This Agreement accompanies an Order Form, 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 These Terms and Conditions of Service (“Agreement”) apply as of the date of the attached Order Form between Aker Technologies Inc. (“Aker”) and the customer listed on the Order Form (“Customer”).
1.2 “Field-scan(s)” means an aerial scan of a Contiguous Field per day or per trip, normally around 80 acres (or such other area as set forth in the Work Order). Unless otherwise specified, 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 Aker Scouting Application. 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, subject to the terms of this Agreement.
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). In connection with using the Aker Scouting Application, Customer agrees to applicable end user license agreement (the “EULA”) that are available in the Aker Scouting Application.
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, which includes the fee for Services.
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 Customer and Aker for Customer to order Services.
1.10 “Services” means the services specified in the Work Order, including comprehensive unmanned aerial vehicles (“UAVs”) image collection, processing and delivery of results to the Customer.
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, Work Order and contained 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 the Work Order.
2.3 Weather permitting, Aker will use reasonable efforts to collect information based on Work Order within 5 days of the scheduled date. Customer will provide detailed site location, boundaries, scouting instructions, schedule, field/grower contact and other information in the Aker Scouting Application.
2.4 Subject to the terms of this Agreement and Aker’s EULA, Aker will use commercially reasonable efforts to cause the Aker Scouting Application to be available to Customer. The Aker Portal shall be considered available if accessible by a user outside the Aker Scouting Application firewall. Any inability of Customer or any third party to access the Aker Scouting Application due to any telecommunications problem or any other technical problem outside of Aker’s direct control shall not be considered periods of unavailability. Aker will deliver results via Aker Scouting Application and raw format as requested by the Customer. Aker will provide access to analytic tools available under the Aker Scouting Application. Aker may assign Customer a unique password and user ID (a “User Login”) to access the Aker Scouting Application. Customer will take reasonable steps to prevent the unauthorized use and disclosure of any password and user ID. Customer shall immediately notify Aker of any unauthorized use of any password and user ID assigned to it and take any steps within its control to prevent any further unauthorized use. The act of a person or an automated process or system on behalf of Customer (including any act through the use of any password and/or user ID assigned to Customer) shall be attributable to Customer (an “Attributable Act”). Customer is responsible for Attributable Acts and for any other use of or access to the Aker Scouting Application by any person or entity gaining access to the Aker Scouting Application through the use of a password and user ID issued by Aker.
2.5 Aker will bear responsibility, at its own expense, for hosting and operation of hardware and software necessary to provide the applicable Services through the Aker Scouting Application, provided that Customer will be responsible for procuring and/or operating computer systems, software and telecommunications services meeting such minimum technical requirements as Aker may specify from time to time, as necessary for Customer to obtain access to the Services as hosted by Aker and/or receive the Services (as applicable).
2.6 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.
2.7 Customer shall submit Work Orders via the Aker Scouting Application or designated 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.
2.9 With respect to the TrueCause™ Service, Aker shall complete the field observations and images in accordance with the Work Order. Aker shall use reasonable efforts to provide an analysis of such images within three (3) days after collection of the same. Notwithstanding the foregoing, Aker shall have no liability for the failure of the images or Services to demonstrate or show any actual diseases or other issues with the underlying crops.
3. FEES AND PAYMENT TERMS
3.1 Customer will pay Aker the then-applicable fees described in the Order Form and Work Order for the Services in accordance with the terms therein (the “Fees”).
3.2 Aker may choose to bill through an invoice. Full payment for all invoices must be received within 15 (fifteen) days after the date of such invoice. Customer agrees to pay a finance charge of 1.5% per month on any outstanding past due balance or the maximum permitted by law, whichever is less, plus all expenses of collection. Furthermore, immediate termination of services may result. Customer shall be responsible for the payment of all taxes associated with the Services other than U.S. taxes on Aker’s net income.
3.3 Customer agrees to commit to complete planned Field-scans as outlined in the Work Orders. If Customer fails to complete total of planned acres of Field-scans, then, at Aker sole discretion, Customer may be subject to pay Aker the difference between 80% of planned-Field-scans and the total value of the Work Orders completed.
3.4 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 and per-diem. All additional fees are subject to Customer approval before order fulfillment. Aker reserves the right to waive this fee if a Work Order falls within an 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 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, worldwide license to use the Aker Materials solely to the extent necessary with the Work Product. Customer will have access to such Customer Data through the Aker Scouting Application for a period of one (1) year following delivery of the applicable Services. Thereafter Aker may, but is not obligated to, delete such Customer Data. Customer shall be responsible to download the Customer Data during the period Customer has access to the Aker Scouting Application. 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
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 Services in a professional and workmanlike manner. Customer acknowledges that accessing the Aker Scouting Application is based upon cellular and/or other internet communication services furnished by various third parties. 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 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.
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
IN NO EVENT SHALL AKER BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY LOST PROFITS (COLLECTIVELY, “SPECIAL DAMAGES”), EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF AKER TO CUSTOMER SHALL IN NO EVENT 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. THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN AKER AND CUSTOMER, AND, ABSENT ANY OF SUCH DISCLAIMERS, EXCLUSIONS OR LIMITATIONS OF LIABILITY, THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT
8.1Aker is authorized to operate unmanned aerial vehicles (“UAVs”) in the US with an approved FAA 333 exemption. Further, every UAV is also licensed under FAA Part 107 for safe and legal commercial operations. 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 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 Illinois 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 city of St. Louis, Missouri. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Notwithstanding the foregoing, the parties agree that should a party breach Section 4 of this Agreement money damages would be an inadequate remedy. Accordingly, the non-breaching Party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any such breach without proof of actual damage, without bond and without liability should such relief be denied, modified or vacated. Such remedy shall be in addition to all other remedies available to the non-breaching Party at law or in equity.
8.4 Entire Agreement. This Agreement, and the documents referenced herein, constitutes the entire Agreement among the parties relating to the subject matter hereof.
8.5 Amendment and Modification. This Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by an authorized representative of each party.