TERMS OF SERVICE
Updated: January 7, 2020
These Terms of Service (“Terms of Service”) relate to the use of the FloraPulse Co. microtensiometer and other sensors (the “Service”). By purchasing the Service from FloraPulse Co. (“FloraPulse”, “We”, “Us” or “Our”), you agree to these Terms of Service, which form a binding legal agreement between the company or other entity that has contracted to purchase the Service (as set forth in FloraPulse’s invoice) and any of its authorized users (collectively, “You” or “Your”) and FloraPulse. FloraPulse reserves the right to make unilateral modifications to these Terms of Service and Your use of the Service constitutes acceptance of these Terms of Service as well as any changes or modifications made to them of which You have been notified. If You do not accept these Terms of Service, You may not use the Service.
- DESCRIPTION AND USE OF SERVICE
The Service consists of the use of certain hardware (“Hardware”) on the property (the “Property”) described in the invoice from FloraPulse for the Service (“Order”). If the Property is within FloraPulse’s designated service area, FloraPulse may but is not obligated to send its personnel to the Property to install the Hardware; otherwise, FloraPulse will ship the Hardware to You with an install kit and instructions on how to install the Hardware, and You will be responsible for such installation. The Hardware typically consists of the following elements: a datalogger box, one or more water-potential probes, a metal sleeve and cap for sensor attachment, and insulation batting. The Hardware measures stem water potential from the crop field in which it is installed on the Property and sends data to FloraPulse by means of a cellular connection that is then analyzed by FloraPulse’s proprietary software (“Software”). FloraPulse then sends an automatically-generated email at designated intervals that reports the following: the crop water status midday stem water potential; and such other data that FloraPulse may decide from time to time to provide to its users (collectively “Crop Water Data”).
Provided that You have paid all fees required hereunder and are in compliance with these Terms of Service, FloraPulse hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Service during the Term solely for Your internal business purposes and solely for Your Property. You may not transfer, resell, or sublicense this limited right to any third party. The Service and its features and benefits are not transferable, whether by operation of law or otherwise, without FloraPulse’s prior written consent.
Without limiting the above, You may not: (i) modify, disassemble, decompile or reverse engineer any part of the Service, Software or Hardware, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer any part of the Service, Software or Hardware to any third party or use any part of the Service, Software or Hardware to provide time sharing or similar services for any third party; (iii) make any copies of the Service, Software or Hardware; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, Software or Hardware, features that prevent or restrict use or copying of any content accessible through the Service, Software or Hardware, or features that enforce limitations on use of the Service, Software or Hardware; or (v) delete the copyright and other proprietary rights notices on the Service, Software or Hardware.
- USE OF CROP WATER DATA
As between You and FloraPulse, You own all right, title and interest in and to the Crop Water Data specific to Your Property; provided that You hereby grant to FloraPulse a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sublicensable and fully transferable license to collect, access, store, analyze, use and disclose the Crop Water Data and any other data collected and analyzed by the Service, Hardware and Software on the Property for purposes of providing You the Service, analyzing and reporting aggregate trends in certain geographical areas, improving the Service and Hardware, including creating new features, and for such other purposes that FloraPulse may determine in its discretion. Notwithstanding the foregoing, FloraPulse will only disclose the Crop Water Data to others in an aggregated, non-identifiable form, except as required by law or court order.
- MAINTENANCE AND ACCESS TO HARDWARE
During the Term, FloraPulse will use reasonable efforts to maintain, service and replace the Hardware from time to time in its sole discretion, provided that FloraPulse shall have no liability or responsibility to you for any damages or losses caused by the providing of, or failure to provide, such maintenance or service. In addition, if any act or omission by You results in damage to the Hardware, You shall reimburse FloraPulse for the cost of any maintenance, service, or replacement of such Hardware resulting from or required by such damage. You acknowledge that at the beginning of each growing season during the Term, You will need new sensors for the Hardware. FloraPulse will either install such new sensors in the Hardware on Your Property, or ship the new sensors to You with an install kit and instructions on how to install the new sensors in the Hardware, and You will be responsible for such installation.
During the Term, You grant to FloraPulse and its employees, subcontractors and agents (collectively, “FloraPulse Personnel”) the right and permission to enter upon and access the Property at any time for the following purposes: (a) install the Hardware or new sensors for the Hardware; (b) remove or replace the Hardware; and (c) inspect and perform maintenance and service on the Hardware. You agree to provide FloraPulse and the FloraPulse Personnel with such directions, combinations, locks and other materials and information necessary for FloraPulse to enter upon and access the Property for the foregoing purposes and to instruct Your employees, security and other personnel (collectively “Your Personnel”) to allow FloraPulse and the FloraPulse Personnel to have such access to the Property and not to interfere with such access. You understand and agree that Your failure to do so may result in the interruption or termination of the Service.
FloraPulse will notify you in advance at the contact information provided in Your Account when FloraPulse Personnel intend to enter upon the Property. You agree to respond to such notification promptly and to advise FloraPulse of any restrictions or limitations on access during the requested time of entry. You have the right to tell Us to delay Our access to the Property by a reasonable period of time because We understand that pesticide re-entry intervals, and other factors beyond your reasonable control may legally prohibit You from allowing FloraPulse and FloraPulse Personnel access to the Property for discrete intervals of time. However, You will use best efforts to schedule Our entry onto the Property at the earliest possible date following FloraPulse’s notice to You and You understand that any delay in granting Us access to the Property may result in a degradation or interruption of Service, for which We shall have no responsibility or liability.
- NOTIFICATION OF CHANGES TO THE SERVICE
To the extent permitted by law, FloraPulse reserves the right to update, amend, change, or modify the Service (or any part thereof) and its features, costs, design, and structure (collectively, “Changes”) at any time in its sole discretion without notice, except that we will notify You of any Changes in pricing. If You continue to use the Service after the effective date of such Changes, You will be deemed to have accepted such Changes and the Changes shall become effective as to You. Your sole and exclusive remedy if You do not agree to any such Changes is to withdraw from the Service and terminate Your Account (but you will not be entitled to a refund on any fees already paid). Additionally, FloraPulse reserves the right to terminate or suspend the Service at any time and for any reason, with or without notice.
You further agree that FloraPulse may impose limits on certain features or restrict access to part or all of the Service without notice or liability to You. We may add additional features to the Service that require payment or convert existing features to paid features. You agree that free access to all or a portion of the Service or content at a point in time does not give You a right to continued free access to any or all of the Service or content. You have no interest, monetary or otherwise, in any feature or content contained on the Service.
In addition, unless You specifically decline to opt-in when registering for the Service, You further expressly consent to FloraPulse sending information to the email accounts listed in Your Account; such information may include, but is not limited to, reports of Crop Water Data, updates to Your Accounts, and marketing materials which will inform You of special offers and products or services we believe would be of interest to You. Within each marketing email communication, You will be given the information necessary to opt-out from receiving such marketing materials in the future. In addition, You may sign up to receive certain notifications or information via text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
- YOUR ACCOUNT
Each user of the Service may be required to create an account (“Account”) by providing a user name and password. The user name and password are to be treated as confidential and should not be shared or disclosed to any third parties. You may never use another user’s Account without permission. When creating Your Account, you must provide accurate and complete information, and you must keep this information up to date. Company will not be liable for any losses caused by any unauthorized use of your account. You are solely responsible for the activity that occurs on Your Account, whether or not authorized, and you must keep Your Account password secure. We encourage You to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with Your Account. You must notify FloraPulse immediately of any breach of security or unauthorized use of Your Account.
You are responsible for notifying FloraPulse of any address or email changes or errors in Your Account information. FloraPulse is not responsible for any requests, communications, or correspondence that is lost, undeliverable, or delayed in the direct mail or via electronic mail.
- PAYMENT OF FEES
You are responsible for paying all fees and charges issued by FloraPulse in connection with Your use of the Service (“Fees”). The schedule of Fees for the Service will either be posted online at www.florapulse.com or set forth in the FloraPulse invoice, and is subject to change upon 30 days prior written notice to You. Fees are billed annually and are due upon invoice date. Other charges, including charges for maintenance, service and replacement of Hardware resulting from or required by damage to the Hardware caused by any act or omission by You, will be invoiced to You as required and are due upon invoice date. If you cancel the Service before the end of your current paid up year, your cancellation will take effect upon completion of the billing cycle that has already been paid. You also agree to pay any and all costs and expenses, including reasonable attorney’s fees, incurred by FloraPulse in connection with collection of any amounts due hereunder.
- PROPRIETARY RIGHTS
You acknowledge and agree that FloraPulse or its licensors or its licensees own all right, title, and interest in and to the Service, including all intellectual property rights associated with the Hardware, Software and Service and any information, data or material generated or created by the Service (other than the Crop Water Data for Your Property). Except for the limited license expressly stated herein, You have no intellectual property rights in the Service, Hardware and Software, and FloraPulse reserves all rights not expressly granted to You. You must comply with all laws when using the Service as well as all applicable copyright, trademark, or other legal notices or restrictions.
If You send or transmit any communications, comments, questions, suggestions, or related materials to FloraPulse, whether by letter, e-mail, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Hardware, Software or the Services, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and FloraPulse is free to use without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that FloraPulse is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
All Hardware shall remain the property of FloraPulse and may be removed by FloraPulse from the Property at the end of the Term. You shall not sell, license, sublicense, rent, lease, mortgage, charge, encumber, pledge, loan, assign or otherwise transfer to any third party the Hardware, in whole or in part. FloraPulse also reserves the right to replace Hardware at any time for any reason. You shall be responsible for any damage to or theft or loss of the Hardware while installed on the Property.
- TERM AND TERMINATION
The Services are provided for a period of one year from the date the Service is implemented at the Property or as otherwise set forth in the applicable invoice (the “Term”). The Term automatically renews for successive one-year periods, unless either party provides written notice of non-renewal 30 days before the end of the then current Term. FloraPulse may, in its sole discretion, terminate or suspend Your Account and access to the Service with 10 days written notice if You commit any material breach of these Terms of Service including failure to pay any sum due within 10 days. FloraPulse may also terminate the Service for convenience upon 30 days prior written notice to You.
Upon termination, You will have no further right or access to the Service, Hardware or Software or other information provided by the Service, Hardware or Software and you hereby grant FloraPulse access to the Property to remove the Hardware or, at FloraPulse’s election in its sole discretion, FloraPulse may request You to ship the Hardware to FloraPulse at FloraPulse’s cost, or destroy and dispose of the Hardware. If Your access to the Service terminates and You do not renew within 12 months, FloraPulse reserves the right to declare Your Account inactive and delete all information associated with Your Account, in its sole discretion. In such a case, a notice will be sent to Your email address on file with FloraPulse 30 days in advance of the deletion of Your Account.
The provisions of Section 1 (third paragraph), 2, 5 and 8 through 14 and any claim by FloraPulse for unpaid Fees will survive any termination or expiration of these Terms of Service or the Service.
- DISCLAIMER OF WARRANTIES
EXCEPT AS SET FORTH ABOVE, FLORAPULSE PROVIDES THE SERVICE, HARDWARE AND SOFTWARE ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FLORAPULSE MAKES NO WARRANTY THAT (i) THE SERVICE, SOFTWARE OR ANY HARDWARE PROVIDED TO YOU WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THAT THERE WILL BE NO ERRORS IN THE SERVICE, SOFTWARE OR HARDWARE, OR THAT FLORAPULSE WILL FIX ANY ERRORS; OR (iv) THAT THE SERVICE OR CROP WATER DATA WILL REDUCE WATER USAGE OR INCREASE CROP YIELDS. YOU UNDERSTAND THAT THE SERVICE, HARDWARE AND SOFTWARE MAY BE AFFECTED OR INTERRUPTED BY WEATHER, HEAT, FLOODS, CELLULAR NETWORK INTERRUPTIONS AND OTHER FACTORS AND ACTS OF GOD, AND THAT FLORAPULSE BEARS NO RESPONSIBILITY FOR THE SAME.
ANY CROP WATER DATA OR OTHER INFORMATION OBTAINED THROUGH USE OF THE SERVICE ARE OBTAINED AT YOUR OWN DISCRETION AND RISK AND FLORAPULSE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE CAUSED TO YOU, YOUR PROPERTY, CROP YIELDS, CROP LOSSES, IRRIGATION SYSTEMS OR YOUR COMPUTER OR DATA OR FOR ANY BUGS, VIRUSES, TROJAN HORSES OR OTHER DESTRUCTIVE CODE RESULTING FROM USE OF THE SERVICE OR ANY CONTENT OBTAINED FROM THE SERVICE.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE.
- LIMITATION OF LIABILITY/RELEASE OF CLAIMS
YOUR USE OF THE SERVICE, HARDWARE AND SOFTWARE IS ENTIRELY AT YOUR OWN RISK. FLORAPULSE WILL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL, EXTRAORDINARY, OR CONSEQUENTIAL DAMAGES, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION OR CROP DAMAGE, EVEN IF YOU HAVE INFORMED FLORAPULSE OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT FLORAPULSE SHALL HAVE NO RESPONSIBILITY OF LIABILITY FOR ANY DAMAGE OR LOSS TO PROPERTY OR CROPS, REDUCTION OR LOSS IN PRODUCTION, OR PERSONAL INJURY OR DEATH RELATING TO THE HARDWARE, SOFTWARE, OR THE SERVICES OR THE CROP WATER DATA OR OTHER INFORMATION PROVIDED THROUGH THE SERVICE. FLORAPULSE’S TOTAL LIABILITY FOR ANY CLAIMS RELATING TO OR ARISING OUT OF USE OF THE SERVICE, THE HARDWARE OR THE SOFTWARE SHALL BE LIMITED TO THE AGGREGATE FEES PAID BY YOU FOR THE SERVICE DURING THE ONE (1) YEAR PERIOD PRIOR TO ASSERTION OF THE CLAIM.
You will defend, indemnify, and hold FloraPulse harmless from and against any and all claims, actions, liabilities, losses, damages, settlements, judgments, arbitration awards, costs, and expenses, including without limitation, attorneys’ fees and expenses (collectively, “Claims”) resulting from, arising out of or relating to Your use of the Hardware, the Software and the Service, including without limitation any claims for property damage, personal injury or death occurring on the Property relating to the Hardware, Software and Service. FloraPulse will promptly notify You in writing of any such Claim and will allow You to control, and will cooperate with You in, the defense and all related settlement negotiations; provided, however, that FloraPulse may participate in such defense and negotiations through counsel of its own choosing at FloraPulse’s own expense. You will reimburse FloraPulse for all expenses incurred by FloraPulse through such cooperation with You in the defense and related settlement negotiations. No settlement of a Claim may be made by You without FloraPulse’s prior written consent.
When FloraPulse changes these Terms of Service in a material manner, FloraPulse will update the ‘Updated:’ date at the top of these Terms of Service. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. Your sole and exclusive remedy if You do not agree to any such changes is to withdraw from the Service and terminate Your Account (but you will not be entitled to a refund on any fees already paid).
These Terms of Service constitute the full and complete understanding of You and FloraPulse as to the subject matter hereof and may not be altered or modified, except by written amendment which is duly executed by both parties. Further, these Terms of Service will be construed and governed in accordance with the laws of the State of California, excluding the application of its conflicts of law rules and the United National Convention on Contracts for the International Sale of Goods. The parties agree that the exclusive venue and jurisdiction for any dispute arising under or relating to the Services or the Terms of Service shall be a court of competent jurisdiction located in San Francisco County, California, and each party hereby expressly consents to the personal jurisdiction of said courts and waives any objection to such jurisdiction based on forum non conveniens. If any part of these Terms of Service are found void and unenforceable, it will not affect the validity of the balance of these Terms of Service, which will remain valid and enforceable according to its terms. No action, regardless of form, arising out of the Services under these Terms of Service may be brought by you more than one year after the events that gave rise to the cause of action occurred.