These Terms and Conditions (the “Terms” or the “Agreement”)) are between Blues Inc. (“Blues”) and the purchaser of Blues Airnotes (“you”) (each a “Party” and together the “Parties”).
2. Airnotes. Airnotes are designed to sense certain location-specific environmental data, including temperature, movement, and device location (collectively, “Environmental Data”). Airnotes exchange this Environmental Data (as well as other information) with a Notehub, which is Blues’ cloud-based module that communicates with Airnotes and routes data bi-directionally between (i) an Airnote and (ii) the cloud-based application that manages and makes available Environmental Data for public use.
3. Provisioning of Airnotes and the Notehub. Each Airnote is includes embedded cellular service, provided by a carrier selected by Blues (this telecommunications carrier, with its roaming partners, are referred to as the “Carrier”). Your Airnote is configured with a 10 year data plan with 500MB of cellular data (the “Data Plan”). Your Airnote is similarly configured to exchange information with the Notehub. Your use of the Notehub is subject to the Notehub Subscription Agreement (identified above), and there is no charge for this subscription during the Term. When you activate your Airnote, you automatically activate the Data Plan and a Notehub Subscription Agreement, and no further Carrier or Notehub registration is required.
4. Environmental Data. You hereby agree that Environmental Data will be subject to the Creative Commons CC0 License (“No Rights Reserved”) (located at https://creativecommons.org/publicdomain/zero/1.0/legalcode). You acknowledge that Environmental Data from your Airnotes will be publicly accessible, and in the public domain, in accordance with the CC0 License.
5. No Compensation to You; Non-Profit Use. These Terms are designed to provide Environmental Data to citizen scientists and others for non-profit use. You agree that you will receive no compensation for your Environmental Data, or for other activities in which you engage under these Terms.
7. Security Measures. Blues Airnotes incorporate the device-level security features and the data-in-motion security protections set out in applicable datasheets. You are responsible for safeguarding your Airnotes from unauthorized users.
8. Acceptable Use Policy. You are prohibited from:
- circumventing technical restrictions or limitations included in the Airnotes;
- reverse engineering, decompiling, or disassembling an Airnote, except as expressly permitted by applicable law or by applicable open source software licenses;
- removing or defacing copyright notices or branding provided on Airnotes; or
- using Airnotes in a manner (a) that is incompatible with the efficient operation of the cellular network, (b) that interferes with the cellular services (or connectivity) of other customers, (c) that is inconsistent with published Carrier policies, practices, or other requirements, (d) that is prohibited by applicable law, including export and import laws; (e) that would violate the legal rights of others; (f) to attempt to gain or to gain unauthorized access to or disrupt a Notehub or any third party service, device, data, account or network; (g) to distribute spam or malware; or (h) in a manner that Blues in its discretion deems offensive or objectionable.
9. Fees; Shipping. You shall pay the fees specified in your order for Airnotes you have selected (“Fees”). Fees are due at time of purchase. All payments required by these Terms are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, you will be responsible for such charges. The Airnotes you purchase will be shipped in a timely manner from the date of your order, based on available stock.
10.1 Limited Warranty. Blues warrants that, for a period of thirty (30) days from the shipping date (the "Warranty Period"), an Airnote will be free from defects in materials and workmanship, and will perform substantially in conformance with the applicable Datasheet. If the Airnote does not comply with this warranty, Blues will accept return of the defective Airnote and either, at its election (i) replace such Airnote or (ii) refund to you the amount you paid for such Airnote. To obtain this remedy, you must, within the Warranty Period, return the defective Airnote to the entity from which you purchased it, with (a) a proof of purchase, (b) a description of the defect, and (c) your contact information. As an alternative to accepting such a return, Blues is entitled, in its discretion, to correct defects covered by the warranty set out in this Section via an over-the-air (“OTA”) process. You acknowledge and agree that OTA updates present risks, including the risk of intermittent disruptions and performance degradation, and consume data that will be counted toward use of your Data Plan.
10.2 Scope of Warranty. The warranty set out in Sections 10.1 and 1.4 (Limited Warranty; Exclusive Remedy) does not apply: (i) to damage caused by misuse of the Airnote, or by operating the Airnote in a manner contrary to the Datasheet; (ii) to Airnotes that have been modified without the written permission of Blues; or (iii) if the serial number or other identifier has been removed, defaced, or deleted from the Blues Airnotes
10.3 Remaining Warranty Period. A replacement Blues Airnote assumes the remaining term of the Warranty or fifteen (15) days from the date of replacement, whichever provides longer coverage for you. When an Airnote is replaced or a refund provided, the replacement item becomes your property and the replaced or refunded item becomes Blues' property.
10.4 Exclusive Remedy. Section 10.1 (Limited Warranty) provides the sole and exclusive remedy for Airnote defects or other non-conformities. This limited warranty gives you specific legal rights; you may have other rights which vary from state to state or country to country.
11. Disclaimers and Service Limitations.
11.1 Blues Disclaimer. Except as provided in Section 10.1 (Limited Warranty), Blues provides no warranties concerning Blues Airnotes, and excludes and disclaims all warranties, including implied warranties of merchantability, fitness for a particular purpose, and non-infringement. If your local law does not allow the exclusion of implied warranties, then such implied warranties last only during the Warranty Period and are limited as much as your local law allows. If your local law requires a longer limited warranty term, despite this Agreement, then that longer term will apply, but you can recover only the remedies set out in Section 10.1 (Limited Warranty). BLUES PROVIDES NO ASSURANCE (i) THAT BLUES AIRNOTES WILL BE ERROR-FREE; (ii) THAT BLUES AIRNOTES WILL PROVIDE UNINTERRUPTED SERVICE; (iii) THAT ANY DEFECTS WILL BE CORRECTED; OR (iv) THAT YOUR USE OR YOUR USERS’ USE OF BLUES AIRNOTES WILL PROVIDE SPECIFIC RESULTS OR PERFORMANCE. THERE IS NO ASSURANCE THAT DATA YOU OR YOUR USERS DOWNLOAD OR UPLOAD USING BLUES AIRNOTES WILL BE FREE OF VIRUSES OR DESTRUCTIVE FEATURES.
11.1 No Liability of Carrier. YOU UNDERSTAND AND AGREE:
- THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WITH THE CARRIER AND YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN BLUES AND THE CARRIER;
- THAT THE CARRIER HAS NO LIABILITY OF ANY KIND TO YOU OR YOUR USERS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE,
- THAT DATA TRANSMISSIONS AND MESSAGES MAY BE DELAYED, DELETED OR NOT DELIVERED;
- THAT THE CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE CELLULAR SERVICES;
- THAT THE CELLULAR SERVICE EMBEDDED IN AN AIRNOTE IS MADE AVAILABLE ONLY WITHIN THE OPERATING RANGE OF THE CARRIER’S NETWORKS, AND THAT CELLULAR SERVICE MAY BE TEMPORARILY REFUSED, INTERRUPTED, OR LIMITED BECAUSE OF: FACILITIES’ LIMITATIONS, TRANSMISSION LIMITATIONS CAUSED BY ATMOSPHERIC, TERRAIN, OTHER NATURAL OR ARTIFICIAL CONDITIONS ADVERSELY AFFECTING TRANSMISSION, WEAK BATTERIES, SYSTEM OVERCAPACITY, MOVEMENT OUTSIDE A SERVICE AREA OR GAPS IN COVERAGE IN A SERVICE AREA AND OTHER CAUSES REASONABLY OUTSIDE OF THE CARRIER’S CONTROL SUCH AS, BUT NOT LIMITED TO, INTENTIONAL OR NEGLIGENT ACTS OF THIRD PARTIES THAT DAMAGE OR IMPAIR THE NETWORK OR DISRUPT SERVICE; OR EQUIPMENT MODIFICATIONS, UPGRADES, RELOCATIONS, REPAIRS, AND OTHER SIMILAR ACTIVITIES NECESSARY FOR THE PROPER OR IMPROVED OPERATION OF SERVICE;
- THAT NO WARRANTIES OR REPRESENTATIONS ARE MADE AS TO THE AVAILABILITY OR QUALITY OF ROAMING SERVICE PROVIDED ON BEHALF OF CARRIER;
- THAT BLUES AND THE CARRIER WILL NOT BE LIABLE IN ANY CAPACITY FOR ANY ERRORS, OUTAGES, OR FAILURES OF CELLULAR NETWORKS;
- THAT COUNTRIES INCLUDED IN THE GLOBAL TERRITORY AND CARRIER PARTNERS MAY CHANGE PERIODICALLY TO REFLECT CHANGES TO THE CARRIER’S ROAMING AGREEMENTS WITH CARRIER PARTNERS; AND
- THAT THE CELL NETWORK HAS MANY COMPLEX ELEMENTS AND IS NOT GUARANTEED AGAINST EAVESDROPPERS, HACKERS, DENIAL OF SERVICE ATTACKS, VIRUSES, OR INTERCEPTORS.
12. Indemnification Obligations. You agree to indemnify, defend, and hold Blues (and Blues’ manufacturers, the Carrier, Carrier Partners, its and their affiliates, and its and their respective agents, distributors, and customers) harmless from and against any demand, suit, claim, damage, liability, cost, and expense (including reasonable attorneys' and expert’s fees) asserted or sought by a third party relating to your breach of these Terms or your negligence or willful misconduct.
13. Limit of Liability. In no event will Blues be liable for any indirect, incidental, special, punitive or consequential damages, or damages for loss of profits, business, goodwill, revenue, or data, incurred by you, whether in an action in contract or tort, even if Blues has been advised of the possibility of such damages and even if a remedy set forth in these Terms is found to have failed of its essential purpose. In no event will Blues’ liability for damages in connection with or related to these Terms (whether in an action in contract, tort or otherwise) exceed an amount equal to the total cost of the Airnotes you purchased from Blues during the twelve (12) month period prior to the event giving rise to your claim.
14. Term. This Agreement becomes effective as of the date Blues accepts your Airnotes order and, unless earlier terminated in accordance with Section 15 (Termination), shall continue until expiration of the Data Plan (the “Term”).
15. Termination. You may terminate these Terms for convenience by ceasing to use the Airnote. Blues shall have the right to terminate these Terms or disable access to the cell network and/or the Notehub (i) without notice if you fail to comply with these Terms or the Notehub Subscription Agreement; (ii) on reasonable notice if the Carrier reduces or terminates applicable cellular networks; (iii) if an order, direction, ruling or guidance from a regulator, or contractual or other terms relating to a Carrier, adversely and materially affect the Carrier’s ability to provide such Embedded Cellular Service; or (ii) if a network is not available to the Carrier due to material technical reasons or other applicable causes.
16. Intellectual Property. Subject to the terms and conditions of this Agreement, Blues hereby grants to you, under its intellectual property rights and during the Term, a non-exclusive, paid-up license to use the Airnotes for their intended purposes, and to access the Notehub for purposes of managing your Airnotes and their Environmental Data. This Agreement is not a sale and does not convey to you any rights of ownership in or related to intellectual property embodied in Airnotes, the Notehub, or Blues documentation.
17.1 Feedback. Suggestions, enhancement requests, recommendations, or other feedback you provide to Blues (collectively, “Feedback”) shall be deemed to non-confidential, and Blues will be free to copy, modify, use, and commercialize Feedback on an unrestricted basis, without compensation to you.
17.2 Governing Law; Exclusive Jurisdiction. This Agreement shall be governed by the laws of the State of New York, USA regardless of conflict of laws principles. Exclusive jurisdiction and venue for actions related to this Agreement (other than those governed by Section 17.3 (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.
17.3 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.
17.4 Government End Users. The software contained in Blues Airnotes, and the Notehub Source Code 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 such software (or associated documentation and technical data) will be governed solely by the terms of this Agreement.
17.5 Notices. All notices under this Agreement shall be in writing, and shall be sufficiently given if delivered to the addressees in person, by courier or similar receipted delivery, by facsimile, by email delivery or, if mailed, postage prepaid, by certified mail, return receipt requested to (i) you at the contact address or email address set forth on the order or (ii) Blues Inc., at 50 Harbor Street, Manchester, Massachusetts, USA 01944, or to such other address as either of them, by notice to the other, may designate from time to time.
17.6 General. The Agreements together constitute the Parties’ entire agreement relating to the Airnotes. Neither party shall have any authority to assume any obligation for the other party, or to commit the other party in any way. 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. 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. 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. If any provision of this Agreement is deemed to be invalid or unenforceable, the remaining provisions of this Agreement shall be valid and binding and of like effect as though such provision were not included. Blues has no (and assumes no) obligation to monitor or police your compliance with, or performance under, this Agreement.
17.7 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.