THESE TERMS (“TERMS”) GOVERN THE PROVISION OF CONSULTANCY SERVICES BY BRIDGELINE TO THE CUSTOMER. BY ACCESSING, AGREEING TO A BRIDGELINE ORDER FORM AND AGREEING TO A SAAS LICENSE AGREEMENT YOU ACCEPT OR AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO OR ACCEPTING THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE, THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE BRIDGELINE’S PRODUCTS OR SOFTWARE SERVICES.
a) Definitions can be found at www.bridgeline.com/legal/definitions.
Customer retains Bridgeline to provide the consultative services (“Services”) and other deliverables and documentation (“Deliverables”) as described in a Statement of Work (“SOW”) executed by both parties incorporated into this Agreement, subject to the terms and conditions set forth in this Agreement (together the Services and Deliverables shall be called the “Work”)
Each SOW will define (a) the Work authorized by the Customer, (b) the anticipated schedule or term of the engagement, (c) the applicable rates for the Work and whether the Services are to be performed and billed based on the number of hours performed by Bridgeline (a “Time and Materials SOW”), billed at a pre-defined rate or amount (a “Fixed Fee SOW”), or billed at the end of pre-defined regular time periods on an hourly rate with a pre-defined minimum number of hours per period (a “Retainer SOW”), and (d) other appropriate terms and conditions as warranted. Bridgeline and Customer shall use reasonable efforts based on the scope, costs and other factors known at the time to develop the estimate (“Estimate”) included in each SOW. For any Estimate in a Fixed Fee SOW, Bridgeline reserves the right during the course of the project to invoice up to an additional twenty percent (20%) of the Estimate to cover any unforeseen contingencies (the “Contingency Fee”). Any changes requested by Customer in the work agreed to in a Fixed Fee SOW or changes in delivery dates including any postponement or cancellation of services which cause Bridgeline to incur additional expense will be paid by Customer. In the event of any conflict between the terms and conditions of this Agreement and any terms set forth in a SOW, the terms of the SOW will prevail. A Fixed Fee SOW may include Deliverables to which an allocated number of hours (the “Allocation”) is included in the Fixed Fee price and if the effort required by Bridgeline for such a Deliverable exceeds the Allocation the additional hours shall be billed at the applicable Time and Materials Rate defined in the SOW.
If Customer’s acts or a failure to act causes Bridgeline to delay or suspend the performance of Services for a period exceeding ten (10) consecutive business days, Bridgeline shall invoice the Customer a suspension fee of ten percent (10%) of the Estimate of the SOW. Notwithstanding anything to the contrary herein, if the delay or suspension continues for more than thirty (30) consecutive business days, Bridgeline, at its discretion, may consider such as termination of the SOW under Section 6 of this Agreement.
a) Fees and Expenses. For a Fixed Fee SOW, Customer will pay Bridgeline in accordance with the amounts and payment terms set forth in the SOW. For a Time and Materials SOW, Customer will pay Bridgeline for its time expended in performing the Services based on the hourly rates set forth in the SOW. For a Retainer SOW, Customer will pay Bridgeline for its time expended in performing the Services subject to a minimum number of hours to be billed per time period based on the hourly rates set forth in the SOW. In addition, Customer will reimburse Bridgeline for certain expenses incurred in connection with the performance of Services, such as incidental expenses including courier charges, overnight delivery and printing and travel expenses including airfare, lodgings, transportation costs, and meals. All expenses will be invoiced to Customer at Bridgeline’s cost.
b) Invoicing and Payment. For each Fixed Fee SOW, a deposit invoice in an amount equal to thirty percent (30%) of the total Estimate set forth in the SOW will be issued and is due on execution of the SOW. When the deposit invoice is depleted, invoices will be issued monthly based on the number of hours of work performed by Bridgeline and the applicable Rate defined in the SOW until the Estimate, and if applicable the Contingency Fee, is fully paid. When the Services as specified in a Fixed Fee SOW have been completed any unbilled amounts for the Fixed Fee shall be paid by the Customer.
c) Deliverables for a Fixed Fee SOW will be subject to acceptance by Customer in accordance with the procedures set out in this Section. Upon completion of the Work, Bridgeline shall notify the Customer and the Customer shall have ten (10) days to inspect the Work (the “Acceptance Period”). During the Acceptance Period Customer may provide notice of Acceptance or will notify the Bridgeline specifying in reasonable detail any deficiencies in the Work (the “Deficiency Notice”). If Customer does not send notice during the Acceptance Period the Work shall be deemed accepted and the Fixed Fee SOW shall be completed. Bridgeline shall address any deficiencies in the Deficiency Notice and resubmit them to Customer for review. Until the Work is accepted by the Customer, the Customer shall not have the right to use the Work. For each Time and Materials SOW, monthly invoices will reflect the time expended in providing Services at the hourly rates set forth in the applicable SOW. For each Retainer SOW, monthly invoices will reflect the time expended in providing Services subject to the minimum number of hours per time period at the hourly rates set forth in the applicable SOW. All invoices are due and payable upon receipt. Expenses will be invoiced as incurred and are also due upon receipt. All payments will be made in US currency. Customer will be solely responsible for any applicable taxes, including but not limited to sales and use tax, value added tax, excise tax and consumption tax or similar charges or fees. Any sum not paid by Customer when due will bear interest until paid at a rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less. If any amount is not paid when due hereunder, Bridgeline will be entitled to recover from Customer the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and attorney’s fees).
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ALL RIGHTS GRANTED TO CUSTOMER UNDER THIS AGREEMENT ARE CONTINGENT UPON CUSTOMER’S PAYMENT IN FULL OF ALL AMOUNTS DUE HEREUNDER.
a) Customer may terminate this Agreement and any SOW in effect, either with or without cause, upon thirty (30) days written notice to Bridgeline. Upon such termination Customer will be responsible for all outstanding invoices plus fees and expenses incurred, including non-cancellable expenses, up to the effective date of termination. In the event Customer cancels or terminates the SOW for any reason other than Bridgeline breach, Customer will pay Bridgeline a cancellation fee equal to thirty percent (30%) of the total Fees specified in the applicable SOW. Non-cancellable expenses are purchases of equipment or licenses, as mutually agreed between the Customer and Bridgeline, for execution of the services defined in the applicable SOW.
b) Bridgeline may terminate this Agreement at any time without cause by giving thirty (30) days prior written notice to Customer provided that Bridgeline completes any work required to be provided pursuant to any outstanding SOW unless otherwise expressly agreed to by Customer.
c) Bridgeline may terminate this Agreement or any SOW if Customer does not comply with any of its terms including payment of invoices, provided that Customer is given thirty (30) days notice to cure.
d) In the event of termination by Bridgeline, Customer will pay for time, materials and project related expenses incurred, including non-cancelable expenses, through such termination as defined within each SOW.
e) Sections 5 through 13 of these terms and conditions will survive any termination of the Agreement.
a) Customer Materials. All content (including without limitation, trademarks, artwork, logos, graphics, video, text, data, and other materials) provided by Customer to Bridgeline in connection with this Agreement (“Customer Materials”) will remain the sole and exclusive property of Customer.
b) Deliverables. Except as set forth in Section 7c) of this Agreement, Bridgeline hereby assigns to Customer the rights, title, and interest in and to any Deliverables developed under this Agreement provided that all amounts due have been paid.
c) Bridgeline IP. All software, documentation, or other work owned, developed, or licensed by Bridgeline prior to this Agreement or developed outside of this Agreement and used and/or modified by Bridgeline to fulfill its obligations under this Agreement, all source programming code incorporated into the Deliverable, and all proprietary design techniques (including without limitation the intermediate design files), methodologies, and developmental processes (including without limitation the ownership of intermediate work product) of Bridgeline (collectively, “Bridgeline IP”) will remain the sole and exclusive property of Bridgeline. To the extent that any Deliverable embodies or reflects any Bridgeline IP, Bridgeline hereby grants to Customer an irrevocable, perpetual, non-exclusive, worldwide, fully paid up, royalty-free license for the use, copy, display, reproduction, and performance of such Bridgeline IP for Customer’s internal business use in connection with the Deliverable only. Customer agrees not to resell any Deliverable or portion of a Deliverable that includes Bridgeline IP.
a) Bridgeline Indemnification.
i) Bridgeline shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (collectively, "Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights, provided that Customer promptly notifies Bridgeline in writing of the claim, cooperates with Bridgeline, and allows Bridgeline sole authority to control the defense and settlement of such claim.
ii) If such a claim is made or appears possible, Customer agrees to permit Bridgeline, at Bridgeline's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Bridgeline determines that neither alternative is reasonably available, Bridgeline may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
iii) This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Bridgeline or authorized by Bridgeline in writing; (B) modifications to the Services not made by Bridgeline; or (C) Customer Data.
b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Bridgeline's option, defend Bridgeline from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) Customer’s breach or alleged breach of this Agreement; (iii) use of the Services in a manner not authorized by this Agreement; (iv) use of the Services in combination with data, software, hardware, equipment or technology not provided by Bridgeline or authorized by Bridgeline in writing; or (v) modifications to the Services not made by Bridgeline, provided that Customer may not settle any Third-Party Claim against Bridgeline unless Bridgeline consents to such settlement, and further provided that Bridgeline will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
c) Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER'S SOLE REMEDIES AND BRIDGELINE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL BRIDGELINE'S LIABILITY UNDER THIS SECTION 8 EXCEED THE TOTAL AMOUNTS PAID TO BRIDGELINE UNDER THIS AGREEMENT IN THE PRECEDING TWELVE (12) MONTH PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINER HEREIN, IN NO EVENT WILL BRIDGELINE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BRIDGELINE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BRIDGELINE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO BRIDGELINE UNDER THIS AGREEMENT IN THE PRECEDING SIX (6) MONTH PERIOD.
THE DELIVERABLES ARE PROVIDED "AS IS" AND BRIDGELINE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BRIDGELINE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BRIDGELINE MAKES NO WARRANTY OF ANY KIND THAT THE DELIVERABLES, OR ANY PRODUCTS OR SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Such certification may provide for limited copies which may need to be maintained by the receiving Party as part of archival process or reference, legal or otherwise.
During the term of this Agreement and for a period of one (1) year thereafter, Customer will not solicit for hire or engagement, or cause others to solicit for hire or engagement, directly or indirectly, as an employee or independent contractor, any employee or contractor of Bridgeline who is involved in the performance of Services under this Agreement. The term “solicit for hire or engagement” specifically excludes any broad-based effort to attract applicants if not specifically targeted to or specifically designed to attract Bridgeline’s employees or contractors.
Bridgeline may include Customer’s name and general case study information within Bridgeline marketing material provided that such listing does not state or imply that Customer endorses Bridgeline or its services. Customer will provide Bridgeline the opportunity to place Customer’s logo on its website.
a) Entire Agreement. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the linked to documents and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the License Order Form, (ii) second, the Statement of Work and (iii) third, the SaaS License Agreement, and (iv) fourth this MasterServices Agreement. Bridgeline and Customer each represent that it has validly entered into or accepted the Agreement and the legal power to do so. Bridgeline may modify these Terms from time to time. Any and all changes to these Terms will be published at www.bridgeline.com/legal/license-agreement and the Terms will indicate the date they were last updated. Material changes will become effective thirty (30) days after publication. Customer is deemed to accept and agree to the be bound by any changed to the Agreement when Customer use the Service after the effective date of those changes. Notwithstanding the foregoing, in the event that the parties enter into, or have entered into a separate formal written license agreement, the terms of that agreement shall control over the terms of this Agreement unless the parties expressly agree to supersede such agreement with the Agreement. Any term or condition stated in an Order Form or other Customer order documents is void. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of the Agreement will remain in effect. All reference in the Agreement to “including” means “including, but not limited to”.
b) Manner of Giving Notice.
i. Updates. All updates to Definitions will be published at www.bridgeline.com/legal/definitions. All updates to SLAs will be published at www.bridgeline.com/legal/service-level-agreement. All updates to Acceptable Use Policy will be published at www.bridgeline.com/legal/acceptable-use. Updates to Definitions, SLA and Acceptable Use Policy will be effective 30 days after publishing.
ii. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission from the receiving party) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
d) Amendment and Modification: Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
f) Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Bridgeline. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
EFFECTIVE DATE: NOVEMBER 1, 2023