Global Services End User Agreement

This Agreement was last updated on 18 August 2016 and is effective as between You and Us as at the date of You accepting this Agreement.

This Agreement governs your acquisition and use of our Services including if you register for a free trial for our Services.

By clicking a box indicating your acceptance of the terms of this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity and its Affiliates to these terms and conditions (in which case the terms You or Your will refer to the entity and its Affiliates). If you do not agree with these terms or do not have such authority, you must not accept this Agreement and must not use the Services.

You must not access the Services if You are Our direct competitor, except with prior written consent. You must not access the Services for any benchmarking or competitive purposes.

 

1. Definitions

Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control for the purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Agreement means this Global Services Agreement.

Fees means the fees payable as described in the Order Form for the provision of the Services in Your Subscription.

Global Services Website means http://obsrv.it or any URL notified to you by Us from time to time as the Global Services Website.

Hardware means the Observant hardware.

Malicious Code means code, files, scripts, agents or programs intended to do harm, including, for example viruses, worms, time bombs and Trojan horses.

Minimum Period means one calendar month.

Observant Acceptable Use Policy means the Observant Acceptable Use Policy located at http://observant.net/policies/

Order Form means an ordering document in whatsoever form (including digital, online and hard copy) specifying the Services to be provided hereunder and that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, you confirm that Your Affiliates and Users agree to be bound by the terms of this Agreement as if they were original parties hereto.

Observant Privacy Policy means the Observant Privacy Policy located at http://observant.net/policies

Observant Website means http://www.observant.net

OpenLink Partner means an entity which has entered into an OpenLink Agreement with Observant in order to access ObservantÕs Application Programming Interface (API) and thereby provide services to end users.

OpenLink Services means services offered or provided by an OpenLink Partner to You.

Purchased Services means Services that You or Your Affiliate purchase under an Order Form as distinguished from those provided pursuant to a free trial.

Services means the products and services that are ordered by You under a free trial or an Order Form and made available online by Us.

User means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom a username and password has been supplied.

We, Us or Our means the relevant Observant entity as set out in Clause 16 to this Agreement.

You or Your means you personally as well as the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

Your Data means electronic data and information submitted by You in respect of the Services or collected or processed for you in respect of Services.

2. Services

2.1 This Agreement commences on the first day on which the Services are provided to You and continues until all subscriptions hereunder have expired or have been terminated.

2.2 For the term of this Agreement, in consideration for payment of the Fees and on condition that You comply with the terms of this Agreement, We:

(a) will use reasonable efforts to provide to You the Services in Your Subscription; and

(b) grant to You and any Users and You accept, a limited, non-exclusive, non-assignable licence to access and use the Global Services Website for the purposes of receiving the Services in Your Subscription.

3. Subscription

3.1 The Services to be provided under this Agreement comprise those Services which have been selected by You as part of Your Subscription.

3.2 You can review at any time the Services in Your Subscription by logging into Your account on the Global Services Website.

3.3 You may change the Services in Your Subscription using the process described on the Global Services Website. Your new Services (and any corresponding changes to your Fees) will take effect on the first day of the month after the request.

3.4 You agree that Your purchases are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Us regarding future functionality or features.

4. Fees

4.1 On and from the first day on which the Services are provided to You, You must pay the Fees specified in the relevant Order Form(s).

4.2 You will provide Us with valid and updated credit card information, and authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s).

4.3 Unless otherwise stated in writing by Us, the Fees are payable for the Minimum Period in advance, and are not refundable. Quantities or Services purchased cannot be decreased during the relevant subscription term. We may change the amounts or way that Fees are structured at any time with 30 days notice to You and You may elect to terminate the agreement in accordance with clause 15 if you do not agree with the change.

4.4 Unless otherwise stated in writing, all amounts payable under this Agreement are exclusive of all applicable taxes.

4.5 If any invoiced amount is not received by Us by the due date, then without limiting our rights or remedies, such amount may accrue late interest at a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law and we may condition future subscription renewals and Order Forms on stricter payment terms. We may appoint a collection agency to collect any outstanding debts. You indemnify Us in relation to any costs incurred in collecting overdue fees under this Agreement.

4.6 If any amount owing by You under this agreement is 10 or more days overdue, We may, without limiting our other rights or remedies, accelerate Your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full.

4.7 We may charge a fee for costs incurred in connection with credit card "Chargebacks", credit card fraud and other instances of customer payments being reversed.

5. Your Co-operation and Responsibilities

5.1 You acknowledge that You may be provided a username and password in order to access the Global Services Website and agree that You should not share that username or password with any other individual and in any case You are solely responsible for any actions undertaken using that username and password. You are responsible for User's compliance with this Agreement. You must use all reasonable efforts to prevent unauthorized access to or use of Services.

5.2 You are responsible for the accuracy, quality and legality of Your Data and the means by which You acquired it.

5.3 You must:

(a) provide Us with such co-operation as is reasonably requested in order to provide the Services, including by keeping Your personal information up-to-date; and

(b) perform all obligations assigned to You under this Agreement.

(c) use Services only in accordance with applicable laws and government regulations and all guidelines provided by Us.

5.4 We will only contact You by email and You are solely responsible for receipt of correspondence sent to You.

6. Acceptable Use and Privacy Policy

6.1 You acknowledge and agree to comply with the Observant Acceptable Use Policy. The Acceptable Use Policy forms part of this Agreement as if set out here in full.

6.2 You acknowledge and agree to comply with the Observant Privacy Policy. The Observant Privacy Policy forms part of this Agreement as if set out here in full.

 

7. Limitation on Scope of Licence

7.1 Unless otherwise expressly permitted in this Agreement, to the maximum extent permitted by applicable law You must not, nor procure or assist any third party to:

(a) copy, reproduce, transmit or make available to the public the Observant Website or the Global Services Website or any part of either;

(b) reverse engineer, decompile or modify the Services or any part thereof;

(c) use the Services in connection with any hardware other than the Hardware;

(d) other than as described on the Global Services Website, integrate or attempt to integrate the Services with other software or hardware;

(e) access the data recorded and or stored in respect of the Services other than as expressly described on the Observant Website;

(f) use the Services in any way which is prohibited by law or which infringes the rights of any third party;

(g) unless otherwise agreed by us in writing, rent, lease or lend the Services or otherwise make the Services available to any third party;

(h) use the Services for any purpose for which it was not intended, including in medical, military or mission critical applications.

(i) use a Service to store or transmit malicious code;

(j) interfere with or disrupt the integrity or performance of any Service;

(k) attempt to gain unauthorized access to any Service or related systems or networks;

(l) frame or mirror any part of the Service apart for your own internal business purposes as permitted by Us; or

(m) access any Service to build or allow the building of a competitive product or service.

8. Back-up of Data

8.1 You acknowledge and agree that whilst we do routinely back-up data, we can not guarantee that any particular data element will be captured by such back-ups. Consequently, You should regularly use the CSV download option to obtain copies of any data that You consider to be highly valuable.

9. Third Party Components and Open Source Software

9.1 The Global Services Website incorporates various third party and open source software modules. Those components are covered by the additional terms and conditions set out in the third party components and open source software section of the Global Services Website.

10. Warranties or Representations

10.1 Each party represents and warrants that it has validly entered into this Agreement and has the legal power to do so.

10.2 OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT WE (OR ANY PERSON ACTING ON BEHALF OF US) HAVE NOT MADE ANY WARRANTY OR REPRESENTATION THAT THE SERVICES OR ANY USE OF YOUR DATA BY A THIRD PARTY (INCLUDING AN OPENLINK PARTNER) WILL BE FIT FOR ANY PARTICULAR PURPOSE, OPERATION OF SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT USE OF THE GLOBAL SERVICES WEBSITE WILL NOT INFRINGE THE RIGHTS OF ANY THIRD PARTY.

10.3 YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE".

10.4 All terms and warranties which might otherwise be implied by any legislation, the common law, equity, trade, custom or usage or otherwise into this Agreement, are expressly excluded to the maximum extent permitted by law. Where legislation implies into this Agreement any term or warranty that cannot lawfully be excluded, that term or warranty is included but Our liability in respect of a breach of that term or warranty is, at Our option, limited to any one or more of the following:

(a) if the breach relates to goods:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of such goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired; and

(b) if the breach relates to services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

11. Limitation of Liability and Indemnification

11.1 To the maximum extent permitted by applicable law, We are not liable for any direct, indirect, consequential, special, punitive or exemplary losses or damages of any kind (including, without limitation, loss of use, loss of profit, loss of corruption of data, business interruption or indirect costs) suffered by You arising from, as a result of, or otherwise in connection with, Your use of the Observant Global Website, any third party use of Your Data (including use by an OpenLink Partner), reliance on the results produced by the Global Services Website or termination of this Agreement.

11.2 You must indemnify, keep indemnified and hold Us, our directors, officers, employees, agents and contractors harmless from all and any claims arising from, as a result of, or otherwise in connection with, the Global Services Website, any third party use of Your Data (including use by an OpenLink Partner) and Your use of the Services.

11.3 The limitations and exclusions in this clause 11 apply to any loss, damage or claim whether based in contract (including under any indemnity or for breach of any warranty), tort (including negligence), under statute or any other legal basis.

12. Data, Confidentiality and Intellectual Property

12.1 All Data you create, upload or generate in respect of your use of the Services is owned by you and is available for you to access at any time. You hereby grant Us an irrevocable, worldwide, non-exclusive, royalty free license to use such Data for the purposes of (a) managing the data on your behalf, and (b) sharing the data only with parties you have specifically authorized Us to share the data with (for example in accordance with the Open Ag Data Alliance standards - http://openag.io).

12.2 You agree to keep all non-public information received from Us strictly confidential and not disclose it to any third person for any reason.

12.3 The restrictions contained in clause 12.2 do not apply to:

(a) any Confidential Information which enters the public domain other than as a result of any breach of confidence by You or Your employees or agents;

(b) the disclosure of any Confidential Information to the extent required by a court of competent jurisdiction, governmental body or applicable regulatory authority under law, provided that You use reasonable endeavours to give Us as much prior notice of such disclosure as is reasonably practicable; or

(c) Your use or disclosure of Confidential Information in accordance with rights lawfully granted to You by a third party prior to entering into this Agreement.

12.4 Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our / their right, title and interest in and to the Services, including all of Our / their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. Nothing in this Agreement transfers to You any intellectual property rights owned by Us. All intellectual property rights in anything we produce in connection with the Services or the Global Services Website are and will remain owned by Us.

13. Free trial

13.1 You may register on our website for a free trial and if you do, We will make your chosen Free Trial Services available to you on a trial basis and free of charge until the earlier of (a) the start date of any Purchased Service subscription ordered by You or (b) the end of the free trial period. Any additional terms or conditions that appear on the Free Trial registration page form part of this agreement and are incorporated herein by reference.

13.2 Please note that any data or customisations that You make during your Free Trial will be permanently lost unless you purchase a Subscription to the same Services as those covered by the Free Trial. You must export your Data before the end of the trial period if you do not want purchase a Subscription and you do not want the Data to be permanently lost.

13.3 Irrespective of any other clause in this Agreement, Free Services are provided 'AS IS' without any warranty during the Free Trial period.

14. OpenLink Services

9.1 You may elect to use one or more OpenLink Services by following the prompts provided to you by the relevant OpenLink Partner(s) and authorising an agreed level of access to Your Data by the OpenLink Partner. Once You have given such access, then the portion of Your Data for which access has been granted will be freely supplied to the OpenLink partner to use as agreed by You provided that such use complies with this Agreement, all applicable laws and ObservantÕs Privacy Policy.

15. Changes to the Terms of the Agreement

15.1 We may change the terms of the Agreement either by obtaining Your consent or by giving You notice of the change.

15.2 If We do not obtain Your consent to a change, the period of notice required to be given depends on the nature of the change. If:

(a) the change will benefit You or have a neutral impact on You, We may make the change without giving You advance notice;

(b) the change is required to comply with any Law or lawful requirement of any regulatory body, to preserve or safeguard the security, performance or integrity of any network or system We use to provide services to Our customers or to maintain any accreditation We are required to have at Law to perform particular services, We will give You a reasonable period of notice not exceeding 3 days, by publishing a revised version of the Agreement on the Observant Website and, if You have provided us with Your contact details, sending You an email describing the change; and

(c) for all other changes, We will also give You at least 30 days' notice prior to the change taking effect by publishing a revised version of the Agreement on the Observant Website and, if You have provided Us with Your contact details, sending You an email describing the change.

16. Termination

16.1 The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.

16.2 We may terminate this Agreement:

(a) immediately on notice to You for Your material breach of this Agreement (including a failure to pay the Fees due each month); or where We are no longer permitted to make the Global Services Website available to You; or

(b) by giving You 30 days prior written notice for any reason whatsoever.

16.3 You may terminate:

(a) a Service, provided that You have paid for the full amount due for the Minimum Period; or

(b) Your Subscription provided that You have paid for the full amount due for each Minimum Period for each Service in Your Subscription, by giving Us 30 days prior written notice.

16.4 On termination for any reason whatsoever all outstanding amounts (including without limitation early termination or cancellation fees) become immediately due and payable to us.

16.5 In the event any dispute arises between the parties with respect to the interpretation or performance of this Software Licence, such dispute shall be amicably settled by the management of the parties and within 14 days of written Notice from either party.

17. Contracting parties, Notices

17.1 Who You are contracting with under this Agreement, who you should direct Notices to, the law that will apply to the Agreement and the courts having jurisdiction depend on where you are domiciled as set out below:

Where you are domiciled

Contracting entity

Notices should be sent to

Governing law

Courts having exclusive jurisdiction

North America

Observant

Legal Department
Observant, Inc.
4630 Northgate Blvd. #160,
Sacramento, CA 95834

California, USA

San Jose, CA, USA

Australia

Observant

The Legal Department
Observant
77 Argyle Street
Fitzroy, Victoria 3065
Australia

Victoria, Australia

Victoria, Australia

All Other Locations

Observant

The Legal Department
Observant
77 Argyle Street
Fitzroy, Victoria 3065
Australia

Victoria, Australia

Victoria, Australia

17.2 Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above

17.3 Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided that email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You will in the first instance be addressed by email to the relevant contact designated by You.

18. Other Terms

18.1 Clauses 5, 7, 9, 10, 11, 12 and 15 survive termination of this Agreement.

18.2 The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.

18.3 This Agreement and any documents referred to in, or executed in connection with it, contains the entire agreement between the parties with respect to its subject matter and supersedes all other representations, negotiations, arrangements, understandings or agreements and other communications. Each party warrants that it has not entered into this Agreement relying on any representations made by or on behalf of the other, other than those expressly made in this Agreement. This Agreement may be executed in any number of counterparts, and all counterparts taken together constitute one document.

18.4 This Agreement shall be binding upon and inure to the benefit of the successors of the parties but shall not be assignable by You without Our prior written consent (such consent not to be unreasonably withheld). We may assign part or all of our rights and / or obligations under this agreement provided that we give You reasonable prior notice.

18.5 Each party must, whenever requested by another party, promptly do, or arrange for others to do, all things reasonably required to give full effect to the provisions of this Agreement and the transactions contemplated by it.

18.6 No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.

18.7 If a provision of this Agreement is invalid or unenforceable in a jurisdiction: (a) it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and (b) that fact does not affect the validity or enforceability of: (i) that provision in another jurisdiction; or (ii) the remaining provisions.

18.8 The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or other such relationship between the parties.