GainSense has developed and/or licensed the measurement technology and related services, and manufactures and/or sells (i) a product which enables customers to measure and analyse the protein and other compounds of a grain with a hand-held measurement device (the "Measurement Device"). GrainSense also provides (ii) value added services through a cloud based software solution (the "Cloud Service") as provided by GrainSense or its Partners from time to time. The Measurement Device and the Cloud Service and possible other services provided by GrainSense are jointly referred hereunder as the "Services".
1. Measurement DEVICE LICENSE TERMS
Upon purchasing the GrainSense Measurement Device, GrainSense grants You:
- a limited, non-exclusive and non-transferable license to use the Measurement Device; and
- a right to use the results and analyses for your internal purposes.
In order to use the Measurement Device, You must create your own individual account (the "User Account"). Creating the User Account requires an Internet connection. You are responsible for creating and installing the User Account and setting up the Measurement Device to the User Account. When the Measurement Device is set up for the first time, it will be calibrated and basic settings, measurement parameters and available updates will be installed. You are responsible for ensuring that the information you provide when creating the User Account is correct and that You do not share or disclose Your password with others.
Creating and using the User Account and using the Measurement Device without Subscription (as defined in Section 2 below) will not be subject to separate additional fees. All future updates and re-calibrations of the Measurement Device require a paid Subscription. For that reason GrainSense does not guarantee that e.g. all future enhancements, improvements and new calibrations would be available without a paid Subscription.
You must ensure that You use the Measurement Device in accordance with applicable laws and export regulations.
2. CLOUD SERVICE SUBSCRIPTION
When You have paid a subscription for the Cloud Service (the "Subscription") the following terms shall apply:
GrainSense shall invoice You for the Cloud Service annually in advance. The paid Subscription begins as soon as the relevant payment has been made by You and the applicable Subscription has been processed by GrainSense. Your Subscription continues until Subscription Termination (see Section 2.3 below). GrainSense reserves the right to adjust the prices or service fees of the Cloud Service from time to time in accordance with the then current price list of GrainSense. GrainSense will use reasonable efforts to inform You of the price or service fee adjustments in advance through the Cloud Service.
The Subscription and the use of the Cloud Service require a compatible smartphone with Internet access and connection which enables collection of location data and a Bluetooth connection. All smartphone models may not be compatible with the Measurement Device and/or the Cloud Service. Upon request, or through Cloud Service, GrainSense will from time to time notify the compatible smartphone models.
2.2 Cloud Service
Upon Subscription You will receive the ordered value added services for the Measurement Device and you are able to save and utilize the measurement through the Cloud Service with using your smartphone.
GrainSense Cloud Service provides You, for the paid Subscription period, with:
- a right to newest species calibrations; and
- Data storage, without limiting the number of measurements or amount of data stored through the application.
- Subscription Termination
You may terminate Your Subscription through the Cloud Service or by contacting GrainSense directly. Your Subscription will end after the end of the paid Subscription period.
You may continue using the Cloud Service until the end of the paid Subscription period. Any paid Subscription Fees or other payments are non-refundable.
After the end of the Subscription period, You will not have access to the Cloud Service and You may not access any uploaded measurements or analyses. GrainSense reserves the right to delete all Your data from the Cloud Service four (4) months after the end of the paid Subscription period
3.1 Use Limitations
You shall not:
- reverse engineer, disassemble, or decompile the Measurement Device, the Services or any part thereof, except when, and to the extent, such restriction is expressly limited by applicable mandatory laws;
- copy, make public or disseminate software provided as part of the Measurement Device or Services;
- remove, alter, or deface any copyright indication or other notices of any proprietary rights or intellectual property rights from the Measurement Device or the Services;
- create or manufacture any products using the Measurement Device or the Services, or market or in any way distribute such products or services;
- distribute, sublicense or otherwise transfer to any third party the Measurement Device or the Services unless specifically authorized herein;
- bring any suit or otherwise assert a claim against GrainSense, its licensors or other customers before any court or administrative agency alleging that the Measurement Device or the Services or documentation, or any part thereof, or that the use, implementations or any other derivative works of the Measurement Device or the Services or documentation infringe any Intellectual Property Rights of any third party; and
- copy, export, re-export, sublicense, rent, loan, lease, disclose, sell, market, commercialise, re-license, otherwise transfer to any third party or use or permit use of the Measurement Device or the Services (or any portions thereof) in any manner inconsistent with or not expressly permitted by GrainSense.
3.2 Intellectual Property Rights
3.3 Warranties and Disclaimers
GrainSense warrants that the Measurement Device purchased by You are free from defects of workmanship and material and in accordance with the product documentation of GrainSense under normal use and normal wear and tear for a period of twelve (12) months from purchase. The warranty granted herein does not cover accidents, abnormal wear and tear, battery, consumable components such as lamps and tray, misuse, negligence, failure to follow instructions of proper use or safety instructions, wrongful installation, non-GrainSense products and services or any alterations, or any errors attributable to external factors (e.g. failures of electrical power, fire or flood).
The Measurement Device is neither intended nor fit for the use of consumers but for business use only. Furthermore, the Measurement Device is not designed to be fault-tolerant and therefore it is not intended to be used for the purposes of environments that require fail-safe performance.
Except as expressly defined above, GrainSense provides the Services, the Measurement Device and accompanying materials "as is" and hereby specifically disclaims all other warranties than those specifically provided by GrainSense hereunder, whether express or implied. GrainSense assumes no liability of errors in the Measurement Device or the Services which are a result of fault or negligence of You or any third party and/or improper, incorrect, or unauthorised use of the Services, or use of the Measurement Device in manner, which it has not been designed, manufactured or specified for, or an external cause such as a failure and/or disruption in a electricity grid.
GrainSense does not guarantee the full functioning or error-free operation of the Services or the Measurement Device. GrainSense disclaims any liability for any business or other decisions made by You based on the measurements of the Measurement Device or other results of the Services and You undertake to indemnify and hold GrainSense harmless against any claims made by third parties based on Your business operations or any guarantees or commitments made by You in relation to the Services or the Measurement Device. Under no circumstances shall GrainSense be liable for any loss of data and You are encouraged to make backup copies of Your data.
You grant to GrainSense and its Partners and licensors the worldwide, nonexclusive, unlimited, perpetual, irrevocable, royalty-free license to:
- use, copy and modify measurement data collected with the Measurement Device and to create derivative works thereof and to include such data into products and Services of GrainSense;
- use, import, sell, offer for sale, lease or otherwise distribute any products or Services containing the general measurement data; and
- sublicense the foregoing rights to the extent a license is necessary for using products or Services.
You agree that all measurements are given on non-confidential basis and You waive any confidentiality restrictions for such general measurement data.
GrainSense reserves the right to use for its business purposes all measurement data including the location of the measurement. GrainSense undertakes to ensure that the measurements are not disclosed to third parties in a way that individual farmer or real estate property could be identified.
GrainSense may make changes to the Services at any time or end the provision of the Services. GrainSense will use reasonable efforts to inform You of the relevant changes to the Services.
GrainSense shall not be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure.
3.6 Governing Law and Dispute Resolution
4. Contact details