Master Services Agreement
YOU, (the Client) are agreeing to the following terms and conditions (the "Agreement") governing the engagement of BFG’s Services including any or all of the following: application hosting, web site design, web site build and web site hosting services, including offline components (collectively "the Service").
Your purchase of, or subscription to, or use of, any of the BFG Services shall be deemed to be your agreement to abide by this Agreement including any materials available on any BFG web sites.
The Agreement comprises this document PLUS the appropriate Blue Fire Group Service addendums.
1. Privacy
BFG's privacy and security policies may be viewed at http://www.bluefiregroup.com/privacy.shtml. BFG reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, BFG occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that BFG can disclose the fact that you are a paying customer and the edition of the Service that you are using.
2. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify BFG immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to BFG immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another BFG user or provide false identity information to gain access to or use the Service.
You are also responsible for any obligations (including fees and mandatory agreements) in relation to the access of IDX data which may be required by your local MLS provider.
3. Account Information and Data
BFG does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not BFG, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and BFG shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), BFG will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. BFG reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment of fees.
4. License Grant & Restrictions
BFG hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by BFG and its licensors.
You may deploy the Service in one distinct web site (or domain or URL) unless otherwise agreed with BFG.
You may not access the Service if you are a direct competitor of BFG, except with BFG's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
5. Intellectual Property Ownership
BFG alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, Technology, or the Intellectual Property Rights owned by BFG. Service Names, Product Names and Logos associated with the Service are trademarks of BFG or third parties, and no right or license is granted to use them.
6. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the Service Edition you have and, if applicable, the current number of total User licenses requested times the User license fee currently in effect. Payments are to be made monthly, or as otherwise mutually agreed upon. All payment obligations are non cancelable and all amounts paid are non refundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide BFG with valid credit card or approved purchase order information as a condition to signing up for the Service.
For any upgrades or Service additions, you may add, change or upgrade Services by executing an additional written Order Form or using the Online Order Center. Added or upgraded Services will be subject to the following: (i) added services will be coterminous with the preexisting Service Term (either Initial Term or renewal term); (ii) the fee for the added service will be the then current, generally applicable fee; and (iii) services added in the middle of a billing month will be charged in full for that billing month.
BFG reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
7. Billing and Renewal
BFG charges and collects in advance for use of the Service. BFG will automatically renew and bill your credit card or issue an invoice to you (a) every month for monthly licenses, or (b) as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total User licenses times the license fee in effect during the prior term, unless BFG has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. BFG's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on BFG's income.
You agree to provide BFG with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, BFG reserves the right to terminate your access to the Service in addition to any other legal remedies.
All billing will be in U.S. dollars and subject to U.S. payment terms and pricing schemes.
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
BFG is not responsible for payments you may or may not make to third party organizations in relation to ‘pay per click’, advertising or media purchases.
8. Non-Payment and Suspension
In addition to any other rights granted to BFG herein, BFG reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 2.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or BFG initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that BFG may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
BFG reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that BFG has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
9. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. For all licenses, the term is indefinite and may be terminated at any time in BFG's sole discretion. The Initial Term is one month, or otherwise as mutually agreed upon. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term at BFG's then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. Only a Site Administrator or the designated billing contact person may cancel this Agreement. In the event this Agreement is terminated (other than by reason of your breach), BFG will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that BFG has no obligation to retain the Customer Data, and will delete such Customer Data, after 30 days after termination. If the Service included Website Design and Build then BFG will also provide, upon request, a copy of only the HTML page definition files and graphics, as well as the content of the website that was supplied by the Client.
10. Termination for Cause
Any breach of your payment obligations or unauthorized use of the BFG Technology or Service will be deemed a material breach of this Agreement. BFG, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, BFG may terminate a free account at any time in its sole discretion. You agree and acknowledge that BFG has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
11. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. BFG represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online BFG help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
12. Indemnification
You agree to indemnify and hold BFG, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, judgements, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use or presentation of the Service infringes the rights of, or has caused harm to, a third party; (ii) a claim which, if true, would constitute a violation by you of your representations and warranties; or (iii) a claim that the services provided pursuant to this Agreement infringes on or violates any patents, copyrights, or trade secrets of third parties, or (iv) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that BFG (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release BFG of all liability and such settlement does not affect BFG's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
13. Disclaimer of Warranties
BFG and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the service or any content.BFG and its licensors do not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your requirements or expectations, (e) errors or defects will be corrected, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components. The service and all content is provided to you strictly on an "as is" basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by BFG and its licensors.
14. Internet Delays and Backup
BFG's services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. BFG is not responsible for any delays, delivery failures, or other damage resulting from such problems.
BFG regularly backs up Site Information stored as part of the Service, and stores the same for a limited time. BFG will make reasonable efforts to restore Site Information if requested to do so by the Client. BFG will have no liability for any failure to back up or restore such Site Information, or for interruptions, delay or suspension of access to or unavailability of Site, Registration or Personal Information, or any loss of such Information, data or transmissions.
15. Limitation of Liability
a. BFG’s responsibilities are defined by, and restricted to those items specified the appropriate Service Definition.
b. BFG assumes no liability for how and where your Web Site appears in Internet Search Engines/Directories as such placement is acknowledged by you to be at the discretion of the Search Engine/ Directory providers.
c. You understand that BFG has made no guarantees as to the performance, success or return on investment of the Service.
d. BFG does not represent or warrant that the Service will work with browser software other than Microsoft Internet Explorer version 4 or later and AOL version 6 or later.
e. In no event shall either party's aggregate liability exceed the amounts actually paid by and/or due from you in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this service, including but not limited to the use or inability to use the service, or for any content obtained from or through the service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party's licensors have been previously advised of the possibility of such damages.
16. Notice
BFG may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in BFG's account information, or by written communication sent by first class mail or pre-paid post to your address on record in BFG's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to BFG (such notice shall be deemed given when received by BFG) at any time by email to info @ bluefiregroup.com, or recorded delivery of a letter sent to BLUE FIRE GROUP, PO BOX 630738, LITTLETON, CO 80163-0738, USA.
17. Modification to Terms
BFG reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
18. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of BFG but may be assigned without your consent by BFG to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of BFG directly or indirectly owning or controlling 50% or more of you shall entitle BFG to terminate this Agreement for cause immediately upon written notice.
19. General
With respect to U.S. Customers, this Agreement shall be governed by Colorado law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Denver, Colorado. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and BFG as a result of this agreement or use of the Service. The failure of BFG to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BFG in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and BFG and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
20. Definitions
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
"Agreement" means these terms of use, any Order Forms, whether written or submitted online via the Online Order Center, and any materials available on the BFG web site specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by BFG from time to time in its sole discretion;
"BFG" means collectively Blue Fire Group, Inc., having its principal place of business in LITTLETON , Colorado;
"BFG Technology" means all of BFG's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by BFG in providing the Service;
"Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
"Customer Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service;
"Effective Date" means the earlier of either the date this Agreement is accepted, either by signing the contract, or by selecting the "I Accept" option presented on the screen after this Agreement is displayed, or the date you begin using the Service;
"Initial Term" means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter);
"Intellectual Property Rights" means un patented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"License Administrator(s)" means those Users designated by you who are authorized to purchase licenses online using the Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service;
"License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);
"Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);
"Online Order Center" means BFG's online application that allows the License Administrator designated by you to, among other things, add additional Users to the Service;
"Service(s)" means the specific version of the Service as defined in the appropriate Service Definition, or other corporate services identified during the ordering process, developed, operated, and maintained by BFG, accessible via a designated web site or IP address, or ancillary online or offline products and services provided to you by BFG, to which you are being granted access under this Agreement, including the My Buying Buddy Technology, Community Websites Technology, Website Content Manager Technology and the Content;
"Site Information" means the Client's content and data contained within the Service;
"User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by BFG at your request).
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to bfginfo @ bluefiregroup.com