Farm Hill Terms of Service and End User License Agreement

Last Updated: 27 January 2016
Welcome, and thank you for your interest in Marck Corporation, d/b/a Farm Hill (“Farm Hill,” “we,” or “us”) and our website at www.farmhill.com, along with our related websites, networks, mobile applications (the “App”), and other services we provide (collectively, our “Service”). This Farm Hill Terms of Service and End User License Agreement and any additional policies (the “Policies”) (collectively, the “EULA”) are a legally binding contract between you and Farm Hill regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA. If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service.
You acknowledge and agree that, as provided in greater detail in the EULA:
  • the App is licensed, not sold to you, and that you may use the Service only as set forth in this EULA;
  • the use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility;
  • you consent to the collection and use of your personally identifiable information and information about your location in accordance with Farm Hill’s Privacy Policy (http://www.farmhill.com/privacypolicy), including without limitation the collection of location information;
  • access to certain features of the Service may require access to information about the location of your device, such as GPS coordinates;
  • the Service is provided “as is” without warranties of any kind and Farm Hill’s liability to you is limited;
  • disputes arising hereunder will be resolved by binding arbitration as set forth in the EULA, and by accepting this EULA, as provided in greater detail in Section 24, you and Farm Hill are each waiving the right to a trial by jury or to participate in a class action;
  • the App requires access to the following services on your mobile device: UDID, MAC address, or other applicable device identifier, phone state and identity, internet, SMS/MMS messaging, and location; and
  • if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.
1. Farm Hill Service Overview.
The Farm Hill Service allows users to place orders for healthy meals, snacks, and drinks using the App or Service for same-day delivery directly to users. Farm Hill also makes available corporate accounts for companies and organizations, and offers catering services.
2. Eligibility.
You must be at least 13 years of age to use the Service. By agreeing to this EULA, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this EULA and you agree to be bound by this EULA on behalf of that organization.
3. Accounts and Registration.
To access certain features of the Service, you may be required to register for an account. For example, you have the option to register for an account prior to placing an order for a meal delivery. When you register for an account, you may be required to provide us with some information about yourself, such as your email address, delivery destination, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@farmhill.com.
4. Limited License.
Subject to your complete and ongoing compliance with all the terms and conditions set forth in this EULA (including without limitation payment of any applicable fees and compliance with all license restrictions), Farm Hill grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Farm Hill or from a legitimate marketplace (such as Apple’s iTunes store), solely in object code format, for your personal use for lawful purposes, on a single compatible mobile device that you own or control, and for the purpose of accessing and using the Service in accordance with the EULA. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law or applicable third party license, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by Farm Hill (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them.
5. Payment.
5.1 Third Party Payment Processors. Access to the Service, or to certain features of the Service, is currently free of charge. However, you must pay for meals and other menu items prior to delivery by us. Before you pay for any menu items, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. If Farm Hill changes the fees for the Service, including by adding additional fees or charges, Farm Hill will update the menu on the Service accordingly. Farm Hill will charge the payment method you specify at the time of purchase using Stripe or PayPal as our third-party payment processors. Our third-party payment processors may have independent terms of service and privacy policy which you will be subject to when making a payment using such third-party payment processor’s service, and we encourage you to review all such terms prior to making any payment. If you use Stripe, you will be subject to Stripe’s Terms of Service (https://stripe.com/us/terms) and Privacy Policy (https://stripe.com/us/privacy) when making a purchase using Stripe’s service. If you use PayPal, you will be subject to PayPal’s Terms of Service (https://www.paypal.com/webapps/mpp/ua/useragreement-full) and Privacy Policy https://www.paypal.com/webapps/mpp/ua/privacy-full when making purchase using PayPal’s service. You authorize Farm Hill to charge all sums as described in this EULA, for the Service you select, to the payment method you select. If you pay any fees with a credit card, Farm Hill may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
5.2 Subscriptions; Recurring Payments. IF YOU SET UP RECURRING PAYMENTS THROUGH A SUBSCRIPTION, YOU AUTHORIZE US TO CONTINUE TO CHARGE YOUR CREDIT CARD OR PAYPAL ACCOUNT ON A WEEKLY OR MONTHLY BASIS, ACCORDING TO YOUR SUBSCRIPTION PREFERENCES. YOU MAY PROVIDE US NOTICE TO TERMINATE YOUR SUBSCRIPTION BY CONTACTING US AT SUPPORT@FARMHILL.COM OR BY UPDATING YOUR SUBSCRIPTION PREFERENCES HERE: WWW.FARMHILL.COM. UPON YOUR PROVIDING NOTICE TO FARM HILL TO TERMINATE YOUR SUBSCRIPTION, FARM HILL WILL USE REASONABLE EFFORTS TO UPDATE YOUR SUBSCRIPTION PREFERENCES PROMPTLY. IF YOU PROVIDE US NOTICE TO TERMINATE YOUR SUBSCRIPTION LESS THAN 7 DAYS PRIOR TO A SCHEDULED SUBSCRIPTION CHARGE, WE MAY NOT BE ABLE TO CANCEL THE SUBSCRIPTION CHARGE UNTIL THE NEXT SUBSCRIPTION CYCLE.
6. Use of the App and the Service – Third Party Terms and Fees.
You are solely responsible for your use of the Service on your mobile device, including without limitation compliance with these and any applicable third party terms, and payment of any applicable third party fees. Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier. If your device is lost or stolen, you must notify Farm Hill immediately to suspend services.
7. User Content
7.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
7.2 Limited License Grant to Farm Hill. By posting or publishing User Content, you grant Farm Hill a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed solely for the purposes of providing the Service.
7.3 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Farm Hill to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Farm Hill, the Service, and this EULA; and
b. your User Content, and the use of your User Content as contemplated by this EULA, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Farm Hill to violate any law or regulation.
7.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Farm Hill may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this EULA or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Farm Hill with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to this EULA, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Farm Hill does not permit copyright-infringing activities on the Service.
8. Prohibited Conduct.
BY USING THE SERVICE YOU AGREE NOT TO:
8.1 provide payment, delivery, order, personal or other information that is incorrect or inaccurate;
8.2 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
8.3 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
8.4 post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
8.5 interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
8.6 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
8.7 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
8.8 bypass any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;
8.9 use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;
8.10 decipher, reverse engineer, decompile or disassemble the Service or the App, or the software used to provide the Service or the App, in whole or in part, or authorize, direct, or cause a third party to do so;
8.11 use, display, mirror, frame or utilize framing techniques to enclose the Service or User Content, or any portion thereof, unless and solely to the extent Farm Hill makes available the means for embedding any part of the Service or the User Content;
8.12 access, tamper with, or use non-public areas of the Service, Farm Hill’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Farm Hill’s providers;
8.13 use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party;
8.14 sell or otherwise transfer the access granted under this EULA or any Materials (as defined in Section 13) or any right or ability to view, access, or use any Material; or
8.15 attempt to do any of the acts described in this Section 8, or assist or permit any person in engaging in any of the acts described in this Section 8.
9. Termination of Use; Discontinuation and Modification of the Service.
You may terminate your account at any time by contacting customer service at support@farmhill.com. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of this EULA, your permission from us to use the Service will terminate automatically. In addition, Farm Hill may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
10. Additional Fees.
You agree that your use of the App may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms;
11. Location-Based Services.
Some of the features of the Service may enable Farm Hill to access your location in order to tailor your experience with the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you must enable certain features of your mobile phone, such as GPS, Wi-Fi, and Bluetooth, which enable Farm Hill to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. To the extent your location is collected through Wi-Fi or Bluetooth sensors, such sensors, and the associated data services, may be provided by a third party, and you agree and acknowledge that such third party may access such information for the purpose of providing such data services to Farm Hill. You will be given the option to automatically enable the provision of some Location-based Services through the App, and to enable or disable such Location-based Services at any time through the App’s Settings menu. If you choose to disable any Location-based Services on your device and/or opt out of any Location-based Services through the App’s Settings menu, you will not be able to utilize certain features of the Service. By enabling Location-based Services on your device, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the Service, (ii) Farm Hill may provide Location-based Services related to and based on your then-current location, and (iii) Farm Hill may use any such information collected in connection with the provision of Location-based Services in connection with its provision of the Service. PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND FARM HILL DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.
12. Consent to Use of Data.
You agree that Farm Hill may collect and use technical data and related information, including but not limited to UDID and other technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Service, and to anonymously track and report your activity inside of the Service, including for analytics purposes. If you are located outside of the United States, you expressly consent to the transfer and processing of your data outside your home jurisdiction. Please see Farm Hill’s Privacy Policy, (https://www.farmhill.com/privacypolicy) for more information regarding information Farm Hill collects, and how it uses and discloses that information.
13. IP Ownership, Reservation of Rights.
The Service, including the App, is owned and operated by Farm Hill. The App, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service (the “Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Farm Hill, all Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of Farm Hill or its subsidiaries or affiliated companies and/or its third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any use of the Materials except as expressly authorized hereunder. Farm Hill reserves all rights not expressly granted in this EULA. You shall not acquire any right, title or interest to the Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.
14. Third Party Software.
The software you download consists of a package of components, including certain third party software (“Third Party Software”) provided under separate license terms (the “Third Party Terms”), as described in more detail online at http://www.farmhill.com/licenses. Your use of the Third Party Software in conjunction with the App in a manner consistent with this EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in this EULA is intended to impose further restrictions on your use of the Third Party Software.
15. Privacy Policy; Additional Terms
15.1 Privacy Policy. Please read the Farm Hill Privacy Policy (http://www.farmhill.com/privacypolicy) carefully for information relating to our collection, use, storage and disclosure of your personal information. The Farm Hill Privacy Policy is incorporated by this reference into, and made a part of, this EULA.
15.2 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Service, subject to Section 16. All Additional Terms are incorporated by this reference into, and made a part of, this EULA.
16. Modification of this EULA.
We reserve the right, at our discretion, to change this EULA on a going-forward basis at any time. Please check this EULA periodically for changes. If a change to this EULA materially modifies your rights or obligations, you will be required to accept the modified EULA in order to continue to use the Service. The EULA will be identified as of the most recent date of revision and will be effective immediately upon being made available through the App, except as follows: a) in the event any such modification materially alters your rights hereunder, we will attempt to notify you directly through a message sent to the email address you have provided to Farm Hill, if any, or through a pop-up window or other notification when you access or use the App or the Service, b) such materially modified EULA will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you, and c) no modifications to this EULA will apply to any dispute between you and Farm Hill that arose prior to the date of such modification. Your use of the Service after modifications to the EULA become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of the EULA or any modifications thereof, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
17. Feedback.
If you provide Farm Hill with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Service (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Farm Hill shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Service. You hereby grant Farm Hill a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose.
18. Indemnity.
You are responsible for your use of the Service, and you will defend and indemnify Farm Hill and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Farm Hill Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this EULA, any representation, warranty, or agreement referenced in this EULA, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
19. Disclaimers; No Warranties
THE APP, SERVICE, PURCHASES MADE THROUGH THE APP AND SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE APP AND SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FARM HILL ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, PURCHASES MADE THROUGH THE SERVICE, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE FARM HILL ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. FARM HILL EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION-BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. FARM HILL FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE. FARM HILL DOES NOT GUARANTEE THE ITEMS YOU ORDER WILL ARRIVE AT YOUR PREFERRED PROPER SERVING TEMPERATURE OR THAT THOSE ITEMS WILL MEET YOUR EXPECTATIONS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE FARM HILL ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS EULA. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
20. Limitation of Liability
IN NO EVENT WILL THE FARM HILL ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FARM HILL ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 24.4(iii), THE AGGREGATE LIABILITY OF THE FARM HILL ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS EULA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO FARM HILL FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS EULA. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EULA. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. THIRD PARTY DISPUTES.
FARM HILL IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE FARM HILL (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
22. Governing Law.
This EULA is governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under this EULA, then you and Farm Hill agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Mateo County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
23. General.
This EULA, together with the Privacy Policy and any other agreements expressly incorporated by reference into this EULA, are the entire and exclusive understanding and agreement between you and Farm Hill regarding your use of the Service. Except as expressly permitted above, this EULA may be amended only by a written agreement signed by authorized representatives of all parties to this EULA. You may not assign or transfer this EULA or your rights under this EULA, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this EULA at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this EULA, or any provision of this EULA, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this EULA is for convenience only and will not have any impact on the interpretation of any provision. If any part of this EULA is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of this EULA, Sections 2, 5 through 27, along with the Privacy Policy and any other accompanying agreements, will survive.
24. Dispute Resolution and Arbitration
24.1 Generally. In the interest of resolving disputes between you and Farm Hill in the most expedient and cost effective manner, you and Farm Hill agree that every dispute arising in connection with this EULA will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND FARM HILL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
24.2 Exceptions. Despite the provisions of Section 24.1, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
24.3 Arbitrator. Any arbitration between you and Farm Hill will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Farm Hill.
24.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Farm Hill's address for Notice is: Farm Hill, 1531 Main St, Redwood City, CA 94063. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Farm Hill may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Farm Hill must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Farm Hill will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Farm Hill in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
24.5 Fees. If you commence arbitration in accordance with this EULA, Farm Hill will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Mateo County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Farm Hill for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
24.6 No Class Actions. YOU AND FARM HILL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Farm Hill agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
24.7 Modifications to this Arbitration Provision. If Farm Hill makes any future change to this arbitration provision, other than a change to Farm Hill's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Farm Hill's address for Notice, in which case your account with Farm Hill will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
24.8 Enforceability. If Section 24.6 is found to be unenforceable or if the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section 24 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 21 will govern any action arising out of or related to this EULA.
25. Consent to Electronic Communications.
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
26. Contact Information.
The App and the Service is offered by Farm Hill, located at 1531 Main St, Redwood City, 94063. You may contact us by sending correspondence to that address or by emailing us at support@farmhill.com.
27. Notice Regarding Apple.
If you are using our mobile applications on an iOS device, the terms of this Section 27 apply. You acknowledge that this EULA is between you and Farm Hill only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you. You hereby represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.