Standard Terms and Conditions

Download PDF

Contents

General

  1. Definitions and Interpretation
  2. Applications of These Conditions
  3. Term
  4. Termination
  5. Representations and relationship of parties
  6. Consent for electronic communications
  7. Notices
  8. Governing law
  9. Successors and assigns
  10. No recruitment
  11. Updates to terms and conditions
  12. Entire agreement
  13. Survival
  14. Electronic execution

GOODS AND SERVICES

  1. Quotes
  2. Orders
  3. Pricing and rates
  4. Services and plans
  5. Subcontracting
  6. Licensing and software
  7. DELIVERY, TITLE, AND RISK
  8. RETURNS AND CLAIMS FOR GOODS AND SERVICES
  9. COMPUTER UTILITY, FUNCTIONALITY AND FITNESS FOR PURPOSE
  10. FORCE MAJEURE
  11. PRODUCT SPECIFICATIONS
  12. WARRANTIES
  13. LIABILITY
  14. ERRORS AND OMISSIONS

BLUE NET’S RESPONSIBILITIES

  1. PRIVACY STATEMENTS AND CLIENT’S RIGHTS
  2. BLUE NET’S WEBSITE
  3. SECURITY
  4. USE OF CLIENT’S NAME
  5. INSURANCE COVERAGE

CLIENT’S RESPONSIBILITIES

  1. SERVICE REQUESTS
  2. DATA SECURITY
  3. ACCESS TO SYSTEMS, SITES AND PEOPLE
  4. HAAS OBLIGATIONS
  5. THIRD PARTY AUTHORIZATIONS
  6. PAYMENT, LATE PAYMENT, AND DEFAULT DISPUTES
  7. LICENSING AND SOFTWARE
  8. IP RIGHTS AND CONFIDENTIALITY

APPENDIX A

SERVICE REQUESTS

SERVICE REQUESTS OUTSIDE OF BUSINESS HOURS

General

1.DEFINITIONS AND INTERPRETATION

In these Terms and Conditions, the Rate Schedule and Quotes for Goods/Hardware/Software and related Order; Install, Proposals/SOW, Plans, or other arrangement for Goods or Services provided by Blue Net, Inc., the following words have the following meanings:

"After Hours" means from 5:00 PM – 8:00 AM Monday to Friday; weekends and holidays

"Blue Net" means Blue Net, Inc.

"Business Grade" means makes and models of a PC, notebook, workstation, server, or networking component that is specifically designed and manufactured for business and not general consumer use, including makes and models by Cisco, Lenovo, Dell, HP, and HPE, that includes better build quality and components, additional security features, enhanced warranty, published lifecycle terms and conditions, and professional and / or enterprise versions software and operating systems

"Business Hours" means from 8:00 AM – 5:00 PM Monday to Friday, excluding holidays

"Client", "You" or "Your" means a person or entity who seeks or obtains a Quote for, or who orders, Goods or Services from Blue Net, and includes both a person whose name is on the Order or on an email attached to which is an Order, a person who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears and order is placed, and in any case each of their heirs, successors and assigns

"Conditions" means these terms and conditions

"Contract" or "Agreement" means the pages detailing Client, Plan/s, Fees and other terms, together with these Conditions and that which is referenced herein, that have been agreed to by Client

"Goods" means any goods and/or services sourced by Blue Net or provided by Blue Net in connection with any such goods and/or services including computer hardware and Software and any goods or services provided in connection with any of those things

"Order" means any order requested by Client to Blue Net for Goods or Services in any form

"HaaS" means Hardware as a Service, a bundling of hardware components and services into a single offering, provided as a service with recurring fees

"Period" means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between Blue Net and the Client as the period during which some Services will be provided

"Plan" means either BlueAssure™ or BlueSecure™ plans, as specified above

"Plan Schedule" means the key terms applicable to Plans as set, and as may be varied by Blue Net, from time to time without notice to Client

"Public Holidays" means any day which is a public holiday in Minnesota or the U.S.

"Rates" means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Rates Schedule, a Plan, Plan Schedule, Quote, contract or arrangement entered into by Blue Net and Client or in these Conditions, and includes any monies payable to Blue Net on a quantum meruit basis for any work it has done

"Quote" means a quote provided to Client by Blue Net

"Rate Schedule" means the schedule of rates, charges and conditions for the services of Blue Net outside or as referenced in a Plan, and as may be varied, by Blue Net from time to time in its absolute discretion without notice to Client

"Reasonable Assistance Limits" has the meaning set out in Section 23.2

"Recovery Fee" means a fee set in an SOW for early termination;

"Return/Cancellation Fee" means a fee for returning Goods or Software License charged pursuant to these Conditions by Blue Net from time to time based on manufacturer’s and/or software licensor terms;

"Service request" means a request for service such as adds, moves, changes and technical assistance that may trigger additional fees

"Services" means the provision of any Services by Blue Net including Work, advice and recommendations

"Software" includes software and any installation, update, associated software and any Services provided in connection with any of these things

"Us", "Our" or "We" means Blue Net, Inc. and its heirs, successors and assigns; and

"Work" means anything We may do, provide, customize, produce, or acquire, whether or not in connection with, or for the purposes of, Client or Client’s use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items.

Interpretation of Terms

In these Conditions, the Rate Schedule and every Quote, Plan, contract, or other arrangement for Goods or Services provided by Blue Net, unless the contrary intention is clear: Words denoting the singular number only shall include the plural number and vice versa;

Reference to any gender shall include every other gender;

Reference to any statute, law or regulation shall include any amendment currently in force at the relevant time;

Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction;

All references to dollars ($) are to US dollars;

A reference to time is to US Central time;

A reference to an individual or person includes any kind of entity, including corporation, partnership, joint venture, association, nonprofit organization, authority, trust, state or government agency and municipalities, and vice versa;

A reference to a recital, Section, schedule, supplement or exhibit is to a recital, clause, schedule, supplement or exhibit of or to these Conditions;

A recital, schedule, supplement or description of the parties forms part of these Conditions;

A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;

Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

A reference to “includes” means includes without limitation;

A reference to “will” imports a condition not a warranty; and

A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.

2. APPLICATIONS OF THESE CONDITIONS

Unless otherwise agreed by Blue Net in writing, these Conditions are deemed incorporated in and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Plan, contract, or other arrangement in connection with Goods or Services provided by Blue Net.

The invalidity or enforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.

3. TERM

  1. Effective Date and Duration. This Agreement shall be effective as of the date and for the term specified on the first page of this Agreement (the “Term”).
  2. Automatic Renewals. Unless specified otherwise in a Plan, the Term will automatically renew for the same period as the original Term and continue indefinitely, unless earlier terminated by Client as specified in Section 4.

4. TERMINATION

  1. Termination Notice. To terminate a Plan or this Agreement, a party must provide thezz other with no less than ninety (90) days advance written notice of termination.
  2. Termination for Non-Breach. In the event that Client elects to terminate a Plan for any reason other than an uncured breach by Blue Net, Client shall pay Blue Net all amounts due and owing under a Plan invoice and any applicable Recovery Fees.
  3. Termination for Breach. Either Blue Net or Client may terminate a Plan or this Agreement if the other party has breached this Agreement upon fifteen (15) days advance written notice to the other party (the “Cure Period”) if such breach remains uncured at the end of the Cure Period, or upon five (5) business days’ advance written notice if four (4) or more breaches occur within any consecutive twelve (12) month period, regardless of whether such breaches have been cured.
    1. If Blue Net terminates for an uncured breach by Client, Client shall pay Blue Net for all reasonable and necessary costs of removing any HaaS Components (defined herein), Client-owned components or data at Blue Net’s then-current standard rates for on-site services as well as any and all outstanding amounts owed hereunder, including any Recovery Fees.
    2. If Client terminates for a an uncured breach by Blue Net, Client shall immediately pay Blue Net any and all outstanding amounts invoiced hereunder prior to the date of breach, and Blue Net shall remove any HaaS Components, Client owned components, or data within fifteen (15) days of termination.
  4. Assistance After Termination. If either party terminates a Plan for a reason other than breach of this Agreement, Blue Net will assist Client in the orderly termination of Services, including timely transfer of services to another designated provider. During the thirty (30) days following termination of a Plan, Blue Net will not erase any of Client’s data and or remove any Client-owned equipment. Client may retrieve Client data and Client-owned equipment from the hardware associated with the Services and data center only if Client has paid all charges for any post-termination use of the Services and all other amounts due; and Blue Net will provide Client with Client data and Client-owned equipment retrieval assistance at Blue Net’s standard rates. Any additional posttermination assistance from Blue Net must be by mutual written agreement of Blue Net and Client, and may include additional months of service at Blue Net’s standard monthly rates.

5. REPRESENTATIONS AND RELATIONSHIP OF PARTIES

  1. Representations. Client acknowledges that no employee or agent of Blue Net’s has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.
  2. Relationship of the Parties. Blue Net and Client agree that neither party is an independent contractor of the other, and neither party’s employees will be considered employees of the other for any purpose. These Conditions do not create a joint venture or partnership, and neither party has any authority to bind the other with respect to any third party.

7. NOTICES

Any notice or other communications required or permitted hereunder shall be in writing, and shall be delivered electronically, in person, or sent via first class, registered or certified mail, postage prepaid, return receipt requested, to the proper party at the addresses noted above or at such other address as may be hereinafter designated in writing by the parties. Notice shall be deemed given when received.

8. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the state of Minnesota, and the parties agree to submit to the exclusive jurisdiction of the Courts of Minnesota located in Dakota County, MN.

9. SUCCESSORS AND ASSIGNS

This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement and the rights, obligations, and interests provided for herein may not be assigned by Client without the prior written consent of Blue Net.

10. NO RECRUITMENT

During the term of Agreement and for a period of twelve (12) months thereafter, neither party will not, without the other parties prior written consent, solicit for employment any of the other’s employees who were directly involved in the performance under the Agreement, with an exception for the other party’s employee’s applying to general job openings of their own accord. Both parties agree that the penalty for violating this non-recruitment obligation is the equivalent of one (1) years’ salary and benefits for the solicited employee.

11. UPDATES TO TERMS AND CONDITIONS

Blue Net may at any time update or change these Conditions by publishing the updated Conditions on Blue Net’s website. Client agrees that such will be sufficient notice of the updates, and that Blue Net is under no other obligation to specifically notify Client of any variation to these Conditions.

12. ENTIRE AGREEMENT

Each Plan together with these Terms and Conditions constitute the entire agreement between the parties with respect to their subject matter and supersede all prior negotiations and agreements between the parties, and waiver or modification hereto shall be valid unless in writing and signed by the parties hereto. The scope of Services may be modified from time to time by attaching a written amendment mutually agreed to and executed by both parties.

13. SURVIVAL

All accrued rights and obligations, and all terms of these Conditions shall survive expiration or termination of this Agreement, including Sections 1-14, 41 and all terms requiring Client to pay any fees for Services provided prior to the time of expiration or termination, or requiring Client to pay an early termination fee, except for any provisions of the Agreement that by their nature are clearly not intended to survive expiration or termination of the Agreement.

14. ELECTRONIC EXECUTION

The parties agree that each part of this Agreement may be executed by electronic means. The parties further agree that the electronic signatures appearing on each Plan and these Conditions are the same as handwritten signatures for the purposes of validity, enforceability and admissibility of each Plan and these Conditions.

GOODS AND SERVICES

15. QUOTES

  1. Validity and Effect. Quotes will only be valid for 7 days unless otherwise specified in the Quote. A Quote is merely an invitation to Client to place an Order with Blue Net and the acceptance of a Quote by Client will not create a binding contract between Client and Blue Net.
  2. Pricing. The price in a Quote may vary from an original request if there is any price or product changes requested by Client. Blue Net reserves the right to alter prices in the a Quote, as long as the Quote has not been accepted by the Client and Blue Net and made part of a Contract.
  3. Confirmation in Orders. Once the Quote has been confirmed and converted to an Order, the Order will be made part of an Agreement and subject to these Conditions.
  4. Turnaround Time. The general minimum turnaround time for Quote request to be processed is usually 48 hours. In the event that a Quote is required urgently, please let Blue Net know so we can respond to it accordingly.
  5. Discounts. When a special price or discount offer has been applied to a Quote, no other special promotion, discount, or bonus offer will be applicable.
  6. Price and Supply Fluctuations. In the event that products in the Quote are subjected to price and supply fluctuations outside of Blue Net’s control, Blue Net reserve the right to update the price and product in the Quote accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Client’s request and is subject to Client’s final approval.
  7. Timelines. Timing and ETA information is based on an estimate given by Blue Net’s vendors and cannot be held as the actual promised date.
  8. Freight Charges. Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.
  9. Returns. Blue Net does not keep inventory and as such only orders items once Blue Net receives an accepted Quote or order from a client. If Client would like to return an item or cancel a Quote or order, a restocking fee may apply. Blue Net will need to get approval from the distributor, vendor, or manufacture that the stock is returnable before being able to issue a refund as not all products can be returned.
  10. Varying or Withdrawing Quotes. Blue Net may vary or withdraw a Quote at any time in Blue Net’s absolute discretion and without prior notice to Client. Blue Net may do so for any reason Blue Net, including, e.g., when Goods or Services become unavailable, or the cost of Goods or Services increases after the date of the Quote.

16. ORDERS

  1. Order forms. Client may place an Order for Goods and/or Services with Blue Net. Normally, Blue Net will require that Client provide either a completed Order form or Client approve the Quote electronically via either an email or a web based system with the date and Client’s details, including Client’s full legal name or description and any applicable tax ID number (including the full name or description of any person on whose behalf the order is placed), Client’s address together with any relevant Quote number and date.
  2. Approval of Orders. Client will need to sign the Order or have it duly executed on Client’s behalf, unless the Order is sent by email or via the web based ordering system, in which case the Order will be treated or deemed as if signed by or on behalf of Client by the person whose name appears as the sender of the email or submitter of the form.
  3. Reliance on Appearance of Validity. Absent actual knowledge to the contrary, Blue Net may rely upon the apparent validity of an Order. If any Order is signed or sent by email or approved by a named person, that person warrants that the Order is, and it is acknowledged the Order is deemed to be:
    1. signed by, and duly authorized by, both the person who signed the Order and the person who sent the email; and
    2. duly authorized by the person on whose behalf the Order is placed or apparently placed.
  4. Acceptance and Orders. An Order has no effect unless or until it is accepted by Blue Net in writing and, until Blue Net has received from Client payment in clear funds for the Order and any related freight, delivery and (where applicable) in-transit insurance costs in clear funds.
  5. No Obligation to Deliver. Blue Net is not obliged to deliver any Order until Blue Net have received payment in clear funds from Client for the Order, any related freight, delivery and (where applicable) in-transit insurance costs or where Blue Net is unwilling or unable to complete the Order for any reason, provided it refunds any payment made by Client in respect of the Order.
  6. Credit Checks. For the purposes of ascertaining the credit standing or history of a prospective customer to whom Blue Net is considering extending credit or payment terms, Client hereby consents to Blue Net undertaking a credit reference check in respect to Client.
  7. Cancellation of Orders. Blue Net will not cancel an Order unless Blue Net agrees to do so in writing in Blue Net’s absolute discretion. Client acknowledges that, among other things, Blue Net cannot cancel an Order once a manufacturer or supplier has shipped the relevant Goods, and that such shipment often occurs the same day as the Order is placed.
  8. Processes and Procedures. Blue Net has processes and procedures that Blue Net follows in the course of the provision of Blue Net’s Services and the supply of Goods. Client agrees to co-operate with Blue Net and to comply with such processes and procedures as advised to Client from time to time.

17. PRICING AND RATES

  1. Tax Excluded. All pricing, rates and amounts charged or quoted for Goods and/or Services by Blue Net are exclusive of any other applicable taxes or government charges (unless otherwise stated in writing by Blue Net).
  2. Rates Schedule. Client must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time during the provision of the Goods and/or Services.
  3. Vary Rates. Blue Net reserves the right to vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), in its absolute discretion and without notice to Client.
  4. Call-out fees. Client acknowledges that call-out fees may be charged in addition to the Rates at Blue Net’s absolute discretion and that the amount of the call-out fee will depend upon where the Services are provided.
  5. Return/Cancellation Fee. Where Blue Net arranges a return or refund on behalf of Client, or where an Order is cancelled by Client after acceptance by Blue Net, Blue Net may charge Client a Return/Cancellation fee to cover the administration costs to Blue Net in processing the return or refund, or in processing the Order, the cancellation and any refund. Blue Net may deduct the Return/Cancellation fee from out of any moneys otherwise due to be refunded to Client by Blue Net.
  6. Expenses. Client must pay any out-of-pocket expenses incurred by Blue Net in providing the Services to Client in addition to the Rates, charges and call-out fees, upon written demand. Such expenses will include travel costs, flights, car rental, fuel, insurance, taxi or rideshare fares, accommodation and related meal allowance, tolls, and car parking expenses. Where appropriate, Blue Net will obtain prior written authorization from Client before such expenses are incurred.
  7. Separate charges for Goods and Services. Blue Net may in Blue Net’s absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.
  8. Calculation of increments. Where a charge is calculated based on increments of time, e.g. 1 hour or 30 minutes, Blue Net will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.
  9. Change in Underlying Costs. Without prejudice to any other rights of Blue Net’s under these Conditions, where there is any increase in the underlying costs incurred by Blue Net in connection with the supply of Goods or Services to Client, Blue Net may, in Blue Net’s absolute discretion, vary any of Blue Net’s Rates.
  10. Pre-Paid Blocks of Service. Where Client agrees to buy pre-paid blocks of Service during a period (“Pre-Paid Blocks of Service” and “Period”), payment must be made in advance for the Pre-Paid Blocks of Service at the rate applicable pursuant to the Rates Schedule for all Services. Each such rate being less any discount agreed in writing between Blue Net and Client in respect of the Pre-Paid Blocks of Service. Services included in a Pre-Paid Block of Service rate during the Period:
    1. are calculated in accordance with the applicable minimum time periods and increments set out in the Rates Schedule; and
    2. are only provided by Blue Net during the applicable Period. Where Services are provided for a specified Period:
      1. the Services remaining unused for that Period cannot be rolled over into any subsequent Period; and
      2. Blue Net is not liable to refund, re-imburse, pay damages or otherwise compensate or indemnify Client in respect of those unused Services.

18. SERVICES AND PLANS

  1. Service and Plan Variations. Currently, Blue Net offers the Services and Plans referred to in the Rates Schedule and any Plan Schedule. Blue Net may withdraw the provision of,z or vary the scope or terms of, or add to or change, the Services without notice to Client,z from time to time in Blue Net’s absolute discretion.
  2. Services outside of scope of Plan. Any work outside the scope of an agreed to Plan that Client request and Blue Net perform will be paid for by Client at Blue Net’s current standard hourly rate for such service and may include trip charges. It shall be invoiced and paid in accordance with Section 39.
  3. Modifications and Renewals. Plan upgrades, downgrades, and modifications are available, but must be mutually agreed upon in writing by Client and Blue Net. The following will apply for certain changes to a Plan:
    1. Changes to Components and Users. Any addition or subtraction to the number of components and / or users covered by a Plan must be provided to Blue Net by Client no later than the 14th day of each month to ensure correct invoicing. Any addition or subtraction to the number of components and / or users received after the 14th day of the month will be billed as received and will be adjusted in the monthly recurring invoice on the following invoice. Blue Net may also run audit reports on the systems associated with a Plan and may add additional components and/or users to a Plan based on those reports, and adjust Plan charges accordingly. An addendum to a Plan agreement will be provided to Client with the invoice following any changes to reflect the updated component and/or user numbers by Blue Net.
    2. Changes to Plan Fees. Blue Net may increase, decrease, or otherwise modify Plan fees and charges if an applicable Blue Net vendor, supplier or other cost changes upon ninety (90) days written notice to Client. For any other increase, decrease or modification of Plan fees and charges, the parties must agree in writing.
  4. Copies on Request. Blue Net will provide Client with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for particular Plans and are available to Clients participating in the Plan.

19. SUBCONTRACTING

Blue Net may subcontract any or all of the Services to be performed, however shall retain prime responsibility for the Services under these terms.

20. licensing-and-software

  1. Third Party Software Available. Blue Net currently provides software and licensing to Clients under the Microsoft SPLA, Microsoft CSP, Citrix CSP, VMware VSPP, Adobe Partner Connection and other programs (collectively, the “Partner Programs”). These offerings, including the software, pricing, and license terms, are changed from time to time and are beyond the control of Blue Net.
  2. Subject to Third Party Terms and Conditions. All software and licensing that Blue Net provides for Client use via the Partner Programs is subject to the terms of these Terms and Conditions and the licenses and other terms of the agreements with the respective licensors in the Partner Programs, including software or licensing that Blue Net may authorize Clients to install on devices located outside of Blue Net’s data centers.
  3. Restrictions on Third Party Software. Client may not use any software or licensing provided by Blue Net after the expiration or termination of these Terms and Conditions, or the particular Service for which it was provided, and Client may not copy such software unless expressly permitted by these Terms and Conditions. Client may not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that appear on any software provided by Blue Net. Unless permitted by the terms of an open source software license, Client may not reverse engineer, decompile or disassemble any software provided by Blue Net for Client use except and to the extent that Client is expressly permitted by applicable law to do this, and then following at least ten (10) days’ advance written notice to Blue Net. Any additional restrictions which may apply to software or licensing utilized in the performance of the Services will be specified in these Terms and Conditions.
  4. Microsoft Licenses. Client’s use of any Microsoft® software is governed by: (i) Microsoft's license terms that appear at http://www.bluenetinc.com/license, for Client or redistributable software, (ii) Microsoft’s license terms at http://www.bluenetinc.com/license for use of Microsoft software on the Blue Net cloud under the license mobility program, and (iii) any use restrictions on Client use of the Microsoft software as indicated in these Terms and Conditions or license reports such as a limitation on the number of users (a "SAL" license).
  5. Pricing. Blue Net may increase or decrease the price for software and/or licensing under the Partner Programs at any time without prior notice to Client to reflect price changes of licensors that are a part of the Partner Programs. Any increase or decrease will be billed on the next invoices. Any price increase that takes place in between a billing cycle will be retroactively applied to the next billing cycle.

21. DELIVERY, TITLE, AND RISK

  1. Delivery Liability. Blue Net will use all reasonable endeavours to dispatch Goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of Blue Net’s, including, for example, due to failures in supply to Blue Net or delays caused by third parties, such as delivery companies or manufacturers.
  2. Availability to Accept Delivery. Client must be available to accept the Goods at Client’s nominated delivery address during Business Hours unless otherwise arranged.
  3. Passing of Risk. Delivery is deemed to take place when the Goods are delivered to Client’s nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to Client. Nothing in this Section will affect title to the Goods.
  4. Obligation to Insure. Client will ensure that Goods are adequately insured from the time of delivery.
  5. Retention of Title. Until Blue Net receives full payment in cleared funds for any moneys due to Blue Net by Client on any account or for any reason:
    1. title to, and property in, Goods supplied to Client remain vested in Blue Net and does not pass to Client;
    2. Client must hold those Goods as fiduciary and agent for Blue Net and must not sell them;
    3. Client must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact;
    4. Where Client sells the goods in breach of these Conditions, Client is required to hold the proceeds of any sale of those Goods on trust for Blue Net in a separate account (however any failure to do so will not affect Client’s obligation to deal with the proceeds as trustee and remit them to Blue Net);
    5. Blue Net may, without prior notice, enter into any premises where Blue Net suspects those Goods may be, take possession of those Goods and sever and remove those Goods (notwithstanding that they may have been attached to other goods not the property of Blue Net’s) and for this purpose, Client hereby irrevocably authorize and direct Blue Net (and Blue Net’s employees and agents) to enter into such premises as its duly authorized agent and Client hereby indemnify and hold harmless Blue Net from and against any costs, claims, allegations, demands, damages or expenses or any other acts or omissions arising from or in connection with, such entry, repossession or removal.
    6. Client irrevocably appoints Blue Net as Client’s attorney to do anything Blue Net consider necessary in order to enter such premises and repossess the Goods as contemplated by this Section.

22. RETURNS AND CLAIMS FOR GOODS AND SERVICES

  1. General Returns Policy. Notwithstanding anything in these Conditions, Client acknowledges that Blue Net supplies Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier. Client will accept Goods subject always to these Conditions and the terms of such conditions and will indemnify and hold Blue Net harmless in respect of any further or other obligation or any failure or default on the part of that manufacturer or supplier.
  2. Customized Goods not returnable. Where Goods have some element of customization for Client, are supplied pursuant to an Order for Goods that is in the opinion of Blue Net’s special or unusual, the Goods are obtained from overseas, the Goods are obtained from a supplier who is no longer trading, or the Goods are otherwise not readily returnable by Blue Net to the manufacturer or supplier or any related services may not be cancelled, Client may not return the Goods to Blue Net or cancel the related services.
  3. Duty to Inspect. Client will inspect all Goods immediately upon their delivery. Within 7 days of such delivery Client may give written notice to Blue Net of any matter or thing, by reason of which Client might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, Client will accept the Goods without any such return, refund or claim.
  4. Return Condition. Where Client is entitled to return Goods under these Conditions, Client must return the Goods in their original condition and unopened, provided always that where, upon opening the packaging it becomes apparent that the Goods are different to what is described on the packaging or that the Goods are faulty, the Goods may be returned.
  5. Return Costs. Client will pay all costs and expenses incurred by Blue Net in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services unless that manufacturer or supplier pays such costs.
  6. Consequences of Use, Installation, Customization, or Sale. Client will indemnify and hold Blue Net harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customized, or re-sold by Client (without prejudice to the recourse of such a customer to the manufacturer of the Goods).

23. COMPUTER UTILITY, FUNCTIONALITY AND FITNESS FOR PURPOSE

  1. Service limitations given the science of computing: Client acknowledges that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. In particular, Client acknowledges that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem Client is having. While Blue Net will make what Blue Net considers (in Blue Net’s absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist Client, Client will always indemnify and hold Blue Net harmless in the provision of Blue Net’s Services to Client.
  2. Reasonable Assistance Limits: Blue Net is only obliged to provide what Blue Net consider, in Blue Net’s absolute discretion, to be reasonable assistance in the circumstances (including with the installation and customization of new software or hardware for Client or any other Work) under any Plan and Client will pay for additional work at the Rates unless otherwise agreed. Without limiting the discretion of Blue Net to determine what reasonable assistance is, normally, reasonable assistance is limited to work done during Business Hours over a period of time not exceeding any period that Blue Net has allowed or allows for the Work or has estimated or estimates the Work will take, whether or not notice of the time allowed or estimated is given by Blue Net to Client.
  3. Recommendations, suitability, functionality, and fitness for purpose: The parties acknowledge that: Blue Net may recommend that Client purchase Goods provided by third parties from time to time; Recommendations may be made in situations where Client has made known to Blue Net the purpose for which the Goods will be used or some function sought to be fulfilled; Blue Net has no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment, e.g. the compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment; or the behavior of third-party supplier, e.g. in relation to support;
    1. Client acknowledges that for a whole number of reasons outside of Blue Net’s control, the Goods may fail to meet Client’s expectations, may not turn out to be fit for all or any of the purposes sought, may not be suitable or may not function properly in all or any respects;
    2. Client acknowledges that the Services provided by Blue Net may involve the very task of seeking to customize Goods so they may be fit for particular purposes and that customization may be a very substantial project in itself;
    3. Accordingly, Client will accept the sole responsibility for, and indemnify and hold Blue Net harmless in respect of:
      1. decisions as to whether or not to follow recommendations by Blue Net;
      2. decisions as to whether or not to purchase or customize Goods or obtain Services for that or any other purpose; and
      3. any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services, including a responsibility to obtain Client’s own independent advice or second opinion from a suitably qualified person;
    4. Where Blue Net provide Services with a view to achieving Client’s purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), Client must pay for those Services on time without any set-off or counterclaim, whether or not Blue Net is able to achieve any of such purposes, suitability, function or fitness for purpose, provided always that Blue Net have acted in good faith and have made what Blue Net consider, in Blue Net’s absolute discretion, to have made all reasonable endeavours to achieve those outcomes.
  4. Testing Procedures. Client will follow the instructions of Blue Net with regard to testing or troubleshooting any problems and that if those do not resolve the outstanding problems, Blue Net will, subject to these Conditions, allocate such resources as Blue Net consider reasonable in the circumstances towards their resolution.

24. FORCE MAJEURE

Blue Net and its affiliates will not be liable for any delay or failure to provide Goods, perform any of the Services or other obligation under these Terms and Conditions where the delay or failure results from any cause beyond Blue Net’s reasonable control, including acts of God, labor disputes or other industrial disturbances, supply chain issues, manufacturer and distributor issues, systemic electrical, internet, telecommunications, utility failures, earthquake, storms or other elements of nature, epidemics, pandemics, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

25. PRODUCT SPECIFICATIONS

  1. Alterations to Specifications. Blue Net makes every effort to supply the Goods in accordance with the Order however Blue Net may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the Goods after the Order date and before delivery.
  2. Substitute Goods. If Blue Net cannot supply the Goods ordered by Client, Blue Net may supply alternate Goods of equal or superior quality provided however that Client will not pay a higher price than the price Quoted or otherwise agreed for the Goods ordered.

26. WARRANTIES

  1. Blue Net warrants the Services (and any components and other material provided in connection therewith) only as expressly stated herein. THE LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN CONSTITUTES THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY BLUE NET WITH RESPECT TO BLUE NET SERVICES AND GOODS. EXCEPT FOR SUCH LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, BLUE NET SERVICES ARE PROVIDED “AS IS” AND BLUE NET EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY. BLUE NET EXPLICITLY EXCLUDES ANY WARRANTIES OF MERCHANABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR QUIET ENJOYMENT.
  2. Reliance on Manufacturer’s Warranty: Client will rely on the warranties provided by the manufacturer of Goods supplied by Blue Net (where applicable) and will deal directly with such manufacturer rather than Blue Net for all claims covered by such warranties.
  3. No Claim for Manufacturer’s Default: Client indemnifies and holds Blue Net harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to Client by Blue Net, of any of the obligations of such manufacturer in respect of such Goods. This includes any damages or moneys due to Client arising under, or in connection with, any breach by the manufacturer of any the manufacturer’s warranties in respect of the Goods.
  4. Network and Software. Client acknowledges and agrees that not all problems or defects in the network, equipment or software associated with the Services can be corrected within any specified period of time. Blue Net does not guarantee that Client’s network will be trouble free and not face incidents or attacks of mal-ware such as virus(es), spyware & Trojan(s). Blue Net will not be held responsible for downtime, loss of data, or any other loss incurred by Client due to any of the foregoing. Client recognizes that the installation of software “patches” for security or other reasons can also result in loss of data, downtime and other problems, and Blue Net will not be held responsible for such losses.
  5. Assurance on Client Licenses. With respect to any software used by Client, Client warrants and represents that such software is properly licensed by Client and the performance of the Services by Blue Net is permitted by the licenses for such software. Client agrees to indemnify, hold harmless, and defend Blue Net against any loss, cost, damage or expense, including reasonable attorneys’ fees, incurred as a result of the Client’s operations or its breach of warranties, representations or other terms and conditions.
  6. Extended Warranty BLUEASSURE ADVANTAGE AND HAAS PLANS ONLY. For BlueAssure Advantage and HaaS Plans the following will apply: In the event of failure of a qualifying hardware or system part covered by the Plan not due to improper use, abuse, normal wear and tear, accidental damage, and less than 5 years in age from manufacture date (determined by serial number lookup via the manufacture website); Blue Net will repair or replace the part or parts needed to restore the hardware or system to working order with a used, refurbished, or new part, excluding peripherals & batteries. In the event the replacement part or parts are deemed cost prohibitive by Blue Net then the hardware or system may be replaced with an equal or better hardware or system. Qualifying hardware or systems will be determined within one hundred and twenty (120) days of contract execution and listed in the client portal. Additional hardware or systems maybe added or removed to such list from time to time as needed. The foregoing Blue Net warranty and support (i) extends only to Business Grade devices, hardware and systems for which Client has valid support agreements in place with the manufacturers/providers; (ii) is supplemental to manufacturers/providers’ warranties and support agreements, which shall be primary to any warranty or support of Client’s devices, hardware and systems; and (iii) does not include production level or enhanced warranty services (24X7 with 4 hour response).

27. LIABILITY

  1. BLUE NET SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT INCIDENTAL, OR CONSEQUENTIAL DAMAGES, NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, OR LOSS OF GOOD WILL ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THE SERVICES EVEN IF BLUE NET IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, BLUE NET’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES SHALL BE LIMITED AS SPECIFIED HEREIN.
  2. Exclusion. Except as specifically set out herein and so far as may be permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
  3. No Liability for Program or Data Loss. Client indemnifies and holds Blue Net harmless in respect of any allegation, claim, loss or expense of Client’s or any third party for any program or data loss or damage suffered by Client or that third party arising directly or indirectly from the supply of the Goods or Services by Blue Net to Client. Client acknowledges and agrees that Blue Net is not responsible and shall not be responsible for maintaining integrity of Client’s data. Unless expressly a part of a Plan, Client is responsible for performing regular backups of its data and agrees that Blue Net shall not be responsible for any failure to do so. Blue Net is not responsible for the cost of any recovery, or any restructuring of data stored on disks or other media, or lost during the course of performance of the Services.
  4. Limit on Consequential Damage. Client indemnifies and holds Blue Net harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by Client or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to Client or any third party.
  5. Limit on Damage from a Failure in Supply. Client indemnifies and holds Blue Net harmless for any allegation or claim for loss or damage by Client or a third party where Blue Net has failed to meet any delivery date or cancels or suspends the supply of Goods or Services.
  6. General Limit on Liability. Except as otherwise expressly stated in these terms and conditions, Blue Net is not liable for any loss or damage of any kind however caused (including, but not limited to, by the negligence of Blue Net) which is suffered or incurred by Client in connection with:
    1. Goods or Services provided to Client or any Work;
    2. these Terms and Conditions;
    3. Client’s use of Blue Net’s website (including the use of a credit card or other debit device) or any linked website;
    4. the non-availability of Goods or Blue Net’s Services for any reason;
    5. any act or omission of Blue Net’s or the provision of inaccurate, incomplete or incorrect information by Client, or
    6. for any other reason whatsoever.
  7. Limitation Options. To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, this Section does not apply to that liability and Blue Net’s liability for any breach of that condition or warranty is limited to Blue Net’s doing any one or more of the following (at its election):
    1. replacing the Goods or supplying equivalent Goods, Services or Work;
    2. repairing the Goods or the Work;
    3. paying the cost of replacing the Goods or the Work or acquiring equivalent Goods, Services or Work; or
    4. paying the cost of having the Goods or the Work repaired.
  8. Laws Still Apply. Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.
  9. Severance. If any provision contained in the Conditions is unlawful, invalid or unenforceable, those provisions may be severed without prejudice to the validity and enforceability of the remaining provisions of the Conditions.

28. ERRORS AND OMISSIONS

Blue Net makes every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, Blue Net may rescind the affected Order or Contract upon written notice to Client, notwithstanding that Blue Net has already accepted Client’s Order and/or received payment from Client. Blue Net’s liability in that event will be limited to the return of any money Client has paid in respect of the Order.

BLUE NET’S RESPONSIBILITIES

29. PRIVACY STATEMENTS AND CLIENT’S RIGHTS

Blue Net will collect Client’s personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to Client and it may retain and use it for any such purposes (“Authorized Purposes”). Client is required to provide Client’s personal information to Blue Net for Authorized Purposes. Blue Net may disclose Client’s personal information to other persons for the purposes of the fulfilment of Quotes, Orders and Work for Client or in order to provide Goods or Services to Client, to verify the information Client provide, for enquiries about Goods or Services that may be suitable for Client’s purposes, or to confirm Client’s requirements, to anyone proposing to supply Goods or Services to Client, or to acquire Goods or Services on Client’s behalf, or in respect of enquiries relating to any of the foregoing. Otherwise Blue Net will not disclose Client’s personal information without Client’s consent unless authorized by law. Client’s personal information will be held by Blue Net at Blue Net’s Principal Place of Business and Client can contact Blue Net to request to access or correct it. Blue Net relies on Client to submit correct information and details where requested. Client accepts that Client may incur additional expenses if Client submits incorrect information.

30. BLUE NET’S WEBSITE

Blue Net makes no representations or warranties in relation to information available on Blue Net’s website, including without limitation: (i) that the information on Blue Net’s website is complete or correct; or that Blue Net’s website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software; and that Blue Net endorse any internet site linked to Blue Net’s website or any third-party products or services referred to on Blue Net’s website.

31. SECURITY

  1. SECURITY BREACH NOTIFICATION TO CLIENT. Blue Net shall notify Client of any breach of Client data or any potential breach of Client data due to a security breach of networks under the control of Blue Net or its service providers (prior to performing a risk assessment) by telephone call as soon as reasonably possible and in all cases, within two (2) business days of the first day on which any employee, officer, or agent of Blue Net knows of such breach. Blue Net shall provide a written report to Client within three (3) business days of verbal notice and shall, to the extent Blue Net is able to access such data, include the identification of each person whose private or personal data has been, or is reasonably believed by Blue Net to have been, accessed, acquired, used, or disclosed during such breach. The written report shall also include: (1) a brief description of what happened, including the date of the breach and the date of the discovery of the breach, if known; (2) a description of the types of data involved in the breach (such as full name, social security number, date of birth, home address, account number, or data code); (3) recommended steps that persons should take to protect themselves from potential harm resulting from the breach; and (4) a brief description of what the Blue Net is doing to investigate the breach, to mitigate harm to persons, and to protect against any further breaches. Blue Net shall maintain evidence to demonstrate that any required notification under this paragraph was made unless the Blue Net determines that a delayed notice (as described in the next section) applies.
  2. DELAYED NOTIFICATION TO CLIENT: Notwithstanding the section above, if a law enforcement official states in writing to Blue Net that the notification to Client would impede a criminal investigation or cause damage to national security, then Blue Net may delay the notification for any period of time requested by the law enforcement official, but in no event longer than fifteen (15) days unless prohibited by a court order. If the law enforcement official provides an oral statement, then Blue Net shall document the statement in writing, including the name of the law enforcement official making the statement, and may delay the notification no longer than thirty (30) days from the date of the oral statement, unless the law enforcement official provides a court order during that time that specifies a different time period. Blue Net shall maintain evidence to demonstrate that the required notification under this section was made.
    1. REMEDIES IN THE EVENT OF BREACH: In the event of a breach of data, unauthorized use, or disclosure of data by Blue Net, Client shall be entitled to enjoin and restrain Blue Net from any continued violation of this agreement.
  3. DATA CENTER SECURITY: Blue Net’s datacenters are secured at all times by an external security company; that security cameras and motion detectors are also present in every space; that access to the data center is controlled through a security agent and electronic access; that access is only permitted to Blue Net employees and contractors that are on file with the external security company; and that all Blue Net racks and rack components are secured with numerical locks or electronic access.

32. USE OF CLIENT’S NAME

Blue Net agrees that its use of Client’s name will be limited to identifying Client in informational and promotional content, and that Client’s name will not be given more prominence than any other name on client lists.

33. INSURANCE COVERAGE

  1. Insurance Coverage. Blue Net shall, during the Term, at its own cost and expense,z maintain in full force and effect the following minimum limits of insurance coverage:
    1. Worker’s Compensation Insurance in accordance with the statutory requirements of the state(s) in which the Services are to be performed;
    2. Cyber Liability Insurance with a minimum limit of $1,000,000;
    3. Automobile Liability Insurance covering all owned, non‑owned and hired automobiles, with a minimum $1,000,000 combined single limit for bodily injury and property damage per occurrence;
    4. Commercial General Liability Insurance, including contractual liability covering Blue Net’s obligations to indemnify Client under this Agreement, with a minimum $2,000,000 combined single limit for bodily injury and property damage per occurrence; and
    5. Professional Liability/Errors and Omissions Insurance with a minimum limit of $1,000,000.
  2. Insurance Certificate. Upon written request, Blue Net shall deliver to Client an insurer or insurer’s agent signed Certificates of Insurance as evidence that policies providing such coverage and limits of insurance are in full force and effect and with insurers, having an AM Best (A-) or higher rating. These Certificates shall provide that not less than 30 calendar days advance notice will be given in writing to Client of any cancellation, termination, or material alteration of said insurance policies. Client (including all subsidiaries and Affiliates), its officers, directors and employees should be added as additional insureds on all policies, except Workers’ Compensation and Professional Liability and Blue Net’s insurers shall waive all rights of subrogation against Client, its subsidiaries, Affiliates, officers, directors and employees. Blue Net’s insurance shall be primary with no contribution by Client’s insurance.

CLIENT’S RESPONSIBILITIES

34.SERVICE REQUESTS

Client agrees to follow Blue Net’s process for lodging of Service Requests as outlined in Appendix A and or the Blue Net Welcome Packet.

35. DATA SECURITY

Except as expressly provided in these Terms and Conditions, Client acknowledges that Client bears the sole responsibility for the security of the information, data and content related to the Services. Client agrees to implement security measures that are commercially reasonable for Client’s use of the Services, including encryption technologies, password and user ID requirements, and procedures regarding the application of security patches and updates.
NEITHER BLUE NET NOR ANY OF IT EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS OR LICENSORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS (E.G., HACKING) INTO THE CLOUD SERVERS OR CLIENT’S TRANSMISSION FACILITIES, PREMISES OR EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THEREON, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW.

36. ACCESS TO SYSTEMS, SITES AND PEOPLE

  1. In order to provide Client with the agreed Service, Client agrees to give Blue Net access to various items of Client’s including but not limited to, equipment, people and sites as and when required.
  2. Client agrees to allow Blue Net to install software on Client’s Equipment that allows Blue Net’s technicians to access Client’s systems at any time. This software allows Blue Net to view system statuses, send monitoring information, see users’ desktops and control Client’s PC’s. This may require that devices are left on overnight or weekends.

37. HAAS OBLIGATIONS

With respect to plans that involve HaaS components (e.g., certain hosting agreements and HaaSz plans), the following terms apply:

  1. Use, Operation, Care. Client shall use the HaaS components (the “HaaS Components”) in a safe and lawful manner in connection with its business and in conformance with all manufacturers and Blue Net’s instructions for use and applicable law.
  2. Ownership. Client acknowledges that the HaaS Components are owned by Blue Net, and Client acquires no right, title or interest in the HaaS Components except as may be expressly provided in a Plan. Client agrees that it will not sublease any of the HaaS Components or assign or otherwise attempt to transfer any of its rights in the HaaS Components without Blue Net’s prior written consent. Client shall not permit the HaaS Components to become subject to any liens or security interests other than those expressly consented to in writing by Blue Net. Upon expiration of the term of a Plan, unless otherwise agreed in writing by Blue Net or otherwise specified in such Plan, Client shall surrender the HaaS Components to Blue Net and permit Blue Net’s personnel to remove the HaaS Components.
  3. Risk of Loss. All components provided under a Plan must be covered under Client’s insurance up to full replacement value, and name Blue Net as loss payee with respect to loss or damage to the HaaS Components on all such policies of insurance. Client shall be solely liable for any damage to, or theft or loss of the HaaS Components that is not the fault of Blue Net. Client shall deliver to Blue Net all policies of insurance or certificates of insurance evidencing the required coverage’s hereunder. In the event of the loss or damage to any of the equipment (as is listed in the client portal, as amended from time to time), at the option of Blue Net, Client, at its sole cost and expense shall cause the HaaS Components to be repaired or restored to good repair, condition, and working-order or replace the HaaS Components with similar components in good repair and condition. Any such repaired or replacement components shall become subject to the lease provided for herein and shall belong to Blue Net. No loss of or damage to the HaaS Components shall affect Client’s obligations of payment to Blue Net

38. THIRD PARTY AUTHORIZATIONS

At times Blue Net may need to contact Client’s third-party providers on Client’s behalf, such as Client’s internet service provider. Some of these providers may require Client’s authorization for Blue Net to deal on Client’s behalf. It is Client’s responsibility to ensure that Blue Net is able to deal freely with these providers.

39. PAYMENT, LATE PAYMENT, AND DEFAULT DISPUTES

  1. Invoicing and Payment. CLIENT AGREES TO USE, RECEIVE INVOICES, AND MAKE ALL PAYMENTS HEREUNER USING BLUE NET’S PAYMENT PORTAL, AND ABIDE BY TERMS FOR USING SUCH PORTAL. Such terms include providing a standard and backup form of payment to which invoices can automatically be applied. Client will pay Blue Net all of the charges and monthly fees for the Services as specified under any Plan it has selected, or if no Plan is selected, at Blue Net’s standard rates. All fees will be paid in advance.
  2. Payment Due Date. Payment for the first month plus any onboarding and or activation fees under any Plan will be due upon Client’s signing such Plan agreement. Thereafter, invoices for any Plan will be issued monthly from Blue Net on the 15th of each month and Client will pay such invoices by the first of the following month.
  3. Late Payment. If payment is not received by the first business day of the month, Client’s backup form of payment will automatically be billed for all amounts owing.
  4. Taxes. Client will be solely responsible for any taxes associated with the Services, including state, county, or local sales tax, which may be invoiced by Blue Net.
  5. Recoveries. All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by Client to Blue Net and will be recoverable from Client, in addition to the original invoice cost. If Client default in payment of any invoice on time, moneys which would have become due by Client at a later date shall be immediately due and payable without any further notice to Client. Collectively, all of these moneys are referred to in these Conditions as a “Sum Due”.
  6. Interest. In the event that any invoiced amount is not paid when due, Client will incur interest charges on the delinquent amount at the rate of eighteen percent (18%) per annum, beginning 5 business days after notice, until paid in full.
  7. Application of funds. All payments of the Sum Due made by Client to Blue Net will be applied as follows:
    1. first in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by Blue Net in relation to any dishonoured check fees, collection costs or any other action taken by Blue Net for the recovery of any amounts owing by Client to Blue Net;
    2. secondly, in or towards payment of any interest due or payable hereunder, and
    3. thirdly, in or towards payment of Client’s debts to Blue Net in order from the longest standing due to the most recently incurred.
  8. Billing Disputes. If Client in good faith disputes any portion of any Blue Net invoice, Client shall submit to Blue Net, by the due date, full payment of the undisputed portion of the invoice and written documentation identifying and substantiating the disputed amount. If Client does not report a dispute within sixty (60) days following the date of the applicable invoice pursuant to this Section, Client shall have waived its right to dispute the invoice and all charges therein shall be deemed true and correct and due and owing. Blue Net and Client agree to use their respective commercially reasonable efforts to resolve any dispute within thirty (30) days after Blue Net receives written notice of this dispute from Client. Any disputed amounts resolved in favor of Client shall be credited to Client's account on the next invoice following resolution of the dispute. Any disputed amounts determined to be payable to Blue Net shall be due within ten (10) days of the resolution of the dispute.
  9. Temporary suspension. Blue Net may immediately (and without prior notice), temporarily suspend, or terminate all or part of the Services, by sending Client a written notice of suspension or termination if one or more of the following occurs: (i) Blue Net discovers that Client provided Blue Net with materially false information when Client agreed to Blue Net’s provision of the Services; (ii) Client lacked the capacity to enter into these Terms and Conditions at the time of its consummation; (iii) Blue Net reasonably determines, that Client’s use of the Services poses a threat to the security or performance of Blue Net’s network or to any of Blue Net’s clients or suppliers; (iv) Blue Net reasonably determines, that Client’s use of the Services is illegal, or that it misappropriates or infringes the property rights of a third party; (v) Blue Net reasonably believes that Client’s use of the Services has or will subject Blue Net to civil or criminal liability; (vi) Client becomes the subject of a voluntary bankruptcy or similar proceeding; (vii) Client fails to make payment when due or if Client’s payment method is declined andzan alternative form of payment is not made within three (3) business days of notice; or (viii) Client uses the Services or related resources in an attempt to gain unauthorized access to computer systems (i.e., “hacking”).
  10. Effect of temporary suspension. The Services will be unavailable in whole or in part during any suspension pursuant to this Section, and Client may not have access to Client’s data and or the Services. Fees shall continue to accrue during a suspension, and Blue Net may charge Client a reinstatement fee following any suspension of Client’s Services. Client will not be entitled to any service credits under the Service Level Agreement for any period of suspension.
  11. Security. Blue Net may require Client to provide security over Client’s property (including the Goods or any other property of Client’s) as collateral to be held as security for any Sum Due or as a condition precedent to the continuation of supply of Goods or Services by Blue Net to Client.
  12. Payment Arrangements. In the event that a repayment arrangement is made in relation to any Sum Due and the supply of Goods or Services is resumed, but then a repayment due under that arrangement is not made on time, Blue Net may, in Blue Net’s absolute discretion and without prior notice, again suspend or discontinue the supply of Goods or Services to Client.
  13. Power of Attorney. Client hereby irrevocably appoints Blue Net as Client’s attorney to do anything Blue Net consider fit for the recovery of the Sum Due or the creation, perfection or enforcement of any collateral held or to be held as security for any Sum Due.
  14. Other Remedies. Blue Net may exercise any of Blue Net’s rights and remedies including taking legal action against Client for the recovery of any moneys due to Blue Net, notwithstanding it may have exercised other rights under these Conditions.

40. LICENSING AND SOFTWARE

  1. Software Use. Client indemnifies and holds Blue Net harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:
    1. any unauthorized Software use by Client;
    2. any breach of any Software license in respect of Software provided to Blue Net by Client to be installed on one of Client’s computers;
    3. otherwise as a result of Blue Net installing Software at Client’s where Client is not authorized to use the Software; and
    4. any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.
  2. Customer Provided Licenses. If Client uses any non-Blue Net provided software in connection with the Services (“Client Software”) Client represents and warrants to Blue Net that Client has the legal right to use the Client Software in that manner. If Blue Net has agreed to install, patch, or otherwise manage Client Software in reliance on Client’s license with a software vendor (rather than Blue Net’s license with the software vendor), then Client represents and warrants that Client has a written license agreement with the software vendor that permits Blue Net to perform these activities. At Blue Net’s request, Client will certify in writing that Client is in compliance with the requirements of this Subsection and any other software license restrictions that are part of the Agreement and will provide evidence of Client’s compliance as Blue Net may reasonably request. If Client fails to provide the required evidence of licensing within ten (10) days of written demand, Blue Net may, at its option, either: (i) charge Client its standard fee for the use of the software in reliance on Blue Net’s licensing agreement with the vendor until such time as the required evidence is provided; or (ii) suspend or terminate these Terms and Conditions.
  3. Custom Software. All copyright in custom software remains the sole property of Blue Net’s unless alternate arrangements are made as part of a separate software agreement.

41. IP RIGHTS AND CONFIDENTIALITY

  1. Warranty and Breach. Client warrants that any confidential information or intellectual property (of any kind and in any form held) provided by Client to Blue Net belongs to Client. Client indemnifies and holds Blue Net harmless for any allegations, claims, loss, costs, or expenses in connection with a breach of such warranty by Client.
  2. Confidential Information. Blue Net acknowledges that in the course of providing Services to Client, Blue Net may learn from Client certain non-public personal and otherwise confidential information relating to Client, including Client’s customers, consumers or employees. Blue Net shall regard any and all nonpublic information Blue Net receives which in any way relates or pertains to Client, including Client’s customers, consumers or employees as confidential. Client also acknowledges that all information and services, consulting techniques, proposals, and documents disclosed by Blue Net or which comes to Client’s attention during the course of business and provided under this agreement constitute valuable assets of, and confidential and/or proprietary information to Blue Net.
  3. Non-Disclosure and Authorized Use. Either party (the "Discloser") may disclose to the other party (the "Recipient"), either orally or in writing, such non-public information noted above (collectively, the "Confidential Information"). The Recipient will use the Discloser’s Confidential Information solely with the Services and other permitted uses provided for herein and shall not use the Confidential Information for any other purpose. The Recipient will not disclose any Confidential Information of the Discloser to any person except on a "need-to-know" basis to those employees or other persons necessary for the provision of the Services who have expressly agreed to abide by the provisions of these Terms and Conditions. The Recipient will immediately give written notice to the Discloser of any unauthorized use or disclosure of the Discloser’s Confidential Information upon discovery by Recipient, and will assist the Discloser in remedying such unauthorized use or disclosure.
  4. Exceptions. The preceding nondisclosure restrictions and obligations will not apply to the extent that the Recipient can establish that any such Confidential Information:
    1. is, at the time of disclosure, part of the public domain;
    2. became part of the public domain, by publication or otherwise, except by breach of the provisions of these Terms and Conditions;
    3. can be established by written or other objective evidence to have been in the possession of the Recipient at the time of disclosure;
    4. is received by the Recipient from a third party without similar restrictions and without breach of these Terms and Conditions; or
    5. is required to be disclosed by a government agency to further the objectives of these Terms and Conditions, or by a proper court of competent jurisdiction; provided, however, that the Recipient shall use its best efforts to minimize the disclosure of such information and will consult with and assist the Discloser in obtaining a protective order prior to such disclosure.
  5. Upon Termination. Upon termination of these Terms and Conditions, the Recipient shall cease all use of the Discloser’s confidential Information, and shall return all Confidential Information, including copies thereof, to Discloser within 20 days of termination of these Terms and Conditions. Upon request of the Discloser, an officer of the Recipient shall also certify compliance with all such obligations.
  6. Ownership and Protection. The Recipient agrees that the Discloser owns any and all intellectual property rights, including patent, trademark, trade secret and copyrights, to the Discloser’s Confidential Information as well as any modifications, revisions, continuations and/or improvements of the Discloser’s Confidential Information made by the Discloser or made by the Recipient as a result of having access to the Discloser’s Confidential Information. The parties acknowledge and agree that the Recipient does not acquire any rights of any kind in the Discloser’s Confidential Information by virtue of these Terms and Conditions except for the limited right to use the Discloser’s Confidential Information in connection with the Services. As such, both parties shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose except unless permitted in writing by the disclosing party or as required by applicable law.

APPENDIX A

SERVICE REQUESTS

Service requests may be initiated only by the following methods:

Phone: 651-203-8850

Email: tickets@bluenetinc.com

Web Portal: https://support.bluenetinc.com/

Include a short description of the problem and any screenshots of errors to assist in the resolution of the issue.

If the issue is being lodged by either phone or external email you must include your name, company, and return contact details

Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.

Additional information regarding Service Requests is available in the Blue Net Welcome Packet that will be provided during the Onboarding process.

SERVICE REQUESTS OUTSIDE OF BUSINESS HOURS

Service Requests made outside of Business Hours must be lodged by phone (charges may apply for after-hours work). Other methods will be viewed on the next Business Day.