SMART AG, LLC

TERMS OF USE

Last Modified: Thursday, December 1, 2016

ACCEPTANCE OF TERMS OF USE

These Terms of Use are entered into by and between You (“you”) and Smart Ag, LLC (“Smart Ag,” “we,” “us,” or “our”). The following terms and conditions, together with any documents expressly incorporated by reference (collectively, the “Terms of Use”), govern your access to and use of all software, hardware, and related services of Smart Ag, including any content, functionality, and services offered on or through the Auto Cart System (the “Services”). For purposes of clarity, the “Auto Cart System” includes:

  • Smart HP. Smart HP 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.
  • Smart View. Smart View is the hardware that connects your combine or other machine to the cloud and any other automated machine, such as a grain cart tractor.
  • Auto Cart software. The Auto Cart software includes the software and data plan to set up, monitor, and control the autonomous grain cart, as well as access to the AAVI platform with data storage and transfer capabilities.

 

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SERVICES. BY USING ANY OF OUR SERVICES (OTHER THAN TO READ THESE TERMS OF USE FOR THE FIRST TIME) YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS OF USE, AND OUR PRIVACY POLICY FOUND AT www.smart-ag.com/privacy, BOTH OF WHICH MAY CHANGE FROM TIME TO TIME AS SET FORTH HEREIN. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MUST NOT ACCESS OR USE THE SERVICES.

 

USER REGISTRATION

 

In order to access or use some features of our Services, you may be required to become a registered user by providing certain registration details or other information. If you are under the age of thirteen, then you are not permitted to register as a user or otherwise submit personal information.

 

If you become a registered user, you must provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. You agree that all information you provide to register or otherwise is governed by our Privacy Policy. During registration, you will create a user name and password (a “Membership”). You acknowledge that your Membership is personal to you and agree not to provide any other person with access to your Membership or other security information. You are responsible for safeguarding and maintaining the confidentiality of your Membership. You are solely responsible for the activity that occurs under your Membership, whether or not you have authorized the activity. You agree to contact us immediately if you become aware of any breach of security or unauthorized use of your Membership.

 

In order to comply with certain statutes, rules, and regulations, Smart Ag reserves the right to obtain, verify and store certain personal information of its users.  Smart Ag will cooperate with all law enforcement officials to the extent permitted or required by law. Smart Ag may also share this information with any of our strategic business partners that provide services that are included within the Services.

 

Smart Ag has the right to disable, terminate or suspend any Membership at any time in its sole and absolute discretion, including but not limited to circumstances where Smart Ag believes you have violated any provision of these Terms of Use.

 

CONSENT TO ELECTRONIC DISCLOSURES

 

Because the Services are provided electronically, you must consent to Smart Ag’s providing information if you would like to proceed. This notice must be read carefully and a copy may be retained for future reference. By creating an account, you:

 

  1. Agree to receive information and disclosures electronically on this website and/or via e-mail and confirm that you will download and print any disclosures for your own personal records.
  2. Confirm that you have the capacity to receive information that is provided electronically at this website and via e-mail.
  3. Authorize electronic delivery of any and all communications and disclosures regarding Smart Ag’s services on this website and via e-mail and providing your consent to receive electronic communications.
  4. Agree to receive e-mails regarding the Smart Ag services.

Notices shall be considered received at the time Smart Ag sends an e-mail to the e-mail address related to your Smart Ag account.

 

SMART AG MOBILE APPLICATION(S)

 

Smart Ag’s mobile application allows users to access many of Smart Ag’s services through a mobile device. If you use the application you are responsible for any fees that your phone service provider charges for SMS, data, etc. Smart Ag is not affiliated with any phone service providers.

 

INTELLECTUAL PROPERTY

 

Our Services and associated content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features included with or available through our Services (collectively, the “Service Content”) and all intellectual property rights to the same are owned by us, our licensors, or both. Additionally, all trademarks, service marks, trade names, and trade dress that may appear in our Services are owned by us, our licensors, or identified third parties. Except for the limited use rights granted to you in these Terms of Use, you shall not acquire any right, title, or interest in or to our Services or any Service Content. Any rights not expressly granted in these Terms of Use are expressly reserved.

 

ACCESS AND USE

 

We may offer certain portions of our Services at no charge and others for a one-time fee, on a subscription basis, or under any other lawful pricing structure. In all instances, our Services are not being sold to you; rather, you are being granted or purchasing a limited license to use our Services.

 

In connection with your use of our Services, or in the course of your interactions with Smart Ag, you will not:

 

  1. Violate any law, statute, ordinance, or regulation;
  2. Act in a manner that is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing, or upload or link to any obscene or pornographic materials;
  3. Provide false, inaccurate, or misleading information;
  4. Send or receive what we reasonably believe to be potentially fraudulent funds;
  5. Refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us;
  6. Use an anonymizing proxy;
  7. Conduct your business or use the Services in a manner that results in or may result in complaints, disputes, claims, reversals, chargebacks, fees, fines, penalties or other liability to Smart Ag, a third party, or you;
  8. Take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
  9. Facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;
  10. Use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission;
  11. Use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with our website or the Services;
  12. Take any action that may cause us to lose any of the services from our internet service providers, payment processors, or other suppliers;

When using our Services, you agree to comply with all applicable federal, state, and local laws including, without limitation, copyright law. Except as expressly permitted in these Terms of Use or as we may otherwise permit, you may not use, reproduce, duplicate, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit Service Content for any purpose whatsoever without obtaining prior written consent from us or, in the case third-party content, its applicable owner. In certain instances, we may suggest, ask or otherwise permit you to download, install or print Service Content. In such a case, you may do so only in the manner authorized and for your non-commercial use only. You acknowledge that you do not acquire any ownership rights by downloading, installing or printing Service Content.

 

Furthermore, except as expressly permitted in these Terms of Use, you may not:

 

  1. Remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice we include in or through our Services or Service Content;
  2. Circumvent, disable or otherwise interfere with our security-related features including, without limitation, any features that prevent or restrict the use of or copying of any software or other Service Content;
  3. Use an automatic device (such as a robot or spider) or manual process to copy or “scrape” the website or Service Content for any purpose without our express written permission;
  4. Collect or harvest any personally identifiable information from our Services including, without limitation, user names, passwords, email addresses;
  5. Attempt to or interfere with the proper working of our Services or impair, overburden, or disable the same;
  6. Decompile, reverse engineer, or disassemble any portion of our software or other Service Content, or our Services;
  7. Use network-monitoring software to determine architecture of or extract usage data from our Services;
  8. Encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person’s Membership (as defined below);
  9. Violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
  10. Engage in any conduct that restricts or inhibits any other user from using or enjoying our Services.

You agree to fully cooperate with us to investigate any suspected or actual activity that is in breach of these Terms of Use.

 

USER CONTENT

 

We may now or in the future permit users to post, upload, transmit through, or otherwise make available through our Services (collectively, “submit”) messages, text, illustrations, data, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published through our Services. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.

 

You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.

 

By submitting User Content to us, simultaneously with such posting you automatically grant, or warrant that the owner has expressly granted, to us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable, and transferable right and license to use, reproduce, distribute, create derivative works based upon (including, without limitation, translations), publicly display, publicly perform, transmit, and publish the User Content (in whole or in part) as we, in our sole discretion, deem appropriate including, without limitation, (1) in connection with our business; and (2) in connection with the businesses of our successors, parents, subsidiaries, and their related companies, consistent with the Smart Ag Privacy Policy. We may exercise this grant in any format, media or technology now known or later developed for the full term of any copyright that may exist in such User Content. Furthermore, you also grant other users permission to access your User Content and to use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, transmit, and publish your User Content for personal, non-commercial use as permitted by the functionality of our Services and these Terms of Use. Notwithstanding the foregoing, you waive any and all claims you may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the User Content.

 

By submitting User Content, you also grant us the right, but not the obligation to use your biographical information including, without limitation, your name and geographical location in connection with broadcast, print, online, or other use or publication of your User Content; provided, however, that all such uses (including use of data on playlists, genre(s) and other User Content we automatically collect) will be consistent with the terms of our Privacy Policy.

 

We reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising and promotional purposes. You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners and third-party service providers (including their downstream users).

 

We have the right, but not the obligation, to monitor User Content. We have the right in our sole discretion and for any reason whatsoever to edit, refuse to post, remove, or disable access to any User Content.

 

SERVICE CONTENT & THIRD PARTY LINKS

 

We provide our Services including, without limitation, Service Content for educational, informational, and/or promotional purposes only. You may not rely on any information and opinions expressed through any of our Services for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of any Service Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Service Content.

 

Service Content may include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement offered through our Services by anyone other than our authorized employees or spokespersons while acting in their official capacities.

 

Our Services may link or contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.

 

INDEMNIFICATION

 

You agree to indemnify and hold harmless Smart Ag and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs) arising out of, related to, or that may arise in connection with: (i) your use of our Services; (ii) User Content provided by you or through use of your Membership; (iii) any actual or alleged violation or breach by you of these Terms of Use; (iv) any actual or alleged breach of any representation, warranty, or covenant that you have made to us; or (v) your acts or omissions. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder.

 

DISCLAIMER OF WARRANTIES

 

YOU EXPRESSLY AGREE THAT USE OF OUR SERVICES IS AT YOUR SOLE RISK. OUR SERVICES AND SERVICE CONTENT (INCLUDING SOFTWARE) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, SMART AG AND ITS OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT OUR SERVICES WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF OUR SERVICES OR SERVICE CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED OR ACCESSED THROUGH OUR SERVICES; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR SERVICES; (6) WARRANTIES THAT YOUR USE OF OUR SERVICES WILL BE SECURE OR UNINTERRUPTED; AND (7) WARRANTIES THAT ERRORS IN OUR SERVICES OR SERVICE CONTENT (INCLUDING SOFTWARE) WILL BE CORRECTED.

 

LIMITATION ON LIABILITY

 

UNDER NO CIRCUMSTANCES SHALL SMART AG OR ITS OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, OR THEIR RELATED COMPANIES BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH OUR SERVICES OR THESE TERMS OF USE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH OUR SERVICES INCLUDING, WITHOUT LIMITATION, SERVICE CONTENT IS TO STOP USING OUR SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF GOODS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH OUR SERVICES OR ANY LINKS PLACED IN OUR SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH OUR SERVICES OR ANY LINKS PLACED IN OUR SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD-PARTY OR CONDUCT OF A THIRD-PARTY USING OUR SERVICES.

 

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF SMART AG AND ITS OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES EXCEED THE GREATER OF THE TOTAL PAYMENTS RECEIVED FROM YOU BY SMART AG DURING THE PRECEDING TWELVE (12) MONTH PERIOD OR $100. FURTHERMORE, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH ANY OF OUR SERVICES OR THESE TERMS OF USE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

 

In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.

 

TERMINATION

We reserve the right in our sole discretion and at any time to terminate or suspend your Membership and/or block your use of our Services for any reason including, without limitation if you have failed to comply with the letter and spirit of these Terms of Use. You agree that Smart Ag is not liable to you or any third party for any termination or suspension of your Membership or for blocking your use of our Services.

 

Any suspension or termination shall not affect your obligations to us under these Terms of Use. The provisions of these Terms of Use which by their nature should survive the suspension or termination of your Membership or these Terms of Use shall survive including, but not limited to the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, and all of the provisions in the Section titled “MISCELLANEOUS.”

 

GEOGRAPHIC RESTRICTIONS

 

Smart Ag is based in the state of Iowa in the United States. We provide this website for use only by persons located in the United States. We make no claims that the website or any of the Services are accessible or appropriate outside of the United States. If you access the website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

 

CHOICE OF LAW; JURISDICTION AND VENUE

 

These Terms of Use shall be construed in accordance with the laws of the State of Iowa without regard to its conflict of laws rules. Any legal proceedings against Smart Ag that may arise out of, relate to, or be in any way connected with our website or these Terms of Use shall be brought exclusively in the state and federal courts of Des Moines, Iowa and you hereby waive any jurisdictional, venue, or inconvenient forum objections to such courts.

 

DISPUTE RESOLUTION & MANDATORY ARBITRATION

 

We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by contacting us at the address provided in these Terms of Use. We will contact you based on the contact information you have provided us.

 

If after 30 days the parties are unable to resolve any dispute raised under the previous provision, the dispute may be submitted to arbitration consistent with this Section. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes resolved through arbitration.

 

We each agree that any claim or dispute between us, and any claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not signatories to this agreement, whether related to this agreement or otherwise, including past, present, and future claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by binding arbitration administered by the JAMS under its rules and procedures in effect when the claim is filed. The rules and procedures and other information, including information on fees, may be obtained from JAMS’ website (www.jamsadr.com).

 

We are entering into this arbitration agreement in connection with a transaction involving interstate commerce. Accordingly, this arbitration agreement and any proceedings thereunder shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. Any award by the arbitrator(s) may be entered as a judgment in any court having jurisdiction.

 

Exception to Arbitrate. Either of us may bring qualifying claims in small claims court. Further, as set forth below, we each agree that any arbitration will be solely between you and Smart Ag, not as part of a classwide claim (i.e., not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn’t apply and the classwide dispute must be brought in court.

 

NO CLASS ACTIONS

 

TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.

 

NO TRIAL BY JURY

 

TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.

 

AMENDMENT; ADDITIONAL TERMS

 

We reserve the right in our sole discretion and at any time and for any reason, to modify or discontinue any aspect or feature of our Services or to modify these Terms of Use. In addition, we reserve the right to provide you with operating rules or additional terms that may govern your use of our Services generally, unique of our Services, or both (“Additional Terms”). Any Additional Terms that we may provide to you will be incorporated by reference into these Terms of Use. To the extent any Additional Terms conflict with these Terms of Use, the Additional Terms will control.

 

Modifications to these Terms of Use or Additional Terms will be effective immediately upon notice, either by posting on the website, notification by email or through any of our Services. It is your responsibility to review the Terms of Use from time to time for any changes or Additional Terms. Your access and use of our Services following any modification of these Terms of Use or the provision of Additional Terms will signify your assent to and acceptance of the same. If you object to any subsequent revision to the Terms of Use or to any Additional Terms, you must immediately discontinue use of our Services and, if applicable, terminate your Membership.

 

MISCELLANEOUS

 

No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.

 

Except where specifically stated otherwise, if any part of these Terms of Use is unlawful or unenforceable for any reason, we both agree that only that part of the Terms of Use shall be stricken and that the remaining terms in the Terms of Use shall not be affected.

 

These Terms of Use (including the Privacy Policy and any Additional Terms incorporated by reference) constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between us with respect to such subject matter.

 

You may not assign these Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. We may assign these Terms of Use or any rights hereunder without your consent and without notice.