Terms of Service
Date of Last Revision: June 1, 2015
1. Acceptance of Terms.
Ayla Networks, Inc. (“Ayla”) provides its Services to you subject to this Terms of Service (“TOS”). By accepting this TOS, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
2. Description of Services.
Ayla’s Services allow manufacturers to build “Devices,” which are devices which connect to the Services. The “Services” consist of (a) Ayla’s web sites located at aylanetworks.com (the “Site”); (b) Ayla Cloud Services, a platform that allows you and your end user customers to view and manage your use of the Service and manage Devices; (c) Ayla Connectivity Stacks, which consists of software that enables a Device to connect to Ayla Cloud Services; and (d) Ayla Application Libraries, which consist of software that allows you to build applications that allow your end user customers to access Devices and the Service (collectively with (c), the “Software”). The Services may also include data and other content and printed and electronic documentation provided by Ayla (“Documentation”). Any new features added to or augmenting the Service are also subject to this TOS.
3. Access and Use of the Service; Restrictions.
3.1 Subject to your acceptance of and compliance with this TOS and any Documentation, Ayla hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, license during the term of this TOS to (i) access Ayla Cloud Services pursuant to the terms provided therein and in accordance with the selected device and data plan; (ii) install the Software onto Devices in order to allow them to access the Service; (iii) install, copy, use and modify the microcontroller code drivers contained in the Software that implement the APIs for the Ayla Connectivity Stacks solely as necessary to incorporate onto Devices to allow them to connect to the Service; (iv) install, copy, use and modify the Ayla Application Libraries contained in the Software to create applications that allows end user customers to access their Devices and the Service; and (v) distribute the Software in object form only and as incorporated in Devices to distributors and purchasers of the Devices pursuant to end user license agreements at least as protective of Ayla as the terms of this TOS. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Ayla or any third party is granted to you in connection with the Services. For clarity, Ayla reserves the right to refuse connection to the Ayla Cloud Service by any Device that is not in compliance with its selected device and/or data plan.
3.2 You will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software or documentation related to the Services; (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Ayla or authorized within the Services); (iii) use the in connection with any other software in a manner that would modify the license terms of the Software require Ayla or its licensors to distribute or make available any of Ayla’s or such licensors’ proprietary software or intellectual property; or (iv) remove, efface or obscure any proprietary notices or labels. You will not (and will not allow any third party to) use any portion of the Services, including without limitation the microcontroller code drivers or software included in the Ayla Connectivity Stacks, to connect a Device to any website or service other than *.aylanetworks.com without Ayla’s explicit written consent.
3.3 You agree to promptly communicate to Ayla your discovery of any bugs or errors in the Services, and you may communicate to Ayla suggestions for improvements to the Services (collectively, “Feedback”). Ayla shall own all right, title, and interest in and to the Feedback, and will be entitled to use the Feedback without restriction. Ayla shall not be required to use any Feedback, including fixing any bugs or errors, and will in its sole discretion determine the manner and schedule for any bug or error fixes.
3.4 You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, Devices, modems, hardware, server, software, operating system, networking, and web servers (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.
3.5 You represent, covenant, and warrant that you will use the Services only in compliance with this TOS, Ayla’s standard published policies then in effect, and all applicable laws and regulations (including but not limited to policies and laws related to spamming, privacy, intellectual property, consumer and child protection, obscenity or defamation). Any use of the Services in violation of the foregoing will result in immediate termination of your account and Ayla may pursue all available remedies at law and equity. You hereby agree to indemnify and hold harmless Ayla against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of Services in violation of this TOS. Without limiting Ayla’s other rights and remedies, you acknowledge and agree that any actual or threatened breach of Sections 3 or 5 would result in irreparable harm to Ayla, and Ayla shall be entitled to equitable relief as a remedy for such breach.
You will pay fees for the Services as set out within the Site or Services or as otherwise agreed between you and Ayla. You agree to pay all fees due to Ayla within 30 days after invoice, or in any other manner agreed to by you and Ayla in writing. If you dispute any charges you must let Ayla know within sixty (60) days after the date that Ayla invoices you. You are responsible for all taxes associated with your use of the Services, excluding taxes based on Ayla’s income.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business, which may include personally identifying information of individuals (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Ayla includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law.
All data arising from your end user customer’s use of the Devices as gathered by the Services (collectively, “Device Data”) belong to you and/or your end user customers, as applicable. You hereby grant Ayla, and will contractually obligate your end user customers to grant to Ayla, a perpetual, worldwide, non-exclusive, royalty-free, fully paid up, assignable and transferable right and license to use Device Data to provide the Services, to improve and enhance the Services and Devices, and for other development, diagnostic and corrective purposes in connection with the Services. Ayla may collect certain usage statistics and data from the Service and information on which portion of the Services are being used and how they are being used. Such data may be used by Ayla in aggregated and anonymized format in order to improve and enhance the Services and otherwise in connection with Ayla’s business. Please visit http://www.aylanetworks.com/privacy to understand how Ayla collects and uses personal information.
You have the right to terminate your account and this TOS at any time in accordance with the procedures set forth on the Services. Either party may terminate this TOS upon thirty (30) days’ notice (or immediately and without notice in the case of nonpayment or breach of Section 3), if the other party materially breaches any of the terms or conditions of this TOS. You will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, all rights and licenses granted to you here under will immediately terminate, other than sublicenses of the software binaries and microcontroller code drivers included in the Ayla Connectivity Modules solely as installed onto a Device pursuant to Section 3.1(iv) (subject to continued payment, if applicable) and your and Ayla’s rights to data under Section 6. All sections of this TOS which by their nature should survive termination will survive termination, including, without limitation, restrictions on use, accrued rights to payment, data, confidentiality obligations, indemnification obligations, warranty disclaimers, and limitations of liability.
8. WARRANTIES AND DISCLAIMER.
Ayla shall use reasonable efforts consistent with prevailing industry standards to provide and maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Ayla or by third-party providers, or because of other causes beyond Ayla’s reasonable control, but Ayla shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND AYLA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY.
9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL AYLA BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
9.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, AYLA’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9.3 The Services are not designed, intended, or certified for use in components of systems intended for the operation of weapons, weapons systems, nuclear installations, means of mass transportation, aviation, life support computers or equipment (including resuscitation equipment and surgical implants), pollution control, hazardous substances management, or for any other dangerous application in which the failure of the Services could create a situation where personal injury or death may occur. You may not use the Services in connection with such equipment or application.
You shall defend, indemnify, and hold harmless Ayla from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, or your other access, contribution to, use or misuse of the Services. Ayla shall provide notice to you of any such claim, suit or demand. Ayla reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Ayla’s defense of such matter.
11. Export Controls.
You may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof 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. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
Ayla reserves the right to change or modify portions of this TOS at any time. Ayla will notify you, either through the Services user interface, in an email notification or through other reasonable means, of any changes. Changes will also be posted on this page and Ayla will indicate at the top of this page the date this TOS was last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new TOS.
If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. This TOS is not assignable, transferable or sublicensable by you except with Ayla’s prior written consent. Ayla may transfer and assign any of its rights and obligations under this TOS without consent. This TOS (and Ayla’s standard published policies then in effect applicable to the Services found in https://www.aylanetworks.com/legal) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. If you have entered into a written agreement with Ayla that supersedes any online or clickthrough agreements, the terms of such written agreement will supersede and govern the terms of this TOS in the event of any conflict. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Ayla in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. This TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Ayla in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.