Farm-ng Terms and Conditions of Sale And License Agreement

 

IMPORTANT - READ CAREFULLY. THIS FARM-NG, INC. TERMS AND CONDITIONS OF SALE AND LICENSE AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN RELATIONSHIP BETWEEN FARM-NG, INC. (“FARM-NG” OR “WE” OR “US”) AND THE OTHER PARTY AGREEING TO THIS AGREEMENT (EITHER AN INDIVIDUAL OR AN ENTITY YOU REPRESENT; “LICENSEE” OR “YOU”) AND THE RELATED TERMS AND CONDITIONS APPLICABLE TO YOUR PURCHASE OF ANY FARM-NG ROBOT (“ROBOT”) AND YOUR LICENSE OF ANY SOFTWARE INSTALLED ON OR DELIVERED WITH THE ROBOT (THE “SOFTWARE”). IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD NOT PURCHASE OR USE THE ROBOT, AT WHICH POINT YOU WILL NOT BE GRANTED ACCESS TO THE ROBOT OR THE SOFTWARE. DO NOT PURCHASE OR USE UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU PURCHASE OR USE, YOU WILL BE GRANTED ACCESS TO THE ROBOT AND LICENSE THE SOFTWARE, AND THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”).

 

IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF ANY ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO PURCHASE AND USE ROBOTS AND TO ENTER INTO THIS AGREEMENT.

 

1. Orders; Shipping and Delivery; Payment Terms.

1.1 Orders. You may purchase Robots and license Software by agreeing to this Agreement and submitting an Order to Farm-Ng. For purposes of this Agreement, an “Order” means any document (including any web form) agreed to between the parties which sets forth the products purchased or licensed by the Licensee and any relevant pricing. Multiple Orders may be entered into under this Agreement.

 

1.2 Shipping and Delivery. Robots will be shipped to you by Farm-ng. Any estimated arrival or delivery date is not a guaranteed delivery date for your order. The Software will be shipped pre-installed on the Robot, but any enhancements, modifications, or additions to the Robot or the Software, as may be made available from time to time by Farm-ng to Licensee (“Updates”) may be available by electronic delivery.

 

1.3 Payment Terms; Taxes. Payment must be made at the time of order. Except as otherwise expressly set forth in this Agreement, all payments accrued or made under this Agreement are non-cancelable and nonrefundable. Farm-ng shall be entitled to reimbursement for any costs actually incurred by Farm-ng for the collection of any past-due balance. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Any taxes related to the Robot or the Software (except for taxes imposed on Farm-ng based on Farm-ng’s income) will be paid by you, or you will present an exemption certificate acceptable to the taxing authorities.

 

2. Intellectual Property Ownership; Software License; Restrictions.

2.1 Ownership by Farm-ng. The Robot and the Software contain proprietary and confidential information of Farm-ng and its licensors. Except to the extent licenses are expressly granted hereunder, Farm-ng and its licensors retain all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to the Robot and the Software. In addition, Farm-ng shall own all right, title and interest, including all intellectual property rights, in and to any intellectual property created by Farm-ng and delivered to Licensee pursuant to this Agreement or otherwise created by Farm-ng in the course of providing the Robot or the Software or any Support under this Agreement.

 

2.2 License Grant by Farm-ng. Subject to and in consideration of timely payment by the Licensee of the fees hereunder, and of Licensee’s compliance with the other terms and conditions of this Agreement, Farm-ng hereby grants to the Licensee, solely during the applicable Term specified in an Order, a royalty free, limited, personal, non-exclusive, non-transferable (except as otherwise expressly allowed by this Agreement), non-sublicensable license: (i) to access and use the Software solely to operate the Robot via the hardware included with the Robot (the “Brain”).

 

2.3 Restrictions to Software License Grant by Farm-ng and Restrictions on Use of the Robot. Licensee agrees that it will not without express written permission of Farm-ng: (a) reverse compile, disassemble, decompile or engineer, copy, modify, adapt or create derivative works of or from the Robot or the Software or any part thereof, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Robot or the Software; (b) interfere or attempt to interfere in any manner with the functionality or proper working of the Robot or the Software (including by disabling or circumventing any features or functionality); (c) copy the Robot or the Software or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement); (d) access or use the Robot or the Software or Documentation in order to build a competitive product or service; or (e)) use the Robot or the Software in any unlawful manner, or in violation of any applicable laws or regulations.

 

3. Your Data; Your License to Farm-ng; Feedback.

3.1 Your Data. Your Data non-public data provided by you to Farm-ng to enable Farm-ng to provide the Robot, Software or Support, or which Farm-ng may use to improve its product offerings. Your Data may include data, information, sound, photographs, moving visual content, or other material with either you submit to Farm-ng or which the Robot or the Software collect and transmit to Farm-ng.

 

3.2 Your License Grant to Farm-ng. Licensee grants to Farm-ng a non-exclusive, transferable, worldwide, royalty-free license to use, copy, license to store, record, transmit, maintain, reproduce, modify, adapt and perform Licensee Data solely as reasonably required to operate and provide the Robot, Software or Support. In addition, and despite anything to the contrary in this Agreement, Farm-ng shall have the right to collect and analyze Licensee Data and other information relating to the provision, use and performance of various aspects of the Robot and the Software, and Farm-ng to use such information and data (solely in aggregate or other de-identified form in connection such that neither Licensee nor any individual may be identified from such data) for the purpose of analytics and to improve and enhance the Robot, Software or Support.

 

3.3 Feedback. Licensee agrees that any information or feedback Licensee may provide to Farm-ng related to the Robot, Software or Support is non-confidential and Licensee grants to Farm-ng a non-exclusive, worldwide, fully paid up, perpetual and irrevocable license to use, share, commercialize, and otherwise exploit this information/feedback in Farm-ng’s business activities without restriction and without payment or accounting to Licensee or any third party.

 

4. Safety; No Certifications.

4.1 Robot Safety. The Robot is a potentially dangerous robot. All users must carefully read all safety instructions prior to using the Robot. You are solely responsible for your own safety and for determining whether you have adequate skill and experience to operate and use the Robot.

 

4.2 Accuracy of Information. We attempt to ensure, but we cannot guarantee, that all information on farm-ng.com is complete, accurate and current.

 

4.3 No Certifications. Farm-ng’s products are not subjected to any kind of compliance testing, nor are the products certified to meet any particular requirements.

 

5. Support; Warranties; Disclaimers.

5.1 Technical Support. Farm-ng will use reasonable efforts to provide technical support (“Support”) to you during the Term of your license to the Software. Any such Support will be provided via electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays.

 

5.2 Limitations on Support. Farm-ng shall have no support obligations under this Agreement if you modify, service or maintain the Robot in any way and not at Farm-ng’s direction.

 

5.3 Limited Warranty. Subject to each of the other provisions of this Agreement, Farm-ng warrants, solely to Licensee, that for 12 months following the initial delivery of the Robot to Licensee (the “Warranty Period”), the Robot will be free from manufacturing defects and the Robot and the Software will be capable of functioning substantially in accordance with the instruction manuals, user guides, and other information to be made available from time to time by Farm-ng in either printed or electronic form to the Licensee (the “Documentation”).

 

5.4 Warranty Limitations. The warranty provided in this Section will not apply if: (i) Licensee fails to notify Farm-ng in writing during the Warranty Period of any such breach; (ii) Licensee fails to promptly provide Farm-ng with as detailed as possible description of any claimed defect or malfunction; or (iii) Licensee fails to implement all Updates to the Robot or the Software made available at no charge to Licensee during the Warranty Period.

 

5.5 Warranty Remedies. If Farm-ng breaches the warranty set forth in this Section, Licensee’s sole and exclusive remedy, and Farm-ng’s sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of Farm-ng, Farm-ng will, at its expense, either: (i) repair or replace the defective Robot or Software to enable it to perform substantially in accordance with the Documentation; or (ii) terminate this Agreement and refund to Licensee any fees prepaid by Licensee to Farm-ng for the defective Robot or Software for any period after the effective date of any such termination.

 

5.6 Support and Warranty Exclusions. Farm-ng’s warranty and Support obligations under this Agreement do not extend to (i) programming services related to, integrating the Robot or Software with, your products or products of third parties; (ii) except in the case of manufacturer’s defects during the manufacturer’s warranty period, repair or replacement of wheels, batteries, battery chargers, exterior enclosures or bulbs; (iii) Defect and malfunction correction in case of Licensee inserting or installing (internally or externally) mounted objects which are not part of the original Product configuration; (iv) Licensee failing to install updated software and firmware recommended and made available by Farm-ng; or (v) defects or malfunctions that are based on non-compliance with the operating conditions for the Robot (including but not limited to use of the Robot in unapproved or unmapped environments).

 

5.7 DISCLAIMERS. EXCEPT AS MAY OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, FARM-NG MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS WARRANTIES, AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FARM-NG DOES NOT WARRANT THAT THE ROBOT OR THE SOFTWARE PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT THE ROBOT OR THE SOFTWARE WILL SUCCEED IN RESOLVING ANY PROBLEM.

 

6. Accessing Support and Updates; Infrastructure.

6.1 Access and Credentials. To access the Support and to receive Updates and to use all features of the Robot and the Software, Licensee must register and account and provide Farm-ng with certain information (such as identification or contact details) as part of the registration process. Licensee shall provide accurate, current and complete information required. Licensee will maintain the accuracy of such information during the use of the Services. Licensee shall maintain proper password security, and maintain the confidentiality of Licensee’s account. Without limiting any other responsibilities Licensee has under this Agreement, Licensee is responsible for the actions of anybody using Licensee’s credentials, to the extent that such other individual did not gain access to the credentials due to an action or inaction of Farm-ng.

 

6.2 Infrastructure. Each party shall retain sole responsibility for such party’s information technology infrastructure, including computers, servers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by such party or through the use of third-party services.

 

7. International Considerations; Export Compliance.

7.1 U.S. Compliance. Farm-ng Robots have been designed, marketed and sold for use by residents of the United States. All safety warnings, information, instructions, packaging, in-box materials, mobile apps, and support services are provided only in English (U.S.). The Robots are not intended for use outside of the United States and may only be purchased by residents of the United States.

 

7.2 Export Regulations. The Robot and the Software are subject to U.S. export controls, including the Export Administration Regulations. You agree to comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. You shall not transfer, export or re-export, directly or indirectly, the Robot or the Software in violation of any export law or regulation, and you affirm that you are not, and are not acting on behalf of, any person or entity on the Denied Persons List, Entity List, Unverified List or Military End User List as published by the U.S. Department of Commerce, Bureau of Industry and Security.

 

8. Limitation of Liability.

8.1 No Indirect Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

8.2 Prohibition of Certain Damages. DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL OR PUNITIVE DAMAGES, FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR (EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER) FOR ANY LOST PROFITS OR LOST REVENUE, IN EACH WHETHER SUCH DAMAGES ARE CHARACTERIZED AS INDIRECT OR OTHER, AND WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, FARM-NG SHALL HAVE NO LIABILTY WITH RESPECT TO (I) ANY PERSONAL INJURY OR DEATH RESULTING FROM THE OWNERSHIP, USE OR OPERATION OF THE ROBOT OR THE SOFTWARE, OR (II) ANY INJURY OR DAMAGE OR ANY KIND RESULTING FROM LICENSEE’S BREACH OF, OR NON-COMPLIANCE WITH, ANY TERM OR CONDITION OF THIS AGREEMENT OR ANY PROVISION OF THE SAFETY GUIDE OR DOCUMENTATION.

 

8.3 Maximum Liability. EXCEPT WHERE OTHERWISE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL FARM-NG’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO FARM-NG UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING ANY CLAIM MADE HEREUNDER.

 

9. Term and Termination.

9.1 Term of Software License. The license to the Software granted under this Agreement shall run for the applicable Term specified in an Order.

 

9.2 Termination. Farm-ng may terminate the Software license, and may otherwise terminate its obligations under this Agreement, upon written notice to Licensee if Licensee breaches any material term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof.

 

9.3 Effect of Termination. Upon termination of this Agreement or any Order, Licensee shall immediately uninstall or destroy (or at the sole option of Farm-ng, return) all copies of the Services and Documentation in its possession or control, and a duly authorized officer of the Licensee shall certify in writing to Farm-ng that the Licensee has complied with such obligation. Any termination of this Agreement pursuant to this Section shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Sections 2.1, 2.3, 3, 4, 5.4, 5.6, 5.7, 7.2, 8, 9.3 and 10, and all accrued rights to payment, shall survive any termination of this Agreement.

 

10. General Terms.

 

10.1 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

 

10.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, at such other address as to which the other party has been notified, or sent by email to the email address as may be provided by one party to the other from time to time.

 

10.3. Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.

 

10.4 Assignment and Sublicensing. Licensee may not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of Farm-ng.

 

10.5 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in Santa Cruz County, California, USA.

 

10.6 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.

 

10.7 Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.

 

10.8 Revisions to this Agreement. This Agreement may be revised at any time and from time to time by Farm-ng updating this posting. You should visit this page from time to time to review the current terms of service. Every time you purchase a Robot from Farm-ng, the Agreement in force at that time will apply between you and Farm-ng.

 

10.9 Entire Agreement. This Agreement constitutes the entire understanding of the parties as to the subject matter hereof and supersedes all prior offers, agreements, arrangements, negotiations and understanding, written or oral between the parties relating to that subject matter. The parties agree that any additional or different terms and conditions contained on, referenced by or incorporated into any purchase order issued by Licensee are expressly rejected and shall not be considered an amendment to this Agreement.