IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE OR ARE NOT OTHERWISE AUTHORIZED, YOU ARE NOT PERMITTED TO USE THE WEBSITE OR SERVICES.
A. Who are we?
Blue Willow Systems, Inc. (“Blue Willow,” “we,” or “us”) offers a unique patent pending end-to-end resident and staff safety solution with specially designed wearable devices, access points, and a SaaS-delivered cloud platform to enable automatic fall detection monitoring, reporting, and alerts. Our solution complements existing solutions with fall detection, real-time location system and the collection, calculation and aggregation of events.
B. Content and Intellectual Property Rights.
1. The Website and its entire contents, features and functionality, including text, information, software, images, video and audio (and the design, selection and arrangement thereof), trademarks, service marks, name, logos or other identifier of Blue Willow and BW Data (as defined below) (collectively “Content”) are owned by Blue Willow or one or more third party licensors, and all such Content is protected by U.S. and international copyright laws. You may create a bookmark in your browser to the home page of the Website and may otherwise use the Content only as expressly permitted by these Terms of Service. Except as specifically permitted in these Terms of Service, nothing in these Terms of Service grant or will be construed to grant to you or any third party any title or interest in, or any license or right to use or reproduce, the Content contained in the Website or resulting from the Services. All rights not expressly granted in these Terms of Service are reserved to Blue Willow. No other rights or licenses, whether express, implied, arising by estoppel, or otherwise are conveyed or intended by these Terms of Service. Blue Willow reserves the right to discontinue or make changes to the Website or the Services or any Devices (as defined below) sold or provided by us through the Website or in conjunction with the Services at any time, in our sole discretion, without notice. The Website and the Content is not necessarily complete or up-to-date. Blue Willow is under no obligation to update such material.
2. Unauthorized or unapproved use of any Content constitutes copyright infringement which subjects you to civil and criminal penalties under United States and international laws and treaties.
C. Using the Website.
1. You are invited to read the Content on the Website for free, for your non-commercial, personal information and educational purposes, to learn about our Services. We encourage you to invite and point others to the Website including, by linking to the Website, provided that you do so in a way that is fair and legal and does not damage our reputation, and provided further, that you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent. You may purchase Devises and Services and license our Software (collectively, “Enterprise Platform”) including accessing and using BW Data (as defined below) as described in Section I. Content may not be used for any other purpose without our express written permission.
3. You will not, nor permit anyone else to, directly or indirectly:
(a) copy, modify, use or distribute the Software, Service, Documentation (all as defined in Section I) or Content;
(b) 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);
(c) modify, adapt, alter, translate, or create derivative works of the Enterprise Platform or Content;
(d) 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);
(e) remove or obscure any proprietary notices on the Enterprise Platform or Documentation and include such notices on all authorized copies of the Documentation;
(f) 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 Content;
(g) use the Enterprise Platform or Content, permit use of the Enterprise Platform or Content, 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 Terms of Service 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;
(h) create Internet “links” to or from the Enterprise Platform or “frame” or “mirror” any of the content which is contained in the Enterprise Platform;
(i) 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 User's use and enjoyment of the Enterprise Platform.
D. Advertisements and Links to Other Websites
The Website may contain links to other websites which connect you with other websites which are operated by parties over whom Blue Willow has no control. These links are provided only as a convenience to you, and Blue Willow does not assume any responsibility nor endorse such other websites. If you decide to access any of the third party websites linked to the Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
E. Digital Millennium Copyright Act
1. If you are a copyright owner or an agent of a copyright owner, and you believe that any Content on the Website infringes your copyright(s), then you may submit a notification pursuant to the Digital Millennium Copyright Act of 1998 (the “DMCA”) by providing our Designated Copyright Agent with the following information in writing (“Notice”):
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (the “Complainant”);
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Blue Willow to locate the material;
- information reasonably sufficient to permit Blue Willow to contact the Complainant, such as an address, telephone number, and, if available, an electronic mail address at which the Complainant may be contacted;
- a statement that the Complainant has a good faith belief that use of the material in the manner complained of is not authorized by the Complainant, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the Complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
“Infringement” means the unauthorized or not permitted use of copyrighted material or other intellectual property rights.
2. The above information must be included in the Notice and submitted to our Designated Copyright Agent by mail and email to the following addresses:
Blue Willow Systems, Inc.
Attention: DMCA Agent
409-244, 333 Ravenswood Avenue
Menlo Park, California, USA, 94025
3. If Your Material has been removed for alleged infringement and you believe it should not have been, you may send us a written counter-notice (“Counter-Notice”), which must include:
- A physical or electronic signature of the alleged infringer;
- Identification of the material removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the alleged infringer has a good-faith belief that the material was removed or access to it disabled as a result of error;
- The alleged infringer's name, address, and telephone number; and,
- A statement of consent to jurisdiction in federal district court and that the alleged infringer consents to service of process from the complaining party or its agent.
4. We will respond to all such notices in compliance with applicable law. We have the right to remove content alleged to be infringing, at our sole discretion, without prior notice.
5. Please also note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
F. Warranty Disclaimers.
G. Limitation of Liability.
You agree to defend, indemnify and hold Blue Willow, its affiliates, licensors and service providers, and its and their respective Personnel harmless against any losses, expenses, costs or damages (including its reasonable attorneys’ fees, expert fees and other reasonable costs of litigation) arising from or relating to bodily injury or death of a User or incurred as a result of, or in any manner related to your use of the Website, the Enterprise Platform or use of the Content other than as expressly authorized, or your negligence, breach of these Terms of Service or violation of any applicable law.
I. Enterprise Platform, Content and Warranty Services.
1.1 “Alerts” means the automated messages or notifications sent to Customer’s Computer based on Service(s) purchased by Customer.
1.2 “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, including, but not limited to, the source code, trade secrets, proprietary information included in the Enterprise Platform, feedback, benchmarks, credentials or passwords used for access to the Enterprise Platform, personally identifiable information, pricing and financial information, product plans, business plans, whether transmitted orally, in writing, or by any other media.
1.3 “Consent” means the written, voluntarily and knowing consent and assumption of risk from Users (or their authorized representative) to use the Enterprise Platform and agreeing to provide User Data to Blue Willow and permitting Blue Willow to use User Data in accordance with these Terms of Service which is posted at http://bluewillowsystems.com/EULA.
1.4 “Customer’s Computer” means the mobile devices (e.g. smartphones, tablets, laptops) or desktop computers owned or used by Customer to access Data and to receive Alerts.
1.5 “BW Data” means (a) feedback, data and information resulting from use of the Enterprise Platform by the Customer and its Users, e.g. heart rate, accelerations, geographical location; and, (b) recommendations for risk management and analytics derived from User Data.
1.6 “Devices” means the wearable technology devices, hubs, connective materials, accessories, or other hardware provided to Customer by Blue Willow for use with the Service.
1.7 “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.
1.8 “Enterprise Platform” means, collectively, the Devices, Service, and Software provided by Blue Willow in conjunction with and as needed to access and use the Service.
1.9 “EULA” means Blue Willow’s standard End User License Agreement which User signs and returns to Blue Willow or clicks through before using the Enterprise Platform and which may be updated from time to time as posted at http://bluewillowsystems.com/EULA or substantially similar terms to which the End User is bounds in using the Enterprise Platform.
1.11 “Service” means the Blue Willow’s cloud-based service used with the Devices and Software.
1.12 “Site” means the physical location at which the Enterprise Platform is being used.
1.13 “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.
1.14 “Subscription Fee” means the fee due and payable to Blue Willow by the Customer for use of the Service and Software which is in addition to the purchase price for the Devices and fees due for Support Services Program.
1.15 “Update” means a new release which includes bug fixes, patches and other minor changes in features and functionality and which Blue Willow makes available under its Support Services Program.
1.16 “Upgrade” means a new release of the Device, Software or Service which adds a new feature or functionality which Blue Willow makes generally commercially available under its Warranty Services or as it offers separately for an additional fee.
1.17 “User” means a named individual or authorized representative who has agreed 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.
1.18 “User Data” means data and information regarding the User 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.
1.19 “Warranty Services” means the limited warranty services, installation and training which Customer may purchase from Blue Willow as as posted at http://bluewillowsystems.com/ Warranty Services and which may be updated from time to time.
2. Purchase of Devices, Licenses and Support Services Programs.
Subject to these Terms of Service, Customer will purchase and Blue Willow will sell to Customer, the Devices, licenses to use the Software and the Service all as listed on the Order submitted to Blue Willow from time to time. Blue Willow may modify, add to or discontinue the Enterprise Platform, in part or in whole, in its normal course of business and will use commercially reasonable efforts to notify Customers of all such changes as posted at http://bluewillowsystems. Orders are subject to and governed by these Terms of Service. Additional or conflicting terms in an Order do not apply unless the parties so agree in writing. Orders are accepted if not rejected by Blue Willow within 5 business days of receipt and, once accepted, are non-cancellable.
3. Delivery of Devices.
Products will be packed in accordance with Blue Willow's standard practices and delivered to Customer FOB Destination (Incoterms 2010). Upon delivery, title to the Devices (but not to the Software, Service or Warranty Services), and all risk of loss and damage to Devices, pass to Customer. Delivery dates are not guaranteed and supply is subject to availability and Blue Willow's other obligations. Blue Willow will notify Customer if its requirements will not likely be satisfied, specifying the reasons for the expected delay and its anticipated duration. In no event will Blue Willow be liable for any damage or penalty for delay in delivery or for failure to give notice of delay. Delivery may be in advance of any scheduled delivery date upon reasonable prior notice to Customer. Customer will submit all claims for shortages or notice of other irregularities to Blue Willow within 10 days after delivery.
4. Software, Documentation, Service and Trademark.
a. License Grant. Subject to these Terms of Service, during the Term and the payment of all applicable fees, Blue Willow hereby grants Customer:
(ii) the right to access and use the Service to monitor, report and receive Alerts and to obtain BW Data for use only in conjunction with the Enterprise Platform;
(iii) permit its Users to use the Enterprise Platform in accordance with the EULA; and,
(iv) use of Blue Willow’s trademarks and services marks in accordance with Blue Willow’s guidelines for Customer’s sales and marketing purposes..
b. EULA and Consent and Assumption of Risk. Customer ensures that each Users to whom it permits access and use of the Enterprise Platform, in whole or in part, as a condition to such availability: (i) signs and delivers to Blue Willow the EULA or is otherwise bound by the then current version of the EULA or substantially similar terms and conditions; and, (ii) complies with the terms of the EULA. Customer will notify Blue Willow promptly of any violation and will assist in enforcing the EULA and remediating any breach as Blue Willow requests.
d. Security. Blue Willow uses commercially reasonable practices, including encryption and firewalls, to protect the security of the Service. However, Customer and its Users acknowledge that the Internet is an open system and Blue Willow cannot and does not warrant or guarantee that third parties cannot or will not intercept, copy or modify User Data, Customer or User Confidential Information or other Customer or User information.
e. Availability. Blue Willow uses commercially reasonable efforts to maintain availability of the Service 24 hours per day, 7 days per week subject to maintenance requirements. Notwithstanding the foregoing, scheduled and unscheduled interruptions may occur, and Blue Willow does not warrant or guarantee uninterrupted availability of the Service. Generally, routine Upgrades are scheduled for nights and weekends, Pacific Standard Time, and designed to cause a minimum amount of interruption to Service availability. Blue Willow reserves the right to modify or temporarily suspend use of the Service or portions thereof. Blue Willow may also impose temporary limits on certain features and services or temporarily restrict access to or use of parts of the Service for maintenance, support or system administration purposes without notice or liability.
f. Government Use. If Customer is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Software by the Government will be governed solely by the terms of these Terms of Service.
5. Use of User Data and BW Data.
a. User Data. Customer and its Users grant to Blue Willow the non-exclusive, fully paid up, perpetual, irrevocable and worldwide right to collect, edit, alter, copy, exhibit, publish, distribute, store, co-mingle with other data and information or otherwise use the User Data, in any form or format, depersonalized and anonymus (except as the parties first agree in writing) 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. Pursuant to the EULA, the User also consents to and grants Blue Willow use of 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 without accounting or approval.
b. BW Data. Blue Willow grants Customer and its Users the limited right to use the BW Data solely in conjunction with their authorized use of the Enterprise Platform during the Term.
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 User Data subject to the rights of use granted to Blue Willow in these Terms of Service. “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. Fees and Payment.
a. Subscription Fees. Customer must have a paid Subscription Fee for its use and each User. User subscriptions are for named users and may be reassigned to another User for the remainder of the then current Term. Blue Willow reserves the right to change fees or to institute new fees at any time of which Customer will be notified in advance of the effective date of such changes or new fees via electronic mail. Subscription Fees are due and payable in advance for the subscription period.
b. Subscription Period. Unless otherwise agreed in writing: (i) all subscriptions will begin and continue for the subscription period stated in the Order and, if not stated, for two years and automatically renew thereafter in one year increments until terminated (“Subscription Period”); (ii) any User subscriptions are added after the beginning of a Subscription Period will continue for the duration of that Subscription Period; and, (iii) pricing for such additional User subscriptions will be the same as that for the pre-existing User subscriptions, prorated for the remainder of the then-current Subscription Period.
c. Payment. Customer will pay Blue Willow the purchase price for Device, the Subscription Fees and all other amounts due and owing Blue Willow as stated in the Order plus all applicable taxes, shipping costs and insurance, in US Dollars within 30 days of the date of Blue Willow’s invoice without set-off or deduction. All amounts paid are nonrefundable. Late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Blue Willow may adjust payment terms following written notice to Customer.
d. Audits. During the term and for a minimum of three (3) years thereafter, Blue Willow or its independent third party auditor may audit the Customer’s upon Blue Willow’s request, to confirm if Customer is in compliance with this Agreement and payment of all amounts due to Blue Willow hereunder. Blue Willow will pay the expenses of the audit, unless such audit reveals either a material breach of a Customer’s obligation hereunder or an underpayment of five percent (5%) or more, in which case Customer will promptly pay Blue Willow’s the reasonable fees and expenses incurred for such audit. The results of an audit are Confidential Information and may be shared with Blue Willow’s licensors.
8. Term and Termination.
a. Term. The term begins on the Effective Date and remains in full force and effect for two years (“Initial Term”) and renews automatically thereafter in one year increments (“Renewal Term” or, collectively, with Initial Term, “Term”) unless earlier terminated in accordance with this Section. These Terms of Service Agreement may be terminated by a party: (i) providing the other party with written notice at least 30 days before the end of any Term; (ii) effective 30 days after the other party’s receipt or rejection of written notice describing a material breach of these Terms of Service and the other party fails to cure the material breach within the 30 day notice period or within 10 days’ prior written notice by Blue Willow for nonpayment; or (iii) a party’s insolvency or voluntary or involuntary bankruptcy.
9. Customer Responsibilities.
a. Customer warrants, represents and covenants: (i) it will use and permit the use of the Enterprise Platform and Documentation in compliance with all applicable laws and regulations, this Agreement and the EULA ; (ii) it will obtain all required consents and authorizations to ensure use of the Enterprise Platform and Document in accordance with all applicable laws and regulations and these Terms of Service and the EULA ; (ii) all User Data is accurate and complete and Customer will use commercially reasonable efforts to keep all such User Data up to date, accurate and complete; (iii) the collection, transmission or use of any User Data (including personally identifiable information) in conjunction with the Enterprise Platform and as otherwise contemplated by these Terms of Service does not infringe the rights or privacy of its User or any third party and is done with Consent and approval and in compliance with applicable law, regulation or directive; (d) it will maintain the Devices in accordance with the Documentation; (e) the Customer Computer and all related network and systems will be in good working order to access Data and receive Alerts at all times; and (f) it will notify Blue Willow promptly of any suspected or actual breach of security or unauthorized use or access to Blue Willow’s Confidential Information, BW Data or Enterprise Platform and cooperate in the remediation or reporting. Customer will use commercially reasonable efforts to back up and protect all User Data and its other data, information, systems and networks and guard against Malware.
b. Insurance. Customer will obtain and maintain as current through the Term: (i) the types of insurance coverage and limits of liability Blue Willow requires; and, (ii) all bonds, permits, licenses and certifications required to operate the Site and use the Enterprise Platform. Customer name Blue Willow as an additional insured to its liability insurance, waive subrogation against Blue Willow and provide notice of any cancellation or material change in coverage. Customer will provide a certificate of insurance on or before the Effective Date and annually thereafter as renewed or changed.
10. Assumption of Risk.
Customer, on behalf of itself, its officers, directors, employees, contractors, agents and Users, acknowledges and agrees:
a. To access and use the Enterprise Platform at its sole risk and expense.
b. There are risks relating to the use of the Enterprise Platform which include but are not limited to failure or dis-function of the Enterprise Platform or Customer’s equipment, networks or systems to send or receive an Alert, failure or dis-function of the Devices, Software or Service or Blue Willow’s systems or networks, devices causing chafing, scratching or other personal bodily injury, inaccurate, incomplete BW Data or User Data, User outside of parameters of coverage, failure to charge battery, failure to insert charged and operating battery in Device, failure to safeguard password, disclosing or otherwise permitting unauthorized third parties to use password, failure to notify Blue Willow promptly of any suspected or actual unauthorized use of password, failure to bring Warranty Services matters to Blue Willow’s attention promptly, and suspension or termination of use of the Enterprise Platform, in whole or in part.
c. To use best efforts to mitigate risks by implementing sufficient safeguards to protect against the risks of the Enterprise Platform, e.g. staffing, training on the Enterprise Platform, developing and implementing policies and procedures relating to the use, maintenance and support program of the Enterprise Platform (i.e. regular testing of the Devices and Service, updating Software, refreshing batteries, inspecting Devices), backup data, backup and redundancy and obtaining and maintaining sufficient insurance.
d. To ensure that each User signs the EULA or is otherwise bound by the then current version of the EULA or substantially similar terms and conditions before using the Enterprise Platform.
e. Any or all risks may result in serious bodily injury or death of a User.
f. It has had the opportunity to seek out the advice and guidance of legal counsel and all other professional advisors and accepts, knowingly and voluntarily, all risks, foreseeable or not, relating to or resulting from use of the Enterprise Platform and sole responsibility for Customer and its Users use of the Enterprise Platform and all decisions made or actions taken or not based on use of the Enterprise Platform.
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 Customer and Users’ Confidential Information.
b. Use of Confidential Information. Recipient agrees: (i) to use Confidential Information solely in accordance with the provisions of these Terms of Service; 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.
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.
d. Injunctive Relief. If Recipient breaches, or threatens to breach the provisions of this Section 12, Recipient agrees that Disclosing Party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
a. By Blue Willow. Subject to compliance with Section E, Blue Willow agrees to defend, or at its option, settle any third party claims, suit or proceeding brought against Customer on the issue of infringement of a U.S. copyright, patent or trademark by the Enterprise Platform (“Claim”) and pay all damages finally awarded or paid in settlement of such Claim (including reasonable attorneys’ fees and costs) subject to the limitations stated in this Section and provided Customer provides prompt written notice of a Claim, grants Blue Willow sole control of the settlement or disposition of the Claim and cooperates in the disposition of any Claim. If the Enterprise Platform is or may become the subject of any Claim such that Blue Willow believes use may be enjoined or use is enjoined judicially, Blue Willow will, at its option and expense: (i) procure for Customer the right to continue using the Enterprise Platform; (ii) modify or replace the Enterprise Platform so as to not be infringing; or, (iii) terminate these Terms of Service and refund all prepaid, but unused Subscription Fees for the infringing Enterprise Platform. Blue Willow is not liable for any costs, expenses or fees incurred without its prior written approval. Notwithstanding the foregoing, Blue Willow has no liability with respect to any infringement claims arising out of (A) use of the Enterprise Platform in combination with any other hardware, software/applications or systems; (B) modifications; (C) not using the most current version of the Enterprise Platform; or (D) use of Enterprise Platform other than in accordance with the terms of these Terms of Service or Documentation. THIS SECTION 12.a REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF BLUE WILLOW, ITS LICENSORS AND SERVICE PROVIDERS, AND THE EXCLUSIVE REMEDY OF THE CUSTOMER FOR INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY.
b. By Customer. Customer will defend, indemnify and hold Blue Willow harmless against any claim, cause of action, liability, loss or damage (including attorneys’ fees and costs) resulting from or relating to bodily injury or death of a User, Customer and Users’ negligence, breach of these Terms of Service or violation of any applicable law or regulation.
L. PRESS RELEASES.
Blue Willow may use Customer’s name and logo and photographs, videographs, written statements, audios and all other forms of media (collectively, “Media”) in any form or format, including social media sites such as but not limited to Facebook, LinkedIn and Twitter, including pictures of the facilities and residents in Blue Willow’s marketing program including use on Blue Willow’s website, marketing literature, and in press releases without payment or any other consideration or approval.
M. GENERAL PROVISIONS.
3. Governing Law, Attorneys Fees and Compliance. These Terms of Service are governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions. The prevailing party in any action relating to these Terms of Service is entitled to recover its reasonable attorneys’ fees and costs.
4. Independent Contractors. The parties are independent contractors, joint venturers or partners of each other and not the employer, employee, agent or representative of the other party.
5. English Language. The English version of these Terms of Service governs. All disputes, claims and causes of action (and related proceedings) will be communicated in English.
6. Changes to These Terms of Service. We may revise and update these Terms of Service from time to time in our sole discretion. If we make a material change to these Terms of Service, we will post a notice of those changes on the Website or notify you by email (sent to the email address specified in your account) prior to the change becoming effective. You are bound by changes to these Terms of Service when you use the Website after those changes have been posted on the Website or have been emailed to you. We encourage you to periodically review this page for the latest version of these Terms of Service.
7. Contact Us. If you have any questions about these Terms of Service, the practices of the Website, the Services offered through the Website or your dealings with the Website, including any bugs or actual or potential threats to the security of the Website and protection of your Personal Information, please contact us at email@example.com or 409-244, 333 Ravenswood Avenue, Menlo Park, California, USA, 94025, Telephone: (877) 789-9657.