PLEASE READ THESE TERMS OF SERVICE ("ToS") CAREFULLY, AS THEY REPRESENT THE TERMS OF A BINDING AGREEMENT (THE "AGREEMENT") BETWEEN YOU AND MONITOR TECHNOLOGIES, LLC., ("MONITOR" OR "WE" AND RELATED PRONOUNS) AND GOVERNS YOUR USE OF THE SILOTRACK CLOUDTM SERVICE. YOU WILL BE ACCEPTING AND AGREEING TO BE BOUND BY THESE TERMS BY: (A) INDICATING YOUR ACCEPTANCE OF THESE TERMS AND/OR (B) ACCESSING AND/OR OTHERWISE USING THE SILOTRACK CLOUD SERVICE.
If You are entering into this agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity (and/or its affiliates) to these terms, in which case the terms "YOU" or "YOUR" shall refer to such entity. If You do not have such authority, You must not indicate your acceptance on behalf of the entity. If You are a user working for or on behalf of a company, you represent and agree that 1) Such company has duly authorized Your access to the service as a user and 2) You have read these terms, understand them and agree to be bound by all terms applicable to users.
Your acceptance of these terms constitutes an essential part of the agreement between You and Monitor, without which Monitor would not agree to extend the rights set forth herein.
If You register for a free trial for Our services, these terms will also govern that account.
You may NOT access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement will become effective between You and Us upon Your acceptance of these ToS on the basis described above. The Services are provided expressly subject to these ToS, and Your rights to use the Services are conditioned upon: (i) Your compliance with all provisions of these ToS, and (ii) Your timely payment of all applicable subscription fees.
Monitor reserves the right, in its sole discretion, at any time and from time to time, to replace, modify, add to or retract/delete all or any portion of these ToS. It is Your obligation to review the most recent version of these ToS from time to time, posted at: www.monitortech.com/legal/stcloud-terms.shtml to ensure Your continued acceptance hereof. Any revisions to these ToS will become effective, and will constitute an amendment to this Agreement, twenty (20) business days after such revisions are posted, unless You expressly accept the revised ToS as of an earlier date. Your continued use of the Service after the applicable effective date of such revisions will conclusively establish Your acceptance to be bound by the revised ToS. If You have questions about these ToS or the Service, please contact Monitor technical support at firstname.lastname@example.org.
1. DEFINITIONS. The following definitions apply to capitalized terms used in this document:
1.1 "SiloTrack CloudTM" refers to the Monitor Technologies cloud service which provides remote silo monitoring, as well as related alerts and reports.
1.2 "Account" means an account subscription for online access to and use of SiloTrack Cloud subject to these Terms of Service.
1.3 "Trial Account" means a free, limited trial Account established via an agreement with our sales department.
1.4 "Account Term" means the duration of an Account, which (unless earlier terminated per these ToS), will be the term associated with (a) subscription purchase by You, the customer, and (b) for a Trial Account, the Trial Period.
1.5 “Manager” is a type of user that serves as the company administrator. In addition to having all of the visibility to silo contents that Technicians have, Managers can also add/modify users, modify silos, design custom reports, configure alarms and related notifications, and schedule the delivery of reports to other users.
1.6 "Services" or "Service" refers to those MONITOR SiloTrack Cloud services applicable to an Account, which will be: (a) a paid subscription to the MONITOR SiloTrack Cloud offering; and/or (b) for a Trial Account, the MONITOR SiloTrack Cloud offering applicable to free trial. The Services may include silo monitoring, notifications/alerts, reporting and/or other services that may be introduced in the future.
1.7 “Technician” is a type of user that can view silo contents, take measurements, and view reports.
1.6 "User" means You and any individual You have authorized to use the Services associated with Your Account.
1.7 "Third-Party Supplier" means an infrastructure provider or entity that supplies other technologies or services used by the Service and not under the direct control of Monitor. This term includes those which provide services such as data mapping and platform hosting.
1.8 "Terms of Service" or "ToS" refers to the most current version of the terms applicable to the Service, which will be posted at www.monitortech.com/legal/stcloud-terms.shtml. The Terms of Service include any referenced documents.
1.9 "Trial Period" refers to the duration of a Trial Account, as indicated by the Service at the time of registration.
2. FREE TRIAL ACCOUNT
2.1 If You arrange for a free Trial Account with our sales department, We will provide You with access to applicable portions of the Service during the Trial Period. At the end of the Trial Period, Your account will be converted to an annual paid subscription for the Monitor SiloTrack Cloud service as of the last day of the Trial period, for which You will be billed annually. If You do not want to be converted to a paid account, You must opt-out before the end of the Trial Period by contacting Monitor. Trial accounts are for new Monitor SiloTrack Cloud users only.
2.2 Any data You enter into the service platform, and an configurations made to the service by or for You during Your free trial will be permanently lost unless you purchase a subscription to the same services as those covered by the trial.
2.3 Please review the applicable documentation for the Services during the Trial Period so You become familiar with the features and functions of the Services.
3. YOUR USE OF THE SERVICE
3.1 During the Account Term, We grant You the right to use the Services subject to (a) timely payment of all charges applicable to Your Account, and (b) these Terms of Service.
3.2 Managers will be responsible for:
(a) Maintaining user profiles, if applicable,
(b) All use of the Services (including payment of fees associated with those uses) occurring as a part of Your Account, whether or not authorized by You or done with Your knowledge or consent, and
(c) All data, information or other content transmitted over or uploaded to the Service as part of Your Account.
3.3 As a condition to using the Services, each User of the Services will have a unique user ID and will be required to select a password. Managers will ensure that Your company’s user profiles are accurate and complete, and will update user profile information, as necessary, to keep it current. You may not (i) use as a User ID a name of another person with the intent to impersonate that person; or (ii) use as a User ID a name subject to any rights of a person other than such User without appropriate authorization. Each User ID will be assigned to (and may only be used by) one unique User. Managers will ensure that each User ID will not be shared with or used by any party other than the unique User to which it is assigned.
3.4 You acknowledge that, except as expressly stated, each Party retains all rights in its trademarks, service marks, software, technology and intellectual property.
3.5 In addition to the terms and conditions herein, Your use of the Services is subject to Your compliance with:
Data privacy laws, including the Health Insurance Portability and Accountability Act (HIPAA), Gramm-Leach-Bliley Act (GLBA), Family Educational Rights and Privacy Act ("FERPA"); and the General Data Protection Regulation (GDPR) of the European Union; and
U.S. Computer Fraud and Abuse Act; and
(c) all applicable requirements of the Payment Card Industry Data Security Standard (PCI-DSS).
3.7 If We conduct an investigation of Service outages, security problems, or a suspected security breach of the Service, You agree to provide a reasonable level of cooperation to help facilitate Our investigation of the issue, to the extent warranted by the facts of the situation. If You are not the cause of the issue and Your cooperation requires more than a small amount of time and effort, We will discuss in good faith an appropriate level of compensation for expenses associated with such cooperation.
3.8 Applicable law requires maintenance of a level of security/privacy for certain kinds of data. You will abide by all legal requirements regarding data You transmit to or store in the Service.
3.9 You represent and warrant that:
(a) in the event that You, Your Users, and/or anyone using Your Account utilize(s) any aspect of the Service to transmit, receive, store, or process Protected Health Information ("PHI") as that term is defined by the Health Insurance Portability and Accountability Act ("HIPAA") and/or the Health Information Technology for Economic and Clinical Health Act ("HITECH Act") as amended and as implemented by the associated regulations (collectively, the "Acts"), You: (i) will fully comply with the Acts; (ii) will encrypt all PHI at rest and in motion and (iii) acknowledge that You do not consider Monitor as a Business Associate, as defined in the Acts.
(b) each user device has all applicable approvals and certifications required by law and government regulations for the use of such device.
3.10 Unless and until You notify Us in writing to the contrary, We will have the limited right to use Your company name and logo to identify You as a customer for the Services in our marketing communications and collaterals. As soon as reasonably practical after receipt of notice of termination of this right, We will cease further Use of Your name and logo, but will have no obligation to remove them from any pre-existing printed collateral materials We have in inventory.
3.11 Trial Account subscribers are limited to one free Account, which is to be associated with a single email address. We reserve the right to terminate Your Trial Account(s) if You request more than one Trial Account, request a Trial Account under more than one email address or are an existing Monitor SiloTrack Cloud user.
4. YOUR ACCOUNT
4.1 Fees for Initial Term:
(a) If you purchased your MONITOR SiloTrack Cloud subscription from a Monitor distributor or other third party reseller, fees for access to the Service are payable to the applicable distributor or reseller rather than Monitor. You will receive initial login credentials directly from Monitor.
(b) For Trial Accounts, no fees are charged unless and until the Account is converted to a paid Direct Account.
(c) If you purchased your Monitor SiloTrack Cloud subscription directly from Monitor:
unless otherwise agreed in writing, fees for the Initial Term of Your Account will be payable in accordance with the associated invoice received from Monitor, and fees for any successive period will be due and payable at the inception of such period.
All fees are in US dollars, unless otherwise stated.
Fees are non-cancelable and non-refundable. Unless otherwise agreed in writing, Monitor reserves the right to change the amount of the fees or applicable charges and/or to institute new charges for any period after the Initial Term, provided that notice of such fees or charges is given at least thirty (30) days in advance of the end of the then-current period.
You will be responsible for the payment of taxes of any kind [including any federal, state, local or foreign taxes, duties or levies but excluding taxes based on Our net income] imposed on or based on the provision, sale or use of the Services ("Taxes"). Except where You provide us with a valid and correct tax exemption certificate applicable to the Services, we will bill You for, and You will promptly pay, any Taxes We are obligated to collect in connection with the Services provided under this Agreement. You will not rely on Us to determine tax liability and will be responsible for assessing and paying any applicable use taxes when appropriate.
4.2 Term Conversions, Term Extensions:
The term of this Agreement will extend automatically for successive terms equal to that of the the most recent Term purchased unless either Party gives the other party notice of non-extension at least one month in advance of the end of the then-current term.
Monitor may introduce new features and functionalities which may be made available to You either at no charge or at an additional cost at Monitor’s discretion. Term Extension fees will be due and payable in full, at the price in effect at that time, directly to Monitor.
6.1 We may, without liability, suspend or terminate any or all Services to some or all of Our Account holders (including You) or users (including Your Users): (a) following a possible or actual security breach or cyber-attack on the Service; (b) in order to protect the Service network; or (c) if required by a governmental entity.
6.2 We may, without liability, suspend or terminate any or all Services in Your Account if:
(a) You (or any of Your Users) are engaging in suspected fraudulent or unauthorized use,
(b) You or any of Your affiliates are listed on a government-issued restricted persons or entities list or warning list;
(c) We, in Our discretion, determine that Your use of the Services (or that of Your Users) poses a business, technological or legal risk to Monitor or its customers;
(d) You (or any of Your Users) have breached the Terms of Service or other contract You may have with Monitor relating to the Service;
(e) Payments in Your Account are past due;
(f) You fail to provide a reasonable level of cooperation in an investigation pursuant to subsection 3.7; or
(g) there are few or no data transactions.
6.3 Monitor may, without liability, suspend or terminate Services (i) if You or Your User is using a device or equipment that is defective or illegal (ii) if Your usage or device is causing technical or other problems on the Service or (iii) upon termination of Your Account.
6.4 Monitor may, without liability, terminate Your Account for any other reason or without cause upon at least six (6) months advance notice.
6.5 Either Party may terminate Your Account if the other Party becomes insolvent or is unable to pay its debts or enters into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or any similar laws of any state or country (a "Proceeding") provided the Proceeding is not stayed within forty-five (45) days of being filed.
6.6 Portions of these Terms of Service which by their nature should survive termination, will survive termination, including, without limitation, those respecting accrued rights to payment, warranty disclaimers and limitations of liability. However, upon termination, Your right to use the Services will immediately terminate.
7. Data Retention
7.1 Unless otherwise provided within Your Account, We will not retain data transmitted to the Service longer than six months. We may, at Our discretion, purge Your data older than six months old at any time. Typically, data are purged monthly, but this may occur at intervals which are more or less frequent.
7.2 Upon termination of Your Account, We may, but are not obligated to, delete the data associated with Your Account.
8. SERVICES, WARRANTY
8.1 Services may be temporarily unavailable for scheduled or unscheduled maintenance by Monitor or Third-Party Suppliers, or for other causes beyond Our reasonable control. Monitor does not warrant that the services will be uninterrupted, error free, or completely secure. Monitor makes no warranty as to the results that may be obtained from use of the services. The Services are provided “as is” and Monitor disclaims all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement.
8.2 Monitor specifically disclaims any and all liability/warranties, implied or expressed, for uses requiring fail-safe performance of for uses that require immediate, mission-critial, real-time data where failure of fault of the Service could lead to a) personal injury or death, b) property damage or c) environmental damage. This disclaimer applies to uses involving life support, medical devices where failure could result in injury or death, aircraft or other modes of human mass transportation, any function required for the safe operation of chemical, petroleum or nuclear or other potentially hazardous facilities, or critical asset monitoring.
8.3 You acknowledge that (i) a TCP/IP connection between an Your device and the Service is required in order to make use of the Services; (ii) due to technical, geographic or political limitations or circumstances, You or Your devices may not be able to communicate with the Service and (iii) Monitor cannot guarantee that a device will be able to connect to the Services from every geographic location. You are responsible for determining whether You or Your devices are able to connect to the Service and whether the connection is of a quality sufficient to meet Your requirements.
8.4 Monitor reserves the right to suspend or limit data transactions of the Service without notice if it determines that transactions individually or as a group in Your Account do or are likely to adversely affect the overall performance or cost to Monitor of the Service.
9. INDEMNITY AND LIMITATION OF LIABILITY
9.1 You agree to indemnify and hold harmless Monitor, its officers, directors, representatives, employees and agents (and any Distributors and resellers involved in providing the Service to you) against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with a claim or action that arises from or is based on (i) an alleged violation of the ToS by You or otherwise from Your use of the Service (or any of its features or associated services); (ii) an alleged violation of law; and/or (iii) any infringements arising out of Your use (or that of Your Users) of the Service.
9.2 In the event any claim, suit or action is brought against You that alleges any Service infringes a third party’s U.S. patent or copyright, then Monitor shall provide You with indemnity through one of the following means at its sole option and expense:
(i) procure for You the right to continue using the Service,
(ii) modify the Service so that it is non-infringing,
(iii) procure a replacement Service that has substantially the same functionality, or
(iv) cease providing any Service under this Agreement and pay You the amount of Your actual damages derived from such claim, suit or action subject to a liability limits contained in these ToS.
Our obligation under this subsection extend only to claims, suits or actions involving the Service itself on a standalone basis and Monitor shall have no obligations under this subsection to You:
(a) if the technology comprising the Service has been modified in any way,
(b) for claims, suits or actions involving in whole or in part the manner in which You used or are using the Service,
(c) for claims, suits or actions based in whole or in part on the use of the Service in combination with other technologies,
(d) use of the Service that violates the law, or
(e) use of the Service in a manner for which it was not intended.
THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM, SUIT OR ACTION ALLEGING INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
9.3 We may use Third-Party Suppliers for data transport and storage. You acknowledge that storage technologies provided by Third-Party Suppliers may utilize multi-tenancy architecture, which may allow parties not associated with Monitor or a Third-Party Supplier to store or transmit data within the same framework used to store or transmit Your data. You also acknowledge that the transmission and storage of Your data may result in Your data crossing through or residing in multiple political jurisdictions. Each of these jurisdictions may have unique provisions relating to the privacy of Your data and information.
9.4 You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of privacy, data, Confidential Information, and property. You also acknowledge that there are risks inherent with transmitting log-in credentials, either for the Service or for the CIS, over a public network.
9.5 Notwithstanding any language to the contrary, neither Monitor nor its officers, employees, agents or representatives will be responsible or liable with respect to any claim or action related to the Service under any theory, whether under the laws of contract, negligence, strict liability or another theory, under no circumstances will Monitor be liable for special, indirect, incidental or consequential damages. Monitor will not be liable for:
Error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods or services, or loss of business.
Any matter beyond the reasonable control of Monitor, even if Monitor has been advised of the possibility of losses or damage.
Attacks on or hacks of Your data, whether in transit or in storage
Physical attacks or cyber-attacks upon the Service or its network or the networks or facilities of third-party suppliers; or
The breach of or loss of privacy of email addresses, user names, passwords, phone numbers, confidential information or other content stored on Monitor equipment, transmitted over networks accessed by the Service, or otherwise connected with the use of the services.
9.6 Monitor makes no guarantee of confidentiality or privacy of any information transmitted on the Service site or any other site linked to the Service.
9.7 You acknowledge that a government entity may intercept your data or require Monitor to disclose your data or information.
9.8 It is agreed that the liability of Monitor will not exceed the aggregate amount of fees collected over the twelve (12) month period preceding the accrual of a claim upon which liability is based. The price for the services is a consideration in limiting Monitor’s liability.
9.9 No action, regardless of form, arising out of the Terms of Service may be brought by You more than one year after the cause of action has accrued.
10. LEGAL COMPLIANCE
10.1 You may not use (and You will prevent Your Users from using) the Service to transmit or otherwise export from the United States or allow the transmission of information or data 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.
10.2 You represent and warrant that You are not a person to whom Monitor is legally prohibited to provide the Services and/or are not on any governmental list of restricted person or entities, including (i) the Commerce Department Entity List, Denied Persons List, and Unverified List; (ii) Treasury Department Specially Designated Nationals & Blocked Persons List; and (iii) State Department Debarred Parties List.
10.3 You may not use the Services (and will prevent Your Users from using the Services) for:
(a) Any of the uses described in section 9.2, above.
(b) Designing, developing or fabricating nuclear weapons or nuclear explosive devices; or devising, carrying out or evaluating nuclear tests or nuclear explosions.
(c) Designing, assisting in the design of, constructing, fabricating, or operating facilities for the chemical processing of irradiated special nuclear material, production of heavy water, separation of isotopes of any source and special nuclear material, or the fabrication of nuclear reactor fuel containing plutonium.
(d) Designing, assisting in the design of, constructing, fabricating, furnishing or modifying equipment for the fabrication of chemical or biological weapons, chemical precursors, viruses, viroid, bacteria, fungi or protozoa.
(e) Terrorism or the facilitation of terroristic activities.
(f) Designing, assisting in the design, construction, fabrication or furnishing of equipment for components specially designed, modified, or adapted for the above uses of for use in any such facilities.
(g) Training personnel in any of the above activities.
10.4 You may not provide access to the Services to any person or entity that would be prohibited from using the Services under this ToS.
10.5 You warrant that, with respect to any data which are by means of Your Account, collected, transmitted to the Service, downloaded from the Service or viewed using the Service (in this paragraph, the "Data"): (1) You own or are otherwise entitled to collect the Data that passes through an Enabled Device; and (2) You have sufficient legal rights to allow You to use the Service to transmit, download or view the Data. You also acknowledge that the law protects a third party’s rights in certain information and that unauthorized use of third party information by You (or Your User) may subject You (or Your User) to civil and/or criminal penalties.
11. THIRD PARTY USERS
11.1 Unless otherwise specifically authorized by Monitor in writing, You and Your Users will not use Your Account to enable third parties to use or otherwise benefit from the Services without that third-party establishing a separate Service account in its own name.
12.1 Confidential Information. For purposes of the ToS and any Account Agreement, "Confidential Information" shall mean all information marked as "Confidential" or "Proprietary" and disclosed by one party to the other in connection with the Account. It includes, but is not limited to trade secrets and business matters such as research and development plans, manufacturing processes, management systems and techniques, the identity and profiles of customers and suppliers, and sales and marketing plans and information. Confidential information does not lose its status as Confidential Information merely because it was known by a limited number of persons or entities or because it was not entirely originated by the disclosing Party.
12.2 Confidentiality. During the term of the Account, each Party may receive Confidential Information from the other. Each Party will treat Confidential Information as confidential and protect it from disclosure as it would its own information of a similar nature. Neither Party will disclose Confidential Information other than to those of its employees or agents who need to know such information for performance of the Party’s rights and obligations under the ToS or any Account Agreement. Neither Party will use Confidential Information for any purpose beyond the exercise of its rights and performance of its obligations under the ToS or any Account Agreement without the prior written consent of the other Party. All Confidential Information shall remain the property of the disclosing Party, and each Party will return or destroy any tangible materials containing such Confidential Information upon request of the other Party.
12.3 Exclusion. The obligations of confidentiality and protection imposed by this paragraph shall not apply, or shall cease to apply, to any information that: (a) was lawfully known by the receiving Party prior to its receipt hereunder; (b) is or becomes publicly available without breach of the ToS or any Account Agreement by the receiving Party; (c) is lawfully received by the receiving Party from a third party who does not have an obligation of confidentiality to the disclosing Party; or (d) is developed independently by employees of the receiving Party not having access to such Confidential Information.
13.1 Monitor will not be liable for any failure or delay in the performance of its obligations hereunder on account of strikes, terrorist activity, shortages, riots, insurrection, fires, floods, power outages, storms, cybercrime, explosions, war, governmental action, labor conditions, earthquakes, terrorism, supplier bankruptcy or default, failure, delay or interruption by third parties (including without limitation, communications providers) or any other cause which is beyond its reasonable control.
13.2 You represent that You are not a government agency and are not acquiring the Services pursuant to a government contract or with government funds.
13.3 If any provision of the ToS or any Account Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that all other terms will otherwise remain in full force and effect and be enforceable.
13.4 Your rights and obligations under the ToS and any Account Agreement are not assignable or transferable and cannot be sub-licensed to another party by You except with Our prior written consent. Monitor may transfer, assign or subcontract any of its rights and obligations under the ToS or any Account Agreement without consent.
13.5 The terms of the ToS and any Account Agreement represent the complete and exclusive statement of the understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter thereof. All waivers and modifications of these terms must be in writing and signed by both parties, except as otherwise provided herein.
13.6 No agency, partnership, joint venture, or employment relationship is created as a result of the ToS or Your use of the Service. You do not have authority to bind Monitor in any respect.
13.7 The terms of the ToS and any Account Agreement will be governed by the laws of the State of Illinois, without regard to its conflict of laws provisions. For purposes of jurisdiction over a claim relating to the ToS, Your data are presumed to have resided or to have been transmitted within the state of Illinois. Any action or Proceeding arising out of or related to the ToS or any Account Agreement may only be brought in the state or federal courts in Illinois and exclusive venue will be in Kane County, IL. Each Party hereby consents to the exclusive jurisdiction of such courts with respect to such matters. English is the governing language for: (i) the Service; (ii) Your Account; (iii) the ToS; (iv) negotiations related to Your Account or Your use of the Service and (v) the resolution of disputes related to the ToS, Your use of the Service, including negotiations, litigation, mediation or arbitration. Versions of the ToS that have been translated into languages other than English may be provided for convenience, but the English version is the only version that defines the rights and obligations of the parties.
13.8 If You have dealt with a distributor, sales representative, or other third-party authorized to act as a representative for the Services (in this section, referred to a "Representative"), You agree that: (a) the Representative is not a party to agreements or terms relating to Your Account and (b) except for substantial misrepresentations, gross negligence or intentional misconduct by the Representative, You release the Representative from all claims and liability related to Your Account or Your use of the Services.