Terms of Service

1. DEFINITIONS

1.1. “Registered Device” refers to devices registered on e-Hive.

1.2. “e-Hive” refers to IOT cloud by Fernlink Technologies, which consists of a cloud-based infrastructure that provides Device Management, Predictive Analytics, Complex Event Processing, Device connectivity based on MQTT & HTTPS.

1.3. “Services” or “Service” refers to e-Hive device management Services, the data communications Services, e-Hive Service Modules and/or other Services that may be introduced in the future. The term “Services” may refer to a single Service or a collection of Services and Service Modules.

1.4. “Account Term” will be period of time for which Fernlink Technologies has committed to provide and You have committed to pay for Services.

1.5. “You” refers to the entity named in as the holder of the e-Hive account.

1.6. “Terms of Service” refers to the current version of the e-Hive by Fernlink Technologies Terms of Service, including any attachments and Exhibits.

2. USE OF THE SERVICE

2.1. Subject to timely payment of all charges in your account and subject to the Terms of Service, Fernlink Technologies grants you the right to use the services. Fernlink Technologies reserves all rights not otherwise expressly granted herein. The Terms of Service may be revised at any time, and you will be notified that a new version exists when you log in to your account.

2.2. You will be responsible for maintaining the security of each registered device, your account, passwords and files, and are responsible for all uses of Services (and all associated fees), with or without your knowledge or consent and whether or not authorized by you.

2.3. Registration and Security. As a condition to using the Services, each user of the Services may be required to register and select a password and user name (“User ID”). You will provide accurate and complete, registration information and will update your registration information, as necessary, to keep it current. You may not :

i. Select or 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 and you will ensure that each such User ID is not be shared with or used by any party other than the unique user to which it is assigned.

2.4. It is acknowledged that, except as expressly stated, each party retains all rights in its trademarks, service marks, software, technology and intellectual property.

2.5. You are solely responsible for:

i. All use of the Services occurring as a part of your account, whether or not authorized by you or done with your knowledge, and

ii. for all data, information or other content transmitted over or uploaded to e-Hive as part of your account.

2.6. Fernlink Technologies retains the right to revise the Fernlink Technologies policies at any time, as long as the changes are reasonable and consistent with industry practices and legal requirements.

2.7. In the event Fernlink Technologies conducts an investigation of Service outages, security problems, or a suspected security breach of e-Hive, you agree to provide a reasonable level of cooperation to help facilitate Fernlink Technologies’ investigation, to the extent warranted by the facts of the situation. If your cooperation requires more than a small amount of time and effort, Fernlink Technologies will discuss an appropriate level of compensation.

2.8. For some types of data, the law requires a level of security or privacy that must be maintained. You acknowledge that you will abide by all legal requirements regarding the data that you transmit to or store in e-Hive.

3. YOUR ACCOUNT

3.1. Unless otherwise stated in writing, the Account Term will be monthly and will start on the first day of the month. At the end of each Account Term and if Your Account is current, the Account will renew automatically for an additional one-month term.

3.2. Unless otherwise stated in writing, Account fees will be billed monthly. All fees are in Indian Rupees (INR), unless otherwise stated.

3.3. Account fees are payable regardless of whether Services are being used by a registered device. Fees are non-cancellable and non-refundable. Unless and otherwise agreed in writing, Fernlink Technologies reserves the right to change the amount of the fees or applicable charges and to institute new charges which will apply to the next account term. In addition, Fernlink Technologies may introduce new features and functionalities, which may be made available to you at an additional cost.

3.4. Fees for Services are net of taxes, and you will be responsible for all applicable taxes.

4. TERMINATION AND SUSPENSION

4.1. Fernlink Technologies may, without liability, suspend or terminate any or all Services to some or all of its account holders or users:

i. Following a possible or actual security breach or cyber-attack on e-Hive;

ii. in order to protect the e-Hive network; or

iii. if required by a governmental entity.

4.2. Fernlink Technologies may, without liability, suspend or terminate any or all Services in your account if:

i. You are engaging in suspected fraudulent or unauthorized use,

ii. You or any of your affiliates is listed on a government-issued restricted persons or entities list or warning list;

iii. Fernlink Technologies, in its discretion, determines that your use of the Services poses a business, technological or legal risk to Fernlink Technologies or its customers;

iv. You have breached the Terms of Service or other contract you may have with Fernlink Technologies that relates to e-Hive;

v. Payments in your account are past due;

vi. You fail to provide a reasonable level of cooperation in an investigation pursuant to subsection 2.8;

vii. There are few or no data transactions in your account or

viii. As otherwise provided in the Terms of Service.

4.3. Fernlink Technologies may, without liability, suspend or terminate Services for a Registered Device if:

i. You are using a device or equipment that is defective or illegal

ii. The Registered Device is causing technical or other problems on e-Hive or

iii. Upon termination of your account.

4.4. Either party may terminate the agreement 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 India or any similar laws of India which proceeding is not stayed within forty-five (45) days of being filed.

4.5. Portions of the Terms of Service, which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, warranty disclaimers, and limitations of liability. However, upon termination, your right to use the Services will immediately terminate.

4.6. Upon termination of your account, you will reconfigure your registered devices so that the devices are no longer attempting to communicate with e-Hive. In the event your registered devices have not been reconfigured, as stated in this section, Fernlink Technologies reserves the right to remotely and without notice to You reconfigure Your registered devices so that each device no longer attempts to communicate with e-Hive.

5. DATA RETENTION

5.1. Unless otherwise provided within your account, data transmitted to e-Hive is not retained on a long-term basis. Fernlink Technologies may, in its discretion, purge your data at any time. Typically, data is purged every 24 hours, but this may occur at intervals which are more or less frequent.

5.2. Upon termination of your account, Fernlink Technologies may, but is not obligated to, delete the data associated with your account.

5.3. e-Hive offers an account feature for long-term storage and access to your data:

i. e-Hive archives data with three levels of durations, Two weeks’ archive with 5 minutes’ granularity, One year archive with one hour granularity and Ten-year archive with one day granularity. Your data is stored and then made accessible to you through e-Hive.

ii. e-Hive offers an optional storage feature, where raw data is archived in S3 for a Max period mentioned in your account as per your subscription.

iii. If your e-Hive account is terminated or your Data Services subscription is cancelled, the data will no longer be stored or accessible. It is advised that you download all of your data before account termination or subscription cancellation. Typically, data is purged following 10 calendar days, but this time period may vary, within Fernlink Technologies discretion.

6. SERVICES, WARRANTY

6.1. Services may be temporarily unavailable for scheduled or unscheduled maintenance by Fernlink Technologies or for other causes beyond Fernlink technologies’ reasonable control. Fernlink Technologies does not warrant that the services will be uninterrupted, error free, or completely secure. Fernlink Technologies makes no warranty as to the results that may be obtained from use of the services. The services are provided “as is” and Fernlink Technologies disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement.

6.2. Fernlink Technologies specifically disclaims any and all liability and warranties, implied or express, for uses requiring fail-safe performance or for uses that require immediate, mission-critical, real-time data where failure could lead to:

i. Personal injury or death,

ii. Property damage or

iii. Environmental damage. For example, this disclaimer applies to, but is not limited to, solutions involving life support, medical devices, nuclear applications or critical asset monitoring. The services are not designed for and should not be used in any of these or other fail-safe applications

6.3. Fernlink Technologies represents that it uses security measures that meet or exceed industry standards.

6.4. You acknowledge that:

i. A MQTT & HTTPS connection between a registered Device and e-Hive is required in order to make use of the Services;

ii. Due to technical, geographical or political limitations or circumstances, you or your registered device may not be able to communicate with e-Hive and

iii. Fernlink Technologies cannot guarantee that a registered will be able to connect to the Services from every geographical location. You are responsible for determining whether you or your registered devices are able to connect to e-Hive and whether the connection is of a quality sufficient to meet your requirements.

iv. You will receive SMS, browser notifications if enabled, emails for the services you have subscribed with e-Hive.

6.5. Fernlink Technologies’ device communications service will maintain a minimum of 95% availability.

6.6. Fernlink Technologies reserves the right to reduce the speed at which transactions are conducted within e-Hive (i.e. to “throttle” transactions) if the size of transactions, individually or as a group, in your account, within a predefined period of time, adversely affects the overall performance of e-Hive.

7. INDEMNITY AND LIMITATION OF LIABILITY

7.1. You agree to indemnify and hold harmless Fernlink Technologies, its officers, directors, representatives, employees and agents against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with a claim or action against Fernlink Technologies that arises from or is based on:

i. An alleged violation of the "Terms of Service" by you or otherwise from your use of e-Hive or

ii. An alleged violation of law.

7.2. Fernlink Technologies may use Third-Party Suppliers for data transport and storage. You acknowledge that storage technologies provided by Third-Party Suppliers may a utilize multi-tenancy architecture, where parties not associated with Fernlink Technologies or a Third-Party Supplier may also store or transmit data within the same framework that is 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.

7.3. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of privacy, privacy data, confidential information, and property. You also acknowledge that there are risks inherent with transmitting log in credentials for e-Hive over a public network.

7.4. Notwithstanding any language to the contrary, Fernlink Technologies, its officers, and employees will not be responsible or liable with respect to any claim or action related to e-Hive under any theory, whether under the laws of contract, negligence, strict liability or another theory. Under no circumstances will Fernlink Technologies be liable for special, indirect, incidental or consequential damages.

Fernlink Technologies will not be liable:

i. For error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business;

ii. For any matter beyond Fernlink Technologies’ reasonable control, even if Fernlink Technologies has been advised of the possibility of any of the foregoing losses or damages;

iii. For attacks on or hacks of your data, whether in transit or in storage;

iv. For physical attacks or cyber-attacks upon e-Hive or its network or the networks or facilities of third-party suppliers; or

v. The breach of or loss of privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other content stored on Fernlink Technologies’ equipment, transmitted over networks accessed by e-Hive, or otherwise connected with the use of the services.

7.5. Fernlink Technologies makes no guaranty of confidentiality or privacy of any communication or information transmitted on e-Hive site or any web-site linked to the e-Hive site.

7.6. You acknowledge that a governmental entity may:

i. Intercept your data or

ii. Require Fernlink Technologies to disclose your data or information.

7.7. It is agreed that Fernlink Technologies’ liability will not exceed the aggregated fees collected in your account over the twelve (12) month period preceding the accrual of a claim upon which liability is based.

7.8. The price stated for the services is a consideration in limiting Fernlink Technologies’ liability.

7.9. No action, regardless of form, arising out of this “Terms of Service” may be brought by you more than one year after the cause of action has accrued.

8. LEGAL COMPLIANCE

8.1. You may not transmit or otherwise export from India or allow the transmission of the Services in violation of any restrictions, laws or regulations of Government of India.

8.2. You represent and warrant that you are not a person to whom Fernlink Technologies is legally prohibited to provide the Services and/or are not on any governmental list of restricted person or entities.

8.3. You may not use the Services in any situation where failure or fault of the Services could reasonably be expected to lead to:

i. Death or serious bodily injury of any person, or

ii. To physical or environmental damage. Specifically, but without limiting the foregoing sentence, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation (while in transit), any function necessary to the safe operation of nuclear or chemical facilities, or medical devices.

8.4. You may not use the Services for:

i. Designing, developing or fabricating nuclear weapons or nuclear explosive devices; or devising, carrying out or evaluating nuclear tests or nuclear explosions

ii. 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.

iii. 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 etc.

iv. Designing, assisting in the design, construction, fabrication or furnishing equipment for components specially designed, modified, or adapted for use in such facilities

v. Training personnel in any of the above activities.

8.5. You may not provide access to the services to any person or entity that would be prohibited from using the services under this section 8.

8.6. Regarding data that, by means of your account, is collected, transmitted to e-Hive, downloaded from e-Hive or viewed using e-Hive (in this paragraph, the “Data”), You warrant that:

i. You own or are otherwise entitled to collect data that passes through a registered device; and

ii. You have sufficient legal rights to allow to use e-Hive to transmit, download or view the data. You also acknowledge that the law protects a third party’s rights in certain information and that Your unauthorized use of third party’s information may subject You to civil or criminal penalties.

9. CONFIDENTIALITY

9.1. Confidential Information, for purposes of this “Terms of Service”, “Confidential Information” shall mean all information marked as “Confidential” or “Proprietary.” 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 either party.

9.2. Confidentiality, During the performance of this “Terms of Service”, 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 each party’s rights and obligations under this “Terms of Service”. Neither party will use confidential information for any purpose beyond the exercise of its rights and performance of its obligations under This “Terms of Service” 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.

9.3. Exclusion, the obligations of confidentiality and protection imposed by this paragraph shall not apply, or shall cease to apply, to any information that:

i. Was lawfully known by either party prior to its receipt hereunder;

ii. Is or becomes publicly available without breach of This “Terms of Service”;

iii. Is lawfully received by either party from a third party who does not have an obligation of confidentiality to either party;

iv. Is developed independently by employees of either party not having access to such confidential information or;

v. Has been transmitted or stored in an unencrypted state.

10. GENERAL

10.1. Fernlink Technologies 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, cyber-crime, 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 Fernlink Technologies reasonable control.

10.2. You represent that you are not a government agency and are not acquiring the Services pursuant to a government contract or with government funds.

10.3. If any provision of the “Terms of Service” is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the “Terms of Service” will otherwise remain in full force and effect and be enforceable.

10.4. Your rights and obligations under the “Terms of Service” are not assignable or transferable and cannot be sub-licensed to another party by you except with Fernlink Technologies prior written consent. Fernlink Technologies may transfer, assign or subcontract any of its rights and obligations under the “Terms of Service” without consent.

10.5. The “Terms of Service” are the complete and exclusive statement of the understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the “Terms of Service”. All waivers and modifications of the “Terms of Service” must be in writing and signed by both parties, except as otherwise provided herein.

10.6. No agency, partnership, joint venture, or employment is created as a result of your use of e-Hive. You do not have authority to bind Fernlink Technologies in any respect.

10.7. The “Terms of Service” will be governed by the laws of Karnataka, India, without regard to its conflict of laws provisions. For purposes of jurisdiction over a claim under this “Terms of Service”, Your data is presumed to have resided or to have been transmitted exclusively within the state of Karnataka. Any action or proceeding arising out of or related to the “Terms of Service” may only be brought in the state or Supreme courts in India. Each party hereby consents to the exclusive jurisdiction of such courts with respect thereto.

i. e-Hive;

ii. Your e-Hive account;

iii. The “Terms of Service”;

iv. Negotiations related to the “Terms of Service” or your use of e-Hive and

v. The resolution of disputes related to the “Terms of Service” or your use of e-Hive, including negotiations, litigation, mediation or arbitration. Versions of the “Terms of Service” that have been translated into languages other than English are provided for convenience, and the English version is the only version that defines the rights and obligations of the parties.

10.8. If You have dealt with a third-party that is authorized to act as a services representative for the e-Hive Services (in this section, referred to a “Representative”), you agree that:

i. The Representative is not a party to agreements or terms relating to your e-Hive account and

ii. Except for substantial misrepresentations, gross negligence or intentional misconduct by the Representative, you release the representative from all claims and liability related to Your e-Hive account or your use of the Services.

11. SPECIAL TERMS: EUROPEAN ECONOMIC AREA OR SWITZERLAND

11.1. DEFINITIONS

For the purposes of this Section [Special Terms: European Economic Area or Switzerland], the following definitions shall have the following meanings:

i. “Adequate Countries” means those jurisdictions identified by the European Commission from time to time as providing adequate data protection under Article 25 of the Directive;

ii. “Data Controller” means a natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or European Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or European Community law;

iii. “Data Processor” means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller;

iv. “Data Protection Rules” means the national laws that apply to the processing of personal data which implement the directive, as well as applicable privacy and information security laws and regulations that apply from time to time to personal data;

v. “Data Subject” means an identified or identifiable natural person whose personal data is subject to processing; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;

vi. “Directive” means the Directive 95/46/EC of the European Parliament and of the council of October 24, 1995 on “the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of such Data” as amended or replaced from time to time;

vii. “Personal Data” means any information relating to a Data Subject; and

viii. “Process”, “Processing” or “Processed” means any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

11.2. Your responsibility as "Data Controller":

i. If you are located in or you collect and use “Personal Data” on equipment located in the European Economic Area or Switzerland (collectively: “EEA”), separate rules apply to processing of “Personal Data”. When using the Services, you understand that you qualify as a “Data Controller” with respect to “Personal Data” transmitted over or uploaded to e-Hive. As a “Data Controller” you decide on the “Processing” and are responsible for compliance with section 2 of this “Terms of Service”, the “Data Protection Rules” and the provisions of this section.

ii. Fernlink Technologies acts a “Data Processor” with respect to the “Personal Data” you transmit or upload to e-Hive. However, any “Personal Data” that you may submit for account registration information or to acquire a User ID, Fernlink Technologies acts as a “Data Controller” and undertakes to “Process” your “Personal Data” in compliance with its “Privacy Policy” and under the “Data Protection Rules”.

iii. Due to the nature of the e-Hive structure, it is your responsibility to keep “Personal Data” transmitted over or uploaded to e-Hive, including on registered devices, confidential and secure when under your control. You should use technical means, such as encryption, to ensure “Personal Data” is kept confidential and will comply with the provisions of sections 2.9 of the “Terms of Service”.

iv. As a “Data Controller”, you are also responsible for providing “Data Subjects” with the opportunity to access, rectify, erase, block and object to the “Processing” of their “Personal Data”. Fernlink Technologies will work together with you in order to support You in complying with the exercise of these rights. To the extent that Fernlink Technologies uses subcontractors, these contractors will similarly cooperate.

11.3. SECURITY, ACCOUNTABILITY

i. Fernlink Technologies takes reasonable security measures to protect against the loss, misuse and alteration of data under its control. Nevertheless, it is your responsibility to comply with the “Data Protection Rules” and to keep “Personal Data” uploaded in or transmitted to e-Hive confidential.

ii. Where required by applicable law, in case of a suspected security breach of e-Hive that relates to your use of the Services, Fernlink Technologies will inform you in order to take necessary steps to comply with any notification requirements under local law.

iii. If you need further documentation or information regarding the Services or the e-Hive platform, do not hesitate to contact us at support@fernlink.com.

11.4. INTERNATIONAL TRANSFERS

i. You understand that Fernlink Technologies is based in India and by entering into the “Terms of Service” you consent to the transfer of your “Personal Data” outside the “EEA” to “India”, which is not considered to provide the same level of protection for your “Personal Data” as the countries within the “EEA”. You understand that you are responsible for taking all required action to ensure compliance with applicable “Data Protection Rules” to transfer Customer-Owned Data to Fernlink Technologies in India.

ii. Fernlink Technologies only transfers “Personal Data” outside the “EEA” in compliance with the “Data Protection Rules” and when notifying you in advance.