Acceptance of Terms
As used herein, the term “BlueToad Service” shall mean any intellectual property, products or services that BlueToad, Inc. (“BlueToad”) provides to you, including but not limited to, digital editions, data entry services, mobile applications, email deployment, animations, analytics, hosting, design services, web development, customer service, consulting service, licenses, system availability, or any other related software, technology, or service. BlueToad may utilize selected third-party subcontractor partners of BlueToad to provide any portion of the BlueToad Service. BlueToad may, at any time, change or discontinue any aspect, feature, or price of the BlueToad Service. BlueToad may also impose limits on certain features and services or restrict your access to parts or all of the BlueToad Service without notice or liability. You acknowledge that BlueToad may automatically issue upgraded versions of the software and systems comprising the BlueToad Service and, accordingly, may upgrade the version of the BlueToad Service that you are using without prior notice.
Registration and Security
When using the BlueToad Service, you may be required to create an account (publisher account, email account, and/or admin account) by registering and providing certain business and contact information. You are responsible for providing accurate registration information and for updating your account information as required. BlueToad reserves the right to change or revoke your username or password, as it deems necessary. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account or password. You may be liable for the losses incurred by BlueToad or others due to any unauthorized use of your BlueToad account.
You may only use the BlueToad Service for lawful purposes and in accordance with this Agreement, any standards or requirements established by BlueToad, and/or any other agreements between you and BlueToad. You may not restrict or inhibit any other person from using or enjoying the BlueToad Service. You will not use the BlueToad Service in jurisdictions where prohibited by applicable law. Except as expressly authorized by BlueToad, you agree not to use or launch any automated system, including without limitation “robots,” “spiders,” and “offline readers,” that accesses the BlueToad Service in a manner that sends more request messages to the BlueToad Service in a given period of time than a human can reasonably produce in the same period by using a conventional web browser or otherwise use the BlueToad Service to collect or harvest any personally identifiable information or any data regarding activities on or usage of the BlueToad Site. BlueToad reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the BlueToad Service, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
As used herein, the term “Content” shall include any content or information that you provide to BlueToad, whether orally, in writing, or electronically, including but not limited to, any content or information contained within PDFs, JPEGs, PNGs, GIFs, HTML, design files, email or email lists, or any other documents or files submitted to BlueToad. By providing Content to BlueToad, you grant BlueToad a limited, non-exclusive license to use the Content in connection with the BlueToad Service. You further represent and warrant that you have the right, title and interest to any and all Content that you provide to BlueToad and that your Content does not infringe any third party’s intellectual property rights. It is BlueToad’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millenium Copyright Act. BlueToad shall have the right to remove any Content that it, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable or in breach of your obligations.
BlueToad is a distributor (and not a publisher) of the Content and has no editorial control over the Content. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including those made in publications offered by the BlueToad Service, are those of the respective author(s) or publisher(s) and not of BlueToad. Neither BlueToad nor any third-party provider of information guarantees the accuracy, timely availability, completeness, or usefulness of any Content. Under no circumstance will BlueToad be liable for any loss or damage caused by your reliance as a reader on information obtained from the Content or otherwise through the BlueToad Service. The BlueToad Service may contain links to other Internet sites and third-party resources. BlueToad is not responsible for either the availability of these outside resources or their content. BlueToad is not responsible for any subscriptions associated with the Content. You agree that the person or Organization responsible for uploading and providing the Content through the BlueToad Service is fully responsible for all payments, refunds or questions associated with fulfillment or subscriptions.
BlueToad Intellectual Property
The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, names, marks, and all other elements of the BlueToad Service provided by BlueToad (collectively the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Content provided by you and other users of the BlueToad Service, all Materials contained on the BlueToad Service are the property of BlueToad or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names, including but not limited to BlueToad, CoverStand, Thermostats, and Media Deck, are proprietary to BlueToad or its affiliates and/or third-party licensors. Except as expressly authorized by BlueToad, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, decipher, decompile, disassemble, reverse engineer, or otherwise make unauthorized use of the Materials.
For each publication you pay to create a digital edition through BlueToad, limited hosting is provided for a period of three years from the date of upload. Limited hosting shall include up to 150,000 page views per frequency of the publication. Publications that exceed 150,000 page views in its given frequency (cumulative of all past and current issues) shall be subject to an additional overage fee. For purposes of determining overage fees, a page view occurs when a user is presented with a view of a page on any platform supported by BlueToad (digital or App). Please note that a spread view contains two page views. After three years of hosting, BlueToad will provide continued hosting for an additional archiving fee. BlueToad does not provide a service level agreement or guarantee any certain hosting or availability uptime. Current overage and archive fees can be found at www.bluetoad.com.
By submitting a Mobile Application Form (“App Form”) to BlueToad, you authorize BlueToad to submit a mobile application (“App”) on your behalf to the selected App Markets (currently iPhone, iPad, and/or Android) as indicated on your App Form. You further agree to be bound by this Agreement and any and all terms and fees contained within the App Form. BlueToad requires that you secure your own Apple, Google Marketplace, and Amazon Appstore for Android developer accounts for the processing of your App. When using your Apple, Google Marketplace, or Amazon Appstore for Android developer account, you agree to provide BlueToad with all information and credentials necessary for BlueToad to develop and submit an App as an authorized developer for your developer account.
BlueToad does not guarantee that your App will be approved and is not responsible for any applications that are denied for offensive or inappropriate content or for any other reason unrelated to the design or coding of the App itself. You agree to comply with all App content restrictions or requirements as set forth by Apple, Google Marketplace, or Amazon Appstore for Android. You further agree to refrain from any action or conduct that could jeopardize BlueToad’s developer relationship with Apple, Google Marketplace, or Amazon Appstore for Android. BlueToad shall have the right to discontinue processing or hosting your App if it believes that you are engaging in conduct that could jeopardize any of its developer relationships.
From time to time, you might request custom services from BlueToad. Custom services may include consulting, design, web development, software development, or any other services requested outside of BlueToad’s standard documented services. BlueToad does not guarantee that it can or will agree to perform any requested custom services on your behalf. To the extent BlueToad agrees to perform custom services, you will be required to execute a BlueToad Custom Solutions Agreement. BlueToad’s Custom Solutions Agreement will include a statement of work and a fee that will cover the agreed upon deliverable (the “Work Product”). BlueToad will use its good faith, commercially-reasonable efforts to perform the custom services in a timely and professional manner. Changes to the statement of work and/or deliverable may result in additional fees and costs and may alter the time period in which BlueToad can provide the Work Product. BlueToad’s Custom Solutions Agreement will include a specified amount of administrative time set aside to engage in meetings and discussions about the custom services project. If you require additional administrative time during the project, you will be billed at an agreed upon hourly rate, as identified in the Custom Solutions Agreement, in 30 minute increments.
Subject to payment pursuant to the Custom Solutions Agreement, for all software programs or products that constitute or include derivative works, customizations or enhancements by BlueToad of existing software or applications that are part of the BlueToad Service or Materials, BlueToad retains all ownership rights in the Work Product unless otherwise agreed to in the Custom Solutions Agreement. You shall only be entitled to use the Work Product pursuant to this Agreement as part of the BlueToad Service.
By electing to use BlueToad’s email services, you understand and acknowledge that the primary purpose of BlueToad’s email system is to send digital edition notifications to readers who have asked or otherwise indicated their desire to receive your Content. You further understand and acknowledge that it is in the best interest of you and other BlueToad clients to maintain the highest possible reputation of the IP being used to send out your emails. You agree to upload and use only confirmed, opted-in email lists. Your lists must be cleaned to remove any bad email addresses and must not be more than six months old to avoid outdated or abandoned email addresses. You specifically agree that you will not use BlueToad’s email services to send spam (unsolicited bulk emails) or to otherwise send unsolicited email to anyone with whom you have no relationship. You agree that you will not incorporate into any lists, emails or uploads to the BlueToad system any social security numbers, passwords, security credentials, sensitive personal information, or any misleading or incorrect information, including but not limited to names, addresses, email addresses, or subject lines. You agree that you will not upload or use any list that has been purchased, rented, or otherwise obtained from a third party. You agree to adhere to the requirements of the CAN-SPAM Act. You further agree not to use a BlueToad generated link in any email campaigns (notwithstanding the email service provider) that do not comply with the requirements set forth herein. BlueToad reserves the right to immediately remove your email privileges if you violate any of these requirements or otherwise engage in conduct that jeopardizes the reputation of BlueToad’s IP or email services.
By selecting BlueToad’s Assisted Setup, Retail, or Hands Free services, you agree to have BlueToad perform data entry on your publication. Data entry services currently include the following: (1) auto and manually linking all URLs and email addresses throughout the publication, (2) setting up the contents drop down menu for your publication, (3) setting up an advertiser menu for your publication, (4) setting up text versions of the articles in your publication, and (5) setting up and placing video, audio, or animation files provided by you. BlueToad reserves the right to modify the scope of its data entry services upon notice to you. BlueToad is not responsible for errors that might occur in the data entry process, including specifically any formatting or character errors resulting from the copying of text from your files. With the exception of formatting and character errors contained within the text version of your articles, BlueToad will make all reasonable efforts to correct within a reasonable amount of time any data entry mistakes you bring to its attention.
Analytics and System Generated Data
BlueToad gathers and records data and information on you, your account, your publications, the BlueToad Services you select, and the activities of readers (collectively “User and Reader Information”). To the extent made available to you by BlueToad, you may use without restriction all User and Reader Information associated with your account. BlueToad reserves the right to use the User and Reader Information in an aggregated and non-identifiable form for purposes of digital interaction studies and reports. This information may be made available to the public or otherwise used by BlueToad in providing consulting services. BlueToad further reserves the right to use the User and Reader Information internally for purposes of identifying breaches of this Agreement, diagnosing problems, or improving and developing the BlueToad Service, such as the decision to introduce new products, services or features.
Payment for BlueToad Services
BlueToad requires payment to be made by you electronically through PayPal prior to the performance of the BlueToad Service. To the extent agreed to in advance by BlueToad, BlueToad may invoice you for any or all of BlueToad Services. All amounts due are exclusive of local, state, federal and international sale, value added, excise and other taxes and duties of any kind. You agree to pay any and all taxes and duties arising out of or in connection with the BlueToad Service, other than taxes levied or imposed based upon BlueToad’s net income. Any payment not made when due shall accrue interest in the amount of 1.5% per month or the highest amount allowable by law, whichever is lower, such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount due. Late payment shall entitle BlueToad to discontinue all or any component of the BlueToad Service.
You agree to indemnify and hold BlueToad, its affiliated companies, contractors, employees, agents, directors, and shareholders and its third-party suppliers, licensors, and partners, harmless from and against any and all liability, claims, penalties, damages, injuries, costs, attorney's fees or other expenses of any nature whatsoever paid or incurred in connection with claims by any person (including claims of copyright, trademark, or patent infringement, as well as trade secret misappropriation) directly or indirectly arising from or relating to your use or misuse of the BlueToad Service, any violation by you of this Agreement, or any breach of the representations, warranties, and covenants made by you herein. BlueToad reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify BlueToad, and you agree to cooperate with BlueToad’s defense of these claims. Upon notice of any impending claim, action or proceeding, BlueToad will use reasonable efforts to notify you of any indemnification obligation.
Disclaimer of Warranty
THE BLUETOAD SERVICE IS PROVIDED AS IS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NON-INFRINGEMENT, NONINTERFERENCE, ACCURACY OF DATA, ACCURACY OF TRANSLATION, AVAILABILITY, TIMING, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER BLUETOAD NOR ITS AFFILIATES, LICENSORS, OR AGENTS WARRANT THAT THE BLUETOAD SERVICE WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BLUETOAD SERVICE, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION, SERVICE, OR GOODS PROVIDED IN CONNECTION WITH THE BLUETOAD SERVICE.
Limitation of Liability
IN NO EVENT WILL BLUETOAD OR ITS AFFILIATES, LICENSORS, OR AGENTS BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, AND CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION LOST PROFITS) OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE BLUETOAD SERVICE. YOU ACKNOWLEDGE THAT (I) THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON THE BLUETOAD SERVICE; AND (II) BLUETOAD IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF THIRD PARTIES INCLUDING BLUETOAD LICENSORS AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
Nothing in this Agreement or any other Agreement between you and BlueToad will be deemed to place you and BlueToad in the relationship of employer employee, principal agent, or partners or joint ventures. Neither you nor BlueToad will under any circumstances be liable for the other’s withholding taxes, payroll taxes, disability insurance payments, unemployment taxes, and other similar taxes or charges.
BlueToad has the right, but not the obligation, to monitor the BlueToad Service to (i) determine compliance with this Agreement, any standards or requirements established by BlueToad, and/or any other agreements between you and BlueToad; and (ii) satisfy any law, regulation or authorized government request.
Applicable Law and Binding Effect
This Agreement and any other agreements executed in connection with your receipt of the BlueToad Service will be governed by and interpreted under the laws of the State of Florida, and will inure to the benefit of and be binding upon the parties hereto and their heirs, personal representatives, successors and assigns. If any action, suit or proceeding is instituted as a result of any matter or thing affecting this Agreement, the parties hereby designate Orange County, Florida, as the proper jurisdiction and the venue in which same is to be instituted.
Attorneys' Fees and Costs
In the event of litigation arising under this Agreement or any other agreements executed in connection with your receipt of the BlueToad Service, the prevailing party will recover from the nonprevailing party, in addition to available remedies at law, all reasonable court costs and reasonable attorney’s fees (including charges attributable to law clerks and paralegals) incurred in any such action.
The invalidity or unenforceability of a particular provision of this Agreement will not affect the other provisions hereof, and the Agreement will be construed in all respects as if such invalid or unenforceable provisions were omitted.