Terms and Conditions
This following Terms and Conditions govern the Internet of Things (IOT) Services provided by BlueSurge Technologies Inc. to the Client with effect from the date of subscribing to the service.
1. Definition
a. Customer: Customer shall mean the end user of services
b. Customer Asset: Customer Asset shall mean any Asset of Customer, which is integrated for the purpose of capturing data for further analytics at the Service Platform, and may include building automation systems, meters, power generators, sensors or any other equipment and or software integrated using an IOT Gateway or any other mean.
c. Service Platform: A Cloud Software capable of analyzing data, initiating alerts and or work orders based on anomalies or threshold deviations, and visualizing data in the form of dashboards and reports, the Service Platform may be operated by BlueSurge and/or its partners.
d. Proposal: Proposal shall mean any solution proposal that may have been submitted by the BlueSurge or any subsequent Statement of Work, agreed with the Customer
e. Purchase Order: Purchase order issued by Customer and/or for the provision of Services
f. Warranty: Warranty with respect to hardware as stipulated in this Agreement.
g. Service: comprises capturing data from Customer Assets, carrying out data analytics at Service Platform, raising alerts and/or work orders for anomalies and visualization of data in the form or Dashboards and Reports.
h. Service Period; As stipulated in the Purchase Order and any subsequent renewals
i. Customer Data: Data captured from Customer’s Assets or otherwise provided by the Customer in electronic or hardcopy form.
2. Service Deliverables
a. The Service deliverables are detailed in the Proposal, attached hereto
3. Installation, Configuration and Commissioning
a. For the purpose of enabling Service Deliverable, BlueSurge shall undertake IOT Gateway installation at the Customer site, interconnection with Customer’s Asset, testing communication and data accuracy between the Gateway panel and the Customer Asset and between the Gateway Panel and the Cloud Service Platform. Upon completion of the Installation, Configuration and Commissioning phase, data shall be accurately and reliably flowing between the Customer Asset, Gateway and Service Platform at frequencies stipulated in the Proposal or the Statement of Work
b. BlueSurge shall assign professional services resources with required competence to undertake installation, configuration and commissioning
c.Customer shall ensure that all pre-requisites to installation, configuration and Commissioning as detailed in Proposal are accomplished prior to scheduling installation, configuration and commissioning. This includes, but not limited to, enabling required open communication protocols, availability of strong cellular signal strength, and availability of power, as detailed in the Proposal. Any delay in meeting pre-requisites could delay Service Deliverables
4. IOT Gateway Hardware
a. BlueSurge warrants that all IOT hardware equipment installed shall be free from defects in material and workmanship arising from manufacturing defects or normal usage for a period of one year from the date of installation.
b. For equipment installed by BlueSurge, if Customer provides written notice to BlueSurge for any such defect upon discovery or appearance of such defect, BlueSurge shall at its option, repair or replace the defective equipment during the Warranty period.
c. Customer shall ensure that BlueSurge equipment shall be installed and maintained in a conditioned space and shall adhere to storage and operation specifications. Equipment maintained outside the range of the storage and operation specifications will void BlueSurge’s Warranty.
d. BlueSurge warranties do not extend to any equipment which has been repaired by others, abused, altered, or misused or which has not been properly and reasonably maintained. These warranties are in lieu of all other warranties, expressed or implied, including, but not limited to, those of merchantability and fitness for a specific purpose.
5. The Service
a. The Service shall be substantially in accordance with the description provided in the Proposal.
b. The Service delivers a base set of dashboards, as detailed in the Proposal, custom dashboards can be created, if requested by the Customer’, with additional cost to the Customer
6. Grant of License
a. For the duration of the Services Period and subject to meeting payment obligations, and except as otherwise set forth in this Agreement, the Customer have the non-exclusive, non-assignable, royalty-free, worldwide limited right to access and use the Services that Customer has ordered, including anything developed by BlueSurge and delivered to the Customer as part of the Service, solely for the Customer’s internal business operations and subject to the terms of this Agreement and Purchase Order, and the Proposal.
b. The Customer does not acquire under this Agreement any right or license to use the Services, including any programs and services environment, in excess of the scope and/or duration of the Services stated in the Proposal. Upon the end of the Services ordered, Customer right to access to the Services shall be terminated.
c. To enable BlueSurge to provide The Customer with the Services, the Customer grant BlueSurge the right to Capture, use, process and transmit, Customer Data in accordance with this Agreement and the Proposal for the duration of the Services Period plus any additional post-termination period during which BlueSurge may provide the Customer with access to retrieve and export file of Customer Data
7. Term and Termination
a. The initial term of the Smart Building Management Service commences on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, shall continue in full force and effect for a period of one year (the “Initial Term”).
b. This term shall be automatically renewed at the end of the Initial Term or any Renewal Term, as the case may be, on the same terms and conditions as set forth herein, for successive periods of one (1) year(s) (in each case a “Renewal Term”), unless either party shall have provided written notice to the other party that it does not intend to renew this Agreement at least ninety (90) days prior to the expiration of the Initial Term, or any Renewal Term, as the case may be.
c. This Service may be terminated as follows: (i) by either Party immediately upon written notice to the other Party, upon the occurrence of an act of insolvency or bankruptcy affecting such other Party; (ii) by either Party if the other Party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days’ written notice of such breach; iii) by BlueSurge in case BlueSurge has not received due payments for the provision of Services or (iv) by BlueSurge any time and without cause, without penalty, charge or liability of any kind upon giving the at least Ninety (90) days’ prior written notice
8. Service Activation
On completion of Installation, configuration and commissioning and making Service Deliverable, BlueSurge shall notify Customer that Service has been activated, allowing Customer to test the Service for a period of 5 days. The Ready for Service (RFS) date shall be on completion of 5 days of the testing period.
9. Training
On completion of Service Activation, BlueSurge shall provide web-based user training to the Customer
10. Technical Support
BlueSurge shall provide technical support for the implementation and smooth delivery of the Service during working hours (09.00 AM to 17.00 PM, Eastern Time). Customer may request support by sending an email to a) assigned technical support or by sending email to CS@BlueSurge.com c) by calling BlueSurge Support number.
11. Service Levels
BlueSurge shall maintain the availability of the deliverables (specifically including Service Platform at a level of at least 99.9% of a calendar month excluding scheduled Maintenance Downtime during Scheduled Maintenance Windows (the “Service Level Agreement”). Service Availability EQUALS the number of minutes the Service Platform is available for the applicable calendar month DIVIDED BY the number of minutes in the applicable calendar month LESS the number of minutes for Maintenance Downtime during such month. BlueSurge shall not be responsible for non-availability of Services when it is caused by the Telecom network (such as the Internet or Mobile Broadband) or the failure of the Customer’s Assets & communication with IOT Gateway.
12. Confidentiality
Either Party shall not use Disclosing Party’s Confidential Information for any purpose other than to exercise or perform its rights or obligations under this Agreement or as otherwise required by law. Receiving Party shall not copy or otherwise reproduce Disclosing Party’s Confidential Information, or disclose, disseminate or otherwise communicate, in whole or in part, Disclosing Party’s Confidential Information to any third party, without the prior written consent of Disclosing Party. Receiving Party further agrees that it shall safeguard Disclosing Party’s Confidential Information from disclosure and, at a minimum, use effort commensurate with those Receiving Party employs for protecting the confidentiality of its own Confidential Information which it does not desire to disclose or disseminate, but in no event with less than reasonable care. Immediately upon the demand of Disclosing Party, Receiving Party shall return Disclosing Party’s Confidential Information (and any and all permitted copies thereof) to Disclosing Party.
13. Liability & Governing Law
a. BLUESURGE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, QUIET ENJOYMENT, TITLE AND NONINFRINGEMENT.
b. BLUESURGE SHALL HAVE NO LIABILITY TO Client FOR ANY DAMAGES OF ANY KIND, INCLUDING LIABILITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA OR INFORMATION, LOSS OF REVENUE OR ANTICIPATED PROFITS, OR LOST BUSINESS). THE EXCLUSION OF DAMAGES IN THIS SECTION IS INDEPENDENT OF THE AGREED SOLE REMEDY IN SECTION 13c AND SHALL APPLY EVEN IF THE AGREED SOLE REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON.
c. THE SOLE REMEDY OF CLIENT FOR ANY ASSERTED DEFECT, ERROR, OR OTHER SHORTCOMING IN THE SERVICE DELIVERABLE IS THAT CLIENT, DURING THE TERM, MAY REQUEST COMPLIMENTARY TECHNICAL SUPPORT FOR FIXING SUCH DEFECTS AND OTHER SHORTCOMINGS.
d. TO THE EXTENT PERMITTED BY LAW, BLUESURGE’S TOTAL CUMULATIVE LIABILIITY IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER THEORY OF TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED ONE YEAR’S FEES PAID OR PAYABLE TO SUPPLIER UNDER THIS AGREEMENT. THE FOREGOING LIMITATION SHALL NOT APPLY TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATION OR BREACH OF APPLICABLE LAW
e. THESE TERMS AND CONDITIONS SHALL BE GOVERNED BY THE LAWS OF THE PROVINCE OF ONTARIO, CANADA