FarmTest Terms of Use
Last updated: November 8, 2021.
Welcome, and thank you for your interest in FarmTest, LLC (“FarmTest,” “we,” “our,” or “us”). These Terms of Use constitute a legally binding agreement (the “Agreement”) between you and FarmTest governing your access to and use of the FarmTest website, mobile application, software, products, and services provided by us (collectively, the “Services”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION THAT INCLUDES A JURY TRIAL WAIVER AND CLASS ACTION WAIVER, AND A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE FOR ANY DISPUTES.
By entering into this Agreement, and/or by accessing or using the Services, you expressly acknowledge that you have read, understood, and agree to be bound by this Agreement. If you are accessing and using the Services on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. This Agreement applies to all visitors, users, and others who access or use the Services (“users,” “you,” or “your”). We reserve the right, at our sole discretion, to change, modify, add, or remove portions of this Agreement, at any time, by posting changes to this page. Your continued access to or use of the Services after such posting confirms your consent to be bound by this Agreement, as amended. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
1. Privacy Policy and Additional Terms
Our Privacy Policy explains how we collect, use, and share your information, and is hereby incorporated into this Agreement. You agree that your access to and use of the Services is governed by our Privacy Policy.
Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link from the Services (the “Additional Terms”), such as end user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Services. All Additional Terms are incorporated by reference into, and made a part of, this Agreement.
2. Eligibility
To use the Services you must be, and hereby represent that you are, an individual 18 years or older who can form legally binding contracts. Persons under the age of 18, or any higher minimum age in the jurisdiction where that person resides, are strictly prohibited from accessing or using the Services unless their parent has consented in accordance with applicable law. Additionally, you are prohibited from accessing or using the Services if you are barred from receiving services under applicable law or have previously been suspended or removed from the Services.
3. Limited License Grant
Subject to the terms and conditions of this Agreement, you are hereby granted a limited, non-exclusive, non-transferable, non-sublicensable, freely revocable right to use the Services only as permitted by the features of the Services. We reserve all rights not expressly granted herein in the Services.
4. Accounts
To access and use the Services you may be asked to create an account (“Account”) by providing us with information such as your name, contact information, and additional information we may ask you to provide. You must provide accurate, current, and complete information during the registration process and keep your Account information up-to-date at all times. You are responsible for all activity that occurs in association with your Account. We are not liable for any loss or damage caused by your failure to maintain the confidentiality of your Account credentials. You must immediately notify us if you discover or suspect any security breach related to the Services or your Account.
5. Content and Data
User Content
You are responsible for all data, information, images, photographs, or other materials provided to us or uploaded to the Services (“User Content”). You are solely responsible for such User Content, including its legality, reliability, and appropriateness. You agree that any User Content that you provide does not and will not violate third-party rights of any kind, including, without limitation, any intellectual property rights or rights of privacy. We reserve the right (but not the obligation) to reject and/or remove any User Content that we believe, in our sole discretion, violates this Agreement. You represent and warrant that you have all necessary rights, consents, and permissions to submit to the Services and otherwise disclose, transfer, and use all User Content, including to grant the licenses to User Content herein. By providing or uploading User Content, you grant us a revocable, worldwide, non-exclusive, royalty-free right and license to modify, copy, store, retain, and otherwise use User Content in order to provide, support, and improve the Services.
Anonymized Data
You further grant us a worldwide, non-exclusive, perpetual, irrevocable, fully paid up, royalty free, transferable, sublicensable right and license to collect, retain, store, use, modify, distribute, disclose, and otherwise fully exploit the User Content in an anonymized form for any purpose in connection with our current or future products and services.
Usage Data
We may collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies, including without limitation, information concerning User Content and data derived therefrom that does not specifically identify a user (“Usage Data”). We own all right, title, and interest in and to Usage Data.
6. Proprietary Rights
User Content and Deliverables
Except for the limited licenses granted to us in this Agreement, as between the parties, you retain all right, title, and interest in and to the User Content and the deliverables (i.e. field trial results and reports relating to User Content) provided as part of the Services.
FarmTest Material
Except as otherwise expressly stated in this Agreement, we retain all right, title, and interest in and to the Services and associated documentation, all data, text, images, logos, software, content, and other information and content available on or through the Services, and any and all enhancements, improvements, developments, derivative works, or other modifications made to or related to the foregoing (“FarmTest Material”). The FarmTest Material is protected by copyright, trademark, and/or other intellectual property laws and you acknowledge and agree that we retain all right, title, and interest in and to the FarmTest Material. Except as expressly stated in this Agreement, you may not sell, transfer, alter, reproduce, distribute, republish, download, display, post, or transmit any FarmTest Material, in whole or in part, by any means.
Feedback
You acknowledge and agree that any feedback, comments, or suggestions you may provide regarding the Services will be the sole and exclusive property of us and you hereby irrevocably assign to us all of your right, title, and interest in and to all feedback.
7. Restrictions
In addition to any other restrictions set forth in this Agreement, you agree not to engage in, attempt to engage in, or permit or assist others in engaging in, any of the following prohibited activities: (i) use any software, script, code, device, crawler, robot, or other means not provided by us to access the Services; (ii) circumvent, disable, or otherwise interfere with security-related features on the Services; (iii) modify, adapt, translate, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Services; (iv) access or use the Services in any manner that may damage, disable, unduly burden, or impair any part of the Services, or any servers or networks connected to the Services; (v) post information or interact with the Services in in a manner which is fraudulent, libelous, abusive, obscene, profane, harassing, or illegal; (vi) use the Services for any illegal purpose or in violation of any law, statute, rule, permit, ordinance or regulation; (vii) gain or attempt to gain unauthorized access to the Services; (viii) interfere or attempt to interfere with the Services provided to any user or network, including without limitation, via means of submitting a virus to the Services, spamming, crashing, or otherwise; (ix) unless otherwise agreed upon, engage in commercial use or distribution of the Services, or copy or create any derivative work of the Services; (x) use the Services in any way that infringes or misappropriates any third party’s rights, including intellectual property rights, copyright, patent, trademark, trade secret, or other proprietary rights, or rights of publicity or privacy; and (xi) disclose the results of testing or benchmarking of the Services.
8. Services Availability
We will use commercially reasonable efforts to make the Services available at all times, except for scheduled downtime and any unavailability caused by events beyond our reasonable control, such as fires, natural disasters, government actions, civil unrest, or Internet service provider failures or delays. We may, without prior notice and at our sole discretion, change the Services, stop providing the Services or certain features of the Services, or create usage limits for the Services.
9. Third-Party Materials
You are solely responsible for the licensing or purchasing of any third-party software, hardware, equipment, or other items (“Third-Party Materials”) as necessary to use the Services directly from the vendor and will retain sole responsibility for the selection and payment of such Third-Party Materials. We make no warranties of any kind with respect to such Third-Party Materials, including the use and functionality of the Services with or on the Third-Party Materials.
10. Fees and Payment
Pricing and Payment Terms
All fees, including any applicable taxes and transaction fees, are in U.S. Dollars and payable in advance. We are not responsible for any charges or expenses you incur resulting from charges billed by us in accordance with this Agreement. All fees and other payments related to your Account will be made in accordance with the billing terms in effect when such payment is due or funds are received. By providing a credit card number or other payment method with advance authorization features (such as in-app payments from third parties like Apple or Google), you authorize us to continue charging the payment method for all charges due to us until your Account is settled (or, if applicable, your subscription is terminated). Any recurring fees will automatically renew at the rates then in effect and are automatically charged to your credit card. We use a third-party payment processor to process payments and you must agree to their terms when entering payment information. By providing your payment information, you agree that we may charge you for all fees when they become due to us without additional notice or consent. We may add new features for additional fees, or amend fees for existing features, at any time in our sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement. Payments are nonrefundable and there are no refunds or credits for partially used periods.
Trial Period
You may be given the opportunity to use a demo, beta, or trial version of the Services (“Trial”). You may cancel your Account at any time during the Trial. You are limited to one Trial per person. If you do not cancel your Account during the Trial, you will be charged based on the Account type you selected during registration, if applicable. Trial eligibility is determined by us at our sole discretion and we may limit eligibility or duration to prevent Trial abuse. We reserve the right to revoke the Trial and put your Account on hold in the event that we determine that you are not eligible. YOUR USE OF THE SERVICES DURING THE TRIAL IS “AS IS” AND AT YOUR OWN RISK. WE DISCLAIM ALL LIABILITY RELATED TO YOUR USE OF THE SERVICES DURING THE TRIAL.
11. Disclaimer
THE SERVICES (WHICH INCLUDES ANY DELIVERABLES) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES ARE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIVACY, SECURITY, ACCURACY, TIMELINESS, QUALITY, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE, OUR SUBSIDIARIES, OUR AFFILIATES, AND OUR THIRD-PARTY LICENSORS DO NOT WARRANT THAT: (I) THE SERVICES OR YOUR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR CORRECT; (II) THE SERVICES OR YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; (III) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, TIMELY, UNINTERRUPTED, OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V)THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES ARE DOWNLOADED OR OTHERWISE USED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR USE OF THE SERVICES.
If you live in a state that does not allow for the disclaimer of certain warranties, the disclaimers above may not apply to you.
12. Indemnity
You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, and affiliates (the “Entities”) harmless from any and all third-party claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and litigation expenses), in any way related to your access to or use of the Services, your User Content, or your breach of any of this Agreement.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE ENTITIES OR ITS THIRD-PARTY LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM THE USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NOTWITHSTANDING THE FOREGOING, THE TOTAL LIABILITY OF THE ENTITIES AND ITS THIRD-PARTY LICENSORS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR ANY OTHER THEORY, ASSOCIATED WITH ANY CLAIM ARISING OUT OF OR RELATING TO USE OF OR ACCESS TO THE SERVICES FOR ANY REASON WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100). IF THE JURISDICTION YOU ARE IN DOES NOT ALLOW FOR THE EXCLUSION OF CERTAIN TYPES OF DAMAGES, THEN SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN CERTAIN CIRCUMSTANCES.
14. Alerts and Notifications
By entering into this Agreement or using the Services, you agree to receive communications from us, including emails, text messages, alerts, and other electronic communications. Standard message and data rates apply to all messages sent to or received from us. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.
15. Dispute Resolution
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time such informal dispute resolution is pursued, then either party may initiate binding arbitration. Except as expressly set forth herein, any dispute, claim, or controversy (each, a “Claim”) arising out of or relating to this Agreement will be settled by binding arbitration administered by the American Arbitration Association (the “AAA”) in accordance with the provisions of its Commercial Consumer Arbitration Rules and the supplementary procedures for consumer related disputes of the AAA, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation, to any Claim that all or any part of this Agreement is void or voidable. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act, 9 U.S.C. § 1, et seq. shall exclusively govern the interpretation and enforcement of any arbitration. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties each acknowledge and agree to waive the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, each party retains the right to bring an individual action in small claims court or the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyright, trademark, trade secret, patent, or other intellectual property right. If any court or arbitrator determines that the foregoing class action waiver is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision herein shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
In addition to the severability provisions set forth above, in the event that any portion of this arbitration provision is deemed illegal or unenforceable, such provision shall be severed and the remainder of this section shall be given full force and effect. Any Claim or cause of action you may have arising out of or relating to this Agreement or the Services must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
16. Term and Termination
This Agreement commences when you first visit or use any feature of the Services and shall apply to all of your subsequent visits and uses until your Account is canceled or this Agreement is terminated as set forth herein. You may cancel your account at any time by emailing us at the email address under the Contact section. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability if in our sole determination you violate any provision of this Agreement. We will not be liable to you or any third party for any such termination. Upon any termination, discontinuation, or cancellation of the Services or your access thereto, your right to access or use the Services will immediately terminate. All provisions of this Agreement which by their nature should survive termination shall survive the termination of your access to the Services, including without limitation, provisions regarding ownership, warranty disclaimers, indemnity, and limitations of liability.
17. General
This Agreement is governed by the laws of the State of California, without regard to conflict of law principles. You agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating any dispute. You may not assign or transfer this Agreement or your rights herein, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice or consent. If any portion of this Agreement is held invalid, you agree that such invalidity will not affect the validity of the remaining portions of this Agreement. We may identify you as a customer in standard marketing materials, including the customer page of our website. No waiver by us of any breach or default of this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default. This Agreement represents the complete agreement between the parties regarding the subject matter set forth herein and supersedes all prior agreements and representations between you and us.
18. Contact
Please contact us with any questions regarding this Agreement at legal@farmtest.ag.