These Terms and Conditions (the “Terms”) are between Blues Inc. (“Blues”) and the purchaser of Blues Hardware (“you”) specified in the Order (each a “ Party” and together the “Parties”). These Terms and the Order together constitute the Parties’ agreement with respect to such Blues Hardware (the “Agreement”).

Your use of Blues Hardware is subject to and conditioned on your acceptance of these Terms. By activating or using Blues Hardware (or by otherwise indicating your acceptance of these Terms), you are agreeing (i) that you have read and understand these Terms and the Order, (ii) that, if you are acting (or indicate you are acting) in a representative capacity, you have full authority to legally bind the person or entity on whose behalf you are acting, and (iii) that you, and such person or entity, will be bound by the terms and conditions set out below. DO NOT ACTIVATE OR USE BLUES HARDWARE UNTIL YOU HAVE READ THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE BLUES HARDWARE .

1. Defined Terms. Capitalized terms have the meanings set out in Schedule A (Definitions).

2. Notecard-Enabled Devices. Notecards must be integrated with other components in order to produce a connected IoT device. This Section 2 (Notecard-Enabled Devices) provides you with rights to create such integrations.

2.1. License to Notecard API. Subject to the terms and conditions of this Agreement, Blues hereby grants to you, under its Intellectual Property Rights, a non-exclusive, paid-up, non-transferable, non-sublicensable license to copy and use the Notecard API for purposes of (i) achieving interoperability between a Notecard and other components in an IoT device and (ii) developing, testing, manufacturing, and selling associated Notecard-Enabled Devices.

2.2. License concerning Notecard-Enabled Devices. If you intend to manufacture Notecard-Enabled Devices, whether pursuant to your own design or a design developed by a Third Party, Blues hereby grants to you, under its Intellectual Property Rights and subject to the terms and conditions of this Agreement, a non-exclusive, paid-up, non-transferable, non-sublicensable license to embed Blues Hardware (purchased under valid Order) in IoT devices in order to manufacture and sell Notecard-Enabled Devices.

2.3. Design and Development Process. You are solely responsible for (i) determining whether Notecards are appropriate for use with your IoT service or device, and (ii) for engaging in requisite testing and quality assurance to ensure that the Notecards function properly within the Notecard-Enabled IoT Solutions that you develop, manufacture, use, or sell.

2.4. Limitations. This Section 2 (Notecard-Enabled Devices) licenses you Intellectual Property Rights held by Blues. You may need a license to Intellectual Property embodied in the components you wish to integrate with Notecards, and it is your responsibility to obtain such rights, as applicable.

3. Notecard Connectivity. Blues may offer various options for you to obtain connectivity between the Blues Hardware you have purchased and a Notehub. These options may include one or more of the following:

3.1. Embedded Cellular Service. Except as provided in Section 3.2 (Other Connectivity), each Notecard includes, among its other features and subject to Section 13 (Disclaimers and Service Limitations), embedded Cellular Service via a SIM or an embedded SIM that is pre-activated with the Carrier, and does not require further Carrier registration (the “ Embedded Cellular Service”). Notecards are available in various configurations, as specified in this Section 3.1 (Embedded Cellular Service) and in the applicable Datasheet.

3.1.1. Data Plans. Notecards are configured with a 10 year data plan with 500MB of cellular data (the “Standard Data Plan”). Blues may offer Notecards with data plans that extend beyond the Standard Plan, as specified in the Notecard Datasheet (each an “Extended Data Plan”) and, if such Extended Data Plans are available, they will be included as an option in the applicable Datasheet.

3.1.2. Territory. Subject to Section 13 (Disclaimers and Service Limitations), Blues offers Notecards with coverage for the U.S. Territory, and may offer Notecards with coverage for the Global Territory. If Global Territory coverage is available, it will be specified in the applicable Datasheet.

3.1.3. Bandwidth. Subject to Section 13 (Disclaimers and Service Limitations), Notecard configurations include narrowband and broadband channels, as specified in the applicable Datasheet.

3.1.4. Roaming. A Notecard provisioned for the U.S. Territory may be unable to connect outside the U.S. Territory. Notecard-Enabled Devices that have been designated for Global Territory coverage will be provisioned to roam internationally to the extent of the Carrier Partner Networks, and the Notecard’s Embedded Cellular Service will not function outside such roam zone.

3.1.5. Content Delivery. You will limit Notecard-Enabled Devices’ downloads and uploads of content to fifty (50) MB in file size or smaller per Notecard-Enabled Device (or such other amount as may be specified in the applicable Datasheet), per download or upload, to avoid spikes in Network usage or other behaviors that may result in Network congestion.

3.2. Other Connectivity.

3.2.1. WiFi. If specified in the Datasheet, the Blues Hardware at issue will connect to a Notehub via a WiFi network, and will not contain Embedded Cellular Service. Blues has no responsibility for the operation, performance, features, coverage, or other characteristics of such WiFi network, and you assume all risk associated with such WiFi network.

3.2.2. Independent SIM Services. If specified in the Datasheet for the Blues Hardware at issue, you will be able to incorporate a SIM of your choosing in such Blues Hardware, and thereby obtain Cellular Services independent of Blues’ Carrier (“ Independent SIM Services”). Blues has no responsibility for the operation, performance, features, coverage, or other characteristics of Independent SIM Services, and you assume all risk associated with the Independent SIM Services.

3.2.3. Additional Options. Blues may provide additional options for connectivity and, if so, these will be specified in the applicable Datasheet.

4. Notehubs.

4.1. Creating a Notehub. A Notehub routes data between a Notecard and its associated cloud IoT application. Blues makes software available in source code form, subject to one or more open source software licenses (the “ Notehub Source Code”), to permit you to develop and host a Notehub (an “Independent Notehub”). The Notehub Source Code is available to you at: https://github.com/blues , and your rights to copy, modify, use, and otherwise engage with the Notehub Source Code are set out in the open source software licenses referenced in the header files of the applicable Notehub Source Code modules.

4.1.1. Notehub Documentation. The Notehub Source Code constitutes the documentation, and provides the protocols, for provisioning a Notecard to communicate with an Independent Notehub. Blues has no obligation under this Agreement to provide further documentation or information beyond the Notehub Source Code.

4.1.2. No Blues Responsibility for Independent Notehubs. The Notehub Source Code is provided “AS IS” and without warranty of any kind or nature. As between you and Blues, you assume and bear full and sole responsibility for the operation, performance, features, privacy practices, security, and other characteristics of the Independent Notehubs on which you rely, whether the Independent Notehub is hosted by you or by a Third Party.

4.2. Blues Notehub; Separate Subscription Agreement. Blues does not provide services or support concerning Notehubs under this Agreement, and will not provision or otherwise assist you in provisioning a Notehub under this Agreement. Blues will, however, provision and host a Notehub for you (a “Blues Notehub ”) under a separate Notehub Subscription Agreement, and at the pricing tier you select. In addition to its hosting services under the Notehub Subscription Agreement, Blues makes available to Blues Notehub subscribers (i) various support options, (ii) a user community and/or software tools to assist them in developing applications for Notecard-Enabled IoT Solutions, and (iii) where applicable, Blues-developed applications and data streams, all as set out in the Notehub Subscription Agreement. Unless you direct otherwise, by default the Blues Notehub will be the Notehub with which your Notecard-Enabled Devices communicate, in accordance with, and subject to the terms and conditions of, the Notehub Subscription Agreement

5. Additional Blues Hardware.

5.1. Nature and Availability. Additional Blues Hardware includes Notecarriers, which can be used to integrate Notecards with other devices, and Swan, which can be used as a host microcontroller with Notecards and Notecarriers. The Blues Store identifies available Additional Blues Hardware, and includes links to Datasheets that provide the specifications and functionality of the applicable Additional Blues Hardware device.

6. Third Party Accessories. Blues has integrated certain Third Party components with Blues Hardware (“Accessories”), and makes such Accessories available for purchase in connection with Notecards and other Blues Hardware. Third Party terms and conditions govern your use of Accessories, and you should refer to such terms and conditions for your use-rights with respect to such Accessories.

7. Data Use; Privacy Practices.

7.1. Role of Network Provider. The Network Provider will collect Network Information in order to provide connectivity (and for other purposes), and such collection and use is governed by the Network Provider’s privacy policies and practices.

7.2. No Blues Access to User Information. Via the Network Provider, Blues will transmit User Data between Notecards and a Notehub, but has no access, and will seek no access, to the content of, or any information included in, User Data.

7.3. Metadata. Blues will collect Metadata (and Network Information, where applicable), and, to the extent you hold Intellectual Property Rights in such Metadata or Network Information, you hereby agree that (without obligation to compensate you) Blues is permitted to use such Metadata Information and Network Information for purposes of improving, measuring use of, analyzing performance of, fixing errors in, providing support for, and developing Blues Hardware, the Blues Notehub, Notehub Source Code, and other Blues offerings. To the extent Metadata or Network Information includes personal information, as defined under applicable law, Blues’ collection and use of such personal information will be governed by the Notehub Privacy Policy, and you agree to be bound by (and to contractually obligate your Users to be bound by) the Notehub Privacy Policy.

8. Blues Support; Role of Notehub Subscription Agreement. Except for the support it provides to you in the form of warranty protections under Section 12 (Warranty to Original Purchaser), Blues does not, under this Agreement, provide support for Blues Hardware or Notecard-Enabled Solutions to you or your Users. In its discretion, Blues may make such support available under separate, mutually agreeable terms. Although unavailable under these Terms, support for Blues Hardware and your Notecard-Enabled IoT Solutions is available to you via the Blues Notehub, under the Notehub Subscription Agreement.

9. Branding. Blues grants you a limited, non-exclusive license to display, if you wish, the phrases “Powered by Notecard” and “Powered by Blues,” and the Blues URL “Blues.io” in connection with your Notecard-Enabled IoT Solutions.

9.1. Trademark Ownership. You acknowledge that, as between the Parties, and among other trademarks, Blues is the sole and exclusive owner of trademark rights in its fields in the terms “NOTECARD,” and “BLUES” (the “Blues Marks”) and that all goodwill associated with the Blues Marks shall inure solely and exclusively to Blues. Where you use Blues Marks in connection with this Section 9 (Branding), you shall include a notice that identifies Blues as the owner of the Blues Marks and, where you use of the Blues Marks online, you shall include a live link to http://blues.io.

9.2. Standards. In order to preserve the inherent value of the Blues Marks, you shall maintain good and sufficient quality standards with respect to Notecard-Enabled IoT Solutions to which you affix or with which you associate the Blues Marks. Blues shall be entitled to end your use of the Blues Marks on reasonable cause (including failure to maintain such quality standards), after notice and a reasonable wind-down period.

9.3. No Removal of Branding; No Additional Rights. You shall not remove branding affixed to or associated with Blues Hardware, including any Carrier-related branding. You have no right to use the names, logos, or trademarks of the Carrier in any form other than that supplied with the Blues Hardware at issue.

10. Your Obligations concerning Notecard-Enabled IoT Solutions . Without limiting other obligations under these Terms, in connection with your sale, provision, or use of, or other activities concerning, Notecard-Enabled IoT Solutions, you agree to fulfill, and agree to contractually require your Users to fulfill, each of the following obligations :

10.1. Network Compatibility. You agree to use and deal in (and to contractually require your Users to use and deal in) only those Notecard-Enabled Devices (i) that are compatible with the efficient operation of the Network; (ii) that do not interfere with the Cellular Services (or connectivity) of other Carrier customers; (iii) that do not result in inefficient or excessive use of the Network; and (iv) that are consistent with published Carrier policies, practices, or other requirements.

10.2. Industry Certifications and Regulatory Approvals. The Datasheets identify the industry certification(s) Blues has obtained for Notecards and other Blues Hardware (as applicable). You assume full responsibility (and to contractually require your Users, as applicable, to assume responsibility) (i) for obtaining all other necessary industry certifications that apply to Notecard-Enabled IoT Solutions that contain Notecards you purchase, including those that apply to safety standards (such as valid CE markings); and (ii) for obtaining all applicable regulatory approvals and permissions for such Notecard-Enabled IoT Solutions, including completion of regulatory conformity assessments.

10.3. Compliance with Applicable Law; Roaming Contracts. You agree (and shall contractually require your Users to agree): (i) to comply with the legal and regulatory requirements of each country in the Territory arising from or relating to use of your Notecard-Enabled IoT Solutions and associated Embedded Cellular Service, including applicable legal and regulatory requirements concerning the use of encryption technology; (ii) to provide Blues, the Carrier, and Carrier Partners (as applicable) commercially reasonable assistance to enable them to comply with lawful requests of governmental bodies with requisite jurisdiction, including those related to lawful interception and retention of information; and (iii) to comply with applicable requirements of Carrier contracts and local roaming contracts with Carrier Partners.

10.4. Export Compliance. As between the Parties, you are solely responsible for compliance with export and import laws and regulations applicable to your (and your Users’) use, distribution, or provision of Blues Hardware and Notecard-Enabled IoT Solutions. You shall not engage in (and shall contractually prohibit your Users from engaging in) the sale, distribution, export, re-export, or other transfer or distribution of Blues Hardware or Notecard-Enabled IoT Solutions, directly or indirectly, (i) to any person or entity in violation of applicable export controls or economic sanctions, (ii) in any manner that would cause Blues, the Carrier, or the Carrier Partners to violate, or be subject to sanctions or penalties under, U.S. export controls or economic sanctions laws, or (iii) for any end-use in violation of the export control or economic sanctions laws of the U.S., EU, United Nations, or any other applicable country.

10.5. Prohibited Uses.

10.5.1. No Internet IP or Internet Access Services. You are prohibited (and shall contractually prohibit your Users) from using Notecards to provide Users with Internet access service either (i) independently of a device (such as via a Wi-Fi hotspot or tethering) or (ii) as an embedded feature (such as providing Internet access service to applications on phones, tablets, or laptop devices), unless all or nearly all of the communications enabled by the Notecard occur between a machine and one or more other machines.

10.5.2. No Use in Certain Devices. Without the Carrier’s written permission (which upon reasonable request you shall provide to Blues), you are prohibited (and shall contractually prohibit your Users) from using Notecards (i) within Medical Devices (as that term is defined immediately below), (ii) within regulated or navigational applications of drones, (iii) within inmate locators, (iv) within mobile personal emergency response services, or (v) in applications that create risk of personal injury, property damage, or other catastrophic event. For purposes of this Section 10.5.2 (No Use in Certain Devices), the term “ Medical Device” means (a) a “Device” as defined in the U.S. Food, Drug and Cosmetic Act (FD&C Act); (b) a “Medical Device” as defined in European Union Medical Devices Directive (Directive 93/42/EEC), the Active Implantable Medical Devices Directive (Directive 90/385/EEC), and the EU In Vitro Diagnostic Medical Devices Directive (Directive 98/79/EC), and (c) the equivalent of such terms, as determined by applicable law.

10.5.3. No Telephone or Telephone-Related Services. You are prohibited (and shall contractually prohibit your Users) from using Notecards to provide (i) real-time circuit-switched or IP-based voice calling, interaction, or SMS services designed to interoperate with the wired or wireless Public Switched Telephone Network (PSTN), (ii) IP telephony, (iii) applications that utilize Mobile Station International Subscriber Directory Numbers (MSISDNs), or (iv) applications that provide emergency calling to 911 or equivalent emergency telephone numbers.

10.6. Security for Notecard-Enabled IoT Solutions.

10.6.1. Blues Security Measures. Blues Hardware incorporate the device-level security features and the data-in-motion security protections set out in applicable Datasheets, and these are designed to prevent unauthorized access to or use of the Notecard and the data exchanged with its associated Notehub.

10.6.2. Your Security Obligations. You are responsible for safeguarding (and shall contractually obligate your Users to safeguard) Notecard-Enabled IoT Solutions that contain Notecards you purchase, their associated Embedded Cellular Services, and their access to the Network. Before rolling out such Notecard-Enabled IoT Solution, you agree to establish and thereafter maintain (and/or contractually require your Users to establish and thereafter maintain), for the life of the Notecard-Enabled IoT Solution, commercially reasonable security safeguards consistent with customary industry practices to prevent unauthorized access to, or use of, Notehubs, the Network, Network Information, or other data exchanged between a Notecard and its associated Notehub (collectively "Security Safeguards"). You are solely responsible for any virus, malware, spam, or other similar harm to the extent caused by your failure (or your Users’ failure) to implement and maintain such Security Safeguards.

10.7. General Prohibitions. You are prohibited from (and you shall contractually prohibit your Users from): (i) circumventing technical restrictions or limitations included in Blues Hardware; (ii) reverse engineering, decompiling, or disassembling Blues Hardware, except as expressly permitted by applicable law or by applicable open source software licenses; (iii) removing or defacing copyright notices or branding provided on Blues Hardware; or (iv) using Blues Hardware (a) in a way prohibited by applicable law; (b) to violate the legal rights of others; (c) to attempt to gain or to gain unauthorized access to or disrupt a Notehub or any third party service, device, data, account or network; (d) to distribute spam or malware; or (e) in a manner that Blues in its discretion deems offensive or objectionable.

10.8. Information concerning IoT Solutions. You shall promptly notify Blues of, and you shall contractually obligate your Users to promptly notify you of, any material non-compliance with the obligations set out in this Section 10 (Obligations concerning Notecard-Enabled IoT Solutions). In addition, upon reasonable request and subject to standard confidentiality protections, you shall provide Blues with information sufficient to determine whether you or your Users are in compliance with this Section 10 (Obligations concerning Notecard-Enabled IoT Solutions).

11. Fees; Shipping; Returns.

11.1. Fees; Taxes. You shall pay the fees specified in your Order for the Blues Hardware you have selected (“Hardware Fees”). Hardware Fees are due at time of purchase. 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 you agree 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.

11.2. Shipping. The Blues Hardware you purchase will be shipped in a timely manner from the date of your Order, based on available stock.

11.3. Returns. You may return Blues Hardware units for a refund, provided (a) the units are in their original unopened packaging, in new condition; (b) you return the units to the entity from which you purchased them; (c) you provide a proof of purchase and your contact information with the returned units; and (d) you return the units within fifteen (15) days of the date of your Order. You will be responsible for the cost of return shipping unless the return was the result of Blues’ (or its authorized distributor’s) error.

12. Warranty to Original Purchaser.

12.1. Limited Warranty; Exclusive Remedy. Blues warrants that, for a period of ninety (90) days from the purchase date shown on the Order (the "Warranty Period "), the Blues Hardware you purchase from Blues (or its distributor) will be free from defects in materials and workmanship, and will perform substantially in conformance with applicable Datasheet. If such Blues Hardware does not comply with this warranty, Blues will accept return of the defective Blues Hardware and either, at its election (i) replace such Blues Hardware or (ii) refund to you of the amount you paid for such Blues Hardware. To obtain this remedy, you must, within the Warranty Period, return the defective Blues Hardware 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 OTA process. You acknowledge and agree (and will contractually require your Users to acknowledge and agree) that OTA firmware updates present risks, including the risk of intermittent disruptions and performance degradation, and consume data and will be counted toward use of your Data Plan (if any).

12.1.1. Scope of Warranty. The warranty set out in Section 12.1 (Limited Warranty; Exclusive Remedy) does not apply: (i) to damage caused by misuse of the Blues Hardware, or by operating the Blues Hardware in a manner contrary to the Datasheet; (ii) to Blues Hardware that has been modified without the written permission of Blues; (iii) to defects caused by normal wear and tear or otherwise due to the normal aging of the Blues Hardware; or (iv) if the serial number or other identifier has been removed, defaced, or deleted from the Blues Hardware.

12.1.2. Remaining Warranty Period. A replacement Blues Hardware unit assumes the remaining term of the Warranty or thirty (30) days from the date of replacement, whichever provides longer coverage for you. When a Blues Hardware unit is replaced or a refund provided, the replacement item becomes your property and the replaced or refunded item becomes Blues' property.

12.1.3. Exclusive Remedy. This Section 12.1 (Limited Warranty; Exclusive Remedy) provides the sole and exclusive remedy for Blues Hardware 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.

12.2. No Application to Embedded Cellular Service. The warranty set out in Section 12.1 (Limited Warranty; Exclusive Remedy) does not apply to Embedded Cellular Service, as further specified in Section 13 (Disclaimers and Service Limitations).

12.3. No Application to Vendors or Users Other Than the Original Purchaser . The warranty protections set out in this Section 12 (Warranty to Original Purchaser) apply only to you, and do not extend to your Users or others. Blues will not accept warranty claims from your Users or anyone other than you.

13. Disclaimers and Service Limitations.

13.1. Blues Disclaimer. Except as provided in Section 12.1 (Limited Warranty; Exclusive Remedy), Blues provides no warranties concerning Blues Hardware, 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 12.1 (Limited Warranty; Exclusive Remedy). BLUES PROVIDES NO ASSURANCE (i) THAT BLUES HARDWARE WILL BE ERROR-FREE; (ii) THAT BLUES HARDWARE WILL PROVIDE UNINTERRUPTED SERVICE; (iii) THAT ANY DEFECTS WILL BE CORRECTED; OR (iv) THAT YOUR USE OR YOUR USERS’ USE OF BLUES HARDWARE WILL PROVIDE SPECIFIC RESULTS OR PERFORMANCE. THERE IS NO ASSURANCE THAT DATA YOU OR YOUR USERS DOWNLOAD OR UPLOAD USING BLUES HARDWARE WILL BE FREE OF VIRUSES OR DESTRUCTIVE FEATURES. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE AND YOUR USERS’ USE OF NOTECARD-ENABLED IoT SOLUTIONS.

13.2. No Liability of Carrier. YOU UNDERSTAND AND AGREE AND WILL CONTRACTUALLY OBLIGATE YOUR USERS TO AGREE (i) THAT NEITHER YOU NOR YOUR USERS HAVE A CONTRACTUAL RELATIONSHIP WITH THE CARRIER OR CARRIER PARTNERS; (ii) THAT NEITHER YOU NOR YOUR USERS ARE THIRD PARTY BENEFICIARIES OF ANY AGREEMENT BETWEEN BLUES AND THE CARRIER, (iii) THAT THE CARRIER (AND CARRIER PARTNERS) HAVE NO LIABILITY OF ANY KIND TO YOU OR YOUR USERS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, (iv) THAT DATA TRANSMISSIONS AND MESSAGES MAY BE DELAYED, DELETED OR NOT DELIVERED, AND 911 OR SIMILAR EMERGENCY CALLS (IF PERMITTED) MAY NOT BE COMPLETED, AND (v) THAT THE CARRIER (AND CARRIER PARTNERS) CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE EMBEDDED CELLULAR SERVICES.

13.3. Embedded Cellular Service Limitations. YOU ACKNOWLEDGE (AND SHALL CONTRACTUALLY REQUIRE YOUR USERS TO ACKNOWLEDGE) THAT THE EMBEDDED CELLULAR SERVICE IS MADE AVAILABLE ONLY WITHIN THE OPERATING RANGE OF THE NETWORKS, AND THAT EMBEDDED CELLULAR SERVICE MAY BE TEMPORARILY REFUSED, INTERRUPTED, OR LIMITED BECAUSE OF: (i) FACILITIES’ LIMITATIONS; (ii) 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 (OR CARRIER PARTNER’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 (iii) EQUIPMENT MODIFICATIONS, UPGRADES, RELOCATIONS, REPAIRS, AND OTHER SIMILAR ACTIVITIES NECESSARY FOR THE PROPER OR IMPROVED OPERATION OF SERVICE.

13.4. Carrier Partners. YOU ACKNOWLEDGE (AND SHALL CONTRACTUALLY REQUIRED YOUR USERS TO ACKNOWLEDGE): (i) THAT CARRIER PARTNER NETWORKS ARE MADE AVAILABLE AS-IS, AND BLUES (AND THE CARRIER) MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE AVAILABILITY OR QUALITY OF ROAMING SERVICE PROVIDED BY CARRIER PARTNERS; (ii) THAT BLUES AND THE CARRIER AND CARRIER PARTNERS WILL NOT BE LIABLE IN ANY CAPACITY FOR ANY ERRORS, OUTAGES, OR FAILURES OF CARRIER PARTNER NETWORKS; AND (iii) 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.

13.5. Network Information Security. YOU ACKNOWLEDGE (AND SHALL CONTRACTUALLY REQUIRED YOUR USERS TO ACKNOWLEDGE): (i) THAT THE NETWORK HAS MANY COMPLEX ELEMENTS AND IS NOT GUARANTEED AGAINST EAVESDROPPERS, HACKERS, DENIAL OF SERVICE ATTACKS, VIRUSES, OR INTERCEPTORS; AND (ii) THAT BLUES WILL NOT BE LIABLE TO YOU OR YOUR USERS FOR ANY LACK OF PRIVACY OR SECURITY, PROVIDED THAT BLUES (AND THE CARRIER AND CARRIER PARTNERS) HAVE MAINTAINED COMMERCIALLY REASONABLE SAFEGUARDS CONSISTENT WITH CUSTOMARY INDUSTRY PRACTICES.

14. Indemnities.

14.1. Your 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 (including any of your Users) relating to (i) your breach of these Terms; or (ii) personal injury, data loss, property damage, infringement of a Third Party’s Intellectual Property Rights, or other harm caused by a Notecard-Enabled IoT Solution that contains Notecards you purchase, unless such harm is solely the result of an unmodified Notecard.

14.2. Blues’ Indemnification Obligations . Blues agrees to defend you against any demand, suit, action or other claim by a Third Party that Blues Hardware you have purchased from Blues misappropriates or infringes the Intellectual Property Rights of such Third Party, and to indemnify you for damages, liabilities, settlements, and costs and expenses (including reasonable attorneys' and expert’s fees) awarded in connection with or arising out of any such claim. Blues shall have no indemnity obligations to you if the 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, (i) to modify the Blues Hardware to resolve such Third Party infringement claims (provided such modifications do not materially degrade the features or performance of the Blues Hardware) or (ii) to terminate further use of such Blues Hardware and refund the you the purchase price of the infringing Blues Hardware, without further liability. The foregoing states the entire liability of Blues, and your exclusive remedy, with respect to actual or alleged violations of Third Party Intellectual Property Rights by Blues under these Terms. The indemnification protections set out in this Section 14.2 (Blues’ Indemnification Obligations) apply only to you, and do not extend to your Users, and are subject to Section 15 (Limit of Liability).

14.3. Conditions . The indemnifying Party's obligations under this Section 14 (Indemnities) hereunder are conditioned on (a) the indemnified Party providing prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith (at the indemnifying Party’s expense) and (b) 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.

15. Limit of Liability

15.1. Consequential Damages Waiver. In no event will Blues or Blues’ manufacturer 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 this Agreement is found to have failed of its essential purpose.

15.2. Limitation of Liability. In no event will Blues’ liability for damages in connection with or related to this Agreement (whether in an action in contract, tort or otherwise) exceed an amount equal to the total cost of Blues Hardware you purchased from Blues during the twelve (12) month period prior to the event giving rise to your claim.

16. Term. This Agreement becomes effective as of the date Blues accepts the Order that applies to the Blues Hardware at issue and, unless earlier terminated in accordance with Section 17 (Termination), shall continue until expiration of the Embedded Cellular Service (the “Term”).

17. Termination.

17.1. Termination for Convenience. You may terminate these Terms for convenience as to specific Blues Hardware by ceasing to use or offer Notecard-Enabled IoT Solutions that rely on such Blues Hardware. If you terminate these Terms for convenience, you are not entitled to a refund or return of any portion of the purchase price of such Blues Hardware, irrespective of any remaining Data Plan for Notecards’ Embedded Cellular Service.

17.2. Technology Changes in Carrier Network. The Carrier, and its Carrier Partners, are not obligated to maintain any particular technology, and may reduce or terminate their 2G, 3G, LTE (including LTE-M, NB-IoT, CAT M1) and later technology networks at any time in their sole discretion. Blues will use commercially reasonable efforts (i) to notify you of such a termination, and (ii) to provide such notice thirty (30) months before the termination becomes effective. Such notice may take the form of a website posting.

17.3. Non-Compliant Devices. Blues (and the Network provider (including the Carrier) on Blue’s behalf) shall have the unilateral right to disable Network access for any Notecard-Enabled IoT Solution that, in Blues’ (or the Network provider’s) reasonable judgment: (i) is causing material technical harm to the Network or an applicable Notehub; or (ii) fails to comply with Section 10 (Obligations concerning Notecard-Enabled IoT Solutions). If circumstances warrant, in Blues’ (or the Network provider’s) judgment, then Blues or the Network provider shall be entitled to disable such Notecard-Enabled IoT Solution immediately and without notice to you or your Users.

17.4. Termination or Suspension of Roaming Service. Blues or the Carrier may suspend, alter, or discontinue Embedded Cellular Service (or the Carrier may switch or eliminate Carrier Partners) (i) if an order, direction, ruling or guidance from a regulator, or contractual or other terms relating to a Carrier Partner, 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, unreasonable commercial terms imposed by a Carrier Partner, or other applicable causes.

17.5. Termination and Your Users. You shall contractually require your Users to acknowledge and agree to the suspension, termination, disablement, and other limitations set out in Section 17.2 (Technology Changes in Carrier Network) through Section 17.4 (Termination or Suspension of Roaming Service).

18. Required Disclosures and Flow-Down of Terms.

18.1. Disclosures Regarding Configuration. In any sale or provision of any Notecard-Enabled IoT Service, you shall accurately describe to your Users: (i) the Data Plan(s) for the Notecards’ Embedded Cellular Service and (ii) the applicable Territory coverage.

18.2. Required Flow-Down of Terms. This Agreement specifies certain terms that you are obligated to include in your User Contracts, and these terms are specified in Schedule A (the “Required Flow-Down Terms”). Your User Contracts shall include provisions that are consistent in all material respects with the Required Flow-Down Terms, and you shall ensure (i) that your User Contract is enforceable, and (ii) that your Users are contractually bound by such User Contract.

19. General

19.1. Blues Ownership. This Agreement is not a sale and does not convey to you any rights of ownership in or related to Intellectual Property embodied in Blues Hardware, Notehubs, Notehub Source Code, or the Blues documentation. As between the Parties, and except as expressly provided in Section 2.1 (License to Notecard API) and Section 2.2 (License concerning Notecard-Enabled Devices), Blues alone owns all right, title and interest, including all Intellectual Property Rights, in and/or related to Blues Hardware, Notehubs, the Notehub Source Code, and Blues documentation.

19.2. 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.

19.3. Government End Users. The software contained in Notecards, 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.

19.4. No Blues Monitoring Obligations; Your Monitoring Obligations . You acknowledge that Blues has no (and assumes no) obligation to monitor or police your compliance with, or performance under, this Agreement, and you are solely responsible for monitoring (i) your compliance with this Agreement (including your compliance with Section 10 (Obligations concerning Notecard-Enabled IoT Solutions)), and (ii) your Users’ compliance with Required Flow-Down Terms.

19.5. 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.

19.6. 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.

19.7. 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 19.2 (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.

19.8. Entire Agreement. These Terms and the Order Form constitute the Parties’ entire agreement relating to the subject matter contained therein. This Agreement cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the Parties relating to its subject matter.

19.9. Independent Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party shall have any authority to assume any obligation for the other party, or to commit the other party in any way.

19.10. Order of Precedence. To the extent of any conflict between these Terms and the Order Form, these Terms shall control.

19.11. 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.

19.12. 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.

19.13. 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 Form 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.

19.14. Severability. 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.

19.15. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, pandemics, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, acts of terrorism, war, governmental action, earthquakes, or any other cause which is beyond the reasonable control of such party.

19.16. 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 assigned to them below. Other capitalized terms are defined in context.

“Additional Blues Hardware” has the meaning set out in Section 5.1 (Nature and Availability).

“Blues Hardware” means (i) Notecards and (ii) Additional Blues Hardware.

“Blues Notehub” has the meaning set out in Section 4.2 (Blues Notehub; Separate Subscription Agreement).

“Blues Store” means the website located at https://shop.blues.io.

“Carrier” means (i) the provider of Embedded Cellular Services in the U.S. Territory, as specified in the applicable Datasheet or (ii) the provider of Independent SIM Services.

“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.

“Data Plan” means, collectively, (i) the Standard Data Plan and (ii) the Extended Data Plan, as such terms are defined in Section 3.1 (Embedded Cellular Service).

“Datasheet” means the datasheet, in effect as of the date of your Order, which applies to the Blues Hardware at issue. Datasheets are available at: https://dev.blues.io/hardware/. 

“Embedded Cellular Service” has the meaning set out in Section 3.1 (Embedded Cellular Service).

“Global Territory” means the countries (outside the U.S. Territory) listed in the applicable Datasheet.

“Independent Notehub” has the meaning provided in Section 4.1 (Creating a Notehub).

“Independent SIM Services” has the meaning set out in Section 3.2.2 (Independent SIM Services).

“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 Wi-Fi 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 Carrier or other 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.

“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 API” means the application programming interface, provided by Blues, that permits access to Notecard functions. The Notecard API is available for download at: https://dev.blues.io/reference/notecard-api/ .

“Notecard-Enabled Device” means an IoT device that contains an embedded Notecard, with or without Additional Blues Hardware.

“Notecard-Enabled IoT Solution” means an IoT Solution that relies on one or more Notecard-Enabled Devices.

“Notehub” is the 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. A Notehub is either a Blues Notehub or an Independent Notehub.

“Notehub Privacy Policy” means the privacy policy located at: https://blues.io/privacy/.

“Notehub Source Code” has the meaning provided in Section 4.1 (Creating a Notehub).

“Notehub Subscription Agreement” means the agreement located at: https://notehub.io/subscription-agreement

“Order” means an order for Blues Hardware (from Blues or its authorized distributor) where the order, or the Blues Hardware covered by the order, is linked to or otherwise associated with these Terms (such as via a QR code or an online shopping cart checkout form).

“OTA” means over-the-air, and refers to methods for distributing updates and configurations to mobile devices from a central location.

“Required Flow-Down Terms” has the meaning set out in Section 18.2 (Required Flow-Down of Terms).

“SIM” or “Subscriber Identity Module” is a specially programmed microchip (or equivalent) inserted into or associated with a modem device that, among other functions, is used for identification and security by the Network.

“Territory” means collectively (i) the U.S. Territory and (ii) the Global Territory (if applicable).

“Third Party” means a person or entity other than (i) you or (ii) Blues (including any Blues affiliates).

“U.S. Territory” means the United States, the U.S. Virgin Islands, and Puerto Rico.

“User” means a person or entity that purchases, receives, or seeks to purchase or receive a Notecard, Additional Blues Hardware, a Notecard-Enabled Device, or a Notecard-Enabled IoT Solution from you.

“User Contract” means the contract, terms of use, subscription, or other agreement between you and your User.

“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.

“Warranty Period” has the meaning set out in Section 12.1 (Limited Warranty; Exclusive Remedy).

 

Schedule B (Required Flow-Down Terms):

Section. (includes each subsection)	Section Heading
7	Privacy Practices
10	Your Obligations concerning Notecard-Enabled IoT Solutions
13.2	No Liability of Carrier
13.3	Embedded Cellular Service Limitations
13.4	Carrier Partners
13.5	Network Information Security
17.5	Termination and Your Users
18.2	Required Flow-Down of Terms

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