Welcome to the Proagrica Terms and Conditions (the “Master Terms”). Together with the Order Form, these Master Terms set out the terms of the agreement between the Customer organization identified on the Order Form and the Proagrica entity identified on the Order Form. These Master Terms include Content Terms, Software Terms, Professional Services Terms, and the Proagrica Network Terms. Your organization’s Order Form describes the product or services Proagrica will provide and specifies which sections of these Master Terms apply to those products or services.
A. CORE TERMS
1. The Agreement
1.1 Each Order Form and these Master Terms (including any amendments which are agreed in writing between the parties from time to time) are together an “Agreement”. Each Order Form incorporates by reference these Master Terms. Proagrica will have no obligation to supply products unless and until a valid Order Form is signed by both parties. Inconsistencies or conflicts will be resolved in the following order: (1) Order Form, (2) the Content Terms, Software Terms, Professional Services Terms, and the Proagrica Network Terms, as applicable, and (3) these Master Terms.
1.2 The Core Terms in this Section A apply to all Agreements. The Content Terms, Software Terms, Professional Services Terms, and the Proagrica Network Terms may apply in addition to, not in place of, the Core Terms.
2. Rights and Restrictions
2.1 Use Rights. Subject to Customer fulfilling its obligations under the Agreement and prompt payment of all Fees, Proagrica grants Customer the right to access and use the Product(s) in accordance with the relevant Order Form. Proagrica may provide additional Proagrica Materials in connection with the Product. Customer will use such Proagrica Materials in accordance with this Agreement and only in connection with and to facilitate Customer’s use of the Product. The Product is licensed, not sold, and Customer receives no title to or ownership of the Product as part of this Agreement.
2.2 Usage Restrictions. Save as permitted by the Agreement, (a) Customer will not sublicense the Product or permit any third party to access or use the Product, and (b) Customer will not, and will not cause or permit others to: (i) copy, modify, or create derivative works of the Proagrica Materials; (ii) reverse engineer or decompile the Proagrica Materials (except as permitted by law to achieve interoperability with another product or technology and to the extent that such right cannot be modified by the Agreement); (iii) sell, rent, lease, loan, sublicense, assign, transfer or pledge the Proagrica Materials or any rights in them; (iv) distribute, display, disclose, or otherwise provide Proagrica Materials to any third party or make them available on a service bureau or white-label basis (except as expressly permitted on an Order Form); (iv) use an algorithm, application, device, method, software or other automated tool or other means to copy, access, manipulate, or scrape data from the Proagrica Materials; or (v) use the Proagrica Materials to build or support, or assist a third party to build or support, products competitive with Proagrica products; or (vi) authorize a third party to do any of the acts mentioned at i-v above or (vii) attempt to exercise any rights not expressly granted to the Customer by this Agreement. All other rights are expressly reserved to Proagrica and are prohibited.
2.3 Third party license terms. The Proagrica Materials may contain materials licensed by Proagrica’s third-party licensors; such material is made available on the terms and conditions of such third-party licensors as communicated to Customer by Proagrica. Customer will, and will ensure that Authorized Users will, abide by these terms. The Products may also include links to certain third party web sites or services. Proagrica makes no representations regarding such third party services, and Customer’s access to and use of such third party services is subject to the terms specified by the relevant third party. The third party provider of such services retains all ownership and intellectual property rights in and to such services and Proagrica makes no warranties or representations, and will have no liability, in relation to such third party services.
2.4 Obligations. Customer will: (i) use the Products in accordance with the Agreement and in accordance with all applicable laws and regulations and with all reasonable Proagrica policies for use of the Products notified by Proagrica to Customer from time to time; (ii) be responsible for the use of the Product and compliance with the Agreement and any EULA or applicable use policy by Customer’s Authorized Users; (iii) prevent unauthorized access to or use of the Proagrica Materials; and (iv) promptly notify Proagrica of any known or suspected unauthorized access to or use of the Product or any Content (v) provide such reasonable cooperation and support as Proagrica may request in pursuing any claims against any third party for unauthorized access to or use of the Proagrica Materials, Product or Content made available to the Customer.
2.5 End User License Agreements. Where the Product requires that an Authorized User accepts an end user license agreement (a “EULA”), the parties agree that the Agreement between Proagrica and Customer will supersede the terms of such EULA for so long as the Authorized User is an Authorized User of Customer and that Customer, rather than the Authorized User, contracts with Proagrica for the Product on the terms of the Agreement. Customer will ensure that Authorized Users comply with the terms of the Agreement and is responsible for any breach of the Agreement or the EULA by its Authorized Users.
2.6 Customer Affiliates. Except as specifically authorized in an Order Form, the license granted to Customer does not include Customer Affiliates. Customer will not make any Product available to an Affiliate except where an Order Form sets out such rights. Where the parties agree in an Order Form that Proagrica will provide the Products to a Customer Affiliate, references in this Agreement to Customer will be read as references to the Permitted Affiliate, and Customer will ensure that each Permitted Affiliate complies with the Agreement(other than as to payment obligations, for which Customer remains solely liable), including any restrictions on access to or use of any Products.
3. Fees and Payment.
3.1 Fees. In consideration of the rights granted by Proagrica in the Agreement, Customer shall pay the Fees to Proagrica. Customer shall promptly respond to all reasonable requests from Proagrica for information to calculate Fees.
3.2 Payment Terms. Customer shall pay the Fees within thirty (30) days of the date of the relevant invoice. Payment obligations are non-cancellable and fees paid are non-refundable except as stated in the Agreement. Interest will accrue on unpaid amounts from the due date for payment at the lower of one and one-half percent (1.5%) per month or the maximum rate allowed by law. Customer agrees to pay all costs of collection of overdue Fees, including reasonable legal fees and costs. All Fees, taxes and other charges will be billed to Customer’s credit card or invoiced at the then-current international currency conversion rate.
3.3 Additional Use. Quantities or usage levels licensed cannot be decreased during the Term. If Customer uses or authorizes third party use of the Product outside the scope of the Agreement, Customer must pay Proagrica fees in respect of such use within 30 days of Proagrica’s written demand at (i) the rates set out in the relevant Order Form or SOW or (ii) at Proagrica’s then-current market rate, whichever is greater. This clause is without prejudice to other rights which Proagrica may have in respect of such usage.
3.4 Taxes. Any taxes required to be paid by Proagrica as a result of this Agreement, other than taxes based on Proagrica’s income, will be invoiced to and paid by Customer, except where Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority prior to Proagrica preparing an invoice or on Proagrica’s reasonable request.
3.5 Changes to Fees. Proagrica may increase the Fees with effect from 1 January in each year by no more than 2% over the increase in the relevant consumer price index over the preceding 12 months. Customer is bound by the increased prices from 1 January, and Proagrica may invoice Customer at the new rate with effect from 1 January. The relevant consumer price index is the national consumer price index issued by the US Bureau of Labor Statistics or equivalent in the country in the Proagrica entity’s country of incorporation (being the Australian Bureau of Statistics, Statistics South Africa, or the UK Office for National Statistics).
4. Intellectual Property Rights
4.1 Proagrica Materials. Customer acknowledges and agrees that the Proagrica Materials are confidential and proprietary to Proagrica or its licensors. As between the parties, Proagrica retains all right, title and interest in and to the Proagrica Materials, including all intellectual property rights existing in the Proagrica Materials anywhere in the world. Customer acknowledges, and agrees not to challenge, that the Proagrica Materials: (a) constitute original collections and assemblies of preexisting data, the selection, coordination and arrangement of which are original; (b) contain data which is not preexisting, but instead is Proagrica’s own original expression; and (c) derive value from information gathered and published by Proagrica in a prompt fashion. Customer obtains no rights to the Proagrica Materials except as licensed in the Agreement. Customer will not remove or alter Proagrica’s marks, branding, or notices of proprietary rights from the Proagrica Materials and will retain them within Customer’s user interface and on any materials used to market or sell such interface.
4.2 Customer Materials. Customer grants Proagrica and its Affiliates a perpetual, irrevocable, royalty-free, worldwide license to host, copy, transmit, amend, adapt, translate, disclose, distribute, display, co-mingle with other data or otherwise deal with the Customer Materials and to incorporate the Customer Materials in its products solely for the purpose of providing the Products to the Customer. Proagrica acknowledges and agrees that the Customer Materials are proprietary to Customer or its licensors or authorized third parties. As between the parties, Customer retains all right, title and interest in and to the Customer Materials.
4.3 Feedback. Customer acknowledges and agrees that Proagrica may use any suggestion, enhancement request, recommendation, idea, correction or other feedback provided by Customer or Authorized Users from time to time, and compile statistical and other information related to the performance, operation and use of the Products and the information contained in them for security and operations management or for research and development purposes or other business purposes.
5. Term. The Order Form sets out the Initial Term for a Product. Customer may not terminate any Product during the Initial Term. On the expiration of the Initial Term (and on the expiration of each Renewal Term), the licenses set out in the Order Form will automatically renew for a period of twelve (12) months.
6.1 Either party may terminate an Agreement for convenience with effect from the end of the Initial Term or the then-current Renewal Term by giving written notice not less than ninety (90) days prior to the expiration of the Initial Term or the then-current Renewal Term.
6.2 Either party may terminate an Agreement immediately upon written notice in the event of: (a) a material breach by the other party of this Agreement which remains uncured for thirty (30) days after written notice; or (b) the other party becomes insolvent or bankrupt (or the equivalent in any jurisdiction) anywhere in the world or (c) enters into any arrangements with or for the benefit of its creditors or an arrangement to be wound up, compulsorily or voluntarily (otherwise than for the purpose of a bona fide reconstruction or amalgamation without insolvency) or (d) has a receiver appointed or (e) all or any part of its undertaking or assets ceases or threatens to cease carrying on business.
6.3 Proagrica may terminate an Agreement immediately upon written notice to Customer if: (i) in violation of the Agreement, an unauthorized third party accesses or uses a Product provided to the Customer; or (ii) Customer or any entity controlling Customer acquires, is acquired by and/or merges with another legal entity; or (iii) Customer violates any law in connection with this Agreement, or (iv) Customer or any Authorized User is sanctioned by any trade sanctions regime.
6.4 Any provision of this Agreement that must survive this Agreement in order to fulfill its essential purpose will survive termination of this Agreement.
6.5 Termination of an Order Form does not affect any other Order Form(s).
7. Consequences of Termination.
7.1 On expiry, termination or cancellation of an Agreement for any reason, the Customer, its Permitted Affiliates and all Authorized Users shall immediately cease using all of the terminated Products, Proagrica Materials, and Content, and shall promptly delete Proagrica Materials and all Content from their systems, applications or other storage. Customer will provide written certification to Proagrica of any such destruction on Proagrica’s request.
7.2 The undertaking to delete materials on termination does not apply to any data which (a) is Contributed Data which Customer or its Authorized Users have uploaded into the Product; (b) the Customer is required to retain under any applicable legal or regulatory obligation, including the rules of a professional body (in each case only to the extent and for such time as is required under any such obligation); provided that, and for as long as, Customer (i) continues to comply with the provisions of this Agreement and (ii) only retains such copies in its archives and does not use the Proagrica Materials in any part of its business for any reason.
7.3 Termination or expiry of an Agreement does not relieve Customer of its obligation to pay fees payable to Proagrica for the period prior to the effective date of termination and upon termination, Proagrica may invoice, and Customer shall pay, all undisputed Fees and reasonable expenses incurred up to the date of termination.
7.4 At the end of the Term, Customer’s access to Content pursuant to the Order Form will cease. Following termination and except as may be required by applicable legislation, Proagrica has no obligation to provide Customer with Contributed Data or with the ability to download such data. Proagrica may make Contributed Data available for download at its discretion, subject to Customer’s payment of additional fees.
8. Suspension of Rights. Proagrica reserves the right to immediately suspend a Product or any rights granted under the Agreement, or to limit the information provided to Proagrica by or on behalf Customer or an Authorized User, in the event that (i) Proagrica determines, in its sole discretion, that information loaded by Customer into the Product does not conform with Proagrica specifications or may otherwise limit or harm the functionality of Proagrica Materials or Proagrica systems, or (ii) Proagrica has reasonable grounds to believe that Customer’s or an Authorized User’s use of the Product breaches the terms of this Agreement; (iii) any Fees are more than 30 days past due, or (iv) Proagrica has the right to otherwise terminate an Agreement or any Product.
9. Changes to Terms. Proagrica may, at its discretion, change the Agreement on written notice to Customer. During a period of thirty (30) days, commencing on the day Proagrica provides the notice, Customer may, by written notice, terminate the affected Products. If Customer does not exercise its right to terminate within thirty (30) days from Proagrica’s notice, Customer accepts the changed terms, and may no longer exercise this termination right.
10. System Requirements. Customer must ensure that it has appropriate equipment, systems, and connectivity to operate and/or access the Product as it may be updated from time to time. Proagrica will provide information on operating system and equipment specifications on Customer’s written request. Customer operating system or hardware sufficiency or compatibility with the Product is Customer’s sole responsibility, and Proagrica is not liable for any failure of Customer to ensure operating system or hardware sufficiency or compatibility with the Product.
11. Changes to Product. Proagrica may update, enhance, withdraw or otherwise change the Products from time to time, at any time without notice. Where such change will lead to a material decrease in functionality, Proagrica will provide Customer with thirty (30) days’ notice. During a period of thirty (30) days starting on the day that Proagrica provides the notice, Customer may, by written notice, terminate the license relating to the affected Product(s). If Customer does not exercise its right to terminate within thirty (30) days from Proagrica’s notice, Customer accepts the changed product, and may no longer exercise this termination right.
12. Discontinuation of Products. Proagrica may discontinue a Product or a part of a Product, a version of a Product, or support on three months’ prior notice. At the end of such notice period, Proagrica shall have no obligation to provide or support the Product or version. In the event that Proagrica discontinues the Product, Proagrica may either (a) offer Customer a refund of the unused portion of any prepaid fees for the applicable contract year or (b) make available an alternative product.
13. Representations and Warranties.
13.1 Mutual warranties. Each party represents and warrants that it has full power and authority to enter into this Agreement and that, on signature of this Agreement, this Agreement constitutes a valid and binding obligation on that party. Each party further represents and warrants that it has and will maintain all rights, authorizations and licenses that are required to fully perform its obligations and to grant the rights and licenses granted in this Agreement.
13.2 Customer Representations and Warranties. Customer undertakes, represents and warrants to Proagrica that: (a) it and each Authorized User has all necessary ownership rights, authorizations, permissions and licenses and has provided all required notices to any third parties (including but not limited to its customers or others), to collect, retain, use, upload or otherwise make the Customer Materials available to (i) Proagrica, (ii) Customer’s Authorized Users or (iii) other third parties as permitted by the Order Form and (b) it will comply with all applicable laws, regulations, and ordinances.
14. Confidentiality. Except as otherwise set forth herein, each party agrees that all code, inventions, know-how, products, sales, costs, fees, system usage data, projections, business, technical and financial information it obtains from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“). The Proagrica Materials and any performance information relating to Products or underlying systems will be Confidential Information of Proagrica. Except as expressly authorized by the Agreement, the party receiving Confidential Information (“Receiving Party“) will hold Confidential Information in confidence during the Term and for as long afterwards as it continues to hold such information and will not disclose any Confidential Information to any third parties including Affiliates (except that Proagrica may share information with Affiliates or third party advisers or service providers (subject to such parties being bound by confidentiality obligations materially the same as those contained in the Agreement). Except for information accessed using a Product, the Receiving Party’s non-disclosure obligation will not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt from the Disclosing Party; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to all other remedies it may have at law.
15.1 ALL INFORMATION, DATA AND PRODUCTS ARE PROVIDED BY PROAGRICA ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, PROAGRICA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY, TIMELINESS, COMPLETENESS, OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES ALL RISK OF USE OF RESULTS PRODUCED BY THE SYSTEM, INCLUDING BUT NOT LIMITED TO, ANY RISKS ASSOCIATED WITH PLANTING, HARVESTING, SELLING OR BUYING ANY AGRICULTURAL PRODUCTS BASED ON ANY RECOMMENDATION, LACK OF RECOMMENDATION, OR OTHER RESULT PRODUCED BY THE SYSTEM. PROAGRICA HAS NO LIABILITY IN CONNECTION WITH INFORMATION, DATA, PRODUCTS OR OUTPUTS FROM THEIR USE, INCLUDING WITHOUT LIMITATION, LIABILITY FOR DAMAGE TO COMPUTER HARDWARE, COMPUTER SOFTWARE, DATA, INFORMATION, MATERIALS AND BUSINESS RESULTING FROM USE OF PRODUCTS.
15.2 PROAGRICA DISCLAIMS ALL REPRESENTATIONS AND THAT THE INFORMATION OR DATA MADE AVAILABLE BY PROAGRICA WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY DEFECTS CAN BE CORRECTED. Time will not be of the essence in respect of delivery of any product or service by Proagrica. Customer will verify all geolocation information, crop information, agricultural chemical specifications and all other data generated by Customer’s use of the Products.
15.3 Proagrica accepts no liability or responsibility to any third party who benefits from, uses or relies on the Products or gains access to the Proagrica Materials. Customer indemnifies Proagrica from and against all liabilities, losses, damages, costs and expenses that Proagrica incurs in connection with any claims against Proagrica by any such third party.
16. Limitation of Liability
16.1 Nothing in this Agreement limits either party’s liability for (a) gross negligence; (b) willful breach; (c) any Fees or amounts due in respect of Customer’s use of a Product beyond the scope of the Agreement; (d) fraud or fraudulent misrepresentation; or (d) death or personal injury caused by negligence or (e) otherwise to the extent liability cannot be limited or excluded by law.
16.2 Except as otherwise set forth in the Agreement, Proagrica shall have no liability for (a) any loss or injury caused, in whole or in part, by its actions, omissions, or negligence or for contingencies beyond its control in procuring, compiling, or delivering any information; (b) any errors, omissions, or inaccuracies in the information regardless of how caused, or delays or interruptions in delivery of any product, service, or Content; or (c) any decision made or action taken or not taken in reliance on any information provided by Proagrica.
16.3 Neither party is liable for: (a) loss of profits, loss of revenue, loss of anticipated savings, loss of goodwill, business interruption, loss of data, or loss of business information; or (b) indirect, punitive, incidental, consequential, or exemplary losses or damages; or (c) special damages arising out of or in any way connected with this Agreement, even if a party knew the possibility of such damages, whether in contract, tort, or otherwise.
16.4 EXCEPT FOR: (I) THE INDEMNITIES SET OUT IN CLAUSES 17.1 AND 17.2 AND (II) A BREACH OF CLAUSE 14 (CONFIDENTIALITY), EACH PARTY’S TOTAL LIABILITY TO THE OTHER FOR ANY ACTS OR OMISSIONS ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID AND PAYABLE BY CUSTOMER FOR THE PRODUCT TO WHICH THE CLAIM RELATES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
17.1 Proagrica Indemnity. Proagrica will indemnify, defend and hold harmless Customer from and against any and all claims, demands, causes of action, or debt payable to a third party, including reasonable legal fees and expenses, to the extent arising from any claim alleging US patent (as such patent is issued as at the date of the Agreement) or US copyright infringement by Proagrica Materials in the form made available by Proagrica to Customer without modification, provided that in no event will Proagrica have any obligations or liability arising out of (i) any modification of the Proagrica Materials by anyone other than Proagrica; (ii) use of the Proagrica Materials in combination with other products or services not provided by Proagrica or (iii) content, technology, information or data provided or made available to Proagrica by Customer. The parties acknowledge and agree that the foregoing indemnity does not apply to Content, and Proagrica excludes liability for Content in accordance with clause 15 (Disclaimer) of these Master Terms.
17.2 Customer Indemnity. Notwithstanding any other terms or conditions contained in the Agreement or any other terms incorporated by reference, Customer will indemnify, defend and hold harmless Proagrica, its Affiliates, and each of their respective officers, directors, agents and employees, from and against any and all claims, demands, causes of action or debt, including reasonable legal fees and expenses, to the extent arising from any third party’s claim, lawsuit, or action: (a) in connection with Customer’s installation, implementation or use of the Products, or use of any outputs or information from the Product or Proagrica Materials or breach of any representation, warranty or covenant of Customer in the Agreement, or Customer’s use of third-party services; (b) by any third party that arises or results from its and any of their users’ actions or omissions relating to the Proagrica Materials; (c) by a third party alleging that any Customer Materials infringe or misappropriate such third party’s intellectual property rights or other applicable laws, (d) or arising from Customer’s use of the Proagrica Materials in violation of the Agreement or applicable laws or regulations.
17.3 Indemnity Procedure.
17.3.1 The indemnified party shall: (a) provide the indemnifying party with prompt written notice of any claim for which indemnification is sought, provided notice will be deemed prompt if provided before any material prejudice to the indemnifying party; (b) cooperate with the indemnifying party; and (c) allow the indemnifying party to control the defense and settlement of such claim (provided the indemnifying party will not settle or resolve any such claim in a manner that imposes any liability or obligation on the indemnified party without the advance written approval of the indemnified party, which will not be unreasonably withheld or delayed). The indemnified party may, at its own expense, assist in the defense if it so chooses.
17.3.2 If Proagrica or Customer is enjoined from using any materials included on the Proagrica Materials, or if Proagrica reasonably believes that such materials are likely to become the subject of a claim of infringement or misappropriation, Proagrica, at its option and expense, may: (a) procure the right for Customer and its Authorized Users to continue to use such materials; (b) replace or modify such materials (or any part of them) so that they become non-infringing and remain functionally equivalent; (c) remove such materials from the Proagrica Materials; and/or (d) terminate the Order Form with respect to the affected Products and grant Customer a pro rata refund for the unused portion of the Term in relation to the affected Product.
18.1 Audit. Upon providing Customer with reasonable prior written notice, Proagrica (including its representatives, Affiliates or regulators) (“Audit Representative(s)”) shall have the right, either directly or through a third party auditor, not more than once every twelve (12) months, to conduct an audit during Customer’s normal business hours to verify that the Products are being used in a manner consistent with the provisions of the Agreement. Without prejudice to Proagrica’s other rights or remedies, if Proagrica determines that Customer, its Affiliates or Authorized Users are using Proagrica Materials in a manner inconsistent with the Agreement, Customer will, at Proagrica’s option, immediately cease such inconsistent use and/or pay Proagrica additional fees, in accordance with clause 3.3 (Additional Use), and reimburse Proagrica for the cost of such audit.
18.2 Independent Contractors. The parties are independent contractors. Neither party is an agent, representative or partner of the other party. Neither party will enter into any agreement for or on behalf of, or otherwise bind, the other party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the parties. Proagrica will abide by its Code of Ethics and Business Conduct, available at https://www.relx.com/investors/corporate-governance/code-of-ethics.
18.3 Assignment. This Agreement will bind the parties and their respective successors and assigns. Neither party may assign or transfer the Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, except that Proagrica may assign the Agreement in whole or in part to an Affiliate, or in the event of a sale of all or substantially all of the assets or ownership of Proagrica or other corporate reorganization.
18.4 Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement must be given in writing and will be deemed delivered (a) on the delivery date if delivered personally; (b) on the delivery date if sent by commercial overnight carrier, with written verification of receipt; or (c) five (5) business days after the mailing date, if sent by mail, certified return receipt requested. The notice addresses are the addresses set forth in the Order Form and, when sent by Customer, with a copy to email@example.com. Either party may by notice in writing designate a different address for notices. Proagrica may additionally provide notice to Customer by (i) posting a notice on Proagrica’s website; or (ii) sending a message to the email address then associated with Customer’s account. Notices posted on the website will be effective when posted, and notices by email will be effective when Proagrica sends the email. Customer will be deemed to have received any email sent to the email address then associated with Customer’s account.
18.5 Branding, Publicity and Marketing. RELX Group and the RE symbol are trademarks of RELX Group plc, used under license. Neither party will publicly name the other party or the existence of this Agreement or use the other party’s branding or logo, without the prior written consent of the other party, except that Proagrica may publicly use Customer’s name and logo to identify Customer as a customer of Proagrica in its marketing materials.
18.6 Dispute Resolution. The parties will use reasonable commercial efforts to settle any dispute within thirty (30) days of one party advising the other in writing and in reasonable detail of the reason for the dispute. Customer may not dispute Fees or terms which are subject to Apple or Google terms and conditions.
18.7 Governing Law and Forum. The Proagrica contracting entity (as set out on the Order Form) will determine the governing law and jurisdiction which apply in connection with the Agreement as follows:
|Proagrica entity||Governing Law||Jurisdiction|
|Reed Business Information, Inc, t/a Proagrica||New York||New York|
|Globalrange SA (Pty) Limited, trading as Proagrica||South Africa||South Africa|
|Reed Business Information Limited, t/a Proagrica||England||England|
|Reed Business Information (Australia) Pty Ltd, t/a Proagrica||New South Wales||New South Wales|
The parties submit to the exclusive jurisdiction of the courts in the relevant jurisdiction over any dispute arising out of or in connection with this Agreement.
18.8 No Waiver. No waiver will be enforceable against a party unless in writing and signed by such party. No waiver under this Agreement will constitute a waiver of any subsequent breach.
18.9 Third Party Beneficiaries. Except as expressly set out in this Agreement, a person who is not a party to this Agreement has no rights under statute or otherwise to enforce its terms.
18.10 Entire Agreement. This Agreement sets out the entire agreement and supersedes any and all prior agreements of the parties with respect to the subject matter of this Agreement. No change, amendment or modification of any provision of this Agreement will be valid unless made in writing and signed by both parties. No terms on a Customer purchase order or other Customer document will have effect, even if such document is accepted by Proagrica.
18.11 U.S. Government Restricted Rights. The code, information, data, software, modules and accompanying components of the Product are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to restriction as set forth in subparagraph C(1)(ii) of the Rights in Technical Data and Computer software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer software Restricted Rights at 48 CFR 52.227-19, as applicable.
18.12 Export Control. The United States controls the export of products and information. Customer agrees to comply with such restrictions and not to export or re-export the Products to countries or persons prohibited under the export control laws. Customer agrees that it is not, and will not during the relevant Term, be in a country where such export is prohibited or are a person or entity to which such export is prohibited. Customer is responsible for compliance with the laws of its local jurisdiction regarding the import, export or re-export of any Product.
18.13 Severability. If any of the provisions or parts of the Agreement are determined to be illegal, invalid or unenforceable in any respect under any applicable statute or rule of law, such provisions or parts must be reformed to best effectuate the intent of the parties and permit enforcement of this Agreement.
18.14 Force Majeure. Except for payment obligations, neither party will be liable for failure to perform its obligations under this Agreement where such failure is due to circumstances beyond its reasonable control.
19. Data Protection
19.1 Definitions. In these clauses 19 (Data Protection) and 20 (GDPR Data Processing Terms):
19.1.1 “GDPR” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
19.1.2 “Data Protection Laws” means all data protection laws and regulations in any applicable jurisdiction, including those of the United Kingdom (“UK”), Switzerland, European Economic Area (“EEA”) and the European Union (“Union”), applicable to the processing of personal data under this Agreement, including the GDPR;
19.1.3 the phrases “controller”, “data subject”, “personal data”, “personal data breach”, “processing”, and “processor” will have the meanings ascribed to them in the Data Protection Laws, and where the relevant Data Protection Laws use the term ‘data controller’ or ‘data processor’, they will be read as controller and processor, respectively.
19.3 Clause 20 (GDPR Data Processing Terms) below applies only to the processing of personal data governed by GDPR.
19.4 Customer acknowledges that, in the process of accessing and using any Products and information from Proagrica, it may supply personal data to Proagrica. Customer represents and warrants that it complies with all applicable obligations under the Data Protection Laws in supplying personal data to Proagrica, including providing any required notices and obtaining any required consents and authorizations for Proagrica’s processing such personal data.
19.5 To the extent that Proagrica acts as a processor of personal data for Customer, Proagrica will process such personal data in accordance with the Data Protection Laws and the terms of clause 20 (GDPR Data Processing Terms).
19.6 Customer acknowledges and agrees that Proagrica may (i) compile statistical and other information related to the performance, operation and use of the Products and information in the Products and (ii) use data in aggregated and/or anonymized form for security and operations management or for research and development purposes or other business purposes, provided that such information and data will not identify or serve to identify any data subject.
19.7 The Products provide analysis and insight, but Customer is solely responsible for (a) decisions it may take using insights from Products and for (b) compliance with the requirements of Articles 21 and 22 of the GDPR insofar as they apply and for responding to requests from data subjects (subject to this clause).
20. GDPR Data Processing Terms
20.1 Scope. The GDPR data processing terms in this clause 20 (“DPT”) apply to Proagrica’s processing of personal data on Customer’s behalf under this Agreement and all other agreements between Customer and Proagrica. With regard to such processing, Customer is the controller of the personal data and Proagrica is the processor of the personal data. These DPT do not apply where Proagrica is a controller of personal data.
20.2 Proagrica’s Processing Obligations. Proagrica’s processing of personal data is governed by this Agreement under Union or governing Member State law as agreed to by the parties in writing. In particular, Proagrica will:
20.2.1 process the personal data only on Customer’s documented instructions, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by the Union or Member State law governing such personal data; in such case, Proagrica will inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
20.2.2 ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
20.2.3 take all measures required pursuant to Article 32 of the GDPR;
20.2.4 respect the conditions set out above for engaging another processor;
20.2.5 taking into account the nature of the processing, assist Customer by appropriate technical and organizational measures, insofar as possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR;
20.2.6 assist Customer in ensuring compliance with the obligations of Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to Proagrica;
20.2.7 at Customer’s choice and/or on expiry or termination of an Order Form and/or this Agreement, delete or return to Customer all personal data relating to the terminated Product or services after the expiry or termination and delete copies of the personal data (unless Union or Member State or other applicable law requires storage of the personal data; which, requirement, for the avoidance of doubt, does not apply to aggregated or anonymized data);
20.2.8 make available to Customer all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR; and
20.2.9 promptly inform Customer if, in Proagrica’s opinion, an instruction from Customer to Proagrica infringes the GDPR or other Union or Member State data protection provisions.
20.3 Additional processors.
20.3.1 Proagrica will not engage another processor without Customer’s prior specific or general written authorization. In the case of general written authorization, Proagrica will inform Customer of any intended changes concerning the addition or replacement of other processors to give Customer the opportunity to object to such changes in the manner set out in this Agreement.
20.3.2 Customer provides Proagrica with general consent to engage other processors for the processing of personal data in accordance with these DPT. Proagrica will maintain a list of such processors (which Proagrica may update from time to time) and make it available at Customer’s request. At least 14 days before authorizing any such new processor to process personal data, Proagrica will update the list on Proagrica’s website. Customer may object to the change without penalty by notifying Proagrica within 14 days after receipt of Proagrica’s notice. Without prejudice to any applicable refund or termination rights Customer may have, Proagrica will use reasonable endeavors to change, modify or remove the affected Products or data contained therein to avoid processing of personal data by such new processor to which Customer reasonably object
20.3.3 Where Proagrica engages another processor for carrying out processing activities on Customer’s behalf, Proagrica will impose on that processor by way of a contract (or other legal act under Union or Member State law) the same data protection obligations as set out in these DPT, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR. Where the other processor fails to fulfill those data protection obligations, Proagrica will (subject to the terms of the Agreement) remain fully liable to Customer for the performance of that other processor’s obligations.
20.4 Subject Matter. The subject matter of Proagrica’s processing is the personal data provided in connection with the Products and information contained in them. The duration of the processing is the duration of the provision of the Products and information contained in them. The nature and purpose of the processing is in connection with the provision of the Products and data contained in them. The categories of data subjects are Customer’s employees, representatives, licensed users and clients, prospects, suppliers, business partners and others whose personal data is submitted to the Products.
20.5 Instructions. The parties shall agree all instructions to Proagrica for the processing of personal data. Proagrica will ensure that its personnel engaged in the processing of personal data will process personal data only on Customer’s documented instructions, unless required to do so by Union, Member State or other applicable law.
20.6 Data Subject Rights. Proagrica will, to the extent legally permitted, promptly notify Customer of any data subject requests Proagrica may receive, and reasonably cooperate with Customer to fulfill Customer’s obligations under the GDPR in relation to such requests. Customer will be responsible for any reasonable costs arising from Proagrica providing assistance to Customer to fulfil such obligations.
20.7 Transfer. Proagrica will ensure that, to the extent that any personal data originating from the UK, Switzerland or EEA is transferred by Proagrica to another processor in a country or territory outside the UK, Switzerland or EEA that has not received a binding adequacy decision by the European Commission or competent national data protection authority, such transfer will be subject to an appropriate transfer mechanism that provides an adequate level of protection in accordance with the GDPR.
20.8 Security of Processing.
20.8.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the parties must implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including as appropriate: (a) the pseudonymization and encryption of personal data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.
20.8.2 In assessing the appropriate level of security, account must be taken of the risks that are presented by processing of accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed.
20.9 The parties must take steps to ensure that any natural person acting under the authority of either party who has access to personal data does not process them except on instructions from Customer, unless he or she is required to do so by Union or Member State law.
20.10 Personal Data Breach. Proagrica will notify Customer without undue delay after becoming aware of a personal data breach and will reasonably respond to Customer’s requests for further information to assist Customer in fulfilling Customer’s obligations under Articles 33 and 34 of the GDPR.
20.11 Records of Processing Activities. Proagrica will maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the processing of personal data on Customer’s behalf, make them available to Customer as required.
20.11.1 Audit. Audits by Customer will be: (a) limited to the processing of personal data and compliance with these DPT only; (b) conducted by a reputable independent third party auditor; (c) subject to the execution of appropriate confidentiality agreements; (d) conducted no more than once per year, unless a demonstrated reasonable belief of non-compliance with this Agreement has been made, on thirty (30) days written notice and having provided a plan for such review; and (e) conducted at a time and in a manner agreed between the parties.
20.12 Conflict. If there is any conflict or inconsistency between these clauses 19 (Data Protection) and 20 (GDPR Data Processing Terms), the terms of this clause 20 will control to the extent required by law. Otherwise, clause 20 will control in the case of such conflict or inconsistency
21. General and Defined Terms.
21.1 “Affiliate” in respect of a corporate entity, means any other corporate entity which directly or indirectly, controls, is controlled by or is under common control with such entity and the term “control” (including the Terms “controlled by” and “under common control with”) in relation to an entity means the ownership of more than 50% of the voting securities in that entity;
21.2 “Authorized User” means an employee or independent third-party contractor of Customer, or of Customer’s authorized third parties, as set out on the Order Form.
21.3 “Content” means any and all visual, audio-visual, graphic content, data or information (including but not limited to Contributed Data or Personal Data) which is available to Customer or Authorized Users within or in connection with the Product.
21.4 “Contributed Data” means any and all visual, audio-visual, graphic content, data or information (including but not limited to Personal Data) that is directly or indirectly uploaded into, shared through, collected through, runs on or used in a Product by or on behalf of Customer or by its authorized third parties (including but not limited to its Authorized Users).
21.5 “Customer Materials” means materials or information provided by or on behalf of Customer or its Authorized Users to Proagrica for use by Proagrica or for incorporation in a Product, including but not limited to data, information, visual, textual graphic, software or other content, material including agricultural data, Personal Data, Contributed Data, and information generated by Customer’s systems, hardware, or software other than the Product.
21.6 “Fees” means the fees set out on the Order Form.
21.7 “Initial Term” means the initial term for a Product as set out on the Order Form.
21.8 “intellectual property rights” means all patent, copyrights, trademark, service mark, and trade secret rights and other similar proprietary rights of any kind.
21.9 “Order Form” means an order form signed by the parties and may include a statement of work or an invoice.
21.10 “Permitted Affiliate” means a Customer Affiliate which is permitted to access and use a Product as set out in an Order Form.
21.11 “Proagrica Materials” means content, code, information, databases, the Products, software, platforms, documentation, Product usage data and statistics, and APIs provided to or accessed by Customer. Proagrica Materials do not include Contributed Data or Content which originates with or is provided by a party other than Proagrica. The Proagrica Materials include the Product(s).
21.12 “Product” means a product provided by Proagrica as described on the Order Form and may include, without limitation, a mobile app, software, professional services, software-as-a-service, or connectivity services.
21.13 “Renewal Term” means each renewal term for a Product as described in clause 5 or as otherwise agreed in writing between the parties.
21.14 “Term” means the Initial Term plus any Renewal Term(s).
B. CONTENT TERMS
22. Content Terms. Where (i) Proagrica will provide Products which contain Content, or (ii) where Customer will upload Contributed Data to Proagrica’s products or systems, the Content Terms in this Section B apply. In these Content Terms, “Designated Recipient” means a third party or Customer employee who (i) is a registered holder of a Product account and who (ii) Customer authorizes to receive certain Content.
23. Content: Customer Rights and Obligations
23.1 Proagrica grants Customer a limited, non-exclusive license to copy, amend, adapt, translate, co-mingle with other data or otherwise deal with Content solely for its internal business purposes in accordance with the terms of this Agreement.
23.2 Customer may (i) use and manipulate Content within the Product within the scope of the Product functionality and (ii) download Content from the Product only to the extent and in the format permitted by the functionality of the Product in the form the Product is provided to Customer. Where Customer takes Content out of the Product, Customer acknowledges that Proagrica can no longer access such data and will have no liability for such extracted data.
23.3 Customer will not: (i) delete or amend Content within a Product other than as permitted by Product functionality; (ii) segment, alienate, isolate Content or attributes of the Product or Proagrica Materials (iii) use Content in a third-party application except as agreed by Proagrica in an Order Form.
23.4 Except (i) as specifically authorized in an Order Form or in relation to Designated Recipients or (ii) in relation to Customer’s and its Authorized User’s Contributed Data, Customer will not distribute, disclose or otherwise provide Content to any third party. Proagrica may agree with Customer in writing that Customer may use Content in a third-party application. Where the parties so agree, Customer indemnifies Proagrica for the third party’s use of the Content in breach of the terms of this Agreement and/or for any purpose other than Customer’s own legitimate business purposes.
23.6 Customer acknowledges that certain Content may be available only where Customer is participating in certain Proagrica programs and has granted the further rights described in clause 25.2 (Further Rights) of these Content Terms.
24. Contributed Data: Customer Obligations. Customer acknowledges that the Product may allow Customer and Authorized Users to add information into the Product. Customer is solely responsible for obtaining all licenses and permissions necessary related to Contributed Data, including without limitation licenses for any third-party data or images included in the Contributed Data. Customer will upload such Contributed Data to the Product in compliance with, and in the manner and format prescribed by, Proagrica or agreed between Proagrica and Customer. Customer must use its best efforts to ensure that such information is agronomically and geographically sound. Proagrica reserves the right not to process any data or to refrain from processing such data. Customer agrees to provide Proagrica with all necessary assumptions, equations, map formats, agronomic science, and any other information required for Proagrica to process data in accordance with this Agreement. Customer acknowledges that Proagrica may rely on the agronomic science given to Proagrica from Customer to provide Customer with this service.
25. Contributed Data: Proagrica Rights and Obligations.
25.1 Essential Rights. If Customer or an Authorized User uploads, collects, stores or uses Contributed Data in a Product, Customer grants to Proagrica and its Affiliates a perpetual, irrevocable, royalty-free worldwide license to: (a) host, copy, transmit, amend, adapt, translate, disclose, distribute, display, commingle with other data or otherwise deal with such Contributed Data and to incorporate the Contributed Data in its products solely for the purposes of providing the Products to Customer; (b) share Contributed Data as directed by Customer or Authorized Users with Designated Recipients or with Proagrica’s third-party advisers in accordance with this Agreement; (c) communicate with and seek feedback from Customer; and (d) use Contributed Data for its internal business purposes to analyze and improve Proagrica products. Customer agrees that Contributed Data will be stored and retained by Proagrica and will become part of Proagrica’s database(s), and that the license as set forth in this clause to Contributed Data includes the right to include the Contributed Data in Proagrica’s database(s). The rights granted in this clause may be modified on the Order Form.
25.2 Further Rights. Customer may from time grant further rights to Proagrica in Contributed Data, including for example in connection with Proagrica data analytics programs. Where Customer explicitly grants such further rights in writing, Customer grants Proagrica a worldwide, non-exclusive, perpetual license to: (a) analyze, aggregate and/or anonymize data to prepare products or services; (b) incorporate the Contributed Data, if any, into products and to analyze and create derived data from such Contributed Data; (c) commingle Contributed Data with Proagrica data or the data of third parties (the output of (a)-(c) being “Derived Data”). Customer acknowledges that Proagrica owns all rights in Derived Data and that Proagrica may freely use, deal with, and disclose Derived Data, provided always that Proagrica may not distribute Contributed Data to any third party except as permitted by Customer in writing or otherwise under this Agreement. Where Customer does not explicitly grant such further rights in writing (which includes consenting on an Order Form), this clause 4.2 does not apply.
26. Designated Recipients. Customer acknowledges that a Product may give Authorized Users the ability to share Contributed Data with Designated Recipients. Customer acknowledges that Authorized Users select designated recipients and that neither Proagrica nor Customer control the selection of Designated Recipients. Customer grants Designated Recipients a non-exclusive right to use, disclose and distribute Customer’s or its Authorized Users’ Contributed Data based on permission levels set by its Authorized Users. These permission levels are: (i) Administrator Rights: a non-exclusive right to use, edit, delete, disclose and distribute Contributed Data within the Product; (ii) Edit Rights: non-exclusive right to use, view, analyze and edit such data but not delete or share it with any other users of the Products; (iii) Read Only Rights: a non-exclusive right to view and analyze the data but not edit, delete, or share the data with any other users of the Product. The Product may allow Customer to allow a Designated Recipient to transfer Contributed Data to another user even if Edit Rights or Read Only Rights are granted. Customer agrees that sharing information with Designated Recipients is a feature of certain Proagrica Products and that such sharing does not constitute a breach of confidentiality or a breach of this Agreement.
C. SOFTWARE TERMS
27. The Software Terms in this Section C apply to all products designated on an Order Form, SOW, or invoice as software, software-as-a-service, or mobile application and which are supplied by or on behalf of Proagrica.
28. Software as a Service or Mobile Application. Where the Order Form indicates that the Product type is “SaaS”, “App”, or “API”, the following terms apply:
28.1 Proagrica grants Customer a non-transferable, non-exclusive, worldwide right to permit Authorized Users to access and use the Product. Customer acknowledges and agrees that (i) the maximum number of Authorized Users that Customer authorizes to access the Service must not exceed the number of licenses Customer has been granted, as set forth in the Order Form; (ii) a license must not be shared or used by more than one individual Authorized User but may be reassigned from time to time to a new Authorized User who is replacing a former Authorized User who is no longer permitted to access the Service; (iii) Customer will not create internet “links” to the Product or “frame” or “mirror” any part of the Product, including Content contained in the Product, on any other server or device.
28.2 Proagrica may allocate usernames and passwords to Authorized Users. Each username is unique to the named individual Authorized User and may not be shared, transferred, or utilized by another individual. Proagrica may alter usernames/and/or passwords in accordance with its standard security procedures and will inform Customer accordingly. Customer must promptly notify Proagrica if it becomes aware or suspects that any third party has obtained a password or accessed a Product, and Proagrica may alter the password and inform Customer accordingly.
28.3 Proagrica will use commercially reasonable efforts to ensure that the Product does not, to Proagrica’s knowledge, contain computer viruses, malware, or code, files or programs designed to damage or obtain unauthorized access to data or other information of Customer. While Proagrica will take standard industry measures to back up Contributed Data, Customer agrees to keep, and ensure its Authorized Users keep, a separate back-up copy of all Contributed Data.
28.4 Proagrica will use commercially reasonable efforts to ensure that the Product is available to Customer and Authorized Users excluding downtime for regular or emergency maintenance.
29. Installed Software. Where the Order Form indicates that the Product type is “Software – Installed”, the following terms apply:
29.1 Proagrica grants Customer a non-exclusive, non-transferrable, non-sublicensable license to use the Product(s) for Customer’s internal business purposes only, subject to the conditions in this Agreement and within the license scope set out in the Order Form. Where the Order Form indicates that the Term for a Product is “perpetual”, Customer may continue to use the product after the term of any support ends.
29.2 Customer may install the Product at the locations and in accordance with the license basis stated on the Order Form. All of the Product must be installed and used on the same server. There is no limit on the number of Customer employees that may access and use the Product installed on such computer. For the purposes of this Agreement, a server is one computing device or, if the Product is being used in connection with a virtual machine, one virtual machine.
29.3 Proagrica may provide periodic upgrades and maintenance for the Product. Customer must promptly apply or install all updates and upgrades.
29.4 Where the Order Form indicates that an installed software Product is provided for a fixed term only, Proagrica may require Customer to obtain a new key or other access mechanism at the end of the fixed term if Customer wishes to continue its use of the Product.
30. Hosting. Where the Order Form indicates that Proagrica will provide hosting services for a Proagrica Product, the following terms apply:
30.1 Proagrica or its third-party provider will host the Product and will make it available to the Customer during the Term.
30.2 Proagrica will be responsible for installation of updates and upgrades to the Product as Proagrica makes these generally available to its customers.
30.3 Restrictions. Other than using a software-as-a-service Product via the internet, Customer must not: (i) use the Product on any network configured for multiple simultaneous users of the Product; (ii) electronically transmit the Product from one computer to another or allow multiple computers to access the Product over a network (iii) sell, duplicate, transfer, or in any other way commercially exploit the Product, including without limitation any Content contained in the Product. Except to the extent set out on an Order Form, Customer will use the Product for its own internal business purposes only.
31. Reporting. Where the Order Form states that Customer will pay volume-based or usage-based Fees, Customer will provide a report of such usage on Proagrica’s reasonable written request, and in any event not less frequently than once per calendar quarter.
32. Support. Where an Order Form indicates that Proagrica will provide support, Proagrica will provide Customer with Proagrica’s standard technical support services via phone, e-mail, or site visits as deemed necessary by Proagrica for the term stated on the Order Form. Where the Order Form does not state a term for support services, the term of the support services is 12 months from the date of the Order Form. Unless otherwise stated in the Order Form, Customer will provide support to Authorized Users and Proagrica will have no responsibility for supporting or communicating with Authorized Users. Proagrica will be under no obligation to provide support services for previous versions of the Product or where Customer has not promptly installed updates made available by Proagrica.
33. Warranty. Where the Order Form indicates that the Product type is “Software – Installed”, Proagrica warrants that the Product will function materially in accordance with Proagrica’s relevant specifications for a period of 90 days from the date of the relevant Order Form. Where the Order Form indicates that the Product type is “SaaS” or “App”, Proagrica warrants that the Product will function during the Term materially in accordance with Proagrica’s relevant specifications for the Product. Customer’s sole and exclusive remedy for Proagrica’s breach of the warranties in this clause 33 will be that Proagrica will use commercially reasonable efforts to correct such errors or modify the Product to achieve the material functionality described in the relevant specification within a reasonable period of time.
D. PROFESSIONAL SERVICES TERMS.
34. Where an Order Form indicates that Proagrica will provide Professional Services to Customer, the terms in this Section D will apply to Professional Services and Deliverables provided by Proagrica.
35. References in these Professional Services Terms to an Order Form include any Statement of Work the parties may enter into in relation to the Professional Services. References in the Master Terms to a Product will be read as references to the Professional Services and to any Deliverable.
36. Customer Responsibilities. Customer will: (i) provide Proagrica with access to its appropriately trained and briefed personnel; (ii) at Proagrica’s reasonable request, supply any materials and other information in its possession reasonably required to enable Proagrica to provide the Professional Services; (iii) ensure that its relevant systems are up to date and comply with any requirements set out in the Order Form or requirements otherwise notified to Customer by Proagrica; (iv) comply with the Customer Dependencies. Proagrica is not liable for any failure to perform its obligations to the extent such failure is due to the Customer failing to provide the Customer Dependencies. Unless otherwise agreed in an Order Form, Customer will be responsible for obtaining, and will bear the cost of obtaining, all third party consents, permissions, and licenses which may be required for Proagrica to provide the Professional Services or any Deliverable in accordance with the Order Form.
37. Deliverables. Except as otherwise specified on the Order Form, Proagrica owns all rights in the Deliverables. Proagrica grants to the Customer a non-exclusive, royalty free license to use the Deliverable and associated Proagrica Materials in the manner and for the purposes specified on the Order Form. Where the Order Form does not specify a scope of use, the parties agree that the Deliverables are provided for the Customer’s and its Affiliates’ own internal business purposes only.
38. Acceptance Testing.
38.1 The Order Form sets out the Acceptance Criteria (if any). Customer will carry out acceptance testing within 10 working days of receipt of a Deliverable and Proagrica will provide such assistance as is reasonably required.
38.2 Within 10 working days of Proagrica providing a Deliverable, Customer will either (i) issue an acceptance certificate confirming that the Deliverable meets the Acceptance Criteria; or (ii) notify Proagrica in writing that the Deliverable does not meet the Acceptance Criteria, specifying in reasonable detail the reasons Customer believes the Deliverable does not meet the Acceptance Criteria. If the Customer does not provide notice of rejection in accordance with clause 4.2, the Deliverable is deemed accepted at the end of the 10-day acceptance test period.
38.3 Where Customer indicates that the Deliverable does not meet the Acceptance Criteria, Proagrica will use such efforts as are reasonably required to correct the relevant Deliverable(s) so that they meet the Acceptance Criteria and will deliver the modified Deliverables for further acceptance testing. If Customer does not accept the Deliverables after three (3) cycles through the process outlined in these clauses 39.1 to 39.3, the parties will discuss, in good faith, whether to modify the Acceptance Criteria or to otherwise resolve the problem.
39.1 Proagrica will provide the Professional Services with reasonable skill and care and in accordance with Good Industry Practice, in accordance with the Order Form, in compliance with applicable law, and using suitably skilled and experienced personnel.
39.2 Proagrica warrants that the Deliverable will meet the relevant specification(s) (as set out in the relevant Order Form) for a period of 90 days after Final Acceptance. Proagrica will repair the defect or error within a reasonable time of receiving notice from the Customer specifying a defect or error in breach of the warranty in this clause 40.2.
40. Change Control
40.1 Either party may request a variation to the Order Form at any time before Final Acceptance by means of the following change control procedure.
40.2 The party making the request must send to the other party a request (a “Change Request”) containing the following particulars: (a) the title of the change; (b) the originator; (c) the date of the proposal; (d) full details of the proposed change, including an outline description of any additional software proposed to be written; (e) the reason for the proposed change; (f) a timetable for implementation of the change including the date of its coming into effect; and (g) the anticipated impact of the change, if any, on other aspects of the work contemplated by the Order Form or otherwise agreed between the parties.
40.3 Within 14 days of receipt by Proagrica of a Change Request from the Customer, Proagrica will, at the Customer’s cost, provide a quote for any Fee which would be required in order to implement the change and will set out any variation to agreed time scales which may be required in order to implement the change. Any Change Request submitted by Proagrica will include such a quotation.
40.4 Following receipt of Proagrica’s quotation, the parties may agree in writing to implement the requested change. The parties must sign an amendment to formally document the change as an amendment to the Order Form.
40.5 Proagrica will treat changes requested after the expiry of the warranty period in clause 40.2 as chargeable support requests and will invoice for such services at its then-prevailing rate.
41. Expenses. If agreed in the Order Form, Customer will reimburse Proagrica for all pre-approved and documented (with attached receipts) reasonable expenses incurred by Proagrica in connection with the Professional Services, including but not limited to travel expenses, living expenses and other related out-of-pocket expenses.
42. Project Management. The parties will administer projects as follows:
42.1 The Customer will appoint a senior employee with relevant authority and experience who will have day-to-day responsibility on behalf of the Customer, and Proagrica will appoint a senior employee with relevant qualifications and experience who will have day-to-day responsibility on behalf of Proagrica.
42.2 The representatives will meet as often as may reasonably be necessary at a mutually convenient time and place to ensure the continuous, efficient and timely implementation of the Professional Services.
43. Termination and Consequences of Termination
43.1 The term of the Professional Services and any termination rights are set out in the Order Form and the Master Terms.
43.2 Upon the termination of an Order Form for whatever reason: (i) Proagrica will return or destroy all of the Customer Materials (other than any Contributed Data) in its possession and, within 30 days of a written request from Customer, will certify in writing to the Customer that they have been destroyed; and (ii) the Customer will promptly pay to Proagrica any amounts payable in respect of the period prior to termination.
44. Definitions for this Section D.
44.1 “Acceptance Criteria” means the acceptance criteria for each Deliverable as set out in the relevant Order Form.
44.2 “Customer Dependencies” means the actions or information to be performed or delivered by the Customer as set out in this Agreement, in a Statement of Work or as a matter of practicality clearly required to be performed by the Customer.
44.3 “Deliverable” means work product identified in an Order Form as a deliverable.
44.4 “Final Acceptance” means final acceptance of a Deliverable or deemed acceptance of a Deliverable in accordance with clause 39 of these Professional Services Terms.
44.5 “Good Industry Practice” means the exercise of the degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced person conforming to the professional standards generally observed in the software services industry for similar services or obligations.
44.6 “Professional Services” means the services to be provided by Proagrica and described in an Order Form.
E. PROAGRICA NETWORK TERMS. Where an Order Form indicates that Proagrica will provide Customer with access to the Proagrica Network, then the following terms apply.
46. Definitions for this Section E.
46.1 “Adapter” means the Interlok adapter software identified on the Order Form.
46.2 “Customer Equipment” means Customer’s computer system and all such equipment, software and communication lines necessary to access the Services.
46.3 “Participant” means a third party with whom Customer wishes to exchange information via the Proagrica Network. The maximum number of Participants is set out on the Order Form.
46.4 “Proagrica Network” means Proagrica’s software and hardware network which allows the routing of documents electronically between connected participants via the Adapter and/or other specified communication protocols.
46.5 “Service” means the provision of the Proagrica Network and associated helpdesk and support services.
46.6 “Service Level Agreement” means the document(s) setting out the service levels applicable to the Services.
46.7 “Service Levels” means the service levels set out in a relevant Service Level Agreement, as amended by Proagrica from time to time.
46.8 “VAN” means the network and service provided by a third party electronic document interchange service provider to Customer for the purpose of integrating Customer Equipment with the Proagrica Network.
47. Proagrica Network.
47.1 Proagrica grants Customer a non-transferable, non-exclusive right to access the Proagrica Network via the Adapters or via such other means as may be agreed in writing with Proagrica.
47.2 Customer will not use the Proagrica Network in a way which interferes with the use of the Proagrica Network by any other user.
47.3 Proagrica will use commercially reasonable endeavors to meet the Service Levels in providing the Services. Notwithstanding any other provision of this Agreement, Proagrica may modify the Service Levels at any time.
47.4 Customer agrees that Proagrica may list Customer and/or its unique Proagrica Network locations to the Proagrica Network directory which it makes available to current and prospective Proagrica Network customers.
48. Customer Obligations. Customer will:
48.1 facilitate, at its own cost, the integration of Customer Equipment with the Proagrica Network in accordance with Proagrica instructions;
48.2 provide the hardware and software instructed by Proagrica and required to enable Proagrica to carry out its obligations under this Agreement;
48.3 maintain Customer Equipment so that functioning of the Customer Equipment does not interfere with, delay or impede functioning of the Proagrica Network in accordance with the Service Levels;
48.4 connect to the Proagrica Network only in a way which has been authorized in writing by Proagrica;
48.5 notify Proagrica promptly of changes to Customer Equipment, business environment, or business plans and procedures which may have an impact on the Services;
48.6 perform regular back-ups of Customer data;
48.7 follow instructions and technical procedures established by Proagrica in relation to use of the Services from time to time;
48.8 where relevant, manage the data mapping between the Proagrica Network and Customer Equipment in accordance with timescales agreed between the parties;
48.9 provide Proagrica with access to the Customer’s premises where reasonably requested by Proagrica where required in order for Proagrica to provide the Services, including reasonable logical access to the Customer’s networks and systems, subject to compliance by Proagrica with Customer’s IT security policies from time to time;
48.10 nominate a representative with whom Proagrica can discuss service-related issues. Customer must advise Proagrica in writing of any changes to the Customer’s nominated contact(s);
48.11 ensure that end users are fully trained in functions and uses of relevant software.
49. Authorized Third Parties. Proagrica my from time to time consent to Customer’s VAN provider (or other third party) (“Authorized Third Party”) to access and use the Proagrica Network to enable them to provide services to the Customer, Proagrica will consent to such access by the VAN provider or Authorized Third Party on such terms and conditions which Proagrica will determine in its sole discretion. Any costs associated with such use and access by any VAN provider or Authorized Third Party will be for the account of the Customer and payable on demand by Customer to Proagrica.
50. Security. Proagrica will implement security measures which shall, as a minimum, include:
50.1 hosting of Proagrica hardware and software in a physically secure data center (which may include use of a reputable third party data center or cloud hosting provider);
50.2 secure development environments;
50.3 datacenter firewall and, where necessary, antivirus software;
50.4 internal routing and validation of email with no relaying (anti-spamming);
50.5 user web access driven by secure user name and password;
50.6 128-bit encryption and decryption of documents;
50.7 generation of public and private certificate keys.
51.1 A “Release” is a material update or change to the Proagrica Network. Proagrica will manage all Releases in accordance with its internal release management procedures.
51.2 Proagrica may from time to time issue emergency Releases in response to a problem which adversely affects the quality of service provided to one or more Customers. Proagrica may make emergency Releases without prior communication and will communicate the fact of the Release as soon as commercially possible following the Release.
52. Software. Customer acknowledges that the Software Terms forms part of this Agreement and that the Software Terms apply to any software Product (including but not limited to the Adapter, WebSupplier, and AIMS) which Proagrica provides to Customer to facilitate Customer’s use of the Proagrica Network. For the purposes of the Software Terms, Participants are Customer’s Authorized Users.
53. Content. Customer acknowledges that the Content Terms form part of this Agreement and the Content Terms apply to Content which Customer or its Participants load into the Proagrica Network. For the purposes of the Content Terms, Participants are Customer’s Authorized Users.
54. Professional Services. Customer acknowledges that the parties may agree for Proagrica to provide professional services in relation to the Proagrica Network from time to time, including but not limited to set-up and integration services. Such services are subject to the Professional Services Terms of the Agreement, and Proagrica is under no obligation to provide such services unless agreed in an Order Form.