This document contains proprietary information of Fielda and may not be duplicated without the prior written consent of Fielda.
IP- or Computation-Related Limitations. You shall not, directly or indirectly, and shall not allow any Affiliate or Third Party to: (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code or any underlying algorithm or idea from Fielda; (b) circumvent or violate any technical restriction of Fielda; (c) make any copies of Fielda or any portion thereof or any Documentation. You shall not disclose Fielda or any portion thereof, or any Documentation to any Third Party; (e) sublicense, rent, lease, lend or host Fielda to or for any Third Party; (f) attempt to unlock or bypass any initialization system, encryption method or copy protection devices in Fielda; (g) alter, remove or obscure any patent, trademark or copyright notice in Fielda or any Documentation; (h) use components of Fielda independent of Fielda; (i) use any Confidential Information of FIELDA to contest the validity of any intellectual property of FIELDA; (j) publish or disclose to any third party any evaluation of the Platform; (k) interfere with or disrupt the integrity or performance of the Platform; (l) interfere with or damage Fielda, including through the use of any virus, bot, Trojan horse, harmful code, flood ping, denial of service attack, packet or IP spoofing, forged routing, forged electronic mail address information, means to reproduce or circumvent the navigational structure or presentation of Fielda or its contents, or any other similar method or technology; or (m) use any robot, spider, site search/retrieval application or other automated means to access, retrieve, scrape or index any portion of Fielda.
Personal Information. Example – Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Content including any Personal Information and use and processing of any Customer Content including any Personal Information hereunder. Customer shall be responsible for obtaining any consent that may be required to collect, submit and use Customer Content including any Personal Information on Fielda. Customer shall be solely responsible for ensuring that the collection, disclosure, analysis and use of Customer Content including Personal Information compliance with any applicable Law. Customer shall not use Fielda to collect or otherwise transmit to FIELDA any sensitive PI, including any Social Security number, financial account number, financial information, driver’s license number, passport number, government identification number, health information or biometric data. Customer shall maintain a policy that complies with applicable Law in respect of handling of Personal Information.
You agree to take appropriate, commercially reasonable steps to cooperate with Fielda to fully implement this Services, including properly populating the asset geo-database that you will use in conjunction with the Services and maintaining that asset geodatabase during the term of this Agreement. Fielda implements security for the Services using unique logon(s) and password(s) at multiple levels (such as application, map server, and database server). As part of implementing the Services, You will be given the number of unique logon(s) and password(s) set out on the Information Sheet. You agree to accept such logon(s) and password(s) as Your electronic signature for submission of Information via the Services, just as if You were submitting such Information by hand. You agree to take complete responsibility for Your logon(s) and password(s) and all information You submit through the Services using Your logon(s) and password(s). If there are problems with respect to Your logon(s) and/or password(s), You should immediately notify Fielda (and Fielda will cancel and/or modify your logon(s) and/or password(s) effective the next business day). You agree that You will be responsible for all improper use of the Services that occurs as a result of any of Your own acts or omissions (including, without limitation, fraudulent, negligent or erroneous submission of Information via the Services or improper use of, or access via, Your logon(s) and password(s)). You also understand and agree that you must use equipment and software that meets the minimum requirements set forth in the Fielda Access Configuration. You agree that Fielda is not responsible for providing communication lines, internet access, connectivity, or interface equipment/devices for accessing the Services. You also agree that Your use of the Services shall at all times comply with any other applicable laws or regulations.
All Information entered as part of the Services by You will remain your information. Fielda will use commercially reasonable efforts and industry standard methods to protect such Information. However, You understand and agree that all Internet-based communications and applications are inherently insecure and that Information may be subject to interception, use, or corruption by third parties despite the best efforts of Fielda. USER INFORMATION Fielda shall maintain Information You send to it for a period of sixty (60) days after termination of this Agreement. Fielda will use commercially reasonable efforts to supply you with digital copies of Your Information prior to deleting the Information from Fielda servers. Fielda may use Information to prepare statistical analysis, reports and benchmarking statistics (provided they do not reveal identifying information related to You or Your use of the Services).
ACCESS TO SERVICES
Download of the Fielda software understand and agree that Fielda is not granting or assigning to You any legal or equitable title or license or other right in the Services or technology or intellectual property used to provide the Services. Fielda is just granting You a limited right to access and use the Services during the Term. All rights granted by Fielda to You immediately cease upon termination of the Agreement. This grant is personal to You and nonexclusive, nontransferable, and not assignable. You may not sublicense this limited right of access or use, nor sell, assign, rent, lease, pledge, transfer or in any way encumber the Services. You agree not to let any third party use your logon(s) or password(s). You agree to inform Fielda of any unauthorized use of the Services of which You become aware and reasonably assist Fielda in terminating such unauthorized use of the Services or access to Fielda’s systems or equipment.
DISCLAIMER OF WARRANTIES AND LIMITATIONS OF REMEDIES
You acknowledge and agree that You have read the following provisions and agree that such provisions will govern with respect to this Agreement:
YOU EXPRESSLY UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT YOUR USE OF THE SERVICES (INCLUDING THE SOFTWARE OF THIRD PARTIES REQUIRED TO ACCESS OR USE THE SERVICES) IS AT YOUR SOLE RISK. ALL OF THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FIELDA DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET OUT IN THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS AND FITNESS FOR A PARTICULAR PURPOSE. FIELDA DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT THE SERVICES WILL OPERATE IN THE COMBINATIONS WHICH YOU MAY SELECT FOR USE, THAT THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. IF NOTWITHSTANDING THE ABOVE, YOU ARE ENTITLED TO RECOVER DAMAGES FROM FIELDA FOR ANY REASON, THEN IN THE AGGREGATE FIELDA SHALL ONLY BE LIABLE FOR THE LESSER OF (i) THE AMOUNT OF ANY ACTUAL LOSS OR DAMAGE OR (ii) THE AMOUNTS ACTUALLY PAID BY YOU TO FIELDA UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO YOUR WRITTEN NOTICE TO FIELDA OF YOUR CLAIM. EVEN IF YOUR EXCLUSIVE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSES, FIELDA SHALL NEVER BE LIABLE UNDER THIS AGREEMENT TO YOU OR OTHERS FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING LOST INFORMATION, PROFITS, SAVINGS OR ANTICIPATED REVENUES) OR INCIDENTAL, INDIRECT OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT OR TORT, LAW OR EQUITY AND REGARDLESS OF WHETHER FIELDA OR YOU ARE INFORMED OF THEIR POSSIBILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US FOR USE OF THE SERVICES. YOU UNDERSTAND AND AGREE THAT WE WOULD NOT BE ABLE TO HAVE PROVIDED SERVICES WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
TERM & TERMINATION
This Agreement will become effective the date and time the Fielda software is downloaded and will continue until the software is removed from all devices and use discontinued. Your continued use of the Services will indicate acceptance of any changes in the terms and conditions of the Services/Services Descriptions during any future Term. After the Initial Term of this Agreement, either You or Fielda may terminate this Agreement at any time (with or without cause). Termination of the Agreement shall not limit other legal remedies available to either You or Fielda. Once the Fielda product is purchased a 60 day notice is required for cancellation unless otherwise specified in a separate agreement.
Fielda may provide the Services from any facility and retain subcontractors to furnish all or a portion of the Services. The Agreement and all rights and obligations may not be assigned in whole or in part by either party without the prior written consent of the other, except that the Agreement may be assigned by either party to another entity in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of such party provided written notice of such assignment is provided to the other party promptly thereafter. Except for any payment obligations hereunder, neither party shall be liable for failure to perform any of its respective obligations hereunder if such failure is caused by an event outside its reasonable control, including but not limited to, an act of nature, war, terrorism or natural disaster. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term shall constitute consent to any prior or subsequent breach. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of the Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. All notices required to be given hereunder shall be given in writing and shall be delivered either by hand, certified mail, overnight courier or facsimile. Notwithstanding such notice provision, Fielda may, but shall not be required to, notify User of changes in the Services Descriptions via electronic means (such as email). All such communications shall be deemed received by the other party upon the earlier of actual receipt or actual delivery. The Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without regard to its rules regarding conflict of laws and the parties consent to the jurisdiction and venue of the federal courts in the Middle District of Tennessee. Except as expressly provided herein the parties do not intend, nor shall any clause be interpreted, to create for any third party (including, but not limited to, employees, contractors, subcontractors or affiliates of either party) any obligations or benefits from either party, or otherwise arising out of any of the provisions of the Agreement.
SERVICES PROVIDED BY FIELDA
Services will be provided via Fielda’s web-based system and are fully described in, and are limited to, the Services Descriptions. You acknowledge that You are responsible for initially populating the database used as part of the Services with your unique asset geo-database information and maintaining that unique information through regular updates during the term of this Agreement. You understand and agree that the Services depend upon the timeliness and accuracy of your asset geo-database information and updates. You understand and agree that the Services are only for transmission of appropriate Information and that Fielda is not responsible for, nor legally liable for, any errors with respect to such Information. You also understand and agree that Fielda does not control the Information that you enter and does not audit the Information to assure that you have entered all data fields correctly or completely. You agree that Fielda may modify the Services/Services Descriptions from time to time to provide better services to all of its users (if Fielda makes such modifications, Fielda will use commercially reasonable efforts to notify all of its customers). Provided that such modifications do not reduce the basic functions set out in the Services Description, You agree that by Your continued use of the Services after any such modification, You are consenting to such modifications (and if You do not consent to such modifications, You agree that You will not use the Services after such modification). You agree that Fielda is not obligated to make any changes or improvements to the Services during the term of this Agreement and that any additional Services or functionality that may be offered to other customers or to You may result in increased fees. Use of the Services is subject to the Fielda policies and terms applicable to all users of the Services. Fielda will use commercially reasonable efforts to keep the Services available during Normal Business Hours; however, availability of the Services will be subject to excusable outages (such as maintenance and events beyond the reasonable control of Fielda, including failure of the Internet). Because (a) the Internet is not owned nor controlled by any particular entity and (b) You will be responsible for both Your own devices that You use with the Services and connectivity to Fielda from Your devices, You acknowledge that Fielda can make no guarantee that any given access to the Services will be successful or that the Services will be available at all times or be uninterrupted. You acknowledge and agree that Fielda may terminate access to the Services at any time if Fielda believes that you are violating or failing to comply with the terms of this Agreement or if Your continued use threatens the system used to provide the Services or other users’ access to the Services. We shall have the right, in our sole discretion and with reasonable notice (including notice by digital or electronic means), to establish or change limits concerning use of the Service, temporarily or permanently, including but not limited to (i) the amount of storage space You may use in conjunction with the Service at any given time, and (ii) the number of times (and the maximum time duration) You may access the Service in a given period of time. We reserve the right to make any such changes effective immediately to Fielda Agreement
Fielda Inc. reserves the right to change prices at any time. However, we will give you at least fifteen (15) days’ advance notice of any price changes particular to your plan.
GLOSSARY OF TERMS
The definitions used in the Fielda Agreement and in the Services Descriptions are as follows:
“Access Configuration” for geoFIT means an iOS device such as an iPad model3 or above or iPhone model5 or above with operating version 6.0 or higher, at least 32GB of storage and WiFi or cellular connection/data plan. If a device is not connected to the Internet, (a) remotely entered data is stored locally in the device and uploaded when device is connected and (b) information stored at the server will be downloaded to device when device is connected. Services do not include connectivity to Internet – access to Services via a carrier or WiFi connection is the User responsibility. For geoDASH, means desktop computer or laptop with Internet connectivity, and a current Chrome, IE or Firefox web browser (with all security and updates). “User” means an individual authorized by Customer to use the applicable Product in accordance with an Order regardless of whether the individual is actively using such Product at any given time. “Personal Information” or “PI” means any of the following information provided by or on behalf of Customer to FIELDA: (a) any information that identifies or can reasonably be used to identify any individual or that can be reasonably associated or linked to any individual, such as first and last name, social security number or other government issued number or identifier, date of birth, home or other physical address, e-mail address or other online contact information, IP address, geolocation data, telephone number, financial account number, credit or debit card number, biometric data, mother’s maiden name or any other personally identifiable information; (b) personally identifiable financial, health or insurance information; (c) any unique persistent identifier associated with an individual or a networked device, including a customer number held in a cookie, a user ID, an advertising ID, a browser fingerprint, a processor serial number, a device serial number, or any other number that uniquely identifies a particular telecommunications device, processor or computer; (e) any information that is treated as personal information or its equivalent by an applicable privacy or data security Law; or (f) any other information relating to an individual that is combined with any information in clause (a) of this definition.
“After Hours Support” means telephone or email support from Fielda staff outside of Normal Business Hours. “Information” means the initial geo-database information you upload to populate the Services and the keyboard characters, audio, documents, pictures, videos, preferences, and settings that you enter during the Term. “Normal Business Hours” means 8AM to 5PM US Central Time, Monday through Friday, with the exception of national holidays recognized in the United States.