The Application Services are designed to allow Client to access the Application Services via API’s or the Application Services User Interface from Client or Client’s applications, web connected devices or web properties with which Client has integrated the Application Services. End Users may use Client’s applications, mobile websites, web connected devices or web properties by giving Client the ability to collect data, media and other information provided by or on behalf of Client to the Application Services including Sensitive Information (collectively, “Client Content”). Bluefin does this in part by connecting to the End User’s device from Client’s server. Some information is automatically collected from or about End Users when Client uses the Application Services. If Client integrates a Bluefin Service in Client’s applications, mobile websites or web properties it may by default collect Client Content including but not limited to: the time of an event, the elements an End User has interacted with, metadata and other details about these elements including duration of interaction, how an End User came to Client’s site, what search engine and search keywords End Users may have used to get to Client’s site, information about the device an End User is on such as their operating system and browser, as well as the city/country location of End Users, tokens and IDs for push notifications.
Bluefin collects, stores, uses and accesses Client Content to maintain, improve and support the Application Services. Bluefin may also use Client Content in an encrypted and aggregated form (“Aggregated Data”) for Bluefin’s own business purposes, including use, duplication, modification and creation of derivative works regarding usage and performance of Aggregated Data which does not directly or indirectly identify Client or End Users. Bluefin shall own all right, title and interest to the Aggregated Data and any derivative works thereof. Bluefin only shares Client Content with others under special circumstances as follows:
- With third parties who work on Bluefin’s behalf to provide the Application Services;
- To the extent needed to comply with laws or to respond to lawful requests and legal process (provided that Bluefin will endeavor to notify Client if Bluefin has received a lawful request for Client’s information);
- In an emergency, including to protect the personal safety of any person;
- In connection with a sale or transfer of all or a part of Bluefin’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or
- As directed by Client, including through its use of the Application Services.
Bluefin provides the ability to delete Client Content upon request once a business need for the Content is no longer there (i.e. once chargeback period has passed in payment processing cycle). Upon cessation of Bluefin’s relationship with Client, business need, or in accordance with Bluefin’s eighteen (18) month Data Retention Cycle, Bluefin may delete Client Content no longer in active use. Bluefin agrees to maintain commercially reasonable technical and organizational measures designed to safeguard Client Content from unauthorized access, use or disclosure. These will include measures designed to: (i) store Client Content on servers located in a physically secured location and (ii) use firewalls, access controls and similar security technology designed to protect Client Content from unauthorized disclosure. Bluefin takes no responsibility and assumes no liability for any Client Content other than its express security obligations in this section.
Bluefin reserves the right and has absolute discretion to enforce the Terms. Bluefin may, in its sole discretion, immediately terminate or suspend: (i) the Services; (ii) a Service Agreement; and/or (iii) access to this Application Services, if it determines that your services, offerings or activities violate the Terms. Without limitation, Bluefin also reserves the right to report any activity (including the disclosure of appropriate data or merchant information) that it suspects may violate any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Bluefin also may cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct. If you want to report any violations of these guidelines, please contact Legal@Bluefin.com.
4. MODIFICATIONS TO THE APPLICATION SERVICES
Bluefin reserves the right to amend the Terms and modify or discontinue all or part of the Application Services, temporarily or permanently, with or without notice, and is not obligated to support or update the Application Services. The amended Terms shall become effective immediately after they are initially posted on this Application Services. Your continued use of the Application Services after the posting of the amended Terms on the Application Services constitutes your affirmative: (i) acknowledgment of the Terms and its modifications; and (ii) agreement to abide and be bound by the Terms, as amended. Should you object to any modifications of the Terms, your only recourse is to immediately: (i) terminate use of the Application Services and/or Services; and (ii) notify Bluefin of termination.
5. CONFIDENTIAL INFORMATION
“Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
- Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to the extent practicable, return or destroy all Confidential Information disclosed by the other party that is in its possession upon termination or expiration of this Agreement, upon request of the other party.
- Notwithstanding the foregoing, the provisions of Section 5.A. will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that, to the extent permitted by law, the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.
- If Client or its Authorized Users provide Bluefin any suggestions, recommendations, or other feedback relating to Bluefin’s current or future products or services (“Feedback”), Bluefin shall have the right to use the Feedback in any manner, including but not limited to future enhancements and modifications to the Application Services. Client hereby grants to Bluefin and its assigns a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner any for any purpose, in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Client or any third party. In addition, Bluefin shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to or acquired during provision of the Application Services.
6. INTELLECTUAL PROPERTY RIGHTS.
The Application Services are proprietary to Bluefin. All of the text, images, marks, logos and other content of the Application Services (“Application Services Content”) is proprietary to Bluefin or to third parties from whom Bluefin has obtained permission. Bluefin authorizes you to view, download, and print the Application Services Content provided that: (i) you may only do so for your own personal or authorized commercial use; (ii) you may not copy, publish or redistribute any Application Services Content without authorization; (iii) you may not modify Application Services Content without authorization; (iv) you may not remove any copyright, trademark, or other proprietary notices that have been placed in the Application Services Content by Bluefin. Except as expressly permitted above, reproduction or redistribution of the Application Services Content, or any portion of the Application Services Content, is strictly prohibited without the prior written permission of Bluefin. To request permission, you may contact Bluefin at Legal@Bluefin.com. You represent and warrant that your use of Application Services Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties.
7. WARRANTIES; DISCLAIMER OF WARRANTIES
Bluefin warrants to Client that the Application Services will perform materially in accordance with the applicable Service Agreement(s), documentation that accompany, or is available for the Application Services by Bluefin. Bluefin’s sole liability and Client’s exclusive right and remedy for a breach of the foregoing warranty is for Bluefin to correct or re-perform the nonconforming Application Services.
Client warrants that Client owns or has obtained all necessary rights, title and interest, and obtained all necessary consents, to transfer the Client Data to Bluefin and its data center provider(s) for the purpose of processing such Client Data in accordance with this Agreement.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, USE OF SERVICES PROVIDED BY BLUEFIN INCLUDING BUT NOT LIMITED TO THE APPLICATION SERVICES, ANY PROFESSIONAL SERVICES AND CLIENT SUPPORT SERVICES IS AT CLIENT’S SOLE RISK. SUCH SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BLUEFIN AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BLUEFIN DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ITS SERVICES, AND CLIENT RELIES ON SUCH SERVICES AT CLIENT’S OWN RISK. NEITHER DOES BLUEFIN GUARANTEE THE ACCURACY, USABILITY, COMPLETENESS, OR USEFULNESS OF ANY CUSTOM REPORT, AND CLIENT USES CUSTOM REPORTING FEATURES AT CLIENT’S OWN RISK. ANY MATERIAL THAT CLIENT ACCESSES OR OBTAINS THROUGH BLUEFIN’S SERVICES, INCLUDING CLIENT CONTENT, IS DONE AT CLIENT’S OWN DISCRETION AND RISK AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH BLUEFIN’S SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM BLUEFIN OR THROUGH OR FROM THE APPLICATION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8. LIMITATION OF LIABILITY
BLUEFIN AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF BLUEFIN HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM CLIENT’S USE OF THE APPLICATION SERVICES OR BLUEFIN’S PROVISION OF ANY OTHER SERVICES. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF BLUEFIN AND ITS AFFILIATES OF ALL KINDS ARISING OUT OF OR RELATED TO CLIENT’S USE OF THE APPLICATION SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS) OR BLUEFIN’S PROVISION OF ANY OTHER SERVICES, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT CLIENT HAS PAID TO BLUEFIN FOR CLIENT’S USE OF THE APPLICATION SERVICES FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
You agree to indemnify, defend and hold harmless Bluefin, its affiliates, directors, officers, shareholders, agents, contractors and employees, from any claim or demand, including reasonable attorneys’ fees and court costs, made by any third party due to, arising from or out of: (i) your use of the Application Services; (ii) your breach or alleged breach of any representation, warranty or other obligation; (iii) your violation or alleged violation of any applicable federal, state, international or local law and any and all regulations, rules or ordinances; (iv) the negligence or willful misconduct by you or your employees or agents; (v) any violation of the Terms to the extent applicable to you; (vi) your infringement of any intellectual property or other legal right of any person or entity; or (vii) your advertising, marketing, promotion, sale, or distribution of any products or services. In the event you cause fines and/or penalties to be charged to Bluefin by the Credit Card Associations or any other entity, you agree to reimburse Bluefin immediately for said fines and/or penalties.
10. SERVICES OFFERED BY BLUEFIN
When you obtain a Service from Bluefin, you accept the specific terms and conditions applicable to that Service in accordance with the applicable Service Agreement. Except as provided in the Service Agreement, Bluefin does not warrant that any service description or content contained in this Application Services is accurate, current, reliable, complete, or error-free.
11. GOVERNING LAW & JURISDICTION
You and Bluefin agree that all matters arising from or relating to the use and operation of this Application Services will be governed by the laws of the State of Georgia, without regard to its conflicts of laws principles. You agree that all claims it may have arising from or relating to the operation or use of this Application Services will be heard and resolved in the courts of Atlanta, GA, or as appropriate in accordance with Data Protection Legislation. You consent to the personal jurisdiction of such courts over it, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objections to proceeding in such courts.
In the event that any provision of the Terms shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of the Terms. Bluefin’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. In the event of a direct conflict between the Terms and the terms of the applicable Service Agreement, the latter shall govern. All terms not covered by the applicable Service Agreement, or those that have been updated, or amended, such as terms regarding Data Protection Legislation, shall be governed by the Terms.
All notices to be provided by Bluefin to Client under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Client on any Order Form; or (ii) by electronic mail to the electronic mail address provided for Client’s account owner. If you need to give notice to Bluefin, you must do so in writing by Courier or U.S. mail to: 8200 Roberts Drive, Suite 150, Atlanta, GA 30350, Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery if by electronic mail; or, if otherwise delivered, then upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above. If you have any questions or concerns about the Application Services or this Agreement, you may contact us by email at: Legal@Bluefin.com.