Terms of Use (Last updated on September 2016)
Please read the following terms of use (“terms of use”), as they constitute a binding legal agreement between phytech ltd. (“phytech”, “we”, “us” or “our”) and the licensee who purchased a license to access our service (as set forth in phytech’s invoice), and any of its authorized users (collectively, “licensee” “you”, or “your”).
By purchasing a license to access Phytech’s plant analytics and data management system (the “Service”) you acknowledge that you agree to these Terms of Use and the Privacy Policy [www.Phytech.com]. Phytech reserves the right to make unilateral modifications to these Terms of Use and Your continued use of the Service constitutes acceptance of these Terms of Use as well as any changes or modifications made to them of which You have been notified. If You do not accept these Terms of Use, do not use the Service.
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1. Use of Our Service
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The Service requires installation, either by Licensee or by Phytech, of certain hardware components (“Hardware”) on the Licensee’s property described in the purchase order submitted to Phytech (“Property” and “Order” respectively). The Hardware consist of plant, soil, water and climate sensors. The Hardware measures certain data in the crop field and sends data to be analyzed by Phytech’s proprietary software (“Software”).
Installation of Hardware will be done either by Phytech and/or its contractors (subject to applicable set up fee), or by the Licensee according to Phytech’s instructions. Phytech shall have the right to determine, at its sole discretion that in certain cases installation will be done solely by Phytech or its contractors.
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2. License
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Subject to these Terms of Use and provided You have paid all fees required hereunder and are in compliance with these Terms of Use, Phytech hereby grants You a limited, non-exclusive, non-transferable, non-sub licensable license to access and use the Service during the Term solely for Your internal business purposes. You may not transfer, resell, or sublicense this limited right to any third party. The Service and its features and benefits are not transferable, whether by operation of law or otherwise, without prior written permission from Phytech.
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, make available to third parties, 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, managed services or similar services to 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;
(v) delete the copyright and other proprietary rights notices on the Service, Software or Hardware; (vi) represent that it possesses any proprietary interest in the Service, Software or Hardware or contest Phytech’s rights therein. Licensee further undertakes not to take any actions that would prevent or interfere with Phytech’s or any of its user’s access to or use of the Service.
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3. Your Account
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In order to access the Service, you will have to create a user account (“Account”). When creating Your Account, you must provide accurate and complete information and keep such user information up to date. It is important that you must keep Your Account password secure and confidential.
You must notify Phytech immediately of any breach of security or unauthorized use of your Phytech account that you become aware of. You agree that you will be solely responsible (to Phytech, and to others) for all activity that occurs under Your Account.
You are responsible for notifying Phytech of any address or email changes or errors in Your Account information. Phytech is not responsible for any requests, communications, or correspondence that is lost, undeliverable, or delayed in the direct mail or via electronic mail.
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4. Use Data
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As between You and Phytech, You own all right, title and interest in and to the Use Data specific to Your Property; provided that You hereby grant to Phytech a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sublicensable and fully transferable license to collect, access, store, analyze, use and disclose the Use Data and any other data collected and analyzed by the Service on the Property for purposes of providing You the Service, analyzing and reporting aggregate trends in certain geographical areas, improving the Service, Software and Hardware, including creating new features, and for such other purposes that Phytech may determine in its discretion. Notwithstanding the foregoing, Phytech will not disclose in reporting aggregate Use Data the personally identifying information of its users or the specific identity of the company or Property to which Use Data relates, except to its employees, contractors and service providers, to a successor or assignee of Phytech’s business, or as required by law or court order. Licensee acknowledges and agrees that Use Data may be stored on external cloud servers operated and managed by global third party cloud service providers, as customary in the industry (i.e. Amazon, Azure etc.).
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5. Maintenance and Access to Hardware
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During the Term of the Service, Phytech will use reasonable efforts to maintain, service and replace the Hardware from time to time in its sole discretion, provided that Phytech 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 Phytech 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 Phytech and its employees, subcontractors and agents (collectively, “Phytech Staff”) 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 Phytech and the Phytech Staff with such directions, combinations, locks and other materials and information necessary for Phytech 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 Phytech and the Phytech Staff 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.
Phytech will use reasonable commercial efforts to coordinate with you any visits of Phytech’s Staff to the Property. You agree to cooperate with Phytech and to advise Phytech of any restrictions or limitations on access during the requested time of entry. You may request that we postpone Our access to the Property if reasonably required due to pesticide re-entry intervals, or other factors beyond your reasonable control that legally prohibit You from allowing Phytech Staff to access 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 Phytech’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.
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6. Support
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During the Term as further defined herein, Phytech shall provide standard maintenance and support with respect to the operation of the Service. Please refer to Phytech’s standard support service agreement . Phytech may update/upgrade the Service from time to time, at its sole discretion. Phytech shall notify Licensee in case of discontinued features at least thirty (30) days in advance.
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7. Notification of Changes to the Service
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To the extent permitted by law, Phytech 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 Phytech 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.
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8. Payment of Fees
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You are responsible for paying all fees and charges issued by Phytech in connection with Your use of the Service (“Fees”). Prices and payment terms are mentioned in Phytech service proposal or set forth in the Phytech invoice. Prices and payment terms are 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 Phytech in connection with collection of any amounts due hereunder.
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9. Proprietary Rights
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You acknowledge and agree that Phytech and/or its licensors, own all right, title, and interest in and to the Service including all intellectual property rights associated with the Service, Software, Hardware and any content, information, data or material made available, generated or created by the Service (other than the Use Data with respect to Your Property). Except for the limited license expressly granted herein, You have no intellectual property rights in the Service and Phytech reserves all rights not expressly granted to You. You must comply with all applicable laws when using the Service as well as all applicable copyright, trademark, or other legal notices or restrictions. For avoidance of doubt, the Service constitutes a trade secret of Phytech and Licensee shall keep any and all non-public information with respect to the Service under strict confidence.
If You send or transmit any communications, comments, questions, suggestions, or related materials to Phytech, whether by letter, e-mail, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Service or any part thereof, 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 Phytech 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 Phytech 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 Phytech and may be removed by Phytech 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. Phytech 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.
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10. Privacy Policy
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Your privacy is important to us. By accepting the Terms of Use You expressly agree and opt-in to Phytech collecting, processing, storing, and using personally identifiable information in accordance with Phytech’s Privacy Policy, available at www.Phytech.com or on Phytech web application at App.Phytech.com.
In addition, unless You specifically decline to opt-in when registering to the Service, You further expressly consent to Phytech sending information to the email accounts listed in Your Account; such information may include, but is not limited to, reports of 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.
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11. Term and Termination
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The Services are provided for a period of one (1) year from the date the Service is implemented at the Property or as otherwise set forth in Phytech service proposal or by the applicable invoice (the “Term”). The Term automatically renews for successive one-year periods, unless either party provides written notice of non-renewal thirty (30) days before the end of the then current Term. Phytech may, in its sole discretion, terminate or suspend Your Account and access to the Service with ten (10) days written notice if You commit any material breach of these Terms of Use including failure to pay any sum due within ten (10) days. Phytech may also terminate the Service for convenience upon thirty (30) days prior written notice to You.
Upon termination You will have no further right or access to the Service or other information provided by the Service and you hereby grant Phytech access to the Property to remove the Hardware. If Your access to the Service terminates and You do not renew within twelve (12) months, Phytech 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 Phytech thirty (30) calendar days in advance of the deletion of Your Account. We may retain a copy of your user Account information and Use Data for archive purposes.
The provisions of Sections 4, 8, 9, 12, 13 and 16 and any claim by Phytech for unpaid Fees will survive any termination or expiration of these Terms of Use or the Service.
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12. Disclaimer of Warranties
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Except as set forth above, phytech 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. Phytech 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 phytech will fix any errors;
or (iv) that the service or use data will improve crop yields. You understand that service may be affected or interrupted by weather, heat, floods, communications and/or cellular network interruptions, software bugs and errors and other factors and acts of god, and that phytech bears no responsibility for the same.
You acknowledge that you solely decide if and how to use and/or implement any use data obtained from the service.
Any use data or other information obtained through use of the service are obtained at your own discretion and risk. Phytech shall not be responsible for any damage or loss caused to you, your property, crop yields, crop losses, irrigation systems or your computer or damage or loss of data arising out of or relating to the use or inability to use the service or use data or any decision made or action taken by you in reliance on information or use data obtained from the service, even if phytech is advised of the possibility of such damages.
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.
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13. Limitation of Liability
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Your use of the hardware and the service is entirely at your own risk. Phytech will not be liable to you for any indirect, incidental, special, extraordinary, or consequential damages, loss of revenue or profits, business interruption or crop damage, loss of data, even if you have informed phytech of the possibility of such damages. You agree that phytech 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 service, hardware, software, or related services or the use data or other information provided or used through the service. In no event shall phytech’s total liability for any claims damages or loss relating to or arising out of use of the service or the hardware shall exceed in the aggregate the fees paid by you for the service during the twelve ((12)) months preceding the assertion of the claim.
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14. Indemnification
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You will defend, indemnify, and hold Phytech 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. Phytech 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 Phytech may participate in such defense and negotiations through counsel of its own choosing at its own expense. You will reimburse Phytech for all expenses incurred by Phytech through such cooperation with You in the defense and related settlement negotiations. No settlement of a Claim may be made by You without Phytech’s prior written consent, which shall not be unreasonably withheld.
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15. Changes to These Terms of Use
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When We change these Terms of Use in a material manner, we will update the ‘last modified’ date at the top of this page. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Use. 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).
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16. Miscellaneous
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These Terms of Use constitute the full and complete understanding of You and Phytech as to the subject matter hereof and may not be altered or modified, except by written amendment which is duly executed by both parties. Further, these Terms of Use will be construed and governed in accordance with the laws of Israel, excluding the application of its conflicts of law rules. The United National Convention on Contracts for the International Sale of Goods shall not apply. The parties agree that the exclusive venue and jurisdiction for any dispute arising under or relating to the Service or the Terms of Use shall be a court of competent jurisdiction located in Tel Aviv, Israel, and each party hereby expressly consents to the personal jurisdiction of said courts and waives any objection to such jurisdiction based on forum non convenience. If any provision of these Terms of Use is found void and unenforceable, it will not affect the validity of the balance of these Terms of Use, which will remain valid and enforceable according to its terms. No action, regardless of form, arising out of the Services under these Terms of Use may be brought by you more than one (1) year after the events that gave rise to the cause of action occurred.
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17. Contact
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For any questions please contact us at Info@Phytech.com