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“Digi,” shall mean Digi International Inc.
“Digi Site,” shall mean a website or portal that is owned by Digi. The term Digi Site includes:
“Service” or “Services,” which shall mean the technology by which a person Uses a Digi Site and the technology by which Content is provided.
“Content,” shall mean the digital information transmitted by a Digi site, including:
“Materials,” which shall mean data, documents, text, images, graphics, audio, videos, web pages, webcasts, products, software code or associated documentation.
“Site Design,” which includes (i) the design of a Digi site, page or service; (ii) the html or other software code that determines the look or function of a Digi Site, page or Service, and (iii) the inclusion and arrangement of Content with a Digi Site.
“Use” or “Using,” shall mean interacting with a Digi site, which may include browsing, viewing, clicking a hyperlink, or requesting Content.
“You” or “Your,” shall mean the person, persons or entity Using a Digi Site.
“Your Content,” shall mean any Materials uploaded by You or other Users of a Digi Site acting in cooperation with You or on Your behalf.
“Intellectual Property Rights” shall mean ownership or usage rights in created or designed works or technologies and includes copyright, trademark, trade dress, patent, trade secret, unfair competition.
“User Input,” shall mean suggestions, ideas, feedback or proposals supplied to Digi.
Acceptance of Terms
By Using a Digi Site, other than to review the Terms, You affirm that You have read, understand and agree to the Terms.
Digi reserves the right to alter the Terms at any time, without notice to you and without a required period of time prior to the change in Terms being effective. Your Use of a Digi Site is subject to the most current version of the Terms, as posted at the time of Use.
Except as otherwise stated, Digi reserves all Intellectual Property Rights that it owns in a Digi Site.
The trademarks, logos and Service marks (“Marks”) displayed on a Digi Site are the property of Digi or third parties. You are not permitted to Use the Marks without the prior consent of the owner of a Mark.
“Digi” and the Digi logo are trademarks of Digi International Inc.
Use Of A Digi Site
Digi grants You permission to Use this Digi Site, subject to the Terms.
You may only Use a Digi Site if You are legally able and competent to consent to the obligations and conditions of the Terms and are of a legal age and capacity to enter into a binding contract. In addition, You affirm that You are at least 13 years of age and acknowledge that Digi Sites are not intended for children under the age of 13.
You agree to Use a Digi Site only for purposes that are permitted by the Terms.
Your use of a Digi Site is subject to the following Digi policies:
Digi Authorized Use Policy, www.digi.com/authorized_use_policy.
Digi DMCA statement, www.digi.com/dmca_statement.
Digi retains the right to revise the Digi policies referenced in section 4.d) at any time.
Some portions of a Digi Site and some Content may be available only to registered customers or partners and may also be subject to a subscription or other agreements, posted guidelines, rules, or terms of service. If there is any conflict between the Terms and any additional terms, those additional terms will take precedence in relation to that specific portion of a Digi Site, that specific Service or that specific Content.
You are responsible for Your Content and assume all risks associated with Your Content.
You represent and warrant that: (i) You have sufficient Intellectual Property Rights, or have obtained all necessary licenses and permissions, that are required so that You may transmit Your Content to a Digi Site; (ii) You have the rights necessary to grant the license contained in the Terms; and (iii) You have received consent from any and all persons depicted in Your Content to Use Your Content as set forth in the Terms, including distribution, reproduction and public display.
Digi’s Right To Monitor, Investigate and Act
Digi, in its sole discretion, may monitor a Digi Site at any time and may remove all or part of Your Content.
If Digi becomes aware of a possible violation of the Terms, Digi reserves the right to investigate such violations and may, at its sole discretion and without notice, terminate all or part of Your rights to Use a Digi Site. If Digi believes that illegal activity has or may have occurred, Digi reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable Law, Digi is entitled to retain and/or disclose Your information or Your Content to a government entity that is conducting an inquiry within the scope of its proper authority. Digi retains the right to (i) comply with applicable Law, legal process or government request; (ii) enforce the Terms; (iii) respond to any claims that Your Content violates the Terms or the rights of third parties; and (iv) protect the rights of third parties, as Digi in its sole discretion believes to be necessary or appropriate.
The Terms will continue to apply until terminated by either You or Digi as set forth below.
To terminate Your rights under the Terms, You may (i) notify Digi at any time and (ii) close any accounts.
Digi may, at any time, terminate your rights under the Terms if:
You have breached a provision of the Terms (or have acted in a manner that clearly shows You do not intend to, or are unable to, comply with the Terms);
Digi is required to do so by law or government mandate;
Maintaining a Digi Site or providing You with the ability to Use a Digi Site is, in Digi’s opinion, no longer commercially viable;
Digi has elected to discontinue a Digi Site; or
There has been an extended period of inactivity in Your account.
Digi may also terminate or suspend Your right to Use a Digi Site for any reason. Termination may include: (i) removal of access to a Digi Site; and (ii) deletion of Your Content, account Information and related information.
You agree that all terminations shall be made in Digi’s sole discretion and that Digi shall not be liable to You or any third party for any termination of Your rights under the Terms or Your account (and accompanying deletion of Your Account Information), or access to a Digi Site, including access to Your Content.
Upon termination, Your rights to Use a Digi site and your rights under section 4 will end.
DISCLAIMER OF WARRANTIES; LIABILITY
DIGI SITES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. YOUR USE OF A DIGI SITE IS DONE AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE.
TO THE MAXIMUM EXTENT ALLOWED BY LAW:
DIGI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING, THE ACCURACY, RELIABILITY, TIMELINESS, AVAILABILITY, USE, OR SECURITY OF A DIGI SITE;
DIGI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RESULTS THAT CAN BE EXPECTED OR ACHIEVED FROM YOUR USE OF A DIGI SITE OR A SITE LINKED FROM A DIGI SITE; AND
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
IN NO EVENT SHALL DIGI, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES. IN NO EVENT SHALL DIGI, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR DIRECT DAMAGES (INCLUDING ALLEGATIONS OF DAMAGES RESULTING FROM AN ALLEGED LOSS OF USE, DATA OR PROFITS), REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING THEORIES OF LIABILITY BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR TORT. THIS DISCLAIMER OF LIABILITY SHALL REMAIN IN EFFECT, EVEN THOUGH DAMAGES WERE FORESEEABLE AND EVEN IF DIGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
DIGI’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR SUPPLIERS UNDER OR IN CONNECTION WITH A PARTY’S USE OF A DIGI SITE SHALL BE LIMITED TO US$50.00 (FIFTY US DOLLARS) THIS LIMITATION WILL APPLY EVEN IF DIGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
The limitations and exclusions apply to the maximum extent permitted by applicable law in your jurisdiction. Some jurisdictions prohibit the exclusion or limitation of liability for incidental, consequential or punitive damages. Accordingly, the limitations and exclusions set forth above may not apply to you.
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.
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 agree that Your Use of a Digi Site will comply with all applicable laws, rules, regulations, and orders of the United States and any other political entity exercising jurisdiction over a Digi Site and Your Use of a Digi Site, including laws relating to the import and export (including “re-export” within the meaning of U.S. laws) of goods, software, technology or other information subject to U.S. or local jurisdiction. For purposes of this Agreement, U.S. laws include, but are not limited to, the Export Administration Act, the Arms Export Control Act, the International Emergency Economic Powers Act, the Trading With the Enemy Act, and the Foreign Corrupt Practices Act, as such acts may be amended from time to time, and the rules, regulations, orders, licenses and other forms of administrative action, and judicial decisions thereunder.
You may not transmit or otherwise export from the United States or allow the transmission of Services or Content 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.
You represent and warrant that You are not a person to whom Digi is legally prohibited to provide the Services or Content 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.
You may not use a Digi Site in any situation where failure or fault of the Services or Content 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, a Digi Site 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.
You may not use Services or Content for
Designing, developing or fabricating nuclear weapons or nuclear explosive devices; or devising, carrying out or evaluating nuclear tests or nuclear explosions.
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.
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.
Designing, assisting in the design, construction, fabrication or furnishing equipment for components specially designed, modified, or adapted for use in such facilities.
Training personnel in any of the above activities.
You may not provide access to a Digi Site to any person or entity that would be prohibited from using the Services under this section.
You agree to defend, indemnify and hold harmless Digi, its subsidiaries, officers, directors, employees or agents (each a “Digi Indemnitee”) against and in respect of any claims, loss, damages, obligations, penalty, deficiency or liability (including, without limitation, attorneys’ fees) imposed upon, incurred by or asserted against a Digi Indemnitee that result from or are related to the Terms, your breach of the Terms, Your Use of a Digi Site, or Your violation of the property rights of another.
Resolution of Disputes
Any dispute arising out of or in connection with the Terms and or Your Use of a Digi Site shall be resolved as follows:
If You are located in the United States, Your Use of a Digi Site has occurred in the United States or You are subject to personal jurisdiction by any court located in the United States, the dispute shall be brought in a state or federal court having jurisdiction over Hennepin County, Minnesota, USA. Each Party agrees to appear in any such action and hereby consents to the jurisdiction and venue of such court.
In situations not covered under subsection 11.a)i), a dispute will be resolved by arbitration before a single arbitrator. The arbitration may be filled: (1)in or near Minneapolis, Minnesota and conducted pursuant to the International Arbitration Rules of the American Arbitration Association or (2) in or near Dortmund, Germany and conducted pursuant to Arbitration Rules of the German Institution of Arbitration e.V. (DIS).
This Agreement shall be governed by the substantive laws of the State of Minnesota without giving effect to the conflicts of laws principles thereof. The United Nations Convention on Contracts for the International Sale of goods shall not apply.
If You improperly file a claim and Digi has notified You in writing that the claim is improper and You have failed to withdraw the claim, Digi may recover attorneys’ fees and costs for the improperly filed claim.
Notwithstanding the foregoing, in the event of Your or others’ unauthorized access to or Use of a Digi Site in violation of the Terms You agree that Digi shall be entitled to apply for injunctive remedies (or an equivalent type of legal relief) in any jurisdiction.
You are encouraged, but not required to provide User input. If You do provide User Input, You hereby grant Digi a nonexclusive, royalty-free, fully paid-up, perpetual, irrevocable, transferable, unlimited license in any User Input. Further, by submitting User Input, You represent and warrant that (i) the User Input does not contain confidential or proprietary information of You or of a third party; (ii) Digi is not under any obligation of confidentiality, express or implied, with respect to the User Input; (iii) Digi may develop technologies or solutions that contain elements or features that are similar to elements, features or ideas in your User Input; and (iv) You are not entitled, under any circumstances, to any compensation or reimbursement of any kind from Digi in relation to User Input.
You agree that Digi may, without payment to you, derive revenue or other benefit from Your Content. Digi may display Digi or third party paid advertisements or other information adjacent to or in portions of a Digi site that contain or reference Your Content and that Digi may do so without payment to You.
A Digi Site may include hyperlinks to other sites. Such links to other sites are provided as a convenience to users of Digi Sites. The inclusion of a link does not imply Digi’s endorsement of a site. Digi has no control over sites that are owned or controlled by other parties, and You agree that Digi is not responsible for the availability or contents of any Linked Site (including advertising, products or other materials on or available from such Linked Site), any link contained in a Linked Site, or any changes or updates to a Linked Site.
A Digi Site can be accessed from countries outside the United States and may contain references to Materials or products that are not available in Your country. These references do not imply that Digi intends to make such Materials or products available in Your country.
Digi Sites are operated by Digi from its offices in the United States. Digi makes no representation that a Digi Site is appropriate for Use or available in areas outside the United States, and access to a Digi Site from jurisdictions where the Content is considered illegal is prohibited. Digi reserves the right to block access certain international Users. If You access a Digi Site from a location outside the United States, You are responsible for compliance with local Laws.
The Terms constitute the entire agreement between Digi and You with respect to Your Use of a Digi Site and supersede any prior agreements that exist or may have existed between You and Digi on this subject.
You may not assign or otherwise transfer the Terms, or any right granted hereunder, without Digi’s written consent. Digi’s rights under the Terms are freely transferable by Digi.
If a court of competent jurisdiction finds any provision of the Terms, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties as reflected by that provision, and the remainder of the Terms shall continue in full force and effect.
The fact that Digi has not acted to enforce or exercise any provision of the Terms, or any related right, shall not constitute a waiver of that provision or right.
Materials that are downloaded by or on behalf of the United States of America, its agencies, and/or instrumentalities ("U.S. Government"), are subject to the provisions of FAR 12.211 - "Technical Data", and FAR 12.212 - "Computer software" or to clauses providing equivalent protections in DFARS or other agency specific regulations.