By Your continued access to this Site and/or use of the Services, You agree to be bound by the terms of this Agreement, which shall govern BlueYonder’s provision of Services to You.
1. Definitions
- “Agreement” shall mean these SKY Portal Terms of Use, as updated from time to time.
- “Personally Identifiable Information” or “PII” means information that can be used to distinguish or trace an individual's identity, such as their name, Social Security number, credit card number, bank account number, residential address, residential or personal telephone number, medical records, or financial records, alone, or when combined with other personal or identifying information that is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.
- “Site” means the SKY Portal website accessible at http://training.blueyonder.com/ or some other address as may be announced by BlueYonder, which is owned and operated by BlueYonder.
- “You” mean anyone accessing this Site.
- “Services” shall mean the services, software, and applications provided online at the Site and/or made available offline through or in connection with the service, including through a mobile device.
2. General
2.1 BlueYonder does not warrant that the contents of this Site are error-free. Information on this Site may contain technical inaccuracies and/or typographical or other types of errors and may be changed or updated at any time without notice. BlueYonder may also make improvements and/or changes to the Site (including the url to the Site), products and/or programs described on this Site at any time without notice to You. BlueYonder will use reasonable efforts to place accurate and up-to-date information on this Site but makes no warranty of its accuracy, completeness and/or timeliness. You acknowledge that use of this Site, and any information available through this Site is at Your own risk. BlueYonder shall also not be obliged to provide any support in relation to its provision of the services to You.
3. Use
- 3.1 You agree that You will only use this Site (including features thereof) for their intended purpose. You further agree not to: (i) use this Site, or any content or other materials on this Site for any unlawful purpose; (ii) restrict or inhibit any other user from using and enjoying this Site, including by means of hacking or defacing any portion of this Site, introducing any virus, worm, Trojan Horse, time bomb, spyware, or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or otherwise acting in a manner that negatively affects other users’ ability to engage in real time exchanges; (iii) impersonate any other person or entity, or misrepresent Your affiliation with any other person or entity; or (iv) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of this Site or any content or other materials on this Site. Any software or documentation included on this Site is supplied only under license.
- 3.2 You are responsible for and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your access to and use of this Site, including those related to data privacy, international communications and the transmission of technical or personal data. You will not decompile, reverse engineer, modify, adapt, translate, prepare derivative works, disassemble, or otherwise attempt to discover the source code of this Site, nor will You allow others to do the aforementioned.
- 3.3 BlueYonder has the right to terminate Your use of this Site, or any portion of this Site (including, but not limited to, revoking any rights or licenses) with or without notice, in its sole discretion, for any reason or no reason at all, including, but not limited to, if BlueYonder determines (in its sole discretion) that Your use of or conduct on or related to this Site (i) violates this Agreement, (ii) is harmful or disruptive to BlueYonder, its customers or vendors, another user or any other party, or (iii) violates applicable law.
- 3.4 Any new features that augment or enhance the current Site shall be subject to the terms and conditions of this Agreement. Services may not be used for any purpose not expressly permitted by this Agreement.
4. Downloading
- 4.1 You may only download those materials from this Site that are expressly designated to be downloaded by users. Where a fee is required to download any materials, You may not download such materials without paying such fee. You agree not to use technical or other means to circumvent this Agreement or any content protection technology used on this Site. Any unauthorized use, transmission, distribution, reproduction, reverse engineering, modification of any downloaded materials, or use thereof for an illegal purpose, is expressly prohibited.
- 4.2 There are inherent dangers in the use of any software available for downloading on the Internet, and BlueYonder cautions You to make sure that You completely understand the potential risks before downloading any of the software (including the potential infection of Your system by computer viruses). You are solely responsible for adequate protection and backup of the data and equipment used in connection with any of the software and assume all risks associated with any downloaded software.
5. Submission of Information or Materials
- 5.1 You may be required to provide BlueYonder with information about You in order to enjoy certain features of this Site, such as setting up Your company profile and product catalog. If You choose to provide BlueYonder with such information, You agree: (i) to provide true, accurate, current and complete information about You (and Your company if You are opening an account or making a purchase on behalf of Your company) as prompted by this Site, and (ii) to maintain and update this information to keep it true, accurate, current and complete. If any information provided by You is untrue, inaccurate, not current or incomplete, we have the right to terminate Your account and refuse any and all current or future use of this Site. In addition, You hereby grant BlueYonder a worldwide, royalty-free, paid-up, transferable, non-exclusive license to use, reproduce, distribute, transmit, display, publicly perform, and publish Your and Your company’s information including but not limited to logos, trademarks, product names and product pictures for the purposes of providing, administering, enhancing, supporting, marketing and other business purposes of our products and services to You or any other customer.
- 5.2 BlueYonder does not accept unsolicited ideas for new products, packaging, marketing, advertising, research, business operations and the like. Should You ignore this policy and submit an idea to BlueYonder, You agree that the idea becomes and remains the sole and exclusive property of BlueYonder without further liability or compensation to You. You agree that any information or materials that You submit to BlueYonder via this Site or any email links provided on this Site will not be considered confidential or proprietary. All such materials shall be deemed the property of BlueYonder, and Your submission of information shall constitute an assignment to BlueYonder of all worldwide rights, titles, and interests in such information. BlueYonder will not be liable for any use or disclosure of such information. BlueYonder will not have any obligation to keep such information confidential and will be free to reproduce, use, disclose, distribute, publicly perform and transmit such information to others without limitation or compensation. BlueYonder will be free to use any ideas, concept, know-how or techniques contained in such information for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products which incorporate or otherwise rely upon such information.
6. Password and User Name.
- 6.1 Access to this Site may be password controlled and accessible to registered users only. You certify that all information provided in the registration process is accurate and correct. If You are registering or making a purchase or conducting other transactions on behalf of Your company, You represent and certify that You are an authorized representative of Your company with the right to bind Your company to this Agreement. You are solely responsible for maintaining the confidentiality of Your account information, including, without limitation, Your user name and password. You are solely responsible for any and all activities that occur under Your user name and password. You agree to notify BlueYonder immediately of any unauthorized use of Your user name, password or account or any other breach of security. BlueYonder will not be liable for any loss that You may incur as a result of someone else using Your user name, password or account, either with or without Your knowledge. You will be held liable for losses incurred by BlueYonder as a result of the misuse of Your user name, password or account.
7. Links to Third Party Sites
- 7.1 There might be links on this Site that will permit You to travel to other, third-party sites over which BlueYonder has no control. These links are provided for Your convenience only and Your use of them is at Your own risk. BlueYonder makes no representations whatsoever about the content of any of these other web sites, or about any of the links contained in the web sites that You may access through this Site. BlueYonder does not endorse or accept any responsibility for the content, or use, of any such linked web sites.
8. Third-Party Disclaimer
- 8.1 BlueYonder may offer third-party names and information as an informational service only; it is not an endorsement or recommendation – implied or otherwise – of any of the listed companies or information. Each company listed is independent from BlueYonder and is not under the control of BlueYonder. BlueYonder accepts no responsibility for and disclaims any liability from the actions of the listed companies or reliance on any information from or about such companies. You should make Your own independent evaluation before conducting business with any such company or relying on any such information.
9. Copyright and Trademark
- 9.1 All materials on this Site, including, without limitation, all copyrights, trademarks, artwork, images and other elements (collectively, the “Content”), are protected by copyrights and other intellectual property rights owned and controlled by BlueYonder or by other parties that have licensed or otherwise provided their material to BlueYonder. Except as stated in this Agreement, none of the Content on this Site may be copied, reproduced, used for the creation of derivative works, distributed, republished, downloaded, displayed, posted, framed or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of BlueYonder or the copyright owner. You also may not, without BlueYonder’s permission, “mirror” any Content contained on this Site on any other server. Any unauthorized use of any material contained on this Site may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. You will not delete any proprietary, confidential, or intellectual property rights notices from anything provided on or though this Site.
- 9.2 BlueYonder respects the intellectual property and other rights of others, and we ask You to do the same. You are prohibited from uploading, posting or otherwise transmitting on or through the Site any content that violates another party’s intellectual property and other rights. BlueYonder is not responsible for the conduct of its users, and has no responsibility or liability for any information or materials that You submit to BlueYonder via this Site or for the loss or corruption thereof. It is BlueYonder’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who may infringe the copyrights or other intellectual property rights of BlueYonder and/or others.
10. Confidential Information
- 10.1 You may be given access to BlueYonder confidential information through this Site, or links from this Site. You may not disclose BlueYonder confidential information to any third party without the written consent of BlueYonder. You must protect BlueYonder confidential information with at least the same degree of care that is accorded to Your confidential information, but in no event less than reasonable care. BlueYonder confidential means all confidential and proprietary information belonging to BlueYonder and disclosed, made available to or learned by the You during the term of this Agreement, including without limitation, technical, business, financial, marketing or other information of every kind or nature (including, without limitation, trade secrets, know-how and information relating to technology, software design, specifications and prototypes, customers, business plans, promotional and marketing activities, finances and other business affairs of BlueYonder), third party confidential information and the technology and tools used in the Site and terms & conditions of this Agreement (including pricing).
11. International Trade Compliance
- 11.1 The products, services, and goods licensed or sold through this Site, which may include technology and software, are subject to the customs and export control laws and regulations of the U.S. and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured or received. Further, under U.S. law, such goods may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. You acknowledge that it is Your responsibility to comply with and abide by those laws and regulations, and that any customer or vendor that You allow to access this Site, the products or services, or that You request BlueYonder to route product to directly has also been made aware of and will comply with the associated export controls.
12. Indemnity
- 12.1 You agree to indemnify BlueYonder, and its subsidiaries, partners, affiliates, agents, consultants, sponsors, advertisers and licensors, and their respective officers, directors, employees, shareholders, agents and representatives (collectively, the “Released Parties”), and hold the Released Parties harmless from any and all claims and expenses, including attorneys’ fees, arising from Your use of this Site or the Content, or other materials on this Site, Your breach of any term or condition contained in this Agreement, or Your submission of information or materials to BlueYonder by any means or from any person’s use of any account or password You maintain with BlueYonder or this Site, regardless of whether such use is authorized by You. You agree to release the Released Parties from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that You may have against them arising out of or in any way related to such disputes or to any disputes regarding use of ideas and/or related materials submitted to BlueYonder.
13. Warranty Disclaimer
- 13.1 THIS SITE AND ALL CONTENT AND MATERIALS ON THIS SITE ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER BLUEYONDER, ITS AFFILIATES NOR ITS LICENSORS MAKE ANY WARRANTY, REPRESENTATION, CONDITION OR AGREEMENT WITH RESPECT TO THE SITE, CONTENTS AND MATERIALS, OR SERVICES, AND ALL SERVICES, CONTENTS AND MATERIALS ARE PROVIDED ‘AS-IS’. BLUEYONDER AND ITS LICENSORS EXPRESSLY DISCLAIM AND EXCLUDE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL IMPLIED AND STATUTORY WARRANTIES (INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE). WITHOUT LIMITING THE FOREGOING, BLUEYONDER MAKES NO WARRANTY OF ANY KIND REGARDING THE USE, VALIDITY, ACCURACY, OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING, THIS SITE OR THE CONTENT OR MATERIALS ON THIS SITE OR ANY WEB SITES LINKED TO THIS SITE OR ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION THE SERVICES, CONTENTS OR MATERIALS, OR ANY OTHER BLUEYONDER OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT ANY ERRORS ON THIS SITE WILL BE CORRECTED, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD-PARTY MATERIALS. Some jurisdictions do not allow a disclaimer of some or any implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties, to the extent prohibited.
14. Limitation of Liability
- 14.1 IN NO EVENT WILL BLUEYONDER, OR ITS SUBSIDIARIES, PARTNERS, AGENTS, AFFILIATES, LICENSORS, SPONSORS OR ADVERTISERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF BLUEYONDER IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY USE OF THIS SITE, THE PRODUCTS OR SERVICES, OR INFORMATION CONTAINED ON THIS SITE, OR ON ANY OTHER HYPERLINKED WEB SITE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE.
15. Digital Millenium Copyright Act
- 15.1 If You believe that Your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify BlueYonder’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For Your complaint to be valid under the DMCA, You must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that You claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit BlueYonder to contact You, such as Your address, telephone number, and, e-mail address;
- A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that You are the copyright owner or are authorized to act on behalf of the owner.
All such notices to BlueYonder will be addressed to Chief Executive Officer, with a copy to General Counsel at BlueYonder Software, Inc., 15059 N. Scottsdale Rd., Scottsdale, AZ 85254.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
Please note that this procedure is exclusively for notifying BlueYonder and its affiliates that Your copyrighted material has been infringed. The preceding requirements are intended to comply with BlueYonder’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, BlueYonder has adopted a policy of terminating, in appropriate circumstances and at BlueYonder’s sole discretion, members who are deemed to be repeat infringers. BlueYonder may also, at its sole discretion, limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
16. Notices to You
- 16.1 You acknowledge that BlueYonder may establish general practices and additional limits concerning use of Site and/or Services. Notices to You may be made via email or website posting. BlueYonder may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices to You generally on the Site. Your agreement to this Agreement constitutes Your agreement that You are deemed to have received any and all notices that would have been delivered had You accessed the Site in an authorized manner.
17. General
- 17.1 Independent Contractors. You and BlueYonder are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
- 17.2 Entire Agreement. The Agreement, including the any other agreements or statement of work, the information provided to You and by You during the sign-up process and during the upgrade/downgrade of Your account, and any other documents that are incorporated into this Agreement by reference, constitutes the entire agreement between You and BlueYonder and governs Your use of the Site, superseding any prior agreements between You and BlueYonder (including, but not limited to, any prior versions of the Agreement). You also may be subject to additional terms and conditions that may apply when You use other BlueYonder services, Third Party Content, third-party software or third-party services offered through the Site. In the event of any inconsistency between this Agreement and any statement of work, the statement of work controls and governs over this Agreement to the extent necessary to resolve the conflict or inconsistency.
- 17.3 Choice of Law and Forum. This Agreement and the rights and obligations of the parties with respect to their relationship under this Agreement are governed by and must be construed and enforced, without reference to its choice of law rules, in accordance with the internal laws of: (a) the State of Arizona, if Customer’s place of incorporation or principal place of business is in the United States, or in any region not otherwise specified herein; (b) the laws of England, if Customer’s place of business registration or incorporation is in Europe, the Middle East, or Africa; (c) the laws of Singapore, if Customer’s place of business registration or incorporation is in Asia Pacific; or (d) the law s of the Province of Ontario and the laws of Canada applicable therein, if Customer’s place of business registration or incorporation is in Canada. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are expressly excluded from this Agreement.
- 17.4 Dispute Resolution. Any dispute, controversy, claim, question or disagreement (a “Claim”) arising out of or related to this Agreement or the breach thereof, will be finally resolved:
(a) by the state and federal courts located in Maricopa County, Arizona, for Claims brought in the Americas, Europe, the Middle East, or Africa, and Customer hereby submits to the personal jurisdiction of such state and federal courts; or
(b) by binding arbitration before a single arbitrator under the commercial arbitration rules (in effect at the time such Claim is submitted to arbitration) of the International Chamber of Commerce, for Claims brought in countries in the Asia Pacific region. The arbitrator must be a person having experience with and knowledge of the computer software business and such arbitrator will not have any authority to make any ruling, finding or award that does not conform to this Agreement. Judgment upon the award rendered by the arbitrator will be final and binding on all parties and may be entered as a judgment and enforceable by any court of competent jurisdiction.
- 17.5 Equitable Relief. Notwithstanding anything stated above, either party may immediately seek equitable relief (without posting a bond or proving actual harm), including, without limitation, temporary injunctive relief upon a violation of a party’s confidentiality or intellectual property rights.
- 17.6 Attorneys' Fees and Costs. The prevailing party, or if there isn’t one, the substantially prevailing party, in any action or proceeding to enforce this Agreement, is entitled to recover from the other party its costs and reasonable attorneys’ and expert witness’ fees in addition to its damages.
- 17.7 Waiver and Severability of Terms. The failure of BlueYonder to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement or incorporated documents is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
- 17.8 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. Titles. The section titles in the Agreement are for convenience only and have no legal or contractual effect.
- 17.9 Force Majeure. BlueYonder shall not be responsible to you as a result of any delay or default in carrying out its obligations hereunder which is due in whole or in part to an event beyond of the control of BlueYonder.
- 17.10 Language. The governing language of the Agreement is English, which shall prevail over any other language used in any translated document.
18. Contact Us
18.1 If you have any questions regarding this Agreement, please contact BlueYonder at training@blueyonder.com.