Terms of Service

The following terms (the “Terms”) are an integral part of the Agreement between Digi SmartSense, LLC [or, for Canadian sales, Digi SmartSense Canada] (“SmartSense” or ”we” and related pronouns) and the customer named in an Order (”you” and related pronouns).

By executing (by signature or click agreement) an Order that references these Terms, you agree to the terms of the Order and these Terms, which together with any mutually agreed addenda, form a binding agreement (the “Agreement”).

1.     Definitions

1.1    “Associated Services” – optional services (e.g. installation, program management, analytics, custom reporting, enhanced support, etc.) we provide at additional charge for use with the Service.

1.2    “Data” - available data collected in connection with your use of the System.

1.3    “Documentation” - our then-current electronic or printed content describing the functions, features, specifications or certifications of the System elements and Associated Services we provide.  Documentation excludes all proposals, demonstrations and marketing, sales and training materials.

1.4    “Equipment” - any of the hardware products we provide under an Order, such as:

·     “Probe” - a handheld environmental monitoring Sensor (and associated firmware) for manual insertion into products you wish to monitor;

·     “Gateway” - a wireless gateway used to transfer data collected from Sensors and Probes to the Management System over the Internet (via Ethernet, Wi-Fi or cellular transmission, as the case may be);

·     “Sensor” - a data collection device for measuring environmental or physical conditions (e.g. temperature, humidity, pressure, door position, etc.) and associated firmware; and

·     “Logger” - a data collection device (and associated firmware) to log Sensor Data for monitoring by the Management System.

1.5    “Fees” - Fees for the Service and Associated Services we provide under an Order.

1.6    “Management System” - our cloud and app-based monitoring database and reporting system for use with Equipment we provide under the Agreement.  The Management System includes Mobile Apps.

1.7    “Mobile App” - a downloadable software application and associated Updates for accessing and using the Management System via a Mobile Device.

1.8    “Mobile Device” - a smart phone, tablet or handheld device you supply, compatible with our Mobile App, for use with the System.

1.9    “Order” - a binding order covering the provision of Services and Equipment under these Terms.  An Order will result from one of the following:  (a) mutual written agreement by the parties; (b) your signature on our quotation form; (c) your acceptance of a quote generated through our Customer Portal, or (d) your acceptance of our quote or ordering document by submission of a purchase order, email order or other confirmed method of acceptance or (e) our confirmation of (or shipment in response to) your emailed request for product shipment or purchase.  In each case, your acceptance of the Order indicates your agreement to the terms in our quotation or other ordering documents and to these Terms, which together form the Agreement for such Equipment and Service.  Any additional or conflicting terms and conditions you submit, unless expressly accepted by SmartSense, are expressly rejected and are not applicable to the Order.

1.10 “Purchased Equipment” – Equipment we provide under an Order which is not designated as Subscription Equipment.

1.11 “Service” – the service we provide for monitoring and reporting applicable Sensor Data through the combination of our Management System with other elements of the System.

1.12 “Subscription Equipment” – Equipment specifically identified as Subscription Equipment in an Order. 

1.13 “Subscription Term” - the subscription term specified in the Order and any renewal terms.  Except as otherwise specified in the Order, the Subscription Term will begin upon shipment or electronic availability of System elements covered by an Order and have a term of 12 months.  The Subscription Term will be subject to successive automatic renewals for periods of 12 months unless either party provides notice (per section 13.1) of non-renewal at least 60 days before expiration of the then-current term.

1.14 “System” - the system we make available under an Order for monitoring and reporting applicable Sensor Data, including all or some of the following elements:  Equipment, the Management System (including Mobile Apps) and associated Documentation.  (System elements may vary depending on your needs).  For the purpose of Uptime, the term “System” will refer to the following elements of the Management System relating to uptime:  sensor data ingestion service, web application platform (Insights), API service, and reporting service.

2.     Subscription.  During the Subscription Term and subject to the terms of this Agreement, you subscribe to the Service (and applicable Associated Services) and we grant you a non-transferable, non-exclusive license to access and use the Management System (including applicable Mobile Apps) in connection with Equipment we provide under the Order and Mobile Devices you provide.  These rights are granted only for access and use in accordance with the applicable Documentation and these Terms.

3.     Equipment and Software.

3.1    Purchased Equipment.  All Equipment provided under your Order will be Purchased Equipment except for Equipment specifically identified in your Order as being Subscription Equipment.  All Purchased Equipment is sold FOB shipping point (origin), freight prepaid and added to invoice.  We will invoice the full purchase price for Purchased Equipment upon delivery to the FOB point.  You will be responsible for all import and export fees, costs of shipping, duties and any applicable taxes.

3.2    Subscription Equipment.  Subscription Equipment provided under an Order will remain our property and may be used only as part of your subscription.  You agree to promptly return all Subscription Equipment to us at the expiration or termination of your subscription or the applicable Order.  For any Subscription Equipment we do not receive within 30 days after termination or expiration of the applicable Subscription Term, we will invoice you and you will pay within 30 days thereafter our then-current list price for such Equipment.

3.3    Claims for Omitted or Damaged Equipment.  You waive any claims for omission of products in the shipped goods, shortages of product, or damaged goods in a shipment unless you provide us with notice within 10 days after your receipt of shipment.

3.4    Software. All software is owned by us or a third-party licensor who will retain exclusive right, title and ownership of the software.  You are granted a limited, personal, non-exclusive license, without the right to sublicense, to use the software only with the specific System elements covered by the applicable Order.

3.5    Installation.  Unless otherwise specified in your Order, installation of all Equipment will be by you at your expense.  We can provide installation as an Associated Service upon request and at our standard labor rates.  If you or your installer will be using a mounting bracket (such as our SKU: AC-MNTBRT), the bracket must be installed in a way that will not damage the equipment to which it is attached. Any drilling is done at your risk. Our technicians are trained to use the following methodology, which can minimize but doesn’t completely remove risk: (1) drills used will have a depth guard that prevents drilling more than 1/4” beyond the thickness of the material being drilled, (2) any screws used will be self-tapping and not exceed ½” in length; and (3) screws and other fasteners will be made of stainless steel.

4.     Warranty and Uptime.

4.1   Management System Warranty.  We warrant that the Management System we provide under an Order will, during the Subscription Term, perform substantially in accordance with the applicable published specifications when used in accordance with the Documentation and the terms of the Agreement.  This warranty does not cover non-material variations of performance from the published specifications or other Documentation.  As your exclusive remedy for breach of this warranty, we will use commercially reasonable efforts to provide a correction, Update, upgrade or replacement of the non-conforming element to make it conform to this warranty and, if we are unable to do so within 30 business days after confirmation of the non-conformance, either party may terminate the affected part of the Service, in which case we will refund you a pro-rated amount of the Fees you have paid for such Service during the period of confirmed non-conformance.

4.2    System Uptime.  We will use best efforts to keep the System available to you no less than 99.95% of the time, as measured 24x7x365 and by the absence of Downtime.  “Downtime” will mean when the System is unavailable to you, provided that Downtime will not include scheduled interruptions we notify you about at least 24 hours in advance or problems associated with Internet connectivity, cellular connectivity, power or network outage, or any other intermediary system.  As your sole remedy and our sole liability for failure to achieve the Uptime targets shown below, we will issue a credit against future Fees per the below table.  In order to receive these credits, you must notify us within two (2) business days after the Downtime interruption occurs and the Downtime must be subject to our verification.  Downtime will begin to accrue when we (or you with notice to us) recognize that such Downtime is occurring and will continue until the availability of the System is restored.  If we fail to achieve Uptime (System availability absent Downtime) of at least 99% for 3 consecutive months (or for 4 months in any 6 consecutive month period), you will have the right, exercisable within 30 days after that occurrence, to terminate the affected Order.

4.3   Associated Services Warranty.  We warrant that Associated Services we provide under an Order will, during the Subscription Term, perform substantially in accordance with the Documentation and any applicable published specifications when used in accordance with the terms of the Agreement.  This warranty does not cover non-material variations of performance from the published specifications or other Documentation.  As your exclusive remedy for breach of this warranty, we will re-perform the Associated Service to achieve conformity with this warranty and, if we are unable to do so within 30 business days after confirmation of the non-conformance, either party may terminate the affected Associated Service, in which case we will refund you a pro-rated amount of the Fees you have paid for such Associated Service during the period of confirmed non-conformance.

4.4   Purchased Equipment Warranty.

a.          Standard Warranty.  We warrant that Purchased Equipment we provide under an Order will be free from defects in materials and workmanship for a period of one (1) year (6 months in the case of Smart Dish Guard® wireless thermometers) from date of shipment when used in accordance with the Documentation and the terms of the Agreement. 

b.          Warranty Remedies.  As your exclusive remedy for breach of the above warranties, we will, at our sole option, promptly replace or repair Purchased Equipment confirmed to be non-conforming or retain such equipment and refund the amount we were paid for it.  In response to your report of a warranty claim, we will promptly (1) issue an RMA for the return of the Purchased Equipment you report to be non-conforming (the “Claimed Equipment”) and (2) send you a replacement unit (or refund the purchase price if no replacement unit is available).  The Claimed Equipment must be returned to us at your cost within 30 calendar days after our issuance of the RMA number.  If you fail to return the Claimed Equipment with the 30 days, or if we cannot confirm that the Claimed Equipment is the subject of a valid warranty claim: (1) we will bill you for the replacement equipment at our then-current MSRP or pre-established contract price, whichever applies, as well as shipping charges (including charges for expedited shipping you have requested), and (2) you will remit payment for such replacement equipment and shipping in accordance with the payment terms applicable to your agreement (normally net 30 days).  Unless you purchase replacement installation service from us, you will be responsible for installing the replacement Equipment in accordance with our instructions.  We may use or supply remanufactured parts when replacing Claimed Equipment.  A deductible may apply.

4.5    Subscription Equipment Replacement.  We provide no warranty with Subscription Equipment, since it remains our property and you are not purchasing it.  Instead, we agree to promptly provide a conforming replacement for any item of Subscription Equipment which fails to perform in accordance with the applicable published specifications when used in accordance with the Documentation and terms of the Agreement. Any lost or damaged Subscription Equipment must be replaced by you at your expense at our then-current pricing.

4.6    Exclusions and Limitations.  The above warranties are the only warranties we provide in connection with the Equipment and Services.  These warranties (and our obligations to replace failed Subscription Equipment) are void and do not apply to the extent a claim results from (a) loss of equipment, abuse, misuse (including uses prohibited by this Agreement) or intentional damage; (b) installation (other than by us), deployment, use, maintenance or support not in accordance with the Documentation; (c) modifications to System elements by you or a third party not authorized by us; (d) events of force majeure; (e) factors beyond our control (including but not limited to radio transmission interference and faults in or unavailability of telecommunications networks); (f) incompatibility of Equipment with wireless network technology other than that specified for the Equipment; or (g) any breach of the Agreement by you.  The above warranties and replacement obligations do not apply to System elements not provided by us.  Except as expressly set forth in this section, the System elements we supply are provided “AS IS.”  THE WARRANTIES AND OBLIGATIONS STATED IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OR TRADE, ALL OF WHICH WE EXPRESSLY DISCLAIM.  We do not warrant that the Management System, Equipment or other System elements will be uninterrupted, error-free, unbreachable or will meet your quality and performance requirements.

5.     Other Support.

5.1    Updates.  When reasonably practical, we will alert you and other customers in advance before releasing Updates.  We will install Updates as they become available to the Management System and, when reasonably practical, cause Updates to automatically install in Mobile Apps.  If an Update requires you to download the Update to your Mobile Device(s), we will inform you of the required download procedure and you will complete the download.  The term “Updates” means maintenance releases, error corrections, additions, changes, modifications, extensions, new versions and new releases of software or firmware by us for the System, excluding new products or services we elect to sell separately.

5.2    Support Services.  We will provide you with access to our then-current standard support services for SmartSense subscribers (“Support”).

6.     Payment.

6.1    Fees for Services.  Fees for the Service and Associated Services we provide will be invoiced directly (unless you arrange to pay the Fees by credit card).  Unless otherwise specified in an Order, billing for subscription Fees will be annually in advance.  Recurring Subscription Fees will begin following shipment of associated Equipment.  Fees for Associated Services will be as specified in the applicable Order.  If not so specified, the Associated Services will be billed at standard prices.

6.2    Equipment Purchases.  Prices (including any applicable services charges and fees) will be as presented on the Order and payments for shipments will be invoiced upon delivery to the FOB point.

6.3    Payment and Credit Terms.  Payment terms are net 30 days from invoice date with approved credit.  You will make all payments according to the instructions on the face of the invoice.  Acceptable forms of payment include check, money order, wire transfer, SWIFT Transfer, VISA, MasterCard, or American Express. Invoiced amounts are payable in US Dollars (except for Canadian sales, where invoiced amounts are payable in Canadian Dollars).  If you have not established credit with us, we may require payment in advance.  We reserve the right at any time and for any reason to modify, suspend, or terminate any credit terms previously extended to you.  We may refuse, suspend or delay service or shipments for your failure to pay amounts you owe us, whether on this or any other contract between the parties.  During periods of suspension, alerts will be disabled and you will not have access to the System.   We may add a 1.5% per month service charge (or the maximum permitted by law if less) to delinquent accounts.  You will pay the reasonable costs, charges, and expenses we incur (including attorney's fees) if the account is placed in the hands of an attorney or an agency for collection.  Prices are subject to change without notice.

6.4    Shipping Charges; Taxes and Other Costs.  Prices do not include costs of shipping, forwarding, insurance or similar fees, storage after delivery, or any import or export duties, or sales, use, excise or similar taxes levied by any governmental authority.  You will be responsible for such costs and we will include them on our invoices.  Unless you provide us with a valid and correct tax exemption certificate applicable to the product ship-to location prior to our acceptance of the Order, you are responsible for sales and all other taxes associated with the Order. 

6.5    Fees for Cancelled, Re-scheduled, or Prevented Associated Services.  We reserve the right to charge the full service fee (and any incurred out-of-pocket expenses, such as travel re-booking fees) for any on-site Associated Services which (a) are cancelled or re-scheduled less than five business days prior to the scheduled date or (b) we are unable to perform due to lack of access or necessary support during the scheduled visit.

6.6    Invoice Format; Use of Third-Party Invoice Management Applications.  Unless otherwise mutually agreed in writing, we will provide invoices electronically via email to your contact of record.  If we agree to provide invoices via another means (including mail or via third-party invoice management applications), we reserve the right to charge a processing fee of $25 per invoice.

7.     Data.

7.1    Your Access.  You may access your available Data during the Subscription Term and successive renewal periods through the reporting features of the Management System.  Our System is intended to retain your Data for two (2) years after it is collected for as long as you maintain a subscription.  Your Data may be removed from our systems 30 days after the end of your subscription.  Your Data may also be subject to loss in the event of a suspension, as described in section 11.2, below.

7.2    Our Use.  We may use your Data to provide the Service and associated Support, but we will not otherwise use or disclose your Data except (a) data excluded from confidentiality obligations per section 8.3, and (b) anonymized data (with all identifying information unique to you removed) for general reporting and management of our Service.

8.     Confidentiality.

8.1    Confidential Information. “Confidential Information" means any technical or non-technical information related to the operations, products, technology, services, or business of a party disclosed or otherwise provided in any manner by such party to the other party, or to which the receiving party may gain access while performing under the Agreement, whether disclosed orally, visually or in writing, and whether or not bearing any legend or marking indicating that such information or data is confidential.  Your Confidential Information includes your Data, confidential reports, financial and operational information, and other matters relating to the operation of your business. Confidential Information also includes the terms and conditions of the Agreement and proprietary or confidential information of any third party that may be in the disclosing party's possession.  Our Confidential Information includes the Management System, the Documentation, and pricing of the Management System and other System elements.

8.2    Nondisclosure. During the term of this Agreement and for a period of 3 years thereafter, each party will: (a) hold the other's Confidential Information in confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own confidential information of a similar nature; (b) not directly or indirectly disclose, copy, distribute, republish or allow access to any Confidential Information of the other party to a third party; and (c) not use the other party's Confidential Information for any purpose other than as necessary to fulfill such party's obligations or exercise its rights under this Agreement. Notwithstanding the above, either party may disclose Confidential Information if so required by applicable law or regulation (including court order or subpoena or other governmental decree or authority), provided that the receiving party, if required by governmental authority to reveal Confidential Information of the disclosing party will, if allowed by applicable law, notify the disclosing party promptly upon learning of the government requirements and before making such disclosure, and will provide the disclosing party with an opportunity (at the disclosing party's own expense) to seek a protective order or other appropriate procedure so that the disclosure, if required, can be made in a manner than preserves the confidentiality of the Confidential Information.

8.3    Exclusions. The foregoing obligations respecting “Confidential Information” will not apply to information or Data which the receiving party can show was:(a) publicly available or later becomes publicly available other than through a breach of this Agreement; (b) known to the receiving party prior to such disclosure; (c) independently developed by the receiving party without the benefit of access, directly or indirectly, to Confidential Information of the disclosing party; or (d) subsequently lawfully obtained by the receiving party from a third party without obligations of confidentiality.

9.     Additional Terms.

9.1    Amendments to Orders.  By mutual agreement, you and we can amend any outstanding Orders to add Equipment and/or Service locations, provided that no amendments may be made to a shipment after delivery to the F.O.B. point.  You can request such changes via telephone or email and the changes to your Order will become effective when we confirm them in writing (electronically or otherwise).  Subsequent invoices will reflect the new Equipment and associated Services.

9.2    Documentation.  You will follow and comply with all care and use instructions applicable to the System and System elements in the Documentation.  You may make copies of the Documentation for your own internal use in connection with your use of the System, but no more than reasonably necessary.

9.3    Acceptance.  All goods and services will be deemed accepted at the time of delivery.  All warranty remedies survive such acceptance.

9.4    Intellectual Property. The Management System and other System elements are our intellectual property.  As between you and us, we retain title to and ownership of all right, title and interest in such assets, including all intellectual property and other proprietary rights therein.  All rights not expressly granted herein are reserved by us.  You will not: (a) provide access to or use the Management System for any purpose separate from the System covered by the Order; (b) disassemble, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Management System or any other System element; modify, port, adapt, translate or create any derivative work based upon the Management System or any System elements.  We may seek an injunction to enforce these obligations.

9.5    No Transfer.  Unless you have been granted rights as an authorized reseller, you will not copy, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, use, offer on a service bureau basis, deliver or otherwise transfer the Management System, in whole or in part.  You will not copy or remove any software from any Equipment except as directed in writing by us.

9.6    Proprietary Markings.  You will not remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on any System elements or add any other markings or notices to the same.

9.7    Use Obligations.  You (A) will access and use the Management System only in accordance with the Agreement and the applicable Documentation, (B) will be responsible for determining the suitability of the Equipment and Services for your intended use; (C) will not use the Management System or permit the Management System to be used to perform any file storage or other services for any third party, (D) will not upload or permit the Management System to be used to upload any data that (1) infringes the intellectual property rights or other proprietary rights of any third party, (2) is unlawful or objectionable material or (3) contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs or cancelbots, (E) will not use or permit the use of any software, hardware, application or process that (1) interferes with the Management System, (2) interferes with or disrupts servers, systems or networks connected to the Management System, or (3) violates the regulations, policies or procedures of such servers, systems or networks, (4) accesses or attempts to access another customer's accounts, servers, systems or networks without authorization, or (5) harasses or interferes with another customer's use and enjoyment of the Management System,  (F) will be solely responsible for management of access to and security of your Data captured with or used in any System element, including the Management System; and (G) will not tamper with or breach the security of any System elements.

9.8    Cellular Service Terms.  If your Equipment uses cellular wireless services that you purchase from us, your use of such services will be subject to our then-current standard terms of service for the applicable cellular services.

9.9    No Conflicts.  You represent and warrant that (i) the Agreement has been duly entered into and constitutes a valid and binding agreement enforceable against you in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with your entering into or performance of the Agreement; and (iii) the entering into and performance of the Agreement does not violate the terms or conditions of any other agreement to which you are a party or by which you are otherwise bound.

9.10 Compliance.  You will comply with all applicable laws and regulations in your use of the System.  You, not we, are responsible for any applicable vertical or industry-specific regulation compliance.

10.   Limitations of Liability

10.1 Exclusions.  Neither You nor We will be liable to each other for any indirect, incidental, punitive, exemplary, special or consequential DAMAGES, or damages for loss of profits, revenue or data, or will seek those types of damages.  EXCEPT WHERE CAUSED SOLELY BY OUR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, WE will have no liability for any loss, liability or damages whatsoever arising from, in connection with, or as a consequence of (A) any spoilage or loss of contents of any refrigeration unit, (b) THE LOSS, UNAUTHORIZED ACCESS, MISUSE OR COMPROMISE OF your DATA CAUSED IN WHOLE OR IN PART BY YOUR FAILURE TO ENFORCE ACCESS CONTROLS OR IMPLEMENT SECURITY MEASURES RELATING TO SYSTEM DATA, OR (C) MISUSE OF OUR SYSTEM OR SYSTEM ELEMENTS.

10.2 Liability.  Our aggregate liability (whether in CONTRACT, TORT, WARRANTY, NEGLIGENCE, INDEMNITY or otherwise) for ANY AND all claims arising under this agreement will not for any reason exceed the amount You HAVE PAID US FOR EQUIPMENT AND SERVICES under this agreement during the 12 month period PRIOR TO THE INCEPTION OF THE CLAIM.  FURTHERMORE, Our AGGREGATE liability (whether in CONTRACT, TORT, WARRANTY, NEGLIGENCE, INDEMNITY or otherwise) for claims arising from EQUIPMENT AND SERVICES PROVIDED UNDER any order will not for any reason exceed the amount You HAVE PAID US FOR SUCH EQUIPMENT AND SERVICES under such order during the 12 month period PRIOR TO THE INCEPTION OF THE CLAIM.  the PRICING FOR GOODS AND SERVICES HEREUNDER IS BASED ON THESE LIMITATIONS OF LIABILITY.  IF YOU ARE PURCHASING AS A MEMBER OF A GROUP PURCHASING ORGANIZATION OR ANY LIKE ORGANIZATION THAT has negotiated PRICING DISCOUNTS on behalf of its MEMBERS (“gpo”), THESE TERMS OF SERVICES are the AGREEMENT BETWEEN YOU AS PURCHASER AND US AS VENDOR AND YOU WILL NOT MAKE A CLAIM DIRECTLY AGAINST THE GPO FOR ANY ISSUES WITH THE EQUIPMENT AND SERVICES WE PROVIDE; INSTEAD, YOU WILL DIRECT ALL SUCH CLAIMS TO uS.

10.3 Force Majeure.  We will not be in breach of the Agreement or liable for damages from any circumstances beyond our reasonable control, including (without limitation) fires, floods, natural disasters, power outages, pandemic, systemic supply shortages, cybercrime, delays or disruptions by third parties (including without limitation, communications providers or third-party service providers).

11.   Termination

11.1    Termination.  Neither party may terminate any Order other than for cause if the other party fails to cure a material breach affecting such Order within 30 days after notice.  If any Fees are more than 10 days past due, we may suspend your use of the System (for this and any other Orders) until those Fees and a reinstatement fee equal to five percent (5%) of past due Fees (or the maximum amount permitted by law if less) have been fully paid.  You will not have access to your Data during a period of suspension and you may lose Data as a result of a suspension, so you should use manual or other means of tracking your assets during any period of suspension.  We will not be responsible for the restoration of data lost or not captured during suspension.  We will continue to invoice during periods of suspension.  After termination of an Order, you will remain obligated to pay, and we will have the right to collect, all unpaid invoices plus subscription Fees for the remainder of the full Subscription Term. 

11.2    End of Management System and Access to Data. When the Agreement and Support terminates, you will no longer have access to the Management System or the ability to generate reports containing your available Data.  If you desire to use the Management System to create reports containing your available Data when the Agreement is scheduled to expire or terminate, you may continue to pay all Fees until you no longer desire access to the Management System (after the Agreement terminates, all remaining Data will be deleted) unless termination is due to failure to pay fees when they are due or a breach of the Agreement terms.

11.3    Survival. The rights and obligations which are continuing in nature (including Sections 4.6, 6, 7, 8, 9, 10, 11, 13 and 14) will survive any suspension or termination of the Agreement.

12.   Applicable Terms.  These Terms will apply and (except as mutually agreed in writing) remain unchanged during the Subscription Term.  The Terms in effect at the time of renewal (posted at https://www.smartsense.co/terms-of-service) will apply to any renewal.  If you have questions about these Terms or the use of the System, please contact SmartSense customer support at https://helpcenter.smartsense.co/. 

13.   General.

13.1    Notices. All “notices” must be in writing and delivered electronically (if to SmartSense, at [email protected]) or by other method with proof of delivery.  All other communications, requests or alerts may be provided by fax, email, website or other electronic means.

13.2    Assignment.  Neither party will assign this Agreement, in whole or in part to a third party, without the written consent of the other party; provided that (a) either party may assign this Agreement to an affiliate or to the surviving legal entity in the case of its merger or consolidation, or to an entity to which such party transfers all, or substantially all, of its business and assets relevant to this Agreement, and (2) the party making the assignment will promptly notify the other party of such assignment.  This Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns.

13.3    Governing Law. This Agreement and any related sales will be governed by the laws of the State of Minnesota, USA (except for Canadian sales, which will be governed by the laws of the Province of Ontario).  The United Nations Convention on Contracts for the International Sale of goods will not apply.

13.4    Export Restrictions.  You will comply with all applicable United States export control laws and regulations concerning export and re-export of Equipment, technology and documentation, including without limitation, the laws and regulations administered by the United States Department of Commerce and the United States Department of State.

13.5    Disputes.  The parties agree that the courts of the State of Minnesota (or the courts of the Province of Ontario for contracts with Digi SmartSense Canada) will have exclusive jurisdiction over any claim, or dispute or controversy arising out of or related to this Agreement.  You may not initiate any litigation or other legal claim against us if you have known of the claim for more than one year.  Each party will pay (without reimbursement from each other) any attorney’s fees and expenses it incurs in connection with any dispute.

13.6    Severability.  Any waiver of or modification to the terms of the Agreement will be ineffective unless executed in writing and signed by both parties.  If any provision of these terms and conditions is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this document.

13.7    Complete Agreement. The Agreement (as described above) contains the complete agreement between the parties (and supersedes any prior agreements) relating to the subjects of this Agreement.  Any terms in any of your purchase orders or other ancillary documents that are in conflict with or in addition to the terms of the Agreement are rejected and will be of no effect unless expressly agreed to in writing by both parties.

14.   Additional Safetemps™ Terms.  This section will apply only if and to the extent your Order includes Safetemps™ Equipment and/or Services.

14.1 Additional Definitions.

a.      the term “Personal Data” means Data, if any, collected from or reasonably linked to an identified or identifiable natural person, as defined by local, state, federal, or non-US data protection laws; and

b.     the term “Documentation” as used in this Agreement excludes any references to Safetemps™ Sensors (or any other System elements) being suited for use as FDA-approved medical devices or in clinical settings

14.2 Your Data.

a.      Our Safetemps™ System is a tool we provide to help you scan and manage Data collected through our infrared temperature Sensors.  You will be solely responsible for:

·       determining whether the Safetemps™ System is suited to your specific needs;

·       the security and management of credentials used to access your Data, including Personal Data, if any;

·       compliance with applicable laws and regulations relative to any Data, including Personal Data, you introduce into the System or System elements;

·       downloading and preserving any Data you may require for compliance with applicable laws, including but not limited to OSHA, ADA, and public health regulations; and

·       downloading your Data from the Management System and running any management reports you may need for compliance purposes prior to expiration or termination of the Agreement.

b.     The exclusion for aggregate or de-identified data in Section 7.2, above, applies to Safetemps™ Data (with all identifying information unique to you and individuals monitored removed) and to permit our general reporting to other users, to researchers, and to public health and other government officials.

c.      For the avoidance of doubt, the term “YOUR DATA” in Section 10.1(B) includes any Personal Data.

14.3 Use Obligations.  In addition to your obligations under Section 9.7, above, you will use the Safetemps™ System only as intended as a screening tool and will not use it or any Safetemps™ System element as a medical device, as part of a medical device, in a clinical setting or for diagnosis of a patient’s disease by a licensed healthcare provider.

14.4 Compliance.  Your obligations under Section 9.10 for compliance with all applicable laws and regulations include (but are not limited to) those regarding work safety, public health, cybersecurity, and data privacy associated with your use of the Safetemps™ System.  Your obligations under Section 13.4 include your obligation to comply with any laws related to cross-border transfers of Data, including Personal Data, or “localization” laws that require copies of Data be retained in a particular jurisdiction.

Effective: March 1, 2022