Terms of Use

Effective as of June 13, 2024

Welcome to the Tend Platform (as defined below) which is our service to help organic and small scale farms manage the planning, production, marketing, and sales aspects of their farm business and operations. To learn more about the Tend Platform, please click here. The Tend Platform is provided by Tend (hereinafter, "Tend" or "we" or "us" or "our").

The use of the Tend Platform is subject to these Terms of Use and our Privacy Policy all of which constitute a legally binding agreement between Tend and each Farm, the Farming Community and Farm Customers (collectively, "you"). Please read these Terms of Use and our Privacy Policy carefully. If you do not agree with anything in these Terms of Use or our Privacy Policy, please do not use the Tend Platform. As provided in greater detail in these Terms of Use, you acknowledge that: (i) you consent to the collection, use, and disclosure of your personal data and information in accordance with our Privacy Policy (the "Privacy Policy"); (ii) the Tend Platform is provided "as is" without any warranties and our liability to you is limited; and (iii) we will resolve any disputes under these Terms of Use through binding arbitration.


1. CERTAIN DEFINITIONS.

As used in these Terms of Use:

  • "Farm" means each farm which has an account with Tend and is using the Tend Platform.
  • "Farm Content" means the following: (i) account information provided by the Farms, including identifying information about the Farm owners and their Farms; (ii) farm business and operational data provided by Farms in connection with their use of the Tend Platform, including, for example, farm crops, yields, and sales data, and farm customer contact lists; (iii) analytics generated by the Farms through the use of the analytics tools of the Tend Platform; and (iv) photos, images, artworks, videos, audios, advertisements, messages, and other content provided by the Farms, and including logos, trademarks, service marks, and trade names associated with the Farms.
  • "Farm Customers" means those customers of the Farms who purchase the Farm Products by using the Tend Platform Farm Store.
  • "Farm Products" means those products purchased by Farm Customers from the Farms by using the Tend Platform Farm Store.
  • "Farming Community" means (i) those members of the farming community and other persons who are interested in the Tend mission and who have a direct relationship with Tend by establishing an account with Tend or (ii) are other users who are accessing and using the Tend Website.
  • "Feedback" means any idea, suggestion, comment, review, or other feedback provided by Farms to Tend in connection with their use of the Tend Platform.
  • "Shopify Store" means the Farm store powered by Shopify.
  • "Suppliers" means third-party vendors that provide products and/or services for the operation of the Tend Platform.
  • "Tend Content" means any and all content, data and information accessible on or through the Tend Platform, including text, graphics, designs, artworks, images, photos, videos, forms and templates (such as those designed to help Farms track, record, or organize their farm data, generate analytic reports, or build their websites or online stores). Tend Content excludes any Farm Content.
  • "Tend Platform" means the Tend website and mobile applications, Tend Software, Tend Content, the Tend Platform Farm Store and all other tools, applications, documentation and services as may be provided by Tend from time to time.
  • "Tend Platform Farm Store" means the Tend Store and the Shopify Store.
  • "Tend Software" means all software, applications and services that are accessible on or through the Tend Platform.
  • "Tend Store" means the farm store built and managed by Tend and powered by Square.
  • "Tend Trademarks" means 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.
  • "You" collectively means the Farms, the Farming Community and the Farm Customers.

2. GENERAL PROVISIONS.

  • 2.1 Eligibility. You represent and warrant that you have full legal capacity to enter into a legally binding contract with Tend. If you are agreeing to these Terms of Use on behalf of a Farm you represent and warrant that you are duly authorized to agree to these Terms of Use on behalf of that Farm and bind it to these Terms of Use.
  • 2.2 Compliance with Applicable Laws. Each Farm acknowledges and agrees that it is solely and entirely its responsibility to comply with all laws and regulations applicable to its Farm and its use of the Tend Platform.
  • 2.3 Notice to California Residents. To comply with California law, Tend provides the following notice to users who are California residents: Our legal name is Tend. Our address is 4300 Port Union Road, West Chester, Ohio 45011. For consumer 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 N112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at [email protected].
  • 2.4 International Use. The Tend Platform is hosted and operated within the U.S. Tend does 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 at your own risk and that you are solely and entirely responsible for complying with all local laws and regulations.
  • 2.5 Reservation of Rights. You acknowledge and agree that we reserve the right to: (i) cease providing the Tend Platform at any time and with or without reason or notice; and (ii) immediately terminate your access to the Tend Platform (including your account), if we determine that you are in violation of these Terms of Use, that your use of the Tend Platform may expose Tend or its Suppliers to liability or may adversely affect the goodwill of Tend or its Suppliers.
  • 2.6 Effective Date of Terms of Use. These Terms of Use will become binding and enforceable on the date that you (i) register for an account on the Tend Platform, (ii) purchase a Farm Product through the Tend Platform Farm Store, or (iii) access the Tend Website.
  • 2.7 Privacy. Please review our Privacy Policy which describes the collection, use and sharing of personal information and data associated with the Tend Platform.
  • 2.8 Ownership. The Tend Platform is the property of Tend and/or its Suppliers, and is 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 these Terms of Use, you have no other right or license with respect to the Tend Platform. Tend and its Suppliers reserve all rights not expressly granted herein. There are no implied rights or licenses granted to you under these Terms of Use. Each Farm retains ownership of its Farm Content. However, by registering an account with Tend, each Farm gives Tend permission to use its Farm Content as described in Section 4.3 of these Terms of Use.
  • 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. You acknowledge and agree that all agreements 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 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 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.
  • 2.12. Google Maps Features and Content. The Tend Platform allows farms to map their growing areas and other farm assets from satellite maps or by entering their dimensions. The Tend Platform uses Google Maps features and content for these functions. The use of Google Maps features and content is subject to the Google Maps/Google Earth Additional Terms of Service which may be found at https://maps.google.com/help/terms_maps.html and the Google Privacy Policy which may be found at https://www.google.com/policies/privacy/. To provide these features and content, Google collects and receives data from end users, including search terms, IP addresses, and latitude/longitude coordinates. You acknowledge and agree that Google and its affiliates may use and retain this data to provide and improve Google products and services, subject to the Google Privacy Policy located above.

3. ACCOUNT REGISTRATION; SUBSCRIPTION.

  • 3.1 Account Registration. To use the Tend Platform, you must register for 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 account information 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 accepted, and will be bound by, these Terms of Use and our Privacy Policy.  Failure to keep your Farm’s account information up to date may result in suspension or cancellation of the account.  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 Farm’s 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 users’ activities under the account.
  • 3.2 Subscription. Access to certain tools and features on the Tend Platform may require a paid subscription ("Subscription"). Subscription may be month-to-month or on a yearly 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 our online cancellation request form ______________.  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 features covered by your Subscription, including any Farm Content you have stored on the Tend Platform.  It is your responsibility to download such Farm Content from the Tend Platform prior to cancelling your Subscription.  Upon cancellation of your Subscription, we will retain your Farm Content as long as we reasonably can; provided, however, we reserve the right to delete your Farm Content from the Tend Platform. In such event, we will give you reasonable notice before we do so.

      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.

    • We may offer our users an opportunity to try out some of our tools and features for free for a limited time (“Free Trial”).  At the conclusion of the Free Trial, you will need to purchase a Subscription if you wish to continue to use such tools and features.
    • We reserve the right to change our Subscription plan 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 BY FARMS.

  • 4.1 Our Limited License to the Farms. Subject to your compliance with these Terms of Use, Tend hereby grants you (i.e., each Farm with an account on the Tend Platform) a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to access the Tend Platform solely for your own 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) is authorized to access the Tend Platform and that you may not provide access to any third party; (b) the above license is immediately revocable and terminable by Tend, if Tend determines, in its sole judgement, that you are in violation of these Terms of Use or that your use of the Tend Platform may expose Tend or its Suppliers to liability, or may adversely affect the goodwill of Tend or its Suppliers; and (c) upon termination or cancellation of your Subscription, the above license shall immediately terminate.
    • You further acknowledge and agree that your use of any Tend Software is subject to the following terms and conditions:
      • Any 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 third party.
      • 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 mechanism, 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 to provide you with any support with respect to your use of any Tend Software.
      • From time to time Tend and/or its Suppliers may make changes and updates to the 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 is strictly prohibited. Specifically, you may not:
    • use the Tend Platform for any unlawful purpose;
    • use the Tend Platform 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 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;
    • copy, reproduce, distribute, sell, lend, rent, lease, or modify, translate, or otherwise make derivative works from the Tend Platform;
    • use the Tend Platform for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including for the purpose of developing any product or service to compete against Tend;
    • interfere in any way with the operation of the Tend Platform, or any server, network or system associated therewith, including: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of the Tend Platform, 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 to access;
    • use any automated program, tool or process 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;
    • 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;
    • frame, or otherwise create a browser or border environment around any portion of the Tend Platform;
    • use any of Tend Trademarks: (i) for advertising, promotional, marketing, sale, or any other commercial or for-profit purposes; (ii) in any way that falsely suggests or implies an association with, or endorsement, sponsorship or approval by, Tend; or (iii) in any way that defames or disparages Tend or its Suppliers; or
    • otherwise use the Tend Platform in a way that violates these Terms of Use or any applicable law.
  • 4.3 Farm Content.
    • By using the Tend Platform, and for as long as you maintain an account on the Tend Platform, each Farm hereby irrevocably gives Tend permission to do all things with its Farm Content which are reasonably necessary for Tend to provide, host, operate, manage, maintain and improve the Tend Platform, including performing tasks with your Farm 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 and events.
    • If you submit Feedback to Tend, you acknowledge and agree as follows:
      • Tend shall own all intellectual property rights in and to such Feedback and Tend may use such Feedback  for any and all purposes (including for marketing and promoting the Tend Platform, for making improvements to the Tend Platform, and for developing new products and services).
      • No contractual, fiduciary or confidential relationship of any kind is created between you and Tend by reason of your submission of Feedback.  Your Feedback is not returnable and may be retained indefinitely by Tend. Tend will pay no royalties or license fees to Farms with respect to the use of their Feedback.
    • You represent and warrant that:
      • you own or control all rights (including intellectual property rights) necessary for Tend to make use of your Farm Content as permitted under these Terms of Use; and
      • your Farm Content does not contain any third party’s confidential or proprietary information, does not violate any right (including 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 disable access to, any of your Farm Content which Tend determines violates these Terms of Use or any applicable law, or may expose Tend or its Suppliers to liability, or may adversely affect the goodwill of Tend or its Suppliers.
  • 4.4 Aggregate Farm Data. We may aggregate or de-identify "Farm Data" (as defined below) so that it may no longer be used to identify you or your Farm ("Aggregate Farm Data") and use such Aggregate Farm Data to analyze the effectiveness and performance of the Tend Platform, to improve and add features to the Tend Platform, to conduct research and for other similar purposes (including for marketing and promoting the Tend Platform, for making improvements to the Tend Platform and for developing new products and services). We will maintain and use de-identified information in anonymous or de-identified form and we will not attempt to reidentify the information, unless required by law. "Farm Data" is defined as farm business and operational data provided by Farms in connection with their use of the Tend Platform, including, for example, farm crops, varieties, crop and variety attributes, yields, sales data and analytics generated by the Farms through the use of the Tend Platform.
  • 4.5 Use of Tend Forms and Templates. The Tend Platform includes electronic forms and templates that are designed to help Farms 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 Farm Content into such forms and templates, but you do not acquire any title, ownership or right in such forms and templates by doing so; (iii) other Farms are free to use the same forms and templates in a way similar to yours pursuant to these Terms of Use; and (iv) 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 includes tools that enable Farm to sell Farm Products by using the Tend Platform Farm Store. By using such tools, each Farm hereby acknowledges and agrees as follows:
    • All Farm Products are sold by you, and not by Tend or its Suppliers. You assume all responsibilities for the Farm Products that you sell, including: (i) the responsibility to ensure the safety, quality, and proper labeling and packaging of your Farm Products and to comply with all laws and regulations and industry standards applicable to such products; (ii) the responsibility to make clear and truthful disclosure to your customers of all material facts, information, and terms and conditions concerning your Farm Products; (iii) the responsibility to arrange for shipping and delivery of your Farm Products to your customers; (iv) the responsibility to provide post-sale customer service and support to your customers; and (v) the responsibility to handle and resolve all claims and disputes with your customers concerning your Farm Products.
    • In no event will Tend or its Suppliers have any responsibility or liability of any kind for any Farm Products you sell, including, without limitation, any responsibility or liability for personal injuries and/or economic losses suffered by any Farm Customer as a result of: (a) the consumption or use of any Farm Products you sell; (b) your non-delivery or late delivery of any Farm Products; (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 Farm Products; or (e) any unlawful, unfair, or deceptive business or trade practice by you in your transactions or dealings with its Farm Customers.
    • You will pay the applicable Supplier for payment processing (currently Square and Shopify) their service or processing fee for each sale of Farm Products you make regardless of the method of payment by your customers.
  • 4.7 Farm Customer Communication Features. The Tend Platform includes features that enable Farms to communicate with their Farm Customers such as through emails, newsletters, events, etc. By using such features, each Farm acknowledges and agrees that (i) it assumes responsibility for the collection, processing and sharing of its customers' personal information and data and for compliance with all laws relating to data privacy and security; and (ii) it assumes responsibility for compliance with all laws relating to marketing to consumers (including unsolicited marketing emails, mobile text messages, and telephone calls).
  • 4.8 Use of Tend Recommendations, Reports. We are committed to supporting each Farm's success with data-driven insights. When utilizing recommendations, reports, or data provided by Tend, please recognize that these resources are intended to supplement your expertise by offering a broad overview, and are not a substitute for professional advice. We encourage you to use them as a starting point for your own detailed research and decision-making process. We are dedicated to delivering quality information but cannot be held responsible for the application of this data or any direct or indirect consequences that may arise from its use. We urge each Farm to conduct independent investigations to ensure decisions are well-informed and tailored to your specific business needs. Each Farm acknowledges and agrees that Tend is not responsible or liable in any way for the results of its reliance upon any such recommendation, report or data, including for any losses (financial or otherwise), damages, costs or expenses that it may incur as a result of following any such recommendation, report or data.
  • 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 ("Third-Party Sites"). The display of such links or ads does not constitute or imply Tend's sponsorship, endorsement or approval of Third-Party Sites, and Tend is not responsible for, and does not make any representation or warranty with respect to, any Third-Party Sites. If you choose to use Third-Party Sites you do so of your own volition and at your own risk. You understand that when using Third-Party Sites, you are subject to the terms of use and privacy policies of the third-party providers, and not Tend's Terms of Use or Privacy Policy. Any claim you may have in relation to Third-Party Sites 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.
  • 4.10 Linking to Tend.

    You may link to the Tend Platform, provided that you comply with the following:

    • 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 oriented website.
    • 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 Tend may block traffic from your website at any time and for any reason.

  • 4.11 Farm Indemnity.

    By registering for an account with Tend, each Farm hereby agrees 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 Farm Customer) (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 of the Tend Platform; your violation of these Terms of Use or any laws or regulations; your Farm Content; any Farm Product sold or provided by you to Farm Customers; any transactions with your Farm Customers or other third parties; any Third Party Claims brought against Tend and Related Parties by your Farm Customers; and the conduct of your Farm business, including any of your business or trade practices; and any violations of any privacy laws in connection with the collecting and processing of any personal information and data belonging to your Farm Customers, including the use of certain Tend Platform features to communicate with your Customers as described in Section 4.7 above.

    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 obligations hereunder.


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 Farm Content and for the termination of the account of any Farm who is determined by Tend to be a repeat infringer. If you believe that any Farm Content on the Tend Platform is infringing a copyright and should be removed, please notify Tend’s Designated Agent in accordance with the following:

Tend’s Designated Agent: The following is Tend’s Designated Agent for receiving notifications of claimed copyright infringement:

Gary Kissiah
Spiraledge, Inc.
4300 Port Union Road
West Chester, Ohio 45011
Email: [email protected]

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; and
  • 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 Farm 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 disabled;
  • 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 Farm 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 AND ALL FARM CONTENT AS PROVIDED BY THE FARMS 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 AND ALL FARM CONTENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE AND NON-INFRINGEMENT.  TEND AND ITS SUPPLIERS DO NOT WARRANT THAT: (A) THE TEND PLATFORM AND ALL FARM 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 OR IN ANY FARM CONTENT WILL BE CORRECTED; OR (C) THE TEND PLATFORM AND ALL FARM CONTENT WILL BE SECURE AND FREE OF ANY VIRUS OR OTHER HARMFUL COMPONENT.  ANY USE OF OR RELIANCE UPON THE TEND PLATFORM OR ANY FARM 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, OR LOSS OF GOODWILLARISING OUT OF OR RELATED TO THE TEND PLATFORM, OR ANY FARM CONTENT, OR YOUR USE OF OR RELIANCE UPON THE TEND PLATFORM OR ANY FARM CONTENT, EVEN IF TEND AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
  • 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.
  • TEND AND ITS SUPPLIERS SHALL HAVE NO LIABILITY UNDER ANY LEGAL THEORY WHATSOEVER TO ANY FARM CUSTOMERS WHO HAVE PURCHASED FARM PRODUCTS FROM A FARM ON THE TEND PLATFORM FARM STORE. EACH FARM CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS THAT IT MAY HAVE AGAINST TEND AND ITS SUPPLIERS WITH RESPECT TO THE PURCHASE OF ANY FARM PRODUCT.

TEND AND ITS SUPPLIERS SHALL HAVE NO LIABILITY UNDER ANY LEGAL THEORY WHATSOEVER TO ANY FARM CUSTOMERS WHO HAVE PURCHASED FARM PRODUCTS FROM A FARM ON THE TEND PLATFORM FARM STORE. EACH FARM CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS THAT IT MAY HAVE AGAINST TEND AND ITS SUPPLIERS WITH RESPECT TO THE PURCHASE OF ANY FARM PRODUCT. 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 Section 7. 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 or during this, or any prior, version of these Terms of Use, or that may arise after 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 Procedures, as modified by this Terms of Use, and unless otherwise agreed upon by the 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 or 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 jurisdiction. 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.
  • Notwithstanding any provision in these Terms of Use to the 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 Tend. 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 30 days of you first agreeing to a version of these Terms of Use containing an arbitration 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, Ohio 45011. These Terms of Use and your use of the Tend Platform are governed by the laws of the State of California, subject to the Federal Arbitration Act, without regard to its choice of law provisions.

8. CHANGES TO TERMS.

We reserve the right to make changes to these Terms of Use. When we make changes, we will post a revised Terms of Use. For this reason, we encourage you to review the Terms of Use whenever you use our Site because, by visiting the Site, you agree to accept the then current Terms of Use. If you do not agree with our changes to the Terms of Use, your sole and exclusive remedy will be to discontinue use of this Site.


9. TEXT MARKETING AND NOTIFICATIONS.

By "Opting In" To Receiving Text Messages, You Accept These Terms Of Use. These Terms Are Subject To Binding Arbitration And A Waiver Of Class Action Rights As Set Forth Above.

Please read these terms and conditions carefully. By providing us with your phone number and opting in to receive text messages, you expressly agree and consent that we and our service providers may send you text notifications for your order and for promotional and marketing offers. By agreeing to receive text messages, you also consent to the use of an electronic record to document your agreement. By signing up to receive text messages, you agreed to these text marketing provisions, as well as our Terms of Use and our Privacy Policy. You acknowledge that consent to receive text messages is not a condition for any purchase.

If you wish to unsubscribe from receiving text messages and notifications reply with STOP to any mobile message sent from us or use the unsubscribe link we provided you within any of our messages. You may opt out of these communications at any time. You understand and agree that alternative methods of opting out, such as using alternative words or requests, will not be considered a reasonable means of opting out. You agree that Tend and its service providers will have no liability for failing to honor such requests.

Message and data rates may apply. Message frequency varies. Delivery of information and content to a mobile device may fail due to a variety of circumstances or conditions. You understand and acknowledge that network services, including but not limited to mobile network services, are outside of the control of Tend, and Tend is not responsible or liable for issues arising from them. Tend may suspend or terminate your receipt of text messages for any reason, including if we believe you are in breach of these provisions. For any questions please text HELP to the number you received the messages from. You can also contact us for more information. If you wish to opt-out please follow the procedures above.


10. MISCELLANEOUS.

Tend is a business division owned and operated by Spiraledge, Inc. which is a Delaware corporation doing business as Tend. If any provision of these Terms of Use is 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 Terms of Use, all of which shall remain in full force and effect. Tend may assign its rights and obligations under these Terms of Use to any third party at any time without notice to you. These Terms of Use will be binding upon and inure to the benefit of the parties and their respective successors, heirs, trustees, administrators, and assigns. These Terms of Use contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the subject matter hereof.


11. CONTACT US AND NOTICE TO CALIFORNIA RESIDENTS.

To comply with California Business & Professions Code Section 17538, Tend provides the following notice to users who are California residents:

Our legal name is Tend.
Our address is 4300 Port Union Road, West Chester, Ohio 45011
Our telephone number is (831) 201- 0299 and email address is [email protected].

Our policies regarding cancellation of your Subscription are set forth at Section 3.2 above. 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 (800) 952-5210, or by email at [email protected].