These are the Service Terms governing the provision of Services by Blue Sky Energy Technology Limited (“Blue Sky”), whose office is located at Unit C, 16/F, Nathan Commercial Building, 430-436 Nathan Road, Kowloon, Hong Kong, to (“Customer”), as referred to in an Order Confirmation. The Order Confirmation together with these Service Terms are herein collectively referred to as the “Agreement”. The Agreement is effective as of the date Customer signs the Order Confirmation (“Effective Date”).
Capitalized terms have the meaning described in this section or in the body of the Agreement.
“Customer Data” means all electronic data or information that Customer submits to the Software.
“Internet Connectivity Equipment” means any router and associated hardware required to set up Internet connectivity to enable an Internet connection to be connected to the Meter Equipment.
“Meter Equipment” means any energy or air quality meter or other environmental or building monitoring devices or appliance control device for use in connection with the Software.
“Order Confirmation” means a signed purchase order for Services made by the Customer.
“Service” means Blue Sky’s service of providing proprietary analytics Software-as-a-Service (“Software”), accessible through the Internet, that is intended for analyzing energy consumption, and/or air quality data, and/or other environmental or building data with monitoring and data downloading capabilities, and additional related services such as reporting, electronic alerts and notifications, educational material and engagement workshops, as described in the Order Confirmation.
“Term” means the period of Customer’s subscription to the Service as specified in an Order Confirmation, unless terminated earlier under Section 7 (Term and Termination).
“Third Party Products” means any products or services not developed by Blue Sky Technology.
“User” means an employee, member, director, partner, affiliate, consultant, contractor or agent that Customer authorizes to use the Service on Customer’s behalf.
2 PROVISION OF SERVICE
2.1 Delivery of Service. Blue Sky shall provide Customer with access to the Service for the number of Users specified on the Order Confirmation during the Term, including to the extent applicable, the sale and installation of Meter Equipment, necessary for the data delivery to the software, by Blue Sky to Customer, in the quantity, specification and installation location as set out in the Order Confirmation. All Meter Equipment sold to Customer will be the sole property of Customer, on payment in full by Customer for such Meter Equipment. A 12-month warranty on the Meter Equipment is provided by Blue Sky, starting from the date as set out in the Order Confirmation.
2.2 Use of Service. Customer shall use the Service and the data generated by the Software only for its intended purpose and Customer’s internal use and may not transfer the use of the Service to any third party.
2.3 Documentation. The main functions of the Software are described in the instructions and/or manuals made available by Blue Sky.
2.4 Service Level Agreement. Blue Sky shall use commercially reasonable efforts to make the Software available to Customer twenty-four (24) hours a day, seven (7) days a week, subject to the terms of the Service Level Agreement attached hereto as Schedule A.
2.5 System Requirements. Customer shall meet the minimum system requirements for access to the Software, which include desktop browsers: Google Chrome 78, Microsoft Edge 75, Mozilla Firefox 76, Apple Safari 12; and mobile operating systems: Android Nougat 7.1.1 and iOS 11.1. Users not using a supported browser may have a sub-optimal experience or may not be able to use certain features within the Software.
2.6 Internet Connection. Customer shall supply, an Internet connection to connect to each energy, building or environmental meter and/or WiFi Internet connection to connect to each air quality meter. The Customer may choose to connect the Meter Equipment to its own existing Internet connection or purchase Internet Connectivity Equipment from Blue Sky. If Customer has chosen to use its own existing Internet connection, then Customer shall configure the Internet connectivity to be able to connect with the Meter Equipment, with instructions supplied by Blue Sky. If Customer has chosen to purchase Internet Connectivity Equipment from Blue Sky, the details of which is set out in the Order Confirmation, then Blue Sky shall supply and install the Internet Connectivity Equipment at the premise designated on the Order Confirmation. All Internet Connectivity Equipment sold to Customer will be the sole property of Customer. A 12-month warranty on the Internet Connectivity Equipment and Internet connectivity configuration is provided by Blue Sky, starting from the date as set out in the Order Confirmation. Customer shall ensure a stable and continuously available Internet connection to allow continuous availability and accuracy of data to be sent to the Software. Blue Sky will display a real-time notice on the Software interface in the event that data cannot be delivered to the Software as a result of Internet connectivity interruption.
2.7 Third Party Products. Blue Sky may offer Customer the ability to use Third Party Products with the Service, subject to Customer’s agreement with any applicable terms and conditions relating to the use of those Third Party Products.
2.8 Data Archiving. All Customer Data collected submitted to the Software will be archived by Blue Sky up until termination of this Agreement and will be available for access by Customer. A fee for data extraction, transformation and delivery will apply for data collected and archived in periods not within the data delivery period as set out in the Order Confirmation.
3 RESPONSIBILITIES AND RESTRICTIONS
3.1 Customer Responsibilities. Customer shall: (i) comply with, and cause Users to comply with this Agreement and all applicable laws in connection with use of the Service; (ii) cooperate with Blue Sky so that Blue Sky can provide the Service, including using reasonable efforts to make people and information available; (iii) use reasonable efforts to prevent unauthorized access or use of the Software and promptly notify Blue Sky if Customer discovers any unauthorized access or use; (iv) assume full responsibility for reading and following all supplied manuals, instructions, warning labels, and ensuring that all personnel coming in contact with Meter and Internet Connectivity Equipment are properly instructed and trained in its use; (v) assume full responsibility for ensuring a continuous Internet connection is made available on the premise to allow continuous data collection and delivery to the Software (vi) be fully responsible for the maintenance of the Meter and Internet Connectivity Equipment, on expiration of the 12-month warranty, to ensure continuous data collection and delivery to the Software.
3.2 Restrictions. Only Users may use the Software and only with the account credentials issued to that User. Users may not share their account credentials. Customer shall not, and shall not permit any third party to: (i) use the Software except as expressly authorized under this Agreement; (ii) interfere with or disrupt the integrity or performance of the Software; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Software available; (iv) remove any title, trademark, copyright, or restricted rights notices or labels from the Software; (v) modify or create a derivative work of the Software or any portion of the Software; (vi) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code, object code or underlying structure or algorithms of the Software; (vii) keep Meter and Internet Connectivity Equipment secure from access by unauthorised persons; (viii) ensure that no trademarks or other notices or rights displayed on the Meter and Internet Connectivity Equipment removed, obscured or defaced and (ix) reverse engineer, decompile, disassemble or re-configure all or any part of the Meter and Internet Connectivity Equipment. You will (x) be liable for any failure of your Users to comply with the applicable terms of this agreement; and (xi) use the Service only in accordance with the Documentation and applicable laws and government regulations.
4.1 Fees. As consideration for its receipt of the Services, Customer must pay all fees and charges accruing to Customer’s account in accordance with this Agreement. Fees are quoted and payable in the currency as set out in the Order Confirmation. All payment obligations are non-cancellable and all amounts paid are non-refundable. Customer is responsible for paying all Fees for the entire Term, whether or not Users actually use the service. Customer must provide Blue Sky with an executed Order Confirmation, as a condition to being granted access to the Service.
4.2 Invoicing and Payment. Blue Sky shall invoice Customer according to the terms on the Order Confirmation. Customer shall provide Blue Sky with complete and accurate billing and contact information and promptly notify Blue Sky of any changes throughout the Term.
4.3 Overdue Fees. If Blue Sky does not receive all Fees by the due date, Blue Sky may charge interest on the unpaid balance at the rate of 3% per month, starting from the date the payment was due until the date paid. Blue Sky reserves all rights and available remedies to collect overdue Fees from Customer, including but not limited to suspending Customer’s access to the Service until all Fees are paid.
4.4 Payment Disputes. If Customer disputes an invoiced amount in good faith, Customer shall give Blue Sky written notice with detailed support of the dispute within 14 days of the date of the invoice. If Customer fails to do so, Customer waives its right to dispute that invoice, and the invoice will be deemed accurate and valid. This section does not waive Customer’s obligation to pay all undisputed Fees.
5.1 Definition. “Confidential Information” means oral, electronic or written information disclosed by a party that is designated confidential or that reasonably should be understood to be confidential given its nature and the circumstances of its disclosure. Customer Confidential Information includes, but is not limited to, Customer Data. Blue Sky Confidential Information includes, but is not limited to, information pertaining to the features, functionality and performance of the Service, pricing, and this Agreement. Confidential Information does not include information that: (i) is now or becomes generally known or available to the public without breach of this Agreement by the receiving party (the “Recipient”); (ii) was acquired by the Recipient without restriction on its use or disclosure before the information was received from the disclosing party (the “Discloser”); (iii) is obtained by the Recipient without restriction on its use or disclosure from a third party authorized to make the disclosure; or (iv) is independently developed by the Recipient without using or referring to the Discloser's Confidential Information.
5.2 Protection of Confidential Information. The Recipient may only use the Discloser’s Confidential Information in relation to implementation this Agreement. The Recipient shall maintain the confidentiality of the Discloser’s Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information (including but not limited to maintaining reasonable administrative, physical, and technical safeguards) and no less than a reasonable degree of care. The Recipient shall not disclose any of the Discloser’s Confidential Information except to Recipient’s employees, contractors and agents who need to know the information to provide the Service or in relation to an event described in Section 10.5 (Assignment), in which case Recipient shall cause these recipients to agree to and abide by commercially reasonable confidentiality terms. Each party has the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
5.3 Compelled Disclosure. If the Recipient is required by law or a valid court or government order to disclose any of the Discloser’s Confidential Information, then (to the extent permitted under law) the Recipient shall promptly notify the Discloser in writing of the required disclosure so that the Discloser may seek to protect its Confidential Information. The Recipient shall cooperate with the Discloser in seeking such protection. If the Recipient is required to disclose the Discloser’s Confidential Information, it shall disclose only the portion of the Confidential Information legally required and shall use reasonable efforts to obtain reliable assurances that the Confidential Information will be treated confidentially to the maximum extent possible.
6 PROPRIETARY RIGHTS
6.1 Blue Sky Intellectual Property. All Software, analyses, copyright and data base and/or other intellectual property developed by Blue Sky remains, at all times, sole property of Blue Sky for use, provision and modification at its sole discretion.
6.2 Customer Ownership and Licenses. Customer owns all rights, title and interest in and to Customer Data. During the Term, Customer grants Blue Sky a worldwide, non-exclusive, royalty-free, non-sublicensable (except as needed to provide the Service), non-transferable (except as described in Section 10.5 (Assignment)) right to access and use the Customer Data to provide the Service to Customer and to monitor and improve the Service.
6.3 Blind Data. Blue Sky may collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures and other information based on Aggregated Data (collectively, “Blind Data”). Blind Data will be owned solely by Blue Sky and may be used for any lawful business purpose without a duty of accounting to Customer. “Aggregated Data” means Customer Data that is: (i) anonymized and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources; and (iii) presented in a way which does not reveal Customer’s identity.
6.4 Feedback. If Customer provides Feedback, Customer grants to Blue Sky a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use the Feedback in the Service and any intellectual property Blue Sky develops. “Feedback” means recommendations, suggestions, enhancement requests or other feedback or any ideas, technology, developments, derivative works or other intellectual property related to the Service or any services or products provided by Blue Sky.
7 TERM & TERMINATION
7.1 Term. The Term begins on the Effective Date and ends on the Termination Date. “Termination Date” means the earlier of: (i) date on which all Services contemplated in the Order Confirmation have been delivered (subject to any extensions due to Downtime) by Blue Sky and fully paid for by the Customer; (ii) the date on which the parties mutually agree to terminate this Agreement in writing; or (iii) the date on which this Agreement is Terminated in accordance with Section 9.2.
7.2 Termination for Cause. A party may terminate this Agreement: (i) if the other party is in material breach of this Agreement and fails to cure the breach within 30 days of receiving written notice from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any notice of breach must contain specific information to substantiate the alleged breach. If Customer terminates due to Blue Sky’s breach, Customer’s exclusive remedy is a pro-rata reimbursement of Fees that have been actually paid by Customer and relate to a period of Service after the Termination Date. If Blue Sky terminates due to Customer’s breach, Customer must pay within 10 days damages equal to the grand total specified in the Order Confirmation, less any fees it has already paid under this Agreement. Termination under this section will not relieve Customer of its obligation to pay any Fees owed for the period prior to the Termination Date.
7.3Effect of Termination. Customer shall immediately cease all use of and access to the Service on the Termination Date. Section 3.2 (Restrictions), Section 5 (Confidentiality), Section 6 (Proprietary Rights), Section 7 (Term and Termination) and Section 9 (Limitation of Liability), and Section 10 (General Terms) will survive termination. All other rights and obligations will be of no further force or effect.
8 WARRANTIES & DISCLAIMERS
8.1 Customer Warranties. The Customer represents that it: (i) has the legal power to enter into this Agreement; (ii) will comply with all applicable laws during the Term; and (iii) will use reasonable efforts to avoid transmitting to the other party any harmful or malicious code, files, scripts, agents or programs.
8.2 Equipment Warranty. If a defect exists, at its option, Blue Sky will, within the 12-month warranty period, (i) repair the Meter or Internet Connectivity Equipment, if any purchased, at no charge or (ii) exchange the Meter or Internet Connectivity Equipment with new Meter or Internet Connectivity Equipment that is at least functionally equivalent to the original Meter or Internet Connectivity Equipment. A replacement Meter or Internet Connectivity Equipment assumes the remaining warranty of the original product or ninety (90) days from the date of replacement, whichever provides longer coverage. When Meter or Internet Connectivity Equipment is exchanged, any replacement item becomes the property of Customer and the replaced item becomes the property of Blue Sky. It is the responsibility and the expense of Customer to ship the defect Meter or Internet Connectivity back to Blue Sky for warranty repair or exchange. Blue Sky will return repaired or replacement Meter or Internet Connectivity Equipment at the expense of Blue Sky by common carrier as directed by Customer. The Meter or Internet Connectivity Equipment warranty does not apply to cosmetic damage, including but not limited to scratches, dents and broken plastics; to damage caused by use with another product; to damage caused by accident, abuse, misuse, liquid contact, fire, earthquake or other external cause; to damage caused by operating the Meter or Internet Connectivity Equipment outside Blue Sky’s published guidelines; to damage caused by service (including maintenance, upgrades and expansions) performed by anyone who is not a representative of Blue Sky; to a Meter or Internet Connectivity Equipment that has been modified to alter functionality or capability without the written permission of Blue Sky; to defects caused by normal wear and tear or otherwise due to the normal aging of the Meter or Internet Connectivity Equipment, or if any serial number or label has been removed or defaced from the Meter or Internet Connectivity Equipment. Blue Sky will not be responsible for any injury or damage that the Meter Equipment or Internet Connectivity Equipment causes to any person, or the real or personal property of Customer.
8.3Disclaimer. To the maximum extent permitted by law, this warranty is exclusive and is in lieu of all other warranties, guarantees or conditions, whether express or implied, statutory or otherwise, including, without limitation, any warranties or conditions of merchantability or fitness for a particular purpose, compliance with any description, non-infringement of third party rights, or any oral or written representations, proposals or statements made on or prior to the effective date of this agreement. Blue Sky expressly disclaims all other warranties, guarantees or conditions. Except as otherwise stated in this agreement. Blue Sky makes no representation, warranty, condition or guarantee as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the Service or any component of the Service. Blue Sky does not represent or warrant that (i) the use of the Software will be secure, timely, uninterrupted or error-free or operate in combination with any other equipment, software, service, system or data, (ii) the Service will meet customer's requirements or expectations, (iii) any stored data will be accurate or reliable, (iv) the quality of any information obtained by customer through the Service will meet customer's requirements or expectations, (v) errors or defects will be absent or will be corrected, or (vi) the Software or the communication facilities, including, without limitation, the Internet , that make the Software available are free of viruses or other harmful components or are secure from interruption, interception or corruption by third parties. Except as expressly set forth in this agreement, the Service is provided to customer strictly on an " as is" " where is" and " as available" basis. This section shall survive the termination or expiry of this agreement and continue in effect.
9 LIMITATION OF LIABILITY
9.1 Limitation of Liability. In no event will Blue Sky’s aggregate liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, exceed the total amount actually paid by Customer to Blue Sky pursuant to the Order Conformation.
9.2 Exclusion of Consequential and Related Damages. In no event will Blue Sky have any liability to the other party for any lost profits or revenues or for any consequential, incidental, indirect, special, cover or punitive damages, however caused, whether in contract, tort or under any other theory of liability, and whether the party has been advised of the possibility of such damages. The foregoing will not apply to the extent prohibited by applicable law.
10 GENERAL TERMS
10.1 Dispute Resolution; Governing Law. The parties shall use good faith, reasonable efforts to resolve any dispute before initiating legal action. The laws of Hong Kong, govern this Agreement. Where legal action is initiated, the parties submit to the exclusive jurisdiction of the courts of Hong Kong.
10.2 Notices. Notices under this Agreement must be in writing and will be considered given upon: (i) delivery by traceable courier or mail (delivery confirmation/ return receipt requested); or (ii) the second business day after sending by email. Notices to Blue Sky should be sent to email@example.com or to the address specified above. All notices to Customer shall be sent to the email or the address as written on the Order Confirmation.
10.3 Customer References. During the Term, Blue Sky may include Customer’s name, logo and success stories in Blue Sky’s website, press releases, promotional and sales literature, and lists of customers.
10.4 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an event outside the reasonable control of the obligated party, including but not limited to an electrical, Internet, or telecommunication change or outage not caused by the obligated party; government restrictions; or illegal acts of third parties. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
10.5 Assignment. Neither party may assign any of its rights or obligations under this Agreement without the other party’s prior written consent (not to be unreasonably withheld), except either party may assign this Agreement in its entirety without the other party’s consent to its affiliate or as part of a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets.
10.6 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.7 Waiver. No failure or delay by either party to exercise any right under this Agreement will constitute a waiver of that right, unless expressly stated in this Agreement.
10.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be modified to the minimum extent necessary to make it enforceable. The provision will be disregarded only if such modification is not possible or is prohibited by law. The remaining provisions of this Agreement will remain in effect.
10.9 Order of Precedence. If there is a conflict or inconsistency between any Order Confirmation and these Service Terms, the Order Confirmation will control.
10.10 Entire Agreement. This Agreement is the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No change to any provision of this Agreement or any Order Confirmation will be effective unless in writing and signed by an authorized signatory of the party against whom the change is asserted. No terms in Customer’s purchase order or other order documents (excluding Order Confirmations) will be incorporated into this Agreement, regardless of any terms to the contrary, and Blue Sky expressly rejects all such terms.
10.11 Headings. Headings are for reference only and do not affect the meaning or interpretation of this Agreement.
10.12 Signature Authority. The person signing this Agreement represents that they have authority to bind Customer to the terms of this Agreement.
10.13 Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart is an original. All counterparts together form one document.
SERVICE LEVEL AGREEMENT
This Service Level Agreement ("SLA") sets forth the details regarding the level of service and technical support for the Service that apply when your account is in good financial standing.
1.1 For purposes of this SLA, “Maximum Available Minutes” is total accumulated minutes during a billing month which the Blue Sky’s Software Service is provided. “Downtime” is the total accumulated minutes during a billing month which the Service or a material component of it is unavailable because of problems with or the unscheduled maintenance of Blue Sky’s Software. “Monthly Downtime Percentage” is calculated using the formula Downtime / Maximum Available Minutes x 100.
1.2 Downtime does not include (i) problems caused by factors outside of Blue Sky’s reasonable control, (ii) problems resulting from any actions or inactions by Customer or any third party, (iii) problems resulting from Customer's Meter Equipment or Internet Connectivity Equipment, Customer’s Internet connection, whether purchased from Blue Sky or Customer’s own Internet connection and/or third party equipment not within Blue Sky’s exclusive control, or (iv) network unavailability during scheduled maintenance of Blue Sky’s network and/or servers. Blue Sky will periodically monitor Blue Sky network and server availability using software and equipment components capable of measuring application traffic and responses. Based on its monitoring, Blue Sky will determine Downtime for the purposes of this Agreement. Final decision of Downtime calculation rests with Blue Sky.
1.3 Subject to the limitations set out below, in any calendar month, Monthly Downtime Percentage will not exceed 5% excluding, however, regularly scheduled maintenance. Customers will be notified of any regular scheduled maintenance at a minimum of one week advanced notice. Such notice will be sent to the Customer’s email account as written in the Order Confirmation. The service is subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Blue sky is not responsible for any delays, delivery failures, or other damage resulting from such problems.
1.4 If Monthly Downtime Percentage exceeds 5% in any calendar month, Blue Sky will, upon Customer's written request, extend the Service for a period equal to the Downtime for that calendar month.
2 TECHNICAL SUPPORT
2.1 Blue Sky will provide a technical support service to assist Customer with problems and questions regarding the Service. This will be through telephone, online chat and email support to Customer. Telephone support is available Monday to Friday between 9:00 a.m. and 6:00 p.m. Hong Kong time and online chat support is available between Monday to Friday 9.00 a.m. to 11.00 p.m. Hong Kong time and Saturday, Sunday and Public Holidays between 10:00 a.m. and 7:00 p.m. Hong Kong time. For email support, Blue Sky will respond to Customer within 2 working days.
2.2 Blue Sky will supply to Customer an email address to access technical support service on commencement of the Service. Blue Sky may, from time to time, develop additional methods for Customer to contact the support staff, and will make information regarding such methods available at Blue Sky's website or in the Service.