Effective from April 27, 2023 THESE TERMS OF SERVICE (“AGREEMENT”) DESCRIBE THE TERMS AND CONDITIONS ON WHICH AGBLOX, INC. (“AGBLOX” OR “WE” or “US”) PROVIDES ITS SERVICES TO ANY CUSTOMER INTEGRATING AND ACCESSING AGBLOX’S PROPRIETARY SERVICES, PLATFORMS, MODELS, BOTS, AND INTERFACES (THE “SERVICE” OR “SERVICES”), OR OTHERWISE RECEIVING THE BENEFIT OF AGBLOX’S SERVICES (THE “CUSTOMER” or “YOU/YOUR”). SUCH SERVICES MAY BE PROVIDED AT LEAST IN PART USING MEETINGMAP.COM, ICLERK.AI, OR OTHER AGBLOX WEBSITE (THE “WEBSITE” OR “WEBSITES”).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY.
YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH AGBLOX, ANDTHESE TERMS ARE A LEGAL CONTRACT BETWEEN AGBLOX AND YOU. IN CONSIDERATION OF BEING PERMITTED TO USE OUR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS, AS AMENDED FROM TIME TO TIME. IF YOU DO NOT AGREE TO THESE TERMS IN WHOLE OR IN PART, DO NOT COMPLETE THE SUBSCRIPTION PROCESS BY CLICKING “I AGREE”; YOU ARE NOT PERMITTED TO USE OUR SERVICES.
IF CUSTOMER OR THE THIRD-PARTY ON BEHALF OF WHOM CUSTOMER IS ACTING (ALSO, A “CUSTOMER”) AND AGBLOX HAVE ALREADY ENTERED A SEPARATE AGREEMENT GOVERNING PROVISION OF AGBLOX’S SERVICE OR SERVICES THAT HAS BEEN SIGNED ON BEHALF OF BOTH AGBLOX AND CUSTOMER, THEN THAT OTHER AGREEMENT SHALL APPLY IN PLACE OF THE TERMS HEREIN, NOTWITHSTANDING ANY CHECKBOX OR ELECTRONIC ACCEPTANCE REQUIRED IN ORDER TO USE THE SERVICE.
1. Provision of Service.
1(a). Provision Generally. During the Term as defined in (Section 2(a)) AgBlox will provide Customer with access to AgBlox’s Services in accordance with the terms and conditions of this Agreement. In order to access and use the Services, Customer is responsible at its own expense for obtaining its own Internet access, and any hardware and software required therefor. The use of any registration-related information you provide us and the information we collect about you in connection with your subscription to, and use of, the Services is governed by our Privacy Policy, available at iclerk.ai
1(b). Grant of Rights. Subject to the terms and conditions of this Agreement, AgBlox hereby grants to Customer a limited, non-exclusive, non-transferable right to access and use the Service, solely for Customer’s personal or internal business purposes during the Term. All rights not expressly granted to Customer are reserved by AgBlox and its licensors. There are no implied rights.
1(c). Eligibility Requirements. By entering into this Agreement, Customer represents and warrants that Customer meets the following minimum requirements (the “Eligibility Requirements”): (i) Customer is at least 18 years old and has the legal capacity to be bound by this Agreement; (ii) Customer has the necessary rights and authority to enter into and perform the obligations required of Customer under this Agreement, including entering into this Agreement on behalf of and binding a third-party, if so applicable; (iii) All information which Customer provides, including but not limited to information provided during registration, information about Customer and any third-party business, and all relevant payment information, is within Customer’s right to use, and is and will remain accurate, complete and current; (iv) Customer is in compliance with all applicable laws, including but not limited to all applicable laws and regulations pertaining to data privacy, regardless of Customer location; (v) None of the Customer Data (as defined herein) will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic or obscene content or material; and (vi) Customer will provide AgBlox with any information, records, or materials that we request to verify Customer’s compliance with the eligibility requirements set forth above and the terms and conditions of this Agreement.
1(d). Restrictions. Customer shall not (and shall not allow any third party to): (i) use the Service for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Service, or for any other purpose not expressly permitted herein, or otherwise without the permission of AgBlox; (ii) permit any third party to access or use the Service except as envisioned by the Service in its normal operation or specified herein; (iii) sell, distribute, rent, lease, post, link, disclose or provide access to the Service, in any way, directly or indirectly, to any third party; (iv) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Service; (v) use any unauthorized robot, spider, scraper, crawler, or other automated means to access the Service, or engage in any scraping, crawling, data-mining, harvesting, data aggregating or indexing of the Service or (vi) use the Service in any manner that not permitted by AgBlox. Customer shall keep all passwords and any API Keys provided to it safe and secure, and shall be responsible for all use of the Service using passwords or API keys issued to Customer. Customer shall notify AgBlox immediately of any actual or suspected unauthorized use of its passwords or API keys for the Service. Without limiting any of its other rights or remedies, AgBlox reserves the right to suspend access to the Service if AgBlox reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement. In such an instance, AgBlox shall provide Customer prompt written notice of such suspension.
1(e). Customer Cooperation. Customer shall: (i) reasonably cooperate with AgBlox in all matters relating to the Service; (ii) respond promptly to any AgBlox request to provide information, approvals, authorizations or decisions that are reasonably necessary for AgBlox to provide the Service in accordance with this Agreement; and (iii) provide such Customer materials or information as AgBlox may reasonably request to provide the Service and ensure that such materials or information are complete and accurate in all material respects.
1(f). Customer Engagement. As part of providing the Services, AgBlox may engage with Customer for the purpose of improving and updating such Services, providing instructional content on the use of such Services, and communicating promotional materials. By opting in to receive marketing communications, Customer agrees to receive emails, newsletters, promotions, other marketing materials, and information about improvements and updates from AgBlox related to our Services. AgBlox will use reasonable efforts to ensure that any such communications are relevant and useful to Customer. Customer may opt out of these communications at any time by following the instructions provided in the communication or by contacting AgBlox customer support.
2. Term and Termination.
2(a). Term, Termination and Automatic Renewal. The term of this Agreement shall commence upon Customer’s subscription to the Service and, unless earlier terminated as set forth herein, shall continue for the period of one month (the “Initial Term”). The Customer may terminate this Agreement upon 30 days’ written notice to AgBlox. AgBlox reserves the right to terminate this Agreement at any time upon written notice to the Customer and shall repay to Customer any pro-rated portion of the fees paid to it in connection with the Services that the Customer would have received but for AgBlox’s cancellation. In the event that the Agreement is not terminated as set forth herein it shall continue to automatically renew for the length of the Initial Term (a “Renewal Term”). The Initial Term and any Renewal Term is referred to herein as a “Subscription Term”, and the Subscription Terms are referred to collectively as the “Term.”
2(b). Termination for Breach. Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and does not cure such breach within 30 days after written notice thereof.
2(c). Effects of Termination; Survival. Upon any termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate and AgBlox shall no longer provide access to the Service to Customer, and (b) Customer shall cease using the Service. Any obligations that have accrued prior to termination shall survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive termination of this Agreement: Sections 2 through 11.
3. Use of Website.
3(a). License to Use Meetingmap.com and iClerk.ai. Subject to the terms and conditions of this Agreement, AgBlox hereby grants to Customer a limited, non-exclusive, non-transferable license to use the Websites. This license does not include any right of resale or further distribution of any content included on the Websites (the “Website Content”). Except for this license granted to Customer, AgBlox hereby retains all right, title, and interest in and to the Websites, including all related intellectual property rights. The Websites are protected by applicable intellectual property laws, including United States copyright law and international treaties. Except as otherwise explicitly provided in this Agreement, or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Websites; (b) rent, lease, or sublicense access to the Websites; nor (c) circumvent or disable any security or technological features or measures of the Websites.
3(b). Access and Modifications to the Websites. AgBlox reserves the right to modify or discontinue, temporarily or permanently, all or a part of the Websites without notice. AgBlox shall not be liable to Customer or to any third party for any modification, suspension, or discontinuance of the Websites. AgBlox also reserves the right, in its sole discretion, to restrict, suspend, or terminate access to the Websites at any time, for any or no reason, with or without prior notice, and without liability. Customer hereby represents and warrants that Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
3(c). Restrictions. Customer must comply with all applicable laws, including U.S. data privacy and export control laws, when using the Websites. Except as may be expressly permitted by applicable law or authorized by AgBlox in writing, Customer will not, and will not permit anyone else, to: (i) store, copy, modify, distribute, or resell any of the information; audio, visual, and audiovisual works; or other Website Content made available by AgBlox on Meetingmap.com, iClerk.ai, or any other Website provided by AgBlox, or compile or collect any Website Content as part of a database or other work; (ii) use any automated tool (e.g., robots, spiders) to use the Website or store, copy, modify, distribute, or resell any Website Content; (iii) rent, lease, or sublicense your access to the Websites to another person; (iv) use the Websites or Website Content for any purpose except for Customer’s own personal use or internal business use; (v) circumvent or disable any digital rights management, usage rules, or other security features of the Websites; (vi) use the Websites in a manner that threatens the integrity, performance, or availability of the Websites; or (vii) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Websites or Website Content.
3(d). Links and Third-Party Content. The Websites may contain links to third party products, services, and websites, and AgBlox may provide Customer with the ability to send requests to such third parties, or access their products, services, and websites. By initiating a request to a third party through the Websites, Customer consents to the disclosure of the request information to third party service providers. AgBlox exercises no control over the third-party products, services, and websites. AgBlox is not responsible for their performance, does not endorse them, and is not responsible or liable for any content, advertising, or other materials available through the third-party products, services, and websites. AgBlox is not responsible or liable, directly or indirectly, for any damage or loss caused to Customer by Customer’s use of or reliance on any goods or services available through the third party products, services, and websites.
3(e). Submissions. The Websites may include sections where Customer and other third parties are permitted to post or submit information thereto, such as for example via a blog or in response to articles or other writings posted thereon. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed or made available by third parties on the Websites are those of the respective authors or producers and not of AgBlox or its employees. Customer expressly agrees that AgBlox is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication Customer may provide (each, a "Submission"), without further compensation, acknowledgement or payment to Customer for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Websites and our products and services. Furthermore, by posting any Submission on the Websites, submitting information to AgBlox, or in responding to questionnaires, you grant us a perpetual, non-exclusive, fully paid, royalty-free, irrevocable, sub-licensable, worldwide license and right to display, use, perform, reproduce, modify, distribute and create derivative works of the Submission or information submitted in any media, software, or technology of any kind now existing or developed in the future. By posting or providing a Submission or information, Customer represents and warrants that: (i) Customer owns all right title and interest in Customer’s Submissions or otherwise have the right to grant the license set forth herein, and (ii) the posting of Customer’s Submissions on or through the Websites does not (and will not) violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. Customer agrees to pay all royalties, license fees and any other monies owing to any person by reason of any Submission posted by Customer on or through the Websites. Information that Customer publishes using the Websites may be made viewable by other visitors. If Customer shares or publishes Customer’s contact information through the Websites, including for instance, in connection with a service request, Customer acknowledges that this information will be accessible by third parties.
3(f). Usage Restrictions. Customer is solely responsible for any content and other material that Customer submits, publishes or displays on the Websites or transmits to third parties. Customer will not use the Websites to: (i) upload, post, email, or otherwise transmit any information that contains personally identifying information, or is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm AgBlox or third parties in any way; (iii) impersonate any person or entity, or otherwise misrepresent Customer’s affiliation with a person or entity; (iv) upload, post, email, or otherwise transmit any information that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (v) upload, post, email or otherwise transmit any information that infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (vi) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other forms of solicitation; (vii) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (viii) interfere with or disrupt the Websites or servers or networks connected to the Websites, or disobey any requirements, procedures, policies or regulations of networks connected to the Websites; (ix) intentionally or unintentionally violate any applicable local, state, national or international law or regulation; (x) "stalk" or otherwise harass another; (xi) collect or store personal data about other users.
4. Customer Data.
4(a). Data Generally. All data and information which the Customer inputs and integrates into and with the Service (the “Customer Data”) is stored in a private and secure manner, and will not be used by AgBlox except as permitted herein. Customer hereby grants to AgBlox a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce and manipulate the Customer Data solely in connection with providing the Service to Customer, and improving, developing and marketing the Service (provided that AgBlox may only use anonymized and aggregated Customer Data to improve, develop and market the Services). AgBlox may analyze Customer Data, and data of other customers, to create aggregated and anonymized statistics or data that do not identify Customer or any individual, household, user, browser, or device and AgBlox may during and after the Term use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. AgBlox shall operate the Service in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections.
4(b). Additional Customer Responsibilities. Customer is solely responsible for all Customer Data. AgBlox does not guarantee the accuracy, integrity or quality of Customer Data. Customer shall not: (i) upload or otherwise make available to AgBlox any Customer Data that is unlawful or that violates the rights of any third parties; (ii) upload or otherwise make available to AgBlox any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (iii) use, upload or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (iv) upload or otherwise make available to AgBlox any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (v) interfere with or disrupt the Service or servers or networks connected to the Service; (vi) upload or otherwise make available to AgBlox any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder, or constitutes similarly protected information under any applicable state, rule or regulation; or (vii) violate any applicable law, rule or regulation, including those regarding the export of technical data.
5. AgBlox Technology; Ownership.
5(a). Technology. In connection with providing the Service, AgBlox and its licensors shall operate and support the hosted environment used by AgBlox to provide the Service, including the AgBlox Technology (as defined below), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information so used by AgBlox. As used herein, “AgBlox Technology” means all of AgBlox’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information), regardless of whether such proprietary technology has been made available to Customer by AgBlox in providing the Service.
5(b). Ownership. Customer acknowledges and agrees that as between AgBlox and Customer, all right, title and interest in and to the Service (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information other than Customer Data) and other content on or made available through the Service, other than Customer Data), and the AgBlox Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by AgBlox or its licensors or assignees, and this Agreement in no way conveys any right, title or interest in the Service or the AgBlox Technology other than a limited right to use the Service in accordance with this Agreement. AgBlox acknowledges and agrees that as between Customer and AgBlox, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions herein. No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos. Customer shall not remove any AgBlox trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service. AgBlox acknowledges and agrees that as between Customer and AgBlox, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions set forth and agreed to herein.
6. Fees; Payments; Taxes.
6(a). Fees. In consideration of the provision of the Services, Customer shall pay AgBlox the applicable fees pursuant to the fee schedule and type of AgBlox service or service plan chosen by Customer, and make such payment in accordance with the instructions and schedule provided for by AgBlox.
6(b). Increases. AgBlox reserves the right to increase its fees at any time. AgBlox will endeavor to provide 30 days’ notice to Customer, but Customer understands that no advance notice is necessary. If Customer objects to the fee increase, Customer may terminate the Service by written notice within 30 days of the fee increase. If Customer does not exercise its right of termination during such period, Customer will be deemed to have accepted the increased fees.
6(c). Taxes. All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer’s access to the Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on AgBlox’s income), which may be invoiced by AgBlox from time-to-time where necessary to do so.
6(d). Late Payments. Customer shall pay interest on all late payments at the lesser of (a) 2% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse AgBlox for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
7. Representations and Warranties; Disclaimer.
7(a). General Representations and Warranties. Each Party hereby represents and warrants to the other Party that: (i) if such Party is a corporation, company or other entity (as applicable), such entity is duly organized, validly existing and in good standing in its jurisdiction of organization; (ii) such Party’s execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part or, if such Party is an individual, such Party has legal capacity to enter into this Agreement; (iii) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such Party enforceable against such Party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; and (iv) its execution, delivery and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such Party is subject.
7(b). AgBlox Limited Warranty. AgBlox further represents and warrants that (i) it will provide the Service in a competent and workmanlike manner; and (ii) it owns or otherwise has sufficient rights (including without limitation all intellectual property rights thereto) to grant the licenses recited above to Customer under this Agreement. AgBlox does not warrant that it will be able to correct all reported defects or that use of the Service will be uninterrupted or error free. AgBlox makes no warranty regarding features or services provided by any third parties. AgBlox retains the right to modify its services and the AgBlox Technology, at its sole discretion. Customer’s sole remedy for AgBlox’s breach of the warranty in this paragraph shall be that AgBlox shall remedy the applicable error, or if AgBlox is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Service during the six (6) month period leading up to when the breach of warranty occurred.
7(c). Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7(a)-7(b) ABOVE, AGBLOX MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, (B) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
7(d). Further Disclaimer. CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS HOSTED BY A THIRD-PARTY HOSTING PROVIDER (THE “HOSTING PROVIDER”) AND USES THIRD PARTY SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, HOSTED WEB SERVICES, WEB SERVER PROGRAMS FOR DELIVERY OF THE SERVICES (THE “HOSTING PROVIDER SERVICES”). ADDITIONALLY, AGBLOX MAY USE THIRD PARTIES TO HELP RECEIVE PAYMENTS (“PAYMENT PROCESSOR”). AGBLOX MAY CHANGE ITS HOSTING PROVIDER AND PAYMENT PROCESSOR AT ANY TIME. YOUR USE OF THE SERVICE IS SUBJECT TO ANY RESTRICTIONS IMPOSED BY THE HOSTING PROVIDER AND THE PAYMENT PROCESSOR, AS APPLICABLE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AGBLOX SHALL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS OR ERRORS WITH THE SERVICE TO THE EXTENT CAUSED BY THE HOSTING PROVIDER OR PAYMENT PROCESSOR. CUSTOMER ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE SERVICE REFLECT THE FACT THAT AGBLOX IS NOT RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THE HOSTING PROVIDER OR PAYMENT PROCESSOR.
8. Limitations of Liability.
8(a). Damages Cap. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, AGBLOX’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO AGBLOX DURING THE FOUR (4) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT.
8(b). Disclaimer of Indirect Damages. EXCEPT FOR (A) CUSTOMER’S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; (B) ITS INDEMNIFICATION OBLIGATIONS; AND (C) ITS BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS OR RESTRICTIONS HEREIN (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON USE OF THE SERVICE), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
8(c). Basis of the Bargain. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT AGBLOX HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
9. Indemnification.
9(a). AgBlox Indemnification. AgBlox shall defend, indemnify and hold harmless Customer and its directors, officers, and employees (“Customer Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent the Service infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right (excluding patents).
9(b). Customer Indemnification. Customer shall defend, indemnify and hold harmless AgBlox and its directors, officers, employees, agents and providers (“AgBlox Indemnified Parties”) from and against any Claims based on the Customer Data and to the extent that such Claim does not arise out of any action of AgBlox in the manipulating and transmitting the Customer Data in a manner not related to the provision of the Services.
9(c). Indemnification Process. As conditions of the indemnification obligations in Sections 9(a)-9(b) above: (i) the applicable Customer Indemnified Party or AgBlox Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (ii) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim, and (ii) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).
9(d). Exclusions. AgBlox’s obligations in Section 9(a) above shall not apply to any Claim to the extent arising from or relating to (i) misuse of the Service not strictly in accordance with the documentation therefor, AgBlox’s instructions, and this Agreement; (ii) any modification, alteration or conversion of the Service not created or previously approved in writing by AgBlox; (iii) any combination of the Service with any computer, hardware, software or service not provided by AgBlox; (iv) AgBlox’s compliance with specifications or other requirements of Customer; or (v) any third party data or Customer Data. If the Service is or may be subject to a Claim of Infringement described in Section 9(a) above, AgBlox may, at its cost and sole discretion: (a) obtain the right for Customer to continue using the Service as contemplated herein; (b) replace or modify the Service so that it becomes non-Infringing without substantially compromising its principal functions; or (c) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any pre-paid fees for the Service associated with the then-current Subscription Term. AgBlox’s obligations in this Section 9 shall be AgBlox’s sole obligations, and Customer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Service.
10. Confidentiality.
10(a). Definition. “Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a Party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (e) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (f) the Service and AgBlox Technology shall be deemed Confidential Information of AgBlox, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential; and (g) Customer Data shall be deemed Confidential Information of Customer.
10(b). General Obligations. Each Party agrees that it will, during the Term and thereafter, (i) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (ii) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (iii) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (iv) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (a) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order); provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (b) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).
10(c). Return or Destruction. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers, and (c) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
10(d). Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides AgBlox with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and AgBlox may use, disclose and exploit the Feedback in any manner it chooses. All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind.
11. Miscellaneous.
11(a). Compliance with Laws. Each Party shall comply with all laws, rules, regulations and ordinances applicable to its activities hereunder.
11(b). Assignment. Customer may not assign this Agreement, or assign any of its rights or delegate any of its obligations under this Agreement, without the prior written consent of AgBlox. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns. Notwithstanding the foregoing, AgBlox may assign this Agreement to any acquirer of all or substantially all of its assets as they relate to this Agreement.
11(c). Entire Agreement; Amendment. This Agreement, along with any Meetingmap subscription arrangement chosen by the Customer, contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto.
11(d). Notices. AgBlox may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account, and such notices shall be effective upon confirmation of transmission to Customer.
11(e). Force Majeure. AgBlox shall not be liable or responsible to Customer, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of AgBlox, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.
11(f). Publicity. AgBlox shall have the right to use Customer’s name and logo on client lists published on AgBlox’s website and in marketing materials. AgBlox may announce the relationship hereunder in a press release provided that AgBlox obtains Customer’s prior approval of the wording of the release. Such approval shall not be unreasonably withheld by Customer.
11(g). Choice of Law. This Agreement is and will be governed by and construed under the Federal Arbitration Act of the United States, applicable United States federal law, and the laws of the State of California, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
11(h)(1). Disputes; Arbitration. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Customer and AgBlox or its employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act of the United States and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
11(h)(2). There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
11(h)(3). Customer and AgBlox further agree as follows: (i) any claims brought by a party must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding; (ii) the arbitrator may not consolidate more than one person’s claims, may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief; (iii) in the event that Customer is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, AgBlox will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) AgBlox also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v)) the arbitrator will honor claims of privilege and privacy recognized at law; (vi) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law. Notwithstanding the foregoing (1) either Customer or AgBlox may bring an individual action in small claims court to the extent eligible, and (2) either Party may seek emergency equitable relief before the state or federal courts located in California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within California for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
11(i). Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
11(j). Waiver. No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11(k). Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction. 11(l). Headings; Interpretation. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive. 11(m). Contacting AgBlox. If you have any questions or concerns about the Websites or these Terms of Service, please send a thorough description by email to info@iclerk.ai
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