These Terms and Conditions are effective as of August 1, 2016.
1. ACCEPTANCE. By clicking “I Agree” or by using or installing any part of the Application (as defined below), you expressly agree to, and consent to be bound by, all of the terms of this agreement (the “Terms and Conditions”) and affirm your acceptance of the most recent version of the Terms and Conditions found in various application stores, including, but not limited to, the iTunes Store as provided by Apple Inc. (“Apple”) which in no way are superseded or replaced by these Terms and Conditions. If you do not wish to be bound by these Terms and Conditions, please exit now and do not install the Application or, in the event that you have installed the Application, uninstall the Application. Please review these Terms and Conditions carefully before installation and/or acceptance.
a. Hardware. The Blustream Hardware (“Hardware”) is a sensor device which monitors and records temperature, humidity, motion, and impact data and stores this information in memory until connected to the Blustream Software “Software”, at which point the information is transferred to your smart device and pushed to the Blustream Server “Server” for long term storage in your Blustream Account.
b. Software. The Software shall mean the self-contained application provided by Blustream Corporation, a Delaware Corporation (“Blustream”,) which works in connection with our other products and services and integrates with blustreamcorp.com (the “Site”) to monitor and report the environmental, motion, and impact conditions of the item to which the hardware is affixed, installed, or integrated as a subcomponent, to relay data wirelessly to your personal mobile telephone or handheld device (the “Services”).
c. Software Requirements. To operate the Software and Hardware, you must have a compatible mobile telephone or handheld device, internet access, and the necessary minimum specifications (the “Software Requirements”) to use the Application. The Software Requirements are as follows: Apple iOS devices running iOS 8.0 or later; Safari, Firefox, Chrome, or Internet Explorer; Language: English. Blustream reserves the right to change the Requirements for the Software and Hardware as it deems necessary in its sole discretion.
d. Updates. In connection with providing the Services required under these Terms and Conditions, Blustream may elect to update the Application at any time. These updates may include bug fixes, feature enhancements or improvements, or entirely new versions of the Application. You agree that Blustream may automatically deliver such updates to you as part of the Services and you shall receive and install them as required, and you acknowledge and agree that the Software, Services, or portions thereof may not properly operate should you fail to do so. You further agree that all updates will be deemed part of the Application and will be subject to these Terms and Conditions.
3. ACCOUNT REQUIREMENTS. To create an account and to register and use the Application and Services, you must be 18 years or older, provide your full legal name, a valid email address for you, and any other information requested to complete the signup process (the “Registration Data”). Additionally, you must agree to be bound by these Terms and Conditions and the laws of the State of Delaware.
5. ACCOUNT SECURITY. You are the sole authorized user of your account. You are solely and fully responsible for maintaining the confidentiality of your account information, including your account password. Therefore, you must take steps to ensure that others do not gain access to your password and account. You are also responsible for all activities that occur in connection with your account. If you suspect that any unauthorized party is using your account, you agree to notify us immediately.
6. TERMINATION OF RELATIONSHIP. These Terms and Conditions may be terminated by either party at any time. You may cancel your account or any of the Services at any time and for any reason by providing email notice to firstname.lastname@example.org. Upon any termination, the rights and licenses granted to you herein shall terminate and you must cease all use of the Application and the Services. Blustream shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.
7. PROPRIETARY RIGHTS; LICENSE.
a. Proprietary Rights. You hereby acknowledge and agree that all copyrights, database rights, trademarks, and other intellectual property rights of any kind in the Application and Services, together with the underlying software code, are owned either directly by Blustream and/or its licensors. You further agree that the Application contains proprietary and confidential information that is protected by applicable intellectual property laws and other laws.
b. License. Blustream hereby grants you a worldwide, non-exclusive, non-transferable, revocable license to download, install, and use the Application for your personal use in accordance with these Terms and Conditions; provided, however, that you do not (and do not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, sublicense, assign, grant a security interest in or otherwise transfer any right in the Application.
8. APPLICATION CONTENT AND USE. Your use of the Application and Services is subject to all applicable laws and regulations, and you are solely responsible to assure that your use of the Application and Services is in compliance therewith. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Application, use of the Services, or access to the Services without the express written permission by Blustream. You must not use the Application or Services to transmit any computer worms, viruses or any code of a destructive nature.
9. CHANGES TO THE APPLICATION AND SERVICES. We reserve the right to make changes to, suspend, or discontinue (temporarily or permanently) the Application, Services, or any portion thereof at any time. You agree that we will not be liable to you or to any third party for any such change, suspension, or discontinuance.
10. DISRUPTION OF SERVICES. You acknowledge and understand that from time to time the Services and the Application may be inaccessible or inoperable due to equipment malfunctions, periodic maintenance procedures, repairs or upgrades which may occur over time. You also acknowledge and understand that service malfunctions may occur for reasons beyond Blustream’s control or which are not reasonably foreseeable, including, without limitation, interruption or failure of telecommunication or digital transmission links, including delays or failures due to your hardware, Internet service provider, hostile network attacks, network congestion or other failures. You agree that we will not be liable to you or to any third party in the event the Application or Services are inaccessible or malfunction, or for any disruption in the Services or your use of the Application.
11. THIRD PARTY INFORMATION OR CONTENT. Certain components or features of the Services may include materials from third parties and/or hyperlinks to other resources, websites, or content that is operated by companies that are not affiliated with Blustream. You acknowledge and agree that Blustream does not endorse or warrant the accuracy of any such sites or resources. You further acknowledge and agree that Blustream (i) is not responsible for the availability of such sites or resources; (ii) shall in no way be liable or responsible for any content, advertising, products or materials on or available from such sites or resources; and (iii) shall not be responsible or liable in any way for any damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any such content, advertising, products or materials on or available from such sites or resources.
12. SERVICE PROVIDER. You acknowledge that the terms of any agreement with your respective mobile network provider (“Mobile Provider”) will continue to apply when using the Application. Consequently, you may be charged by your Mobile Provider, or any applicable third parties, for access to its/their network connection services while you are accessing the Application. You accept responsibility for any such charges that arise.
13. ADDITIONAL APPLE TERMS. The following additional terms and conditions apply with respect to the Services designed for use on an Apple iOS-powered mobile device (“iOS App”):
a. You acknowledge that these Terms and Conditions are concluded between you and us only, and not with Apple. We, and not Apple, are solely responsible for our iOS App and the services and content available thereon.
b. You agree that your license to use the iOS App is limited to an Apple iOS-powered mobile device that you own or control and that your use of our iOS App shall be subject to the Usage Rules set forth in Apple’s then-current App Store Terms of Service.
c. The parties agree that Apple shall have no obligation to provide maintenance and support services with respect to our iOS App.
d. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
e. You agree that Blustream, and not Apple, is responsible for addressing any claims by you or any third party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
f. You agree that Blustream, and not Apple, is responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
g. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
14. DISCLAIMERS. THE SERVICES AND THE APPLICATION ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS OF DATA TRANSMISSION, ACCURACY OF DATA OR DATA SETS, OR UPTIME AVAILABILITY. BLUSTREAM DOES NOT WARRANT THAT THE APPLICATION OR THE SERVICES WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. BLUSTREAM SPECIFICALLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OF ANY THIRD-PARTY DATA, AND YOU ACKNOWLEDGE THAT SUCH THIRD-PARTY DATA IS OUTSIDE OF BLUSTREAM’S CONTROL. BLUSTREAM DOES NOT WARRANT THAT THE SERVICES WILL ACCOMPLISH ANY OF YOUR SPECIFIC OBJECTIVES OR WILL OPERATE ERROR FREE. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES OF THIS AGREEMENT. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL THEIR ESSENTIAL PURPOSE. YOU FURTHER AGREE THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, YOU WILL NOT HOLD BLUSTREAM LIABLE FOR ANY FAILURE OF THE APPLICATION OR SERVICES OR FOR ANY LOSS OF DATA. YOU AGREE THAT YOU WILL NOT HOLD BLUSTREAM LIABLE FOR ANY THIRD-PARTY INFORMATION EVEN IF SUCH INFORMATION IS DISPLAYED ON, THROUGH, OR IN CONNECTION WITH THE APPLICATION OR SOFTWARE. YOU ALSO AGREE THAT BLUSTREAM SHALL NOT BE RESPONSIBLE TO YOU FOR ANY DAMAGES CAUSED BY DATA PROVIDED BY THIRD PARTIES, DELAYS RESULTING FROM HARDWARE AND SYSTEMS OWNED AND CONTROLLED BY THIRD PARTIES (INCLUDING WITHOUT LIMITATION YOUR OWN DATA TRANSMISSION SPEEDS), DATA ENTRY ERRORS, USER ERRORS, OR ANY OTHER LIMITATIONS, ERRORS, OR DELAYS, THAT ARISE DURING THE TERM OF THIS AGREEMENT THAT CANNOT BE PREVENTED OR MITIGATED BY BLUSTREAM.
15. LIMITATION OF LIABILITY. You acknowledge and agree that in no event shall Blustream be liable for any indirect, special, incidental, consequential (including, without limitation, lost profits, business interruption, or lost information), or other damages based in contract, tort or otherwise, rising out of your use of or inability to use the Application, even if Blustream has been advised of the possibility of such damages. You further acknowledge and agree that Blustream is not liable to you for any damage or alteration to your equipment including but not limited to computer equipment, handheld device or mobile telephones as a result of the installation or use of the Application. You also acknowledge and agree that the total extent of Blustream’s liability for any damage, injury or loss will be the price you paid to purchase the Blustream monitor. Note that some jurisdictions do not allow the exclusion or limitation of certain consequential damages, so some of the exclusions and/or limitations in this Section 15 may not apply to you.
16. INDEMNITY. You agree to defend, indemnify and hold harmless Blustream, its affiliates, employees, officers, agents, managers, members and successors and assigns from all damages and liability such persons may incur including, without limitation, reasonable attorneys’ fees, arising from or as a result of (i) you, or your employee’s, agent’s, or a third party’s misuse of the Application or Services in violation of these Terms and Conditions, or (ii) any violation of law by you, your employees, or agents. This obligation shall survive the termination or expiration of these Terms and Conditions and/or your use of the Application or Services.
17. GENERAL PROVISIONS.
b. Governing Law. These Terms and Conditions will be governed and construed under the laws of the State of Delaware without regard to conflict of laws. In the event of any disputes concerning this agreement, the parties agree to submit to the jurisdiction of Delaware.
c. Waiver/Severability. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of these Terms and Conditions is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of these Terms and Conditions shall remain enforceable.
d. U.S. Export Controls. The Application may be subject to United States export laws, including the including the United States Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release any Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule or regulation. You shall comply with all applicable laws, rules, and regulations, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the United States.
e. Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE APPLICATION OR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
f. Waiver of Jury Trial. YOU HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE APPLICATION OR SERVICES.
g. Force Majeure. If the performance of any part of these Terms and Conditions is prevented, hindered, delayed or otherwise made impracticable by reason of any cause or event not within the reasonable control of such party and without its fault or negligence that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
h. Contact Us. Please direct all questions, complaints, or claims with respect to the Application, Services, or these Terms and Conditions to the following:
95 Prescott Street
Worcester, MA 01605
Phone: 1 (508) 635-0166