This Subscription Agreement (“Agreement”) is entered into between AgTools, Inc. (“us” or “Company”) and you, in your individual capacity, and the organization on whose behalf you are accepting this Agreement, registering for use of, or otherwise setting up, accessing or using, the Service (collectively, “you” or “Customer”) and is effective as of the earlier of your registration or first use of the Service (“Effective Date”). You represent and warrant that you have the full right and authority to bind the Customer to this Agreement, and that the Customer is fully aware of, understands, and agrees to be bound by all the terms and conditions of this Agreement. Company will provide the Service to Customer pursuant to this Agreement, and any specific limitations set forth in an Order Form, as may be executed hereunder from time to time.
1. DEFINITIONS. In addition to the terms defined elsewhere in the Agreement, the terms set forth in this Section 1 will have the following meanings:
1.1. “Authorized Users” means Customer’s employees, consultants and contractors authorized by Customer to access and use the Service, [who have been supplied user identification and passwords by Customer]. Authorized Users do not include: (i) Customer’s suppliers; or (ii) employees, consultants, contractors or suppliers of any entity which directly or indirectly controls, is controlled by or is under common control with Customer.
1.2. “Service” means the software-as-a-service solution made available to Customer by Company.
2. USE OF THE SERVICE.
2.1. Use of the Service. Subject to Customer’s complete and ongoing compliance with the terms of this Agreement, Company hereby grants Customer a nontransferable, non-exclusive right to, and to allow Authorized Users to, access and use the Service for its internal business purposes.
2.2. Proprietary Rights. This is a subscription agreement for use of the Service. The Agreement is not a sale, or assignment and transfer, of any software. Customer agrees that Company, its licensors or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights in and to the Service, any and all related and underlying software (including interfaces created by Company), data, databases, technology, reports and documentation, and any adaptation, modification, derivation, addition or extension to the Service (together, the “Company Materials”). Except for the rights expressly granted hereunder, nothing in the Agreement gives the Customer any right, title or interest in or to the Service or the Company Materials.
2.3. Restrictions on Use. Except as expressly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not allow any Authorized User or third party to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Service by any means, or disclose any of the foregoing; (ii) except as expressly set forth in the Agreement, provide, rent, lease, lend, or use the Service for timesharing, subscription, or service bureau purposes; (iii) resell, redistribute, rent, lease or lend the Company Materials; (iv) sublicense, transfer or assign the Service or any of the rights or licenses granted under the Agreement; or (v) remove or obscure any trademark, product identification, proprietary marking, copyright or other notices provided with the Service or related documentation.
2.4. Customer Responsibilities. Customer will use the Service in compliance with all applicable laws, rules and regulations. Customer is responsible for all activity occurring under Authorized User accounts and for each Authorized User’s compliance with all terms and conditions of the Agreement. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Company to prevent or terminate unauthorized use of the Service. Customer agrees to exercise discretion and use independent judgment when making decisions based on information, predictions or forecasts obtained through the Service. As further described in Sections 7and 8, the Company is not responsible for Customer’s use of any information, predictions or forecasts obtained through the Service, and will not be liable for any results obtained from, or damages caused by, Customer’s use of the foregoing.
2.5. Changes. Company may from time to time develop enhancements, upgrades, updates, improvements, modifications, extensions and other changes to the Service (“Changes”). Customer hereby authorizes Company to implement such Changes, provided that Company agrees to use commercially reasonable efforts to ensure that any Changes will not materially diminish the features or functionality of the Service.
2.6. Feedback. If Customer provides any feedback to Company concerning the functionality or performance of the Service (including identifying potential errors and improvements) (“Feedback”), Company will be free to use the Feedback without payment or restriction and Customer hereby assigns to Company all right, title and interest in and to the Feedback.
3. FEES; PAYMENT.
3.1. Price. Unless otherwise set forth on an Order Form, fees for the Service are described on our Pricing page. All fees are in U.S. Dollars and are non-refundable. Company reserves the right to determine pricing for the Service. Company will make reasonable efforts to keep pricing information published on the website up to date. Company may change the fees for any feature of the Service, including additional fees or charges, if Company gives advance notice of changes before they apply. Company, at its sole discretion, may make promotional offers with different features and different pricing to any of Company’s customers. These promotional offers, unless made to Customer, will not apply to Customer or this Agreement.
3.2. Authorization. Customer hereby authorizes Company to charge all sums for the level of Service selected by Customer including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Company may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
3.3. Subscription Service. The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If Customer activates a Subscription Service, Customer authorize Company to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. For information on the “Subscription Fee”, please see our Pricing page. Customer’s account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until Customer cancels the subscription or until terminated by Company. Customer must cancel the subscription before it renews in order to avoid billing of the next periodic Subscription Fee. Company will bill the periodic Subscription Fee to the payment method Customer provides to us during registration (or to a different payment method if you change your payment information). Customer may cancel the Subscription Service by contacting us at: .
3.4. Delinquent Accounts. Company may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
4. TERM AND TERMINATION.
4.1. Term. The Agreement commences on the Effective Date and continues until terminated (the “Term”).
4.2. Termination. Either party may terminate the Agreement by written notice if the other party commits a material breach and fails to cure such breach within thirty (30) days following receipt of written notice of such breach. If Customer violates any provision of this Agreement, Customer’s authorization to access the Service and this Agreement will automatically terminate. Customer may terminate its account and this Agreement at any time by contacting customer service at [email@example.com]; provided that Company will have no obligation to refund fees already paid. In addition, Company may, in its sole discretion, terminate this Agreement or Customer’s account at any time.
4.3. Effect of Termination. Upon any termination or expiration of the Agreement (i) Company will terminate Customer’s access to the Service and will cease providing the Service; (ii) Customer will immediately cease any and all use of and access to any Service; (iii) Customer must pay any unpaid amount that was due prior to termination and all payment obligations accrued prior to termination survive; and (iv) sections 2.6, 4.3, 5,6, 7, 8, and 9 will survive.
5.1. Obligations. During the term of the Agreement and for a period of three (3) years after the date of termination or expiration of the Agreement, each party: (i) will treat as confidential all Confidential Information (as defined below) provided by the other party; (ii) will not use such Confidential Information except as expressly permitted under the terms of the Agreement or otherwise previously authorized in writing by the disclosing party; (iii) will implement reasonable procedures to prohibit the disclosure, unauthorized duplication, reverse engineering, disassembly, decompiling, misuse or removal of such Confidential Information; and (iv) will not disclose such Confidential Information to any third party. Without limiting the foregoing, each party will use at least the same degree of care to prevent the disclosure of the other party’s Confidential Information as it uses to prevent the disclosure of its own Confidential Information, and will in any event use no less than a reasonable degree of care. “Confidential Information” means all confidential information of a party, whether written or oral, and whether in paper or electronic format, disclosed to a receiving party that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential information related to either party’s customer lists, customer information, products, technical information, pricing information, pricing methodologies, or information regarding the disclosing party’s business planning or business operations will be deemed Confidential Information without any marking or further designation. For clarity, the Company Materials are Company’s Confidential Information.
5.2. Exceptions. Notwithstanding the above, the receiving party’s nondisclosure obligations will not apply to information that: (i) was generally available to the public at the time it was disclosed, or becomes generally available to the public through no fault of the receiving party; (ii) was known to the receiving party at the time of disclosure as shown by written records in existence at the time of disclosure; (iii) was developed independently by the receiving party prior to the disclosure, as shown by written records in existence prior to the disclosure; (iv) is disclosed with the prior written approval of the disclosing party; (v) becomes known to the receiving party from a source other than the disclosing party without breach of the Agreement by the receiving party and in a manner which is otherwise not in violation of the disclosing party’s rights; or (vi) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party will provide reasonable advance notice to enable the disclosing party to seek a protective order, and that such information remains Confidential Information for all other purposes.
6. INDEMNITY. To the fullest extent permitted by law, Customer will defend and indemnify Company and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Company Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) Customer’s use of, or misuse of, the Service; (b) Customer’s violation of any portion of this Agreement or any applicable law or regulation; (c) Customer’s violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between Customer and any third party. Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (without limiting Customer’s indemnification obligations with respect to that matter), and in that case, Customer agrees to cooperate with Company’s defense of those claims.
7. DISCLAIMER OF WARRANTIES. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COMPANY DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND COMPANY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
7.1. ALL INFORMATION, PREDICTIONS, FORECASTS AND SIMILAR MADE AVAILABLE THROUGH THE SERVICE ARE FOR INFORMATIONAL PURPOSES ONLY AND COMPANY DOES NOT WARRANT SUCH INFORMATION, PREDICTIONS OR FORECASTS ARE OR WILL BE TRUE OR ACCURATE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR COMPANY OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING THE COMPANY OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE OR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM DECISIONS MADE BY YOU BASED UPON INFORMATION, PREDICTIONS OR FORECASTS OBTAINED THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Company does not disclaim any warranty or other right that Company is prohibited from disclaiming under applicable law.
8. LIMITATIONS OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO CUSTOMER’S ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
8.1. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE COMPANY ENTITIES TO CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT CUSTOMER HAS PAID TO COMPANY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $500.
8.2. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. GENERAL PROVISIONS.
9.1. Governing Law. The Agreement will be governed by and construed in accordance with the laws of the State of California , without application of Delaware conflicts of laws principles and without application of the United Nations Convention on the International Sale of Goods. Customer agrees and submits to the personal and exclusive jurisdiction of the state courts and federal courts located in [Orange County, California for resolution of any lawsuit or court proceeding under this Agreement.
9.4. Severability. If any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
9.5. Waiver. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by Company of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself.
9.6. Assignment. Customer may not assign or transfer this Agreement or its rights under this Agreement, in whole or in part, by operation of law or otherwise, without Company’s prior written consent. Company may assign this Agreement at any time without notice or consent.
9.7. Independent Contractors. The parties to the Agreement are independent contractors. There is no relationship or partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
9.8. Publicity. Neither party may issue any press release regarding the Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers and vendors in accordance with the other party’s standard guidelines.
9.9. Survival. All provisions of the Agreement relating to proprietary rights, payment of fees accrued, and limitation of liability will survive the completion of the Service or any termination of the Agreement.
9.10. Force Majeure. Neither party will be liable to the other for any failure to meet its obligations under the Agreement where such failure is caused by events beyond its reasonable control including, but not limited to, such as failure of communications networks, inability to timely obtain instructions or information from the other party, governmental action, fire, storms, floods or other acts of God, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.