Valmont

Terms of Use

Last Updated: February 2024

These Terms of Use (these “Terms”) apply to your access to, and use of our mobile applications (collectively the “Apps”), and website located at (the “Site”, and together with Apps, the “Services”), which are owned and operated by Valmont Industries, Inc. (“Valmont”, “we”, “us” or “our”). THESE TERMS ARE IMPORTANT, CONTAIN LEGAL OBLIGATIONS AND AFFECT YOUR LEGAL RIGHTS, SO PLEASE READ THEM CAREFULLY. NOTE THAT SECTION 19 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.

BY CLICKING “I ACCEPT” OR BY ACCESSING OR USING OUR SERVICES OR CREATING AN ACCOUNT, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER SET FORTH HEREIN, YOU MAY NOT ACCESS OR USE THE SERVICES.

1. Eligibility to Use the Services.

To be eligible to use the Services you must meet the following criteria and, by agreeing to these Terms, represent and warrant that you: (a) are 18 years of age or older/of legal age to enter into a binding agreement; (b) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services; (c) will only maintain one Account at any given time; (d) have full power and legal authority to enter into these Terms and in doing so will not violate any other agreement to which you are a party, and will comply with these Terms at all times; and (e) agree to use your name and your email address when registering.

If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.

2. Additional Terms.

Certain features of the Services may be subject to additional terms and conditions (“Additional Terms”). We may present Additional Terms to you when you activate or use a feature to which Additional Terms apply (either in the form of disclaimers or notices, or a separate document), and your use of any feature constitutes your acceptance of these Additional Terms before using such feature. Unless otherwise stated in the Additional Terms, all Additional Terms are incorporated into these Terms. If you do not agree with the Additional Terms, you will not have access to the feature to which they relate. These Terms and Additional Terms apply equally. If any Additional Term is inconsistent with any provision of these Terms, the Additional Term will prevail only for the feature(s) to which that Additional Term applies.

3. Privacy.

Please refer to our Privacy Policy (https://learn.valleyirrigation.com/privacy-policy) for information about how we collect, use and disclose information about you.

4. Accounts, Account Security and Communication Preferences.

You may need to register for a user account (“Account”) to access some or all of our Services. It is your responsibility to prevent disclosure of your username and password, and to change your password if you feel that its security has been compromised. You may change your password at any time. We shall not be liable or responsible for any damages that result from your failure to keep your username and/or password secure. You are responsible for all activity in your Account. If you permit others to use your Account credentials, you are responsible for the activities of such users that occur in connection with your Account.

As part of activating your Account, you are required to provide us with both a valid email address and phone number, and to update this information if you change your email account or phone number. By creating an Account, you also consent to receive electronic communications from Valmont (e.g., via email, text message, or by posting notices to the Services). These communications may include operational notices about your Account (e.g., password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.

5. User Data.

Our Services may obtain content or data directly or indirectly from or through you or your use of the Services (collectively, “User Data”). Except for the license you grant below, as between you and Valmont, you retain all rights in and to your User Data. You hereby grant Valmont a perpetual, nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to (a) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Data in all media formats and channels now known or later developed without compensation to you; (b) use and analyze User Data to provide maintenance and support for the Services, and for research and development purposes (both internal and with Valmont third-party partners bound by a duty of confidentiality); (c) analyze User Data with similar data from other sources for identifying trends, patterns, relationships, and statistics (“Trend Data”); (d) summarize, aggregate, or otherwise consolidate User Data with similar data from other sources to develop data aggregates, abstracts, reports, or other descriptions (“Summary Data”); and (e) use and distribute to others User Data as it appears in Trend Data and Summary Data.

If you supply or transmit any User Data via the Services, you represent and warrant to us that you have the legal right necessary to grant us the license described above, and that such material will not violate any law or the rights of any person or entity (including, without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity). Any User Data posted publicly or sent privately is the sole responsibility of the person that submitted it. Although Valmont reserves the right to review or remove all User Data on the Services, we do not necessarily review all of it. As such, we do not take responsibility for any User Data provided through the Services.

6. Data Transfers to Third Parties

We agree to transfer User Data to a third party that has been pre-approved by us (“Valmont Approved Third Party”) upon our receipt of a written or electronic request from you authorizing such a transfer (each, a “Data Transfer Authorization”). Upon our receipt of a Data Transfer Authorization, we shall be instructed and authorized by you to begin and continue transferring User Data to such Valmont Approved Third Party until we receive a written or electronic request stating that transfers to such Valmont Approved Third Party should cease (each, a “Data Transfer Authorization Revocation”). We will cease transfer of User Data to such Valmont Approved Third Party within a reasonable period of time from the receipt of a Data Transfer Authorization Revocation. All transfers of User Data shall be performed at our sole discretion, including but not limited to, with respect to duration, frequency, file size, timing, and transfer speed. WE SHALL NOT BE LIABLE AND YOU AGREE TO HOLD US HARMLESS FOR ANY VALMONT APPROVED THIRD PARTY’S USE OF USER DATA AND FOR YOUR USE OF A VALMONT APPROVED THIRD PARTY.

7. Appropriate Use of the Services.

You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties and regulations. You will not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:

• Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
• Use or attempt to use another user’s Account without authorization from that user and Valmont;
• Copy, reproduce, sell, rent, lease, sublicense, assign, distribute, transfer, or otherwise make available the Services or Content, or any features or functionality of the Services, to any third-party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time
• Modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Services or Content;
• Remove, alter or tamper with any copyright, trademark or other proprietary rights or legal notices contained in any Content obtained from the Services;
• Decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive any proprietary software code or information associated with the Services;
• Use the Services in any manner that could interfere in any way with the operation of the Services or any server, network or system associated with the Services, including, without limitation, by: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of the Services or any server, network or system associated with the Services; breaching or circumventing firewall, encryption, security or authentication routines; or accessing data not intended for you;
• Use any automated program, tool or process (including, without limitation, data miners, web crawlers, robots, bots, spiders, and automated scripts) to access the Services or any server, network or system associated with the Services, or to extract, collect, harvest or gather content or information from the Services;
• Download (other than the page caching) any portion of the Services or Content, except as expressly permitted by us;
• Frame or otherwise create a browser or border environment around any page or content of the Services, or deep-link to any internal page or area of the Services; or
• Make any other use of the Services that violates these Terms or any applicable law or that is contrary to its intended purpose.

You may also only upload or otherwise share User Data that you have all necessary rights to disclose. You may not upload, store or share any User Data that:

• Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
• Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
• May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
• Impersonates, or misrepresents your affiliation with, any person or entity;
• Contains any private or personal information of a third party without such third party’s consent;
• Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
• Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Valmont or others to any harm or liability of any type.

If you access and use the Services on your smartphone, tablet or other mobile device, you must have wireless service through Wi-Fi or a participating wireless service provider and a compatible mobile device. You are responsible for all charges (including data and messaging charges) related to your use of the Services through your device. We do not guarantee that the Services are compatible with any particular operating system, browser, mobile device or other software or equipment.

8. Reservation of Rights.

We may modify, suspend, or discontinue any aspect of the Services at any time without prior notice. You agree that we shall not be liable to you or any third party for any modification, suspension, or discontinuance of any feature or component of the Services. In addition, we reserve the right, at any time and for any reason, with or without notice, and without liability to you or any other user, to: (a) restrict, limit, suspend or terminate your and/or any other user’s access to the Services; (b) monitor any user’s use of the Services to verify compliance with these Terms and/or any applicable law; (c) investigate any suspected or alleged misuse of the Services and cooperate with law enforcement and/or third-parties in such investigation; and (d) disclose information about any user’s use of the Services in connection with law enforcement investigation of alleged illegal activity, or in response to a lawful court order or subpoena.

9. Proprietary Rights.

Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the Valmont logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Valmont or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.

No exclusive rights are granted by these Terms. You acknowledge and agree that the Services and Content are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services or Content under these Terms, or any other rights thereto other than to use the Services and Content in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. Valmont reserves and shall retain its entire right, title, and interest in and to the Services and Content, including all patents, copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms.

10. License to Access and Use Our Services and Content.

Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, non-transferable, non-sublicensable license to access and use the Services and Content. Except for this limited licenses granted to you, we reserve all other rights. Any use of the Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. This license is revocable at any time for any or no reason.

Notwithstanding anything to the contrary in these Terms, the Services and Content may include software components provided by Valmont or a third party that are subject to separate license terms, in which case those license terms will govern such software components.

11. Trademarks.

All trademarks, trade names, service marks and logos appearing on or through the Services (including, without limitation, the “Valmont” name, Valmont logo, and any other Valmont product or service names, logos, marks, slogans, or other identifiers) (collectively, the “Trademarks”) are owned or licensed by us, and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Valmont” or any other Trademark of Valmont without our prior written permission. In addition, the look and feel of the Services (including, without limitation, all page headers, custom graphics, button icons and scripts) constitute the Trademark of Valmont. All other trademarks, registered trademarks, product or service names and company names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Valmont.

12. Third-Party Content and Links to Third Parties.

We may display content from third parties through the Services (collectively, “Third-Party Content”). We do not control, endorse or adopt any Third-Party Content, and we make no representations or warranties of any kind regarding such Third-Party Content, including, without limitation, regarding their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. You acknowledge and agree that your interactions with third parties providing Third-Party Content are solely between you and such third parties.

The Services may contain links to third-party websites, products and/or services (each, a “Linked Third-Party Service”). Such links do not constitute or imply Valmont’s approval, sponsorship or endorsement of any Linked Third-Party Service. Valmont is not responsible for and makes no representations or warranties, express or implied, regarding any Linked Third-Party Service. When you access and use a Linked Third-Party Service, you are subject to that third party’s terms and conditions of use and privacy policy. Any rights, claims or actions you may have in respect of a Linked Third-Party Service can only be brought directly against the provider of that Linked Third-Party Service. You access and use a Linked Third-Party Service solely at your own risk.

13. Feedback.

Separate and apart from User Data, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Valmont or the Services (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of Valmont. Valmont shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

14. Compliance with Law.

You warrant that you will use the Services for lawful purposes and will comply with any government law, regulation, or rule applicable hereto, including the laws of the U.S. and foreign trade control laws and regulations; and that you understand that the Services may be subject to export and other foreign trade controls restricting re-sales and/or transfers to other countries and parties, including U.S. Export Administration Regulations and/or the foreign trade control regulations of the U.S. Treasury Department. Any other provision of these Terms to the contrary notwithstanding, you agree that the Services shall not be resold, re-exported, or otherwise transferred. The Services remains subject to applicable U.S. laws.

15. Release.

To the fullest extent permitted by applicable law, you, on behalf of your heirs, executors, administrators, legal and personal representatives, hereby release, waive, acquit and forever discharge Valmont its affiliates, dealers, and third-party suppliers, and their officers, directors, personnel, agents, and representatives (collectively, the “Valmont Parties”) from and against, and covenant not to sue any such Valmont Party for, all claims you have or may have arising out of or in any way related to these Terms. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

16. Indemnification.

To the maximum extent permitted by applicable law, you agree to indemnify, defend and hold harmless Valmont Parties from and against all actual or alleged Valmont Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Services or Content by you or any third party you authorize to access or use such Services or Content, (b) any Feedback you provide, (c) your violation of these Terms, and (d) your violation of the rights of another. You agree to promptly notify Valmont of any third party Claims, cooperate with the Valmont Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Valmont Parties shall have sole control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Valmont.

17. Disclaimer of Warranties.

YOU EXPRESSLY AGREE THAT USE OF THE SERVICES AND CONTENT IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. VALMONT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, AND ACCURACY OF DATA. VALMONT MAKES NO WARRANTY THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES VALMONT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR CONTENT, OR THAT DEFECTS IN THE SERVICES OR CONTENT WILL BE CORRECTED, OR THAT ANY INFORMATION OBTAINED THROUGH OR IN CONNECTION WITH THE SERVICES OR CONTENT WILL BE ACCURATE OR COMPLETE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VALMONT OR THROUGH THE SERVICES OR CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

THE SERVICES AND CONTENT ARE NOT INTENDED TO PROVIDE A SUBSTITUTE FOR YOUR OWN SOUND AND REASONABLY PRUDENT JUDGMENT. PERSONS USING THE SERVICES AND CONTENT ASSUME FULL RESPONSIBILITY FOR THE USE OF THE SERVICES, CONTENT, MATERIALS AND OTHER INFORMATION PROVIDED, AND AGREE THAT VALMONT IS NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, OR DAMAGE ARISING FROM THEIR USE. YOUR RELIANCE ON THE SERVICES AND CONTENT OBTAINED OR USED BY YOU IS SOLELY AT YOUR OWN RISK EXCEPT AS PROVIDED BY LAW.

SOME STATES MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. BUT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ALL WARRANTIES.

18. Limitations of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE VALMONT PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS, PERSONAL INJURY, PROPERTY DAMAGE, CROP LOSS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR COMPUTER FAILURE OR MALFUNCTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SERVICES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER DATA, THIRD-PARTY CONTENT AND LINKED THIRD-PARTY SERVICES), OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM THE SERVICES OR CONTENT OR ANY VALMONT PARTY OR THIRD PARTY, OR FROM EVENTS BEYOND THE VALMONT PARTIES’ REASONABLE CONTROL, SUCH AS SERVICE INTERRUPTIONS, DELETIONS OF FILES, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE VALMONT PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE VALMONT PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO ACCESS OR USE OF THE SERVICES OR CONTENT, EXCEED THE AMOUNT YOU PAID TO US FOR THE SERVICES. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE VALMONT PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.

THE LIMITATIONS SET FORTH IN THIS SECTION 18 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.

SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

19. Dispute Resolution; Arbitration.

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH VALMONT AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, INCLUDING A CLASS ACTION WAIVER. This Section 19 applies to all Disputes (unless excluded under Section 19.1) between you and the Valmont Parties.

19.1. Binding Arbitration.

EXCEPT FOR ANY DISPUTES, CLAIMS, SUITS, ACTIONS, CAUSES OF ACTION, DEMANDS OR PROCEEDINGS (COLLECTIVELY, “DISPUTES”) IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND VALMONT AGREE (A) TO WAIVE YOUR AND VALMONT’S RESPECTIVE RIGHTS TO HAVE ANY AND ALL DISPUTES ARISING FROM OR RELATED TO THESE TERMS, OR THE SERVICES OR CONTENT, RESOLVED IN A COURT, AND (B) TO WAIVE YOUR AND VALMONT’S RESPECTIVE RIGHTS TO A JURY TRIAL. INSTEAD, YOU AND VALMONT AGREE TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION (WHICH IS THE REFERRAL OF A DISPUTE TO ONE OR MORE PERSONS CHARGED WITH REVIEWING THE DISPUTE AND MAKING A FINAL AND BINDING DETERMINATION TO RESOLVE IT INSTEAD OF HAVING THE DISPUTE DECIDED BY A JUDGE OR JURY IN COURT).

19.2. No Class Arbitrations, Class Actions or Representative Actions.

YOU AND VALMONT AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES, OR CONTENT IS PERSONAL TO YOU AND VALMONT AND THAT SUCH DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. You and Valmont agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Valmont agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.

19.3. Federal Arbitration Act.

You and Valmont agree that these Terms affect interstate commerce and that the enforceability of this Section 19 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.

19.4. Notice; Informal Dispute Resolution.

You and Valmont agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Valmont shall be sent by certified mail or courier to Attn: Legal Department, Valmont Industries, Inc., One Valmont Plaza, Omaha, NE 68154. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 4 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Valmont cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Valmont may, as appropriate and in accordance with this Section 19, commence an arbitration proceeding or, to the extent specifically provided for in Section 19.1, file a claim in court.

19.5. Process.

EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND VALMONT AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR VALMONT WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND VALMONT WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Valmont agree that (a) arbitration will be conducted confidentially by a single arbitrator in accordance with the commercial rules of the American Arbitration Association (“AAA”) that are in effect at the time the arbitration is initiated, as modified by the terms set forth herein (“AAA Rules”), which are hereby incorporated by reference, and (b) that the seat of the arbitration shall be Douglas County, Nebraska and that state or federal courts of the State of Nebraska and the United States, respectively, sitting in Douglas County, Nebraska, have exclusive jurisdiction over any litigation in aid of arbitration and the enforcement of any arbitration awards. The parties shall attempt to agree on the single arbitrator to be appointed to resolve the dispute. If the parties are unable to reach agreement within 30 days after commencement of the arbitration with the AAA, the arbitrator selection process identified in the AAA Rules shall apply. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court. Each party shall be responsible for its costs incurred in such arbitration, but the arbitrator shall not have the authority to re-allocate those costs in an award or otherwise. If you cannot afford to pay for the arbitration, you agree to provide us the option of paying the arbitrator before seeking to initiate any other form of dispute resolution, including litigation. As part of the arbitration, both you and Valmont will have the opportunity to reasonable discovery of non-privileged information that is relevant and material to the Dispute, including the ability to request from each other, and third parties, documents, information and testimony that is relevant and material to the Dispute.

19.6. Authority of Arbitrator.

As limited by the FAA, these Terms and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

19.7. AAA Rules.

By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the AAA Rules, or (b) waive your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.

19.8. Severability.

If any term, clause or provision of this Section 19 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 19 will remain valid and enforceable. Further, the waivers set forth in Section 19.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.

19.9. Opt-Out Right.

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 19 by writing to: legal@valmont.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 20.

20. Governing Law.

These Terms, and your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of Nebraska, without regard to conflict of law rules or principles (whether of the State of Nebraska or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis in the state or federal courts of the State of Nebraska and the United States, respectively, sitting in Douglas County, Nebraska.

21. International Data Transfers

The Services are based in the United States and are subject to U.S. law. If you are accessing the Services from outside the United States, please be advised that U.S. law may not offer the same privacy protections as the laws of your jurisdiction. Further, regardless of where you are accessing the Services, data may be transferred to countries outside of the United States, for storage, review, analytics, or other processing, after which point it may be transferred back to the United States or other third countries. By accessing and using the Services, you consent to the transfer to and processing of your information, including personal data, in the United States or other third countries.

22. Termination.

Either you or we may terminate our relationship at any time, with or without cause. In addition, we may deactivate, terminate or suspend your account at any time: (a) if we, in our sole discretion, determine that you are or have been in violation of these Terms; (b) if we, in our sole discretion, determine that you have created risk or possible legal exposure for Valmont; (c) in response to requests by law enforcement or other government agencies; (d) upon discontinuance or material modification of the Services, or (e) due to unexpected technical issues or problems. We may also stop providing the Services or create limits on use of the Services (in each case, whether specifically to you or generally).

These Terms automatically terminate when you fail to comply or if we reasonably believe that you have not complied with any term or condition of them.

Termination will not limit any of our other rights or remedies. Any provision that must survive in order to give proper effect to the intent and purpose of these Terms shall survive termination.

23. App Updates.

Valmont may from time to time, in its sole discretion (without obligation), develop and provide updates for our App, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Valmont has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

Portions of the App may not properly operate if you do not install all Updates, so we encourage you to promptly install all updates. To that end, based on your mobile device settings, when your mobile device is connected to the Internet, either (a) the Updates will automatically download and install or (b) you may receive notice of or be prompted to download and install available Updates. For clarity, all Updates are part of the App and subject to these Terms.

24. Apple Device Additional Terms.

If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms”) are hereby made part of these Terms:

• Conflicting Terms. If these Apple Device Additional Terms conflict with any other provision of these Terms, then the Apple Device Additional Terms shall control with respect to access and use of the Services via an Apple Device.
• Agreement with Valmont, Not Apple. You acknowledge that these Terms are an agreement between Valmont and you, and not with Apple. Valmont, not Apple, is solely responsible for any App you access via your Apple Device (“iOS App”) and the content thereof. If these Terms are less restrictive with respect to an iOS App or otherwise conflict with, the Apple App Store Terms of Service (the “App Store Terms of Service”), the App Store Terms of Service shall apply to the extent of any conflict.
• Scope of License. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service.
• Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. If Valmont decides (in its sole discretion) to provide support and maintenance services for an iOS App, Valmont is solely responsible for providing such services.
• Warranty. In the event of any failure of an iOS App to conform to any applicable warranty provided by Valmont in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is Valmont’s sole responsibility. Notwithstanding the foregoing, Valmont is not obligated to provide any warranty with respect to an iOS App and you acknowledge and agree that this paragraph will not have any effect on the warranty disclaimers provided in these Terms.
• Product Claims. You hereby acknowledge that Valmont, not Apple, is responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App, including, but not limited to: (a) product liability claims; (b) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Note that pursuant to the limitation of liability provision set forth in these Terms, these Terms will not limit Valmont’s liability beyond what is permitted by applicable law. Notwithstanding the foregoing, Valmont may not be liable for such claims pursuant to these Terms.
• Intellectual Property Rights. You acknowledge that, in the event of any third party claim that an iOS App or your possession and use (in accordance with these Terms) of an iOS App infringes that third party’s intellectual property rights, Valmont, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Notwithstanding the foregoing, Valmont is not obligated to provide any defense or indemnification for such claims.
• Legal Compliance. You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
• Third Party Beneficiary. You hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to any iOS App, and that, upon your acceptance of these Terms, Apple has the right (and deemed to have accepted the right) to enforce the Terms against you with respect to the iOS App as a third party beneficiary thereof.
• Questions or Complaints. Please address your questions, complaints or claims with respect to an iOS App to Valmont at 1-888-223-0595 or Valley365Support@valmont.com. Valmont’s principal offices are located at One Valmont Plaza, Omaha, Nebraska 68154.

25. Severability.

If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.

26. Miscellaneous.

These Terms, and any other terms and policies incorporated herein, constitute the entire agreement between you and Valmont relating to your access to and use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Valmont. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Valmont’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.

Simplot SmartFarm® Irrigation Program Agreement

Last Updated: July 2021

This Simplot SmartFarm® Irrigation Program Agreement (“Agreement”) is a legally enforceable contract between you or the company, organization or other legal entity that you represent (“Customer”) and Simplot AB Retail, Inc., a Delaware corporation d/b/a Simplot Grower Solutions (“Simplot”).

This Agreement governs accessto and use of the Simplot SmartFarm® online, web-based platform located at https://irrigation.simplotsmartfarm.com and the associated mobile application including a tool which provides irrigation and crop management data and related information (“SmartFarm® Application”) and the moisture probes and sensors, telemetry and any other equipment provided by Simplot and interconnected with the SmartFarm® Application (“Equipment”). The Equipment is further identified in Customer’s SmartFarm® Application account and will be periodically installed and removed from Customer’s property by Simplot during each year of the Term (defined below) of this Agreement as further agreed to below.

You or you on behalf of the company, organization or other legal entity that you represent (i) acknowledge that you read and understand this Agreement; (ii) represent that you are 18 years of age or older/of legal age to enter into a binding agreement; (iii) have full power and legal authority to enter into this Agreement and (iv) accept this Agreement and agree that you or the company, organization or other legal entity that you represent is legally bound by this Agreement’s terms.

BY CLICKING “I ACCEPT” OR BY ACCESSING OR USING THE SMARTFARM® APPLICATION AND EQUIPMENT OR CREATING A SMARTFARM® APPLICATION ACCOUNT, CUSTOMER AGREES TO THESE TERMS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, CUSTOMER MAY NOT ACCESS OR USE THE SMARTFARM® APPLICATION AND EQUIPMENT

1. SMARTFARM® APPLICATION AND EQUIPMENT.

Subject to the terms of this Agreement, Simplot hereby agrees to provide Customer access to and the right to use the SmartFarm® Application and the right to use the Equipment. The right to use and use of the SmartFarm® Application granted to Customer by Simplot in this Agreement is also subject to Customer’s agreement to the terms and conditions of a separate end user agreement between Customer and Valmont Industries, Inc. (“Valmont”) which Customer is required to agree to prior to Customer’s use of the SmartFarm® Application (“Valmont License”). Customer is not required to pay any fee to Valmont for the Valmont License. Customer agrees to comply at all times with the terms of the Valmont License.

2. CONNECTIVITY, ETC.

Customer is solely responsible, at Customer’s own expense, for acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary to connect to, access and use the SmartFarm® Application with the Equipment. Customer understands and agrees that the SmartFarm® Application and Equipment rely upon GPS, satellite and internet technology which does not always function properly; accordingly, Simplot disclaims any and all responsibility for the reliability of this technology. Customer acknowledges that Simplot does not have the ability to control the reliability of GPS, satellite and internet technology.

3. TERM

The term of this Agreement shall begin effective as of the date of Customer’s first use of the SmartFarm® Application (as determined by the SmartFarm® Application) and will continue until the end of the then current calendar year (“Term”) provided that the Term of this Agreement shall automatically renew and extend for successive one (1) year periods unless either party provides written notice to the other party of its intent not to renew and extend this Agreement on or before December 1 st of the then current year of the Term and unless this Agreement is otherwise terminated earlier as provided for below.

4. FEES

Customer agrees to pay Simplot the fees set forth in the invoices issued to Customer by Simplot for use of the SmartFarm® Application and Equipment during each year of the Term of this Agreement under the terms set forth therein

5. OWNERSHIP OF DATA.

Customer shall own all raw data collected by the SmartFarm® Application and Equipment (“Raw Data”). Customer authorizes Valmont to transfer all Raw Data to Simplot. Customer hereby grants Simplot and its affiliates (including the J. R. Simplot Company) access to and a perpetual, non-exclusive, worldwide, fully paid, sub-licensable and royalty-free license to use the Raw Data in furtherance of Simplot’s performance of this Agreement. In addition, Customer grants Simplot and its affiliates (including the J. R. Simplot Company) a perpetual, non-exclusive, worldwide, fully paid, sub-licensable and royalty-free license to (i) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display the Raw Data in all media formats and channels now known or later developed without compensation; (ii) use the Raw Data for research and development purposes (both internal and with Simplot third-party service providers bound by a duty of confidentiality); (iii) analyze Raw Data with similar data from other sources for identifying trends, patterns, relationships, and statistics (“Trend Data”); (iv) summarize, aggregate, or otherwise consolidate Raw Data with similar data from other sources to develop data aggregates, abstracts, reports, or other descriptions (“Summary Data”); (v) use and distribute to others Raw Data as it appears in Trend Data and Summary Data; and (vi) otherwise use the Raw Data for Simplot’s and its affiliates’ (including the J. R. Simplot Company) business purposes. Simplot and its affiliates (including the J. R. Simplot Company) shall own, as applicable, all processed and aggregated information and data derived from the Raw Data and Customer agrees to execute such further instruments and agreements evidencing the same as Simplot and its affiliates (including the J. R. Simplot Company) may request. Subject to the preceding sentence, Simplot and its affiliates (including the J. R. Simplot Company) shall not, without prior written consent of Customer, disclose any Raw Data to a third party other than Valmont, which disclosure to Valmont Customer hereby agrees to, together with disclosure to Valmont of all other data provided by Customer to Simplot through the SmartFarm® Application.

6. TERMINATION.

Simplot may immediately terminate this Agreement without liability to Customer: (i) in the event Customer’s fees for use of the SmartFarm® Application and use of the Equipment are not paid to Simplot; (ii) in the event of any misrepresentation or any breach of any of the terms or conditions of this Agreement by Customer; (iii) in the event Customer breaches the terms of the Valmont License or Valmont terminates the Valmont License with Customer for any reason; (iv) Valmont ceases for any reason to grant Simplot the right to authorize use of the SmartFarm® Application by Simplot’s customers; (v) in the event Customer becomes insolvent, or makes a general assignment for the benefit of creditors, or files or has filed against it a petition in bankruptcy or for reorganization, or pursues any other remedy under any other law relating to the relief of debtors, or in the event a receiver is appointed for Customer's property or business; or (vi) in the event Simplot and Customer mutually agree in writing to terminate this Agreement at any time.

7. EQUIPMENT.

• (a) Installation and Removal and Care and Use of Equipment. Simplot, at its own cost and expense, and during each year of the Term of this Agreement, shall be responsible for installation prior to or at the commencement of each crop year and removal after each crop year of the Equipment and all routine maintenance of the Equipment and other repairs, but only to the extent such repairs are not caused by Customer’s acts, omissions or negligent or reckless conduct or willful misconduct. Customer shall return the Equipment to Simplot in the same condition as it was received, less ordinary wear and tear, after the end of each crop year or upon the expiration or termination of this Agreement if not previously removed. Simplot may, but shall not be obligated to, inspect the Equipment at any time. Customer authorizes Simplot to enter Customer’s property to install,
• (b) Equipment Alterations. Customer shall not make any alterations, additions or improvements to the Equipment.
• (c) Risk of Loss, Damage to Equipment. Customer shall protect the Equipment from theft, vandalism, and damage including collision from farm equipment or other equipment or vehicles. Customer assumes all liability and responsibility for loss and damage to the Equipment while Equipment is on Customer’s property. No loss or damage to the Equipment will impair any obligation of Customer under this Agreement, which will continue in full force and effect. In the event of loss of or damage to the Equipment, Customer shall be responsible for the cost of any repairs or replacements.
• (d) Permitted Uses. Customer shall use the SmartFarm® Application and Equipment only in accordance with this Agreement, in compliance with all laws and regulations, and at and with respect to the location(s) where Simplot installs the Equipment.
• (e) Customer Irrigation and Farm Equipment. Customer agrees to keep the irrigation farm equipment used with respect to the SmartFarm® Application and Equipment in good repair and maintenance. Simplot specifically disclaims any and all liability for Customer's failure to personally determine whether or not Customer’s irrigation equipment is functioning properly. Customer acknowledges and agrees that the SmartFarm Application and Equipment cannot and do not replace the need for Customer to personally monitor the operation of Customer’s irrigation equipment.
• (f) Title. Simplot shall at all times retain title to the Equipment. Customer is not granted any right to purchase the Equipment. Customer shall execute any information statements or notices requested by Simplot to evidence Simplot's title to the Equipment. Customer may not sell or otherwise encumber the Equipment. No right, title or interest in the Equipment shall pass to Customer other than, conditioned upon Customer’s compliance with and fulfillment of the terms and conditions of this Agreement, the right to use the Equipment during the then current crop year. Customer, at its expense, will protect and defend Simplot’s title to the Equipment from and against all claims, liens, and legal process of creditors and take such action as is necessary to discharge any such claim, lien, or legal process. Simplot may require plates or markings to be affixed to or placed on the Equipment indicating Simplot is the owner, and Customer will not alter, deface, cover or remove such ownership identification. At the end of each crop year or upon the expiration of the Term or any termination of this Agreement, Simplot shall have the right to enter Customer’s property and remove the Equipment. Simplot shall not be responsible for any damage to Customer’s property which is incident to the installation and removal of the Equipment other than in the event of Simplot’s gross negligence or reckless conduct in connection with such installation and removal.

8. SIMPLOT MARKS.

All trademarks, trade names, service marks and logos appearing on or through the SmartFarm® Application or affixed to the Equipment (including, without limitation, “Simplot”, “Simplot SmartFarm®”, “SmartFarm®, the Simplot logo, and any other Simplot product or service names, logos, marks, slogans, or other identifiers) are owned by or licensed to Simplot, and may not be copied, imitated or used, in whole or in part, without Simplot’s prior written permission.

9. DISCLAIMER OF WARRANTIES.

CUSTOMER EXPRESSLY AGREES THAT CUSTOMER’S USE OF THE SMARTFARM® APPLICATION AND EQUIPMENT IS AT CUSTOMER’S SOLE RISK. THE SMARTFARM® APPLICATION AND EQUIPMENT ARE PROVIDED ON AN “AS IS” BASIS AND THE SMARTFARM® APPLICATION AND ITS FUNCTIONALITY IS PROVIDED ON AN “AS AVAILABLE” BASIS. SIMPLOT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, AND ACCURACY OF DATA. SIMPLOT MAKES NO WARRANTY THAT THE SMARTFARM® APPLICATION AND EQUIPMENT WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SMARTFARM® APPLICATION AND EQUIPMENT WILL OPERATE UNINTERRUPTED OR INTEROPERATE, TIMELY, SECURE, OR ERROR FREE; NOR DOES SIMPLOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SMARTFARM® APPLICATION AND EQUIPMENT, OR THAT DEFECTS IN THE SMARTFARM® APPLICATION OR EQUIPMENT WILL BE CORRECTED, OR THAT ANY INFORMATION OBTAINED THROUGH OR IN CONNECTION WITH THE SMARTFARM® APPLICATION AND EQUIPMENT WILL BE ACCURATE OR COMPLETE. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SMARTFARM® APPLICATION AND EQUIPMENT IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM SIMPLOT OR THROUGH SMARTFARM® APPLICATION AND EQUIPMENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE SMARTFARM® APPLICATION AND EQUIPMENT ARE NOT INTENDED TO PROVIDE A SUBSTITUTE FOR CUSTOMER’S OWN SOUND AND REASONABLY PRUDENT JUDGMENT. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR THE USE OF THE SMARTFARM® APPLICATION AND EQUIPMENT, CONTENT, MATERIALS AND OTHER INFORMATION PROVIDED, AND AGREES THAT SIMPLOT IS NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, OR DAMAGE ARISING FROM THEIR USE. SOME STATES MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. BUT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SIMPLOT EXCLUDES ALL WARRANTIES.

10. LIMITATIONS OF LIABILITY.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SIMPLOT AND ITS AFFILIATES (INCLUDING THE J. R. SIMPLOT COMPANY) AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (“SIMPLOT PARTIES”) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS, PERSONAL INJURY, PROPERTY DAMAGE, CROP LOSS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR COMPUTER FAILURE OR MALFUNCTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SMARTFARM® APPLICATION AND EQUIPMENT (INCLUDING, BUT NOT LIMITED TO, USER DATA, THIRD-PARTY CONTENT AND LINKED THIRD-PARTY SERVICES), OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM THE SMARTFARM® APPLICATION AND EQUIPMENT OR ANY SIMPLOT PARTY OR THIRD PARTY, OR FROM EVENTS BEYOND THE SIMPLOT PARTIES’ REASONABLE CONTROL, SUCH AS SERVICE INTERRUPTIONS, DELETIONS OF FILES, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE SIMPLOT PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE SIMPLOT PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO ACCESS OR USE OF THE SMARTFARM® APPLICATION AND EQUIPMENT, EXCEED THE AMOUNT CUSTOMER PAID TO SIMPLOT FOR USE OF THE SMARTFARM® APPLICATION AND EQUIPMENT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT CUSTOMER’S REMEDIES HEREUNDER FAIL THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE SIMPLOT PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE LIMITATIONS SET FORTH IN THIS SECTION 10 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY SIMPLOT’S FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT. SOME STATES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO CUSTOMER.

11. INDEMNIFICAITON.

Customer shall defend, indemnify, and hold harmless Simplot, its affiliates (including the J. R. Simplot Company), and their respective officers, directors, employees, agents, and representatives, (each an “Indemnified Party”) from and against all claims, demands, proceedings, injuries, liabilities, damages, losses, costs, and expenses, (including reasonable legal fees and court costs) (“Losses”) brought by any third party against any Indemnified Party arising from or in connection with Customer’s use of SmartFarm® Application and Equipment, regardless of whether such Losses are caused, wholly or partially, by any negligence, breach of contract, or other fault of an Indemnified Party

12. CHOICE OF LAW.

This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Idaho, without regard to conflict of law rules or principles (whether of the State of Idaho or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties shall be resolved in the state or federal courts of the State of Idaho and the United States, as applicable.

13. PROHIBITION ON ASSIGNMENT BY CUSTOMER.

Customer’s rights and obligations hereunder are not assignable (whether by transfer, sale, merger, consolidation or otherwise) without Simplot's prior written consent, which may be withheld for any reason. Simplot may freely assign this Agreement

14. BINDING EFFECT.

The terms of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.

15. MODIFICATION.

This Agreement shall not be modified or altered except in writing signed by authorized representatives of the parties

16. WAIVER.

The failure of one party to require the performance of any of the terms of this Agreement, or the waiver by a party of any breach of this Agreement, shall neither prevent a subsequent enforcement of such term, nor be deemed a waiver of any subsequent breach.

17. SEVERABILITY.

If any provision or any part of a provision of this Agreement shall be finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to applicable laws by any authority having jurisdiction, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provisions or parts of the provisions of this Agreement, which shall remain in full force and effect as if the unenforceable provision or part were deleted.

18. NOTICES.

Any notice provided under this Agreement shall be in writing and (i) delivered in person, (ii) sent by registered mail return receipt requested, or (iii) sent by overnight air courier. Notices shall be considered to have been given at the time of actual delivery. Notices shall be delivered to Simplot at 1099 W. Front St., Boise, ID 83702, P.O. Box 27, Boise, ID 83707, Attn: General Counsel or Customer at the address on record with Simplot in Customer’s SmartFarm® Application account, or such other address as one party may hereafter designate by notice to the other party.

19. ENTIRE AGREEMENT.

This Agreement represents the entire integrated agreement between the parties. All other previous agreements between Simplot and Customer, written, verbal or otherwise are hereby superseded by this Agreement.

20. FORCE MAJEURE.

Except for Customer’s payment obligations to Simplot, neither party shall be liable to the other for defaults due to causes beyond its control and without its fault or negligence, including acts of God, government priorities, fires, strikes, lockouts, floods, epidemics, pandemics, riots, wars, power shortages, embargoes, and delays in transportation.