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
“Associated Services” – optional
services (e.g. program management, analytics, custom reporting, enhanced support,
etc.) we provide at additional charge for use with the Service.
“Data” - available data
collected in connection with your use of the System.
“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.
“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
· “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.
“Fees” - Fees for the Service and
Associated Services we provide under an Order.
“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.
“Mobile App” - a downloadable
software application and associated Updates for accessing and using the
Management System via a Mobile Device.
“Mobile Device” - a smart phone,
tablet or handheld device you supply, compatible with our Mobile App, for use
with the System.
“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.
“Purchased Equipment” – Equipment we
provide under an Order which is not designated as Subscription Equipment.
“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.
“Subscription Equipment” – Equipment specifically
identified as Subscription Equipment in an Order.
“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
“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
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
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.
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
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.
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.
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
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.
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
System Availability during a calendar month
Credit, as % of invoiced amount for the month
but at least 99.80%
but at least 99.00%
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.
Purchased Equipment Warranty.
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.
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
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.
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
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 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
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.
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.
Support Services. We will provide you with access to our then-current standard
support services for SmartSense subscribers (“Support”).
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.
Equipment Purchases. The full purchase price for a
shipment will be invoiced upon delivery to the FOB point.
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
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.
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.
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.
Confidential Information. “Confidential Information" means any technical or
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.
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.
Exclusions. The foregoing obligations respecting “Confidential
Information” will not apply to information 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.
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
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.
Acceptance. All goods and services will be deemed
accepted at the time of delivery. All
warranty remedies survive such acceptance.
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.
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.
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
Use Obligations. You (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
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
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
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
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.
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 (“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.
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).
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.
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.
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.
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
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.
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.
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.
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 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.
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: March 20, 2019