Terms of Service
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING "ACCEPTED AND AGREED," EACH CUSTOMER AGREES TO THESE TERMS OF SERVICE.
These Terms of Service constitute an agreement (this "Agreement") by and between AgSolver, Inc., a Delaware Corporation ("Provider") and each customer ("Recipient") of Provider’s online Profit Zone Manager (PZM) service.
- "Account" refers to the Service plans and features selected by Recipient through Provider’s customer portal at the time of enrollment and accepted by Provider, as such plans and features may change by mutual consent of the parties, as recorded by Provider through such portal.
- "Authorized Representative" refers to a Party’s directors, officers, employees, advisors, consultants, contractors, and agents, including but not limited to outside counsel, accountants and financial consultants.
- "Effective Date" refers to the date of commencement of the Service as listed in Recipient’s Account.
- "Materials" refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.
- "Recipient Data" refers to data in electronic form input or collected through the Service by or from Recipient.
- "Service" refers to Provider’s Profit Zone Manager service. The Service includes such features as are set forth on Provider’s website (https://agsolver.com/features/), as Provider may change such features from time to time, in its sole discretion.
- "SLA" refers to Provider’s service level agreement, posted at https://agsolver.com/privacy/, as such service level agreement may change from time to time.
Service & Payment.
- Service. Provider will provide the Service to Recipient pursuant to its standard policies and procedures then in effect.
- Payment. Recipient will pay Provider such report generation Service fees as are required in Recipient’s Account, due on the day the Service is requested or on a monthly basis as agreed upon by the Provider and Recipient.
Service Level Agreement.
In the event of any "Service Failure," as that term is defined in the SLA, Provider will issue Recipient such credits as are required by the SLA. Credits issued pursuant to the SLA apply to outstanding or future payments only and are forfeited upon termination of this Agreement. Provider is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation termination of this Agreement. Credits issued pursuant to the SLA are Recipient’s sole remedy for the Service Failure in question. The SLA is hereby incorporated into this Agreement.
Materials, Software, & IP.
- Materials. Recipient recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Recipient’s use of the Service.
- IP in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components.
Each Party’s Warranties.
- Recipient’s Identity. Recipient warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older.
- Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
- Disclaimers. Except for the express warranties specified in this section 4, THE SERVICE IS PROVIDED "AS IS" AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, (i) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (ii) Provider does not warrant that the Service will perform without error or immaterial interruption.
Limitation of Liability.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY indirect, special, incidental, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES of any kind, INCLUDING BUT NOT LIMITED TO interruption of business, loss of use, profits, savings or goodwill, fines, penalties or any other damages REGARDLESS OF WHETHER THE CLAIM GIVING RISE TO DAMAGES IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, or Non-PERFROMANCE, EVEN IF THE PARTIES HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. MOREOVER, EXCEPT FOR PAYMENT FOR SERVICES RENDERED AND AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S (OR THEIR AFFILIATE’S) CUMULATIVE AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE LESSER OF (1) $500,000 AND (2) TOTAL COMPENSATION PAID TO AGSOLVER UNDER THIS AGREEMENT.
- Recipient’s Rights. Recipient possesses and retains all right, title, and interest in and to Project Data. Recipient may access and copy any Project Data in Provider’s possession at any time. Provider will facilitate such access and copying promptly after Recipient’s request.
- Retention & Deletion. Provider will retain any Project Data in its possession until Erased (as defined below) pursuant to this Subsection 8(b). Provider will Erase: (i) all copies of Project Data after collection thereof; (ii) any or all copies of Project Data no sooner than 2 business days after and no later than 90 business days after Recipient’s written request; and (iii) all copies of Project Data no sooner than 2 business days after termination of this Agreement and no later than 14 business days after such termination. Notwithstanding the foregoing, Recipient may at any time instruct Provider to retain and not to Erase or otherwise delete Project Data, provided Recipient may not require retention of Project Data for more than 2 business days after termination of this Agreement. Promptly after Erasure pursuant to this Subsection 8(b), Provider will certify such Erasure in writing to Recipient. (“Erase” and “Erasure” refer to the destruction of data so that no copy of the data remains or can be accessed or restored in any way.)
- Injunction. Provider agrees that violation of the provisions of this Section 8 might cause Recipient irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Recipient will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
- Compliance with Law & Policy. Provider will comply with all applicable federal and state laws and regulations governing the handling of Project Data.
- Leaks. Provider will promptly notify Recipient of any actual or potential exposure or misappropriation of Project Data (any "Leak") that comes to Provider’s attention. Provider will cooperate with Recipient and with law enforcement authorities in investigating any such Leak, at Provider’s expense. Provider will likewise cooperate with Recipient and with law enforcement agencies in any effort to notify injured or potentially injured parties, and such cooperation will be at Provider’s expense, except to the extent that the Leak was caused by Recipient. The remedies and obligations set forth in this Subsection 8(f) are in addition to any others Recipient may have.
- Right to Delete data Before a Change in Control. In the event the Provider has a change in control, you will be provided notice by email and allowed to delete or remove your data prior to the change in control. Any third party service provider used by the Provider that may have access to your Recipient Data is required to abide by these same terms.
Term & Termination.
- Term. This Agreement continues in full force and effect following the Effective Date (a "Term").
- Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other party first cures such breach.
- Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Recipient to pay for Service rendered before termination; (ii) Sections 4, 5(a), 6(c), and 7 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
- Notices. Provider may send notices pursuant to this Agreement to Recipient’s contact points listed in Recipient’s Account, and such notices will be deemed received one day after they are sent. Recipient may send notices pursuant to this Agreement to firstname.lastname@example.org, and such notices will be deemed received one day after they are sent.
- Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
- Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
- Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
- Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Iowa, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Ames, IA.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.