Last updated February, 2023
1.1) By purchasing the PheNode and our Services (herein defined), you (the “User”) accept and agree to be bound by these Terms of Service (these “Terms”). It is important for the User to read each section of this document, as it is legally binding between the User and Agrela Ecosystems, Inc. (“Agrela”) regarding the User’s purchase and use of the PheNode, any associated software, software code, parts, components, sensors, upgrades, or modifications (collectively, the “PheNode”) and its associated services (the “Services”).
1.3) In order to use PheNode and the Services, the User:
a. must be 18 years or older, or have the User’s parent or guardian consent to these Terms, and
b. have the power to enter a binding contract with Agrela and not be barred from doing so under any applicable laws.
1.4) By agreeing to these Terms, the User represents and warrants (a) that all information the User submits is true, accurate, current, and complete, and (b) the User has the legal capacity and agrees to comply with these Terms.
1.5) If the User does not agree to these Terms, then the User must not purchase the PheNode, the Services, or any other Agrela products and services.
1.6) These Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of terms. Fulfillment of User's order does not constitute acceptance of any of User's terms and conditions and does not serve to modify or amend these Terms.
Agrela’s Services shall be available as an annual subscription. The PheNode Service subscription includes the following services:
2.1) Technical Support: The User shall have access to customer service and technical support Monday through Thursday from 9am-5pm CST and 9am-3pm CST on Friday. The User may leave a message at (314) 485-9850 or email firstname.lastname@example.org and submit any questions, issues or concerns.
a. Agrela representatives shall assist the User and their qualified affiliates with PheNode troubleshooting, account changes, sales, and all other general questions. Agrela does not offer guaranteed outcomes to the consultation, however Agrela shall always guide the User through the process of replacing any failed or malfunctioning sensor and/or component based on the Terms of an of the Services the User may be subscribed to.
b. Technical support currently covers the following Services:
i. Identifying any sensor and/or component malfunctions or failures based on system diagnostics and customer feedback, and restoring said sensor and/or component by way of issuing a remote software update, sending out a part replacement to the User or guiding the User through a series of steps to correct the issue;
ii. Help operating/navigating the PheNode graphic user interface as well as explaining the contents of data downloads;
iii. Setting up/installing the PheNode in outdoor or indoor environments
iv. Sharing of sensor technical specifications;
v. Explanations of sensor and component functions, measurements, and requirements and how to best apply these components and sensors for optimum results based on Agrela’s recommendations as well as from the manufacturer specifications of any third-party sensor and/or component. What Agrela cannot answer over the phone, shall be sent via email by way of written explanation, technical documentation, images, or any other technical documentation that can help resolve the User’s issue or inquiry;
vi. Technical support Services can be accessed either by phone, email, or setting up a video conference with an Agrela representative. Agrela representatives shall not travel to User installations for Technical Support of any kind.
c. If the User chooses to opt out of the PheNode Service subscription, the User understands and agrees to pay an hourly fee for technical support, and the User shall have 30 days to pay for any service charges that incur.
2.2) Component Warranty: If you purchase a PheNode Service subscription, all Agrela-made and third-party PheNode components and sensors shall be replaced in the event of a malfunction or critical failure, for up to 3 years after the time of purchase. In the event of an Agrela-made or third party sensor failing 3 years after the time of purchase, the User shall ship back the sensor to Agrela, and Agrela will determine if the sensor can be repaired or requires a replacement. Agrela shall manage the correspondence with any company or manufacturer regarding third-party sensor replacements covered by warranty. Agrela shall then provision the replacement third-party components or sensors with a PheNode-compatible connector, load any necessary software/firmware into the components or sensors, and perform the final assembly and system check protocols in order to accommodate proper PheNode integration. This way, the User shall only be responsible for mounting/installing and plugging-in the new component or sensor when it arrives to their location.
a. Installing new components or sensors: Before a component or sensor can be replaced, the User must set the key switch on the PheNode control box to “Off”. Components and sensors are then replaced by unscrewing the cable gland cap and cable gland base corresponding with the component/sensor that needs to be replaced, unplugging the malfunctioning component/sensor and plugging in the new component/sensor. Agrela strongly recommends the User consult with an Agrela representative before and during the component/sensor replacement process. Agrela happy to help guide this process over the phone or video conference, and shall always send instructions via email to the User in the event of a repair. Information on replacement components and sensors is explained in detail in the User Manual.
b. If the User refuses to to purchase a PheNode Service subscription, PheNode hardware will be subject to a forty-five (45) day warranty in which the User must report any malfunctions, critical failures, hardware or software issues, or visible damage that somehow affects the PheNode system’s operations within forty-five (45) days of first turning the PheNode system on to receive new components or sensors that resolve the issue. User will return any damaged or inoperable components/sensors to Agrela. Agrela will provide the User with return shipping materials and labels, and Agrela will cover all reasonable costs related to shipping damaged or inoperable components/sensors to and from the User.
c. Agrela shall not be responsible for downtime, or a loss of data collection pertaining to component/sensor malfunctions or critical failures. Agrela will give its best effort to replace non-functioning components/sensors as issues arise.
2.3) Data Service charges are a result of (a) cellular communication fees and (b) storage, backup, maintenance and curation of local and cloud databases. Cellular fees are largely dependent on how many images a day a User wants to capture and send to the cloud. At a default, Agrela will allow the User to transmit (1) 5MP RGB image per day. If a User wishes to transmit multiple images per minute/hour/day to the cloud by way of cellular communication, the User understands and agrees to pay any applicable price increases in data Services. Agrela advises the User to know how many images they wish to capture daily at the time of subscribing in order to receive approval from Agrela and lock in pricing. If a User wishes to change their imaging in any way during their data Services subscription, they must first contact Agrela and submit a request with an understanding that their data Services fees shall likely change
2.4) Equipment Leasing: Leasing PheNode hardware will not be available at this time. PheNode hardware will be solely owned by the User and will be subject to Agrela’s Component Warranty (Section 2.2).
2.5) Calibration Services: With this Service, any Agrela-made sensor or third-party sensor that requires calibration can be sent back to Agrela for a re-calibration as close to the sensor’s original factory settings as the condition of the sensor shall allow.
a. Agrela shall send a pre-paid shipping label to the User for the sensor(s) in need of calibration, and once Agrela completes the calibration, or sends the sensor back to the original manufacturer and they complete the calibration, Agrela shall test the sensor and send it back to the User.
b. Agrela shall notify the User of the recommended scheduled calibration before it is due as a reminder of the sensor(s) calibration requirements.
c. If the User refuses to re-calibrate their sensor(s) that require calibration, or refuse to subscribe to Agrela’s calibration Services, Agrela shall not be held liable for a sensor’s accuracy if its accuracy begins to diminish over time.
2.6) Custom Solutions: Agrela offers custom integrations of third-party sensors, development of sensor mounts and other hardware add-ons as a Service. Fees are project-dependent and require review from Agrela’s engineers before quotes can be provided. Contact Agrela for more information.
3. USER DATA AND PRIVACY
3.1) The User understands that through the use of the PheNode, the User consents to the collection and use of certain personal and business data, including the transfer of this data for storage, processing and use by Agrela, including but not limited to with its service providers. The User is free to share, distribute, or publicly disclose their PheNode-derived data, or enter into any third-party agreements regarding their PheNode-derived data however they choose as long as the User understands and agrees to indemnify Agrela and not hold Agrela liable for any damages that occur as a result of the User’s actions regarding the PheNode-derived data or any damages that occur from a breach in any other term of use set forth within these Terms.
3.2) Agrela shall not sell the User’s personal or financial data collected by Agrela unless the User’s consent is explicitly given.
3.3) Agrela shall monitor the User’s PheNode-derived data for maintenance and system optimization purposes, but Agrela shall never sell, distribute, or share the User’s PheNode-derived data unless first anonymized in the aggregate, and shall conform to all conditions set forth in section 6 of these Terms.
3.4) The User’s PheNode-derived data shall be available through a dashboard accessible via URL that shall be sent to the User by Agrela via email once an account has been created. A Username and password shall be required to access the PheNode data, and Agrela shall provide the User with a one-time username and password. After logging in to the user dashboard for the first time, the User shall be immediately required to change their username and password provided by Agrela for security purposes. The User’s account manager shall be able to grant permissions and general access to other employees or entities within or outside of their organization through the settings tab in the dashboard.
3.5) Agrela shall not be held liable for any data products created from PheNode data collected by the User.
3.6) In addition to online data storage, the PheNode stores a local back-up of all collected data on an SD card in the control module. If a User decides to opt out of the data plan and does not want its PheNode communicating with any network, cloud infrastructure platform, or cloud software of any kind, then the User may retrieve its data manually from the PheNode (See user manual). It is strongly recommended that the User first contact Agrela before opening their PheNode control box and accessing/removing the SD card.
3.7) In the event of cellular, WIFI or LORAWAN network outages, the PheNode shall store any data collected during the time of the outage and shall transmit this stored data once network outages are resolved, and cloud connectivity resumes to normal.
3.8) The User understands that it shall be solely responsible for how it manages, shares, or distributes its own PheNode-derived data and the User understands that Agrela shall not be liable for any sharing, distribution, or misuse of the User’s PheNode-derived data between the User and any third party as it pertains to the conditions outlined in these Terms. Data use agreements between the User and any third-party do not involve Agrela, or its affiliates, nor do they override any aspect of these broader Terms in any way, and the User shall not hold Agrela liable or responsible for any such breach of terms in perpetuity.
3.9) The User understands that to best prevent interruptions in PheNode data collection, Agrela shall monitor the User’s PheNode sensor and diagnostic metadata and receive alerts when components malfunction or fail, and programming errors occur, allowing Agrela to act swiftly to correct the issue in a timely manner that minimizes an interruption in Services.
4. INTELLECTUAL PROPERTY
4.1) The PheNode, its entire contents, features, and functionality (including but not limited to all goodwill, information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), except for third-party products, software and services, are protected by intellectual property rights of Agrela and the Donald Danforth Plant Science Center, whether registered or not, and except as expressly indicated, nothing in these Terms shall be construed as to grant the User a license or any other right on Agrela’s intellectual property rights.
4.2) The User is not permitted to copy, modify, decompile, use, reproduce, distribute, or make any public disclosure of any of Agrela’s intellectual property rights without Agrela’s prior written consent. All non-public, confidential or proprietary information of Agrela, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, but excluding the User’s PheNode-derived data, disclosed by Agrela to User, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by Agrela in writing. Upon Agrela's request, User shall promptly return all documents and other materials received from Agrela. Agrela shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to User at the time of disclosure; or (c) rightfully obtained by User on a non confidential basis from a third party.
4.3) Any data derived from a User’s PheNode is not the intellectual property of the User, in that it is simply facts/information/values derived from a suite of sensors.
4.4) If the User hosts the PheNode database on their own private network, they agree that the database software and user dashboard are the intellectual property of Agrela and that the User must still comply with conditions of use set forth in these Terms.
4.5) The User shall refrain from incurring any action that may obstruct the granting of pending patents or any other intellectual property rights for which Agrela may have applied, or may apply as a result of any custom development carried out for the User.
4.6) The trademarks “Agrela”, “PheNode”, together with any design or logo connected to them, and any other whether registered or not in any specific jurisdiction, used by Agrela in the promotion of the PheNode, are trademarks of Agrela. Nothing in these Terms gives you a right to use the Agrela name or any Agrela trademarks, logos, slogans, domain names, and/or other distinctive brand features. All other names, trademarks, logos, slogans domain names, and/or other distinctive brand features are the trademarks of their respective owners. Any other trademarks appearing on documents or on Agrela’s Website are the property of Agrela’s suppliers or partners and may be protected under different intellectual property rights and/or laws.
5. AGGREGATE DATA SHARING
5.1) Agrela shall anonymize the User’s PheNode-derived data in the aggregate for the development of new and future products. This allows Agrela to compile data collected from a diversity of User-operated PheNode systems, locations, and unique applications to further optimize PheNode system performance and to perform broad statistical analyses, whether to monitor overall trends, make comparisons or gain insight that would otherwise be hidden when environmental data is only examined in isolation.
5.2) Agrela shall use imaging data to further train and optimize its own machine learning and computer vision models in order to produce and offer more effective imaging analytics for its customers, and shall in no way directly share imaging data from one User to another, or with any other organization, company or entity.
6. MODIFICATIONS AND INTERRUPTIONS
6.1) Agrela shall be entitled at any time to alter, modify, or update the design and/or functionality of its products, to discontinue the sale, manufacturing, or distribution of any of its products, or to discontinue the sale and distribution of any third-party sensors or components. Agrela shall also be entitled to alter, modify, or update its Services, general policies, and product warranties at any time, but Agrela shall always honor the most current Terms conditions it has in place with the User.
6.2) Agrela shall need to periodically update and optimize the functionality and performance of its Users’ databases to keep data collection interruptions at a minimum. As software and firmware issues arise, Agrela can remotely correct these issues with a software/firmware update. Agrela shall notify Users of the updates via their user dashboard and/or via email.
6.3) Agrela shall not be liable for any modification, price change, suspension, or discontinuance of third-party components or sensors.
6.4) If at any time in the future after these Terms is signed the User requires a replacement third-party component or sensor that is covered under the User’s parts replacement plan and the price of the same third-party component or sensor has increased, the User shall be responsible for the cost difference.
6.5) Agrela shall recommend a comparable replacement third-party sensor or component that has already been integrated into the PheNode, no greater than the price of the originally sourced third-party component or sensor, in the event of a third-party component or sensor discontinuation.
6.6) In the event of the User requiring a replacement of a third-party sensor or component that has been discontinued, Agrela shall not be responsible for downtime, or a loss of data collection pertaining to the discontinued sensor.
7.1) The User must contact an Agrela representative either by email (email@example.com), or by phone (314-485-9850) to begin the order process. Once the User has made their final selections of the PheNode and the Services, Agrela shall send an estimate to the User reflecting all the User’s hardware and Services selections. Once the User accepts the estimate, Agrela will convert the estimate into an invoice which includes payment options and instructions.
7.2) Currently, PheNodes are primarily built to order and are provided as-is. Therefore, once the User’s payment has been received, Agrela shall immediately send purchase orders to the applicable PheNode manufacturers and sensor/component suppliers to begin building the User’s PheNodes.
7.3) The User understands that if PheNode systems are on back order, manufacturing, testing, packing and shipping of new PheNode systems can take up to 16 weeks, and the User shall be notified before shipping occurs to again confirm the correct shipping methods. Agrela will notify the User if PheNode systems are on back order prior to accepting payment.
7.4) At present, Agrela is only offering the PheNode and Services within the United States.
8. PAYMENTS AND CANCELLATIONS
8.1) Payment terms shall consist of a down payment for the full amount of the order, either by credit card (only VISA and Master Card accepted) or bank wire transfer.
8.2) A User may cancel their account at any time by notifying in writing an Agrela representative.
8.3) The User shall have forty-five (45) days to cancel an annual PheNode Service subscription to receive a refund equating to 80% of the total Service subscription cost. After forty-five days from purchase, the customer shall not receive any discount for canceled PheNode Service subscriptions.
8.4) Subscriptions to any Services shall automatically renew once the applicable period ends, and shall be billed to the User’s preferred method of payment on file with Agrela.
8.5) The User shall have forty-five (45) days to return any PheNode hardware, sensors, and components. Therefore, ALL PHENODE SALES ARE FINAL AFTER FORTY-FIVE (45) DAYS. After 45 days from purchase, the customer may still return the PheNode to Agrela if needed, but the User shall not receive any refund for returned PheNode hardware, sensors, or components at that time.
9. TERM AND TERMINATION
9.1) These Terms and Conditions shall remain in full force from the date of sale, and shall remain in full force, in perpetuity, unless theseTerms are changed, altered, revised, or updated by Agrela at a later date.
9.2) In addition to any remedies that may be provided under these Terms, Agrela may terminate these Terms with immediate effect upon written Notice (herein defined) to User, if User: (a) fails to pay any amount when due under these Terms; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
9.3) Service subscriptions begin the day the User turns on their PheNode. Agrela shall see the PheNode is active and shall consider the initial power up of the PheNode as the first day of the subscribed Service terms.
9.4) If the User’s account is suspended or terminated for any reason, Agrela shall not refund any amounts the User has already paid, to the furthest extent permitted by law.
10. SHIPPING AND DELIVERY
10.1) The User agrees to pay the full cost of shipping. By default, Agrela uses UPS standard ground shipment for orders within the United States, and Agrela shall send the User a quote for the shipping costs once the complete hardware order is confirmed. Agrela shall always include shipping insurance at a declared value equal to the cost of the sale plus the full cost of any third-party sensor or component add-ons purchased by the User.
10.2) Under no circumstances shall Agrela be held liable for any delays in delivery due to carrier or third-party failures, logistical errors, or any other circumstance out of Agrela’s control.
10.3) Currently, Agrela is only shipping PheNode within the United States.
11. RETURNS AND REFUNDS
11.1) PheNodes are built to order. Therefore, once the purchase order for a User’s PheNodes is submitted to the manufacturers, the User has 10 business days to cancel their order to receive a full refund. If the manufacturing of their PheNode(s) has already begun, the User will be charged a “manufacturing fee” of $299 per PheNode.
11.2) Once a manufactured PheNode system has been delivered, and if the User decides to return their PheNode for any reason:
a. The User will have forty-five (45) days to initiate a return in order to receive a partial refund. To initiate a return, the User must contact Agrela by email or phone.
b. If a return is initiated by the User within forty-five (45) days after delivery, and Once the PheNode system has been returned and an Agrela associate has verified that all system components are included, Agrela will issue a refund equating to 90% of the total PheNode hardware, sensor, and component retail cost. The 10% of total PheNode retail cost withheld covers return shipping, re-stocking fees, technician labor, and the deactivation of a User’s cloud account that was set-up upon purchase.
c. Agrela shall send a return shipping label to the User via email that the User can print and apply to the PheNode box. If the PheNode is being returned from a business, Agrela shall schedule a pick-up at the User’s convenience. If the PheNode is being returned from a residence and UPS cannot pick up from the residential address, the User agrees to drop off the PheNode to be returned to the nearest UPS store or any equivalent business that accepts and ships UPS packages.
11.3) Replacements for malfunctioning or non-operational sensors and/or components shall be subject to the terms of Agrela’s parts replacement Service and to the terms stated set forth in section 15.2, but no refunds shall be issued for any fully operational hardware, either electrical or mechanical, nor for sensors or components, whether Agrela-made or from a third-party, that have been integrated and/or modified in any way.
12. DEPLOYMENT AND INSTALLATION
12.1) The User understands that Agrela does not deploy, install, or perform maintenance on PheNode systems. User agrees to deploy, install, and perform component and sensor maintenance on their own PheNode devices. Agrela will provide guidance when setting up a PheNode (see section 2.2-a).
12.2) If the repair of an electrical component requires more than a simple unplugging/plugging in of a new component or sensor, the User is strongly encouraged to ship the PheNode back to Agrela. Agrela will advise the User on how to return the component/sensor and Agrela will pay for all shipping charges if the User has purchased a PheNode Service subscription.
12.3) If the User has subscribed to and purchased a PheNode Service subscription, Agrela shall remotely guide the User through set up, installation, and repairs of the device. The User shall not need to perform any backend/software maintenance, software installation, programming, or set up of any kind except for the following items:
a. Changing the username and password upon first login to the User Dashboard (GUI)
b. Accepting software updates through the GUI upon software update alerts
c. Entering login credentials to personal WIFI networks in the event of a PheNode installation that intends to use WIFI to connect to the cloud rather than cellular or LoRaWAN. Agrela shall not ask the User for their network login credentials.
d. Connecting to the PheNode via PheNode mobile app to name the PheNode, check the strength of its network connectivity, enter network credentials, and to view imaging result/image orientation.
TERMS OF SERVICE
13. PROHIBITED ACTIVITIES
As a User of the PheNode and the Services, you agree not to:
13.1) use PheNode to infringe on the personal rights of any individual or entity, including using any information obtained from the PheNode in order to harass, abuse, or harm another person;
13.2) circumvent, disable, or otherwise interfere with security-related features of the PheNode;
13.3) attempt to bypass any measures of the software designed to prevent or restrict access to the User dashboard;
13.4) decipher, decompile, disassemble, or reverse engineer any of the PheNode software or firmware in order to host the PheNode database on a different server, network or cloud platform not originally intended by these Terms;
13.5) make improper use of our support and maintenance Services or submit false reports of sensor or component malfunctions;
13.6) use the PheNode in a manner inconsistent with any applicable laws or regulations (i.e. FCC regulations);
13.7) force integration of new or different sensors, peripheral components or third-party components of any kind outside what is established and agreed upon within these Terms or outside the physical, electrical, and software capabilities of the PheNode.
14. WARRANTY DISCLAIMER
14.1) The User agrees that use of the PheNode and the Services shall be at your sole risk. To the fullest extent permitted by law, we disclaim all warranties, express or implied, in connection with the PheNode and your use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, warranties against any latent of hidden defects, and non-infringement.
14.2) Agrela strongly advises the User not to open any/all enclosures that house electronics. Any repairs needed to such equipment shall be Agrela’s sole responsibility unless otherwise explicitly stated in writing.
14.3) PheNode Users who have not purchased a PheNode Service subscription have 90 days from the time of turning on their device once it is in their possession to present any evidence of malfunction beyond what Agrela can view remotely from system diagnostic data. If within these 90 days the User claims aspects, components (whether electrical or mechanical), or functions of any kind are not operating as intended, Agrela shall work with the User so they may receive a replacement for the non-functioning part.
14.4) If a User does not subscribe to Agrela’s calibration Services, Agrela shall not be responsible for any calibration requirements recommended by and for any third-party sensors and/or components integrated into the User’s PheNode(s). Users are encouraged to read the third-party manufacturer’s information in regard to sensor calibration and take the necessary steps to keep their sensors calibrated to the third-party manufacturer’s specifications.
14.5) Agrela shall not cover any damage to PheNode systems due to improper storage. Users are advised to keep their PheNode(s) systems stored in a cool (50°F – 75°F), dry place when not in use.
14.6) Users who have not purchased a PheNode Service subscription shall inspect deliveries immediately upon arrival to confirm their PheNode(s) nor its packaging has been damaged during delivery. The User has (7) days after delivery to bring a claim in writing including photos to Agrela regarding damage that was suspected to occur during delivery in order for the User to receive replacements for any damages. Any claims made after the (7) day period shall be subject to pay full price for replacement sensors and/or components and /or subject to any applicable terms outlined in section 12.3 and 15.2.
14.7) Agrela shall not be held liable for unauthorized modification, use or operation outside the specifications stated in the user’s manual, or third-party sensor specifications. Users must also read and adhere to the specifications of any third-party sensors and/or components they have integrated into their PheNode(s), and Agrela shall not be liable for any damages that occur due to the unauthorized use of third-party sensors and/or components.
14.8) Agrela shall not replace components that are still functioning normally but have minor cosmetic damages are due to wear and tear.
14.9) Agrela shall not be responsible or liable for delayed data collection due to connectivity issues that are outside the control of Agrela such as cellular, or any other network outage.
14.10) Agrela shall not be liable for any ingress of water or dust due to the User’s improper closing of enclosures, or from the opening of electronic enclosures that was not recommended or supported in writing by Agrela technical support.
14.11) Agrela shall not be held liable for any pesticide or any other chemical build-up on PheNode components and sensors that may occur over time within agricultural environments. The User understands that wiping down components and sensors when the PheNode is not in use is the User’s responsibility, and any changes in accuracy to any sensors integrated into the PheNode due to chemical build up does not qualify for a replacement part/sensor/component of any kind.
15. LIMITATIONS OF LIABILITY
15.1) IN NO EVENT SHALL AGRELA, ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT AGRELA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
15.2) IN NO EVENT SHALL AGRELA'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO AGRELA FOR THE PHENODE AND SERVICES IN THE PAST TWELVE (12) MONTHS SOLD HEREUNDER FOR THE PRODUCT/SERVICE THAT IS THE SUBJECT OF THE CLAIM.
15.3) In addition to and not limiting the foregoing limitations of liability, Agrela shall assume no liability or responsibility for any:
a. Personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the PheNode;
b. Any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein;
c. Any interruption or cessation of data transmission to or from the PheNode due to cellular, LoRaWAN, or WiFi network connection outages;
d. Any bugs, viruses, trojan horses, or the like which may be transmitted to or through the site by any third party.
15.4) Users understand that choosing to opt out of data Services and/or preventing any PheNode(s) from connecting to a network of any kind shall prevent Agrela from having any access to the PheNode(s) connected to your account and therefore cannot monitor the functionality, health or operations of any system components and/or sensors. The User understands that Agrela shall not be held liable for any missing data or system malfunctions that arise from opting out of the PheNode Service subscription or from preventing any PheNode(s) from connecting to a network of any kind. It is recommended that the User check any PheNode(s) not connected to a network of any kind regularly to monitor and track that the system is operating normally and data is being collected.
16.1) User shall indemnify, defend, and hold harmless Agrela, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns, from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) suffered, incurred, or sustained by Agrela or to which Agrela becomes subject, resulting from, arising out of, or relating to any claim: (i) that the PheNode or Services infringe upon the proprietary or other rights of any third party (except as may have been caused by a modification by Agrela); (ii) of loss or damage resulting or arising from the PheNode or Services and the use thereof, and (iii) the User’s violation of these Terms.
16.2) Notwithstanding the foregoing, Agrela reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We shall use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
16.3) The User understands and agrees that no one section in these Terms nullifies any other section and all sections and clauses herein shall remain in effect in full force for the duration of the agreement and in perpetuity.
17. GOVERNING LAW AND DISPUTE SETTLEMENT
17.1) These Terms shall be governed by and construed in accordance with the laws of the State of Missouri, without regard to its rules or procedures involving conflicts of laws. All actions relating to these Terms shall be brought exclusively in the United States District Court for the Eastern District of Missouri or the Circuit Court of St. Louis County, Missouri, if no federal subject matter jurisdiction exists. The parties irrevocably waive all present and future objections to personal jurisdiction, forum or venue in such courts.
17.2) The User and Agrela shall first attempt to resolve any dispute, controversy, or claim arising out of the use of the PheNode and Services by submitting the issue to senior management of both parties. If after thirty (30) days, the dispute is not resolved, then all claims and disputes arising under or relating to these Terms are to be settled by binding arbitration in a location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Instructions on how to file an arbitration proceeding with the AAA, as well as their rules of arbitration, can be found at www.adr.org. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in the Industrial Internet of Things as well as cyber security and data privacy and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.
18.1) Waiver. No waiver by Agrela of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Agrela. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
18.2) Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations of User to make payments to Agrela hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give Notice within fifteen (15) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party's failure or delay remains uncured for a period of sixty (60) consecutive days following written Notice given by it under this Section 19.2, the other party may thereafter terminate these Terms upon thirty (30) days' written Notice.
18.3) Compliance with Law. User shall comply with all applicable laws, regulations, and ordinances. User shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. User shall comply with all export and import laws of all countries involved in the sale of the PheNode and Services under these Terms or any resale of the PheNode by User. User assumes all responsibility for shipments of PheNode requiring any government import clearance. Agrela may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the PheNode.
18.4) Assignment. User shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Agrela. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves User of any of its obligations under these Terms.
18.5) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18.6) No Third-Party Beneficiaries. These Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any na1ture whatsoever under or by reason of these Terms.
18.7) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of a sales confirmation or similar document, or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
18.8) Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction
18.9) Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law, Intellectual Property, and Survival.
18.10) Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
19. CONTACT US
For any questions or concerns, contact Agrela at firstname.lastname@example.org, or call (314) 485-9850.
Thank you for reading our Terms.