Terms and Conditions
Last Update: August 8, 2026
These Blue Marble Group Terms and Conditions (this “Agreement”) are entered into by and between Blue Marble Group, Inc., dba Blue Marble Geographics, a Maine corporation with offices located at 22 Carriage Lane, Hallowell, ME 04347 and its Affiliates (collectively, “BMG”) and the party that has agreed to be bound by this Agreement (“Customer”, “you”, or “your”). BMG and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
By clicking to accept or agree to this Agreement when this option is made available to you, you accept and agree to be bound and abide by the terms of this Agreement and our Privacy Policy (hereinafter referred to as the “Privacy Policy”), which is incorporated herein by reference, as of the date you click your acceptance (the “Effective Date”). You additionally represent that you have the authority to enter into this Agreement and be bound by this Agreement. If you do not wish to be bound by this Agreement, neither you nor your Authorized Users may use the Software or SaaS Services.
1. Definitions. The following definitions apply to this Agreement:
1. “Affiliate” means any other entity or person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of an entity or person, whether through the ownership of voting securities, by contract, or otherwise.
–“Applicable Law” means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such Party or any of its properties, assets, or business operations.
“Authorized User” means an employee or contractor of Customer who Customer permits to access and use the SaaS Services, Software and/or Documentation pursuant to Customer’s license hereunder.
“BMG IP” means the SaaS Services, Software, Documentation, Usage Data, de-identified or aggregated data created in accordance with this Agreement and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, BMG IP includes Usage Data, and any information, data, or other content derived from BMG’s monitoring of Customer’s access to or use of the SaaS Services or Software, but does not include Customer Data and Support Data.
“Customer Data” means, other than Usage Data, information, data, and other content, in any form or medium, that Customer or its Authorized Users submit, post, or otherwise transmit through the SaaS Services or Software.
“Documentation” means BMG’s user manuals, handbooks, and guides relating to the Software and SaaS Services provided by BMG to Customer, including the documentation at https://www.bluemarblegeo.com/knowledgebase/global-mapper/GlobalMapper.htm and https://www.bluemarblegeo.com/knowledgebase/calculator/Home.htm, or any successor websites, as updated from time to time at BMG’s sole discretion. BMG may update the Documentation to reflect changes to the Software, SaaS Services, or BMG’s policies upon reasonable notice to Customer, provided that no such update will materially diminish the core functionality of the Software or SaaS Services during the applicable Term or Subscription Term.
“Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the SaaS Services and/or Software to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the SaaS Services and/or Software.
“Maintenance Services” or “M&S” means, to the extent you purchased Software, any maintenance and support services provided by BMG to Customer as expressly described in an Order Form, which shall consist solely of the following with respect to the licensed Software version for which the maintenance and support services have been purchased: (i) security patches including releases that address identified security vulnerabilities in the Software; (ii) bug fixes including corrections to defects or errors in the Software that cause it to fail to perform materially in accordance with the Documentation; (iii) existing feature enhancements including improvements or refinements to features and functionality already present in Customer’s licensed version of the Software; and (iv) standard support services including access to BMG’s technical support team for assistance with installation, configuration, and use of the Software in accordance with the applicable Documentation. For the avoidance of doubt, Maintenance Services do not include custom development, professional services, formal training, or access to new features, modules, or functionality introduced in a new version or edition of the Software made available through a separate subscription or SaaS offering, unless separately purchased in an Order Form. Unless expressly provided in an Order Form, no Maintenance Services will be provided to Customer. Maintenance Services do not apply to the purchase of SaaS Services.
“Order Form” means either an order form, quote, statement of work, or similar ordering document by which Customer orders the Software, SaaS Services, and/or Maintenance Services, which is issued by BMG and accepted in writing and executed by Customer, or the pages of BMG’s website which describe the Software, SaaS Services, and/or Maintenance Services selected by Customer for purchase and which are subject to the terms of this Agreement.
“SaaS Services” means the software-as-a-service offering described in an Order Form.
“Software” means the on-premises software product(s) described in an Order Form,in object code format, including any Updates provided to Customer pursuant to this Agreement.
“Support Data” means Customer Data, files, logs, screenshots, diagnostic information, credentials, or other materials that Customer or an Authorized User voluntarily provides to BMG for technical support, troubleshooting, licensing assistance, professional services, or similar support.
“Third-Party Products” means any third-party products provided with or incorporated into the SaaS Services or Software, including any open source software.
“Updates” means any updates, bug fixes, patches, or other error corrections to the Software that BMG generally makes available to all licensees of the Software who have a current Maintenance Services subscription. For the avoidance of doubt, “Updates” does not include new versions, editions, or releases of the Software that BMG makes available as a separate product, subscription, or SaaS offering, even if such releases contain new features or expanded functionality.
“Usage Data” means telemetry, diagnostic, license, analytics, usage, behavioral, technical, operational, statistical, and other information relating to Customer’s and its Authorized User’s access to or use of the SaaS Services or Software, including activation and entitlement data, device and environment information, feature and function usage, frequency of use, performance metrics, crash reports, error logs, IP addresses, geographic location data generated through location-tracking features of the SaaS Services, access patterns, and similar data. Usage Data also includes insights, analytics, and statistical information generated or derived from Customer’s and its Authorized User’s access to or use of the SaaS Services or Software. Usage Data is designed not to include Customer Data and, to the extent derived from Customer Data, shall be aggregated, de-identified, or otherwise processed so that it does not identify Customer, any individual, or any Customer Data.
-License Grants.
Perpetual Software License. To the extent Customer has purchased a perpetual license to the Software, as set forth in the applicable Order Form, the following license is hereby granted:
Perpetual Software License Grant. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, BMG hereby grants Customer a perpetual, non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 12(g)) license to: (i) use the Software solely for Customer’s internal business purposes up to the number of Authorized Users set forth in an Order Form; and (ii) use and make a reasonable number of copies of the Documentation solely for Customer’s internal business purposes in connection with Customer’s use of the Software. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
Term Software License. To the extent Customer has purchased a term license to the Software, as set forth in the applicable Order Form, the following license is hereby granted:
-Term Software License Grant. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, BMG hereby grants Customer during the Term a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 12(g)) license to: (i) use the Software solely for Customer’s internal business purposes up to the number of Authorized Users set forth in an Order Form; and (ii) use and make a reasonable number of copies of the Documentation solely for Customer’s internal business purposes in connection with Customer’s use of the Software. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
SaaS Services License. To the extent Customer has purchased a license to the SaaS Services, as set forth in the applicable Order Form, the following license is hereby granted:
SaaS Services License. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, BMG hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 12(g)) right to access and use the SaaS Services during the Subscription Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. BMG shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the SaaS Services. The total number of Authorized Users will not exceed the number set forth in applicable Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
Documentation License. Subject to the terms and conditions contained in this Agreement, BMG hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation applicable to Customer’s purchase set forth in the Order Form during the applicable Term or Subscription Term solely for Customer’s internal business purposes in connection with its use of the Software or SaaS Services.
Use Restrictions. Customer shall not use the SaaS Services, Software, or Documentation for any purposes beyond the scope of the applicable license and rights granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the SaaS Services, Software or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the SaaS Services, Software or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component or source code of the SaaS Services or Software, in whole or in part; (iv) remove any proprietary notices from the SaaS Services, Software or Documentation; (v) use the SaaS Services, Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law; (vi) use the SaaS Services, Software or Documentation, or any portion or component thereof in in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (vii) introduce, post, or upload to the SaaS Services or Software any Harmful Code; (viii) use the SaaS Services or Software in connection with service bureau, timeshare, service provider or like activity whereby Customer or its Authorized Users operate the SaaS Services or Software for the benefit of a third party; (ix) benchmark or publicly disclose performance testing of the Software or SaaS Services without BMG’s prior written consent; or (x) circumvent any processes, procedures, or technologies that BMG has put in place to safeguard the SaaS Services or Software.
Suspension. To the extent Customer has purchased a license to the SaaS Services, as set forth in the applicable Order Form, and notwithstanding anything to the contrary in this Agreement, BMG may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the SaaS Services if: (i) BMG reasonably determines that (A) there is a threat or attack on any of the BMG IP; (B) Customer’s or any Authorized User’s use of the BMG IP disrupts or poses a security risk to the BMG IP or to any other customer or vendor of BMG; (C) Customer, or any Authorized User, is using the BMG IP for fraudulent or illegal activities; (D) subject to Applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) BMG’s provision of the SaaS Services to Customer or any Authorized User is prohibited by applicable law; or (ii) any vendor of BMG has suspended or terminated BMG’s access to or use of any third-party services or products required to enable Customer to access the SaaS Services (any such suspension described in subclause (i) or (ii), a “Service Suspension”). BMG shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the SaaS Services following any Service Suspension. BMG shall use commercially reasonable efforts to resume providing access to the SaaS Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BMG will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
Software License Suspension. To the extent Customer has purchased a term or perpetual license to the Software, as set forth in the applicable Order Form, and notwithstanding anything to the contrary in this Agreement, BMG may suspend or disable Customer’s license keys, activation credentials, or access to Maintenance Services if: (i) Customer breaches any material term of this Agreement, including Section 2(e) (Use Restrictions) or Section 4 (Named User Accounts and Administration), and such breach remains uncured for ten (10) days following written notice from BMG; (ii) Customer fails to pay any Fees when due and such failure remains uncured for ten (10) days following written notice from BMG; or (iii) BMG reasonably determines that Customer’s use of the Software poses a security risk to BMG or third parties, or is being used for fraudulent or illegal activities. BMG shall provide written notice to Customer of any such suspension and the reasons therefor. BMG will restore Customer’s license keys, activation credentials, or access to Maintenance Services promptly upon cure of the event giving rise to the suspension.
-Customer Responsibilities.
General. Customer is responsible and liable for all uses of the SaaS Services, Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.
Third-Party Products. BMG may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products may be subject to their own terms and conditions and the applicable flow-through provisions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. The Software may also contain certain open source software. To the extent Customer purchased a license to the Software, as set forth in the applicable Order Form, Customer understands and acknowledges that such open source software is not licensed to Customer pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license. Customer shall have only such rights and/or licenses, if any, to use the open source software as set forth in the licenses referenced in the Order Form.
Named User Accounts and Administration.
Individual Assignment. Software licenses granted under a Named User model are individualized and tied strictly to a single, identified natural person (“Named User”). The Customer shall assign each purchased license to an individual Named User via the Blue Marble Hub using a unique corporate email address or identity credential.
Prohibition on Sharing. Credentials, usernames, and passwords associated with a Named User account are strictly personal and may not be shared, pooled, or used concurrently or sequentially by multiple individuals.
Permitted Reassignments and Abuse Prevention. Customers are permitted to revoke and reassign a Named User license to a different individual solely to accommodate permanent staffing changes, such as when an employee leaves the organization or permanently changes job roles. Customer explicitly agrees not to utilize the Blue Marble Hub to frequently, systematically, or automatically reassign licenses in a manner that simulates a concurrent, floating, or multi-user shift-sharing model (“License Churning”).
Restrictions and Technical Enforcement. BMG reserves the right to monitor reassignment frequency and to technically limit or throttle reassignments via the admin portal. Without limiting other remedies, BMG may enforce a mandatory lock-out or cooling-off period (up to thirty [30] days) upon the revocation of a license, during which time the vacant seat cannot be reassigned. Reassignments exceeding [e.g., four (4)] changes per seat per calendar year shall require prior written approval and may be subject to additional fees.
Audit Rights. BMG reserves the right to review and audit portal assignment logs. If an audit reveals that licenses are being systematically reassigned to evade purchasing adequate seat volume, BMG may suspend access to the administration portal, terminate the agreement, or invoice the Customer for the equivalent volume of licenses required to cover total unique users.
-Maintenance and Support.
To the extent Customer purchased a license to the Software, as set forth in the applicable Order Form, BMG shall provide Customer with the Maintenance Services, if any, as described on the Order Form, so long as Customer has purchased Maintenance Services for any and all then-current Software licenses and Customer is in compliance with the terms of the Technical Support Agreement and the Software License Policy, or any successor websites, each of which may be updated from time to time at BMG’s sole discretion.Customer agrees and acknowledges that any Maintenance Services provided to Customer do not entitle Customer to any new features, modules, or functionality introduced in a new version or edition of the Software made available by BMG through a separate subscription or SaaS offering, and does not include custom development, professional services, or formal training, each of which may be purchased separately through an Order Form.
Unless otherwise stated in the applicable Order Form, if Customer’s Maintenance Services subscription expires and Customer subsequently elects to renew, applicable fees for the renewed Maintenance Services subscription shall be retroactive to the date on which the prior subscription expired. BMG reserves the right to decline renewal of Maintenance Services upon written notice to Customer for any reason.
-Fees and Payment.
Fees. Customer shall pay BMG the fees (“Fees”) set forth in the Order Form, without offset or deduction. Customer shall make all payments hereunder in US dollars within thirty (30) days of receipt of each applicable invoice. If Customer fails to make any payment when due, in addition to all other rights and remedies that may be available: (i) BMG may charge interest on the past due amount at the rate of 1.5% per month, or the highest lawful interest rate, whichever is lower; and (ii) Customer shall reimburse BMG for all reasonable costs incurred by BMG in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on BMG’s income. Customer will indemnify and hold BMG harmless from any such taxes or claims relating to the payment, non-payment or under payment of such taxes.
Inspections, Records, and Auditing Rights. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the applicable Term or Subscription Term and for a period of two (2) years after the termination of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. BMG may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid BMG with respect to any amounts due and payable during the applicable Term or Subscription Term, or exceeded the number of Authorized Users permitted under Customer’s license, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 6(a). Additionally, during the applicable Term or Subscription Term, Customer shall permit BMG or its representatives to inspect Customer’s facilities for the sole purpose of ensuring Customer’s compliance with this Agreement. BMG will give Customer at least ten (10) days advance notice of any such on-premises inspection and will conduct the inspection during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations.
Confidential Information. From time to time during the applicable Term or Subscription Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, is: (a) or becomes public knowledge without any action by, or involvement of, the receiving Party; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s and its Affiliate’s employees and contractors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder and who are bound by confidentiality obligations at least as protective as those set forth herein. The receiving Party shall be responsible and liable for any breach of this Section by such employees and contractors. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the Party making the disclosure pursuant to the order shall, to the extent legally permitted, first have given written notice to the other Party and made a reasonable effort to obtain confidential treatment or a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed, except that the receiving Party may retain copies in backups or archival systems in accordance with its standard retention practices and Applicable Law, subject to the confidentiality obligations herein. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date of termination of expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under Applicable Law), such obligations of non-disclosure will survive the termination of this Agreement for as long as such Confidential Information remains subject to trade secret protection under Applicable Law.
-Intellectual Property Ownership; Data Rights.
IP Ownership. Customer acknowledges that, as between Customer and BMG, BMG owns all right, title, and interest, including all intellectual property rights, in and to the BMG IP and, with respect to Third-Party Products, the applicable third-party licensors own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. BMG reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the BMG IP.
Customer Data; Support Data. BMG acknowledges that, as between BMG and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. For SaaS Services, Customer hereby grants to BMG a non-exclusive, royalty-free, worldwide license, with the right to grant sublicenses, to host, copy, transmit, process, reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for BMG to provide the SaaS Services to Customer and generate any data expressly outlined under this Agreement. For Software, Customer acknowledges and agrees that Customer Data is processed locally on Customer-controlled devices, systems, or servers, and BMG does not access, collect, host or store Customer Data through the Software as part of ordinary product operation. Customer hereby grants BMG a non-exclusive, royalty-free, worldwide license, with the right to grant sublicenses, to use Support Data solely as necessary to provide support, troubleshooting, or other related services requested by Customer and as otherwise permitted by this Agreement.
Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to BMG by mail, email, telephone, or otherwise, suggesting or recommending changes to the BMG IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), BMG is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
Usage Data. BMG may collect, transmit, process and store Usage Data from or about Customer’s and Authorized User’s access to and use of the SaaS Services and Software. Customer will have the option to opt-out of providing Usage Data during installation, or as otherwise agreed between BMG and Customer. BMG shall remain the sole owner of all Usage Data. BMG may process and store Usage Data for licensing administration, security, fraud prevention, support, diagnostics, product analytics, product improvement, development, maintenance, and enhancement of existing and future products and services.
Local Software Processing; No Ordinary Storage. Except as expressly provided in this Agreement, an Order Form, or with respect to Support Data and Usage Data, the Software is locally installed and operates on Customer-controlled devices, systems, or servers, including desktops, workstations, mobile devices, and Customer-hosted servers. BMG does not access, collect, host, or store Customer Data through the Software as part of ordinary product operation.
Support Data. BMG may receive Customer Data or related materials only when Customer or an Authorized User voluntarily provides them as Support Data. Customer is responsible for ensuring that Support Data is lawful to provide and should not submit sensitive, regulated, classified, export-controlled, government-controlled, or third-party confidential data.
Aggregated and De-Identified Data. BMG may create, use, retain, and disclose aggregated, anonymized, or de-identified data derived from Usage Data and Support Data for analytics, benchmarking, product development, product improvement, and training, testing, and improving BMG’s artificial intelligence or machine learning models, algorithms, and product features, provided that such data does not identify Customer or Authorized Users.
Personal Information; Data Processing Addendum. To the extent Support Data, Usage Data, or Customer Data processed by BMG includes personal information or personal data subject to applicable privacy laws, BMG will process such information in accordance with its Privacy Policy, the applicable Order Form, and any applicable data processing addendum.
Data Security. BMG will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Support Data, Usage Data and Customer Data (if applicable) in BMG’s possession or control against unauthorized access, use, disclosure, alteration, and destruction, taking into account the nature of the data and the services provided. Notwithstanding the foregoing, Customer is responsible for securing Customer Data while it is stored or processed on Customer-controlled devices, systems, servers, or environments.
Government Contracts and Regulated Data. If Customer is a U.S. federal, state, local, tribal, or other governmental entity, or if Customer’s use of the SaaS Services or Software is subject to government contracting, security, data residency, export control, privacy, records management, public-sector procurement, or similar legal or regulatory requirements, Customer shall notify BMG of such requirements in writing before providing any Customer Data or Support Data to BMG. Any such requirements shall apply only to the extent expressly set forth in an applicable Order Form, this Agreement, data processing addendum, or other written amendment executed by authorized representatives of both Parties. BMG shall have no obligation to comply with any government-specific requirements, including FedRAMP, FISMA, NIST, CMMC, CJIS, ITAR, EAR, FAR, DFARS, agency-specific requirements, or government flow-down provisions, unless and solely to the extent expressly agreed to in a written agreement signed by BMG. Customer shall not provide BMG with any regulated, controlled, classified, export-controlled, or other data subject to such requirements unless the Parties have expressly agreed in writing to BMG’s handling of such data.
-Warranties and Warranty Disclaimer.
Software Warranty. To the extent Customer has purchased a term or perpetual license to the Software, as set forth in the applicable Order Form, the following warranty shall apply:
BMG warrants that: (A) the Software will perform materially as described in the Documentation for a period of one (1) year following the Effective Date; (B) at the time of delivery the Software does not contain any Harmful Code that would cause the Software to become inoperable or incapable of being used in accordance with the Documentation; and (C) it has the right and authority to grant the rights described in this Agreement. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE ITS INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF THE SOFTWARE, AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE SOFTWARE. THE FOREGOING WARRANTIES DO NOT APPLY, AND BMG STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
The warranties set forth in Section 9(a)(i) do not apply and become null and void if (A) Customer breaches any provision of this Agreement; (B) Customer has not purchased and/or paid for Maintenance Services, or is not currently under a current Maintenance Services subscription, for the Software; or (C) if Customer, any Authorized User, or any person provided access to the Software by Customer or any Authorized User, whether or not in violation of this Agreement: (1) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by BMG in writing; (2) modifies or damages the Software; or (3) misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by BMG in writing.
If, during the period specified in Section 9(a)(i), any Software fails to comply with the warranty in Section 9(a)(i), and such failure is not excluded from warranty pursuant to Section 9(a)(ii), BMG shall, subject to Customer’s promptly notifying BMG in writing of such failure, at its sole option, either: (A) repair or replace the Software, provided that Customer provides BMG with all information BMG requests to resolve the reported failure, including sufficient information to enable BMG to recreate such failure; or (B) refund the Fees paid for such Software, subject to Customer’s ceasing all use of and, if requested by BMG, returning to BMG all copies of the Software. If BMG repairs or replaces the Software, the warranty will continue to run from the Effective Date and not from Customer’s receipt of the repair or replacement. The remedies set forth in this Section 9(a)(iii) are Customer’s sole remedies and BMG’s sole liability under the limited warranty set forth in Section 9(a)(i).
SaaS Services Warranty. To the extent Customer has purchased a license to the SaaS Services, as set forth in the applicable Order Form, the following warranty shall apply:
BMG warrants that the SaaS Services will conform in all material respects with the Documentation provided with the SaaS Services or set forth in an Order Form, when accessed and used in accordance with the Documentation. BMG does not make any representations or guarantees regarding uptime or availability of the SaaS Services unless specifically identified in the Order Form. THE FOREGOING WARRANTY DOES NOT APPLY, AND BMG STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
If the SaaS Services fail to comply with the warranty in Section 9(b)(i), BMG shall, subject to Customer promptly notifying BMG in writing of such failure, at its sole option, either (A) repair or replace the SaaS Services, provided that Customer provides BMG with all information BMG requests to resolve the reported failure, including sufficient information to enable BMG to recreate such failure; or (B) refund the Fees paid for such SaaS Services, subject to Customer’s ceasing all use of the SaaS Services. The remedies set forth in this Section 9(b)(ii) are Customer’s sole remedies and BMG’s sole liability under the limited warranty set forth in Section 9(b)(i).
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 8(a) AND SECTION 8(b), THE BMG IP IS PROVIDED “AS IS” AND BMG HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BMG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 8(a) AND SECTION 8(b), BMG MAKES NO WARRANTY OF ANY KIND THAT THE BMG IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CERTAIN SOFTWARE OR SAAS SERVICES MAY INCLUDE ARTIFICIAL INTELLIGENCE, MACHINE LEARNING, OR AUTOMATED ANALYTICAL FUNCTIONALITY. ANY OUTPUTS, RECOMMENDATIONS, SUMMARIES, CLASSIFICATIONS, OR OTHER AI-GENERATED CONTENT ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND MAY CONTAIN INACCURACIES, OMISSIONS, OR ERRORS. CUSTOMER AND ITS AUTHORIZED USER’S REMAIN SOLELY RESPONSIBLE FOR REVIEWING AND VALIDATING ANY AI-GENERATED OUTPUT BEFORE RELYING UPON OR ACTING ON SUCH OUTPUT.
Indemnification.
BMG Indemnification.
To the extent Customer has purchased a term or perpetual license to the Software, as set forth in the applicable Order Form, the indemnification set forth in this Section 10(a) is subject to Customer’s maintaining a current subscription to Maintenance Services for the Software. To the extent Customer has purchased a license to the SaaS Services, as set forth in the applicable Order Form, the indemnification set forth in this Section 10(a) is subject to Customer being current on all Fees owed under this Agreement. Except as otherwise provided in this section, BMG shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the SaaS Services or Software, or any use of the SaaS Services or Software in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies BMG in writing of such Third-Party Claim, cooperates with BMG, and allows BMG sole authority to control the defense and settlement of such Third-Party Claim.
If a Third-Party Claim is made or appears possible, Customer agrees to permit BMG, at BMG’s sole discretion, to (A) modify or replace the SaaS Services or Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If BMG determines that neither alternative is reasonably available, BMG may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the SaaS Services or Software in combination with data, software, hardware, equipment, or technology not provided by BMG or authorized by BMG in writing; (B) modifications to the SaaS Services or Software not made by BMG or made by BMG at Customer’s specific request; (C) Customer Data; (D) Third-Party Products; or (E) to the extent Customer has purchased a term or perpetual license to the Software, use of any version other than the most current version of the Software or Documentation delivered to Customer (collectively, “Indemnity Exclusions”).
Customer Indemnification. Customer shall indemnify, hold harmless, and, at BMG’s option, defend BMG from and against any Losses resulting from any Third-Party Claim that the Customer Data, Support Data, or any use of the Customer Data or Support Data in accordance with this Agreement, infringes, violates or misappropriates such third party’s intellectual property or other rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the SaaS Services or Software in a manner not authorized or contemplated by this Agreement; (iii) breach of Customer’s obligations related to Tracking Functionalities as defined and set forth in the Privacy Policy; (iv) submission of Support Data or Customer Data in violation of Section 7; (v) failure to obtain any necessary rights, consents, or notices for Customer Data or Support Data; (vi) use of the SaaS Services or Software in combination with any hardware, software, data, or other materials not provided or authorized by BMG, to the extent such combination gives rise to the Third-Party Claim; (vii) breach of Section 4 (Named User Accounts and Administration); or (viii) the Indemnity Exclusions, provided that Customer may not settle any Third-Party Claim against BMG unless such settlement completely and forever releases BMG from all liability with respect to such Third-Party Claim or BMG consents to such settlement, and further provided that BMG will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND BMG’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SAAS SERVICES OR SOFTWARE INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability. IN NO EVENT WILL BMG BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BMG WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BMG’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO BMG UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS SET FORTH IN THIS SECTION 11 SHALL NOT APPLY TO (I) CUSTOMER’S BREACH OF SECTION 2(E) (USE RESTRICTIONS), (II) CUSTOMER’S BREACH OF SECTION 7 (CONFIDENTIAL INFORMATION), (III) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10(B), (IV) CUSTOMER’S PAYMENT OBLIGATIONS, OR (V) EITHER PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
Term and Termination. The defined term “Term”, as used throughout this Agreement, shall mean (i) the license term set forth in Section 12(a) to the extent Customer purchased a perpetual license to the Software, or (ii) the license term set forth in Section 12(b) to the extent Customer purchased a term license to the Software, each as set forth in the applicable Order Form.
Perpetual Software Term. To the extent Customer has purchased a perpetual license to the Software, as set forth in the applicable Order Form, the following term shall apply:
Term. The initial term of this Agreement begins on the Effective Date and will continue in effect until terminated pursuant to this Agreement’s express provisions (the “Term”).
Term Software License. To the extent Customer has purchased a term license to the Software, as set forth in the applicable Order Form, the following term shall apply:
Term. The initial term of this Agreement begins on the Effective Date and, unless terminated pursuant to this Agreement’s express provisions, will continue in effect for the term set forth in the applicable Order Form, including any renewal terms set forth therein (the “Term”).
Automatic Renewal. Unless either Party provides written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term, the Term will automatically renew for successive renewal periods equal in length to the initial Term (or one (1) year, if shorter). BMG may increase the Fees for any renewal Term by providing written notice to Customer at least sixty (60) days prior to the commencement of such renewal term. If Customer does not agree to such fee increase, Customer may elect not to renew by providing written notice to BMG prior to the commencement of the renewal term.
SaaS Services License. To the extent Customer has purchased a license to the SaaS Services, as set forth in the applicable Order Form, the following subscription term shall apply:
Subscription Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the term set forth in the applicable Order Form, including any renewal terms set forth therein (the “Subscription Term”).
Automatic Renewal. Unless either Party provides written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term, the Subscription Term will automatically renew for successive renewal periods equal in length to the initial Subscription Term (or one (1) year, if shorter). BMG may increase the Fees for any renewal Subscription Term by providing written notice to Customer at least sixty (60) days prior to the commencement of such renewal term. If Customer does not agree to such fee increase, Customer may elect not to renew by providing written notice to BMG prior to the commencement of the renewal term.
Termination. In addition to any other express termination right set forth in this Agreement:
either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; BMG may terminate this Agreement, effective on written notice to Customer, if Customer breaches any of its obligations under Section 2(e) or Section 6; or either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Effect of Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s license granted hereunder shall immediately terminate, Customer shall immediately discontinue use of the BMG IP, and, without limiting Customer’s obligations under Section 7, Customer shall cease using and delete, destroy, or return all copies of the BMG IP and certify in writing to BMG that the BMG IP has been deleted or destroyed. Upon expiration or termination of a SaaS Services subscription, Customer may request an export of Customer Data in BMG’s then-current standard export format within thirty (30) days following termination. Thereafter, BMG may delete Customer Data in accordance with its standard retention practices, except to the extent retention is required by Applicable Law or maintained in routine backup or archival systems. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. Survival. This Section 11(f) (Survival) and Sections 1 (Definitions), 2(e) (Use Restrictions), 3 (Customer Responsibilities), 4 (Named User Accounts and Administration), 5 (Maintenance and Support), 6 (Fees and Payment), 7 (Confidential Information), 8 (Intellectual Property Ownership; Data Rights), 9 (Warranties and Warranty Disclaimer), 10 (Indemnification), 11(e) (Effect of Expiration or Termination) and 12 (Miscellaneous) survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Miscellaneous.
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, any other documents incorporated herein by reference, and the applicable Order Form, the following order of precedence governs: (i) first, this Agreement; (ii) second, the Order Form; and (iii) third, any other documents incorporated herein by reference.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties as follows: (1) for BMG, all Notices must be addressed to Blue Marble Geographics, Inc. at 22 Carriage Lane, Hallowell, ME 04347 and (2) for Customer, all Notices must be addressed to the address provided by Customer in the applicable Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
Force Majeure. In no event shall BMG be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond BMG’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, pandemic, epidemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities.
Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Maine without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Maine. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the state or federal courts located in the State of Maine, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of BMG. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), including but not limited to those required prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US. Customer represents and warrants that (i) Customer is not a sanctioned entity, as designated by the U.S. Treasury’s Office of Foreign Assets Control (OFAC) or a denied or restricted party listed by the U.S. Department of Commerce Bureau of Industry and Security, and (ii) Customer will not use the SaaS Services or Software for any impermissible usage under any applicable export laws or regulations.
Compliance with Laws. Customer shall comply with all applicable laws, including any applicable export and import control laws and regulations, in its use of the SaaS Services or Software. Customer shall defend, indemnify and hold harmless BMG from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7. or, in the case of Customer, Section 2(e), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Publicity. Customer grants BMG the right to use Customer’s name, logo, and trademarks to identify Customer as a customer of BMG on BMG’s website, customer lists, presentations, case studies, and marketing materials. BMG may also issue a press release announcing the relationship, subject to Customer’s prior written approval of the press release content. Customer may revoke this authorization at any time by providing reasonable prior written notice to BMG.
EXHIBIT A
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) is incorporated into and forms part of the Agreement between BMG and Customer. This SLA applies solely to the SaaS Services and sets forth the service level commitments, exclusions, and remedies applicable to Customer’s use of the SaaS Services. Capitalized terms used but not defined herein have the meanings set forth in the Agreement.
1. SERVICE AVAILABILITY COMMITMENT
1.1 Uptime Commitment. BMG will use commercially reasonable efforts to make the SaaS Services available with a Monthly Uptime Percentage of at least [99.5]% during each calendar month during the Subscription Term (the “Availability Target”).
1.2 Definitions. For purposes of this SLA:
(a) “Downtime” means any period during which the SaaS Services are unavailable or materially degraded, as measured by BMG’s monitoring systems. Downtime is measured in minutes from the time BMG becomes aware of the outage (whether through its monitoring systems or Customer notification) until service is restored.
(b) “Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime in that month, divided by the total number of minutes in that month, expressed as a percentage.
(c) “Scheduled Maintenance” means planned maintenance of the SaaS Services for which BMG provides Customer at least [48] hours’ prior notice via email or through the SaaS Services interface. BMG will use commercially reasonable efforts to schedule maintenance during off-peak hours (between 12:00 AM and 6:00 AM Eastern Time on weekends).
2. EXCLUSIONS FROM DOWNTIME
The following will not be counted as Downtime for purposes of calculating Monthly Uptime Percentage:
(a) Scheduled Maintenance;
(b) Force majeure events as described in Section 13(c) of the Agreement;
(c) Unavailability caused by Customer’s equipment, software, network connections, or other infrastructure outside BMG’s reasonable control;
(d) Unavailability caused by third-party services, networks, or infrastructure not within BMG’s direct operational control, including internet service providers, cloud hosting providers, and content delivery networks;
(e) Service Suspensions as defined in Section 2(f) of the Agreement;
(f) Outages resulting from Customer’s or any Authorized User’s actions or inactions, including misuse of the SaaS Services, violation of the Agreement, or failure to implement BMG’s recommended configurations;
(g) Beta, pilot, pre-release, or evaluation versions of the SaaS Services; and
(h) Emergency maintenance required to address security vulnerabilities, Harmful Code, or imminent threats to the SaaS Services, provided BMG notifies Customer as soon as reasonably practicable.
3. SERVICE CREDITS
3.1 Credit Calculation. If BMG fails to meet the Availability Target in any calendar month, Customer will be entitled to a service credit (“Service Credit”) calculated as a percentage of the monthly SaaS Services fees for the affected month, as set forth in the table below:
Monthly Uptime Percentage / Service Credit
99.0% – < 99.5%: 5% of monthly fees
95.0% – < 99.0%: 10% of monthly fees
< 95.0%: 25% of monthly fees
BMG may modify this SLA from time to time; provided, however, that any modification that materially reduces the service levels or Customer’s remedies will not apply to Customer’s then-current Subscription Term without Customer’s written consent. BMG will provide at least thirty (30) days’ prior notice of any material modifications.
For annual or multi-year subscriptions, the monthly SaaS Services fee shall be calculated by dividing the total annual fees by twelve (12).
3.2 Credit Request Procedure. To receive a Service Credit, Customer must submit a written request to BMG within thirty (30) days after the end of the month in which the Downtime occurred. The request must include: (a) the dates and times of the Downtime; (b) a description of the impact on Customer’s use of the SaaS Services; and (c) any supporting documentation reasonably available to Customer.
3.3 Credit Issuance. BMG will review Customer’s request and, if the request is validated, issue the Service Credit within sixty (60) days. Service Credits will be applied against future invoices. Service Credits are not redeemable for cash and will not be refunded or paid out upon termination or expiration of the Agreement.
3.4 Maximum Credits. The maximum aggregate Service Credits that Customer may receive in any calendar month shall not exceed twenty-five percent (25%) of the monthly SaaS Services fees for that month. Service Credits are Customer’s sole and exclusive remedy for any failure by BMG to meet the Availability Target. Service Credits shall not be available if Customer is in breach of any material term of the Agreement at the time of the Downtime or at the time of the credit request.
4. SUPPORT SERVICES
4.1 Support Eligibility and Availability. Technical support services are strictly conditional upon Customer maintaining a valid, active subscription status. Upon subscription expiration, lapse, or cancellation, all rights to receive technical support terminate immediately. BMG will provide technical support for the SaaS Services during Support Hours (Monday through Friday, 9:00 AM to 5:00 PM Eastern Time, excluding U.S. federal holidays observed by BMG) via the Blue Marble Hub. To maintain tracking efficiency and precise case routing, all inbound technical issues must be submitted electronically through the Blue Marble Hub.
4.2 Service Level Targets. The following service level targets represent baseline performance criteria provided on a commercially reasonable efforts basis. These targets are not financially indemnified guarantees.
(a) First Reply Target: BMG targets an initial human response within four (4) Support Hours from the point of ticket creation in the Blue Marble Hub. Automated responses do not qualify toward this target.
(b) Full Resolution Target: BMG targets resolution, a viable workaround, or a hotfix for standard system errors and application configurations within three (3) Business Days.
(c) Severity Classifications: For complex issues, BMG may apply the following severity classifications to prioritize response efforts: (i) Severity 1 (Critical): The SaaS Services are completely unavailable or a core function is inoperable, with no workaround available—BMG will use continuous commercially reasonable efforts until resolved or a workaround is provided; (ii) Severity 2 (High): A major function of the SaaS Services is significantly impaired, but a workaround exists; (iii) Severity 3 (Medium): A function of the SaaS Services is impaired but does not significantly affect Customer’s use; and (iv) Severity 4 (Low): General questions, minor issues, or enhancement requests.
4.3 Supported Software Versions. To ensure engineering efficacy and product lifecycle stability, technical support commitments are limited based on the software release cycle: (a) Core Lifecycle Support: Full technical support, product documentation, patch deployments, and bug fixes are maintained for the current major version and the two (2) immediate past major versions; and (b) Legacy Product Status: For software builds falling outside of this scope (three or more major versions old), support will be rendered on a strictly best-efforts basis only.
4.4 Support Exclusions. The standard support model is designed to address underlying software core functionality and defects. The following domains are explicitly excluded from standard support response commitments: (a) User-Generated Data Interoperability: Troubleshooting or reconstructing corrupted client database environments, unformatted raster layers, or malfunctioning custom shapefiles; (b) Custom Scripting and Extensions: Debugging, maintaining, or drafting proprietary scripts, expressions, or custom API implementations created by Customer or its Authorized Users; and (c) Training Substitutions: Using standard technical support tickets as a replacement for comprehensive operator training on geographic information systems (GIS) or mapping workflow development.
5. DATA BACKUP AND RECOVERY
5.1 Backup. BMG will perform automated backups of Customer Data stored in the SaaS Services at least [daily]. Backups will be retained for a minimum of [30] days.
5.2 Recovery Point Objective (RPO). BMG targets a Recovery Point Objective of [24] hours, meaning in the event of a data loss incident, BMG will restore Customer Data from the most recent backup, which may result in loss of data entered or modified within the [24] hours prior to the incident.
5.3 Recovery Time Objective (RTO). BMG targets a Recovery Time Objective of [8] hours for Severity 1 incidents affecting data availability, meaning BMG will use commercially reasonable efforts to restore access to Customer Data within [8] hours of confirming a qualifying data loss incident.
6. SECURITY
6.1 Security Measures. BMG will maintain commercially reasonable security measures for the SaaS Services, including: (a) encryption of Customer Data in transit using TLS 1.2 or higher; (b) encryption of Customer Data at rest using AES-256 or equivalent; (c) logical access controls and authentication mechanisms; (d) regular security assessments and vulnerability scanning; and (e) incident detection and response procedures.
6.2 Security Incident Notification. In the event BMG becomes aware of a confirmed unauthorized access to or disclosure of Customer Data (a “Security Incident”), BMG will: (a) notify Customer without undue delay and in any event within [72] hours of confirming the Security Incident; (b) investigate the Security Incident and provide Customer with information about the nature and scope of the incident; and (c) take reasonable steps to mitigate the effects of the Security Incident and prevent recurrence.
7. PERFORMANCE AND PROCESSING
7.1 Processing Capabilities. The SaaS Services will support the processing of geospatial data formats commonly used in the industry, including but not limited to GeoTIFF, Shapefile, KML/KMZ, GeoJSON, and other formats as specified in the Documentation. Specific file size limits, processing quotas, and throughput parameters may be set forth in the applicable Order Form or Documentation.
7.2 API Availability. To the extent the SaaS Services include application programming interfaces (APIs), such APIs will be subject to the same Availability Target as the SaaS Services. BMG will provide reasonable advance notice of any material changes to API specifications.
8. REPORTING AND COMMUNICATION
8.1 Status Page. BMG will maintain a publicly accessible status page or similar mechanism to communicate real-time service status, planned maintenance windows, and incident updates.
8.2 Monthly Reports. Upon Customer’s reasonable request (not more than once per calendar month), BMG will provide Customer with a summary report of the prior month’s uptime performance and any material incidents.
9. MODIFICATIONS TO THIS SLA
(a) BMG may modify this SLA from time to time; provided, however, that any modification that materially reduces the service levels or Customer’s remedies will not apply to Customer’s then-current Subscription Term without Customer’s written consent. BMG will provide at least thirty (30) days’ prior notice of any material modifications.
