1. General
1.1. These general terms and conditions of purchase (“T&Cs”) shall apply to all products (“Products”) supplied by the Company to customer (“Customer”) and all services (“Services”) provided by Company to Customer. “Company” or “NDrip” refers to NDrip Ltd., N-Drip Inc. and NDrip Australia PTY Ltd.
1.2. These T&Cs, together with (a) Customer’s purchase order issued in accordance with the form set forth in the purchase order attached hereto and (b) Company’s subsequent invoice confirming Customer’s purchase order; (hereafter collectively the “Commercial Documentation”), shall constitute the entire agreement between the parties with respect to the subject matter hereto.
1.3. Capitalized terms not defined herein shall have the meanings set forth in the Commercial Documentation, including “Additional Products”, “Field”, “Growing Season”, “Address”, and “Delivery Costs”.
2. Supply and Consideration
2.1. Company shall provide Customer with the Products in such quantities as agreed in accordance with the terms of the Commercial Documentation.
2.2. In consideration for provision of the Products by Company, Customer shall pay Company the consideration set out in the Commercial Documentation (“Consideration”), plus VAT/GST plus sales tax (if applicable) plus all Delivery Costs. Delivery Costs set forth in the Commercial Documentation is an estimate only.
2.3. Payment of the Consideration shall be made at the time set forth in the Commercial Documentation.
2.4. The Company shall deliver the Products as specified in the Commercial Documentation.
2.5. Title (as opposed to risk) to the Products shall not pass to Customer until Company has received payment in full of the Consideration.
3. Customer’s Acknowledgments and Obligations
Customer acknowledges and agrees that:
3.1. Customer shall use the Products in compliance with all applicable laws, governmental regulations and guidelines, and in accordance with Company’s instructions.
3.2. Customer is responsible for all field preparation and installation of Products and Company has no responsibility with respect to Products or Services, except as explicitly set forth herein.
3.3. Company may, in coordination with Customer, be entitled to take third parties to demonstrate the use of the Products in the Field during the Growing Season.
4. Warranty
4.1. Products, which are manufactured by Company (“Warranty Products”) are warranted to be free from original defects in material and workmanship from the date of delivery to the Address until the end of the Growing Season (“Warranty Period”). Subject to the provisions herein, the warranty shall apply only if applicable Product part proves to be defective, in material or workmanship after return of the part to Company, at Customer’s expense and shall only apply to those Products manufactured by Company. Within the Warranty Period, after the product or part thereof has been proven to be defective, as determined by Company, Company shall, at its sole discretion, have the option to repair or replace part or all of a defective product or refund that part of the consideration paid for such defective product.
4.2. For the avoidance of doubt, the foregoing warranty shall apply only if Customer has properly stored, installed, and used the Warranty Products in accordance with normal agricultural use and any instructions provided by Company, if any. This warranty shall not apply to any Warranty Products installed in a Field and moved after installation to a different location. Any misuse, neglect, modifications, unauthorized repairs or replacement or parts thereof, shall void this warranty, including without limitation: (i) using irrigation water which has not been filtered or treated to the levels specified by Company: or (ii) chemical concentrate used or applied internally or externally to the Warranty Products. In addition, the foregoing warranty shall not apply to any Warranty Products caused by: (a) agricultural or other environmental factors, including deterioration of water quality during the Growing Season, (b) damage to Warranty Products from rodents, insects or other animals; (c) damage due to other mechanical causes; (f) failure to abide by installation, irrigation, or other maintenance instructions.
4.3. The warranty shall be valid and in force only if the claim is made by written notice to Company (at the address set forth in the Purchase Order) within the Warranty Period, and is sent within 30 days of discover of the defect.
5. Disclaimer of Warranties
Except as explicitly set forth in Section 4 herein, the Products and Services (including provision of design and any recommendations made by company) are sold and/or provided by company to the Customer “as is” and company expressly disclaims all warranties or representations of any kind, whether express or implied, with respect to the Products and Services, including warranties of merchantability and fitness for a particular purpose, to the maximum extent permitted by law, and makes no representation that use of the Products or Services will not infringe intellectual or proprietary rights of any third party. Company does not guarantee that Customer will achieve particular results and does not guarantee any improvements in any agricultural or commercial yield or other measurements. Inferences made by individuals using the Products do not reflect those of Company. Further, the design provided by Company is based solely on information provided by Customer and Company makes no representation that the design or any recommendations contained therein are correct or accurate.
6. Limitation of Liability; Indemnity
6.1. Company shall not bear any liability whatsoever with respect to any indirect, incidental, special or consequential damages or losses resulting from or in connection with any delay in delivery, failure to perform, malfunction, defect, error, use or misuse of any Products by the Customer, even if the Company has been advised of the possibility of such damages or losses, and irrespective of whether such liability is alleged under contract, tort or any other theory of law. Company’s liability for direct damages shall be limited as set forth in section 6.3 herein.
6.2. Under no circumstance shall the Company bear any liability or responsibility towards any person other than Customer.
6.3. Without derogating from the above (and in particular Section 6.1), Company’s liability and the sole remedy that Customer may seek in any cause of action arising out of this Agreement is explicitly limited to the extent permitted by law, to the warranty set forth in Section 4 herein. Company shall have no liability whatsoever in respect of any claim relating to agricultural yield of the Field, or other similar claims, and Customer expressly waives and voluntarily and knowingly hereby release the Company from any and all liability in respect of such claims.
6.4. Customer shall indemnify Company for any loss and/or damage, including claims and/or demands by third parties relating to Customer’s use of the Products supplied pursuant to this Agreement or Customer’s breach of these T&Cs.
7. Confidentiality
Customer agrees, at all times, including after termination hereof, to keep in confidence and trust all information and materials disclosed to it by Company which are marked as confidential, or which would reasonably be held to be confidential (“Confidential Information”) and shall not disclose such Confidential Information to any third party without Company’s prior written consent. For the avoidance of doubt, Confidential Information does not include information which was already in the public domain not as a result of breach of any agreement with the Company, or information which is required to be disclosed by law.
8. Ownership and IP
8.1. Customer acknowledges that, as between the parties, Company is and shall at all times be the sole and exclusive owner of all right, title and interest in and to any intellectual property, including but not limited to any copyright, patents, designs, domain names, trade names, trademarks and goodwill associated with the Company and/or the Products, whether existing now or created in the future, whether registered or unregistered, and including with respect to any further developments, modification, or improvement of any Products. Company shall be entitled to use the results of the use of the Product in the Field to further develop and improve the Products and Customer shall have no claims in relation thereto.
8.2. Customer shall not, directly or indirectly, reverse engineer, decompile, manufacture or disassemble the Products or any part thereof.
8.3. Specific data regarding the customer or anyone on his behalf is owned by the customer.
9. N-Drip Connect™
In addition to the provisions herein, the provisions of Appendix 1 shall also apply to Products and Services in connection with N-Drip Connect™.
10. Miscellaneous
10.1. These T&Cs shall apply whether Products or Services are purchased directly from NDrip or indirectly, through a partner, distributor, reseller, agent or other commercialization Partner (“Commercialization Partner”).If Products are purchased through Company, all payments shall be paid to the N-Drip entity listed in the Commercial Documentation and all obligations of Company stated herein shall constitute obligations of the N-Drip entity listed in the Commercial Documentation. If Products are purchased through a Commercialization Partner, all payments shall be paid to Commercialization Partner and obligations of Company stated herein shall instead constitute obligations of the applicable Commercialization Partner, including the warranty in Section 4 and provisions relating to warranty in Appendix 1. Only the license in connection with N-Drip Connect™, if applicable, shall be granted directly by Company to Customer.
10.2. Company shall not be in default of its obligations to the extent its performance is delayed or prevented by causes beyond its control, including but not limited to acts of God, acts of any governmental body, war insurrection, sabotage armed conflict, embargo, fire, flood, pandemic or epidemic, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software, inability to provide raw materials.
10.3. Customer alone shall be solely responsible for any taxes or other compulsory payments with respect to any moneys payable by it to the Company. Customer represents that no withholding is required to be paid by it in respect of any amounts payable under or in respect of the Commercial Documentation. If, notwithstanding the above, a withholding requirement applies, then all amounts payable shall be grossed up so that the net amount payable by Customer shall be the amount set out in the Commercial Documentation.
10.4. Customer shall not be entitled to delay or set-off any payment the purchaser owes to the Company in accordance with the Commercial Documents.
10.5. Customer shall not transfer or assign its rights and/or obligations under this agreement without the advanced written consent of Company, which shall not be unreasonably withheld. Company may assign the agreement and/or any right and/or invoice and/or receivable, related to this agreement, whether currently existing or future, certain or contingent, without the consent of Customer.
10.6. The Commercial Documentation shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to the principles of conflicts of law thereof. Sole jurisdiction with respect to any matter relating to the Commercial Documentation is hereby granted to the qualified courts of Tel Aviv-Jaffa or the Central District, to the absolute exclusion of any other court in any other jurisdiction.
10.7.All notices provided by one party to the other shall be provided in writing, and sent by registered mail, facsimile, or e-mail. Notice to Company shall be provided only in accordance with the details provided in the Commercial Documentation, and if not provided therein, to the registered Company address.
Appendix 1 - N-Drip Connect™
The following terms shall apply in the event that Customer has purchased a license to use N-Drip Connect™ and/or Products or Services in connection therewith. Capitalized terms not defined herein shall have the meanings ascribed to them in the General Terms and Conditions of Purchase.
1. License Grant. Customer’s use of N-Drip Connect™ (“System”) is permitted only pursuant to purchase of a license marketed by Company or Commercialization Partner, as applicable, and granted by Company to Customer pursuant to these T&Cs. Subject to the terms and conditions set forth herein and Customer’s compliance with its annual license payment and other obligations pursuant hereto, Company grants Customer a non-exclusive, non-transferable, non-sublicensable, limited license (“License”) to use the System for the then applicable annual license term (“Term”). Customer undertakes to use the System pursuant to the terms herein, the documentation provided by Company and all applicable laws and regulations.
2. Customer Limitations. Customer shall not: (i) attempt or seek to copy the System or any part thereof, or otherwise use or have access to any System software source code by de-compilation, disassembly, reverse engineering or other means; (ii) distribute, alter, modify, adapt or translate the System and/or any part thereof, or create any derivative works based on the System or its Documentation in whole or in part; (iii) represent that it possesses any proprietary interest in the System or any part thereof; (iv) sell, license, sublicense, rent, loan, assign, or otherwise transfer (whether by sale, exchange, gift, operation of law, or otherwise) to any third party the System, any copy thereof, or any license or other rights thereto, in whole or in part except to the extent expressly authorized in writing by Company; (v) publicly disseminate performance information or analyses from any source relating to the System, or otherwise present the System or any component thereof on any media or multi-media platform or any other platform that enables communication to the public (including without limitation the Internet) except to the extent expressly authorized in writing by Company; (vi) violate any laws, rules, regulations or policies of any applicable jurisdiction in connection with use of the System; (vii) permit any third party to access the System (including by sharing Customer’s access information, e.g. username and password) except as authorized herein or by Company in writing, or to permit or assist any party in exceeding such authorization. Customer agrees to promptly notify Company of any breaches of the restrictions set forth in this Section 2 of which the Customer becomes aware.
3. Warranty Specific to Sensors. For further clarification and without derogating from the warranty set forth in Section 4 in the General Terms and Conditions of Purchase, if during the Warranty Period, Customer believes, it has detected a damaged or defective sensor (“Damaged Sensor”), Customer shall notify Company (or Commercialization Partner, as applicable) and Company’s (or Commercialization Partner’s, as the case may be) technician shall promptly evaluate the allegedly Damaged Sensor. Company’s sensor expert shall determine in good faith whether a sensor is a Damaged Sensor based on the following principles.
The following shall not constitute a Damaged Sensor:
a) There has been an additional installation of the same sensor body in a different location.
b) There has been any external damage to the sensor caused by animals, machinery, or human abuse.
c) There is no reception in the field area - sensor connectivity depends on the cellular reception in the field area. Supplier will not use different technologies in order to support coverage in fields without cellular reception.
Sensor will be considered Damaged Sensor in the following instances:
a) The transmitter doesn’t transmit after following all the troubleshooting steps of the connectivity guide.
b) The sensor body is broken due to poor manufacturing.
c) The sensor antenna is broken (and this was not caused by animals, machinery or human abuse).
In the event that Company has concluded that a sensor is a Damaged Sensor, Company shall, at its discretion, either correct the defects or replace the Damaged Sensor. The foregoing shall constitute Customer’s sole remedy for Damaged Sensor.
4. Waiver. Company does not warrant that the System, its use, operation or Customer’s ability to use the System will be uninterrupted or error-free or that any or all System errors will be corrected. Company does not warrant that the System security will be flawless. In addition to the limitations of liability and waivers in the T&Cs, Customer hereby fully waives, releases, remises to the fullest extent permissible by law the Company, and its representatives, and Commercialization Partner from any and all liability regarding any claims resulting from data obtained from System or recommendations provided by Company or Commercialization Partner regarding the manner and method of irrigation) and any damages that Customer may suffer in reliance upon those Services or Field Data. Customer agrees not to bring any claim against any of the foregoing parties in connection with the Services or Field Data, and in the event any such claim is brought against any of the foregoing parties, Customer agrees to fully indemnify the indemnified party for any damages suffered as a result of such claim, including without limitation all attorney’s fees and court costs. Any Services provided to Customer are being provided on reliance on this waiver.
5. Use of Internet and Third-Party Wireless Network. Customer acknowledges that internet and communications over it and third-party wireless network may not be absolutely secure. Further, sensor connectivity depends on the cellular reception in the field area. Company will not use different technologies in order to support coverage in fields without cellular reception.
6. Data Protection Provisions
6.1. Type of Data. The System transmits data including personal data, such as names, contact details, field location and other personal information to an individual cloud services account, which shall be managed and controlled by Company for the Term. We refer to the cloud account as the “User Account”, to the data transmitted from the System to the User Account as “Field Data”, and to the term of our agreement as “Term.” Unless otherwise agreed in writing, the Term shall be the Growing Season set forth in the Commercial Documentation.
6.2. Purpose of Processing of Data and Access to Data and Term of Data Processing.
6.2.1. Customer Access: Customer will have access to the User Account, but only during the Term.
6.2.2. Use by NDrip and Commercialization PartnerCompany and Commercialization Partner shall also have access to the Field Data in the User Account for the Term and shall have the right to use, process and transmit such Field Data for provision of the Services and for monitoring Customer’s compliance with this Agreement. Customer also consents to the use of the Field Data in order to allow NDrip, Commercialization Partner and any other provider of field products (eg. fertilizer), as applicable, to alter, modify, adapt, or improve the System and/or Commercialization Partner’s or third party provider’s technologies and products; In addition, NDrip shall be permitted to arrange, prior to expiration of the Term, for the extraction of the Field Data in the User Account to a separate database, which will amalgamate anonymous data from Customer’s User Account as well as from user accounts of other customers, and which will not contain data that will be able to identify Customer (“Company Database”). For purposes of clarity, the Company Database shall be owned solely by Company, and Company shall be entitled inter alia, to use, sell, transfer, and grant access to the Company Database and data therein, at its sole and absolute discretion and without restrictions. Customer consents to the extraction of the Field Data and integration of such Field Data into the Company Database, and shall not have any claims with respect to the Company Database and ownership by Company thereof, use of the data therein, or transfer of any of the data in the Customer Database. In addition, Customer consents that any data provided to a third party may be aggregated and anonymized and used by such third party, without restriction.
6.3 Obligations on Company:
6.3.1. Company will Process Field Data as set forth in Section 6.2
6.3.2. Company will comply with all applicable data protection laws and regulations.
6.3.3. Company will maintain appropriate technical and organizational security measures for the Processing of Field Data. Such measures will include ensuring that all Third-Party Processors, and Company, are required to implement physical access control, System access control, data access control and transmission control and other industry-customary measures to protect Field Data against accidental or unauthorized loss, destruction, alteration, disclosure or access, and against all other unlawful forms of Processing.
6.4Consent to Use and Access by Third Party Sub Processors.Some or all of performance of the Services may be performed by Third Party Processors, including without limitation storage of Personal Data in a cloud computing Processor and provisions of support via Commercialization Partner or other third parties, which provide products for use in Customer’s Field, such as fertilizer companies. Company maintains a list of Third-Party Processors that may Process Personal Data or other Field Data. That list shall be available to Customer upon request. The Third-Party Processors are required to abide by substantially the same obligations as Company pursuant to this Agreement. Customer consents to the use of Third-Party Processors in the performance of the Services and transfer of Field Data to such third party processors.
6.5 Consent to Cross- Border and Onward Data TransfersCustomer, including for the avoidance of doubt, a Customer located in the European Union or Switzerland, or England hereby expressly consents that its Personal Data and Field Data can be transferred to, and/or stored, in any location or locations in the world including in a location of a party for which there is no binding adequacy decision by the European Commission and in the event that there are no adequate safeguards as determined in accordance with EU Data Protection Regulations. Specifically, and without derogating from the above, and in order to enable Company to efficiently provide the Services (including efficient uploading of information to a cloud-based server), Customer acknowledges that Personal Data may be stored, in whole or in part: (i) in Israel; (ii) in Ireland; and (iii) in the country in which Customer’s field is located.
6.6 Transfer to New OwnerCustomer consents to any transfer of the User Account and the personal data therein to any new owner of Company (whether by merger, acquisition or other such transaction), if such personal data contained therein shall only be used by the new owner in the same manner as set forth herein.
6.7 Rights of Customer
6.7.1. Withdrawal of Consent. Customer may withdraw Customer’s consent to the Processing of Field Data, or part thereof, by the provision of written notice to service@ndrip.com or a representative appointed for this purpose in any matter related to this Section. Customer may also withdraw its consent as aforesaid to the right to aggregate its data, with respect to any data that has not yet been aggregated on the date the withdrawal of consent notice was provided.
6.7.2. Deletion, Correction. Company will grant Customer the means, either directly or by way of instruction to Company, to access, delete, release, correct or block access to specific Personal Data. Company will follow Customer’s commercially reasonable and detailed written instructions to access, delete, release, correct, or block access to Customer’s Personal Data. Customer agrees to pay any reasonable fees incurred by Company associated with Company’s performance of any such access, deletion, release, correction or blocking of access to Personal Data on behalf of Customer. Customer shall be entitled to contact Company at service@ndrip.com or a Company representative appointed for this purpose in any matter related to this Section. Notwithstanding the foregoing
6.7.3. Right to Lodge Complaint. If EU Data Protection Regulation is applicable to Customer, Customer has a right to lodge a complaint with a supervisory authority and Customer considers that the Processing of Customer relating to him or her infringes the European Data Protection Regulation. Customer shall inquire if it has similar rights if it is in a different jurisdiction.
6.7.4. Right to Data Portability If EU Data Protection Regulation is applicable to Customer, Customer shall be entitled to receive Personal Data concerning it, which it has provided to the System, in a structured, commonly used and machine-readable format and have the right to transmit those data to another party. The foregoing shall not impose any requirement on Company to store or retain any Customer Personal Data. Customer is aware that its systems might be less secure than those of Company and that requesting transfer of Personal Data in accordance with the provisions herein may compromise the security of Personal Data. Company shall have no obligation to provide pursuant hereto any recommendations or inferences or other derived data made by the System based on the Field Data inputted by Customer. Customer shall inquire if it has similar rights if it is in a different jurisdiction.
6.7.5. Termination In the event that as a result of Customer’s withdrawal of consent, or request to delete, release, block or otherwise perform any act in connection with the data collected from Customer in accordance herewith, Company or Commercialization Partner determines that it cannot adequately provide Services to Customer, Company and/or Commercialization Partner, as applicable shall be entitled to immediately terminate the Agreement with respect to the provision of Services through NDrip Connect. In such event, it is hereby clarified that Customer shall be obligated to pay (to the extent not already paid) all fees covering the then-current term. For the avoidance of doubt, to the extent any such fees were pre-paid it is hereby clarified that Customer shall not be entitled to reimbursement.
6.8 Limitations on Liability. In addition to any other limitations of liability contained in the Parties Agreement, neither Company nor Commercialization Partner will be responsible for any use or disclosure of Field Data resulting from access to the System or to Customer Personal Data granted by Customer to any third party. Company shall not be liable, to the maximum extent allowed in accordance with applicable law, for any breach of the terms herein, by a Third-Party Processor, provided Company took commercially reasonable steps to obtain compliance by such Third Party Processor to the terms herein.
6.9 Contacting Us. If you have any questions concerning your privacy, please contact us at service@ndrip.com.