BlueOcean Master Service Agreement

This Master Service Agreement (this “Agreement”), effective as of the date specified (the “Effective Date”), is by and between BlueOcean AI, Inc. (“BlueOcean”), and the customer (“Customer”).  BlueOcean and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.  This Agreement incorporates by reference any and all attachments to this Agreement and any Order Form (as defined below) executed by the Parties. 

WHEREAS, BlueOcean provides the Services (as defined below) to its customers; and

WHEREAS, Customer desires to be provided the Services, and BlueOcean desires to provide Customer the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.

1. “BlueOcean IP” means any intellectual property in the Services, Brand Navigator, the Documentation and any Foreground IP.

2. “Brand Navigator” means BlueOcean’s proprietary software platform referred to as Brand Navigator. 

3. “Deliverables” means any tangible property, including  any downloadable content  delivered to Customer under this Agreement as specified in an Order Form.

4. “Documentation” means BlueOcean’s user manuals, handbooks, and guides relating to the Services and Brand Navigator provided by BlueOcean to Customer either electronically, within a Software as a Service (“SaaS”) application, or in hard copy form/end user documentation relating to the Services.

5. “Foreground IP” means intellectual property created       in connection with the Services hereunder, including any intellectual property in any Deliverables.

6. “Services” means the services specified on an Order Form. 

2. Services, Access to Brand Navigator and Use. 

1. Provision of Services. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, BlueOcean shall provide the Services to Customer as set forth on an order form agreed to by the Parties in writing and referring to this Agreement (each an “Order Form”), including the initial Order Form. 

2. Access to Brand Navigator. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, BlueOcean hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(g)) right to access and use Brand Navigator during the Term, solely for Customer to receive and use the Service and solely in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. BlueOcean shall provide to Customer the necessary passwords and network links or connections to allow Customer to access Brand Navigator. 

3. Deliverables and Documentation License. Subject to the terms and conditions contained in this Agreement, BlueOcean hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(g)) license to use the Deliverables and Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.

4. Use Restrictions. Customer shall not use the Services, the Deliverables, Brand Navigator or the Documentation for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit anyone to: (i) copy, modify, or create derivative works of the Services, the Deliverables, Brand Navigator or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, the Deliverables, Brand Navigator or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Brand Navigator, in whole or in part; (iv) remove any proprietary notices from the Services, the Deliverables, Brand Navigator or the Documentation; (v) use the Services, the Deliverables, Brand Navigator 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; or (vi) disclose to any person or entity, or otherwise allow any person or entity to access, any passwords provided by BlueOcean for Brand Navigator.

5. Reservation of Rights. BlueOcean 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 BlueOcean IP.  

6. Suspension. Notwithstanding anything to the contrary in this Agreement, BlueOcean may temporarily suspend provision of the Services or Customer’s access to any portion or all of Brand Navigator if: (i) BlueOcean reasonably determines that (A) there is a threat or attack on any of the BlueOcean IP; (B) Customer’s use of the BlueOcean IP disrupts or poses a security risk to the BlueOcean IP or to any other customer or vendor of BlueOcean; (C) Customer is using the BlueOcean 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) BlueOcean’s provision of the Services to Customer or Customer’s access to Brand Navigator is prohibited by applicable law; or (ii) in accordance with Section 4(c)(iii) (any such suspension described in subclause (i) or (ii), a “Service Suspension”). BlueOcean shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access following any Service Suspension. BlueOcean 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. 

7.  Use of Public Information. Customer acknowledges and agrees that BlueOcean may use certain information or data in connection with the Services that is publicly available.

3. Customer Responsibilities.

1. General. Customer is responsible and liable for all uses of the Services. the Deliverables, Brand Navigator and the Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. 

4. Fees and Payment. 

1. Fees. Customer shall pay BlueOcean the fees (“Fees”) as set forth in any Order Form. Customer shall make all payments hereunder in US dollars. 

2. Payment Schedule.  Customer shall receive invoices based upon the billing/payment schedule contained in the applicable Order Form.  Invoices shall contain a description of the Services or Deliverables provided.  Payments due and payable within fifteen  ( 15 ) days of issuance of an invoice by BlueOcean.

3. Late Payments.  If Customer fails to make any payment when due, without limiting BlueOcean’s other rights and remedies: (i) BlueOcean may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse BlueOcean for all reasonable costs incurred by BlueOcean in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, BlueOcean may suspend providing the Services or Customer’s access to Brand Navigator until such amounts are paid in full.

4. 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 BlueOcean’s income.

5. Confidential Information. From time to time during the 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 (including the Deliverables and passwords for the Services provided by BlueOcean to Customer, which shall constitute Confidential Information of BlueOcean), whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (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. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. 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 first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or 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. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; 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 or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6. Intellectual Property Ownership; Feedback; Use of Customer Name. 

1. BlueOcean IP. Customer acknowledges that, as between Customer and BlueOcean, BlueOcean owns all right, title, and interest, including all intellectual property rights, in and to the BlueOcean IP, including any Foreground IP.  To the extent Customer obtains any ownership rights in any BlueOcean IP, including Foreground IP, Customer hereby assigns to BlueOcean all its right, title and interest in and to such BlueOcean IP, including Foreground IP, and shall take actions reasonably requested by BlueOcean to effectuate BlueOcean’s ownership thereof.

2. Customer Information. BlueOcean acknowledges that, as between BlueOcean and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the information, data, and other content, in any form or medium, that exists as of the date hereof or is created outside the scope of this Agreement and is provided by Customer to BlueOcean hereunder (“Customer Information”). Customer hereby grants to BlueOcean a non-exclusive, royalty-free, worldwide license to use the Customer Information and      perform all acts with respect to the Customer Information as may be necessary for BlueOcean to provide the Services to Customer and create the Deliverables     .

3. Use of Customer Name. BlueOcean may use, and Customer hereby grants BlueOcean the right to use, any of Customer’s name, logo, trademark and service mark in a factual manner to state that Customer is a user of the Services or Brand Navigator, including on promotional and sales materials and on BlueOcean’s website.

7. Limited Warranty and Warranty Disclaimer. 

1. BlueOcean warrants that the Services will be performed in a professional and workmanlike manner and conform in all material respects with the Documentation. 

2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a),THE SERVICES, THE DELIVERABLES, BRAND NAVIGATOR AND THE DOCUMENTATION ARE PROVIDED “AS IS” AND BLUEOCEAN HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BLUEOCEAN 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 WARRANTY SET FORTH IN SECTION 7(a), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, THE DELIVERABLES, BRAND NAVIGATOR AND THE DOCUMENTATION, 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, OR ERROR FREE. 

8. Indemnification. 

1. BlueOcean Indemnification. 

1. BlueOcean shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, the Deliverables, Brand Navigator or the Documentation, or any use of the foregoing in accordance with this Agreement, infringes or misappropriates a third party’s intellectual property and any Third-Party Claims based on BlueOcean’s negligence, willful misconduct or breach of this Agreement, provided that Customer promptly notifies BlueOcean in writing of the claim, cooperates with BlueOcean, and allows BlueOcean sole authority to control the defense and settlement of such claim. 

2. If such a claim is made or appears possible, Customer agrees to permit BlueOcean, at BlueOcean’s sole discretion, to (A) modify or replace the Services the Deliverables, Brand Navigator or the Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If BlueOcean determines that neither alternative is reasonably available, BlueOcean may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. 

3. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services, the Deliverables, Brand Navigator or the Documentation in combination with information, data, software, hardware, equipment, or technology not provided by BlueOcean or authorized by BlueOcean in writing; (B) modifications to the Services, the Deliverables, Brand Navigator or the Documentation not made by BlueOcean; or (C) Customer Information. 

2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at BlueOcean’s option, defend BlueOcean from and against any Losses resulting from any Third-Party Claim that the Customer Information, or any use of the Customer Information in accordance with this Agreement, infringes or misappropriates any third party’s intellectual property rights and any Third-Party Claims based on Customer’s negligence, willful misconduct or breach of this Agreement, provided that Customer may not settle any Third-Party Claim against BlueOcean unless BlueOcean consents to such settlement, and further provided that BlueOcean 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. 

3. Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND BLUEOCEAN’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES, THE DELIVERABLES, BRAND NAVIGATOR OR THE DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

9. Limitations of Liability. IN NO EVENT WILL EITHER PARTY 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 PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BLUEOCEAN’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 BLUEOCEAN UNDER THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

10. Term and Termination. 

1. 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 until one year from such date (the “Initial Term”). This Agreement will automatically renew for successive one year terms, at the then current price subject to an annual price increase of no more than four percent (4%) from the subscription list price, unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).

2. Termination. In addition to any other express termination right set forth in this Agreement:

1. BlueOcean may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after BlueOcean’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(b), Section 2(c);

2. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party (1) breaches its obligations under or 5 or (2) materially breaches any of its other obligations under 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; or

3. 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.

3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Services, the Deliverables, Brand Navigator and the Documentation and, without limiting Customer’s obligations under 6, Customer shall delete, destroy, or return all copies of the any of the foregoing and any other BlueOcean IP and certify in writing to the BlueOcean that such has been deleted or destroyed. 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.

4. Survival. This Section 10(d) and Sections 1, 4, 5, 6(a)-(c), 7(b), 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

11. Miscellaneous. 

1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Order Forms, 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. 

2. Notices. Notices to be given by either Party under this Agreement shall be sent by certified mail, express overnight delivery, email, or telecopy to the attention of the other Party.  Notices sent to Customer shall be at the addresses first set forth above.  Notices sent to BlueOcean shall be at the following address: 

267 15th Avenue

San Francisco, CA 94118.

3. Force Majeure. Except for Customer’s payment obligations hereunder, neither Party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to failure of performance by the other Party, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, epidemic, pandemic or power failure.  In the event of such delay, the date of performance will be extended by a period of time reasonably necessary to overcome the effect of any such delay.

4. 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.

5. 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 shall negotiate in good faith to modify this Agreement so as to effect their original intent 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.

6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California 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 California. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

7. Assignment. Customer may not assign 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 BlueOcean, which consent shall not be unreasonably withheld, conditioned, or delayed. BlueOcean may assign this Agreement without consent from Customer including in connection with a sale of all or substantially all the assets of BlueOcean.  Any purported assignment or delegation in violation of this Section will be null and void. No assignment 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 and their respective permitted successors and assigns. 

8. Export Regulation. Each Party 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), that prohibit or restrict the export or re-export of the Services, the Deliverables, Brand Navigator, the Documentation or any Customer Information outside the US. 

9. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 5 or, in the case of Customer, Section 2(b) or Section 2(c), 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. 

Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.