, stamps, overlays, elements and other materials.
   26. “Term” means the Initial Term and any Extension Term applicable to each Purchase Order.
   27. “User” means Customer’s and its Affiliates’ employees, agents, contractors, consultants or other individuals licensed to use the BlueRush Product.
   28. “Work Product” means all work product including any Deliverables and/or Templates developed or created by BlueRush during the course of providing BlueRush Products, support or Professional Services to Customer. Notwithstanding anything herein to the contrary, Work Product shall not include any Customer Confidential Information, Customer Data, or Personal Data.

2. GENERAL LICENSE TERMS

   1. Subject to the terms of these General Terms and each applicable Product Exhibit, BlueRush grants to Customer and its Affiliates a worldwide, royalty-free, non-exclusive, time- limited, non-transferable (except to a successor in interest as permitted hereunder), limited license to access and/or use (as applicable) the BlueRush Products during the Term in the quantities specified in the applicable Purchase Order, and solely for Customer’s own internal business purposes. Customer may authorize subcontractors to access and/or use the BlueRush Products, subject to the number of Licenses authorized by the Agreement, provided Customer is jointly and severally liable for all acts and omissions of the subcontractors. Customer may use the Documentation in connection with the License granted hereunder.
   2. If Customer registers for any free version of the BlueRush Products made available by BlueRush, then, subject to these General Terms, BlueRush grants Customer a limited, personal, non-transferable, non-sub-licensable, internal license to use a reduced-feature version of the BlueRush Products (the “Free Service”). Customer will not be entitled to receive any support from BlueRush for its use of the Free Service. BlueRush may terminate Customer’s use of the Free Service at any time in BlueRush’s sole discretion and may accept or decline any request to use the Free Service in BlueRush’s sole discretion. ANY DATA CUSTOMER ENTERS INTO THE FREE SERVICE AND ANY CUSTOMIZATIONS CUSTOMER MAKES TO THE FREE SERVICE WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A PAID SUBSCRIPTION TO THE BLUERUSH PRODUCT. CUSTOMER DATA CANNOT BE EXPORTED FROM THE FREE SERVICE. NOTWITHSTANDING ANY OTHER PROVISIONS IN THESE GENERAL TERMS, ACCESS TO AND USE OF THE FREE SERVICE IS ON AN “AS-IS” BASIS WITHOUT ANY REPRESENTATIONS, WARNTIES AND/OR CONDITIONS OF ANY KIND. Additional terms and conditions applicable to the Free Service may appear on the applicable registration page for the Free Service. Any such additional terms and conditions are incorporated into these General Terms by reference.
   3. Customer specifically agrees to limit the use of the BlueRush Products to those parameters set forth in the applicable Purchase Order and Product Exhibit. Without limiting the foregoing, Customer specifically agrees not to: (i) resell, sublicense, lease, time-share or otherwise make a BlueRush Product (including the Documentation) available to any third party (except subcontractors); (ii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, a BlueRush Product or the data contained therein (including but not limited to hacking or penetration testing BlueRush’s systems); (iii) modify, copy or create derivative works based on a BlueRush Product; (iv) decompile, disassemble, reverse engineer or otherwise attempt to derive source code from a BlueRush Product, in whole or in part; or (v) access a BlueRush Product for the purpose of building a competitive product or service or copying its features or user interface.
   4. In addition, Customer agrees not to use a BlueRush Product, or permit it to be used, for purposes of: (i) product evaluation, benchmarking or other comparative analysis intended for publication outside the Customer organization without BlueRush’s prior written consent; (ii) infringement on the intellectual property rights of any third party or any rights of publicity or privacy; (iii) violation of any law, statute, ordinance, or regulation (including, but not limited to, the laws and regulations governing export/import control, unfair competition, anti-discrimination, and/or false advertising); (iv) propagation of any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; (v) sending or storing infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (vi) sending spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vii) committing any act that is detrimental to the good name and standing of BlueRush; and/or (viii) filing copyright or patent applications that include the Software and/or Documentation or any portion thereof.
   5. Customer shall indemnify and hold harmless BlueRush, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors and employees harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ reasonable fees and costs) to the extent arising out of or in connection with a claim resulting from breach of the appropriate use described herein or a claim alleging that the Customer Data infringes a third party copyright, patent, or a trademark, or has caused harm to the rights of a third party provided in any such case that BlueRush
      (a) promptly gives notice of the claim to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases BlueRush of all liability and does not adversely affect the BlueRush Products.

3. CONFIDENTIALITY

   1. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in a Purchase Order), the BlueRush Products business and marketing plans, technology and technical information, product designs, and business processes.
   2. “Confidential Information” shall not include information that (i) is or becomes a matter of public knowledge through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure without restriction on disclosure; (iii) is lawfully disclosed to the Receiving Party by a third party that lawfully and rightfully possesses such information without restriction on disclosure;
      (iv) the Receiving Party can document resulted from its own research and development, independent of receipt of the disclosure from the Disclosing Party; or (v) is disclosed with the prior written approval of the Disclosing Party.
   3. Receiving Party shall not (i) disclose any Confidential Information of the Disclosing Party to any third party, except as otherwise expressly permitted herein or (ii) use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement or in any manner that would constitute a violation of any laws or regulations, except with Disclosing Party’s prior written consent. The Receiving Party shall not make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in confidence and to take all precautions to protect such Confidential Information that the Receiving Party employs with respect to its own Confidential Information of a like nature, but in no case shall the Receiving Party employ less than reasonable precautions. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information. This Agreement will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to by law or valid order of a court or other governmental authority; provided, however, to the extent permitted by law, the responding party shall give prompt written notice to the other party to enable the other party to seek a protective order or otherwise prevent or restrict such disclosure and, if disclosed, the scope of such disclosure is limited to the extent possible.
   4. The Receiving Party will return all copies of the Disclosing Party’s Confidential Information upon the earlier of (i) the Disclosing Party’s request, or (ii) the termination or expiration of this Agreement. Instead of returning such Confidential Information, the Receiving Party may destroy all copies of such Confidential Information in its possession; provided, however, the Receiving Party may retain a copy of any Confidential Information disclosed to it solely for archival purposes, provided that such copy is retained in secure storage and held in the strictest confidence for so long as the Confidential Information remains in the possession of the Receiving Party.
   5. The parties acknowledge and agree that the confidentiality obligations set forth in this Agreement are reasonable and necessary for the protection of the parties’ business interests, that irreparable injury may result if such obligations are breached, and that, in the event of any actual or potential breach of Section 3, the non-breaching party may have no adequate remedy at law and shall be entitled to seek injunctive and/or other equitable relief as may be deemed proper by a court of competent jurisdiction.

4. PROTECTION OF PERSONAL DATA

   1. BlueRush will maintain administrative, physical, and technical safeguards for protection of the security and confidentiality of Personal Data, including, but will not be limited to, measures for preventing unauthorized access, use, modification or disclosure of Personal Data. Customer agrees to comply with the laws and regulations applicable to the processing of personal data in the country where they are collected. To this end, Customer shall be responsible for carrying out all mandatory reporting and/or consent requirements. Customer is hereby also informed that Customer Data, including Personal Data, that Customer transfers to BlueRush when using the BlueRush Products may, depending on the geographical location of the Users, cross borders as they are routed to the servers that host the BlueRush Products and store the Customer Data. Customer undertakes to inform the relevant Personal Data owners and data subjects, and to obtain any required prior consent. BlueRush’s current data security terms are described on BlueRush’s website at: https://www.bluerush.com/privacy-policy/

5. OWNERSHIP

   1. Customer retains all title, intellectual property and other ownership rights in all Customer Confidential Information, Customer Data and all data, text, files, output, programs, information, or other information and material that Customer provides, develops, makes available, or uses in conjunction with the BlueRush Products. BlueRush retains all title, intellectual property and other ownership rights throughout the world in and to the BlueRush Products, Documentation, any Service offering and unless otherwise agreed by the parties in writing, the Templates and Work Product. BlueRush hereby grants to Customer a non-exclusive, non-transferable, fully paid up, license to use the Work Product and Templates in connection with the BlueRush Product licensed under this Agreement and solely for Customer’s internal business purposes. Professional Services (and any resulting Work Product) are specific to the BlueRush Products and are not provided on a “work made for hire” basis.
   2. There are no implied rights and all rights not expressly granted herein are reserved. No license, right or interest in any BlueRush trademark, copyright, patent, trade name or service mark is granted hereunder. Customer shall not remove from any full or partial copies made by Customer of the Software, Software Updates and Documentation any copyright or other proprietary notice contained in or on the original, as delivered to Customer.
   3. Each party acknowledges that the BlueRush Products contain valuable trade secrets and proprietary information of BlueRush, that in the event of any actual or threatened breach of the scope of any of the licenses granted hereunder, such breach shall constitute immediate, irreparable harm to BlueRush for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach in addition to whatever remedies BlueRush might have at law or under this Agreement.

6. FEES, PAYMENT AND REPORTING

   1. Fees. Fees for the BlueRush Products will be the Subscription Fees and other fees set forth in the Purchase Orders (collectively, the “Fees”). The Fees stated in each Purchase Order shall be effective during the Initial Term specified in that Purchase Order; the Subscription Fees and other fees for each Extension Term shall be defined in the applicable Purchase Order or, in the absence of any such terms regarding Fees for Extension Terms, by mutual agreement of the parties.
   2. Taxes. Customer will be liable for payment of all Taxes that are levied upon and related to the performance of obligations or exercise of rights under this Agreement. BlueRush may be required to collect and remit Taxes from Customer, unless Customer provides BlueRush with a valid tax exemption certificate. The amounts received by BlueRush, after the provision for any Tax or withholding required by any country, will be equal to the amounts specified on the Purchase Order. In no event will either party be responsible for any taxes levied against the other party’s net income.
   3. Payment. Unless otherwise agreed between Customer and Reseller, all Fees due under a Purchase Order shall be due and payable within thirty (30) days of receipt of invoice. Except as otherwise expressly permitted herein, all Fees owed pursuant to a Purchase Order are non-cancellable and non-refundable for the Term. Any payment not received from Customer by the due date may accrue (except for amounts then under reasonable and good faith dispute) interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. BlueRush may decline to make any shipments of BlueRush Products or provide Services if, in BlueRush’s reasonable opinion, circumstances exist which raise doubt as to Customer’s ability or willingness to pay as provided herein. Failure to make timely payment may result in immediate termination of access to the BlueRush Products. Upon default by Customer, BlueRush will have all remedies available at law or in equity. No refunds will be made except as expressly provided for under warranties and intellectual property indemnity for the applicable BlueRush Product.
   4. Disputed Invoices. Customer shall have the right to withhold payment of any invoiced amounts that are disputed in good faith until the parties reach agreement with respect to such disputed amounts, and such withholding of disputed amounts shall not be deemed a breach of this Agreement, nor shall any interest be paid thereon. In such case, Customer shall promptly (and in no event more than ten (10) business days from receipt of invoice) provide written notice to BlueRush of any such dispute prior to withholding such payment, specifying in reasonable detail the nature of the dispute and the amount withheld, and shall pay all undisputed amounts set forth on such invoice in accordance with this Section. The parties will negotiate in good faith to attempt to resolve such disputes within thirty (30) days of submission of such dispute by Customer.

7. SUPPORT AND PROFESSIONAL SERVICES

   1. BlueRush shall provide support provided Customer is current in payment of the applicable Fees.
   2. BlueRush shall provide the Professional Services, if any, specified in one or more SOWs. All Professional Services shall be billed as stated in the applicable SOW and Customer agrees that, if Customer has not used the Professional Services within one (1) year of paying for such Professional Services, then BlueRush has no further obligations and Customer shall not be entitled to a refund except as set forth expressly in the applicable SOW.
   3. BlueRush warrants it will provide Professional Services in a professional and workmanlike manner consistent with good industry standards and practices. As Customer’s sole and exclusive remedy and BlueRush’s entire liability for any breach of the foregoing warranty, BlueRush will use reasonable efforts to re- perform the Professional Services or, if BlueRush is unable to do so, terminate the applicable SOW and refund that portion of any Fees paid to BlueRush or Reseller that correspond to the allegedly defective Professional Services.

8. TERMINATION AND EXPIRATION

   1. Either party may terminate the General Terms or Product Exhibit or any Purchase Order (i) immediately upon written notice if the other party commits a non-remediable material breach; or (ii)
      if the other party fails to cure any remediable material breach within thirty (30) days of being of notified in writing of such breach, unless such breach is for non-payment and then within five (5) days of such notice.
   2. Either party may terminate the General Terms and each Product Exhibit immediately by written notice if no Purchase Order is in effect.
   3. BlueRush shall also be entitled to terminate these General Terms or Product Exhibit or any Purchase Order and Customer’s rights to access and use the BlueRush Product(s) if Customer is: in breach of these General Terms; creating problems in respect to the operation of the BlueRush Product(s); creating legal liabilities (actual or potential) through Customer’s use of the BlueRush Product(s); acting inconsistently or in violation of any of BlueRush’s policies; infringing someone else’s intellectual property rights; engaging in fraudulent, immoral or illegal activities; or for other reasons that could have an adverse effect on BlueRush, its service providers or any other customers of BlueRush.
   4. On termination or expiration of the General Terms, all Software licenses and Service access granted under this Agreement shall automatically terminate with immediate effect.
   5. Unless otherwise set forth in the applicable Product Exhibit or Purchase Order, the Initial Term applicable to each Purchase Order (including follow-on orders) commences on the later of: (i) the date BlueRush ships a production Appliance to Customer, (ii) the date BlueRush processes the applicable Purchase Order for a BlueRush Product evaluated by the Customer, or (iii) for all other BlueRush Product orders, the date BlueRush sends to Customer an email indicating that the BlueRush Products are available for use (to the extent each of the foregoing applies to Customer’s engagement). Upon expiration of the Initial Term under each Purchase Order the subscription term applicable to such Purchase Order shall automatically renew for Extension Terms unless otherwise agreed by the parties or either party gives the other notice of non-renewal at least ninety (90) days prior to the end of the relevant subscription term.
   6. In the event of the termination or expiration of this Agreement, the provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive, including but not limited to Sections 2.2-2.5 (“License Restrictions”); 3 (“Confidentiality”); 5 (“Ownership”); 6 (“Fees, Payment and Reporting”); 8 (“Termination and Expiration”); 11 (“Limitation of Liability”); and 12 (“General”); and any accrued rights to payment shall remain in effect beyond such termination or expiration until fulfilled.

9. INTELLECTUAL PROPERTY INDEMNITY

   1. Indemnity. Subject to Section 9.3 below, BlueRush agrees to defend and indemnify Customer from and against any third-party claim filed against Customer alleging that the BlueRush Product(s), as sold and delivered to Customer pursuant to this Agreement (the “Indemnified Products”), directly infringe the valid intellectual property rights of a third party (a “Claim”). BlueRush agrees to pay any amounts finally awarded by a court of law in respect of such Claim or pursuant to its signed settlement. BlueRush may, at its sole election and expense: (i) procure sufficient rights to allow Customer continued use and exploitation of the Indemnified Products under the terms of this Agreement; (ii) replace or modify the Indemnified Products to avoid the alleged infringement; or (iii) if the foregoing options are not reasonably practicable, terminate Customer’s rights to use the Indemnified Products and refund all amounts paid by Customer to BlueRush attributable to Customers’ future usage or access to the Indemnified Products.
   2. Exclusions. BlueRush shall have no obligation or any liability to Customer for any Claim arising out of or related to: (i) modification or adaptation to the Indemnified Products; (ii) the use of the Indemnified Products in combination with any other third party products, services or devices (SUCH THIRD PARTY PRODUCTS, SERVICES OR DEVICES ARE SUBJECT TO THEIR RESPECTIVE LICENSE AGREEMENTS AND TERMS OF USE AND BLUERUSH DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT WITH RESPECT TO THOSE COMPONENTS OR SOFTWARE, INCLUDING BUT NOT LIMITED TO, ANY CLAIMS OF INTELLECTUAL PROPERTY RIGHT INFRINGEMENT); (iii) compliance with Customer’s specifications, instructions, functions, features or requirements, or any customization of an Indemnified Product made for or on behalf of Customer; (iv) use or exploitation of the Indemnified Products other than as set forth in this Agreement or applicable BlueRush Documentation; or (v) failure to implement any update, modification, or replacement to Indemnified Products as provided by BlueRush.
   3. Process. BlueRush’s obligations under this Section 9 are conditioned upon the following: (i) Customer first providing written notice of the Claim to BlueRush within thirty (30) days after Customer becomes aware of or reasonably should have been aware of the Claim (provided, however, the failure to provide such notice will only relieve BlueRush of its indemnity obligations hereunder to the extent BlueRush is prejudiced thereby); (ii) Customer tendering sole and exclusive control of the Claim to BlueRush at the time Customer provides written notice of such Claim to BlueRush, and (iii) Customer providing reasonable assistance, cooperation and required information with respect to defense and/or settlement of the Claim, including Customer providing BlueRush with access to documents and personnel at BlueRush’s request and expense. Customer may at its sole expense participate in the Claim, except that BlueRush will retain sole control of the defense and/or settlement. BlueRush shall not agree to any settlement of a Claim that includes an injunction against Customer or admits Customer liability without Customer’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
   4. The foregoing is the sole and exclusive remedy of Customer and the entire liability of BlueRush with respect to any Claim.

10. WARRANTIES, REMEDIES AND DISCLAIMERS

    1. Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and
       (ii) it shall comply with all applicable laws in its performance hereunder.
    2. Warranties specific to each BlueRush Product shall be set forth in an applicable Product Exhibit, executed by both parties.
    3. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE AND IN EACH PRODUCT EXHIBIT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BLUERUSH AND BLUERUSH LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES OF REGULATORY COMPLIANCE, PERFORMANCE, ACCURACY, RELIABILITY, AND NONINFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT.

11. LIMITATION OF LIABILITY

    1. EXCEPT FOR (i) THE PARTIES’ INDEMNIFICATION OBLIGATIONS; (ii) DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT; (iii) DAMAGES RESULTING FROM EITHER PARTY’S MATERIAL BREACH OF SECTION 3 (CONFIDENTIALITY); (iv) CUSTOMER’S BREACH OF SECTION 2 (“GENERAL LICENSE TERMS”), OR (v) CUSTOMER’S PAYMENT OBLIGATIONS, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE ANNUALIZED SUBSCRIPTION FEES PAID FOR THE APPLICABLE BLUERUSH PRODUCT. EXCEPT FOR (i) DAMAGES RESULTING FROM EITHER PARTY’S MATERIAL BREACH OF SECTION 3 (CONFIDENTIALITY) OR (ii) CUSTOMER’S BREACH OF SECTION 2 (“GENERAL LICENSE TERMS”), IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.

12. GENERAL

    1. Publicity. Neither party may issue press releases or otherwise publicize the parties’ relationship without the other party’s prior written consent, which shall not be unreasonably withheld.
    2. Independent Contractors; Relationship with Third Parties. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
    3. Notices. All notices shall be in writing to each party’s address on the signature page of this Agreement (or as updated by a party in writing to the other) and effective upon receipt.
    4. Entire Agreement; Integration. This Agreement constitutes the entire agreement of the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, any Purchase Order issued by Customer or Reseller shall be deemed a convenient order and payment device only and no terms (other than product name, license quantity, price, subscription term, and billing contact) stated in any Purchase Order shall be incorporated into this Agreement, and all such other terms shall be void and of no effect.
    5. Waiver. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
    6. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks.
    7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Product Exhibits hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party.
    8. Export Restrictions. Each party agrees to comply with all applicable regulations as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the BlueRush Products and BlueRush Confidential Information and any media, to assure that the BlueRush Products, BlueRush Confidential Information and media are not exported, imported or used in violation of law or applicable regulation.
    9. Applicable Law. This Agreement will be governed by the laws of the Province of Ontario Canada and the laws of Canada applicable therein, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby irrevocably consent to the exclusive jurisdiction and venue of the provincial or federal courts located in Toronto, Ontario Canada, for resolution of any disputes arising out of this Agreement
    10. Counterparts. These General Terms and each Product Exhibit may be executed by facsimile and in counterparts.
    11. Headings; Language. All headings used herein are for convenience of reference only and will not in any way affect the interpretation hereof. The English language version of this Agreement controls. It is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English.