Privacy is Bluedot Innovation’s core business. It follows the principle of ‘privacy by design’. This means the Bluedot Point SDK and platform have been designed from the ground up to lead the industry on privacy. Unlike other location services platforms, Bluedot Innovation doesn’t track end users or collect their personally identifiable information. All data is anonymized so end-users can’t be identified.
Bluedot actively seeks to protect the privacy and data of individual end users of mobile applications (“End Users”). To this end, we have implemented a range of industry-leading privacy safeguards (outlined below) as core elements in the design, development and operation of the Software, Services and Site.
Our Software, Services and Site have been designed so that we do not collect any personally identifiable information about the End User or track the movement of the End User.
Our clients and partners are entities or individuals, such as companies or application developers, that use the Software, Services and Site to develop, distribute and manage location-based platforms and mobile applications (“Client”, “Partner”, “You”, “Your”). Our Clients are not the End Users. We, however, recognize, respect and actively seek to protect the End User’s privacy.
Our approach to privacy protection has been developed in consultation with the former Australian Privacy Commissioner, Malcolm Crompton, and his firm, Information Integrity Solutions, a leading global consultancy on privacy and data protection.
“Privacy by Design” to protect the privacy of End Users
Bluedot has structured its data collection and storage model according to the principle of ‘Privacy by Design’. This ensures that the privacy and data protection of End Users are considered core objectives, with safeguards integrated in the design and development of a technology or product, rather than being applied after development is complete.
As a result, our data collection and storage model has been designed so that we do not collect any personally identifiable information about, or track the movement of, the End User.
When an End User begins using an application that contains or connects to Bluedot Software or Services, a randomized unique reference number (“Install Reference”) is issued to that particular instance of the downloaded application. The Install Reference is not connected to the personal information of an End User or their device.
If an End User is using multiple applications that use Bluedot Software or Services on the same device, then multiple, distinct, random Install References will be issued to ensure that the End User cannot be identified by associating the multiple applications they are using with a single overarching ID or reference number. We do not combine datasets for multiple Install References in order to prevent inferences or patterns emerging that could directly or indirectly identify an End User.
We do not continuously, periodically or intermittently track an identifiable End User or record their precise or general location. The location of a device with a random Install Reference is identified when that device performs an Action (e.g. sends a notification or plays a tone) upon its entry into a geographic area (known as a ‘Zone’, which comprises one or multiple related Geofences, Geolines or Beacons) that has been pre-defined by the Client or Partner for use in an application. The Client or Partner may also set particular Conditions that must be met for an Action to be triggered (e.g. entry into a Zone by the End User within a pre-defined date and time range). We record the following data from the device at the point an Action is initiated:
- randomized Installation Reference associated with a particular instance of a downloaded application;
- geographic coordinates (usually longitude and latitude) associated with the location where the action was initiated;
- estimated accuracy with which the device is being located;
- date and time the action was initiated;
- speed the device was moving;
- make and model of the device;
- software platform (Android or iOS) and version of the operating system on the device;
- bearing and orientation of the device; and
- orientation of the device’s screen (i.e. landscape or portrait).
Once this final stage of anonymization has been carried out, the data is passed on to a separate analytics platform and all data that was originally recorded is permanently deleted from the servers that are not used for analytics.
The Client and Partners (not End User) information we receive or collect
You may browse the Site without a Bluedot account but an account must be created to use the Software or Services. We may collect the following information from our Clients and Partners (not the End User) when they create a Bluedot account:
- legal name of the Client or Partner, such as the registered name of the entity that owns the application;
- name and contact information of the representative acting on behalf of the Client or Partner;
- email address and password to access the Bluedot account; and
- industry, size, intended use of the Software and Service and other similar information.
The Client or Partner’s user name, password and Application ID created or issued during the registration process may be requested when logging in subsequently.
We reserve the right to periodically contact our Clients or Partners to confirm that the information held is correct and up to date.
How You can access, correct or delete their information
You have the right to access, correct or request the deletion of information we hold about You. This may be done through the ‘Account Management’ function available in the Bluedot platform, Point Access, which is accessible on the Site. Such requests can also be made in writing to firstname.lastname@example.org or 180 Sansome Street, San Francisco, CA, USA, 94104 or 11 Agnes Street, East Melbourne, Victoria, Australia, 3002. We will endeavor to respond to any requests within 10 working days.
How payment and billing information is collected, stored and used
The Client or Partner also provides payment and billing information (“Payment Information”) when creating a Bluedot account or updating billing details. Payment Information is directly provided to and stored by the payment gateway provider, Braintree Payments Inc. (“Braintree”), through its web service that is integrated into the Site. The payment process is carried out in accordance with our Billing Policy.
Payment Information is not persisted, stored or retained in any way by Bluedot.
We also collect information about Your use of the Software, Services and Site, including billing history, level of usage and other similar information.
How we use the Client and Partner (not End User) information we receive or
We use the Client and Partner information referred to above for the following purposes:
- provide, operate and maintain the Software, Services and Site;
- communicate with You about Your account or respond to Your requests or enquiries, tailor the information we send or display to You, and for similar service purposes;
- generate aggregate and anonymous reports for You about the usage of the Software and Services in or by Your application;
- process and issue bills, and charge payments for use of the Software and Service;
- provide You with information about our company or products that we believe may be of interest, including by sending promotional e-mails (from which You may opt out); and
- to improve the design and delivery of, and better understand how You use, our Software, Services and Site.
How we disclose Client and Partner (not End User) information
We will only disclose the Client and Partner information we collect or receive through our Software, Services and Site in the following instances:
- if required by law, legal process, governmental entity or other relevant authority;
- in the event of the sale or dissolution (bankruptcy) of assets, in whole or in part, of Bluedot or any of its affiliates;
- to our contractors or service providers to the extent required to provide services or perform functions on our behalf;
We may share aggregate and/or non-personally identifiable information with third parties for marketing, research or other similar purposes. We will not disclose the personally identifiable information of Clients and Partners to third parties for such purposes without Your consent.
Personally identifiable information on End Users is not collected by Bluedot and will therefore not be disclosed, including for any of the above purposes.
Visitors to the Site
By using our Sites or Services, you agree that we may collect cookies or other general information, such as the number of views and the length of time spent on the Site by visitors, in order to optimize the Site or Services and enhance Your experience using our Site or Services.
Third party links
We may send You emails from time-to-time about information that we believe may be of interest to You, including news, special offers or information about products or services. You may opt-out from receiving promotional emails at any time by following the link and instructions contained in these emails, or by requesting that such emails no longer be sent to You at email@example.com.
Please note that it may take up to 10 business days for us to process opt-out requests. If You opt-out of receiving promotional emails, we may still send You e-mails about Your account or the Software and Services You use, or for other service purposes.
Consent to transfer information
If You are located outside of the Australia, please note that the Client and Partner information we collect or receive may be transferred to and processed in Australia. By using our Site and Services, You consent to the transfer and processing of Your information in Australia. Please note, Australian data protection laws may not provide the same level of protection as other jurisdictions, such as the European Union. Your consent is voluntary. If, however, You do not consent, we will not be able to provide You with our Software or Services.
About data security
Bluedot takes the security of Client and Partner data seriously. We use a range of physical, technical and operational measures to secure the data we collect or receive from loss, misuse and unauthorized access, disclosure, alteration, and destruction, including, where appropriate, through password protection, encryption, and SSL.
Bluedot stores all Client and Partner-specific information, including usage data related to Bluedot accounts, within a secure, permanently hosted solution supplied by Rackspace and hosted in their data center in Sydney, Australia. Security protocols used to protect stored data within the Rackspace data center can be viewed here.
Rackspace uses leading security measures that are independently audited by third parties to ensure continued compliance and security. For example, Rackspace implements the following:
- physical security measures at data centers, such as biometric scanning, security camera monitoring and constant onsite security personnel;
- operations based security policies (such as ISO 27001/2) that are reviewed at least annually by third party auditors;
- network infrastructure security, such as complete, remote data redundancy;
- natural hazard controls for all data centers, including fire and flood detection and protection;
- human resources security, such as employee reference checks and security awareness training; and
- organizational security, such as assigning responsibility for oversight of security operations and governance, risk, and compliance activities.
Please be aware that despite our best efforts, we cannot and do not guarantee the complete privacy, security, integrity or authenticity of information. The Internet provides the opportunity for unauthorized third parties to circumvent safeguards and illegally gain access to information.
How to contact us and the dispute resolution process
Bluedot Billing Policy
This is the Billing Policy of Bluedot Industries, Inc., and Bluedot Industries Pty Ltd (“Bluedot”, “Company”, “us”, “we”, “our”), wholly owned subsidiaries of Bluedot Innovation, Inc. This Billing Policy explains how we calculate, invoice, charge, discount and refund payments for licensing fees, white labeling fees and other charges (collectively, “Fees”) that relate to the web sites owned by Bluedot, including www.bluedotinnovation.com, www.bluedot.com.au and other subsidiary or related sites (“Site”), the Bluedot Point SDK and other supporting or future software products offered by us (“Software”), and the supporting web service, Application Programming Interfaces and other services or materials provided by us (“Services”). This Billing Policy is subject to, and incorporates by reference, our licensing terms (“Terms”). Your use of the Software, Services or Site will be deemed to be your agreement to abide by all of the terms set out below. Bluedot’s clients and partners are entities or individuals, such as companies or application developers, that use the Software, Services and Site to develop, distribute and manage mobile applications (“Client”, “Partner”, “You”, “Your”). Bluedot’s clients are not the individual end users (“End Users”) of applications developed by Clients and Partners.
Bluedot’s Software and Services may be licensed for a minimum duration of 1 year or longer. Licenses renew automatically for further periods of the same duration as the initial license,
unless terminated earlier in accordance with the Terms.
Bluedot does not typically offer free trials or demonstration accounts.
Bluedot offers a range of pricing plans (“Plan”) that charge monthly Fees upfront for a set number of location-based actions per month (e.g. URLs opened, messages sent or ‘check-ins’
sent back to the server) (“Action”).
An action is initiated by an End User when they enter a pre-defined location and any associated conditions are satisfied (configured using the Software and Services) (“Trigger”). The total number of Triggers in a given billing period determines Your volume of usage (“Usage”). If more than one Action occurs simultaneously (e.g. message, vibration, audio) upon entry into the same pre-defined location then this will be billed as one Trigger rather than multiple Triggers.
You pre-select an applicable Plan. A Plan will apply based on Your Usage in a given month (“Billing Period”).
The Fees for the selected Plan will be charged even if the Usage in the Billing Period is lower that the Usage limit of the selected Plan or the Usage limit of a lower Plan. You may move up to a higher Plan at any time, however, any change in Plan may be applied in the next Billing Period.
Larger Plans typically have lower average fees per Trigger.
Custom pricing for enterprise Clients and Partners
Bluedot may develop custom pricing plans (“Custom Plan”) or Terms for Clients and Partners with high expected Usage or with unique business needs.
Custom Plans may require Bluedot to agree to and/or implement alternative arrangements to the standards Terms and this Billing Policy.
Custom Plans will be established through the mutual agreement of Bluedot and the Client and/or Partner.
Overages and Upgrades
The Fees charged for a Billing Period when Usage exceeds a given Plan (“Excess Triggers”) will be the total of: 1) the standard price of the Plan that has been exceeded; and 2) 3x the
average per Trigger price of the Plan that has been exceeded for each Excess Trigger in that Billing Period (collectively “Overages”).
If you are charged an Overage for a Billing Period, you may elect to pay the Overage and continue on the existing Plan that was exceeded or you may upgrade to a higher Plan for the
remainder of Your agreement (“Higher Plan”). If you upgrade to a Higher Plan then the Overages for the last Billing Period will be waived and the Fees for Higher Plan will be
charged for the last Billing Period.
Discounts for upfront payment
You will receive a 15% discount if you pay the total Fees for an annual license upfront.
You will receive a 20% discount if you pay the total Fees for a multi-year (two or more years) license upfront.
If you choose to pay upfront but then upgrade to a Higher Plan, you may do either of the following:
- Pay upfront for the difference between the original Plan and the Higher Plan (“Net Amount”) for the remainder of the 12 month period (prorated) and receive an equivalent discount on the Net Amount, subject to their being at least 3 months remaining on the initial license period; or
- Pay the Net Amount at the beginning of each Billing Period but at the undiscounted standard price.
An invoice or receipt summarizing the applicable Fees will be sent to Your registered email. Fees will be charged at the beginning of each Billing Period.
New Clients and Partners will be charged a pro-rated amount (calculated per day) on the applicable Plan for their first Billing Period.
If a Client or Partner terminates their use of the Software and Services in accordance with the Terms, they are liable for any outstanding Fees in full. The final billing period will not be prorated.
Bluedot works extensively with Partners that use the Software or Services in applications on behalf of the Partner’s business customers (“Customer”).
Bluedot may bill and charge either the Partner or Customer. This will be agreed to by the parties.
If Bluedot bills and charges the Customer, the Partner will continue to be bound, to the greatest extent possible, by the Terms and this Billing Policy.
Right to make changes
Bluedot reserves the right to make changes from time to time to the Fees and this Billing Policy. If it does so, it will provide at least 10 working days for the changes to apply or it may maintain their existing arrangements indefinitely or for a period of time (“Grandfathering”).
Bluedot may, at its discretion, agree to alternative arrangements to the standard terms and processes outlined in this Billing Policy.
You agree to Bluedot contacting you, such as via Your registered email or telephone number, to discuss Your Payment Information, applicable Fees and other matters related to billing, payment or refunds.
You are required to register a credit card or agree to monthly upfront electronic payments of invoices (“Payment Information”) to allow Bluedot to charge you the Fees for the Software
and Services used.
If paying by credit card, You can register Visa, MasterCard or AMEX credit cards. Bluedot may submit recurring charges to your credit card at the beginning of each billing period in
accordance with this Billing Policy and without further authorization from. Bluedot may continue recurring charges to your credit card until You provide notice in writing that You have terminated Your authorization to charge Fees to the Payment Information provided by You. Such notice will not affect charges submitted before Bluedot could reasonably act. In such circumstances, you will be required to provided alternative Payment Information to pay future Fees.
You must provide current, complete and accurate Payment Information in order to receive and/or continue using the Software and Services.
You must promptly update Payment Information if the details have changed (such as a change in billing address or credit card details).
You must promptly notify Bluedot if the listed credit card is cancelled or does not have sufficient funds for Bluedot to charge the Fees.
If You don’t maintain accurate and complete Payment Information, You agree that You continue to be liable for the Fees for the Software and Services used and that its Your responsibility to provide updated and accurate Payment Information as soon as possible to allow Bluedot to charge the Fees.
Currencies, taxes and third party fees and charges
Fees are charged in US Dollars. Fees do not include taxes, levies or other fees and charges that may be applicable in a given jurisdiction.
A conversion fee or other fees and charges may be charged by Your bank, financial institution or other third parties you interact with (“Third Party Fees”), including, but not limited to, fees related to payments that are made in currencies other than US Dollars. Bluedot does not charge, receive or control such Third Party Fees. Bluedot is not responsible for Third Party Fees in any way, including with respect to calculating, billing, charging or refunding Third Party Fees. You agree it is Your sole responsibility to be aware of, manage and pay Third Party Fees.
Clients and Partners with multiple applications
Clients and Partners may have multiple mobile applications that simultaneously use the Software and Services (“Multiple Apps”).
Usage across Multiple Apps will be aggregated and a relevant Plan will apply to total Usage by the Client or Partner. A single payment will be charged for Multiple Apps.
Failure to pay
If You fail to pay the Fees within fifteen (15) days of the Fees being incurred, Bluedot may suspend or terminate your Bluedot account or Your access to the Software and Services. Any
suspension or termination does not relieve You from paying any Fees that have been incurred in accordance with this Billing Policy and the Terms.
If You fail to pay within thirty (30) days of the Fees being incurred, Bluedot may seek to recover the Fees through a collection agency or seek legal action to recover the Fees or enforce our rights in accordance with this Billing Policy and the Terms. You agree that you will be liable for any costs associated with such recovery or legal action, including, but not limited to, legal fees, court costs, and collection agency fees.
Bluedot may charge a $30 dishonor fee if Your credit card payment is declined.
Refunds and disputes
There may be occasions, in accordance with this Billing Policy and the Terms, that Bluedot will refund a payment that has been charged. This will be considered, in consultation with You, on a case-by-case basis.
Refunds will be made to the Payment Information used to charge the payment being refunded.
We are committed to handling any questions or complaints in an effective, transparent and timely manner. Such enquiries should initially be sent to Bluedot (firstname.lastname@example.org) so that we are able to rectify breaches or errors.
Should we not handle your complaint in a satisfactory manner, the complaint may be passed on to the relevant Californian Government (United States) or Victorian Government (Australia) corporate dispute resolution program for mediation. If a resolution is not achieved, the complaint may be passed on to the appropriate legal authority in each jurisdiction to consider the matter.
BLUEDOT BILLING POLICY V4.1 – LAST UPDATED DATE: 2 JANUARY 2017
Terms and Conditions
- (a) “Additional Services” means any professional services beyond those that Bluedot is obligated to perform under Section 4.
- (b) “Affiliate” of a person means a person or entity that controls, is controlled by, or is under common control with that person.
- (c) “Bluedot Background Material” means any Bluedot Materials or Intellectual Property Rights developed independently of this Agreement, and any Improvements thereto (excluding Client Background Material).
- (d) “Client Application” means any mobile software application of the Client with which the Software is integrated or interfaced.
- (e) “Client Background Material” means any Client Materials or Intellectual Property Rights developed independently from this Agreement, and any Improvements thereto (excluding Bluedot Background Material).
- (f) “Hosted Service” means the service enabled by Bluedot’s back-end software platform, currently known as Bluedot Point Access, that is used to configure location-related rules and perform related analytics for applications powered by the Bluedot Point SDK.
- (g) “Improvements” means, in relation to Materials, any improvements, enhancements, modifications, adaptations, extensions, developments, mutations, applications, derivative works or technical advances to or of those Materials, whether or not protected by laws.
- (h) “Integrated Client Application” means the Client Application integrated with the Software.
- (i) “Intellectual Property Rights” means all present and future intellectual and industrial property rights conferred by statute, at civil or common law, or in equity and wherever existing, including but not limited to: (i) patents, computer code, inventions, designs, copyrights, database rights, trademarks, domain names, inventions, trade secrets, know-how, proprietary information and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration; and (ii) any application, registration, or right to apply for or register any of the foregoing.
- (j) “Licensed Materials” means the Software, Hosted Service, Public APIs, White Label Service, PoI Service and related services Bluedot provides under this Agreement, together with any documentation, updates, upgrades, modifications or improvements to the foregoing that Bluedot provides to the Client under this Agreement.
- (k) “Losses” means any losses, damages, fees, costs, expenses and claims arising out of a given circumstance.
- (l) “Materials” means any information, technology, software, reports, results, processes, discoveries, inventions, Intellectual Property Rights or other materials (whether in electronic, written, tangible or other form).
- (m) “Personal Information” means information obtained from or about an individual that personally identifies or reasonably can be used to personally identify or contact that individual, or that is required to be protected pursuant to applicable Privacy Law.
- (n) “Privacy Law” means any applicable statute, regulation, ordinance, code, standard or requirements of any governmental or quasi-governmental body that relates to individuals’ privacy.
- (o) “Public APIs” means a set of Application Programming Interfaces (APIs) that allows the Client to access and manage the functionality of the Hosted Service with, or in conjunction with, Bluedot’s standard web-based interface.
- (p) “Scope of Use” means the purpose of enabling the Client Application to provide the Client or its Users with location-based data or actions in relation to the Client’s business, using the Licensed Materials in accordance with Bluedot’s applicable documentation.
- (q) “Service Level Commitments” means the service level commitments of Bluedot as set forth, and as may be modified from time to time, in Support and Service Level Agreements.
- (r) “Software” means the software development kit for Android and iOS, currently known as the Bluedot Point SDK, that provides an optimized location-based-services capability for enterprise-level mobile applications, and that includes various APIs for integration and use in mobile applications, together with any updates, upgrades, modifications or improvements to the foregoing that Bluedot furnishes to the Client under this Agreement. The Software is further defined in Software and Services Description, as it may be modified from time to time.
- (s) “Statement of Work” has the meaning given in Section 4.3;
- (t) “Support Services” has the meaning given in Section 4.2.
- (u) “Unauthorized Use” has the meaning given in Section 3.5.
- (v) “User” means a person who downloads, uses or accesses a Client Application.
This Agreement is in effect from the Effective Date, continues for the Initial Term and thereafter continues automatically for successive periods equal to the greater of the period of the Initial Term or 12 months (each a “Renewal Term” and collectively with the Initial Term, the “Term”) unless (i) terminated earlier in accordance with this Agreement or (ii) either party notifies the other of non-renewal at least 60 days prior to the expiration of the then-current Term, in which case this Agreement will expire at the end of the then-current Term.
3. Software License
3.1 License Grant.Bluedot grants to the Client a license in the Territory for the Term solely to (i) use and reproduce the Software for integration with or into Client Applications; (ii) redistribute to Users the relevant portions of the Software, solely as integrated with or into Client Applications, provided such Users are subject to binding end-user licensing terms that protect Bluedot’s interests in the Software to at least the same extent as the terms of this Agreement; and (iii) use the Hosted Service, through Bluedot’s web interface and/or the Public APIs, to configure and control the location-based behavior of the Client Applications; in each case only for the Scope of Use. Bluedot will promptly provide access to the Software and related Public API key(s) necessary for Client to exercise its rights hereunder upon execution of this Agreement, and will provide instructions regarding the integration of the Software (which will be Client’s responsibility) and use of the Public API keys related to the Software.
3.2 Pilot Program. If so reflected on the Schedule of Key Terms, the Client will participate in Bluedot’s Pilot Program identified therein for the Fee set forth therein (if any). Notwithstanding any other provision of this Agreement, during the Pilot Program, (i) the Licensed Materials are provided “As-Is” and without any warranty whatsoever, (ii) in no event shall Bluedot be liable for damages of any kind (direct, indirect, incidental, or consequential) resulting from any defect in the Integrated Client Application, even if it has been advised of the possibility of such damages, (iii) the Client agrees to provide necessary information requested by Bluedot prior to the commencement of the Pilot to enable Bluedot to initiate and manage the Pilot, and (iv) the Client shall be responsible for any User claims for loss or damage resulting from inadequate warning to Users of (i) and (ii), including any failure to back up User data or to independently verify output of the Pilot Program.
3.3 Referral Partner Appointment. If so reflected on the Schedule of Key Terms, the Client is hereby appointed a non-exclusive referral partner with regard to the Licensed Materials during the Term and is granted a license to exercise the rights of a referral partner under Section 11 below.
3.4 Use by Affiliates. The Client may permit its Affiliate entities (if any) to exercise the rights granted under Section 3.1, provided that the Client ensures such Affiliate entities’ compliance with all limitations, restrictions, and other terms and conditions applicable to such rights under this Agreement. The Client will be responsible for its Affiliate entities’ acts and omissions in relation to the Licensed Materials as if they were the Client’s own acts and omissions. The Client may not otherwise sublicense any of the rights granted under this Section 3, unless agreed by Bluedot in writing.
3.5 Limitations and Restrictions. Any use of the Licensed Materials not expressly granted under Section 3.1 (each an “Unauthorized Use”), including specifically (i) use of the Licensed Materials in combination with equipment, programs or services not set out in the Scope of Use or otherwise authorized in writing by Bluedot; or (ii) any of the activities set out within Section 5.2), shall be prohibited unless expressly authorized in writing by Bluedot.
3.6 No Modification, etc. Subject to any rights not excludable by law, the Client will not modify, reverse engineer, disassemble or decompile the whole or any part of the Software or make unauthorized copies of the Licensed Materials for any purpose.
3.7 Independent Contractor Relationship. The use of the term “Referral Partner” is not intended to and does not create an agency or partnership relationship. The Client as Referral Partner is an independent contractor and is responsible for paying all taxes, employee benefit payments, insurance premiums and other similar charges for all persons engaged by it to perform services. No relationship of employment, agency, joint venture or partnership is formed by this Agreement or the performance of any services hereunder.
4.1 Hosted Service; Service Levels. Unless alternative hosting arrangements are specified in a Statement of Work:
- (a) Bluedot will host and operate the Hosted Service from a third-party data center.
- (b) Bluedot will use commercially reasonable efforts to meet or exceed the service levels set forth, and as may be modified from time to time, in Support Services and Service Levels, provided that the Client’s sole remedy for any actual failure by Bluedot to achieve any service levels will be the relevant service level credits as described in the Service Level Commitments.
4.2 Support Services. Bluedot will provide to the Client technical support services for the Licensed Materials as described, and as may be modified from time to time, in Support Services and Service Levels (“Support Services”), subject to the Client paying the Fees specified in Key Terms.
4.3 Additional Services. The parties may agree to have Bluedot provide to the Client certain Additional Services. Bluedot’s obligation to provide such Additional Services is conditioned on the parties’ execution of a corresponding written statement of work that: (i) expressly references this Agreement; (ii) defines the scope of the Additional Services; and (iii) sets forth the additional Fees to be paid by the Client for the Additional Services (each, a “Statement of Work”).
4.4 Timing; Conditions; Changes. Bluedot will use commercially reasonable efforts to perform the Support Services and Additional Services in accordance with any timetable specified in the Support Services and Service Levels or Statement of Work, but any timetable dates so specified are estimates only unless otherwise expressly agreed. Bluedot’s obligation to provide any services hereunder is conditioned upon (i) the Client’s provision of all information and cooperation reasonably necessary for Bluedot to efficiently perform the services and (ii) no Unauthorized Use or Event of Default by Client. Bluedot shall have the right to use any Client Background Materials made available to it, for the sole purpose of providing its services and fulfilling its other responsibilities hereunder.
5. Certain Client Responsibilities
5.1 Generally. The Client is solely responsible for (i) the content and operation of any Client Application and its compliance with all applicable laws and regulations and the terms of this Agreement and Scope of Use; (ii) any representation, product warranty, condition, guarantee, indemnity, undertaking, legal or regulatory requirement relating to the Client Application, and any liability relating to any breach thereof; (iii) preparing and enforcing end user license agreements in relation to Users’ use of Client Applications; (iv) ensuring that its provision of Client Background Material, and the permitted uses of Client Background Material by Bluedot in accordance with this Agreement, will not violate any laws or regulations or infringe the rights, including Intellectual Property Rights, of any party; and (v) compliance with all applicable import and export laws and trade sanction regulations and all applicable commercial and public anti-bribery laws.
5.2 Other Restrictions. The Client will not, and will not permit others to (i) use, sell, rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, timeshare or use for any service bureau purposes the Licensed Materials or any portion thereof except as expressly permitted by this Agreement, and will immediately notify Bluedot of any unauthorized access to the Licensed Materials of which the Client becomes aware; (ii) provide Users with direct access to any of the Licensed Materials or bypass or disable any security mechanisms used to protect the Licensed Materials; (iii) use any Licensed Materials or Bluedot Confidential Information to develop or operate a service that competes with the Licensed Materials; (iv) publish or disclose to third parties any evaluation of the Licensed Materials without Bluedot’s prior written consent; (v) use the Licensed Materials or supply any Integrated Client Application in connection with any mission critical application, such as for the operation of emergency services, nuclear facilities, air traffic control or life support systems, where the use or failure of the Licensed Materials could lead to severe injury or property or environmental damage; or (vi) use the Licensed Materials or supply any Client Application in connection with any product, service, application or use (including advertising) that Bluedot determines is likely to promote or constitute high-risk or illegal activity or involve Bluedot in litigation, government investigation or claims of legal or moral wrongdoing.
Fees for the Licensed Materials are set forth in Key Terms, and Fees for any Additional Services are set forth in the applicable Statement of Work. The Client agrees to be invoiced and to pay fees in accordance with Bluedot’s Billing Policy, as set forth, and as may be modified from time to time, in Billing Policy.
7. Representations and Warranties.
7.1 Mutual. Each party represents and warrants that (i) it has full power and authority to enter into and fulfill its obligations under this Agreement and (ii) it will carry out all of its activities relating to this Agreement in accordance with all applicable laws and regulations.
7.2 Bluedot. Subject to Section 7.3, Bluedot represents and warrants that (a) it will provide the Support Services and Additional Services, if any, with care and diligence and in a professional manner; (b) it owns the Licensed Materials and all Bluedot Background Material or has the necessary licenses, rights, consents and permissions to use the Licensed Materials and Bluedot Background Material to perform its obligations under this Agreement; and (c) the Licensed Materials will meet any applicable specifications set forth in the official Bluedot literature published as of the date of access to the Licensed Materials for the lesser of one year or the date such Licensed Materials are thereafter updated, upgraded, modified or improved as permitted by this Agreement .
The warranties and representations in Section 7.2 (b) and (c) do not apply to the extent that any breach of those warranties and representations is caused by Unauthorized Use or an Event of Default by the Client to meet its obligations under this Agreement. Bluedot does not warrant that the Licensed Materials or provision of any services will be uninterrupted and error free or that the Client or any Client Application will have continuous access to the Hosted Service.
7.3 Disclaimer. OTHER THAN WARRANTIES EXPRESSLY GRANTED UNDER SECTION 7.2 AND THOSE, IF ANY, THAT CANNOT BE DISCLAIMED OR EXCLUDED UNDER APPLICABLE LAW, BLUEDOT DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND UNDERTAKINGS IN RELATION TO THE LICENSED MATERIALS, SERVICES OR ANY DELIVERABLES TO BE PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM PRIOR COMMUNICATIONS, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, BLUEDOT DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS, TITLE, CONDITION, ACCURACY, OR SUITABILITY OF THE LICENSED MATERIALS (INCLUDING ANY DATA CONTAINED IN OR SUPPLIED IN RELATION TO THE LICENSED MATERIALS OR REPORTS GENERATED OR PRODUCED BY OR WITH THE AID OF THEM).
7.4 The Client. The Client represents and warrants that (i) it owns the Client Application and Client Background Material or has the necessary licenses, rights, consents and permissions therein to perform its obligations and enable Bluedot to exercise its rights under this Agreement; (ii) it has all necessary licenses, rights, consents and permissions to lawfully provide Bluedot with any Personal Information of its customers or Users that it provides to Bluedot in connection with this Agreement; and (iii) the supply, operation, use or possession of any Client Application, the use of the Software in connection with any Client Application, and the provision of any Personal Information of its customers or Users, complies with all applicable laws and regulations where it is used.
8. Confidentiality; Publicity; Privacy and Security.
8.1 Definition. “Confidential Information” means information that one party (or its agents or Affiliates) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Each party’s Background Material is its Confidential Information. The terms of this Agreement are the Confidential Information of both parties.
8.2 Confidentiality Obligations. The recipient will not disclose the discloser’s Confidential Information, except to employees, affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will use the Confidential Information only to exercise rights and fulfill obligations under this Agreement. The recipient may disclose Confidential Information when legally compelled by a court or other government authority. To the extent permitted by law, recipient will promptly provide the discloser with sufficient notice of all available details of the legal requirement and reasonably cooperate with the discloser’s efforts to challenge the disclosure. The recipient will ensure that its Delegates are also subject to the same or equivalent non-disclosure and use obligations.
8.3 No Rights. Except for the limited rights under this Agreement, neither party acquires any right, title, or interest in the other party’s Confidential Information.
8.4 Publicity. Neither party may make any public statement regarding this Agreement without the other party’s written approval, except as follows.
- (a) Upon execution of this Agreement, the parties will work with one another to agree upon the wording of a joint announcement in relation to the entering into of this Agreement. If the parties do not make a joint announcement within 60 days of the Effective Date, the Client agrees that Bluedot may issue its own announcement.
- (b) Within 90 days of the Effective Date, the parties will work with one another to agree upon the wording of a case study in relation to the use of the Licensed Materials. The Client will provide Bluedot with statistics and data, including but not limited to return on investment (ROI) figures, relating to the use and benefits of the Licensed Materials that are reasonably adequate to produce a case study. If the parties cannot agree to the wording of the case study within 90 days of the Effective Date, the Client agrees that Bluedot may issue its own case study. If Client does not agree to or provide adequate data for a case study, the Fees shall be increased 25% as a reasonable estimate of the related Losses incurred by Bluedot, and not as a penalty.
- (c) Each party agrees that the other may use its logo and screen shots of its customer interfaces on the other’s website or promotional material, subject to that party doing so in a manner that is consistent with the other’s usage guidelines.
- (d) The Client agrees that Bluedot may acknowledge its relationship with the Client in presentations, meetings and discussions with potential licensees of the Software. Client agrees to visibly display “Powered by Bluedot” in its marketing materials for any business-facing solution. Client will not use trademarks, trade names or service marks of Bluedot (whether registered or not) that would create confusion regarding Bluedot’s ownership of them.
9. Privacy and Data Security.
9.2 Disaster Recovery Plan. During the Term, Bluedot will maintain and use good-faith efforts to comply with a commercially reasonable disaster recovery plan. Bluedot’s disaster recovery plan, which may be modified from time to time, may be viewed at Disaster Recovery Plan.
9.3 Security Breaches. Each party will use and maintain standard industry processes and applications to safeguard against, minimize the impact of, and comply with all applicable laws and regulations related to, any unauthorized access to, disclosure or use of, or tampering with Personal Information that a party collects or otherwise handles in the course of or in connection with this Agreement (each, a “Security Breach”) and promptly notify the other party of any such Security Breach of which it becomes aware, and of its efforts to remediate such Security Breach.
10. Ownership of Intellectual Property Rights
10.1 Licensed Materials, Company Background Material, and Improvements.
- (a) All Intellectual Property Rights in the Licensed Materials, any Improvements to the Licensed Materials, and Bluedot Background Material are and shall remain exclusively the property of Bluedot. To the extent that any Intellectual Property Rights in Improvements to the Licensed Materials and/or Bluedot Background Material vest in the Client, the Client assigns and agrees to assign to Bluedot all of those rights.
- (b) All Intellectual Property Rights in Client Applications and Client Background Material are and shall remain the exclusive property of Client. Unless otherwise expressly agreed in a Statement of Work, all customization, improvements or modifications of the Client Application or Client Background Materials shall be the exclusive property of the Client, provided that any such customization, etc. of the Client Application made by Bluedot to better integrate it with or improve its operation or functionality with the Software shall be owned by Bluedot and licensed to the Client on a nonexclusive basis during the Term.
- (c) Each party will execute and ensure that its personnel execute all documents that are reasonably requested as necessary or desirable to effect the assignment of, and perfect the title of the other party to, the Intellectual Property Rights of the other party, as specified in this Section.
- (a) As used herein (i) “Client Data” means data that is generated from the operation of the Client Application, excluding Bluedot Data; and (ii) “Bluedot Data” means anonymized data collected from the interaction of the Software with the Hosted Service when a location-based event occurs, including but not limited to account details of the Client, installation reference, geographical coordinates, zone name, zone ID, geofence name, geofence ID, date and time of the event, make and model of device, name and version of operating system, bearing and orientation of the device, orientation of the device’s interface, speed the device is travelling, and the estimated accuracy with which the device is being located.
- (b) As between the parties, all Intellectual Property Rights in Bluedot Data are owned by Bluedot, all Intellectual Property Rights in the Client Data are owned by the Client; and to the extent that any data stored in, processed by or retrievable from the Hosted Service or Software is neither Bluedot Data nor Client Data, as between Bluedot and Client, all Intellectual Property Rights in that data vest exclusively in Bluedot or its licensors and are assigned to Bluedot immediately upon their creation. Each party may make use its own data and exercise its own Intellectual Property Rights in any lawful manner.
- (c) The Client grants to Bluedot a perpetual, irrevocable, non-exclusive, sub-licensable, transferable, royalty free, worldwide license to use, modify, reproduce and communicate the Client Data (subject to Bluedot’s obligations with regard to Personal Information) (i) in connection with Bluedot’s provision of the Licensed Materials and any associated services under this Agreement; and (ii) for Bluedot’s internal business purposes including testing, research and development purposes and in development of any further services or products for the Client and/or its Users.
10.3 No Implied Assignment. Nothing in this Agreement will be construed, as transferring or assigning to the Client, or as requiring Bluedot to transfer and assign, any intellectual property rights (including those in any work product or deliverables under a Statement of Work), unless the parties have executed a Statement of Work for custom development services that expressly assigns rights to the Client with respect to deliverables identified under that Statement of Work.
11. Clients Appointed as Referral Partners
- (a) Client Rights. If Client is identified as a referral partner in the Key Terms, Client shall have the following additional rights and responsibilities:
- (i) Client shall make commercially reasonable efforts to provide qualified referrals to Bluedot by identifying prospective customers who have expressed interest in Bluedot Licensed Materials or related services for uses that would be permissible under this Agreement (“Referrals”). All Referrals shall be communicated in writing, subject to acceptance by Bluedot, at Bluedot’s sole discretion. Client shall not be entitled to any referral fee or other payment resulting from Referrals to any client or company to whom Bluedot has previously provided, or with whom it has commenced discussions regarding, its products or services.
- (ii) Client may prepare and distribute marketing materials and use Bluedot trademarks, service marks and logos (“Marks”) to promote Bluedot products and services, subject to Bluedot’s prior written approval, which will not be unreasonably withheld or delayed. No such materials shall disclose any Confidential Information of Bluedot without its express permission.
- (iii) Client shall accurately represent the qualities and features of Bluedot products and services, and shall be solely responsible for any representation or statement regarding Bluedot or its products or services made by Client or its agents or representatives that is not contained in Bluedot’s then-current published marketing materials.
- (b) Payment of Referral Fees. If, within one hundred and eighty (180) days of the applicable Referral, the referred customer enters into a written agreement with Bluedot for products or services, then Client shall be entitled to receive the referral fees specified in Key Terms, exclusive of any taxes, duties and processing fees, received by Bluedot from the referred customer (the “Referral Fee(s)”). Bluedot will pay the applicable Referral Fee, if any, to Client within thirty (30) days following the end of each fiscal quarter in which the corresponding payment was received from the referred customer.
- (c) Resolution of Conflicts Regarding Referral Fees. Bluedot shall not be liable for more than a single Referral Fee for each single Referral. If any third party should make a claim for any Referral Fee or part thereof, then the Referral Fee earned for any closing hereunder shall be apportioned among the claimants as determined by Bluedot in its sole discretion. Bluedot shall make a reasonable effort to consult with all relevant parties and provide non-confidential evidence regarding any apportionment. The decision of Bluedot regarding the apportionment of any Referral Fee due and payable hereunder shall be final and unappealable.
12.1 Bluedot Indemnity. Bluedot will indemnify, defend and hold harmless the Client, its Affiliates, and its agents and representatives from and against any claims, demands, suits or proceedings made or brought by a third party (“Claims”) to the extent they are based on an allegation that the Licensed Materials, as furnished by Bluedot and used in accordance with this Agreement, infringe any third-party Intellectual Property Rights. Bluedot’s indemnity obligation is conditional upon the Client (i) notifying Bluedot in writing as soon as practicable of any infringement or alleged infringement; (ii) not making any admissions in relation to any infringement or alleged infringement; (iii) giving Bluedot or its nominee the right to conduct the defense of such a claim, including negotiations for settlement or compromise prior to and after the institution of legal proceedings; and (iv) providing Bluedot with reasonable assistance in conducting the defense of such a claim at Bluedot’s cost. Bluedot may seek to mitigate the impact of any claim or potential claim covered by this Section 12 by modifying the Licensed Materials to make them non-infringing, and/or by suspending or terminating the Client’s license to use the Licensed Materials upon reasonable notice to the Client (provided, that Bluedot will refund to Client the unearned portion of any fees prepaid by Customer for the period affected by the suspension or termination).
12.2 Limitation. Bluedot is not required to indemnify the Client under Section 12.1 if the Claim relates to (i) Unauthorized Use; (ii) the Client Background Material; (iii) any combination of the Licensed Materials with products, services, methods, content or other elements not furnished by Bluedot (including but not limited to the Client Background Material and Client Application, or any product, platform or service in which the Software is bundled and supplied by a third party), if the Licensed Materials themselves do not infringe the asserted Intellectual Property Rights; or any Event of Default by Client.
12.3 Client’s indemnities. The Client will indemnify, defend and hold harmless Bluedot, its Affiliates, and its and their agents and representatives from and against all Claims based on (i) any breach by the Client of its obligations owed to Bluedot under this Agreement or any of its representations or warranties made herein; (ii) any allegation that the Client Background Material, or the use of the Client Background Material by Bluedot in accordance with this Agreement, infringes that party’s Intellectual Property Rights; or (iii) any allegation in any way connected with the supply, possession or use of a Client Application (or the Software integrated therein), except to the extent Bluedot is required to indemnify the Client in respect of that allegation pursuant to Section 12.1.
13.1 Exclusion of damages
SUBJECT TO THIS SECTION 13, BLUEDOT IS NOT LIABLE TO THE CLIENT OR TO ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE; EXEMPLARY OR PUNITIVE DAMAGES; COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, REVENUE, PROFITS, BUSINESS, CONTRACTS, REPUTATION OR OPPORTUNITY; BUSINESS INTERRUPTIONS; LOSS OR CORRUPTION OF DATA; INCLUDING ANY SUCH LOSSES THAT ARE ALLEGED TO RESULT FROM ANY WRONGFUL OR NEGLIGENT ACT OR OMISSION OF BLUEDOT OR ANY OF ITS PERSONNEL.
13.2 Maximum liability; Exceptions.
The maximum aggregate liability of Bluedot for all Losses arising out of or in connection with any Claim under this Agreement, whether arising under contract, statute, tort or any other theory of liability is limited to the sum of the amounts paid by the Client to Bluedot in relation to the specific product or service to which the Claim relates in the 6-month period immediately prior to the notice of the Claim. Nothing in this Section 13 limits Bluedot’s liability with respect to damages for personal injury, including sickness and death, or for any fraudulent acts or omissions.
14.1 Termination for Default. If either party materially breaches this Agreement, ceases to conduct business in the ordinary course or becomes insolvent or unable to perform its obligations under this Agreement (each of the foregoing conditions, an “Event of Default”) and does not cure said Event of Default within 30 days after the other party provides written notice thereof, then the other party may terminate this Agreement by written notice to the defaulting party.
14.2 Consequences of expiration or termination. On the expiration or termination of this Agreement, (a) the parties ongoing rights, obligations and licenses under this Agreement and any Statements of Work (including availability of the Hosted Service) shall terminate, other than the obligation to pay for items or services already then provided, which shall be immediately due and payable and (b) on the termination of this Agreement for any reason each party will cease using, and either return to the disclosing party or permanently destroy or delete, all Confidential Information of the disclosing party.
14.3 Clauses surviving termination. Despite any other provision of this Agreement, this Section 14 and Sections 8, 9, 10, 12, 13, 15, 16, 17 and 18 survive the expiry or termination of this Agreement.
15. Force majeure.
Where any failure or delay by a party in the performance of its obligations under this Agreement is caused, directly or indirectly, by any act, event or cause, other than a lack of funds, that is beyond the reasonable control of that party (a “Force Majeure Event”), the party is not liable for that failure or delay, and its obligations affected by a Force Majeure Event are suspended during the Force Majeure Event.
Each party acknowledges that the other party invests substantial time and resources in training its staff and contractors. The parties therefore agree that during the Term and for 12 months thereafter, neither party will solicit or encourage any employee or contractor of the other party with whom that party has come into contact through this Agreement, to cease work for the other party. .
17. Third party material.
If the parties determine that material not owned or licensed by Bluedot or the Client (“Third Party Material”) is required, or support services in relation to Third Party Material are required, it shall be procured at Client’s expense and owned by Client, without warranty of Bluedot, unless otherwise agreed.
18.1 Entire Agreement; Amendment; Waiver. This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes, terminates and replaces all prior agreements and communications between the parties concerning such subject matter. This Agreement, and any provision of this Agreement, is not to be construed to the disadvantage of a party because that party was responsible for its preparation. This Agreement cannot be amended or varied except in writing signed by the parties. A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of the power or right. A waiver of a breach does not operate as a waiver of any other breach or of the right to enforce any other provision hereof. If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of this Agreement will remain in effect.
18.2 Assignment. Neither party may assign, delegate, sublicense or transfer its rights or obligations under this Agreement, including any license granted hereunder, without the prior written consent of the other, except that either party may make such an assignment to a successor in interest to all or any of its business lines or activities other than an assignee of Client that Bluedot determines, in its sole discretion, is a competitor of Bluedot or is engaged in any business in a manner that could conflict with any rights of exclusivity that Bluedot has granted or is in the process of negotiating with any other customer or prospective customer of Bluedot. Upon any such assignment by Client, Bluedot may either (i) decline to expand the relationship beyond the business division represented by Client’s then-current business or (ii) adjust Fees or services to reflect the changed scope of the relationship. Subject to the foregoing, this Agreement binds and benefits the parties and their respective successors and permitted assigns.
18.3 Governing law; Disputes. This Agreement is governed by and will be construed in accordance with the Applicable Law, excluding (i) any law thereof to the extent it would apply the law of any other jurisdiction, and (ii) the United Nations Convention for the International Sale of Goods. The parties submit to the exclusive jurisdiction of the courts in the jurisdiction whose laws are the Applicable Law in respect of all matters relating to this Agreement, and waive any objection to such jurisdiction. The parties will attempt to resolve any dispute under this Agreement informally for a period of at least 30 days before either party may commence legal action, except where such delay could create irreparable harm.
18.4 Notices. Any notice or similar communication to or by a party hereunder will be in writing and may be given by personal service, by postal or express delivery service, or by email.
18.5 Miscellaneous. If this Agreement consists of signed counterparts, each is an original and all of them together constitute the same document. Bluedot may subcontract the performance of any of its obligations under this Agreement and/or perform any such obligations through an Affiliate of Bluedot. Nothing in this Agreement may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary between the parties.
End of Terms and Conditions
1. Provision of Support Services
Bluedot will use commercially reasonable efforts to provide or procure technical support services for software and services licensed by clients (“Support Services”) in accordance with the applicable Service Levels, subject to clients’ sole remedy for any failure by Bluedot to achieve an applicable Service Level being the relevant Service Level Credits. Such Service Levels and Service Level Credits apply to Support Services only if a client has a written license or pilot agreement with Bluedot and is paying fees for the relevant software and services.
2. Support Services during Business Hours
2.1 Support Services will be provided between:
- 9:00 a.m. and 6:00 p.m. United States Pacific Time; and
- 9:00 a.m. and 6:00 p.m. Australian Eastern Standard Time (collectively “Business Hours”) on business days (excluding public holidays and weekends).
2.2 Support Services will be facilitated through an online management system when clients submit a request for Support Services in accordance with clause 2.1 (“Support Request”) to Bluedot via either of the following:
2.3 All Support Requests will be prioritized according to its Severity Level (defined below).
2.4In submitting a Support Request, a client will initially designate a Severity Level to the Support Request and provide directions on how it would like the Support Request handled. Bluedot reserves the right to change the designated Severity Level based on the description of the impact of the relevant Support Issue and Severity Level criteria (outlined below).
2.5 Upon receipt of a Support Request, Bluedot will:
- (a) log and provide the client acknowledgement of the Support Request; and
- (b) initiate the resolution of the Support Request in accordance with the designated Severity Level.
3. Additional Support Services
3.1 The parties may agree to arrangements for additional Support Services in accordance with Bluedot’s then-current standard rates.
4. Services outside the scope of Support Services
4.1 To avoid doubt, the scope of Support Services does not include:
- (a) modifying clients’ mobile applications or other systems;
- (b) developing new versions of Bluedot’s software or services;
- (c) modifications or adaptations to enable Bluedot’s software to operate on:
- (i) additional operating systems other than Android and iOS;
- (ii) new versions of compatible mobile devices;
- (iii) incompatible mobile devices;
- (d) first-line assistance or interaction with end-users;
- (e) tailored training or non-standard assistance not expressly agreed to in writing;
- (f) a specific guaranteed minimum number of support or development hours. Bluedot will provide Support Services in accordance with this policy upon request; and
- (g) third-party hosting infrastructure and services (“Hosted Service”).
4.2 Any services clients would like to obtain beyond the scope of Support Services will only be provided if the parties agree in writing that they will be provided by Bluedot as additional services.
Service Level Agreement
5. Service Levels and Credits for Hosted Service
On request, if Bluedot does not meet the Availability Service Levels, as set forth below, for the Hosted Service (that is, should the Hosted Service be available for less than 99.95% of the billing cycle, excluding scheduled downtime for maintenance and other similar purposes), Bluedot must pay to the its clients the applicable Service Level Credits (in the form of a refund of a proportion of the relevant fees charged to its clients for the Hosted Service in the applicable billing cycle in which those Availability Service Levels are measured), which will constitute the client’s sole and exclusive remedy for any Hosted Service unavailability. The applicable proportion of the Fees that will be refunded will be determined in accordance with the following table:
|Service Level||Availability Service Level||Proportion of Fees to be refunded|
|1||99.95% – 99.90%||10%|
|2||99.90% – 99.85%||20%|
|3||99.85% – 99.80%||30%|
|4||99.80% – 99.75%||40%|
|5||99.75% – 99.70%||50%|
|6||99.70% – 99.65%||60%|
|7||99.65% – 99.60%||70%|
|8||99.60% – 99.55%||80%|
|9||99.55% – 99.50%||90%|
|10||99.50% and below||100%|
6. Service Levels and Credits for Support Services
6.1 Severity Levels
Bluedot will respond to incidents based on the severity of the incident and the actual or potential effect on the provision and operation of the relevant Bluedot software or service. All Support Requests will be prioritized according to the following criteria:
- (a) Severity Level 1 – Critical Incident: complete loss of processing and/or functionality, or a very high level of operational difficulty and service unavailability. Requires rapid corrective action.
- (b) Severity Level 2 – Minor Incident: degraded processing, functionality and/or operations of the Service but without a complete or near-complete loss of service. This incident requires a prompt response, however, the urgency is less than a Level 1 incident because of a less immediate, impending or significant impact on the operation of clients’ systems and applications; and
- (c) Severity Level 3 – Enquiry: incidents that are not Severity Level 1 or Severity Level 2, and do not have an impact on service functionality, typically consisting of standard support enquiries or requests,
- (each a “Severity Level”).
6.2 Service Levels for Response times
For each Support Request, Bluedot will respond to the its clients within the following timeframes (“Response Time Service Levels”) for each Severity Level of the Support Request.
|Severity Level||Response Time|
|Severity Level 1||2 hours|
|Severity Level 2||4 hours|
|Severity Level 3||8 hours|
6.3 Service Levels for Rectification times
For each Support Request, Bluedot will use commercially reasonable efforts to rectify the Support Issue within the following standard timeframes (“Rectification Time Service Levels”) for each Severity Level of the Support Request.
|Severity Level||Rectification time|
|Severity Level 1||8 hours|
|Severity Level 2||48 hours|
|Severity Level 3||72 hours|
6.4 Service Level Credits
- (a) On request, if Bluedot does not meet the Response Time Service Levels and Rectification Time Service Levels, Bluedot must pay to the client the applicable Service Level Credits (in the form of a refund of a proportion of the fees charged to the its clients for the specific software or service, if any, in the applicable billing cycle in which those service levels are measured). The applicable proportion of the Fees that will be refunded will depend on the Severity Level and the Response Time and Rectification Time, as set out in the tables below.
- (b) For Severity Level 1 incidents, the following proportions will apply:
- (c) For Severity Level 2 incidents, the following proportions will apply:
- For Severity Level 3 incidents, the following proportions will apply:
|Response Time||Rectification Time||Proportion of Support Services Fees to be refunded|
|Up to 2 hours||Up to 8 hours||0%|
|2 – 4 hours||8 – 6 hours||12.5%|
|4 – 6 hours||16 – 24 hours||25%|
|6 – 8 hours||24 – 32 hours||37.5%|
|8 – 10 hours||32 – 40 hours||50%|
|10 – 12 hours||40 – 48 hours||62.5%|
|12 – 14 hours||48 – 56 hours||75%|
|14 – 16 hours||56 – 64 hours||87.5%|
|16 hours and above||64 hours and above||100%|
|Response Time||Rectification Time||Proportion of Support Services Fees to be refunded|
|Up to 4 hours||Up to 48 hours||0%|
|4 – 8 hours||48 – 96 hours||12.5%|
|8 – 12 hours||96 – 144 hours||25%|
|12 – 16 hours||144 – 192 hours||37.5%|
|16 – 20 hours||192 – 240 hours||50%|
|20 – 24 hours||240 – 288 hours||62.5%|
|24 – 28 hours||288 – 336 hours||75%|
|28 – 32 hours||336 – 384 hours||87.5%|
|32 hours and above||384 hours and above||100%|
|Response Time||Rectification Time||Proportion of Support Services Fees to be refunded|
|Up to 8 hours||Up to 72 hours||0%|
|8 – 16 hours||72 – 144 hours||12.5%|
|16 – 24 hours||144 – 216hours||25%|
|24 – 32 hours||216 – 288 hours||37.5%|
|32 – 40 hours||288 – 360 hours||50%|
|40 – 48 hours||360 – 432 hours||62.5%|
|48 – 56 hours||432 – 504 hours||75%|
|56 – 64 hours||504 – 576 hours||87.5%|
|64 hours and above||576 hours and above||100%|
7. Client Delays and Service Level Exceptions
- (a) Where reasonable and necessary to resolve a Support Request, the period of time Bluedot waits for the client to provide Bluedot with additional documentation, information or clarification or access to the client’s database or systems (“Client Delay”) will not be included in the measurement of Bluedot’s service level performance for that Support Request.
- (b) Bluedot will not be required to pay Service Level Credits in respect of a failure to meet the relevant service levels to the extent that such failure has been caused wholly or partially:
- (i) by a Force Majeure Event;
- (ii) by the client’s failure to perform its obligations as set out in the relevant licensing or pilot agreement;
- (iii) by a Support Issue that cannot be reproduced so as to be verified by Bluedot as an issue;
- (iv) where the incident that is the subject of the Support Request is not attributable to Bluedot’s software or services, or is caused by the client’s systems, applications or environments; or
- (v) a wrongful act or omission of the its clients,
- (each a “Service Level Exception”).
8. Cap on Service Level Credits
- (a) In no event will the total aggregate amount of Service Level Credits payable for a particular billing cycle exceed the total amount of the applicable Fees for the relevant Service (the “Credit Cap”) charged in that billing cycle.
- (b) If the total aggregate amount of Service Level Credits payable in any one billing cycle exceeds the Credit Cap for that billing cycle, then the Service Level Credits credited to the its clients for that month will be the Credit Cap for that billing cycle.
- (c) Service Level Credits exceeding the Credit Cap for a particular billing cycle in accordance with Section 4(b) of this Annex 3 do not carry forward into the calculation of Service Level Credits for future billing cycles.
In this Annex 3:
“Response Time” means, in relation to Support Requests submitted by the its clients, the time period (calculated from the point in time when Bluedot is notified of the Support Request) in which:
- (a) the Severity Level for the Support Request will be logged, acknowledged by and agreed with Bluedot; and
- (b) Bluedot shall initiate the resolution of the Support Request;
“Rectification Time” means, in relation to Support Requests submitted by the its clients, the time period (calculated from the point in time when Bluedot is notified of the Support Request) in which:
- (c) Bluedot shall initiate the resolution of the Support Request; and
- (d) the Support Request is resolved;
“Service Level Credit” means the amounts paid by Bluedot to the its clients in the form of a refund of a proportion of the relevant fees paid by the client for the specific software or services that are the subject of the Support Request; and
“Support Issue” means an issue related to clients’ use or incorporation of Bluedot’s software or services in relation to the client’s mobile application.
Disaster Recovery Plan
The Disaster Recovery Plan outlines the procedures to restore relevant data from the off-site secure back-up managed by Rackspace on servers at an alternative data center, in the event of Catastrophic Failure. Bluedot may, by written notice to its clients from time to time, update or replace this Disaster Recovery Plan with a commercially reasonable alternative plan as Bluedot deems appropriate to reflect changes with respect to its third-party data-center provider or such provider’s recovery plans and policies. As used herein, “Catastrophic Failure” is defined as a Force Majeure Event (such as fire, flood or any comparable event) that prevents the Rackspace data center from being able to provide hosting services for the Bluedot location service.
1. Alerts and Notifications
In the event of a Catastrophic Failure, inbuilt monitoring systems and alarms within the Rackspace data center activate to notify Bluedot directly, in addition to an official notification of the event by Rackspace. Once a notification is received, Bluedot will immediately notify the assigned contact provided by its clients with an explanation of the disaster event, including a non-binding resolution time based upon resolution times communicated to Bluedot by Rackspace.
A daily differential and weekly full back up of all data relating to its clients are kept within a secure centralized infrastructure in Rackspace’s data center. A copy of the back-up media is securely retained in an off-site location based on a retention rate of four weeks. Its clients’ data will be no longer than two weeks old when restored into a new environment. The off-site back-up storage frequency can be increased upon request by clients at the client’s cost.
A complete business continuity solution using a replica data center can also be established upon request by clients at the client’s cost if a real-time recovery capability is required.
3. Databases and server restoration after a Catastrophic Failure
In the event of a Catastrophic Failure, the following procedures will be executed to restore relevant systems and services, upon the receipt of a catastrophic failure notification from Rackspace.
The database and server restoration process:
- Bluedot will immediately notify its clients of the Catastrophic Failure and expected resolution time.
- Bluedot will initially restore the database from the offsite back up into an alternative public cloud environment, hosted by Rackspace, providing a fast restoration of service.
- Bluedot will restore application images from the off-site back up or images from the build systems.
- Public DNS entries will be switched to connect to the new hosting environment.
- Upon the restoration of the temporary service, Bluedot will notify its clients.
- Bluedot will then initiate the setup of an identical private, single tenanted environment as per the original system architecture, within the Rackspace Hong Kong data center.
- Bluedot will then restore application images from the temporary service within the Rackspace Hong Kong data center.
- Public DNS entries will be switched to connect to the new hosting environment.
- Upon the restoration of the permanent service, Bluedot will notify its clients.
4. Resolution times
From the point of receiving the Catastrophic Failure notification from Rackspace, Bluedot shall seek to:
- Restore the service to the temporary, public cloud, environment within 48 hours.
- Transition to the permanent hosting environment in the Rackspace Hong Kong data center within 15 business days from the completion of the temporary service restoration.
Clients should note, however, that expected resolution times are on a best endeavors basis and not guaranteed due to circumstances beyond Bluedot’s control.
5. Non-Disaster event outages and service disruptions
Outages and disruption events not considered to be a disaster or Catastrophic Event requiring Full Disaster Recovery are covered by Bluedot’s Service Level Agreement.