ACCEPTANCE OF THIS AGREEMENT, EITHER THROUGH CLICKING A BOX OR
BY SIGNING BELOW, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF
YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR
OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY
TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND
CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER
TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH
AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND
CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE
This Agreement was last updated on 18th September 2012. It is effective between
You and Us as of the date of You accepting this Agreement.
Table of Contents
2. Purchased Services
3. Use of the Services
4. Third-Party Providers
5. Fees and Payment for Purchased Services
6. Proprietary Rights
8. Warranties and Disclaimers
9. Mutual Indemnification
10. Limitation of Liability
11. Term and Termination
12. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
13. General Provisions
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is
under common control with the subject entity. “Control,” for purposes of this
definition, means direct or indirect ownership or control of more than 50% of the
voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other
harmful or malicious code, files, scripts, agents or programs.
“Order” means the click through selections chosen from the website. Orders shall be
deemed incorporated herein by reference.
“Services” means the online, Web-based applications and platform provided by Us
via http://agrantec.com and/or other designated websites as described from
time to time, that are ordered by You including associated offline components but
excluding Third Party Applications.
“Users” means individuals who are authorised by You to use the Services, for whom
subscriptions to a Service have been purchased, and who have been supplied user
identifications and passwords by You (or by Us at Your request). Users may include
but are not limited to Your employees, consultants, contractors and agents; or third
parties with which You transact business.
“We,” “Us” or “Our” means the Agrantec company described in Section 13 (Who You
Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company or other legal entity for which you are accepting
this Agreement, and Affiliates of that company or entity.
“Your Data” means all electronic data or information submitted by You to the Purchased Services.
2. PURCHASED SERVICES
2.1. Provision of Purchased Services. Provision of Services. We shall make the
Services available to You pursuant to this Agreement and the relevant Orders during
a subscription term. You agree that Your purchases hereunder are neither contingent
on the delivery of any future functionality or features nor dependent on any oral or
written public comments made by Us regarding future functionality or features.
3. USE OF THE SERVICES
3.1 Our Responsibilities. We shall use commercially reasonable efforts to make the
Services available 24 hours a day, 7 days a week, except for: (a) planned downtime
(of which We shall give at least 8 hours notice via the Services and which We shall
schedule to the extent practicable during the weekend hours from 6:00 p.m. GMT
Friday to 3:00 a.m. GMT Monday), or (b) any unavailability caused by circumstances
beyond Our reasonable control, including without limitation, acts of God, acts of
government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other
labour problems (other than those involving Our employees), or Internet service
provider failures or delays, and provide the Services only in accordance with
applicable laws and government regulations.
3.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with
this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and
legality of Your Data and of the means by which You acquired Your Data, (iii) use
commercially reasonable efforts to prevent unauthorised access to or use of the
Services, and notify Us promptly of any such unauthorized access or use, and (iv)
use the Services only in accordance with applicable laws and government
regulations. You shall not (a) make the Services available to anyone other than
Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or
transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or
transmit material in violation of third-party privacy rights, (d) use the Services to store
or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance
of the Services or third-party data contained therein, or (f) attempt to gain
unauthorised access to the Services or their related systems or networks.
4. THIRD-PARTY PROVIDERS
4.1. Google Services. Service features that interoperate with Google services
depend on the continuing availability of the Google API and program for use
with the Services. If Google Inc. ceases to make the Google API or program
available on reasonable terms for the Services, We may cease providing such
Service features without entitling You to any refund, credit, or other
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. User and Usage Fees. You shall pay all fees specified in all Orders hereunder.
Except as otherwise specified herein or in an Order, (i) fees are quoted and payable
in GBP (ii) fees are based on services purchased and actual usage, (iii) payment
obligations are non-cancellable and fees paid are non-refundable, and (iv) the
number of User subscriptions purchased cannot be decreased during the relevant
subscription term stated on the Order. User subscription fees are based on monthly
periods that begin on the subscription start date and each monthly anniversary
thereof; therefore, fees for User subscriptions added in the middle of a monthly
period will be charged for that full monthly period and the monthly periods remaining
in the subscription term.
5.2. Invoicing and Payment. You will provide Us with a valid Paypal account
alternative document reasonably acceptable to Us. If You provide credit card
information to Us, You authorise Us to charge such credit for all Services listed in the
Order for the initial subscription term and any renewal subscription term(s) as set
forth in Section 11.2 (Term of Purchased User Subscriptions). Such charges shall be
made in advance, either annually or in accordance with any different billing
frequency stated in the applicable Order. If the Order specifies that payment will be
by a method other than a credit card, We will invoice You in advance and otherwise
in accordance with the relevant Order. Unless otherwise stated in the Order, invoiced
charges are due net 30 days from the invoice date. You are responsible for
maintaining complete and accurate billing and contact information in the Services.
5.3. Overdue Charges. If any charges are not received from You by the due date,
then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5%
of the outstanding balance per month, or the maximum rate permitted by law,
whichever is lower, from the date such payment was due until the date paid, and/or
(b) We may condition future subscription renewals and Orders on payment terms
shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by You under
this or any other agreement for Our services is 30 or more days overdue (or 10 or
more days overdue in the case of amounts You have authorized Us to charge to Your
credit card), We may, without limiting Our other rights and remedies, accelerate Your
unpaid fee obligations under such agreements so that all such obligations become
immediately due and payable, and suspend Our services to You until such amounts
are paid in full.
5.5. Payment Disputes. We shall not exercise Our rights under Section 5.3
(Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if the applicable
charges are under reasonable and good-faith dispute and You are cooperating
diligently to resolve the dispute.
5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies,
duties or similar governmental assessments of any nature, including but not limited
to value-added, sales, use or withholding taxes, assessable by any jurisdiction
whether local or foreign (collectively, ” Taxes”). You are responsible for paying all
Taxes associated with Your purchases hereunder. If We have the legal obligation to
pay or collect Taxes for which You are responsible under this paragraph, the
appropriate amount shall be invoiced to and paid by You, unless You provide Us with
a valid tax exemption certificate authorised by the appropriate taxing authority. For
clarity, We are solely responsible for taxes assessable against it based on Our
income, property and employees.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights. Subject to the limited rights expressly granted
hereunder, We reserve all rights, title and interest in and to the Services, including all
related intellectual property rights. No rights are granted to You hereunder other than
as expressly set forth herein.
6.2. Restrictions. You shall not (i) permit any third party to access the Services
except as permitted herein or in an Order, (ii) create derivate works based on the
Services, (iii) copy, frame or mirror any part or content of the Services, other than
copying or framing on Your own intranets or otherwise for Your own internal business
purposes, (iv) reverse engineer the Services, or (v) access the Services in order to
(a) build a competitive product or service, or (b) copy any features, functions or
graphics of the Services.
6.3. Ownership of Your Data. As between Us and You, You exclusively own all
rights, title and interest in and to all of Your Data.
6.4 Data Protection. You agree that we can use Your Data for the purposes of
Marketing. We will not pass Your Data to any third parties.
6.5. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable,
irrevocable, perpetual license to use or incorporate into the Services any
suggestions, enhancement requests, recommendations or other feedback provided
by You, including Users, relating to the operation of the Services.
7.1. Definition of Confidential Information. As used herein, ” Confidential
Information” means all confidential information disclosed by a party (” Disclosing
Party”) to the other party (” Receiving Party”), whether orally or in writing, that is
designated as confidential or that reasonably should be understood to be confidential
given the nature of the information and the circumstances of disclosure. Your
Confidential Information shall include Your Data; Our Confidential Information shall
include the Services; and Confidential Information of each party shall include the
terms and conditions of this Agreement and all Orders, as well as business and
marketing plans, technology and technical information, product plans and designs,
and business processes disclosed by such party. However, Confidential Information
(other than Your Data) shall not include any information that (i) is or becomes
generally known to the public without breach of any obligation owed to the Disclosing
Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing
Party without breach of any obligation owed to the Disclosing Party, (iii) is received
from a third party without breach of any obligation owed to the Disclosing Party, or
(iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in
writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of
care that it uses to protect the confidentiality of its own confidential information of like
kind (but in no event less than reasonable care) not to disclose or use any
Confidential Information of the Disclosing Party for any purpose outside the scope of
this Agreement, and (ii) the Receiving Party shall limit access to Confidential
Information of the Disclosing Party to those of its employees, contractors and agents
who need such access for purposes consistent with this Agreement and who have
signed confidentiality agreements with the Receiving Party containing protections no
less stringent than those herein.
7.3. Protection of Your Data. Without limiting the above, We shall maintain
appropriate administrative, physical, and technical safeguards for protection of the
security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data,
(b) disclose Your Data except as compelled by law in accordance with Section 7.4
(Compelled Disclosure) or as expressly permitted in writing by You, or (c) access
Your Data except to provide the Services or prevent or address service or technical
problems, or at Your request in connection with customer support matters.
7.4. Compelled Disclosure. The Receiving Party may disclose Confidential
Information of the Disclosing Party if it is compelled by law to do so, provided the
Receiving Party gives the Disclosing Party prior notice of such compelled disclosure
(to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s
cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is
compelled by law to disclose the Disclosing Party’s Confidential Information as part
of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party
is not contesting the disclosure, the Disclosing Party will reimburse the Receiving
Party for its reasonable cost of compiling and providing secure access to such
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that (i) the Services shall perform materially in
accordance with a specification published by Us from time to time, and (ii) subject to
Section 4.3 (Google Services), the functionality of the Services will not be materially
decreased during a subsc1iption term. For any breach of either such warranty, Your
exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and
Section 11.4 (Refund or Payment upon Termination) below.
8.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal
power to enter into this Agreement, and (ii) it will not transmit to the other party any
Malicious Code (except for Malicious Code previously transmitted to the warranting
party by the other party).
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY
MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We shall defend You against any claim, demand, suit,
or proceeding (” Claim”) made or brought against You by a third party alleging that
the use of the Services as permitted hereunder infringes or misappropriates the
intellectual property rights of a third party, and shall indemnify You for any damages
finally awarded against, and for reasonable attorney’s fees incurred by, You in
connection with any such Claim; provided, that You (a) promptly give Us written
notice of the Claim; (b) give Us sole control of the defence and settlement of the
Claim (provided that We may not settle any Claim unless the settlement
unconditionally releases You of all liability); and (c) provide to Us all reasonable
assistance, at Our expense.
9.2. Indemnification by You. You shall defend Us against any Claim made or
brought against Us by a third party alleging that Your Data, or Your use of the
Services in violation of this Agreement, infringes or misappropriates the intellectual
property rights of a third party or violates applicable law, and shall indemnify Us for
any damages finally awarded against, and for reasonable attorney’s fees incurred by,
Us in connection with any such Claim; provided, that We (a) promptly give You
written notice of the Claim; (b) give You sole control of the defence and settlement of
the Claim (provided that You may not settle any Claim unless the settlement
unconditionally release Us of all liability); and (c) provide to You all reasonable
assistance, at Our expense.
9.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the
indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy
against, the other party for any type of Claim described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF
LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH
RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF £100,000 OR THE
AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE
INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS
UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL
EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST
PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED,
WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF
LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT
APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You accept it
and continues until all User subscriptions granted in accordance with this Agreement
have expired or been terminated.
11.2. Term of Purchased User Subscriptions. User subscriptions purchased by
You commence on the start date specified in the applicable Order and continue for
the subscription term specified therein. Except as otherwise specified in the
applicable Order, all User subscriptions shall automatically renew for
additional periods equal to the expiring subscription term or one year
(whichever is shorter), unless either party gives the other notice of nonrenewal
at least 30 days before the end of the relevant subscription term. The
per-unit pricing during any such renewal term shall be the same as that during
the prior term unless We have given You written notice of a pricing increase at
least 30 days before the end of such prior term, in which case the pricing
increase shall be effective upon renewal and thereafter. Any such pricing
increase shall not exceed 7% over the pricing for the relevant Services in the
immediately prior subscription term, unless the pricing in such prior term was
designated in the relevant Order as promotional or one-time.
11.3. Termination for Cause. A party may terminate this Agreement for cause: (i)
upon 30 days written notice to the other party of a material breach if such breach
remains uncured at the expiration of such period, or (ii) if the other party becomes
the subject of a petition in bankruptcy or any other proceeding relating to insolvency,
receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. Upon any termination for cause by
You, We shall refund You any prepaid fees covering the remainder of the term of all
subscriptions after the effective date of termination. Upon any termination for cause
by Us, You shall pay any unpaid fees covering the remainder of the term of all
Orders after the effective date of termination. In no event shall any termination
relieve You of the obligation to pay any fees payable to Us for the period prior to the
effective date of termination.
11.5. Return of Your Data. Except in the case of non payment, upon request by You
made within 30 days after the effective date of termination of a Services subscription,
We will make available to You for download a file of Your Data in comma separated
value (.csv) format in their native format. After such 30-day period, We shall have no
obligation to maintain or provide any of Your Data and shall thereafter, unless legally
prohibited, delete all of Your Data in Our systems or otherwise in Our possession or
under Our control.
11.6. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services),
6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual
Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon
Termination), 11.5 (Return of Your Data), 12 (Who You Are Contracting With, Notices,
Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any
termination or expiration of this Agreement.
12. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING
LAW AND JURISDICTION
12.1. General. Who You are contracting with under this Agreement, who You should
direct notices to under this Agreement, what law will apply in any lawsuit arising out
of or in connection with this Agreement, and which courts can adjudicate any such
lawsuit, depend on where You are domiciled.
For UK based companies, the contract will be with Agrantec Limited in the UK and is
subject to English law and the exclusive jurisdiction of the English courts.
12.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all
notices, permissions and approvals hereunder shall be in writing and shall be
deemed to have been given upon: (i) personal delivery, (ii) the third business day
after mailing, (iii) the second business day after sending by confirmed facsimile, or
(iv) the first business day after sending by email (provided email shall not be
sufficient for notices of termination or an indemnifiable claim). Notices to You shall be
addressed to the system administrator designated by You for Your relevant Services
account, and in the case of billing-related notices, to the relevant billing contact
designated by You.
12.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the
applicable governing law above without regard to choice or conflicts of law rules, and
to the exclusive jurisdiction of the applicable courts above.
12.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in
connection with any action or litigation in any way arising out of or related to this
13. GENERAL PROVISIONS
13.1. Relationship of the Parties. The parties are independent contractors. This
Agreement does not create a partnership, franchise, joint venture, agency, fiduciary
or employment relationship between the parties.
13.2. Competitors. You may not access the Services if You are Our direct
competitor, except with Our prior written consent. In addition, You may not access
the Services for purposes of monitoring their availability, performance or functionality,
or for any other benchmarking or competitive purposes.
13.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this
13.4. Waiver and Cumulative Remedies. No failure or delay by either party in
exercising any right under this Agreement shall constitute a waiver of that right.
Other than as expressly stated herein, the remedies provided herein are in addition
to, and not exclusive of, any other remedies of a party at law or in equity.
13.5. Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, the provision shall be modified by the court and
interpreted so as best to accomplish the objectives of the original provision to the
fullest extent permitted by law, and the remaining provisions of this Agreement shall
remain in effect.
13.6. Assignment. You may not assign any of its rights or obligations hereunder,
whether by operation of law or otherwise, without the prior written consent of the us
(not to be unreasonably withheld). Notwithstanding the foregoing, either party may
assign this Agreement in its entirety (including all Orders), without consent of the
other party, to its Affiliate or in connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of its assets not involving a direct
competitor of the other party. A party’s sole remedy for any purported assignment by
the other party in breach of this paragraph shall be, at the non-assigning party’s
election, termination of this Agreement upon written notice to the assigning party. In
the event of such a termination, We shall refund to You any prepaid fees covering
the remainder of the term of all subscriptions after the effective date of termination.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of the
parties, their respective successors and permitted assigns.
13.7. Entire Agreement. This Agreement, including all exhibits and addenda hereto
and all Orders, constitutes the entire agreement between the parties and supersedes
all prior and contemporaneous agreements, proposals or representations, written or
oral, concerning its subject matter. No modification, amendment, or waiver of any
provision of this Agreement shall be effective unless in writing and either signed or
accepted electronically by the party against whom the modification, amendment or
waiver is to be asserted. However, to the extent of any conflict or inconsistency
between the provisions in the body of this Agreement and any exhibit or addendum
hereto or any Order, the terms of such exhibit, addendum or Order shall prevail.
Notwithstanding any language to the contrary therein, no terms or conditions stated
in Your purchase order or other order documentation (excluding Orders) shall be
incorporated into or form any part of this Agreement, and all such terms or conditions
shall be null and void.
For and behalf of