A Program of Multiplier
User Purchase Agreement
Last updated on November 17, 2020
These Terms of Service (this “Agreement”) set out the terms on which [FieldKit], a program of Multiplier (“FieldKit”, “we”, or “us”) will provide access to and use of certain services and products which allow Users to monitor and analyze certain changes to environmental conditions (collectively, the “Product”) available on or through our website www.fieldkit.org (the “Site”) to you, a user of the Product (“you” or “User”).
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND FIELDKIT AND INCLUDES AN ARBITRATION PROVISION UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY. By indicating acceptance of this Agreement or by otherwise using the Product, you are entering into a legally binding agreement with us (and you hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement). If you are using the Product on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the terms “User” and “you” will include both you, the individual user, and such organization. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING THE ARBITRATION PROVISION IN SECTION 10, DO NOT USE THE PRODUCT.
1. Nature of the Product
a. Environmental Monitoring System The Product enables users to collect and share field-based research data regarding environmental conditions. The Product is comprised of the FieldKit hardware and software, including (i) a web-based data visualization platform, (ii) a mobile application, and (iii) customizable, easy to deploy sensory devices, which generate data accessible through the application. To use the Product, you must purchase the FieldKit hardware and sensory devices (collectively, the “Devices”) which you can use to perform certain testing to evaluate environmental conditions such as air or water quality or soil composition. The Devices will then generate certain information and data related to the monitored environment or ecosystem. You can configure the sensory devices to your liking through the mobile application and share your research data through the web-based platform.
b. Device and Equipment Requirements Once purchased, the User takes title to the Devices. In addition to the Devices, proper operation of the Product may require certain equipment and services that FieldKit does not provide, maintain or operate, but instead are the responsibility of either you and/or third parties. In order to access and use the software components of the Product, you must have internet access through an internet browser supported by FieldKit and its licensors. You further understand that equipment requirements may change at any time, without notice, and that further access to the Product may require acceptance of additional agreements or a newer version of this Agreement. For example, the internet browser through which you access the web platform may be made obsolete by a newer version, which may require updating an operating system and/or downloading a new version of the browser software and accepting a newer version of this Agreement.
c. Registration When you purchase the Product, we may require you to provide certain registration information to us, which may include first name, last name, email address, physical address for Product delivery, and telephone number, and to create a password and register with us. To the extent you are using the Product on behalf of an organization, you may need to also provide us with information in order to confirm, or permit us to confirm, any relationship between you and such organization. We may also request additional information from you. You represent and warrant to us that you will provide us with accurate, current and complete registration information. You are responsible for your registration, and for all use of the Product using any User credentials or passwords issued to you or chosen by you. You will keep all such credentials and passwords confidential.
d. Changes to the Product and Agreement We reserve the right, in our sole discretion, to modify the Product at any time, without notice to you. We also from time to time may amend this Agreement prospectively. If we do so, we will change the “last updated” date on this Agreement and post the amended Agreement on [https://____] and the Product. You agree that your continued use of the Product constitutes your agreement to the amended Agreement. If you do not agree to any amended Agreement that we publish, DO NOT USE THE PRODUCT. Except as set forth above, this Agreement may be amended or modified only by an express writing signed by FieldKit.
2. Purchase Information
a. Purchase Disclaimers We strive to ensure that the information on our Site is complete and reliable. Nonetheless, the Site may contain pricing errors, typographical errors and other errors or inaccuracies for which we will not be liable to you or any other person, unless otherwise prohibited by law. We reserve the right to limit quantities of Products purchased by Users. We do not guarantee that all varieties of Products described on our Site, in our e-mails or in other communications to you will be available.
b. Payment Terms The Product, or certain features of the Product, may be available only if certain fees or payments are paid by you. In order to purchase the Product, you will provide us (or our designated third-party payment provider) with accurate and valid credit card or other digital payment information and update your credit card or other payment information in the event any information provided becomes invalid or incomplete. All payments shall be made in U.S. dollars. You are responsible for any tax, duty, custom or other fee of any nature, other than taxes on FieldKit’s income, imposed on the Product by any federal, state, local or foreign government authority. We retain the right to charge interest on any overdue balance at the rate of 1.5% per month, or the maximum amount permitted by law (if lower). You will also be responsible for our reasonable costs of collection, including attorney’s fees, if we deem it necessary to take any legal or administrative action to collect unpaid amounts. We reserve the right to accept, refuse or cancel any orders placed through the Site without liability or justification.
c. Returns and Refunds We will refund you (a) if your order was cancelled by us after your credit card or other digital payment method has been charged, (b) for Products you receive which are non-conforming with your order or otherwise unsatisfactory; provided, that you contact us within thirty (30) days of purchase of the unsatisfactory Products, and you ship the unsatisfactory Products to us at your expense at the address set forth in our Return and Refund Policy, available [here]. We may require additional information from you prior to issuing such a refund. Please see our Return and Refund Policy, available [here], for instructions of how to contact us if you are not satisfied with your Product for any reason.
b. Children FieldKit does not knowingly collect personal information from children under the age of 13. If you are under the age of 13, you are not permitted to purchase the Product, register as a User or to send personal information to FieldKit. If you are under the age of 18, you represent that your parent or legal guardian has accepted this Agreement on your behalf and that such parent or legal guardian has the capacity and authority to enter into this Agreement.
4. Our Ownership Rights
a. Our Property All the software, algorithms, functionality, inventions, concepts, text, images, sound, music, videos, marks, logos, compilations, content and technology used to deliver the Product or otherwise embodied in, displayed through, or provided directly or indirectly (e.g., emails or other communications from us to you) via, the Product are “Our Property”. You acknowledge that Our Property has been created, compiled, developed and maintained by us at great expense of time and money such that misappropriation or unauthorized disclosure or use of Our Property by others for commercial gain would unfairly and irreparably harm us in a manner for which damages would not be an adequate remedy, and you consent to our obtaining injunctive relief to restrain any breach or threatened breach of this Agreement, without any requirement to post bond. You may be subject to criminal or civil penalties for violation of this paragraph. Subject to the terms and conditions herein, we grant you the non-exclusive, limited, revocable, non-transferable, non-sublicenseable right to access and use Our Property solely to the extent necessary for you to use the Product for your own personal use, as permitted by this Agreement. We reserve all other rights. For clarity and without limiting other obligations herein, Users shall not distribute or otherwise commercialize Our Property.
b. Our Marks You may not use the trademarks FIELDKIT, CONSERVIFY, or any of our other marks or logos, in any manner, including any use that is likely to cause confusion or that disparages or discredits us, without our consent. The Product may also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
c. Feedback If you provide to us (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, or other submissions related to the Product (collectively “Feedback”), the Feedback will be the sole property of FieldKit. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. We are and shall be under no obligation to maintain any Feedback in confidence, or to respond to any Feedback.
5. Use of the Product
b. Restrictions You must not (a) use the Product in any way that would violate any law or the rights of any person or entity, including but not limited to all applicable federal, state, and local laws, regulations and codes; (b) impersonate any person or entity in your registration information; (c) except as otherwise expressly permitted by this Agreement, harvest or otherwise collect information about others from the Product; (d) take any action that imposes or may impose an unreasonable or disproportionately large load on the Product or its infrastructure, or bypass any measures we may use to prevent or restrict access to any portion of the Product (or other accounts, networks or services connected thereto); (e) use manual or automated software, devices, or other processes to “crawl”, “scrape” or “spider” any of the Product or otherwise to copy, obtain, propagate, distribute or misappropriate any information or other content from the Product, including any of Our Property; (f) distribute or otherwise make available any information or other content obtained through the Product to any third party, except as expressly permitted herein; (g) otherwise interfere in any manner with the use or operation of the Product; (h) use the Product in the development, directly or indirectly, of any product, software or service that offers any functionality substantially similar to, or competitive with, the Product, or to sell any product or service, or to undertake any endeavor aimed at deriving revenue, other than as expressly permitted by this Agreement, or (i) use the Product to publish, transmit or otherwise disseminate any content which we in our sole discretion believe is untruthful, misleading, inaccurate, inflammatory, harmful, illegal or offensive.
6. Data and Results
Data and information which you input into the Product or which is collected from or about your use of the Product (the “User Data”) or which is generated from your use of the Product (the “Results”) may include without limitation commentary, photos, and other information and data entered by you or generated by the Product related to the environment, information related to the Devices, and information related to your surroundings. You acknowledge that when you access or use the Product (including the Devices), FieldKit may use automatic means to collect information about you and your access to and use of the Product. All User Data and Results are stored in a private and secure fashion, and will not be used by FieldKit except as permitted herein and in accordance with the administrative permissions set by you. You hereby grant to FieldKit a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up right to use, reproduce, manipulate, display, transmit and distribute the User Data and the Results in connection with providing the Product to you, and improving and developing the Product. In addition, FieldKit may analyze User Data and Results, and data of other users, to create aggregated or anonymized statistics or data that do not identify you, and FieldKit may during and after the term of this Agreement use and disclose such statistics or data in its discretion.
The Product allows you to configure your access settings to share some or all of your User Data and Results with other Users. You hereby grant and agree to grant to each other User who has administrative permission to access some or all of your User Data and Results a non-exclusive, royalty-free license to access and use such User Data and Results, in each case, solely for such User’s use of the Product for the specified purpose of the Product while such administrative permissions remain in effect, in accordance with the terms and conditions herein.
FieldKit does not guarantee the accuracy, integrity or quality of User Data or the Results. You shall not: (a) upload or otherwise make available to FieldKit any User Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to FieldKit any User Data that you do not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any User Data that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to FieldKit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Service or servers or networks connected to the Product; or (f) violate any applicable law, rule or regulation, including those regarding the export of technical data.
7. Cloud Services and Third Party Services
Without limitation of the disclaimers and limitations of liability set forth in Section 8, you acknowledge and agree as follows: (a) we provide the Product using cloud computing services of one or more third party cloud providers (collectively, the “Cloud Providers”); (b) the price at which we could afford to offer the Product would vary if we provided the Product other than using such cloud services; and (c) we shall not be responsible or liable to you for any act, omission or failure of any Cloud Provider.
8. Warranty Disclaimers and Limitations of Liability
a. Disclaimers THE PRODUCT IS PROVIDED “AS IS”, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; (ii) THAT THE PRODUCT OR OUR PROPERTY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, DATA OR RESULTS OBTAINED FROM THE PRODUCT OR OUR PROPERTY. We may pause or interrupt the Product at any time, and you should expect periodic downtime for updates to the Product. In addition, you understand that changes in third party technology or government regulation may render the Product obsolete and/or unusable. No advice or information, whether oral or written, obtained by you from us, our affiliates, or through the Product will create any warranty. THE FIELDKIT HARDWARE IS WATER-RESISTANT AND NOT WATERPROOF. THE FIELDKIT HARDWARE IS NOT MEANT TO BE SUBMERGED IN WATER. WE SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF THE PRODUCT BEING USED IN APPLICATIONS NOT EXPRESSLY INTENDED BY FIELDKIT AS SET FORTH HEREIN.
b. Limitation of Liability UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM US OR ANY OF OUR AFFILIATES ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, THE PRODUCT, THE RESULTS OR OUR PROPERTY, EVEN IF WE OR OUR AFFILIATES HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR (INCLUDING OUR AFFILIATES) MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE PRODUCT, THE RESULTS OR OUR PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE PURCHASE PRICE YOU PAID FOR THE PRODUCT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
In consideration of FieldKit providing you access to and use of the Product, to the maximum extent permitted by applicable law, you agree to indemnify FieldKit, and its affiliates, third party service providers, agents and licensors, against any and all claims, actions, proceedings, suits, demands, liabilities, losses, damages, costs, expenses and attorneys’ fees (collectively, “Liabilities”) arising out of or related to (i) your breach of this Agreement; (ii) your access to, use of, failure to use, or inability to use the Product; (iii) claims for libel, slander, or any property damage, personal injury or death, arising out of or related in any way directly or indirectly to your use of the Product; or (iv) any activities of anyone other than you in connection with access or use of the Product through your account or with your credentials (but excluding any Liabilities to the extent caused by our gross negligence or willful misconduct). We reserve the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to indemnify us. You will cooperate with us with respect to such defense and settlement.
Please read this arbitration provision carefully. It affects rights that you may otherwise have. It provides for resolution of most disputes through arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This arbitration provision shall survive termination of this Agreement.
We will attempt to resolve any disputes or claims to your satisfaction and ours. If, however, a matter arises that cannot be resolved promptly between you and us, you agree that any dispute or claim arising out of or relating to the Product or this Agreement and your relationship with FieldKit or any affiliate, including their respective employees, agents, contractors or service providers, shall be resolved by binding arbitration, except that either of us may take claims to small claims court if they qualify for hearing by such a court. The obligation to arbitrate under this provision shall extend to any claims by you against any affiliate, officer, director, agent, employee, or contractor of FieldKit. This arbitration provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets.
The arbitration of any dispute or claim shall be administered by the American Arbitration Association (“AAA”) and shall be conducted before a single arbitrator pursuant to the applicable rules established by the AAA. The AAA rules and information about arbitration and fees are available online at www.adr.org. Any arbitration shall be held in Oakland, California, unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. The arbitration will be conducted in the English language. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
Costs of Arbitration
Arbitration fees shall be determined in accordance with the arbitration rules. Each party will bear the fees and expenses of its own attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration. However, a party may recover any or all fees and expenses from another party if the arbitrator, applying applicable law, so determines. Except for claims determined to be frivolous, we agree not to seek an award of attorneys’ fees in arbitration even if such an award is otherwise available under applicable law.
Class Action Waiver and Jury Waiver
You and we each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not on a class, mass, representative, or private attorney general basis. You and we further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.
If any part of this arbitration provision is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this provision shall remain in effect, with the exception that if a court or arbitrator determines in an action between you and us that the above class action waiver is unenforceable, then this arbitration provision will be void as to you.
11. Governing Law; Jurisdiction
This Agreement and use or operation of the Service are governed by the substantive laws of the State of California, U.S.A., without regard to its or any other jurisdiction’s conflict of laws principles that would apply another law. The United Nations Convention for the International Sale of Goods is hereby disclaimed. If the arbitration provision is ever deemed unenforceable or void or not applicable to the specific claim, you irrevocably consent to the exclusive jurisdiction of the federal and state courts in Oakland, California, U.S.A., for purposes of any legal action arising out of or related to this Agreement or the Service.
12. Limited Third Party Beneficiaries
FieldKit’s affiliates that control, are controlled by or under common control with FieldKit are intended third party beneficiaries of Sections 8 and 9 of this Agreement.
13. Term and Termination
This Agreement becomes effective immediately when you purchase the Product and shall remain in effect (and if amended, as amended) until your use of the Product terminates in accordance with this Section. You may terminate this Agreement at any time by closing your account and ceasing to use the Product. We reserve the right to suspend your account and/or access to the Product at any time if we believe you are in breach of this Agreement. We reserve the right to terminate this Agreement or to cease to offer the Product at any time on written notice to you (including by posting on the Product) for any reason or no reason. If your account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Product, (c) that the license and rights provided by us under this Agreement shall end, and (d) that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of the Service or for termination of access to your account. Sections 1-4, 6 and 8-17, any accrued obligations and remedies hereunder, and any other provisions that by their nature should reasonably survive, shall survive the termination or expiration of this Agreement.
14. Force Majeure
In no event will we be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside our reasonable control. Without limitation of the foregoing, in the absence of our gross negligence or willful misconduct, we will not be liable for any damages arising from the acts of hackers or similar bad actors interfering with the software components of the Product.
15. Compliance with Laws
You will comply with all laws and regulations applicable to your activities under or in connection with this Agreement, including without limitation United States export control laws, regulations and executive orders.
We provide the Product for use by persons located in the United States. We make no claims that the Product or any of its content is accessible or appropriate outside of the United States. Access to the Product may not be legal by certain persons or in certain countries. If you access the Product from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
17. Notifications; Notice; Questions
All notifications or notices required under this Agreement to be provided to FieldKit and questions or comments that you have about this Agreement or the Product may be sent to [EMAIL] and are deemed given when FieldKit receives them. Notifications or notices under this Agreement to FieldKit require that an additional copy be sent to: 405 14th Street, Suite 164, Oakland, CA 94612.
18. Miscellaneous Provisions
All rights that are not expressly granted under this Agreement are reserved by FieldKit.
© 2020 [FieldKit]