Notehub Subscription Agreement
Last update: November 20, 2020
1. Defined Terms:To assist in your review, we have compiled, in Schedule A(Definitions), the defined terms used in this Agreement.
2. The Services:Blues offers a range of services via its Notehub (the “Services”), and the Services are distinguished by certain variables, all as described in relevant Datasheets concerning the service plan at issue (each a “Service Plan”).
- Log Retention: Blues may offer Service Plans that retain logs concerning the Subscriber’s activities with respect to the Services, for specified periods of time.
- Project Team: Blues may offer Service Plans that permit a subscriber to choose pricing based on the size and nature of the Project Team, the number of Events, and other metrics.
- Dedicated Instance: Under its standard offering, Blues hosts subscribers’ Projects in a multi-tenant cloud infrastructure. Certain Service Plans, however, allow the Subscriber to obtain hosting via an instance of the Notehub that is dedicated to the Subscriber.
Nature of Support:
Service Plans distinguish between the nature of the support that Blues will provide the Subscriber.
- Community Support: The Notehub is designed to create a user community, through which users will share solutions with respect to the development and deployment of Notecard-Enabled IoT Solutions (the “Community”). Certain Service Plans offer support solely via the Notecard-Notehub Community.
- Enhanced Support: Certain Service Plans offer targeted support in addition to support via the Notecard-Notehub Community (collectively, “Enhanced Support”). Section 4 (Enhanced Support) sets out the elements of Blues’ Enhanced Support offerings.
- OTA Updates: In its discretion, Blues may provide maintenance for select Blues Hardware via an OTA process. You acknowledge and agree (and will contractually require your Users to acknowledge and agree) that OTA firmware updates (i) present risks, including the risk of intermittent disruptions and performance degradation, and (ii) consume data and may be counted toward use of the Carrier’s data plan.
- Notehub APIs: Blues has developed an API to the Notehub, designed to permit development of third party services and solutions that interoperate with the Notehub (the “Notehub API”). Certain Service Plans provide subscribers with access to the Notehub API. Where you subscribe to a Service Plan that so provides, Blues grants to you, under its Intellectual Property Rights and during the Term, a non-exclusive, non-sublicenseable, non-transferable, license to access, copy, and use the Notehub API for purpose of developing such services and solutions.
- Outbound Data: The Notehub is designed to provide information to Notecard-Enabled Devices. The provision of such information is on a “best efforts” basis, and depends, in part, on the Carrier’s cell service. Limitations on such Carrier service are set out in the Blues Hardware Terms.
3. Provision of Services; Subscriber Responsibilities:
- Subscriber Systems: This Agreement governs the Services the Subscriber has selected for its Notecard-Enabled IoT Solution. The Subscriber must obtain, at its expense, all other elements needed for its Notecard-Enabled IoT Solution, including Notecards, other Blues Hardware (as necessary), and IT infrastructure.
- Protecting Passwords: The Subscriber shall maintain its username(s) and password(s) associated with the Notehub in confidence, and refrain from disclosing this information to unauthorized persons. Blues will provide persons with the Subscriber’s access credentials with all of the rights and privileges that it provides to the Subscriber, and will hold the Subscriber responsible for the activities of a person using the Subscriber’s access credentials.
4. Enhanced Support:The following sets out the elements of Enhanced Support. Your Service Plan will provide the specific elements of such Enhanced Support to which you are entitled.
- Support Services: Blues will use commercially reasonable efforts to provide the Subscriber with technical support for the Service, and the technical support for its Project-related development and deployment efforts, as set out in the applicable Service Plan. Such Enhanced Support shall include, where specified in the Service Plan, (i) private chat communications during Service Business Days, subject to applicable response time metrics, and/or (ii) Blues personnel identified to the Subscriber’s specific account.
- Maintenance Services; Availability: Blues shall, using commercially reasonable efforts and during Service Business Days (unless otherwise provided in the Service Plan), provide the response times specified in the Service Plan at issue. Blues will similarly, if so provided in the Service Plan, use commercially reasonable efforts to: (i) correct material errors reported by the Subscriber in a timely manner, commensurate with the severity of the error; and (ii) make the Notehub available to the Subscriber without material interruption, subject to reasonable downtime for maintenance and error corrections.
- Additional Support and Training: Blues shall be available to offer reasonable additional support and training under separate, mutually agreeable terms and conditions.
5. Blues Hardware Terms and Conditions:You acknowledge that the Services and the Notehub are designed to be used solely in connection with Blues Hardware and Notecard-Enabled IoT Solutions. Your use of Blues Hardware (including Notecards) is subject to the Blues Hardware Terms.
6. Grant of Rights:
- Subscription License to Blues Notehub: Subject to the terms and conditions of this Agreement, Blues hereby grants the Subscriber, under Blues’ Intellectual Property Rights and during the Term, a nonexclusive, non-sublicenseable, non-transferable subscription license to access and use the Services identified on the Order, solely for purposes of developing, deploying, and otherwise using Notecard-Enabled IoT Solutions. The Subscriber shall be limited to cloud-based access to an instance of the Notehub software that resides in object code form on servers controlled by Blues; (ii) the access shall be via a browser approved by Blues; and (iii) the Services shall in all respects be the then-current version of the Services generally made available by Blues to its subscribers.
- License to Notehub Tools: Subject to the terms and conditions of this Agreement, Blues hereby grants the Subscriber, under Blues’ Intellectual Property Rights and during the Term, a nonexclusive, non-sublicenseable, non-transferable license use, copy, and modify the Notehub Tools identified on the Order, solely for purposes of developing, deploying, and otherwise using Notecard-Enabled IoT Solutions. To the extent a Notehub Tool consists of software code subject to an open source license (as specified at https://opensource.org/licenses ), such software shall be subject to its applicable open source software license, and shall not be subject to this Section 6.2 (License to Notehub Tools).
- Your Use of Blues Analytics; Restrictions: Blues shall provide the Subscriber with the Blues Analytics specified in the Subscriber’s Service Plan. To the extent that Blues holds Intellectual Property Rights in such Blues Analytics, Blues hereby grants to the Subscriber, under such Blues’ Intellectual Property Rights and during and after the Term, a nonexclusive, sublicenseable, transferable license to copy, modify, distribute, and otherwise use and commercialize such Blues Analytics for all purposes; provided, however, that Subscriber agrees to use geolocation data provided by the Service that is correlated with cellular towers or Wi-Fi access points exclusively for the purpose of determining the location of Notecard-Enabled Devices, and for no other purpose.
- Rights in User Documentation: Blues hereby grants to the Subscriber, during the Term and under its Intellectual Property Rights, a nonexclusive license to access and use (but not modify), the User Documentation (where provided), solely in connection with Subscriber’s use of the Notehub.
- Limitations on Subscriber Use: By way of clarifying example as to conduct that is not permitted under the above licenses, the Subscriber shall not: (i) use the Notehub to act as a service bureau or otherwise permit unauthorized third parties access the Subscriber’s Notehub account; (ii) seek to modify, decompile, disassemble, or reverse engineer the Notehub (or any of its components); or (iii) use the Notehub for purposes of building a competitive product or service.
- Ownership: Except as expressly provided in this Section 6 (Grant of Rights) and Section 7 (Branding), as between the Parties, Blues is and shall remain sole owner of all right, title and interest in and to: (i) the Blues Notehub and its components, including all Intellectual Property Rights embodied therein; (ii) the User Documentation; (iii) other Blues Confidential Information; (iv) the Blues Marks; and (v) any improvements or modifications thereto. Similarly, except as expressly provided in this Section 6 (Grant of Rights) and Section 7 (Branding), as between the Parties, the Subscriber is and shall remain sole owner of all right, title and interest in and to: (i) User Data, (ii) Subscriber Confidential Information; and (iii) the Subscriber Marks.
Content You Submit:
- Volunteered Feedback: The term “Feedback” means suggestions, ideas, feature requests, and recommendations by Blues customers relating to the Notehub or other elements of Blues’ business. The term “Volunteered Feedback” means Feedback that embodies Intellectual Property Rights owned or controlled by a customer. Blues neither seeks nor requests Volunteered Feedback, and this Agreement places no obligations on the Subscriber to provide Blues with Volunteered Feedback. To the extent the Subscriber chooses to provide Volunteered Feedback to Blues, (i) the Subscriber hereby transfers to Blues the Subscriber’s rights in Volunteered Feedback (including Intellectual Property Rights) and (ii) Blues hereby grants back to the Subscriber a nonexclusive, perpetual, irrevocable, paid-up license to copy, modify, distribute, and otherwise exploit such Volunteered Feedback.
- No Implied Rights: There shall be no licenses or rights implied under this Agreement or based on any course of conduct.
- Use of Subscriber Marks: Subscriber grants Blues a limited non-exclusive, non-transferable permission to display the Subscriber Marks on its website and its marketing materials to indicate that Subscriber is or intends to be a user of the Services. Blues acknowledges that, as between the Parties, Subscriber is the sole and exclusive owner the Subscriber Marks and all goodwill associated with the Subscriber Marks, and that any goodwill created by this Agreement under the Subscriber Marks shall inure solely and exclusively to Subscriber.
- Use of Blues Marks: As of the Effective Date, Subscriber shall post on its website, in a commercially reasonable location and format, the trademark and/or logo designated by Blues for such purpose (the “Blues Marks”), and shall indicate that Subscriber is a user, or intends to become a user, of the Services. Blues grants Subscriber a limited non-exclusive, non-transferable permission to display the Blues Marks on its website and in its marketing materials for such purposes. Subscriber acknowledges that, as between the Parties, Blues is the sole and exclusive owner the Blues Marks and all goodwill associated with the Blues Marks, and that any goodwill created by this Agreement under the Blues Marks shall inure solely and exclusively to Blues.
- Private Label Branding: If the Subscriber requests to private label Blues’ Services to its users, and if Blues agrees, in its sole discretion, to private-label Services set out in this Agreement under one or more of the Subscriber’s trademarks, service marks, or logos (the “Subscriber Marks”), then the requirements set out in Section 7.1 (Use of Subscriber Marks) shall apply to Blues’ use of the Subscriber Marks in relation to such private-label branding.
- The Quality Standard: In order to preserve the inherent value of the Blues Marks and Subscriber Marks, respectively, each Party shall maintain a level of the quality of products and services offered at least as high as immediately prior to the Effective Date (the “Quality Standard”).
- Cessation of Permissions: Subscriber shall be entitled to end Blues’ use of the Subscriber Marks and Blues shall be entitled to end Subscriber’s use of Blues’ Marks on reasonable cause (including failure to maintain the Quality Standard), after notice and a reasonable wind-down period.
- Press Release: Upon mutual agreement, the Parties shall prepare a joint press release on or before the Effective Date, and both Parties shall be free to use such press release (and quotations and other content from this press release) as it sees fit in connection with their marketing efforts.
8. Fee and Payment:
- Services Fees: In consideration for the Services, the Subscriber shall pay to Blues the fees set out in the Order for the Service at issue (and other fees and charges, as mutually agreed) (collectively, “Service Fees”).
- Payment Terms: The Subscriber shall pay invoices for Service Fees in full (without deduction, set-off or counterclaim) within the time set out in the Order. Blues shall be entitled to suspend your access to the Notehub, on thirty (30) days’ notice, if you are delinquent in your payments. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less.
- Taxes: All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and the Subscriber agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Blues’ net income. You shall properly withhold any mandatory withholding tax. The Parties agree to comply with any formal requirements for the purpose of obtaining the benefit of any double taxation convention or treaty that may exist from time to time between the Parties' jurisdictions. To the extent that withholding tax is required by law, you shall pay to Blues the Hardware Fees due under this Agreement minus any withholding tax and shall timely provide Blues with such certificates or other evidence of such withholding.
- Usage Information: Blues shall provide the Subscriber with appropriate usage information (and other applicable information) concerning invoiced Service Fees.
9. Confidentiality:This Section governs the protections for Confidential Information that one Party (the “Disclosing Party”) provides to the other (the “Receiving Party”) under this Agreement.
- Scope: Subject to Section 9.2 (Exceptions), the term “Confidential Information” means information the Disclosing Party provides to, or that the Receiving Party accesses from the Disclosing Party that meets one of the following two criteria: the Information either (i) is identified by a “CONFIDENTIAL” legend or similar legend of the Disclosing Party, or (ii) is obtained under circumstances such that the Receiving Party knew or reasonably should have known that the Information should be treated as confidential to the Disclosing Party. Subject to Section 9.2 (Exceptions), “Confidential Information” includes inventions, specifications, drawings, models, samples, reports, plans, financial information, work-in-progress, forecasts, computer programs or documentation, and all other technical, financial, intellectual or business information or data.
- Exceptions: The Parties’ obligations of confidentiality and non-use shall not apply where the Receiving Party shows that the information (that would otherwise qualify as Confidential Information): (i) is or after the Effective Date becomes publicly available or part of the public domain through no wrongful act, fault or negligence on the part of the Receiving Party; (ii) was in the possession of the Receiving Party at the time of the Receiving Party’s receipt of the Confidential Information, and was not otherwise subject to an existing agreement of confidentiality; (iii) is received from a Third Party without restriction and without breach of any obligation of confidentiality to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reliance on the Disclosing Party’s Confidential Information.
- Non-Use and Non-Disclosure: The Receiving Party shall not access, use or disclose any of the Disclosing Party’s Confidential Information except as expressly permitted under this Agreement. The Receiving Party shall protect the Disclosing Party’s Confidential Information with the same level of care it uses for its own Confidential Information of like nature; provided, however, that the Receiving Party shall at a minimum use reasonable care to protect the Disclosing Party’s Confidential Information. A Receiving Party shall be entitled to disclose the Disclosing Party’s Confidential Information to its employees and the employees of its affiliates and, in the case of Blues, to service providers engaged by Blues for purposes of providing Services (collectively, “Authorized Individuals”); provided that each such Authorized Individual (a) has a need to know the Confidential Information for the purposes of this Agreement and (b) has been apprised of and agrees to the restrictions in this Agreement. The Subscriber shall not provide third parties with access to Blues Confidential Information. Each Party shall be responsible for any breach of confidentiality by its employees and (where applicable) its service providers.
- Compelled Disclosure: Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, however, that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose and (b) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in protecting against or minimizing such disclosure, or in obtaining a protective order.
- General Skills and Knowledge: For the avoidance of doubt, it is agreed and understood that the provisions of this Section 9 (Confidentiality) do not apply to Residual Knowledge (if any) of Blues personnel or to the use and improvement of other general skills and knowledge such personnel. The term “Residual Knowledge” means Confidential Information in non-tangible form that is retained in the unaided memory of persons who have had rightful access to such information.
11. Acceptable Use Policy:The Subscriber shall not use the Notehub (i) in a way prohibited by applicable law; (ii) to violate the legal rights of others; (iii) to attempt to gain or to gain unauthorized access to or disrupt any third party service, device, data, account or network; (iv) to distribute spam or malware; (v) in a manner that Blues in its discretion deems offensive or objectionable, or (vi) in a way that could materially harm the functionality or performance of the Notehub.
12. Representations and Warranties:
- Mutual Representations and Warranties: Each Party represents and warrants: (i) that it is duly organized, validly existing and in good standing, and is qualified and/or licensed to do business in all jurisdictions to the extent necessary to carry out its obligations under this Agreement; (ii) its execution, delivery and performance of this Agreement will not violate or constitute a default under any agreement of such Party; (iii) it has the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform its obligations under this Agreement; and (iv) that it will avoid deceptive, misleading, illegal or unethical practices that may be detrimental to the other Party (and, in the case of Blues, detrimental to its service providers).
- Subscriber Representations and Warranties: The Subscriber represents and warrants that it owns all right, title and interest in and to User Data and the Notecard-Enabled IoT Solutions it provides, or that it has otherwise secured rights in User Data and Notecard-Enabled IoT Solutions necessary to permit the Parties to fulfill their obligations under this Agreement.
- Blues Representations and Warranties: Blues represents and warrants to the Subscriber that the Services will be performed in accordance with accepted industry practice.
- Disclaimers: EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 12 (Representations and Warranties), THE NOTEHUB, USER DOCUMENTATION, AND ALL BLUES PERFORMANCE OBLIGATIONS AND ALL PERFORMANCE OBLIGATIONS OF BLUES’ SERVICE PROVIDERS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. BLUES DOES NOT WARRANT (A) THAT THE NOTEHUB, USER DOCUMENTATION, THE NOTEHUB API, OR THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR RESULT IN ANY DESIRED OUTCOME, (B) THAT THE NOTEHUB’S OPERATION OR THE DELIVERY OF SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, BLUES HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (OTHER THAN THOSE SET OUT IN THIS SECTION 12 (Representations and Warranties), WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE NOTEHUB, THE NOTEHUB API, THE SERVICES, AND USER DOCUMENTATION, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
- Indemnification by the Subscriber: The Subscriber agrees to defend Blues from and against any demand, suit, action or other claim by a third party (including a user of a Subscriber Notecard-Enabled IoT Solution) that is related to or arises from (i) Subscriber Data, (ii) the Subscriber’s Notecard-Enabled IoT Solutions, or (iii) the Subscriber’s use of the Services in a manner not expressly permitted in the applicable Datasheet (each a “Subscriber-Related Claim”), and to indemnify Blues for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of any such the Subscriber-Related Claim.
- Indemnification by Blues: Blues agrees to defend the Subscriber against any demand, suit, action or other claim by a third party that the Service misappropriates or infringes the Intellectual Property Rights of such third party (each a “Blues-Related Claim”), and to indemnify the Subscriber for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of any such Blues-Related Claim. Blues shall have no indemnity obligations to you if the Notehub (or Blues Hardware) standing alone and not in combination with other elements of an IoT Solution, does not infringe such Third Party Intellectual Property Rights. Blues shall be entitled, at its option, to modify the Services to resolve Third Party infringement claims, provided such modifications do not materially degrade the features or performance of such Services. If Blues is unable at reasonable effort or expense to make such modifications, then Blues shall be entitled to terminate this Agreement without further liability to the Subscriber, and the effect of such termination shall be as set out in Section 16.6 (Effect of Termination or Expiration). The foregoing states the entire liability of Blues, and the Subscriber’s exclusive remedy, with respect to actual or alleged violation of third party Intellectual Property Rights by the Notehub or other performance by or deliverable from Blues under this Agreement.
- Conditions: The indemnifying Party’s obligations hereunder are conditioned on (i) the Party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith (at the indemnifying Party’s expense) and (ii) the indemnifying Party having sole control and authority to defend, settle or compromise such claim. The indemnified Party may participate in the defense at its sole cost and expense. The indemnifying Party will not enter into any settlement that adversely affects the indemnified Party’s rights or interest without its prior written approval, not to be unreasonably withheld. The indemnifying Party shall not be responsible for any settlement it does not approve in writing.
14. Limitations on Remedies:
- Consequential Damages Waiver: IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS; LOSS OF DATA; LOSS OR INTERRUPTION OF USE; COST TO PROCURE SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES; OR OTHER ECONOMIC LOSS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation of Liability: EXCEPT FOR A CLAIM FOR SUBSCRIBER’S BREACH OF SECTION 9 (Confidentiality) OR FOR SUBSCRIBER’S OBLIGATIONS UNDER SECTION 13.1 (Indemnification by Subscriber), IN NO EVENT WILL THE LIABILITY OF A PARTY, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT OF PAYMENTS PAID OR DUE TO BLUES UNDER THIS AGREEMENT. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
15. Term:This Agreement shall take effect on the Effective Date and, unless terminated earlier in accordance with Section 16 (Termination), shall continue in force for the duration of the Service Plan at issue (the “Term”).
- Termination by You for Convenience: You may terminate this Agreement for convenience as to specific Service Plans by ceasing to use or offer Notecard-Enabled IoT Solutions that rely on the Notehub. If you are under a Service Plan that requires the payment of Service Fees, you must give us ten (10) days’ notice of your intent to terminate for convenience (the “Notice Period”). We will cease invoicing you for Service Fees upon expiration of this Notice Period. You are entitle to terminate a Service Plan under this Section 16.1 (Termination for Convenience) and switch to an alternative available Service Plan, by following our standard procedures for signing up for such Service Plan.
- Termination of Free Accounts: Blues is entitled to terminate for convenience, on thirty (30) days’ notice, any Service Plan that does not require the payment of Service Fees to Blues.
- Inactive Accounts: If your account is inactive for a period of twelve (12) months or more, in our discretion we will terminate your account, on thirty (30) days’ notice.
- Termination for Cause; Suspension: Either Party shall be entitled to terminate this Agreement for material breach by the other, upon providing notice to the other Party (a “Notice of Breach”) and a thirty (30) day period to cure, commencing on such Party’s receipt of this notice (the “Cure Period”). In the event the Party in breach does not effect a cure within the Cure Period, this Agreement shall be deemed terminated as of the date of the Notice of Breach. By way of example and not limitation, Blues shall be entitled to suspend or terminate the Subscriber’s access to the Notehub for a failure to pay Service Fees when due or for non-compliance with Section 11 (Acceptable Use Policy).
- Insolvency: Either Party shall be entitled to terminate this Agreement immediately upon written notice, if the other Party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other Party’s property, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within 90 days, or the other Party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
Effect of Termination or Expiration:
- Cessation of Services; Certain Licenses: Upon termination or expiration of this Agreement, Blues shall cease providing Services to the Subscriber, and all of the Subscriber’s licenses (if any are in existence) shall end.
- Destruction of Confidential Information: Unless otherwise expressly permitted under this Agreement, promptly after termination or expiration of this Agreement, each Party shall (i) either (a) return the other Party’s Confidential Information, or (b) permanently destroy such Confidential Information, and erase it from storage media; and (ii) destroy all information, records and materials developed from the other Party’s Confidential Information (“Derived Information”). Upon request, a Party shall certify in writing to the destruction of such Confidential Information and Derived Information.
- No Effect on Prior Obligations: Expiration or termination of this Agreement shall not affect any obligation which accrued prior to such expiration or termination, and the Subscriber shall promptly remit to Blues all unpaid Fees according to the terms of this Agreement.
- Survival: The following shall survive the termination or expiration of this Agreement for whatever reason or cause: Section 6.3 (Your Use of Blues Analytics); Section 6.4 (Our Use of Metadata and Network Information); Section 6.5 (Analytics); Section 6.8 (Ownership); Section 6.9.2 (Volunteered Feedback); Section 9 (Confidentiality); Section 13 (Indemnification); Section 14 (Limitations on Remedies); Section 16.7 (Survival); Section 17 (General Provisions) and Schedule A (Definitions).
17. General Provisions:
- Entire Agreement: This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the Parties regarding the subject matter of this Agreement (and all past dealing or industry custom). No modification to this Agreement will be effective unless in writing and signed by the Party against which enforcement is sought.
- Amendments; Waivers: This Agreement may not be modified, amended, or waived, in whole or in part, except by a written instrument signed by each of the parties hereto. Except as expressly set forth herein, any failure of a party to take action in response to any breach of this Agreement by the other party shall not constitute a waiver of such breach or of performance required by the other party; and no waiver of any provision of this Agreement shall constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressly provided therein.
- Customer Identification: While you remain a customer, you permit Blues to reasonably use your company name and logo to identify you as a Blues customer.
- Unenforceability: If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Governing Law; Exclusive Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of the State of New York , USA, without regard to its conflicts of law provisions. Exclusive jurisdiction and venue for actions related to this Agreement (other than those governed by Section 17.12 (Arbitration) will be the state or federal courts located in New York City, New York, USA. Both Parties consent to the jurisdiction of such courts and the laying of venue in such judicial district with respect to any such action.
- Force Majeure: Neither Party shall be liable for a failure or delay in the performance of its obligations under this Agreement due to strikes (except with respect to its own labor force), shortages, riots, insurrection, acts of God, war, governmental action, power or connectivity interruptions, or other causes beyond the reasonable control of such Party.
- Notices: All notices under this Agreement will be in writing, in English and delivered to the Parties at their respective addresses set out in the Order. Notices will be deemed to have been duly given (i) when received, if personally delivered; (ii) when receipt is electronically confirmed, if transmitted by facsimile or electronic mail; (iii) the day after being sent, if sent for next day delivery by recognized overnight delivery service; or (iv) upon receipt, if sent by certified or registered mail, return receipt requested.
- Order of Precedence: The Order and schedules attached hereto (collectively, the “Addenda”) shall control over the Terms and Conditions; provided, however, that the Addenda will not control over a legal provision unless it identifies the term by section.
- Publicity: The Subscriber hereby consents to the inclusion of its name and logos in customer lists that may be published as part of Blues’ marketing and promotional efforts.
- Assignment: This Agreement may not be assigned, in whole or in part, by either Party without the other Party’s written consent; provided, however, such consent is not needed (i) for Blues to subcontract performance of all or any part of the Service, or (ii) for either Party to this Agreement to transfer or assign to any successor all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the Parties hereto.
- Independent Contractors: The Parties shall be independent contractors under this Agreement, and nothing herein will constitute either Party as the employer, employee, agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
- Arbitration: Any dispute, controversy, or claim arising out of or in connection with or relating to this Agreement or any breach or alleged breach thereof shall be submitted to a single arbitrator and settled exclusively by confidential binding arbitration pursuant to the Commercial Rules then in effect of the American Arbitration Association. The arbitration proceeding shall be held in New York City, New York USA or any other location mutually agreed upon by the Parties. The prevailing party (as determined by the arbitrator) shall be entitled to its reasonable attorney’s fees, costs and expenses related to the arbitration. Judgment upon the award may be entered in any court of competent jurisdiction. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
- Government End Users: The Notehub and its associated software are “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Notehub or such documentation by the United States Government will be governed solely by the terms of this Agreement.
- No Third Party Beneficiaries: Blues is obligated only to you under this Agreement, and not to your Users. Such Users are not to be deemed third party beneficiaries of this Agreement for any purpose whatsoever.
- Translations: This Agreement may be translated into languages other than English (collectively, “Translations”). Any communications sent by us to you shall be sent in English. Dispute resolution procedures arising out of either this Agreement or the Translations shall be conducted in English, and the English version of this Agreement shall control over the Translations.
Schedule A (Definitions)
"Definitions" Capitalized terms have the meanings set out below. Other capitalized terms are defined in the context in which they are used:
"Agreement" means (i) these Terms and Conditions; (ii) the Order; and (iii) any amendments thereto.
"Blues Analytics" has the meaning set out in Section 6.5 (Analytics).
"Blues Hardware Terms" means the terms and conditions available at: Blues Hardware Terms
"Carrier" means the provider of the Cellular Services in the U.S. Territory, as may be specified in the applicable Datasheet.
"Carrier Partner" means a mobile network operator with which the Carrier has a contractual arrangement for use of a Network to provide Cellular Services, including international roaming Cellular Services within the Global Territory.
"Cell Network" means the integrated mobile switching facilities, servers, cell sites, connection, billing systems, activation systems and related facilities over which the Carrier or its Carrier Partners provide Cellular Service on spectrum owned or controlled by such Carrier or Carrier Partner.
"Cellular Services" means communications services provided over a cellular network, including applicable data services.
"Community" has the meaning set out in Section 2.4.1 (Community Support).
"Confidential Information" has the meaning set out in Section 9.1 (Scope).
"Datasheet" means the datasheet, in effect as of the date of your Order, which applies to the Notehub Subscription listed on your Order. Datasheets are available at Datasheet
"Developer" means the individual(s) associated with your Project that have full access to your account, except to delete the account or change credit cards.
"Enhanced Support" has the meaning set out in Section 2.4.2 (Enhanced Support).
"Event" means either of the following two actions: (i) the routing of a Note via the Notehub, or (ii) the reading of data through Notehub APIs. Each such action constitutes a separate Event.
"Intellectual Property" or "Intellectual Property Rights" means, in any jurisdiction, rights under patent law, trademark law, and copyright law; rights in trade secrets and confidential information; rights in mask works; and other similar rights to exclude another from the use or enjoyment of an asset or process.
"IoT" means the Internet of Things.
"IoT Solution" means a product, service, or a combination of products and services, that are designed to perform IoT or IoT-related functions.
"Metadata" means information concerning the Notecard, independent of and without reference to the Notecard-Enabled Device with which it is associated, such as the Notecard’s state, configuration, operation, and/or location.
"Network" means, collectively, (i) the Cell Network and (ii) other networks (such as a WiFi network) or solutions that provide connectivity between a Notecard and a Notehub.
"Network Information" means information that (i) relates to use of the Network or Networks (as applicable); (ii) is provided by the Network Provider; or (iii) is derived from the Network.
"Network Provider" means the provider of the Network and associated Network services with respect to the Blues Hardware at issue. The term “Network Provider” includes the Carrier and Carrier Partners.
"Notes" means JSON data exchanged between a Notecard and a Notehub.
"Notecard" means the hardware module developed by Blues that provides or makes available (i) Embedded Cellular Service or other connectivity as specified in the applicable Datasheet; and (ii) additional functionality that Blues may include (such as integrated GPS functionality or an accelerometer for power-optimized location/motion awareness), all as described in the applicable Datasheet.
"Notecard-Enabled Device" means an IoT device that contains an embedded Notecard.
"Notecard-Enabled IoT Solution" means an IoT Solution that relies on one or more Notecard-Enabled Devices.
"Notehub" is the Blues’ cloud-based module that communicates with Notecards and routes data bi-directionally between (i) a Notecard-Enabled Device and (ii) the cloud-based application associated with that Notecard-Enabled Device. The term “Notehub” includes the software, IT infrastructure, business rules, methods, data, and technology used by Blues to provide the Services via the Notehub.
"Notehub API" has the meaning set out in Section 2.5 (Notehub API).
"Operator" means the individual(s) associated with your Project that hold read access and fleet management access to your account.
"Order" means an order for a subscription to the Blues Notehub that is linked to, or otherwise associated with these terms and conditions (such as a checkout form provided via Blues’ online shopping cart).
"OTA" means over-the-air, and refers to methods for distributing updates and configurations to mobile devices from a central location.
"Project" means the Notecard-Enabled IoT Solution (i) that you are developing via the Notehub or (ii) that you have in production use, and that is hosted on the Notehub.
"Project Administrator" means the individual(s) associated with your Project that hold Developer and Operator access, and that are responsible for credit card billing and payment to Blues on your account.
"Project Team" means the Users permitted under your Service Plan.
"Party" and "Parties" means you or Blues, or both you and Blues.
"Services" has the meaning set out in Section 2 (The Services).
"Service Business Day" means 9:00 am to 5:00 pm Eastern, Monday through Friday (other than U.S. Federal holidays).
"Service Fees" has the meaning set out in Section 8.1 (Service Fees).
"Service Plan" has the meaning set out in Section 2 (The Services).
"Subscriber" has the same meaning as the term “you.”
"Term" has the meaning set out in Section 15 (Term).
"Terms and Conditions" means these Subscription Agreement Terms and Conditions, non-inclusive of the Order.
"Third Party" means a person or entity other than (i) you or (ii) Blues (including any Blues affiliates).
"Users" means your (i) Project Administrators, (ii) Developers, and (iii) Operators.
"User Data" means all data, other than Metadata, collected or generated by, or transmitted to, a Notecard-Enabled Device, including (i) data generated or collected by the Notecard-Enabled Device’s internal or external sensors, and (ii) data transmitted from your applications to your Notecard-Enabled Devices.
"User Documentation" means user instructions, help information, service descriptions, system requirements information, and other similar materials that Blues may provide to the Subscriber for use with respect to the Services.
"You" or "you" means the person or entity that executes the Order.