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End User License Agreement

Last Updated: November 28, 2023

This End User License Agreement (this “Agreement”) is a legal agreement between (i) you (either an individual or a single legal entity), and (ii) EarthOptics and its Affiliates (“we,” “us,” or “EarthOptics”). By downloading, installing, activating, or otherwise using the EarthOptics products and services (the “EarthOptics Products”), you represent and warrant (a) that you are at least 18 years of age or the age of majority where you reside, (b) that you are acting for business purposes, and (c) that you have the power and authority to enter into this Agreement, and you agree to be bound by these terms and conditions, including EarthOptics’s Privacy Policy. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you can bind such entity, in which case “you” or “your” shall refer to such entity.

The EarthOptics Products provide information, estimates, prescriptions, or other recommendations based on models and third-party sources, as well as Data provided by you or your equipment. Our services, models, data, and recommendations may change over time. Individual results may vary, as weather, growing conditions, and farming practices differ across growers, locations, and years. We do not guarantee any results unless and to the extent expressly specified in the sales contract between you and EarthOptics, and none of the EarthOptics Products or Generated Data should be used as a substitute for sound farming practices, including diligent field monitoring, or as a sole means for making farming, risk management or financial decisions. We recommend that you consult your agronomist, commodities broker, and other service professionals before making financial, risk management, and farming decisions.

Scope of this Agreement

This Agreement sets forth certain information regarding the placement of orders for EarthOptics Products (“Orders”), describes how you can and cannot use the EarthOptics Products provided or licensed to you by us, and what we will and will not do in connection with your use, as well as other important legal restrictions and obligations. While some EarthOptics Products may be provided or licensed to you for free, you or your Sales Representative (as defined below) will need to submit an Order for certain fee-based EarthOptics Products. Your Order will become effective only if we accept the Order.

Orders

Subject to any agreement you may have entered into with a EarthOptics dealer or other sales representative (a “Sales Representative”), you may place Orders for EarthOptics Products with respect to one or more farming operations (each, an “Account”) through the EarthOptics Web Portal (“Portal”) by using your own user profile, or through a Sales Representative. All such Orders will be governed solely by the terms and conditions contained herein unless otherwise mutually agreed upon in writing. Additionally, we reserve the right to reject any Order submitted to us by you. You also agree to the terms in Seller's Privacy Policy, which can be found at https://www.earthoptics.com/pr... to which you will be bound.

Changes

EarthOptics at all times reserves the right and is entitled in its sole discretion, to make changes, additions, or improvements to the products being delivered under an Order without liability or any obligation to incorporate such changes, additions, or improvements into any item or product sold or delivered prior to incorporation of the change, addition or improvement. You are entitled to cancel, increase, or decrease acreage up until the earlier of the date when samples are collected in the field, or September 1 of a given year for any Orders placed prior to that time which are intended for sampling in the Fall season of that year. Any change in acreage after an Order is placed will be subject to the applicable list price in effect at the time of the change. If you purchase additional services or expanded acreage, these additions will be subject to the terms and conditions set forth in this Agreement.

Billing Responsibility

Before samples for a given Order can be collected in the field, the Account associated with the Order must have a user assigned with billing responsibility (“Responsible Billing Party”), who will receive invoices for the Order. If you are the Responsible Billing Party for an Account, you will receive a notification through email communication indicating this designation. Upon designation as the Responsible Billing Party, you agree to pay any invoices from EarthOptics associated with Orders that are executed, through the collection of soil samples in the field, while you are the Responsible Billing Party for the Account. If another party is designated as the Responsible Billing Party, you will ensure that such party makes timely payments for EarthOptics invoices.

Prices and Payments

Payment is due within 15 days of receipt of the invoice. Upon delivery of the EarthOptics Product, EarthOptics will send the invoice to the Responsible Billing Party associated with the Account at the time the samples were taken in the field. In the event payments for an Order are not made in a timely manner, we may, in addition to all other remedies provided at law, either: (1) declare your performance in breach and terminate the Order for default; (2) withhold future services until delinquent payments are made; (3) recover all costs of collection including reasonable attorney’s fees; and (4) at EarthOptics’s option combine any of the above rights and remedies as provided by law. Interest equal to the lesser of 1.5% per month or the highest rate allowed by law will apply to late payments. To the extent that the terms of this paragraph conflict with the terms of a signed agreement between EarthOptics and you (or the Responsible Billing Party for your Account, if not you), the terms of such signed agreement shall prevail.‍

Your Use of the EarthOptics Products

‍What you are permitted to do:

  • As long as you comply with the terms of this Agreement, you and the individuals who work for you can use the EarthOptics Products, on a non-exclusive basis, for your internal use only in connection with your farming operations.
  • The EarthOptics Products are licensed (on a non-exclusive basis), not sold, to you.
  • If you have placed an order for a fee-based EarthOptics Product, you can use that EarthOptics Product only until your subscription for that EarthOptics Product ends and only in accordance with the terms and conditions of this Agreement.
  • We encourage you to let us know how we are doing or how you feel about the EarthOptics Products.

You agree to:

  • provide accurate, reliable, and appropriate Data;
  • ensure that those individuals working for you comply with this Agreement;
  • keep your account and payment information up to date; and
  • manage all passwords for your authorized users and immediately notify us if you believe that your account is no longer secure.

You agree that you will not:

  • assign, transfer, or sublicense this Agreement or the rights granted by us in this Agreement;
  • sell, lease, lend, license, distribute, redistribute, copy, publicly perform or display, transmit or publish any EarthOptics Products or Generated Data;
  • modify, edit, adapt, alter, translate, adopt, transfer, enhance, disassemble, scrape (through spidering, crawling, or the like), reverse engineer, or decompile the EarthOptics Products or any code, script, or software forming any part of the EarthOptics Products;
  • use the EarthOptics Products on land or equipment that you do not own or have a right to use or operate;
  • use the EarthOptics Products or Generated Data on behalf of any third party, including in any “service bureau” or similar capacity;
  • use EarthOptics’s data for the procurement of products or any similar products or reproduce/display data and information without the written authorization of EarthOptics; or
  • use the EarthOptics Products or Generated Data other than as expressly permitted under this Agreement.

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Without limiting the foregoing, you cannot use the EarthOptics Products or Generated Data to:

  • develop, evaluate, validate, or enhance any competitive product or service;
  • create derivative works;
  • make competitive comparisons;
  • harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of anyone or to publish material that is false, defamatory, harassing, or obscene;
  • remove or modify any markings or notices of our or our licensors’ proprietary rights; or
  • violate or circumvent, or attempt to do so, any EarthOptics Product security feature, including attempting to access or use any portion of the EarthOptics Products for which you have not paid all due and applicable amounts use or otherwise import, export or re-export the EarthOptics Products or Generated Data in any way that violates any applicable laws or security programs. In particular, but without limitation, EarthOptics Products may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the EarthOptics Product, you represent and warrant that you are not located in any such country or on any such list and that you are not partnering with any person that is in any such country or on any such list.

If you do any of the above, we may suspend or terminate your access to the EarthOptics Products immediately and we will not be responsible in any way for your actions.

Non-Use/Non-Disclosure of EarthOptics Confidential Information

You agree that you will not use any EarthOptics Confidential Information (as defined below) for any purpose other than as required or permitted by the terms of your order. Without limiting the foregoing, you may not use EarthOptics Confidential Information for the procurement of products that are the subject of any order or any similar products or cause such products to be procured from any other source, or reproduce or display such information without our prior written consent. You further agree that you will not disclose or make available to any third party any EarthOptics Confidential Information without obtaining our prior written consent. The non-use and non-disclosure requirements set forth above will not apply with respect to any specific portion of the EarthOptics Confidential Information that you can demonstrate with competent evidence: (a) was in or entered the public domain through no fault of yours, or (b) was disclosed to you by a source other than EarthOptics (and otherwise not in violation of EarthOptics’s rights) free of any confidentiality obligations.

All EarthOptics Confidential Information shall be and remain the property of EarthOptics and EarthOptics retains all right, title and interest in EarthOptics Confidential Information, including any information or data furnished to you in connection with EarthOptics’s provision of services to you.

For purposes of this Agreement, “EarthOptics Confidential Information” means any and all technical and non-technical information provided or made available by EarthOptics to you, which may include, without limitation, information, ideas, data, techniques, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs (either source of object code), agricultural product formulations, and formulae related to the current, future, or proposed products and/or services of EarthOptics or the business of EarthOptics, along with any other information that you reasonably should have known was the confidential information of EarthOptics.

EarthOptics's Rights and Obligations

EarthOptics may:

  • make the EarthOptics Products available for ordering, subscription, or licensing through our own sales staff or through authorized third-party dealers or representatives;
  • provide or make available updates, upgrades, releases, and/or fixes to the EarthOptics Products, in which event:
  • you must install or use the most recent version of the EarthOptics Products and abide by any additional requirements related to such version;
  • we will try to notify you of any changes we make to the EarthOptics Products, though this may not always be possible and is not required;
  • we will not be responsible in any way for the use of an outdated version of a EarthOptics Product; and
  • any such update may result in a change, or discontinuation, of features of the EarthOptics Products.
  • use your feedback for any purpose without restriction;
  • if you contact us, confirm your identity to ensure you are who you say you are and to better protect your privacy and
  • assign this Agreement to any successor to our relevant business or assets, whether by merger, sale of stock, sale of assets, or otherwise.

Your Information and Data

  • By uploading, inputting, transmitting, storing, or otherwise making Data available to the EarthOptics Products, you agree that we may use, display, perform, reproduce, modify, and distribute such Data in connection with the EarthOptics Products, and without any compensation paid to you, and you hereby grant to EarthOptics the right and license to do so.
  • We will collect, use, and share your information in accordance with our Privacy Policy (as may be amended from time to time), which is incorporated by reference into, and made a part of, this Agreement.
  • If you proactively choose to, you can give your Sales Representative and other third parties access to certain Data and Generated Data in your account.
  • You can provide or revoke such access at any time in your account settings, by sending an e-mail to support@EarthOptics.ag or a written Notice to us as set forth in the section entitled “Notice and Electronic Communications” below.
  • If any of your Data is generated or transmitted by or through any third-party equipment, hardware, or software products and you submit a product support request to us that relates to such third-party equipment, hardware or software product, then we may share your Data with the provider of such equipment, hardware or software product solely as necessary to resolve that product support request, provided that such provider agrees not to use or disclose your Data other than to resolve that product support request.
  • If you do not want us to share your Data with the provider of any of your third-party equipment, hardware, or software products, you must send an e-mail to support@EarthOptics.ag or a written Notice to us as set forth in the section entitled “Notice and Electronic Communications” below. Please note that not allowing us to share your Data with the provider may make it more difficult for EarthOptics or that provider to troubleshoot and resolve your issue effectively.

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Digital Millennium Copyright Act:

We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the EarthOptics Products, you may contact our Designated Agent at the following address:

EarthOptics, 2461 S. Clark Street, Suite 840, Arlington, VA 22202

Email: ask@earthoptics.com

  • Any notice alleging that materials hosted by or distributed through the EarthOptics Products infringe intellectual property rights must include the following information:‍
  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
  • A description of the copyright-protected work or other intellectual property right that you claim has been infringed;
  • A description of the material that you claim is infringing and where it is located on the EarthOptics Products;
  • Your address, telephone number, and email address;
  • A statement by you that you have a good faith belief that the use of those materials on the EarthOptics Products is not authorized by the copyright owner, its agent, or the law; and
  • A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

EarthOptics will promptly terminate without notice the accounts of users that are determined by EarthOptics to be "Repeat Infringers." A Repeat Infringer is a user who has been notified of infringing activity or has had user content removed from the EarthOptics Products at least twice.

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Ownership

  • As between EarthOptics and you, we are the sole owner of the EarthOptics Products and Generated Data, and all associated technology and intellectual property rights, and we reserve all rights in and to the EarthOptics Products and Generated Data. We do not grant you any rights or licenses under any of our technology or intellectual property rights, except as expressly granted in this Agreement.
  • You retain all rights, title, and interest (including all intellectual property rights) in and to the Data that you provide to us, subject to the license granted to EarthOptics as set forth below. You acknowledge and agree that EarthOptics will be the sole owner of, and will retain all rights, title, and interest (including all intellectual property rights) in, the Samples and Generated Data, and that you have no rights therein except as expressly set forth in this Agreement. You hereby: (a) represent and warrant that, immediately prior to the assignment to EarthOptics hereunder, you own all right, title and interest including all moral, proprietary and intellectual property rights in and to the Samples or otherwise have all rights to irrevocably assign to EarthOptics ownership of the Samples (and, to the extent that any other party held any rights therein, such party previously has transferred all such rights to you); (b) represent and warrant that you own all right, title and interest including all moral, proprietary and intellectual property rights in and to the Data; (c) irrevocably and in perpetuity assign to EarthOptics all right, title and interest in and to the Samples, along with any right, title or interest you may have in the Generated Data, free and clear of any claims or encumbrances and without any compensation to you or any other party, and designate and permit EarthOptics (its agents or attorneys’ in fact) to act for, on behalf of and in your stead to execute and file documents and do all other lawfully permitted acts to perfect and protect EarthOptics’s ownership in the Samples and Generated Data as if executed by you; (d) grant to EarthOptics the non-exclusive, fully paid up, royalty-free, sub-licensable, transferable, perpetual, irrevocable and worldwide right (i) to use the Data, and all derivatives thereof to support, maintain and improve the EarthOptics Product, for marketing or distribution to third parties, and for all other business purposes on a non-identifiable, anonymous, aggregated basis and (ii) to use and incorporate into EarthOptics Products any modifications, enhancements, ideas or suggestions that you or your personnel request, recommend or otherwise suggest to us; and (e) agree that the Generated Data are provided by EarthOptics for your internal business purposes and use only and may not be made available by you to third parties for any purposes (other than to agronomists or consultants providing you services based on the Generated Data) without EarthOptics’s prior written consent.
  • Further to the foregoing assignment, you (a) acknowledge and agree that EarthOptics has full right and authority to use the Samples, and to permit others to use the Samples for any and all purposes, (b) voluntarily and fully release EarthOptics from any obligation to make any payment or other compensation to you or any third party in connection with (i) EarthOptics’s ownership of the Samples, (ii) any use of the Samples by EarthOptics or others, or (iii) any information, data, results, materials or intellectual property rights that are obtained directly or indirectly through use of the Samples including, without limitation, any commercial products, microorganisms or molecules that may be identified, isolated or derived from the Samples and (c) you agree to take all further acts reasonably required to evidence such assignment and transfer to EarthOptics.

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Subscription Auto-Renewal, Subscription Fees and Payment‍

Subscription Fees

  • Prices for fee-based EarthOptics Product subscriptions may change in the future. Unless otherwise provided in the applicable order, the subscription fees for any renewed subscription will be the applicable list price for such EarthOptics Product in effect when the subscription renews.
  • Except as expressly provided in the applicable order, renewal of promotional or one-time priced subscriptions will be at our applicable list price in effect at the time of the applicable renewal.
  • Notwithstanding anything to the contrary, any renewal in which the subscribed services or acres have changed from the prior subscription term may result in re-pricing at the time of renewal without regard to the prior subscription term’s pricing.
  • If the price for your fee-based EarthOptics Product subscription changes for the renewal term, we will notify you in advance of the applicable renewal term.
  • If you do not agree to the fee change, your sole and exclusive remedy is to cancel the automatic renewal of your subscription by contacting EarthOptics Customer Support at support@EarthOptics.ag within 30 days of the notice of any fee change.

Payment

  • You agree to pay: (i) when due, all amounts set forth in the applicable order for any fee-based EarthOptics Product and, (ii) at the time of renewal, the applicable subscription fees for any renewed EarthOptics Product subscription.
  • Subscription fees and prices for EarthOptics Products listed in an order and for any renewed EarthOptics Product subscriptions are exclusive of taxes, and you will be responsible for all applicable taxes, except for taxes based on EarthOptics’s income. If we have the legal obligation to pay or collect any taxes for which you are responsible, you will be required to pay us that amount unless you provide us with a valid tax exemption certification authorized by the appropriate taxing authority.
  • Unless otherwise specified, overdue amounts will accrue interest at the lesser of 1.5% per month or the highest rate allowed by law.
  • If you have provided us with your payment information (including credit-card, debit-card or bank-account information), you authorize us to charge your payment method for the fees due for your use of the EarthOptics Products.
  • We may provide your payment information and related personal data to third parties for payment processing and fraud prevention purposes.
  • You will provide us with valid and up to date payment information.
  • We may seek pre-authorization of your credit-card or debit-card account to verify that the card is valid and has the necessary funds or credit available to cover your payment.
  • If a payment is not successfully settled for any reason, you remain responsible for any uncollected amounts.
  • You may edit your payment information at any time in your account settings, or by sending an e-mail to support@EarthOptics.ag or a written Notice to us as set forth in the section entitled “Notice and Electronic Communications” below.
  • You may withhold payment for fees that you reasonably and in good faith dispute as owing, but you must pay any undisputed fees.
  • You must notify us in writing of any such disputed fees within 15 days of the invoice date and provide us with written details about why you dispute the invoice.
  • After we receive notice of the dispute, we will work with you in good faith to resolve the dispute.
  • If your subscription fee payment is overdue, we may suspend your account access until such amounts are paid in full.

Other Important Legal Information

Limitations on liability and damages for use of EarthOptics Products:

  • Use of the EarthOptics Products and Generated Data is at your sole risk.
  • We do not promise that your use of the EarthOptics Products will be uninterrupted or that the EarthOptics Products or Generated Data will meet your requirements, be accurate or be error-free.
  • THE EARTHOPTICS PRODUCTS AND ANY SERVICES PERFORMED OR GENERATED DATA PROVIDED BY OR THROUGH THE EARTHOPTICS PRODUCTS ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF YIELD RESPONSE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED UNLESS AND TO THE EXTENT EXPRESSLY SPECIFIED IN THE SALES CONTRACT BETWEEN YOU AND EARTHOPTICS IN RELATION TO AN INSURANCE OR WARRANTY OFFERING.
  • No oral or written information or advice given by us or our authorized third-party representatives will create a warranty.
  • The disclaimers and exclusions in this Agreement will apply notwithstanding any failure of the essential purpose of any limited remedy.
  • Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.
  • IN NO EVENT WILL EARTHOPTICS OR OUR AFFILIATES, OR OUR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, STOCKHOLDERS, AGENTS, SUCCESSORS, LICENSORS OR SUBCONTRACTORS, BE LIABLE TO YOU FOR (I) SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR (II) LOSS OF PROFITS, LOSS OF CROPS OR YIELD, LOSS OF DATA, THE COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES INCURRED, AS A RESULT OF YOUR ORDER OR THE PRODUCTS OR SERVICES PROVIDED BY EARTHOPTICS OR ITS AFFILIATES (INCLUDING THE GENERATED DATA) OR YOUR USE OR INABILITY TO USE THE EARTHOPTICS PRODUCTS OR OTHER SERVICES OR A DECISION MADE OR ANY ACTION TAKEN BY YOU IN RELIANCE ON THE EARTHOPTICS PRODUCTS, GENERATED DATA OR ANY RESULTS OBTAINED FROM THEIR USE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE), UNLESS AND TO THE EXTENT EXPRESSLY SPECIFIED IN THE SALES CONTRACT BETWEEN YOU AND EARTHOPTICS IN RELATION TO AN INSURANCE OR WARRANTY OFFERING.
  • Certain features of the EarthOptics Products may permit you to upload or otherwise make Data available to the EarthOptics Products. You are solely responsible for your Data and the consequences of uploading or otherwise making Data available to the EarthOptics Products.
  • We have no responsibility and will incur no liability whatsoever, arising from or related to Data not owned by you or any disclosure or use of your Data by a third party that you have granted access to your EarthOptics Product or information.
  • We are not responsible for any delays, limitations, delivery failures, losses, or damages resulting from the transfer and transmission of data over communications facilities, including the Internet.
  • We are not responsible for any delays in delivery and performance of other contractual obligations under an Order caused by acts or omissions that are beyond our reasonable control. If the excusable delay circumstances extend for six months or more, either party may, at its option, terminate the Order without penalty or liability.
  • In the event that you collect soil and related farm samples yourself for delivery to EarthOptics in service of supporting the EarthOptics Product, how you collect, label, package, and send, and the condition and quality of the samples when received, have a significant impact on the accuracy of the test results. You are responsible for following EarthOptics submission instructions, all applicable laws and regulations in the collection and submission of the samples, and for the integrity, accuracy, and reliability of the information and metadata you provide along with the sample or online. The method of sample collection and accurate recording of metadata is essential to the results received from testing and analysis. Failure to comply with the instructions, improper sample collection, or incomplete or defective recording of metadata may result in sample contamination, sample rejection, require sample replacement, testing delays, inaccurate or incomplete testing, and additional cost and expense to you. EarthOptics is not responsible for samples or lost or damaged samples resulting from inappropriate or improper packaging, labeling/data input, transmission of the sample, or other factors outside of its control and reserves the right to reject any sample and/or to suspend any services without notice or liability.
  • OUR MAXIMUM LIABILITY ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT OR ANY EARTHOPTICS PRODUCT OR GENERATED DATA OR ANY SERVICES WE PROVIDE WILL BE THE ACTUAL AMOUNTS YOU PAID TO US FOR SUCH EARTHOPTICS PRODUCT OR SERVICES DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE RELEVANT CLAIM ARISES UNLESS EXPRESSLY SPECIFIED IN THE SALES CONTRACT BETWEEN YOU AND EARTHOPTICS IN RELATION TO AN INSURANCE OFFERING
  • Unless otherwise prohibited by applicable law, if an action or lawsuit arising out of or related to this Agreement or a EarthOptics Product or Generated Data is not commenced within one (1) year after the cause of action accrues, such cause of action is permanently barred.

Indemnity:

You agree to defend, hold harmless, and indemnify EarthOptics and our Affiliates, and each of our respective employees, officers, directors, stockholders, agents, successors, licensors, and subcontractors, from and against any claim, lawsuit, liability, damage, loss, or expense, including without limitation reasonable attorneys’ fees, arising out of or connected with:

  • Your access to, or use of, the EarthOptics Products or Generated Data;
  • Your violation of any portion of this Agreement or any applicable law or regulation;
  • The failure of any of your representations or warranties set forth in this Agreement to be true and correct;
  • Your violation of any third-party right, including any intellectual property right; and/or
  • Any dispute or issue between you and any third party.

We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

Third-Party Services:

  • You are solely responsible for all requirements for access to or use of the EarthOptics Products through your mobile device, internet, or telecommunications provider, or the terms related to the use of any required additional software.
  • The EarthOptics Products may contain certain third-party software provided under separate licenses or enable access to third-party websites, services, content, or materials.
  • The terms and conditions of the applicable license control the use of any third-party software, websites, services, content, or materials.
  • You bear all risk and will be solely responsible for obtaining any necessary rights and licenses, for any use of or access to any third-party software, websites, services, content, or materials.‍

Effective Date & Termination:

  • This Agreement will become effective when you first indicate your acceptance of this Agreement or on the effective date set out on your applicable order, whichever is earlier.
  • You may terminate this Agreement (close your account) or cancel an order for a fee-based EarthOptics Product at any time with notice to us.
  • If you cancel an order for a fee-based EarthOptics Product within 30 days from the applicable order date, but prior to completion of any related in-field activities or sampling, we will refund amounts already paid by you with respect to that order.
  • If you cancel an order for a fee-based EarthOptics Product within 30 days from the applicable order date, but after completion of any related in-field activities or sampling, we will refund amounts already paid by you with respect to that order that are in excess of the cost associated with the completion of the in field activities and sampling
  • If you cancel an order for a fee-based EarthOptics Product more than 30 days from the applicable order date, then you will be responsible for all subscription fees with respect to that order and will not be entitled to any credits or refunds as a result of such convenience termination for prepaid but unused EarthOptics Products.
  • Any such cancellation will automatically terminate this Agreement with respect to the EarthOptics Product associated with that order, subject to any survival provisions in this Agreement.
  • Either you or EarthOptics may terminate this Agreement if the other party materially breaches this Agreement and fails to remedy the breach within 30 days of notice of such breach.
  • If you terminate this Agreement because of a breach by EarthOptics, we will refund amounts already paid by you for any active subscriptions or orders at the time of termination for acres that have not yet been sampled. You are not entitled to a refund of any amounts paid for acres that have been sampled as of the termination date. If EarthOptics terminates this Agreement because of a breach by you, you will be responsible for all subscription fees for any active subscriptions or orders at the time of termination and will not be entitled to any credits or refunds as a result of such termination for prepaid but unused EarthOptics Products.
  • We may terminate this Agreement with respect to any EarthOptics Product if: (i) we no longer offer the EarthOptics Product; (ii) you do not pay your applicable amounts on time; (iii) your continued use of the EarthOptics Product violates this Agreement, any applicable law or regulation, or any third party rights; or (iv) we believe that your account has been accessed without your authorization.
  • If we or you terminate this Agreement or cancel an order with respect to any EarthOptics Product, then your right to use or access such EarthOptics Product will be terminated immediately, and you must immediately stop using such EarthOptics Product (if software), or you will no longer be able to access or use such EarthOptics Product (if a service), as applicable.
  • Upon termination of this Agreement, EarthOptics may continue to use the Data, Samples, and Generated Data in accordance with this Agreement and is not required to remove them from any of our libraries, databases, or other systems and Services. For the avoidance of doubt, the Samples and Generated Data are owned by EarthOptics.
  • The following sections or provisions will survive any termination of this Agreement: “Non-Use/Non-Disclosure of EarthOptics Confidential Information,” “Your Information and Data,” “Digital Millennium Copyright Act,” “Ownership,” “Other Important Legal Information” (including without limitation that related to liability limitation, warranty disclaimers, and indemnity), “Governing Law, Dispute Resolution and Arbitration,” “Force Majeure,” “Additional Requirements for Apple App,” “Notice and Electronic Communications,” “Electronic Contracting,” “Definitions” and the prohibitions and restrictions related to the EarthOptics Products set forth under the “You agree that you will not” portion of the “Your Use of the EarthOptics Products” section, along with any provisions related to payment, such as under “Prices and Payments,” in the event amounts are due to EarthOptics following termination.

Order of Precedence; Entire Agreement:

  • The terms of an order for a EarthOptics Product will control over conflicting terms in this Agreement, but only with respect to the EarthOptics Products in such order. You and EarthOptics may also enter into a separate signed contract governing your use of a EarthOptics Product. In that case, the order of precedence, with respect to that EarthOptics Product only, will be (1) the signed contract, (2) the applicable order, and (3) this Agreement.
  • This Agreement, together with the Privacy Policy, all of your orders for any EarthOptics Products, any separately signed contract governing your use of a EarthOptics Product, and all other related schedules and exhibits, constitutes the entire agreement between you and EarthOptics pertaining to your use of the EarthOptics Products and supersedes all other agreements previously existing between you and EarthOptics regarding your use of the EarthOptics Products.

Other Terms:

  • The parties will perform under this Agreement as independent contractors. This Agreement does not create a joint venture, partnership, or formal business organization of any kind. This Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective heirs, executors, successors, and assigns. The unenforceability of any provision will not affect any other provision in this Agreement, and any unenforceable provisions will be limited or eliminated to the minimum extent necessary. Failure to insist upon the performance of, or to exercise any rights under, this Agreement will not be construed as a waiver of any future performance or the future exercise of any such right. All rights and remedies under this Agreement are cumulative and in addition to any other rights and remedies available at law. Those provision(s) whose context indicates that it is intended to survive will survive termination or expiration of this Agreement.

Governing Law; Dispute Resolution & Arbitration

Governing Law:

  • This Agreement and all conduct, disputes, and causes of action related to this Agreement will be governed by the laws of the State of California, without reference to conflict of law principles.
  • The Uniform Computer Information Transactions Act and the UN Convention on Contracts for the International Sale of Goods are explicitly disclaimed.

Dispute Resolution & Arbitration:

  • You and EarthOpticsree that every dispute arising in connection with this Agreement will be resolved by binding arbitration, subject to the exceptions below.
  • Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
  • This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND EarthOptics ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
  • Exceptions. Despite the provisions above, either party may: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable agency if that action is available; (c) seek injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
  • Arbitrator. Any arbitration between you and EarthOptics will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at adr.org, by calling the AAA at 1-800-778-7879, or by contacting EarthOptics.
  • Notice; Process. A party who intends to seek arbitration must first send a written Notice of the dispute to the other party as set forth in the section entitled “Notice and Electronic Communications” below. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will use good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or EarthOptics may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or EarthOptics must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, EarthOptics will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by EarthOptics in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
  • Fees. If you commence arbitration in accordance with this Agreement, the payment of any fees will be decided by the AAA Rules. If the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance-based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules. Any arbitral hearing will be conducted in the county (or parish) of your billing address. If the arbitrator finds that either the substance of a claim or the relief sought by either party is frivolous or brought for an improper purpose (as measured by the standards set forth in the Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and you agree to reimburse EarthOptics for all monies previously disbursed by us that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rules and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
  • No Class Actions. YOU AND EarthOpticsREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE. Further, unless both you and EarthOpticsree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative class or proceeding.
  • Modifications. If EarthOptics makes any future changes to this arbitration provision (other than a change to EarthOptics’s address for Notice), you may reject the change by sending us written notice within 30 days of the change, in which case your subscription and access to the EarthOptics Products will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you reject, will survive.
  • Enforceability. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding agreement to arbitrate. If the subsection entitled “No Class Actions” above is found to be unenforceable, then the entirety of this section entitled “Dispute Resolution and Arbitration” will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described separately in this Agreement will govern any action arising out of or related to this Agreement. Except for the subsection entitled “No Class Actions” above, if any provision of this section entitled “Dispute Resolution and Arbitration” shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect.
  • IF A LAWSUIT OR COURT PROCEEDING IS PERMITTED UNDER THIS AGREEMENT, THEN YOU AND EarthOpticsREE TO SUBMIT TO THE PERSONAL AND EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA FOR THE PURPOSE OF LITIGATING THE DISPUTE.

‍Force Majeure

  • Except for payment obligations, neither you nor EarthOptics will be in breach of this Agreement or responsible for damages caused by delay or failure to perform any of its obligations under this Agreement due to circumstances beyond the control of the claiming party.

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Updates to this Agreement

  • We may change this Agreement at any time, and we will try to let you know as soon as possible when we have made any changes, such as by sending an e-mail to you, by posting a notification on the EarthOptics Products, or other similar mechanism. You can view the most current version of this Agreement at: https://EarthOptics.ag/end-user-li.... The “Last Updated” legend at the top of this page indicates when this Agreement was last revised. Any changes to this Agreement will become effective upon the earlier of (a) your first use of the EarthOptics Products with actual notice of such changes or (b) 30 days after we post or distribute the revised Agreement, and such changes will apply to your use of the EarthOptics Products after the effective date of the revised Agreement. If you do not wish to accept the new Agreement, you must stop using the EarthOptics Products.

Additional Requirements for Apple App

  • If you are using the EarthOptics Products through mobile application software on an Apple Inc. (“Apple”) device, including any iPhone, iPod touch or iPad devices (“Apple App”), you further acknowledge and agree to the following: (i) this Agreement is between you and EarthOptics only, not with Apple, and Apple is not responsible for the Apple App or EarthOptics Products; (ii) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App; (iii) you may use the Apple App on any Apple device you own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service; (iv) in the event of any failure of the Apple App to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the Apple App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apple App; (v) EarthOptics (and not Apple) is responsible for addressing any claims by you or any third party relating to the Apple App or your possession and/or use of the Apple App, including: (1) product liability claims; (2) any claim that the Apple App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation; (vi) in the event of a third party claim that the Apple App and/or your possession and use of the Apple App infringes that third party’s intellectual property rights, EarthOptics (and not Apple) is responsible for the investigation, defense, settlement and discharge of any such claim to the extent any such obligation exists; (vi) Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement solely with respect to this paragraph; (vii) you represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

Notice & Electronic Communication

  • Any applicable notice, disclosure, authorization, acknowledgment, or other document required to be given or made available (“Notice”) will be in writing and delivered by mail or e-mail (where permitted) or by text message. The receiving party will be deemed to have received such Notice upon delivery or transmission or, in the case of mail, 48 hours after mailing.

Notice to us must be sent to:

  • EarthOptics, 1250 45th St, suite 340, Emeryville, CA 94608
  • Email: support@EarthOptics.ag
  • By installing, downloading, activating, or using a EarthOptics Product, you expressly consent and agree that we may send you all Notices electronically to your primary e-mail address provided in your account or via text message to your primary mobile phone number provided in your account. You also agree that we may send you other information related to EarthOptics, the EarthOptics Products, or your account via mail, e-mail (where permitted), or text message. Data and/or text message fees may apply.
  • Any Notices, agreements, disclosures, or other communications that we send to you electronically (including by e-mail or text message) will satisfy any legal communication requirements, including that such communications be in writing.
  • At any time, you may: (1) request a paper copy of any Notice provided or made available electronically to you by us, free of charge, and/or (2) withdraw your consent to receive future Notices electronically. Please send an e-mail to support@EarthOptics.ag or a written Notice to us at the address above with such request(s) and provide your mailing address for the Notices.
  • It is your responsibility to keep your primary e-mail address and the primary mobile phone number associated with your account up to date so that we can communicate with you electronically.
  • If we send a Notice to your primary e-mail address on file and your primary e-mail address on file is incorrect, out of date, or blocked by your service provider, or if we send a Notice to the primary mobile phone number associated with your account and the phone number is incorrect, out or date, or blocked, or if you are otherwise unable to receive electronic communications, we will be deemed to have provided the Notice to you.
  • You may need to add us to your contacts or e-mail address book so that you will be able to receive the Notices we send to you.
  • If electronic Notices sent to you by us are returned because of an invalid e-mail address or phone number, we may deem your account to be inactive, and you will not be able to transact any activity using your account until we receive a valid, working e-mail address or mobile phone number from you.

If you want to change your e-mail address and/or the mobile phone number associated with your account where we should send electronic Notices, you can:

  • send an e-mail message to us at support@EarthOptics.ag, and in the body of such request, state your previous e-mail address and/or mobile phone number and your new e-mail address and/or mobile phone number; or
  • update your primary e-mail address or mobile phone number at any time in your account.‍

‍Electronic Contracting

  • Your installation, downloading, activation, or use of the EarthOptics Products and internet sites for ordering such EarthOptics Products includes the capacity and ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS AND TO PAY FOR SUCH TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO YOUR EARTHOPTICS PRODUCTS, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS, SUBJECT TO YOUR RIGHT TO WITHDRAW CONSENT TO RECEIVE NOTICES ELECTRONICALLY AS PROVIDED IN THIS AGREEMENT. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.

Definitions

  • “Affiliate” means any subsidiary or other entity that directly or indirectly is controlled by, or is under common control of, an entity.
  • “EarthOptics Products” means the following items provided by us to you, regardless of naming or branding, either alone or in combination with each other or with hardware: (i) farm management, agriculture decision support, and precision agriculture software, in any form, or software as a service and similar products, (ii) services performed on the farm and in the field, such as soil and tissue sampling, (iii) the websites, applications, and technology platforms that deliver, or allow you to access, these software or software as a service products or services, including our website located at EarthOptics.ag; or (iv) all related documentation, updates, upgrades, releases, and fixes.
  • “Data” means the location, field map or boundary, weather, climate, agronomic, crop loss, crop yield, environmental, farming practice, account information, and other information and data that is uploaded, inputted, transmitted, imported or stored to or in your EarthOptics Products, directly by you or your Sales Representative or through your equipment.
  • “Samples” means the soil received by EarthOptics, and other data and information submitted with them or online including providing the following required Sample Data Submission Fields:
  • Sample ID
  • Sample name
  • Farm
  • Field
  • Latitude
  • Longitude
  • Sampling date
  • Depth
  • “Generated Data” means data, features, functionality, tools, analyses, results, estimates, recommendations, and other information generated, published, displayed, transmitted or made available in or by the EarthOptics Products other than Data, whether or not related to Data.
  • “Sales Representative” means your dealer that sold your EarthOptics Product subscription(s) to you.