Master Services Agreement US
This is the US Master Services Agreement. Click here for the CA Master Services Agreement.
MASTER SERVICES AGREEMENT
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN THIS MASTER SERVICES AGREEMENT (“Agreement”) CAREFULLY. THIS AGREEMENT MAY ALREADY APPLY TO YOU PURSUANT TO YOUR HAVING ENTERED INTO ANOTHER AGREEMENT WITH DECISIVE FARMING, INCLUDING ANY DECISIVE FARMING GENERAL SERVICE AGREEMENT OR ORDER FORM (AS DEFINED BELOW) AND, IF SO, YOUR CHOOSING “ACCEPT” OR “DO NOT ACCEPT”, OR NOT, WILL NOT AFFECT OR AMEND YOUR OBLIGATIONS TO DECISIVE FARMING OTHERWISE EXISTING.
READ THIS AGREEMENT CAREFULLY BEFORE CHOOSING “ACCEPT” OR “DO NOT ACCEPT”. BY CLICKING ON “ACCEPT”, OR BY ACCESSING AND USING THE SERVICES (AS DEFINED BELOW), YOU ARE ENTERING INTO A BINDING LEGAL CONTRACT WITH DECISIVE FARMING. IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, PLEASE DO NOT CLICK ON “ACCEPT”.
This Agreement is between Decisive Farming Corp. (“Decisive Farming”) and you, as the customer (“Customer”) who signs or accepts any one or more of the following: (a) any Decisive Farming General Service Agreement (whether or not such General Service Agreement incorporates this Agreement by reference), including any memorandum, agreement, appendix, attachment, exhibit, schedule or similar document attached to, incorporated into, forming part of or otherwise constituting part of such General Service Agreement; (b) any memorandum, agreement, appendix, attachment, exhibit, schedule or similar document attached to, incorporated into, forming part of or otherwise constituting part of this Agreement, or any other agreement with Decisive Farming; and (c) any sign up form, purchase order, click-through form, order form, statement of work, work order, memorandum of understanding, or other agreement, document, record, instrument, or request for Services of any kind executed or made between Decisive Farming and Customer, whether via an online form or by paper copy (each and all of the foregoing referred to in this Agreement as an “Order Form”).
Capitalized terms have the meanings defined below. Customer may be any one or more of a Grower, a Reseller or a Service Provider, or may, subject to acceptance and approval by Decisive Farming, have a different role or status.
This Agreement will govern the terms and conditions of all dealings between us and Customer (regardless of type of Customer), written, oral, or otherwise, and all Services provided, or to be provided, by us to Customer. References to the Services will, as applicable, include access to our proprietary software provided as a service, including on a “platform as a service” or “infrastructure as a service” basis, and to data and information as provided in this Agreement. In using or accessing the Services, Customer will not enter into, or perform, any agreement, arrangement or activity with any other customer that is contrary to the terms and conditions of this Agreement or any policy we set from time to time and communicate to Customer with respect to the use of the Services.
Each Order Form provides for, among other things, the Services to be provided by Decisive Farming to Customer.
Customer agrees to contract electronically with Decisive Farming and to be bound by all electronic contracts and communications (including this Agreement and any applicable Order Forms, whether online or in paper form) and transactions between Customer and Decisive Farming. Customer, or Customer’s authorized users of the Services, which may include other customers or third parties, may be required to confirm Customer’s ongoing acceptance of this Agreement from time to time, including upon executing a new Order Form, or logging on to the Services. This confirmation may be by a click-through screen.
By accepting this Agreement, you, as the individual doing so, warrant and represent that you have the full legal authority of Customer to enter into this Agreement and bind Customer, and any other customers or third parties on whose behalf you contract, to this Agreement.
In this Agreement, references to Customer will include any applicable third party, including financial institutions, insurers, professional advisors and any other parties that on Customer’s request or behalf, or with Customer’s authority, accesses the Services or Customer Data and accepts this Agreement. References to Customer shall also include, where applicable, any authorized Dealer or Service Provider that accepts this Agreement on their own behalf or on behalf of other customers. Dealers and Service Providers, and any other entity accepting this Agreement, acknowledge and agree that all the terms and conditions of this Agreement apply to them equally as with any other customer, and further that Dealers and Service Providers will follow and comply with all directives, policies and requirements imposed on them as Dealers or Service Providers from time to time by Decisive Farming. In no event will any Dealer or Service Provider be or become, or be deemed to be, a franchisee (as defined in application franchise legislation) of Decisive Farming.
TERMS AND CONDITIONS:
Capitalized words and phrases in this Agreement shall have the following meanings, unless otherwise expressly defined elsewhere in this Agreement:
“Aggregate Data” means Data extracted from Customer Data, other customer Data and/or Decisive Data and rendered anonymous so that it cannot be linked with Customer, or used to identify Customer, following which it may be aggregated or combined with other Aggregate Data, provided that it remains anonymous and cannot be linked with, or used to identify, any customer.
“Confidential Information” means any information whether oral, or written, of a secret, proprietary or confidential nature, concerning either Party or its business operations, and includes proprietary aspects of the Services and Customer Data.
“Create” (and cognates such as “Created”) with respect to Customer Data, means to upload, transmit, input or otherwise copy or move Customer Data into the Services, or to access, process, download or remove Customer Data from the Services, and shall include authoring, creating, making, editing, saving, storing, modifying, deleting, transmitting, processing, uploading, downloading, viewing, displaying, delivering or otherwise dealing in any manner with Customer Data in or through the Services.
“Customer” means the Person that enters into this Agreement with Decisive Farming. Unless otherwise accepted and approved by Decisive Farming in writing, Customer will be at least one of the following (a) Grower; (b) Reseller; or (c) Service Provider.
“Customer Data” means Data of any kind Created in the Services by Customer, or on Customer’s behalf by a third party Person acting with Customer’s authority (each such third party shall also be a Customer), and includes Dealer Data, Grower Data and Service Provider Data, as the case may be.
“Data” means information, records, documents, data, content, works and materials of any kind.
“Data Transfer Agreement” means any agreement or direction, including an Order Form, pursuant to which a Customer directs or authorizes Decisive Farming to disclose or transfer Data to another customer or Person.
“Dealer” means a Person authorized by Decisive Farming as a distributor, retailer, reseller or dealer of Decisive Farming.
“Dealer Data” means Data Created in the Services by a Dealer, whether with respect to Dealer’s own business or customers, or on behalf of another customer or Person.
“Decisive Data” means information collected or Created by Decisive Farming about Customer and, as applicable, Customer’s land, business and/or operations that is identifiable as being about Customer or its land, business and/or operations, and that is not a matter of public record.
“Grower” means a farmer, rancher, ranch or farm operator, or ranch or farm owner.
“Grower Data” means Data Created in the Services by a Grower, or on Grower’s behalf, with respect to Grower’s own land, operations or business.
“including,” “include” and “includes” mean “including without limitation,” “include without limitation” and “includes without limitation” respectively unless expressly stated otherwise.
“Intellectual Property Rights” means any and all intellectual property rights existing from time to time in any applicable jurisdiction under patent law, trade secret law, confidential or proprietary information law, copyright law, moral rights law, privacy law, publicity law, trademark law, unfair competition law or unfair trade practices law, or other similar law, and shall include the decisions of courts of law and other public or regulatory authorities, and shall further include all rights to claim damages or other remedies with respect to the infringement, dilution, violation or misappropriation of any of the foregoing.
“Order Form” has the meaning stated above.
“PaaS” means platform as a service, and forms a component of the Services available to customers, subject to agreement with Decisive Farming, to use the Services to access and run services and applications to enable such customers to interact with or provide services or products to other customers also using the Services on a PaaS basis or otherwise.
“Party” means either Customer or Decisive Farming, and “Parties” means both Customer and Decisive Farming
“Person” means any individual, company, corporation, firm, partnership, joint venture, association, organization, trust, trade union, governmental body, public body or other legal entity in each case whether or not having a separate legal identity and includes any third party.
“Reseller” means an entity selling another Servicer Provider(s) Services to a customer
“Service Provider” means an entity providing products and services to a Grower or to another Service Provider, pursuant to which either the Service Provider, or the Grower, or both, are a Customer of Decisive Farming.
“Service Provider Data” means Data Created in the Services by a Service Provider, whether with respect to Service Provider’s own business or customers, or on behalf of another customer.
“Services” means and includes all products, services, licenses and access to information, data (including Customer Data, Dealer Data, Grower Data and Service Provider Data) and/or software provided or made available by Decisive Farming to Customer, including access to satellite imagery for Grower land or property or any other product or service offered by Decisive Farming (such as Optimize RX-F™, Know-Risk™, My Farm Manager™, precision agronomics, variable rate technology, carbon credits, soil fertility, crop protection, soil testing, fertilizers, news, blogs, information services, banking, GPS tracking, telematics, accounting, custom application and financial solutions) along with any products or services provided to Decisive Farming by third parties, and then provided to Customer, and further shall include any of the Services provided by Decisive Farming without charge, or made accessible in any way, in whole or in part, to Customer as set forth in an executed Order Form or in this Agreement. The Services may include the provision of PaaS functionality, and, in providing the Services, Decisive Farming may directly provide services, or may grant licenses or sub-licenses, including licenses permitted by third parties.
“Suspend” or “Suspension” will mean the act by Decisive Farming of restricting or suspending access to the Services, including access to Data.
“Term” means the term of this Agreement, which, unless otherwise agreed in writing by the Parties and subject to termination as provided in this Agreement, shall expire six months after the last Order Form has expired or has been terminated. The Term of an Order Form shall begin on the Commencement Date (as defined in that Order Form) and continue in effect until the later of the end date stated in that Order Form or such later end date as may be agreed between the Parties.
2. BILLING AND PAYMENT
Except where Decisive Farming has agreed to other arrangements, all payments to us will be made in advance by cheque/check or debit, or, if approved by Decisive Farming; credit card, and payment terms shall be as stated by Decisive Farming. Customer authorizes us to process any and all payments by the credit card provided by Customer or on its behalf, and Customer consents to our collection, use and disclosure of Customer’s personal information for billing and payment purposes, and as reasonably required to provide the Services. Each Order Form will set out the applicable fees (the “Fees”) for the Services set out in the Order Form. Invoices will be sent to Customer’s billing address in the applicable Order Form and may be delivered by email. Email sent by Decisive Farming to Customer will be deemed received immediately upon sending by Decisive Farming unless Decisive Farming receives a message stating that email to Customer has not been delivered. Customer agrees to maintain a valid and operational email address for the purposes of this Agreement. Customer’s payments are due within thirty (30) days after delivery of each invoice; unless stated otherwise. Any and all Fees not paid when due shall bear interest at the lesser of 1.5% per month compounded (19.56% annually) or the maximum interest rate permitted by applicable law. Customer will be responsible for any sales, use, P.S.T. or H.S.T. (where applicable), G.S.T. or comparable taxes assessed or imposed upon the Services provided or the amounts charged under this Agreement. We reserve the right to increase the Fees on a year to year basis.
3. INTERPRETATION AND ENFORCEMENT
a) This Agreement will be governed and interpreted according to the laws of Minnesota, United States, without regard to the conflicts of law rules. The parties agree to resolve any and all disputes, controversies and claims arising out of or related to this Agreement without regard to the conflict of laws rules by consulting and negotiating with each other and, recognizing their mutual interests, attempting to reach a satisfactory solution. If they do not reach settlement within a period of sixty (60) days, then, upon notice by any party to the other(s), any unresolved dispute, controversy or claim shall be settled by binding arbitration administered by the American Arbitration Association in accordance with the then-current provisions of its International Arbitration Rules. The arbitration panel will consist of one (1) arbitrator. The location will be Minneapolis, Minnesota, United States of America. The language will be English. Judgment on the award rendered in any such arbitration may be entered in any court having jurisdiction. Any arbitration must be on an individual basis and the parties and the arbitrator will have no authority or power to proceed with any claim as a class action, a multi-party proceeding, or to otherwise join or consolidate any claim with any other claim or any other proceeding involving third parties.
b) The section headings in this Agreement are solely for convenience and will not be considered in its interpretation.
c) Each Order Form made pursuant to this Agreement is hereby incorporated by reference as if set forth in this Agreement and may be executed without any further amendment to this Agreement.
d) This Agreement including any later argued or determined ambiguity shall not be construed against the drafting Party.
e) In the event of any conflict between this Agreement and any Order Form, or our Statement of Data Principles, or other document, record or policy of Decisive Farming, or other agreement or understanding with Decisive Farming, the provisions of this Agreement will prevail.
f) In performing, making available or providing the Services, we are an independent contractor and consultant, and neither Decisive Farming nor any of its employees, dealers, distributors, agents or subcontractors (including INTL FCStone Inc., and its subsidiaries) shall be deemed to be partners, employees, agents or subcontractors of Customer by this Agreement.
g) Decisive Farming may amend this Agreement at any time upon thirty (30) days’ notice in writing (which may be delivered by email) to Customer of such amendment.
h) Decisive Farming will not be bound by any terms or conditions included in any purchase order or other correspondence from Customer unless Decisive Farming expressly accepts such terms or conditions in writing.
i) Customer acknowledges that a breach by Customer of this Agreement may cause Decisive Farming irreparable harm from which no adequate remedy exists at law, and for which damages will not be an adequate remedy, and that upon any such breach or threatened breach, and notwithstanding any other provision of this Agreement, Decisive Farming shall be entitled to injunctive relief in any court of competent jurisdiction without prejudice to any other right in law or equity and without the necessity of prior demand or proof of damage.
4. CUSTOMER AGREEMENT WITH DECISIVE FARMING
a) Customer agrees that it will comply in all respects with all provisions of this Agreement (including all documentation such as Order Forms and Data Transfer Agreements) incorporated into this Agreement, including all obligations to pay money owing Decisive Farming. Customer will also observe any aspects of our Statement of Data Principles applicable to customers.
b) Customer agrees, and warrants and represents to Decisive Farming that: (i) Customer has all requisite legal or corporate capacity, legal authority and all required approvals permitting Customer to enter into, perform and be bound by this Agreement and has had and may or may not have taking the opportunity to be advised by its legal counsel; (ii) by entering into or performing under this Agreement or by receiving the Services, or by providing or Creating Customer Data, or by directing Decisive Farming to transfer or disclose Data to another customer or third party (whether by a Data Transfer Agreement or otherwise), Customer will not be in breach of any obligation or duty to any Person, whether legal, equitable, fiduciary or otherwise; and (iii) all Customer Data provided or Created by Customer and use thereof will be lawful and fully in compliance with this Agreement.
c) Customer will comply with all acceptable use policies or other similar policies of Decisive Farming posted or communicated to Customer from time to time. Posting in the Services or notification by email will constitute communication to Customer. Customer will inform Decisive Farming (at Sales@Decisivefarming.com) of any change to Customer’s email address.
d) Customer may access and use the Services only for lawful purposes only and in accordance with terms and conditions of this Agreement. Without limitation, Customer will not, and Customer will not permit any user Customer authorizes or any other Person to:
i) modify, translate, reverse engineer, decompile, disassemble, alter, copy, disseminate, distribute, publish or broadcast the Services or any related, included or associated software, or create compilations or derivative works based on the Services or any such software, or assist or allow anyone to perform any one or more of those acts;
ii) remove, alter or obliterate any proprietary notices, labels, or marks on the Services;
iii) obtain by any means whatsoever information regarding the personal identification or password of any other Person that is a customer or licensee of Decisive Farming;
iv) interfere with the Services, or any applications, software, programs, information, documents, records or Data managed or stored by Decisive Farming;
v) develop or use applications, software or programs at any time that adversely affect or impact other customers, the Services, any Data, the Internet, or any computer network;
vi) undertake or carry out any activity that actually or potentially creates liability or damage to Decisive Farming, or damage to, or that interferes with the Services, Decisive Farming’s computer systems, Decisive Farming’s other customers or licensees, or Decisive Farming’s licensors or suppliers;
vii) use, transmit or store anything, or Create any Data, that is obscene, illegal, tortious, defamatory, harassing or offensive, or that breaches or violates any law related to privacy, or that appropriates rights of personality, or that violates the rights of any individual with respect to their personal information or rights of privacy, or that constitutes hate literature or pornography, or that constitutes a chain letter, multi-level marketing arrangement or pyramid scheme, or that in any way violates or infringes copyright, moral rights, trademark, patent or other intellectual property rights of any kind of any Person;
viii) use the Services for any purpose that is contrary to the laws of any government or other legal authority having jurisdiction over Decisive Farming or Customer, including using the Services for any purpose that constitutes a tort or breach of legal, fiduciary, equitable or other duty;
ix) use the Services, or our systems, computers or networks for any purpose other than what is necessary for access to and use of the Services; or
x) use the Services as a service bureau (except to the extent permitted to Dealers or Service Providers by Decisive Farming), or to send or distribute unsolicited commercial electronic messages (commonly known as “spam”), or to send, receive or transmit any material that contains viruses, Trojan horses, worms, time bombs, cancel bots, malware, or any other harmful or deleterious programs.
Without limitation, Customer warrants and represents that all Customer Data Created by Customer, or on its behalf, or on behalf of other customers or third-party Persons in the Services will be in compliance with the foregoing, and will be accurate, and Customer will indemnify. defend and hold harmless Decisive Farming and its employees, officers, directors, sub-contractors and agents against any breach by Customer of this Section 4.
a) Except as otherwise expressly stated in an Order Form or other written documentation signed by Decisive Farming, the Services are licensed and not sold and not sublicensable. Customer does not own the Services. Decisive Farming retains exclusively all rights, including all Intellectual Property Rights, not expressly granted to Customer under this Agreement.
b) The Services will be available to Customer on a commercially reasonable basis, less:
i) scheduled maintenance times, which Decisive Farming will reasonably attempt to schedule outside regular business hours where reasonably possible, and
ii) disruptions to the Services for force majeure or other reasons beyond the reasonable control of Decisive Farming.
c) Where Decisive Farming has agreed to host or archive Customer Data on behalf of Customer, or to permit Customer to Create Customer Data in the Services, the following provisions will apply: Decisive Farming will retain Customer Data that Decisive Farming has agreed to host or archive on behalf of Customer during the Term of this Agreement and for one (1) month following the expiry of the Term or termination of this Agreement, howsoever caused, following which Decisive Farming shall have no obligation to retain Customer Data on behalf of Customer, and may delete or destroy such Customer Data without further notice to Customer, and without any liability whatsoever to Customer. Customer is strongly advised and recommended to carefully archive and maintain Customer’s own backups of Customer Data, and Customer represents and warrants that it will do so. In no event will Decisive Farming be liable to Customer for any loss of data or failure of Customer’s own backups for more than the total of all fees paid to Decisive Farming by Customer as provided in Section 13, and Customer will fully indemnify. defend and hold harmless Decisive Farming against any claim by Customer in excess of such fees paid by Customer arising out of loss of Customer Data in circumstances where Customer carrying out backups of such Customer Data would have avoided such loss.
d) During the Term, but not thereafter, Decisive Farming will make commercially reasonable efforts to recover Customer’s Customer Data accidentally or inadvertently deleted by Customer if it is reasonably possible to do so. Decisive Farming provides no warranty, condition or guarantee that efforts to recover Customer Data will succeed.
e) In the event Decisive Farming receives a request or demand from Customer or any third party to preserve and/or produce Customer Data, Decisive Data, or other records, documents or data related to Customer, Decisive Farming will comply with all applicable laws and legal obligations related to such request or demand and may do so without any liability to Customer. Where permitted by law to do so, Decisive Farming may inform Customer of any such request or demand from a third party. Any costs or expenses incurred by Decisive Farming in complying with any such request or demand will be paid by Customer immediately.
f) The following provisions shall apply to the ownership of Data, and shall apply notwithstanding the Intellectual Property Rights at law in such Data:
(i) The Customer Creating Customer Data in or through the Services is presumed to be, and shall be, as between Customer and Decisive Farming, the owner of such Customer Data, and Decisive Farming will be entitled to conclusively rely on such presumption, unless proven otherwise to the satisfaction of Decisive Farming.
(ii) Without limitation, it is agreed and understood that one Customer, with the authority of another customer, may create Customer Data on behalf of such other customer in or through the Services. Dealers and/or Service Providers may Create Grower Data on behalf of Growers, or on behalf of other Dealers and/or Service Providers, Growers may Create Dealer Data or Service Provider Data with the authority of Dealers and/or Service Providers, and so on, but in so doing, all customers, including Growers, Dealers and Service Providers, warrant and represent to Decisive Farming that they either own the other customer’s Customer Data, including any Grower Data, Dealer Data or Service Provider Data, or have the right to enter the other customer’s Customer Data into the Services.
(iii) As between Customer and Decisive Farming, Customer shall have a right to a copy of all Customer Data (excluding Decisive Data) entered into the Services by, or on behalf of such Customer, including where, and whether or not such Customer Data was entered by a Grower, Dealer or Service Provider on behalf of Customer. Without limitation, a Grower shall have a right to a copy of all Customer Data that is specifically about or related to such Grower’s business.
(iv) Under no circumstances will Decisive Farming have any liability whatsoever to Customer with respect to disputes regarding Creating Customer Data or the ownership of Customer Data, or any obligation to be or become involved in disputes between two or more customers regarding Customer Data, or to adjudicate such disputes. Customer warrants and represents that it has contractual arrangements in place that adequately deal with the manner in which any disputes over ownership of Customer Data may be resolved without the involvement of Decisive Farming.
(v) In all cases, Decisive Farming has the right, but not the obligation, to require that a written Data Transfer Agreement be in place between Customer and other customers that are accessing or using the Services, or Creating Data in the Services, in any joint or coordinated manner. To the extent that Decisive Farming requires a license to copy, use, display, publish, process or distribute Decisive Data related to Customer, Customer irrevocably grants such license.
g) The following provisions shall apply to the Services providing PaaS functionality:
(i) The Services provide many functionalities and options, including access to software, products and services of many kinds, and customers are generally free, subject to any agreement otherwise with Decisive Farming, including any Order Form or service agreement with a fixed term or longer term, and any policy of Decisive Farming, to select, enroll in and discontinue such functionality and aspects of the Services as they see fit in their sole discretion.
(ii) Customer is solely responsible for the consequences of their use of the Services, including the provision of PaaS functionality, and Customer assumes all risk related to such PaaS functionality, including any claims by other customers for misuse of Data, breaches of privacy legislation or laws regulating the collection, use or disclosure of personal information, breaches of legislation regarding unsolicited commercial messages or “spam”, breaches of Intellectual Property Rights of other customers, breaches of the confidentiality of Confidential Information of other customers, and breaches of any other proprietary, legal or equitable right or interest of any customer or other Person.
(iii) Customer is free to interact between themselves using the Services as PaaS functionality, but in no event will Decisive Farming have any responsibility or liability to Customer arising out of interaction between such Customer and any other customer or third party using the Services. Without limitation, Customer warrants and represents to Decisive Farming that, where Customer accesses, copies, displays, uploads, downloads, transmits, processes, modifoes, delete or otherwise use the Data of any other customer, including any personal information of Customer or other Person, they have the full consent and authorization to do so from the other customer or Person, and Customer will indemnify, defend and hold harmless Decisive Farming against any claims by other customers or any other Person related to such Data or any lack of consent or authorization, or other breach of any legal or equitable duty.
(iv) Subject to any agreement Customer may have with other customers, Customer and all other customers may freely opt in and opt out of the Services or modules or aspects thereof and may freely opt in and opt out of receiving commercial electronic messages from Decisive Farming or on its behalf. Under no circumstances will customer, including when using the Services as PaaS functionality or otherwise, breach any legal or equitable duty to another customer or Person, or breach any applicable law or legislation.
(v) Decisive Farming, in its sole discretion, shall have the right but not the responsibility, to permit or require Customer to be listed in online directories, and such listings may include Customer’s trademarks, logos and designs, in which case Decisive Farming is granted all necessary permissions and licenses by Customer to permit Decisive Farming to display all Customer trademarks, logos, designs and any other content, documents, records, works, information or Data.
h) Any suggestions Customer provides to Decisive Farming with respect to the Services or any related or underlying software, or any changes or improvements to either the Services or such underlying software, shall immediately become the exclusive property of Decisive Farming. All moral rights in any suggestions Customer provides are waived by Customer to the extent that Customer has such moral rights.
i) Customer acknowledges and agrees that certain aspects of the Services are, or may be, supplied by, provided by or made available by third parties and Decisive Farming has no control over the actions of such third parties. Decisive Farming shall have the right to terminate, without liability to Customer, all or any portion of the Services where the actions, errors or omissions of any one or more third parties make the Services or such portion thereof no longer available or otherwise commercially unreasonable to provide. Decisive Farming will make commercially reasonable efforts to provide Customer with notice of any termination or change pursuant to the foregoing, but Customer acknowledges and agrees that Decisive Farming may not receive notice from such third parties and therefore may not be able to provide notice to Customer.
j) In the event Decisive Farming is requested by Customer to render services, deliver products, or incur costs in relation to matters not included in the Services, Decisive Farming may invoice Customer at Decisive Farming’s then standard time and materials rate for such non-included service or services, and Customer shall pay such invoice, provided Decisive Farming is willing and available to perform such services and, where applicable, Customer’s credit card is accepted for payment or, where acceptable to Decisive Farming, Customer otherwise agrees to pay all such payments promptly as provided herein. Decisive Farming expressly accepts no obligation to perform any such non-included services.
6. INTELLECTUAL PROPERTY RIGHTS
a) The Services and any included or related software, content and/or materials are the exclusive property of Decisive Farming or its licensors and are protected by copyright law and international treaties.
b) Subject to Customer’s continued compliance with the terms and conditions of this Agreement, Customer receives only certain limited, nonexclusive rights and licenses to access the Services and use any related software on the terms and conditions set out in this Agreement, and such access and use is limited to being done in the United States.
c) Nothing in this Agreement will be construed as granting to Customer any waiver, permission, license or other right from Decisive Farming except as expressly stated.
d) Except for custom-developed software expressly agreed in writing by Decisive Farming in an executed Order Form to belong to Customer and delivered to Customer, Decisive Farming retains all Intellectual Property Rights in and to the Services, including copyrights, patent rights, invention rights and rights in confidential information and trade secrets, and moral rights are not waived.
e) Decisive Farming, Optimize RX, Croptivity, Know-Risk (Know-Risk is a trademark of INTL FCStone), and My Farm Manager, together with any associated trademarks, service marks, trade names, logos, graphics or designs, are the exclusive property of Decisive Farming, all rights reserved.
Customer acknowledges and agrees that any Intellectual Property Rights that are developed, invented, conceived, reduced to practice, authored, discovered, made or created by either Party as a result of Decisive Farming providing the Services or that are based on Decisive Farming Confidential Information or based on pre-existing Decisive Farming Intellectual Property Rights shall be and hereby are owned exclusively by Decisive Farming, and Customer agrees to take reasonable steps requested in writing by Decisive Farming to record or perfect such ownership, with Customer’s reasonable out-of-pocket costs to so record or perfect ownership being the responsibility of Decisive Farming.
As between Customer and Decisive Farming, all Customer Data is owned by Customer, subject to our rights to collect, use, process, display, store and disclose Customer Data in the course of providing the Services, and to our rights to Aggregate Data as provided in this Agreement.
Each Party agrees to exercise no less than reasonable care to prevent the unauthorized use or dissemination of the other Party’s Confidential Information and agrees to use the Confidential Information of the other Party only for purposes related to the performance of this Agreement. The following information shall not constitute Confidential Information: (i) information that is generally known or available by publication, commercial use, or otherwise, or becomes generally known through no fault or breach of the Party receiving the information; (ii) information that was known by the receiving Party prior to receiving the information from the other Party through no wrongdoing; (iii) information that is independently developed by the receiving Party without the use of Confidential Information; or (iv) information that is lawfully obtained from a third party without violation of a confidentiality obligation to the disclosing Party. Either Party may disclose the other Party’s Confidential Information (i) if compelled to do so by a court or government agency having jurisdiction (provided that, unless prohibited by law from doing so, the Party subject to disclosure shall immediately notify the other Party so that the other Party may takes steps to resist disclosure or obtain a protective order; and (ii) to such service providers, subcontractors, agents, and dealers as may require Confidential Information for the performance of the Services, as long as such third parties have agreed to maintain the Confidential Information as confidential in a manner similar to that contemplated in this Agreement.
Subject to express survival provisions in this Agreement, this Agreement may be terminated by written notice of termination:
(i) by one of the Parties if the other Party materially breaches any of its obligations under this Agreement and the material breach is not cured within 30 days of the breaching Party’s receipt of written notice of such breach;
(ii) by Decisive Farming if Customer uses the Services in violation of the terms and conditions of this Agreement and such violation is not cured within five (5) days of delivery to Customer of notice of such violation, provided that where Customer’s conduct constitutes a threat to the Services, or to the business, software or systems of Decisive Farming, or to other customers, Decisive Farming may immediately Suspend Customer’s access to the Services, including to Customer Data, and such Suspension may continue for as long as the threat may persist; or
(iii) by Decisive Farming, if Customer does not make timely payment of Fees or other amounts due under this Agreement or in accordance with any Order Form, or application for credit, and fails to cure such payment default within fifteen (15) days of delivery of written notice. The above termination rights, as may be applicable, may also be exercised by a Party with respect to an individual Order Form or Data Transfer Agreement.
Part of the Services includes access to data and information considered by the Parties to be useful and valuable, including Aggregate Data. Customer therefore irrevocably agrees that those aspects of Customer Data and Decisive Data that have been rendered anonymous and not identifiable with Customer, may then be combined or aggregated by Decisive Farming with other data, content, materials, documents, records or information, including the Customer Data and Decisive Data of other customers of Decisive Farming, into Aggregate Data, and then copied, used, published, posted, provided, distributed, disclosed, publicly performed, publicly displayed or otherwise made available by Decisive Farming to its customers as part of the Services.
Customer may revoke its consent to collection and use of Decisive Data at any time upon written notice to Decisive Farming, provided that Customer acknowledges and agrees that such revocation may impair or end the ability of Decisive Farming to continue to deliver or make available some or all of the Services to Customer, and that Decisive Farming’s rights with respect to Aggregate Data related to Customer already in existence at the time are irrevocable and will continue in effect. Decisive Farming is granted by Customer all necessary rights, permissions and licenses to use Decisive Data and Customer Data to perform the Services required under this Agreement and an exclusive, irrevocable, fully-paid and permanent license to copy, use, publish, display, make derivative works and Intellectual Property from, process, store, destroy, distribute or otherwise control or exploit Aggregate Data.
10. DATA ON TERMINATION.
Upon termination or expiry of this Agreement, Decisive Farming will, upon written request of Customer, deliver to Customer, or to another customer or third party as designated by Customer, in a commercially reasonable format on commercially reasonable media (or by means of Decisive Farming enabling a download by Customer) one (1) copy of all Customer Data Created in the Services, and hosted in or available through the Services to Decisive Farming, provided that Customer agrees to pay all related costs, charges and fees of Decisive Farming with respect to providing such copy of Customer Data.
It is agreed and understood that such Customer Data may include Data of other customers on behalf of such other customers by the Customer requesting a copy of Customer Data. Decisive Farming shall have the right, but not the obligation, to require proof of the requesting Customer’s right to a copy of Customer Data from the Customer requesting a copy thereof, and/or the right to proof of the requesting Customer’s authority to have all or part of the Data delivered to another customer or third party, or to require that a Data Transfer Agreement in a form satisfactory to Decisive Farming first be executed. Decisive Farming shall be entitled to conclusively rely on any such proof or Data Transfer Agreement provided. In all cases the Customer requesting and/or receiving a copy of Customer Data from Decisive Farming, or having such Data provided to another customer or third party, will fully and forever indemnify Decisive Farming against any and all claims by any customer or third party that Decisive Farming disclosed or provided a copy of such Customer Data to the requesting Customer. or to another customer or third party without the authority or consent, or in breach of the rights, including Intellectual Property Rights, of such other customer or third party. Any Data Transfer Agreement to the contrary shall not be binding on Decisive Farming.
11. DEALERS AND SERVICE PROVIDERS
It is agreed and understood that Dealers and/or Service Providers may bring other customers, including Growers, to Decisive Farming and Dealers or Service Providers may contract with Decisive Farming on behalf of such other customers or Growers. In all such cases, Decisive Farming shall be entitled to conclusively rely on the Customer, as a Dealer or Service Provider acting as agent for another customer or third party, having good and sufficient authority to bind such other customer or third party. Decisive Farming may require that a Data Transfer Agreement or other contract in a form acceptable to Decisive Farming be in place between Customer and such other customer. Customer, if acting as a Dealer or Service Provider, will indemnify, defend and hold harmless Decisive Farming from any claims by other customers or third parties that Dealers or Service Providers have exceeded their authority or otherwise are in breach of contract or duties owed such other customers or third parties. Such other customer, in the course of using the Services, whether directly or indirectly, may be presented or provided, in the same manner as occurs with all users of the Services, with information about the Services, including other available services, features, modules, software, Data or aspects of the Services that are available to Customer. Decisive Farming will not solicit customers brought to Decisive Farming or the Services by Dealers or Service Providers to cease dealing with such Dealers or Service Providers or to cease accessing the Services through the Dealer or Service Provider.
12. PRIVACY AND CONSENT
Consent: Customer consents to receiving commercial electronic messages from Decisive Farming on the basis confirmed on signing up for the Services. Customer may choose to opt out at any time, except to the extent that electronic messages from us constitute part of the Services.
13. DISCLAIMERS AND LIMITATIONS
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDNG WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, PRODUCT LIABILITY OR OTHERWISE, WILL DECISIVE FARMING OR ANY OF ITS AFFILIATES OR SUBCONTRACTORS (INCLUDING INTL FCSTONE INC.), OR ANY OF THE FOREGOING ENTITIES’ DIRECTORS, OFFICERS, SERVANTS, AGENTS, CONTRACTORS, SUB-CONTRACTORS, SUBSIDIARIES OR EMPLOYEES, BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING DAMAGES FOR LOST DATA, LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER OR EQUIPMENT FAILURE OR MALFUNCTION, ECONOMIC LOSS, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICES, PRODUCTS OR AN ORDER FORM. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF DECISIVE FARMING UNDER THIS AGREEMENT OR ANY ORDER FORM, DATA TRANSFER AGREEMENT, OR OTHERWISE EXCEED THE TOTAL OF ALL FEES ACTUALLY PAID BY CUSTOMER, OR PAID ON ITS BEHALF, TO DECISIVE FARMING UNDER THE APPLICABLE ORDER FORM. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, THE SERVICES AND PRODUCTS ARE PROVIDED STRICTLY “AS IS”, “WHERE IS” AND “AS AVAILABLE”. DECISIVE FARMING MAKES NO REPRESENTATIONS, GUARANTEES, CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION.
a) Customer shall indemnify, defend and hold harmless Decisive Farming (and its affiliates and sub-contractors (including INTL FCStone Inc.) and the foregoing entities’ respective employees, directors, officers, servants, contractors, subcontractors, subsidiaries and agents against any and all claims, actions, damages, losses or liabilities arising out of any action brought against Decisive Farming by a third party as a result of Customer’s use of the Services or any Data or materials supplied by Decisive Farming (except for claims by third parties claiming that the Services infringe, misappropriate or violate third party Intellectual Property Rights that are not based on changes or additions to Services by Customer or for Customer by a third party).
b) Subject to the limitations set forth in Section 13 (Disclaimers and Limitations), Decisive Farming will indemnify, defend and hold harmless Customer (and its affiliates and their respective employees, directors, officers, contractors and agents) against any claims, actions, damages, losses or liabilities arising out of any action brought against Customer by a third party as a result of the Services infringing a third party’s Intellectual Property Rights, provided Customer is using the Services as intended and permitted by Decisive Farming, and is in compliance with this Agreement and any applicable Order Form and Data Transfer Agreement.
c) In the event that a third party restricts or enjoins Customer’s use of the Services or Products, or alleges any infringement, dilution, violation or misappropriation of such third party’s rights, including Intellectual Property Rights, by the Services or the actions of Decisive Farming, Decisive Farming shall have the right to obtain additional rights or licenses to allow the Customer to continue using the Services, or to modify the Services so that the third party’s rights are no longer infringed, diluted, violated or misappropriated (or alleged to be), or to terminate the applicable Order Form or this Agreement.
15. ACCESS TO LANDS
Customer acknowledges that in order to provide the Services, and in particular where either Customer is a Grower, or Customer, as a Dealer or Service Provider acts as an agent of a Grower, Decisive Farming may need to access the lands on which Customer’s or the Grower’s operations are located. Customer, on its own behalf, or on behalf of any Grower for which Customer is an agent, agrees to any such access by Decisive Farming personnel or third party contractors as may be reasonably required for Decisive Farming to provide the Services, as long as Decisive Farming provides reasonable advance notice of such access. Such advance notice need not be in writing including that it may be delivered orally by telecommunication, email, text or in person.
16. FORCE MAJEURE
If the performance of an obligation under this Agreement is affected by reason of an act or condition beyond the reasonable control of Decisive Farming, then Decisive Farming, upon giving notice to Customer, shall be excused from performing such obligation to the extent affected. Decisive Farming shall use commercially reasonable efforts to avoid or remove such causes of nonperformance.
All notices, consents and other communications under this Agreement from Decisive Farming to Customer shall be delivered in writing, and may be delivered via fax to a fax number provided by Customer on an Order Form or otherwise, in which case such notice will be deemed to be delivered upon receipt by Decisive Farming of a facsimile transmission confirmation receipt. Notices may be delivered via electronic mail and shall be deemed to have been received the same business day or if after normal business hours, the next business day. Customer’s address for notice and billing is stated in the Order Form. Decisive Farming’s email address for notice is Sales@Decisivefarming.com. Notices to Decisive Farming may also be delivered as follows:
Decisive Farming Corp.
334 2nd Street, Irricana AB, T0M 1B0
18. GENERAL PROVISIONS
a) Customer will not assign this Agreement, an Order Form or a Data Transfer Agreement to which Decisive Farming is a party, in whole or in part, without the prior written consent of Decisive Farming, in Decisive Farming’s sole discretion. Decisive Farming may assign or subcontract all or any part of this Agreement and its rights and obligations under this Agreement or the Services without notice to Customer or Customer’s consent.
b) This Agreement will inure to the benefit of and will be binding on and enforceable by Customer and Decisive Farming and their respective successors and permitted assigns.
c) If any part of this Agreement is void, prohibited or unenforceable, such part will be severed from this Agreement, and the rest of this Agreement will continue in force and effect and will be construed as if such part as severed had never been part of this Agreement.
d) The failure of Decisive Farming to exercise any right under this Agreement, or Decisive Farming’s failure to insist upon strict or full performance of Customer’s obligations under this Agreement will not constitute a waiver of Decisive Farming’s rights hereunder or a relinquishment of any provision of this Agreement. In order to be binding upon Decisive Farming, any such waiver must be express and in writing signed by Decisive Farming. The rights of Decisive Farming under this Agreement are cumulative and not alternative.
e) Any provision of this Agreement that, expressly or by its nature, extends beyond the termination of this Agreement will survive any termination of this Agreement. Without limitation, all obligations to indemnify, defend and hold harmless Decisive Farming upon Customer in this Agreement including those in Sections 4, 5 and 14, as well as Sections 1, 3, 7, 8, 9, 10, 12, 13, 14, 18, the obligation upon Customer to record and perfect ownership of intellectual property set forth in Section 6, all rights of Decisive Farming to copy, use, publish, post, provide, distribute, disclose, publicly perform, publicly display and otherwise deploy, store, destroy or otherwise control Aggregate Data shall survive any termination or expiry of this Agreement, howsoever caused, and shall continue in full force and effect.
[Struck because this 18.f) is the same as 18.a) above.]