End User License Agreement
Blue Willow Systems, Inc.
End User License and Consent and Assumption of Risk Agreement
Effective Date: September 15, 2016
BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE AND/OR ACCESSING AND USING THE ENTERPRISE PLATFORM, DOCUMENTATION AND BW DATA, YOU (ON BEHALF OF YOURSELF OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF THE USER) AS THE “USER” AGREE:
A. TO ALL THE TERMS OF THIS END USER LICENSE EULA (“EULA”) WITH BLUE WILLOW SYSTEMS, INC. (“BLUE WILLOW”) REGARDING USE OF THE ENTERPRISE PLATFORM, DOCUMENTATION, BW DATA AND USER DATA. BLUE WILLOW INCLUDES BUT IS NOT LIMITED TO ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSOR AND ASSIGNS.
B. YOU VOLUNTARILY AND KNOWINGLY CONSENT AND ASSUME ALL RISKS RELATING TO OR RESULTING FROM USE OF THE ENTERPRISE PLATFORM.
1. Introduction. Blue Willow provides to its Customer the Enterprise Platform consisting of Devices, Software and Service which, in turn, the Customer uses, and makes available to the User and permits User to use, solely for the Customer’s internal business purposes, in accordance with the Documentation, this EULA and all applicable laws and regulations. “Devices” means the wearable technology devices, hubs, connective materials, accessories, or other hardware provided to Customer by Blue Willow for use with the Services. “Software” means software in object code provided with the Devices (including Updates, Upgrades and derivatives thereof excluding third party software licensed under separate terms and conditions) used with the Devices and Service. “Service” means the Blue Willow’s cloud-based service used with the Devices and Software. “Documentation” means downloadable technical manuals, and all other user materials including specifications and requirements of the Enterprise Platform expressly excluding marketing and sales collateral and materials. “User” means the named individual who has agreed (directly or through an Authorized Representative) to be bound by the EULA and for whom a properly provisioned account and ID within the Enterprise Platform is issued, permissions established, and Subscription Fees paid to use the Enterprise Platform.
2. Consent and Assumption of Risk. User understands and agrees that, by using the Enterprise Platform, User:
A. Discloses data and information to the Customer, Blue Willow and third parties who are authorized or otherwise have a need to know such information (“Third Parties”) including but not limited to personally identifiable information, e.g, name, address, age, educational records and information and information regarding physical and mental health and capacity in any form or format excluding BW Data (collectively, “User Data”). “BW Data” means (i) feedback, data and information relating to or resulting from use of the Enterprise Platform by the Customer and the User, e.g. heart rate, accelerations, geographical location; and, (ii) recommendations for risk management and analytics derived from User Data.
B. Wears the Device that monitors, tracks, reports and sends Alerts meaning the automated messages or notifications sent to Customer, Blue Willow or Third Parties based on the Services Customer purchased from Blue Willow.
- The collection of User Data.
- Blue Willow the non-exclusive, fully paid up, perpetual, irrevocable and worldwide right to edit, alter, copy, exhibit, publish, distribute or otherwise use the User Data, in any form or format, for the Customer or Blue Willow’s internal business purposes and all other lawful purposes including but not limited to send Alerts, to support, maintain and improve the Enterprise Platform, for sales and marketing, to develop analytics alone or with third parties and to use and/or offer for sale resulting data, information and analytics on a depersonalized basis.
- User Data to be stored and co-mingled with the data and information from other users of Enterprise Platform.
- Photos, videos or audio of User’s likeness or voice relating to User’s use of the Enterprise Platform to be edited, displayed, exhibited and otherwise used publicly, in any form or format, posted on the intranet or internet for any lawful purpose; and,
- The audit of User’s use to confirm compliance with this EULA.
D. Unconditionally waives, releases and discharges Blue Willow from and against:
- any and all rights or claims to receive the payment any money or other compensation or attribution of any kind for providing or allowing use of the Use Data in accordance with this EULA and the right to inspect or approve any use of the User Data in any way or form;
- any and all claims or liability for damages for death, bodily or personal injury or property damage which I may have, or which hereafter accrue to me, against Blue Willow, directly or indirectly; and,
- any rights and benefits afforded to User by Section 1542 of the Civil Code of the State of California and, in doing so, User understand s/he is waiving and relinquishing any right as to claims unknown at the time this waiver is given: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
E. Accepts and assumes all risks, knowingly and voluntarily, foreseeable or not, relating to or resulting from use of the Enterprise Platform and is solely responsible for Customer and User’s use of the Enterprise Platform and all decisions made or actions taken or not based on use of the Enterprise Platform. For example,
- (A) Failure or dis-function of the Enterprise Platform or Customer’s equipment, networks or systems to send or receive an Alert; (B) failure or dis-function of the Devices, Software or Services or Blue Willow’s systems or networks; (C) Devices causing chafing, scratching or other personal bodily injury; (D) inaccurate, incomplete BW Data or User Data; (E) User outside of parameters of coverage; (F) failure to charge battery; (G) failure to insert charged and operating battery in Device; (H) failure to safeguard password; (I) disclosing or otherwise permitting unauthorized third parties to use User’s password; (J) failure to notify Customer promptly of any suspected or actual unauthorized use of User’s password; (K) failure to bring Warranty Services matters to Customer’s attention promptly; and (L) suspension or termination of use of the Enterprise Platform, in whole or in part.
- While Blue Willow uses commercially reasonable practices to guard against the unauthorized use or access of User Data or other confidential or proprietary information, User acknowledges and agrees: (A) the Internet is an open system, and, (B) Blue Willow, its licensors and service providers cannot and do not warrant or guarantee that third parties cannot or will not intercept or modify User Data or other confidential or proprietary information.
- User understands that accidents, injuries or death can arise out of or result from use of the Enterprise Platform from open and obvious or latent hazards and risks which include but are not limited to errors, defects, interruptions in Services resulting in bodily injury or death. Nevertheless, License knowingly and voluntarily, agree to assume all risks of bodily injury or death.
F. Uses best efforts to mitigate risks including but not limited to: (i) ensuring the Device is working properly at all times; (ii) fully charging the batteries; (iii) properly installing fully charged batteries in the Device; (iv) promptly notifying Customer of suspected or required support or maintenance requirements; or, (v) promptly notifying Customer of frayed or damaged bands on the Devices.
G. This Consent and Assumption of Risk is binding on User’s heirs, representatives, executors, administrators, or any other persons acting on User’s behalf or on behalf of User’s estate or dependents. Blue Willow may rely reasonably that this Consent and Assumption of Risk have been knowingly and voluntarily given by User or a third party authorized to do on User’s behalf (“Authorized Representative”) binding User to this EULA. This Consent and Assumption of Risk along with all other terms and conditions stated in this EULA including but not limited to disclaimers and limitations of liability are material inducements to Blue Willow granting use of the Enterprise Platform and BW Data to User.
3. License. In consideration of User’s Consent, subject to the terms of this EULA and payment of all applicable fees, Blue Willow hereby grants User during the Term: (a) a limited, non-sublicensable, non-transferable, non-exclusive license to use: (i) the Software only in conjunction with the Devices and Services, the Software and Devices only in conjunction with the Services and the Services solely for Customer’s internal business purposes in accordance with and subject to the Documentation and this EULA; and, (ii) the Documentation only in conjunction with the Enterprise Platform solely for User’s personal purposes; and, (B) the right to access and use the Services to provide User Data, allow Alerts to be sent and to use BW Data only in conjunction with the Enterprise Platform. All rights not expressly granted are reserved to Bue Willow.
4. Passwords. To access and use the Service, User will select and may change passwords. User is responsible for protecting the confidentiality of passwords. User agrees that Blue Willow has no liability with regard to the unauthorized use of such passwords. User agrees to notify Customer immediately if User has any reason to believe that the security of the account has been compromised and will assist in any investigation, remediation and reporting.
5. Restrictions. Except as expressly permitted by this Agreement, User will not, nor permit anyone else to, directly or indirectly:
- copy, modify, use or distribute the Software, Services, Documentation or BW Data;
- reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Enterprise Platform (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited);
- modify, adapt, alter, translate, or create derivative works of the Enterprise Platform or BW Data;
- rent, lease, or use the Enterprise Platform for timesharing or service bureau purposes, or otherwise on behalf of any third party (e.g. a managed service offering);
- remove or obscure any proprietary notices on the Enterprise Platform or Documentation and include such notices on all authorized copies of the Documentation;
- use the Enterprise Platform for performing comparisons or other “benchmarking” activities, either alone or in connection with any hardware, software or services or otherwise permitting a competitor access or use of the Enterprise Platform or BW Data;
- use the Enterprise Platform or BW Data, permit use of the Enterprise Platform or BW Data or provide User Data in violation of any applicable law, statute, ordinance or regulation (including, without limitation, those governing export control, consumer protection, unfair competition, privacy, antidiscrimination or false advertising), in a manner other than as provided for by this EULA or the Documentation, that is unlawful, tortious, infringing, defamatory, libelous, immoral, pornographic, obscene, vulgar, threatening, harassing, abusive, hateful, or harmful, contains any viruses, Trojan horses, worms, time bombs, cancel bots, or deleterious computer code, files, scripts, agents, or program that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information (“Malware”), that contains any incomplete, false, inaccurate, or misleading information or that constitutes spam or any other form of duplicative and unsolicited messages;
- create Internet “links” to or from the Enterprise Platform or “frame” or “mirror” any of the content which is contained in the Enterprise Platform;
- harvest, collect, gather or assemble information or data regarding third parties using the Enterprise Platform without Blue Willow and such third parties’ consent; or,
- j.interfere with, burden, or disrupt the integrity or performance of the Enterprise Platform or the data or content contained therein, or interfere with another's use and enjoyment of the Enterprise Platform.
6. Ownership. Blue Willow retains all right, title and interest in and to the Enterprise Platform, Documentation, Warranty Services, all BW Data, reports and analysis relating to or resulting from the User Data and any configurations, customizations, modifications, enhancements, improvements, updates, revisions, or derivative works thereof including all Intellectual Property Rights therein or thereto. Blue Willow is free to use or incorporate any feedback or other suggestions about the Enterprise Platform without any compensation, obligation or attribution. All rights not expressly granted hereunder are reserved to Blue Willow. Customer and Users retain ownership of Customer Data subject to the rights of use granted to Blue Willow in the EULA. “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trade secret rights; (c) patent and industrial property rights; (d) trademark and trade name rights; (e) other proprietary rights in intellectual property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
7. Warranty Services. Blue Willow will use commercially reasonable efforts to provide Warranty Services in accordance with the Exhibit C attached to the Sales & Service Agreement between the Customer and Blue Willow. User will bring all maintenance and support matters to Customer’s attention promptly.
8. Term and Termination.
a. Term. This EULA is in effect as of the date on which the Services are purchased by Customer and remains in effect for the period of time for which all applicable fees are paid by Customer (“Term”) unless earlier terminated as stated in the agreement between Blue Willow and the Customer.
b. Suspension. User acknowledges and agrees: (a) Blue Willow is not obligation nor responsible for liable for notifying User of the Term or earlier expiration or termination of the Term for any reason or no reason at all; and (b) notwithstanding any provision to the contrary, and in addition to all other remedies in law or equity, Blue Willow may suspend use of the Enterprise Platform, in whole or in part, without notice or liability, until a material breach of this EULA or any agreement between Blue Willow and the Customer is cured or this EULA or the agreement between Blue Willow and the Customer is terminated
c. Effect of Termination. Upon expiration or termination of the EULA for any reason: (i) User will stop using the Enterprise Platform and return the Devices to Customer or Blue Willow as instructed; (ii) Sections 1,2, 4 through 6, 8.b, 8.c, 9 through 12 survive.
a. HIPAA. While Blue Willow is not subject to nor governed by HIPAA, the Health Insurance Portability and Accountability Act of 1996 as amended, it uses commercially reasonable efforts to implement best practices as to privacy and security to safeguard User’s Confidential Information
b. Use of Confidential Information. Recipient agrees: (i) to use Confidential Information solely in accordance with the provisions of this Agreement; and (i) not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party, without Disclosing Party’s prior written consent. Recipient shall safeguard the Confidential Information using the same measures it uses to protect its own Confidential Information, but in no event less than reasonable care. “Confidential Information” means any information disclosed by one party (“Disclosing Party”) to the other (“Recipient”) which is marked or designated as confidential or which should otherwise reasonably be understood by the Recipient to be confidential or proprietary to the Disclosing Party and excludes depersonalized data or information. Feedback and benchmarking information is Blue Willow Confidential Information except to the extent used or disclosed publicly by Blue Willow.
c. Exceptions. Notwithstanding the foregoing, Recipient does not bear responsibility for safeguarding or not disclosing information that is: (i) publicly available or (ii) obtained from third parties not under confidentiality restrictions. Recipient may disclose the Confidential Information to the extent it is required to disclose such Confidential Information by order of a court or other governmental entity; provided, however, that Recipient shall use reasonable efforts to provide prompt, written, and sufficient advance notice thereof to Disclosing Party to enable Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
10. Disclaimer of Warranties. Blue willow, its licensors AND SERVICE PROVIDERS, MAKE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE ENTERPRISE PLATFORM, BW DATA, documentation and WARRANTY services INCLUDING but not limited to DISCLAIMING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. blue willow and its licensors make no warranty that the Enterprise Platform, ALERTS, DATA, DOCUMENTATION or WARRANTY services will meet Customer or USER’S requirements or be available on an uninterrupted, secure, or error-free basis or with regard to the safety, reliability, durability, quality, accuracy, timeliness OF THE ENTERPRISE PLATFORM, DOCUMENTATION OR BW DATA. customer and its users, knowingly and voluntarily, accept all risks relating to or resulting from use of the enterprise platform or BW data including but not limited to serious bodily injury or death.
11. Limitation of Liability. IN NO EVENT IS BLUE WILLOW, ITS LICENSORS OR SERVICE PROVIDERS, LIABLE TO CUSTOMER, USER OR OTHER THIRD PARTIES, FOR INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, OR USE, LOSS OR CORRUPTION OF ANY OR ALL DATA, SERVICE INTERRUPTION OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR RELATED TO THIS EULA WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABLITY OR OTHER LEGAL THEORY EVEN IF BLUE WILLOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL BLUE WILLOW, ITS LICENSORS OR SERVICE PROVIDERS’ TOTAL LIABLITY ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR FROM THE USE OF OR INABILITY TO USE THE ENTERPRISE PLATFORM OR BW DATA EXCEED THE AMOUNTS PAID FOR THE USE OF THE ENTERPRISE PLATFORM FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE OR $500.00 IF NO AMOUNTS ARE PAID OR PAYABLE HEREUNDER. THE CONSENT AND ASSUMPTION OF RISK, DISCLAIMERS AND LIMITATIONS OF DAMAGES STATED IN THE EULA ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BLUE WILLOW AND THE CUSTOMER AND USER.
12. General Provisions. The parties are and at all times will be and remain independent contractors as to each other, and at no time will either party be deemed to be the agent or employee of the other. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of any cause that is beyond the reasonable control of such party. This EULA and all matters arising out of or relating to this EULA shall be governed by the laws of California, excluding its conflict of law provisions. All disputes arising out of or in connection with this EULA will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California and the parties agree and submit to the exclusive jurisdiction and venue of these courts. Notwithstanding the foregoing, Blue Willow may apply to any court of competent jurisdiction for injunctive relief without the need to post bond and in addition to all other rights and remedies. If any provision of this EULA is held to be invalid or unenforceable, the remaining provisions of this EULA will remain in full force and effect. The prevailing party in any action or claim is entitled to an award of its reasonable attorneys’ fees and costs. Written notice is effective on receipt or rejection by a party. The waiver by either party of any default or breach of this EULA shall not constitute a waiver of any other or subsequent default or breach. If any provision of this EULA is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this EULA will otherwise remain in full force and effect. This EULA (including any EULAs or policies referenced herein) constitutes the complete EULA between the parties and supersedes all prior or contemporaneous EULAs or representations, written or oral, concerning the subject matter herein. User may not assign this EULA or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Blue Willow, and any attempted assignment in violation of the foregoing will be null and void. Blue Willow may assign this EULA to a successor which agrees to be bound by this EULA. This EULA will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Any required notice under this EULA will be given in writing and is effective upon receipt or rejection at the address of each party set forth above, or to such other address as either party may substitute by written notice to the other party. This EULA may not be modified or amended except in writing signed by a duly authorized representative of each party except that, from time to time, Blue Willow may change this EULA which changes are effective on the effective date stated in the changed EULA. No other act, document, usage or custom shall be deemed to amend or modify this EULA. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument.