Software as a Service Terms & Conditions

Software as a Service (SaaS) Terms & Conditions

Software as a Service - Terms & Conditions

TERMS AND CONDITIONS

January 2024

1. Agreement Acceptance, Parties and Scope

1.1 Parties. In consideration of the benefits and promises set forth below, as well as other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, both you (as referred to by “you” or “your”) and us (as referred to by “us”, “we” or “our” and as further specified in Section 2.4 below) agree to enter into this Agreement as of the Effective Date.

1.2 Acceptance of Terms. Any of the following constitute your acceptance to enter into and be bound by the terms of this Agreement, as of the Effective Date:

(1) by clicking or other technological means of agreeing to these terms; or

(1) by using our Services via our Software. In doing any of the foregoing, you confirm that:

(a) you agree that you have had an opportunity to review and understand the terms of this Agreement, and

(b) you have authority to bind any company or other legal entity on whose behalf you are entering into this Agreement.

1.3 Scope of Agreement. This Agreement also comprises our Privacy Policy and Software Subscriber Agreement, the terms of each of which form a part of this Agreement and are incorporated herein, which you confirm that you have reviewed or have had an opportunity to review. In the event of any conflict or inconsistency in application of the terms of any of the foregoing, solely to the extent necessary to resolve such conflict or inconsistency, unless expressly stated otherwise, we will use the following order of precedence: (1) these terms;

(2) the Privacy Policy; and

(3) the Software Subscriber Agreement.

1.4 Interpretation. Any capitalized terms referred to in this Agreement shall have the meanings defined within the applicable Section or as defined in Section 13 below.

2. Purchased Services

2.1 Purchased Services. We will provide the Purchased Services to you pursuant to this Agreement in accordance with the terms of the Subscription Activated Email for the duration of the Term.

2.2 Users. Only permitted and registered Users may access the Software. Each User must agree to be bound by the Software Subscriber

Agreement and Privacy Policy. Users may not:

(i) share their credentials with other persons or Users, or

(ii) access the Software using credentials that have been previously assigned to another User.

Provided that we are advised beforehand, you may substitute different individuals for previously registered Users upon the issuance of new credentials. Users may have access to information relating to you, such as your Confidential Information, and may, in some cases, be able to make requests on your behalf in respect of the Services we provide to you. You accept the risk and the responsibility for acts or omissions of any of your Users that could result in a breach of this Agreement as if they were committed or omitted by you.

2.3 SaaS Services. We may make our SaaS Services available in accordance with the following:

(a) Standard Subscriptions: the Purchased Services may be only accessed during the Term by Users, or a number of Users, as specified and agreed during the subscription process and shown on the Subscription Activated Email.

(b) Enterprise Subscriptions: the Purchased Services may be accessed by Users that are employed or otherwise engaged by you, but in either case only in the course of and solely in support of their employment and/or engagement with you. Enterprise Subscriptions may be limited according to the tier or level of subscription which applies to you, as specified and agreed during the subscription process and shown on the Subscription Activated Email.

2.4 Performance of Services.

(a) agCOMMANDER Pty Ltd (A.B.N. 41078974679) a company incorporated under the laws of Western Australia, Australia is the entity with whom you agree to enter into and be bound by the terms of this Agreement and who shall carry out the Services for you pursuant to these terms;

(b) The applicable governing law for this Agreement and in respect of any rights, duties and obligations of the parties, and conflicts arising in respect of the foregoing, without regard to choice or conflict of law rules is the law of Western Australia (and the Federal law of Australia to the extent it applies).

(c) The courts which the parties consent to having exclusive jurisdiction in respect of disputes in connection with this Agreement are the court of Perth, Western Australia

(d) Additional special terms that may apply as follows:

i) In relation to the supply of goods or services our failure to comply with any provisions of the Consumer Protection Act, 2008 and equivalent legislation, including any terms implied by operation of that Act, is limited to the maximum extent permitted by that Act, equivalent legislation or law.
ii) We are not responsible for compliance by you and your Users with applicable laws, regulations, standards and codes of practice, including the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947 (as amended and as variously described), and any requirements or directions of the Department of Agriculture, Forestry and Fisheries or other regulatory authorities, relating to products or services supplied or provided to you, your Users or any other person by a Supplier or any other person by reason of or in any way arising from access to, use of or reliance upon the Software or our Services.

iii) You also acknowledge that our Services are provided to you in or from Australia and that you have in place all necessary regulatory approvals and authorisations to enable you to acquire and make use of the Services in your country and provide payment to us as provided in this Agreement

3. Use of Services

3.1 Our Assurances. Provided you are in compliance with the terms of this Agreement: (a) We will provide Basic Support for the Purchased Services to you at no additional charge, and/or Upgraded Support if purchased separately; and (b) We will provide the Purchased Services with reasonable care and skill.

3.2 Your Assurances. You acknowledge and agree that you:

(a) Are responsible for your Users’ compliance with this Agreement;

(b) Are responsible for the accuracy, quality and legality of the data that you provide us and the means by which you acquired that data;

(c) Will only provide data which you are entitled to use, is in compliance with this Agreement and which does not infringe on any third party’s Intellectual Property and/or contractual and other rights;

(d) Will take reasonable steps to prevent unauthorized access to or use of the Services and any agCOMMANDER IP in accordance with the terms hereof, and notify us promptly if you are aware of any such unauthorized access or use;

(e) Will use the Services and any agCOMMANDER IP only in accordance with this Agreement, the User Guides and Applicable Laws;

(f) Are responsible to maintain proper back-ups of all data that you provide us

3.3 Usage Restrictions. You agree that you shall not:

(a) Make the Services available to anyone other than your Users;

(b) Supply, rent, sell, transfer, assign, lease, license, sub-contract or grant any rights in and to the Services;

(i) In a manner which will harm or adversely affect another person or the data, computer systems or other property of another person (including the ability of another person to use the Services)

(ii) In a manner which does, or is reasonably likely to, degrade the performance of the Services or cause them to malfunction or operate in any improper way

(iii) Directly or indirectly for any unlawful purpose, including to infringe Intellectual Property rights or privacy rights of any other person, or to transmit information that is defamatory, libelous or offensive, or otherwise illegal, harmful or fraudulent;

(iv) In a manner which alters or damages the Services, or jeopardizes their integrity, safety or security;

(v) To store or transmit Malicious Code;

(vi) In breach of the use conditions and restrictions herein; and/or

(d) Commit or omit any act or omission, which is prohibited by the Software Subscriber Agreement, in respect of the Services, Hardware, and/or Software.

3.4 Availability of Services. We make no guarantee that the Services will remain available at all times or be free from planned or unforeseen outages. We may at any time (including without notice) immediately suspend part of or all Services including where:

(a) We are required to undertake the repair, maintenance or service of any part of the Software (or an interconnected third party is required to undertake such work on its network);

(b) suspension of the Software is required to reduce or prevent fraud or interference with the Software;

(c) Your use of the Services causes serious degradation of the operation of the Software or adversely affects the ability of others to access or use the Software;

(d) We are required to comply with an order, instruction or request of any governmental emergency services or other competent authority; or

(e) We experience problems interconnecting the Software with any third party network of a third party.

3.5 Variation of Services. From time to time we may improve, or otherwise vary or alter, the Services, including the manner of their performance or delivery, but in any case so as not to alter the fundamental or basic nature of those Services. You agree that any variation or alteration of the Services in accordance with this clause does not entitle you to any reimbursement, discount or reduction in the fees payable for the Services.

4. Free Trial and Beta Services

4.1 Free Trial. From time to time, we may elect to make certain Services, including upgrades or Beta Services, available for free trials (“Free Trials”). If you have not previously used a Service, or if we agree otherwise, you may be eligible to register for a free trial use or an upgraded version of such Service by registering on our website or as otherwise directed by us. The Services we provide to you on a Free Trial will only be for the specified trial period and may be subject to further terms and conditions (as provided on registration) which are incorporated into and form part of this Agreement. Any Free Trial will be subject to the terms of this Agreement except as specified otherwise.

4.2 Beta Services. From time to time we may invite you to try Beta Services. Any Beta Services may be clearly designated as beta, pilot, trial use, limited release, developer preview, non-production or by any other similar description. Beta Services are provided for evaluation purposes and not for commercial use, are not supported, may contain bugs or errors, and may be subject to additional terms.

4.3 Availability. Without limiting Section 11, we make no warranty or representation that any or all of the Free Trial and/or Beta Services will be made generally available, at all or in an uninterrupted manner. We reserve the right to terminate Free Trial or Beta Services without notice and at any time without any liability to you.

4.4 No Warranty. Notwithstanding anything to the contrary in this Agreement, and without limiting Section 11, FREE TRIALS AND BETA SERVICES ARE NOT CONSIDERED “SERVICES” UNDER THIS AGREEMENT FOR THE PURPOSES OF ANY ASSURANCES UNDER SECTION 3.1 ABOVE, AND, SUBJECT TO ANY NON EXCLUDABLE LAW, ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY, INCLUDING ANY WARRANTIES SET FORTH HEREIN WHICH MAY APPLY TO THE SERVICES.

5. Non-agCOMMANDER Providers

5.1 Use of third-party products and services in the Services. We or third parties may from time to time make available to you or incorporate in the Services Non-agCOMMANDER Applications as well as implementation, customization and other consulting services but in each such case subject to this Section 5.

5.2 No warranty. We provide no warranties or support over third-party products and services, including Non-agCOMMANDER Applications, whether or not they are described by us as “certified” or otherwise, except as we may explicitly specify in an Order Form.

5.3 Non-agCOMMANDER Applications and Your Data. By enabling Non-agCOMMANDER Applications for use with the Services, you authorise us to allow providers of those Non-agCOMMANDER Applications to access Your Data as required for the interoperation of such Non-agCOMMANDER Applications with the Services. We are not responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-agCOMMANDER Application providers.

5.4 Integration with Non-agCOMMANDER Applications. The Services may contain features designed to interoperate with Non-agCOMMANDER Applications. To use such features, you may be required to obtain access to Non-agCOMMANDER Applications from their providers, and may be required to grant us access to your account(s) on the Non-agCOMMANDER Applications. We are not responsible for the continuing provision of Non-agCOMMANDER Applications which interoperate with the Services. Where any Non-agCOMMANDER Applications cease to be available for interoperation with our Services, either at all or on any particular terms, you will not be entitled to any refund, credit, or other compensation.

5.5 Specific Third Party Terms. The Services may incorporate the use of third party software which requires your agreement to their terms of use. These will be listed in the Software Subscriber Agreement and your acceptance of the Software Subscriber Agreement includes your acceptance to be bound by their terms of use.

6. Fees and Payment

6.1 Fees. You will pay all Fees as specified and agreed during the subscription process and as shown on the Subscription Activated Email.

If the Purchased Services you have subscribed for are SaaS Services, the following will also apply: (a) In the case of a Standard Subscription, fees are based on the number of Users and any Addons you may have subscribed to we are advised by you beforehand will have access to our Services.

(b) In the case of an Enterprise Subscription, fees are based on the particular tier or level of subscription which applies to you.

(c) Except with our express written agreement, you will not be entitled to a reduction of fees by reason of changes to your SaaS Subscription, such as a reduction in the number of Users or Addons.

(d) We reserve the right to charge additional fees if we determine that your usage of the Services exceeds any parameters around which the Fees for the SaaS Subscription was based, including but not limited to number of Users and any other relevant factors.

6.2 Invoicing and Payment. You agree to pay the Fees in accordance with the terms set out in the Subscription Activated Email.

Unless stated otherwise in an Order Form, the following terms shall also apply:

(a) Payment Terms. Invoices will be issued by, and are due and payable on a net 7 day basis.

(b) In Advance and Non Refundable. Fees are payable in advance on an annual basis or monthly basis as agreed during the subscription process and stated on the Subscription Activated Email,

and are non-refundable, subject to Section 7.5.

(c) Taxes. Our Fees do not include any Taxes. You are responsible for paying all applicable Taxes associated with this Agreement and your Purchased Services. If we pay or collect Taxes for which you are responsible under this clause, the appropriate amount must be paid or reimbursed by you to us. Unless you provide us with a valid tax exemption certificate authorised by the appropriate and competent taxing authority or other satisfactory evidence of your exemption from any Tax liability we will not be held responsible for any payment or overpayment of the applicable Tax for or on your behalf.

(d) Credit Cards. If you agree to pay Fees by approved credit card, then you authorize us to charge such credit card for the Purchased Services listed on the Subscription Activated Email. In the event you have indicated that you will be paying by credit card, and payment is not processed by credit card in advance, payments are due within 14 days of the date of our invoice unless otherwise agreed in writing.

(e) Overdue Charges. We are entitled to charge interest (calculated daily) on any outstanding amount until those amounts are paid in full. We may charge interest at a rate up to 2% monthly on any outstanding amounts until those amounts are paid in full.

(f) Suspension of Services. We may also suspend our provision of the Services to you if any amount owing by you is outstanding for more than 14 days after its due date of payment.

7. Term and Termination.

7.1 Term. Subject to this Section 7, this Agreement shall be in force from the Effective Date (such period referred to herein as the “Term”):

(a) until the end date specified in the Order Form; or

(b) if not specified in the Order Form, as specified in an applicable invoice issued pursuant to this Agreement; or

7.2 Auto Renewal. The term of this Agreement will automatically renew for subsequent periods equal to the shorter of

(i) the expiring subscription term or,

(ii) one year, unless at least 30 days before the expiration of the then current Term either party has provided written notice to the other to terminate this Agreement, in which case this Agreement will terminate on the expiration of the current Term or on such later date as we agree. We reserve the right to increase Fees for any applicable Service subject to renewal, upon 30 days’ written notice to you.

7.3 Termination for Cause. Subject to Section 7.4, either party may terminate this Agreement for cause upon 30 days’ written notice to the other party of a breach of a material term of this Agreement if such breach remains unremedied at the expiration of such period.

7.4 Termination by Us. We may terminate this Agreement at any time on immediate effect by written notice if:

(a) you fail to pay any fees and other charges due and payable to us by a due date;

(b) you otherwise engage in any fraudulent, damaging or unlawful activities which in our view may or will compromise or affect the operation or integrity of the Services or the Software, or are in breach or we anticipate your breach of any material term of this Agreement or applicable law; or

(c) it is clear to us you are a competitor or have otherwise used our Services or have accessed the Software for any unauthorised purpose including to to benchmark or assess the Services for competitive reasons, establish, sell or otherwise contribute to the development of any proprietary software system comparable to or which competes in any way with the Software;

(d) you are the subject of an Insolvency Event;

(e) A Force Majure event occurs in accordance with Section 11.6.

7.5 Refund or Payment upon Termination. Upon any termination for cause by you of SaaS Services, we will refund you any prepaid Fees covering Purchased Services after the date of termination on a pro rata basis. In any other event, all other Fees are non-refundable and you agree that you will pay and remain liable for any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event will any termination relieve you of the obligation to pay any Fees payable to us for the period before and up to the effective date of termination.

8. Privacy and Confidentiality

8.1 Confidentiality. Any Confidential Information that is disclosed by a party (the “Disclosing Party”) to the other (the “Receiving Party”) under this Agreement is confidential and may not be exploited commercially or used for any purpose other than as set out in or contemplated by this Agreement or disclosed to any other person except:

(a) to employees, legal advisers, auditors and other consultants of either party or their Affiliates requiring the information for the purposes of this Agreement; and/or

(b) upon express authorization by the Disclosing Party in writing. These obligations do not apply to any Confidential Information to the extent that it must be disclosed by the Receiving Party in order to comply with a court order, subpoena, statutory or regulatory obligation, or other requirement under applicable law, provided that the Receiving Party takes reasonable steps to notify the Disclosing Party promptly of the legal requirement, as permitted by law, and, at the request and expense of the Disclosing Party, takes reasonable steps to limit and minimize the disclosure.

8.2 Personal Information. The Privacy Policy describes the terms by which your Personal Information is stored, used, and shared with others when using the Services. You hereby agree that you have read and understood the Privacy Policy.

9. Service Specific Terms

9.1 Software License and Terms of Use. Some of the Services include Software. You agree that you and your Users shall be bound by the terms of the Software Subscriber Agreement, which gives you permission to use that Software as part of the Services.

10. Data and Intellectual Property

10.1 Agricultural Data. In order to offer you the Services, we may, and you hereby grant us the right to, access, collect, and generate data that may relate to your farm, crops, and the surrounding environment. Our ability to provide you with our unique and valuable services requires continued access to this information.

10.2 Your Data and Licensing. Subject to the non-exclusive license granted in this Section, nothing in this Agreement affects your ownership to Your Data, which includes Sensed Data and Farm Operations Data. In order for us to continue to provide value to you, we require a license to use data collected by us to perform the Services. Accordingly, you agree to provide us with a license to use Your Data as follows:

(a) As required to perform the Services, including to use, store, copy and modify Your Data;

(b) To create agCOMMANDER IP based on Your Data, including through modifying, deriving, combining, anonymizing or comparing Your Data with or to other data. This includes the creation of Data Analytics;

(d) To share opportunities with you; and

(e) Otherwise as permitted by you. This license is: Non-Exclusive – meaning you are able to license the same data to others. Royalty-Free – meaning no payment will be made by us for this license, now or in the future. Worldwide – meaning it is valid anywhere in the world. Perpetual – meaning we are able to use the licensed content indefinitely. Irrevocable – meaning this license may not be revoked. Sub-Licensable – meaning we are able to re-license the content to others as needed (however any sub-license would be subject to the same restrictions within this Section).

10.3 Sharing Data between customers. From time to time you may have entered into this Agreement as an Advisor. When sharing data through the Services as an Advisor to another customer, or if you have previously provided data to a third party through the Services who subsequently becomes a customer, you provide such customers an unfettered license to access, download, disclose, and use the data for their own business purposes. Unless separately agreed to in writing, this license is non-exclusive, royalty free, worldwide, irrevocable and sub-licensable. You agree that if you share data with another customer or a third party through the Services, you will comply with our Privacy Policy and any legal requirement applicable to such data and/or the sharing of such data. Further you acknowledge that none of us, our Affiliates or the officers, directors, employees, agents and representatives of any of them, are liable in any way for your use and disclosure of such information to us that is not in compliance with our Privacy Policy or applicable law.

10.4 Sharing Data with Third-Parties. We will not share your Identifiable Data with third-parties without your consent, unless otherwise described in this Agreement or agreed to by you.

10.5 Access to Data. You may request access to a downloadable copy of Your Data, which we will send to you in a format of our choosing (although we will work with you to provide a reasonably convenient format for both of us). We reserve the right, however, to accept or reject such requests to the extent that:

(a) complying with your request would violate our Privacy Policy or these terms, particularly if the request includes information that is not limited to your farm;

(b) you have already made a request under this Section for your Data within the prior 12 months;

(d) in some cases, depending on factors such as the amount or type of data requested, you agree to certain conditions regarding your use or disclosure of that data to third-parties.

10.6 Intellectual Property.

(a) We create our own proprietary Data Analytics which can be derived from or comprised of aggregated or modified Sensed Data, Background Data, Farm Operations Data, or other data that consists of Your Data that is licensed to us. We own the Data Analytics and we provide a limited license to these data and other agCOMMANDER IP through the Services and in accordance with our Software Subscriber Agreement.

(b) Unless otherwise stated, we reserve all rights to agCOMMANDER IP, including our Software and Data Analytics. Unauthorized uses of our Intellectual Property specifically include, but are not limited to, copying, distributing, making available, reverse engineering, renting, selling or offering for sale, making derivative works, disclosing, or any other act that may be our exclusive right under applicable law. Any use of agCOMMANDER IP that is not expressly permitted by this Agreement is prohibited.

10.7 Feedback. If during the course of our relationship you or your Users provide us with any suggestions, ideas, enhancement requests, recommendations or other feedback relating to the Services, you grant us a royalty-free, worldwide, irrevocable and perpetual license to use and incorporate such feedback into our Services.

11. Disclaimers and liability

11.1 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NONE OF US, OUR SUPPLIERS, AFFILIATES, LICENSORS, AND THE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF ANY OF THEM MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU AGREE THAT THE SERVICES ARE PROVIDED “AS IS/WHERE IS” AND THAT THE BETA SERVICES AND FREE TRIAL SERVICES ARE PROVIDED WITHOUT ANY WARRANTY WHATSOEVER. FURTHER AND SUBJECT TO ANY NON-EXCLUDABLE LAW AND AS MAY BE EXPRESSLY PROVIDED HEREIN, WE DO NOT MAKE, GIVE OR PROVIDE ANY REPRESENTATION, UNDERTAKING, WARRANTY OR GUARANTEE IN RELATION TO ANY SERVICES WE PROVIDE OR THE SOFTWARE AND/OR HARDWARE THAT IS PROVIDED OR USED IN ASSOCIATION THEREWITH, INCLUDING:

(A) IN RELATION TO THE RESULTS OR OUTCOMES THAT WILL OR MAY BE ACHIEVED OR OBTAINED FROM USE OF ANY SUCH SERVICES, INCLUDING ANY OUTCOMES THAT MAY RESULT OR FOLLOW FROM YOUR RELIANCE ON DATA AND INFORMATION, OR THE ACCURACY THEREOF, MADE AVAILABLE TO YOU BY US AND ON RECOMMENDATIONS YOU RECEIVE THROUGH YOUR USE OF THE SERVICES;

(B) ACCESS TO AND RELIABILITY OF THE SERVICES, SOFTWARE, OR HARDWARE, INCLUDING TIMELINESS AND AVAILABILITY;

(D) FAILURES IN ANY TELECOMMUNICATIONS OR OTHER MEANS OF CONNECTION TO ANY SUCH SERVICES, SOFTWARE AND/OR HARDWARE, INCLUDING WITH RESPECT TO ANY UPLOADING OR TRANSCRIPTION OF THIRD PARTY OR YOUR DATA;

(E) LOSS AND CORRUPTION OF YOUR DATA IN THE COURSE OF PERFORMING ANY SUCH SERVICES; AND/OR

(F) ANY THIRD-PARTY INFORMATION, INSTRUCTION, DIRECTION, RECOMMENDATION, REPRESENTATION, OR STATEMENT MADE AVAILABLE TO YOU THROUGH YOUR USE OF THE SERVICES.

11.2 ANY AND ALL WARRANTIES OR REPRESENTATIONS SET FORTH HEREIN ARE SUBJECT TO THE FOLLOWING REQUIREMENTS:

(a) YOUR COMPLIANCE WITH THIS AGREEMENT AND APPLICABLE LAW.

(b) COMPLIANCE WITH ANY APPLICABLE USE REQUIREMENTS, PRODUCT OR HARDWARE INSTRUCTIONS, AND GENERALLY ACCEPTED INDUSTRY PRACTICE.

(c) WE ARE PROMPTLY NOTIFIED OF ANY ALLEGED FAILURE OR DEFECT COMING TO YOUR ATTENTION AND WE HAVE BEEN GIVEN A REASONABLE OPPORTUNITY TO REMEDY THE FAILURE OR DEFECT.

11.3 Limitation of Liability.

(a) NONE OF US, OUR SUPPLIERS, AFFILIATES, LICENSORS, AND THE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF ANY OF THEM WILL BE RESPONSIBLE FOR AMOUNTS REPRESENTING INDIRECT LOSS, SPECIAL LOSS, INCIDENTAL LOSS, CONSEQUENTIAL LOSS, OR PUNITIVE DAMAGES, INCLUDING LOSS OF BUSINESS OR OPPORTUNITY ARISING FROM THE PERFORMANCE OR BREACH OF ANY PART OF THIS AGREEMENT.

(b) NONE OF US, OUR SUPPLIERS, AFFILIATES, LICENSORS, AND THE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF ANY OF THEM WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY AMOUNT IN EXCESS OF A$100, WHETHER FOR A SINGLE CLAIM, ACT, OR OMISSION, OR FOR A SERIES OF RELATED OR UNRELATED CLAIMS, ACTS, OR OMISSIONS.

(c) THE LIMITATIONS AND EXCLUSIONS DESCRIBED AND REFERRED TO IN THIS SECTION APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE DAMAGES OR OTHER RELIEF SOUGHT ARE BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR ANY OTHER THEORY OF LIABILITY AND EVEN IF THE RELEVANT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH ACTIONS, DAMAGES OR OTHER RELIEF. IF THE LAW IN ANY COUNTRY, STATE OR OTHER JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED CONDITIONS OR WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY IN THE TERMS EXPRESSED IN THIS SECTION OR OTHERWISE SO IMPLIED, THE LIMITATIONS AND EXCLUSIONS SET OUT ABOVE ARE TO THAT EXTENT INAPPLICABLE TO YOU BUT OTHERWISE APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH COUNTRY, STATE OR OTHER JURISDICTION.

11.4 Indemnification.

(a) Subject to 11.4(b), we agree that we shall, upon written request, defend, hold harmless and indemnify you, and your directors, officers, and employees, from any third party claims, demands, and legal proceedings (including actions by government authorities) and all resulting liabilities judgments, settlements, expenses, and costs (including reasonable attorney’s fees) (each, a “Claim”) arising out of or related to:

(I) infringement of third party Intellectual Property solely to the extent that such Intellectual Property infringement arises due to any act or omission by us without contribution from you;

(II) breaches of Section 8; and

(III) any act or omission constituting gross negligence or willful misconduct by us in the performance of the Purchased Services. In the event of a Claim against you with respect to (I), or if we reasonably believe the Services may infringe the a third party’s Intellectual Property, we may in our sole discretion:

(i) so far as reasonably practicable, modify the Purchased Services so that they no longer so infringe, subject to and without limiting Section 3.5;

(ii) obtain a license for your continued use of the Purchased Services in accordance with this Agreement; or

(iii) terminate this Agreement upon 30 days’ written notice and refund to you any prepaid fees covering the remainder of the term after the effective date of termination.

(b) Notwithstanding anything to the contrary in this Agreement our total aggregate liability for any one or more Claims under Section 11.4(a) above, whether in respect of a single act or omission or a series thereof, shall not exceed an amount equal to 2x the Fees paid by you for the applicable Purchased Services during the 12 month period immediately preceding the date of the first Claim made against you.

(c) You agree that you shall upon written request, defend, hold harmless and indemnify us, our suppliers, affiliates, licensors, and the directors, officers, employees and agents of any of them, from any Claim arising out of or related to:

(I) breaches by you or your Users of Sections 3.2, 3.3, 8, 9, 10, 12.1 and 12.13; and

(II) any act or omission constituting you or your Users gross negligence or willful misconduct.

(d) The obligations on any indemnifying party set forth above in this Section are subject to: (a) Prompt written notice of any Claim, actual or alleged, is provided to the indemnifying party; (b) absolute control of the defense and settlement of the Claim is given to the indemnifying party (provided that you may not settle any Claim against us unless the settlement unconditionally releases us of all liability); and (c) all reasonable assistance is provided by the indemnified party, at the indemnifying party’s expense.

11.5 Acknowledgement. You acknowledge and agrees that we have set our prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.

11.6 Force Majeure. We shall not be liable for any loss or damage arising, directly or indirectly, through or as a consequence of, or any delay in the fulfillment of or failure to fulfill an order for any cause beyond our reasonable control including, without limitation, any act of God, pandemic or epidemic, government regulation or order, inability to obtain from or curtailment of our then existing sources of supply of energy, raw materials, or components, water shortage, explosion, fire, flood, civil commotion, terrorist act, war (whether or not declared), inability to obtain labor, lockout, strike, or other labor trouble. In any such event, We may terminate this Agreement in whole or in part, or delay performance thereunder, and shall give you notice of such election. You agree to pay us for any Services provided up to and including the date of notice of such election.

12. General

12.1 Anti Corruption. In entering into this Agreement, You acknowledge you have not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value (excluding reasonable gifts in the ordinary course of business) from any of our employees or agents in connection with this Agreement and that you abide by applicable anti-corruption laws.

12.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals will be in writing and be deemed to have been given upon

(a) personal delivery,

(b) the second business day after mailing by registered mail,

(d) the first business day after sending by email.

All notices to be sent to us under this Agreement shall be sent by email to mail@agcommander.com, with a hardcopy to follow to:

agCOMMANDER

PO BOX 7041 SPEARWOOD Western Australia 6163

General Notice to You and Users.

A notice by us to you or to your Users, which applies generally to your Users or a significant number of Users, may be posted on our website and is deemed to be given by us and received by you and your users when posted on our website.

12.4 Relationship of the Parties. Nothing in this Agreement constitutes one party the agent, partner or joint venturer of the other party.

12.5 Third-Party Beneficiaries. Subject to this Section 12.5, there are no other third-party beneficiaries to this Agreement except that it is the parties intention that (i) nothing in this Section 12.5 limit the protections afforded to the third-parties set forth in Sections 11.5 and 11.6; and (ii) that any of our Affiliates may assume the right to enforce any claim under this Agreement against you in our place.

12.6 Remedies. You acknowledge that any breach of Sections 8 and 10 would cause us irreparable harm for which We have no adequate remedies at law and would not be compensable by monetary damages alone. Accordingly, We are entitled to obtain, and You consent to the granting of, any specific performance or injunctive relief for any such breach or threatened breach without posting a bond or proving actual damages, and without prejudicing any other rights or remedies available to us at law or equity.

12.7 Forum. The parties irrevocably and unconditionally waive

(a) any defense of an inconvenient forum to the maintenance of any claim or action;

(b) any objection to venue with respect to any action or claim on account of the place of residence or domicile of any party thereto; and

(c) to the extent permitted by law, the right to a jury trial in connection with any action or claim arising out of this Agreement or the performance (or non-performance) of the Purchased Services. In the event that Section 2.4(b), (c), or

(d) is deemed unenforceable, the jurisdiction of choice shall be British Columbia, Canada and claims or disputes arising out of this Agreement or in respect of the Purchased Services may only be brought in the provincial or Federal courts in Vancouver, British Columbia, Canada.

12.8 Legal Fees. You will pay on demand all of our reasonable legal fees and other costs incurred by us to collect any Fees or charges due by you to us under this Agreement.

12.9 Assignment. You cannot assign any part or all of this Agreement to another party without our prior written consent. We may assign this Agreement, or any claim hereunder, to any of our Affiliates, with or without notice, or in connection with any merger, consolidation, reorganization, sale, or similar transaction. This Agreement shall ensure and be binding upon a parties respective successors and permitted assigns.

12.10 Severability. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the parties intend that this Agreement, solely to the extent that the circumstances leading to the unenforceability, be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable.

12.11 No Waiver. A failure by either party to insist on compliance with any of the terms of this Agreement will not affect that party’s right to require such compliance at any later time, nor shall a failure by a party to exercise any right hereunder operate as a waiver of any such right. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver.

12.12 Entire Agreement. This Agreement contains the entire understanding between the parties concerning the provision of Services and supersedes all prior agreements and communications between you and us. Except for changes to our Software Subscriber Agreement and Privacy Policy, any amendment to this Agreement must be agreed to in writing by both parties. For the purposes of this Section 12.11, agreement in writing shall include agreement in electronic form.

12.13 Export Compliance. The Services, Software, and Hardware that we make available, and derivatives thereof, may be subject to export control and economic sanctions laws of the United States, European Union, Canada, Australia, and other relevant jurisdictions ( the “Export Control and Sanctions Laws”). Each party represents that it is not named on any U.S. government denied-party list. You shall not and shall not permit your Users to use or access to our Services, Hardware and/or Software in breach of or contrary to applicable Export Control and Sanctions Laws. Further, by using any of our Services, Hardware and/or Software, you certify that none of you or your Users, or any person who is owned or controlled by, or are acting on behalf of, or at the direction of, you or any of them, are located, resident, operating, or organized in, or will access or use any our Services, Hardware and/or Software from, a country or territory subject to, or whose government is subject to comprehensive U.S. sanctions (currently including Cuba, Crimea Region of Ukraine, Iran, North Korea, Venezuela, or Syria).

12.14 Survival. The following shall survive the termination, expiration, or lapse of this Agreement: Sections 1, 2.4, 3.3, 4.4, 5.2, 6, 8, 9.2, 9.3, 10, 11, 12 and 13.

13. Definitions

Advisor means any customer who accesses or uses the Services, Software, or Hardware, for the purposes of advising or making recommendations to others with respect to the use of Crop Treatment Products and/or other growing or farming practices.

Affiliate means any business entity that: (i) from time to time, directly or indirectly controls, is controlled by, or is under common control with a party, or (ii) is a successor (including, without limitation, by change of name, dissolution, merger, consolidation, reorganization, sale or other disposition) to any such business entity or its business and assets;

Agricultural Data means data that applies to livestock, crops, crop fields, agricultural operations, meteorological data or other data relating to or affecting agriculture.

Agreement means these terms and conditions, as well as the Privacy Policy, Software Subscriber Agreement, any applicable Order Form, and, if we specifically agree in writing in an Order Form or other written agreement, any other terms, additions, or modifications.

Applicable Law means laws and regulations which apply in the jurisdiction in which we provide Services to you.

Background Data means data that is sourced from third-parties outside of our relationship with you, including publicly accessible databases and data from services supplied by other organizations.

Basic Support means the technical support and training relevant to the standard functionality of the Purchased Services when used in the ordinary course and in accordance with any applicable User Guide. For clarity, it excludes support for any third party system, software or application.

Beta Services means products or services related to an applicable Service that are not generally available to our customers and which may include products or services that are still being tested, validated, or developed, or products and services that we define as such. Beta Services may be Purchased Services to the extent that they are purchased in an Order Form.

Confidential Information means any technical, business, or agricultural information exchanged between the parties, and includes pricing and other terms such as those that may be included in an Order Form, information that is marked or indicated by one of the parties as being confidential or proprietary and information that a reasonable person would consider as being confidential taking into account the nature of the disclosed information and the circumstances of its disclosure, but does not include:

i) Information already known or becomes known to the Receiving Party through no wrongful or unlawful act of the Receiving Party.
ii) Information that is or becomes publicly known through no wrongful act of the Receiving Party.

iii) Information that is received by the Receiving Party from a third-party without restriction.

iv) Information that is independently developed by the Receiving Party without use or reliance on the confidential information of the Disclosing Party.

Crop Treatment Products means materials that are applied to your crops, crop fields or applied during typical agronomic practices. This includes, but is not limited to, materials such as water, fertilizers, and pesticides.

Data Analytics means any data or information, including, images, analyses, conclusions, models, or other subject matter that is based on or derived from other data, where the data has been modified, altered, transformed, translated, edited, or combined with other data such as aggregated data.

Effective Date The earlier of (i) the start date specified in the Subscription Activated Email or (ii) such earlier date, even if retroactive to your acceptance of this Agreement, as you may have received or we have provided to you any benefit under this Agreement.

Embedded Software means any Software that is incorporated into, and delivered to you by us, as part of Hardware.

Farm Operations Data means data that relates to the management of your farm that is uploaded and/or submitted to us by you, your Users and Advisors on your behalf, such as harvest and yield data, irrigation programs, crop monitoring data, herbicide, fungicide and insecticide use, recommendations, and work order schedules.

Fees means the payment in exchange for the Purchased Services, as specified in an Order Form or as shown on the Subscription Activated Email.

Hardware means the hardware and equipment developed by us, or provided or made available to you by us, including in association with the Services.

Identifiable Data means information that can be used to uniquely identify a customer and their business operations.

Insolvency Event means the occurrence of any of the following events in any jurisdiction:

i) Adjudication that you are bankrupt or insolvent;
ii) The filing by you of a petition of bankruptcy or insolvency, or a petition or answer seeking reorganization, readjustment or rearrangement of your business or affairs under any law or governmental regulation relating to bankruptcy or insolvency;

iii) The appointment of a receiver for your business or for all or substantially all of your property;

iv) The making by you of an assignment or an attempted assignment for the benefit of your creditors;
v) The institution by you of any proceedings for the liquidation or winding up of your business or affairs; or
vi) Any similar event resulting from your inability to pay your outstanding debts..

Intellectual Property means all intellectual property and proprietary rights, including any invention, improvement, patent, patent application, copyright, work, copyright application, trade mark, trade mark application, trade secret, Confidential Information, technology, method, process, algorithm, license, or know-how, ideas, research and development, software and software products, hardware and hardware components (including the structure, mode of operation, and/or functionality thereof), data, formulas, compositions, manufacturing and production processes and business and marketing plans and Order Forms, or any other intellectual or intangible property or right, tangible or otherwise, whether or not written or otherwise fixed in any form or medium, regardless of the media on which contained, and whether or not patentable or copyrightable, as well as any rights, title, and interests, exclusive or otherwise, in and to such intellectual property.

Malicious Code means computer code or instructions that have a material adverse effect on the operation, security or integrity of the Software or the Services including but not limited to viruses, Trojan horses, malware, time bombs, undisclosed back door devices, worms or other harmful software.

Non-Customer Damage means damage to Hardware resulting from an act or omission by us or ordinary wear and tear resulting from expected and permitted uses.

Non Excludable Law means any applicable law which provides for guarantees or warranties to be provided which cannot be excluded by contract and any other applicable law which explicitly and absolutely prohibits a particular course of conduct or action otherwise permitted under this Agreement.

Non agCOMMANDER Application(s) means any online and/or offline software, software product, application, and/or service provided or offered to you by any person or entity other than us, and which includes any hardware incorporating any such software, software product, application, and/or service which may or may not be interoperable with the Services or Software.

Order Form means any online shopping cart, document, order form, specification, work order, click-through agreement, or other instrument in which the parties set forth their intention to provide and receive the Purchased Services, whether written or electronic, and which may but does not necessarily specify the applicable Fees (if any), your subscription or other delivery model, and any other terms relating to the Purchased Services such as specifications, requirements, and deliverables associated therewith.

Personal Information means information that is individually identifiable, relating to a specific individual and that the identity of the individual is or may be readily ascertained from the information. With an exception to the extent that the information is used for identifying a business or its contact information, such as the name of a sole proprietorship and its email address, telephone number, and physical address.

Privacy Policy means our privacy policy.

Purchased Services means the Services that you purchase pursuant to a Order Form. Purchased Services do not include services provided pursuant to a Free Trial, but may include Beta Services.

SaaS Services means Purchased Services that do not include a Hardware component.

SaaS Subscription means a subscription for SaaS Services as specified in Section 2.

agCOMMANDER IP means any Intellectual Property that is owned or controlled by us or our Affiliates.

Sensed Data means data that is collected by Hardware and/or is used in association with the Services, including but not limited to data relating to soil moisture, pressure, precipitation, temperature, equipment status and insect trapping. For clarity, Sensed Data does not include data owned by third-parties.

Services means all services that are, pursuant to this Agreement, performed or provided by us or a representative thereof, and/or provided by or accessed via the Software owned or controlled by us. Services shall include your use of any Hardware and/or Software, and other personalized services such as installation labour, advice, or on demand analytics.

For clarity, Services do not include Non-agCOMMANDER Applications.

Software means the source code, object code, program modules, executables, data files relating to software implementation, feature sets, features and components thereof, including all updates, upgrades, and additions thereto, and further including any third party software used in connection with any of the foregoing, provided by us or used in connection with our provision of the Services. For clarity, Software includes Embedded Software.

Software Subscriber Agreement means our Software User License Agreement.

Subscription Activated Email means the email that is automatically generated from our subscription management system and sent to you upon the activation of a Purchased Service.

Tax or Taxes means taxes, duties and charges of any kind imposed by any taxing authority in connection with the Services (except taxes based upon your or our income).

Upgraded Support means any technical support and training beyond Basic Support as set out in a separate service level agreement between you and us.

User means any person who is authorized by you to use a Service, pursuant to the terms of this Agreement, and to who we (or, in some cases, you) have supplied valid user credentials, which are uniquely associated with such individual, for accessing the Software solely for use in association with your business. Users may include your employees and consultants, contractors and, subject to our written consent, other third parties who you transact business with.

User Guide means the online Knowledge Base, Videos and self-help solutions, as updated from time to time, accessible via the “Information” screen and other screens in the SaaS Service.

Your Data means data that you, or your Users, provide to us through your use of the Services such as Sensed Data, Farm Operations Data and images.

we , us or our means the agCOMMANDER PTY LTD entity