Terms of Service

Last Updated on January 16, 2019

1. Definitions

1.1 "Data" means any information, data and files, including personally identifiable data, transmitted to the developer platform or field platform.

1.2 "Documentation" means the applicable training, support, and other documentation related to the use of and access to the Product and services.

1.3 "Order" means an order for Products and services issued under the terms and conditions of the Agreement.

1.4 "Policies" means Ayla's policies pertaining to the use of the Product or services published at https://www.aylanetworks.com/policies, as may be updated from time to time.

1.5 "Third Party Materials" means any third party software or other materials which are included within the Product.

2. Grant of Rights; Terms of Use

2.1. Grant of Rights. Subject to the terms stated herein and Customer’s performance of its obligations, Ayla grants to Customer a personal, non-exclusive, license to use Product specified in the Order (and only such Product as specified in the Order) in the cloud service location(s) set forth in the Order. For certain software made available to Customer in source code format, Customer may modify the source code as needed to incorporate the software into its device(s) or application(s) solely for the purpose of connecting to the Ayla cloud platform. The ‘Ayla cloud platform’ includes the developer platform (which is Ayla’s proprietary developer and testing cloud platform) and the field platform (which is Ayla’s proprietary production cloud platform). Ayla provides its cloud platform on a regional basis, as specified in the Order. Customer may not use such software to connect to any other cloud service or platform. Any transfer by Customer of any software or other application made available in source code format shall be in object code format only, even if originally provided in source code format. If Customer is incorporating such software into its device(s) or application(s), Customer agrees to incorporate an end user license agreement in substantially the form attached hereto as Annex I ("EULA") in Customer's terms of use for its device(s) or application(s). Customer agrees to provide to Ayla copies of such EULA terms upon request. As long as Customer pays the applicable fees Customer shall have access to any updates or Documentation related to the Product. Customer may internally use and reproduce the Documentation for development, testing, support and training purposes.

2.2. Restrictions and Obligations. In addition to any other restrictions set forth herein, Customer shall not: (a) access or use the Product, Documentation or services except as expressly permitted hereunder; (b) except as expressly permitted hereunder, sell, rent, lease, sublicense, pledge, assign or otherwise transfer Customer's rights, in whole or in part, to any third party; (c) modify, adapt, translate or create derivative works based on the Product, Documentation or services (or portions thereof) except as expressly permitted hereunder; (d) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in any part of the Product or Documentation , and Customer agrees to reproduce all such notices, legends, symbols and labels on copies of the Product and Documentation; (e) use any portion of the Product to connect to any website or service other than the developer platform or field platform; (f) use or access the Product or Documentation in any way not in compliance with the Policies; (g) use the Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (h) publish, post, upload or otherwise transmit data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (i) use the Product or Documentation to create a product or service which is similar to or competitive with any offerings of Ayla or its affiliates; or (j) disclose to any third party the performance measures, benchmark tests or other comparisons of the Product with other services or software. Customer will not permit or encourage any third party to do any of the foregoing.

2.2.1. Additional Obligations for Source Code. In addition to the terms contained herein, Customer agrees that for software provided in source code format, source code is considered Confidential Information and is accessible only by Customer's employees who have a need to access the source code. Customer warrants that: (a) any such employee has been apprised of and acknowledges the confidential and proprietary nature of the source code; (b) has been trained in accordance with industry standard procedures designed to preserve the confidentiality of the source code; and (c) its employees are aware and agree to Customer's obligations to use the source code only under the conditions permitted herein. Customer will not allow hard copy versions of any portion of the source code to exist except within secure locations. Customer will not allow soft copy versions of any portion of the source code to reside on computers or networks unless they are password protected with access available only to authorized employees. Customer will be responsible and fully liable to Ayla for any breach hereunder. If there is any unauthorized use or disclosure of the source code, Customer shall notify Ayla immediately and fully cooperate, at Customer's expense, in minimizing the effects of such unauthorized use or disclosure.

2.3 Third Party Materials. The Product may contain Third Party Materials, including software (along with libraries, databases, drivers and similar components, or portions thereof) that is made available for use under a free or open source license. In addition to the restrictions and obligations stated herein, Customer will comply with any restrictions and obligations related to the Third Party Materials. The Third Party Materials are published at http://www.aylanetworks.com/third-party-software, and may be updated from time to time. Customer shall not use or take action with any portion of the Product in a manner that would require such Product that: (a) require the Product or services be disclosed or distributed in source code format; or (b) require the Product or services to be modified or derivative works made without additional compensation; or (c) require the Product or services be redistributable at no charge; or (d) permits reverse engineering of the Product or services; or (e) require the Product or services to be used only for non-commercial purposes; or (f) require third party attribution; or (g) restrict any rights to assert or enforce patent rights.

2.4. Access to Customer Portal. During the applicable term specified in the Order, Customer’s Authorized Users may access and use Ayla's web-based portal through which Customer may manage its account and access other features and functionality made available to Customer from time to time. Customer agrees: (a) it will provide true, accurate and complete information in the portal registration process; (b) it will maintain the confidentiality and security of the login credentials used to access the Customer portal; (c) it will not transfer, share, disclose or resell its login credentials or otherwise share or transfer access to the Customer portal to any third party without Ayla's prior written consent; (d) it will promptly notify Ayla of any unauthorized use of its login credentials or Customer's portal or account; and (e) it will log off and exit from the Customer portal at the end of each session. Customer is responsible for all use of its login credentials and the portal.

2.5. Prohibited Uses. The Product is not designed, intended, or certified for use involving the operation of weapons, weapons systems, nuclear installations, means of mass transportation, aviation, life support computers, pollution control, hazardous substance management, or for any use in which the failure of the Product could create a risk of personal injury or death. Customer may not use the Product in connection with any of the foregoing prohibited uses.

2.6. Feedback. Customer grants to Ayla a non-exclusive, perpetual, irrevocable, world-wide, royalty-free, fully paid up, sublicensable, transferable right, with full rights to create derivative works, and otherwise use its comments, suggestions, enhancement requests, recommendations or other feedback.

2.7. Prohibited Information. Customer shall not, directly or indirectly, transmit, disclose or otherwise provide: (i) social security numbers (or similar personal identification number) ; (ii) health insurance or policy identification numbers, protected health information regulated under the Health Insurance Portability and Accountability Act of 1996; or (iii) credit card, payment account information or any other payment information where the transfer to and processing by Ayla would cause Ayla to be subject to the Payment Card Industry Data Security Standard. If Customer, directly or indirectly, transmits or provides to Ayla any Data or information described herein, Customer shall indemnify, and hold Ayla harmless from and against, any liability arising from such transmission.

3. Taxes; Audits

3.1. Taxes. Any fees payable by Customer to Ayla are exclusive of any and all taxes, levies or duties imposed by any local, state, federal or other taxing authority, including any applicable, sales, VAT, use, excise, and withholding taxes (collectively, "Taxes"). Customer shall pay and be responsible for all such Taxes. Taxes do not include taxes based on Ayla’s net income.

3.2. Audit. Customer shall keep and maintain complete and accurate books, records and accounts relating to Customer's compliance with its obligations hereunder and under the Order. Ayla shall have the right, with 30 days prior written notice and during reasonable business hours, to examine such books, records and accounts to verify Customer's compliance with its obligations. Any such audit shall be at Ayla's expense; provided, however, if such audit reveals a material breach of these Terms of Service or the Order, then Customer shall pay the costs of the audit.

4. Support

Customer acknowledges and agrees that, as between Customer and Ayla, Customer shall be responsible for providing first line support to its customers, any resellers, distributors and other third parties. Ayla's support obligations, if any, extend solely to Customer.

5. Confidentiality

5.1. Confidential Information. Each party to the Agreement acknowledges that such party (as a receiving party) may obtain or otherwise learn the Confidential Information of the other party (as the disclosing party). "Confidential Information" means any information relating to a disclosing party, its business, technology, suppliers, licensors, resellers, distributors, customers, and third parties to whom the disclosing party has an obligation of confidentiality, whether in tangible or intangible form, which is either marked or designated as "confidential" or "proprietary," or disclosed under circumstances indicating its confidential or proprietary nature, or otherwise would be known to be confidential or proprietary by a reasonable person. The Confidential Information of a disclosing party shall be owned exclusively by the disclosing party. Confidential Information does not include information that: (a) was or becomes publicly known through no fault or breach hereunder by the receiving party; (b) was known by the receiving party before receipt from the disclosing party or becomes known without restriction from a source that does not owe a duty of confidentiality to the disclosing party; or (c) is independently developed by the receiving party without access to the Confidential Information. The parties may disclose the general nature of their relationship, but a party may not disclose the terms of any agreements or pricing without the prior written consent of the other party.

5.2. Obligations. The receiving party agrees: (a) to protect the Confidential Information of the disclosing party from unauthorized dissemination and use the same degree of care it uses to protect its own sensitive information; (b) to use the Confidential Information of the disclosing party solely for performing its obligations and exercising its rights hereunder; and (c) not to disclose any Confidential Information of the disclosing party, except to its employees and contractors who have agreed to comply with the confidentiality obligations imposed hereunder. The receiving party may disclose Confidential Information if legally compelled to do so. If able, the receiving party shall notify the disclosing party of such compelled disclosure and cooperate with disclosing party to obtain a protective order. Because disclosure of the Confidential Information will cause irreparable harm and injury, the party harmed may seek an immediate injunction and other equitable relief, without the necessity of posting any bond or other security.

6. Data

6.1. Use of Data. As between Customer and Ayla, Customer has sole control over Data provided or transmitted to Ayla and shall be the exclusive owner such Data. Customer grants to Ayla a worldwide, non-exclusive, royalty-free, fully paid up, and irrevocable right and license to use, store, process, modify, reproduce, distribute and display the Data, and to transfer Data to third parties, for the purpose of providing the Product and services or enhancements thereto, performing its obligations hereunder and complying with applicable law. Ayla may distribute, disclose or otherwise use anonymized Data. Anonymized Data means any Data obtained directly or indirectly by Ayla, which: (i) does not identify an individual; and (ii) is not attributed to Customer.

6.2. Consents. Customer represents and warrants that: (a) it has complied with applicable law, including privacy and data protection laws of the territories from which any Data is obtained, in providing and transmitting any Data to Ayla; and (b) prior to transmitting any Data, Customer has obtained all applicable consents and approvals required for the collection, transmission, use and processing of Data.

6.3. Report of any Security Breach. If either party becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of Data, such party will notify the other party without undue delay. Customer will immediately notify Ayla of any such incident or vulnerability through http://support.aylanetworks.com. Each party will also reasonably cooperate with the other party with respect to any investigations and with preparing any required notices, use reasonable efforts to identify and remediate the cause of the Data breach and provide any information reasonably requested by the other party in relation to the unauthorized access.

6.4. Information Security Programs. Each party will maintain a written information security program that contains administrative, technical and physical safeguards to protect against anticipated threats or hazards to the security, confidentiality or integrity of, the unauthorized or accidental destruction, loss, alteration of, and the unauthorized access to or acquisition of Data. Each such information security program will be consistent with applicable laws and regulations. Ayla's certifications pertaining to data security are available upon written request.

7. Warranty; Disclaimers

7.1. Performance. Ayla warrants that, during the applicable subscription term, the Product will achieve in all material respects the functionality described in the product features reference guide, found at https://connection.aylanetworks.com/s/article/Reference-Guide-Ayla-Product-Features, for the Product subscribed to by Customer. For Product where software is provided in source code format, Ayla does not warrant that any Product modified by Customer will achieve the functionality described. In the event the warranted Product does not achieve the functionality specified, Ayla will use commercially reasonable efforts to correct or replace such non-conformity as soon as practicable after Customer's written notice specifying such non-conformity. If correction or replacement of the affected Product is not commercially reasonable, Ayla will notify Customer, and upon Customer's request, Ayla will refund the fees paid by Customer for the affected Product, up to the amount specified in the limitation of liability section. Customer's rights to use the Product and any related services will be suspended or terminated upon such refund. Ayla is not responsible for the performance or functionality of any third party software or hardware in which the Product may be embedded. This section sets forth Ayla's sole and exclusive liability in the event of a warranty claim.

7.2. Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED HEREIN, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF , MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. AYLA DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, WILL BE ERROR-FREE OR SECURE, OR THAT THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED.

8. Indemnification

8.1. By Ayla. Subject to the procedural obligations specified below, Ayla shall: (a) defend any claim brought against Customer by an unaffiliated third party alleging that Customer's authorized use and access of the Product infringes or misappropriates such third party's trade secrets, copyrights, U.S. patents, or trademarks in the cloud service location(s) where Customer acquired the Product; and (b) shall indemnify Customer from any liability, costs and damages finally awarded for such claim by a court of competent jurisdiction, or settled by the relevant parties. If such a claim occurs or is likely to occur, Ayla may, at its option and expense: (x) procure the right to allow Customer to continue using the Product (or infringing portions thereof); or (y) modify or replace the Product (or infringing portions thereof) to become non-infringing; or (z) if neither of the foregoing options is commercially feasible, terminate Customer's right to use the affected portion of the Product and refund, on a pro-rata basis, any unused portion of the fees paid by Customer for such Product. Ayla shall have no obligations under this section or otherwise with respect to any infringement claim to the extent such claim is based upon or arises out of: (i) any modification or alteration of the Product, including any changes in the source code unless such changes were made by Ayla; (ii) any unauthorized access or use of the Product or any breach hereunder by Customer; (iii) any combination or use of the Product with other software, products, equipment, methods or services not provided by Ayla that results in such infringement; (iv) the Third Party Materials; (v) Customer's failure to use or implement corrected or replacement Product (or portions thereof) that would have avoided or mitigated the alleged infringement; (vi) Customer's continuance of allegedly infringing activity after being notified thereof; or (vii) any specifications or requirements supplied by Customer.

8.2. By Customer. Subject to the procedural obligations specified below, Customer shall: (a) defend any claim brought against Ayla by an unaffiliated third party alleging that any device, service or product made available, sold or distributed by Customer, its resellers or distributors, or used by Customer in connection with the Product caused or contributed to bodily injury, death or property damage or infringes or misappropriates such third party's trade secrets, copyrights, patents, trademarks or other intellectual property rights; and (b) indemnify Ayla from liability, costs and damages finally awarded for such claim by a court of competent jurisdiction, or settled by the relevant parties. In addition, Customer shall indemnify Ayla from any liabilities, costs and damages arising from Customer's breach of any representation, warranty, covenant or agreement hereunder, including without limitation any breach of Sections 2, 5 and 6.

8.3. Procedure. The party seeking indemnification will: (a) provide notice of the claim to the indemnifying party promptly after becoming aware of such claim; (b) provide reasonable assistance to the indemnifying party; and (c) tender control of the defense to the indemnifying party.

9. Termination

9.1. Termination for Breach. If either party materially breaches these Terms of Service and/or the Agreement, the non-breaching party may terminate the Agreement by providing 30 days prior written notice specifying reasonable details of the breach. Ayla may suspend use of the Product or services, if: (i) Customer fails to pay any amounts owed to Ayla, and such breach is not cured within 10 days; or (ii) Customer fails to cure any non-monetary breach within 30 days.

9.2. Effect of Termination. Upon expiration or termination of the Agreement:

(a) any rights granted by Ayla to Customer shall terminate, and Ayla may suspend or terminate any services;

(b) with respect to Data that is stored on the field platform, Customer may access such Data for 60 days following expiration or termination, or as specified in the Order. Each party will promptly and permanently destroy and delete all Confidential Information of the other party in its possession or control, other than an archival copy, provided that any such retained copies shall remain subject to all confidentiality obligations.

(c) the provisions related to limitation of liability, indemnity (for licenses that are not terminated, or for devices), payment and others which by their nature are intended to survive shall survive.

10. Limitation of Liability

EXCEPT FOR ANY DAMAGES ARISING FROM CUSTOMER'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR RELATED TO THE MISUSE, INFRINGEMENT OR MISAPPROPRIATION BY CUSTOMER OF INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOST DATA OR USE, OR THE COST OF SUBSTITUTION) ARISING FROM OR RELATED TO THESE TERMS OF SERVICE, THE AGREEMENT, OR ANY ORDER. AYLA'S AGGREGATE LIABILITY TO CUSTOMER ARISING FROM OR RELATING TO THESE TERMS OF SERVICE, THE AGREEMENT, OR ORDER, WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OUT OF WHICH THE ALLEGED LIABILITY AROSE.

11. General

11.1. Relationship of Parties. Both parties are, and shall remain at all times, independent contractors, and nothing herein or under the Agreement will be construed to create an agency, employment, fiduciary, representative or any other relationship between the parties.

11.2. Assignment. Neither party shall assign, sell, transfer, delegate or otherwise dispose of, by operation of law or otherwise, the Order or any of its rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, a party may assign the Agreement and any Orders thereunder without prior written consent solely in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of its assets, sale of stock, or like event, provided that: (a) the assigning party provides reasonable notice to the other party (and in the case of Customer, notice prior to the assignment); (b) the other party shall have the right to terminate the Order by written notice if the assignee is a competitor of the other party. Any transfer of license rights shall be subject to a separate agreement.

11.3. Compliance with Law. Each party will comply with all applicable laws, rules and regulations. Customer agrees to comply with the U.S. Export Administration Regulations and the export laws of any country to which either party is subject. Customer will not export or transfer the Product, services, Documentation, technical information or other items provided by Ayla to any destination, person or entity restricted or prohibited by relevant export laws.

11.4. Government Use. The Product, Documentation or services are "commercial items" as that term is defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Product, Documentation or services are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government's rights in the foregoing will be only those specified in the Agreement.

11.5. No Third Party Beneficiary. These Terms of Service and the Agreement are made and entered into for the sole protection and benefit of the specified parties and are not intended to convey any rights or benefits to any third party.

11.6. Force Majeure. Neither party shall be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from force majeure events. Force majeure events are events beyond a party's reasonable control, including acts of nature, labor disputes, the stability or availability of the Internet or a portion thereof, actions by a governmental authority, telecommunication or Internet network failures or brown-outs, failures or unavailability of third party systems, networks or software, flood, earthquake, fire, lightning, epidemics, war, acts of terrorism, riots, civil disturbances, sabotage, power grid failures, and denial of service attacks and other hacking attacks. Each party will mitigate the effect of a force majeure event on its own operations.

11.7. Notices. Any notice required to be given hereunder or under the Agreement or Order shall be in writing and delivered personally, by email, or by courier with confirmation of delivery. Notices shall be deemed effective upon receipt.

11.8. Changes to Terms of Service. Ayla may change these Terms of Service and will give Customer notice of any changes by posting an updated version of these Terms of Service online. Any changes will be effective as of the date they are posted, unless otherwise agreed. Continued use of the Product or services will constitute Customer's acceptance of such changes.

11.9. Other. Each party hereby represents and warrants that: (a) it has the full right, power and authority to enter into the Order and perform its obligations thereunder; and (b) the execution of the Order and the performance of its obligations thereunder, do not and will not violate any agreement or obligation of such party. The Order, including these Terms of Service, shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions. Any dispute regarding the Agreement or Order shall be subject to the jurisdiction of the state and federal courts with authority in and over Santa Clara County, California. The parties disclaim the application of the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Any delay or omission of either party to exercise any right or remedy shall not operate as a waiver of any right or remedy hereunder. If any provision of these Terms of Service, the Agreement or Order or any application thereof is invalid, illegal or unenforceable, that provision shall be limited or eliminated to the extent necessary so that these documents will otherwise remain in full force and effect. If there is a conflict between the documents contemplated herein, the order of precedence shall be: first, the Order; then, the Agreement; and last, these Terms of Service. If any document contemplated herein is translated into a language other than English, the parties agree that the English version shall control in the event of a conflict or ambiguity.

12. Annex I: End User License Agreement

1. This product, system or service ("Item") contains software that is subject to a separate license agreement ("Software"). The applicable licensor retains all rights to such Software, and a limited license is granted to end user solely for use with this Item. End user will use the Software that is incorporated or embedded in a manner unmodified from the form provided to end user. End user will not modify, adapt, translate or create derivative works based on, or decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the Software. End user will not disseminate or transmit viruses, worms, Trojan horses, time bombs, spyware, malware, cancelbots, passive collection mechanisms, robots, data mining software, or any other malicious or invasive code or program. THERE ARE NO WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. There are no special, indirect, incidental, consequential or punitive damages available from the Software licensor.

2. The information collected by and transmitted through the Item may be accessed by third parties. By using the Item, end user consents to such access of the information. If end user does not consent to such access, end user shall discontinue use of the Item immediately and inform the manufacturer, service provider or supplier of the Item in writing of its objection.

3. The licensor(s) of the Software are the express third party beneficiaries of this End User License Agreement.