TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) apply to Customer’s (as identified in an Order Form) purchase and use of the Bumblebee System which includes the Bumblebee Products and Device Software (defined below) and the Bumblebee Services (defined below) under Bumblebee’s program (the “Program”). The Program is a sale, installation and end user experience of the operation of the Bumblebee System. The Bumblebee Services will be provided to Customer in accordance with and subject to these Terms.
The Program is provided to Customer for installation and use of the Bumblebee System in the Customer Location(s) (defined below) and live user (i.e. owner or resident) environment. Use of the Program provides the Customer and its owners and/or residents with operational and user experience of the Bumblebee System and provides Bumblebee with specific Feedback (defined below) regarding the installation and operation of the Bumblebee System.
a) Bumblebee offers the following items that collectively comprise the Bumblebee System: (1) Bumblebee’s modular living and storage products containing beds and storage modules (“Bumblebee Modules”), (2) one or more electronic robotic access devices, including sensors, user interfaces, control switches and other devices if installed, containing the Device Software and Bumblebee Applications (“Bumblebee Device(s)”), (3) proprietary software embedded in the Bumblebee Devices by which the Bumblebee Products are able to operate up and down, either automatically via the Bumblebee Services, or manually by user operated control interfaces (together with any updates thereto, the “Device Software”) (4) the proprietary technologies and software (including computer generated artificial intelligence) that provide enhanced user capabilities and experiences with the Bumblebee Products, including for Customer specific and tailored means of accessing, raising, lowering, and using the Bumblebee Products (“Bumblebee Applications”).
b) The Bumblebee Modules, Bumblebee Devices, and Device Software are referred to as the “Bumblebee Products.” For clarity and the avoidance of doubt, the Device Software included in the Bumblebee Devices and licensed pursuant to these Terms specifically does not include the Bumblebee Applications.
c) The Bumblebee Applications and all other features, tools, services, and content provided by Bumblebee in connection with the Bumblebee System are collectively referred to as the “Bumblebee Services” and are intended for use solely with the Bumblebee Products as made available to Customer by Bumblebee.
2. Definitions. In addition to the terms defined elsewhere, including in Section 1 above, the following terms have the following meanings:
“Change Order'” means a change to the initial Bumblebee System configuration pursuant to the mutual written agreement of Bumblebee and Customer.
“Order Form” means the fully executed Bumblebee Program Order Form setting forth the specific components and services of the Bumblebee System for use in the Program and as may be amended from time to time pursuant to a Change Order.
“Program Price'' means the price, in United States Dollars, that Customer is paying to Bumblebee for the Bumblebee Products and Bumblebee Services being purchased and used under this Program, as set forth on the Order Form, as the same may be amended from time to time pursuant to a Change Order.
3. Delivery and Installation.
a) Customer shall be deemed to have irrevocably accepted the terms and conditions of these Terms and the Order Form upon executing the Order Form. Order Forms cannot be canceled or amended except with Bumblebee’s written consent. Pending or open Order Forms may not be sold, assigned, transferred or conveyed without Bumblebee’s prior written consent. As part of the Program, Bumblebee will install the Bumblebee Products in one or more apartment or Customer locations designated by Customer in the Order Form and may include a single or multiple residential spaces (“Customer Location(s)”).
b) Bumblebee will use reasonable commercial efforts to install the Bumblebee Products in a timely fashion and within the time estimates set forth in the Order Form. All time frames are estimates, however, and Bumblebee and Customer recognize and agree that the installation of the Bumblebee Products depends on many factors, including (i) Bumblebee receiving the information and data from Customer required for installation, (ii) Customer providing on a timely basis the necessary technical prerequisites for the installation of the Bumblebee Products, including any building or construction permits, access requirements and permissions, internet access, or as otherwise set forth in the Bumblebee System documentation and Order Form (the “Technical Prerequisites”), and (iii) the number and type of Change Orders, if any. Bumblebee will not be responsible for any delays in the installation of the Bumblebee Products based in whole or in part on (i) delays by Customer in providing the information required for installation, as set forth in the Order Form or Bumblebee System documentation, (ii) the delay or failure by Customer to provide the Technical Prerequisites or access to Customer Location(s), and (iii) Change Orders with regard to the Bumblebee Products.
c) Customer is responsible for all requirements necessary for permission and access to deliver and install the Bumblebee Products in Customer Location(s). If Bumblebee is to deliver and install Bumblebee Products, normal delivery time and installation hours are 9:00 a.m. to 5:00 p.m. local time at the Customer Location, Monday to Friday. Customer shall obtain and be responsible for compliance with all permits and licenses required by the laws and local authorities in connection with the delivery and installation of the Bumblebee Products. Bumblebee will comply with all of Customer’s reasonable policies and procedures relating to working at Customer’s Locations.
d) When redelivery or rescheduling of installation of Bumblebee Products is required because Customer is unable to accept the Bumblebee Products or Customer has not completed its obligations as described herein, Bumblebee will cooperate with Customer to determine a mutually agreeable date and time for delivery and installation. Rescheduling the date and time may result in additional charges to the Customer.
e) Customer agrees that the job site shall be clean, clear and free of debris prior to installation. Customer shall provide electric service, heat/AC, internet access, hoisting, and/or elevator service without charge to Bumblebee. Customer shall provide adequate facilities for off-loading, staging, moving, and handling of Bumblebee Products shall be provided.
f) Bumblebee’s ability to erect, assemble or permanently attach, affix, or bolt in place Bumblebee Products may be dependent on local laws, regulations, trade union agreements and other factors. If any of these factors create delays or additional costs not anticipated by Bumblebee, time for installation may be adjusted and the Customer may be responsible for additional charges. The risk of loss and responsibility for the security and safeguarding of the delivered Bumblebee Products shall pass to Customer upon delivery of the Bumblebee Products to the Customer’s Location.
4. Acceptance. Upon completion of installation of the Bumblebee Equipment, Bumblebee will perform testing to determine that the Bumblebee Products are operating according to the documentation for the Bumblebee Products. Bumblebee will notify Customer once the installation is complete and Customer may inspect and test the Bumblebee Products itself during the five (5) day period after receipt of Bumblebee’s notice. If Customer determines that based on its own inspection the Bumblebee Products do not operate in accordance with the documentation for the Bumblebee Products, Customer must notify Bumblebee in writing of such failure within the five (5) day period following receipt of Bumblebee’s notice. Failure to deliver written notice of any issue related to the operation of the Bumblebee Equipment within five (5) days of Bumblebee’s notice of installation completion shall constitute acceptance of all Bumblebee Products for which Customer had been notified. Further, final payment by Customer of any fees or other consideration to Bumblebee under this Program shall constitute acceptance. If the installation of the Bumblebee Products is rejected by Customer in writing within the five (5) day acceptance period with a reasonable description and supporting documentation/photos, that the installation of the Bumblebee Products did not perform in accordance with the documentation for the Bumblebee Products, Bumblebee and Customer shall work cooperatively on a mutually acceptable plan for resolving and fixing the issues raised by Customer.
5. Program Price.
a) Customer agrees to pay the entire Program Price for the Bumblebee Products and Bumblebee System. Customer will pay the Program Price in accordance with the payment terms set forth in the Order Form or if no payment terms are set forth in the Order Form then the Program Price for the Bumblebee Products shall be paid fifty percent (50%) upon execution of the Order Form and the balance within thirty (30) days of Bumblebee’s completion of the installation. All payments of the Program Price are nonrefundable. Failure by Customer to make timely payment of all or any portion of the Program Price will result in delays in the installation of the Bumblebee Products. Bumblebee will not be responsible for any delays in the installation caused in whole or in part on the failure of Customer to make timely payment.
In addition to the Program Price, Customer will
reimburse Bumblebee for all reasonable travel, lodging and out-of-pocket
expenses related to the installation of the Bumblebee Products if such expenses
are approved in writing in advance by Customer.
Bumblebee shall provide Customer with invoices, in reasonable detail,
for all such costs, expenses and fees. Customer shall reimburse Bumblebee for
such expenses and fees within thirty (30) days from the date of invoice.
c) Customer will reimburse Bumblebee for any sales, use, or other taxes assessed to Bumblebee arising from the purchase by Customer of the Bumblebee Products.
d) Bumblebee reserves the right to suspend any further performance in the event payment is not made when due. Interest charges will be added to overdue invoices at the rate of 1.5% per month (subject to any limit imposed by applicable law). Payment for Bumblebee Products shall not be subject to offset, deduction or back charges by Customer, unless such offset, deduction or back charge was a sole, direct and proximate result of gross negligence or willful misconduct on the part of Bumblebee and such offset, deduction or back charge is expressly accepted in writing by an authorized representative of Bumblebee.
6. Change Orders. Customer from time to time may request changes to the Bumblebee System configuration. Any such changes to the Bumblebee System shall become effective only upon execution of a Change Order by an authorized representative of Bumblebee and Customer. Bumblebee shall not decline any change requests by Customer that increase the cost or functionality of the Bumblebee System, provided the changes are reasonable in scope and a commensurate increase in charges and fees is agreed to by Bumblebee and Customer.
a) Bumblebee warrants to Customer that for the lifetime of the Bumblebee Devices, which means the normal useful life of the product and in any event, no more than fifteen (15) years), the Bumblebee Devices will be free from material defects in materials and workmanship under normal intended use. Bumblebee warrants to Customer that for three (3) years after the purchase of the Bumblebee System, the Bumblebee Modules will be free from material defects in materials and workmanship under normal intended use. During the applicable warranty period, Bumblebee will pay, within one year from the date of purchase, reasonable and customary labor rates to repair or replace the defective parts and shipping costs from the retailer to and from Bumblebee, or a repair center designated by Bumblebee, at no charge to the original Customer. After one year from the date of purchase, such warranty covers replacement parts only, and the original Customer will be responsible for labor, packing, and all shipping and transportation costs. These warranties do not apply to the Bumblebee System (a) that is improperly installed by any party other than Bumblebee to the extent such improper installation causes the breach of warranty, (b) that has been damaged, modified or repaired by Customer or any party other than Bumblebee or an authorized reseller. Further, these warranties do not apply if Bumblebee determines that any Bumblebee Product has been damaged due to (i) Customer’s misuse, accident (including, without limitation, collision, fire and the spillage of liquid or food), neglect, abuse, alteration, unusual stress or modification; (ii) operation of any Bumblebee Product outside the permitted or intended uses described by Bumblebee in its documentation or on its website; (iii) use with third party products or parts for which any Bumblebee Product or Bumblebee Service was not intended for use in conjunction with; (iv) breakdowns, fluctuations, or interruptions in electric power or telecommunications networks, or (v) acts of God and other forces beyond Bumblebee's reasonable control, including, but not limited to, the internet, hacking, viruses, pandemics, government ordered shutdowns, power outages, wars, riots, terrorism, labor disputes, earthquakes, floods or other events of "force majeure."
b) EXCEPT FOR THE LIMITED WARRANTIES SET FORTH HEREIN, BUMBLEBEE DOES NOT MAKE ANY, AND HEREBY DISCLAIMS ALL, EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT.
9. LIMITATION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOSS OF REVENUES, OR LOSS OF PROFITS. THE FOREGOING SHALL APPLY EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, BUMBLEBEE’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID FOR THE BUMBLEBEE SYSTEM BY THE CUSTOMER. CERTAIN STATES, PROVINCES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER.
10. Technical Advice. Except for support provided under the warranties, Bumblebee assumes no obligation or liability, express or implied, with respect to any recommendations, opinions, or advice as to the purchase, installation, or use of the Bumblebee System. Except for support provided under these Terms, all recommendations, opinions, marketing or promotional materials or advice are given and shall be accepted at Customer's own risk and shall not constitute any warranty or guaranty of the Bumblebee System or its performance or use.
11. Program Feedback. Customer agrees to test and evaluate the Bumblebee System and report to Bumblebee on the functionality and usefulness of the Bumblebee System. As part of the Program, and upon Bumblebee’s reasonable advanced request, Customer will allow Bumblebee’s technical staff access to Customer’s Location if necessary to identify or fix or improve the Bumblebee System or to monitor the Bumblebee System’s performance. Such access may be supervised by Customer and will be subject to reasonable controls to ensure the protection of Customer's premises and systems. All non-public information disclosed by either party in connection with the Program will be "Confidential Information." Customer agrees to maintain all such Confidential Information strictly confidential and not to share such information with any third party. Customer may provide to Bumblebee suggested improvements, feedback or comments regarding the functions, features, performance and other characteristics of the Bumblebee System (collectively "Feedback"). Customer agrees that all Feedback is owned exclusively by Bumblebee, is the Confidential Information of Bumblebee, and that Bumblebee is free to use and otherwise exploit Feedback in any manner and at any time during or after the Program, provided it will not publicly associate Customer’s name with the Feedback without Customer’s prior consent.
12. Proprietary Rights. As between Bumblebee and Customer, the Bumblebee System, its components and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Bumblebee or its licensors. The Bumblebee System is entrusted to Customer only for the purposes set forth in these Terms. Customer will not, without Bumblebee’s prior written consent: (a) disclose any Confidential Information about the Bumblebee System, its design and performance specifications, any applicable code, or the results or Feedback to anyone other than Customer’s employees or residents and owners of the units in which the Bumblebee System is installed and who shall be subject to nondisclosure restrictions at least as protective as those set forth in these Terms; or (b) reverse engineer, decompile or disassemble the Bumblebee System or any portion thereof.
13. Title and Risk of Loss; Insurance. Title to, and risk of loss for, the Bumblebee Products shall pass from Bumblebee to Customer upon delivery of the Bumblebee Products to Customer’s Location and Customer’s acceptance of the Terms. Customer, at its risk and expense, shall obtain any required authorizations for the use of the Bumblebee System.
14. Compliance with Laws. Customer shall comply with all applicable international, national, federal, state, municipal and local laws, rules, regulations and ordinances now in effect or hereafter enacted relating to the manufacture, operation, maintenance, use, delivery and installation of the Bumblebee System. Customer will refrain from any act or omission that will cause Bumblebee to be in violation of any federal, state or local laws, regulations, statutes, orders, ordinances or other legal requirements regarding the installation and use of the Bumblebee System. Nothing in this provision limits or modifies the Customer’s responsibility to secure and pay for all permits, approvals, easements, assessments, and fees required for the construction, use, installation of the Bumblebee System at Customer’s Location.
15. Force Majeure. If Bumblebee shall be rendered wholly or partly unable to carry out its obligations under these Terms by reason of an event beyond its reasonable control, including but not limited to acts of God, the internet, hacking, viruses, pandemics, power outages, wars, riots, terrorism, labor disputes, earthquakes, government action, labor troubles, production or engineering difficulties, or inability to obtain or shortage of raw materials, parts, equipment, or transportation, then the performance of such obligations, insofar as they are affected by such cause, shall be excused during the continuance of the inability so caused.
16. Severability. If any term or provision of these Terms shall, to any extent, be determined to be invalid or unenforceable by a court or body of competent jurisdiction, the remainder of these Terms shall not be affected thereby, and each term and provision of these Terms shall be valid and enforceable to the fullest extent permitted by law.
17. Governing Law and Jurisdiction. These Terms and the sale, delivery and installation of the Bumblebee Products to Customer shall be governed by and construed in accordance with the laws of the State of California, including its conflicts of law rules. Customer agrees that any dispute arising from or relating to the subject matter of these Terms shall be governed by the exclusive jurisdiction and venue of relief in any state or federal court located in the State of California.
18. No Waiver. If any portion of these Terms are found to be unenforceable or invalid, the remaining portion will remain in full force and effect. If Bumblebee fails to enforce any of these Terms, it will not be considered a waiver. Any waiver of these Terms must be made in writing and signed by Bumblebee.
19. Transfer. Customer cannot transfer any of its rights or obligations under these Terms without the consent of Bumblebee. Bumblebee may assign, transfer, or delegate any of its rights and obligations without prior consent, whether as part of a merger, acquisition, sale of assets, or otherwise.
20. No Agency or Authority. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
21. Section Headings. The section and paragraph headings in these Terms are for convenience only and shall not affect their interpretation.
Terms Last Updated: February 23rd, 2021.