BLUONSEARCH TERMS AND CONDITIONS

These terms of use are entered into by and between You and Bluon, Inc. ("Bluon"). The following terms and conditions, together with any Order Form documents they expressly incorporate by reference, govern your access to and use of the BluonSearch hosted software application, including any content, functionality and services offered on or through the "Website".

By completing and submitting our Order Form, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, found at https://bluon.com/search-privacy-policy, incorporated herein by reference. If you do not want to agree to these Terms of Use, you must not access or use the application.

These terms and conditions will apply to each business transaction between the parties for the limited license of the BluonSearch hosted Software Subscription. For the avoidance of doubt, use of the BluonLive Marketplace is governed by the BluonLive Terms of Service https://bluon.com/bluonlive-terms-conditions, not this SAAS Agreement. Bluon shall provide access to BluonSearch as set forth in this Agreement and any Order Form. Each Order Form executed by the parties will include, and incorporate therein, the applicable terms and conditions of this Agreement. Any different or additional terms of a related purchase order or confirmation issued after the date hereof shall have no force or effect on this Agreement or its subject matter, and pre-printed or standard terms of Customer’s purchase order, if any, are specifically excluded.

1. STANDARD TERMS AND CONDITIONS

DEFINITIONS. As used in this Agreement or any Exhibit hereto or any applicable Order Form:

1. “Authorized Devices” means the individual devices permitted by Customer to have access credentials to BluonSearch through Customer’s License. The maximum number of Authorized Devices per License is five (5).
2. “BluonSearch” means hosted hardware, software and database components comprising the BluonSearch functionality.
3. “Content” means the proprietary, searchable HVAC parts and components database inventory available to BluonSearch.
4. “Day” means calendar day, except stated otherwise.
5. “Fees” means the License Fees.
6. “Intellectual Property Rights” means all known or hereafter existing worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, know-how, moral rights, contract rights, and other proprietary rights.
7. “Order Form” means a form identifying any Software Subscription and pricing terms to be provided by Bluon under this Agreement, executed pursuant to and made a part of this Agreement from time to time.
8. “Subscription Fees” means Bluon’s then current standard fees for the term license of the Software Subscription. The Subscription Fees in effect as of the Effective Date are set forth in the Order Form.
9. Capitalized terms not specifically outlined in this Section shall have the respective meanings ascribed to them in this Agreement.

2. LICENSE GRANT AND OTHER RIGHTS.

1. Software Subscription Grant. Subject to the terms and conditions of this Agreement (including without limitation payment of all applicable Fees), Bluon grants to Customer access to the hosted functionality indicated on the Order Form, to use BluonSearch to access the Content, in executable code form only, solely for Customer’s own internal business purposes in accordance with the functionality description, the limitations and restrictions set forth in this Agreement or the applicable Order Form, and the other terms and conditions of this Agreement. Bluon shall use reasonable efforts to maintain the accuracy of the Content and shall modify the Content as updates become available.
2. Restrictions On Use. Customer acknowledges that the Content, BluonSearch and the structure, organization, and source code thereof constitute valuable trade secrets of Bluon and its suppliers. Accordingly, except as expressly permitted in Section 2.1 or as otherwise authorized by Bluon in writing, Customer will not, and will not permit any third party (including, but not limited to, its Affiliates) to (a) reproduce, modify, adapt, alter, translate, or create derivative works from the Software Subscription, or the Content; (b) merge the Software Subscription with other software; (c) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Subscription or the Content to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software Subscription; (e) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the Software Subscription; or (f) otherwise use or copy BluonSearch except as expressly permitted under Section 2.1.

3. PROPRIETARY RIGHTS.

BluonSearch, the Content and all worldwide Intellectual Property Rights therein, are the exclusive property of Bluon and its suppliers. All rights in and to the Software Subscription not expressly granted to Customer in this Agreement are reserved by Bluon and its suppliers. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of Bluon or its suppliers on the Software Subscription. Any functionality improvements or enhancements requested or commissioned by Customer that are incorporated into BluonSearch shall automatically become the property of Bluon, and Customer hereby assigns all right, title and interest in such improvements or enhancements to Bluon. Bluon retains the right to collect and retain anonymized, aggregated search data concerning the use of BluonSearch in order to improve its services, develop new services and to create and sell industry reports.

4. THIRD-PARTY PROVIDERS.

Customer’s use of the Subscription may provide access to third-party links to other sites, services and/or resources, and these links are provided for your convenience only. Such links may include links to service providers, advertisers, including banner advertisements, and sponsored links. The use of any third-party link is governed by the terms and conditions as agreed between Customer and the third-party provider. Bluon has no control over the contents of third-party sites or resources and accepts no responsibility for them or for any loss or damage that may arise from Customer’s use of them. Customer acknowledges that access to and use of third-party links is undertaken at its own risk and subject to the terms and conditions of use for such third-party provider. Customer, not Bluon, is solely responsible for determining if third party providers are suitable for the business purpose for which they are enlisted.

5. FEES AND PAYMENT.

1. Fees. Customer will timely pay Bluon all Fees as specified in the Order Form. BluonSearch acess may be withheld by Bluon until initial payment of Fees is made and unless otherwise expressly provided in this Agreement, all Fees are non-refundable.
2. Payment Terms. Customer shall make all payments hereunder in US dollars according to the instructions in the Order Form. Access to BluonSearch may be withheld by Bluon until payment of Fees is made.
3. Taxes. Fees exclude, and Customer will make all payments of the Fees to Bluon free and clear of, all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges. When applicable, Bluon may include any taxes that it is required to collect as a separate line item on an invoice. Customer will be responsible for, and will indemnify and hold harmless Bluon from, payment of all such taxes (other than taxes based on Bluon’s net income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the Fees or the delivery or license of the Software Subscription to Customer.

6. WARRANTIES

1. Customer Warranties. The Customer is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized. The Customer has all necessary power and authority to enter into this Agreement and to perform all of its obligations under this Agreement. Customer is responsible for all activities undertaken using credentials made available to Authorized Users and for limiting the number of Authorized Devices to the number specified in the Order Form. Customer will not allow the scraping of or any other use of the Content other than that which is permitted by these Terms of Use, and Customer shall be liable for any damages arising from the misuse of BluonSearch specifically including damages arising from the use of data scraping technologies. Customer will defend, indemnify and hold harmless Bluon against any and all claims and costs associated with Customer’s breach of this section 6.1.
2. Bluon Warranties. Bluon warrants that it will use reasonable efforts to make BluonSearch available twenty-four hours a day, seven days per week, subject to regularly scheduled maintenance which Customer will be informed about at least forty-eight (48) hours in advance, when BluonSearch is used as permitted by Customer and in accordance with these Terms of Use. Bluon does not warrant that use of the BluonSearch will be error-free or uninterrupted. Bluon will, at its own option and expense, and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error that Customer reports to Bluon in writing during the term. If Bluon determines that it is unable, or it is commercially impracticable, to correct the error or replace the functionality, Bluon will refund to Customer all unused Subscription Fees actually paid and attributable to the non-working functionality, in which case this Agreement (with respect to such Subscription) and Customer’s right to use BluonSearch will terminate.
3. Disclaimers. THE EXPRESS WARRANTIES IN THIS SECTION 6 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SUBSCRIPTION AND BLUONSEARCH, AND BLUON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES PROVIDED HEREIN AND THAT NO WARRANTIES ARE MADE HEREIN BY ANY OF BLUON’S SUPPLIERS. BLUON ALSO DISCLAIMS ANY WARRANTIES AND LIABILITY ARISING FROM CUSTOMER’S USE OF THIRD-PARTY PROVIDERS ACCESSED THROUGH BLUONSEARCH.

7. INFRINGEMENT CLAIMS.

Bluon will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that BluonSearch infringes any U.S. patents or any copyrights or misappropriates any trade secrets of a third party, and Bluon will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer (a) notifying Bluon promptly in writing of such action, (b) giving Bluon sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Bluon’ request and expense, assisting in such defense. If BluonSearch becomes, or in Bluon’ opinion is likely to become, the subject of an infringement claim, Bluon may, at its option and expense, either (i) procure for Customer the right to continue using the Subscription, (ii) replace or modify the Subscription so that it becomes non-infringing, or (iii) accept return of the Subscription and, to the extent Customer is harmed, refund Customer the Fees paid for BluonSearch within thirty (30) days upon the infringement claim, upon which Customer shall have no further rights in and to BluonSearch. Notwithstanding the foregoing, Bluon will have no obligation under this Section 9 or otherwise with respect to any infringement claim based upon (a) any use of BluonSearch not in accordance with this Agreement or for purposes not intended by Bluon, (b) any use of the Subscription in combination with other products, equipment, software, or data not intended by Bluon to be used with the Subscription, or (c) any modification of BluonSearch by any person other than Bluon or its Authorized Users. THIS SECTION 7 STATES BLUON’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

8. LIMITATION OF LIABILITY.

BLUON’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH ANY SUBSCRIPTION UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF SUBSCRIPTION FEES PAID TO BLUON UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL BLUON BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORM, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF BLUON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT BLUON WOULD NOT ENTER INTO THIS AGREEMENT OR ANY SERVICES SCHEDULE OR SOFTWARE ORDER FORM WITHOUT THESE LIMITATIONS ON BLUON’ LIABILITY. IN ADDITION, BLUON DISCLAIMS ALL LIABILITY OF ANY KIND OF BLUON’S SUPPLIERS.

9. CONFIDENTIALITY.

1. Protection of Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). Any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party will be considered Confidential Information of the Disclosing Party. BluonSearch, including without limitation any routines, subroutines, directories, tools, programs, or any other technology included therein, shall be considered Bluon’s Confidential Information.
2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
3. Exceptions. The Receiving Party’s obligations under Section 9.2 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
4. Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party and/or upon the expiration or termination of this Agreement. Upon request from the Disclosing Party, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 9.5.
5. Confidentiality of Agreement. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors except (a) as required by law or (b) pursuant to a mutually agreeable press release or (c) in connection with a contemplated transfer of such party’s business permitted by Section 11.4.

10. TERM AND TERMINATION

1. Term. The term of this Agreement will begin on the Effective Date set forth in the Order Form and will continue until all licenses have expired or been terminated (the “Term”) or unless terminated as provided in Section 10.3. At the conclusion of the Term, each license not terminated at least thirty (30) days prior to the last day of the Term will automatically renew for subsequent one-year terms at the renewal rates set forth in the renewal notice.
2. Termination. Customer may terminate the Subscription for convenience by providing written notice, though customer shall not be entitled to any refund for such termination for convenience. Either party may terminate this Agreement and all Orders if the other party (a) breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof; (b) shall formally declare bankruptcy, insolvency, reorganization, liquidation, or receivership; or (c) shall have instigated against it bankruptcy, insolvency, reorganization, liquidation, or receivership proceedings, and shall fail to remove itself from such proceedings within ten (10) days from the date of institution of such proceedings. Bluon shall have the right to terminate any Order if the initial payment or renewal payment, as the case may be, is not received by the due date. Bluon shall also have the right to suspend access to BluonSearch in its sole discretion, immediately upon detecting the use of scraping technologies or other prohibited actions by Customer or its Authorized Devices. Suspension for prohibited actions shall constitute notice of a breach under Section 10.2 (a), above.
3. Effects of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licensed rights granted in this Agreement and any Order will immediately cease to exist; and (b) Customer must promptly discontinue all use of BluonSearch, erase all copies of the Content from Customer’s computers, and return to Bluon or destroy all copies of the Content on tangible media in Customer’s possession.
4. Survival. Any Sections which by their nature are designed to survive termination of this Agreement, together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.

11. GENERAL

1. Publicity. Bluon may, subject to Customer’s written approval and review of content (a) create a general contract announcement press release indicating that the parties have entered into this Agreement, (b) use Customer’s business name and logo in written materials identifying Bluon’ customers and in other appropriate promotional materials; (c) identify Customer in applicable case studies; and (d) identify Customer as a reference for prospective customers and the media (provided that Customer shall not be obligated to comment in any way). Customer has the right to amend the content related to Customer or to withdraw approval at any time.
2. Compliance with Laws. Customer will comply with all applicable export and import control laws and regulations in its use of the any software Deliverables and, in particular, Customer will not export or re-export any software Deliverables without all required government licenses and Customer agrees to comply with the export laws, restrictions, national security controls and regulations of all applicable foreign agencies or authorities. Customer will defend, indemnify, and hold harmless Bluon from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
3. Assignments. Customer and Bluon may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement or a Order Form (including its licenses with respect to the Software Subscription) to any third party without the other party’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.
4. Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
5. Notices. All notices, consents, and approvals under this Agreement and Services Schedules must be delivered in writing by courier, by email to the address of record, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the cover page of this Agreement, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party in writing.
6. Governing Law and Venue. This Agreement and all Order Forms will be governed by and interpreted in accordance with the laws of the State of Delaware, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or any Order Form. Any action or proceeding arising from or relating to this Agreement shall be brought in a federal or state court in Delaware, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
7. Remedies. Except as otherwise set forth herein, the parties’ rights and remedies under this Agreement and any Orders are cumulative. Customer acknowledges that the BluonSearch and Deliverables contain valuable trade secrets and proprietary information of Bluon, that any actual or threatened breach of Section 2 will constitute immediate, irreparable harm to Bluon for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought by Bluon to enforce this Agreement or an Order Form, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
8. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement or Order Form on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9. Severability. If any provision of this Agreement or an Order is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
10. No Agency. Nothing contained herein shall be construed as creating any agency, partnership or other form of joint enterprise between the parties.
11. Construction. The headings of Sections of this Agreement and any Order Form are for convenience and are not to be used in interpretation. As used in this Agreement and all Order Forms, the word “including” means “including but not limited to.”
12. Non-Solicitation of Personnel. Either party shall not, during the term of the Agreement and for one (1) year thereafter, directly or indirectly hire or attempt to hire any employee or independent contractor of the other party without the prior written consent of the other party; provided that the foregoing shall not prohibit either party from issuing advertisements of a general nature not specifically directed at any such employee or independent contractor.