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Device Cloud by Etherios Terms of Service
PLEASE READ THESE TERMS OF SERVICE ("ToS") CAREFULLY, AS THEY REPRESENT THE TERMS OF A BINDING AGREEMENT (THE "AGREEMENT ") BETWEEN YOU AND THE ETHERIOS DIVISION OF DIGI INTERNATIONAL, INC. (“ETHERIOS” or "We" and related pronouns) AND GOVERNS YOUR USE OF OUR “DEVICE CLOUD BY ETHERIOS®" SERVICE. YOU WILL BE ACCEPTING AND AGREEING TO BE BOUND BY THESE TERMS BY: (A) EXECUTING AN ACCOUNT AGREEMENT OR ORDER FORM THAT REFERENCES THESE TERMS, (B) CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE TERMS, AND/OR (C) ACCESSING AND/OR OTHERWISE USING THE SERVICE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MUST NOT INDICATE YOUR ACCEPTANCE, MAY NOT USE THE SERVICES IN ANY WAY.
YOUR ACCEPTANCE OF THESE TERMS CONSTITUTES AN ESSENTIAL PART OF THE BARGAIN BETWEEN YOU AND ETHERIOS, WITHOUT WHICH ETHERIOS WOULD NOT AGREE TO EXTEND THE RIGHTS SET FORTH HEREIN.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement will become effective between You and Us upon Your acceptance of these ToS on the basis described above.
The Services are provided expressly subject to these ToS, and Your rights to use the Service are conditioned upon: (i) Your compliance with all provisions of these ToS, and (ii) Your timely payment of all applicable Fees (as defined in Section 4 below).
Etherios reserves the right, in its sole discretion, at any time and from time to time, to replace, modify, add to or retract/delete all or any portion of these ToS. It is Your obligation to review the most recent version of these ToS from time to time, posted at www.etherios.com/legal/devicecloudterms, to ensure Your continued acceptance hereof. Any revisions to these ToS will become effective, and will constitute and amendment to this Agreement, twenty (20) business days after such revisions are posted, unless You expressly accept the revised ToS as of an earlier date. Your continued use of the Service after the applicable effective date of such revisions will conclusively establish Your acceptance to be bound by the revised ToS. If You have questions about these ToS or the Service, please contact Etherios customer support at www.digi.com/support/.
1. DEFINITIONS. The following definitions apply to capitalized terms used in this document:
1.1 “Device Cloud” refers to Device Cloud by Etherios® service, a cloud-based infrastructure that provides TCP/IP-based communication with a Registered Device or between a Registered Device and a software application.
1.2 “Your Account” means a Device Cloud account established for You in accordance with the Account Agreement or the trial account created from Your registration for a free trial through our website.
1.3 “Account Term” means the duration of Your Account, which (unless earlier terminated per these ToS), will be the Initial Term identified on Your Account Agreement plus any renewal periods created per section 4.1, below, or the duration of Your free trial period if You register on our website for a free trial.
1.4 “Services” or “Service” refers to the Device Cloud services identified in the Service Description portion of the Account Agreement or the services applicable to Your free trial. Such Services may include device management services, data communications services, subscription-based applications, and/or other services that may be introduced in the future. The term “Services” may refer to a single service or a collection of services and/or subscription-based applications.
1.5 “User” means an individual You have authorized to use the Services.
1.6 “Enabled Device” means a Device Cloud-capable device rightfully under Your control.
1.7 “Registered Device” refers to an Enabled Device registered on Device Cloud.
1.8 “Third-Party Supplier” means an infrastructure provider or entity that supplies other technologies or services used by Device Cloud. This term includes those which provide services [example: mapping services] for use by other solution providers (like Device Cloud), where the service is hosted by the Third-Party Supplier and is not within the control of Etherios.
1.9 “Terms of Service” or “ToS” refers to the most current version of the terms of service applicable to Device Cloud by Etherios, which will be posted at www.etherios.com/legal/devicecloudterms. The Terms of Service will include any referenced attachments and Exhibits, which will be an integral part of those terms.
2. FREE TRIAL
2.1 If You register on our website for a free trial, We may make one or more Managed Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Managed Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Managed Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.2 During Your free trial, we will at no cost provide to You (and You agree to the terms and conditions applicable to) the Managed Device Monitoring Service for Trial Subscribers described in section 7, below.
2.3 ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
2.4 Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services.
3.YOUR USE OF THE SERVICE
3.1 During the Account Term, We grant You the right to use the Services subject to (a) timely payment of all charges in Your Account and (b) the terms of the Account Agreement. We reserve all other rights not expressly granted in the Account Agreement, including these ToS.
3.2 You will be solely responsible for:
(a) maintaining the security of each Enabled Device, Your Account, passwords and files,
(b) all use of the Services (including payment of fees associated with those uses) occurring as a part of Your Account, whether or not authorized by You or done with Your knowledge or consent, and
(c) all data, information or other content transmitted over or uploaded to Device Cloud as part of Your Account.
3.3 As a condition to using the Services, each User of the Services may be required to register and select a password and user name ("User ID"). You will ensure that Your Users provide accurate and complete, registration information and will update their registration information, as necessary, to keep it current. Your Users may not (i) select or use as a User ID a name of another person with the intent to impersonate that person; or (ii) use as a User ID a name subject to any rights of a person other than such User without appropriate authorization. Each User ID will be assigned to (and may only be used by) one unique User and You will ensure that each User ID will not be shared with or used by any party other than the unique User to which it is assigned.
3.4 You acknowledge that, except as expressly stated, each Party retains all rights in its trademarks, service marks, software, technology and intellectual property.
3.5 Your use of the Services is subject to the following policies of Etherios (or of its parent, Digi International, Inc.):
- Authorized Use Policy: www.digi.com/legal/authorized_use_policy
- Digital Millennium Copyright Act: www.digi.com/legal/dmca_statement
3.6 We retain the right to revise the policies referenced in the preceding subsection at any time, provided the changes are reasonable and consistent with industry practices, legal requirements, or the requirements of a Third Party Supplier.
3.7 If We conduct an investigation of Service outages, security problems, or a suspected security breach of Device Cloud, You agree to provide a reasonable level of cooperation to help facilitate Our investigation, to the extent warranted by the facts of the situation. If Your cooperation requires more than a small amount of time and effort, We will discuss in good faith an appropriate level of compensation.
3.8 Applicable law requires maintenance of a level of security or privacy for certain kinds of data. You will abide by all legal requirements regarding the data You transmit to or store in Device Cloud. For types of data where the law does not require a specific level of security or privacy, We recommend that You: (i) encrypt Your data prior to transmitting it to Device Cloud and (ii) do not disclose the encryption key to Etherios or any third party.
3.9 You represent and warrant that:
(a) in the event that You, Your Users, and/or anyone using Your Account utilize(s) any aspect of Device Cloud to transmit, receive, store, or process Protected Health Information ("PHI") as that term is defined by the Health Information Portability and Accountability Act of 1996 (“HIPAA”) and/or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) as amended and as implemented by the associated regulations (collectively, the "Acts"), You: (i) will fully comply with the Acts; (ii) will encrypt all PHI at rest and in motion and (iii) acknowledge that You do not consider Etherios as a Business Associate, as defined in the Acts.
(b) each Enabled Device, has, if required by law, all approvals and certifications by the Food and Drug Administration (FDA) and/or other federal and state regulators in connection with each device.
3.10 Unless and until You notify Us in writing to the contrary, We will have the limited right to use Your company name and logo to identify You as a customer for Device Cloud Services in our marketing communications and collaterals. As soon as reasonably practical after receipt of notice of termination of this right, We will cease further Use of Your name and logo, but will have no obligation to remove them from any pre-existing printed collateral materials We have in inventory.
3.11 Device Cloud provides a Carrier Integration Service (“CIS”) that allows You to manage the wireless service by which Your Enabled Devices communicate with Device Cloud. If You or Your Users make use of the CIS, You also acknowledge and agree as follows:
(a) Because the CIS must connect to Your wireless carrier’s system in order to provide integration with management features of the carrier and because We must have login credentials for Your wireless account in order to make the connection, You hereby grant Etherios the right to store Your login credentials on its servers and to make use of Your login credentials in order to provide the integration service; and
(b) the CIS may not be available for all carriers or for all Enabled Devices (because, among other reasons, a wireless carrier may alter or suspend its integration service, at its discretion).
4. YOUR ACCOUNT
4.1 At the end of the Initial Term and each renewal period, unless either Party gives the other party notice of non-renewal at least one month in advance, Your Account will be subject to automatic renewal for a renewal period equal to that of the Initial Term.
4.2 Unless otherwise stated in writing, fees for the Initial Term of Your Account will be payable upon signing of Your Account Agreement, and fees for any renewal period will be due and payable at the inception of such period. All fees are in US dollars, unless otherwise stated.
4.3 Fees for Your Account are payable regardless of whether Services are being used by a Registered Device. Fees are non-cancelable and non-refundable. Unless otherwise agreed in writing, Etherios reserves the right to change the amount of the fees or applicable charges and/or to institute new charges for any renewal period, provided that notice of such charges is provided at least thirty (30) days in advance of the renewal period. In addition, Etherios may introduce new features and functionalities, which may be made available to You at an additional cost.
4.4 You will be responsible for the payment of taxes of any kind [including any federal, state, local or foreign taxes, duties or levies but excluding taxes based on Our net income] imposed on or based on the provision, sale or use of the Services (“Taxes”). Except where You provide us with a valid and correct tax exemption certificate applicable to the Services, we will bill You for, and You will pay, any Taxes We are obligated to collect in connection with the Services provided under this Agreement. You will not rely on Us to determine taxability and will be responsible for assessing and paying any applicable use taxes when appropriate.
5. SUPPORT SERVICES
5.1 During the Account Term, we will provide support services in accordance with the then-current "Support Services Terms and Conditions for Device Cloud By Etherios" found at www.etherios.com/legal/devicecloudsupportservicesterms
6. NEW REGISTERED DEVICES, CHANGE OF EDITION; ADDITION OF BUNDLES; TERMINATION AND SUSPENSION
6.1 If You wish to add new Registered Devices to Your Account, You and We will execute an Addendum to this Account Agreement to include the new devices. The Addendum will identify the effective date for the expanded scope of the Device Cloud Services and any associated pricing. All other provisions of the Account Agreement (including those relating to its term and renewal) will remain unchanged.
6.2 If You request an upgrade to Your edition of Device Cloud, We will negotiate in good faith with You to negotiate a new Account Agreement to include the upgraded edition and to supersede and replace this Account Agreement. When such a new Account Agreement has become effective, We will issue You a credit memo, (applicable against amounts due under the new Account Agreement) for the pro-rated value of unused Services remaining under the superseded Account Agreement.
6.3 If You wish to add bundles to the Device Cloud Services, You and We will execute a new Account Agreement to include the new bundles for the remainder of the term of the existing Account Agreement, which will remain in effect and will not be superseded or replaced by the new Account Agreement. The new Account Agreement will be subject to the automatic renewal provisions applicable to the existing Account Agreement.
6.4 We may, without liability, suspend or terminate any or all Services to some or all of Our account holders (including You) or users (including Your Users): (a) following a possible or actual security breach or cyber-attack on Device Cloud; (b) in order to protect the Device Cloud network; or (c) if required by a governmental entity.
6.5 We may, without liability, suspend or terminate any or all Services in Your Account if: (a) You are engaging in suspected fraudulent or unauthorized use, (b) You or any of Your affiliates are listed on a government-issued restricted persons or entities list or warning list; (c) We, in Our discretion, determine that Your use of the Services (or that of Your Users) poses a business, technological or legal risk to Etherios or its customers; (d) You have breached the Account Agreement or other contract You may have with Etherios relating to Device Cloud; (e) Payments in Your Account are past due; (f) You fail to provide a reasonable level of cooperation in an investigation pursuant to subsection 3.7; (g) there are few or no data transactions in Your Account or (h) as otherwise provided in the Account Agreement.
6.6 Etherios may, without liability, suspend or terminate Services for a Registered Device (i) if You or Your User is using a device or equipment that is defective or illegal (ii) if the Registered Device is causing technical or other problems on Device Cloud or (iii) upon termination of Your Account.
6.7 Either Party may terminate the Agreement if the other Party becomes insolvent or is unable to pay its debts or enters into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or any similar laws of any state or country (a "Proceeding") provided the Proceeding is not stayed within forty-five (45) days of being filed.
6.8 Portions of the Account Agreement which by their nature should survive termination, will survive termination, including, without limitation, those respecting accrued rights to payment, warranty disclaimers and limitations of liability. However, upon termination, Your right to use the Services will immediately terminate.
6.9 Upon termination of Your Account, You will reconfigure Your Enabled Devices so that the devices are no longer attempting to communicate with Device Cloud. In the event Your Enabled Devices have not been reconfigured, as stated in this section, Etherios reserves the right to remotely and without notice to You reconfigure Your Enabled Devices so that each device no longer attempts to communicate with Device Cloud.
6.10 In the event You validly terminate the Service Agreement for cause per this section, We will refund to You a pro-rata share of any fees You paid in advance for Services through the date of termination. In no other case will We be obligated to refund any amounts paid to Us.
7. Managed device monitoring service
7.1 We offer a managed device monitoring service ("Managed Device Monitoring Service") to three types of subscribers of Device Cloud Services: (a) customers who have subscribed to Managed Device Monitoring Service as a paid service ("Paid Device Monitoring Subscribers"); (b) customers with a Developer Edition account ("Developer Zone Subscribers") and (c) customers who have registered for a free trial during the trial period ("Trial Subscribers"). In each case, the Managed Device Monitoring Service allows the subscriber to monitor the following data points about its eligible devices connected via the Device Cloud: (1) device connectivity, (2) free memory/RAM, (3) CPU utilization, (4) RSSI-XBee (if applicable to the device) and (RSSI-Cellular (if applicable to the device).
7.2 If You are a subscriber to the Managed Device Monitoring Service, You agree that we may:
(a) remotely install (push) software code (in Python) onto Your eligible devices to allow remote interrogation of the devices for the applicable data points;
(b) monitor these data points and provide You with periodic reports about these data points by posting the results to the Device Cloud support web portal and/or emailing the results to You; and
(c) remotely install (push) applicable firmware updates to Your eligible devices.
7.3 If You are a Paid Device Monitoring Subscriber, We will provide the Managed Device Monitoring Service for eligible devices under the terms of a separate agreement with You.
7.4 If You are a Trial Subscriber (during Your free trial period) or a Developer Zone Subscriber (during the term of You Developer Edition account), we will monitor and report on the above data points so You may evaluate the Managed Device Monitoring Service and determine if You wish to become a Paid Device Monitoring Subscriber.
7.5 As a Paid Device Monitoring Subscriber, Developer Zone Subscriber, or Trial Subscriber, You agree to allow Us to provide the Managed Device Monitoring Services described in section 7.2 (above) and acknowledge that if Your eligible devices are connected via wireless carrier, You will incur and be responsible for any incremental wireless data charges for any data transmitted in connection with the Managed Device Monitoring Services we provide.
8. Data Retention
8.1 Unless otherwise provided within Your Account, We will not retain data transmitted to Device Cloud on a long-term basis. We may, in Our discretion, purge Your data at any time. Typically, data are purged every 48 hours, but this may occur at intervals which are more or less frequent.
8.2 Upon termination of Your Account, We may, but are not obligated to, delete the data associated with Your Account.
8.3 Device Cloud includes an account feature (called "Data Streams") for long-term storage and access to Your data.
(a) Data Streams is a RESTful API for storing and accessing time-series data. With Data Streams, Your data are stored and then made accessible to You through Device Cloud.
(b) Data stored using Data Streams will be maintained (for the period applicable to Your Account Agreement) as long as Your Account is current and the Data Streams subscription is maintained within Your Account.
(c) If Your Account is terminated, the data will no longer be stored or accessible. It is advised that You download all of Your data before termination of Your Account or cancellation of Your subscription. Typically, We purge data after 10 calendar days, but this time period may vary within Our discretion.
9. SERVICES, WARRANTY
9.1 Services may be temporarily unavailable for scheduled or unscheduled maintenance by Etherios or Third-Party Suppliers, or for other causes beyond Our reasonable control. ETHERIOS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE. ETHERIOS MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND ETHERIOS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9.2 ETHERIOS SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, IMPLIED OR EXPRESS, FOR USES REQUIRING FAIL-SAFE PERFORMANCE OR FOR USES THAT REQUIRE IMMEDIATE, MISSION-CRITICAL, REAL-TIME DATA WHERE FAILURE COULD LEAD TO (A) PERSONAL INJURY OR DEATH, (B) PROPERTY DAMAGE OR (C) ENVIRONMENTAL DAMAGE. FOR EXAMPLE, THIS DISCLAIMER APPLIES TO, BUT IS NOT LIMITED TO, SOLUTIONS INVOLVING LIFE SUPPORT, MEDICAL DEVICES, NUCLEAR APPLICATIONS OR CRITICAL ASSET MONITORING. THE SERVICES ARE NOT DESIGNED FOR AND SHOULD NOT BE USED IN ANY OF THESE OR OTHER FAIL-SAFE APPLICATIONS
9.3 You acknowledge that (i) a TCP/IP connection between an Enabled Device and Device Cloud is required in order to make use of the Services; (ii) due to technical, geographic or political limitations or circumstances, You or Your Enabled Devices may not be able to communicate with Device Cloud and (iii) Etherios cannot guarantee that an Enabled Device will be able to connect to the Services from every geographic location. You are responsible for determining whether You or Your Enabled Devices are able to connect to Device Cloud and whether the connection is of a quality sufficient to meet Your requirements.
9.4 Etherios reserves the right to reduce the speed at which transactions are conducted within Device Cloud (i.e. to “throttle” transactions) if the size of transactions, individually or as a group, in Your Account, within a predefined period of time, adversely affects the overall performance of Device Cloud.
10. INDEMNITY AND LIMITATION OF LIABILITY
10.1 You agree to indemnify and hold harmless Etherios, its officers, directors, representatives, employees and agents against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with a claim or action against Etherios that arises from or is based on (i) an alleged violation of the Account Agreement by You or otherwise from Your use of Device Cloud or (ii) an alleged violation of law..
10.2 In the event any claim, suit or action is brought against You that alleges any Service infringes a third party’s U.S. patent or copyright, then Etherios shall provide You with indemnity through one of the following means at its sole option and expense: (i) procure for You the right to continue using the Service, (ii) modify the Service so that it is non-infringing, (iii) procure a replacement Service that has substantially the same functionality, or (iv) cease providing any Service under this Agreement and pay You the amount of Your actual damages derived from such claim, suit or action subject to a liability limits contained in these ToS. Our obligation under this subsection extend only to claims, suits or actions involving the Service itself on a standalone basis and Etherios shall have no obligations under this subsection to You: (a) if the technology comprising the Service has been modified in any way, (b) for claims, suits or actions involving in whole or in part the manner in which You used or are using the Service, (c) for claims, suits or actions based in whole or in part on the use of the Service in combination with other technologies, (d) use of the Service that violates the law, or (e) use of the Service in a manner for which it was not intended. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM, SUIT OR ACTION ALLEGING INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
10.3 We may use Third-Party Suppliers for data transport and storage. You acknowledge that storage technologies provided by Third-Party Suppliers may a utilize multi-tenancy architecture, which may allow parties not associated with Etherios or a Third-Party Supplier to store or transmit data within the same framework used to store or transmit Your data. You also acknowledge that the transmission and storage of Your data may result in Your data crossing through or residing in multiple political jurisdictions. Each of these jurisdictions may have unique provisions relating to the privacy of Your data and information.
10.4 You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of privacy, privacy data, Confidential Information, and property. You also acknowledge that there are risks inherent with transmitting log-in credentials, either for Device Cloud or for the CIS, over a public network
10.5 NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY, NEITHER ETHERIOS NOR ITS OFFICERS OR EMPLOYEES WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY CLAIM OR ACTION RELATED TO DEVICE CLOUD OR MANAGED DEVICE MONITORING SERVICES UNDER ANY THEORY, WHETHER UNDER THE LAWS OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANOTHER THEORY. UNDER NO CIRCUMSTANCES WILL ETHERIOS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. ETHERIOS WILL NOT BE LIABLE FOR (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) ANY MATTER BEYOND THE REASONABLE CONTROL OF ETHERIOS, EVEN IF ETHERIOS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING LOSSES OR DAMAGES; (C) ATTACKS ON OR HACKS OF YOUR DATA, WHETHER IN TRANSIT OR IN STORAGE; (D) PHYSICAL ATTACKS OR CYBER-ATTACKS UPON DEVICE CLOUD OR ITS NETWORK OR THE NETWORKS OR FACILITIES OF THIRD-PARTY SUPPLIERS; (E) THE BREACH OF OR LOSS OF PRIVACY OF E-MAIL ADDRESSES, REGISTRATION OR IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE-SECRET INFORMATION, OR ANY OTHER CONTENT STORED ON ETHERIOS EQUIPMENT, TRANSMITTED OVER NETWORKS ACCESSED BY DEVICE CLOUD, OR OTHERWISE CONNECTED WITH THE USE OF THE SERVICES; OR (F) ANY REMEDY BEYOND THE LIMITED REMEDY SPECIFIED IN SECTION 7.3 FOR FAILURE TO PROVIDE MANAGED DEVICE MONITORING SERVICES NOTIFICATIONS.
10.6 ETHERIOS MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON DEVICE CLOUD SITE OR ANY WEB-SITE LINKED TO THE DEVICE CLOUD SITE.
10.7 YOU ACKNOWLEDGE THAT A GOVERNMENTAL ENTITY MAY (A) INTERCEPT YOUR DATA OR (B) REQUIRE ETHERIOS TO DISCLOSE YOUR DATA OR INFORMATION.
10.8 IT IS AGREED THAT THE LIABILITY OF ETHERIOS WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES COLLECTED IN YOUR ACCOUNT OVER THE TWELVE (12) MONTH PERIOD PRECEDING THE ACCRUAL OF A CLAIM UPON WHICH LIABILITY IS BASED..
10.9 THE PRICE STATED FOR THE SERVICES IS A CONSIDERATION IN LIMITING ETHERIOS’ LIABILITY.
10.10 NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE ACCOUNT AGREEMENT OR THESE ToS MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
11. LEGAL COMPLIANCE
11.1 You may not transmit or otherwise export from the United States or allow the transmission of the Services in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
11.2 You represent and warrant that You are not a person to whom Etherios is legally prohibited to provide the Services and/or are not on any governmental list of restricted person or entities, including (i) the Commerce Department Entity List, Denied Persons List, and Unverified List; (ii) Treasury Department Specially Designated Nationals & Blocked Persons List; and (iii) State Department Debarred Parties List.
11.3 You may not use the Services in any situation where failure or fault of the Services could reasonably be expected to lead to (a) death or serious bodily injury of any person, or (b) to physical or environmental damage. Specifically, but without limiting the foregoing sentence, You may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation (while in transit), any function necessary to the safe operation of nuclear or chemical facilities, or medical devices classified as Class III under the Federal Food, Drug and Cosmetic Act.
11.4 You may not use the Services for
(a) Designing, developing or fabricating nuclear weapons or nuclear explosive devices; or devising, carrying out or evaluating nuclear tests or nuclear explosions.
(b) Designing, assisting in the design of, constructing, fabricating, or operating facilities for the chemical processing of irradiated special nuclear material, production of heavy water, separation of isotopes of any source and special nuclear material, or the fabrication of nuclear reactor fuel containing plutonium.
(c) Designing, assisting in the design of, constructing, fabricating, furnishing or modifying equipment for the fabrication of chemical or biological weapons, chemical precursors, viruses, viroid, bacteria, fungi or protozoa.
(d) Designing, assisting in the design, construction, fabrication or furnishing equipment for components specially designed, modified, or adapted for the above uses of for use in any such facilities.
(e) Training personnel in any of the above activities.
11.5 You may not provide access to the Services to any person or entity that would be prohibited from using the Services under this section 11.
11.6 You warrant that, with respect to any data which are by means of Your Account, collected, transmitted to Device Cloud, downloaded from Device Cloud or viewed using Device Cloud (in this paragraph, the “Data”): (1) You own or are otherwise entitled to collect the Data that passes through an Enabled Device; and (2) You have sufficient legal rights to allow You to use Device Cloud to transmit, download or view the Data. You also acknowledge that the law protects a third party’s rights in certain information and that Your unauthorized use of third party’s information may subject You to civil or criminal penalties.
12. APPLICATION SOLUTIONS
12.1 Unless otherwise specifically allowed by Etherios, in writing, You will not use Your Account to enable third parties to use or otherwise benefit from the Services without that third-party establishing a separate Device Cloud account in its own name.
12.2 Etherios grants an exception to subsection 12.1 for an Application Solution, as follows:
(a) In this subsection, the following terms are defined as follows:
1) “Application Solution” means an application or service framework that: (i) You make generally available to Your customers; (ii) uses the Device Cloud API; and (ii) uses Device Cloud Services to store and retrieve data from Registered Devices.
2) “End User” means a User who is Your customer and is using Your Application Solution.
(b) The following terms will apply to Application Solutions:
1) You will maintain an account agreement with each End User. That agreement, in addition to terms provided by You, must contain the terms set out in www.etherios.com/legal/devicecloudterms/app.
2) Use of Your Application Solution by an End User must not conflict with the Account Agreement. Consistent with subsection 3.3, You are solely responsible for all activity by End Users within Your Account.
3) If Your Account is terminated, End Users will lose Device Cloud connectivity features of Your Application Solution.
4) You are solely responsible for all sales, advertising, promotional and other expenses incurred in connection with promoting and selling Your Application Solution.
5) You have no authority to act on behalf of Etherios in any manner or to bind Etherios by any promise or representation unless specifically authorized in writing to do so by Etherios. Any terms between You and an End User are not binding on Etherios and liability resulting therefrom will be for You as account holder.
6) You will advise Etherios of any possible infringement of Our intellectual property rights related to use of the Application Solution and will take or assist Us in taking, all steps necessary or commercially reasonable to preserve and protect Our intellectual property rights in the Services.
7) You acknowledge that Etherios will have no obligation to prevent other parties within the areas or markets in which You do business from using Device Cloud or creating their own Device Cloud-enabled application or solution.
8) Consistent with the provisions of subsection 10.1, You agree to indemnify and hold harmless Etherios, its officers, directors, representatives, employees and agents against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with a claim or action against Etherios that is related to Device Cloud and that arises from or is based on activity by an End User.
9) It is acknowledged that (i) Etherios is not a party to any agreements between You and Your End Users; and (ii) Your End User is not a third-party beneficiary of any agreements between You and Etherios.
10) Your Application Solution will be hosted in an environment that uses security methods and malware protections that are, at a minimum, consistent with industry standards.
13.1 Confidential Information. For purposes of the Account Agreement, “Confidential Information” shall mean all information marked as “Confidential” or “Proprietary” and disclosed by one party to the other in connection with the Account Agreement. It includes, but is not limited to trade secrets and business matters such as research and development plans, manufacturing processes, management systems and techniques, the identity and profiles of customers and suppliers, and sales and marketing plans and information. Confidential information does not lose its status as Confidential Information merely because it was known by a limited number of persons or entities or because it was not entirely originated by the disclosing Party.
13.2 Confidentiality. During the performance of the Account Agreement, each Party may receive Confidential Information from the other. Each Party will treat Confidential Information as confidential and protect it from disclosure as it would its own information of a similar nature. Neither Party will disclose Confidential Information other than to those of its employees or agents who need to know such information for performance of the Party’s rights and obligations under the Account Agreement. Neither Party will use Confidential Information for any purpose beyond the exercise of its rights and performance of its obligations under the Account Agreement without the prior written consent of the other Party. All Confidential Information shall remain the property of the disclosing Party, and each Party will return or destroy any tangible materials containing such Confidential Information upon request of the other Party.
13.3 Exclusion. The obligations of confidentiality and protection imposed by this paragraph shall not apply, or shall cease to apply, to any information that: (a) was lawfully known by the receiving Party prior to its receipt hereunder; (b) is or becomes publicly available without breach of the Account Agreement by the receiving Party; (c) is lawfully received by the receiving Party from a third party who does not have an obligation of confidentiality to the disclosing Party; (d) is developed independently by employees of the receiving Party not having access to such Confidential Information or (e) has been transmitted or stored in an unencrypted state.
14.1 Etherios will not be liable for any failure or delay in the performance of its obligations hereunder on account of strikes, terrorist activity, shortages, riots, insurrection, fires, floods, power outages, storms, cybercrime, explosions, war, governmental action, labor conditions, earthquakes, terrorism, supplier bankruptcy or default, failure, delay or interruption by third parties, including without limitation, communications providers, or any other cause which is beyond its reasonable control.
14.2 You represent that You are not a government agency and are not acquiring the Services pursuant to a government contract or with government funds.
14.3 If any provision of the Account Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Account Agreement will otherwise remain in full force and effect and be enforceable.
14.4 Your rights and obligations under the Account Agreement are not assignable or transferable and cannot be sub-licensed to another party by You except with Our prior written consent. Etherios may transfer, assign or subcontract any of its rights and obligations under the Account Agreement without consent.
14.5 The Account Agreement is the complete and exclusive statement of the understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Account Agreement. All waivers and modifications of the Account Agreement must be in writing and signed by both parties, except as otherwise provided herein.
14.6 No agency, partnership, joint venture, or employment is created as a result of the Account Agreement or Your use of Device Cloud. You do not have authority to bind Etherios in any respect.
14.7 The Account Agreement will be governed by the laws of the State of Minnesota, without regard to its conflict of laws provisions. For purposes of jurisdiction over a claim under the Account Agreement, Your data are presumed to have resided or to have been transmitted exclusively within the state of Minnesota. Any action or proceeding arising out of or related to the Account Agreement may only be brought in the state or federal courts in Minnesota and exclusive venue will be in the Court having jurisdiction over the Hennepin County, MN. Each Party hereby consents to the exclusive jurisdiction of such courts with respect to such matters. English is the governing language for: (i) Device Cloud; (ii) Your Account; (iii) the Account Agreement; (iv) negotiations related to the Account Agreement or Your use of Device Cloud and (v) the resolution of disputes related to the Account Agreement or Your use of Device Cloud, including negotiations, litigation, mediation or arbitration. Versions of the Account Agreement or ToS that have been translated into languages other than English may be provided for convenience, but the English version is the only version that defines the rights and obligations of the parties.
14.8 If You have dealt with a third-party that is authorized to act as a services representative for the Device Cloud Services (in this section, referred to a “Representative”), You agree that:
(a) the Representative is not a party to agreements or terms relating to Your Account and
(b) except for substantial misrepresentations, gross negligence or intentional misconduct by the Representative, You release the Representative from all claims and liability related to Your Account or Your use of the Services.
15. SPECIAL TERMS: EUROPEAN ECONOMIC AREA OR SWITZERLAND
15.1 DEFINITIONS. For the purposes of this Section [Special Terms: European Economic Area or Switzerland], the following definitions shall have the following meanings:
(a) “Adequate Countries” means those jurisdictions identified by the European Commission from time to time as providing adequate data protection under Article 25 of the Directive;
(b) “Data Controller” means a natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or European Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or European Community law;
(c) “Data Processor” means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller;
(d) “Data Protection Rules” means the national laws that apply to the Processing of Personal Data which implement the Directive, as well as applicable privacy and information security laws and regulations that apply from time to time to Personal Data;
(e) “Data Subject” means an identified or identifiable natural person whose Personal Data is subject to Processing; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
(f) “Directive” means the Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 on “the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of such Data” as amended or replaced from time to time;
(g) “Personal Data” means any information relating to a Data Subject; and
(h) “Process”, “Processing” or “Processed” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
15.2 YOUR RESPONSIBILITY AS DATA CONTROLLER
(a) If You are located in (or You collect and use Personal Data on equipment located in) the European Economic Area or Switzerland (collectively: “EEA”), separate rules apply to Processing of Personal Data. When using the Services, You understand that You qualify as a Data Controller with respect to Personal Data transmitted over or uploaded to Device Cloud. As a Data Controller You decide on the Processing and are responsible for compliance with sections 3.5 and 3.8 of these ToS, the Data Protection Rules and the provisions of this section.
(c) Due to the nature of the Device Cloud structure, it is Your responsibility to keep Personal Data transmitted over or uploaded to Device Cloud, including on Enabled Devices, confidential and secure when under Your control. You should use technical means, such as encryption, to ensure Personal Data is kept confidential and will comply with the requirements of these ToS.
(d) As a Data Controller, You are also responsible for providing Data Subjects with the opportunity to access, rectify, erase, block and object to the Processing of their Personal Data. Etherios will work together with You in order to support You in complying with the exercise of these rights. To the extent that Etherios uses subcontractors, these contractors will similarly cooperate.
15.3 SECURITY, ACCOUNTABILITY
(a) Etherios takes reasonable security measures to protect against the loss, misuse and alteration of data under its control. Etherios infrastructure has passed SSAE-16, ISO 27001 audit certifications. Nevertheless, it is Your responsibility to comply with the Data Protection Rules and to keep Personal Data uploaded in or transmitted to Device Cloud confidential.
(b) Where required by applicable law, in case of a suspected security breach of Device Cloud that relates to Your use of the Services, Etherios will inform You in order to take necessary steps to comply with any notification requirements under local law.
(c) Etherios is a member of the Cloud Security Alliance and takes its responsibility as a cloud service provider seriously. If You should need further documentation or information regarding the Services or the Device Cloud platform, You may contact Us at email@example.com or (+1)877-912-3444.
15.4 THIRD PARTIES. Etherios may use third party service providers to perform all or any part of the Services. Etherios can provide a list of relevant third parties with access to Your Personal Data upon request and will ensure that any third parties assist with questions relating to Processing and perform the Services in compliance with the Data Protection Rules. Your Customer-Owned Information with Device Cloud is hosted by Rackspace, or a similar service provider with adequate security measures in place. Rackspace complies with the U.S. Safe Harbor certification which ensures that Personal Data will be adequately protected. Rackspace stores data at locations in the U.S. and the U.K.
15.5 INTERNATIONAL TRANSFERS
(a) You understand that Etherios is based in the United States and by entering into the Account Agreement, You consent to the transfer of Your Personal Data outside the EEA to the United States, which is not considered to provide the same level of protection for Your Personal Data as the countries within the EEA. You understand that You are responsible for taking all required action to ensure compliance with applicable Data Protection Rules to transfer Customer-Owned Data to Etherios in the United States.
(b) Etherios only transfers Personal Data outside the EEA in compliance with the Data Protection Rules and when notifying You in advance.