Terms of Service

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. 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 device (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 conditions (e.g. temperature, humidity, pressure, door position, etc.) and associated firmware.

·     “Logger” - a data collection device (and associated firmware) to log data for monitoring of inbound and outbound environmental conditions; and

·     Repeater” - a cellular repeater device to extend the range of cellular service within a facility.

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) your signature on our quotation form; (b) your acceptance of  a quote generated through our Customer Portal, or (c) your acceptance of our quote or ordering document by submission of a purchase order, email order or other confirmed method of acceptance or (d) 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 environmental conditions 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 of non-renewal at least 120 days before expiration of the then-current term.

1.14 “System” - the system we make available under an Order for monitoring and reporting  applicable environmental conditions, 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 EquipmentAll 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 services 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.

4.4.1    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 installation when used in accordance with the Documentation and the terms of the Agreement.  As your exclusive remedy for breach of this warranty, we will promptly repair or replace any such Purchased Equipment we confirm to be non-conforming.

4.4.2    Optional Extended Warranty.  If you have purchased the optional Gold Warranty, we warrant that Purchased Equipment we provide under an Order will, during the entire Gold Warranty Term, be free from defects in materials and workmanship and will perform in accordance with the applicable published specifications when used in accordance with the Documentation and terms of the Agreement.  The Gold Warranty is non-transferable and may be canceled if you fail to honor your obligations under the Agreement.  The Gold Warranty is not available for Smart Dish Guard® thermometers.

4.4.3    Warranty Remedies.  As your exclusive remedy for breach of the above warranties, we will promptly repair or replace Purchased Equipment confirmed to be non-conforming.  The damaged or malfunctioning Purchased Equipment must be returned to us at your cost and we will replace it with a refurbished or new unit to be shipped to you at your cost via UPS ground.  Shipping charges will be added to your invoice.  We may use or supply remanufactured parts when replacing failed 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 LimitationsThe 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 or intentional damage; (b) installation, 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; or (e) 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 other 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.  The full purchase price for a shipment 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) we incur 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. Separate charges for shipping and handling will be shown on the invoice(s).  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.  If applicable, a separate charge for taxes will be shown on the 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 per our then current data-retention practices.

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 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 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. No party hereto will be liable for the reproduction, disclosure or use of any Confidential Information if such information is:(a) publicly available or later becomes publicly available other than through a breach of this Agreement; (b) known to the receiving party or their respective employees, agents or subcontractors 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, or their respective employees, agents or subcontractors, 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 MarkingsYou 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 ObligationsYou (A) will access and use the Management System only in accordance with the Agreement and the applicable Documentation, (B) 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, (C) 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, (D) 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, or (E) will not tamper with or breach the security of the Management System.

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 SystemYou, 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.  WE will have no liability for any loss, liability or damages whatsoever arising from, in connection with, or as a consequence of any spoilage or loss of contents of any refrigeration unit.

10.2 Liability.  Our aggregate liability to You under any order will not for any reason exceed the amount You HAVE PAID under such order during the 12 month period immediately prior to the occurrence of facts giving rise to the claim.

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 accrued through the date of termination.

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 eventually be deleted under our data retention policy) 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 and 13) 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 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 assignmentThis 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 are 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.

Effective: October 18, 2018

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