TERMS AND CONDITIONS OF USE

The website located at https://www.bluemonitor.net/ (“Website”) is operated by VXG Inc. (“We”, “Us”, “Our” or “UNIVERGE BLUE MONITOR”). Before using the Website, please read the following carefully. These Terms and Conditions of Use, together with the UNIVERGE BLUE MONITOR Privacy Policy and Acceptable Use Policy (available by clicking here, and which are hereby incorporated by reference) constitute an agreement (“Agreement”) between you or the entity you represent (“You” or “Your”) and UNIVERGE BLUE MONITOR. You represent to Us that you are lawfully able to enter into contracts (e.g., you are of sufficient legal age in your jurisdiction to create binding legal obligations) and, if you are entering into this Agreement for an entity (e.g., such as the company you work for), that you have the legal authority to bind that entity.

UNIVERGE BLUE MONITOR provides an internet-based service that allows users to video- monitor private spaces with web-enabled cameras that You acquire from a retailer, and enables remote access, motion detection, and other related monitoring services,  through the Website or through a UNIVERGE BLUE MONITOR mobile application, as more fully set out on the Website (collectively, the “Services”).

This Agreement governs Your access to and use of the Website, including Your use of the Services. Any use of the Services (including through the use of any UNIVERGE BLUE MONITOR mobile application) will constitute use of the Website for the purpose of this Agreement. Your access to and use of the Website is expressly conditioned on Your acceptance of and compliance with the terms and conditions of this Agreement. BY USING THE WEBSITE YOU AGREE TO BE BOUND BY AND COMPLY WITH THIS AGREEMENT, INCLUDING THE UNIVERGE BLUE MONITOR PRIVACY POLICY AND ACCEPTABLE USE POLICY. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT THEN YOU MAY NOT ACCESS OR USE THE WEBSITE. IF YOU ARE NOT WILLING OR ABLE TO AGREE TO THIS AGREEMENT THEN PLEASE DO NOT ACCESS THE WEBSITE OR ATTEMPT TO USE ANY SERVICES.

UNIVERGE BLUE MONITOR may amend the terms and conditions of this Agreement (including the UNIVERGE BLUE MONITOR Privacy Policy and Acceptable Use Policy) from time to time and such amendments will become effective when You accept the notice We post on Your Website login page. If you do not accept, then UNIVERGE BLUE MONITOR reserves the right to suspend or limit Account Holder access to the Services and/or terminate this Agreement without penalty.. 

1. Account Holders

Certain parts of the Website (including the Services) may only be accessed by UNIVERGE BLUE MONITOR account holders. When establishing Your account, You will be required to provide identification information (e.g., username, password, IP addresses, and other login, registration and/or billing information)(collectively, “Registration Information”). Once Your account registration has been completed You will be able to invite others to access Services under Your account, and to tailor their Service-access privileges. Your invitees will provide their own Registration Information to complete their access registration under Your account. You and each of Your invitees are referred to herein as “Account Holders”.

You are responsible for maintaining the confidentiality of all Registration Information for all Account Holders. You are also responsible for all activities that occur under Your account, including those of Your invitees and anyone else using Account Holder Registration Information to gain access. It is Your responsibility to establish and enforce appropriate agreements, policies and procedures to ensure that all Account Holders maintain the confidentiality of their Registration Information and that they understand and comply with the requirements of this Agreement.

You agree to notify Us immediately of any unauthorized use of Your account, Account Holder Registration Information, or any other breach of Your account Security. UNIVERGE BLUE MONITOR is not responsible for any loss or damage, including unauthorized access to the Services, arising from any Account Holders’ failure to protect their Registration Information.

You will be responsible for any failure of any Account Holders to abide by the terms and conditions of this Agreement (including the terms of the UNIVERGE BLUE MONITOR Privacy Policy and Acceptable Use Policy) as if such failure was Your act or omission. This includes any activity of a third-party Account Holder or of any individual to whom You or any other Account Holder has provided their identification information or password. UNIVERGE BLUE MONITOR reserves the right to suspend, terminate or restrict Account Holder access or privileges to use the Website (including the Services) for failure to comply with the terms and conditions of this Agreement. 

2. Service and Software

Subject to the terms and conditions of this Agreement, including payment of all Fees (as defined in Section 17) and compliance with the UNIVERGE BLUE MONITOR Acceptable Use Policy, We hereby grant to You, for the number of Account Holders, input devices and storage capacity you have been authorized to invite or use, a non-exclusive, non-transferrable right during the Term (as defined in Section 15) to: (a) use the Website (including the Services) and to authorize other Account Holders to use the Website under Your account; and (b) to download and use, and authorize other Account Holders invited under Your account to download and use, any software made available to You by or for UNIVERGE BLUE MONITOR for use in association with the Service (including software to facilitate the collection and maintenance of Registration Information and/or Service-related configuration details, and Service-related mobile application software) (collectively, the “Software”).

All rights not expressly licensed herein are reserved to UNIVERGE BLUE MONITOR and Our licensors. Nothing contained in this Agreement will be deemed to grant any right, title or interest in or to any intellectual property of UNIVERGE BLUE MONITOR, Our licensors or any other party having proprietary rights in or to any information, content, software or materials provided on or through use of the Website (including the Services). For greater certainty, this Agreement does not provide You with any right to distribute the Software.

3. Service Level

UNIVERGE BLUE MONITOR will use commercially reasonable efforts to make the Website (including the Services) available to You in accordance with industry standards. You acknowledge and agree that UNIVERGE BLUE MONITOR is not responsible for the performance, reliability, compatibility or configuration of any hardware or software components used by Account Holders to capture, transmit or retrieve Content (as defined in Section 9). In addition, you acknowledge that We use third party cloud hosting services (currently Amazon Web Services) and agree that We have limited ability to influence or control the performance or reliability of their services upon which the Website (including the Services) depend.

4. Support

Your UNIVERGE BLUE MONITOR authorized dealer will provide technical support services to You for Your Service subscription. UNIVERGE BLUE MONITOR provides its dealers with back-end support but has no obligation to provide any support services directly to You or other Account Holders under this Agreement.

5. Analytics

UNIVERGE BLUE MONITOR may generate and use Analytics in order to optimize the quality and performance of the Website (including the Services) and the Software. “Analytics” means: (a) Account Holder and device profiles constructed from usage patterns and device-identifying technical data, and may include data from third party service providers, and (b) any information and data relating to the access, use, and/or performance of the Website and/or Software, including data generated in connection with Account Holders’ use of the Services (e.g., analytics data, statistics data and performance data). UNIVERGE BLUE MONITOR owns all right, title and interest in and to Analytics and for greater certainty may use, reproduce, sell, publicize, or otherwise exploit Analytics in any way, in Our sole discretion. For the avoidance of doubt, nothing in this Agreement, including the UNIVERGE BLUE MONITOR Privacy Policy will be construed or interpreted as limiting UNIVERGE BLUE MONITOR’s ability to exploit Analytics in any manner or requiring any further consent or authorization by You, or any other Account Holders for UNIVERGE BLUE MONITOR’s use, reproduction, etc. of Analytics.

6. Changes

UNIVERGE BLUE MONITOR reserves the right to add, reduce, eliminate or revise the features and functionality of the Website (including the Services) and/or Software at any time. Additionally, UNIVERGE BLUE MONITOR may add, reduce, eliminate or revise services levels at any time where a third-party service level agreement applicable to the Service has been changed. Where any such change will cause a material detrimental impact on You, UNIVERGE BLUE MONITOR will make commercially reasonable efforts to provide You with sixty (60) days prior written notice that will be posted on Your Website login page. UNIVERGE BLUE MONITOR reserves the right to discontinue any Service offering, or ongoing support for Software (including any subscription renewals), on six (6) months prior written notice (posting a notice on Your Website login page will constitute adequate notice), provided that We notify You in such notice of any available migration paths to alternate product or service offerings that provide comparable technical features, functionality and performance.

7. Links

We may provide links to third-party sites that might be of interest to Account Holders. We do not endorse any such site and have no control over the content or availability of those sites. It is Your responsibility to read and understand each site’s privacy and other policies as well as the terms and conditions of their services. If You have any questions or concerns regarding these third-party sites, please contact their site’s web master or site administrator. UNIVERGE BLUE MONITOR is not liable for any damages that You or any other Account Holders incur, and You agree not to assert any claims against Us arising from such use of any third-party site.

8. Reservations and Restrictions

Except as expressly authorized by this Agreement You agree that You will not, and will ensure that other Account Holders you invite do not:

• rent, sell, lease, distribute, pledge, assign or otherwise transfer, or encumber any rights to the Website (including any Services) or Software, or any part thereof;
• use Website (including any Services) or Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Website or Software, except by Account Holders;
• provide Your Registration Information to any third party, except to Account Holders;
• attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Website (including any Services) or Software, any content contained therein, or any account, computer system or network connected to the Website;
• share non-public Website (including any Service) or Software features or content with any third party;
• restrict or inhibit any other user from using and enjoying the Website (including any Services) or Software using their own account;
• interfere with or disrupt any servers or networks used to provide the Website (including any Services) and/or Software, or any of their features, or disobey any requirements, procedures, policies or regulations of the networks We use to provide the Website or Software;
• use the Website (including any Services) or Software in order to build a competitive product or service, to build a product or service using similar ideas, features, functions or graphics of the Website or Software, or to copy any ideas, features, functions or graphics of the Website or Software;
• use the Website (including any Services) to record, store, share, post or transmit any information, software or other material that contains a virus, worms, time bomb, trojan horse or other harmful or malicious code, file, script, agent or program;
• use the Website (including any Services) to record, store, share, post or transmit or in any way exploit any information, software or other material for commercial purposes, or that contains advertising;
• use the Website (including any Services) to advertise or solicit to anyone to buy or sell products or services, to cease using the Website, to visit a competing Website, or to make donations of any kind, without Our express written approval;
• gather for marketing purposes any email addresses or other Personal Information (as defined in Section 10) that has been posted by other users of the Website;
• use the Website (including any Services) to impersonate any person or entity, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
• use the Website (including any Services) to instigate or encourage others to commit illegal activities or cause injury or property damage or interfere with business interests or contractual relations of any person;
• use the Website (including any Services) to record, store, share, post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, provincial, state, national or international law;
• use the Website (including any Services) to record, store, share, post or transmit any information, software or other material that violates or infringes upon the rights of others, including material that is an invasion of privacy or publicity rights or that is protected by copyright, trademark or other proprietary right, or derivative works with respect thereto, without first obtaining permission from the owner or rights holder; or
• use the Website (including any Services), Software or Content other than in accordance with the terms and conditions of this Agreement and in compliance with all applicable laws and regulations.

UNIVERGE BLUE MONITOR does not have access to any audio or video Content recorded by Account Holders using the Service. Notwithstanding this restricted access, if We have any reason to believe there has been a breach of the requirements of this Section 8, including by other Account Holders, We may in Our sole discretion suspend Your access to the Website (including the Services) and/or Software without any advanced notice. This is in addition to any other remedies that UNIVERGE BLUE MONITOR may have. Nothing in this Agreement (including the UNIVERGE BLUE MONITOR Acceptable Use Policy) requires that We take any action against You, or any Account Holder or other third party, for violating this Section 8 or this Agreement, but UNIVERGE BLUE MONITOR is free to take any such action as We see fit.

9. Content

In this Agreement “Content” means any content recorded by Account Holders in connection with the Service or otherwise provided, created or stored by Account Holders in connection with the Website, including any: information and data (including Registration Information and other Personal Information (as defined in Section 10)); literary, visual, audio or audiovisual works (including art, illustrations, graphics, images, music, sound effects, recordings, lyrics, narration, text, animation, characters, designs; and all other audio, visual, audiovisual and textual content.

You represent and warrant to UNIVERGE BLUE MONITOR that use of the Website (including the Services), and all Account Holder Content, by all Account Holders will comply with the UNIVERGE BLUE MONITOR Privacy Policy and Acceptable Use Policy. You represent and warrants to UNIVERGE BLUE MONITOR that all Account Holder Content does not and will not include any Excluded Data. In this Agreement “Excluded Data” means: (a) social Security numbers or their equivalent (e.g., social insurance numbers), driver license numbers, biometric data, health card numbers and other health-related information; (b) other Personal Information that would be considered sensitive in nature including a “special category of data” under EU Directive 95/46; and (c) data regulated under the Health Insurance Portability and Accountability Act or the Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards or similar laws or regulations in place now or in the future in the applicable jurisdiction (collectively, the “Excluded Data Laws”). YOU ACKNOWLEDGE AND AGREE THAT: (I) UNIVERGE BLUE MONITOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (II) UNIVERGE BLUE MONITOR’S SERVICE IS NOT INTENDED FOR THE MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED Security FOR EXCLUDED DATA.

UNIVERGE BLUE MONITOR requires use of Registration Information to operate the Service, and license rights to Content in order to receive, store, back-up and make it available to Account Holders. You hereby authorize UNIVERGE BLUE MONITOR to collect, process, log, store, retrieve, telecommunicate and otherwise use (“Process and Store”) Content (including Registration Information) solely as required to provide the Service in accordance with the terms and conditions of this Agreement, including in compliance with the UNIVERGE BLUE MONITOR Privacy Policy. This includes use of Content as necessary to: (1) provide, optimize, troubleshoot and maintain the Services; (2) generate Analytics (as defined in Section 5 (Analytics)); and (3) comply with applicable laws, rules or regulations or an order of a governmental body.

UNIVERGE BLUE MONITOR will use commercially reasonable efforts to securely Process and Store Content (including Registration Information) in accordance with industry standards. You acknowledge and agree that these efforts will be adequate to protect all Content. Unless UNIVERGE BLUE MONITOR is prohibited from doing so, UNIVERGE BLUE MONITOR will give You reasonable notice of any legal or governmental demand for disclosure or movement of Content or redirect any such demand to You to allow You to seek a protective order or otherwise contest such required disclosure at Your expense, prior to making any disclosure or movement.

Except for Our negligent or intentional acts, UNIVERGE BLUE MONITOR is not responsible for any deletion, alteration, damage, loss, destruction, misdirection or failure to store of any Content. Subject to the requirement to allow Account Holder to transfer its data after termination, UNIVERGE BLUE MONITOR may at its discretion discard or destroy any of Your Content upon termination or expiry of this Agreement or if UNIVERGE BLUE MONITOR determines in Our sole discretion that the Content is in violation of the terms or conditions of this Agreement.

10. Personal Information

UNIVERGE BLUE MONITOR’s use of any information about identifiable individuals (“Personal Information”) that is recorded by Account Holders in connection with the Service or otherwise provided, created or stored by Account Holders in connection with the Website (including the Services) will be subject to the UNIVERGE BLUE MONITOR Privacy Policy. UNIVERGE BLUE MONITOR will, at all times, handle Personal Information in accordance with all applicable privacy laws. UNIVERGE BLUE MONITOR will not, without the applicable Account Holders’ consent, disclose any data provided by Account Holders to UNIVERGE BLUE MONITOR, except that We may allow individuals providing or servicing Our hardware, software or cloud infrastructure to have access as reasonably required to perform their service(s). UNIVERGE BLUE MONITOR will ensure that any individuals having access to Personal Information are subject to limitations at least as restrictive as those of this Section 10.

11. Consents

You consent to and will obtain all consents necessary for UNIVERGE BLUE MONITOR to use third-party service providers, including cloud hosting providers (who may further utilize subcontractors) in the provision of the Services. You acknowledge and agree that Content (including Personal Information) may be transmitted to, processed by and/or reside on computers operated by UNIVERGE BLUE MONITOR-authorized third parties (e.g., any cloud hosting provider – We currently use Amazon Web Services) who perform services for UNIVERGE BLUE MONITOR. These third parties may use or disclose such Content to perform the Services on UNIVERGE BLUE MONITOR’s behalf to comply with legal obligations. UNIVERGE BLUE MONITOR has no responsibility for obtaining any consents or for any disclosures made as described in this Section 11.

You acknowledge and consent to the transfer to and storage of all Account Holder Content using cloud hosting facilities located in the United States (and/or Canada). You also acknowledge and agree: (a) that UNIVERGE BLUE MONITOR may send short message service (SMS) messages through the United States (and/or Canada) as part of the Service, and (b) Registration Information (including billing information, if any) may be stored in the United States (and/or Canada).

You represent and warrant to UNIVERGE BLUE MONITOR that: (c) you have the right to grant the authorization and license rights in all Account Holder Content (including Registration Information) granted herein, (d) before authorizing Account Holders to use the Website (including any Services) and before providing, or authorizing Content to be provided to UNIVERGE BLUE MONITOR, You will have obtained all required consents from, and made all required disclosures to, Account Holders and any other affected parties in accordance with applicable laws for use of the Content (in particular Personal Information) by UNIVERGE BLUE MONITOR, Our subcontractors and Our hosting providers in accordance with this Agreement, including the UNIVERGE BLUE MONITOR Privacy Policy.

12. Hardware and Software

You are solely responsible for providing, configuring, maintaining and supporting all hardware and/or software (other than the Software) necessary to access and use the Website (including the Services). Except for damage caused by UNIVERGE BLUE MONITOR’s negligent or intentional acts, You assume the entire cost of and responsibility for any damage to, and all necessary maintenance, repair or correction of, that hardware and/or software. 

13. Intellectual Property Rights

“UNIVERGE BLUE MONITOR” and related words, domain names and logos are trade-marks and the property of UNIVERGE BLUE MONITOR and Our licensors. All other trade-marks, product names and company names or logos cited herein are the property of their respective owners. 

All right, title and interest (including all intellectual property rights) in and to all information, content, software and materials provided by UNIVERGE BLUE MONITOR on or through use of the Website (including the Services), including site design, text and graphics (including the selection and arrangement thereof in the site GUI and UX design), are owned by UNIVERGE BLUE MONITOR and Our licensors. Except as expressly provided herein, ALL RIGHTS ARE RESERVED.

In this Agreement “Feedback” means any suggestions, comments, or other feedback about the Software, Website (including the Services) or other UNIVERGE BLUE MONITOR products or services that are provided by You or any other Account Holders. Feedback will not be subject to any confidentiality obligations that bind UNIVERGE BLUE MONITOR. You hereby acknowledge and agree that UNIVERGE BLUE MONITOR will own all right, title and interest in and to all Feedback, including all associated intellectual property rights, and You hereby assign and agree to assign to Us all of Your right, title, and interest thereto, including all associated intellectual property rights.

14. Third Party Software

Certain third-party open-source software may be delivered along with or as part of the Software or may be used to deliver the Services (“Ancillary Software”). A separate agreement may apply to Your use of Ancillary Software. You acknowledge and agree that You receive and will use Ancillary Software under the terms and conditions of the applicable open-source software license(s), and that Ancillary Software does not form any part of the Software for the purpose of this Agreement. UNIVERGE BLUE MONITOR identifies all Ancillary Software, and associated open-source licenses, at https://www.bluemonitor.net/open-source.

15. Term

Subject to the terms and conditions of this Agreement (including any provisions which by their terms are meant to survive cancellation and termination), this Agreement will be in force for the length of time that any Account Holders remain active. Your account, and all Account Holder entitlements, will terminate automatically at the end of the applicable subscription period if Your subscription to the Website (including the Services) is not renewed. Either of us may immediately terminate this Agreement if the other is in material breach of this Agreement. We may also terminate this Agreement on 5 days’ notice if for any reason We stop providing the Website (including the Services). Either of us may terminate this Agreement  for any other reason, provided whoever initiates the termination provides the other with at least 30 days advance notice of termination. For greater certainty, UNIVERGE BLUE MONITOR is not obligated to provide notice of termination if termination results from the expiry of Your subscription period. Nothing in this Agreement   obligates UNIVERGE BLUE MONITOR to offer You a renewal of subscription to the Services. 

Any Account Holder may terminate their access to the Website (including the Services) by contacting UNIVERGE BLUE MONITOR at support@bluemonitor.com. However, notwithstanding such termination, You will remain responsible for paying any applicable fees and/or charges for the prorated portion of the subscription period that the Account Holder uses prior to the termination date, and any other fees or charges incurred through their use of the Website (including the Services) through Your account. 

Upon termination of this Agreement or cancellation of any Account Holder access the applicable Account Holder(s) are no longer authorized to access any part of the Website (including the Services) affected by such termination or cancellation. Notwithstanding the forgoing or anything else set forth in this Agreement and at no additional cost, Account Holders may access and download or cause to be downloaded for thirty (30) days after the effective date of termination all of their video Content that was stored using the Service prior to the effective date of termination.

16. Survival

The restrictions imposed on Account Holders with respect to material downloaded from the Website or any Software, the disclaimers and limitations of liabilities set forth in this Agreement , any indemnification obligations imposed upon You hereunder, and all rights of Third-Party Beneficiaries will survive any cancellation or termination of this Agreement.

17. Fees

You are responsible for paying to UNIVERGE BLUE MONITOR all fees, together with all applicable taxes, associated with Your account (“Fees”), including use by all Account Holders (including your invitees) of the Website (including the Services). Applicable Fees are set out on the Website and may be modified from time to time at UNIVERGE BLUE MONITOR’s sole discretion. Failure to pay any Fee when due is a material breach of this Agreement. We reserve the right to suspend any Website access (including to the Services) of any or all Account Holders until any overdue Fees have been paid in full. 

18. Disclaimer of Warranty

THE INFORMATION, PRODUCTS, SOFTWARE AND SERVICES OFFERED ON OR THROUGH THE WEBSITE ARE ALL PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNIVERGE BLUE MONITOR DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. UNIVERGE BLUE MONITOR DOES NOT WARRANT THAT THE WEBSITE (INCLUDING THE SERVICES), THE SOFTWARE OR ANY OF THEIR FUNCTIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY PART OF THE WEBSITE, INCLUDING BULLETIN BOARDS AND THE SERVERS THAT MAKE THE WEBSITE AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, UNIVERGE BLUE MONITOR IS NOT LIABLE TO YOU FOR ANY LOSS YOU SUFFER IN CONNECTION WITH YOUR ACCESS OR USE OF THE WEBSITE (INCLUDING THE SERVICES), ANY LINKED WEBSITES OR ANY SOFTWARE AVAILABLE AT OR FROM THE WEBSITE.

19. Limitation of Liability

EXCEPT TO THE EXTENT SUCH A LIMITATION IS PROHIBITED BY LAW, IN NO EVENT WILL UNIVERGE BLUE MONITOR, OR OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUPPLIERS, DISTRIBUTORS, NEC CORPORATION OF AMERICA AND ITS AFFILIATES OR ANY OTHER UNIVERGE BLUE MONITOR CHANNEL PARTNERS (COLLECTIVELY, “OUR REPRESENTATIVES”) BE LIABLE FOR ANY LOSS OF PROFIT, DATA OR CONTENT, OR ANY OTHER INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE USE OR INABILITY TO USE THE WEBSITE (INCLUDING ANY SERVICES) OR THE SOFTWARE, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR OTHERWISE, EVEN IF UNIVERGE BLUE MONITOR OR OUR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

EXCEPT TO THE EXTENT SUCH A LIMITATION IS PROHIBITED BY LAW, IN NO EVENT WILL UNIVERGE BLUE MONITOR’S OR OUR REPRESENTATIVES’ TOTAL LIABILITY FOR ANY AND ALL DAMAGES AND CLAIMS UNDER OR RELATED TO THIS AGREEMENT EXCEED, IN AGGREGATE, THE FEES YOU PAID TO UNIVERGE BLUE MONITOR FOR THE WEBSITE (INCLUDING THE SERVICES) AND SOFTWARE IN THE TWELVE CONSECUTIVE MONTHS PRIOR TO THE MONTH IN WHICH THE EVENT GIVING RISE TO THE FIRST CLAIM OCCURRED.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES; THEREFORE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. Nothing in this Agreement will limit or exclude UNIVERGE BLUE MONITOR’s liability for death or personal injury caused by Our negligence, or for fraudulent misrepresentation or for any other liability which by law cannot be excluded.

20. Indemnity

As a condition to exercising the rights granted in this Agreement, You agree to indemnify and hold harmless UNIVERGE BLUE MONITOR and Our Representatives against any claims, causes of action, losses, liabilities, damages, fines, penalties, settlements, judgements, costs, fees, and expenses (including attorney and other professional fees and expenses) arising out of: (a) Your use, or any other Account Holders’ use, of the Website (including the Services); (b) the recording, use, promotion, distribution, sale, offer for sale, import, export, other distribution, publication or exploitation or performance of any Content; or (c) any other claim or cause of action arising out of a breach of the terms and conditions of this Agreement by You or any other Account Holder.

21. Third-Party Beneficiaries

You acknowledge that We are acting as trustee and agent for UNIVERGE BLUE MONITOR’s directors, officers, employees, agents, affiliates, suppliers, distributors, NEC Corporation of America and its affiliates and all other UNIVERGE BLUE MONITOR channel partners (collectively, “Third-Party Beneficiaries”) on whose behalf and for whose benefit the indemnities and limitations of liability in this Agreement are provided and that Third-Party Beneficiaries will each have the full right and entitlement to take the benefit of and enforce such indemnities and limitations of liability notwithstanding that Third-Party Beneficiaries may not individually be parties to this Agreement. You acknowledge and agree that UNIVERGE BLUE MONITOR may enforce the indemnity and the limitations of liability for and on behalf of Third-Party Beneficiaries and, in such event, You will not assert in any proceeding to enforce the indemnity and/or limitations of liability by or on behalf of any Third-Party Beneficiary any defense thereto based on the absence of authority or consideration or privity of contract and You hereby irrevocably waive the benefit of any such defense.

22. Compliance with Laws

You will abide by all local, state, provincial, national, and foreign, laws, treaties and regulations in connection Your use of the Website (including the Services), including those related to privacy. 

23. Jurisdictional Issues 

Some or all of the products and services offered on the Website may not be eligible for solicitation in Your jurisdiction. If You are accessing the Website from such a jurisdiction, You should not consider anything on the Website as an offer to sell or as a solicitation to the public to purchase any product or service from UNIVERGE BLUE MONITOR. The Website (including the Services) is for use only by persons residing in jurisdictions where such products and services may legally be sold. 

UNIVERGE BLUE MONITOR makes no representation that any of the materials contained on or accessed from the Website are appropriate or available for use in other locations or jurisdictions. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. 

24. General

This Agreement is governed by the law of the Province of Ontario, Canada without respect to its conflict of laws principles, and the laws of Canada applicable therein. This Agreement, including the UNIVERGE BLUE MONITOR Acceptable Use Policy and Privacy Policy, and any amendments or other legal notices published by UNIVERGE BLUE MONITOR on the Website and acknowledged by You, constitute the entire agreement between You and UNIVERGE BLUE MONITOR concerning the Website (including the Services) and the Software and supersedes any prior or contemporaneous agreements. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and UNIVERGE BLUE MONITOR’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision. Unless otherwise expressly stated, when used in this Agreement “include,” “includes,” and “including” are not exclusive or limiting; “Section” refers to this Agreement’s provisions; “days” refers to consecutive calendar days including Saturdays, Sundays and holidays; and “dollars” and the symbol “$” refer to United States dollars. Section headings in this Agreement are for ease of reference only.

25. Force Majeure

Except for payment of fees, neither party will be in default if failure to perform any obligation hereunder is caused by supervening conditions beyond the failing party’s control, provided that the party seeking excuse is reasonably diligent in attempting to remedy the supervening condition, uses reasonable efforts to notify the other party of the supervening condition and resumes performance as soon as possible. 

26. Language

The parties hereto have expressly requested this Agreement to be drawn up in the English language.

27. Notice

Any notice required under this agreement to be given by writing will be delivered to Us at support@bluemonitor.com.