These General Terms of Service (these “General Terms”) are a legal agreement between Blue-U Defense, LLC (“Blue-U,” “we,” “our” or “us”) and you, as a current or prospective customer of Blue-U (“you,” “your”). These General Terms govern your use of Blue-U’s products and services, including but not limited to Blue-U’s Security on Autopilot service (collectively, the “Services”). By purchasing or otherwise using any of our Services, you agree to these General Terms. 

 

1. Account

 

By creating a Blue-U account or registering for any of our Services, you (a) represent and warrant that the information provided to Blue-U is true, accurate, current, and complete and that you will promptly update such information for completeness and accuracy; (b) acknowledge that Blue-U collects, uses and protects the information you provide to us, and that Blue-U may use your data to provide you with the Services or for its own purposes; and (c) agree that you are solely responsible for maintaining the confidentiality of your account and that you are solely responsible for all use of your account, whether or not authorized by you.

 

1. Communications

 

You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us when you sign-up for a Blue-U Account or update the contact information associated with your account. Such communications may include, but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your account or account support, and marketing or promotional communications. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Services. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you.

 

You may opt-out of receiving promotional communications from us. You acknowledge that opting out of receiving communications may impact your use of the Services.

 

1. Use of Our Materials

 

Any and all materials provided to you in connection with the Services (the “Materials”) are protected by applicable copyright, trademark, patent and other laws of the United States and other countries. We grant you a royalty-free, limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the Materials in accordance with these General Terms. 

 

1. Ownership     

 

We own all rights, title, and interest, in and to the original Materials and all copies of the Materials. We reserve all rights not expressly granted to you in these General Terms. These General Terms do not grant you any rights to any of our trademarks or service marks.

 

You may not, nor may you permit any third party, directly or indirectly, to: copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute the Materials in any way; use and benefit from the Materials via rental, lease, timesharing or other arrangement; or otherwise use the Materials except as expressly allowed under these General Terms.

 

1. Cost of Services

 

The cost of the Services is dependent upon the time and related expense required to provide the Services. Any quote or estimate of fees we provide to you is subject to amendment to reflect the actual cost to us to provide the Services to you and may be subject to applicable taxes. We reserve the right to increase the cost of the Services on an annual basis, by an amount equal to the lesser of three percent (3%) or the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers.

 

1. Termination

 

You have the right to terminate these General Terms by providing Blue-U with written notice of such termination at least sixty (60) days prior to the end of your contract with us, either by U.S. Mail to Blue-U Defense, LLC, PO Box 368, Hancock, New Hampshire 03449, or via email to [email protected]. Blue-U may also terminate these General Terms at any time by providing you with sixty (60) days prior written notice of such termination, either by U.S. Mail or email to the address you have provided to us. 

 

We also reserve the right to terminate these General Terms or suspend your right to use the Services with immediate effect if: (a) you fail to pay in full any invoice received from us before the stated due date; or (b) you breach or fail to perform any other obligation that you have under the General Terms.   If you have purchased a Service that is billed on a monthly basis, you remain responsible for any fees charged for the month in which your use of the Services is terminated or suspended.  

 

1. Effect of Termination

 

If the General Terms or your right to use the Services is terminated or suspended for any reason: (a) your license to use the Materials and any other rights granted under these General Terms will end, (b) you agree to immediately terminate and cease use of the Services and to delete or destroy all Materials within your possession, (c) we may (but have no obligation to) delete your information and account data stored on our servers, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data. 

 

The following Sections of these General Terms survive and remain in effect in accordance with their terms upon termination: 4 (Ownership), 7 (Effect of Termination), 8 (Indemnity), 10 (Representations and Warranties), 11 (No Warranties), 12 (Limitation of Liability and Damages), 13 (Disputes), 14 (Limitation on Time to Initiate a Dispute), 15 (Binding Individual Arbitration), 16 (Governing Law), 17 (Assignment), and 20 (Other Provisions).

 

1. Indemnity

 

You will indemnify, defend, and hold us (and our employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or in connection with any claim instituted by any person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these General Terms; (b) your wrongful or improper use of the Services or the Materials; (c) your violation of any law, rule or regulation of the United States or any other country; and (d) any third-party claims made against Blue-U in connection with your use of the Services.

 

1. Use of Third Parties

 

Blue-U may contract with third parties to provide you with the Services.  You acknowledge and agree that Blue-U is not liable to you for any damages resulting from Blue-U’s use of such third party contractors.  

 

1. Your Representations and Warranties

 

You represent and warrant to us that: (a) your use of the Services and the Materials will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business; (b) you will not use the Services or the Materials, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (c) your use of the Services will be in compliance with these General Terms; and (d) you will not, at any time, make any public or private statements, whether oral or written, to any member of the general public, which disparage or negatively portrays Blue-U, the Services, the Materials, our reputation, or our business practices.

 

1. No Warranties

 

The use of “Blue-U” in Sections 8 and 9 means Blue-U and its affiliates, agents, directors, and employees.

 

THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, BLUE-U SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. BLUE-U DOES NOT WARRANT, REPRESENT OR GUARANTEE IN ANY WAY THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED; OR THAT THE SERVICES ARE FIT FOR ANY PARTICULAR PURPOSE. BLUE-U DOES NOT WARRANT THAT THE SERVICES WILL PREVENT OR REDUCE THE LIKELIHOOD OF PERSONAL INJURY OR DEATH.

 

1. Limitations of Liability and Damages

 

IN NO EVENT WILL BLUE-U BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RESULTING FROM YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION DAMAGES FOR PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, OR LOSS OF PROFITS, GOODWILL, USE, OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

 

1. Disputes

 

“Disputes” are defined as any claim, controversy, or dispute between you and Blue-U (including its affiliates, agents, directors and employees), whether arising before or during the effective date of these General Terms, and including any claim, controversy, or dispute based on any conduct of you or Blue-U that occurred before the effective date of these General Terms, including any claims relating in any way to these General Terms or the Services, or any other aspect of our relationship.

 

1. Limitation on Time to Initiate a Dispute

 

Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.

 

  1. Binding Individual Arbitration

 

  1. General.  You agree that any and all Disputes between you and Blue-U, except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST BLUE-U. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).

 

  1. Pre-Filing Requirement to Attempt to Resolve Disputes.  Before an arbitration is commenced, you or Blue-U agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a Dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of the General Terms. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to Blue-U should be sent by mail to Blue-U Defense, LLC, PO Box 368, Hancock, New Hampshire 03449. 

 

Any Notice sent to you will be sent to the email address on file for your account. The Notice must: (i) include your name and account number; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (iii) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may commence arbitration. Each party agrees that state courts in Hillsborough County, New Hampshire, or federal court for the District of New Hampshire, may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.

 

  1. Scope of Arbitration.  If we are not able to resolve the Dispute by informal  negotiation or, as provided below, in a small claims court, all Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the Commercial Arbitration Rules for that forum, except you and Blue-U will have the right to file early or summary dispositive motions and to request that the AAA’s Expedited Procedures apply regardless of the claim amount. Except as set forth above, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the General Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

 

  1. Small Claims Court.  Subject to applicable jurisdictional requirements, either party may elect to pursue a Dispute in a local small-claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the Dispute heard in small claims court. At that time, the AAA will close the arbitration and the Dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.

 

  1. Arbitration Procedures.  The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies. Any arbitration hearing will occur in Hancock, New Hampshire, at another mutually agreeable location or, if both parties agree, by telephone or videoconference. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Blue-U values your privacy, particularly with respect to your financial transactions and data. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.

 

  1. Arbitration Fees.  In accordance with the AAA Rules, the party initiating the arbitration (either you or us) is responsible for paying the applicable filing fee. For purposes of this arbitration provision, references to you and Blue-U also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services.

 

  1. Opt Out. You may reject this provision, in which case only a court may be used to resolve any Dispute. To reject this provision, you must send us an opt-out notice containing your name, address, and phone number (the “Opt Out Notice”) within thirty (30) days after you create a Blue-U account or you first register for any Services. This is the only way of opting out of this provision. Opting out will not affect any other aspect of the General Terms or the Services and will have no effect on any other or future agreements you may enter into with us.

 

  1. Court Proceedings.  Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions as discussed above) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in Hillsborough County, New Hampshire, or federal court for the District of New Hampshire.

 

1. Governing Law

 

These General Terms and any Dispute will be governed by the Federal Arbitration Act, as set forth above, and by Wisconsin law and/or applicable federal law, without regard to its choice of law or conflicts of law principles.

 

1. Assignment

 

These General Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.

 

1. Third-Party Beneficiaries

 

No provision in these General Terms is intended or shall create any rights with respect to the subject matter of these General Terms in any third party.

 

1. Revisions, Disclosures and Notices

 

We may amend these General Terms at any time with notice that we deem to be reasonable under the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version.

 

We may provide disclosures and notices required by law and other information about your Blue-U Account to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your Blue-U Account or that you otherwise provided to Blue-U. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered. 

 

1. Other Provisions

 

These General Terms are a complete statement of the agreement between you and Blue-U regarding the Services. In the event of a conflict between these General Terms and any other Blue-U agreement these General Terms will prevail and control the subject matter of such conflict. If any provision of these General Terms is invalid or unenforceable under applicable law, then it 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. These General Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these General Terms will be deemed a further or continuing waiver of such term or any other term.