Last Updated: Jan. 15, 2019
These Ceres Terms of Service (this “Agreement”) is entered into by and between Ceres Imaging, Inc. (“Ceres”), a Delaware corporation with its principal place of business at 428 13th St, Suite 200, Oakland, CA 94612, USA and the customer (“Customer”) specified in the service contract or distributor agreement executed by both Ceres and Customer (“Service Contract” or “Distributor Agreement”), and is effective as of the date stated in the Service Contract or Distributor Agreement (“Effective Date”). This Agreement sets forth the terms and conditions by which Ceres will perform aerial spectral imagery services (“Imagery Services”) and allow Customer to access and use data and reports generated in connection with such Imagery Services (“Output”) through the online portal of Ceres’ proprietary software platform (the “Online Services” and, together with the Imagery Services, the “Services”). In consideration of the mutual obligations specified in this Agreement, and any fees paid to Ceres hereunder, the parties agree to the following:
1. IMAGERY SERVICES
1.1. General. Subject to the terms and conditions of this Agreement, Ceres will perform the Imagery Services specified in the Service Contract or Distributor Agreement.
1.2. Authorizations. Customer is solely responsible for securing the consent of the owner of the property on and over which the Imagery Services will be performed, and/or such other consents as may be necessary for Ceres to perform the Imagery Services. Customer represents and warrants that it has, or will have by the time the Imagery Services are scheduled to be performed, obtained all such consents.
2. ONLINE SERVICES.
2.1. General. Subject to the terms and conditions of this Agreement, Ceres hereby authorizes Customer’s employees, contractors or designated users (“Users”) to access and use the Online Services during the term of this Agreement, solely for the internal business purpose of obtaining Output generated in connection with the Imagery Services performed hereunder.
2.2. Restrictions. Customer shall not, and shall not attempt to, or assist or permit any third party to: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the Online Services; (b) assign, sublicense, rent, lease, or otherwise transfer any rights to access and use the Online Services; (c) copy or create derivative works, adaptations or compilations of, or based on, the Online Services, or any part thereof; (d) use the Online Services, or any part thereof, other than as expressly authorized in this Agreement; (e) use the Online Services for any illegal purpose or in violation of any local, state, national, or international law; (f) obtain, attempt to obtain, or redistribute any data, materials or information available through the Online Services through any means not intentionally made available by Ceres, including by any form of automated access, scraping, or similar process; (g) interfere with security-related features of the Online Services, including by disabling or circumventing any such features; or (h) upload or otherwise disseminate any virus, adware, spyware, worm, or other malicious code through the Online Services.
3. SUPPORT. During the term of this Agreement, Ceres will provide Customer with reasonable technical support for the Online Services by telephone, email, and/or other online services. The Customer can contact Ceres via email at email@example.com.
4. INTELLECTUAL PROPERTY. Subject to Section 1.3, Ceres and its suppliers or licensors retain sole and exclusive ownership of all right, title and interest in and to the Services, including all intellectual property rights therein and thereto. All rights not expressly granted hereunder are reserved by Ceres.
5.1. Payments for Specialty Crops. Customer will pay Ceres the percentage of the fees set forth in the Service Contract or the Distributor Agreement according to percentage of Delivered Images as part of the Services. For example, if Customer contracted to obtain 8 Delivered Images but Ceres only provided 7 Delivered Images, then Customer will pay Ceres 87.5% of the fees owing pursuant to the Service Contract or Distributor Agreement.
5.2. Payments for Commodity Crops. Customer will pay Ceres the percentage of the fees set forth in the Service Contract or the Distributor Agreement according to percentage of Delivered Images as part of the Services as set forth in the following table:
Percentage Delivered Images
Percentage Fees Owed
83% to 100%
67% to 82%
33% to 66%
0% to 32%
5.3. Delivered Images shall mean the Products delivered to the Customer within 72 hours of Image Capture, and shall be determined on a field-by-field basis. (If a field is not provided, then Delivered Images shall be determined on a farm-by-farm basis.) Image Capture shall mean 8pm on the day the imagery was captured. For example, if an image is captured on a Monday, then the image shall be considered a Delivered Image if the Products are delivered for a field by 8pm on Thursday. All fees are quoted and payments made hereunder will be in U.S. dollars unless otherwise stated. All fees owing hereunder will be payable within fifteen (15) days from the date of Ceres’s invoice unless otherwise stated.
5.4. Billing. Ceres shall bill Customer the fees owed pursuant to the Service Contract or the Distributor Agreement through 4 installments the period of which shall be determined by Ceres. The first 3 installments shall each be equal to the 25% of the total fees owed pursuant to the Service Contract or the Distributor Agreement; the last installment shall be for the remainder amount taking into account the percentage of Delivered Images as well as any in-season additions or upgrades. In the event that Ceres issues an invoice for more than the amount owed pursuant to this section, Ceres will refund the Customer the difference between the invoiced amount and the actual amount owed. Invoices will be based on the acres (or hectares) listed in the Service Contract or the Distributor Agreement (“Contracted Area”) on a field-by-field basis. In the event of a discrepancy between the Contracted Area and the measured area as determined by Ceres, the parties will collaborate in good faith to determine that correct measurement and will update the Contracted Area accordingly.
5.5. Late Charges. All fees are quoted and payments made hereunder will be in U.S. dollars unless otherwise stated. All fees owing hereunder will be payable within fifteen (15) days from the date of Ceres’s invoice unless otherwise stated. Any past due amounts owing from Customer will bear interest at the rate of 1.5% per month, or the maximum amount permitted by law, whichever is lower. Customer will reimburse Ceres for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past due amounts owed by Customer.
5.6. Taxes. Customer will pay any applicable sales, use, personal property or similar taxes, tariffs or governmental charges, exclusive of taxes on Ceres’s net income and Ceres’s corporate franchise taxes.
6. TERM AND TERMINATION.
6.1. Term. The initial term of this Agreement begins on the Effective Date and continues for the term stated on the Service Contract, or if no term is stated therein, beginning on the Effective Date and continuing for one (1) year after Ceres’s completion of the Imagery Services set forth on the Service Contract. The term will be automatically renewed for additional one (1) year periods following the initial term unless either party provides sixty (60) days’ notice of its intent not to renew.
6.2. Termination. Either party may terminate this Agreement at any time, upon written notice, if the other party materially breaches any of its obligations under this Agreement and such breach is not remedied within ten (10) days after written notice thereof by the other party.
6.3. Effect of Termination. Following any termination or expiration of this Agreement, the provisions of Sections 4, 6.3, 7, 8, and 9 will survive, as well as the obligation to pay any unpaid amounts.
7. DISCLAIMER. EXCEPT FOR THE EXPRESS COMMITMENTS MADE BY CERES IN THIS AGREEMENT, CERES MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE IMAGERY SERVICES, THE ONLINE SERVICES, THE OUTPUT, OR ANY OTHER SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL CERES OR ITS SUPPLIERS, LICENSORS OR SUBCONTRACTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF CERES HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CERES OR ITS SUPPLIERS, LICENSORS OR SUBCONTRACTORS BE LIABLE FOR ANY DAMAGE TO PROPERTY OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY. THE LIABILITY OF CERES AND ITS SUPPLIERS, LICENSORS AND SUBCONTRACTORS TO CUSTOMER FOR CLAIMS RELATED TO THIS AGREEMENT OR THE IMAGERY SERVICES, THE ONLINE SERVICES, THE OUTPUT, OR ANY OTHER SERVICES PROVIDED HEREUNDER, WHETHER FOR BREACH OR IN TORT (INCLUDING NEGLIGENCE), WILL BE LIMITED TO THE FEES PAID BY CUSTOMER. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
9.1. Independent Contractors. The relationship of the parties hereto is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
9.2. Assignment. Neither this Agreement nor any right or obligation hereunder may be assigned or transferred by either party, whether by operation of law or otherwise, without the prior written consent of the other party; provided that Ceres may assign this Agreement without such consent to an entity that succeeds to all or substantially all of the business or assets to which this Agreement relates. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.3. Force Majeure. No delay, failure or default in performance of any obligation of either party hereunder, excepting all obligations to make payments hereunder, will constitute a breach of this Agreement to the extent caused by events or conditions beyond that party’s reasonable control (including delays caused by weather conditions of mechanical failure). The failure or delay by either party to enforce the terms of this Agreement will not be deemed a waiver of such terms.
9.4. Notices. All notices relating to this Agreement will be in writing and delivered by courier or hand or sent to the other party by first class prepaid mail with return receipt requested, to the address of such party set forth at the beginning of this Agreement or on the Service Contract, as applicable.
9.5. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the state of California excluding its conflict of laws rules. Each party hereto expressly consents to the personal jurisdiction of the state and federal courts located in the State of California and service of process being affected upon it by registered mail sent to the address set forth at the beginning of this Agreement.
9.6. Severability. If any provision of this Agreement is found to be legally unenforceable, that provision should be enforced to the maximum extent possible and any such unenforceability will not prevent enforcement of any other provision of the Agreement.
9.7. Amendment. No alteration, waiver, cancellation, or any other change or modification in any term or condition of this Agreement will be valid or binding on either party unless made in writing and signed by duly authorized representatives of both parties.