Terms and conditions
EXHIBIT 1 – TERMS OF SERVICE FARMTRACE PLATFORM
These Terms of Service FarmTrace Platform (“Terms of Service”) apply between (1) FARMBX, INC., a company incorporated under the laws of the State of Delaware, registered under EIN 36-4906843, having its registered offices at 17875 Von Karman Ave STE 150&250, Irvine, CA 92614, United States of America (“FarmTrace“), and (2) the company that uses the software platform of FarmTrace (“Customer“). FarmTrace and Customer are hereinafter collectively also referred to as the “Parties” and individually as a “Party”.
FarmTrace specializes in the collection, measurement and analysis of data in the farmer/food industry. Together with its affiliates, it has developed and built an industry-leading software platform (the “FarmTrace Platform“) through which FarmTrace’s customers can access farm data of connected Farmers (the “Farmer Data“) and gain in-depth insights about their businesses and products. The Farmer Data are generated through connections (both APIs and EDIs, the “APIs“) between the FarmTrace Platform on the one hand and the farmers’ IT systems as well as various IT systems of third party data suppliers on the other hand. FarmTrace has developed various (mobile) applications that can be used by its customers to access Farmer Data. Customer wishes to connect its farmer customers and the farmer customers of its affiliates set out in the Order Form (collectively, the “Farmers”) to the FarmTrace Platform through FarmTrace-built APIs. FarmTrace is willing to make the FarmTrace Platform and the other services set out in the order form agreed between Customer and FarmTrace (“Order Form“) available to Customer and its affiliates identified in the Order Form by means of a subscription under the terms and conditions as set out in the Order Form and the Exhibits thereto, consisting of (i) these Terms of Service FarmTrace Platform, (ii) the Service Level Agreement FarmTrace Platform, (iii) the Data Processing Agreement FarmTrace Platform, (iv) the Farmer Terms and Conditions FarmTrace Platform and (v) the Authorization Form FarmTrace Platform. The Order Form and the Exhibits are jointly the “Agreement”.
1.1. These Terms of Service apply to any requests, offers and Order Forms relating to the provision of (elements of) the FarmTrace Platform and related maintenance and support services and professional services by FarmTrace to Customer and the Farmers.
1.2. In the event of a conflict or inconsistency between any of:
a) the Order Form;
b) these Terms of Service;
c) the Service Level Agreement FarmTrace Platform; or
d) any other documents referred to in the Agreement;
the term falling into the category first appearing in the list above takes precedence, unless expressly stated otherwise in writing with specific reference to the relevant Section(s) of the higher ranked document that the lower ranked document wishes to deviate from.
1.3. The terms of the Data Processing Agreement FarmTrace Platform prevail over other terms in this Agreement in respect of the processing of personal data.
2. THE SERVICES
2.1. As from the Effective Date defined in the Order Form and for the term of the Agreement, subject to Customer timely paying the fees and charges as set out in Section 12 and in the Order Form and meeting its other obligations under the Agreement, FarmTrace shall:
a) make the FarmTrace Platform available to Customer as a “software as a service” (i.e. the FarmTrace Platform is hosted in one or more FarmTrace data centers and is made accessible to the Customer via the internet);
b) upon written request of Customer, and subject to all required authorization forms (both from the Farmers and the relevant third party data suppliers) having been signed in accordance with Section 2.2, establish a connection with the FarmTrace Platform for each Farmer identified in such request (each a “Farm Connection“), i.e. by implementing the APIs between the FarmTrace Platform and the IT systems of the relevant Farmer and the relevant third party data suppliers. Customer’s request shall contain the UBN (“uniek bedrijfsnummer”) or equivalent identification number of each Farmer as well as the name, address and other contact information of each Farmer for which a Farm Connection is requested;
c) upon written request of Customer and subject to additional terms and conditions as may be agreed upon between Customer and FarmTrace in writing, make the (mobile) applications identified in the Order Form available to Customer;
d) upon written request of Customer, provide the professional services set out in the Order Form (if any) in accordance with Section 7; and
e) provide the maintenance and support services set out in the Service Level Agreement FarmTrace Platform.
2.2. The activities set out in Section 2.1b) can only take place if and when, and for as long as:
a) each Farmer and each relevant third party data supplier has granted written authorization to FarmTrace (i) to implement and connect the APIs between the FarmTrace Platform and such Farmer’s or third party data supplier’s IT systems, and (ii) to gather data (including historic data) from such IT systems;
b) each Farmer has granted written authorization to FarmTrace to process Farmer Data in accordance with this Agreement; and
c) each Farmer has agreed in writing to the Farmer Terms and Conditions for the FarmTrace Platform.
For these purposes, each Farmer has to sign the authorization form set out in Exhibit 5 to the Order Form, as well as any additional authorization form(s) required by third party data suppliers.
2.3. Customer acknowledges and agrees that if an authorization is withdrawn at any time, Customer’s access to the Farmer Data covered by the withdrawn authorization will be terminated by FarmTrace.
2.4. FarmTrace may change, extend, enhance, or deprecate (elements of) the FarmTrace Solution, or change or remove or add features or functionality of or to the FarmTrace Solution from time to time. FarmTrace will notify Customer in advance of any material changes to or discontinuation of elements of the FarmTrace Solution. When extensions, enhancements or added functionality of the FarmTrace Platform or APIs are made available to Customer, the terms and conditions of the Agreement will govern Customer’s use and access to such extensions, enhancements or added functionality.
2.5. In the context of this Agreement, the “FarmTrace Solution” means: the FarmTrace Platform, the APIs, any (mobile) applications by which the FarmTrace Platform may be made available and all other deliverables that may be provided by FarmTrace under the Agreement, both individually and jointly.
2.6. If affiliates of Customer are identified in the Order Form, then FarmTrace agrees to make the FarmTrace Solution available to such affiliates as well for as long as Customer owns a majority (at least 50%) ownership interest in such affiliates, subject to Customer timely paying the fees and charges as set out in Section 12 and in the Order Form and subject to Customer and such affiliates meeting Customer’s other obligations under the Agreement. FarmTrace shall no longer be obliged to make the FarmTrace Solution available where Customer no longer holds a majority ownership interest in an affiliate.
2.7. Customer shall ensure that each of its affiliates that uses the FarmTrace Solution or any elements thereof pursuant to Section 2.6 has agreed to be bound by the Agreement including these Terms of Service in writing before it initiates such use, and shall submit written proof thereof to FarmTrace upon FarmTrace’s first request. Customer acknowledges and agrees that it is responsible and liable for all acts and omissions of its affiliates vis-à-vis FarmTrace as if it were Customer’s own acts and omissions.
3. IMPLEMENTATION AND ROLL-OUT
3.1. In order to successfully implement the FarmTrace Solution, Customer shall be responsible for:
a) the fulfilment of the requirements of Section 2.2; and
b) enabling FarmTrace to implement all required APIs as set out in Section 2.1b), by relaying all relevant instructions from FarmTrace to the Farmers in question and assisting such Farmers in performing such instructions;
c) if relevant, the building and maintaining of interfaces to be put in place between the FarmTrace Solution and Customer’s data analysis algorithms or any other systems, and for making sure that the interfaces are adapted if necessary when adjustments are made to the FarmTrace Solution by FarmTrace.
3.2. If the APIs necessary to connect to a particular (IT system of a) Farmer have already been developed by FarmTrace, then FarmTrace will make reasonable efforts to establish the Farm Connection within ten (10) days of its confirmation of the receipt of a complete request to that end and the requirements in Section 2.2 having been met.
3.3. If one or more APIs need to be developed to be able to connect to a particular (IT system of a) Farmer, Customer acknowledges that the time necessary to develop such APIs and subsequently establish the Farm Connection may vary and that the related costs will be payable by Customer. In such cases, FarmTrace and Customer will discuss the timeline and related costs. Whether or not FarmTrace will develop such APIs is up to the sole discretion of FarmTrace, and nothing in this Agreement constitutes an obligation of FarmTrace to establish any requested Farm Connections.
4. ACCESS AND USE
4.1. FarmTrace will create an administration account for Customer on the FarmTrace Solution so that Customer can access the FarmTrace Solution, give its affiliates set out in the Order Form, employees, representatives and Farmers access to the FarmTrace Platform and related apps (if applicable), and manage such access.
4.2. Customer is responsible for all activities that occur on the FarmTrace Solution under the accounts managed by Customer (including those of Customer’s affiliates, employees, representatives and Farmers), regardless of whether the activities are undertaken by Customer, one of its employees or representatives, or a Farmer, or another customer or a third party. Except to the extent caused by FarmTrace’s attributable breach of this Agreement, FarmTrace is not responsible for any unauthorized access to an account managed by Customer or any related information. Customer will notify FarmTrace immediately if it believes that an unauthorized third party may be using Customer’s account or if account information of any account managed by Customer is lost or stolen.
4.3. Customer agrees that FarmTrace may monitor Customer’s and its affiliates’, employees’, representatives’ and the Farmers’ usage of the FarmTrace Solution, both for the purpose of monitoring compliance with the Agreement and for statistical and system administration purposes. Customer shall be responsible for arranging authorization for the same by each user of an account managed by Customer who will use the FarmTrace Solution.
5.1. The Parties shall each appoint a single point of contact to co-ordinate each Party’s responsibilities under the Agreement (each, a “Contract Manager“). Each Party may replace its Contract Manager at any time by giving prior written notice to the other Party. The Parties’ respective Contract Managers will be responsible for (among other things):
a) execution, management and control of the services and activities performed under the Agreement;
b) overseeing the performance, progress and quality of the services provided by FarmTrace; and
c) any such other matters as may be agreed between the Parties from time to time.
5.2. The Contract Managers do not have the authority to deviate from the Agreement or to legally bind the Parties.
5.3. Any disputes arising out of or in connection with the Agreement shall first be referred in writing to the Contract Manager of each Party. If the dispute is not resolved by the Contract Managers within fifteen (15) working days from the date on which the dispute has been referred to them in writing, it shall be referred to the CEO of each Party. If the CEO’s are unable to resolve the dispute within a further fifteen (15) working days, then the dispute may be referred to the arbitral tribunal in accordance with Section 23.2.
6. SERVICE LEVELS
6.1. FarmTrace shall use commercially reasonable efforts to meet the service levels in the Service Level Agreement FarmTrace Platform (Exhibit 2 to the Order Form) .
6.2. Customer acknowledges that the uninterrupted availability of the FarmTrace Solution cannot be guaranteed by FarmTrace, due to amongst others the nature of the internet and the dependency on third-party software and equipment out of the control of FarmTrace.
7. PROFESSIONAL SERVICES
7.1. If professional services will be provided by FarmTrace, such professional services will be detailed in the Order Form and they will be provided subject to the terms of this Section 7 and to the specific additional arrangements in the Order Form.
7.2. FarmTrace shall only provide professional services between 8.30am and 5.00pm CET in the Netherlands and between 8.30am and 5.00pm PST in the United States of America from Monday to Friday, excluding public holidays both in the Netherlands and the United States of America (“Working Days“), unless explicitly otherwise agreed in the Order Form.
7.3. FarmTrace will provide the professional services with due care and in accordance with the arrangements and procedures agreed with Customer in writing. If the provision of professional services is to be performed by a specific individual, FarmTrace shall at all times be entitled to replace this individual with one or more other individuals with the same qualifications.
7.4. FarmTrace shall periodically update Customer on the progress of the professional services via the contact person(s) designated by Customer in accordance with Section 7.8.
7.5. Customer shall notify FarmTrace in advance of any circumstances that affect or may affect the provision of professional services by FarmTrace, such as the method of reporting, the issues that Customer wishes to focus on, Customer’s priorities, the availability of Customer’s resources and personnel, and any special facts and circumstances of which FarmTrace may not be aware.
7.6. Customer shall be responsible for the further distribution and examination of the information provided by FarmTrace within Customer’s organization and shall timely review and provide feedback on the same.
7.7. Customer shall provide access to all documents and files that are required for configuration as well as remote accessibility to any necessary software components. Customer guarantees that all materials, information, software, procedures and instructions that it makes available to FarmTrace for the purpose of providing the professional services are at all times accurate and complete.
7.8. In connection with the continuity of the professional services, Customer shall designate a contact person or contact persons who will act in this capacity during the period that the professional services are performed. Customer’s contact person(s) shall have the necessary experience, specific relevant knowledge and an insight into Customer’s desired objectives.
7.9. Any changes with respect to the scope of the professional services and/or any agreed deliverables shall be agreed in writing by authorized representatives of both Parties. FarmTrace shall not be obliged to undertake any activities in connection with such change(s) until the Parties have reached full written agreement on the consequences to the scope, price and (time) schedule of the change(s).
8. FARM CONNECTION TERM AND TERMINATION
8.1. As between the Parties, the duration of each Farm Connection will by default be one (1) year (the “Farm Connection Term”), which term shall automatically renew at the end of the then-current term for subsequent one-year periods, unless a Party notifies the other Party ultimately three (3) months before the end of the then-current Farm Connection Term that it does not wish to renew the Farm Connection Term. The foregoing is without prejudice to:
a) each Farmer’s and each third party data supplier’s right to prematurely withdraw their authorization as per Section 2.3, which will result in the relevant API(s) being disconnected by FarmTrace and the related Farmer Data no longer being accessible to Customer prior to the end of the then-current Farm Connection Term; and
b) the situation that the relationship between Customer and a connected Farmer ends during the Farm Connection Term for whatever reason, in which case Customer shall inform FarmTrace immediately so that FarmTrace can timely disconnect the relevant API(s) and make the relevant Farmer Data inaccessible to Customer, in both cases subject to Section 9.3.
8.2. If any of the events set out in under Section 8.1a) or 8.1b) occurs, or if the Agreement is terminated or expires in accordance with Section 20, then this will not impact Customer’s payment obligations under the Agreement for the remainder of the then current Farm Connection Term under Section 12.5a) and 12.5b).
9. FARMER DATA AND FARM CONNECTIONS
9.1. Each Farmer shall retain ownership of its farmer data, including any modifications, enhancements and updates made to them by or on behalf of either Party, but excluding the anonymized and aggregated data in the data set on the FarmTrace Platform. Customer acknowledges and agrees that if a Farmer requests FarmTrace to remove such Farmer’s farmer data from the FarmTrace Platform, FarmTrace will do so and such removed farmer data will no longer be accessible to Customer, its affiliates or its employees. This will not impact any of Customer’s payment obligations under Section 12.5 for the remainder of the then current Farm Connection Term.
9.2. Customer acknowledges and agrees that FarmTrace shall keep and use – both during the term of this Agreement and thereafter – an anonymized copy of the Farmer Data gathered under this Agreement as part of a database containing anonymized and aggregated data of all farmers that are or have been connected to the FarmTrace Platform (e.g. to identify trends and for benchmarking purposes). When Farmer Data is anonymized and aggregated in the FarmTrace database it is no longer considered Farmer Data.
9.3. FarmTrace is free to reuse any and all Farm Connections (or elements thereof) to connect the Farmers to FarmTrace’s other customers and third parties, including but not limited to other advisors to and suppliers and customers of the Farmers, both during the term of the Agreement and thereafter. Consequentially, FarmTrace may keep (elements of) a Farm Connection active for another customer of FarmTrace after the related Farm Connection Term has ended in respect of Customer in accordance with Section 8.1 or if the Agreement is terminated in accordance with its terms.
10. CUSTOMER OBLIGATIONS
10.1. Customer shall, and shall procure that its affiliates, employees, representatives and the Farmers shall:
a) be responsible for the quality, completeness, accuracy, and legality of all data and information provided by or on behalf of Customer or the Farmers to FarmTrace or to the FarmTrace Solution in connection with the Agreement;
b) be responsible for all non-FarmTrace hardware and software used by it and its affiliates, employees and the Farmers in combination with the FarmTrace Solution;
c) use best efforts to prevent unauthorized access to or use of any elements of the FarmTrace Solution by any person or entity, and notify FarmTrace promptly after becoming aware of any such unauthorized access or use; and
d) use the FarmTrace Solution only in accordance with FarmTrace’s user guides and instructions and in accordance with all applicable laws and government regulations.
10.2. Customer shall not, and shall procure that its affiliates, employees, representatives and the Farmers shall not:
a) make any elements of the FarmTrace Solution available to, or use any elements of the FarmTrace Solution for the benefit of, anyone other than Customer and the Farmers;
b) create derivative works, decompile, decrypt, disassemble, modify, or reverse engineer the FarmTrace Solution in any way;
c) (re)sell, (sub)license (other than after having obtained FarmTrace’s explicit prior written permission), distribute, rent or lease any elements of the FarmTrace Solution, or provide any elements of the FarmTrace Solution on a service bureau, timesharing or similar basis;
d) copy any features, functions or graphics of the FarmTrace Solution for any purpose other than what is expressly permitted in the Agreement;
e) send, store, or authorize a third party to send or store, spam, unlawful, infringing, obscene or libelous material, or any Harmful Code (as defined below), in, through or with the FarmTrace Solution;
f) attempt to gain unauthorized access to, or disrupt the integrity or performance of any elements of the FarmTrace Solution;
g) use any intellectual property rights contained in or accessible through any elements of the FarmTrace Solution for the purpose of building a competitive or similar product or service, or copying its features or user interfaces;
h) use any elements of the FarmTrace Solution for any unlawful or illegal activity;
i) delete or alter any disclaimers, warning, copyright or other proprietary notices accompanying the FarmTrace Solution;
j) access any elements of the FarmTrace Solution with an intention to probe, scan or test the vulnerability of any systems or networks, or to breach or circumvent any security or authentication measures; or
k) disclose the login information of any of the user accounts to the FarmTrace Solution managed by Customer to any third party, unless required by mandatory applicable law, in which case Customer shall notify FarmTrace thereof as soon as reasonably possible.
10.3. Customer shall be responsible for the compliance by its affiliates, employees, representatives and the Farmers (as well as any person it gives access to a user account managed by it) with Customer’s and their obligations under the Agreement. Any acts or omissions by such person or persons will be deemed to be Customer’s acts or omissions, and Customer will be deemed to have permitted or facilitated any such acts or omissions.
10.4. In the context of the Agreement, “Harmful Code”means: a virus, drop dead device, Trojan horse, time bomb, back door device, bot, or any other software routine that is harmful, destructive, disabling or that is meant or designed to assist in or enable theft or alternation of data or to allow access to, or use of, a computer system by an unauthorized person, or that otherwise disrupts or impairs the normal operation of a computer system.
11. FARMTRACE DEPENDENCIES
11.1. The Parties acknowledge and agree that FarmTrace’s ability to perform the activities and services set out in the Agreement is dependent on Customer, the Farmers and Customer’s and the Farmers’ third party suppliers (including but not limited to the third party data suppliers and third party software providers). In order to enable FarmTrace to perform such activities and services, Customer shall (amongst other things), and shall procure that the Farmers shall:
a) timely make the right people with the necessary skills and the necessary knowledge available to FarmTrace;
b) provide in a timely manner all cooperation, information, data, documentation, materials and input reasonably required by FarmTrace, and commit sufficient resources from technical and business teams to support FarmTrace;
c) make timely decisions, approvals and directions if and when requested by FarmTrace;
d) obtain all consents and permissions from third parties that may be required for FarmTrace to perform its obligations and exercise its rights under the Agreement;
e) obtain all consents and permissions necessary for FarmTrace to use any Customer, Farmer or third party systems and networks required for FarmTrace’s performance of its obligations under the Agreement, allowing and enabling FarmTrace to work both on premise and remotely;
f) arrange access to and communications with the Farmers and with Customer’s employees as needed for FarmTrace to perform its activities;
g) ensure the co-operation and performance of any other suppliers required to enable FarmTrace to perform the activities and services set out in the Agreement; and
h) meet its obligations set out in the Agreement.
11.2. FarmTrace shall be excused from performing its obligations under the Agreement if and when Customer, a Farmer or Customer’s or a Farmer’s third party suppliers (including but not limited to the third party data suppliers and third party software providers) fail to perform a task or to meet an obligation on which FarmTrace’s performance depends, which includes but is not limited to the dependencies set out in Section 11.1 above. If possible, FarmTrace will inform Customer when Customer or a Farmer or a third party supplier fails to perform a task or an obligation on which FarmTrace’s performance depends.
12. FEES AND INVOICING
12.1. Unless provided otherwise in this Section 12:
a) the charges and pricing for the activities and services performed by FarmTrace under the Agreement are set out in the Order Form,and are subject to the limitations, conditions and assumptions mentioned in the Order Form; and
b) where no specific arrangements on fees or pricing are set out in the Order Form or this Section 12, FarmTrace or its relevant affiliate will charge Customer for the activities and services performed by it on a time and material basis.
12.2. Invoices under the Agreement may be sent to Customer by FarmTrace or by any of its affiliates. FarmTrace will notify Customer of any affiliates that will send invoices to Customer under the Agreement.
12.3. All amounts set out in the Agreement including the Order Form are exclusive of value added tax and all other taxes, costs, levies and (sur)charges, and exclude travel expenses and other out-of-pocket expenses, which will be added to each invoice, as applicable.
12.4. The fees and charges set out in the Agreement including the Order Form shall be adjusted annually on 1 January to reflect price inflation, using the greater of three per cent (3%) or the CPI Index “CBS Consumer Index for Households” as a basis for the adjustment.
12.5. The fees per Farm Connection are set out in the Order Form and consist of a one-time connection fee and annually recurring subscription fees. FarmTrace or its relevant affiliate shall send a monthly invoice to Customer. Each monthly invoice shall contain:
a) the one-time connection fees for each Farm Connection that was set up in the preceding month;
b) the annually recurring fees for all Farm Connections, in advance, for each Farm Connection that was set up in the preceding month, and thereafter each time at the anniversary of the relevant Farm Connection until it is terminated in accordance with Section 8.1.
12.6. FarmTrace or its relevant affiliate shall invoice Customer for all fees, charges and expenses due under the Agreement at the intervals as set out in the Order Form, in advance where possible. Customer shall provide complete and accurate billing information to FarmTrace and shall notify FarmTrace of any changes to such information.
12.7. Customer shall pay FarmTrace’s or its relevant affiliate’s invoices within fifteen (15) days of the invoice date via a bank transfer to the account number specified in the invoice. In the event of late payment of an invoice, the amount payable by Customer will be increased with a rate equal to the lower of 1% per month or the Dutch statutory commercial interest rate (wettelijke handelsrente), which shall be calculated and due starting from the date that is 15 days of the invoice date and ending on the date on which effective payment is made.
12.8. Disputed invoices shall be reported by Customer to FarmTrace within seven (7) working days of the invoice date.
12.9. If any amounts due to FarmTrace or one of its affiliates are fifteen (15) days or more overdue, then FarmTrace may, without limiting its other rights and remedies, suspend performance of its obligations under the Agreement (including but not limited to Customer’s and its affiliates’ and employees’ and the Farmers’ access to the FarmTrace Solution) until such amounts have been paid in full. FarmTrace shall give Customer at least seven (7) days’ prior notice of any such suspension. FarmTrace shall not exercise its rights under this Section 12.9 if Customer has timely disputed the relevant invoice(s) reasonably and in good faith, and is cooperating diligently to resolve the dispute.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. Except as expressly provided, nothing in the Agreement shall transfer, assign, license or otherwise grant any Party any right or interest in the other Party’s intellectual property rights.
13.2. FarmTrace and/or its relevant affiliate(s) shall own all intellectual property rights in the FarmTrace Solution and Customer will acquire no rights in such intellectual property rights or in the FarmTrace Solution. Customer shall not seek any intellectual property right related protection or file any application for such protection in any country worldwide related to any elements of the FarmTrace Solution without first having obtained FarmTrace’s prior written consent, which may be withheld at FarmTrace’s sole discretion.
13.3. Customer shall notify FarmTrace promptly after becoming aware of a claim that the FarmTrace Solution or any elements thereof infringe the intellectual property rights of a third party. It shall permit FarmTrace to conduct any negotiations and litigation to settle such claim, it shall not make any admission in respect of such claim without FarmTrace’s prior written consent, and it shall upon FarmTrace’s written request immediately cease all use of the FarmTrace Solution or elements thereof.
13.4. If the FarmTrace Solution or any elements thereof are alleged to, or are held to, constitute an infringement of the intellectual property rights of a third party, then FarmTrace may do any or all of the following, at its own option and sole discretion:
a) make all reasonable attempts to procure for Customer the right to continue using the allegedly infringing elements;
b) modify or replace the allegedly infringing elements so as to avoid the infringement; or
c) while giving notice as soon as reasonably possible, terminate Customer’s and its affiliates’, employees’ and the Farmers’ access to the infringing elements of the FarmTrace Solution (or the complete FarmTrace Solution if required in FarmTrace’s reasonable opinion) and refund the most recent 6 (six) months of fees that were paid for such terminated elements to Customer.
i. FarmTrace’s obligations under this Section 13.4 shall constitute Customer’s sole remedy in relation to any infringement claims made in relation to the FarmTrace Solution or any elements thereof.
13.5. FarmTrace shall have no obligations under Section 13.4 if Customer has not met its obligations under Section 13.3 in full or if the (alleged) infringement is caused by (i) any use of the FarmTrace Solution or any elements thereof by Customer in breach of the Agreement or FarmTrace’s instructions, or (ii) any use of the FarmTrace Solution or any elements thereof in combination with equipment, software or other devices not approved by FarmTrace.
14. DATA PROTECTION
14.1. Terms used in this Section, and those used in the Data Processing Agreement FarmTrace Platform (Exhibit 3 to the Order Form) shall have the meaning given under Article 4 of Regulation (EU) 2016/679 (the “GDPR”).
14.2. Customer agrees that FarmTrace will have the right to use the personal data it collects and processes on behalf of Customer for the purposes set out in Section 9.2 and for the purpose of improving FarmTrace’s services; FarmTrace shall process such personal data as a data controller.
14.3. Other than for the purposes specified in Section 14.2, FarmTrace will use and otherwise process data collected and processed on behalf of Customer only in accordance with Customer’s documented instructions, as a data processor.
14.4. The Data Processing Agreement FarmTrace Platform applies if FarmTrace processes personal data on behalf of Customer as a data processor.
15.1. In the context of the Agreement, “Losses” means: any and all losses, damages, costs, fines, penalties, expenses (including legal fees) and other liabilities of any kind, whether foreseeable or not.
15.2. No Party shall be liable, whether for negligence, breach of contract, tort, misrepresentation or otherwise, for any indirect or consequential Losses, for any exemplary, special or punitive damages, for any loss of profits, goodwill, production, revenue or business opportunity, or for any missed or anticipated savings, arising under or in connection with the Agreement.
15.3. The total cumulative liability of FarmTrace for any Losses incurred by Customer or any of its affiliates under or in connection with the Agreement, whether for negligence, breach of contract, tort, misrepresentation or otherwise, shall, in relation to all events occurring in a given calendar year, be limited to an amount equal to one time the aggregate fees invoiced to and paid by Customer under the Agreement in that calendar year.
15.4. The exclusions and limitations of liability in this Section 15 shall not apply to liability arising out of or in relation to a Party’s (or its directors or employees) willful intent (opzet), fraud (bedrog) or gross negligence (bewuste roekeloosheid).
16.1. Customer shall indemnify FarmTrace and its affiliates and hold FarmTrace and its affiliates harmless from and against any and all Losses suffered or incurred by them arising out of or in relation to:
a) any breach by Customer or its affiliates of Customer’s obligations under the Agreement;
b) any claims, demands or suits by Customer’s affiliates or by the Farmers relating to the FarmTrace Solution, the Agreement or FarmTrace’s or Customer’s performance of the Agreement;
c) any claims, demands or suits that:
i. the data or information provided by or on behalf of Customer or Customer’s affiliates or the Farmers to FarmTrace or to the FarmTrace Solution, or use of such data; or
ii. Customer’s or Customer’s affiliates or the Farmers’ use of any element of the FarmTrace Solution in breach of the Agreement or FarmTrace’s instructions,
infringes or misappropriates any third party’s intellectual property rights or other rights, or violates any laws or regulations; or
d) Customer or any of its affiliates, employees or representatives or the Farmers sending or storing, or authorizing a third party to send or store, spam, unlawful, infringing, obscene or libelous material, or any Harmful Code, in, through or with (any elements of) the FarmTrace Solution.
17.1. In the context of the Agreement, “Confidential Information” means: the contents of this Agreement, any information (in any form) relating to the FarmTrace Solution or the services provided under this Agreement, FarmTrace’s and Customer’s business, and any other information (in any form) that has been disclosed by or on behalf of a Party in confidence, or which by its nature ought to be regarded as confidential.
17.2. Each Party shall, both during the term of the Agreement and for a period of five (5) years thereafter, keep the Confidential Information of the other Party confidential and not disclose such Confidential Information to any third party without the other Party’s prior written consent.
17.3. Section 17.2 does not prevent a Party to disclose information, which:
a) was already in its possession without an obligation of confidentiality at the time of disclosure;
b) was already in the public domain at the time of disclosure, except as a result of a breach of the Agreement; or
c) is required to be disclosed by applicable law or the rules of a relevant stock exchange, provided that the disclosing Party promptly notifies the other Party of its requirement to disclose, and co-operates with the other Party in avoiding or limiting the disclosure.
17.4. Each Party shall:
a) use the Confidential Information solely for the purpose of performing its obligations or exercising its rights under the Agreement;
b) only make Confidential Information available to staff and/or subcontractors on a need-to-know basis, and only after having made sure that such staff and/or subcontractors are bound by confidentiality obligations that are at least as strict as those in the Agreement; and
c) upon the other Party’s first written request, promptly return to the other Party all Confidential Information in its or any of its subcontractors’ possession.
18.1. Any notice or other formal communication to be given under the Agreement shall be in writing and shall be sent by registered mail to the address of the other Party as well as to the email address of the other Party, at the addresses set out in the Order Form.
18.2. A notice shall be deemed to have been given on the day of delivery or transmission if during normal business hours, or, if after normal business hours, on the next following business day, or, if mailed by registered mail, on the day which is 5 (five) Working Days thereafter.
18.3. Either Party may change its address details for notices upon notice to the other Party in accordance with this Section 18.
19. FORCE MAJEURE
19.1. If a Party is prevented from or delayed in performing any of its obligations under the Agreement by a Force Majeure Event then:
a) its obligations under the Agreement shall be suspended for as long as the Force Majeure Event continues, but only to the extent that the Party is prevented or delayed from performing them;
b) as soon as reasonably possible after the start of the Force Majeure Event, the impacted Party shall notify the other Party of the nature of the Force Majeure Event, the time at which the Force Majeure Event started and the likely effects of the Force Majeure Event on its ability to perform its obligations under the Agreement; and
c) as soon as possible after the end of the Force Majeure Event, the impacted Party shall notify the other Party that the Force Majeure Event has ended, and shall resume performance of its obligations under the Agreement.
19.2. In the context of the Agreement, “Force Majeure Event” means any event or cause beyond the control of the impacted Party within the meaning of Section 6:75 of the Dutch Civil Code, including acts of God, acts or omissions of any government or agency thereof, rebellion, insurrection, riot, sabotage, invasion, quarantine, restrictions, transportation embargoes, non-FarmTrace software or hardware, failure or delay of the internet, non-performance or late performance of suppliers of FarmTrace, etc.
20. TERM AND TERMINATION
20.1. The Agreement enters into force on the Effective Date set out in the Order Form and shall remain in effect for an indefinite period of time until terminated by either Party in accordance with this Section 20.
20.2. In derogation of Section 20.1, if Parties have agreed upon an expiry date of the Agreement in the Order Form, then the Agreement shall expire on the expiry date set out in the Order Form, unless earlier terminated by either Party in accordance with Section 20.4 or 20.5, and the termination right set out in Section 20.3 will not apply. The Parties may at any time during the term of the Agreement agree to an extension of the term in writing.
20.3. Either Party has the right to terminate (opzeggen) the Agreement in whole or in part for convenience effective from an anniversary of the Effective Date, by giving at least six months’ written notice to the other Party.
20.4. Either Party shall be entitled to terminate (opzeggen) the Agreement, with immediate effect or with effect from a later date at such Party’s discretion, in the following events:
a) if the other Party is in default (verzuim);
b) if a Force Majeure event (as defined in Section 19) affecting the performance of other Party continues for a period of more than thirty (30) days; or
c) if an insolvency event has occurred with respect to the other Party.
20.5. In addition, FarmTrace shall be entitled to terminate (opzeggen) the Agreement, with immediate effect or with effect from a later date at FarmTrace’s discretion, if:
a) in relation to the ownership of Customer, whether directly or indirectly, a direct competitor of FarmTrace acquires control of Customer;
b) a change of control occurs in relation to the ownership of Customer, whether directly or indirectly, and receipt of the services provided under the Agreement by the entity acquiring control of Customer could have a negative effect on the business of FarmTrace; or
c) any undisputed amounts due to FarmTrace by Customer under the Agreement are thirty (30) days or more overdue.
20.6. The Parties waive the right to rescind (ontbinden) the Agreement.
21. CONSEQUENCES OF TERMINATION
21.1. On the effective date of termination or expiry of the Agreement:
a) all rights granted by FarmTrace to Customer under the Agreement will cease to exist, and Customer’s and the Farmer’s access to and right to use the FarmTrace Solution will end;
b) Customer shall (i) promptly cease use of the FarmTrace Solution and all other intellectual property rights of FarmTrace, (ii) ensure that the Farmers promptly cease use of the FarmTrace Solution and all other intellectual property rights of FarmTrace, and (iii) return FarmTrace’s Confidential Information to FarmTrace or return the same to FarmTrace, as requested by FarmTrace; and
c) FarmTrace shall cease use of all Customer’s Confidential Information and remove such Customer’s Confidential Information from its computer hardware and storage media.
21.2. Termination or expiry of the Agreement shall not affect a Party’s accrued rights and obligations at the time of termination. Notwithstanding the termination of the Agreement, all rights and obligations of the Parties, which by their nature survive the termination of the Agreement shall survive such termination. This includes Sections 8.2, 9.2, 9.3, 14.2, 15, 16, 17, 18, 20, 21 and 23 of these Terms of Service.
22.1. Each Party shall perform, or procure the performance of, all further acts and things, and shall deliver, or procure the execution and delivery of further documents that are required by applicable law or are necessary or reasonably desirable to implement the terms of this Agreement.
22.2. Each Party shall be responsible for all of its own costs and expenses (including but not limited to those of its affiliates) incurred in giving effect to the provisions of Section 22.1.
22.3. No modification or amendment of the Agreement shall be effective unless in writing signed by authorized representatives of both Parties.
22.4. Customer waives its right to set off (verrekenen) any amounts due by it under the Agreement, or to suspend (opschorten) its performance under the Agreement in the event of a non-performance by FarmTrace.
22.5. The Agreement shall be binding upon the Parties and their respective successors and permitted assignees.
22.6. FarmTrace may, upon written notice to Customer, transfer and assign the Agreement or any or all of its rights and obligations arising out of the Agreement to any third party, provided that the assignee shall agree in writing to be bound by the Agreement. Upon such an assignment, FarmTrace shall have no further obligations under the Agreement with respect to the rights and obligations so assigned.
22.7. Customer is not permitted to assign or transfer any of its rights or obligations under the Agreement to any third party without the prior written consent of FarmTrace. Any attempted assignment in violation of this Section 22.7 shall be void and have no legal effect.
22.8. Except as expressly provided in the Agreement, only a Party or a Party’s permitted assignees or successors may enforce the terms of the Agreement. To the extent that any third party stipulation (derdenbeding) is contained in the Agreement, Article 6:254 of the Dutch Civil Code is excluded.
22.9. If any provision of the Agreement is held to be invalid or unenforceable, then such provision shall (insofar as it is invalid or unenforceable) be given no effect and shall be deemed not to be included without invalidating any of the remaining provisions of the Agreement. The Parties shall then replace the invalid or unenforceable provision by a valid and enforceable substitute provision, with an effect that is as close as possible to the effect intended with the invalid or unenforceable provision.
22.10. The Agreement may be executed in any number of counterparts and by the Parties to it on separate counterparts, each of which is an original but all of which taken together shall constitute one and the same instrument.
23. APPLICABLE LAW AND JURISDICTION
23.1. The Agreement, and any and all disputes, controversies or claims arising out of or in relation to the Agreement and/or any further contracts resulting therefrom, shall be exclusively governed by, and interpreted in accordance with, the laws of the Netherlands, excluding its conflict of law rules. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (Weens Koopverdrag) is explicitly excluded.
23.2. Any disputes, controversies and claims arising out of or in connection with the Agreement and/or any further contracts resulting therefrom, shall be finally settled by an arbitral tribunal in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (NAI). The arbitral tribunal shall consist of three arbitrators and shall decide in accordance with the rules of law (regelen des rechts), which shall be the laws of the Netherlands, and not as amiable compositeurs. The place of arbitration shall be Amsterdam, the Netherlands and the arbitration shall be conducted in the English language.
23.3. Nothing in the Agreement will limit either party’s right or ability to seek preliminary injunction (voorlopige voorziening or kort geding) in the Netherlands before the district court of Amsterdam, the Netherlands.