Party Squasher | Terms of Service
Last Updated: October 1, 2020
Applicable Laws means all laws, rules and regulations, in any jurisdiction, including without limitation all privacy and data protection laws, rules and regulations.
Party Squasher Materials means the Service, Software and all related Intellectual Property Rights to the foregoing.
Customer Data means, collectively, data collected (through the use of the Hardware and Software) from or concerning the characteristics and/or activities of individuals or electronic devices and any other information provided by Customer to BlueZoo for use with and display through the Service.
Hardware means equipment sold by BlueZoo.
Intellectual Property Rights means all patents, copyrights, moral rights, trademarks, trade names, service marks, trade dress, trade secrets and any other form of intellectual property rights now or hereafter recognized in any jurisdiction, including applications and registrations for any of the foregoing.
Service means Party Squasher service, including the Mobile Application, made available for iOS and Android devices.
Software means the any software provided by BlueZoo to Customer, including any mobile application software, and any software included in any Hardware.
User means an individual with log-in rights to access and use the Service in accordance with the terms of this Agreement.
Subscription Period begins on the hour and day the Party Squasher box is activated for the first time and lasts at least 1 (one) year from the activation date. The Subscription Period is renewable on an annual basis.
All Software is licensed and is not sold. During the Subscription Period, BlueZoo hereby grants Customer a personal, non-exclusive, revocable, non-assignable right to access and use such Software solely as necessary for Customer to enjoy the benefit of the Hardware and the Service.
Customer will prepare its location as necessary to operate the Hardware and all installation of the same. Hardware purchased hereunder may require certain software, which is furnished to Customer subject to the license terms furnished by the third party hardware or software supplier, including any software written by a third party (“Third Party Software”), which will be provided at no additional cost. Customer’s use of any Third Party Software is governed by the terms of the applicable Third Party Software license agreement and not the terms of this Agreement. Customer will, in addition to the terms of this Agreement, comply with the terms of the applicable Third Party Software. BLUEZOO ASSUMES NO OBLIGATION OR LIABILITY THAT MAY ARISE WITH RESPECT TO SUCH THIRD PARTY SOFTWARE OR CUSTOMER’S USE OR INABILITY TO USE THE SAME AND UNLESS OTHERWISE PROVIDED HEREIN, BLUEZOO MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE HARDWARE.
- Compliance with Law. Customer will, at its own expense, comply, with Applicable Laws applicable to its use of the Services, Customer Data, and information derived therefrom and the performance of its obligations under this Agreement, including without limitation, all export control regulations of the United States and/or any other applicable jurisdiction. Without limiting the generality of the foregoing, Customer will: (i) ensure that Customer has the right to collect, use and share the Customer Data via the Service; and (ii) provide adequate notice to, and will obtain any necessary consents from, any individuals or consumers, as required under Applicable Laws, with respect to the Customer Data collected, used and shared by Customer, any Customer Party, or by BlueZoo on behalf of Customer, via the Services.
- Third Party Products and Services. Customer will obtain and maintain throughout the Term, at its sole cost and expense, any hardware, equipment, Third Party Software, and internet connections required to access or use the Services.
- Responsibility for Other Parties. Customer will ensure that all Customer Parties comply with Customer’s obligations under this Agreement and that the Customer Parties only use the Services in compliance with Applicable Law.
- Customer Obligations. Customer is liable under this Agreement for any act or omission of any Customer Party to the same extent it would be liable had Customer performed such act or omission; and, Customer will use (and will ensure that each Customer Party uses) the Service in compliance with this Agreement. Customer will: (i) have sole responsibility for the content accuracy, quality, and legality of all Customer Data; (ii) prevent unauthorized access to, or use of, the Service, and notify BlueZoo promptly of any such unauthorized access or use; (iii) safeguard the confidentiality of Customer’s password(s) and account name(s), and is responsible for any use occurring under its accounts; (iv) not use the Services in violation of Applicable Laws; (v) not attempt to gain unauthorized access to any systems or networks that connect thereto or otherwise interfere with the operation of the Service or in any way with the use or enjoyment of the Service by others; (vi) make the Service or Software (or its functionality) available to any third party (via a services arrangement, service bureau, lease, sale, resale, or otherwise); (vii) not exceed any applicable bandwidth limit or storage capacity limit; (viii) not, to the extent the following restriction is permitted by Applicable Law, reverse engineer, disassemble or decompile any of the Software or attempt to discover or recreate the source code to any Software; (ix) not engage in or permit any use, reproduction, distribution, disposition, possession, disclosure or other activity involving any Software that is not expressly authorized under this Agreement.
OWNERSHIP RIGHTS; RESTRICTIONS
- Ownership by BlueZoo. BlueZoo owns and retains all right, title, and interest in and to the Party Squasher Materials. Customer acknowledges that (i) no right or interest in the Party Squasher Materials is conveyed other than those rights granted in Sections 2 and 3 herein, (ii) the Party Squasher Materials are protected by copyright and other intellectual property laws, and (iii) the Party Squasher Materials embody valuable confidential and secret information of BlueZoo or its licensors, the development of which required the expenditure of considerable time and money. Customer will not take or encourage any action that will in any way impair the rights of BlueZoo in and to the Party Squasher Materials, any proprietary software or technology of BlueZoo, or any Intellectual Property Rights in and to any of the foregoing.
- Customer Data. To the extent permitted by Applicable Laws and notwithstanding the foregoing, Customer hereby grants BlueZoo a perpetual, transferable, sublicensable and irrevocable license to use, distribute, and otherwise exploit Customer Data solely in anonymized de-identified form (in whole or in part) to provide benchmarking and/or other services.
Customer will pay BlueZoo all fees identified on or referenced on the Party Squasher website (“Fees”), in U.S. Dollars, or other appropriate currency as agreed. The Subscription Fee is renewable on an annual basis (“Annual Fee”) upon the commencement of the Subscription Period. Customer will pay all sales or other taxes required by law.
Customer will indemnify, hold harmless and defend BlueZoo from any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by BlueZoo arising out of or relating to: (i) Customer’s breach of any term or condition of this Agreement, (ii) Customer’s use or misuse of the Services or Customer Data, (iii) violations of any laws, rules or regulations applicable to Customer’s use of the Services or Customer Data, including without limitation, privacy laws; or, (iv) the Customer Data or the use thereof by BlueZoo to provide the Services to Customer.
- Limited Warranty. BlueZoo warrants that for one (1) year following the delivery of the Hardware and Software, the Hardware and Software will be functional. BlueZoo’s warranty is conditioned upon: (i) Customer using the Hardware and Software in accordance with instructions provided by BlueZoo; (ii) Customer not altering or modifying the Hardware or Software, without BlueZoo’s prior written approval; and, (iii) Customer notifying BlueZoo in writing of the claimed nonconformity within the thirty (30) days of discovery of the non-conformance. As BlueZoo’s sole liability and Customer’s sole remedy with respect to the Hardware’s or Software’s non-conformance with the limited warranty set forth in this Section 9(a), BlueZoo may at its option: (i) use reasonable efforts to correct the Hardware or Software; or, (ii) replace the Hardware and/or Software.
- DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT (OR OTHERWISE REQUIRED BY APPLICABLE LAW WITHOUT POSSIBILITY OF CONTRACTUAL WAIVER): BLUEZOO AND/OR ITS LICENSORS EXPRESSLY DISCLAIM AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE; AND, THE SERVICES AND CUSTOMER DATA ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND. BlueZoo does not represent or warrant that the Services will be uninterrupted or error-free, or that all defects will be corrected. BlueZoo does not warrant or represent that the use of the Services will be correct, accurate, timely or otherwise reliable. BlueZoo will not be responsible for unauthorized access to or alteration of the Customer Data or data from Customer Properties. Customer represents and covenants that Customer has not relied on any other warranties or representations. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH JURISDICTIONS, THE FORGOING EXCLUSION IS LIMITED AS REQUIRED BY LAW.
LIMITATION OF LIABILITY
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF BLUEZOO HAS BEEN APPRAISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY OR OTHERWISE, IN NO EVENT WILL: (A) BLUEZOO BE LIABLE FOR DAMAGES FOR LOSS OF PROFIT OR REVENUE, DATA THAT IS LOST OR CORRUPTED, LOSS OF GOODWILL, OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES SUFFERED BY CUSTOMER OR OTHERS; (B) BLUEZOO’S TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO BLUEZOO IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT. Customer acknowledges that the Fees, exclusions, disclaimers and limitations of liability set forth in this Agreement are essential components of this Agreement and form the basis for determining the price charged for the Services, and that BlueZoo would not enter into this Agreement without these limitations on its liability. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH AN EVENT THE FOREGOING LIMITATION(S) WILL NOT APPLY TO THE EXTENT REQUIRED BY LAW.
GOVERNING LAW; ARBITRATION
The Parties agree to this Section 11 as the exclusive manner and means for resolving all disputes related to this Agreement. Any dispute will be settled by final and binding arbitration by one arbitrator, mutually selected by the parties, sitting in Santa Clara County, California, USA, in accordance with the rules of the American Arbitration Association (the “AAA”). This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of any conflicts of law rules or principles and without regard to the United Nations Convention on the International Sale of Goods. If the Parties cannot mutually agree on one arbitrator, the arbitrator will be selected in accordance with the rules of the AAA. The language to be used in the arbitral proceedings will be English and all documents not in English will be accompanied by a translation into English. The Parties will equally bear the fees and out-of-pocket expenses of the arbitration. Any decision of the arbitrator will be (a) a final and non-appealable determination of the matter, (b) binding upon each of the Parties, and (c) enforceable by any court of competent jurisdiction. Notwithstanding anything to the contrary in this Section 11, each Party will have recourse to a court located in Santa Clara County, California, USA for the sole purpose of seeking conservatory or interim measures (including temporary restraining orders or preliminary injunctions) or their equivalent, or for the purpose of such Party’s enforcement of its Intellectual Property Rights. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara County, California, USA, in connection with any action seeking such conservatory or interim measures.
This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings and contemporaneous communications, including without limitation, all non-disclosure agreements or other confidentiality agreements executed by the Parties prior to or with an effective date prior to the Effective Date of this Agreement. This Agreement may not be modified except by written agreement of both Parties. Customer will not assign any of the rights or obligations granted hereunder, except with the express written consent of BlueZoo, and any attempted assignment in violation of this paragraph is void. BlueZoo may assign this Agreement or delegate its obligations hereunder without restriction. The Parties are independent contractors; and, this Agreement does not create or imply any partnership, agency or joint venture. A waiver of any provision of this Agreement must be signed by the waiving Party; and, one waiver will not imply any future waiver. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (other than monetary obligations) as a result of any cause or condition beyond such Party’s reasonable control. If any provision (or any part thereof) of this Agreement is unenforceable under or prohibited by any present or future law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) that cannot be so amended will be severed from this Agreement; and, all the remaining provisions of this Agreement will remain unimpaired. Any notice or other communication under this Agreement given by any Party to any other Party must be in writing and will be effective upon delivery as follows: (a) if to Customer, (i) when delivered via registered mail, return receipt requested, to the address specified in this Agreement or otherwise on record for Customer; or (ii) when sent via email to the email address specified in this Agreement or otherwise on record for Customer; and (b) if to BlueZoo, when sent via registered mail, return receipt requested, to BlueZoo IO, Inc., 440 N. Wolfe Road, Sunnyvale, CA 94085, U.S.A., or such other address which BlueZoo may specify from time to time.