PURCHASE AND LICENSE AGREEMENT
This AutoCart System Purchase and License Agreement (the “Agreement”) governs the placement of pre-orders (the “Pre-Orders) with Smart Ag, LLC, an Iowa limited liability company, (“Smart Ag”) for our AutoCart System (as hereafter defined). Read this Agreement carefully and completely before submitting any Pre-Order(s) for the AutoCart System. By submitting a Pre-Order, you agree to be legally bound by this Agreement. You acknowledge and agree that this Agreement is a legally enforceable contract entered into and made enforceable by and between you and Smart Ag and governing your use of the AutoCart System.
By submitting a Pre-Order, or by activating, accessing, or otherwise using the Auto Cart System, you represent that you have read and understand this Agreement and that you are bound by and shall perform faithfully all of the obligations of this Agreement, including warranty disclaimers, limitations of liability, and termination provisions contained herein.
- AutoCart System.
The “AutoCart System” includes:
- One (1) SmartHP. SmartHP is an automation system for tractors, and includes all connection harnesses, equipment, hardware, and installation instructions to automate the tractor for use with a grain cart or other equipment.
- One (1) SmartNX. SmartNX is the hardware that connects your combine or other machine to the cloud and any other automated machine, such as a grain cart tractor.
- One (1) year AutoCart software subscription. This includes the software, data plan, updates and service to set up, monitor, and control the autonomous grain cart, as well as lifelong access to the AAVI platform with unlimited data storage and transfer capabilities (the “Software”). After the initial one-year software subscription expires, you shall pay to Smart Ag the annual software subscription fee of $2,500 per year to continue using the AutoCart Software.
When placing a Pre-Order for the AutoCart System, you will be required to provide certain information, such as your address, billing information, and machinery information. You represent and warrant that all such information is accurate, and you shall ensure that such information is kept current. Smart Ag shall have no responsibility or liability for inaccurate information or information that later becomes outdated, and shall have no obligation to make efforts to determine the correct contact information, shipping information, or machinery information. You can update your information at any time prior to shipment by sending an email to email@example.com. Pre-Orders are limited, and availability shall be based upon a first-come-first-served basis.
The total purchase price for the AutoCart System is Thirty Two Thousand Five Hundred Dollars ($32,500.00 USD). The purchase price does not include taxes and other governmental charges, which are your responsibility. If the purchase price is lowered within 30 days of shipment of the AutoCart System to you, Smart Ag will refund the difference to you. If the purchase price is raised after the placement of your Pre-Order, your Pre-Order shall not be affected. You will be charged a down payment of Three Thousand Two Hundred and Fifty Dollars ($3,250.00 USD) (the “Down Payment”), due at the time of placement of the Pre-Order(s). The Down Payment will be charged by Smart Ag through your credit card, immediately upon placement of the Pre-Order(s). The remaining balance of Twenty Nine Thousand Two Hundred Fifty Dollars ($29,250.00 USD) (the “Remaining Balance”) shall be due on or before shipment. The Remaining Balance will be charged by Smart Ag through your credit card or invoiced before shipment. Smart Ag will not under any circumstance ship the AutoCart System without payment in full. If Smart Ag is unable to commence shipment of the AutoCart System on or before August 15, 2018 Smart Ag shall process a full refund to you. YOUR PLACEMENT OF A PRE-ORDER OR PRE-ORDERS CONSTITUTES YOUR EXPRESS AGREEMENT AND CONSENT TO SMART AG (1) CHARGING THE DOWN PAYMENT AT SUCH TIME AND (2) CHARGING THE REMAINING BALANCE AT THE TIME OF SHIPMENT.
- Delivery Schedule.
Although we will make efforts to begin delivering the Auto Cart System between June 1, 2018 and August 1, 2018, you understand and agree that there may be delays. Smart Ag will provide you with updates and production progress statuses on a reasonable basis. An estimated time of delivery is an estimate only, is subject to change, and Smart Ag does not represent or warrant that it will be able to ship the AutoCart system by the estimated date. As a result, in the event that a delay arises and the estimated shipment of the AutoCart System is not met, Smart Ag is not responsible for any damages that may occur due to the delay, nor shall it be obligated, except as otherwise expressly set forth in this Agreement, to provide any discounts, refunds, or credits due to any such delays.
You or Smart Ag may cancel your Pre-Order at any time for any or no reason prior to receiving notice to you that the AutoCart System is ready for delivery/shipment. If you cancel your Pre-Order(s) prior to June 1, 2018, you will receive a full refund of the Down Payment without interest. If you cancel your Pre-Order(s) on or after June 1, 2018, you will not receive a refund of the Down Payment, and will therefore forfeit your Down Payment. If Smart Ag cancels your Pre-Order, you will receive a full refund of the Down Payment without interest. You are not entitled to cancel your Pre-Order at any time after our notice of delivery/shipment of the AutoCart System. To cancel your Pre-Order(s), call (515) 520-1665.
- License Grant.
(a) License; Restrictions. Subject to Section 7 herein and to your payment of the applicable license fees, Smart Ag hereby grants to you, and you accept, a non-exclusive, non-transferable, non-assignable limited license during the Term (as hereafter defined), solely to access and use the Software solely by you and/or your personnel for internal business purposes as authorized by this Agreement. You are solely responsible for the compliance of your personnel to the applicable provisions of this Agreement. The “Term” shall commence on the date the AutoCart System is delivered to you (the “Start Date”) and shall terminate one (1) year after such commencement, provided that, you may successively renew the Term for an additional year (the “Renewal Term(s)”) by paying the annual software subscription fee to Smart Ag, as set forth in Section 1 hereof. The license granted hereunder is exclusive to you. You shall not provide your login credentials or other similar information for use of the Software to any third party. Any violation of this license grant or restrictions shall cause the Term to automatically terminate immediately without notice. You shall not sell, assign, sublicense, transfer, pledge, lease, rent, share, or distribute the Software or any of the rights or obligations granted or imposed on it under this Agreement. You shall not remove, delete, or alter any trademarks, copyright notices, or other notices of Smart Ag from the Software; copy the Software, in whole or in part; rent, lease, lend, sell, sublicense, assign, publish, transfer, or otherwise make the Software available to any third party for any reason; use the Software in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems; use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to Smart Ag’s commercial disadvantage; or use the Software in any other manner or for any other purpose or application not expressly permitted by this Agreement. No exclusive rights are granted by this Agreement. Any right or license not expressly granted to you herein is reserved to Smart Ag and, except as expressly set forth herein, no express or implied license or right of any kind or nature whatsoever is granted to you regarding any Smart Ag Property (as hereafter defined) or regarding Smart Ag’s proprietary trademarks, service marks, trade names, logos, and/or symbols used to denote its products and services.
(b) Your Obligations. You warrant that you (a) provided true, accurate, current, and complete information about yourself as prompted (“Customer Data”), and (b) shall maintain and promptly update the Customer Data to keep it true, accurate, current, and complete. If you provide any Customer Data that is, or if Smart Ag has reasonable grounds to suspect any Customer Data is, untrue, inaccurate, not current, or incomplete, Smart Ag has the right to refuse any and all current or future use of the Software (or any portion thereof).
- Termination of Software License.
The license granted in Section 6 herein shall terminate, or may be suspended, immediately upon your failure to pay the required fees in accordance with Section 1 and Section 3 hereof. Otherwise, the license granted in Section 6 herein may be terminated only: (i) by either party: (A) at the end of any Term or Renewal Term by giving thirty (30) days’ prior written notice; or (B) upon the material breach of this Agreement by the other party which remains uncured more than thirty (30) days after receipt of written notice of such breach; (ii) by Smart Ag: (A) immediately for any breach of Section 16; (B) upon notice of termination provided to you if you violate any material term of this Agreement pertaining to your use of the Software or Smart Ag’s rights; or (C) immediately if you becomes insolvent, make an assignment for the benefit of creditors, suffer or permit an appointment of a receiver for your business or assets, become subject to proceedings under any domestic or foreign bankruptcy or insolvency law, or are liquidated.
- Unauthorized Use of the AutoCart System.
You shall not use the AutoCart System for any Unauthorized Purpose or in such a manner as to interfere with the AutoCart System. “Unauthorized Purpose” includes (i) use with intent to avoid payment or charges; (ii) access to, use of, alteration of, or destruction of the system, data files, programs, procedures or information related to you or any other Smart Ag customer, or access or use to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (iii) use with the intent to reverse engineer or duplicate the AutoCart System, (iv) use for any unlawful, illegal, or fraudulent purpose, (v) for purposes of monitoring the availability, performance, or functionality of the AutoCart System, or for any other benchmarking or competitive purposes, or (vi) for bypassing, diverting, or forwarding communications that would constitute network abuse or otherwise have a potentially damaging effect on the AutoCart System. Smart Ag may, without any liability, discontinue the AutoCart System to prevent or terminate any Unauthorized Purpose.
- Compliance with Law.
You warrant that you will use the AutoCart System for lawful purposes and will comply with any government law, regulation, or rule applicable hereto, including the laws of the US and foreign trade control laws and regulations; and that you understand that the AutoCart System may be subject to export and other foreign trade controls restricting re-sales and/or transfers to other countries and parties, including US Export Administration Regulations and/or the foreign trade control regulations of the US Treasury Department. You acknowledge that the AutoCart System may not be exported or re-exported to, and are certifying that neither you nor any of your personnel, representatives, agents are a national of Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria, or any country to which the US embargoes goods, and that you are not on the Table of Denial Orders; the Entity List; or the List of Specially Designated Nationals. Any other provisions of this Agreement to the contrary notwithstanding, you agree that the AutoCart System shall not be resold, re-exported, or otherwise transferred. The AutoCart System remains subject to applicable US laws.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALL SMART AG BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE OR DELIVER THE AUTO CART SYSTEM, EVEN IF SMART AG KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT SMART AG IS HELD LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE OR DELIVER THE AUTOCART SYSTEM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE THE FULL REFUND OF THE PURCHASE PRICE WITHOUT INTEREST.
- Additional Terms and Conditions.
- Age and Residency.
You acknowledge and state that you are at least 18 years old, are a resident of the United States, and will take delivery of the AutoCart System in the United States.
- Customer Information, Privacy.
SMART AG HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SHIPMENT DATE OF THE AUTOCART SYSTEM. SMART AG HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CURRENT MODEL OF THE AUTOCART SYSTEM. YOU UNDERSTAND AND AGREE THAT THE AUTOCART SYSTEM, ITS DESIGN, AND TECHNICAL FEATURES ARE CURRENTLY UNDER DEVELOPMENT AND THAT THE AUTOCART SYSTEM THAT MAY ULTIMATELY BE AVAILABLE FOR SHIPMENT TO YOU MAY BE MATERIALLY DIFFERENT FROM THE CURRENT MODEL. IF FOR ANY REASON YOU ARE UNHAPPY WITH THE FINAL VERSION OF THE AUTOCART SYSTEM, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO CANCEL YOUR PRE-ORDER AS DESCRIBED IN SECTION 5 HEREIN. SMART AG HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE AUTOCART SYSTEM AND/OR THE SOFTWARE, PROVIDED TO YOU UNDER THIS AGREEMENT AND ANY REPORTS OR RESULTS GENERATED OR INTERPRETED USING THE AUTOCART SYSTEM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SMART AG PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, THAT THE AUTOCART SYSTEM, INCLUDING ANY REPORTS OR RESULTS GENERATED OR INTERPRETED USING THE AUTO CART SYSTEM, WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE. FURTHER, SMART AG DOES NOT WARRANT THAT ANY ERRORS WILL BE CORRECTED.
You shall defend, indemnify, and hold harmless Smart Ag and its officers, managers, personnel, agents, and representatives (each an “Indemnified Party”) from and against all claims, demands, proceedings, injuries, liabilities, damages, losses, costs, and expenses (including reasonable legal fees and court costs) (“Losses”) brought by any third party against any Indemnified Party arising from or in any way related to this Agreement or your use of any of the AutoCart System, regardless of whether such Losses are caused, wholly or partially, by any negligence, breach of contract, or other fault of an Indemnified Party.
- Ownership, Protection, and Security.
- “Proprietary Information” means, collectively and without regard to form, Smart Ag’s Confidential Information and Trade Secrets: defined as follows: (A) “Confidential Information” is any non-public confidential or proprietary information of value to Smart Ag other than Trade Secrets, and any data or information defined herein as a Trade Secret but does not qualify as a trade secret under applicable law. (B) “Trade Secrets” is information that derives actual or potential economic value from not being generally known to, and not being readily ascertainable by proper means by, others who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. “Trade Secrets” includes the AutoCart System and any derivative works thereof.
- “Smart Ag Property” shall mean all legal rights and interests in an to its Proprietary Information, including inventions, patents, copyrights, moral rights, marks, and other intellectual property rights, and derivative works and all copies thereof. “Smart Ag Property” includes all systems, processes, tools, techniques, methods, and materials used or made by Smart Ag in its performance hereunder or employed or developed by Smart Ag in connection with the AutoCart System and information and materials related to Smart Ag’s business.
- Ownership. You acknowledge that Smart Ag Property is proprietary of Smart Ag and is protected under this Agreement and applicable laws, including copyright, contract, and trade secret laws. This Agreement only grant you a right to use the AutoCart System, which is not coupled with an interest and is revocable upon your non-payment of any of the fees contemplated herein and/or any of the recurring subscription fees. You shall take no action that jeopardizes Smart Ag Property, shall not assert any right, title, or interest, or other ownership or property rights, in or to any Smart Ag Property, and shall keep the AutoCart System free and clear of all claims, liens, and encumbrances. Neither this Agreement nor any rights hereunder shall be an asset of yours in any manner whatsoever; however, this Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
- Software Security. You shall maintain the AutoCart System issued to you in strict confidence including compliance with reasonable remote access security requirements, and you shall not yourself nor permit any other party to: (i) disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code for any part of the AutoCart System, or attempt to defeat the copyright protection and application-enabling mechanisms therein; (ii) copy, duplicate, replicate, or otherwise transform or reproduce the AutoCart System; (iii) alter, modify, or prepare derivative works based on the AutoCart System or use any Smart Ag Property to create a computer program or other material that performs, replicates, or utilizes the same or substantially similar functions as the AutoCart System; (iv) demonstrate or display the AutoCart System or its operation to unauthorized parties; (v) alter, remove, or suppress any proprietary or confidentiality notices or makes appearing in or on any Smart Ag Property, including all full or partial copies and any related material; or (vi) disclose, display, publish, transmit, or otherwise make available the AutoCart System, in whole or in party, except in confidence to your personnel on a need-to-know basis, if applicable.
- Confidentiality. The unauthorized disclosure or use of Smart Ag’s Proprietary Information would cause great injury and harm to Smart Ag. Therefore, you agree to take all appropriate action to ensure the confidentiality and security of Smart Ag’s Proprietary Information, but in any event no less than the same standard of care you use to protect your own Proprietary Information. Without limiting the generality of the foregoing, and in addition to your obligations in Section 16(c), you agree that you: (i) shall maintain Smart Ag’s Proprietary Information in the strictest confidence, including compliance with remote access security requirements; (ii) shall not disclose, display, publish, transmit, or otherwise make available such Proprietary Information or the benefit thereof, in whole or in part, except in confidence to your own personnel on a need-to-know basis, if applicable; and (iii) except as expressly permitted hereunder, shall not copy, duplicate, replicate, transform, or otherwise reproduce such Proprietary Information. The restrictions in this Section 16 shall apply during Term and any and all Renewal Term(s) and shall remain continuously in full force and effect after any expiration or termination thereof.
- Damages. You acknowledge that the Smart Ag Property has been developed at great expense and effort. Therefore, each provision for the protection of the Smart Ag Property is material to this Agreement and any threatened or actual breach which jeopardizes the confidential and/or proprietary nature thereof shall constitute immediate, irreparable harm to Smart Ag and shall entitle Smart Ag, in addition to any other remedies it may have at law or in equity (including recovery of damages), to injunctive relief or other similar or appropriate remedy or relief without posting bond as a condition of such relief.
- Changes to This Agreement.
Smart Ag reserves the right to change any of the terms and/or conditions of this Agreement for any or no reason. Smart Ag will provide notice of any material changes and, if you are unhappy with such changes, your sole and exclusive remedy will be to cancel your reservation as described in Section 5 herein.
- Force Majeure.
Neither party shall be liable for damages if the other party’s obligations according to this Agreement, other than the obligation to pay money and all confidentiality and intellectual property provisions, are inhibited or delayed by circumstances that the party cannot reasonably control or foresee, including without limitation, any conflict in the workforce; natural phenomena such as lightning, earthquakes, floods, etc.; fire; war; decisions or decrees made by governments or other authorities; accidents; strikes or shortages of transportation, fuel, energy, labor, or materials; or similar circumstances.