SOILTECH WIRELESS INC. GENERAL TERMS & CONDITIONS
1. Acknowledgement and Acceptance
- Soiltech provides, through use of Soiltech’s gateway and/or application protocol interfaces, https://webapp.soiltechwireless.com Soiltech’s website and web portal available at https://www.soiltechwireless.com and the associated mobile application (collectively, the “Site”), a software as a service that offers collection, aggregation, manipulation, transformation, analysis, and display of Beacon Data, together with related services (the “Services”).
- The Services are owned and operated by Soiltech and are being provided to the Registered User under this Agreement. The Services are made available to Registered User and Authorized Users through the Site (defined below)
- This Site is controlled and offered by Soiltech from its facilities in the United States of America and is intended for use by United States residents only. Soiltech makes no representations that either the Services or the Site are appropriate or available for use in other jurisdictions. If you are a non-U.S. resident and access the Site, you do so at your own risk and are responsible for compliance with local laws and regulations.
- Soiltech PROVIDES THE Services SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT Registered User ACCEPTS AND COMPLIES WITH THEM. Registered User (A) Acknowledges that it has read and understand this Agreement; (b) ACCEPTs THIS AGREEMENT AND AGREEs THAT Registered User IS LEGALLY BOUND BY ITS TERMS; (c) accepts and agrees to be bound by Soiltech’s website Terms of Use (available at https://www.soiltechwireless.com/tandc) AND Soiltech’s Privacy Statement (available at https://www.soiltechwireless.com/privacy) (“Privacy Policy”); and (D) REPRESENTS AND WARRANTS THAT:
- (I) it is OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF Registered User IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, it has THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF Registered User AND BIND Registered User TO ITS TERMS. IF Registered User DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, Soiltech WILL NOT AND DOES NOT provide access to THE Services TO Registered User AND none of Registered User or any of its Authorized Users May access or attempt to access THE Services OR DOCUMENTATION.
- (I) it is OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF Registered User IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, it has THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF Registered User AND BIND Registered User TO ITS TERMS. IF Registered User DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, Soiltech WILL NOT AND DOES NOT provide access to THE Services TO Registered User AND none of Registered User or any of its Authorized Users May access or attempt to access THE Services OR DOCUMENTATION.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR REGISTERED USER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ANY RIGHT CONCERNING ANY SERVICES THAT REGISTERED USER DID NOT ACCESS LAWFULLY.
2. Definitions.
(i) “Aggregated Statistics” means data and information related to Registered User’s use of the Services that is used by Soiltech in an aggregate and anonymized manner, including compiling statistical and performance information related to the provision and operation of the Services.
(ii) “Agreement” means, collectively, this Agreement, the applicable Registration Form, any operating rules, terms, policies, and procedures that Soiltech may publish from time to time on the Site, and the terms of any other agreement between Soiltech and Registered User in connection with the Services.
(iii) “Authorized User” means Registered User’s employees, consultants, contractors, and agents identified on the Registration Form as updated from time to time by Registered User upon notice to Soiltech (A) who are authorized by Registered User to access and use the Services under the rights granted to Registered User pursuant to this Agreement and (B) for whom access to the Services has been purchased hereunder.
(iv) “Beacon” means a multi-functional device offered by Soiltech that is capable of measuring information, including moisture, temperature, humidity, and location, and wirelessly transmitting such data to the Services.
(v) “Beacon Data” means all data collected by a Beacon, including any Environment-related data, Output data, and any other data transmitted by a Beacon to the Services.
(vi) “Documentation” means Soiltech’s user manuals, handbooks, and guides relating to the Services provided by Soiltech to Registered User either as integrated into Registered User’s policies or procedures or in other electronic or hard copy form.
(vii) “Environment-related data” means all data collected by the Registered User’s Beacon sent to Soiltech directly by the Beacon or via a Gateway.
(viii) “Gateway” means a portal for multiple sensors to connect that transmit the Beacon Data to Soiltech. This can be a SIM, satellite, ethernet or other type of gateway.
(ix) “Intellectual Property” means all of the following in any jurisdiction throughout the world: (A) patents, patent applications, patent rights, and inventions and discoveries and invention disclosures (whether or not patented), together with all provisionals, re-issuances, continuations, continuations in part, divisions, revisions, extensions and reexaminations thereof; (B) trade names, trade dress, logos, packaging design, slogans, registered and unregistered trademarks and service marks and related registrations and applications for registration and renewals in connection therewith; (C) copyrights in both published and unpublished works, including all compilations, databases and computer programs, manuals and other documentation and all copyright registrations and applications, and all derivatives, translations, adaptations and combinations of the above; (D) know-how, trade secrets, confidential or proprietary information (including processes, concepts, compositions, technical data, designs, drawings, specifications, customer and supplier lists, customer data, pricing and cost information and business and marketing plans and proposals) and research in progress; (E) computer programs, applications, interfaces, operating systems, middleware, firmware or embedded software applications or programs and (F) any other intellectual property and related proprietary rights, interests, and protections (including all rights to sue and recover and retain damages, costs, and attorneys’ fees for past, present, and future infringement and any other rights relating to any of the foregoing).
(x) “Output data” means the output data that Soiltech generates through the Environment-related data and its models.
(xi) “Product” means: (i) the Beacon (with or without provisioning) or another device for receiving and sending Environment-related data; (ii) a Gateway if specified; (iii) Data specific to the Registered User sent by Soiltech to the Registered User; (iv) productivity solutions as suggested by Soiltech to the Registered User from time to time; or (v) any combination of the above.
(xii) “Registration Form” means the form filled out and submitted by or on behalf of Registered User, and accepted by Soiltech, for Registered User’s access to the Services as provided under this Agreement.
(xiii) “Registered User Data” means information that is submitted by or on behalf of Registered User or an Authorized User through the Site, excluding Aggregated Statistics and Feedback.
(xiv) “Soiltech IP” means the Site, the Services, the Documentation, and any of Soiltech’s Intellectual Property provided to Registered User or any Authorized User in connection with the foregoing. For the avoidance of doubt, Soiltech IP includes Aggregated Statistics, Feedback, and any information, data, or other content derived from Soiltech’s provision of the Services and monitoring of Registered User’s access to or use of the Services but does not include Beacon Data or Registered User Data.
(xv) “Third-Party Products” means any third-party products provided with, made available through, or incorporated into, the Services.
3. Access and Use
3.1 Registration
In order to use the Services, the Registered User must: (a) provide certain current, complete, and accurate information about the Registered User and its Authorized Users as prompted to do so by the Registration Form required in order to enroll in the Services, as applicable; and (b) maintain and update such registration information (“Registration Data”) as required to keep such information current, complete and accurate. If any Registration Data that the Registered User provides is untrue, inaccurate, not current, or incomplete, Soiltech may terminate the Registered User’s account and the Registered User’s rights to use the Services.
3.2 Beacon Data
In order for the Services to operate properly, the Registered User must: (a) correctly install the Beacons, (b) ensure the Beacons are transmitting data to the Site, and (c) correctly configure the Beacons through the Site. Soiltech is not responsible for any of the foregoing, except to the extent Soiltech has agreed to perform such services under the terms of a separate written agreement. Nothing in this paragraph is intended to be a warranty with respect to the availability or accuracy of Beacon Data.
3.3 Provision of Access
Subject to and conditioned on Registered User’s compliance with the terms and conditions of this Agreement, Soiltech grants Registered User a non-exclusive, non-transferable (except in compliance with Section 13.7) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions of this Agreement. Such use is limited to Registered User’s internal use only. Soiltech shall provide to Registered User the necessary passwords and network links or connections to allow Registered User to access the Services.
3.4 Documentation License
Subject to the terms and conditions contained in this Agreement, Soiltech hereby grants to Registered User a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.7) license to use the Documentation during the Term solely for Registered User’s internal business purposes in connection with its use of the Services.
3.5 Use Restrictions
Registered User shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Registered User shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (d) remove any proprietary notices from the Services or Documentation; or (e) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any person’s intellectual property or other rights, or that violates any applicable law.
3.6 Reservation of Rights
Soiltech reserves all rights not expressly granted to Registered User in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Registered User or any third party any intellectual property rights or other right, title, or interest in or to the Soiltech IP.
3.7 Data Storage
Soiltech reserves the right to establish a limit on the amount of memory, computer storage, processing power, bandwidth, and other resources that the Registered User may utilize through the Services. Soiltech assumes no responsibility for the deletion of, or failure of the Services to store, the Registered User’s transmissions, data, or postings.
3.8 Suspension
Notwithstanding anything to the contrary in this Agreement, Soiltech may temporarily suspend Registered User’s and any Authorized User’s access to any portion or all of the Services if:
(a)Soiltech reasonably determines that (i) there is a threat or attack on any of the Soiltech IP; (ii) Soiltech has reason to believe that Registered User breached the terms of any agreement or policy concerning the Site, including this Agreement; (iii) Registered User’s or any Authorized User’s use of the Soiltech IP disrupts or poses a security risk to the Soiltech IP or to any other customer or vendor of Soiltech; (iv) Registered User, or any Authorized User, is using the Soiltech IP for fraudulent or illegal activities; (v) subject to applicable law, Registered User has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (vi) Soiltech’s provision of the Services to Registered User or any Authorized User is prohibited by applicable law; or
(b) Any vendor of Soiltech has suspended or terminated Soiltech’s access to or use of any third-party services or products required to enable Registered User to access the Services; (any suspension described in Sections 0 and (b), is a “Service Suspension”).
Soiltech shall use commercially reasonable efforts to provide written notice of any Service Suspension to Registered User and to provide updates regarding resumption of access to the Services following any Service Suspension. Soiltech shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Soiltech will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Registered User or any Authorized User may incur as a result of a Service Suspension.
3.9 Ownership of Aggregated Statistics
Notwithstanding anything to the contrary in this Agreement, Soiltech may monitor Registered User’s use of the Services and collect and compile Aggregated Statistics. As between Soiltech and Registered User, all right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by Soiltech. Registered User acknowledges that Soiltech may compile Aggregated Statistics based on Registered User Data input into the Services and Beacon Data transmitted to the Services. Soiltech may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Registered User or Registered User’s Confidential Information.
3.10 Ownership of Beacon Data
As between Soiltech and Registered User, all right, title, and interest in Beacon Data and all other Registered User Data, and all Intellectual Property rights therein, belong to and are retained solely by the Registered User. However, Soiltech may monitor Registered User’s use of Beacons and the Gateway and collect and compile Beacon Data. Soiltech shall solely collect, store, use, and remove Beacon Data as described in its Privacy Policy. Soiltech has the right to collect and use Beacon Data it receives via the Beacon and the Gateway for continued improvement of its products and services, and, provided it does not reveal Registered User’s identity, any other purpose it deems appropriate. Aggregated and anonymized data may be used at Soiltech’s discretion commercially or otherwise provided that it cannot be traced to a Registered User as such. Soiltech reserves all rights not expressly granted to Registered User in this Agreement.
4. Registered User Responsibilities
4.1 General
Registered User is responsible and liable for all uses of Soiltech IP resulting from access provided by Registered User, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Registered User is responsible for all acts and omissions of Authorized Users. Any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Registered User will be deemed a breach of this Agreement by Registered User. Registered User shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
4.2 Third-Party Products
Soiltech may from time to time make Third-Party Products available to Registered User. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and any applicable flow through provisions. If Registered User does not agree to abide by the applicable terms for any such Third-Party Products, then Registered User may not install or use such Third-Party Products.
5. Products.
5.1 Purchase and Sale
Registered User agrees to purchase from Soiltech, and Soiltech agrees to sell to Registered User, the Products. Registered User will place orders for Products by issuing one or more purchase orders to Soiltech. Except for quantities, specifications, and price, no other terms and conditions appearing on purchase orders, acknowledgments or other forms will be binding unless expressly agreed to by both parties in writing.
5.2 Delivery
Unless explicitly otherwise agreed in writing, Soiltech will use commercially reasonable efforts to dispatch the Products for delivery on the date the Registered User has specified (“Delivery date”) to the location the Registered User has designated for delivery. If Soiltech is unable to meet the Delivery date, Soiltech will notify the Registered User promptly upon becoming aware and provide a reasonable back up Delivery date that is acceptable to the Registered User (acting reasonably). The Registered User may terminate this Agreement in accordance with Section 12 should Soiltech fail to meet such back up Delivery date, unless such failure to meet the Delivery date is not due to Soiltech’s fault. All other delivery dates communicated by Soiltech in writing or otherwise agreed upon are mere indications and are not binding. Soiltech is not liable for any damage resulting from exceeding such indicated delivery date. If Registered User refuses to receive the Products on the Delivery date, Soiltech will store the Products for the account and at the costs of Registered User for a maximum of four weeks. After four weeks, Registered User is deemed to have waived all rights to the Products, without prejudice to its payment obligations to Soiltech of the fully agreed price, costs, and interest.
5.3 Title and Risk of Loss
The title to all Products delivered by Soiltech to Registered User remains with Soiltech until Registered User has paid all amounts owing for such Products. Thereafter, title to such Products transfers to Registered User and the Registered User will have full right, title, and interest in and to such Products (subject to any rights reserved to Soiltech under this Agreement). Risk of loss for the Products transfers to Registered User when Soiltech delivers the Products to the Registered User by placing them at the disposal of the carrier, EXW Soiltech’s facility (Incoterms® 2020).
5.4 Inspection
Immediately after receipt of the Products, Registered User shall inspect the Products and inform Soiltech of any defects within 24 hours after receipt. Registered User shall install and use the Products in accordance with the technical data sheet and instructions and shall never open the Beacon.
6. Fees and Payment
From and after the Effective Date, Registered User shall pay fees to Soiltech for the Products and Services as follows:
6.1 Fees
(a) Registered User shall pay Soiltech the fees as set forth Exhibit A without offset or deduction. Any disputes relating to payment must be made within 30 days from the time Soiltech billed or invoiced Registered User. Registered User acknowledges that Fees will be automatically charged to the credit card or transferred from the bank account provided by Registered User on the Registration Form. Registered User must provide Soiltech with a valid credit card (Visa, MasterCard, or any other issuer accepted by Soiltech, each a “Payment Provider”) or ACH information as a condition to signing up for the Services. Registered User’s Payment Provider agreement governs Registered User’s use of the designated credit card, and Registered User must refer to that agreement and not this Agreement to determine Registered User’s rights and liabilities. Registered User shall immediately notify Soiltech of any change in Registered User’s billing address, payment information, or the credit card or ACH information used for payment under this Agreement. Other than what is explicitly stated in Registered User’s Pricing, Soiltech reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Site or by email delivery to Registered User.
(b) As set forth in Section 12.1, Registered User’s subscription will automatically renew unless terminated by either Registered User or Soiltech. By its signature on this Agreement, Registered User authorizes Soiltech to charge Registered User’s Payment Provider on the Effective Date, and again on the first day of each Renewal Term.
(c) If Registered User fails to make any payment when due (or if Soiltech’s attempt to charge fees fails), then, without limiting Soiltech’s other rights and remedies: (i) Soiltech may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or if lower, the highest rate permitted under applicable law, (ii) Registered User shall reimburse Soiltech for all costs incurred by Soiltech in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees, and (iii) if such failure continues for five days or more, Soiltech may suspend Registered User’s access to any portion or all of the Services until such amounts are paid in full and continue to attempt to charge Registered User’s Payment Provider until payment is received (upon receipt of payment, Registered User’s account will be activated and for purposes of automatic renewal, Registered User’s new Services period will begin as of the day payment was received). Registered User understands and agrees that without subscription access to the Site, Registered User will not be able to receive Beacon Data, either from the Site or directly from the Beacon.
(d) If Registered User terminates this Agreement in accordance with Section 12, Registered User may use the Services until the end of the then-current Term, but the Term will not be renewed after the then-current Term expires. Registered User will not be eligible for a prorated refund of any portion of the fees paid for the then-current Term.
6.2 Special Provisions for Discounted Beacon Pricing
If Registered User purchased the Beacon(s) at a discounted price in exchange for agreeing to a longer Services term, Register User acknowledges and agrees that (a) the discounted pricing was provided to incentivize the Registered User’s commitment to a longer-term Services subscription, and (b) but for Registered User’s agreement to commit to a longer Services term, Soiltech would not have agreed to discount its prices for the Beacon. As such, if Registered User terminates this Agreement before the end of the agreed term, or if Soiltech terminates this Agreement because of Registered User’s breach, then, in addition to any other fees and costs owed to Soiltech as a result of such early termination, Registered User will be liable to Soiltech for the difference between the discounted price and the full retail price for the Beacon.
6.3 Taxes
All fees and other amounts payable by Registered User under this Agreement are exclusive of taxes and similar assessments. Registered User is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Registered User hereunder, other than any taxes imposed on Soiltech’s income.
7. Confidential Information
From time to time during the Term, Soiltech may disclose or make available to Registered User information about Soiltech’s business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, when disclosed to Registered User is: (a) in the public domain; (b) known to Registered User, as demonstrated by Registered User’s written records; (c) rightfully obtained by Registered User on a non-confidential basis from a third party; or (d) independently developed by Registered User without reliance on Soiltech’s Confidential Information. Registered User shall not disclose Soiltech’s Confidential Information to any person or entity, except to the Registered User’s employees who have a need to know the Confidential Information for the Registered User to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, Registered User may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Registered User must first give written notice to Soiltech and must make a reasonable effort to obtain a protective order; or (y) to establish Registered User’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, Registered User shall promptly return to Soiltech all copies, whether in written, electronic, or other form or media, of Soiltech’s Confidential Information, or destroy all such copies and certify in writing to Soiltech that Registered User destroyed such Confidential Information. Registered User’s non-disclosure obligations with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date each item of Confidential Information was first disclosed to Registered User; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8. Intellectual Property Ownership; Feedback
8.1 Soiltech IP
Registered User acknowledges that, as between Registered User and Soiltech, Soiltech owns all right, title, and interest, including all Intellectual Property rights, in and to the Soiltech IP, and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all Intellectual Property rights, in and to the Third-Party Products. Soiltech reserves all rights in relation to its patents, trademarks, and other intellectual property rights and entitlements.
8.2 Registered User Data; Beacon Data
Soiltech acknowledges that, as between Soiltech and Registered User, Registered User owns all right, title, and interest, including all Intellectual Property rights, in and to the Registered User Data and the Beacon Data. Registered User hereby grants to Soiltech a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Registered User Data and the Beacon Data and perform all acts with respect to the Registered User Data and the Beacon Data as may be necessary for Soiltech to provide the Services to Registered User, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Registered User Data and the Beacon Data incorporated within the Aggregated Statistics. Registered User represents and warrants to Soiltech that Registered User is the sole author of and owner or an authorized licensee of the copyright and other intellectual property rights in and to the Registered User Data, and that Registered User has all right and authority to grant Soiltech the license in this Section 8.2.
8.3 Feedback
If Registered User or any of its employees or contractors sends or transmits any communications or materials to Soiltech by mail, email, telephone, or otherwise, suggesting or recommending changes to the Soiltech IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Soiltech is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Registered User hereby assigns to Soiltech on Registered User’s behalf, and on behalf of its employees, contractors, and agents, all right, title, and interest in, and Soiltech is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Soiltech is not required to use any Feedback.
9. Products and Services Warranties; Disclaimer
9.1 Product Warranty
(a) Soiltech warrants that, for one-year after delivery of the Product to Registered User (“Warranty Period”), the Product will be free of defects in materials and workmanship. The foregoing warranty does not cover, and Soiltech makes no warranty with respect to: (i) failures not reported in writing or orally to Seller within the Warranty Period except for latent defects; or (ii) failures or damage due to negligence (other than Seller’s), use other than in accordance with the accompanying technical data sheet and instructions accident, abuse, improper installation, improper operation or maintenance, or abnormal conditions of temperature, moisture, or corrosive matter.
(b) A failure of a Product is a defect if Registered User can demonstrate that it used the Product in accordance with the technical data sheet and instructions and the failure arises within one year from the purchase of the Product (“Defect”). In case of a Defect, Registered User will notify Soiltech within five business days after the occurrence of the Defect in writing or by e-mail. At Soiltech’s request, Registered User shall send Soiltech the allegedly defective Product accompanied by all evidence of the failure, including the Data the defective Product reported and a soil sample. If Soiltech accepts the Defect, as the sole remedy, Soiltech shall at its discretion either send the Registered User a substitute Product or refund Registered User the purchase Price for the Product. Registered User shall have no other remedy or compensation. Failure to comply with any of Registered User’s obligations according to this Section 9.1 will result in a waiver and forfeiture of all claims based on or related to any failure of a Product.
(c) Except as expressly set forth in this Agreement, Soiltech does not make any further warranty of any kind, express or implied with respect to the Products. SOILTECH EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Registered User must make its own determination of the suitability and completeness of the Products for the intended purpose.
9.2 IP and Services Warranties
THE SOILTECH IP AND THE SERVICES ARE PROVIDED “AS IS” AND SOILTECH DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SOILTECH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SOILTECH MAKES NO WARRANTY OF ANY KIND THAT THE SOILTECH IP, OR ANY SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET REGISTERED USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. IN ADDITION, SOILTECH STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
9.3 Additional Limitations
REGISTERED USER UNDERSTANDS THAT THE BEACONS CANNOT DETECT DISEASES OR PATHOGENS OF ANY KIND. TO THE EXTENT THAT THE SERVICES PROVIDE INDICATORS WITH RESPECT TO DISEASE, REGISTERED USER UNDERSTANDS THAT SUCH INDICATORS MERELY IDENTIFY THE EXISTENCE OF CERTAIN CONDITIONS (E.G., MOISTURE OR TEMPERATURE) THAT MAY MAKE CERTAIN SOIL SUSCEPTIBLE TO DISEASE. THOSE INDICATORS ARE NOT PROOF OF ANY KIND THAT DISEASE DOES OR DOES NOT EXIST AT THAT LOCATION. REGISTERED USER IS SOLELY RESPONSIBLE FOR EXAMINING THE LOCATION AND MAKING ITS OWN INDEPENDENT DETERMINATION OF WHETHER DISEASE IS PRESENT AND WHETHER ANY CORRECTIVE ACTION IS REQUIRED. SOILTECH MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE PRESENCE OR ABSENCE OF ANY SUCH DISEASE AND DISCLAIMS ALL LIABILITY FOR SUCH MATTERS.
10. Indemnification
10.1 Soiltech Indemnification
(a) Soiltech shall indemnify, defend, and hold harmless Registered User from and against any losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Registered User resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services or the Products, or any use of the Services or the Products in accordance with this Agreement, infringes or misappropriates such third party’s United States Intellectual Property rights, provided that Registered User promptly notifies Soiltech in writing of the claim, cooperates with Soiltech, and allows Soiltech sole authority to control the defense and settlement of such claim.
(b) If such a claim is made or appears possible, Registered User shall permit Soiltech, at Soiltech’s sole discretion, to (i) modify or replace, as applicable, the Services or the Products, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Registered User to continue use. If Soiltech determines that neither alternative is reasonably available, Soiltech may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Registered User.
(c) This Section 10.1 does not apply to the extent that the alleged infringement arises from: (i) use of the Services or Products in combination with data, software, hardware, equipment, or technology not provided by Soiltech or authorized by Soiltech in writing; (ii) modifications to the Services or the Products not made by Soiltech; (iii) improper configuration of the Services or the Products; (iv) Registered User Data; or (v) Third-Party Products.
10.2 Registered User Indemnification
Registered User shall indemnify, hold harmless, and, at Soiltech’s option, defend Soiltech from and against any Losses resulting from any Third-Party Claim that the Registered User Data, or any use of the Registered User Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Registered User’s or any Authorized User’s (a) negligence or willful misconduct, including failure to comply with the terms and requirements of the applicable laws and regulations by Registered User, its shareholders, directors, officers, partners, members, employees, agents, contractors, or subcontractors; (b) use of the Services or the Products in a manner not authorized by this Agreement; (c) use of the Services or the Products in combination with data, software, hardware, equipment or technology not provided by Soiltech or authorized by Soiltech in writing; or (d) modifications to the Services or the Products not made by Soiltech. Registered User may not settle any Third-Party Claim against Soiltech unless Soiltech consents to such settlement, and Soiltech will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
10.3 Sole Remedy
THIS SECTION 10 SETS FORTH REGISTERED USER’S SOLE REMEDIES AND SOILTECH’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PRODUCTS OR SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL SOILTECH’S LIABILITY UNDER THIS SECTION 9 [EXCEED THE GREATER OF (A) THE AMOUNT PAID BY REGISTERED USER TO SOILTECH IN RELATION TO THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO ANY CLAIM FOR DAMAGES AND (B) $500].
11. Limitations of Liability
IN NO EVENT WILL SOILTECH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, INCLUDING LOSS OF CROP PRODUCTION, LOSS OF REVENUES OR PROFIT, LOSS OF DATA, LOSS OF INTEREST, COSTS OF RECALL, LOSS RESULTING FROM INTERRUPTION IN THE OPERATIONS, LOSS SUFFERED BY THIRD PARTIES, COSTS OF DELAYS OR ANY LOSS OR DAMAGE RESULTING THEREOF, DAMAGE CAUSED TO PERSONS AS A RESULT OF IMPROPER USE OF THE BEACON, OR DAMAGE CAUSED BY THE BEACON TO PLANTS, SOIL, OR THE ECOSYSTEM; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SOILTECH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL SOILTECH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE [EXCEED THE GREATER OF (A) THE AMOUNT PAID BY REGISTERED USER TO SOILTECH IN RELATION TO THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO ANY CLAIM FOR DAMAGES AND (B) $500].
12. Term and Termination
12.1 Term
The Term of this Agreement begins on the date that Registered User first accepts the terms of this Agreement (“Effective Date”) and runs through the date that is one year thereafter (“Initial Term”). Upon expiration of the Initial Term (and any Renewal Term), the Term will be automatically renewed for additional one year terms (each such additional one-year period, a “Renewal Term,” and collectively with the Initial Term, the “Term”), unless Registered User notifies Soiltech, in writing delivered at least 60 days before the expiration of, as applicable, the Initial Term or the then-current Renewal Term, that Registered User does not wish for the Term to renew.
12.2 Termination
In addition to any other express termination right set forth in this Agreement:
(a) Soiltech may terminate this Agreement without notice, if Registered User: (i) fails to pay any amount when due hereunder; or (ii) breaches any of its obligations in this Agreement;
(b) Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or
(c) Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Soiltech is not liable to the Registered User or any third party for any such termination.
12.3 Effect of Expiration or Termination
Upon expiration or earlier termination of this Agreement, Registered User shall immediately discontinue use of the Soiltech IP and, without limiting Registered User’s obligations under Section 7, Registered User shall delete, destroy, or return all copies of the Soiltech IP and certify in writing to the Soiltech that the Soiltech IP has been deleted or destroyed. No expiration or termination will affect Registered User’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Registered User to any refund.
12.4 Survival
This Section 12.4 and Sections 2, 7, 8, 9, 10, 11, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12.5 Relationship of Parties
This Agreement does not create a partnership, employment, agency, joint venture, or similar relationship between the parties. Soiltech is not liable for Registered User’s acts or omissions, and Registered User has no authority to bind Soiltech to any liability without Soiltech’s written authorization.
13. Miscellaneous
13.1 Entire Agreement
The Agreement, together with any other documents incorporated herein by reference, the Registration Form(s), and all related Exhibits, constitutes the parties’ sole and entire agreement with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to that subject matter. If there is any inconsistency between the statements made in the body of the Agreement, the Registration Forms(s), the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the Agreement, excluding its Exhibits; (b) second, the Exhibits to the Agreement as of the Effective Date; (c) third, any Registration Form; and (d) fourth, any other documents incorporated herein by reference.
13.2 Notices
All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and will be given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the parties at the addresses set forth on the signature page to the Agreement (or to such other address as may be designated by a party from time to time in accordance with this Section 13.2).
13.3 Force Majeure
In no event will Soiltech be liable to Registered User, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Soiltech’s reasonable control, including acts of God, epidemic, pandemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
13.4 Amendment and Modification; Waiver
No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (b) no single or partial exercise of any right, remedy, power, or privilege under this Agreement will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.5 Severability
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby will be consummated as originally contemplated to the greatest extent possible.
13.6 Governing Law; Submission to Jurisdiction
This Agreement is governed by and must be construed in accordance with the internal laws of the State of Idaho without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Idaho. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder must be instituted exclusively in the federal courts of the United States (if those courts have or can obtain jurisdiction) or the courts of the State of Idaho in each case located in Boise, Ada County, Idaho and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
13.7 Assignment
Registered User may not assign any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Soiltech’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section is void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
13.8 Export Regulation
The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Registered User shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Registered User shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), before exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
13.9 US Government Rights
The components constituting the Soiltech IP are a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Registered User is an agency of the US Government or any contractor therefor, then Registered User only receives under this Agreement those rights with respect to the Soiltech IP as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
13.10 Equitable Relief
Registered User acknowledges and agrees that a breach or threatened breach by Registered User of any of its obligations under either of Section 3.5 or Section 7 would cause Soiltech irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Soiltech will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
13.11 Interpretation
. In this Agreement, (a) the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement must be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Each Registration Form and all Exhibits other documents referred to in this Agreement must be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim in this Agreement.
13.12 Counterparts
This Agreement may be signed by any number of counterparts, each of which will be deemed an original, and all of which constitute the same Agreement. Delivery of an executed counterpart signature page of this Agreement by electronic means (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com, or other electronic means intended to preserve the original graphic and pictorial appearance of a document) has the same effect as delivery of an executed original of this Agreement.
