FREIGHT FARMS TERMS AND CONDITIONS OF SALE
These Standard Terms and Conditions (these “Terms”) govern Customer’s purchase or lease (as applicable) of the Greenery™ hydroponic shipping container farm (the “Greenery™”) and related supplies (collectively, the “Products”), a subscription to and use of the Farmhand® software as a service platform (the “Platform”) and mobile application (the “App”) and the content, tools, features and functionality offered through such platform (collectively, the “Software”), and related support and other services (“Services”) offered by Freight Farms, Inc., a Delaware corporation with its principal office located at 20 Old Colony Avenue, Suite 201, Boston, MA 02127 (“Company”). Capitalized terms have the definitions set forth herein.
For purposes of these Terms, “Customer” means the individual accepting these Terms by executing an Order. If the individual accepting these Terms is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Terms, in which case the term “Customer” refers to such entity and its affiliates. In the case of authorized resellers of the Company, the term “Customer” in these Terms shall refer to such reseller.
1. ORDERS, QUOTATIONS, AND PRICING
1.1 Orders. Customer’s purchase of the Products, subscription to the Software and Services will be covered by one or more order forms agreed upon by the parties (each, an “Order”). Each Order will be in writing, signed by an authorized representative of each party and will reference these Terms. Each duly executed Order will constitute part of these Terms. In the event of any conflict between the terms contained in these Terms and the terms of an Order, the terms of these Terms will control except where expressly superseded by an Order term. No Order may be canceled by Customer without Company’s written consent and cancelation may be subject to a cancelation fee.
1.2 Quotations and Pricing. If a written quotation for the Products, Software or Services is issued by Company, such quotation shall be regarded as provisional and may be changed at any time prior to Company’s written acceptance of an Order. Company reserves the right to reject proposed Orders for any reason. The costs of packing, shipping, insurance, taxes, duties, and other related fees are not included in quoted Product prices; such costs will be quoted on a case by case basis, and are the responsibility of Customer, and if paid by Company will be separately itemized in invoices to Customer. The publication of Company’s price list does not constitute an offer to sell or license the Product, Software or Services at those prices.
1.3 Price Changes. Company reserves the right to change prices or institute new charges for subscriptions to the Software or Services, which increase will be effective at the start of the next renewal term (if any). Customer’s failure to terminate its subscription after changes are posted constitutes Customer’s acceptance of the prices as modified by the posted changes.
2. FEES AND PAYMENT
2.1 Fees. Customer agrees to buy, lease and/or license the Products, Software and Services (as applicable) in accordance with these Terms. Customer will pay Company the fees applicable to the Products, Software and Services purchased, leased and/or licensed by Customer as set forth in the Order or as purchased by Customer on Company’s web site. Fees for subscriptions to the Software or Services are fixed and billed upon the date of purchase for the initial year of the Term and annually in advance upon each anniversary thereafter throughout the Term. Software subscriptions will automatically renew for additional one-year periods. Payments by Customer shall be made without set off or deductions. Customer must promptly notify Company of changes to its billing address or payment method on record. Orders are non-cancelable and all fees (including deposits) paid are non-refundable. Customer acknowledges that manufacturing of Products will not commence until Company receives the signed Order and the deposit.
2.2 Late Payment. If payment is not received within 14 days of the due date set forth in the applicable Order, Company may delay manufacturing and/or shipment. In addition, if payment is not received within 30 days, Company may assess, and Customer agrees to pay, a late payment charge at the rate of 1.5% per month (18% annualized) or the maximum legal rate, whichever is less, of any overdue amount from the due date to the date of receipt of payment by Company. Notwithstanding the foregoing, in the case that Customer does not submit any payment within 90 days of its due date, Company may, in its sole discretion, cancel the Order, in addition to any and all other remedies available to Company. Customer agrees to timely pay all costs of collection, including without limitation reasonable attorney’s fees, incurred in the collection of payment in connection with any Order. Customer acknowledges that shipment will not occur until Company receives full payment.
2.3 Taxes. The amount of any valid sales, use, excise or other similar tax that is attributable to Customer’s purchase, lease or license of the Products, Software or Services under an Order will be paid by Customer. Where applicable, Company will invoice Customer for any such taxes. In the event that Customer is exempt from the payment of the taxes described in this section, Customer will provide Company with a valid tax self-assessment or exemption certificate acceptable to the taxing authorities. Any certificate of exemption or similar document or proceeding required to exempt the sale of Products, Software or Services from sales or use tax liability shall be obtained by Customer, at its expense.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Ownership. Customer acknowledges that as between Company and Customer, all patent, copyright, trademark and other intellectual property rights in the Products, Software and Services, any ideas, inventions, techniques or other developments, including any derivative works, customizations, improvements or enhancements, resulting from the provision of the Products, Software or Services to Customer (“Developments”), and any documentation related to any of the foregoing made available to Customer, are and shall remain exclusively vested in Company and nothing in these Terms or any Order shall be construed as granting to Customer any ownership rights, any right of manufacture of the Products or, other than as expressly set forth in these Terms, any other rights to such intellectual property rights. In any cases where Customer supplies any designs or specifications for Developments to Company, Customer warrants that such manufacture will not infringe the intellectual property rights of Company or any third party and will indemnify, hold harmless, and defend Company harmless from and against all Losses incurred by Company in connection with any third-party infringement claims arising therefrom. If Customer has or acquires any intellectual property rights in or to the Products or Software or any Developments (including any designs or specifications for Developments provided by Customer to Company), Customer hereby assigns to Company all such intellectual property rights. To the extent any such intellectual property rights cannot be assigned to Company under applicable law, Customer hereby grants to Company a worldwide, perpetual, irrevocable, royalty-free, transferable and sublicensable license to use, copy, reproduce, modify, develop, creative derivative works of, promote, sell, distribute, make, have made or otherwise exploit such intellectual property rights. The purchase of Products hereunder does not confer on Customer any rights or licenses under any of Supplier’s patents other than the implied license to use such Products. Customer must obtain a separate license directly from the licensor of any software or other intellectual property in addition to the Software that Customer desires to utilize in connection with the Products. Title to and ownership of all data regarding Customer’s use of the Products remains solely and exclusively with Company.
3.2 No Publicity. Customer agrees not to use the name or marks of, refer to, or identify Company or any of its affiliates in any publicity releases, interviews, promotional or marketing materials, public announcements, testimonials or advertising without the prior written approval of Company (which approval a party may withhold in Company’s sole discretion), except that no such written approval is required to the extent any such disclosure is required by law. “Freight Farms” and “Farmhand” are trademarks of the Company and accordingly any use or representation thereof without Company’s prior written consent, other than that expressly permitted by these Terms or any Order, is hereby prohibited.
4. CUSTOMER RESPONSIBILITIES AND USAGE RESTRICTIONS
4.1 Use of Products. Customer shall be responsible for providing all electricity, water and other utilities, and growing suppliers necessary or appropriate for the use and operation of the Product.
4.2 Usage Restrictions. Customer will not and will not permit others to: (a) attempt to derive the source code, structure, algorithms, or ideas underlying the Products or Software; (b) copy, translate, or prepare derivative works of any content or screen shots accessible via the Products, Software or Services or bypass, delete, or disable any copy protection or security mechanisms associated with the Products or Software; (c) publish, pledge, rent, lease, sell, resell or commercially distribute the Software to any third parties; (d) engage any time-sharing or outsourcing application service provider or reseller or in any other distribution arrangement in connection with the Software; (e) alter, remove, obscure, or destroy any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation placed upon the Products or Software or any related documentation or other Company materials; (f) use the Software to upload, create, access, display, store, manipulate, or distribute any Customer data that infringes upon the intellectual property, privacy, or proprietary rights of any third party; or (g) use the Products, Software or Services in a manner that violates any statute, law, rule, regulation in place at the time of such use, or in any manner not expressly authorized by these Terms.
4.3 Use of Data. Customer agrees that it will not sell, license, disclose or otherwise distribute any data, or assist any third party with respect to the foregoing, resulting from use of the Products or Software, unless expressly authorized, pursuant to a written addendum to these Terms signed by Company. Customer agrees not to collect or otherwise use any data or information of any kind generated from the Products, Software and/or Services except in connection with the Products and/or Services without the prior written consent of Supplier.
5. DELIVERY AND RISK OF LOSS
5.1 Risk of Loss. Delivery of Products shall be to the Customer location set forth in the applicable Order or a storage facility near a Customer location if the Customer location is not available, EXW Company’s dock (Incoterms 2020), freight prepaid upon transfer to a common carrier, unless otherwise stated in an Order. When the Products leave Supplier’s dock, (a) risk of loss or damage to the Products shall pass to Customer, and (b) except for title to the Software, which shall remain with Supplier at all times, title to the Products shall pass to the Customer. In the event the Products are delivered to a storage facility the Customer will be responsible for all costs and liabilities in connection with moving the Products to its location.
5.2 Delivery. Unless Company receives specific shipping instructions from Customer in writing, Company will exercise its discretion in selecting the method of shipment and the carrier. Company or its representative may make partial deliveries. In light of the complexities of the manufacturing and shipping processes, Company cannot guarantee delivery dates, but Company will use commercially reasonable efforts to meet scheduled delivery dates. If Customer elects for Company to arrange shipping and delivery, Company requires thirty (30) days lead time from the date of payment for shipping to coordinate delivery of Products. In such an event, shipping and delivery costs will be invoiced separately from the Products, Software and Services (as applicable). If Customer is unable to accept delivery within 30 days of final payment, Customer will promptly reimburse Company for all costs of storage, to be billed at a rate of $300/month. Billing will commence on the 1st of the month preceding 30 days from final payment date, regardless of payment status. Storage billing will cease only once delivery is initiated. Customer will bear full responsibility for all necessary site preparations and for installation of the Products at Customer’s site. Company will assist in this preparation to the extent reasonably possible.] Without limiting Customer’s rights pursuant to the warranty set forth below, the Products will be deemed accepted when they depart the Supplier’s dock. No shipments will be made until all terms have been met and payments received under these Terms and the applicable Order.
6. CONFIDENTIALITY
Customer acknowledges that, in connection with these Terms, any Order and its relationship with Company, Customer may obtain information relating to the Products, Software and/or Services, or to Company itself, which is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information includes, but is not limited to, trade secrets, know-how, inventions, techniques, processes, programs, schematics, the Software, software documentation, data, customer lists, financial information, intellectual property, growth strategy, and sales and marketing plans and information. Customer agrees and acknowledges that the internal design of the Products and Software is the Confidential Information of Company. Customer shall at all times keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by the Company under these Terms or an Order, nor shall Customer disclose any such Confidential Information to any third party without Company’s written consent. Customer shall limit the disclosure of the Confidential Information to the employees of the Customer who have a need to know and are hereby bound by the same or no less restrictive Confidential Information restrictions and provisions as those applicable to Customer hereunder.
7. TERM AND TERMINATION
7.1 Term. The term of Customer’s subscription to the Software and Services, and any applicable renewal terms, will be set forth in the applicable Order. Unless terminated earlier as provided in these Terms, these Terms will become effective between Customer and Company as of the effective date set forth in the first Order executed by the parties, and remain in effect for so long as any Orders are in effect between Customer and Company (the “Term”).
7.2 Termination and Default. If Customer breaches any of these Terms or the terms of an Order (including non-payment of amounts due), Customer shall cure or remedy said breach within thirty (30) days following its written notice of such breach from Company. If Customer fails to cure such breach within said cure period, Company may, without limiting its other legal or equitable remedies, terminate or suspend the applicable Order or the applicable Services or Software subscription thereunder.
7.3 Effect of Termination. Upon termination or expiration of these Terms, all licenses granted to Customer herein will terminate, and Customer will cease all use of the Services. Notwithstanding any termination or expiration of these Terms, Sections 2, 3, 5, 6, 7.3, 8, 9 (for the periods set forth therein), 10, 11 and 12 will survive any expiration or termination of these Terms.
8. CUSTOMER INDEMNITY
Customer will indemnify, hold harmless, and defend Company and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Company Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”) resulting from third-party claims made or brought against the Company Indemnified Party arising out of or in connection with Customer’s acts and omissions.
9. WARRANTY
9.1 Limited Warranty. Freight Farms, Inc. warrants to Customer that, for a period of (1) year after delivery of such Product to Customer, the Greenery™ will conform to Company’s then-published specifications as a hydroponic growing system ("System Warranty"), subject to the limitations on third-party component warranties and exceptions set forth below. The Greenery™ is comprised of certain Company original components and a significant number of third-party components, as detailed below.
9.2 Company Original Components Warranty. Company further warrants to Customer that the container portion of the Greenery™, the custom mounting brackets in the container, and the mounting hardware in the container (collectively, "Company Original Components") are free from material defects in materials or workmanship for a period of (1) year from delivery of the Greenery™ to Customer.
9.3 Third Party Components Warranties. All components of the Products, other than the Company Original Components, are third-party components ("Third Party Components"), including without limitation all software, pumps, tanks, monitoring equipment and other parts. With regard to Third Party Components, Company will pass through to Customer any transferable warranties, indemnities and remedies applicable to such Third Party Components, as provided to Company by the manufacturer of the applicable Third Party Components, including any warranties and indemnities for intellectual property infringement. Company will provide Customer with Product documentation which includes documentation of all third party warranties applicable to the Greenery™. The System Warranty applies only where the Third Party Components are operating in accordance with their manufacturer's specifications. Other than the System Warranty, Company makes no warranties with respect to Third Party Components.
9.4 Customer Notice. Customer must give notice of warranty failure within a reasonable period of time during the warranty period. Any failure to provide notice of a warranty claim by the sooner of the following shall be a waiver of such warranty claim: (a) thirty (30) days after the date of the defect, and (b) the end of the applicable warranty period.
9.5 Warranty Exclusions. The warranties in this Section 9 do not apply to any claims resulting from: (a) normal wear and tear; (b) failure to apply, install or maintain the Products or its components according to the published Company instructions and guidelines; (c) Customer’s or a third party’s abuse, neglect, misuse, misapplication or accident, or failure to exercise due caution in cleaning, maintenance or operation, of the Products; (d) Customer’s or a third party’s alteration or modification of the Products; (e) interoperation or combination with third-party hardware or software not provided by Company; or (f) substitution of any unauthorized non-Company components for use in place of Company components in the Products, including without limitation work surfaces, towers, lights, pumps and tanks; (g) failure of Customer to provide a suitable operating environment for the Products; or (h) use of the Products in violation of these Terms. Without limiting the foregoing exclusions, no warranty is provided herein for any consumables or variations in surface materials.
9.6 Warranty Disclaimers. Company is not obligated to provide service, upgrades, updates, improvements, or enhancements to the Products, Software or Services beyond those expressly set forth herein or in an Order. Before or after acceptance of an Order, Company may, without approval from or notice to Customer, make changes to the Products, Software or Services that do not adversely affect their performance or function. Except for the warranties set forth in this Section 9, to the extent permitted by applicable law, company, its suppliers, licensors and representatives expressly disclaim all warranties, express or implied, in fact or by law, including without limitation any implied warranty of merchantability, quality, fitness for a particular purpose and non-infringement, samples previously provided, security (of connection, access or data, or course of dealing). Without limiting the foregoing, Company does not warrant that the software is error-free, will operate without interruption or is compatible with all equipment and software configurations.
9.7 Exclusive Remedy. Customer’s exclusive remedy for breach of Section 9.1 or Section 9.2 will be repair or replacement of the defective portion thereof or a refund to Customer in Company’s sole discretion. Parts or components may be replaced as deemed necessary solely in Company’s discretion, with the returnable part or components becoming the property of Company. The warranties and remedies herein apply only to the Greenery™ delivered to customers in the United States of America and are exclusive, non-transferable and effective only with respect to the original purchaser of Greenery™. The warranty for use out of the United States will be set forth in an Order.
10. DISCLAIMER AND LIMITATION OF LIABILITY
10.1 Disclaimer. Customer agrees that in no event will Company or its suppliers, licensors, or representatives be liable to Customer or anyone else, for indirect, special, incidental, punitive, or consequential damages or for lost profits or revenue, loss of use or cost of recovery of the Products or Software or related materials, loss of data, even if advised of the possibility of such damages, regardless of the form of action, whether contract, tort (including negligence), strict product liability, or otherwise. Customer acknowledges that results may vary and agrees that in no event will Company or its suppliers, licensors, or representatives be liable to Customer for improper or incorrect use of the Products, Software or Services in growing, harvesting, buying, selling and/or consuming crops.
10.2 Limitation of Liability. Customer agrees that in no event shall Company’s aggregate liability arising in connection with these Terms or any Product, Software or Service, from all causes of action of any kind, exceed the purchase price actually paid by Customer to Company under the applicable Order in respect of such Product, Software or Service, as applicable. Customer acknowledges that the foregoing limitations in this Section 10 are an essential element of these Terms and that in the absence of this Section 10, the pricing and other terms herein would be substantially different.
11. FORCE MAJEURE AND ALLOCATION
If either party’s performance under these Terms (except payment of monies due) is prevented, restricted, or interfered with by reason of casualty, accident, fire, strikes or labor disputes, terrorist acts, inability to procure materials or components, power or supplies, war or other violence, pandemics, epidemics and quarantine restrictions, compliance with any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency or intergovernmental body (including, without limitation, those related to infringement), production delays, or any other act, circumstance, or condition whatsoever beyond such party’s or its suppliers’ or licensors’ reasonable control, the party whose performance is prevented, restricted, or interfered with, upon notice to the other party, shall be excused from such performance to the extent of such prevention, restriction, or interference. Company may allocate its available supply of Products among any or all of its customers, including the internal requirements of Company and its affiliates, on such basis as it may deem fair and practical, without liability for any failure to comply with the provisions of these Terms.
12. GENERAL TERMS
12.1 Export. The Products and Software may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer must comply strictly with all such regulations that are now or later in effect. Customer certifies that it will not export or re-export the Products or Software furnished within the Contract unless it complies fully with all laws and regulations relating to such export or re-export, including but not limited to the customs and export control laws and regulations of the United States and the country in which the Products or Software are received. Customer acknowledges that it is Customer’s sole responsibility to comply with and abide by those laws.
12.2 Modifications. These Terms and any Order may only be modified by a written amendment or agreement signed by authorized representatives of Company and Customer. Any and all proposed modifications to Products and Services contained in an Order must be approved by Company and added as an exhibit to the Order.
12.3 Publicity. Company will notify Customer prior to including Customer in any publicity or marketing. If Customer does not object within 5 days, Customer will be deemed to have approved such activity.
12.4 Severability. If any provision of these Terms or any Order is found to be unenforceable, the remaining provisions shall remain in full force and effect, and any unenforceable provision shall be replaced by a legally effective provision that comes as close as possible to the purpose of the unenforceable provision.
12.5 Environmental. Customer shall be solely responsible, and Company shall have no responsibility, for (a) properly disposing of wastes, spent materials, and other materials constituting or used in connection with the Products, or (b) personal injury or property damage resulting from or alleged to result from the improper use of the Products or the use of non-Company authorized materials in conjunction with the Products, including, without limitation, material introduced into the Products by Customer.
12.6 No Waiver. Failure on any occasion by either party to enforce any term of these Terms or any Order shall not prevent enforcement on any other occasion. If any provision of these Terms or any Order is held by a court of law to be legally unenforceable, all other provisions shall remain in full force and effect.
12.7 Notices. All notices and other communications having material impact or effect on these Terms or any Order shall be in writing and shall be sent by email or registered mail (with proof of response) to the parties’ respective addresses set forth on the applicable Order, subject to the right of either party to change its address by written notice to the other party.
12.8 Governing Law. These Terms and all Orders are made in, governed by and shall be construed in accordance with the laws of the Commonwealth of Massachusetts without reference to its principles of conflict of laws to the extent such principles would apply to the laws of any other jurisdiction. Customer consents to the exclusive personal jurisdiction and venue of the courts of the Commonwealth of Massachusetts for all litigation which may be brought with respect to or arising out of the terms of and the transactions and relationships contemplated by these Terms and any Order. The parties hereby expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Products.
12.9 Entire Agreement. These Terms and any Orders, together with any exhibits and schedules hereto or thereto, constitute the exclusive agreement between Company and Customer for the sale of the Products, Software and Services, and supersede all previous agreements, understandings and communications between the parties, whether oral or written. Any additional, contradictory, or different terms or conditions proposed by Customer shall be void and of no effect unless Company specifically identifies and accepts such terms and conditions in writing. Agents and sales representatives of Company have no authority to make any representation that is not included here or is different or contradictory to what is included herein, and Customer should not rely upon any such representation.
12.10Assignment. Neither these Terms nor any Order is assignable in whole or part by Customer without Company’s prior written consent. Any assignment in violation of the foregoing shall be null and void ab initio. These Terms and any Orders shall be binding on each party’s successors and assigns.
12.11 Equitable Remedies. Customer recognizes and agrees that Customer’s breach of these Terms or any Order may cause irreparable injury to Company for which it may not have an adequate remedy at law, and that any actual or threatened breach of these Terms or any Order will entitle Company to seek immediate injunctive relief prohibiting such breach without posting bond, in addition to any other rights and remedies available to Company at law or in equity.
SOFTWARE LICENSE ADDENDUM
The following additional terms govern Customer’s subscription to and use of the Software, including the Platform and the App:
1. USER ACCOUNTS
To use the Software, Customer may need to create an account (“Account”). Customer agrees to provide Company with accurate, complete and updated information for Customer’s Account. Customer can access, edit and update Customer’s Account by accessing the App or via Company’s website. Customer is solely responsible for any activity on or identified with Customer’s Account and for maintaining the confidentiality and security of Customer’s password. Customer will immediately notify Company at support@freightfarms.com if Customer knows or has any reason to suspect that Customer’s Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of Customer’s Account.
2. SOFTWARE LICENSE AND UPDATES/UPGRADES
2.1 License. Subject to Customer’s payment of the applicable fees and Customer’s compliance with the rest of these Terms, Company hereby grants to Customer a limited, revocable, nonexclusive, non-sublicenseable, non-transferable license to use the Software subscribed to by Customer under an Order solely in connection with use of the Products. With respect to any Software made available to Customer under an Order, Customer and Company intend and agree that such Software is being licensed and not sold.
2.2 Updates and Upgrades. “Software Upgrades” are defined as providing additional features or functionality to the Software, and “Software Updates” are defined as modifications to correct system operation and functions. Company, at its sole option, may issue Software Updates at no cost to Customer, and may offer Software Upgrades for license to Customer at Supplier’s then-current list prices. Other than as set forth in the applicable Order, Supplier shall not be obligated to provide Software Updates or Software Upgrades to Customer.
3. USE OF THE APP
Customer is responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that Customer needs to download, install and use the App. Company does not guarantee that the App can be accessed and used on any particular device or with any particular service plan. Company does not guarantee that the App or will be available in any particular geographic location. As part of its use of the Software and/or receipt of Services, Customer may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to Customer in connection with the App (“Push Messages”). Customer acknowledges that, when Customer uses the App, Customer’s wireless service provider may charge Customer fees for data, text messaging and/or other wireless access, including in connection with Push Messages. Customer has control over the Push Messages settings, and can opt in or out of these Push Messages through the Software or through Customer’s mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Customer should check with its wireless service provider to determine what fees apply to Customer’s access to and use of the App, including receipt of Push Messages from Company. Customer is solely responsible for any fee, cost or expense that Customer incurs to download, install and/or use the App on Customer’s mobile device, including for receipt of push messages from Company.
4. MOBILE SOFTWARE FROM THE APPLE APP STORE
The following terms and conditions apply to Customer only if Customer is using the App from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. Customer acknowledges and agrees that these Terms are solely between Customer and Company, not Apple, and that Apple has no responsibility for the App or content thereof. Customer’s use of the App must comply with the App Store’s applicable terms of use. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price, if any, for the App to Customer. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. Customer and Company acknowledge that Apple is not responsible for addressing any claims of Customer or any third party relating to the App or Customer’s possession and/or use of the App, including, but not limited to: (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation. Customer and Company acknowledge that, in the event of any third party claim that the App or Customer’s possession and use of that App infringes that third party’s intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. Customer must comply with applicable third party terms of agreement when using the App. Customer and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to Customer’s use of the App, and that, upon commencement of the Term, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer as a third party beneficiary thereof.
5. THIRD PARTY SERVICES AND MATERIALS
The Software may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Software, Customer acknowledges and agrees that Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. Company does not warrant or endorse and does not assume and will not have any liability or responsibility to Customer or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to Customer.
6. SMS MESSAGING AND PHONE CALLS
Certain portions of the Software may allow us to contact Customer via telephone or text messages. Customer agrees that Company may contact Customer via telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by Customer or on Customer’s behalf in connection with Customer’s use of the Services, including for marketing purposes. Customer understands that Customer is not required to provide this consent as a condition of using the Software. Customer also understands that Customer may opt out of receiving text messages from Company at any time, [either by texting the word “STOP” to [ ] using the mobile device that is receiving the messages, or by contacting [ ]]. If Customer does not choose to opt out, Company may contact Customer as outlined in Company’s Privacy Policy.
7. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
8. LOCATION OF COMPANY PRIVACY POLICY
Company’s Privacy Policy describes how Company handles the information Customer provides to Company when using the Software. For an explanation of Company’s privacy practices, please visit Company’s Privacy Policy.