http:\/\/fieldkit.org\/privacy-policy\/<\/a> (the \u201cPrivacy Policy<\/u>\u201d), which is hereby incorporated into this Agreement.\u00a0 Each party shall comply with the Privacy Policy. By agreeing to the terms of this Agreement (including using and providing information to or through the Product), you are accepting and agreeing to the Privacy Policy, as it may be modified from time to time in accordance with its terms, including your consent to all actions taken by FieldKit with respect to your information in compliance with the Privacy Policy.<\/p>\nb. Children<\/strong>\u00a0FieldKit does not knowingly collect personal information from children under the age of 13.\u00a0 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.\u00a0 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.<\/p>\n4. Our Ownership Rights<\/strong><\/h4>\na. Our Property<\/strong>\u00a0All 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 \u201cOur Property<\/u>\u201d.\u00a0 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.\u00a0 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.\u00a0 We reserve all other rights.\u00a0 For clarity and without limiting other obligations herein, Users shall not distribute or otherwise commercialize Our Property.<\/p>\nb. Our Marks<\/strong>\u00a0You 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.\u00a0 The Product may also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks.\u00a0 Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.<\/p>\nc. Feedback<\/strong>\u00a0If you provide to us (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, or other submissions related to the Product (collectively \u201cFeedback<\/u>\u201d), the Feedback will be the sole property of FieldKit.\u00a0 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.<\/p>\n5. Use of the Product<\/strong><\/h4>\na. Acceptable Use <\/strong>You must comply with any rules and policies about use of the Product that we publish from time to time.\u00a0 Certain features or content within the Product may contain supplemental terms of use to which you must agree in order to use the relevant features or content. Subject to the terms and conditions herein, unless otherwise agreed in writing between you and FieldKit, you are permitted to use the Product solely for your own personal use. The Product and any Results (as defined in Section 6) generated by the Product are for informational purposes only. Unless otherwise agreed by FieldKit in writing, the Product is not designed to facilitate the making of decisions regarding compliance with environmental laws or regulations. Under no circumstances shall the Product be used in a manner that is detrimental or harmful to environmental conditions. By using the Product, you hereby agree that you are solely responsible for your own conduct while using the Product and for any consequences thereof. You agree to use the Product only for the purposes that are proper and in accordance with all laws, rules, and regulations, and all terms, precautions, practices, policies and guidelines FieldKit has made and may make available. You agree that you shall exercise due and proper care in the operation, use and maintenance of the Product.<\/p>\nb. Restrictions<\/strong>\u00a0You 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 \u201ccrawl\u201d, \u201cscrape\u201d or \u201cspider\u201d 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.<\/p>\n6. Data and Results<\/strong><\/h4>\nData and information which you input into the Product or which is collected from or about your use of the Product (the \u201cUser Data<\/u>\u201d) or which is generated from your use of the Product (the \u201cResults<\/u>\u201d) 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.\u00a0 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.<\/p>\n
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\u2019s 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.<\/p>\n
FieldKit does not guarantee the accuracy, integrity or quality of User Data or the Results.\u00a0 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.<\/p>\n
7. Cloud Services and Third Party Services<\/strong><\/h4>\nWithout 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 \u201cCloud Providers<\/u>\u201d); (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.<\/p>\n
The Product may depend upon, interact with or enable access to third parties\u2019 information, other content, services, websites, or hardware, including your Internet-enabled device, the network provided by your wireless or Internet service provider, your browser, email and SMS programs, dialer and other applications (each, a \u201cThird Party Service<\/u>\u201d), which may in each case be accompanied by separate terms of use.\u00a0 Use of each Third Party Service may require that you accept additional terms of use.\u00a0 You must comply with the applicable terms of use when using any Third Party Service with the Product.\u00a0 FieldKit does not endorse, and hereby disclaims all liability or responsibility to you or any other person for, any Third Party Services.<\/p>\n8. Warranty Disclaimers and Limitations of Liability<\/strong><\/h4>\na. Disclaimers <\/strong>THE PRODUCT IS PROVIDED \u201cAS IS\u201d, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND.\u00a0 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.\u00a0 We may pause or interrupt the Product at any time, and you should expect periodic downtime for updates to the Product.\u00a0 In addition, you understand that changes in third party technology or government regulation may render the Product obsolete and\/or unusable.\u00a0 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.<\/p>\nb. Limitation of Liability <\/strong>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.\u00a0 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.<\/p>\n9. Indemnity<\/strong><\/h4>\nIn 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\u2019 fees (collectively, \u201cLiabilities<\/u>\u201d) 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).\u00a0 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.\u00a0 You will cooperate with us with respect to such defense and settlement.<\/p>\n10. Arbitration<\/strong><\/h4>\nPlease 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.<\/p>\n
Binding Arbitration <\/strong><\/h5>\nWe will attempt to resolve any disputes or claims to your satisfaction and ours.\u00a0 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.\u00a0 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.\u00a0 This arbitration provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets.<\/p>\n
Arbitration Procedures <\/strong><\/h5>\nThe arbitration of any dispute or claim shall be administered by the American Arbitration Association (\u201cAAA<\/u>\u201d) 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.\u00a0 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.<\/p>\nCosts of Arbitration <\/strong><\/h5>\nArbitration 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.\u00a0 However, a party may recover any or all fees and expenses from another party if the arbitrator, applying applicable law, so determines.\u00a0 Except for claims determined to be frivolous, we agree not to seek an award of attorneys\u2019 fees in arbitration even if such an award is otherwise available under applicable law.<\/p>\n
Class Action Waiver and Jury Waiver <\/strong><\/h5>\nYou 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.\u00a0 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.\u00a0 If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.<\/p>\n
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.<\/p>\n
11. Governing Law; Jurisdiction<\/strong><\/h4>\nThis 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\u2019s conflict of laws principles that would apply another law.\u00a0 The United Nations Convention for the International Sale of Goods is hereby disclaimed.\u00a0 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.<\/p>\n
12. Limited Third Party Beneficiaries<\/strong><\/h4>\nFieldKit\u2019s affiliates that control, are controlled by or under common control with FieldKit are intended third party beneficiaries of Sections 8<\/u> and 9<\/u> of this Agreement.<\/p>\n13. Term and Termination<\/strong><\/h4>\nThis 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.\u00a0 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.\u00a0 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.<\/p>\n
14. Force Majeure<\/strong><\/h4>\nIn 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.\u00a0 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.<\/p>\n
15. Compliance with Laws<\/strong><\/h4>\nYou 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.<\/p>\n
16. Geography<\/strong><\/h4>\nWe provide the Product for use by persons located in the United States.\u00a0 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.\u00a0 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.<\/p>\n
17. Notifications; Notice; Questions<\/strong><\/h4>\nAll 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.\u00a0 Notifications or notices under this Agreement to FieldKit require that an additional copy be sent to: 405 14th Street, Suite 164, Oakland, CA 94612.<\/p>\n
18. Miscellaneous Provisions<\/strong><\/h4>\nExcept as otherwise expressly provided herein, this Agreement, which includes the Privacy Policy, the Return Policy and all other agreement which are incorporated herein by reference, sets forth the entire agreement between us and you regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter.\u00a0 This Agreement and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by you to any third party without our prior written consent in our sole discretion.\u00a0 Any purported assignment, transfer or delegation without such consent will be null and void.\u00a0 We may assign or otherwise transfer or delegate this Agreement (including any rights or obligations hereunder), including to any purchaser of our business, from time-to-time in our sole discretion.\u00a0 This Agreement will be binding upon and inure to the benefit of the parties\u2019 successors and permitted assigns.\u00a0 This Agreement may be executed electronically, and your electronic assent or use of the Product shall constitute execution of this Agreement.\u00a0 You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a \u201csigning\u201d for all purposes.\u00a0 No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein.\u00a0 No waiver will be binding on us unless made in an express writing signed by us.\u00a0 Except as otherwise expressly provided herein, if any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.\u00a0 As used herein and unless the intent is expressly otherwise in a specific instance, the terms \u201cinclude,\u201d \u201cincludes\u201d or \u201cincluding\u201d shall not be limiting and \u201cor\u201d shall not be exclusive.\u00a0 Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement.<\/p>\n
All rights that are not expressly granted under this Agreement are reserved by FieldKit.<\/p>\n
\u00a9 2020 [FieldKit]<\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
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