Terms of Service
This Terms of Service Agreement (this "Agreement") is an agreement between You and FlumeLogic ("FlumeLogic", "we", "us" or "our"), a California Limited Liability corporation, and governs your use of the Application (as defined below) and any Equipment (as defined below) installed and maintained by Us for You.
"FlumeLogic" is an application owned and created by FlumeLogic that allows you (the individual or legal entity which has subscribed to the Application) to, amongst other things, remotely monitor the water level associated with your field through the Application (collectively, the "Services").
The Application is designed to be used exclusively in connection with specific water monitoring equipment, including gateways and sensors (collectively, the "Equipment") which are provided by us to you for the term of the subscription.
1. Terms of Service Relating to the Application
1.1 Acceptance of Terms
This Agreement and any supplemental terms govern Your use of the Application. By using the Application, You agree to be bound by the terms of this Agreement. If you do not agree with the terms and conditions of this Agreement, You may not use or download the Application.
1.2 Permitted Uses
Your use of the Services is limited exclusively to the fields within the parcel(s) you provided in your Order (the "Premises"). The Equipment is intended to be used exclusively in connection with the Application and for no other purpose.
1.3 Subscription
To use and access the Application, You must purchase a subscription with us for each field. The term of a subscription is one growing season, typically beginning no sooner than April 15 and ending no later than September 15. Your use of the Application and provision of Equipment is conditional upon your payment of the subscription and we may discontinue or terminate your use of the Application and/or this Agreement without notice in the event you fail to timely pay the subscription fee.
1.4 Disclaimer
The Services offered are novel, under development, and subject to change. As such, the Services can and will experience unplanned downtimes as our testing improves and progresses, and water system data may be inaccurate. Accordingly, you are advised that the Application should not be the primary source of your water level monitoring solution. We are not responsible for crop damage, water damage, or undetected leaks.
1.5 Service Limitations
You understand and agree that We do not and cannot guarantee that the Application will be continuous or error-free and you expressly assume all such risks. The Application can be interrupted for any reason that disrupts internet access, including, without limitation: (a) Electrical power outages; (b) Natural disasters; (c) Electronic interference; (d) An outage affecting the data transport service; (e) Failure of originating or terminating access lines; (f) Compatibility issues; and (g) Equipment failures relating to Your devices or Our equipment, including hardware or software failures or misconfiguration. The Application operates over the public internet, and as such, We cannot guarantee the connectivity and performance of the Application. By using the Application, you expressly assume all such risk and recognize that the Application is being provided on an "AS-IS" basis.
1.6 Ownership of Intellectual Property
The Application, including, without limitation, its object code and source code, whether or not provided to You, is strictly confidential to Us. We own exclusively and reserve all rights, and You may not exercise any right, title, and interest in and to the Application, including all Intellectual Property Rights, except to the extent of the limited rights granted to You in this Agreement.
The Equipment, including its hardware design, configuration parameters, object code and source code, whether or not provided to You, is strictly confidential to Us. We own exclusively and reserve all rights in and to the Equipment.
1.7 Disclaimer of Warranties
FLUMELOGIC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE APPLICATION FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE APPLICATION WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, OR LOSS OF CONTENT. WE PROVIDE THE APPLICATION "AS IS" AND EXPRESSLY DISCLAIM ALL WARRANTIES, CONDITIONS OR OTHER TERMS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES, CONDITIONS OR OTHER TERMS REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, CAPACITY, PERFORMANCE, TITLE, AND NON-INFRINGEMENT.
1.8 Assumption of Risk
YOU RECOGNIZE AND AGREE THAT THE FAILURE OF THE APPLICATION TO FUNCTION AS INTENDED OR AS EXPECTED MAY CAUSE SIGNIFICANT DAMAGE, INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, CROP AND LANDSCAPE FAILURE, SUBSTANTIAL WATER LOSS, LOST PROFITS, LIABILITY TO THIRD PARTIES, FLOODING, OVERFLOWS, AND LEAKS. BY DOWNLOADING AND/OR USING THE APPLICATION, YOU EXPRESSLY ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY BODILY INJURY, PROPERTY DAMAGE, THIRD-PARTY CLAIMS, LOSS OF USE, LOSS OF INCOME AND LOST PROFITS.
1.9 Exclusive Remedy
Your sole right and remedy for breach of this Agreement is to terminate this Agreement, discontinue use of the Application, and return all equipment owned by Us.
1.10 Limitation of Liability
OUR LIABILITY TO YOU SHALL BE LIMITED TO ACTUAL DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, OR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY OUR FRAUD OR INTENTIONAL MISCONDUCT. IN NO EVENT SHALL WE, OUR SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL OUR AGGREGATE LIABILITY EXCEED THE FEES PAID BY YOU TO US OVER THE PREVIOUS FOUR (4) MONTHS.
1.11 Indemnification
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS HARMLESS FROM ANY AND ALL FIRST AND THIRD PARTY CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE APPLICATION, RELATING TO OR ARISING OUT OF THE APPLICATION OR THE USE OF THE APPLICATION. YOU AGREE TO REIMBURSE US FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS' FEES, UNLESS SUCH CLAIMS ARE BASED ON OUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS PROVISION WILL CONTINUE TO APPLY AFTER THE AGREEMENT ENDS.
2. Ownership of the Equipment
2.1 FlumeLogic-Owned Equipment
We are the owner of all Equipment (Gateway and Sensor). We will provide a water-level Sensor near the drainbox of every Check in each Field on the Premises. We or our agent will install, calibrate, monitor, and remove the Equipment for the duration of a single rice crop growing season. You will provide Us the expected planting date and crop seed variety of each field. You will notify us at least seven (7) days prior to the final removal of water from the field, so We can remove the Sensors.
You agree that such Equipment belongs to Us and will not be deemed fixtures or in any way part of the Premises. You may not sell, lease, abandon, or give away such Equipment, or permit any other service provider to use the Equipment. You agree that you will not allow anyone other than Us or our agents to service the Equipment. You are responsible for loss, repair, replacement, and other costs, damages, fees, and charges if you do not return the Equipment to us in an undamaged condition.
2.2 Damaged Equipment Fee
The Equipment operates in a harsh wet, outdoor environment. Gateways and Sensors must remain upright to function properly. You should notify Us if you observe any equipment item at risk of being damaged, so that we may mitigate the risk. Submerging a sensor in water will cause significant damage and require its replacement, resulting in a Damaged Equipment Fee. Payment of a Damaged Equipment Fee does not result in a sale or transfer of title; the Equipment shall remain the property of Us at all times.
2.3 Lost or Unreturned Equipment Fee
FlumeLogic-owned Equipment remains FlumeLogic property at all times, including after payment of an Unreturned Equipment Fee. The "Unreturned Equipment Fee" refers to a fee charged by Us for any lost, unreturned, or damaged equipment upon termination of the Services. If you pay an Unreturned Equipment Fee and subsequently return the equipment undamaged (with the exception of normal wear and tear), you will be refunded your Unreturned Equipment Fee in full.
3. Terms and Conditions Relating to the Equipment
3.1 Disclaimer
The Equipment provided is novel, under development, and subject to change. As such, the Equipment can and will experience unexpected failure. The Equipment can fall over, become lost, be misplaced, or impede normal field operations. The Equipment contains electronics, metals, plastics, and battery components which could contaminate the crop, become commingled with the harvested crop, or damage harvesting equipment. We will make every effort to ensure all Equipment is accounted for and removed from the field, and will notify you if we lose traceability of any Equipment. We are not responsible for crop damage, crop loss, equipment damage, water damage, or damages to any downstream field, property, or waterway.
3.2 No NSF Certification
The Equipment is not certified by NSF, including without limitation NSF/ANSI/CAN 61 certification, and as such we make no representation or warranty that the Equipment meets health and safety and/or regulatory requirements for water certification and testing, including regulatory requirements for municipal water systems. You expressly assume all risk and liability with respect to the Equipment to the extent the Equipment is not NSF-certified.
3.3 Indemnity
You shall defend, indemnify, release, and hold harmless FlumeLogic, and its respective officers, employees, agents, representatives, and customers from and against any claim, demand, action, lawsuit, damage, liability, loss, penalty, settlement or judgment, including costs and attorneys' fees, which allege or arise out of: (a) Your actions after acceptance of the Equipment; (b) claims not covered by the Limited Warranty provided in this Agreement; (c) any actual or alleged breach by You of the terms or conditions of this Agreement; (d) any failure of You or of Your employees or agents to properly handle the Equipment; (e) any liability of FlumeLogic in excess of the limitations of liability provided for under Section 3.2 of this Agreement; and (f) any latent defects in the Equipment accepted by You.
3.4 No Reliance
We may at times make general referrals, suggestions, or other recommendations orally or in our advertising, website, or publications with respect to any of the Equipment. You are advised to make your own buying decisions and determinations. You bear sole responsibility for making such independent investigation and for proceeding in accordance therewith. We shall not be responsible for any statements, claims, or representations made by any third party.
4. General Terms and Conditions
4.1 Waiver of Class Action
You may not be a representative of other potential claimants or a class of potential claimants in any dispute, nor may two or more individuals' disputes be consolidated or otherwise determined in one proceeding.
4.2 Arbitration of Disputes
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING UNDER, OUT OF, OR IN RELATION TO THIS AGREEMENT OR ANY BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER THEN GOVERNING COMMERCIAL ARBITRATION RULES. AN AWARD OR DECISION OBTAINED THROUGH ARBITRATION PURSUANT TO THIS SECTION SHALL BE FINAL AND BINDING ON THE PARTIES, AND JUDGMENT ON ANY AWARD OR DECISION RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED AND ENFORCED IN ANY COURT OF COMPETENT JURISDICTION. THE ARBITRATION SHALL BE CONDUCTED IN BUTTE COUNTY, STATE OF CALIFORNIA, U.S.A. BY ENTERING INTO THIS AGREEMENT OR ACCEPTING THE PRODUCT, YOU HEREBY CONSENT TO JURISDICTION IN THE STATE OF CALIFORNIA.
4.3 Governing Law; Attorneys' Fees; Limitations Periods
This Agreement will be governed by the laws of the State of California without regard to conflict of law rules. In the event of any dispute, the prevailing party shall be entitled to recover from the other party all reasonable fees, costs, and expenses of enforcing any right of the prevailing party, including without limitation reasonable attorneys' fees, expert fees, and expenses. No action arising out of or in connection with this Agreement may be brought by either party against the other more than one year after the action accrues.
4.4 Term and Termination
Either party may terminate this Agreement for any reason upon thirty days' notice. You may terminate Your account by contacting us at support@flumelogic.com and requesting to terminate the Service. Upon termination, you shall cease all use of the Application and return any equipment owned by Us. Following termination, We will no longer retain any personally identifiable information which may have been collected in the course of your use of the Application, in accordance with our Privacy Policy.
4.5 Assignment; No Third-Party Beneficiaries
The rights granted herein are personal to You and may not be transferred, assigned, or sublicensed by You in whole or in part to any other person without the prior written consent of Us. This Agreement may be assigned by Us to any person or entity whatsoever.
4.6 Miscellaneous
If any portion of this Agreement is found to be void or unenforceable, the remaining provisions shall remain in full force and effect. We reserve the right, at our sole discretion, to modify or replace this Agreement at any time. If a revision is material, we will provide at least thirty days' notice prior to any new terms taking effect.
4.7 Integration
This Agreement shall constitute the entire agreement between You and Us and shall supersede all prior written and oral agreements with respect to its subject matter. We are free to revise this Agreement at any time by updating the Terms of Service on Our website. By continuing the use of the Application after such changes, you acknowledge and accept the changes.
4.8 Force Majeure
We shall not be held liable for any loss, damages, or costs arising out of any failure to perform in accordance with the terms of this Agreement where such failure is beyond our reasonable control, including, but not limited to: disruption of telephone lines, internet network or equipment, or other communications equipment; software; acts of God; strikes; lockouts; shortages; production difficulties; industrial disturbances; wars; blockades; insurrections; riots; explosions; fires; floods; earthquakes; pandemic or epidemic or associated governmental orders; inability to secure materials on a timely basis; delays of carriers or suppliers; governmental action; acts in compliance with any applicable law, regulation, or order of any governmental body; or any other cause not within the reasonable control of either party.
4.9 Consent to Electronic Signatures and Documents
By accessing or using the Application, you agree to be bound by this Agreement. If you disagree with any part of the Agreement, then you do not have our permission to access or use the Application.