Device Lease and Data Upload Agreement

Last modified: September 06, 2018

This Device Lease and Data Upload Agreement (“Data Upload Agreement” or “Agreement”) provides the terms offered by Teralytic, Inc. (“Agreement”) for your lease of a Teralytic Soil Probe Device (“Device”) and your agreement to upload data from the Device to Teralytic’s servers. Your access to data on Teralytic’s servers is explained in Teralytic’s Data Use Agreement, website Terms of Service and Privacy Policy. “You” means the person or organization signing this Agreement.

  1. Soil Probe Device Lease
    1. Lease. You agree to lease a Teralytic Soil Probe (“Device”) as provided in this Agreement. Your leased Device requires use of embedded Software which is licensed to you as provided below for the duration of the lease. If you lease multiple Devices, this Agreement shall be applicable to each Device.
    2. Term. The lease shall begin upon the date this Agreement is signed by you and shall continue for a period of 1 to 3 years, as selected by you when signing up (the “Term”).
      1. Initial 1-Year Term. If you select an initial 1-Year Term, the lease shall automatically renew for two (2) additional one (1) year terms unless either party notifies the other of cancellation prior to the end of the Term. Each renewal period shall be considered part of the “Term” for purposes of this Agreement. The “Annual Fee” fee for 1-Year Terms shall be:
        1. Year 1: $500/Device
          Year 2: $500/Device
          Year 3: $500/Device
      2. Initial 2-Year Term. If you select an initial 2-Year Term, the lease shall automatically renew for one (1) additional one (1) year term unless either party notifies the other of cancellation prior to the end of the initial Term. Each renewal period shall be considered part of the “Term” for purposes of this Agreement. The “Annual Fee” fee when selecting an initial 2-Year Term shall be:
        1. Year 1: $900/Device
          Year 2: no Annual Fee
          Year 3: $450/Device
      3. Initial 3-Year Term. If you select an initial 3-Year Term, there is no automatic renewal. The “Annual Fee” fee when selecting an initial 3-Year Term shall be:
        1. Year 1: $1200/Device
          Year 2: no Annual Fee
          Year 3: no Annual Fee
    3. Annual Fee. You agree to pay an Annual Fee, due on the first day of initial Term and on the anniversary date as explained above.
    4. Ownership of Device. During the Term, Teralytic owns the Device. Upon conclusion, termination, or non-renewal of the Term you must return the Device to Teralytic, unless Teralytic informs you otherwise.
    5. Ownership of Data. You are the owner of the Data generated by the Device. Teralytic’s Data Use Agreement explains your rights with respect to Data.
    6. Installation. You are responsible for proper installation of the Device according to the product guidelines. Failure to properly install the Device may reduce or eliminate functionality. The Device is not designed to withstand field traffic, crop residue, or other field conditions that may damage the Device’s external casing. Teralytic is not responsible for damage caused due to weather conditions.
  2. Software and Intellectual Property
    1. License to Use the Device’s Software. The Device runs software owned by Teralytic and licensed to you during the Term (“Software”). Teralytic may update the Software during the Term, and this license shall cover any updates. You are granted a limited non-exclusive license to use the Software on a single Device during the Term. You may not distribute, copy, or make the Software available over a network where it could be used by multiple devices at the same time. This License does not grant you any rights to use Teralytic proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third-party devices and accessories, or third-party software applications. You may not, and you agree not to enable others to copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or any services provided by the Software. You may not lease, lend, sell, or sublicense the Software. The obligations of this paragraph shall continue after termination of this Agreement or after the Term ends. Your license to use the Software on the Device ends when the Term ends.
    2. Intellectual Property. All images, patents, trademarks, service marks, logos, icons, and other intellectual property (“Intellectual Property”) displayed on or contained in the Device or Teralytic website are the exclusive property of Teralytic and may not be used without Teralytic’s prior written consent. The obligations of this paragraph shall continue after termination or termination of this Agreement.
  3. Data Upload and Subscription
    1. Data Uploads. The Device collects Data when properly installed and uploads this Data to Teralytic’s servers. During the Term, you consent to allow Teralytic to receive and store your Data on the Teralytic servers and clean your Data by removing perceived errors and omissions. You may not direct your Device to transmit Data to any other location other than Teralytic. Your ability to access, share, and delete Data is explained in Teralytic’s Data Use Agreement.
    2. Subscription Required. Your Device requires an active Teralytic subscriber account in order to access Data uploaded by your Device to Teralytic’s servers. A Teralytic subscriber account may be created at Teralytic’s website and must be maintained throughout the Term in order for you to access Data uploaded by the Device.
    3. Your Personal Information When create an account, Teralytic creates certain unique identifiers to enable Teralytic to record your Device’s Data (as defined in the Data Use Agreement) and associate such information with your account. These unique identifiers are associated with your Personal Information, such as name, address and phone number. Personal Information is defined in Teralytic’s Privacy Policy, which also explains Teralytic’s promise to protect your Personal Information.
    4. Data Security. To prevent unauthorized access, maintain data accuracy, and ensure the correct use of information, Teralytic has established appropriate physical, electronic, and managerial procedures to safeguard and secure the Data collected from your Device. Teralytic will notify you by email if Teralytic has reason to believe that your Data was unlawfully accessed by a third party.
  4. Teralytic Limited Warranty
    1. Limited Warranty for the Term. Teralytic warrants that, under normal use and service, the Device shall be free from material workmanship defects for a period of three years after delivery to you for the duration of the Term (up to 3 years). Teralytic’s sole obligation for warranty defects shall be to correct the failure by repair, replacement, or adjustment, as determined in the Teralytic’s sole discretion. This warranty includes sensor and battery replacement. The warranty provided in this paragraph does not cover defects caused by misuse, misapplication, or other conditions or events caused by you, in which case this warranty is void.
    2. Disclaimer. The Device is designed to provide you with insights into field conditions. Teralytic makes no recommendations regarding in-field or farming decisions. You should not rely on the Device to make in-field or farming decisions. You should always verify the information provided by the Device before making in-field or farming decisions. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED ABOVE, THE DEVICE IS PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TERALYTIC DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM THE USE OF THE DEVICE WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF THE DEVICE WILL MEET YOUR EXPECTATIONS.
  5. Breach and Termination
    1. Breach by You. Upon any breach of this Agreement by you, Teralytic may terminate your use of the Teralytic Web Services, your account, and access to Teralytic servers (without refund of any Subscription Fee) and Teralytic may obtain damages caused by your breach. Your breach shall further constitute a permanent non-exclusive license of your Data to Teralytic for any use Teralytic determines is appropriate. Teralytic shall be entitled to any attorneys’ fees incurred enforcing this Agreement. Teralytic may also seek injunctive relief to prevent you from misappropriating the Software, Web Services, Intellectual Property, or other aspects of the Device.
    2. Breach by Teralytic. In the event of any breach of this Agreement by Teralytic, you shall provide Teralytic with written notice of the breach. Teralytic shall have thirty (30) days to cure the breach. In the event Teralytic fails to cure the breach, this Agreement shall terminate and refund you the remainder of your Subscription Fee for the Term. In any event, Teralytic shall not be liable for indirect or consequential damages, and your recovery shall be limited to a refund of the Annual Fees paid.
    3. Indemnity. You agree to indemnify, defend, and hold harmless Teralytic, including its employees, agents, officers, developers, and licensors, from any damages, costs, claims, injuries, and liabilities (including attorneys’ fees) arising from your use of the Device outside of the scope of this Agreement.
  6. Additional Legal Terms
    1. Modifications Usage of Data is rapidly evolving. Teralytic may update this Agreement during the Term to reflect changes in (a) the law, (b) the Device’s functionality, (c) data sharing options through the Teralytic website, or (d) Teralytic’s agreements with other technology providers. No change in this Agreement shall occur without your continued consent.
    2. Complete Agreement. If any provision of this Agreement is determined to be unenforceable, the remainder of this Agreement shall remain in effect. This Agreement shall be interpreted as drafted by both parties. Any failure by Teralytic to enforce any provision shall not be a waiver of such provision. This Agreement is the complete agreement and understanding between the parties. This Agreement may not be modified or amended except pursuant to a writing executed by both parties.
    3. BINDING ARBITRATION CLAUSE. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York, New York before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
    4. Governing Law. This Agreement is are governed by New York law. Any suit naming Teralytic (including any affiliated company or brand, owners, employees, attorneys, or agents) as a party involving these Terms must be filed in the state courts or federal district court located in New York, and you consent to venue and jurisdiction there. This Agreement creates no third-party beneficiary rights. Teralytic’s failure to enforce any provision in this Agreement is not a waiver of the right to do so at a later date. If any provision is found unenforceable, the remaining provisions of the Agreement will remain in full effect. You may not assign your Teralytic account or any of your rights in this Agreement. Teralytic may assign its rights without your consent. This Agreement does not create an employee, partnership or agency relationship between you and Teralytic.
    5. Notice. If you need to contact Teralytic for any purpose regarding this Agreement, please email info@teralytic.com.
    6. Electronic Signature. The parties agree that this Agreement may be signed electronically. Any electronic signature for this Agreement has the same meaning and effect as a handwritten signature for the purposes of enforceability and admissibility. If you are signing on behalf of an entity, such as company, partnership, or corporation, your signature provides your authorization to bind the entity by this Agreement.