Data Upload Agreement

This Device Lease and Data Upload Agreement (“Data Upload Agreement” or “Agreement”) provides the terms offered by Merso Labs, Inc. (“Agreement”) for your lease of a Merso Labs Probe Device (“Device”) and your agreement to upload data from the Device to Merso Labs’ servers. Your access to data on Merso Labs’ servers is explained in Merso Labs’ Data Use Agreement, website Terms of Serviceand Privacy Policy. “You” means the person or organization signing this Agreement.

1. Device Lease

  1. Lease :You agree to lease a Merso Labs Probe (“Device”) as provided in this Agreement. Your leased Device requires use of embedded Software which is licensed to you as provided below for the duration of the lease. If you lease multiple Devices, this Agreement shall be applicable to each Device.
  2. Term :The lease shall begin upon the date this Agreement is signed by you and shall continue for a period defined of one year, as selected by you when signing up (the “Term”).
  3. Ownership of Device :During the Term, Merso Labs owns the Device. Upon conclusion, termination, or non-renewal of the Term you must return the Device to Merso Labs, unless Merso Labs informs you otherwise.
  4. Ownership of Data : You are the owner of the Data generated by the Device. Merso Labs’ Data Use Agreement explains your rights with respect to Data.
  5. Installation :You are responsible for proper installation of the Device according to the product guidelines. Failure to properly install the Device may reduce or eliminate functionality. The Device is not designed to withstand field traffic, crop residue, or other field conditions that may damage the Device’s external casing. Merso Labs is not responsible for damage caused due to weather conditions.

2.Software and Intellectual Property

  1. License to Use the Device’s Software : The Device runs software owned by Merso Labs and licensed to you during the Term (“Software”). Merso Labs may update the Software during the Term, and this license shall cover any updates. You are granted a limited non-exclusive license to use the Software on a single Device during the Term. You may not distribute, copy, or make the Software available over a network where it could be used by multiple devices at the same time. This License does not grant you any rights to use Merso Labs proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third-party devices and accessories, or third-party software applications. You may not, and you agree not to enable others to copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or any services provided by the Software. You may not lease, lend, sell, or sublicense the Software. The obligations of this paragraph shall continue after termination of this Agreement or after the Term ends. Your license to use the Software on the Device ends when the Term ends.
 
  1. Intellectual Property : All images, patents, trademarks, service marks, logos, icons, and other intellectual property (“Intellectual Property”) displayed on or contained in the Device or Merso Labs website are the exclusive property of Merso Labs and may not be used without Merso Labs’ prior written consent. The obligations of this paragraph shall continue after termination or termination of this Agreement.

3. Data Upload and Subscription

  1. Data Uploads : The Device collects Data when properly installed and uploads this Data to Merso Labs’ servers. During the Term, you consent to allow Merso Labs to receive and store your Data on the Merso Labs servers and clean your Data by removing perceived errors and omissions. You may not direct your Device to transmit Data to any other location other than Merso Labs. Your ability to access, share, and delete Data is explained in Merso Labs’ Data Use Agreement.
  2. Subscription Required : Your Device requires an active Merso Labs subscriber account in order to access Data uploaded by your Device to Merso Labs’ servers. A Merso Labs subscriber account may be created at Merso Labs’ website and must be maintained throughout the Term in order for you to access Data uploaded by the Device.
  3. Your Personal Information : When create an account, Merso Labs creates certain unique identifiers to enable Merso Labs to record your Device’s Data (as defined in the Data Use Agreement) and associate such information with your account. These unique identifiers are associated with your Personal Information, such as name, address and phone number. Personal Information is defined in Merso Labs’ Privacy Policy, which also explains Merso Labs’ promise to protect your Personal Information.
  4. Data Security : To prevent unauthorized access, maintain data accuracy, and ensure the correct use of information, Merso Labs has established appropriate physical, electronic, and managerial procedures to safeguard and secure the Data collected from your Device. Merso Labs will notify you by email if Merso Labs has reason to believe that your Data was unlawfully accessed by a third party.

4. Merso Labs Limited Warranty

  1. Limited Warranty for the Term : Merso Labs warrants that, under normal use and service, the Device shall be free from material workmanship defects for a period of three years after delivery to you for the duration of the Term. Merso Labs’ sole obligation for warranty defects shall be to correct the failure by repair, replacement, or adjustment, as determined in the Merso Labs’ sole discretion. The warranty provided in this paragraph does not cover defects caused by misuse, misapplication, or other conditions or events caused by you, in which case this warranty is void.

  2. Disclaimer : The Device is designed to provide you with insights into field conditions. Merso Labs makes no recommendations regarding in-field or farming decisions. You should not rely on the Device to make in-field or farming decisions. You should always verify the information provided by the Device before making in-field or farming decisions. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED ABOVE, THE DEVICE IS PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MERSO LABS DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM THE USE OF THE DEVICE WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF THE DEVICE WILL MEET YOUR EXPECTATIONS.

5. Breach and Termination

  1. Breach by You : Upon any breach of this Agreement by you, Merso Labs may terminate your use of the Merso Labs Web Services, your account, and access to Merso Labs servers (without refund of any Subscription Fee) and Merso Labs may obtain damages caused by your breach. Your breach shall further constitute a permanent non-exclusive license of your Data to Merso Labs for any use Merso Labs determines is appropriate. Merso Labs shall be entitled to any attorneys’ fees incurred enforcing this Agreement. Merso Labs may also seek injunctive relief to prevent you from misappropriating the Software, Web Services, Intellectual Property, or other aspects of the Device.
 
  1. Breach by Merso Labs : In the event of any breach of this Agreement by Merso Labs, you shall provide Merso Labs with written notice of the breach. Merso Labs shall have thirty (30) days to cure the breach. In the event Merso Labs fails to cure the breach, this Agreement shall terminate and refund you the remainder of your Subscription Fee for the Term. In any event, Merso Labs shall not be liable for indirect or consequential damages, and your recovery shall be limited to a refund of the Annual Fees paid.
 
  1. Indemnity : You agree to indemnify, defend, and hold harmless Merso Labs, including its employees, agents, officers, developers, and licensors, from any damages, costs, claims, injuries, and liabilities (including attorneys’ fees) arising from your use of the Device outside of the scope of this Agreement.

6. Additional Legal Terms

    1. Modifications
      :
      Usage of Data is rapidly evolving. Merso Labs may update this Agreement during the Term to reflect changes in (a) the law, (b) the Device’s functionality, (c) data sharing options through the Merso Labs website, or (d) Merso Labs’ agreements with other technology providers. No change in this Agreement shall occur without your continued consent.

 

    1. Complete Agreement : If any provision of this Agreement is determined to be unenforceable, the remainder of this Agreement shall remain in effect. This Agreement shall be interpreted as drafted by both parties. Any failure by Merso Labs to enforce any provision shall not be a waiver of such provision. This Agreement is the complete agreement and understanding between the parties. This Agreement may not be modified or amended except pursuant to a writing executed by both parties.

 

    1. Binding Arbitration Clause : Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Lompoc, California before three arbitrators. The arbitration shall be administered by arbitrators chosen by both parties. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

 

    1. Governing Law : This Agreement is are governed by California law. Any suit naming Merso Labs (including any affiliated company or brand, owners, employees, attorneys, or agents) as a party involving these Terms must be filed in the state courts or federal district court located in California, and you consent to venue and jurisdiction there. This Agreement creates no third-party beneficiary rights. Merso Labs’ failure to enforce any provision in this Agreement is not a waiver of the right to do so at a later date. If any provision is found unenforceable, the remaining provisions of the Agreement will remain in full effect. You may not assign your Merso Labs account or any of your rights in this Agreement. Merso Labs may assign its rights without your consent. This Agreement does not create an employee, partnership or agency relationship between you and Merso Labs.

 

    1. Notice : If you need to contact Merso Labs for any purpose regarding this Agreement, please email [email protected].

 

  1. Electronic Signature : The parties agree that this Agreement may be signed electronically. Any electronic signature for this Agreement has the same meaning and effect as a handwritten signature for the purposes of enforceability and admissibility. If you are signing on behalf of an entity, such as company, partnership, or corporation, your signature provides your authorization to bind the entity by this Agreement.