The following terms (the “Terms”)
are an integral part of the Agreement between Digi SmartSense, LLC [or, for
Canadian sales, Digi SmartSense Canada] (“SmartSense”
or ”we” and related pronouns) and
the customer named in an Order (”you”
and related pronouns).
By executing (by signature or click agreement) an Order that
references these Terms, you agree to the terms of the Order and these Terms,
which together with any mutually agreed addenda, form a binding agreement (the
“Agreement”).
1. Definitions
1.1 “Associated Services” – optional
services (e.g. installation, program management, analytics, custom reporting,
enhanced support, etc.) we provide at additional charge for use with the
Service.
1.2 “Data” - available data
collected in connection with your use of the System.
1.3 “Documentation” - our
then-current electronic or printed content describing the functions, features,
specifications or certifications of the System elements and Associated Services
we provide. Documentation excludes all
proposals, demonstrations and marketing, sales and training materials.
1.4 “Equipment” - any of the
hardware products we provide under an Order, such as:
· “Probe” - a handheld environmental monitoring Sensor (and associated
firmware) for manual insertion into products you wish to monitor;
· “Gateway” - a wireless gateway used to transfer data collected from
Sensors and Probes to the Management System over the Internet (via Ethernet,
Wi-Fi or cellular transmission, as the case may be);
· “Sensor” - a data collection device for measuring environmental or
physical conditions (e.g. temperature, humidity, pressure, door position, etc.)
and associated firmware.
· “Logger” - a data collection device (and associated firmware) to log
Sensor Data for monitoring by the Management System; and
1.5 “Fees” - Fees for the Service and
Associated Services we provide under an Order.
1.6 “Management System” - our cloud and app-based
monitoring database and reporting system for use with Equipment we provide
under the Agreement. The Management
System includes Mobile Apps.
1.7 “Mobile App” - a downloadable
software application and associated Updates for accessing and using the
Management System via a Mobile Device.
1.8 “Mobile Device” - a smart phone,
tablet or handheld device you supply, compatible with our Mobile App, for use
with the System.
1.9 “Order” - a binding
order covering the provision of Services and Equipment under these Terms. An Order will result from one of the following: (a) mutual written agreement by the parties;
(b) your signature on our quotation form; (c) your acceptance of a quote
generated through our Customer Portal, or (d) your acceptance of our quote or
ordering document by submission of a purchase order, email order or other confirmed
method of acceptance or (e) our confirmation of (or shipment in response to) your
emailed request for product shipment or purchase. In each case, your acceptance of the Order indicates
your agreement to the terms in our quotation or other ordering documents and to
these Terms, which together form the Agreement for such Equipment and
Service. Any additional or conflicting
terms and conditions you submit, unless expressly accepted by SmartSense, are
expressly rejected and are not applicable to the Order.
1.10 “Purchased Equipment” – Equipment we
provide under an Order which is not designated as Subscription Equipment.
1.11 “Service” – the service we provide for
monitoring and reporting applicable Sensor Data through the combination of our
Management System with other elements of the System.
1.12 “Subscription Equipment” – Equipment specifically
identified as Subscription Equipment in an Order.
1.13 “Subscription Term” - the subscription
term specified in the Order and any renewal terms. Except as otherwise specified in the Order,
the Subscription Term will begin upon shipment or electronic availability of
System elements covered by an Order and have a term of 12 months. The Subscription Term will be subject to
successive automatic renewals for periods of 12 months unless either party
provides notice (per section 13.1) of non-renewal at least 60 days before
expiration of the then-current term.
1.14 “System” - the system we make
available under an Order for monitoring and reporting applicable Sensor Data, including
all or some of the following elements: Equipment,
the Management System (including Mobile Apps) and associated Documentation. (System elements may vary depending on your
needs). For the purpose of uptime, the
term “System” will refer to the following elements of the Management System
relating to uptime: sensor data
ingestion service, web application platform (Insights), API service, and reporting
service.
2. Subscription. During the Subscription
Term and subject to the terms of this Agreement, you subscribe to the Service (and
applicable Associated Services) and we grant you a non-transferable,
non-exclusive license to access and use the Management System (including
applicable Mobile Apps) in connection with Equipment we provide under the Order
and Mobile Devices you provide. These
rights are granted only for access and use in accordance with the applicable
Documentation and these Terms.
3. Equipment and
Software.
3.1 Purchased Equipment. All
Equipment provided under your Order will be Purchased Equipment except for
Equipment specifically identified in your Order as being Subscription
Equipment. All Purchased Equipment is sold FOB shipping point (origin), freight
prepaid and added to invoice. We will
invoice the full purchase price for Purchased Equipment upon delivery to the
FOB point. You will be responsible for
all import and export fees, costs of shipping, duties and any applicable taxes.
3.2 Subscription Equipment. Subscription Equipment provided under an
Order will remain our property and may be used only as part of your
subscription. You agree to promptly
return all Subscription Equipment to us at the expiration or termination of your
subscription or the applicable Order. For any Subscription Equipment we do not receive within 30 days after
termination or expiration of the applicable Subscription Term, we will invoice you
and you will pay within 30 days thereafter our then-current list price for such
Equipment.
3.3 Claims for Omitted or Damaged Equipment. You waive any claims for omission of products in the shipped goods,
shortages of product, or damaged goods in a shipment unless you provide us with
notice within 10 days after your receipt of shipment.
3.4 Software. All software is owned by us or a third-party
licensor who will retain exclusive right, title and ownership of the
software. You are granted a limited,
personal, non-exclusive license, without the right to sublicense, to use the
software only with the specific System elements covered by the applicable Order.
3.5 Installation. Unless otherwise specified in your Order,
installation of all Equipment will be by you at your expense. We can provide
installation as an Associated Service upon request and at our standard labor
rates.
4. Warranty and
Uptime.
4.1 Management System Warranty. We warrant that the Management System we
provide under an Order will, during the Subscription Term, perform
substantially in accordance with the applicable published specifications when
used in accordance with the Documentation and the terms of the Agreement. This warranty does not cover non-material variations
of performance from the published specifications or other Documentation. As your exclusive remedy for breach of this
warranty, we will use commercially reasonable efforts to provide a correction,
Update, upgrade or replacement of the non-conforming element to make it conform
to this warranty and, if we are unable to do so within 30 business days after
confirmation of the non-conformance, either party may terminate the affected
part of the Service, in which case we will refund you a pro-rated amount of the
Fees you have paid for such Service during the period of confirmed
non-conformance.
4.2 System Uptime. We will use best efforts to keep the System
available to you no less than 99.95% of the time, as measured 24x7x365 and by
the absence of Downtime. “Downtime” will
mean when the System is unavailable to you, provided that Downtime will not
include scheduled interruptions we notify you about at least 24 hours in
advance or problems associated with Internet connectivity, cellular
connectivity, power or network outage, or any other intermediary system. As your sole remedy and our sole liability
for failure to achieve the System Availability targets shown below, we will issue
a credit against future Fees per the below table. In order to receive these credits, you must
notify us within two (2) business days after the Downtime interruption occurs
and the Downtime must be subject to our verification. Downtime will begin to accrue when we (or you
with notice to us) recognize that such Downtime is occurring and will continue
until the availability of the System is restored. If we fail to achieve Uptime of at least 99% for
3 consecutive months (or for 4 months in any 6 consecutive month period), you will
have the right, exercisable within 30 days after that occurrence, to terminate the
affected Order.
System Availability during a calendar month |
Credit, as % of invoiced amount for the month |
Below 99.95% but at least 99.80% |
5% |
Below 99.80% but at least 99.00% |
10% |
Below 99.00% |
20% |
4.3 Associated Services
Warranty. We
warrant that Associated Services we provide under an Order will, during the
Subscription Term, perform substantially in accordance with the Documentation
and any applicable published specifications when used in accordance with the
terms of the Agreement. This warranty
does not cover non-material variations of performance from the published
specifications or other Documentation. As your exclusive remedy for breach of this warranty, we will re-perform
the Associated Service to achieve conformity with this warranty and, if we are
unable to do so within 30 business days after confirmation of the
non-conformance, either party may terminate the affected Associated Service, in
which case we will refund you a pro-rated amount of the Fees you have paid for
such Associated Service during the period of confirmed non-conformance.
4.4 Purchased Equipment Warranty.
a. Standard Warranty. We warrant that Purchased Equipment we
provide under an Order will be free from defects in materials and workmanship
for a period of one (1) year (6 months in the case of Smart Dish Guard® wireless
thermometers) from date of shipment when used in accordance with the
Documentation and the terms of the Agreement.
b. Warranty Remedies. As your exclusive remedy for breach of the
above warranties, we will, at our sole option, promptly replace or repair Purchased
Equipment confirmed to be non-conforming or retain such equipment and refund
the amount we were paid for it. In
response to your report of a warranty claim, we will promptly (1) issue an RMA
for the return of the Purchased Equipment you report to be non-conforming (the
“Claimed Equipment”) and (2) send you a replacement unit (or refund the
purchase price if no replacement unit is available). The Claimed Equipment
must be returned to us at your cost within 30 calendar days after our issuance
of the RMA number. If you fail to return
the Claimed Equipment with the 30 days, or if we cannot confirm that the
Claimed Equipment is the subject of a valid warranty claim: (1) we will bill
you for the replacement equipment at our then-current MSRP or pre-established
contract price, whichever applies, as well as shipping charges (including
charges for expedited shipping you have requested), and (2) you will remit
payment for such replacement equipment and shipping in accordance with the payment
terms applicable to your agreement (normally net 30 days). Unless you
purchase replacement installation service from us, you will be responsible for
installing the replacement Equipment in accordance with our instructions. We may use or
supply remanufactured parts when replacing Claimed Equipment. A deductible may apply.
4.5 Subscription Equipment Replacement. We provide no warranty with Subscription
Equipment, since it remains our property and you are not purchasing it. Instead, we agree to promptly provide a
conforming replacement for any item of Subscription Equipment which fails to
perform in accordance with the applicable published specifications when used in
accordance with the Documentation and terms of the Agreement. Any lost or damaged
Subscription Equipment must be replaced by you at your expense at our
then-current pricing.
4.6 Exclusions and Limitations. The above warranties are the only warranties we
provide in connection with the Equipment and Services. These warranties (and our obligations to
replace failed Subscription Equipment) are void and do not apply to the extent
a claim results from (a) loss of equipment, abuse, misuse (including uses prohibited
by this Agreement) or intentional damage; (b) installation (other than by us),
deployment, use, maintenance or support not in accordance with the
Documentation; (c) modifications to System elements by you or a third party not
authorized by us; (d) events of force majeure; (e) factors beyond our control
(including but not limited to radio transmission interference and faults in or
unavailability of telecommunications networks); (f) incompatibility of
Equipment with wireless network technology other than that specified for the
Equipment; or (f) any breach of the Agreement by you. The above warranties and replacement
obligations do not apply to System elements not provided by us. Except as expressly set forth in this
section, the System elements we supply are provided “AS IS.” THE WARRANTIES AND OBLIGATIONS STATED IN THIS
SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT, WHICH WE EXPRESSLY DISCLAIM. We do not warrant that the Management System, Equipment or other System
elements will be uninterrupted, error-free, unbreachable or will meet your
quality and performance requirements.
5. Other Support.
5.1 Updates. When reasonably practical, we will alert you
and other customers in advance before releasing Updates. We will install Updates as they become
available to the Management System and, when reasonably practical, cause
Updates to automatically install in Mobile Apps. If an Update requires you to download the
Update to your Mobile Device(s), we will inform you of the required download
procedure and you will complete the download. The term “Updates” means
maintenance releases, error corrections, additions, changes, modifications,
extensions, new versions and new releases of software or firmware by us for the
System, excluding new products or services we elect to sell separately.
5.2 Support Services. We will provide you with access to our then-current standard
support services for SmartSense subscribers (“Support”).
6. Payment.
6.1 Fees for Services. Fees for the Service and Associated Services we provide will be
invoiced directly (unless you arrange to pay the Fees by credit card). Unless otherwise specified in an Order,
billing for subscription Fees will be annually in advance. Recurring Subscription Fees will begin following
shipment of associated Equipment. Fees
for Associated Services will be as specified in the applicable Order. If not so specified, the Associated Services
will be billed at standard prices.
6.2 Equipment Purchases. Prices (including any applicable
services charges and fees) will be as presented on the Order and payments for
shipments will be invoiced upon delivery to the FOB point.
6.3 Payment and Credit Terms. Payment terms are net 30 days from invoice date with approved credit. You will make all payments according to the
instructions on the face of the invoice. Acceptable forms of payment include check, money order, wire transfer,
SWIFT Transfer, VISA, MasterCard, or American Express. Invoiced amounts are payable
in US Dollars (except for Canadian sales, where invoiced amounts are payable in
Canadian Dollars). If you have not
established credit with us, we may require payment in advance. We reserve the right at any time and for any
reason to modify, suspend, or terminate any credit terms previously extended to
you. We may refuse or delay service or
shipments for your failure to pay amounts you owe us, whether on this or any
other contract between the parties. We
may add a 1.5% per month service charge (or the maximum permitted by law if
less) to delinquent accounts. You will
pay the reasonable costs, charges, and expenses we incur (including attorney's
fees) if the account is placed in the hands of an attorney or an agency for
collection. Prices are subject to change
without notice.
6.4 Shipping Charges; Taxes and Other Costs. Prices do not include costs of shipping, forwarding,
insurance or similar fees, storage after delivery, or any import or export
duties, or sales, use, excise or similar taxes levied by any governmental
authority. You will be responsible for
such costs and we will include them on our invoices. Unless you provide us with a valid and correct tax exemption certificate
applicable to the product ship-to location prior to our acceptance of the Order,
you are responsible for sales and all other taxes associated with the
Order.
6.5 Fees for Cancelled, Re-scheduled, or Prevented Associated Services. We reserve the right to charge the full service fee (and any incurred
out-of-pocket expenses, such as travel re-booking fees) for any on-site Associated
Services which (a) are cancelled or re-scheduled less than five business days prior
to the scheduled date or (b) we are unable to perform due to lack of access or
necessary support during the scheduled visit.
6.6 Invoice Format; Use
of Third-Party Invoice Management Applications. Unless otherwise mutually agreed in writing, we will provide
invoices electronically via email to your contact of record. If we agree to provide invoices via another
means (including mail or via third-party invoice management applications), we reserve
the right to charge a processing fee of $25 per invoice.
7. Data.
7.1 Your Access. You may access your available Data during the
Subscription Term and successive renewal periods through the reporting features
of the Management System. Data will be
retained for two (2) years after it is collected for as long as you maintain a
subscription. Your data may be removed
from our systems 30 days after the end of your subscription.
7.2 Our Use. We may use your Data to provide the Service
and associated Support, but we will not otherwise use or disclose your Data
except (a) data excluded from confidentiality obligations per section 8.3, and
(b) anonymized data (with all identifying information unique to you removed) for general reporting and management of our Service.
8. Confidentiality.
8.1 Confidential Information. “Confidential Information" means any
technical or non-technical information related to the operations, products,
technology, services, or business of a party disclosed or otherwise provided in
any manner by such party to the other party, or to which the receiving party
may gain access while performing under the Agreement, whether disclosed orally,
visually or in writing, and whether or not bearing any legend or marking
indicating that such information or data is confidential. Your Confidential Information includes your
Data, confidential reports, financial and operational information, and other
matters relating to the operation of your business. Confidential Information
also includes the terms and conditions of the Agreement and proprietary or
confidential information of any third party that may be in the disclosing
party's possession. Our Confidential
Information includes the Management System, the Documentation, and pricing of
the Management System and other System elements.
8.2 Nondisclosure. During the term of this Agreement and for a period
of 3 years thereafter, each party will: (a) hold the other's Confidential
Information in confidence, using the same degree (but no less than a reasonable
degree) of care and protection that it exercises with its own confidential
information of a similar nature; (b) not directly or indirectly disclose, copy,
distribute, republish or allow access to any Confidential Information of the
other party to a third party; and (c) not use the other party's Confidential
Information for any purpose other than as necessary to fulfill such party's
obligations or exercise its rights under this Agreement. Notwithstanding the
above, either party may disclose Confidential Information if so required by applicable
law or regulation (including court order or subpoena or other governmental
decree or authority), provided that the receiving party, if required by
governmental authority to reveal Confidential Information of the disclosing
party will, if allowed by applicable law, notify the disclosing party promptly
upon learning of the government requirements and before making such disclosure,
and will provide the disclosing party with an opportunity (at the disclosing
party's own expense) to seek a protective order or other appropriate procedure
so that the disclosure, if required, can be made in a manner than preserves the
confidentiality of the Confidential Information.
8.3 Exclusions. The foregoing obligations respecting “Confidential
Information” will not apply to information or Data which the receiving party
can show was:(a) publicly available or later becomes publicly available other
than through a breach of this Agreement; (b) known to the receiving party prior
to such disclosure; (c) independently developed by the receiving party without
the benefit of access, directly or indirectly, to Confidential Information of the
disclosing party; or (d) subsequently lawfully obtained by the receiving party
from a third party without obligations of confidentiality.
9. Additional Terms.
9.1 Amendments to Orders. By mutual agreement, you and we can amend any outstanding Orders
to add Equipment and/or Service locations, provided that no amendments may be
made to a shipment after delivery to the F.O.B. point. You can request such changes via telephone or
email and the changes to your Order will become effective when we confirm them
in writing (electronically or otherwise). Subsequent invoices will reflect the new Equipment and associated
Services.
9.2 Documentation. You will follow and comply with all care and
use instructions applicable to the System and System elements in the
Documentation. You may make copies of
the Documentation for your own internal use in connection with your use of the
System, but no more than reasonably necessary.
9.3 Acceptance. All goods and services will be deemed
accepted at the time of delivery. All
warranty remedies survive such acceptance.
9.4 Intellectual Property. The Management
System and other System elements are our intellectual property. As between you and us, we retain title to and
ownership of all right, title and interest in such assets, including all
intellectual property and other proprietary rights therein. All rights not expressly granted herein are
reserved by us. You
will not: (a) provide access to or use the Management System for any purpose
separate from the System covered by the Order; (b) disassemble, reverse
engineer, decompile, disassemble or otherwise attempt to derive the source code
of the Management System or any other System element; modify, port, adapt,
translate or create any derivative work based upon the Management System or any
System elements. We may seek an
injunction to enforce these obligations.
9.5 No Transfer. Unless you have been granted rights as an
authorized reseller, you will not copy, distribute, sell, assign, pledge,
sublicense, lease, loan, rent, timeshare, use, offer on a service bureau basis,
deliver or otherwise transfer the Management System, in whole or in part. You will not copy or remove any software from
any Equipment except as directed in writing by us.
9.6 Proprietary Markings. You will not remove or modify any trademarks,
trade names, service marks, service names, logos or brands, or copyright or
other proprietary notices on any System elements or add any other markings or
notices to the same.
9.7 Use Obligations. You (A) will access and use the Management
System only in accordance with the Agreement and the applicable Documentation,
(B) will be responsible for determining the suitability of the Equipment and
Services for your intended use; (C) will not use the Management System or
permit the Management System to be used to perform any file storage or other
services for any third party, (D) will not upload or permit the Management
System to be used to upload any data that (1) infringes the intellectual
property rights or other proprietary rights of any third party, (2) is unlawful
or objectionable material or (3) contains software viruses or other harmful or
deleterious computer code, files or programs such as Trojan horses, worms, time
bombs or cancelbots, (E) will not use or permit the use of any software,
hardware, application or process that (1) interferes with the Management System,
(2) interferes with or disrupts servers, systems or networks connected to the
Management System, or (3) violates the regulations, policies or procedures of
such servers, systems or networks, (4) accesses or attempts to access another
customer's accounts, servers, systems or networks without authorization, or (5)
harasses or interferes with another customer's use and enjoyment of the
Management System, (F) will be solely
responsible for management of access to and security of your Data captured with
or used in any System element, including the Management System; and (G) will
not tamper with or breach the security of any System elements.
9.8 Cellular Service Terms. If your Equipment uses cellular wireless
services that you purchase from us, your use of such services will be subject
to our then-current standard terms of service for the applicable cellular
services.
9.9 No Conflicts. You represent and warrant that (i) the Agreement has been duly entered into and constitutes
a valid and binding agreement enforceable against you in accordance with its
terms; (ii) no authorization or approval from any third party is required in
connection with your entering into or performance of the Agreement; and (iii)
the entering into and performance of the Agreement does not violate the terms
or conditions of any other agreement to which you are a party or by which you
are otherwise bound
9.10 Compliance. You will comply with all applicable laws and
regulations in your use of the System. You, not we, are responsible for any applicable vertical or
industry-specific regulation compliance.
10. Limitations of
Liability
10.1 Exclusions. Neither
You nor We will be liable to each other for any indirect, incidental, punitive,
exemplary, special or consequential DAMAGES, or damages for loss of profits,
revenue or data, or will seek those types of damages. EXCEPT
WHERE CAUSED SOLELY BY OUR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, WE will
have no liability for any loss, liability or damages whatsoever arising from,
in connection with, or as a consequence of (A) any spoilage or loss of contents
of any refrigeration unit, (b) THE LOSS, UNAUTHORIZED ACCESS, MISUSE OR
COMPROMISE OF your DATA CAUSED IN WHOLE OR IN PART BY YOUR FAILURE TO ENFORCE
ACCESS CONTROLS OR IMPLEMENT SECURITY MEASURES RELATING TO SYSTEM DATA, OR (C)
MISUSE OF OUR SYSTEM OR SYSTEM ELEMENTS.
10.2 Liability. Our aggregate liability (whether in CONTRACT, TORT,
WARRANTY, NEGLIGENCE, INDEMNITY or otherwise) for ANY AND all claims arising
under this agreement will not for any reason exceed the amount You HAVE PAID US
FOR EQUIPMENT AND SERVICES under this agreement during the 12 month period
PRIOR TO THE INCEPTION OF THE CLAIM. FURTHERMORE, Our AGGREGATE liability (whether in CONTRACT, TORT,
WARRANTY, NEGLIGENCE or otherwise) for claims arising from EQUIPMENT AND
SERVICES PROVIDED UNDER any order will not for any reason exceed the amount You
HAVE PAID US FOR SUCH EQUIPMENT AND SERVICES under such order during the 12
month period PRIOR TO THE
INCEPTION OF THE CLAIM. the PRICING
FOR GOODS AND SERVICES HEREUNDER IS BASED ON THESE LIMITATIONS OF LIABILITY. IF
YOU ARE PURCHASING AS A MEMBER OF A GROUP PURCHASING ORGANIZATION OR ANY LIKE
ORGANIZATION THAT has negotiated PRICING DISCOUNTS on behalf of its MEMBERS (“gpo”),
THESE TERMS OF SERVICES are the AGREEMENT BETWEEN YOU AS PURCHASER US AND US AS
VENDOR AND YOU WILL NOT MAKE A CLAIM DIRECTLY AGAINST THE GPO FOR ANY ISSUES
WITH THE EQUIPMENT AND SERVICES WE PROVIDE; INSTEAD, YOU WILL DIRECT ALL SUCH
CLAIMS TO uS.
10.3 Force Majeure. We will not be in breach of the Agreement or
liable for damages from any circumstances beyond our reasonable control,
including (without limitation) fires, floods, natural disasters, power outages,
cybercrime, delays or disruptions by third parties (including without
limitation, communications providers or third-party service providers).
11. Termination
11.1 Termination. Neither party may terminate this Agreement
other than for cause if the other party fails to cure a material breach within
30 days after notice. If any Fees are
more than 10 days past due, we may suspend your use of the System until those
Fees have been fully paid. We will
continue to invoice during periods of suspension. After termination of the Agreement, you will
remain obligated to pay, and we will have the right to collect, all unpaid
invoices plus subscription Fees for the remainder of the full Subscription Term.
11.2 End of Management System and Access to Data. When the Agreement and Support terminates, you will no longer
have access to the Management System or the ability to generate reports
containing your available Data. If you
desire to use the Management System to create reports containing your available
Data when the Agreement is scheduled to expire or terminate, you may continue
to pay all Fees until you no longer desire access to the Management System
(after the Agreement terminates, all remaining Data will be deleted) unless
termination is due to failure to pay fees when they are due or a breach of the
Agreement terms.
11.3 Survival. The rights and
obligations which are continuing in nature (including Sections 6, 7, 8, 9, 10,
11, 13 and 14) will survive any suspension or termination of the Agreement.
12. Applicable Terms. These
Terms will apply and (except as mutually agreed in writing) remain unchanged
during the Subscription Term. The Terms in
effect at the time of renewal (posted at https://www.smartsense.co/terms-of-service) will apply to any renewal. If you have questions about these Terms or the use of the System, please
contact SmartSense customer support at https://help.smartsense.co.
13. General.
13.1 Notices. All “notices”
must be in writing and delivered electronically (if to SmartSense, at Smartsense.Notices@Digi.com) or by other method with proof of delivery. All other communications, requests or alerts
may be provided by fax, email, website or other electronic means.
13.2 Assignment. Neither party will assign this Agreement, in
whole or in part to a third party, without the written consent of the other
party; provided that (a) either party may assign this Agreement to an affiliate or to the surviving legal
entity in the case of its merger or consolidation, or to an entity to which
such party transfers all, or substantially all, of its business and assets
relevant to this Agreement, and (2) the party making the assignment will
promptly notify the other party of such assignment. This Agreement will be binding upon, and inure to the benefit of, the
parties and their respective successors and assigns.
13.3 Governing Law. This Agreement and any related sales will be
governed by the laws of the State of Minnesota, USA (except for Canadian sales,
which will be governed by the laws of the Province of Ontario). The United Nations Convention on Contracts
for the International Sale of goods will not apply.
13.4 Export
Restrictions. You will comply with all applicable United
States export control laws and regulations concerning export and re-export of
Equipment, technology and documentation, including without limitation, the laws
and regulations administered by the United States Department of Commerce and
the United States Department of State.
13.5 Disputes. The
parties agree that the courts of the State of Minnesota (or the courts of the Province
of Ontario for contracts with Digi SmartSense Canada) will have exclusive
jurisdiction over any claim, or dispute or controversy arising out of or
related to this Agreement. You
may not initiate any litigation or other legal claim against us if you have
known of the claim for more than one year. Each party will pay (without reimbursement
from each other) any attorney’s fees and expenses it incurs in connection with
any dispute.
13.6 Severability. Any waiver of or modification to the terms of the Agreement will be ineffective
unless executed in writing and signed by both parties. If any provision of these terms and
conditions is held to be unenforceable, in whole or in part, such holding will
not affect the validity of the other provisions of this document.
13.7 Complete
Agreement. The Agreement (as described above)
contains the complete agreement between the parties (and supersedes any prior
agreements) relating to the subjects of this Agreement. Any terms in any of your purchase orders or
other ancillary documents that are in conflict with or in addition to the terms
of the Agreement are rejected and will be of no effect unless expressly agreed
to in writing by both parties.
14. Additional Safetemps™ Terms. This section
will apply only if and to the extent your Order includes Safetemps™ Equipment
and/or Services.
14.1 Additional
Definitions.
a. the term
“Personal Data” means Data, if any, collected from or reasonably linked to an identified or identifiable
natural person, as defined by local, state, federal, or non-US data protection
laws; and
b. the term
“Documentation” as used in this Agreement excludes any references to Safetemps™
Sensors (or any other System elements) being suited for use as FDA-approved
medical devices or in clinical settings
14.2 Your Data.
a. Our Safetemps™ System is a tool we provide to help you scan and manage Data collected through our
infrared temperature Sensors. You will be solely responsible for:
· determining whether the Safetemps™ System is suited to your specific needs;
· the security and management of credentials used to access your
Data, including Personal Data, if any;
· compliance
with applicable laws and regulations relative to any Data, including Personal
Data, you introduce into the System or System elements;
· downloading and preserving any Data you may require for compliance
with applicable laws, including but not limited to OSHA, ADA, and public health
regulations; and
· downloading your Data from the Management System and running any
management reports you may need for compliance purposes prior to expiration or
termination of the Agreement.
b. The exclusion for
aggregate or de-identified data in Section 7.2, above, applies to Safetemps™ Data (with all identifying information unique to you and individuals monitored
removed) and to permit our general reporting to other users, to researchers,
and to public health and other government officials.
c. For the avoidance
of doubt, the term “YOUR DATA” in Section 10.1(B) includes any Personal Data.
14.3 Use Obligations. In addition to your
obligations under Section 9.7, above, you will use the Safetemps™ System only
as intended as a screening tool and will not use it or any Safetemps™ System
element as a medical device, as part of a medical device, in a clinical setting
or for diagnosis of a patient’s disease by a licensed healthcare provider.
14.4 Compliance. Your obligations under Section
9.10 for compliance with all applicable laws and regulations include (but are
not limited to) those regarding work safety, public health, cybersecurity, and data
privacy associated with your use of the Safetemps™ System. Your obligations under Section 13.4 include
your obligation to comply with any laws
related to cross-border transfers of Data, including Personal Data, or
“localization” laws that require copies of Data be retained in a particular
jurisdiction.