The Service consists of the installation of certain hardware (“Hardware”) on the property (the “Property”) described in the invoice from Tule for the Service (“Order”). The Hardware typically consists of the following elements: a micro-controller, a battery, an enclosure, a solar panel, a fast-response air temperature sensor, a protective cage for the fast-response air temperature sensor, and a water pressure sensor. The Hardware measures evapotranspiration (“ET”) from the crop field in which it is installed on the Property and sends data to Tule by means of a cellular connection that is then analyzed by Tule’s proprietary software (“Software”). Tule then sends an automatically-generated email at designated intervals that reports the following: how much water evaporated from a hypothetical well-watered field (“Reference ET”); how much water evaporated from the subject field on the Property; the ratio of actual ET to Reference ET; the amount of water required to irrigate the subject field at a given ratio of actual ET to Reference ET; the irrigation application amount; and such other data that Tule may decide from time to time to provide to its users (collectively “Crop Water Use Data”).
You may not: (i) modify, disassemble, decompile or reverse engineer any part of the Service, Software or Hardware, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer any part of the Service, Software or Hardware to any third party or use any part of the Service, Software or Hardware to provide time sharing or similar services for any third party; (iii) make any copies of the Service or Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, Software or Hardware, features that prevent or restrict use or copying of any content accessible through the Service, Software or Hardware, or features that enforce limitations on use of the Service, Software or Hardware; or (v) delete the copyright and other proprietary rights notices on the Service, Software or Hardware.
As between You and Tule, You own all right, title and interest in and to the Crop Water Use Data specific to Your Property; provided that You hereby grant to Tule a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sublicensable and fully transferable license to collect, access, store, analyze, use and disclose the Crop Water Use Data and any other data collected and analyzed by the Service and Software on the Property for purposes of providing You the Service, analyzing and reporting aggregate trends in certain geographical areas, improving the Service and Hardware, including creating new features, and for such other purposes that Tule may determine in its discretion. Notwithstanding the foregoing, Tule will not disclose in reporting aggregate Crop Water Use Data the personally identifying information of its users or the specific identity of the company or Property to which Crop Water Use Data relates, except to its employees, contractors and service providers, to a successor or assignee of Tule’s business, or as required by law or court order.
During the Term of the Service, Tule will use reasonable efforts to maintain, service and replace the Hardware from time to time in its sole discretion, provided that Tule shall have no liability or responsibility to you for any damages or losses caused by the providing of, or failure to provide, such maintenance or service. In addition, if any act or omission by You results in damage to the Hardware, You shall reimburse Tule for the cost of any maintenance, service, or replacement of such Hardware resulting from or required by such damage.
During the Term of the Service, You grant to Tule and its employees, subcontractors and agents (collectively, “Tule Personnel”) the right and permission to enter upon and access the Property at any time for the following purposes: (a) install the Hardware; (b) remove or replace the Hardware; and (c) inspect and perform maintenance and service on the Hardware. You agree to provide Tule and the Tule Personnel with such directions, combinations, locks and other materials and information necessary for Tule to enter upon and access the Property for the foregoing purposes and to instruct Your employees, security and other personnel (collectively “Your Personnel”) to allow Tule and the Tule Personnel to have such access to the Property and not to interfere with such access. You understand and agree that Your failure to do so may result in the interruption or termination of the Service.
Tule will notify you in advance at the contact information provided in Your Account when Tule Personnel intend to enter upon the Property. You agree to respond to such notification promptly and to advise Tule of any restrictions or limitations on access during the requested time of entry. You have the right to tell Us to delay Our access to the Property by a reasonable period of time because We understand that pesticide re-entry intervals, and other factors beyond your reasonable control may legally prohibit You from allowing Tule and Tule Personnel access to the Property for discrete intervals of time. However, You will use best efforts to schedule Our entry onto the Property at the earliest possible date following Tule’s notice to You and You understand that any delay in granting Us access to the Property may result in a degradation or interruption of Service, for which We shall have no responsibility or liability.
To the extent permitted by law, Tule reserves the right to update, amend, change, or modify the Service (or any part thereof) and its features, costs, design, and structure (collectively, “Changes”) at any time in its sole discretion without notice, except that we will notify You of any Changes in pricing. If You continue to use the Service after the effective date of such Changes, You will be deemed to have accepted such Changes and the Changes shall become effective as to You. Your sole and exclusive remedy if You do not agree to any such Changes is to withdraw from the Service and terminate Your Account (but you will not be entitled to a refund on any fees already paid). Additionally, We reserve the right to terminate or suspend the Service at any time and for any reason, with or without notice.
You further agree that Tule may impose limits on certain features or restrict access to part or all of the Service without notice or liability to You. We may add additional features to the Service that require payment or convert existing features to paid features. You agree that free access to all or a portion of the Service or content at a point in time does not give You a right to continued free access to any or all of the Service or content. You have no interest, monetary or otherwise, in any feature or content contained on the Service.
In addition, unless You specifically decline to opt-in when registering for the Service, You further expressly consent to Tule sending information to the email accounts listed in Your Account; such information may include, but is not limited to, reports of Crop Water Use Data, updates to Your Accounts, and marketing materials which will inform You of special offers and products or services we believe would be of interest to You. Within each marketing email communication, You will be given the information necessary to opt-out from receiving such marketing materials in the future. In addition, You may sign up to receive certain notifications or information via text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
Each user of the Service will be required to create an account (“Account”) by providing a user name and password. The user name and password are to be treated as confidential and should not be shared or disclosed to any third parties. You may never use another user’s Account without permission. When creating Your Account, you must provide accurate and complete information, and you must keep this information up to date. Company will not be liable for any losses caused by any unauthorized use of your account.You are solely responsible for the activity that occurs on Your Account, whether or not authorized, and you must keep Your Account password secure. We encourage You to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with Your Account. You must notify Tule immediately of any breach of security or unauthorized use of Your Account.
You are responsible for notifying Tule of any address or email changes or errors in Your Account information. Tule is not responsible for any requests, communications, or correspondence that is lost, undeliverable, or delayed in the direct mail or via electronic mail.
You are responsible for paying all fees and charges issued by Tule in connection with Your use of the Service (“Fees”). The schedule of Fees for the Service will either be posted online at www.tuletechnologies.com or set forth in the Tule invoice, and is subject to change upon thirty (30) days prior written notice to You. Fee are billed annually and are due upon invoice date. Other charges, including charges for maintenance, service and replacement of Hardware resulting from or required by damage to the Hardware caused by any act or omission by You, will be invoiced to You as required and are due upon invoice date. If you cancel the Service before the end of your current paid up year, your cancellation will take effect upon completion of the billing cycle that has already been paid. You also agree to pay any and all costs and expenses, including reasonable attorney’s fees, incurred by Tule in connection with collection of any amounts due hereunder.
You acknowledge and agree that Tule or its licensors or its licensees, own all right, title, and interest in and to the Service, including all intellectual property rights associated with the Software and Service and any information, data or material generated or created by the Service (other than the Crop Water Use Data for Your Property). Except for the limited license expressly stated herein, You have no intellectual property rights in the Service and Tule reserves all rights not expressly granted to You. You must comply with all laws when using the Service as well as all applicable copyright, trademark, or other legal notices or restrictions.
If You send or transmit any communications, comments, questions, suggestions, or related materials to Tule, whether by letter, e-mail, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Hardware, Software or the Services, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non- proprietary. You hereby assign all right, title, and interest in, and Tule is free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Tule is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
All Hardware shall remain the property of Tule and may be removed by Tule from the Property at the end of the Term of the Service. You shall not sell, license, sublicense, rent, lease, mortgage, charge, encumber, pledge, loan, assign or otherwise transfer to any third party the Hardware, in whole or in part. Tule also reserves the right to replace Hardware at any time for any reason. You shall be responsible for any damage to or theft or loss of the Hardware while installed on the Property.
Upon termination You will have no further right or access to the Service or other information provided by the Service and you hereby grant Tule access to the Property to remove the Hardware. If Your access to the Service terminates and You do not renew within twelve (12) months, Tule reserves the right to declare Your Account inactive and delete all information associated with Your Account, in its sole discretion. In such a case, a notice will be sent to Your email address on file with Tule thirty (30) calendar days in advance of the deletion of Your Account.
EXCEPT AS SET FORTH ABOVE, TULE PROVIDES THE SERVICE AND HARDWARE ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT OF THIRD PARTY RIGHTS. TULE MAKES NO WARRANTY THAT (i) THE SERVICE OR ANY HARDWARE PROVIDED TO YOU WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THAT THERE WILL BE NO ERRORS IN THE SERVICE OR HARDWARE, OR THAT TULE WILL FIX ANY ERRORS; OR (iv) THAT THE SERVICE OR CROP WATER USE DATA WILL REDUCE WATER USAGE OR INCREASE CROP YIELDS. YOU UNDERSTAND THAT SERVICE MAY BE AFFECTED OR INTERRUPTED BY WEATHER, HEAT, FLOODS, CELLULAR NETWORK INTERRUPTIONS AND OTHER FACTORS AND ACTS OF GOD, AND THAT TULE BEARS NO RESPONSIBILITY FOR THE SAME.
ANY CROP WATER USE DATA OR OTHER INFORMATION OBTAINED THROUGH USE OF THE SERVICE ARE OBTAINED AT YOUR OWN DISCRETION AND RISK AND TULE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE CAUSED TO YOU, YOUR PROPERTY, CROP YIELDS, CROP LOSSES, IRRIGATION SYSTEMS OR YOUR COMPUTER OR DATA OR FOR ANY BUGS, VIRUSES, TROJAN HORSES OR OTHER DESTRUCTIVE CODE RESULTING FROM USE OF THE SERVICE OR ANY CONTENT OBTAINED FROM THE SERVICE.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE.
YOUR USE OF THE HARDWARE AND THE SERVICE IS ENTIRELY AT YOUR OWN RISK. TULE WILL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL, EXTRAORDINARY, OR CONSEQUENTIAL DAMAGES, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION OR CROP DAMAGE, EVEN IF YOU HAVE INFORMED TULE OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT TULE SHALL HAVE NO RESPONSIBILITY OF LIABILITY FOR ANY DAMAGE OR LOSS TO PROPERTY OR CROPS, REDUCTION OR LOSS IN PRODUCTION, OR PERSONAL INJURY OR DEATH RELATING TO THE HARDWARE, SOFTWARE, OR SERVICES OR THE CROP WATER USE DATA OR OTHER INFORMATION PROVIDED THROUGH THE SERVICE. TULE’S TOTAL LIABILITY FOR ANY CLAIMS RELATING TO OR ARISING OUT OF USE OF THE SERVICE OR THE HARDWARE SHALL BE LIMITED TO THE AGGREGATE FEES PAID YOU FOR THE SERVICE DURING THE ONE (1) YEAR PERIOD PRIOR TO ASSERTION OF THE CLAIM.
You will defend, indemnify, and hold Tule harmless from and against any and all claims, actions, liabilities, losses, damages, settlements, judgments, arbitration awards, costs, and expenses, including without limitation, attorneys’ fees and expenses (collectively, “Claims”) resulting from, arising out of or relating to Your use of the Hardware, the Software and the Service, including without limitation any claims for property damage, personal injury or death occurring on the Property relating to the Hardware, Software and Service. Tule will promptly notify You in writing of any such Claim and will allow You to control, and will cooperate with You in, the defense and all related settlement negotiations; provided, however, that Tule may participate in such defense and negotiations through counsel of its own choosing at its own expense. You will reimburse Tule for all expenses incurred by Tule through such cooperation with You in the defense and related settlement negotiations. No settlement of a Claim may be made by You without Tule’s prior written consent, which shall not be unreasonably withheld.