Aerobotics Services Agreement
Last updated: 15 November 2018
This Services Agreement (“Agreement”) is entered into as of the effective date specified in paragraph 2.1 of the Order Form (“Effective Date”) between Aerobotics (Pty) Ltd, with its business address at Unit 202, Mason’s Press, Woodlands Road, CAPE TOWN (“Aerobotics,” “we” or “us”), and the customer identified on the Order Form (“you”). By signing below and/or by signing the Order Form that incorporates this Agreement by reference, you agree to the terms and conditions set forth below, which constitute a binding, legal agreement between you and Aerobotics
We reserve the right to change the Terms of Service from time to time. You acknowledge and agree that it is your responsibility to review the Terms of Service periodically to learn of any modifications. Your continued access or use of the Services after such posting constitutes your consent to be bound by the modified Terms of Service.
Background and Purpose.
Aerobotics is a data analytics company which uses aerial imagery and its own proprietary machine learning algorithms to optimize crop performance for farmers through its cloud-based application and related mobile apps, websites, data collection tools and platform (collectively, the “Service”). The Service facilitates the early detection of pests and diseases and enables monitoring of irrigation and nutrient levels. You can order the Service (or make changes to your order) using an Order Form that we provide. The first Order Form is attached hereto. Each new Order Form will require your signature and the signature of an authorized representative of Aerobotics before it becomes effective. All of your Order Forms will be subject to the terms and conditions of this Agreement.
Use of the Service; Option Packages
The Service is made available to customers using several different option packages (each, an “Option Package”). One popular option is a “seasonal package” that includes drone flights organized on your behalf by Aerobotics. Another option is a “fly your own drone” package where the customer organizes its own drones flights. Subject to the terms and conditions of this Agreement, Aerobotics will make the Service available to you using the Option Package specified in the applicable Order Form during the services period specified in the Order Form. The Option Package you select may have additional terms and conditions that are set forth in the Order Form. Those additional terms and conditions are incorporated into and made a part of this Agreement.
As long as you are a customer of the Service in good standing we will provide you with support for the Service at no additional charge. As part of your registration for the Service, you will be required to create an online account with the Aerobotics website (“Online Account”). Any information or materials that we receive during communications with you or your employees as part of support services (via the chat or email functionality in the Online Account or otherwise) will be considered Feedback for purposes of Section 10.
Fees and Payments.
(a) You agree to pay the service fees and other fees and charges set forth in the applicable Order Form. All payments for the Services will be invoiced monthly in arrears. You agree to pay all invoiced charges without deduction or setoff within thirty (30) days of the date of an invoice. All payment obligations are non-cancelable and all amounts paid are non-refundable and non-creditable.
(b) If you have requested drone flights over certain property (either in an Order Form, using the online drone reservation tools provided by the Service or by phone or email), then you will be invoiced for the fees in the amount and at the time specified in the Order Form.
(c) If an Order Form specifies that, in addition to the Services, you have elected to purchase a drone, camera, camera mount or other hardware (“Hardware”), then you will be invoiced for that Hardware in the amount and at the time specified in the Order Form.
If you believe that your account is incorrect, you must contact us in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. In addition to any other rights granted to us herein, we reserve the right to suspend or terminate this Agreement or your access to the Service if your account falls into arrears. Unpaid invoices and accounts in arrears are subject to interest of one percent (10%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. We also reserve the right to impose a reconnection fee in the event your access to the Service is suspended for nonpayment and thereafter you settle your account and request access to the Service.
Our fees are inclusive of Value-Added Tax (VAT). We make no warranty as to the tax implications of these Services (if any) and you shall be required to pay VAT on the subscription fees, unless you provide us with a valid, applicable tax exemption certification from the South African Revenue Service.
Data Collection and Analysis.
Our advanced algorithms analyze data from three sources: (i) satellite imagery, (ii) drone flights over real property, and (iii) data that you input or upload into the Service using our mobile app or web-based data entry or collection tools. The Service works best when the data from all three sources is analyzed, but the addition of data from drone flights and data that you input or upload is entirely at your option. We obtain satellite data from a trusted, third-party vendor. It is your responsibility to obtain drone flight data and other data.
Depending on the Option Package you have selected, you can upload data to the Service that was collected by your own drone, or we can help you schedule one or more drone flights to collect data for an additional fee. If you have requested drone flights (either in an Order Form, by using the online drone reservation tools provided by the Service or by phone or email), we will arrange and schedule those drone flights with a third-party drone operator (“Drone Operator”) who will provide that service directly to you. We will relay your requirements and terms for drone services (the property to be imaged, etc.) to a Drone Operator. If the Drone Operator accepts those requirements and terms, then a contract for drone services will be formed between you and the Drone Operator. Once a drone services contract is formed, you may not cancel or reschedule the drone services without the prior written consent of the Drone Operator and Aerobotics.
You acknowledge that the ability to obtain drone flights and related services from a Drone Operator using an Order Form or through the use of our reservation tools and services does not establish Aerobotics as a provider of drone flights. In consideration of the fee we will charge you for arranging drone flights with a Drone Operator, we will upload the data from the drone flights you have requested to our systems and make that data available to you though our mobile app or our website.
Data Ownership and Licenses.
As between you and Aerobotics, you will own the data that you input or upload using our mobile app or web-based data entry tools and any data collected from drone flights that we arrange on your behalf (collectively, the “Customer Data”). The satellite data that we use is owned by our third-party providers and will be provided to you on a non-exclusive basis for your use solely in connection with the Service.
In order to enable us to provide the Service to you, you grant us a worldwide, free of charge right and license (with the right to sublicense) to access, store, host, modify, analyze, process, transmit and otherwise use the Customer Data as required in order for us to (i) provide the Service to you, (ii) perform our obligations in this Agreement and the applicable Order Forms, and (iii) comply with your written instructions.
You acknowledge that the more data our algorithms can analyze, the better they get. Accordingly, you agree that we may access, store, host, modify, analyze, process, transmit and otherwise use aggregate, anonymized data generated from or based on your Customer Data and/or your use of the Service in order to improve the Service (and the algorithms that are used in the Service) and for other business purposes.
You are solely responsible for your Customer Data and the consequences of posting or uploading your Customer Data to the Service, including your use of the Service that results in a violation of any individual’s or organization’s privacy rights. You agree that we have no obligation to retain Customer Data and that your Customer Data may be locked or irretrievably deleted if your account is 30 days or more in arrears.
Your Farm Consultants.
One of the benefits of the Service is that it allows you to share your Customer Data and certain reports generated by your use of the Service (“Custom Reports”) with your farm consultants, agronomists and other professionals who advise you on crop management, soil fertility, pest management, weed management and seed selection (each, a “Farm Consultant”). If you elect to use a Farm Consultant (either by designating a Farm Consultant in an Order Form or by using the online tools provided by the Service), you agree that we may disclose your Customer Data and Custom Reports to such Farm Consultant. You may also send your Custom Reports directly to your Farm Consultant. In either event, you will remain responsible for your Farm Consultants, for their use of your Customer Data and Custom Reports and for their other acts and omissions. In addition, you will require your Farm Consultants to be bound by provisions substantially similar to the provisions of this Agreement with respect to confidentiality and feedback. Any breach of this Agreement by your Farm Consultant will be deemed a breach of this Agreement by you.
We are always trying to enhance and improve the Service. Our customers sometimes provide suggestions, comments, bug reports, requests for design changes, workarounds, feature requests and other feedback relating to the Service (“Feedback”). We use that Feedback to make improvements to the Service which benefit you and other customers. While we welcome requests for the development of new features, we reserve the right to independently evaluate these requests and, as such, cannot provide a guarantee that we will fulfill any feature request. You may be requested to attend focus groups or other meetings, in person or telephonically, relating to use of the Service. During those meetings you may be asked to complete questionnaires or similar documents. If you agree to attend these meeting (which you are not obliged to do), then all information and materials you provide in such meetings, and in any questionnaires, bug-reporting forms or similar documents, will be deemed Feedback for purposes of this Agreement. You agree that we will have, and you hereby assign to us, all right, title and interest in and to the Feedback, without any additional consideration, and we will have the right to use, in any manner and for any purpose, any Feedback and materials provided by you or your employees or consultants to us under this Agreement. We will be the sole and exclusive owner of all improvements, updates, modifications and enhancements made to the Service, whether or not conceived or made in the course of or as a result of Feedback received from you or your employees or consultants, and of all intellectual property rights therein.
Restrictions on Use of the Service.
You agree to use the Service only for the ordinary course of your business. You may not access the Service for purposes of monitoring its availability, performance or functionality or for any other benchmarking or competitive purposes. You agree not to (a) license, sublicense, sell, resell, rent, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or any part thereof; (b) reproduce, modify or make derivative works based upon the Service or the audio and visual information, documents, software, graphics, products, and services contained or made available to you in the course of using the Service; or (c) reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service. You agree not to access the Service by any means other than through the interfaces that are provided by Aerobotics.
Ownership of the Service.
We retain all right, title and interest in (a) the Service and the visual interfaces, graphics, design, software and systems used to provide the Service; (b) all improvements, updates, modifications and enhancements to the Service and such visual interfaces, graphics, design, software and systems; and (c) all patents, copyrights and other intellectual property rights in the items listed in clauses (a) and (b) of this Section (other than the use rights to the Service we grant to you in Section 2). This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or any part thereof. Aerobotics’ name, logo and the product names associated with the Service are trademarks of Aerobotics, and no right or license is granted to use them. Aerobotics may update the functionality, user interface, software and user documentation, training and educational information of, and relating to the Service from time to time in its sole discretion as part of its ongoing mission to improve the Service and our customers’ use of the Service. Any rights not expressly granted herein are reserved by Aerobotics and its licensors.
Passwords and Customer Accounts.
In order to use the functionality of the Service, you must create an Online Account. Your Online Account is part of the Service and is used for, among other things, accessing your Customer Data. You agree that the information you provide to us when registering is accurate and that you will keep it accurate and up-to-date at all times. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your Online Account. We will regard any communications we receive under your password, user name, and/or account number to have been sent by you. You agree to promptly notify us of any unauthorized access or use of the Service and any loss or theft or unauthorized use of your password or name and/or Service account numbers.
Compliance with Law.
You agree to comply with all applicable laws and regulations in connection with your use of the Service. Without limitation of the foregoing, if you have requested drone flights or elected to upload drone data to the Service, then (a) you are solely responsible for ensuring that you comply with all applicable legal requirements relating to the operation of any aircraft, including any requirement that you detect and avoid other aircraft, (b) you are solely responsible for ensuring that you comply with all applicable legal requirements relating to overflights of land, including trespass and privacy, and (c) you will, at your sole cost and expense, obtain and maintain any necessary licenses, approvals, consents, leases, permits and authorizations required for your use of drone flights, overflights of land, collection of data by drone flights and uploading of your Customer Data to the Service.
If you have requested training, customized support services or other professional services that are not part of our standard support package, then those services will be subject to our Professional Services Terms and Conditions.
If an Order Form specifies that you have elected to purchase Hardware from a third party vendor, then we will arrange for the purchase and delivery of that Hardware to you. Aerobotics will use its reasonable efforts to pass through to you any original manufacturers warranties for Hardware acquired by us for you. Aerobotics does not make any representations or warranties in connection with the Hardware and hereby expressly disclaims any and all representations and warranties with respect thereto.
Drone Flights and Drone Operators.
Drone Operators are independent contractors and not employees, partners, agents, joint ventures, or franchisees of Aerobotics. You hereby acknowledge that Aerobotics does not supervise, direct, control or monitor a Drone Operator’s service and expressly disclaims any responsibility or liability for the service a Drone Operator provides. Aerobotics does not make any representation or warranty with respect to any Drone Operator or the services provided by any Drone Operator, regardless of whether or not a Drone Operator is a member of the Aerobotics Independent Drone Operator Program or otherwise designated by Aerobotics as “certified,” “approved” or “recommended.” You further acknowledge that the ability to obtain drone flights through Aerobotics does not establish Aerobotics as a provider of drone services. Aerobotics cannot ensure that you and a Drone Operator will complete an arranged drone flight. Aerobotics has no control over the quality or safety of the drone service that is provided by a Drone Operator, even if we are paid a fee to locate a Drone Operator and schedule one or more a drone flights for you.
In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Each Receiving Party agrees: (i) to keep confidential all Confidential Information of the Disclosing Party; (ii) not to use or disclose such Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (iii) to protect the confidentiality of the Disclosing Party’s Confidential Information in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority.
The term “Confidential Information” means the Disclosing Party’s proprietary technology and business information. Your Confidential Information includes your Customer Data. Our Confidential Information includes (i) the Service; (ii) test results, reports and analysis incorporated into a Custom Report or relating to the Service; (iii) the Feedback; (iv) all passwords, logins and account information for the Service; and (v) any product roadmaps, business plans, technical data, specifications, testing methods, research and development activities that is provided or made available to you from time to time during the term of this Agreement. Our Confidential Information also includes (A) any data, information or materials related to the Service that was provided or made available to you prior to the Effective Date, and (B) any aggregate, anonymized data, information or materials that we generate from your Customer Data and/or your use of the Service.
Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the Receiving Party; or (iv) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party.
Warranties and Disclaimers.
Aerobotics warrants that: (i) depending on the Option Package you select, the Service will achieve in all material respects the functionality for that Option Package described on our website; and (ii) the functionality for your Option Package will not be materially decreased during the term of this Agreement. Your sole and exclusive remedy for our breach of this warranty will be that Aerobotics will be required to use its commercially reasonable efforts to restore such functionality. If Aerobotics is unable to restore such functionality you will be entitled to terminate this Agreement and receive a pro-rata refund of the service fees paid under this Agreement for your use of the Service for the terminated portion of the term. Aerobotics will have no obligation with respect to a warranty claim unless notified of such claim within thirty (30) days of the first instance of any material functionality problem, and such notice must be sent to email@example.com. The warranties set forth in this Section are made to and for you only. Such warranties will only apply if the applicable Service has been used in accordance with the instructions provided on our website, this Agreement and applicable law.
Except as stated in Section 19(a), Aerobotics does not represent that your use of the Service will be secure, timely, uninterrupted or error-free or that the Service will meet your requirements or that all errors in the Service will be corrected or that the system that makes the Service available will be free of viruses or other harmful components. The warranties stated in Section 19(a) above are the sole and exclusive warranties offered by Aerobotics. There are no other warranties or conditions, express or implied, including those of merchantability, satisfactory quality, fitness for a particular purpose or non-infringement of third party rights. Except as stated in Section 19(a) above, the Service and hardware are provided to you on an “AS IS” and “AS AVAILABLE” basis, and are for your use in the ordinary course of your business only. You assume all responsibility for determining whether the Service and the information or reports generated by use of the Service are accurate or sufficient for your purposes.
Indemnities. You agree to indemnify, hold harmless, and defend Aerobotics and our officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Aerobotics Parties”) against any and all losses and damages incurred by an Aerobotics Party arising out of or relating to any claim or cause of action brought or asserted by third party: (a) relating to a breach or non-fulfillment of any covenant or undertaking by you in this Agreement or an Order Form; (b) alleging your negligent or more culpable acts or omissions; (c) alleging that the Customer Data (or its collection by a Drone Operator or use by us to provide the Service) infringes the rights of, or has caused harm to, a third party; (d) relating to your access to or use of the Service; or (e) relating to any failure by you to comply with any applicable law or regulations.
Limitations of Liability.
You agree that the fees which Aerobotics is charging under this Agreement do not include consideration for assumption by Aerobotics of the risk of your incidental or consequential damages or any losses associated with personal injury or death. You understand and agree that Aerobotics does not provide crop insurance and is not an insurer of your property or the personal safety of persons in or around your property. If you feel that you need insurance, you should obtain it from a third party. You understand and agree that (i) the Service may not detect pests and diseases and may not adequately identify deficiencies in irrigation and nutrient levels; (ii) it is difficult to determine in advance the value of the crops that might be lost if the Service fails to operate properly; and (iii) it is difficult to determine what portion, if any, of any crop loss, personal injury or death would be proximately caused by Aerobotics’ breach of this Agreement, by any failure of the Service, or by the negligence of Aerobotics or any other Aerobotics Party.
To the maximum extent permitted by law, in no event shall Aerobotics or any other Aerobotics Party be liable to you or anyone else for lost profits, business interruption, loss of data or loss of revenue or for incidental, consequential, punitive, cover, special, reliance or exemplary damages, or indirect damages of any type or kind however caused, whether from breach of warranty, breach or repudiation of contract, negligence, or any other legal cause of action from or in connection with this Agreement (and whether or not Aerobotics or another Aerobotics Party has been advised of the possibility of such damages).
You agree that the liability of Aerobotics and the Aerobotics Parties to you for all harm, damages, injury or loss shall be limited to the greater of (i) __________or (ii) the service fee that we received for your use of the Services in the six (6) month period prior to the event giving rise to the liability, and this shall be your only remedy regardless of what legal theory is used to determine that we or the Aerobotics Parties were liable for the harm, damages, injury or loss. You further agree that the limitation of liability in this Section 21(c) shall apply (a) even if it is determined that we or an Aerobotics Party caused the harm, damages, injury or loss to you or someone in or around your premises (including employees and invitees) and (b) to all harm, damages, injury or loss incurred including actual, direct, incidental or consequential damages, property damage and losses due to business interruption, loss of profits, loss of data, personal injury or death. Multiple claims shall not increase these limits.
You agree that the result of the limitations on liability in this Section 21 may prevent you from recovering losses or damages in connection with otherwise valid claims. You further agree that the limitations on liability in this Section represent a fair allocation of risk between you and us, and that we would not be entering into this Agreement without these limitations of liability.
Term and Termination.
This Agreement will be in effect from effective date specified in the Order Form and, unless otherwise terminated pursuant to this Section, the initial term of this Agreement (“Initial Term”) will expire on the expiration date specified on the Order Form or, if no expiration date is listed on the Order Form, on the date that is twenty-four (24) months after the Effective Date. Thereafter, this Agreement will automatically be renewed for successive one-year renewal terms (each, a “Renewal Term”); provided, however, if either party gives 60 days’ written notice of non-renewal, this Agreement will expire at the end of the Initial Term or then-current Renewal Term.
Either party may terminate this Agreement and all Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not remedied within thirty (30) days of written notice from the non-breaching party. In addition, we may terminate this Agreement immediately should you (i) breach the confidentiality provisions of this Agreement or any provision relating to compliance with applicable law, (ii) violate the Terms of Service for use of the Aerobotics website.
Upon expiration or termination of this Agreement you will return to us or destroy all copies of our Confidential Information, cease all access to, and use of, the Service and certify to us in writing that this has been done. The provisions of Sections 5, 6, 8, 10, 12, 18, 20, 21 and 22(c) will survive the expiration or termination of this Agreement.
You shall not use the name or marks or refer to Aerobotics in advertising, publicity, promotional marketing material or press releases without our prior written consent. We may refer to you as a customer of the Service in our online and print marketing materials and may use your name and trademarks in our marketing materials or press releases that specifically describe the Service; provided that we will remove your name and trademarks from our future marketing materials within 60 days of receipt of a written request from you to do so.
Governing Law and Dispute Resolution.
This Agreement shall be governed by the laws of the Republic of South Africa. Any dispute or claim arising out of or relating to this Agreement, or the breach hereof (“Dispute”), shall be settled by arbitration administered by the Arbitration Foundation of South Africa (AFSA), in accordance with applicable legislation and AFSA rules and policies. Judgment on the award rendered by the arbitrator may be made an order of court by either party. The place of the arbitration shall be Cape Town, South Africa. The arbitration shall be conducted by a single arbitrator who shall be appointed by AFSA, in its sole discretion. The arbitrator shall be entitled to make an appropriate costs order. You agree that there is no right or authority for any Dispute to be arbitrated, adjudicated, or resolved through court proceedings on a class-action basis. Without prejudice to other legal remedies available to you, you further agree not to utilize class action procedures and that you will not have the right to participate as a class representative or member of any class of claimants for any Dispute. No claim or cause of action may be brought arising out of or in connection with this Agreement more than one year after the claim or cause of action arose.
If any provision of this Agreement is determined to be void or unenforceable in whole or in part, it shall not be deemed to affect or impair the invalidity of any other provision, each of which is hereby declared to be separate and distinct. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. If any provision of this Agreement is declared invalid or unenforceable for any reason, the offending provision will be modified so as to maintain the essential benefits of the bargain between the parties hereto to the maximum extent possible, consistent with law and public policy.
Aerobotics will not be liable for any failure or delay in the availability of the Service or any other performance of its obligations under this Agreement or an Order Form on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond Aerobotics’ reasonable control, including any failure of internet services provided by any third party in connection with your use of the Service.
Construction and Interpretation.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing in the English language and addressed to the parties at the addresses set forth on the first page hereof (if the Notice is sent to Aerobotics) or on the signature page hereof (if the Notice is sent to you) or to such other address that may be designated by the receiving party from time to time in accordance with this section. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only if (a) the receiving party has received the Notice and (b) the party giving the Notice has complied with the requirements of this Section.
This Agreement (a) may be amended only by written instrument signed or accepted electronically by the parties hereto; (b) shall not be assigned by you without our prior written consent; (c) may be assigned by us without your consent to any of our affiliates or any person or entity that acquires all or substantially all stock or assets of us or one or more of our affiliates; (d) shall be binding upon the respective permitted successors, trustees and assigns of the parties hereto; (e) does not create a partnership, joint venture, employment or other similar relationship between the parties hereto; and (f) shall not be construed as giving any person or entity, other than the parties hereto and their successors and permitted assigns, any right, remedy or claim under or in respect of this Agreement.