These terms of service in this SaaS Services Agreement (the “Agreement”) are between Blazestack Inc., a Texas corporation (“Blazestack”), and the entity agreeing to this Agreement (“Customer”). The Agreement is effective upon acceptance.
Capitalized terms have the meanings described in this section or in the body of the Agreement.
“Agreement” means these terms of service.
“Customer Data” means all electronic data or information that Customer submits to the Service or is submitted on behalf of Customer as well as all Generated Data, as defined in Section 2.2, except to the extent of any data, information, or intellectual property owned by Blazestack or any third-party.
“Report” means any report, content, photo, technique, hypothesis, finding, study relating to origin-and-cause of any fire prepared by Customer and/or User.
“Service” means Blazestack’s proprietary fire investigation software accessible through the internet, that is intended for use in the investigation of fire.
“Term”means the trial period agreed to by the parties.
“Third-PartyProducts” means any products or services not developed by Blazestack.
“User” means a single, unique authorized individual of the Customer that uses the Service on Customer’s behalf.
2.1. Provision of Service. Blazestack shall provide Customer with access to the Service during the Term for a reasonable amount of Users in the sole discretion of Blazestack. The username and password of each unique User may not be shared with or used by any individual except the original intended user.
2.2. Use of Service. Customer shall use the Service and the data generated by the Service (“Generated Data”) only for fire investigation purposes.
2.3. System Requirements. Customer shall meet the minimum system requirements for access to the Service, currently set forth at the end of this Agreement but subject to change by Blazestack. Blazestack shall provide written notification to Customer for any changes to the minimum system requirements.
2.4. Third-Party Products. Blazestack may offer Customer the ability to use Third Party Products with the Service, subject to Customer’s agreement with any applicable terms and conditions for those Third-Party Products.
3.1. Blazestack Responsibilities. Blazestack shall provide Customer with access to the Service in accordance with this Agreement and all applicable laws.
3.2. Customer Responsibilities. Customer shall: (i) ensure Users comply with this Agreement; (ii) ensure any firewalls or other security measures are properly configured to allow Blazestack internet traffic on the necessary IP addresses and ports; (iii) whitelist any and all *.blazestack.com domains and*@blazestack.com email addresses, and disable any ad blockers, pop-up blockers, content filters, or any other technologies that may interfere with Blazestack security or User usability, in order to enable proper functioning of the Service; (iv) fully cooperate with Blazestack so that Blazestack can provide the Service; (v) be responsible for the Customer Data including the accuracy, completeness, and legality of the Customer Data; (vi) prevent un authorized access or use of the Service and promptly notify Blazestack if Customer discovers or reasonably believes any unauthorized access or use has occurred; (vii)use the Service in accordance with this Agreement and applicable laws; and (viii)create Reports in accordance with industry standards.
Furthermore, Customer is responsible for the results of the use of the Service, including any and all Reports, and hereby acknowledges to Blazestack that (a) Customer is solely responsible for any such use of Report and (b) Blazestack is not certifying or validating any portion of the Report.
3.3. Restrictions. Only Users may use the Service and only with the account credentials issued to that User by Customer. Users may not share their account credentials. Customer shall not, and shall not permit any third party to: (i)use the Service; (ii) interfere with or disrupt the integrity or performance of the Service; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Service available; (iv) remove any title, trademark, copyright, or restricted rights notices or labels from the Service; (v) modify or create a derivative work of the Service or any portion of the Service; (vi) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code, object code or underlying structure or algorithms of the Service; (vii) access or attempt to access or use the Services for purposes of competitive analysis of the Services or the development, provision, or use of a competing software service or product; or (viii) copy, record, screenshot, or otherwise capture any aspect of the Service in any medium without the prior written consent of Blazestack.
4.1. Definition. “Confidential Information” means all oral, electronic, or written information disclosed by Blazestack, whether or not designated confidential. Confidential Information includes, but is not limited to, information pertaining to the features, functionality, any testing, and performance of the Service, this Agreement, and Feedback.
4.2. Protection of Confidential Information. Customer may only use Confidential Information in relation to this Agreement. Customer shall maintain the confidentiality of Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information(including but not limited to maintaining reasonable administrative, physical, and technical safeguards) and no less than a reasonable degree of care. Each party has the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
4.3. Compelled Disclosure. If Customer is required by law or a valid court or government order to disclose any Confidential Information, then (to the extent permitted under law) Customer shall promptly notify Blazestack in writing of the required disclosure so that Blazestack may seek to protect its Confidential Information. Customer shall cooperate in seeking such protection.
5.1. Customer Ownership and Licenses. Customer owns all rights, title and interest in and to Customer Data and Reports. During the Term, Customer grants Blazestack a worldwide, non-exclusive, royalty-free, non-sublicensable (except as needed to provide the Service), non-transferable (except as described in Section 10.5 (Assignment)) right to access and use the Customer Data to provide the Service to Customer and to monitor and improve the Service. Customer shall back up Customer Data during the Term and may not have access to the Customer Data via the Service after the Term.
5.2. De-Identified Data. Blazestack may collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures and other information based on Aggregated Data (collectively, “De-Identified Data”). De-Identified Data will be owned solely by Blazestack and may be used for any lawful business purpose. “Aggregated Data” means Customer Data that is:(i) anonymized and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources; and (iii) presented in a way which does not reveal Customer’s identity.
5.3. Feedback. If Customer provides Feedback, Customer grants Blazestack sole and exclusive ownership of any and all intellectual property rights to any Feedback and results of the implementation or any such Feedback. “Feedback” means recommendations, suggestions, enhancement requests or any ideas, technology, developments, derivative works or other intellectual property related to the Service or Blazestack.
5.4.Reservation of Rights. Blazestack and its licensors reserve all right, title and interest in and to the Service, including all related intellectual property rights, subject to the limited rights expressly granted in this Agreement. No other rights are granted to Customer by this Agreement.
6.1. Term. The Term begins on the Effective Date and ends on the Termination Date. “Termination Date” means the end of the trial period as determined Blazestack’s sole decision to terminate the Agreement.
6.2. Termination for Cause. Blazestack may terminate this Agreement if Customer: (i)is in material breach of this Agreement; or (ii) becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.1. Mutual Warranties. Each party represents that it: (i) has the legal power to enter into this Agreement; (ii) will comply with all applicable laws in relationship to the provision and use of the Service during the Term; and (iii)will use reasonable efforts to avoid transmitting to the other party any harmful or malicious code, files, scripts, agents or programs.
7.2. Warranty Disclaimer. Blazestack does not make any representations that the functions performed by the Service will meet all of Customer’s requirements, that the operation of the Service will be uninterrupted or error free, that all defects in the Service will be corrected, or that the Service will be available in all languages or all countries.
THE SERVICE IS PROVIDED “AS IS.” EXCEPT AS EXPRESSLY PROVIDED HERE IN, BLAZESTACK MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SPECIFICALLY, THIRD PARTY CONTENT AND TEST FEATURES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY NETWORKING OR HOSTING PROVIDERS OR THIRD-PARTY PRODUCTS.
7.3. Indemnification. Customer shall indemnify, defend, and hold harmless Blazestack and its officers, directors, employees, agents, successors, and assigns against all losses arising out of or resulting from any claim, suit, action, or proceeding related to or arising out of or this Agreement.
8.1. IN NO EVENT WILL BLAZESTACK HAVE ANY LIABILITY TO THE CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY OTHER CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT,SPECIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1. Terms for U.S. Government Customers. This section applies only to Customers that are U.S. government entities subject to the cited regulations (“U.S. Government Customers”). The Service is a “commercial item” (as defined in 48C.F.R. 2.101) and involves the use of “commercial computer software” and“ commercial computer software documentation” (as used in 48 C.F.R. 12.212). All U.S. Government Customers acquire subscriptions to the Service only as a“ commercial item” and only with those rights that are granted to all other end-users pursuant to the terms and conditions of this Agreement, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.72021 through 227.72024.
10.1. Dispute Resolution; Governing Law; Forum. The parties shall first attempt to resolve any dispute through mediation. The parties shall jointly select a mediator and shall participate in good faith in the mediation process. The costs of the mediation process shall be shared equally by the parties. The mediation shall take place in Austin, Texas. If the dispute is not resolved through mediation within 90 days from receipt by one party of the initial notice of the dispute from the other party, either party may proceed to court to seek resolution. Each party waives its right to a jury trial. The laws of the State of Texas govern this Agreement excluding that State’s choice-of-law provisions. Venue for any disputes that proceed to legal action shall take place in Travis County, Texas.
10.2. Notices. Notices under this Agreement must be in writing and will be considered given upon: (i) delivery by traceable courier or mail (delivery confirmation/return receipt requested); or (ii) the second business day after sending by email. Notices to Blazestack should be sent to notice@blazestack.com.
10.3. Customer References. Blazestack may include Customer’s name, logo and success stories in Blazestack’s website, press releases, promotional and sales literature, and lists of customers.
10.4. Force Majeure. Blazestack will not be responsible for failure or delay of performance if caused by an event outside the reasonable control of either party, including but not limited to an electrical, internet, or telecommunication change or outage not caused by the obligated party; government restrictions; or illegal acts of third parties (“Force Majeure Event”). Each party will use reasonable efforts to mitigate the effect of a Force Majeure Event.
10.5. Assignment. Customer may not assign any of its rights or obligations under this Agreement without Blazestack’s prior written consent.
10.6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.7. Waiver. No failure or delay by Blazestack to exercise any right under this Agreement will constitute a waiver of that right, unless expressly stated in this Agreement.
10.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be modified to the minimum extent necessary to make it enforceable. The provision will be disregarded only if such modification is not possible or is prohibited by law. The remaining provisions of this Agreement will remain in effect.
10.9. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter set forth herein during the Term, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, check, or other business form that Customer may use in connection with the acquisition or licensing of the Service or Software will have any effect on the rights, duties, or obligations of the parties under this Agreement, regardless of any failure of Blazestack to object to such terms, provisions, or conditions. This Agreement shall remain in effect between the parties unless and until termination or an agreement with an order form between the parties is fully executed.
As used in this Agreement, the terms “including,” “include,” and “includes” are not limiting and shall be deemed to be followed by the phrase “without limitation.” Use of the terms “hereunder,” “herein,” “hereby,” and similar terms refer to this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties hereto.
10.10. Headings. Headings are for reference only and do not affect the meaning or interpretation of this Agreement.
10.11. Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart is an original. All counterparts together form one document.
10.12. System Requirements. Customer shall meet the minimum system requirements foraccess to the Service
