Device Cloud by Etherios Terms of Service

DEFINITIONS

1.1       “Digi” refers to Digi International, Inc.

1.2       “Enabled Device” means a Device Cloud-capable device that is rightfully under Your control.

1.3       “Registered Device” refers to an Enabled Device registered on Device Cloud.

1.4       “Device Cloud” refers to Device Cloud by Etherios, which consists of a cloud-based infrastructure that provides TCP/IP-based communication with a Registered Device or between a Registered Device and Your application.

1.5       “Service Module” means Device Cloud subscription-based applications.

1.6       “Services” or “Service” refers to Device Cloud device management Services, the data communications Services, Device Cloud Service Modules 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 Service Modules.

1.7       “Account Term” will be period of time for which Digi has committed to provide and You have committed to pay for Services.

1.8       “You” refers to the entity named in as the holder of the Device Cloud account.

1.9       “Third-Party Supplier” refers to an infrastructure provider or an entity that supplies other technologies or services used by Device Cloud. This definition includes Third-Party Suppliers that 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 Digi.

1.10     “Terms of Service” refers to the current version of the Device Cloud by Etherios Terms of Service, including any attachments and Exhibits.

2.  USE OF THE SERVICE

2.1       Subject to timely payment of all charges in Your account and subject to the Terms of Service, Digi grants You the right to use the Services.  Digi reserves all rights not otherwise expressly granted herein.  The Terms of Service may be revised at any time, and you will be notified that a new version exists when You log in to your account.

2.2       You will be responsible for maintaining the security of each Enabled Device, Your account, passwords and files, and are responsible for all uses of Services (and all associated fees), with or without Your knowledge or consent and whether or not authorized by You.

2.3       Registration and Security.  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 provide accurate and complete, registration information and will update Your registration information, as necessary, to keep it current..  You 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 such User ID is not be shared with or used by any party other than the unique user to which it is assigned.

2.4       It is acknowledged that, except as expressly stated, each party retains all rights in its trademarks, service marks, software, technology and intellectual property.

2.5       You are solely responsible for: (i) all use of the Services occurring as a part of Your account, whether or not authorized by You or done with Your knowledge, and (ii) for all data, information or other content transmitted over or uploaded to Device Cloud as part of Your account.

2.6       Your use of the Services is subject to the following Digi policies:

(a)    Digi International Authorized Use Policy, www.digi.com/authorized_use_policy.

(b)    Digi International Privacy Policy, www.digi.com/privacy_policy.

(c)    Digi International DMCA statement, www.digi.com/dmca_statement.

2.7       Digi retains the right to revise the Digi policies referenced in subsection 2.6 at any time, as long as the changes are reasonable and consistent with industry practices, legal requirements, or the requirements of a Third Party Supplier.

2.8       In the event Digi conducts 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 Digi’s investigation, to the extent warranted by the facts of the situation.  If Your cooperation requires more than a small amount of time and effort, Digi will discuss an appropriate level of compensation.

2.9       For some types of data, the law requires a level of security or privacy that must be maintained.  You acknowledge that You will abide by all legal requirements regarding the data that 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, it is still recommended (i) that You encrypt Your data prior to transmitting the data to Device Cloud and (ii) that You do not disclose the encryption key to Digi or any third party.

2.10     Protected Health Information.

(a)    You represent and warrant that in the event that You and/or anyone using Your account utilize 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 the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) as amended and as implemented by the associated regulations (collectively, the "Acts"), (i) You will be fully compliant with the Acts; (ii) You will encrypt all PHI at rest and in motion and (iii) You acknowledge that You do not consider Digi as a Business Associate, as defined in the Acts. 

(b)    Regulatory Approvals. You represent and warrant that 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.

2.11     Carrier Integration Service: 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 make use of the CIS, you also consent to the following:

(a)    In order to provide integration with management features of Your wireless carrier, the CIS must connect to the carrier’s system.  In order to make the connection, You must provide Digi with login credentials for Your wireless account.  You hereby grant Digi 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.

(b)    You acknowledge that a wireless carrier may alter or suspend its integration service, at its discretion.  You also acknowledge that the CIS may not be available for all carriers or for all Enabled Devices.

3.  YOUR ACCOUNT

3.1       Unless otherwise stated in writing, the Account Term will be monthly and will start on the first day of the month.  At the end of each Account Term and if Your Account is current, the Account will renew automatically for an additional one-month term.

3.2       Unless otherwise stated in writing, Account fees will be billed monthly.  All fees are in US dollars, unless otherwise stated.

3.3       Account fees are payable regardless of whether Services are being used by a Registered Device.  Fees are non-cancelable and non-refundable.  Unless otherwise agreed to in writing, Digi reserves the right to change the amount of the fees or applicable charges and to institute new charges which will apply to the next Account Term.  In addition, Digi may introduce new features and functionalities, which may be made available to You at an additional cost.

3.4       Fees for Services are net of taxes, and You will be responsible for all applicable taxes, imposed on or based on the provision, sale or use of the Services (except for taxes based on Digi's net income).

4.  TERMINATION AND SUSPENSION

4.1       Digi may, without liability, suspend or terminate any or all Services to some or all of its account holders or 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.

4.2       Digi 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 is listed on a government-issued restricted persons or entities list or warning list; (c) Digi, in its discretion, determines that your use of the Services poses a business, technological or legal risk to Digi or its customers; (d) You have breached the Terms of Service or other contract You may have with Digi that relates 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 2.8; (g) there are few or no data transactions in Your account or (h) as otherwise provided in the Terms of Service.

4.3       Digi may, without liability, suspend or terminate Services for a Registered Device if (i) You are using a device or equipment that is defective or illegal (ii) the Registered Device is causing technical or other problems on Device Cloud or (iii) upon termination of Your account.

4.4       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 the United States or any state of the United States which proceeding is not stayed within forty-five (45) days of being filed.

4.5       Portions of the Terms of Service, which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, warranty disclaimers, and limitations of liability.  However, upon termination, Your right to use the Services will immediately terminate.

4.6       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, Digi 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.

5.  Data Retention

5.1       Unless otherwise provided within Your account, data transmitted to Device Cloud is not retained on a long-term basis.  Digi may, in its discretion, purge your data at any time.  Typically, data is purged every 48 hours, but this may occur at intervals which are more or less frequent.

5.2       Upon termination of Your account, Digi may, but is not obligated to, delete the data associated with Your account.

5.3       Data Streams: Device Cloud offers an optional account feature 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 is stored and then made accessible to You through Device Cloud.

(b)    Data stored using Data Streams will be maintained as long as Your account is current and the Data Streams subscription is maintained within Your account.

(c)    If Your Device Cloud account is terminated or Your Data Services subscription is cancelled, the data will no longer be stored or accessible.  It is advised that you download all of your data before account termination or subscription cancellation.  Typically, data is purged following 10 calendar days, but this time period may vary, within Digi’s discretion.

6.SERVICES, WARRANTY

6.1       Services may be temporarily unavailable for scheduled or unscheduled maintenance by Digi or Third-Party Suppliers, or for other causes beyond Digi’s reasonable control.  DIGI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE.  DIGI MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  THE SERVICES ARE PROVIDED “AS IS” AND DIGI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. 

6.2       DIGI 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

6.3       Digi represents that it uses security measures that meet or exceed industry standards.

6.4       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) Digi 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.

6.5       Digi’s device communications service will maintain a minimum of 99.9% availability, as reported by the Device Cloud dash board at http://status.etherios.com.  If the total billing in Your account for a given month (in this section, “Monthly Billing Amount”) is at least $15,000, You may apply for a prorated refund if the level of availability for the device communications service, as reported by Device Cloud, is less than 99.9% for that month.  The refund will be calculated as: .999 minus the actual service availability amount (expressed as a decimal number to three places) for that month times the Monthly Billing Amount.  The refund will be credited to Your account.  [Example: if the Monthly Billing Amount is $15,000 and the service availability was 98%, the refund would be $15,000(.999 - .980), which would be $285.]  If Account fees are billed other than monthly, the Monthly Billing Amount will be the prorated amount of the fees in your Account, prorated for the calendar month for which the refund is sought.

6.6       Digi 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.

7.  INDEMNITY AND LIMITATION OF LIABILITY

7.1       You agree to indemnify and hold harmless Digi, 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 Digi that arises from or is based on (i) an alleged violation of the Terms of Service by You or otherwise from Your use of Device Cloud or (ii) an alleged violation of law..

7.2       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 Digi 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 this Terms of Service.  Digi’s obligation under this subsection extend only to claims, suits or actions involving the Service itself on a standalone basis and Digi 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 DIGI’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM, SUIT OR ACTION ALLEGING INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

7.3       Digi 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, where parties not associated with Digi or a Third-Party Supplier may also store or transmit data within the same framework that is 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.

7.4       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

7.5       NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY, DIGI, ITS OFFICERS, AND EMPLOYEES WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY CLAIM OR ACTION RELATED TO DEVICE CLOUD UNDER ANY THEORY, WHETHER UNDER THE LAWS OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANOTHER THEORY.  UNDER NO CIRCUMSTANCES WILL DIGI BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.  DIGI WILL NOT BE LIABLE (A) FOR 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) FOR ANY MATTER BEYOND DIGI’S REASONABLE CONTROL, EVEN IF DIGI HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING LOSSES OR DAMAGES; (C) FOR ATTACKS ON OR HACKS OF YOUR DATA, WHETHER IN TRANSIT OR IN STORAGE; (D) FOR PHYSICAL ATTACKS OR CYBER-ATTACKS UPON DEVICE CLOUD OR ITS NETWORK OR THE NETWORKS OR FACILITIES OF THIRD-PARTY SUPPLIERS; OR (E) THE BREACH OF OR LOSS OF PRIVACY OF E-MAIL ADDRESSES, REGISTRATION AND IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE-SECRET INFORMATION, OR ANY OTHER CONTENT STORED ON DIGI'S EQUIPMENT, TRANSMITTED OVER NETWORKS ACCESSED BY DEVICE CLOUD, OR OTHERWISE CONNECTED WITH THE USE OF THE SERVICES.

7.6       DIGI 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. 

7.7       YOU ACKNOWLEDGE THAT A GOVERNMENTAL ENTITY MAY (A) INTERCEPT YOUR DATA OR (B) REQUIRE DIGI TO DISCLOSE YOUR DATA OR INFORMATION.

7.8       IT IS AGREED THAT DIGI’S LIABILITY 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.. 

7.9       THE PRICE STATED FOR THE SERVICES IS A CONSIDERATION IN LIMITING DIGI’S LIABILITY. 

7.10     NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS TERMS OF SERVICE MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

8.  LEGAL COMPLIANCE

8.1       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.

8.2       You represent and warrant that You are not a person to whom Digi 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's Entity List, Denied Persons List, and Unverified List; (ii) Treasury Department Specially Designated Nationals & Blocked Persons List; and (iii) State Department Debarred Parties List.

8.3       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.

8.4       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 use in such facilities.

(e)    Training personnel in any of the above activities.

8.5       You may not provide access to the Services to any person or entity that would be prohibited from using the Services under this section 8.

8.6       Regarding data that, by means of Your account, is collected, transmitted to Device Cloud, downloaded from Device Cloud or viewed using Device Cloud (in this paragraph, the “Data”), You warrant that: (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.

9.APPLICATION SOLUTIONS

9.1       Unless otherwise specifically allowed by Digi, 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.

9.2       Digi grants an exception to subsection 9.1 for an Application Solution, as described in this subsection:

(a)    Definitions: In this subsection, the following terms are defined as follows:

1)     “Application Solution” means an application or service framework that: (i) uses the Device Cloud API; and (ii) uses Device Cloud Services to store and retrieve data from Registered Devices.

2)     “End User” means Your customer that is using Your Application Solution.

(b)    Further terms relating 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.

2)     Use of Your Application Solution by an End User must not conflict with these Terms of Service.  Consistent with subsection 2.5, 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 Digi in any manner or to bind Digi by any promise or representation unless specifically authorized in writing to do so by Digi.  Any terms between You and an End User are not binding on Digi and liability resulting therefrom will be the obligation of the account holder.

6)     You will advise Digi of any possible infringement of Digi's intellectual property rights related to use of the Application Solution and will take or assist Digi in taking, all steps necessary or commercially reasonable to preserve and protect Digi’s intellectual property rights in the Services.

7)     You acknowledge that Digi will not 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 7.1, You agree to indemnify and hold harmless Digi, 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 Digi 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) there is only one Device Cloud account and that account is in Your name; (ii) Digi is not a party to any agreements between You and Your End Users; and (iii) Your End User is not a third-party beneficiary of any agreements between You and Digi.

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.

10.CONFIDENTIALITY

10.1     Confidential Information.  For purposes of this Terms of Service, “Confidential Information” shall mean all information marked as “Confidential” or “Proprietary.”  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 either party.

10.2     Confidentiality.   During the performance of this Terms of Service, 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 each party’s rights and obligations under this Terms of Service.  Neither party will use confidential information for any purpose beyond the exercise of its rights and performance of its obligations under This Terms of Service 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.

10.3     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 either party prior to its receipt hereunder; (b) is or becomes publicly available without breach of This Terms of Service; (c) is lawfully received by either party from a third party who does not have an obligation of confidentiality to either party; (d) is developed independently by employees of either party not having access to such confidential information or (e) has been transmitted or stored in an unencrypted state.

11.GENERAL

11.1     Digi 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 Digi’s reasonable control.

11.2     You represent that You are not a government agency and are not acquiring the Services pursuant to a government contract or with government funds.

11.3     If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and be enforceable. 

11.4     Your rights and obligations under the Terms of Service are not assignable or transferable and cannot be sub-licensed to another party by You except with Digi’s prior written consent.  Digi may transfer, assign or subcontract any of its rights and obligations under the Terms of Service without consent.

11.5     The Terms of Service are 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 Terms of Service.  All waivers and modifications of the Terms of Service must be in writing and signed by both parties, except as otherwise provided herein.

11.6     No agency, partnership, joint venture, or employment is created as a result of Your use of Device Cloud. You do not have authority to bind Digi in any respect. 

11.7     The Terms of Service 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 this Terms Of Service, Your data is 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 Terms of Service 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 thereto.  English is the governing language for: (i) Device Cloud; (ii) Your Device Cloud account; (iii) the Terms of Service; (iv) negotiations related to the Terms of Service or Your use of Device Cloud and (v) the resolution of disputes related to the Terms of Service or Your use of Device Cloud, including negotiations, litigation, mediation or arbitration.  Versions of the Terms of Service that have been translated into languages other than English are provided for convenience, and the English version is the only version that defines the rights and obligations of the parties.

11.8     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 Device Cloud 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 Device Cloud account or Your use of the Services.

12.SPECIAL TERMS: EUROPEAN ECONOMIC AREA OR SWITZERLAND

12.1     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.

12.2     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 section 2 of this Terms of Service, the Data Protection Rules and the provisions of this section.

(b)     Digi acts a Data Processor with respect to the Personal Data You transmit or upload to Device Cloud. However, any Personal Data that You may submit for account registration information or to acquire a User ID, Digi acts as a Data Controller and undertakes to Process Your Personal Data in compliance with its Privacy Policy and under the Data Protection Rules. 

(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 provisions of sections 2.09 and 2.10 of the Terms of Service.

(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. Digi will work together with You in order to support You in complying with the exercise of these rights. To the extent that Digi uses subcontractors, these contractors will similarly cooperate.

12.3     SECURITY, ACCOUNTABILITY

(a)    Digi takes reasonable security measures to protect against the loss, misuse and alteration of data under its control. Digi infrastructure has passed SSAE-16, ISO 27001 audit certifications. Nevertheless, as mentioned in subsections 12.2(a) and (e), 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, Digi will inform You in order to take necessary steps to comply with any notification requirements under local law.

(c)    Digi 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, do not hesitate to contact us at cloud.security@etherios.com or (+1)877-912-3444.

12.4     THIRD PARTIES

Digi may use third party service providers to perform all or any part of the Services. Digi 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.

12.5     INTERNATIONAL TRANSFERS

(a)    You understand that Digi is based in the United States and by entering into the Terms of Service 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 Digi in the United States.

Digi only transfers Personal Data outside the EEA in compliance with the Data Protection Rules and when notifying You in advance.

Device Cloud Terms of Service (13May)
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