Terms of Service
Last updated September 1, 2021
THESE TERMS OF SERVICE CONSTITUTE A LEGALLY BINDING AGREEMENT (“AGREEMENT”) BETWEEN YOU AND GRANULAR CANADA COMPANY, AND ITS AFFILIATES (“GRANULAR”, “WE”, “OUR” OR “US”) AND GOVERNS YOUR ACQUISITION OF, ACCESS TO, AND USE OF THE SERVICES.
Capitalized terms used herein are defined terms, and definitions can be found at the end of this Agreement.
By accessing or using the Services or by continuing to access or use the Services after being notified of a change to this Agreement, You are agreeing to the terms in this Agreement. If You are entering this Agreement on behalf of a business, employer, or other legal entity, You are accepting these terms on behalf of that entity and representing that You have the legal authority to bind the entity, in which case “You” and “Your” refers to You, the entity, and its Affiliates. If You do not have such authority, are not 18 years of age or older, or do not agree to these terms, You may not access or use the Services.
THIS AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. UNITED STATES USERS: THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION AND JURY TRIAL WAIVERS, WHICH ARE APPLICABLE TO ALL UNITED STATES USERS AND USERS HAVING OPERATIONS IN THE UNITED STATES. PLEASE READ CAREFULLY THE BINDING ARBITRATION AGREEMENT AND CLASS ACTION AND JURY TRIAL WAIVERS – IT AFFECTS HOW DISPUTES ARE RESOLVED.
We reserve the right to make changes to this Agreement at any time. Further, Additional Terms may apply to the Services and are hereby incorporated into this Agreement and govern Your and Your Users’ access to and use of the Services. Please check back from time to time to ensure You are aware of any updates or changes.
You or Your Users may not access the Services if You are Our Competitor, except with Our prior written consent. which may be withheld for any or no reason. In addition, You and Your Users may not access the Services for purposes of (a)monitoring the performance or functionality, of the Services; (b) showing the Services or Our Information to any Competitor or third party not governed by this Agreement; or (c) for any other benchmarking or competitive purposes.
1. USE OF SERVICES.
1.1 Permitted Use. Subject to the terms of this Agreement, including its Additional Terms, We grant You the limited, personal, non-exclusive, non-sublicensable, and non-transferable right to access and use the Services and Our Information solely for Your personal use or internal business purposes. You may permit Your Users to access and use the Services on Your behalf, and You are responsible for by or through Your and/or Your Users’ access to and use of Your account(s). If You are a retailer or other entity or person using the Services for the benefit of another party, You represent and warrant that You have all necessary consents to use the Services on the other party’s behalf and that You have given the recipient of the Services an opportunity to review the terms and conditions herein.
1.2 Restrictions. You and Your Users may not: (a) copy, reproduce, distribute, modify, edit, create derivative works, adapt, translate, reformat, derive, emulate, exploit, republish, download, display, post, transmit, disassemble, reverse engineer, or decompile, except as expressly permitted herein, any portion of the Services and its associated software code and functionality, except to the extent that the applicable copyright law expressly permits doing so; (b) license, assign, transfer, sublicense, or otherwise commercially exploit Your rights to the Services or Our Information, or use the Services or Our Information on behalf of or for the benefit of a third party other than Your Users, including in any service bureau or timesharing arrangement; (c) use the Services or Our Information for the purposes of competitive comparison or competitive development; (d) use the Services or Our Information in any way (i) that violates applicable Law; (ii) intended to violate a third party’s privacy; or (iii) to threaten, stalk, harass, defame a third party, or otherwise violate the legal rights of others; (e) interfere with the integrity, operation, or performance of the Service, or related software; (f) access or try to access any Services or Our Information that You or Your Users do not have the right to access, or use the Services in any unauthorized way that could interfere with anyone else’s use of them or gain access to any other service, data, account, or network; (g) allow any unauthorized party to access Our Information or Your instance of the Services; (h) use any third party content or services available through the Services separately from the Services; (i) publish, copy, rent, lease, sell, export, import, distribute, or lend the software or Services, unless We expressly authorize You to do so; (j) frame or use framing techniques including without limitation to enclose any trademark, logo, or Services (including images, text, page layout, or form) of Ours; (k) use any metatags or other “hidden text” using Our name or trademarks; (l) use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from the Services (except that We grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (m)remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (n) interfere with or attempt to interfere with the proper functioning of the Services or use of the Services in any way; or (o) attempt to circumvent, bypass, or harm the software or Services or any technical measures in or relating to the software or Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with the use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
Any unauthorized use of the Services by You or Your Users may result in Our locking, disabling, blocking, and/or deleting Your account and/or immediately terminating the licenses granted by Us pursuant to this Agreement, without notice to You. You must promptly notify Us if You suspect or know of any violations or possible violations to the terms of the Agreement, and You agree to cooperate with and assist Us in any investigation of such potential violations or enforcement of the terms of the Agreement.
1.3 User Generated Content. Certain Services may permit You and Your Users to submit Content to the Services. When You and Your Users share Content via the Services You and Your Users understand that may be able to view, use, save, record, reproduce, share, or display Your Content without compensating You. If You or Your Users do not want other users to have that ability, do not use the Services to share Your Content. You represent and warrant that for the duration of this Agreement, You have (and will have) all the rights necessary for Your Content that is submitted, uploaded, stored, or shared on or through the Services and that the collection, use, and retention of Your Content will not violate any Laws or rights of others. We cannot be held responsible for Your Content or the content or materials others upload, store, or share using the Services. You and Your Users shall not submit any Content that violates this Agreement or is objectionable or inappropriate (e.g., sexual content, nudity, pornography, offensive language, criminal activity, hate speech, content promoting violence, bullying, or harassment). When using the Services, You and Your Users agree not to engage in activity that is illegal, fraudulent, false, or misleading (e.g., impersonating someone else, manipulating the Services).
To the extent necessary to provide the Services, to protect You and the Services, and to improve the Services, You and Your Users grant to Us a worldwide and royalty-free intellectual property license to use Your Content, for example, to make copies of, retain, transmit, reformat, display, and distribute Your Content. Your Content may appear in demonstrations, training materials, or in materials used to promote the Services, including without limitation, advertising. We will not use Your Content to target advertising to You.
If We become aware of any use of the Services by You or Your Users that we deem objectionable, inappropriate, or in violation of the terms of this Agreement or applicable Law, We will respond in any way that We, at our sole discretion, deem appropriate, including without limitation (a) suspending or terminating Your and/or Your Users access to the Services; (b) blocking delivery of communication to or from the Services; (c) removing or refusing to publish Your Content; and/or (d)reporting to law enforcement authorities any actions that may be considered illegal, as well as any reports We receive of such conduct. When requested, We will cooperate fully with law enforcement agencies in any investigation of alleged illegal activity on the Internet. We reserve the right to review your Content in order to resolve any issue. However, We cannot monitor the entire Services and make no attempt to do so.
2. DATA, ACCOUNT INFORMATION, AND CONFIDENTIALITY
2.1 Data Privacy. We will handle Personal Information and Other Information in accordance with Our Privacy Terms.
2.2 Confidentiality. Confidentiality of Your Personal Information is addressed in the Privacy Terms referenced above. The Services and ways in which Our Information is generated constitute valuable intellectual property not generally known by or shared with the public. You will treat and safeguard the Services and Our Information as confidential information and not share the Services or Our Information with any third parties not authorized to access the Services.
2.3 Accuracy of Account Information. When You create an account for certain Services, You may be asked to provide certain information such as email address, screen name, location, or other user information. By entering that information, You represent all such information is true and accurate. For example, You will not associate land or equipment that You do not own or have a right to access with the Services. You also agree to promptly update such information if it changes at any time during Your use of the Services. You also represent that You are not barred from using the Services under any applicable Law. You agree that Your information may be transferred by Us to other services (including without limitation Granular’s Affiliates’ Services) that may supplement or replace the Services You currently use.
2.4 Login Credentials. When You create an account for certain Services, You may be asked to provide a user name and password. To protect Your account, keep Your account details, login credentials, and password confidential. You and Your Users are responsible for preventing minors (i.e., persons under the age of “majority” where You live) and other unauthorized users from using Your login credentials to access the Services. You are solely responsible for the activities of anyone accessing Your account or the Services using Your login credentials. You must promptly notify Us of any unauthorized use of Your login credentials or the Services and promptly change Your password if Your account has been compromised. You agree not to create an account using any false, inaccurate, or misleading information (such as by using a false identity or alias) or if You have been previously banned from using the Services. You further agree You will not maintain more than one account for the Services at any given time.
2.5 Equipment/Data Plans. To use the Services, You will need an internet connection and/or data/cellular plan. You might also need additional equipment. You are responsible for providing all connections, plans, and equipment needed to use the Services and for paying the fees charged by the provider(s) of Your connections, plans, and equipment. Those fees are in addition to any fees You pay Us for the Services and We will not reimburse You for such fees. Check with Your provider(s) to determine if there are any such fees that apply to You.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Our rights. We, or third parties who have granted Us rights, own and shall retain all right, title, and interest (including any intellectual property rights therein) in and to: (a) the Services and all derivative works, modifications, copies, and improvements to the Services,; (b) Our Information,; and (c) Our Branding Material.
3.2 Feedback. You agree that any Feedback will be Our exclusive property. To the extent You or Your Users own any rights in the Feedback, You and Your Users agree to assign and hereby do assign to Us, without charge, royalties or other obligation to You or Your Users, all right, title, and interest in and to the Feedback, including, without limitation, the right to make, have made, create derivative works, use, share, and communicate Your Feedback in any way and for any purpose. You will not give Feedback that is subject to a license that requires Us to license its software, technologies, or documentation to any third party because We include Your Feedback in them. You agree to perform all acts reasonably requested by Us to perfect and enforce such rights.
3.3 Your rights. You own Your Information, and, subject to the Privacy Terms, You grant Us a non-exclusive license to access, use, reproduce, display, modify, and prepare derivative works based on Your Personal Information or Other Information for the purpose of providing, improving, and enhancing the Services. You own Your Branding Material. You grant Us a non-exclusive, non-transferable license to use Your Branding Material in the provision of the Services, publishing of material on Our website, and production of marketing materials to promote Our products and services, which may include the disclosure of Your relationship with Us.
3.4 Reservation of Rights. Except as expressly provided under this Agreement, We do not grant you a license or any other rights of any type under any patents, know-how, copyrights, trade secrets, trademarks or other intellectual property owned or controlled by Us or any of Our Affiliates or related entity, including, but not limited to, any name, trade dress, logo or equivalents.
4. FEES AND PAYMENTS
4.1 Fees. You shall be responsible for the payment of all fees, which may include but are not limited to Services subscription fees or those set forth on any Order Form, for the Services associated with this Agreement. Fees will be disclosed and assessed, as needed, according to Our procedures, and We may change those fees at Our sole discretion from time to time. The fees for the Services exclude all applicable taxes, unless otherwise stated. We may suspend or cancel the Services if We do not receive an on time, full payment from You. Suspension or cancellation of the Services for non-payment could result in a loss of access to and use of Your account and Your Content. Connection to the internet via a corporate or other private network that masks Your location may cause charges to be different from those displayed for Your actual location. Except as otherwise noted in this Agreement, all purchases are final and non-refundable. If You believe that We have charged You in error, You must contact Us with 90 days of such charge. No refunds will be given for charges more than 90 days old. We reserve the right to issue refunds or credits at our sole discretion. If We issue a refund or credit, We are under no obligation to issue the same or similar refund or credit in the future. This refund policy does not affect any statutory rights that may apply.
4.2 Taxes. You are responsible for any Taxes and will pay Us for the Services without any reduction for such amounts. If We are obligated to collect or pay Taxes, We will include such Taxes on Our invoice, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. If You are required by law to withhold any Taxes from Your payments to Us, You must provide Us with official documentation to support such withholding.
4.3 Invoices; Payment; Late Payment. All amounts are due and payable upon Your receipt of Our invoice or other method of billing for Service, unless otherwise stated in billing statements. Interest shall accrue on amounts more than fifteen (15) days past due at the lower rate of twelve percent (12%) per month or the highest rate of interest allowed by Law, calculated from the date such amount was due. You shall reimburse Us for the reasonable costs of collection, including legal fees and expenses. Additionally, You agree to permit Us to use any updated account information regarding Your selected payment method provided by Your issuing financial institution or the applicable payment network. You agree to promptly update Your account and other information, including Your email address and payment method details, so We can complete Your transactions and contact You as needed in connection with Your transactions. Changes made to Your billing account will not affect charges We submit to Your billing account before We could reasonably act on Your changes to Your billing account. By providing Us with a payment method, You: (a) represent that You are authorized to use the payment method You provided and that any payment information You provide is true and accurate; (b) authorize Us to charge You for the Services or available Content using Your payment method; and (c) authorize Us to charge You for any paid feature of the Services You choose to sign up for or use while this Agreement is in force. We may bill You (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Also, We may charge You up to the amount You have approved, and We will notify You in advance of any change in the amount to be charged for recurring subscription Services. We may bill You at the same time for more than one of your prior billing periods for amounts that haven’t previously been processed.
4.4 Recurring Fees. When You purchase the Services on a subscription basis (e.g., monthly, quarterly, or annually), You agree that You are authorizing recurring payments, and payments will be made to Us by the method and at the recurring intervals that You have agreed to, until the subscription for that Service is terminated by You or by Us. You must cancel Your Services before the next billing date to stop being charged. We will provide You with instructions on how You may cancel Your Services. By authorized recurring payments, You are authorizing Us to store Your payment instrument and process such payments as either electronic debits or fund transfers, or as electronic drafts from Your designated account (for Automated Clearing House or similar payments), or as charges to Your designated account (for credit card or similar payments) (collectively, “Electronic Payments”). Subscription fees are generally charged in advance of the applicable subscription period. If any payment is returned unpaid or any credit card or similar transaction is rejected or denied, We or Our service providers reserve the right to collect any application return item, rejection, or insufficient funds fee and process any such payment as an Electronic Payment.
4.5 Promotional Offers. From time to time, We may offer Services for a trial period during which We will not charge You for the Services. We reserve the right to charge You for such Services (at the normal rate) if We determine, in Our reasonable discretion, that You are breaching the terms and conditions of the offer or this Agreement.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall commence on the Effective Date and continue until the expiration or termination of Your use of all Services. The initial term and renewal periods are collectively the “Term”.
5.2 Termination by You. If You wish to terminate Your relationship with Us, You must notify us via email at: [email protected] and provide Us with any additional account information necessary to terminate Our relationship with You.
5.3 Termination by Us. We may terminate this Agreement by providing notice to an email address associated with Your account and issuing a pro-rated refund of any pre-paid, unused subscription fees You have paid. This Agreement will automatically terminate without refund if You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In addition, if We become aware of unauthorized use of the Services by You or Your Users or activities that we deem to be inappropriate or objectionable with respect to the Services, We may respond in any way that, in Our sole discretion, We deem appropriate, which may include termination of this Agreement without notice and without any refund of any fees. Upon termination, You and Your Users must immediately delete and destroy any downloaded application, Content, and printed materials related to the Services.
5.4 Rights and Obligations Upon Termination. Upon expiration or termination (whether by You or Us) of this Agreement, You and Your Users right to access the Services, stops immediately and Your licenses related to the Services end. We may or may not delete Your Content associated with the Services or will otherwise disassociate it from You and Your account (unless We are required by Law to keep it or transfer it to You or a third party identified by You). As a result, You will no longer be able to access Your Content that you stored on the Services. You should have a backup plan.
5.5 Survival. The rights and obligations contained in Sections 2, 3, 6, 7, 8, 9, 10, and 11 shall survive any expiration or termination of this Agreement.
6. LIMITED WARRANTY AND DISCLAIMERS.
6.1 Limited Warranty. We warrant that the Services will function substantially in accordance with Our then-available specifications for the Services. Your sole and exclusive remedy for any breach of the foregoing warranty will be for Us to re-perform the Services in a manner that conforms to this warranty. If We are unable, or it is not commercially reasonable to correct the non-conformity, We may, at our discretion, terminate the Agreement and provide You a pro-rata refund of any prepaid fees for the applicable Term.
6.2 Disclaimers. THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR LIMITATIONS OF LIABILITY. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS. Your use of, and any reliance upon, the Services or Our Information, including, but not limited to, any information, materials, downloaded applications, agronomic information, yield data, historical data, weather forecast, advice, commodity prices, or land valuation is at Your own risk. Some of the Services are location-specific and Services available in one location may not be available in another location. The results of any report, output, or recommendation from the Services are based, in large part, by completeness, timeliness, truth, and accuracy of Your Information. Any incorrect information inputted by You or Your Users will affect such report, output, or recommendation in a negative manner, potentially rendering them incorrect and/or damaging. Even if Your Information is complete, timely, true, and accurate, We do not warrant that any output, report, or recommendation made available by or through the Services will be correct, suitable, or useful for You or Your location, save You money or time, increase profits, increase yields, act as a substitute for sound field monitoring and management practices, or any other result or otherwise allow You to meet Your goals. You must use Your own judgment in determining whether to adopt, use, or comply, in whole or in part, with any report, output, or recommendation from the Services. Individual results may vary and are subject to a variety of environmental factors (e.g., weather, disease and pest pressure, soil type, moisture level, and management practices). We are not responsible for any of Your or Your Users’ acts or omissions resulting from Your or Your Users’ action or inaction resulting from such report, output, or recommendation. As the Services evolve, We may provide You and Your Users explanations on how the Services work and certain additional specific disclaimers. Any such specific disclaimers provided to any User, including through a notice made available within the Services, are incorporated by reference into this Agreement.
The Services and all of the text, images, and software and all services, products, and materials (including, without limitation, third party products and services, and submissions and creations) made available through or in connection with the Services are provided to You on an “as is”, “as available””, “with all faults”, and “where-is” basis. You understand that the use of the Services is at Your and Your Users’ own risk. Except as provided in the limited warranty in section 6.1, We provide no representations, warranties, or guarantees of any kind in connection with or regarding the Services, including but not limited to the suitability, truth, accuracy, timeliness, or completeness of any content, material, information, product, representation, or the Services. To the maximum extent permitted under applicable Law, We disclaim all representations, warranties, and guarantees, whether express or implied, statutory, or otherwise, including, but not limited to, any implied warranty or condition of quality, merchantability, fitness for a particular purpose, workmanlike effort, or non-infringement of third party rights, or those arising out of a course of dealing, custom, or usage of trade. You may have certain rights under local Law. Nothing in this Agreement is intended to affect those rights, if they are applicable. Specifically, except as provided in the limited warranty, We make no warranty, representation, or guarantee regarding the availability, accuracy, reliability, completeness, legality, security, satisfactory quality, or operability of the Services, any stored data or other information, functionalities, applications, or other features provided. You acknowledge that computer and telecommunications systems are not fault-free and occasional periods of downtime occur. We do not guarantee that the Services will be uninterrupted, timely, secure, or error-free or that Content loss won’t occur, nor do We guarantee any connection to or transmission from the computer networks. In the case of third party Content or services offered as part of the Services, our Affiliates, vendors, licensors, and third party service providers disclaim liability as described in this section as well.
7. THIRD PARTY LINKS.
7.1 Third Party Interaction and Links to Third Party Sites. In Your use of the Services, You may, through applications available through or with respect to the Services, link to other websites or to advertisements, enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party advertisers, commerce providers, independent distributors, or other registered users. We are not responsible for the availability, accuracy, or security of such third party sites. Unless otherwise stated specifically by Us, any such correspondence, advertisement, purchase, or promotion, including the delivery of and the payment for goods and/or services, and any other term, condition, warranty, or representation associated with such correspondence, purchase, or promotion is solely between You and the applicable third party. You agree that We have no liability, obligation, or responsibility for any such correspondence, purchase, or promotion between You and any third party whatsoever.
The Services may be linked to other websites that are not under the control of or maintained by Us. Such links do not constitute an endorsement by Us of any such websites or the products or services offered through such websites. You acknowledge that We are providing these links to You only as a convenience. You agree that We are not responsible for the business practices, content, privacy policies or links displayed on such websites or products and services offered through such sites to which You may be linked. You agree that Your access to those websites is at Your sole risk.
7.2 From Third Parties to Us. All links to Our websites by third parties (“linking party”) must be approved in writing by Us. Please contact [email protected] to request approval.
As a condition to being permitted to link to Our Services, the linking party must agree that We may at any time, in Our sole discretion, terminate or revoke permission to link to the Services. In such event, the linking party agrees to immediately remove all links to the Services.
By linking to the Services, the linking party agrees to indemnify and hold Us safe and harmless from, and against, any and all losses, costs, damages, claims, actions, or liabilities arising from any such link. We shall have no liability for any indirect, exemplary, incidental, punitive, special, or consequential damages with regard to the linking or use of such link. Granular makes no warranties, express or implied, with respect to such links.
8. LIMITATION OF LIABILITY.
THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. Under no circumstances and under no legal theory (whether in contract, tort, negligence, or otherwise) will We, Our Affiliates, or Our and Our Affiliates’ officers, directors, shareholders, employees, agents, suppliers, representatives, licensors, or third parties providing Services be liable to You, Your Users, or any third party for any indirect, incidental, special, exemplary, consequential, punitive, or other similar damages, including lost profits, lost sales or business, lost data, business interruption, or any other loss incurred by You or any third party arising out of, related to, or in connection with this Agreement or the use of, or inability to use, the Services, regardless of whether We have been advised of the possibility of or could have foreseen such damages.
Notwithstanding anything to the contrary in this Agreement or the failure of essential purpose of any limited remedy, if You have any basis for recovering damages (including breach of this Agreement), You agree that Your exclusive remedy is to recover from Us or Our (including Our and Our Affiliates’, officers’, directors’, shareholders’, employees’, agents’, suppliers’, representatives’, licensors’, and third party service providers’) direct damages up to an amount equal to the fees paid by You for the month during which the loss or breach occurred , or in the event You have not paid a fee, then $25.00 United States dollars. You cannot recover any other damages or losses. These limitations and exclusions apply even if this remedy doesn’t fully compensate You for any losses or fails for its essential purpose. To the maximum extent permitted by Law, these limitations and exclusions apply to anything or any claims related to this Agreement, the Services, or the software related to the Services. You acknowledge and agree that the essential purpose of this section 8 is to allocate the risks under this Agreement between the parties and limit potential liability given the fees, which would have been substantially higher if We were to assume any further liability other than as set forth herein. We have relied on these limitations in determining whether to provide You the rights to access and use the Services provided for in this Agreement.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. In these jurisdictions, Our liability will be limited to the greatest extent permitted by applicable Law. If You are a resident of the European Union, We do not exclude or limit our liability for death or personal injury resulting from negligence.
9. DISPUTE RESOLUTION – BINDING ARBITRATION AGREEMENT, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER
9.1 BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
You and We agree to resolve any and all disputes, controversies, or claims that in any way arise out of or relate to this Agreement or from any portion or aspect of the Services (“Dispute(s)”), only by arbitration on an individual basis under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. The term “Dispute” shall be interpreted as broadly as it can be and includes any claim or controversy between You and Us concerning the Services, the software related to the Services, the price of the Services, Your account, advertising, marketing, communications, Your purchase transaction, billing, or the terms of this Agreement, under any legal theory including contract, warranty, tort, statutory, or regulation, except disputes relating to the enforcement or validity of Your, Our, Our licensors’ intellectual property rights.
You understand that by agreeing to this Agreement, arbitration will be the sole and exclusive means of resolving any Dispute between You and Us. You also understand that by agreeing to this Agreement, You and We are giving up the right to bring a Dispute in court or in front of a jury (except for matters that may be brought in small claims court), and that You and We are giving up the right to proceed with any class action or other representative action. Instead, a neutral arbitrator will decide and the arbitrator’s decision will be final except for the limited right of review under the FAA. While arbitration procedures may be different than court procedures, an arbitrator can award You individually the same damages and relief as a court, and judgment on the award rendered by the arbitrator may be entered and enforced in any court with jurisdiction. You and We understand that absent this mandatory provision, You and We would have the right to sue in court and have a jury trial. You and We further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
As used in this section 9, “We”, “our”, and “Us” includes Granular, Inc. and its Affiliates.
9.2 ARBITRATION PROCEDURE.
- 9.2.1 Notice of Dispute. If You or We intend to arbitrate a Dispute under this Agreement, the party seeking arbitration must first notify the other party of the dispute at least 60 days before initiating the arbitration. Notice to Us should be sent either may mail to 7250 NW 62nd Ave, Johnston, Iowa 50131, Attn: Legal or to [email protected] Notice to You will be sent to Your email address and/or street address that We have in Our records at the time the notice is sent. The notice must tell Us Your name, address, how to contact You, what the problem is, and what You want. We will do the same if We have a Dispute with You. If You and We are not able to resolve the Dispute within 60 days, either You or We may start an arbitration.
- 9.2.2 Timing of notice. You and We agree that the notice provided in section 9.2.1 must be provided within one (1) year after the cause or claim underlying the Dispute accrues. If the notice is not provided in that time, it is permanently barred.
- 9.2.3 Arbitration Location. The FAA applies to this Agreement. All Disputes will be resolved by arbitration administered by the AAA. For more information, see www.adr.org or call 1-800-778-7879. The AAA will apply the Commercial Arbitration Rules to the arbitration of any Dispute pursuant to this Agreement, unless You are an individual and use the Services for personal use, in which case the AAA’s Consumer Arbitration Rules will apply (excluding any rules or procedures governing or permitting class actions). Procedures and fees relating to arbitration are available from the AAA. In the event of a conflict between this Agreement and the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules, this Agreement governs. In a Dispute involving $25,000 United States dollars or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to You individually as a court could. The arbitrator may award declaratory judgment or injunctive relief only to You individually to satisfy Your individual claim. Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any Dispute. But a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.
- 9.2.4 Arbitration Procedure. The Federal Arbitration Act applies to this Agreement. All Disputes will be resolved by arbitration administered by the American Arbitration Association (“AAA”). The AAA will apply the Commercial Arbitration Rules to the arbitration of any Dispute pursuant to these Terms, unless You are an individual and use the Services for personal use, in which case the AAA’s Consumer Arbitration Rules will apply (excluding any rules or procedures governing or permitting class actions). Procedures and fees relating to arbitration are available from the AAA (www.adr.org). In the event of a conflict between this Agreement and the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules, this Agreement governs.
- 9.2.5 Arbitration Fees and Costs. You and We will equally share the fees and costs associated with the AAA. You are responsible for Your legal fees and expenses and We are responsible for Our legal fees and expenses.
- 9.2.6 Severability. If a court of competent jurisdiction finds any part of this Agreement to arbitrate unenforceable, the court will reform the Agreement to the extent necessary to cure the unenforceable part(s), and You and We will arbitrate the Dispute(s) without reference to or reliance upon the unenforceable part(s).
- 9.2.7 Rejecting Future Arbitration Changes. You may reject any change We make to section 9 (except address changes) by sending Us notice within 30 days of the change by U.S. Mail to the address noted in section 9.2.1. If You do, the most recent version of section 9 before the change You rejected will apply.
9.3 Jury Trial Waiver for United States customers and customers with United States Operations or Users. If for any reason a dispute proceeds in court rather than through arbitration, You and We agree that there will not be a jury trial. You and We unconditionally waive any right to trial by jury in any action, proceeding or counterclaim in any way arising out of or relating to this Agreement. In the event of litigation, this paragraph may be filed to show a written consent to a trial by the court.
9.4 Class Action Waiver for United States customers and customers with United States Operations or Users. This Agreement does not allow class or collective arbitrations, even if the arbitration procedures or rules would. Notwithstanding any other provision of these terms, the arbitrator may award money or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide the relief warranted by that party’s individual claim. Arbitration or court proceedings held under this Agreement cannot be brought, maintained or resolved on behalf of or by a class, as a private attorney-general, or in any other representative capacity. In addition, individual proceedings cannot be combined without the consent of all of the parties. Any question regarding the enforceability or interpretation of this section will be decided by a court and not the arbitrator.
10.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from: (a) any damages, awards or fees finally awarded against You or (b) for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You promptly give Us written notice of the Claim Against You and give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability). Additionally, You must provide Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our sole discretion and at no cost to You (x) modify the Service so that it no longer infringes or misappropriates, without breaching warranties under Section 6.1, (y) obtain a license for Your continued use of that Service in accordance with this Agreement, or (z) terminate Your subscriptions for that Service upon thirty (30) days’ written notice and refund You pro-rata fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply: (i) to the extent a Claim Against You arises from Your breach of this Agreement, (ii) if the Services you are accessing are provided free of charge, or (iii) if You use one or more Services in an infringing manner and a non-infringing manner of use is available.
10.2 Indemnification by You. You alone are responsible for Your actions related to the use of the Services or the actions of any person using Your credentials or Your computing device. As such, You will defend Us against any claim, demand, suit, or proceeding made or brought against Us or Our Affiliate by a third party relating in any way to Your, Your Users’ or any person using Your credentials or Your computing device: (a) breach of this Agreement; (b) use of the Services, the related software, or Our Information; (c) any allegation that Your Information, or Your or Your Users’ use of any Services, related software, or Our Information other than in conformance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”). You will indemnify Us from any: (y) damages, awards, penalties, or fees finally awarded against Us as a result of, and (z) for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We promptly give You written notice of the Claim Against Us, give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and give You all reasonable assistance, at Your expense.
10.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of Halifax, Nova Scotia, Canada, without regard to its conflict of law provisions. If for any reason a Dispute proceeds in court rather than through arbitration, such Dispute may only be brought exclusively in the state or federal courts located in Halifax, Nova Scotia, Canada. We and You hereby submit to the exclusive jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding, and waive all defenses relating to jurisdiction, venue, or that such court is an inconvenient forum. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods.
11.2 Export Laws. You must comply with all domestic and international export laws and regulations that apply to the software and/or the Services, which include restrictions on destinations, end users, and end use.
11.3 Entire Agreement. This Agreement, including Additional Terms, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.
11.4 Third Party Content. The Services may contain or enable access to third party content, software, services, or websites that are subject to different license terms, and Your use of those services is governed by the applicable terms. You are responsible for obtaining and complying with any necessary rights or licenses to third party content, software, services, or websites.
11.5 Service Access. You are responsible for and must provide all telephone and other equipment, software (other than any software provided by Us), hardware, and services (including internet access) necessary to access and utilize the Services.
11.6 Amendment. We may modify this Agreement at any time. Any and all changes will become effective when We post the revised Agreement on the Services. Your use of the Services following these changes means You accept the revised Agreement. If You do not consent to the revised Agreement, You must stop using the Services, and You may notify us to receive a prorated refund of any prepaid fees for unused Services.
11.7 Waiver. The waiver by Us of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
11.8 Force Majeure. We shall not be responsible or liable in any way for Our failure to perform any of Our covenants or obligations under this Agreement if such failure results from events or circumstances reasonably beyond Our control.
11.9 Notices. We may periodically contact You or Your Users via email or other means to inform You or your Users about Services updates, special offers or other information that We believe may be valuable.
11.10 Severability. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force. The parties agree that neither party shall be deemed the drafter of this Agreement and, in the event any provision in this Agreement is alleged to be ambiguous, such provision will not be construed in favor of one party on the ground that the provision was drafted by the other party.
11.11 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency relationship, or similar busines relationship between the parties. Neither party is a legal representative of the other party, and neither party can assume or create any obligation, representation, warranty, or guarantee, express or implied, on behalf of the other party for any purpose whatsoever and will have no power to bind the other party without its prior written consent.
11.12 Assignment/Successors. You may not assign or transfer this Agreement, in whole or in part, without Our prior written consent, and if consent is provided, only if the assignee agrees in writing to be bound by the terms of the then-current version of this Agreement. Any attempted assignment or transfer in violation of this section will be null and void. Notwithstanding the foregoing, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
11.13 Non-Exclusive Remedies. Except as set forth in this Agreement, the exercise by Us of any remedy under this Agreement will be without prejudice to Our other remedies under this Agreement or otherwise.
11.14 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of You or Us and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
11.15 Compliance with Laws; Export Control. You agree that you will comply with all applicable laws. We provide the Services from Our headquarters in the United States of America. If You use the Services from outside the United States of America or Canada, You are entirely responsible for compliance with applicable local laws, including but not limited to export and import regulations.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Additional Terms” means any other terms that apply to Your use of the Services, such as terms specific to a particular Service, order form terms, invoice terms, and the Privacy Terms referenced herein.
“Aggregated Information” means a combination of information from various sources and may include Your Information or Other Information that does not personally identify You.
“Branding Material” means distinctive brand features including without limitation the unique symbol, design, and/or name unique to an entity.
“Competitor” means a company or organization that: (a) develops, sells, or distributes software or information management services to the agricultural community; (b) provides insurance and risk management in the agricultural sector, ; (c) provides lending services in the agricultural sector; (d) is an agricultural input supplier or distributor; (e) is an agricultural equipment supplier; (f) provides farmland real estate brokerage services; or (g) provides commodity market pricing information.
“Content” means the files, photos, documents, notes, audio, digital works, and videos uploaded, stored, broadcast, or shared through the Services.
“Effective Date” means the date that You first access the Services.
“Feedback” means feedback or ideas, including, without limitation, for new products, technologies, promotions, product names, product feedback and product improvement You or Your Users provide to Us relating to the Services or Our Information or any suggested improvements thereto.
“Law” means all constitutions, laws, statutes, ordinances, rules, regulations, permits, licenses, approvals, interpretations, and orders of courts or governmental authorities and all orders and decrees of all courts and arbitrators.
“Order Form” means any document specifying the Services to be provided that is entered into between Us and You, including any exhibits, addenda and supplements thereto. By entering into the Order Form, You agree to be bound by the terms of this Agreement as if the Order Form were an original part hereto.
“Other Information” means information weWe collect that may not specifically identify You, as further described in the Privacy Terms.
“Our Information” means any data provided by Us to You, including all Content, data, analysis, Aggregated Information, recommendations, or other information generated by or made available to You by or through the Services, excluding Your Information but including data that may be related to Your Information (for example, when Your Information is used to develop Aggregated Information and analysis).
“Personal Information” means information that identifies You as an individual or relates to an identifiable individual, as further described in the Privacy Terms.
“Services” means Our products, services, websites, software applications, documentation, and other Content provided by Us to You.
“Taxes” means taxes, duties, levies, tariffs, and other governmental charges (other than Our income tax) associated with the sale of the Services, including any related penalties or interest.
“User(s)” means an individual (s) who are authorized by You to use the Services, to whom You (or We at Your request) may have supplied login credentials or have permitted to access the Services on Your behalf. Users may include, for example, Your employees, consultants, contractors, representatives, and agents, or third parties, including Certified Services Agents, who sell Our Services and enter information for You, with whom you transact.
“You” or “Your” mean the individual(s), company(ies), or other legal entity(ies) for which You are accepting this Agreement, and Affiliates of that company(ies), entity(ies).
“Your Information” means information We collect or have access to when You or Your agent, such as a certified sales agent or duly authorized representative, submit(s) the information while using or subscribing to the Services and may include Personal Information or Other Information, each as defined herein and further described in the Privacy Terms.