Last Updated: December 5, 2019
Blume Global, Inc. (“Blume”) is a provider of proprietary software applications that are made available to authorized users via the www.blumeglobal.com website (or any successor website), mobile applications or any other medium (collectively, the “Blume Platform”).
These Blume Global Terms and Conditions of Use (“Terms”) set forth the terms and conditions that govern the access to and use of the Blume Platform by you individually (“You”), as well as the company or entity You represent and its other representations (collectively, Your “Organization”). As used herein, the term “Subscriber” shall collectively mean You and Your Organization.
1. GENERAL TERMS
(a) These Terms set forth the terms and conditions under which a Subscriber may access and use the Blume Platform and all services provided by Blume that are made available on the Blume Platform (the “Services”). If a Subscriber does not agree to these Terms, then it may not access or use the Blume Platform or any of the Services.
(b) By agreeing to these terms, You represent and warrant that You are authorized to agree to these terms on behalf of Your Organization.
(c) Blume may modify these Terms from time to time in its sole discretion and without notice to a Subscriber. Each Subscriber understands and agrees that its continued use of the Blume Platform or Services after any changes to the Terms have been made indicates its acceptance of such changes.
(d) In the event Your Organization has a valid and existing agreement with Blume governing its receipt of Services from Blume (a “Service Agreement”), then in the event of a conflict or inconsistency between these Terms and the Service Agreement, the Service Agreement shall control, but solely with respect to the relationship between Blume and Your Organization. In the event Your Organization does not have a valid and existing agreement with Blume governing its receipt of Services from Blume, then these Term shall govern its access and use of the Blume Platform. In any event, Your access and use of the Blume Platform (as in individual) is at all times governed by these Terms.
3. USE OF THE BLUME PLATFORM
(a) In order to use the Blume Platform, You must be at least eighteen (18) years old. The Blume Platform is offered for use only in accordance with these Terms, and Blume reserves all rights not expressly granted to Subscriber herein.
(b) Subscriber’s access to the Blume Platform will require a user ID and password that are issued by Blume. In order to access the Blume Platform, Subscriber may be required to provide information to Blume (including an individual user’s full name, email address, phone number, date of birth, and other information as required by Blume), as well as comply with Blume’s onboarding requirements. Subscriber may not impersonate someone else, create an account for someone else or provide another person’s email or create multiple accounts for a single individual. Subscriber is responsible for maintaining the confidentiality of its user IDs and passwords. Subscriber is fully responsible for all activities that occur through the use of its user IDs and passwords.
(c) Blume reserves the right from time to time to temporarily or permanently modify or discontinue, and restrict or block the Services or access to the Blume Platform or any part thereof, without notice. The Blume Platform may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Blume is not responsible for any delays, failure or other damage resulting from such problems. Subscriber’s sole and exclusive remedy for any failure or non-performance of the Blume Platform or Services is for Blume to use commercially reasonable efforts to restore or repair the applicable Blume Platform or Service.
(d) In order to receive the Services, Blume may need to communicate with Subscriber from time to time via email, SMS message, or other means of electronic communication. By providing Blume with any email address, phone number or any other information as may be required, Subscriber consents to receive all required notices and information. Electronic communications may be posted on the Blume Platforms or delivered to Subscriber’s email addresses. Subscriber is responsible for promptly informing Blume of any change in its contact information, including any email addresses.
(e) The following terms apply in the event Subscriber accesses the Blume Platform through any application (an “App”) downloaded from any app store or distribution platform (such as the Apple App Store or Google Play) where such App may now or in the future be made available (each, an “App Provider”). Subscriber acknowledges and agrees that:
i. These Terms are concluded between Subscriber and Blume, and not with the App Provider, and Blume (not the App Provider), is solely responsible for the App.
ii. The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
iii. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Blume.
iv. The App Provider is not responsible for addressing any claims Subscriber has or any claims of any third party relating to the App or Subscriber’s possession and use of the App, including: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
v. In the event of any third party claim that the App or Subscriber’s possession and use of that App infringes that third party’s Intellectual Property Rights, Blume will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, but only to the extent required by these Terms.
vi. The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to Subscriber’s license to the App, and that, upon Subscriber’s acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against Subscriber as a third-party beneficiary thereof.
vii. Subscriber represents and warrants that (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) it is not listed on any U.S. Government list of prohibited or restricted parties.
viii. Subscriber must also comply with all applicable third party terms of service when using the App.
(a) Subject to your compliance with these Terms, Blume grants Subscriber a limited, non-exclusive, non-transferrable, revocable license to access and use the Blume Platform and Services solely for its internal business purposes. Subscriber acknowledges and agrees that it will not reproduce, duplicate, copy, sell or resell the Blume Platform, the Services or any content, features, or other material contained on the Blume Platform or in the Services.
(b) Blume retains the right, in its sole discretion, to determine whether Subscriber’s use of the Blume Platform or Services is consistent with these Terms. Blume, in its sole discretion, may suspend, restrict or terminate your use of the Blume Platforms or Services if it determines that Subscriber’s use of the Blume Platform or Services fails to comply with these Terms.
5. PROPRIETARY RIGHTS AND OWNERSHIP
(a) Definitions. As used herein, the terms below shall have the following definitions:
i. “Content” means any text, data, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available on the Blume Platform.
ii. “Intellectual Property Rights” means all worldwide patent, trademark, copyright, trade secret, know-how, and other intellectual property and proprietary rights
iii. “Output” shall mean any data, information or reports relating your operations that, in each case, are generated by the Blume Platform and are provided and made available to you.
iv. “Statistics” shall mean statistical, correlative, performance, or other information or data related to the operation of the Blume Platform, based in whole or in part on Subscriber Data, Output or any other information or data provided by Subscriber.
v. “Subscriber Data” means any data and information that Subscriber provides or enters into the Blume Platform.
(b) Blume Platform and Services. The license granted in Section 4 is not a sale and does not convey any rights of ownership in or to the Blume Platform or the Services, or in any portion, copies or derivative works thereof. All right, title, and interest in and to the Blume Platform, the Services, any works of authorship, ideas, inventions (whether patentable or not), techniques, know-how, and programs (including source code) embodied therein, and any derivative works of the foregoing (including all Intellectual Property Rights) are and will remain the sole and exclusive property of Blume or its affiliates, and Subscriber hereby irrevocably assign to Blume any right, title or interest it may acquire in any of the foregoing
(c) Ownership of Content. Blume shall exclusively own all right, title and interest in and to the Content, including any Intellectual Property Rights therein. Subscriber acknowledges that the Content may be protected by copyright, trademark, trade secret, and other laws of the United States and foreign counties. Subscriber agrees not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notice incorporated in or accompany the Content.
(d) Subscriber Data. Blume does not claim any ownership rights in Subscriber Data or Output, including any Intellectual Property Rights therein. Subject to these Terms, Subscriber grants to Blume a worldwide, nonexclusive, royalty-free, fully paid-up license during the Term to store, reproduce, modify, adapt, display, or otherwise use Subscriber Data to provide the Services.
(e) Statistics. Subscriber grants to Blume a perpetual, irrevocable, worldwide, nonexclusive, royalty-free, fully paid-up license to use Subscriber Data, Output, and any other information provided by Subscriber to create Statistics. Blume shall own and retain all right, title, and interest in and to any Statistics, including any worldwide Intellectual Property Rights therein. Blume may use Statistics for any purpose (including to improve machine learning and artificial intelligence technologies used in connection with the Blume Platform and Services), provided that it will only disclose information related to Subscriber’s use of the Blume Platform on an aggregated basis that will not identify Subscriber or any of its third party trading partners.
(f) Data Restrictions. Subscriber shall not:
i. post, upload or otherwise transmit any Subscriber Data that (i) is unlawful, harmful or otherwise objectionable or violates any applicable laws; (ii) violates any contractual or fiduciary relationship; (iii) infringes, violates or misappropriates any Intellectual Property Right or other publicity or privacy rights of any party; (iv) contains viruses, bugs, Trojan horses, malware, spyware or any other harmful or deleterious programs; or (v) is defamatory in any way or of an obscene nature; or
ii. disguise or misrepresent any Subscriber Data or the origin of such material including by impersonating any person or entity, creating a false identity or falsely stating or otherwise misrepresenting affiliation with a person or entity or by manipulating headers or other identifiers.
(g) Responsibility for Subscriber Data. Subscriber alone is responsible for the Subscriber Data it submits to the Blume Platform. Subscriber assume all risks associated with the Subscriber Data it submits, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by Subscriber of information that makes any individual personally identifiable. Subscriber represent and warrant that you own, or have the necessary permissions to use and authorize the use of the Subscriber Data that you submit.
6. PROHIBITED ACTIVITIES
(a) Subscriber agrees that it will only use the Blume Platform and Services for the purposes expressly set forth in these Terms. You agree that you will not:
i. use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Blume Platform, Services or any portion thereof;
ii. use or attempt to use any engine, software, tool, agent or other device or mechanism (including browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Blume Platform or Services, other than the search engines and search agents available through the Blume Platform or Services and other than generally available third-party web browsers;
iii. use any meta tags or other hidden text or metadata utilizing a Blume trademark, logo, URL, or product name without Blume’s express written consent;
iv. submit any Subscriber Data that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability
v. submit any Subscriber Data to the Blume Platform that, in Blume’s sole discretion, is unlawful, harassing, libelous, abusive, threatening, obscene, profane, hateful, offensive, harmful, vulgar, distasteful, defamatory, or racially, ethnically or otherwise objectionable;
vi. submit or post any Subscriber Data that violates any third party’s rights, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual or proprietary right;
vii. submit or transmit, or attempt to submit or transmit, any file or other Subscriber Data which is encrypted or contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interferes with the proper working of the Blume Platform and Services;
viii. avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measurement implemented by or on behalf of Blume to protect the Blume Platform;
ix. attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Blume Platform or Services;
x. attempt to gain an unauthorized access to any portion of the Blume Platform or Services; or
xi. encourage or assist any other party to do the foregoing.
7. LINKS TO THIRD PARTY WEBSITES OR RESOURCES
(a) The Blume Platform may contain links to third-party websites or resources. Such links are provided to you only as a convenience and Blume is not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. Subscriber acknowledge sole responsibility for and assume all risks arising from its use of any third party websites or resources.
8. USE WITH YOUR MOBILE DEVICE
(a) Blume provides the Blume Platform and Services over the Internet and Subscriber may have the ability to access the Blume Platform and Services using compatible mobile devices. Subscriber acknowledges and agrees that it is solely responsible for ensuring the compatibility of any device it uses to access the Blume Platform and Services, and that Subscriber remains in compliance with any agreement it has entered into with its mobile device or telecommunications service provider.
(b) BLUME MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FOR SUBSCRIBER’S PROVIDER AND ACCESS TO SUCH TELECOMMUNICATION SERVICES AT ANY TIME OR FROM ANY LOCATION; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH TELECOMMUNICATION SERVICES.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
(a) THE BLUME PLATFORM, SERVICES, CONTENT, OUTPUT, AND ANY OTHER DATA, FEATURES, CONTENT, OR OTHER INFORMATION THAT BLUME PROVIDES TO SUBSCRIBER IN CONNECTION WITH THE BLUME PLATFORM OR SERVICES ARE PROVIDED TO SUBSCRIBER ON AN “AS IS” BASIS. BLUME MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, ARISING FROM OR RELATED TO THESE TERMS, THE BLUME PLATFORM, SERVICES, CONTENT, OUTPUT, AND ANY OTHER DATA, FEATURES, CONTENT, OR OTHER INFORMATION THAT BLUME PROVIDES TO SUBSCRIBER, INCLUDING, (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (ii) ANY WARRANTIES THAT THE BLUME PLATFORM OR SERVICES WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR-FREE; (iii) ANY WARRANTIES AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY THIRD PARTY AND WHETHER SUBSCRIBER SHOULD DO BUSINESS WITH SUCH THIRD PARTY; (iv) ANY WARRANTIES AS TO THE ACCURACY OF ANY DATA OR INFORMATION MADE AVAILABLE ON THE BLUME PLATFORM; (v) ANY WARRANTIES THAT THE BLUME PLATFORMS OR SERVICES WILL BE PROVIDED TO YOU FREE FROM ANY VIRUSES, MALICIOUS CODE, MALWARE, OR OTHER COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION; OR (vi) ANY OTHER WARRANTIES THAT MAY ARISE FROM TRADE, USAGE, PERFORMANCE OR CUSTOM.
10. LIMITATIONS ON LIABILITY
(a) BLUME WILL NOT BE LIABLE TO SUBSCRIBER FOR CLAIMS OR DAMAGES ARISING FROM OR RELATING TO (i) THE CORRUPTION, UNAUTHORIZED DISCLOSURE OR ERASURE OF DATA TRANSMITTED OR RECEIVED OR STORED ON BLUME’S SYSTEMS OR NETWORKS; (ii) THE LOSS OF DATA, INABILITY TO ACCESS THE BLUME PLATFORM, INABILITY TO TRANSMIT OR RECEIVE DATA, OR DELAYS, NON-DELIVERY OR SERVICE INTERRUPTIONS DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF BLUME, INCLUDING, SUPPLIER PROBLEMS, TELECOMMUNICATIONS FAILURES OR INTERNET SERVICE PROVIDER LIMITATIONS; OR (iii) ERRORS, DEFECTS OR NON-CONFORMITIES IN THE BLUME PLATFORM CAUSED, DIRECTLY OR INDIRECTLY, BY NETWORKS, COMPUTERS, SOFTWARE, TELECOMMUNICATIONS EQUIPMENT OR OTHER DEVICES USED BY SUBSCRIBER.
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BLUME BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY, FOR CORRUPTION, DAMAGE AND LOSS OF DATA OR PROGRAMS, FOR FAILURE TO MEET ANY DUTY INCLUDING ANY STATUTORY DUTY, DUTY OF GOOD FAITH OR DUTY OF REASONABLE CARE, FOR NEGLIGENCE, FOR ECONOMIC LOSS, FOR BODILY INJURY OR HARM AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE BLUME PLATFORM OR SERVICES (INCLUDING THE USE OR INABILITY TO USE THE BLUME PLATFORM OR SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER PROFESSIONAL SERVICES RELATING TO THE BLUME PLATFORM OR SERVICES, OR CONTENT MADE AVAILABLE THROUGH THE BLUME PLATFORM OR SERVICE).
(c) YOU AGREE THAT IN THE EVENT THAT BLUME IS FOUND LIABLE TO SUBSCRIBER ARISING FROM OR RELATING TO THESE TERMS (WHETHER ANY ACTION OR CLAIM IS BASED ON SUCH CONTRACT, WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE), IN NO CASE SHALL THE LIABILITY OF BLUME EXCEED THE FEES PAID BY SUBSCRIBER TO BLUME FOR THE USE OF THE BLUME PLATFORM OR SERVICES OR THE AMOUNT OF FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS GREATER.
(d) IN THE EVENT ANY DISCLAIMER, EXCLUSION OR LIMITATION IN THIS AGREEMENT CANNOT BE EXCLUDED OR LIMITED ACCORDING TO APPLICABLE LAW THEN ONLY SUCH DISCLAIMER, EXCLUSION OR LIMITATION SHALL NOT APPLY TO SUBSCRIBER AND SUBSCRIBER CONTINUES TO BE BOUND BY ALL REMAINING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
(a) Subscriber shall indemnify, defend and hold harmless Blume, its directors, officers, employees, independent contractors and agents from any and all third party claims, damages, losses, liabilities, costs, and expenses including attorneys’ fees and court costs (collectively, “Losses”) arising out of or in connection with (i) your breach of these Terms; (ii) your use of the Blume Platform and Services; and (iii) any other act or omission by you in relation to the Blume Platform or your use of the Services.
12. GOVERNING LAW
(a) These Terms are governed by and construed in accordance with the laws of the State of Delaware, U.S.A. without regard to its conflict of law provisions. You agree that the United Nations Convention on Contracts for the International Sale of Goods and Article 2 of the Uniform Commercial Code shall not apply to these Terms. Any dispute, disagreement or claim arising out of these Terms will be finally settled and determined by arbitration administered by the American Arbitration Association (the “AAA“) under its then-current International Arbitration Rules (the “AAA Rules“). The written award of the arbitrators is final and binding upon the Parties, and judgment on or enforcement of the award may be sought, had or entered in any court having jurisdiction. You and Blume are each entitled to appoint one arbitrator, and after consultation with the parties, the AAA shall appoint a third arbitrator. The seat of arbitration is San Francisco, California, U.S.A. The arbitrators may hold hearings at such other locations, as the arbitrators shall determine, after consultation with the Parties. The arbitral proceedings and all pleadings and written evidence will be in the English language. Notwithstanding the foregoing, nothing in these Terms prohibits Blume from seeking equitable relief in any court of competent jurisdiction without complying with the terms of this Section 12(a).
13. ADDITIONAL TERMS
(a) Subject to Section 1(d) of these Terms, these Terms constitute the entire agreement between Subscriber and Blume and supersede any other prior agreements, proposals, communications or advertising, or written, with respect to the Blume Platforms, Service, and any other subject matter contained in these Terms.
(b) Subscriber acknowledges and agrees that it may not transfer or assign any of the rights granted to it under these Terms or any of its obligations pursuant hereto.
(c) If any provision of these Terms is found by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, in whole or in part, such provision will be narrowly construed so that it becomes legal and enforceable, and the entire Terms will not fail on account thereof and the balance of the Terms will continue in full force and effect to the maximum extent permitted by law or equity while preserving, to the fullest extent possible, its original intent.
(d) No waiver of any provision or condition herein shall be valid unless in writing and signed by Subscriber and an authorized representative of Blume provided that no waiver of any breach of any provisions of these Terms will constitute a waiver of any prior, concurrent or subsequent breach. Blume’s failure to insist upon or enforce strict performance of any provision of the Terms or any right shall not be construed as a waiver of any such provision or right.
(e) As used herein, the term “or” shall mean “and/or” and the term “including” shall mean “including without limitation”.
14. CONTANCT INFORMATION
(a) Any claims by you or any third party relating to the Blume Platform and Services, or to your use of the Blume Platform and Services shall be directed to Blume. Questions, complaints, or claims related to the Blume Platform or Services shall be addressed to:
Blume Global, Inc.
7901 Stoneridge Drive, Suite 400
Pleasanton, CA 94588