Blueclone Networks TOS – Terms of Service

Published: October 2006 | Last Revised: November 2013

THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND BLUECLONE NETWORKS LLC (“BLUECLONE”) GOVERNING YOUR USE OF BLUECLONE’S WEBSITES (INCLUDING THE CONTENT OF THOSE SITES), SERVICES AND SOFTWARE (“BLUECLONE SERVICE”) INCLUDING OTHER ASSOCIATED SOFTWARE, TOOLS, FEATURES, AND SERVICES PROVIDED THROUGH OR BY BLUECLONE OR BLUECLONE’S PARTNERS IF CONNECTED TO A BLUECLONE SERVICE. BY ACCESSING ANY BLUECLONE WEBSITE AND/OR USING ANY BLUECLONE SERVICE, YOU AGREE TO THESE BLUECLONE TERMS OF SERVICE (THE “TOS”), YOU AGREE TO RECEIVE NOTICES FROM BLUECLONE ELECTRONICALLY, YOU AGREE TO THE PRIVACY PRACTICES DESCRIBED IN THE PRIVACY POLICY AND YOU CONSENT TO JURISDICTION OF THE STATE OF NEW JERSEY FOR ANY DISPUTE. YOU ACKNOWLEDGE THAT BLUECLONE OFFERS THE BLUECLONE SERVICE WITHOUT WARRANTIES (SEE PARAGRAPH 13) AND THAT YOUR REMEDIES ARE LIMITED (SEE PARAGRAPH 14). IF YOU DO NOT AGREE TO THE TOS, CANCEL OUT OF YOUR ACCESS, REGISTRATION, OR INSTALLATION OF THE BLUECLONE SERVICE IMMEDIATELY AND DO NOT INSTALL OR USE THE BLUECLONE SERVICE. THIS TOS SUPERSEDES THE TERMS OF SERVICE AND/OR TERMS OF USE ACCOMPANYING ANY PRIOR INSTANCE OR VERSION OF A BLUECLONE SERVICE YOU MAY HAVE USED OR PREVIOUSLY HAD ACCESS TO. IF YOU ARE A USER OF A HOSTED, ONLINE, CLOUD, ENTERPRISE OR PRIVATE LABELED BLUECLONE SERVICE, COMMUNICATIONS SERVICE, VOICE SERVICE, OR CO-BRANDED BLUECLONE SERVICE, ADDITIONAL TERMS AND PRIVACY CONDITIONS MAY APPLY TO ITS USE.

1. PRIVACY.
The Privacy Policy explains Blueclone’s information practices that apply to your Registration Information (defined below) and other information about you and your use of the Blueclone Service. You consent to the transfer of this information to and within the United States, Canada, India, England, Russia, or other countries for processing and storage by us.

2. MODIFICATION TO THE TERMS OF SERVICE.
Blueclone may change the TOS at any time and in its sole discretion. Blueclone will provide notice at least 30-days before any material changes take effect to these TOS via an update posted on Blueclone’s associated website. If you do not agree with the modified TOS, discontinue using the Blueclone Service. Your affirmative act of continuing to use the Blueclone Service after a change takes effect signifies your agreement to the newer TOS.

3. REGISTRATION.
A Blueclone Service may require the user to register and provide information to Blueclone such as name, e-mail address, physical address, network details, passwords, encryption keys, payment information, and username (the “Registration Information”). You agree that you will provide accurate and complete Registration Information and that you will keep such information current. A Blueclone Service may require that you maintain a valid Blueclone username. If you already have a username through registration for a prior version of Blueclone Service, you may use that same username in connection with newer Blueclone Service if it’s available for that particular Blueclone Service. If you do not have a username, you can obtain one by registration with the Blueclone Service. Blueclone, its subsidiaries, and its partners may reject any username that it determines in its discretion is unacceptable for use on the Blueclone Service and/or within Blueclone’s network.

4. INACTIVE STATUS.
Blueclone reserves the right to deactivate your account connected with any Blueclone Service and delete any data (in any form) connected with any Blueclone Service if your account has not been used for over sixty (60) days and/or immediately for inactivity due to non-payment. If your account is canceled, you may need to re-register to gain access to registration-based features and tools. If your username is canceled, Blueclone has the right to assign it to another user. You agree that Blueclone has no responsibility or liability for the deletion or failure to store any data contained in any deactivated Blueclone Service.

5. YOUR RESPONSIBILITY.
You are responsible for all activity made by anyone who uses the Blueclone Service on your behalf. You agree to keep confidential the passwords associated with your Blueclone Service including related account(s). You agree to indemnify and hold harmless Blueclone, its subsidiaries and partners for losses incurred by Blueclone, or another party utilizing your Blueclone Service, or if you fail to use reasonable care while using any Blueclone Service. You represent and warrant that you have adequate legal capacity to enter into binding agreements such as these TOS.

6. COMMUNICATIONS.
You are responsible for obtaining and paying for your own Internet access, and for determining whether you will be charged any fees for accessing and/or the transferring of data to or from Blueclone, its subsidiaries, partners, or the cloud using the type of connection and device of your choice including but not limited to mobile and cellular devices.

7. PROPRIETARY RIGHTS.
Blueclone and in some cases its partners or licensee retain all title, ownership, and intellectual property rights in Blueclone Service. Blueclone Service is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Blueclone Service, including without limitation text, media, photos, music, and videos (“Content”), are the property of the applicable Content owners and are protected by applicable law. Blueclone, and in some cases its partners or licensee, own all trademarks used in connection with Blueclone Service, and no license to use any such trademarks is provided hereunder. Blueclone welcomes your feedback regarding all products. You agree that Blueclone may use in any manner and without limitation all comments, testimonials, case studies, reviews, suggestions, complaints and other feedback you provide relating to any Blueclone Service.

8. LINKED CONTENT.
Blueclone may include in any Blueclone Service links to websites, documents, or access portals of affiliates and partners, as well as RSS feeds. The content on the linked sites is provided to you for informational purposes only. Blueclone makes no representations or warranties regarding the accuracy or reliability of the information included in such content. Reproduction and redistribution of such content is strictly prohibited. Use of any website or services reached through links included in the Blueclone Service is subject to the terms presented on such website, media or service.

Requirements for linking to www.blueclone.com:
Blueclone makes no representations or warranties concerning the legality or propriety of the content of any site linked to this site. Use of the Content from this site on any other site or in a networked computer environment, including but not limited to, framing the Content within another site, is expressly prohibited without the prior written permission of Blueclone.

Upon Blueclone’s written consent, you must agree to the following guidelines:
A link to any Blueclone website must not appear connected to any other logos and graphics. No alterations or sizing of Blueclone’s artwork, logos or graphics is permitted. The Blueclone name and logo must not be associated with unfair, negative, deceptive or libelous advertising or commentary or used in any way that will tend to injure or compromise our professional reputation and corporate identity and policies. Your text hyperlink must include the following company name: “Blueclone Networks” unless you’ve obtained prior written permission from Blueclone to modify the link. No changes or stylization is permitted.

By using a Blueclone Service, you consent to the display of your logo, company information, and website on the any of Blueclone’s websites (including blueclone.com) and you authorize Blueclone to link to your website for purpose of identifying previous and/or current clients. You may request to opt out of linking to your website by sending a written request to the address on our contact page within 30 days of first using or registering a Blueclone Service, whichever occurred first.

9. CHANGES TO THE SERVICE.
Blueclone has the right at any time to change, modify, add to, discontinue, or retire any aspect or feature of the Blueclone Service including, but not limited to, hosted applications, Managed IT Services, Remote Backup Service, content, hours of availability, response time, equipment needed for access or use, the amount or size of data that may be archived, backed up, transferred, stored or processed, or the availability of the Blueclone Service on any particular device, equipment or communications service. Blueclone has no obligation to provide you with notice of any such changes.

10. RESTRICTIONS ON ACCESS TO OR USE OF THE BLUECLONE SERVICE.
You may access the Blueclone Service only through the interfaces and protocols provided or authorized by Blueclone. You agree that you will not access Blueclone Service through unauthorized means, such as unlicensed software clients, and that you will only use Blueclone Service in conjunction with Blueclone authorized services, products, components and vendors.

11. AUTOMATED UPDATES.
Blueclone may deliver to your hardware, computers, or device automated updates, modifications, and/or patches to any Blueclone Service to address issues such as security, interoperability, and performance (collectively “Updates”). Some Updates may change certain functionality of the Blueclone Service to, for example, improve security, add new functions, or improve the operation of the Blueclone Service. Your use of the Updates will be governed by this Agreement unless you are asked to agree to new or additional terms and conditions at the time of upgrade, download or installation.

12. USE OF OPEN SOURCE CODE.
Portions of the Blueclone Service may have been created using source code available through various open source projects.

13. DISCLAIMER OF WARRANTY.
YOUR USE OF THE BLUECLONE SERVICE IS AT YOUR SOLE RISK. THE BLUECLONE SERVICE IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. SPECIFICALLY, BLUECLONE AND ITS PARTNERS DISCLAIM IMPLIED WARRANTIES THAT BLUECLONE SERVICE ARE OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. BLUECLONE AND ITS PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN BLUECLONE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF BLUECLONE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN BLUECLONE SERVICE WILL BE CORRECTED. BLUECLONE AND ITS PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF BLUECLONE SERVICE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. BLUECLONE PROVIDES ITS SERVICE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT REGISTERED USERS WILL BE ABLE TO ACCESS OR USE BLUECLONE SERVICE AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT BLUECLONE WILL HAVE ADEQUATE CAPACITY FOR THE BLUECLONE SERVICE AS A WHOLE.

14. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BLUECLONE OR ITS AFFILIATES, OWNERS, MANAGEMENT, EMPLOYEES, DISTRIBUTORS, LICENSORS, LICENSEE, SUPPLIERS, AGENTS, PARTNERS OR RESELLERS (COLLECTIVELY, THE “BLUECLONE GROUP”) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE BLUECLONE GROUP’S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THE SERVICE (IF ANY) AND REPLACEMENT OR CORRECTION OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR BLUECLONE SERVICE, AS DETERMINED AT BLUECLONE’S SOLE DISCRETION, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF BLUECLONE TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. THE BLUECLONE GROUP IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE BLUECLONE SERVICE, SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. BLUECLONE DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY SERVICE, PRODUCT, SOFTWARE, HARDWARE, OR PROFESSIONAL SERVICES OFFERED THROUGH OR WITH THE BLUECLONE SERVICE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR ANY SUCH PRODUCTS OR SERVICES, INCLUDING MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

15. INDEMNIFICATION.
You agree to defend, indemnify and hold harmless Blueclone, its partners, and their respective management, officers, owners, employees, and agents from and against all claims and expenses, including attorneys’ fees, arising out of your use of Blueclone Service. Blueclone reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, and only in such event, shall you have no further obligation to provide indemnification for Blueclone in that matter.

16. INJUNCTIVE RELIEF.
You acknowledge and agree that, notwithstanding any other provisions of the TOS, your breach or threatened breach of the TOS shall cause Blueclone irreparable damage for which recovery of money damages would be inadequate and that Blueclone, therefore, may obtain timely injunctive relief to protect its rights under this TOS in addition to any and all other remedies available by law or in equity.

17. TERMINATION.
Blueclone has the right to terminate your account, your registration, the Blueclone Service, and/or access to the Blueclone Service for any reason, including, without limitation, if it, in its sole discretion, considers your use to be unacceptable, or in the event of any breach by you of the TOS (either directly or through breach of any other terms and conditions or operating rules applicable to you), with or without notice.

18. ELECTRONIC DELIVERY POLICY.
Blueclone, as a “Green” company, transacts with its users electronically when possible. WHEN YOU SIGN UP OR REGISTER FOR ANY BLUECLONE SERVICE, YOU CONSENT TO RECEIVE ELECTRONICALLY FROM BLUECLONE ANY PRIVACY OR OTHER NOTICES, AGREEMENTS, DISCLOSURES, REPORTS, DOCUMENTS, COMMUNICATIONS, OR OTHER RECORDS (COLLECTIVELY, “NOTICES”). You agree that Blueclone generally can send you electronic Notices in any of the following ways: (1) to the email address that you provided to Blueclone during registration, (2) to any secondary email account you provided to Blueclone, (3) via software alerts and remote management agents, or (4) Blueclone may post Notices on a welcoming screen or initial pages of the relevant Blueclone Service. You must check your designated email address regularly for Notices. You must have a computer or server connected to a communications source (telephone, wireless or broadband), a Linux or Windows-based operating system with an Internet browser and Internet email software in order to access electronic communications. You will need a printer attached to your business or personal computer to print any Notices or encryption keys. The delivery of any Notice from Blueclone is effective when sent by Blueclone, regardless of whether you read the Notice when you receive it or whether you actually receive delivery. Blueclone strongly recommends adding the blueclone.com domain to the “allow” and/or “White list” of every firewall, anti-spam system, anti-virus system and junk mail filters that may process email before reaching your email client. Your only method of withdrawing consent to receive Notices electronically is to terminate any subscriptions, Blueclone Service or other products provided under these TOS.

19. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES.
You agree that the law of the State of New Jersey, U.S.A. governs this contract and any claim or dispute that you may have against Blueclone, without regard to New Jersey’s conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against Blueclone will be resolved by a court located in the State of New Jersey, County of Mercer.
PLEASE NOTE THAT BY AGREEING TO THESE TOS, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST BLUECLONE BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE STATE OF NEW JERSEY OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH BLUECLONE; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE STATE OF NEW JERSEY FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.

20. MISCELLANEOUS.
The TOS and any operating rules for any areas of functionality of the Blueclone Service established by Blueclone constitute the entire agreement between Blueclone and You regarding the subject matter of the TOS, and supersede all previous written or oral agreements. In the event of any inconsistency between these TOS and any such other terms of service or operating rules of a specific Blueclone Service, these TOS will supersede such other terms of service, terms of use, or operating rules. If any part of these Terms of Service is held invalid or unenforceable, that part shall be construed to reflect the parties’ original intent, and the remaining portions remain in full force and effect, or Blueclone may at its option instead terminate the TOS. The controlling language of the TOS is English. If you have received a translation into another language, it has been provided for your convenience only. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. You may not assign or otherwise transfer by operation of law or otherwise this agreement or any rights or obligations herein. Blueclone has the right to assign it to any entity in its sole discretion. This agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.

21. USERS OUTSIDE THE UNITES STATES.
If you are using the Blueclone Service outside of the United States, then the provisions of this Section shall apply: (i) Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s’y rattaché, soient redigés en langue anglaise. (translation: “The parties confirm that this Agreement and all related documentation is and will be in the English language.”); (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Blueclone Service, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable; and (iii) if the laws applicable to your use of the Blueclone Service would prohibit the enforceability of this Agreement, or impose any additional burdens on Blueclone, or confer any rights to you that are materially different from the terms and conditions of this Agreement, then you are not authorized to use the Blueclone Service and you agree to stop using it and should software be installed on your computers or servers, you will remove it immediately.