Master Subscription Agreement
- Last Updated: September 1, 2022
This Agreement governs Customer’s use and purchase of BloomTrak Services provided by BloomTrak LLC, a Virginia limited liability company and its Affiliates (“BloomTrak”).
1. Definitions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the outstanding voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement, any amendments, the Documentation (defined in Section 2.5 below) and applicable Order Forms.
“Subscription Fee” means the fee applicable to Customer’s subscription to a BloomTrak Service, excluding any one-time fees (e.g., implementation fees), Professional Service fees, and any Taxes (defined in Section 7.3 below).
“Beta Service” means a product, service, data, integration, or other feature that BloomTrak makes available to Customer to try at Customer’s option, and is designated as beta, limited release, preview, non-production, or other similar description.
“Customer Data” means employee information Customer or its Users loads or otherwise inputs into the BloomTrak Services (or provides to BloomTrak for loading or inputting into the BloomTrak Services on Customer’s behalf) or provided by Customer to BloomTrak to provide Professional Services.
“Documentation” means technical specifications and requirements and other information located at https://go.bloomtrak.com, including, without limitation, the Terms and Conditions which are specifically incorporated herein. Documentation does not include white papers or community forums but shall include user manuals and other written materials created by BloomTrak that describe the functionality and use of the BloomTrak Platform, including training manuals and how-to videos.
“Order Form” means BloomTrak’s standard ordering document that identifies the BloomTrak Services purchased by Customer.
“BloomTrak Data” means data owned by BloomTrak or otherwise acquired by BloomTrak from its Customers, including Usage Data, Aggregated Data (defined in Section 4.4 below), and any other data that is provided by BloomTrak (or its licensors) to Customer. BloomTrak Data is BloomTrak’s Confidential Information.
“BloomTrak Integration” means Customer’s use of any application programming interface (“API”) or other integration feature between a BloomTrak Service and a Third-Party Service provided by BloomTrak to Customer.
“BloomTrak Services” means the proprietary products and services of BloomTrak (including Data Sharing Services, BloomTrak Data and Professional Services) or its licensors, identified on an Order Form, and subsequently made available to Customer by BloomTrak in accordance with this Agreement.
“Professional Services” means implementation, onboarding, training, and other services related to the BloomTrak Services as identified on an Order Form. Descriptions of standard Professional Services are available in the Documentation.
“Service Period” means the period beginning on the start date of the Subscription Term and ending upon termination of the BloomTrak Services.
“Service Term” means the duration of Customer’s subscription to a BloomTrak Service as set forth on an Order Form and all Renewal Subscription Terms (defined in Section 6.1 below).
“Term” means the duration this Agreement is in effect as described in Section 6.1 below.
“Third Party Service” means applications, services, software, or other products supplied by a third party (excluding BloomTrak’s licensors and contractors) that Customer chooses to use with or integrate with a BloomTrak Service.
“Usage Data” means data and other information related to Customer’s use of a BloomTrak Service (e.g., the number of reports run, the frequency of log-ins, and User behavioral data, such as the types of searches run, and selections made by Customer).
“User” means Customer’s employees and vendors that are authorized by Customer to use and access the BloomTrak Services through Customer’s Account (defined in Section 2.1 below).
2. Provision and use of Bloomtrak Services
2.1 Provision of BloomTrak Services. During the Subscription Term, and subject to the terms and conditions of this Agreement, Customer may access and use the BloomTrak Services, as modified, enhanced, or updated from time to time, through a web browser using an account provided by BloomTrak to Customer (“Account”) solely for Customer’s internal use. Customer may not use its Account for provision of services to third parties.
2.2 Account Access. Customer will designate individuals authorized by Customer to manage, use, and support the Account, and will control creation and assignment of usernames and passwords to Users. Customer is responsible for maintaining the status of its Users and the confidentiality of all usernames, passwords, and other Account access information under its control. Customer will notify BloomTrak promptly if: (a) Customer reasonably believes that the Account has been compromised, including any unauthorized access, use, or disclosure of Account information; or (b) any other breach of security in relation to its passwords, usernames, or other Account access information may have occurred or is likely to occur. Customer remains responsible for compliance by its Users with all the terms and conditions of this Agreement, and any use of the BloomTrak Services by Users shall be solely for the benefit of Customer.
2.3 Use Restrictions. Except as expressly allowed under this Agreement (including Section 2.2 above), Customer will not: (a) permit any third party (other than Users) to access or use the BloomTrak Services; (b) create derivative works based on the BloomTrak Services; (c) copy, frame, or mirror any part or content of the BloomTrak Services, other than copying or framing on Customer’s own intranet for Customer’s internal business purposes; (d) decompile, disassemble, translate, reverse engineer, or otherwise attempt to derive source code or specific data from the BloomTrak Services, in whole or in part, nor will Customer use any mechanical, electronic, or other method to trace, decompile, disassemble, or identify the source code of, or specific data available through, the BloomTrak Services or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (e) access or use the BloomTrak Services to (i) develop or improve a competitive product or service, or (ii) copy any features, functions, content, format, graphics, modules, algorithms, arrangement, method of organization, method of interaction, or other design of the BloomTrak Services for itself, its Affiliates, or a third party; (f) sell, resell, rent, or lease the BloomTrak Services; (g) use the BloomTrak Services to store or transmit infringing, libelous, or other unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (h) store or transmit virus, malware, or other malicious or harmful code or files through the BloomTrak Services; (i) interfere with or disrupt the integrity or performance of the BloomTrak Services; (j) attempt to gain unauthorized access to BloomTrak Services or their related systems or networks; (k) disclose the results of any benchmarking or other performance testing of the BloomTrak Services to a third party without BloomTrak’s prior written consent or (l) exceed the scope of Customer’s subscription as specified on an Order Form.
2.4 Provision of Professional Services. Subject to the terms of this Agreement, BloomTrak may provide Customer the Professional Services set forth in an Order Form. BloomTrak’s performance of the Professional Services is contingent on Customer providing BloomTrak all necessary Customer Data and other information for BloomTrak to provide the Professional Services (including as described in the applicable Documentation) and Customer’s active and timely participation. Standard hours set forth in the Documentation for Professional Services are estimates only. The hours available (“Service Hour Limit”) to Customer during each Service Period are set forth in the applicable Order Form. If Customer exceeds the Service Hour Limit during a Service Period, BloomTrak’s then current rates for excess Service Hours will apply. Service Hours must be used during the Service Period set out in the Order Form and do not carry over to subsequent Service Periods or Renewal Subscription Term(s).
2.5 Documentation. BloomTrak Services are subject to the operational terms set forth in the Documentation. Documentation may be updated by BloomTrak from time to time in its sole discretion to include additional BloomTrak Services, new features, or to reflect updated operational processes.
2.6 Beta Services. BloomTrak may make Beta Services available to Customer. Customer may choose to participate in Beta Services in its sole discretion. Beta Services are intended for evaluation purposes only and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “BloomTrak Services” under this Agreement, but all restrictions, reservation of rights, Customer’s obligations concerning the BloomTrak Services, and rights granted by Customer to BloomTrak regarding Customer Data and Aggregated Data will apply equally to Customer’s use of Beta Services. Unless otherwise agreed by the parties, use of Beta Services expire on the date a version of the Beta Services becomes generally available without the applicable Beta Service designation. BloomTrak may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Beta Services are provided “AS IS” and BloomTrak will have no liability for any harm or damage arising out of a Beta Service, provided that Customer’s use of Beta Services shall not excuse BloomTrak’s obligations under this Agreement regarding Customer Data.
3. Responsibilities of each party
3.1 BloomTrak Responsibilities. During the Subscription Term, BloomTrak will: (a) use reasonable efforts to give at least 24 hours’ notice of planned downtime via Customer’s Account; (b) conduct its business in accordance with applicable laws; and (c) be responsible for the performance of its employees and contractors and their compliance with BloomTrak’s obligations under this Agreement.
3.2 Customer Responsibilities. Customer will: (a) be responsible for Users’ compliance with this Agreement; (b) be responsible for procuring at its expense the necessary hardware and Internet connection needed to access the BloomTrak Services; (c) be solely responsible for the accuracy and legality of Customer Data as used under this Agreement (including collecting any required privacy consents from its employees); (d) use reasonable efforts to prevent unauthorized access to, or use of, the BloomTrak Services through Customer’s Account, and notify BloomTrak
in the event of any unauthorized use or access; (e) provide assistance, information, data, and other resources reasonably necessary to enable BloomTrak to provide the BloomTrak Services; and (f) use the BloomTrak Services in accordance with applicable Documentation, this Agreement, and applicable laws. Customer’s failure to meet these requirements may impact Customer’s ability to use the BloomTrak Services and BloomTrak shall not be responsible for such impact.
4. Data Rights and Usage
4.1 Customer Data. As between BloomTrak and Customer, Customer owns all rights, title, and interest in and to all Customer Data, except where specific rights are expressly granted to BloomTrak. During the Term and subject to this Agreement, Customer grants to BloomTrak a license and right to host, access, process, display, copy, transmit, modify, create derivative works of, and otherwise use Customer Data in order to: (a) fulfill its obligations to Customer under this Agreement; (b) maintain, evaluate, secure, develop, market or improve the BloomTrak Services (e.g., develop enhanced BloomTrak Services features, research compensation trends); and (c) respond to and resolve a User’s request for customer support. Customer shall not provide to BloomTrak or upload to the BloomTrak Services sensitive data that is not necessary for BloomTrak to perform its obligations under this Agreement, such as social security numbers or other government identifiers, credit card numbers, bank account numbers, other financial information, or health information.
4.2 BloomTrak Data. As between BloomTrak and Customer, BloomTrak exclusively owns all rights, title, and interest in and to all BloomTrak Data and Customer may not use any BloomTrak data unless otherwise specifically permitted to do so by BloomTrak.
4.3 Usage Data. Customer agrees that BloomTrak may collect Usage Data, and BloomTrak may use Usage Data to develop, improve, support, market and operate its products and services during and after the Term of this Agreement.
4.4 Data Sharing Services. BloomTrak offers or plans to offer Data Sharing Services (e.g., agency usage and/or department-level spending surveys, etc) and Customer may elect to participate in these Data Sharing Services to access peer data provided by other BloomTrak customers. Customer agrees that BloomTrak may collect Customer Data stored in the BloomTrak Services (e.g., Customer’s employee and/or contractor data such as pay, job title, employee census information, personal information, and performance rating) to produce an aggregated data source (“Aggregated Data”). The Customer Data may be collected regardless of whether Customer participates in Data Sharing Services. In connection with providing the Data Sharing Services, Customer agrees that:
(a) BloomTrak may modify, analyze, share, license, assign, sell, and otherwise use Aggregated Data in any manner it chooses and for its own purpose (including, without limitation, to develop and offer various versions and cuts of BloomTrak Data); and (b) the Aggregated Data is BloomTrak’s property and Confidential Information.
(a) Participation. If Customer participates in Data Sharing Services, Customer agrees that its name will be listed and available to others as a part of the Data Sharing Services.Customer’s Aggregated Data may be grouped with other participants in specific data cuts or be able to be segmented with other participants based on specific attributes (e.g., number of employees, geographic location). Customer will have access only to the specific Data Sharing Services (e.g. shiftrak, spendtrak, or other specific data sets) that it selects and are listed on the applicable Order Form. Once BloomTrak’s Data Sharing Services are offered, these services will be listed in the Documentation and subject to the specific requirements outlined therein.
(b) Process and Data Accuracy. BloomTrak may review Aggregated Data for completeness and errors. Customer agrees to cooperate with BloomTrak on a timely basis to answer questions and to correct any identified problems, omissions, or errors. Despite BloomTrak’s review, Customer must undertake reasonable efforts to maintain the accuracy of its data. Problems with information quality or delays in providing information may delay implementation of Data Sharing Services.
(c) Opt-Out. Customer may opt-out of participating in the Data Sharing Services at any time by providing BloomTrak at least 45 days prior written notice, at which point Customer’s Aggregated Data and name will be removed at the next version release or update of the Data Sharing Services. If choosing to opt-out, Customer shall no longer have access to the Data Sharing Services. Notwithstanding the foregoing, Customer understands that Aggregated Data provided before Customer’s opt-out will remain a part of the versions of the Data Sharing Services previously released and Customer’s name will remain listed as a participant for such versions.
4.5 Reservation of Rights. BloomTrak retains all right, title, and interest in and to the BloomTrak Services (and any modifications or derivative works), including all underlying software, source code, data, design, modules, organization, format, algorithm, and other technology, and all logos and trademarks reproduced through the BloomTrak Services. This Agreement does not grant Customer any intellectual property rights in the BloomTrak Services or any of its components (including BloomTrak Data).
4.6 Feedback. Customer may submit suggestions, enhancements, requests, corrections, or other feedback related to the BloomTrak Services (“Feedback”). Customer agrees that all Feedback is given voluntarily. Absent a separate fully executed agreement, BloomTrak has not agreed to and does not agree to treat as confidential any Feedback Customer provides to BloomTrak, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict BloomTrak’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. Feedback will not be considered Customer’s Confidential Information or its trade secret.
4.7 Mobile Messaging. Customer acknowledges that the BloomTrak Platform can be used to send text messages and agrees to comply with the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations, 47 C.F.R. § 64.1200 et seq. and 16 C.F.R. § 310, including all applicable requirements regarding obtaining prior express consent before sending mobile messages using the BloomTrak Platform, ensuring recipients are informed how frequent the messages will be sent and that text message and data rates may apply, and ensuring recipients are provided the ability to receive help by texting HELP and to opt-out of receiving any further mobile messages on the BloomTrak Platform via one or more explicitly designated methods, which, at a minimum, shall include the following: (a) any opt- out keywords that are universally recognized, including, but not limited to, STOP, UNSUBSCRIBE, CANCEL, END, or QUIT; and (b) one or more alternative opt-out methods, including, but not limited to, via a web-based portal, telephone number, and/or email address established by Customer for the purpose of opting-out end users.
5. Third Party Offerings
5.1 Third-Party Services. Third-Party Services may be licensed directly through the BloomTrak Services. If Customer chooses to license a Third Party Service through a BloomTrak Service, its use of that Third Party Service is subject to the terms available in the Documentation that are applicable to such Third Party Services licensed via the BloomTrak Services. For all other Third Party Services, Customer agrees that BloomTrak is not responsible for Third Party Services. Use of a Third Party Service is subject to the terms and conditions of the provider of the Third Party Service.
(a) BloomTrak Integrations.
(i) BloomTrak may enable or make available BloomTrak Integrations on a non- exclusive basis solely to allow Customer to integrate a BloomTrak Service with a Third Party Service. Customer understands and agrees that the development, maintenance, use, and performance of a BloomTrak Integration are dependent on: (a) the API, software, application, or other service or support provided by the provider of the Third Party Service; and (b) the compatibility, format, and performance of the relevant Third Party Service.
(ii) Customer understands and agrees that by using a BloomTrak Integration, BloomTrak may pull, collect, access, provide or share data with the Third Party Service to enable, maintain, support, and improve the integration between the BloomTrak Service and the Third Party Service. Customer’s use of a Third Party Service is subject to the terms of the relevant Third Party Service. By enabling or using the BloomTrak Integration, Customer acknowledges that it understands and agrees to the terms of this Section.
6. Term and Termination
6.1 Term; Auto-Renewal. The Term starts on the date Customer agrees to its first Order Form and continues until all Order Forms have expired or have been terminated as allowed under this Agreement. Customer’s Subscription Term to the BloomTrak Services are set forth in the applicable Order Form. Except as otherwise specified in an Order Form, at the end of the then- current Subscription Term, Customer’s subscription to a BloomTrak Service will automatically renew for the shorter of (a) the same period agreed upon in the applicable Order Form, and (b) two years (each a “Renewal Subscription Term”) at BloomTrak’s then-current list price unless: (i) Customer provides written notice of non-renewal to BloomTrak at least 60 days before the start of a Renewal Subscription Term; or (ii) BloomTrak provides written notice of non-renewal to Customer at least 60 days before the start of a Renewal Subscription Term.
6.2 Termination for Cause. A party may terminate this Agreement (and all Order Forms) or a specific Order Form by written notice to the other party if the other party breaches its material obligation under this Agreement, and, if the breach is capable of cure, fails to cure the breach within 30 days after the notice is sent (notice must include specific detail of the breach). If Customer terminates this Agreement or an Order Form due to BloomTrak’s breach, then BloomTrak will refund Customer the prepaid Annual Subscription Fee applicable to the remainder of the terminated BloomTrak Services’ Service Period, prorated from the effective date of termination and Customer will not be liable for paying fees due for the unused portion remaining Subscription Term. If BloomTrak terminates this Agreement or an Order Form due to Customer’s breach, BloomTrak will not refund any amounts paid by Customer and Customer remains liable for payment of all fees due under this Agreement.
6.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to BloomTrak under an Order Form before such termination or expiration will be immediately due and payable except as provided in Section 6.2 above; (b) Customer must discontinue all access and use of the BloomTrak Services and promptly delete all copies of Documentation and BloomTrak Data in Customer’s possession; and (c) BloomTrak will discontinue providing Customer the BloomTrak Services and Customer will lose access to the Account. All provisions that by their nature should survive termination or expiration will do so (including payment obligations, indemnification and defense obligations, limitation of liability, and duties of confidentiality). At any time during the Subscription Term, Customer may export Customer Data stored in the BloomTrak Services in accordance with the Documentation. For up to 30 days after the end of a Subscription Term, following Customer’s written request, BloomTrak will grant Customer access to its Account for the sole purpose of exporting the Customer Data stored in the BloomTrak Service; provided, that, (i) if any assistance is required by Customer from
BloomTrak, Customer will pay BloomTrak current rates for such assistance, and (ii) following this 30-day period, BloomTrak will delete any Customer Data stored in the BloomTrak Services in accordance with its deletion policies and procedures, and Customer consents to this deletion.
7. Fees and Payment for Bloomtrak Services
7.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise provided in this Agreement or in an Order Form: (a) fees are based on BloomTrak Services purchased and not actual usage; (b) fees are quoted in United States dollars; and (c) payment obligations are non-cancelable, and fees paid are non-refundable.
7.2 Invoicing and Payment. Unless otherwise agreed upon in an Order Form: (a) Annual Subscription Fees will be invoiced in full and in advance annually; and (b) for other amounts due to BloomTrak under this Agreement, BloomTrak will invoice Customer in advance and in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due 30 days after the date BloomTrak provides the invoice to the email provided by Customer to BloomTrak. Customer will provide BloomTrak complete and accurate billing and contact information and will notify BloomTrak of any changes to this information. Unless otherwise specified in an Order Form, BloomTrak will automatically charge Customer’s payment information on file for any renewals, upgrades, or overage fees. If any invoiced amount is not received by BloomTrak by the due date, then without limiting BloomTrak’s rights or remedies, (i) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable law, whichever is lower, (ii) BloomTrak may suspend Customer’s access to the BloomTrak Services and stop providing any Professional Services. If an invoiced amount exceeds 30 days past due BloomTrak may refer collection of the unpaid amount to an attorney or collections agency and Customer shall pay reasonable attorney’s fees or collections agency fees. BloomTrak is not obligated to reinstate the BloomTrak Services if Customer pays past due amounts after being referred to collections. BloomTrak will not apply late interest or suspend Customer’s access to the BloomTrak Services if Customer is disputing applicable fees reasonably and in good faith and is cooperating with BloomTrak to diligently resolve the dispute.
7.3 Taxes. Customer is responsible for any applicable taxes, including sales, use, levies, duties, or any value added or similar taxes (collectively, “Taxes”) payable with respect to Customer’s order of BloomTrak Services assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in any Order Form, all fees, rates, and estimates exclude Taxes. BloomTrak is solely responsible for taxes based upon BloomTrak’s net income, assets, payroll, property, and employees. Notwithstanding the foregoing, if Customer is exempt from Taxes, concurrently with execution of this Agreement Customer shall provide BloomTrak with a certificate evidencing such exemption. If Customer’s status as an entity exempt from Taxes changes during the Term, Customer shall promptly notify BloomTrak.
8. Confidentiality
8.1 Meaning of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data, except for Aggregated Data that includes Customer Data as permitted under this Agreement. BloomTrak’s Confidential Information includes the BloomTrak Services and Documentation. Confidential Information of each party will include Order Forms, as well as business plans, technical information, product plans and designs, and business processes disclosed by such party. Confidential Information will not include any information that (a) is or becomes generally
known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information. The parties will have the right to disclose the existence but not the terms and conditions of this Agreement unless such disclosure is approved in writing by both parties prior to such disclosure or is made on a confidential basis as reasonably necessary to potential investors, acquirors, or regulators.
8.2 Standard of Care. Except as otherwise permitted in writing by Disclosing Party, Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), (b) not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, and (c) limit access to Confidential Information of Disclosing Party to those of its employees, contractors, advisors, and agents with a need to know or who need access for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as stringent to those in this Agreement.
8.3 Compelled Disclosure. A party may disclose the other party’s Confidential Information if required by applicable law or to comply with a court order or other governmental demand that has the force of law if, to the extent permitted by applicable law, the receiving party promptly notifies the disclosing party of that obligation prior to production so the disclosing party may seek a protective order or other remedy.
9. Data Processing and Protection
9.1 General Requirements. BloomTrak will maintain appropriate administrative, physical, and technical safeguards for the protection of the security and integrity of Customer Data.
9.2 Data Storage. Customer understands and agrees that the BloomTrak Services host, process, and otherwise store Customer Data on its servers or using the cloud infrastructure of third party providers. Third party providers shall meet or exceed the safeguards for the protection and security of Customer Data agreed upon by BloomTrak under this Agreement.
9.3 Data Processing Terms. Both parties agree to comply with applicable data privacy laws and regulations.
10. Warranties and Disclaimers
10.1 Mutual Warranties. Each party warrants to the other party that: (a) it has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) this Agreement does not conflict with any other agreement it is subject to and bound by; (c) it does not conduct business for any unlawful purpose, (d) neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement (provided that reasonable gifts and entertainment provided in the ordinary course of business do not violate this Section 10.1(d)), and (e) is in compliance with all applicable laws regarding anti-corruption, including the Foreign Corrupt Practices Act and the U.K. Bribery Act, and any other applicable state, federal, and international laws related to anti-corruption.
10.2 BloomTrak Warranties. BloomTrak warrants to Customer for Customer’s benefit only that: (a) the BloomTrak Services will operate in substantial conformity with then-current and applicable Documentation so long as Customer uses the BloomTrak Services in accordance with this Agreement and the Documentation and for the limited purpose allowed under this Agreement;
and (b) Professional Services will be performed in a professional manner in accordance with this Agreement. For any breach of the foregoing subsection (a), Customer’s sole and exclusive remedy will be for BloomTrak to use commercially reasonable efforts to correct the nonconformity in the BloomTrak Services. If BloomTrak determines this remedy to be impracticable, or otherwise is unable to provide a workaround within 30 days of Customer notifying BloomTrak of the defect, then Customer may terminate the applicable Order Form for material breach in accordance with Section 6.2 above. Customer acknowledges that BloomTrak Services are subscription-based and that to deliver an improved customer experience, BloomTrak may make changes to BloomTrak Services. In such event, BloomTrak will update applicable Documentation accordingly. BloomTrak does not warrant that the BloomTrak Services (including, BloomTrak Data) are accurate and free from all defects or errors.
10.3 Customer Warranties. Customer warrants to BloomTrak that: (a) it possesses all necessary licenses, permissions, and other rights in and to Customer Data to grant to BloomTrak the license and rights to Customer Data as expressly granted in this Agreement; (b) the billing information Customer provides to BloomTrak is accurate, current, and complete, (c) to the best of its knowledge, Customer Data provided to BloomTrak is accurate and complete, and (d) Customer will not use the BloomTrak Services to violate antitrust or competition laws and regulations.
10.4 Disclaimers. Customer acknowledges that: (a) BloomTrak Data is for general information only; and (b) Customer’s use of the BloomTrak Services does not constitute any form of advice, recommendation, representation, or arrangement (legal or otherwise) by BloomTrak or its licensors. Customer acknowledges that it is responsible for all of its decisions regarding compensation, salaries, and benefits regardless of its use of BloomTrak Services and Customer is encouraged to conduct independent due diligence and seek the assistance of a qualified legal professional in connection with such decisions. BloomTrak and its licensors do not warrant the access or use of BloomTrak Services in any specific situation or for any specific application, nor do they warrant that BloomTrak Data accessible through a BloomTrak Service will be always accessible or that it will be error free. Customer acknowledges that BloomTrak provides the BloomTrak Services to its customers to permit them to make independent decisions regarding benefits and compensation. Because the exchange of salary and benefit information among competitors may be construed in certain circumstances to facilitate an anti-trust violation or violation of relevant competition laws, BloomTrak has taken measures in the collection and distribution of this information to avoid such perceptions but does not warrant that the BloomTrak Data could not be used to violate antitrust law. Except as expressly provided in this Agreement, to the maximum extent allowed under applicable law, the BloomTrak Services are provided “AS IS” and “AS AVAILABLE,” and neither party makes any warranties of any kind, whether express, implied, statutory, or otherwise, and each party specifically disclaims all implied warranties, including, any implied warranties of merchantability, fitness for a particular purpose, non-infringement, or any warranties arising during course of performance.
11. Defense and Indemnification against Third Party Claims
11.1 Indemnification by BloomTrak. Subject to the terms and conditions set out in this Section 11, at its expense, BloomTrak will defend and hold harmless Customer against any third party claim (which, for purposes of this Agreement, is a claim brought by a party that is not a party to this Agreement or an Affiliate of a party to this Agreement) (“Third Party Claim”) brought against Customer arising from an allegation that the BloomTrak Services infringe or misappropriate a third party’s patent, copyright, or other intellectual property right (“Infringement Claim”). If a BloomTrak Service is subject to an Infringement Claim and as a result, Customer’s use of the BloomTrak Service is enjoined, BloomTrak will, at no cost to Customer, procure for Customer the right to continue using the BloomTrak Service or replace the BloomTrak Service with a non- infringing or modified alternative of materially equivalent functionality. If none of the foregoing options are available on terms that are commercially reasonable for BloomTrak, then BloomTrak may terminate Customer’s right to access and use of the BloomTrak Service subject to the Infringement Claim, and BloomTrak will refund Customer any prepaid Annual Subscription Fee for the unused portion of the appliable BloomTrak Service’s Service Period, prorated from the effective date of termination. BloomTrak’s obligations under this Section 11.1 with respect to any Third Party Claims will be comparatively reduced to the extent the Third Party Claim results from: (i) Customer Data if used by BloomTrak in accordance with this Agreement; (ii) any modification made to a BloomTrak Service by Customer, its Users, or a party other than BloomTrak (or BloomTrak’s contractors) without BloomTrak’s written consent if the Third Party Claim would have been avoided in the absence of such modification; (iii) the combination of a BloomTrak Services with other products not originally embodied in the BloomTrak Service as delivered by BloomTrak if such infringement would have been avoided by not combining with such products; (iv) Customer’s use of a BloomTrak Service in breach of this Agreement; or (v) Customer’s negligence or willful misconduct.
11.2 Indemnification by Customer. Subject to the terms and conditions set out in this Section 11, at its expense, Customer shall defend and hold harmless BloomTrak against any Third Party Claim arising from: an allegation that all or any part of the Customer Data infringes, misappropriates, or violates the intellectual property, privacy, or other proprietary or legal right of such third party; Customer’s use of a BloomTrak Service in breach of this Agreement; and an allegation by Customer personnel that the benefits or compensation chosen to be provided by Customer to such employee is discriminatory, inequitable, or otherwise unfair. Customer shall indemnify BloomTrak from the resulting costs and damages awarded against BloomTrak to the third party raising such Third Party Claim by a court of competent jurisdiction or agreed to in settlement. Customer’s obligations under this Section 11.2 with respect to any Third Party Claims will be comparatively reduced to the extent the Third Party Claim results from: (i) BloomTrak’s use of Customer Data in breach of this Agreement; or (ii) BloomTrak’s negligence or willful misconduct.
11.3 Process for Tendering Claims. The obligations of a party (“Indemnitor”) to defend and indemnify the other (“Indemnitee”) under this Agreement are subject to the following: (a) Indemnitee must promptly inform Indemnitor in writing of any Third Party Claim within the scope of Indemnitor’s defense or indemnity obligations set forth in this Agreement, provided that Indemnitor will not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that Indemnitor is prejudiced by any such failure to provide prompt notice; (b) Indemnitor will be given exclusive control of the defense of such Third Party Claim and all negotiations relating to the settlement thereof (except that Indemnitor may not make any admissions on Indemnitee’s behalf or settle any such Third Party Claim unless the settlement unconditionally releases Indemnitee of all liability); and (c) Indemnitee must reasonably assist Indemnitor in all necessary respects in connection with the defense of the Third Party Claim at indemnitor’s expense. Indemnitor’s obligations under this Section 11 will be limited to the extent to which a court of final jurisdiction finds that Indemnitee contributed to the Third Party Claim. If Indemnitee elects to participate in the defense of a Third Party Claim that Indemnitor is defending per this Section 11, then such defense shall be at Indemnitee’s sole cost and expense. Unless otherwise provided in the documentation, this Section 11 states Indemnitor’s sole liability, and Indemnitee’s exclusive remedy, with respect to the type of Third Party Claims described in this Agreement.
12. Limitation of Liability
12.1 Indirect and Consequential Damages; Aggregate Liability. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW AND SUBJECT TO SECTION 12.2 BELOW, A PARTY WILL NOT BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW AND SUBJECT TO SECTION 12.2 BELOW, A PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF, OR RELATED TO, THIS AGREEMENT (WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY) WILL BE LIMITED TO ACTUAL AND PROVEN DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER TO BLOOMTRAK UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
12.2 Exclusions to Limitation of Liability. The limitations set out in Section 12.1 above do not apply to: (a) amounts incurred by a party acting as an Indemnitor under Section 11 above; (b) Customer’s obligation to pay amounts due under this Agreement; (c) Customer’s use of a BloomTrak Services in violation of Sections 2.2 (Account Access) or 2.3 (Use Restrictions) above; or (d) actual and proven damages arising from the other party’s willful misconduct, fraud, or gross negligence.
13. General Provisions
13.1 Notices. BloomTrak may send announcements of general interest by email or by posting on its website or through Customer’s Account, such as notices of new features, scheduled downtime, or upcoming events. BloomTrak may provide Customer with legal notices by email to the address provided by Customer. Customer will promptly notify BloomTrak if its contact information changes. Customer will provide BloomTrak with legal notices by email to legal@bloomtrak.com.
13.2 Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the Commonwealth of Virginia, without regard to conflicts of laws provisions. The jurisdiction and venue for actions related to this Agreement or its subject matter will be the state and federal courts located in Charlottesville, Virginia, and both parties irrevocably consent to the personal jurisdiction of such courts and waive all objections thereto.
13.3 Assignment. Neither party may transfer or assign this Agreement, or any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld); except that a party may assign this Agreement in its entirety without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns.
13.4 Publicity. Customer agrees that BloomTrak may identify Customer as a BloomTrak customer in or on BloomTrak’s demonstrations, website, or other promotional materials. BloomTrak’s use of Customer’s name and logo will be in accordance with any guidelines provided by Customer. Upon Customer’s written request, BloomTrak will remove Customer’s name or any Customer marks from BloomTrak’s website, and to the extent feasible, BloomTrak’s marketing materials.
13.5 Remedies; Severability. Each party acknowledges that damages may be an inadequate remedy if the other party violates its obligations under this Agreement, and each party has the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated in this Agreement, the remedies provided in this Agreement 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, the provision will be modified by the court and interpreted to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
13.6 Force Majeure. A party’s performance of any part of this Agreement (except Customer’s payment obligations) will be excused to the extent that it is unable to perform due to natural disasters, terrorism, riots, insurrection, war, extraordinary governmental action, ISP Provider failures or delays, or any other cause which is beyond the reasonable control of such party (“Affected Party”), not avoidable by reasonable due diligence, and not caused by the Affected Party (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the Affected Party will (a) exercise commercially reasonable efforts to mitigate damages to the other party and to overcome the Force Majeure Event, and (b) continue to perform its obligations under this Agreement to the extent it is able.
13.7 Export Compliance. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using BloomTrak Services. Without limiting the foregoing,
(a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) Customer will not permit Users to access or use the BloomTrak Services in violation of any U.S. export embargo, prohibition, or restriction. Customer agrees not to export, re-export or transfer any part of the BloomTrak Services in violation of export laws and regulations.
13.9 Miscellaneous. Except as otherwise provided in this Agreement, there are no third party beneficiaries under this Agreement. Any claims against BloomTrak or its Affiliates under this Agreement may only be brought by the Customer entity that is a party to this Agreement. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. Customer agrees that its purchases of all BloomTrak Services under this Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by BloomTrak regarding future functionality or features.
13.10 Entire Agreement. This Agreement (including, without limitation, the Documentation) constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted, or otherwise delivered to Customer by BloomTrak in accordance with the provisions of this Agreement. If there’s a direct conflict between provisions in this Agreement, the conflict will be resolved by giving precedence to the provision as it appears in the highest-ranked document in the following order: (a) the relevant Order Form; (b) product-specific Documentation; (c) the body of this Agreement. No
terms or conditions included in any purchase order or order documentation (excluding Order Forms) provided by Customer, or as a part of Customer’s vendor set-up process, will be incorporated into, or form any part of, this Agreement, and all such terms or conditions are null and void even if such terms or conditions are accepted by BloomTrak or BloomTrak accepts payment from Customer.