Effective: September 1st, 2020
Last Modified: September 1st, 2020
This Ellingson Application User Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Ellingson Drainage, Inc. (“Ellingson”). This Agreement governs your use of the Ellingson App, whether our cloud-based or mobile application (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER AND RESIDE IN THE UNITED STATES OR ANY OF ITS TERRITORIES OR POSSESSIONS; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION.
1. LICENSE GRANT
Subject to the terms of this Agreement, Ellingson grants you a limited, non-exclusive, and nontransferable license to:
- access, download, install, and use the Application for your personal, non-commercial use strictly in accordance with the Application’s documentation; and
2. LICENSE RESTRICTIONS
You shall not:
- copy the Application, except as expressly permitted by this license;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof; or
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time.
3. RESERVATION OF RIGHTS
You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Ellingson and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
4. COLLECTION AND USE OF YOUR INFORMATION
You acknowledge that when you download, install, or use the Application, Ellingson may use automatic means (including, for example, cookies and web beacons) to collect information about the device(s) through which you access the Application and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality. All information we collect through or in connection with this Application is subject to our Privacy Notice. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Notice.
The System may permit you to add or upload third-party content, such as Tile Maps, for use within the System (“System Uploads”). You represent and warrant that prior to providing any upload you have all necessary rights to provide the System Uploads, and that your System Uploads will not infringe any third-party rights, including any intellectual property or proprietary rights. Additional terms and options for System Uploads may be presented through the applicable upload interface available on the System which shall be in addition to, and not instead of, this Agreement.
5. CONTENT AND SERVICES
6. GEOGRAPHIC RESTRICTIONS
The Content and Services are based in the state of Minnesota in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
Ellingson may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Ellingson has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. When you log into the Application via the website any available Updates will automatically download and install.You shall promptly download and install all Updates available for the mobile Application and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
8. THIRD PARTY MATERIALS; RELIANCE ON INFORMATION
The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, includingmaterials provided by third-party licensors, syndicators, aggregators, and/or reporting services or through third-party advertising (“Third-Party Materials”). Specifically, weather forecasts, field performance, soil maps, and other data, contain information compiled from various third party sources, which may include, but is not limited to the United States Department of Agriculture; the United States Department of the Interior; the U.S. Fish and Wildlife Service; Loveland Technologies; and Weatherstack.
You acknowledge and agree that Ellingson is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Ellingson does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
ANY RELIANCE YOU PLACE ON THE INFORMATION PROVIDED BY THE APPLICATION IS AT YOUR OWN RISK. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS. YOUR USE OF THE APPLICATION CONSTITUTES AN ACKNOWLEDGEMENT BY YOU OF THE FOREGOING TERMS.
All statements and/or opinions expressed in any Third-Party Materials are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Ellingson.
Ellingson offers the following subscription package options:
- Farm Data: Includes FSA, Drainage, Tile, Parcel, Weather, Wetland, Owner, Crop, History, Topography, Hail, NDVI,and FEMA data and provides file storage capabilities.
- Farm Monitor: Includes Remote Pump Monitoring, Remote Pump Control, Critical Alerts, Analysis and Mobile App features.
- Farm Data + Monitor: Includes Farm Data information and Farm Monitor features, as described above.
To subscribe, you must provide a valid payment method. Subscription features, prices and other terms of purchase are subject to change. ALL PURCHASES, INCLUDING REOCCURRING CHARGES, ARE FINAL AND NON-REFUNDABLE.
To the extent permitted by applicable law, subscriptions automatically renew for the next subscription period until you cancel. Your payment method will be charged at the beginning of each subscription period. To pause or cancel a subscription visit your account settings. Your changes will be applied to your next subscription period.
10. TERM AND TERMINATION
The term of Agreement commences when you purchase a subscription package and acknowledge your acceptance of this Agreement and will continue in effect until terminated by you or Ellingson as set forth in this Section 10.
You may terminate this Agreement by canceling your subscription under your account settings. Ellingson may terminate this Agreement at any time without notice if it ceases to support the Application, which Ellingson may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
- all rights granted to you under this Agreement will also terminate; and
- you must cease all use of the Application and delete all copies of the Application from your mobile device.
Termination will not limit any of Ellingson’s rights or remedies at law or in equity.
11. DISCLAIMER OF WARRANTIES
THE APPLICATION IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ELLINGSON, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
WITHOUT LIMITATION TO THE FOREGOING, ELLINGSON PROVIDES NO WARRANTY, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLEOR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
12. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ELLINGSON OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR ELLINGSON WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold harmless Ellingson and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement.
14. EXPORT REGULATION
The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
16. GOVERNING LAW
This Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota in each case located in Minneapolis and Hennepin County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
17. LIMITATION OF TIME TO FILE CLAIMS
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
18. ENTIRE AGREEMENT
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any other terms, the terms of this Agreement shall govern