Pattern End User License Agreement

Last updated: Apr 16  2019

 

This End User License Agreement (this “Agreement”) is a legal agreement between (i) you (either an individual or a single legal entity), and (ii) Pattern Ag and its Affiliates (“we”, “us” or “Pattern”).  By downloading, installing, activating or otherwise using the Pattern Products, you represent and warrant (a) that you are at least 18 years of age or the age of majority where you reside, (b) that you are acting for business purposes, and (c) that you have the power and authority to enter into this Agreement, and you agree to be bound by these terms and conditions, including Pattern’s Privacy Policy.  If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you can bind such entity, in which case “you” or “your” shall refer to such entity.

 

The Pattern Products provide information, estimates, prescriptions or other recommendations based on models and third party sources, as well as Data provided by you or your equipment.  Our services, models, data and recommendations may change over time. Individual results may vary, as weather, growing conditions and farming practices differ across growers, locations and years.  We do not guarantee any results, and none of the Pattern Products or Generated Data should be used as a substitute for sound farming practices, including diligent field monitoring, or as a sole means for making farming, risk management or financial decisions.  We recommend that you consult your agronomist, commodities broker and other service professionals before making financial, risk management and farming decisions.

Scope of this Agreement

 

This Agreement sets out how you can and cannot use the Pattern Products provided or licensed to you by us, and what we will and will not do in connection with your use, as well as other important legal restrictions and obligations.  While some Pattern Products may be provided or licensed to you for free, you or your Sales Representative will need to submit an order for certain fee-based Pattern Products. Your order will become effective only if we accept the order.  If you reside outside of the United States of America, this Agreement may not apply to you. 

Your Use of the Pattern Products

 

What you can do:

  • As long as you comply with the terms of this Agreement, you and the individuals who work for you can use the Pattern Products for your internal use only in connection with your farming operations.

    • The Pattern Products are licensed, not sold, to you.

  • If you have placed an order for a fee-based Pattern Product, you can use that Pattern Product only until your subscription for that Pattern Product ends.

  • We encourage you to let us know how we are doing or how you feel about the Pattern Products.

 

What you agree to do:

  • provide accurate, reliable and appropriate Data

  • ensure that those individuals working for you comply with this Agreement

  • keep your account and payment information up to date

  • manage all passwords for your authorized users and immediately notify us if you believe that your account is no longer secure

 

What you cannot do: 

  • assign, transfer or sublicense this Agreement or the rights granted by us in this Agreement

  • sell, lease, lend, license, distribute, re-distribute, copy, publicly perform or display, transmit or publish any Pattern Products or Generated Data

  • modify, edit, adapt, alter, translate, adopt, transfer, enhance, disassemble, scrape (through spidering, crawling or the like), reverse engineer or decompile the Pattern Products or any code, script, or software forming any part of the Pattern Products

  • use the Pattern Products on land or equipment that you do not own or have a right to use or operate

  • use the Pattern Products or Generated Data on behalf of any third party, including in any “service bureau” or similar capacity

  • use the Pattern Products or Generated Data other than as permitted under this Agreement, including but not limited to using them to:

    • develop, evaluate, validate or enhance any competitive product or service

    • create derivative works

    • make competitive comparisons

    • harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of anyone or to publish material that is false, defamatory, harassing or obscene

  • remove or modify any markings or notices of our or our licensors’ proprietary rights

  • violate or circumvent, or attempt to do so, any Pattern Product security feature, including attempting to access or use any portion of the Pattern Products for which you have not paid all due and applicable amounts

  • use or otherwise import, export or re-export the Pattern Products or Generated Data in any way that violates any applicable laws or security programs

    • In particular, but without limitation, Pattern Products may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Pattern Product, you represent and warrant that you are not located in any such country or on any such list and that you are not partnering with any person that is in any such country or on any such list.

 

If you do any of the above, we may suspend or terminate your access to the Pattern Products and we will not be responsible in any way for your actions.

Pattern’s Rights and Obligations

 

What we may do:

  • We will make the Pattern Products available for ordering, subscription, or licensing through our own sales staff or through authorized third party dealers or representatives.

  • We may provide updates, upgrades, releases and fixes to the Pattern Products.

    • You must install or use the most recent version of the Pattern Products and abide by any additional requirements.

    • We will try to notify you of any changes we make to the Pattern Products, though this may not always be possible.

    • We will not be responsible in any way for use of an outdated version of a Pattern Product.

    • An update may result in a change, or discontinuation, of features of the Pattern Products.

  • We may use your feedback for any purpose without restriction.

  • If you contact us, we may confirm your identity to ensure you are who you say you are and to better protect your privacy.

 

Your information and Data:

  • By uploading, inputting, transmitting, storing or otherwise making Data available to the Pattern Products, you agree that we may use, display, perform, reproduce, modify and distribute such Data in connection with the Pattern Products, and without any compensation paid to you.

    • We will collect, use and share your information in accordance with our Privacy Policy (as may be amended from time to time), which is incorporated by reference into, and made a part of, this Agreement.

    • We encourage you to read our Privacy Policy at https://pattern.ag/privacy-policy. We can also mail you a copy if you wish.

  • If you proactively choose to, you can give your Sales Representative and other third parties access to certain Data and Generated Data in your account.

    • You can provide or revoke such access at any time in your account settings, by sending an e-mail to support@pattern.ag or a written Notice to us as set forth in the section entitled “Notice and Electronic Communications” below.

  • If any of your Data is generated or transmitted by or through any third party equipment, hardware or software products and you submit a product support request to us that relates to such third party equipment, hardware or software product, then we may share your Data with the provider of such equipment, hardware or software product solely as necessary to resolve that product support request, provided that such provider agrees not to use or disclose your Data other than to resolve that product support request.

    • If you do not want us to share your Data with the provider of any of your third party equipment, hardware or software products, please send an e-mail to support@pattern.ag or a written Notice to us as set forth in the section entitled “Notice and Electronic Communications” below. Please note that not allowing us to share your Data with the provider may make it more difficult for Pattern or that provider to troubleshoot and resolve your issue effectively.

 

Digital Millennium Copyright Act:

 

We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Pattern Products, you may contact our Designated Agent at the following address:

 

  • Pattern Ag

  • 1250 45th st, suite 315

  • Emeryville CA, 94608

 

Email: support@pattern.ag

 

Any notice alleging that materials hosted by or distributed through the Pattern Products infringe intellectual property rights must include the following information:

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

  • A description of the copyright-protected work or other intellectual property right that you claim has been infringed;

  • A description of the material that you claim is infringing and where it is located on the Pattern Products;

  • Your address, telephone number, and email address;

  • A statement by you that you have a good faith belief that the use of those materials on the Pattern Products is not authorized by the copyright owner, its agent, or the law; and

  • A statement by you that the above information in your notice is accurate and that, under penalty or perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

 

Pattern will promptly terminate without notice the accounts of users that are determined by Pattern to be "Repeat Infringers." A Repeat Infringer is a user who has been notified of infringing activity or has had user content removed from the Pattern Products at least twice.

 

Ownership

  • As between Pattern and you, we are the sole owner of the Pattern Products and Generated Data, and all associated technology and intellectual property rights, and we reserve all rights in and to the Pattern Products and Generated Data. We do not grant you any rights or licenses under any of our technology or intellectual property rights, except as expressly granted in this Agreement.

  • You retain all right, title and interest (including all intellectual property rights) in and to the Data and Samples that you provide to us, and you hereby: (a) represent and warrant you own all right, title and interest including all moral, proprietary and intellectual property rights in and to the Data and Samples or otherwise have all rights to irrevocably assign to Pattern ownership of the Data and Samples; (b) irrevocably and in perpetuity assign to Pattern all rights, title and interests in and to the Data and Samples free and clear of any claims or encumbrances and designate and permit Pattern (its agents or attorneys’ in fact) to act for, on behalf of and instead of us to execute and file documents and do all other lawfully permitted acts to perfect and protect Pattern’s ownership in the Data and Samples as if executed by you; (c) grant to Pattern the non-exclusive, fully paid up, perpetual, irrevocable and worldwide right to use the Data, Samples, Generated Data, and all derivatives thereof to support, maintain and improve the Pattern Product, for marketing or distribution to third parties, and for other business purposes on a non-identifiable, anonymous, aggregated basis; and, (d) agree the Generated Data are provided by Pattern for your exclusive internal business purposes and use only and may not be made available by you to third parties for any purposes (other than to agronomists or consultants providing you services based on the Generated Data) without Pattern’s prior written consent.

Subscription Auto-Renewal, Subscription Fees and Payment

 

Subscription fees: 

  • Prices for fee-based Pattern Product subscriptions may change in the future. Unless otherwise provided in the applicable order, the subscription fees for any renewed subscription will be the applicable list price for such Pattern Product in effect when the subscription renews.

    • Except as expressly provided in the applicable order, renewal of promotional or one-time priced subscriptions will be at our applicable list price in effect at the time of the applicable renewal.

    • Notwithstanding anything to the contrary, any renewal in which the subscribed services or acres has changed from the prior subscription term may result in re-pricing at the time of renewal without regard to the prior subscription term’s pricing.

  • If the price for your fee-based Pattern Product subscription changes for the renewal term, we will notify you in advance of the applicable renewal term.

    • If you do not agree to the fee change, your sole and exclusive remedy is to cancel the automatic renewal of your subscription by contacting Pattern Customer Support at support@pattern.ag within 30 days of the notice of any fee change.

 

Payment:

  • You agree to pay: (i) when due, all amounts set forth in the applicable order for any fee-based Pattern Product and, (ii) at the time of renewal, the applicable subscription fees for any renewed Pattern Product subscription.

    • Subscription fees and prices for Pattern Products listed in an order and for any renewed Pattern Product subscriptions are exclusive of taxes, and you will be responsible for all applicable taxes, except for taxes based on Pattern’s income. If we have the legal obligation to pay or collect any taxes for which you are responsible, you will be required to pay us that amount unless you provide us with a valid tax exemption certification authorized by the appropriate taxing authority.

    • Unless otherwise specified, overdue amounts will accrue interest at the lesser of 1.5% per month or the highest rate allowed by law.

  • If you have provided us with your payment information (including credit-card, debit-card or bank-account information), you authorize us to charge your payment method for the fees due for your use of the Pattern Products.

    • We may provide your payment information and related personal data to third parties for payment processing and fraud prevention purposes.

    • You will provide us with valid and up to date payment information.

    • We may seek pre-authorization of your credit-card or debit-card account to verify that the card is valid and has the necessary funds or credit available to cover your payment.

    • If a payment is not successfully settled for any reason, you remain responsible for any uncollected amounts.

    • You may edit your payment information at any time in your account settings, or by sending an e-mail to support@pattern.ag or a written Notice to us as set forth in the section entitled “Notice and Electronic Communications” below.

  • You may withhold payment for fees that you reasonably and in good faith dispute as owing, but you must pay any undisputed fees.

    • You must notify us in writing of any such disputed fees within 15 days of the invoice date and provide us with written details about why you dispute the invoice.

    • After we receive notice of the dispute, we will work with you in good faith to resolve the dispute.

  • If your subscription fee payment is overdue, we may suspend your account access until such amounts are paid in full.

 

Other important legal information

Limitations on liability and damages for use of Pattern Products:

  • Use of the Pattern Products and Generated Data is at your sole risk.

  • We do not promise that your use of the Pattern Products will be uninterrupted or that the Pattern Products or Generated Data will meet your requirements, be accurate or be error-free.

  • The Pattern Products and any services performed or Generated Data provided by or through the Pattern Products are provided "as is" and "as available", with all faults and without warranty of any kind, either express, implied or statutory, such as the warranties of yield response, merchantability, satisfactory quality, fitness for a particular purpose, quiet enjoyment or non-infringement of third party rights, all of which are expressly disclaimed.

    • No oral or written information or advice given by us or our authorized third party representatives will create a warranty.

    • The disclaimers and exclusions in this Agreement will apply notwithstanding any failure of essential purpose of any limited remedy.

    • Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.

  • Pattern and our Affiliates, and each of our respective employees, officers, directors, shareholders, agents, successors, licensors or subcontractors, will not be liable for any loss or damage, including, without limitation, damages for loss of profits, loss of crops or yield, loss of data, business interruption or any other damages or losses, incurred as a result of your use or inability to use the Pattern Products or a decision made or any action taken by you in reliance on the Pattern Products, Generated Data or any results obtained from their use.

  • Certain features of the Pattern Products may permit you to upload or otherwise make Data available to the Pattern Products. You are solely responsible for your Data and the consequences of uploading or otherwise making Data available to the Pattern Products.

  • We have no responsibility, and will incur no liability whatsoever, arising from or related to Data not owned by you or any disclosure or use of your Data or Generated Data by a third party that you have granted access to your Pattern Product or information.

  • We are not responsible for any delays, limitations, delivery failures, losses or damages resulting from the transfer and transmission of data over communications facilities, including the internet.

  • In the event that you collect soil and related farm samples yourself for delivery to Pattern in service of supporting the Pattern Product, how you collect, label, package and send, and the condition and quality of the samples when received, have a significant impact on the accuracy of the test results. You are responsible for following Pattern submission instructions, all applicable laws and regulations in the collection and submission of the samples and for the integrity, accuracy and reliability of the information and metadata you provide along with the sample or online. The method of sample collection and accurate recording of metadata is essential to the results received from testing and analysis. Failure to comply with the instructions, improper sample collection or incomplete or defective recording of metadata may result in sample contamination, sample rejection, require sample replacement, testing delays, inaccurate or incomplete testing and additional cost and expense to you. Pattern is not responsible for samples or lost or damaged samples resulting from inappropriate or improper packaging, labelling/data input, transmission of the sample or other factors outside of its control and reserves the right to reject any sample and/or to suspend any services without notice or liability.

  • Neither you nor Pattern will be liable for any indirect, incidental, punitive, special or consequential damages under this Agreement, arising out of or related to any Pattern Product or Generated Data or for any claim by any third party.

  • Our maximum liability arising out of or in the connection with this Agreement or any Pattern Product or Generated Data will be the actual amounts you paid to us for such Pattern Product during the 12 months prior to the date on which the relevant claim arises.

  • Unless otherwise prohibited by applicable law, if an action or lawsuit arising out of or related to this Agreement or a Pattern Product or Generated Data is not commenced within one (1) year after the cause of action accrues, such cause of action is permanently barred.

 

Indemnity:

  • You agree to defend, hold harmless and indemnify Pattern and our Affiliates, and each of our respective employees, officers, directors, shareholders, agents, successors, licensors and subcontractors, from and against any claim, liability, damage, loss, or expense, including reasonable attorneys’ fees, arising out of or connected with:

    • Your access to, or use of, the Pattern Products or Generated Data

    • Your violation of any portion of this Agreement or any applicable law or regulation

    • Your violation of any third party right, including any intellectual property right

    • Any dispute or issue between you and any third party

  • We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

 

Third party services:

  • You are solely responsible for all requirements for access to or use of the Pattern Products through your mobile device, internet or telecommunications provider, or the terms related to the use of any required additional software.

  • The Pattern Products may contain certain third party software provided under separate licenses or enable access to third party websites, services, content or materials.

    • The terms and conditions of the applicable license control use of any third party software, websites, services, content or materials.

    • You bear all risk, and will be solely responsible for obtaining any necessary rights and licenses, for any use of or access to any third party software, websites, services, content or materials.

 

Effective date and termination:

      

  • This Agreement will become effective when you first indicate your acceptance of this Agreement or on the effective date set out on your applicable order, whichever is earlier.

  • You may terminate this Agreement (close your account) or cancel an order for a fee-based Pattern Product at any time with notice to us.

    • If you cancel an order for a fee-based Pattern Product within 30 days from the applicable order date, but prior to completion of any related in field activities or sampling, we will refund amounts already paid by you with respect to that order.

    • If you cancel an order for a fee-based Pattern Product within 30 days from the applicable order date, but after completion of any related in field activities or sampling, we will refund amounts already paid by you with respect to that order that are in excess of the cost associated with the completion of the in field activities and sampling

    • If you cancel an order for a fee-based Pattern Product more than 30 days from the applicable order date, then you will be responsible for all subscription fees with respect to that order and will not be entitled to any credits or refunds as a result of such convenience termination for prepaid but unused Pattern Products.

    • Any such cancelation will automatically terminate this Agreement with respect to the Pattern Product associated with that order, subject to any survival provisions in this Agreement.

  • Either you or Pattern may terminate this Agreement if the other party materially breaches this Agreement and fails to remedy the breach within 30 days of notice of such breach.

    • If you terminate this Agreement because of a breach by Pattern, we will refund amounts already paid by you for any active subscriptions or orders at the time of termination. If Pattern terminates this Agreement because of a breach by you, you will be responsible for all subscription fees for any active subscriptions or orders at the time of termination and will not be entitled to any credits or refunds as a result of such termination for prepaid but unused Pattern Products.

  • We may terminate this Agreement with respect to any Pattern Product if: (i) we no longer offer the Pattern Product; (ii) you do not pay your applicable amounts on time; (iii) your continued use of the Pattern Product violates this Agreement or any applicable law or regulation; or (iv) we believe that your account has been accessed without your authorization.

  • If we or you terminate this Agreement or cancel an order with respect to any Pattern Product, then your right to use or access such Pattern Product will be terminated immediately, and you must immediately stop using such Pattern Product (if software), or you will no longer be able to access or use such Pattern Product (if a service), as applicable

  • Upon termination of this Agreement, Pattern may continue to use the Data, Samples, and Generated Data in accordance with this Agreement and is not required to remove them from any of our libraries, databases, or other systems and Services

 

Order of precedence; Entire agreement:

  • The terms of an order for a Pattern Product will control over conflicting terms in this Agreement, but only with respect to the Pattern Products in such order. You and Pattern may also enter into a separate signed contract governing your use of a Pattern Product.  In that case, the order of precedence, with respect to that Pattern Product only, will be: (1) the signed contract, (2) the applicable order and (3) this Agreement.

  • This Agreement, together with the Privacy Policy, all of your orders for any Pattern Products, any separately signed contract governing your use of a Pattern Product, and all other related documents and schedules, constitutes the entire agreement between you and Pattern pertaining to your use of the Pattern Products and supersedes all other agreements previously existing between you and Pattern regarding your use of the Pattern Products.

 

Other terms:

  • The parties will perform under this Agreement as independent contractors. This Agreement does not create a joint venture, partnership, or formal business organization of any kind. This Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective heirs, executors, successors and assigns. The unenforceability of any provision will not affect any other provision in this Agreement, and any unenforceable provisions will be limited or eliminated to the minimum extent necessary.  Failure to insist upon the performance of, or to exercise any rights under, this Agreement will not be construed as a waiver of any future performance or the future exercise of any such right. All rights and remedies under this Agreement are cumulative and in addition to any other rights and remedies available at law. Those provision(s) whose context indicates that it is intended to survive will survive termination or expiration of this Agreement. 

 

Governing Law; Dispute Resolution and Arbitration

 

Governing law:

  • This Agreement and all conduct, disputes and causes of action related to this Agreement will be governed by the laws of the State of California, without reference to conflict of law principles.

    • The Uniform Computer Information Transactions Act and UN Convention on Contracts for the International Sale of Goods are explicitly disclaimed.

 

Dispute resolution and arbitration:

  • You and Pattern agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration, subject to the exceptions below.

    • Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and is subject to very limited review by courts.  Arbitrators can award the same damages and relief that a court can award. 

    • This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND Pattern ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

    • Exceptions. Despite the provisions above, either party may: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable agency if that action is available; (c) seek injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.

    • Arbitrator. Any arbitration between you and Pattern will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA.  The AAA Rules and filing forms are available online at adr.org, by calling the AAA at 1-800-778-7879, or by contacting Pattern.

    • Notice; Process. A party who intends to seek arbitration must first send a written Notice of the dispute to the other party as set forth in the section entitled “Notice and Electronic Communications” below.  The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”).  The parties will use good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Pattern may commence an arbitration proceeding.  During the arbitration, the amount of any settlement offer made by you or Pattern must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Pattern will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Pattern in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

    • Fees. If you commence arbitration in accordance with this Agreement, the payment of any fees will be decided by the AAA Rules.  If the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules.  Any arbitral hearing will be conducted in the county (or parish) of your billing address. If the arbitrator finds that either the substance of a claim or the relief sought by either party is frivolous or brought for an improper purpose (as measured by the standards set forth in the Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and you agree to reimburse Pattern for all monies previously disbursed by us that are otherwise your obligation to pay under the AAA Rules.  Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rules and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

    • No Class Actions. YOU AND Pattern AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.  Further, unless both you and Pattern agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative class or proceeding.

    • Modifications. If Pattern makes any future changes to this arbitration provision (other than a change to Pattern’s address for Notice), you may reject the change by sending us written notice within 30 days of the change, in which case your subscription and access to the Pattern Products will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you reject, will survive.

    • Enforceability. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding agreement to arbitrate.  If the subsection entitled “No Class Actions” above is found to be unenforceable, then the entirety of this section entitled “Dispute Resolution and Arbitration” will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described separately in this Agreement will govern any action arising out of or related to this Agreement.  Except for the subsection entitled “No Class Actions” above, if any provision of this section entitled “Dispute Resolution and Arbitration” shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.

  • IF A LAWSUIT OR COURT PROCEEDING IS PERMITTED UNDER THIS AGREEMENT, THEN YOU AND Pattern AGREE TO SUBMIT TO THE PERSONAL AND EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA FOR THE PURPOSE OF LITIGATING THE DISPUTE.

 

Force Majeure

  • Except for payment obligations, neither you nor Pattern will be in breach of this Agreement or responsible for damages caused by delay or failure to perform any of its obligations under this Agreement due to circumstances beyond the control of the claiming party.

Updates to this Agreement 

  • We may change this Agreement at any time, and we will try to let you know as soon as possible when we have made any changes, such as by sending an e-mail to you, by posting a notification on the Pattern Products, or other similar mechanism. You can view the most current version of this Agreement at: https://pattern.ag/end-user-license-agreement. The “Last Updated” legend at the top of this page indicates when this Agreement was last revised. Any changes to this Agreement will become effective upon the earlier of: (a) your first use of the Pattern Products with actual notice of such changes, or (b) 30 days after we post or distribute the revised Agreement, and such changes will apply to your use of the Pattern Products after the effective date of the revised Agreement. If you do not wish to accept the new Agreement, you must stop using the Pattern Products.

 

Additional Requirements for Apple App

  • If you are using the Pattern Products through mobile application software on an Apple Inc. (“Apple”) device, including any iPhone, iPod touch or iPad devices (“Apple App”), you further acknowledge and agree to the following: (i) this Agreement is between you and Pattern only, not with Apple, and Apple is not responsible for the Apple App or Pattern Products; (ii) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App; (iii) you may use the Apple App on any Apple device you own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service; (iv) in the event of any failure of the Apple App to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the Apple App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apple App; (v) Pattern (and not Apple) is responsible for addressing any claims by you or any third party relating to the Apple App or your possession and/or use of the Apple App, including: (1) product liability claims; (2) any claim that the Apple App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation; (vi) in the event of a third party claim that the Apple App and/or your possession and use of the Apple App infringes that third party’s intellectual property rights, Pattern (and not Apple) is responsible for the investigation, defense, settlement and discharge of any such claim to the extent any such obligation exists; (vi) Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement solely with respect to this paragraph; (vii) you represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

Notice and Electronic Communications 

  • Any applicable notice, disclosure, authorization, acknowledgement or other document required to be given or made available (“Notice”) will be in writing and delivered by mail or e-mail (where permitted). The receiving party will be deemed to have received such Notice upon delivery or transmission or, in the case of mail, 48 hours after mailing.

 

  • Notice to us must be sent to:

 

  • By installing, downloading, activating or using a Pattern Product, you expressly consent and agree that we may send you all Notices electronically to your primary e-mail address provided in your account.

  • Any Notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

  • At any time, you may: (1) request a paper copy of any Notice provided or made available electronically to you by us, free of charge, and/or (2) withdraw your consent to receive future Notices electronically. Please send an e-mail to support@pattern.ag or a written Notice to us at the address above with such request(s) and provide your mailing address for the Notices.

  • It is your responsibility to keep your primary e-mail address up to date so that we can communicate with you electronically. 

    • If we send a Notice to your primary e-mail address on file and your primary e-mail address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic communications, we will be deemed to have provided the Notice to you.

    • You may need to add us to your contacts or e-mail address book so that you will be able to receive the Notices we send to you.

    • If electronic Notices sent to you by us are returned because of an invalid e-mail address, we may deem your account to be inactive, and you will not be able to transact any activity using your account until we receive a valid, working e-mail address from you.

  • If you want to change your e-mail address where we should send electronic Notices, you can:

    • send an e-mail message to us at support@pattern.ag, and in the body of such request, state your previous e-mail address and your new e-mail address; or

    • update your primary e-mail address at any time in your account.

 

Electronic Contracting

  • Your installation, downloading, activation or use of the Pattern Products and internet sites for ordering such Pattern Products includes the capacity and ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS AND TO PAY FOR SUCH TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO YOUR Pattern Products, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS, SUBJECT TO YOUR RIGHT TO WITHDRAW CONSENT TO RECEIVE NOTICES ELECTRONICALLY AS PROVIDED IN THIS AGREEMENT. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.

Definitions

  • “Affiliate” means any subsidiary or other entity that directly or indirectly is controlled by, or is under common control of, an entity. 

  • “Pattern Products” means the following items provided by us to you, regardless of naming or branding, either alone or in combination with each other or with hardware: (i) farm management, agriculture decision support and precision agriculture software, in any form, or software as a service and similar products, (ii) services performed on the farm and in the field, such as soil and tissue sampling, (iii) the websites, applications and technology platforms that deliver, or allow you to access, these software or software as a service products or services, including our website located at pattern.ag; or (iv) all related documentation, updates, upgrades, releases and fixes.

  • “Data” means the location, field map or boundary, weather, climate, agronomic, crop loss, crop yield, environmental, farming practice, account information and other information and data that is uploaded, inputted, transmitted, imported or stored to or in your Pattern Products, directly by you or your Sales Representative or through your equipment.

  • “Samples” means the soil received by Pattern, and other data and information submitted with them or online including providing the following required Sample Data Submission Fields:

    • Sample ID

    • Sample name

    • Farm

    • Field

    • Latitude

    • Longitude

    • Sampling date

    • Depth

  • “Generated Data” means data, features, functionality, tools, analyses, results, estimates, recommendations and other information generated, published, displayed, transmitted or made available in or by the Pattern Products other than Data, whether or not related to Data.

  • “Sales Representative” means your dealer that sold your Pattern Product subscription(s) to you.