This Agreement includes and incorporates the above Order Form, as well as the Terms and Conditions herein and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
This Services Agreement (“Agreement”) is entered into on the date accepted (the “Effective Date”) between Aker Technologies Inc. (“AKER”) and the listed in order form above (“Customer”). Signing this agreement constitutes understanding and acceptance of the proposed terms for Aker Technologies Inc. (AKER) to provide comprehensive UAV image collection, processing and delivery of results to the undersigned customer (“Customer”). AKER may revise and update these Terms and Conditions of Service form time to time in its sole discretion.
1.1 “Contiguous Field” means a contiguous acre segment touching along a polygon boundary, except no area of land shall be considered not contiguous solely by reason of a roadway or other right-of-way.
1.2 “Field-scan(s)” means an aerial scan of a Contiguous Field per day or per trip, normally greater than 160 acres. Multiple flights or trips within the same day on the same field to capture multiple sensor data shall be considered as a single flight and Customer will not incur in any additional charges.
1.3 “Work Product(s)” means all documents and other materials that are delivered to Customer in printed form, in digital form via a corresponding mobile application or in downloadable files pursuant to section 2.4 below. The parties intend this to be an agreement for services and each considers the results of the services to be rendered hereunder to be a work made for hire. AKER acknowledges and agrees that the Work Product (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of the Customer.
1.4 “Service Region” means an area of 35-mile radius within a single the Customer’s designated location.
1.5 “Monitoring Subscription” means the number of acres subscribed via work orders for crop monitoring to the Customer within its Service Region within one year.
1.6 “AKER Scouting Application” means a collection of mobile and web-based software algorithm and applications used to display, analyze and interact with Work Product(s). Customer hereby agrees to applicable end user license agreement in connection with AKER Scouting Application(s).
1.7 “AKER Materials” means any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any technical or functional descriptions, requirements, plans or reports, that are used by AKER to complete the Work Product.
1.8 “Work Order” means a form for requesting a Field-scan.
1.9 “Order Form” means a Commercial Service Order Form or Seasonal Monitoring Service Order Form to which this Agreement is attached, as in effect from time to time and used by Aker to order services from it.
1.10 “Services” means the services specified in the Work Order.
1.11 “FAA” means the Federal Aviation Administration within the United States Department of Transportation, an agency of the United States of America.
2.1 Subject to the terms hereof, AKER will provide Customer with Services in accordance with the terms set forth in the Order Form and contain herein. In providing Services under this Agreement, AKER shall comply with all applicable laws, including, but not limited to, all rules and regulations of the FAA applicable to AKER and the Services.
2.2 AKER will provide scheduled and on-demand field-scan service within a Service Region and according to a mutually agreed upon work plan and order form. A typical program consists of three (3) plant health field-scans during the one season.
2.3 AKER will identify high-impact scouting zones (in particular, identification of crop stress) from field-scan images and make available in geo-referenced image files and/or via easy to use mobile application.
2.4 AKER will deliver via an online portal high-resolution NDVI images in geo-TIFF or ArcGIS compatible formats. In addition, AKER will provide scouting zone prescription geo-referenced maps in KML and/or SHP file format.
2.5 AKER will provide the Customer with limited business development support such as marketing materials (in print and online), case studies and user meetings to facilitate end user engagement for AKER services.
2.6 No later than 30 days prior to the submission of the initial Work Order, Customer shall submit a work plan with expected field locations, dates, frequency in connection with planned acres in the order form for field data collection activity, unless otherwise agreed in writing by AKER.
2.7 Customer shall submit Work Orders via an AKER approved order portal or designated SuretyMaps online form. Each Work Order shall include job site name, scheduled date requirement, contact information, boundary files in KML or SHP format, planting data and other instructions per field-scan and as applicable for proper coordination of all tasks and completion of the work.
2.8 Customer shall submit Work Orders based on the agreed-upon work plan and at least a 10 days prior to the date of the Field-scan that is the subject of the Work Order or according to in-season program schedule. Weather permitting and based on resource availability, AKER guarantees results will be posted within 3-days from successful data collection date.
3. FEES AND PAYMENT TERMS
3.1 Customer will pay AKER the then-applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”).
3.2 AKER may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by AKER within fifteen (15) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on AKER’s net income.
3.3 Customer agrees to pay to AKER the greater of: (i) $225 per field-scan; or (ii) the per-acre fee according to work order fee schedule. All payment for work orders are due upon completion and upload of data into AKER portal and/or mobile application.
3.4 Customer agrees to commit to complete planned acres via work orders as outlined in sections 2.7 and 2.8. If Customer fails to complete total of planned acres of field work orders, then, at AKER sole discretion, Customer may be subject to pay AKER the difference between 80% of planned-acres and the total value of the work orders completed.
3.5 Customer may be subject to additional fees for work orders outside its Service Region. Additional fees may include travel reimbursement calculated at $0.60/mile plus per-diem or minimum of $500 day. All additional fees are subject to Customer approval before order fulfillment. AKER reserves the right to waive this fee if work order falls within a AKER network service location.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of AKER includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to AKER to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. AKER shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
4.3 Notwithstanding anything to the contrary, AKER shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and AKER will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other AKER offerings, and (ii) disclose such data solely in aggregate or other un-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.4 Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, AKER hereby assigns to Customer all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Work Product. AKER agrees to reasonably cooperate with Customer and shall execute any additional documents reasonably necessary to evidence such assignment. Customer hereby grants to AKER a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Work Product.
4.5 All AKER Materials are and shall remain the exclusive property of AKER. AKER hereby grants to Customer a nonexclusive, nontransferable, perpetual, worldwide license to use the AKER Materials solely to the extent necessary with the Work Product. Customer may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any AKER Materials comprising any software or technology of AKER.
5. WARRANTY AND DISCLAIMER
5.1 AKER shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by AKER or by third-party providers, or because of other causes beyond AKER’s reasonable control, but AKER shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, AKER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND AKER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.1 AKER shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided AKER is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; AKER will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by AKER, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by AKER, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by AKER to be infringing, AKER may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
7. LIMITATION OF LIABILITY
7.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, AKER AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND AKER’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO AKER FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT AKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER PARTY, ITS SUPPLIERS, (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITVE OR INCIDENTAL DAMAGES INCURRED BY ANY OF THEM, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.1 AKER is authorized to operate UAVs in the US with an approved FAA 333 exemption. Nevertheless, AKER may need additional time to obtain local authorization for work orders within FAA protected airspace and COA requirements (e.g. 5-nautical mile radius from airport).
8.2 All AKER’s operations are FAA approved, safe, legal and insured. All pilots carry valid FAA Part 107 authorization. All aerial data collection will be completed according to FAA sUA commercial regulation and within the operational limitations of AKER’s Certificate of Authorization.
8.3 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Minnesota without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Minnesota. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Customer acknowledges that AKER will have no adequate remedy at law in the event Customer uses the deliverables in any way not permitted hereunder, and hereby agrees that AKER shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
8.4 Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.