The “Service” shall mean any Agrian software (whether online or downloadable), services and data feeds made available by Agrian or made available through a third party provider, to you via websites and technology applications, and may specifically refer to other proprietary software and services in any format including without limitation online, offline, on a mobile device, a tablet or other hand-held device, through a document printed from the Service, any hardware or software platform, application program interface, web service or any other similar or dissimilar use of the Service.
1.2 LIMITATIONS ON LICENSE.
You shall have no right to copy, download, display, perform, reproduce, distribute, modify, edit, alter, translate, adopt or enhance any of the Service in any manner or reverse engineer, decompile, translate, or modify any source code, script, algorithms, or software forming part of the Service. Upon termination of your use of the Service, you must immediately destroy any downloaded and printed materials. You have no right, title or interest (and no copyright, trademark or other intellectual property right) in or to the Service or any content, information or materials related thereto and you shall not “frame” or “mirror” the Service, any information contained on, framed within, or accessible from or through the Service on any other server or Internet-based device. You shall not rent, lease, lend, upload or to host on any website or server, sell, redistribute, or sublicense the Service, and you may not combine any part of the Service with other software or distribute any software or device incorporating a part of the Service.
Agrian will provide you with credentials to enable Agrian to authenticate you and associate your activity with your usage of the Service. You are fully and solely responsible for maintaining the secrecy and security of your credentials and for all activities that occur using your credentials. You may not (i) modify or circumvent your credentials; (ii) sell, transfer or disclose your credentials to anyone; or (iii) use your credentials to access the Service through third party applications without prior written consent by Agrian.
1.4 USE OF THE SERVICE IN COMBINATION WITH OTHER TECHNOLOGY.
Unless otherwise set forth in a Statement of Work between you and Agrian and/or in applicable law, Agrian shall have no obligation to ensure the ability to use the Service in combination with any other software, hand-held devices, hardware, equipment, precision agriculture equipment, imagery, data or processes or prescription farm mapping, equipment or processes.
1.5 THIRD PARTY ADVERTISEMENTS AND INTERACTION.
In your use of the Service, you may, through links to other websites or advertisements, enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party advertisers or other users. Such links do not constitute an endorsement by Agrian of any such websites or the content, products or services offered. Agrian is not responsible for the business practices, content, privacy policies or links displayed on such websites or products and services offered through such sites and your access to these websites is at your own risk. Agrian is not a party in your relationship with the third party. You shall accept all responsibility and to be bound by any and all activities and transactions that occur under your password and login accounts, whether or not authorized by you. If applicable to your jurisdiction, any such correspondence, advertisement, purchase or promotion, including the delivery of and the payment for goods and/or services, and any other term, condition, warranty or representation associated with such correspondence, purchase or promotion, is solely between you and the applicable third party.
Agrian may change how the service is provided or stop providing the Service at any time with or without notice, and provides no guarantee of availability or uptime of the Service.
SECTION TWO – USE OF THIRD PARTY DATA IN THE SERVICE.
2.1 FERTILIZING MATERIALS AND CROP PROTECTION CHEMICALS.
Use of the Service provides access to information on fertilizing materials and crop protection chemicals (collectively “crop management products”), the use of which are regulated by state, federal or local laws. Agrian does not interpret nor has the authority to enforce compliance with any laws or regulations governing label approval, selection, application, or use of any crop management products. Agrian and/or the agricultural chemical manufacturers may periodically and without notice make changes to the label data or content, without Agrian’s control. YOU RETAIN ALL RESPONSIBILITY TO VERIFY THE SPECIFIC CROP MANAGEMENT PRODUCT LABEL AND RELATED ENVIRONMENTAL REQUIREMENTS, RESTRICTIONS AND RECOMMENDATIONS MADE AVAILABLE BY USE OF THE SERVICE.
2.2 GEOGRAPHIC INFORMATION SYSTEMS DATA AND FUNCTIONALITY.
Although the Geographic Information Systems (“GIS”) data made available in the Service has been produced and processed from sources believed to be reliable no warranty expressed or implied, due to limitations inherent to GIS’ technicalities, is made regarding accuracy, adequacy, completeness, legality, reliability, timeliness, availability or usefulness of any information or its use and availability in the Service, including without limitation, the depiction of property boundaries, fence lines, area maps, accurate calculation of endangered species locales, earthquake faults, soil maps, watershed management area, wetlands or any other similar or dissimilar data mapped by or through the Service. YOU RETAIN ALL RESPONSIBILITY TO VERIFY THE SPECIFIC GIS DATA AND IMAGERY TO ENSURE AND VERIFY THAT THE CALCULATIONS MADE, LOCATIONS MAPPED AND IMAGED AND INFORMATION RENDERED BY THE SERVICE USING GIS DATA ARE ACCURATE, COMPREHENSIVE AND APPLICABLE TO YOUR LOCATION.
2.3 LOCAL PRODUCT NOTICES.
At times Agrian may be provided with local product notices from state or county agriculture commissioners, state pesticide regulation agencies or chemical manufacturers regarding specific crop or geographic restrictions, supplemental instructions, local requirements, or the need for additional permits on the use of certain crop management chemicals (“Local Product Notices.”) Agrian does not render notification services. Agrian does not control the dissemination of this data and cannot ensure that every Local Product Notice will be available in the Service. The availability of some Local Product Notices in the Service does not mean that Agrian has been made aware of all Local Product Notices. Although the Local Product Notices made available in the Service have been entered and processed from sources believed to be reliable, no warranty expressed or implied, is made regarding accuracy, adequacy, completeness, legality, reliability, timeliness or usefulness of any information or its use and availability in the Service, including without limitation, the depiction of notice boundaries, area maps, or any other similar or dissimilar Local Product Notice data available by or through the Service. YOU RETAIN ALL RESPONSIBILITY TO INVESTIGATE THE EXISTENCE OF AND TO VERIFY THE SPECIFIC LOCAL PRODUCT NOTICES MADE AVAILABLE BY USE OF THE SERVICE, AND THOSE PARTICULAR TO YOUR GEOGRAPHICAL AREA WHICH MAY NOT BE AVAILABLE THROUGH THE SERVICE, AND TO ENSURE AND VERIFY THAT THE INFORMATION RENDERED BY THE SERVICE USING LOCAL PRODUCT NOTICES (OR THE LACK THEREOF) DATA ARE ACCURATE, COMPREHENSIVE AND APPLICABLE TO YOUR LOCATION.
2.4 ROTATIONAL CROP RESTRICTIONS.
At times Agrian may be provided with plant back restrictions or crop rotation requirements (“Rotational Crop Restrictions”) from chemical suppliers regarding time intervals and geographic restrictions on replanting of fields or crop rotations. Agrian does not control the dissemination of this data and cannot ensure that every Rotational Crop Restriction will be available in the Service even if a prior or other Rotational Crop Restrictions are available in the Service. Agrian does not render notification services. The availability of some Rotational Crop Restrictions in the Service does not mean that Agrian has been made aware of all Rotational Crop Restrictions. Although the Rotational Crop Restrictions made available in the Service have been entered and processed from sources believed to be reliable, no warranty expressed or implied, is made regarding accuracy, adequacy, completeness, legality, reliability, timeliness or usefulness of any information or its use and availability in the Service, including without limitation, the recitation of restrictions, summary or depiction of Rotational Crop Restrictions, or any other similar or dissimilar plant back restriction data available by or through the Service. Agrian does not render notification services. YOU RETAIN ALL RESPONSIBILITY TO VERIFY THE SPECIFIC ROTATIONAL CROP RESTRICTIONS MADE AVAILABLE BY USE OF THE SERVICE, AND THOSE PARTICULAR TO YOUR CROPS, GEOGRAPHICAL AREA AND CROP ROTATION INTERVALS OR CHRONOLOGY WHICH MAY NOT BE AVAILABLE THROUGH THE SERVICE, AND TO ENSURE AND VERIFY THAT THE INFORMATION RENDERED BY THE SERVICE USING ROTATIONAL CROP RESTRICTIONS (OR THE LACK THEREOF) ARE ACCURATE, COMPREHENSIVE AND APPLICABLE TO YOUR CROPS AND LOCATION.
2.5 DOT AND SARA TITLE III DATA AND FUNCTIONALITY.
To the extent applicable to your jurisdiction, although the U.S. Department of Transportation (“DOT”) data and Section 312 of the Community Right-to-Know Act (“SARA Title III”) data, made available in the Service to users in the United States of America has been produced and processed from sources believed to be reliable, no warranty expressed or implied, is made regarding accuracy, adequacy, completeness, legality, reliability, timeliness, availability, or usefulness of information in the Service. Agrian does not render notification services. YOU RETAIN ALL RESPONSIBILITY TO VERIFY THE SPECIFIC DOT AND SARA TITLE III DATA, AND TO ENSURE AND VERIFY THAT THE CALCULATIONS MADE AND INFORMATION RENDERED BY THE SERVICE ARE ACCURATE, COMPREHENSIVE AND APPLICABLE TO YOUR CROPS AND LOCATION.
2.6 RUP AND AFD DATA AND FUNCTIONALITY.
To the extent applicable to your jurisdiction, although the Restricted Use Pesticide (RUP) and Available for Distribution (AFD) data made available in the Service to users in the United States of America and derived from the crop protection product manufacturer, or from government agency or publicly available sources, has been produced and processed from sources believed to be reliable, NO WARRANTY EXPRESSED OR IMPLIED, IS MADE REGARDING ACCURACY, ADEQUACY, COMPLETENESS, LEGALITY, RELIABILITY, TIMELINESS, AVAILABILITY, OR USEFULNESS OF INFORMATION IN THE SERVICE. While Agrian uses commercially reasonable efforts and diligence to keep this data accurate and current, there will be times when RUP and AFD data available through the Service will not be accurate. This may adversely affect your ability to use certain products at various locations and use could result in a violation of federal, state or local law regarding the sale, handling, ownership or application of the products. In these situations, your exclusive remedy is to inform Agrian of the error in the data so that Agrian can correct the data. YOU RETAIN ALL RESPONSIBILITY TO VERIFY THE SPECIFIC RUP AND AFD DATA, AND TO ENSURE AND VERIFY THAT THE LABEL DATA, USE INFORMATION, RESTRICTIONS CALCULATIONS MADE AND INFORMATION RENDERED BY THE SERVICE ARE ACCURATE AND COMPREHENSIVE.
2.7 PEST IDENTIFICATION AND IMAGES.
Although the pest identification images and correlations made available in the Service have been produced from sources believed to be reliable, no warranty expressed or implied, is made regarding the accuracy of the pest image, identification, ability to discern specific subspecies, or usefulness of the pest information in the Service. New pests or mutations of existing pests are constantly evolving which may not be readily identified by you or you may inaccurately attribute crop damage to the wrong pest. YOU ARE INSTRUCTED TO REVIEW ANY PEST IDENTIFICATION AND ERADICATION PLAN WITH A LICENSED PEST CONTROL OR CERTIFIED CROP ADVISOR AND TO PERSONALLY VERIFY THE VALIDITY OF THE DATA AND SUITABILITY OF THE SELECTED PRODUCT(S).
2.8 PRECISION AGRICULTURE AND PRESCRIPTION MAPPING.
The Service may allow you to track, import from precision farming hardware or GPS equipment, and keep records of fields, crop plans, inputs, production, crop rotation, geolocation, mapping and analysis and to generate variable rate prescription maps and guidance paths using formulas based on soil types, topography, seed varieties, restricted use chemicals, fertilizer demand and usage, equipment maintenance and other crop input factors (“Precision Ag Data”) to create a precise and variable nutrient and pest management plan for farming (“Prescription Mapping”). Agrian does not control the submission, provision or dissemination of this Precision Ag Data or Prescription Mapping, nor verify the accuracy of the Precision Ag Data even though it might available in the Service. Furthermore, the availability of some Precision Ag Data or Prescription Mapping in the Service does not mean that Agrian has been provided with all Precision Ag Data or Prescription Mapping that might be applicable to your crop or situation. Agrian makes no warranty expressed or implied, regarding accuracy, adequacy, completeness, legality, reliability, timeliness or usefulness of any Precision Ag Data or Prescription Mapping or its use and availability in the Service. YOU RETAIN ALL RESPONSIBILITY TO INVESTIGATE THE EXISTENCE OF, THE COMPLETENESS AND ACCURACY OF THE INFORMATION AND TO VERIFY THE SPECIFIC PRECISION AG OR PRESCRIPTION MAPPING AVAILABLE (OR THE LACK THEREOF) BY USE OF THE SERVICE.
2.9 SEASON MAXIMUM CALCULATIONS.
At times you may select products for use on your crops or fields that are not fully supported by the Service do not match with the product label. When preparing Product Recommendation Forms, based on your data entry of commodities and products, the Service tracks the usage rates for active ingredients for in literal compliance with the product labels that have been fully vetted in the Service by the manufacturer. The Service may access publicly available data from regulatory sources that does not track or correlate active ingredient and product usage for product labels that are not fully vetted in the Service, sometimes known as unsupported products. While Agrian uses commercially reasonable efforts and diligence to calculate season total usage of active ingredients based on your entry of data, and estimates of active ingredient usage from publicly available sources, the season total maximum calculation performed by the Service may not include product usage from unsupported products that is not in accordance with the approved label. This may adversely affect your ability to use, or continue to use, certain products at various locations, your ability to sell or market your crop, and use could result in a violation of federal, state or local law regarding the application of the products in excess of allowed season totals. YOU RETAIN ALL RESPONSIBILITY TO VERIFY THE SPECIFIC CALCULATIONS OF SEASON TOTALS OF ACTIVE INGREDIENT APPLICATIONS, AND TO ENSURE AND VERIFY THAT ALL ADDITIONAL APPLICATIONS OF THE ACTIVE INGREDIENTS ARE ACCOUNTED FOR IN YOUR SEASON MAXIMUM CALCULATIONS, THE LABEL DATA, USE INFORMATION, RESTRICTIONS CALCULATIONS MADE AND THAT CALCULATIONS RENDERED BY THE SERVICE ARE ACCURATE AND COMPREHENSIVE.
2.10 HAZARDOUS MATERIAL MANIFESTS.
At times you may use the Service to create a hazardous materials manifest for transportation purposes. The Service, if available in your geography, will allow you to create a generic document with data that you input such as quantities, sizes, weights, material characteristics, U.S. DOT shipping name, UN identification number, hazard class/division, description, generic product or chemical names, packing group, reportable quantity, and emergency response phone numbers. While Agrian uses commercially reasonable efforts and diligence to generate a hazardous materials manifest that complies with DOT regulations based on your entry of data, the Service—to the extent applicable to your jurisdiction—may not include all the required information or may result in inaccurate data because the Service does not validate quantities, sizes and weights of your information. Incomplete or inaccurate completion of the hazardous materials manifest could result in a violation of federal, state or local laws for the shipment of hazardous substances or materials. YOU RETAIN ALL RESPONSIBILITY TO VERIFY THE ENTERING AND VERIFYING THE ACCURACY OF ANY DATA OR INFORMATION ENTERED AND PRINTED ON THE FORM INCLUDING, WITHOUT LIMITATION, QUANTITIES, SIZES, WEIGHTS, MATERIAL CHARACTERISTICS, US DOT SHIPPING NAME, UN IDENTIFICATION NUMBER, HAZARD CLASS/DIVISION, DESCRIPTION, GENERIC NAMES, PACKING GROUP, REPORTABLE QUANTITY, EMERGENCY RESPONSE PHONE NUMBERS, LEGIBILITY, USE OF ABBREVIATIONS, COPIES, NUMBERING OF COPIES, DOCUMENT RETENTION PERIODS, OR OTHER PERTINENT AND REQUIRED INFORMATION USING U.S. DEPARTMENT OF TRANSPORTATION REGULATIONS.
2.11 CALIFORNIA PROP 65 DISCLOSURES.
At times you may use the Service to include information required by the State of California under Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop 65”). Prop 65 requires businesses to inform Californians about exposures to chemicals known to cause cancer, birth defects or other reproductive harm. The Service, if available in your geography, will allow you to include a Prop 65 warning on the hazardous materials manifest based on your entry of data and/or active ingredient selected. While Agrian uses commercially reasonable efforts and diligence to generate a Prop 65 warning that is “clear and reasonable” based on your data selection, the Service—to the extent applicable to your jurisdiction—may not include all the required information or may result in inaccurate data because the Service does not validate chemical listings, safe harbor levels, or exposure amounts. Incomplete or inaccurate Prop 65 warnings could result in a violation of state or local laws or subject you to private enforcement actions. YOU RETAIN ALL RESPONSIBILITY TO VERIFY THE ACCURACY AND SUITABILITY OF ANY DATA OR INFORMATION PRINTED ON THE FORM INCLUDING, WITHOUT LIMITATION, ACTIVE INGREDIENT, LISTED CHEMICALS, OR OTHER PERTINENT AND REQUIRED INFORMATION UNDER PROP 65.
2.12 CHANGES TO AVAILABLE THIRD-PARTY DATA.
Should any of the third-party data provided in the Service cease to be available to Agrian, Agrian may, in its sole discretion, (i) procure a substitute data provider for those data services at no additional cost to you; or (ii) provide a credit for any paid subscription to the data services which are no longer available through the Service or (iii) other negotiated solution between you and Agrian in accordance with the applicable law.
2.13 GEOLOCATION DATA.
Our services utilize GeoLite2 data created by MaxMind, available from https://www.maxmind.com.
SECTION THREE – USE OF CLIENT DATA IN THE SERVICE.
3.1 CLIENT DATA
As a service to you, and at your specific request, Agrian may configure your account, modify, transform, input, import or upload specific data, information or content of any type, in any format, supplied to Agrian on your behalf and for your convenience only. You acknowledge that you are solely responsible for the accuracy, quality, integrity, legality, reliability, timeliness, safety, weather, mapping, environmental restrictions, specific data, information or content, appropriateness of and copyright permissions, and for adopting procedures to identify and correct errors and omissions in, all data, text, information, images, and material that it or its users or their agents, employees, subcontractors and customers enter or submit in connection with the Service including creation of user databases for your own use (all of the foregoing collectively referred to as “Client Data”). In no case will Agrian evaluate the Client Data. All Client Data is the sole property of Client, and Agrian shall have no right to share any uniquely identifiable Client Data with any third-party without Client’s express prior written consent. Upon termination of your use of the Service, Agrian shall, unless legally prohibited, delete all Client Data in its possession or under its control. YOU RETAIN ALL RESPONSIBILITY TO INVESTIGATE THE EXISTENCE OF, THE COMPLETENESS AND ACCURACY OF THE CLIENT DATA AND TO VERIFY THE SPECIFIC CLIENT DATA AVAILABLE (OR THE LACK THEREOF) BY USE OF THE SERVICE.
3.2 ANALYTICAL LABORATORY DATA.
Although you may be able to load, import or authorize transfer of analytical data on crops, plants, fields, soil, nutrients, disease or other factors that affect a crop (“Lab Data”), Agrian does not control the submission, provision or dissemination of this Lab Data, nor verify the accuracy of the Lab Data even though it might be available in the Service. Furthermore, the availability of some Lab Data in the Service does not mean that Agrian has been provided with all Lab Data that might be applicable to your crop or situation. Agrian makes no warranty expressed or implied, regarding accuracy, adequacy, completeness, legality, reliability, timeliness or usefulness of any Lab Data or its use and availability in the Service. YOU RETAIN ALL RESPONSIBILITY TO INVESTIGATE THE EXISTENCE OF, THE COMPLETENESS AND ACCURACY OF THE INFORMATION AND TO VERIFY THE SPECIFIC LAB DATA AVAILABLE (OR THE LACK THEREOF) BY USE OF THE SERVICE.
3.3 LIMITS ON CLIENT DATA AND LAB DATA.
Agrian reserves the right, at any time and without notice to you, to review, monitor, flag, filter, modify, refuse or remove any or all Client Data, Content Data and/or Lab Data from the Service which violate these Terms, but Agrian has no obligation to do so, unless required by law or by a judicial, arbitral or administrative decision.
3.4 STATISTICAL DATA.
Without limiting your ownership rights in Client Data, you acknowledge, authorize and agree that Agrian shall have the right to utilize data capture, syndication and analysis tools and other similar tools to extract, compile, synthesize and analyze any non-personally and non-uniquely identifiable data or information resulting from your use of the Service (“Statistical Data “). Statistical Data may be collected by Agrian for any lawful business purpose without a duty of accounting to you, provided that the Statistical Data is used only in an aggregated form without specifically identifying the source of the Statistical Data. Agrian may make use of analytics to understand your use of the Service. Agrian may transfer Client Data to third parties on an anonymous basis for use of aggregated data to create benchmarks.
3.5 NON-UNIQUELY IDENTIFIABLE INFORMATION.
Before using the Service, you will need to sign up for an Agrian account. During registration Agrian will require that you provide us with your full name, account information, and email address. We may also require additional information from you if necessary. Agrian may also collect additional information such as your unique device identifier or IP address. Agrian will not disclose your personally identifying information to third parties without your consent. However, Agrian may provide non-end-user specific, non-uniquely identifiable information on the usage of products contained in Client Data to third parties in an aggregate form. You agree to allow Agrian the right to use your business or entity name in advertising, publicity, or for commercial or other business purposes, as a customer of Agrian.
3.6 EXCEPTION TO DATA PRIVACY FOR CERTAIN FUNCTIONS.
When Agrian partners with an agricultural chemical supplier or other vendor to develop a specific service or functionality within the Service, we share uniquely identifiable crop data with the sponsoring company. Furthermore, when you instruct Agrian to share Client Data, commodity or location permit information, crop management product usage and application data with crop advisors, pest control advisors, applicators, harvesters, packers, processors, shippers, handlers and crop buyers (each a “handler”), we may share uniquely identifiable crop data with the handler. By using the partnered service or functionality, you hereby grant Agrian and the sponsoring company a perpetual, fully paid, irrevocable, transferable, sub-licensable, non-exclusive right and license to use Client Data or other uniquely identifiable data collected or processed by the partnered service.
SECTION FOUR – WARRANTIES AND LIABILITY.
4.1 LIMITED WARRANTY.
DURING THE TERM OF YOUR PAID LICENSE TO USE THE SERVICE, AGRIAN WARRANTS—IN ADDITION TO MANDATORY WARRANTS REQUIRED BY LAW, IF APPLICABLE TO YOUR JURISDICTION—ONLY THAT (i) AGRIAN HOLDS ALL RIGHT, TITLE, AND INTEREST IN AND TO SERVICE; and (ii) THE SERVICE WILL NOT INFRINGE ON THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
4.2 RELIABILITY OF SOFTWARE.
Your use of, and any reliance upon, the service, including, but not limited to, any crop management product labels, information, materials, agronomic information, Local Product Notices, Rotational Crop Restrictions, DOT and SARA Title III data, GIS mapping, Restricted Use Pesticide, Prescription Mapping, Available for Distribution data, pest identification imagery, Precision Ag Data, land imagery, weather forecast, Lab Data, reports, third party data and advice is at your own risk. The Service has not been independently verified or authenticated in whole or in part by any third party. YOU RETAIN ALL RESPONSIBILITY TO VERIFY THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY AND ALL INFORMATION OBTAINED THROUGH THE SERVICE.
4.3 MANUFACTURER INFORMATION.
The manufacturers are solely responsible for the information provided in their labels and made available for use in the service. To the extent permitted by applicable law, Agrian has no liability for any errors or omissions in the crop management product labels available through the service, whether provided by Agrian or third parties.
4.4 NO THIRD-PARTY LIABILITY FOR DAMAGES.
AS APPLICABLE UNDER YOUR JURISDICTION, YOU AGREE THAT ANY THIRD PARTY OWNERS OF ANY LABELS, MATERIALS, SERVICES OR CONTENT, INCLUDING, BUT NOT LIMITED TO WEATHER FORECAST, GIS MAPPING, IMAGERY, ROTATIONAL CROP RESTRICTIONS, LOCAL PRODUCT NOTICES, DOT AND SARA TITLE III DATA, LAB DATA, PRECISION AG DATA, SEASON MAXIMUM CALCULATIONS, OR CHEMICAL INFORMATION, PROVIDED OR CONTAINED IN THE AGRONOMY INFORMATION SYSTEMS OF THE SERVICE ARE THIRD PARTY BENEFICIARIES TO THE WARRANTY AND LIABILITY LIMITATION PROVISIONS CONTAINED IN THIS SECTION AS THOSE PROVISIONS RELATE TO THEIR LABELS, MATERIALS, SERVICES OR CONTENT.
4.5 AS-IS, AS AVAILABLE AND WHERE-IS BASIS.
AGRIAN MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS IN CONNECTION WITH OR REGARDING THE SERVICE, INCLUDING BUT NOT LIMITED TO THE RELIABILITY OF THE SERVICE, UPTIME OR DOWNTIME OF THE SERVICE, SUITABILITY, TRUTH, TIMELINESS, ACCURACY OR COMPLETENESS OF ANY CONTENT, MATERIAL, INFORMATION, PRODUCT, REPRESENTATION, OR SERVICES CONTAINED IN THE SERVICE. MATERIALS, PRODUCTS AND SERVICES PROVIDED BY AGRIAN HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
4.6 LIMITATION ON LIABILITY AND DAMAGES.
4.7 DISCLAIMER OF ALL OTHER WARRANTIES.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AGRIAN OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN SECTION 4.1, AGRIAN DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AGRIAN DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL OPERATE SECURELY OR WITHOUT INTERRUPTION INCLUDING ANY SUCH ISSUES RELATED TO A BREACH OF DATA SECURITY AND CONFIDENTIALITY OBLIGATIONS, RESULTING FROM ANY ACTS OVER WHICH AGRIAN HAS NO CONTROL (E.G. FORCE MAJEURE, ACTS OF GOD), EXTERNALLY INTRODUCED HARMFUL PROGRAM (INCLUDING VIRUSES, TROJAN HORSES, AND WORMS), CLIENT’S CONTENT OR APPLICATIONS, THIRD PARTY UNAUTHORIZED ACCESS OF EQUIPMENT, SOFTWARE OR SYSTEMS, OR MACHINE ERROR. YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THESE TERMS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. YOU AGREE THAT THE ALLOCATION OF RISK CONTAINED IN THESE TERMS IS REFLECTED IN THE FEES.
4.8 ADDITIONAL RIGHTS.
For jurisdictions that do not allow Agrian to limit its liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then Agrian’s liability is limited to the smallest extent possible by law. Specifically to those jurisdictions, Agrian does not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees, or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE. IN NO EVENT SHALL AGRIAN’S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES EXCEED THE AMOUNT OF FIVE HUNDRED DOLLARS (US $500.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
4.9 THIRD PARTY DISPUTES.
To the maximum extent permitted by applicable law, in the event that you have a dispute with a chemical manufacturer, a third-party provider, another user, neighbors, employees, contractors, or any other vendor or third party, you release Agrian (and its officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.
4.10 USER INDEMNIFICATION.
You hereby waive any claim against, and shall defend, indemnify and hold Agrian and its affiliates and their respective officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all claims, demands, lawsuits, costs, damages, liabilities, and expenses (including legal fees) incurred, claimed or alleged, relating in any way to: (i) your breach of these Terms; (ii) your use of the Service or the use of the Service by any person using your user name and/or password; (iii) the entry, sufficiency, adequacy, accuracy, or timeliness of the Service content or Client Data or Lab Data which forms the basis for writing use recommendations, selecting products for use on a specific crop, purchasing of or application of crop management products to specific crops or land; (iv) any claim that your Client Data, or the Client Data of any person using your user name and/or password, violates the intellectual property rights of any third party or are otherwise defamatory or libelous; (v) any infringement arising from the combination of the Service with any of your products, service, hardware, equipment, precision agriculture equipment, imagery, data or processes or prescription farm mapping, equipment, handheld, mobile devices or business processes; and (vi) any injury, damage or expense resulting from any application or use, or season maximum calculations of active ingredient use, of crop management products or other products included in the Service.
SECTION FIVE – USE, COMPLIANCE AND TRADEMARKS.
5.1 LOCAL LAWS.
Agrian controls and operates the Service from its headquarters in the United States of America and makes no representation that the materials are appropriate or will be available for use in other locations. If Client uses the Service from outside the United States of America or Canada, it is entirely responsible for compliance with applicable local laws, including but not limited to the export and import regulations.
5.2 EXPORT COMPLIANCE.
You acknowledge that the technology, information and materials including the Service provided may be subject to the export and foreign trade control laws and regulations of the United States, including without limitation, the U.S. Commerce Department’s Export Administration Regulations and regulations of the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), that potentially restrict or impose prior licensing requirements for the transfer or disclosure of the technology, information or materials to other parties, which are hereby incorporated by reference as appropriate. By using the Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Service for any purposes prohibited by law.
5.3 TRADEMARKS AND LOGOS.
The design of the Service along with Agrian-created text, scripts, graphics, interactive features, and the trademarks, service marks and logos contained therein, are owned by or licensed to Agrian Inc., and subject to trademark and other intellectual property rights under United States and foreign laws and international conventions. Agrian reserves all rights not expressly granted in and to the Service. No right or license is granted to use the names, logos, depictions or labels. You agree to not engage in the use, copying, or distribution of anything contained within the Service unless we have given you express written permission. The omission of a copyright or trademark notice on the Service shall not be interpreted to mean the material is, or cause the material to be, in the public domain.
5.4 COPYRIGHT AND PROPRIETARY INFORMATION.
The software for use by the Service is protected by United States Copyright Law and international copyright treaties, as well as other intellectual property laws and treaties. Some of the information included as part of the Service is considered by Agrian to be proprietary, confidential, of a sensitive nature and/or the trade secrets of Agrian, including the printed or retrieved results from your use of the Service. Accordingly, you will keep confidential and not disclose to any person or entity outside your business operation any (1) any source code or algorithms contained in the Service; or (2) any printed or retrieved results, including Pesticide Use Reports or Recommendations or other crop reports generated from your use of the Service
SECTION SIX– CONTRACT PROVISIONS.
The termination of these Terms shall not serve to eliminate any potential liability, obligations or limitations arising out of conduct prior to the actual date of termination.
6.2 MODIFICATION OF TERMS.
Agrian reserves the right to revise these terms and conditions of use for the Service at any time by posting an updated version of these Terms on its website. You are responsible for regularly reviewing these Terms. Continued use of the Service after such change will constitute your acceptance of such revised terms. Any change in the terms or conditions of these Terms shall not constitute a change in service that affects any Subscription Agreement or Enterprise Agreement nor will it allow for a termination of any Subscription Agreement or Enterprise Agreement.
The failure or delay of Agrian to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision, nor shall any single or partial exercise of a right preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
6.4 ENTIRE AGREEMENT.
The terms and conditions herein, including any executed Subscription Agreement or Enterprise Agreement and/or any associated Statements of Work, Subscription Forms, Order Forms, Pricing Addendums, Service Level Support, Change Management Procedure, Exhibits, and Change Orders, constitute the entire agreement between you and Agrian and governs your use of the Service, and supersedes all other prior agreements or understandings, both written and oral, with respect to the subject matter hereof. Should any part of this agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties and the remaining portions shall remain in full force and effect. These Terms shall be interpreted as to its fair meaning and not strictly for or against any party. Paragraph or section headings are solely for the convenience and are not intended to affect, any of the terms or provisions hereof.
6.5 APPLICABLE LAW AND DISPUTE RESOLUTION.
All disputes arising out of your use of or interaction with the Service shall be governed by California law, excluding its conflict of law principles, and settled by binding arbitration under the Commercial Rules of the American Arbitration Association, in Fresno County, California, by a single arbitrator selected in accordance with such rules. In any such arbitration proceeding, each party shall initially bear all of its own costs and share joint costs such as the cost of an arbitrator; upon resolution, the losing party shall pay the other party all costs incurred by the other party for the arbitration, including reasonable attorneys’ fees.
These Terms are written in the English language only, which language will be controlling in all respects, and all versions of these Terms in any other language, even if the translation was provided by Agrian, will not be binding on the parties. Translated terms are provided to you solely as convenience. All communications and notices to be made or given pursuant to these Terms will be in the English language.
6.7 CAPACITY AND AUTHORITY TO CONTRACT.
You represent that you are of the legal age of majority in your state of residence and, if applicable, you are duly authorized by your employer, to enter into this agreement and to be bound by these Terms.
6.8 NO DAMAGES FOR TERMINATION.
Neither party will be liable to the other for damages, losses, costs or expenses of any kind or character whatsoever on account of the termination or early termination of any contractual relationship created by these Terms, a Subscription Agreement, or an Enterprise Agreement, arising from or in connection with the loss of prospective sales, or expenses incurred or investments made in connection with the establishment, development or maintenance of either party’s business.
ADDITIONAL QUESTIONS OR INFORMATION
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