Terms of Service - IBM End Users
Last Updated on June 13, 2018
These Terms of Service govern Customer's access to and use of the Ayla hosted cloud services and certain services related thereto. Customer shall be the entity specified in the signature field online.
1.1 "Data" means any information, data and files, including personally identifiable data, transmitted to the Developer Platform or Field Platform.
1.2 "Developer Platform" means Ayla's proprietary developer and testing cloud platform licensed to Customer.
1.3 "Documentation" means the applicable training, support, and other documentation related to the use of and access to the Product and services.
1.4 "Field Platform" means Ayla's proprietary production cloud platform licensed to Customer.
1.5 "Policies" means Ayla's policies pertaining to the use of the Product or services published at https://www.aylanetworks.com/legal, as may be updated from time to time.
1.6 "Product" means the Ayla’s proprietary AMAP software, Developer Platform, embedded agent, Field Platform, gateway software and other proprietary applications developed from time to time by Ayla and licensed to Customer.
1.7 "Third Party Materials" means any third party software or other materials which are included within the Product.
2.1 Grant of Rights. Subject to the terms and conditions stated herein, Ayla grants to Customer a personal, non-exclusive, non-transferable, non-sublicensable right and license to use Product. Customer may not use such software to connect to any other cloud service or platform. 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 agrees (on behalf of itself and its affiliates) not to: (a) access or use the Product, Documentation or services except as expressly permitted hereunder; (b) 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 portion of the Product or other 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.
2.3 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 and restrictions and obligations related thereto are published at http://www.aylanetworks.com/third-party-software, as 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 to be subject to open source terms to which they are not already subject to upon provisioning to Customer. Open source terms means any terms which: (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 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, medical equipment, or devices, 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.
2.5 Feedback. With respect to comments, suggestions, enhancement requests, recommendations or other feedback provided by Customer, 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 such feedback for any purpose.
2.6 Prohibited Information. Notwithstanding anything to the contrary, the parties acknowledge and agree that: (a) Customer has sole control over all Data that is provided or transmitted to Ayla, whether directly from Customer or its agents or third parties, through Customer's devices or cloud, any application, or any other means; (b) Ayla does not require Data in order to provide the Product or services to Customer; (c) 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.
3.1 Use of Data. As between Customer and Ayla, Customer shall be the exclusive owner of Data transmitted to Ayla. In order for Ayla to perform its obligations hereunder, Customer hereby grants to Ayla a worldwide, non-exclusive, royalty-free, fully paid up, non-transferable (except as permitted under the Assignment section) irrevocable right and license: (a) during the term, to use, store, process, modify, reproduce, distribute and display the Data, and to grant sublicenses to third parties, for the purpose of providing the Product and services or enhancements thereto, performing its obligations hereunder and complying with applicable law; and (b) during and after the term: (i) to use, store, process, modify, reproduce and display the Data for Ayla's internal business purposes, including development, diagnostic, forecasting, planning, analysis and corrective purposes in connection with its provision and improvement of the Product and services; and (ii) to 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.
3.1.1 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; and (b) prior to transmitting any Data to Ayla, Customer has obtained from its direct and indirect users all applicable consents and approvals required for the collection, transmission, use and processing of Data.
3.1.2 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.
3.2 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 the requirements of applicable laws and regulations. Ayla's certifications pertaining to data security are available upon written request.
4.1 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 for the Product subscribed to by Customer. Ayla does not warrant that any Product modified by any party other than Ayla will achieve the functionality described. In the event the 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. Ayla is not responsible for the performance or functionality of any third party hardware in which the Product may be embedded. This section constitutes Ayla's sole and exclusive liability, in the event of a warranty claim.
4.2 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 TITLE, MERCHANTABILITY, 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 SERVICES WILL BE UNINTERRUPTED.
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 and 3. Ayla will: (a) provide notice of the claim to Customer promptly after becoming aware of such claim; (b) provide reasonable assistance to the Customer; and (c) tender control of the defense to the Customer.
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 ANY OF AYLA'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, LOST DATA OR USE, OR THE COST OF SUBSTITUTION) ARISING FROM OR RELATED TO THESE TERMS OF SERVICE. AYLA'S AGGREGATE LIABILITY TO CUSTOMER ARISING FROM OR RELATING TO THESE TERMS OF SERVICE, WHETHER BASED ON NELIGENCE, CONTRACT, TORT, INDEMNIFICATION, STRICT LIABILTIY OR OTHER THEORY, WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OUT OF WHICH THE ALLEGED LIABILITY AROSE.
7.1 Relationship of Parties. Both parties are, and shall remain at all times, independent contractors, and nothing herein will be construed to create an agency, employment, fiduciary, representative or any other relationship between the parties.
7.2 Assignment. Neither party shall assign, sell, transfer, delegate or otherwise dispose of, by operation of law or otherwise, these Terms of Service without the prior written consent of the other party. Notwithstanding the foregoing, a party may assign these Terms of Service without the prior written consent of the other party solely in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of its assets, sale of stock, change of name or like event, provided that the assigning party provides reasonable notice of such assignment to the other party (and in the case of Customer, such notice is provided to Ayla prior to the assignment). Any transfer of license rights shall be subject to a separate agreement.
7.3 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.
7.4 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 Terms of Service.
7.5 No Third Party Beneficiary. These Terms of Service 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.
7.6 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 and agrees that it will take reasonable steps to follow its standard disaster recovery procedures.
7.7 Notices. Any notice required to be given hereunder shall be in writing and delivered personally, by email, or by courier with confirmation of delivery. Notices shall be deemed effective upon receipt.
7.8 Changes to Terms of Service. Ayla reserves the right to change these Terms of Service. Ayla 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. Customer is responsible for checking for updates to these Terms of Service, and the continued use of the Product or services will constitute Customer's acceptance of such changes.
7.9 Other. Each party hereby represents and warrants that it has the full corporate right, power and authority to enter into these Terms of Service and perform its obligations thereunder. 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 shall be subject to the jurisdiction of the state and federal courts located in 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 to these Terms of Service. 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 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 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.