Effective as of January 27, 2018
Welcome to TEND™, a proprietary web-based software-as-a-service platform provided by Spiraledge,
Inc., d/b/a/ TEND (hereinafter, “TEND
” or “we
” or “us
” or “our
”) to help
organic and small scale farms manage the planning, production, marketing, and sales aspects of their
farm business and operations. The TEND platform comprises the TEND
mobile application, the TEND point-of-sale mobile application, and all other software tools,
applications and services as may be made available from time to time by TEND (collectively, the “TEND
). To learn more about the farm management tools and services available from
TEND, please click here
(as well as any additional terms and policies expressly referenced or incorporated herein
or therein), all of which, together, constitute a legally binding contract between each farm and its
CAREFULLY. If you do not
, please do not use the TEND Platform.
YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH BINDING ARBITRATION ON AN INDIVIDUAL
BASIS AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION. PLEASE SEE SECTION 6 (Disclaimer of
Warranties; Limitations of Liability) AND SECTION 7 (Dispute Resolution by Binding
means third-party vendors that provide products and/or services for the
operation of the TEND Platform. For example, TEND uses a third-party vendor (currently
online/mobile payment processing services for the TEND Platform.
“TEND Software” means any and all software tools, applications and services, whether
or not downloadable, comprised in or accessible on or through the TEND Platform. For
“TEND Content” means any and all content, data and information (in whatever form or
medium) comprised in or accessible on or through the TEND Platform, including, without
limitation: text, graphics, designs, artworks, images, photos, videos, audios, forms and
templates (such as those designed to help users track, record, or organize their farm data,
generate analytics reports, build their farm websites/online stores, etc., and whether or
not downloadable, printable, or customizable), instructions, descriptions, messages,
advertisements, and TEND Trademarks (as defined below); but specifically excluding any User
Content (as defined below). For the avoidance of doubt, “TEND Content” also
includes the following: (i) the “look and feel” and user interface designs of the TEND
platform and its components; and (ii) the programming code (including HTML code) of the TEND
platform and its components, whether in human-readable or machine-readable form. For
“TEND Trademarks” means, collectively, the “Tend” name and logo, the Tend.ag domain
name, the Tend.com domain name, and any and all other marks and logos owned or used by TEND,
whether existing now or in the future, and whether registered or unregistered. As used
herein, TEND Trademarks also include its Suppliers’ marks and logos as used by TEND under
“User Content” means any and all of the following: (i) account information provided
by users, including identifying information about themselves and their farms; (ii) farm
business and operational data provided by users in connection with their use of the TEND
Platform, including, for example, farm crops, yields, and sales data, and farm customer
contact lists; (iii) farm analytics generated by users through the use of the analytics
tools of the TEND Platform; (iv) user-provided photos, images, artworks, videos, audios,
advertisements, descriptions, messages, and other content about their farms, and including
also logos, trademarks, service marks, trade names and other trade identifiers associated
with their farms; and (v) User Feedback (as defined below). To the extent your User
Content includes any element of your identity (name, voice, photograph, likeness,
biographical information, etc.), you acknowledge and agree that any such element of your
identity will be treated as part of your User Content.
“User Feedback” means any idea, opinion, suggestion, comment, review, or other
feedback (whether solicited or unsolicited) provided by users to TEND in connection with
their use of the TEND Platform.
2. GENERAL PROVISIONS.
2.1 Eligibility. You represent and warrant that you have
reached the age of majority in your state of resident and have full legal capacity to enter into a
farm organization or entity, you represent and warrant that you are duly authorized to agree to
include the farm organization or entity that you are representing).
2.2 Compliance with Applicable Laws. Use of the TEND
Platform is subject to all applicable laws and regulations. You acknowledge and agree that it
is solely and entirely your responsibility to comply with all laws and regulations applicable to
your farm and/or your use of the TEND Platform. Use of the TEND Platform is prohibited if such
use would be deemed illegal under applicable laws or regulations in the jurisdiction in which your
2.3 Notice to California Residents. To comply with
California law, TEND provides the following notice to users who are California residents:
TEND’s legal name is Spiraledge, Inc., d/b/a/ TEND.
TEND’s address is 4300 Port Union Road, West Chester, OH 45011.
For complaints, California residents may contact the Complaint Assistance Unit of the
Division of Consumer Services of the California Department of Consumer Affairs, in writing
at 1625 N. Market Blvd., Suite N-112, Sacramento, CA 95834, or by telephone at (916) 445-1254
, or by email at [email protected]
2.4 International Use. The TEND Platform is hosted and
operated within and from the U.S. TEND and its Suppliers do not represent
or warrant that the TEND Platform will be appropriate or available for use in locations outside the
U.S. If you access the TEND Platform from a location outside the U.S., you acknowledge and
agree that you do so of your own volition and at your own risk and that you are solely and entirely
responsible for complying with all applicable local laws and regulations.
2.5 Reservation of Rights. You acknowledge and agree that
we reserve the right to: (i) cease (whether temporarily or permanently) providing the TEND Platform
(in whole or in part), or any TEND Software or TEND Content, to you or to users generally, at any
time and with or without reason, by giving 30 days advance notice of our intention to do so; and
(ii) immediately terminate your access to the TEND Platform (including your account and any
subscription you have with TEND), if we determine, in our sole judgment, that you are in violation
its Suppliers to liability of any kind, or may adversely affect the reputation or goodwill of TEND
or its Suppliers.
soon as your acceptance hereof by registering a membership account on the TEND Platform, and will
remain in force and effect for as long as you are allowed to continue to use the TEND Platform.
We respect our users’ privacy. Please
which describes our data
collection, use and sharing practices associated with the TEND Platform.
2.8 Ownership. The TEND Platform, including all TEND
Software, TEND Content and TEND Trademarks, and all rights, title and interest therein and thereto
(including, without limitation, all copyrights, moral rights, trademark rights, trade dress rights,
trade secret rights, patent rights, and all other intellectual property or proprietary rights), are
the property of TEND and/or its Suppliers, and are protected by U.S. and foreign intellectual
property and other laws. Other than a limited license to use as specified in Section 4.1 of
unauthorized use or exploitation of the property of TEND and/or its Suppliers is strictly prohibited
and may result in civil and/or criminal penalties. TEND and its Suppliers reserve all rights
not expressly granted herein. There are no implied rights or licenses granted to you under
You retain ownership of your User Content. However, by using the TEND Platform you expressly
2.9 Electronic Communications. When you use the TEND
Platform, you are communicating with us electronically, and you consent to receiving communications
from us electronically, including emails, push messages, in-app messages, and messages posted to
your account on the TEND Platform. You acknowledge and agree that all agreements, notices,
disclosures, and other communications that we provide to you electronically satisfy any legal
requirement that the same be in writing.
2.10 Mobile Service Charges. By using the TEND Platform on
a mobile device (including downloading any TEND Content or TEND Software onto a mobile device), you
acknowledge and agree that standard carrier charges may apply and that depending on your wireless
service plan, your wireless carrier may impose data and/or other charges when you use the TEND
Platform, and that any and all such charges will solely be your responsibility.
2.11 Export Controls. The TEND Platform may be subject to
U.S. export control laws and regulations. You agree not to export, re-export, or transfer,
directly or indirectly, any U.S. technical data acquired from TEND, or any products utilizing such
data, in violation of the U.S. export laws or regulations.
3. ACCOUNT REGISTRATION; SUBSCRIPTION.
3.1 Account Registration. To use the TEND Platform, you
must register an account.
By registering an account on the TEND Platform, you represent
and warrant that all account information you submit is your own information and is truthful
and accurate. You acknowledge and agree that we may immediately suspend or terminate
your account and your access to the TEND Platform if we have any reason to believe that you
have misrepresented or provided false account information to us.
It is your responsibility to keep your farm’s TEND account
information (including contact, billing, and other information about your farm) accurate and
current. This includes updating your farm’s account information in the event of a
change of ownership of your farm. For example, if your farm is sold or transferred to
a new owner, your farm’s TEND account will need be updated to reflect the new owner’s
information, and by continuing to use the account, the new owner will be deemed to have
. Failure to keep your farm’s account information up to date may result
in suspension or cancellation of the account (at TEND’s sole discretion). As the
account holder, you are responsible for safeguarding your farm’s account login information,
and you should notify us immediately in the event your account login has been stolen, lost,
or used by another without your permission. If your farm’s account has two or more
authorized users, you are responsible for all your farm users’ activities under the account.
3.2 Subscription. Access to certain tools and service
features on the TEND Platform may require a paid subscription (“Subscription”).
Subscription may be month-to-month or on a yearly (i.e., 12 months) basis.
By purchasing a Subscription, you represent and warrant that you
are the account holder (or an authorized user) of the credit/debit card or payment account
that you use to pay for your Subscription purchase, and such payment card or account has
sufficient funds to cover your Subscription purchase. You acknowledge and agree that
we may immediately suspend or terminate your Subscription and your access to the TEND
Platform if we have any reason to believe that you have misrepresented or provided false
payment information to us.
Once your Subscription purchase is processed and completed, we
will send you a Subscription confirmation email that includes details about your
Subscription, including the start date and end date of your Subscription, your renewal
option, and the applicable Subscription fee charged to your payment card or account.
If you believe there is an error in any detail about your Subscription, please immediately
contact our customer service at [email protected]
Unless you cancel your Subscription before its scheduled end
date pursuant to Section 3.2(v) below, all Subscriptions are subject to automatic renewal,
which means that, on the scheduled end date of your Subscription, your payment card/account
that is on file with TEND will automatically be charged the then-applicable Subscription fee
for a new Subscription term. A monthly Subscription will automatically renew for
another month, and a yearly Subscription will automatically renew for another 12-month
period; except that you may elect to have your Subscription renewed to a different plan
(i.e., from monthly to yearly, or from yearly to monthly).
Unless expressly otherwise indicated by TEND, a purchased
Subscription is NON-REFUNDABLE. This means that if you cancel
your Subscription before its scheduled end date, cancellation will not
take effect until the scheduled end date of your Subscription, and the Subscription fee you
already paid will not be refunded.
All cancellation requests must be submitted electronically by clicking “Cancel
Subscription” in the Subscription settings of the web application.using our online
cancellation request form (click here). Once processing is completed, we will send
you a cancellation confirmation via email, and you will have access to your account
until the end of the paid billing cycle. Once cancellation takes effect, you will no
longer have access to those tools and service features covered by your cancelled
Subscription, including any User Content you have stored on the TEND Platform using
those tools and service features. It is your responsibility to download such
stored User Content from the TEND Platform prior to cancelling your Subscription.
Upon cancellation of your Subscription, we reserve the right to delete such stored User
Content from the TEND Platform.
IMPORTANT: If you do not want your Subscription renewed, please be
sure to cancel your Subscription prior to its scheduled end date.
Otherwise, we cannot guarantee that your Subscription will be
cancelled in time so that you won’t be charged for renewal.
From time to time we may offer our users an opportunity to try
out some of our Subscription-based tools and features for free for a limited time (“Free
Trial”). If you participate in a Free Trial, you will pay nothing during the
specified trial period for using the applicable tools and features. At the conclusion
of the Free Trial, you will need to purchase a Subscription if you wish to continue to use
the applicable tools and features.
We reserve the right to change our Subscription plan terms (including pricing) at any
time. If you have an existing Subscription, we will notify you of any price change
for the upcoming renewal term at least fifteen (15) days before the beginning of the
renewal term in which the new price will be effective, and such notice may be sent via
email and/or posted directly to your account on the TEND Platform.
IMPORTANT: If you do not cancel your Subscription prior
to its scheduled end date pursuant to Section 3.2(v) above, you will be deemed to have
agreed to the new price and have authorized us to charge your payment card/account based
on the new price at the time of renewal of your Subscription.
4. USE OF THE TEND PLATFORM.
4.1 Our Limited License to You. Subject to
non-exclusive, non-transferable, non-sublicensable, limited license to access the TEND Platform
(including TEND Software and TEND Content) solely for your own lawful use in connection with the
management and operation of your farm business.
You acknowledge and agree that: (a) the above license is
personal to you, which means that only your farm (including those acting on your behalf,
such as your employees and agents) are authorized to access the TEND Platform and that you
may not sell, lend, rent, lease, transfer, assign, sublicense, or
otherwise provide such access to any third party (except with TEND’s express written
approval); and (b) the above license is immediately revocable and terminable by TEND, if
any applicable law or that your use of the TEND Platform may expose TEND or its Suppliers to
liability of any kind, or may adversely affect the reputation or goodwill of TEND or its
You further acknowledge and agree that your use of any TEND
Software, including any downloaded TEND Software, is subject to the following additional
terms and conditions:
Any such TEND Software is licensed, and NOT
sold or transferred, to you.
You may not distribute, sell, offer
to sell, lend, rent, lease, transfer, or otherwise furnish any TEND Software to a
You may not modify, translate, or
otherwise make derivative works from, or reverse engineer, decompile, disassemble,
or otherwise attempt to derive the source code of, any TEND Software.
You may not bypass, disable,
deactivate or render ineffective any copy control, copy protection, or other digital
rights management (DRM) mechanism, scheme, device, program, tool, code or file
contained or embedded in or associated with any TEND Software.
All TEND Software is subject to U.S. export control laws
and regulations and may not be downloaded or otherwise exported
or re-exported (i) into (or to a national or resident of) Sudan, Libya, North Korea,
Iran, Syria, or any other country to which the U.S. has embargoed goods, or (ii) to
anyone on the U.S. Treasury Department's list of Specially Designated Nationals or
the U.S. Commerce Department’s Table of Deny Orders. By downloading,
installing, or using any TEND Software, you represent and warrant that you are not
located in, under the control of, or a national or resident of any such country or
on any such list. You may not download, install, use,
export or re-export any TEND Software or any underlying information or technology
except in full compliance with U.S. export control laws and regulations.
You acknowledge and agree that, unless expressly
otherwise indicated by TEND, TEND and its Suppliers are not
obligated or required to provide any assistance or support (including any technical
or customer support) with respect to your download, installation, or use of any TEND
From time to time TEND and/or its Suppliers may make
changes and updates to certain TEND Software, and you understand that it may be
necessary for you to download and install the changes and updates in order for such
TEND Software to function properly on your computer or mobile device.
4.2 Prohibited Uses. Any unauthorized or unlawful use of
the TEND Platform or any TEND Software or TEND Content is strictly prohibited. Specifically,
you may not:
use the TEND Platform or any TEND Software or TEND Content for any unlawful purpose,
including, without limitation: operating any scam or fraudulent scheme (such as a
pyramid or ponzi scheme); impersonating another, or making unauthorized use of another’s
information; selling or offering to sell products without requisite licenses, permits,
approvals or certifications; conducting false or deceptive advertising, or engaging in any
other unfair trade practice; disseminating junk email, spam, or other unsolicited and
unwanted messages or communications; or collecting personal information from or about others
(including your farm customers) without their knowledge or consent, including through
“phishing” or under any other false pretense;
use the TEND Platform or any TEND Software or TEND Content to upload, store, display,
transmit, publish or distribute any content, data or information that: (i) is unlawful;
threatening; harassing; abusive; hateful; discriminatory; derogatory; obscene; vulgar;
pornographic; excessively violent; false, deceptive or misleading; defamatory or libelous;
or otherwise offensive; (ii) promotes, solicits or aids crimes or illegal activities; (iii)
promotes or solicits violence; (iv) promotes or solicits gambling, public intoxication,
underage drinking, or drug abuse; (v) promotes or solicits animal cruelty; (vi) contains,
promotes, or links to fake offers, scams, or other fraudulent schemes (such as pyramid
schemes and ponzi schemes); (vii) contains, promotes, or links to viruses, worms, Trojan
horses, spyware, malware, ransomware, or other malicious, harmful or disruptive code or
material that is designed to damage, interfere with, intercept, lock out, or expropriate any
software, hardware, information or data; or (viii) violates another’s copyright, trademark,
trade secret, patent, right of publicity, right of privacy, contractual right, or other
property or proprietary right of any kind (including, without limitation: using another’s
name, likeness, photo, or other identity without consent);
copy, reproduce, distribute, sell, lend, rent, lease, or modify, translate, or otherwise
make derivative works from, the TEND Platform or any TEND Software or TEND Content;
use the TEND Platform for purposes of monitoring its availability, performance or
functionality, or for any other benchmarking or competitive purposes, including, without
limitation, for the purpose of developing any product or service to compete against
offer the use of the TEND Platform or any TEND Software or TEND Content as part of a
service bureau, time-sharing, or other similar arrangement;
interfere in any way with the operation of the TEND Platform or any TEND Software or TEND
Content, or any server, network or system associated therewith, including, without
limitation: hacking, mail-bombing, flooding, overloading, or making “denial of service”
attacks; probing, scanning or testing the vulnerability of the TEND Platform or any TEND
Software or TEND Content, or any server, network or system associated therewith; breaching
or circumventing firewall, encryption, security or authentication routines; accessing data
not intended for you, or accessing another’s account that you are not expressly authorized
use any automated program, tool or process (including, without limitation, web crawlers,
robots, bots, spiders, or automated agents or scripts) to access the TEND Platform, or to
register multiple accounts on the TEND Platform, or to generate automated searches,
requests, or queries to the TEND Platform, or to strip, scrape, extract, or mine data or
information from the TEND Platform (except, however, that we conditionally grant to the
operators of public search engines revocable permission to use spiders to copy materials
from the TEND Platform for the sole purpose of and solely to the extent necessary for
creating publicly available searchable indices of the materials, but not caches or archives
of such materials, subject to the parameters set forth in our robots.txt file);
remove, erase, conceal, alter, or otherwise tamper with TEND or third-party intellectual
property, attribution, or other legal notices included in or associated with the TEND
Platform or any TEND Software or TEND Content;
frame, or otherwise create a browser or border environment around, any portion of the TEND
Platform, or any TEND Software or TEND Content;
use any of TEND Trademarks: (i) for advertising, promotional, marketing, sale, or any other
commercial or for-profit purposes (unless with the express prior written consent of TEND);
(ii) in any way that falsely suggests or implies an association or affiliation with, or
endorsement, sponsorship or approval by, TEND; or (iii) in any way that defames or
disparages TEND or its Suppliers; or
4.3 User Content.
By using the TEND Platform, and for as long as you maintain an
account on the TEND Platform, you expressly and irrevocably give TEND permission:
to do all things with your User Content as are
reasonably necessary for TEND to provide, host, operate, manage, maintain and
improve the TEND Platform, including performing tasks with your User Content as
directed by you, such as: tracking, recording, storing, processing, organizing and
managing your farm data; generating and reporting your requested analytics; enabling
you to build and publish your farm website/online store; enabling you to organize
and host farm events; and enabling you to stay connected with your farm customers
through emails, newsletters, events, etc.; and
to use, reproduce, publicly display, and distribute your
User Content for the purposes of marketing and promoting the TEND Platform
(provided, however, that TEND will not publish or disclose to others your farm
business or operational data or analytics without your express written
If you submit User Feedback to TEND, you acknowledge and agree
You expressly and irrevocably give TEND permission to
use your User Feedback indefinitely for any and all purposes
(including, without limitation, for marketing and promoting the TEND Platform, for
making improvements to the TEND Platform, and for developing new TEND products and
Your submission of User Feedback is voluntary and
consensual and is made without any condition or reservation of rights, including,
without limitation, any condition of compensation, payment, credit, attribution,
secrecy or confidentiality. No contractual, fiduciary or confidential
relationship of any kind (whether express or implied) is created between you and
TEND by reason of your submission of User Feedback. Your submission is not
returnable and may be retained indefinitely by TEND.
You represent and warrant that:
you own or control all rights (including intellectual
property rights) necessary for TEND to make use of your User Content as expressly
your User Content does not contain
any third party’s confidential or proprietary information, does not
violate any right (including, without limitation, any intellectual property right,
right of privacy, or right of publicity) of any third party, and does
not violate any applicable law.
You acknowledge and agree that TEND will have the absolute right
to remove, delete, or block or disable access to, any of your User Content which TEND
expose TEND or its Suppliers to liability of any kind, or may adversely affect the
reputation or goodwill of TEND or its Suppliers.
4.4 Aggregate Platform Data. By using the TEND Platform,
you acknowledge and agree that TEND will be free to: (i) compile and combine your and other users’
farm data and analytics (after de-identifying such data and analytics as necessary so that they do
not identify any particular user or farm) to create aggregated and anonymized data in connection
with measuring the usage and performance of the TEND Platform (hereinafter, “Aggregate Platform
Data”); and (ii) reproduce, disclose to others, publish, distribute, and otherwise use such
Aggregate Platform Data indefinitely for any and all purposes (including, without limitation, for
marketing and promoting the TEND Platform, for making improvements to the TEND Platform, and for
developing new TEND products and services).
4.5 Use of TEND Forms and Templates. The TEND Platform
include electronic forms and templates that are designed to help users to track, record, or organize
farm data, generate analytics reports, build farm websites/online stores, etc. You acknowledge
and agree that: (i) all such forms and templates constitute TEND Content; (ii) you are granted a
limited license to use such forms and templates as described in Section 4.1 above and you may
incorporate your User Content into such forms and templates, but you do not
acquire any title, ownership or exclusive right in such forms and templates by doing so; (iv) other
users are free to use the same forms and templates in a way similar to yours pursuant to these Terms
of Use; and (v) you will keep intact and not remove, erase, conceal, alter, or
otherwise tamper with TEND or third-party intellectual property, attribution, and other legal
notices contained in such forms and templates.
4.6 Use of TEND Sales Tools. The TEND Platform include
tools that enable farms to sell products directly from their farm websites/online stores. By
using such tools, you acknowledge and agree as follows:
All products are sold by you, and not by
TEND or its Suppliers. YOU ASSUME ALL RESPONSIBILITIES FOR PRODUCTS YOU SELL,
including: (i) the responsibility to ensure the safety, quality, and proper labeling and
packaging of your products and to comply with all laws and regulations and industry
standards applicable to your products; (ii) the responsibility to make clear and truthful
disclosure to your customers of all material facts, information, and sales terms and
conditions concerning your products; (iii) the responsibility to arrange for shipping and
delivery of your products to your customers; (iv) the responsibility to provide post-sale
customer service and support (including processing returns and refunds) to your customers;
and (v) the responsibility to handle and resolve all claims and disputes with your customers
concerning your products.
In no event will TEND or its Suppliers have any responsibility
or liability of any kind for any products you sell, including, without limitation, any
responsibility or liability for personal injuries (including illness and death) and/or
economic losses suffered by your customers as a result of: (a) the consumption or use of any
product you sold; (b) your non-delivery or late delivery of any product; (c) your failure or
refusal to accept a return, to make an exchange, to issue a refund or credit, or to honor a
product warranty; (d) your misrepresentation or non-disclosure of any material fact
concerning your products; or (e) any unlawful, unfair, or deceptive business or trade
practice by you in your transactions or dealings with customers.
You will pay the applicable designated Supplier for payment
processing (currently Square) a service fee (click here
for Square’s current rates) for each sales transaction you make (hereinafter, “Transaction
), regardless of the method of payment by your customers.
4.7 Use of Customer Communication Tools. The TEND Platform
include tools that enable farms to stay connected with their farm customers through emails,
newsletters, events, etc. By using such tools, you acknowledge and agree that you assume all
responsibilities for your collection, use and disclosure of your customers’ personal information
(including their names and contact information such as email addresses), as well as for all customer
communications (emails, newsletters, events, etc.) distributed or directed by you, including: (a)
the responsibility to make clear and truthful disclosure of your data collection, use and sharing
practices to your customers; and (b) the responsibility to comply with all applicable laws and
regulations related to data privacy and marketing to consumers (including, without limitation, laws
and regulations pertaining to unsolicited marketing emails, mobile text messages, and telephone
4.8 Use of TEND Recommendations, Reports, etc. To the
extent you receive any recommendation, report or data from the TEND Platform concerning your farm
business or operations, you acknowledge and agree that: (i) any such recommendation, report or data
is for general informational purposes only and should not be viewed or relied
upon as professional or expert advice; and (ii) TEND is not responsible or
liable in any way for the results of your reliance upon any such recommendation, report or data,
including for any losses (financial or otherwise), damages, costs or expenses that you may incur as
a result of following any such recommendation, report or data. You should always do your own
independent research (including consulting farm experts) prior to making any business or financial
decision concerning your farm.
4.9 Third-Party Links & Ads.
The TEND Platform may
display links to or advertisements of third-party websites or products or services that are not
provided, operated, or controlled by TEND (hereinafter, “Third-Party Sites/Products/Services”
The display of such links or ads does not
constitute or imply TEND’s
sponsorship, endorsement or approval of Third-Party Sites/Products/Services, and TEND is not
responsible for, and does not
make any representation or warranty (whether
express or implied) with respect to, any Third-Party Sites/Products/Services. If you choose to
use Third-Party Sites/Products/Services, you do so of your own volition and at your own risk.
You understand that when using Third-Party Sites/Products/Services, you are subject to the terms of
use and privacy policies of the third-party providers, and not
these Terms of
. Any claim you
may have in relation to Third-Party Sites/Products/Services must be brought directly against the
third-party providers. You acknowledge and agree that under no circumstances will TEND be
liable in any way for any act or omission of the third-party providers or for any injury, loss or
damage incurred by you as a result of your use of Third-Party Sites/Products/Services.
4.10 Linking to TEND. You may link to the TEND Platform,
provided that you comply with the following terms and conditions:
Your link must be a text-only link. The TEND logo may not be
used for linking purposes, except with the express prior written consent of TEND.
You do not frame or otherwise create a browser or border environment
around any portion of the TEND Platform or any TEND Software or TEND Content.
You do not link to the TEND Platform from any adult or sexually
You do not misrepresent or falsely suggest that your website or
product or service is sponsored, endorsed or approved by, or affiliated with, TEND.
You do not disparage TEND, or publish false, misleading or inaccurate
information about TEND.
You also acknowledge and agree that TEND is under no obligation to support your link to the TEND
Platform and may block traffic from your website at any time and for any reason.
4.11 User Indemnity. By using the TEND Platform, you agree
to (i) indemnify and hold harmless TEND and its Suppliers (including their respective officers,
directors, employees, agents and representatives) (collectively, “TEND and Related Parties”)
from and against any claim, action, suit, proceeding or investigation brought by a third party
(including by any of your customers) (hereinafter, a “Third Party Claim”) and (ii) pay any
and all damages, settlements, judgments, awards, fines, costs and expenses (including, without
limitation, court costs and attorneys’ fees) associated with such Third Party Claim, to the extent
such Third Party Claim arises out of or relates to any of the following:
your use or misuse of, or your reliance upon the TEND Platform
(including your use or misuse of, or your reliance upon, any TEND Software or TEND Content
or another’s User Content);
any of your User Content;
any product sold or provided by you;
any of your transactions or dealings with your customers, other
users, or any other third parties;
any of your communications to your customers;
the conduct of your farm business, including any of your
business or trade practices.
NOTE: This provision does not require you to indemnify any of
TEND and Related Parties for any unconscionable commercial practice by such party, or for such
party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression,
or omission of any material fact in connection with the TEND Platform.
TEND reserves the right, at your expense, to assume the legal defense of a Third Party Claim for
which you are required to indemnify TEND and its Suppliers, and you agree to fully cooperate with
TEND in such legal defense. You agree not to settle any Third Party Claim for which you are
required to indemnify TEND and its Suppliers, without the express prior written consent of TEND.
TEND will use reasonable efforts to notify you in the event TEND receives notice of a Third Party
Claim for which you are required to indemnify TEND and its Suppliers; however, TEND’s failure to so
notify you will not in any way excuse or relieve you from your indemnity
5. DMCA POLICY. TEND respects the intellectual property of others
and asks that users of the TEND Platform do the same. To comply with the Digital Millennium
Copyright Act (Title 17, U.S. Code) (hereinafter, “DMCA”), TEND has adopted and implemented a
policy that provides for the prompt removal of allegedly infringing User Content and for the
termination of the account of any user who is determined by TEND to be a repeat infringer. If
you believe that any User Content on the TEND Platform is infringing copyright and should be
removed, please notify TEND’s Designated Agent (listed below) in accordance with the following:
TEND’s Designated Agent: The following is TEND’s Designated Agent for receiving
notifications of claimed copyright infringement:
4300 Port Union Road
West Chester, OH 45011
Notice of Claimed Copyright Infringement: Notification of claimed copyright
infringement must be in writing and sent to TEND’s Designated Agent listed above, and must include
the following information:
a physical or electronic signature of a person authorized to act on behalf of the owner of
an exclusive right that is allegedly infringed;
identification of the copyrighted work claimed to have been infringed, or if multiple
copyrighted works are covered by a single notification, a representative list of such works;
identification of the material that is claimed to be infringing or to be the subject of
infringing activity and that is to be removed or access to which is to be disabled, and
information reasonably sufficient to permit TEND to locate the material;
information reasonably sufficient to permit TEND to contact the complaining party, such as
an address, telephone number, and if available, an electronic mail address at which the
complaining party may be contacted;
a statement that the complaining party has a good faith belief that use of the material in
the manner complained of is not authorized by the copyright owner, its agent, or the law;
a statement that the information in the notification is accurate, and under penalty of
perjury, that the complaining party is authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed.
Counter-Notification to Claimed Copyright Infringement: Under the DMCA, if a notice
of copyright infringement has been filed against your User Content, you may make a
counter-notification with TEND’s Designated Agent listed above. The counter-notification must
be in writing and include the following information:
your physical or electronic signature;
identification of the material that has been removed or to which access has been disabled
and the location at which the material appeared before it was removed or access to it was
a statement by you under penalty of perjury that you have a good faith belief that the
material was removed or disabled as a result of mistake or misidentification; and
your name, address, and telephone number, and a statement that you consent to the
jurisdiction of Federal District Court for the judicial district in which you are located
(or in the State of California, U.S.A., if you reside outside of the U.S.), and that you
will accept service of process from the person who filed the notice of copyright
infringement or an agent of such person.
If TEND receives a valid counter-notification, it may reinstate the removed or disabled User
Content in accordance with the DMCA.
Please note that, under the DMCA, any person who knowingly makes material misrepresentations in a
notification of claimed infringement or in a counter-notification may be liable for damages.
6. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY. By using
the TEND Platform, you acknowledge and agree as follows:
THE TEND PLATFORM (INCLUDING ALL TEND SOFTWARE AND TEND CONTENT)
AND ALL USER CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND,
WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, TEND AND ITS
SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH
RESPECT TO THE TEND PLATFORM (INCLUDING ALL TEND SOFTWARE AND TEND CONTENT) AND ALL USER
CONTENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE AND NON-INFRINGEMENT. WITHOUT
LIMITATION TO THE GENERALITY OF THE FOREGOING, TEND AND ITS SUPPLIERS DO
NOT WARRANT THAT: (A) THE TEND PLATFORM (INCLUDING ALL TEND SOFTWARE
AND TEND CONTENT) AND ALL USER CONTENT WILL BE ACCURATE, ERROR-FREE, UP TO DATE, COMPLETE,
OR USEFUL, OR WILL BE UNINTERRUPTED, OR WILL BE AVAILABLE AT ANY PARTICULAR TIME OR
LOCATION; (B) ANY DEFECT OR ERROR IN THE TEND PLATFORM (INCLUDING ANY TEND SOFTWARE OR TEND
CONTENT) OR IN ANY USER CONTENT WILL BE CORRECTED; OR (C) THE TEND PLATFORM (INCLUDING ALL
TEND SOFTWARE AND TEND CONTENT) AND ALL USER CONTENT WILL BE SECURE AND FREE OF ANY VIRUS OR
OTHER HARMFUL COMPONENT. ANY USE OF OR RELIANCE UPON THE TEND PLATFORM (INCLUDING ANY
TEND SOFTWARE OR TEND CONTENT) OR ANY USER CONTENT IS ENTIRELY AT YOUR OWN RISK.
EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL
TEND AND/OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER USER (WHETHER UNDER CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY, WARRANTY OR ANY OTHER LEGAL OR EQUITABLE THEORY) FOR ANY
DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OR CORRUPTION OF DATA, LOSS OF BUSINESS,
LOSS OF BUSINESS OPPORTUNITY, LOSS OF SALES, LOSS OF INCOME, REVENUE OR PROFIT, LOSS OF
GOODWILL, OR LOST OR WASTED STAFF TIME) ARISING OUT OF OR RELATED TO THE TEND PLATFORM
(INCLUDING ANY TEND SOFTWARE OR TEND CONTENT), OR ANY USER CONTENT, OR YOUR USE OF OR
RELIANCE UPON THE TEND PLATFORM (INCLUDING ANY TEND SOFTWARE OR TEND CONTENT) OR ANY USER
CONTENT, EVEN IF TEND AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL
TEND AND/OR ITS SUPPLIERS BE LIABLE TO ANY USER FOR ANY DAMAGES IN EXCESS OF THE
SUBSCRIPTION FEE AMOUNT (IF ANY) ACTUALLY PAID BY SUCH USER DURING THE 12-MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, DAMAGES
OR LIABILITIES, SOME OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
ACCORDINGLY, NOTHING IN THIS SECTION 6 AFFECTS ANY WARRANTIES, DAMAGES OR LIABILITIES WHICH CANNOT
BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
7. DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER;
CHOICE OF LAW.
We encourage you to contact our Customer Service department if
you have concerns or complaints about the TEND Platform. Generally, customer
complaints can be satisfactorily resolved in this way. If we cannot resolve your
concerns informally, disputes between you and TEND shall be resolved pursuant to this
You and TEND agree to arbitrate all disputes and claims
(including the interpretation and scope of this clause, and the arbitrability of the dispute
or claim) relating to the TEND Platform, including, without limitation, all claims arising
out of or relating to any aspect of your relationship with TEND, whether based in contract,
tort, statute, fraud, misrepresentation or any other legal theory, that arose either before
termination of your relationship with TEND.
Arbitration is more informal than a lawsuit. Arbitration
uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than
in court, and is subject to limited review by courts. Under this Agreement, arbitrators can
award the same individual relief affecting individual parties that a court can award,
including damages and an award of attorneys' fees, if the applicable law allows. BY
AGREEING TO RESOLVE DISPUTES THROUGH ARBITRATION, YOU AND TEND AGREE TO EACH UNCONDITIONALLY
WAIVE THE RIGHT TO A TRIAL BY JURY OR COURT (except small claims court). Instead of
arbitration, either party may bring an individual action in a small claims court for
disputes or claims that are within the scope of the small claims court's authority.
The Federal Arbitration Act governs the interpretation and
enforcement of this arbitration provision. The arbitration shall be conducted before
one commercial arbitrator with substantial experience in resolving commercial contract
disputes, administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and
parties in writing. For more information on JAMS, its rules and procedures, and how to
file an arbitration claim, you may call JAMS at 800-352-5267
visit the JAMS website at http://www.jamsadr.org
Arbitration will proceed at a location that the arbitrator selects within 100 miles of your
primary residence, unless you and TEND agree otherwise.
The arbitrator shall issue a reasoned written decision
sufficient to explain the essential findings and conclusions on which the award is based.
The arbitrator’s award shall be final and may be enforced in any court of competent
In the event that you are able to demonstrate to the arbitrator
that the costs of arbitration will be prohibitive as compared to costs of litigation, TEND
will pay as much of your arbitration filing and hearing fees in connection with the
arbitration as the arbitrator deems necessary to prevent the arbitration from being
cost-prohibitive as compared to the cost of litigation. TEND also reserves the right
in its sole and exclusive discretion to assume responsibility for all of the costs of the
arbitration. However, TEND will not pay your share of the arbitration fees if the
arbitrator finds that either your claim or the relief sought is frivolous or brought for an
improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b).
YOU AND TEND AGREE THAT ANY CLAIMS BROUGHT BY YOU OR TEND WILL
BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND WILL NOT BE BROUGHT AS A CLASS,
REPRESENTATIVE, COLLECTIVE OR PRIVATE ATTORNEY GENERAL ACTION. The arbitrator may not
consolidate more than one person’s claims, and may not otherwise preside over any form of a
class, representative, or private attorney general proceeding. You and TEND agree to
seek only such individual relief – whether in the form of individual damages, an
individualized injunction, or other non-monetary individual relief – as is necessary to
resolve any individual injury that either you or TEND has suffered or may suffer.
The requirement that claims be brought in binding arbitration
only in an individual capacity and not as a representative, private attorney general, or
class member (“Class Action Waiver”) is non-severable. If the Class Action Waiver is
found to be unenforceable, then the entirety of this arbitration provision shall be null and
void, with the exception of the next sentence. In the event the Class Action Waiver is
found to be unenforceable, or in the event the agreement to arbitrate is found to not apply
to a dispute, that such action between you and TEND shall proceed in the federal or state
courts located in Santa Clara County, California.
contrary, TEND agrees that if TEND makes any change to this arbitration provision, such
change will not be applicable to any dispute to which you had previously provided notice to
If you do not want to be bound to this agreement to arbitrate,
you must opt out of it within 30 days of it first becoming applicable to you (i.e., within
agreement). To opt out of this agreement to arbitrate, you must send a letter or
postcard to TEND’s headquarters, to the attention of the “Legal Department” and state that
you do not want to be bound by this arbitration agreement. TEND’s address is 4300 Port Union Road West Chester, OH 45011.
governed by the laws of the State of California, subject to the Federal Arbitration Act,
without regard to its choice of law provisions.
the U.N. Convention on Contracts for the International Sale of Goods, which shall not apply
to any transaction conducted through or otherwise involving the TEND Platform.
8. CHANGES TO TERMS. From time to time, we may also modify these
continued use of the TEND Platform, we will make reasonable efforts to notify you of such changes
(including through email and/or by posting a notice directly to your account), and may also ask you
to affirmatively consent to the changes at the time of your next login on the TEND Platform.
By continuing to use the TEND Platform after such notice and/or consent, you agree to be bound by
your sole and exclusive remedy will be to cancel your account (and your Subscription, if any) and
discontinue use of the TEND Platform.
9. FORCE MAJEURE. Any failure or delay by TEND in the performance
Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake,
elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or
be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any
similar cause beyond the reasonable control of TEND.
deemed invalid, illegal or unenforceable by a court of competent jurisdiction, the invalidity,
illegality or unenforceability of such provision shall not affect the remaining provisions of these
parties and their respective successors, heirs, trustees, administrators, and assigns. These
contemporaneous verbal or written negotiations, understandings, or agreements regarding the subject
11. CONTACT US.
Office of the President
Spiraledge, Inc., c/o TEND
4300 Port Union Road
West Chester, OH 45011
Copyright © 2015-2019 Spiraledge, Inc. All rights reserved.