SOIL CONNECT, INC. USER TERMS AND CONDITIONS
LAST UPDATED: MARCH 1, 2022
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”), WHICH ALONG WITH ANY APPLICABLE ORDER FORM THAT REFERENCE THESE TERMS AND ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”) CONSTITUTE THE AGREEMENT BETWEEN THE PERSON OR ENTITY SUBSCRIBING TO USE THE SERVICES (“YOU” OR “USER”), AND SOIL CONNECT, INC. AND ITS SUBSIDIARIES (COLLECTIVELY, “SOIL CONNECT”). THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SERVICES DEFINED BELOW BETWEEN THE PARTIES AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING OR USING, OR SUBSCRIBING TO USE THE SERVICES DEFINED BELOW, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (PERSONALLY AND ON BEHALF OF ANY COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT WHEN USING THE SERVICES DEFINED BELOW OR THAT YOU NAME AS THE USER WHEN YOU CREATE AN ACCOUNT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT AND TO BIND ANY COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT TO THIS AGREEMENT. THE TERMS OF ALL ORDER FORMS ENTERED INTER HEREUNDER SHALL BE INCORPORATED HEREIN BY THIS REFERENCE. YOU MAY NOT ACCESS OR USE THE SERVICES OR ENTER INTO THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
Soil Connect may change these Terms from time to time at its sole discretion, and if it makes any material changes, it will attempt to notify you by sending you an email to the last email address you provided to Soil Connect and/or posting a notice on Soil Connect’s website. Therefore, you agree to promptly notify Soil Connect of any changes in your email address.
- DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
- “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow User or any Authorized Users to access the Soil Connect Solution.
- “Authorized User” means each of User’s employees and independent contractors who are authorized to access the Soil Connect Solution pursuant to User’s rights under this Agreement.
- “User Content” means any content, information, and data provided or submitted by, or on behalf of, User or its Authorized Users for use with the Services, but not including Usage Data.
- “Documentation” means the electronic materials provided by Soil Connect to User describing the use and operation of the Soil Connect Solution.
- “Error” means a reproducible failure of the Soil Connect Solution to substantially conform to the Documentation.
- “Licensed Material” means results, reports, materials and documentation made available to User as part of the Services.
- “Order Form” means all written order forms or other ordering documentation, including online subscription forms, entered into by the parties hereunder and referencing this Agreement, identifying the applicable Services to be made available by Soil Connect, and containing the pricing, subscription term, and other specific terms and conditions applicable to the Services.
- “Services” means access to the Soil Connect marketplace available at https://soilconnect.wpengine.com/, as well as any other services provided by Soil Connect to User under this Agreement as set forth in an Order Form, if applicable, which may include, without limitation access to the Soil Connect Solution.
- PROVISION OF SERVICES.
- Access. User will prevent unauthorized access to, or use of, the Soil Connect Solution, and notify Soil Connect promptly of any such unauthorized use known to User.
- Furthermore, with respect to any Mobile App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), User agrees to only use such App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Mobile App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of such Google Play Sourced Application on a shared basis within your designated family group. Without limiting the generality of the foregoing, you acknowledge and agree that the following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Agreement is concluded between you and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
- You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
- You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
- Support Services. Subject to the terms and conditions of this Agreement, Soil Connect may exercise commercially reasonable efforts to provide support for the use of the Services in accordance with its standard policies and procedures.
- No Agency or Endorsement. Soil Connect is not a brokering service. Soil Connect provides a marketplace that allows users to offer, sell and buy aggregate and other items. As a marketplace, Soil Connect does not own or sell the items listed on the Services, so the actual contract for sale is directly between the individuals seeking to sell items (“Sellers”) and individuals seeking to buy items (“Buyers”). While we may, in our discretion, help facilitate the resolution of disputes through various programs, Soil Connect has no control over and does not guarantee the existence, quality, safety or legality of items offered on the Services; the truth or accuracy of users’ content or listings; the ability of Sellers to sell items; the ability of Buyers to pay for items; or that a Buyer and Seller will actually complete a transaction or provide an item. While Soil Connect may provide pricing and guidance on the Services, such information is solely informational. We do not take part in the interaction between users. We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings provided by users, items sold by Sellers, or of the integrity, responsibility, or any actions of any users. Soil Connect makes no representations about the suitability, reliability, timeliness or accuracy in public, private or offline interactions. NEITHER SOIL CONNECT NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. SOIL CONNECT AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BUYERS AND SELLERS ARE INDEPENDENT ENTITIES AND NOT SOILCONNECT’S CONTRACTORS, AGENTS, OR EMPLOYEES.
- INTELLECTUAL PROPERTY; DATA.
- License Grant. Subject to the terms and conditions of this Agreement, Soil Connect grants to User a non-exclusive, non-transferable, non-sublicensable license during the Term (as defined below), solely for User’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, to access and use the Services in accordance with the applicable Documentation.
- Restrictions. User will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Services, Licensed Material or Documentation (collectively, the “Soil Connect Materials”), except as expressly allowed herein; (b) modify, adapt, alter or translate the Soil Connect Materials; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Soil Connect Materials for the benefit of any third party not authorized by Soil Connect; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Soil Connect Materials; (e) interfere in any manner with the operation of the Soil Connect Materials or the hardware and network used to operate the Soil Connect Materials; (f) modify, copy or make derivative works based on any part of the Soil Connect Materials or Documentation; (g) access or use the Soil Connect Materials to build a similar or competitive product or service; (h) attempt to access the Soil Connect Materials through any unapproved interface; or (i) otherwise use the Soil Connect Materials in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. User acknowledges and agrees that the Soil Connect Materials will not be used, and are not licensed for use, in connection with any of User’s time-critical or mission-critical functions. User will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Soil Connect or its licensors on the Licensed Material or any copies thereof. USER REPRESENTS, WARRANTS, AND ACKNOWLEDGES THAT ACCESSING OR USING THE SERVICES ON HAND-HELD DEVICES WHILE DRIVING COULD DISTRACT YOUR ATTENTION AWAY FROM THE ROAD AND RESULT IN LOSS OF VEHICLE CONTROL, CRASH AND INJURY TO YOU AND OTHERS, AND USER SHALL NOT USE OR OTHERWISE ENGAGE WITH THE SERVICES, MOBILE APP OR YOUR MOBILE DEVICE WHILE DRIVING. USERS OF THE MOBILE APP SHOULD NEVER OPERATE THE MOBILE APP IN A MANNER THAT IS DISTRACTING TO THE DRIVER. ALWAYS PAY CAREFUL ATTENTION TO THE ROAD AND DO NOT DRIVE WHILE DISTRACTED.
- Ownership. The Soil Connect Materials, and all worldwide intellectual property rights in each of the foregoing, are the exclusive property of Soil Connect and its suppliers. All rights in and to the Soil Connect Materials and Documentation not expressly granted to User in this Agreement are reserved by Soil Connect and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to User regarding the Soil Connect Materials, Documentation, or any part thereof.
- License to Licensed Material. Subject to the terms and conditions of this Agreement, Soil Connect grants User a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.6 (No Assignment)), non-sublicensable license to use the Licensed Material for User’s analytics and data processing purposes.
- Open Source Software. Certain items of software may be provided to User with the Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.3 (Ownership) or 11 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits User’s rights under, or grants User rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Soil Connect makes such Open Source Software, and Soil Connect’s modifications to that Open Source Software, available by written request at the notice address specified below.
- Feedback. User hereby grants to Soil Connect a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services or any of Soil Connect’s products, services, technology or other Materials any suggestions, enhancement requests, recommendations or other feedback provided by User, including Authorized Users, relating to the Services. Soil Connect will not identify User as the source of any such feedback.
- User Content License. User grants Soil Connect a royalty-free, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual, fully paid license use, sell, share, reproduce, display, distribute, perform, create derivative works of, or otherwise commercialize the User Content, or to have a third party do any of the foregoing, for any legal purpose, without compensation to User, including without limitation for the purpose of offering, operating, maintaining, improving, and/or promoting Soil Connect’s products, services, and business.
- FEES AND EXPENSES; PAYMENTS.
- Fees. The fees set forth in the Order Form (“Fees”)and any other charges you may incur in connection with your use of the service, such as taxes and possible transaction fees, will be charged to your Payment Method (as defined below). The length of your billing cycle will depend on the type of subscription that you choose when you sign-up for the service, monthly or annual.
- Payment Methods. To use certain Services you must provide one or more current, valid, accepted methods of payment, as may be updated from time to time, which may include, if applicable, an account for ACH payment (a “Payment Method”). You authorize Soil Connect to charge any Payment Method associated to your account in case your primary Payment Method is declined or no longer available to Soil Connect for payment of Fees. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, Soil Connect may suspend your access to the service until Soil Connect has successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details.
- Updating your Payment Methods. To update your Payment Method, please email [email protected] Soil Connect may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize Soil Connect to continue to charge the applicable Payment Method(s).
- No Refunds. Unless expressly otherwise set forth in writing by Soil Connect, payments are nonrefundable and there are no refunds or credits for partially used periods. Following any cancellation, other than termination by Soil Connect due to User’s breach, you will continue to have access to the service through the end of your current billing period. At any time, and for any reason, Soil Connect may provide a refund, discount, or other consideration to some or all of Soil Connect’s subscribers (“credits”). The amount and form of such credits, and the decision to provide them, are at Soil Connect’s sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate Soil Connect to provide credits in the future, under any circumstance.
- Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and User will be responsible for payment of all such taxes (other than taxes based on Soil Connect’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Services to User. User will make all payments of Fees to Soil Connect free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Soil Connect will be User’s sole responsibility, and User will provide Soil Connect with official receipts issued by the appropriate taxing authority, or such other evidence as Soil Connect may reasonably request, to establish that such taxes have been paid.
- Interest. Any amounts 30 days’ past due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
- Promotions. Certain Services may start with promotional pricing or free trials (“Promotion”). Promotion eligibility is determined by Soil Connect at its sole discretion and Soil Connect may limit eligibility or duration at any time for any reason, including without limitation to prevent Promotion abuse. To the extent applicable, the duration of the Promotion period of your subscription will be specified during sign-up and is intended to allow new and certain former subscribers to try the service. Soil Connect reserves the right to revoke the Promotion and put your account on hold in the event that Soil Connect determines that you are not eligible. For combinations with other offers, restrictions may apply. Soil Connect will charge the Fees for your next billing cycle to your Payment Method at the end of the Promotion period and your subscription will automatically renew unless you cancel your subscription prior to the end of the Promotion period.
- USER CONTENT AND RESPONSIBILITIES.
- License; Ownership. User is solely responsible for any and all obligations with respect to the accuracy, quality and legality of User Content. User will obtain all third party licenses, consents and permissions, and make any disclosures or provide any notifications, needed for Soil Connect to use the User Content as contemplated by this Agreement. Without limiting the foregoing, User will be solely responsible for obtaining from third parties all necessary rights for Soil Connect to use the User Content submitted by or on behalf of User for the purposes set forth in this Agreement. User grants Soil Connect a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the User Content as set forth in this Agreement, including without limitation as necessary for purposes of developing, providing, improving, and promoting the Services and Soil Connect’s and its partners’ products, services, and business and (b) to use the User trademarks, service marks, and logos as required to provide the Services. The User Content, and all worldwide intellectual property rights in it, is the exclusive property of User. All rights in and to the User Content not expressly granted to Soil Connect in this Agreement are reserved by User.
- User Warranty. User represents and warrants that any and all User Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Soil Connect’s system or data; and (e) otherwise violate the rights of a third party, including without limitation any privacy rights. Soil Connect is not obligated to back up any User Content; the User is solely responsible for creating backup copies of any User Content at User’s sole cost and expense. User agrees that any use of the Services contrary to or in violation of the representations and warranties of User in this Section 5.2 User Warranty) constitutes unauthorized and improper use of the Services and a material breach of this Agreement.
- User Responsibility for Data and Security. User and its Authorized Users will have access to the User Content and will be responsible for all changes to and/or deletions of User Content and the security of all passwords and other Access Protocols required in order the access the Services. User will have the ability to export User Content out of the Services and is encouraged to make its own back-ups of the User Content. User will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Content.
- WARRANTIES AND DISCLAIMERS.
- Limited Warranty. Soil Connect represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that User notifies Soil Connect in writing of any breach of the foregoing warranty within 30 days of the breach, Soil Connect may, as User’s sole and exclusive remedy, provide the support described in Section 2.2 (Support Services) or, at Soil Connect’s option, refund the per-truck monthly fee paid by User for the Services which gave rise to the breach.
THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 (LIMITED WARRANTY) IS MADE FOR THE BENEFIT OF USER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6 (WARRANTIES AND DISCLAIMERS), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOIL CONNECT MATERIALS ARE PROVIDED “AS IS,” AND SOIL CONNECT MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SOIL CONNECT DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
SOIL CONNECT IS NOT A DIRT BROKERING SERVICE. ALL LISTINGS ON THE SERVICE ARE ENTERED AND LISTED SOLELY BY THE END USERS OF THE SERVICES, NOT BY SOIL CONNECT. SOIL CONNECT DOES NOT SELL OR OTHERWISE MAKE AVAILABLE ANY SOIL OR OTHER AGGREGATE, AND SOIL CONNECT DOES NOT FACILITATE THE SALE, PURCHASE, OR TRANSFER OF ANY SOIL OR OTHER AGGREGATE. THE FEES CHARGED AND PAID FOR SOIL OR ANY OTHER ITEMS MADE AVAILABLE FOR PURCHASE THROUGH THE SERVICES ARE SET BY THE END USERS UTILIZING THE SERVICES. SOIL CONNECT DOES NOT CHARGE ANY FEES OR RECEIVE ANY COMMISSIONS ON THE TRANSACTIONS ENGAGED IN BY THE END USERS UTILIZING THE SERVICES.
SOIL CONNECT DISCLAIMS ALL WARRANTIES AND LIABILITIES RELATED TO THE DESCRIPTIONS, CHARACTERISTICS, COMPOSITIONS, QUANTITIES, RELIABILITY, AND AVAILABILITY OF THE ITEMS, PRODUCTS, OR SERVICES LISTED BY THE END USERS AND THE TRANSACTIONS BETWEEN END USERS UTILIZING THE SERVICES. SOIL CONNECT DOES NOT PERFORM ANY INDEPENDENT INVESTIGATION OR ANALYSIS OF THE ITEMS, PRODUCTS, OR SERVICES THAT ARE LISTED BY THE END USERS ON THE SERVICES. NOR DOES SOIL CONNECT VERIFY THE ACCURACY, COMPOSITION, AVAILABILITY, OR QUANTITY OF ANY LISTING ON THE SERVICES.
SOIL CONNECT DOES NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR CAUSE OF ANY KIND OR CHARACTER BASED ON OR RESULTING FROM ANY CONTENT.
- Beta Services. Despite anything to the contrary in this Agreement, User acknowledges that (a) User has the sole discretion whether to use any products or features available to User on a trial, beta, early access, or similar basis (“Beta Services”), (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services are provided without any warranties of any kind and are provided on an “as-is” basis.
- LIMITATION OF LIABILITY
- Types of Damages. IN NO EVENT WILL SOIL CONNECT BE LIABLE TO USER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SOIL CONNECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Amount of Damages. THE MAXIMUM LIABILITY OF SOIL CONNECT ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY USER TO SOIL CONNECT DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. UNLESS EXPRESSLY SET FORTH HEREIN, IN NO EVENT WILL SOIL CONNECT’S LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- By Soil Connect. Soil Connect will defend at its expense any suit brought against User, and will pay any settlement Soil Connect makes or approves, or any damages finally awarded in such suit, only insofar as such suit is based on a claim by any third party alleging that the Soil Connect Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Soil Connect Solution becomes, or in Soil Connect’s opinion is likely to become, the subject of a claim of infringement, Soil Connect may, at Soil Connect’s option: (a) procure for User the right to continue using the Soil Connect Solution; (b) replace the Soil Connect Solution with non-infringing software or services which do not materially impair the functionality of the Soil Connect Solution; (c) modify the Soil Connect Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, User will immediately cease all use of the Soil Connect Solution and Documentation. Notwithstanding the foregoing, Soil Connect will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Soil Connect Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Soil Connect Solution in combination with other products, equipment, software or data not supplied by Soil Connect; or (iii) any modification of the Soil Connect Solution by any person other than Soil Connect or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of User and the entire liability of Soil Connect, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
- By User. User will defend, indemnify, and hold harmless Soil Connect and its officers, directors, employees, agents, shareholders and affiliates (“Indemnified Parties”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ and experts’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your use of the Soil Connect platform or Services including any acts or omissions taken in reliance on the Services; (b) your breach of this Agreement; or, (c) any infringement of rights or violation of law therefrom.UserUser
- Procedure. The indemnifying party’s obligations as set forth aboveare expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
- TERM AND TERMINATION.
- Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
- Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
- Termination of Services by Soil Connect. If you have breached any provision of the Agreement, or if Soil Connect is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Soil Connect has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Soil Connect’s sole discretion and that Soil Connect shall not be liable to you or any third party for any termination of your Account.
- Effect of Termination. Termination of any Services includes removal of access to such Services and barring of further use of the Services. Upon termination of any Services, your right to use such Services will automatically terminate immediately. You understand that any termination of Services may involve deletion of User Content associated therewith from our live databases. Soil Connect will not have any liability whatsoever to you for any suspension or termination, including for deletion of User Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, the User content license, ownership provisions, warranty disclaimers, and limitation of liability.
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. User hereby expressly consents to the personal jurisdiction and venue in the state and federal courts of Suffolk County, New York for any lawsuit filed there against User by Soil Connect arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Export. User agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Soil Connect, or any products utilizing such data, in violation of the United States export laws or regulations.
- User Information. User agrees not to use the Services to solicit, advertise for, or contact in any form, users for employment or any other purpose not related to the users facilitated through the Services. User also agrees not use the Services to collect usernames and/or e-mail addresses of any Services Users by electronic or other means without the express prior written consent of Soil Connect.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
- Compliance with Law. User will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- Independent Contractors. The Parties’ relationship hereunder is that of independent contractors, and neither party is an agent or partner of the other. User will not have, and will not represent to any third party that it has, any authority to act on behalf of Soil Connect.
- Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Soil Connect may provide notice using the information provided in the most recent Order Form and User may provide notice using the contact information provided on https://soilconnect.wpengine.com.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of User and Soil Connect.
- Contact. If you have any questions about these Terms prior to accepting, please contact us at 1.833.230.SOIL (7645) or email us at [email protected]