Terms and Conditions

Last Updated: January 10, 2019

END USER TERMS OF USE

 

IMPORTANT!  THESE END USER TERMS OF USE (THESE “TERMS OF USE”) GOVERN YOUR USE OF THIS SITE AND THE SERVICES (AS DEFINED BELOW) AND CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND BLUHORN LLC, A FLORIDA LIMITED LIABILITY COMPANY HAVING ITS PRINCIPAL ADDRESS AT 1611 SAN MARCO BLVD., JACKSONVILLE, FLORIDA 32207, AND ITS SUCCESSORS AND ASSIGNS (COLLECTIVELY, “BLUHORN”).  PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE ACCESSING OR USING THIS SITE OR THE SERVICES. THESE TERMS OF USE CONTAIN LIMITATIONS ON BLUHORN’S LIABILITY AND DAMAGES RECOVERABLE BY YOU, WAIVERS OF WARRANTIES AND OF INDIVIDUAL CLASS ACTION AND JURY TRIALS AND THE EXCLUSIVE FORUM AND VENUE FOR DISPUTES IS ARBITRATION WHICH WILL TAKE PLACE IN DUVAL COUNTY, JACKSONVILLE, FLORIDA.

 

BY LOGGING INTO OR USING THE SERVICES, YOU ARE INDICATING YOUR ACCEPTANCE OF AND AGREEMENT TO BE LEGALLY BOUND BY THESE TERMS OF USE.  IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE SERVICES.  

 

IF YOU ARE LOGGING INTO OR USING THE SERVICES IN CONNECTION WITH YOUR EMPLOYMENT FOR AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY TO THESE TERMS OF USE, AND THESE TERMS OF USE SHALL BE LEGALLY BINDING ON YOU AND THAT ENTITY.

 

YOU MAY NOT USE THIS SITE OR THE SERVICES UNLESS YOU ARE AT LEAST 18 YEARS OF AGE OR OLDER. 

Will BluHorn ever change these Terms of Use?

BLUHORN MAY MODIFY THESE TERMS OF USE AT ANY TIME.  THE DATE OF THE LAST UPDATE TO THESE TERMS OF USE IS SET FORTH ABOVE AND SHOULD BE CHECKED BY YOU PERIODICALLY.  BLUHORN WILL ALSO PROVIDE YOU WITH NOTICE OF ANY UPDATES TO THESE TERMS OF USE, WHICH NOTICE MAY BE PROVIDED ELECTRONICALLY VIA THE SERVICES OR VIA EMAIL.  YOUR CONTINUED USE OF THE SITE AND SERVICES WILL CONSTITUTE YOUR ACCEPTANCE OF ALL CHANGES TO THESE TERMS OF USE. IN THE EVENT YOU DO NOT AGREE TO ANY UPDATES TO THESE TERMS OF USE, YOU SHOULD CEASE ALL USE OF THE SITE AND SERVICES.

 

What about my privacy?

In addition to these Terms of Use, please also review our Privacy Policy at https://bluhorn.com/bluhorn-privacy/ and our Copyright Dispute (DMCA) Policy at https://bluhorn.com/dmca-policy/.

 

What defined terms should I know when reading this Agreement?

The following terms shall have the meanings specified or referred to below.  Defined terms may be used either with the first letter(s) capitalized or with the first letter(s) in lowercase.

 

“Site” means this website and includes all web, mobile, and versions hereof, and any other websites owned or operated by BluHorn that are linked or referenced within this Site, or used to access or use the Services.

 

“Services” means all software, applications, programs, services, information, data, personal information, and other content made available for Your use via the Site along with any input, information, data or content stored, processed or otherwise contained therein and any other services or features offered in connection with any of the foregoing, and includes the internet-based media software integrated suite of tools offered through the Site.

 

“Us,” “We,” or “Our” means BluHorn.

 

“You” or “Your” means any person, business or entity using the Site or Services.

 

How may I use the Services and the Site?

Your use of the Services is limited to the right to access and use the Services for Your own individual business purposes as expressly authorized under these Terms of Use.  No right to sub-license or sub-let is granted under these Terms of Use. You shall take all steps necessary to protect all user logins and passwords, to safeguard the security and integrity of the Services, and to protect against unauthorized access and use.  You shall immediately notify BluHorn of any violation of the foregoing. Any access to the Services using Your login and password shall be deemed access by You.

 

Your use of the Site or Services may require You to login or maintain a user account, which may be owned, controlled or issued by a third party with whom You have a relationship.  Your relationship with any such third party is subject to a separate written agreement between You and such third party, and BluHorn is not a party to or bound by any such agreements.

 

You must provide true, accurate, and current information, and maintain and update this information and ensure that it remains true, accurate, and current. You consent to receive personalized emails, telephone calls and other communications from BluHorn.

 

You understand that by using the Site, You consent to the collection, use and disclosure of personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have that information collected, used, transferred to and processed in the United States and other countries, where applicable.

 

The Site may contain links to third-party websites, advertisers, services, listings, special offers, or other events or activities that are not owned or controlled by BluHorn.  BluHorn does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If You access a third party website from the Site or Services, You do so at Your own risk, and You understand that these Terms of Use and Our Privacy Policy do not apply to Your use of such sites or third parties.  You expressly release, waive, relieve and hold harmless BluHorn from any and all liability arising from Your use of any third-party website, service, or content. Additionally, Your dealings with or participation in promotions of advertisers found on the Site, including payment and delivery of goods, and any other terms (such as warranties) are solely between You and such advertisers.  You agree that BluHorn shall not be responsible for any loss or damage of any sort relating to the Your dealings with such advertisers or other third parties.

 

You agree to, at all times, comply with all applicable laws, regulations, restrictions and rules in connection with accessing and using the Site and Services, including all laws, regulations, restrictions and rules involving private data and applicable export controls.  In particular, You will not use this Site or the Services in any country in any manner prohibited by the United States Export Administration Act or any other export laws, regulations, restrictions and rules. You represent and warrant that You are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan and North Korea) and that You are not otherwise prohibited from using the Site or the Services in any manner under any export laws, regulations, restrictions and rules.

 

You will not use the Site or Services for any illegal purpose or in violation of any law or regulation, or to transmit, receive, download, upload or solicit: (a) any of Your Data (as defined below) or other materials which may violate any copyright, trade secret, trademark, service mark or any other intellectual property rights or rights of privacy or publicity of any person or entity; (b) any of Your Data or other materials containing any destructive or interfering programs, applications, or instructions; or (c) any of Your Data or other materials which may subject You or BluHorn to civil or criminal liability.

 

You shall not provide or disclose to BluHorn or upload, submit or otherwise provide to the Site or the Services, and none of Your Data shall include or contain, any health information, personal health information (PHI), personally identifiable information (PII), payment card or similarly sensitive personal information that imposes data security obligations on the processing of such data or information except as expressly authorized in these Terms of Use.

 

You agree to abide by all copyright and other restrictions placed on any data, information or content available via the Services including any material or data compilations where BluHorn or others hold the copyright or other intellectual property or proprietary rights.

 

What do the Services cost?

The Services and certain of the Site are provided to You on a monthly, annual or other fixed term subscription basis as agreed between You and BluHorn.  You agree to pay all fees (“Fees”) for the Services and Site as follows: (a) if provided on a monthly basis, You agree to pay on a monthly basis in advance prior to the start of each month; and (b) if provided annually or other fixed term, You agree to pay in advance the full amount for the full term of Your subscription.  By subscribing to the Site or Services, You authorize BluHorn, or its chosen third-party service provider on behalf of BluHorn, to charge the applicable Fees to Your credit card, debit card, ACH, on-line payment account or any other designated payment method continuously and without prior notice during the full term of Your subscription period. These Terms of Use will automatically renew for additional renewal terms of equal length to the initial subscription period unless either party provides written notice of its intent not to renew at least thirty (30) days prior to the end of the then in-effect term. All subscription renewals shall be at the then prevailing rates and charges. You acknowledge and agree that the renewal price may be higher or lower than the Fees You paid previously and that BluHorn is authorized to preauthorize monthly payments for the entire subscription period and charge Your designated payment method on file with BluHorn or its third party service provider. Any portion of the Fees not paid within five (5) business days of it being due, will cause all Fees owed for the applicable subscription period to accelerate and become immediately due and payable, and will accrue interest at the rate of 1.5% per month or the highest rate permitted by law, if less, from the due date until paid.

 

Notwithstanding anything to the contrary in these Terms of Use, You are solely and absolutely responsible for the accuracy of the information You provide regarding Your designated payment method and must promptly inform BluHorn of any changes thereto. You acknowledge and agree that BluHorn may share information related to Your designated payment method with certain third party service providers that assist BluHorn in providing the Site and Services including, without limitation, third party payment processors.  To the fullest extent permitted by law, You hereby waive any and all rights to dispute, reverse, set off, abate, or otherwise contest the Fees with BluHorn or any applicable bank, credit provider, or other entity. All Fees are in United States dollars and are non-refundable. The Fees do not include any national, state or local sales, use, value-added or other taxes, customs duties or similar tariffs and fees that BluHorn may be required to pay upon delivery of the Site or Services and You will be responsible for paying those amounts.

 

What activities are prohibited?

You shall not: (a) reproduce, duplicate, disseminate, copy, modify, translate, or create derivative works based on the Site or Services; (b) sell, rent, lease, loan, distribute, pledge, assign, or otherwise transfer or encumber rights to the Site or Services, or otherwise disclose the Site or Services to any third party or use the same for the purpose of commercial timesharing, service bureau or other rental or sharing agreements with or for the benefit of any third party or customer; (c) use the Site or Services for any use other than the expressly authorized use set forth above, including to conduct electronic, individual or bulk transfers, migrations, downloads or extractions of data, records, files or information from the Services; (d) reverse engineer, decompile, disassemble, circumvent the security and restrictions, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Site or Services; (e) remove or otherwise alter any proprietary notices or labels from the Site or Services or any portion thereof; (f) use the Site or Services to create any product or service; (g) use the Site or Services if You are a competitor of BluHorn, except with BluHorn’s prior written consent, (h) design, build or develop any product or service that competes against the Site or Services or that provides the same or similar services or functionality as the Site or Services; (i) violate the security of any computer network, or crack, hack or circumvent any passwords or security encryption codes, (j) run any mail-list, listserv, any form of auto-responder or “spam” on the Site or Services, or any processes that run or are activated while You are not logged into the Site or Services, or that otherwise interferes with the proper working of the Site or Services (including, without limitation, by placing an unreasonable load on the Site’s or Services’ infrastructure), (k) through the use of manual, automated or any other means, engage in action that “crawls,” “scrapes,” or “spiders” any page, data or portion of or relating to the Site or Services, (l) perform, monitor, analyze or disclose the Site’s or the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes, or (m) otherwise use the Services in any way not expressly provided for by these Terms of Use.  You will use the Services only in compliance with: (i) these Terms of Use; and (ii) in accordance with all applicable laws, rules and regulations.

 

How may BluHorn terminate my use of the Site or Services?

BluHorn shall have the right, in its sole discretion, to terminate this Agreement at any time for any reason, cease doing business with You or any business, person or entity and/or to terminate or suspend Your access to the Service, or any part thereof, temporarily or permanently, at any time and from time to time, and with or without notice, for any reason whatsoever including for record keeping, non-payment by You, quality assurance, or if BluHorn believes that You have violated or acted inconsistently with the letter or spirit of these Terms of Use.  Additionally, BluHorn reserves the right to refuse to do business with You or any business, person or entity in its discretion, consistent with local, state and federal laws. You also agree that BluHorn will not be liable to You or to any third party for any modification or termination of access to the Services.

 

Will BluHorn provide updates to the Services?

BluHorn may maintain, correct and modify, and may upgrade and update the Services (collectively, “System Updates”); provided, however, that the nature, substance, content, timing, manner and release of System Updates, if any, shall be in the sole and absolute discretion of BluHorn.  System Updates may reduce the features, services or functionality of the Site and Services. System Updates shall be included within and as part of the Services. System Updates may also reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of Third Party Resources.  System Updates may also include additional features, functionality or services that may be subject to additional fees and charges.

 

What happens if this Agreement is terminated?

Upon termination, cancellation or expiration of this Agreement for any reason whatsoever: (a) Your right to access and use the Services shall immediately, automatically, and without notice, be revoked; (b) You shall immediately cease all access to and use of the Services and all Confidential Information; (c) You shall return to BluHorn all Confidential Information; (d) BluHorn shall have the right to terminate and deny You access to and use of the Services immediately and without notice.  The obligations set forth in this Agreement which, by their nature, are intended to survive, shall survive the termination, cancellation or expiration of this Agreement for any reason whatsoever. Such surviving obligations include, without limitation, obligations with respect to Confidential Information, protection of PII and data, and obligations of indemnity.

 

What rights do I have in my data?

You shall own or have all necessary rights to all information, data, text, images, audio, video, photographs, and any other content or materials that You upload to the Site or the Services (collectively, “Your Data”).  The term “Your Data” does not include the Services, Third Party Resources (as defined below), the BluHorn Intellectual Property (as defined below), or any other BluHorn products or services, or any derivative works thereof.  You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Data, including any viruses, Trojan horses, worms or other harmful programming routines contained in Your Data, or from Your use of the Site or Services.  You hereby grant to BluHorn a non-exclusive, worldwide, royalty-free, perpetual, sublicensable license and right to host, use, process, reproduce, display and transmit Your Data to provide the Services and for any other purposes whatsoever, whether or not related to BluHorn’s performance of the Services or to this Agreement.  You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your Data, and for obtaining all rights related to Your Data required by BluHorn to perform the Services. The term “Third Party Resources” means all software, hardware, network, applications, data, data feeds, information, application programming interfaces (APIs), text, images, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of BluHorn that You may access or use through, within, or in conjunction with the Services.

 

You represent and warrant that: (a) You have the written consent of each and every identifiable natural person in Your Data to use such person’s name or likeness in the manner contemplated by the Services and these Terms of Use, and each such person has released You and BluHorn from any liability that may arise in relation to such use; (b) Your Data and BluHorn’s use thereof as contemplated by these Terms of Use and the Services will not violate any law or infringe any rights of any third party, including but not limited to any copyrights, trademarks, service marks or other intellectual property rights, publicity rights, or privacy rights; (c) BluHorn may exercise the rights to Your Data granted under these Terms of Use without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise; and (d) all of Your Data and other information that You provide to BluHorn is truthful and accurate.  BluHorn reserves the right to change, condense or delete any content, information, or materials available with or used in connection with the Services (including Your Data) that BluHorn deems, in its sole discretion, to violate any provision of these Terms of Use.

 

Notwithstanding any provision of this Agreement to the contrary, You acknowledge and agree that: (a) BluHorn will have access to and will collect and retain data and information input and output however processed by the Site and Services, including all of Your Data and all transactions and processing of that data and information (the “Collected Data”); (b) the Collected Data will be used and disclosed by and to BluHorn and others for commercial and resale purposes that include, without limitation, selling and disclosing to third parties individual, specific and aggregated data, information and reports, unless otherwise restricted by applicable law; and (c) BluHorn will not, and nothing in this Agreement obligates BluHorn to, keep Collected Data, including Your Data, confidential or protected.

 

Does BluHorn monitor the Services?

You hereby consent to BluHorn’s right under these Terms of Use to monitor use of the Site and Services for any purposes, by any method, at any time and without further notice to You, as well the right to remove or refuse Your use of the Site and Services for any reason in accordance with applicable law, and to use data collected therefrom for any other purposes.  Notwithstanding these rights, You remain solely responsible for the use of the Site and Services and for the content of Your Data.

 

How is information kept confidential?

You will treat and hold all confidential, commercially sensitive, proprietary, and/or non-public information (“Confidential Information”) received from BluHorn in strict confidence and will not use or disclose to anyone any of the information except as otherwise expressly permitted by these Terms of Use.  The term “Confidential Information” shall include PII, all user logins and passwords, BluHorn Intellectual Property, the Services and their features, functionality, work-flow, algorithms, screen displays and methods, system updates and all documentation relating thereto. Any information provided by BluHorn through the Services shall be considered Confidential Information of BluHorn.  Upon termination, cancellation or expiration of these Terms of Use for any reason whatsoever, or at BluHorn’s request at any time, You shall return to BluHorn all Confidential Information or, at BluHorn’s option, destroy such information. You shall not promote or publicly disclose or link the Internet address or location of the Services in any manner, including on any web sites without the prior written consent of BluHorn.

 

Am I responsible for reviewing information?

Information published and disseminated by BluHorn or the Services is communicated without review, editing or change by BluHorn, as provided to the Site, Services or BluHorn by You or third parties.  BluHorn has no obligation to verify the information provided and disclaims any responsibility for its accuracy and You use the same at Your own risk. You agree to defend, indemnify and hold harmless BluHorn and its employees, officers, agents, and directors from and against any liability arising from any inaccuracy or inadequacy of the information You provide.

 

What is BluHorn’s Intellectual Property?

You shall not contest or otherwise challenge: (a) BluHorn’s designation of its Confidential Information as trade secrets and commercially sensitive and confidential and proprietary information; or (b) BluHorn’s ownership of the Confidential Information, the Services, the Site, Feedback (as defined below), and of all copyrights, patents, trade secrets, service marks, trademarks, proprietary rights, domain name registrations, and other intellectual property rights therein and arising therefrom (collectively, the “BluHorn Intellectual Property”).  BluHorn is the owner of all BluHorn Intellectual Property and no title or ownership of the Confidential Information or BluHorn Intellectual Property is transferred to You by way of these Terms of Use. Except for the express limited rights granted to You to use the Site and Services set forth in these Terms of Use, no other rights, whether express or implied, are granted to You, and are reserved to and retained by BluHorn. You agree that any feedback, suggestions, improvements, enhancements, input and/or feature requests relating to the Site or Services provided by You to BluHorn (“Feedback”) shall be owned solely by BluHorn, shall be included as part of the BluHorn Intellectual Property, and BluHorn shall be free to exploit and/or incorporate such Feedback in connection with the Services, Site and/or BluHorn’s business.

 

Do I receive any warranties from BluHorn?

THESE TERMS OF USE ARE A CONTRACT FOR SERVICES AND NOT FOR THE SALE OF GOODS.  THE SITE AND SERVICES ARE PROVIDED “AS IS” WITH “ALL FAULTS” AND WITHOUT ANY WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED.  YOUR USE OF THE SITE AND SERVICES IS VOLUNTARY AND ENTIRELY AT YOUR OWN RISK, AND YOU ARE RESPONSIBLE FOR MAINTAINING AN INDEPENDENT MEANS EXTERNAL TO THE SITE AND SERVICES FOR THE BACKUP AND RECONSTRUCTION OF ANY LOST, INCORRECT OR DAMAGED DATA OR YOUR DATA.  BLUHORN EXPRESSLY DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BLUHORN DOES NOT WARRANT THAT THE SITE, OR SERVICES OR THEIR FUNCTIONS OR CONTENT WILL BE UNINTERRUPTED, TIMELY, WITHOUT DELAYS, WITHOUT LOSSES OF DATA OR INFORMATION OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE SITE OR SERVICES, OR THE SERVERS THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES, INFECTIONS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS OR DESTRUCTIVE CODE.  BLUHORN DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE SITE OR SERVICES IN TERMS OF ACCURACY, COMPLETENESS, TIMELINESS, USEFULNESS, RELIABILITY OR OTHERWISE. THE SITE AND/OR SERVICES MAY INCLUDE ERRORS AND MAY BE CHANGED OR MODIFIED AT ANY TIME. YOU, AND NOT BLUHORN, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE SITE OR SERVICES. BLUHORN MAKES NO WARRANTIES THAT YOUR USE OF THE SITE OR SERVICES WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS.  THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

 

BLUHORN RESERVES THE RIGHT AT ANY TIME AND FROM TIME TO TIME TO MODIFY OR DISCONTINUE, TEMPORARILY OR PERMANENTLY, THE SITE OR SERVICES, OR ANY PART THEREOF, WITH OR WITHOUT NOTICE.

 

WHAT ARE THE LIMITS AND EXCLUSIONS ON LIABILITY AND DAMAGES? 

NOTWITHSTANDING ANY PROVISION OF THESE TERMS OF USE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL:

 

 

• BLUHORN OR ANY OF ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS AND DIRECTORS BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING LOSS OF REVENUE OR SIMILAR DAMAGES; AND

 

 

 

• THE TOTAL, COMPLETE AND COLLECTIVE LIABILITY OF BLUHORN AND ALL OF ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS AND DIRECTORS ARISING OUT OF OR RELATING TO THESE TERMS OF USE, THE SITE OR THE SERVICES, IN ANY EVENT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU TO BLUHORN DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE LIABILITY; AND (B) ONE HUNDRED DOLLARS ($100.00).  

 

 

EACH AND ALL OF THE TERMS, PROVISIONS AND LIMITATIONS SET FORTH ABOVE IN THIS SECTION SHALL APPLY: (A) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, PRODUCT LIABILITY, STATUTORY OR OTHERWISE; (B) EVEN IF ANY ONE OR MORE REMEDIES PROVIDED IN THESE TERMS OF USE FAIL OF THEIR ESSENTIAL PURPOSE; AND (C) EVEN IF BLUHORN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

 

What indemnities do I make to BluHorn?

You agree to defend, indemnify and hold harmless BluHorn and each of its subsidiaries, affiliates, licensors, service providers, content providers, employees, agents, contractors, officers and directors from and against any actual or threatened claims, damages, liabilities, demand, judgments, awards, costs and expenses including reasonable attorneys’ fees, due to, arising out of or relating to: (a) Your Data, or Your use of the Site or Services; (b) Your submissions, posts or transmissions through the Services, including without limitation, Your Data; (c) Your breach or other violation of any of these Terms of Use or any representations, warranties or covenants made herein; (d) Your violation of any rights of any content owner or provider; (e) any violation of the obligations of confidentiality and privacy as set forth in these Terms of Use; (f) any claim by BluHorn Client or a Third Party Resource arising out of or relating to Your use of the Services or the Site or any agreements or disputes between You and any BluHorn Client or Third Party Resource; and/or (g) any other obligations of indemnity, defense or hold harmless set forth elsewhere in these Terms of Use.  The foregoing obligations of indemnity, defense and hold harmless shall apply whether Your acts or omissions were intentional, negligent or reckless.

 

How and where will disputes be resolved?

These Terms of Use shall be construed and the legal relations between the parties determined in accordance with the laws of the State of Florida.  The Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply to these Terms of Use.  Any dispute, controversy or claim arising out of or relating to the Services or the Site or these Terms of Use, or their negotiation, performance, execution or breach, shall be settled exclusively by arbitration in accordance with the Rules of the American Arbitration Association (“AAA”).  The arbitration and all proceedings shall take place in Jacksonville, Duval County, Florida before a single arbitrator selected by the parties in accordance with the AAA rules; however, the arbitrator shall have no less than ten (10) years’ experience in computer law and commercial matters.  The decision of the arbitrator shall be final and binding and judgment upon the award rendered by the arbitrator shall be entered in any court having jurisdiction thereof. All proceedings, the decision and submissions made in connection with the arbitration shall be confidential. In any dispute arising out of or relating to these Terms of Use, the prevailing party shall receive an award of its reasonable attorneys’ fees and costs in any proceeding, including on appeal and enforcement.

 

AM I WAIVING RIGHTS TO PARTICIPATE IN A CLASS ACTION OR JURY TRIAL?

WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE OR SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THESE TERMS OF USE, YOU AND BLUHORN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM OR CROSS-CLAIM BROUGHT BY BLUHORN OR YOU, AND ARE ALSO WAIVING THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

 

How does BluHorn cooperate with Law Enforcement?

BluHorn reserves the right to fully cooperate with any law enforcement or duly authorized regulatory authorities or court order requesting or directing BluHorn to disclose any of Your Data, or any other content, data, information, the identity of anyone posting content or using the Site or Services or publishing or otherwise making available any materials that are believed to violate these Terms of Use.  BY ACCEPTING THESE TERMS OF USE, YOU WAIVE, RELEASE AND HOLD BLUHORN HARMLESS FROM AND AGAINST ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY BLUHORN DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER BLUHORN OR LAW ENFORCEMENT OR DULY AUTHORIZED REGULATORY AUTHORITIES.

 

May I transfer this Agreement?

The use of the Services and grants by BluHorn hereunder are personal to You and may not be assigned, sub-licensed or transferred, in whole or in part, by You, whether by agreement, operation of law, sale, merger, reorganization or change of control of Your company or business.   Any assignment or transfer in violation of this section shall be void and of no force or effect and shall constitute a material breach of these Terms of Use.

 

How do I contact or send notice to BluHorn?

BluHorn may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to You via email notice, written or hard copy notice, or through posting of such notice on the Site or in the Services, as determined by BluHorn in our sole discretion.  BluHorn reserves the right to determine the form and means of providing notifications to You. BluHorn is not responsible for any automatic filtering You or Your network provider may apply to email notifications we send to the email address You provide us. All notices, requests or demands to BluHorn shall be delivered in writing and shall be deemed given only if delivered personally or sent via overnight delivery to BluHorn’s mailing address set forth above.  Any legal notice sent by You to BluHorn must also be emailed to support@bluhorn.com.

Please contact us at support@bluhorn.com with any questions regarding these Terms of Use.

 

What other terms and conditions apply to this Agreement?

No Waiver.  The failure or delay of any party in exercising any of its rights hereunder, including any rights with respect to a breach or default by the other party, shall in no way operate as a waiver of such rights or prevent the assertion of such rights with respect to any later breach or default by the other party.  No party shall be deemed to have waived any rights under these Terms of Use by any action or inaction unless an express waiver is set forth in writing. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.

 

Entire Agreement and Severability.  These Terms of Use (together with any other agreement entered into between You and BluHorn contemporaneously herewith) constitute the entire, complete and only agreement between the parties regarding the subject matter contained herein and supersedes all proposals or prior agreements, whether oral or written, and all other communications between the parties relating to this subject matter.  Any modification of any term or condition of these Terms of Use shall be effective only if in writing and signed by authorized representatives of all parties. No other act, usage or custom shall be deemed to modify these Terms of Use. Whenever possible, each provision of these Terms of Use shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of these Terms of Use or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be reduced to such scope as is reasonable and enforceable if possible.  Otherwise, such provision shall be severed and ineffective to the extent of such prohibition or invalidity without it invalidating the remainder of the provisions of these Terms of Use or the application of the provision to the other parties or other circumstances.

 

Relationship of the Parties.  These Terms of Use do not constitute and shall not be construed as constituting a partnership, agency or joint venture between any of the parties.  These Terms of Use shall not be construed as authority for any party to act for any other party in any agency or other capacity or to make commitments of any kind for the account of or on behalf of the other.

 

Headings and Interpretation.  The use in these Terms of Use of the word “including” will mean “including, without limitation.”  The words “hereby,” “herein,” “hereinafter,” “hereof,” “hereto,” “hereunder,” and other words of similar import refer to these Terms of Use as a whole, as the same may be altered, amended, modified, repealed, restated and/or supplemented in accordance with the provisions contained in these Terms of Use, and not to any particular article, clause, paragraph section, subparagraph or subsection contained in these Terms of Use.  All references to articles, clauses, paragraphs, sections, subparagraphs, and subsections will mean the articles, clauses, paragraphs, sections, subparagraphs and subsections contained in these Terms of Use, except as otherwise expressly provided in these Terms of Use. The title of and the article, section and paragraph headings contained in these Terms of Use are for convenience of reference only and will not affect or govern the interpretation of any of the provisions contained in these Terms of Use.  The use of the singular form of a definition or term also will denote the plural forms of such definition or term, and vice-versa, as in each case the context may require. Where specific language is used to clarify by example a general statement contained in these Terms of Use, such specific language will not be deemed to limit, modify or restrict in any manner the construction of the general statement to which it relates. Should any provision of these Terms of Use require interpretation, the body or entity interpreting or construing these Terms of Use shall not apply a presumption that the terms hereof shall be more strictly construed against the party who itself or through its agents, prepared the document.  There are no third party beneficiaries to these Terms of Use, whether express or intended.