AgOS Licensing Agreement

 

 TERMS AND CONDITIONS FOR THE AGOS CLOUD SERVICE

1. DEFINITIONS. 

1.1 “Agreement” means the Support Terms and AgWorks Terms along with all terms contained or referenced in the applicable Proposal Form.

1.2 “AgWorks“ means AgWorks, Inc. a Washington Limited Liability Corporation

1.3 “AgWorks Terms” means these Terms and Conditions for the AgOS Cloud Service.

1.4 “Authorized Sites” means physical premises owned and controlled by Customer listed in an Proposal Form where Customer may use the AgOS Cloud Service.

1.5 “Authorized Users” means the number of Users for a particular Authorized Site that are permitted to concurrently use the AgOS Cloud Service as identified in an Proposal Form.

1.6 “Customer” means the individual or entity identified in the “Customer Name” row of the Customer information table in the Proposal Form that has consented to these AgWorks Terms by execution of the Proposal Form that references these AgWorks Terms.

1.7 “Documentation” means user manuals, instructions, and other documentation, whether in written or electronic form, that AgWorks generally provides to Customers of the AgOS Cloud Service.

1.8 “AgOS Cloud Service” means the AgOS software solution identified in the Proposal Form.

1.9 “Service Term” means the Service Term specified in the Proposal Form.

1.10 “Proposal Form” means the written order form entered into by AgWorks and Customer that describes the AgOS Cloud Service, contains specific terms and conditions applicable to the AgOS Cloud Service and which references these AgWorks Terms.

1.11 Support” means the maintenance and support services for the AgOS Cloud Service described in the Support Terms.

1.12 “Support Terms” means AgWork’s then-current standard Maintenance and Support Terms for AgOS Cloud Service located at http://agworks.net/agworks-support-plan/

1.13 “User” means an employee of Customer that is assigned to primarily work from a particular Authorized Site.

1.14 “API Addendum” means the form used to define what access to features and data, outside what the standard software platform offers will be granted.

Capitalized terms use but not defined within these AgWorks Terms will have the meanings assigned to them in the Proposal Form.

2. SERVICES 

2.1 Customer has ordered the AgOS Cloud Service selected by Customer in one or more Proposal Form(s) executed by the parties. All AgOS Cloud Service will be provided to Customer according to these AgWorks Terms and the Proposal Form.

2.2 In connection with AgWorks providing the AgOS Cloud Service, AgWorks may develop modifications to the AgWorks Cloud Service and/or new software programs (collectively, the “Developed Software”). AgWorks reserves all right, title, and interests in and to the Developed Software, including all intellectual property rights therein.

3. ACCESS TO the AgOS Cloud Service. 

3.1 Subject to the terms, conditions and limitations set forth in these AgWorks Terms, AgWorks grants Customer a personal, non-transferrable, non-exclusive, non-sublicensable license for Authorized Users to access and use the AgOS Cloud Service solely for Customer’s internal business purposes in accordance with the Agreement and Documentation. AgWorks will only provide access to the AgOS Service to those Authorized Users who have been provided a unique user identification name and password.

3.2 The AgOS Cloud Service, and all right, title and interest in and to the AgOS Cloud Service, including but not limited to all intellectual property rights therein, are and will remain the exclusive property of AgWorks and its licensors. Customer will have no claim of ownership or any intellectual property rights in the AgOS Cloud Service. No rights other than those specifically stated herein are granted to Customer. Customer will own all data specifically related to Customer’s use of AgOS Cloud Service (“Customer Data”). Customer hereby grants AgWorks the right to access and use the Customer Data for the purposes of providing the AgOS Cloud Service pursuant to these AgWorks Terms and for its own business purposes; provided, however, that use of the Customer Data for AgWorks’s business purposes will be limited as set forth in Section 6. 2

3.3 Customer and Users must not use the AgOS Cloud Service in any manner that is not described in the Documentation and must not license, sell, rent, lease, lend, transfer, outsource, act as a service bureau for, or otherwise provide access to the AgOS Cloud Service or utilize the AgOS Cloud Service for the benefit of any third party. In addition, Customer and Users may not use the AgOS Cloud Service in any manner that AgWorks reasonably believes is abusive or contrary to applicable law. Customer is responsible for the acts and omissions of its Users as if they were the acts and omissions of Customer. Rights of any Authorized User to utilize the AgOS Cloud Service cannot be shared or used by more than one individual. In addition, an Authorized User’s access information and privileges may not be transferred from one individual to another unless the original Authorized User no longer requires and is no longer permitted access to the AgOS Cloud Service, as a result of which that individual is no longer an Authorized User. Customer and Authorized Users will not remove, obscure, or alter AgWorks’ copyright notices, trademarks, other proprietary rights notices, or any other content of any kind appearing in the AgOS Cloud Service or Documentation. When using the AgOS Cloud Service, Customer must not and must ensure that Users do not, except as permitted by applicable law: (i) decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access the source code of the Services (except as expressly permitted by applicable law notwithstanding this limitation) or incorporate it into any other software or service; (ii) upload any Customer Data or any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (iii) infringe the intellectual property rights of any third party (including by uploading Customer Data to the AgOS Cloud Service); (iv) interfere with or disrupt the AgOS Cloud Service software, the AgWorks systems used to host the AgOS Cloud Service, other equipment or networks connected to the AgOS Cloud Service, or disobey any requirements, procedures, policies or regulations of networks connected to the AgOS Cloud Service made known to Customer; (v) license, sell, rent lease, lend, transfer sublicense, assign, outsource, act as a service bureau for, time-share with, or otherwise transfer or provide the AgOS Cloud Service to or utilize the AgOS Cloud Service for the benefit of any third party; (vi) provide, or make available, any links, hypertext (Universal Resource Locator (URL) address) or otherwise (other than a “bookmark” from a Web browser) to the AgOS Cloud Service, or any part thereof; (vii) circumvent the user authentication or security of the AgOS Cloud Service or any host, network, or account related thereto; (viii) use any application programming interface to access the AgOS Cloud Service other than those defined, licensed, and permitted in the “API Addendum”; (ix) mirror the Ag OS Cloud Service on any server; (x) make any use of the AgOS Cloud Service that violates any applicable local, state, national, international or foreign law; (xi) fail to use commercially reasonable efforts to prevent the unauthorized license, sale, transfer, lease, transmission, distribution or other disclosure of the AgOS Cloud Service, (xii) allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, Customer or Authorized Users for access to the AgOS Cloud Service or (xiii) extract any data from the AgOS Cloud Service other than through use of standard reporting features and functionality of AgOS Cloud Service made available within the user interface of the AgOS Cloud Service or via access granted, licensed, and permitted in standard “API Addendum”. If Customer desires to directly access and extract data stored within the AgOS Cloud Service through other means, Customer may contact AgWorks Sales at sales@agworks.net (or their sales representative directly) for more information regarding the requirements for and limitations on access. AgWorks does not have an obligation to permit access to or allow the extraction of data from the AgOS Cloud Service by other means; however, AgWorks will provide a defined set of “read-only” API endpoints for customers to access should they possess the technical capability; these endpoints are defined in the standard “API Addendum”. Customers may request access to additional API endpoints via contacting AgWorks Sales at sales@agworks.net (or their sales representative directly) which will then require Customer to execute additional licensing via additions to AgWorks standard “API Addendum” which contains the specific terms associated with the use of the tools and information and/or Customer’s rights to access and extract or manipulate data.

4. SERVICES AND DEVELOPMENT. 

4.1 Maintenance and Support. Provided that Customer is in compliance with all the terms and conditions of the Agreement and has paid all service fees owed to AgWorks, during the Service Term, AgWorks will provide Customer with Support in accordance with the Support Terms located at http://agworks.net/agworks-support-plan/

4.2 Pre-Release Software. If, during the Service Term, AgWorks provides Customer access to any evaluation or pre-release software (“Pre-release Software”), Customer is only permitted to use the software for 3

the limited evaluation period indicated by AgWorks by the number of Authorized Users indicated by AgWorks at a single Authorized Site solely for purposes of internal evaluation and testing and for providing feedback to AgWorks. If AgWorks delivers Customer software code for pre-release software in lieu of providing access on Customer’s servers, then Customer may install it on a single computer owned by Customer residing on Customer’s premises. Pre-release Software may contain errors and discrepancies and AgWorks is not obligated to fix any errors. The limitations in Section 3 will apply to all Pre-release Software. Customer further acknowledges that AgWorks is not obligated to commercially release Pre-release Software or any feature and that, nothing in this Agreement, entitles Customer to receive access to, a copy of, or license to any version of the Pre-release Software that is commercially released by AgWorks.

5. PAYMENTS. 

5.1 Customer will pay AgWorks the fees for the AgOS Cloud Service and any other services provided hereunder, in the amount as set forth in the applicable Proposal Form and API Addendum within 30 days of the date of invoice. All amounts that are prepaid in advance are non-refundable.

5.2 Upon the renewal of the then-current Service Term for AgOS Cloud Service for which renewal is permitted, AgWorks will have the right to unilaterally increase any prices specified in the Proposal Form or API Addendum to AgWorks’ then-current fees for the applicable AgOS Cloud Service based on the length of the Renewal Term. AgWorks will notify Customer of the increase prior to the date upon which Customer must notify AgWorks that it intends not to renew the Service Term and any increase will automatically become effective on the renewal date if renewed.

5.3 Customer will not have any right to withhold or reduce fees under this Agreement or set off any amount against fees owed.

5.4 A finance charge of 1.5% per month or the highest amount allowed by law, whichever is less, will be assessed on all payments that are past due. All payments will be made in United States Dollars.

5.5 Fees and other charges described in this Agreement, or in AgWorks’ most recent list of prices and conditions, do not include federal, state or local sales, foreign withholding, use, property, excise, service, or similar taxes (including, without limitation, any sales or value added taxes) (“Tax(es)”) now or hereafter levied, all of which are Customer’s responsibility. AgWorks, however, will be responsible for all taxes based upon its net income. With respect to state/local sales tax, direct pay permits or valid tax-exempt certificates must be provided to AgWorks prior to the execution of this Agreement. If AgWorks is required to pay Taxes, Customer will reimburse AgWorks. Customer hereby agrees to indemnify AgWorks for any Taxes and related costs, interest and penalties paid or payable by AgWorks.

6. USE OF CUSTOMER DATA. Customer’s information is proprietary to Customer. Except as required by applicable law, AgWorks will not disclose to any third party any information that it obtains from Customer or Authorized Users that is identifiable to Customer or to Authorized Users (“Identifiable Data”) without the written consent of Customer. Notwithstanding the foregoing, AgWorks may disclose information that is identifiable to Customer or to Authorized Users without the written consent of Customer to affiliates and to third parties who assist AgWorks with the operation of its business. Customer authorizes AgWorks to use data obtained from Customer and others for community data analysis provided that AgWorks uses commercially reasonable efforts to avoid revealing information identifiable to any person. AgWorks will not share Identifiable Data with any third party except pursuant to an agreement that limits use to provisions of services to AgWorks and its customers. AgWorks will comply with all applicable United States laws related to maintaining the security and privacy of personally identifiable information.

7. TERM AND TERMINATION. 

7.1 Term. This Agreement will be effective on the effective date in the applicable Proposal Form and will continue for the Service Term set forth in the Proposal Form, unless terminated earlier by either party as set forth in this Section (“Term”). If the parties have executed more than one Proposal Form for AgOS Cloud Service, the parties may terminate an individual Proposal Form without terminating other Proposal Forms.

7.2 Termination by Either Party. Either party may terminate this Agreement and any or all Proposal Forms upon not less than 30 days prior written notice to the other party of any material breach of this Agreement by the other party, provided that the other party has not cured the material breach within the 30 day notice period.

7.3 Termination by AgWorks. AgWorks may terminate this Agreement and any or all Proposal Forms immediately in the event of insolvency affecting Customer under which Customer (i) is unable to pay its debts 4

when due, (ii) makes any assignment or composition for the benefit of creditors, (iii) has appointed or suffers the appointment of a receiver or trustee for its business, property or assets, (iv) files or has filed against it any petition under the bankruptcy or insolvency laws of any jurisdiction, or (v) is adjudicated bankrupt or insolvent.

7.4 In the event of termination, all rights to access the AgOS Cloud Service automatically terminates and Customer agrees to immediately cease all use of the AgOS Cloud Service. The following Sections of this Agreement will survive termination: 3, 5, 6, 7.4, and 8-21.

8. DISCLAIMER OF WARRANTIES.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE AGOS CLOUD SERVICE, PRE-RELEASE SOFTWARE, DOCUMENTATION, AND SUPPORT ARE PROVIDED AS IS AND WITH ALL FAULTS, AND AGWORKS AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE AGOS CLOUD SERVICE, PRERELEASE SOFTWARE, DOCUMENTATION OR SUPPORT, LACK OF VIRUSES OR BUGS, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS. IN PARTICULAR, AGWORKS DOES NOT WARRANT THAT THE OPERATION OF THE AGOS CLOUD SERVICE OR PRERELEASE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK ARISING OUT OF THE USE, PERFORMANCE OR QUALITY OF THE AGOS CLOUD SERVICE, PRE-RELEASE SOFTWARE, DOCUMENTATION AND ANY SUPPORT, REMAINS WITH CUSTOMER.

9. EXCLUSIONS OF CERTAIN DAMAGES. IN NO EVENT WILL AGWORKS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE AGOS CLOUD SERVICE OR PRE-RELEASE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES OR THE REMEDIES OTHERWISE PROVIDED UNDER THIS AGREEMENT, AT LAW OR EQUITY FAIL OF THEIR ESSENTIAL PURPOSE. AGWORKS BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE OR ATTEMPTED USE OF THE AGOS CLOUD SERVICE, PRE-RELEASE SOFTWARE, OR DOCUMENTATION.

10. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF AGWORKS AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND CUSTOMER’S EXCLUSIVE REMEDY HEREUNDER WILL BE LIMITED TO THE ACTUAL DAMAGES CUSTOMER INCURS UP TO THE LICENSE FEES PAID TO AGWORKS FOR THE RIGHT TO ACCESS AND USE THE AGOS CLOUD SERVICE FOR THE 3 MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

11. FEEDBACK. Customer may provide, or AgWorks may solicit, input regarding the AgOS Cloud Service and AgWorks’ site and other products and services, including comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the AgOS Cloud Service (collectively “Feedback”). Customer agrees that AgWorks may freely use, disclose, modify, reproduce, license or otherwise distribute, and otherwise exploit Feedback without obligation or restriction of any kind on account of intellectual property rights or otherwise.

12. NO ASSIGNMENT. Customer may not assign this Agreement, or any rights or duties hereunder, by contract, operation of law, or otherwise, without first obtaining the AgWorks’ prior express written consent, and any attempted Change of Control without AgWorks’ consent is void and will allow AgWorks to immediately terminate this Agreement, without notice or opportunity to cure. A “Change of Control” includes: (i) a change in beneficial ownership of greater than 50% (by one or more transaction); (ii) a merger of Customer with a third party, whether or not Customer survives; (iii) the acquisition of more than 50% of any class of Customer’s voting stock (or any class of non-voting security convertible into voting stock) by another party (by one or more transaction); and (iv) the sale or other transfer of more than 50% of Customer’s assets (by one or more transaction). Subject to the foregoing, this Agreement will bind and benefit the parties, their successors, and permitted assigns.

13. NO PARTNERSHIP. Neither this Agreement, nor the AgWorks Terms or the Support Terms, will be construed as creating a partnership, joint venture, agency relationship or franchise. AgWorks may in its sole discretion sub-contract its obligations to third-parties.

14. U.S. GOVERNMENT RIGHTS. AgOS Cloud Service provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the rights and restrictions described elsewhere 5

herein. All AgOS Cloud Service provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.

15. EXPORT RESTRICTIONS. Customer acknowledges that the AgOS Cloud Service is subject to U.S. export jurisdiction. Customer agrees to comply with all applicable international and national laws that apply to the AgOS Cloud Service, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.

16. GOVERNING LAW, JURISDICTION, AND ATTORNEY’S FEES. This Agreement will be construed and controlled by the laws of the State of Washington, and Customer consents to exclusive jurisdiction and venue in the federal courts sitting in Spokane County, Washington, unless no federal jurisdiction exists, in which case Customer consents to exclusive jurisdiction and venue in the Superior Court of Spokane County, Washington. Customer waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses.

17. FORCE MAJEURE. AgWorks will not be liable for any delay or default in its performance of any obligation under this Agreement caused directly or indirectly by an act or omission of Customer, fire, flood, act of God, acts of government, an act or omission of civil or military authority of a state or nation, strike, lockout or other labor problem, inability to secure, delay in securing or shortage of, labor, materials, supplies, transportation or energy, failures of subcontractors or suppliers, or by war, riot, embargo or civil disturbance, breakdown, or destruction of plant or equipment arising from any cause whatsoever, or any cause or causes beyond AgWorks’ reasonable control. At AgWorks’ option any of the foregoing causes will be deemed to suspend AgWorks’ obligations as long as that cause prevents or delays performance, and AgWorks agrees to perform, and Customer agrees to accept performance of, AgWorks’ obligations whenever that cause has been remedied.

18. NOTICES. All notices, authorizations, and requests in connection with this Agreement will be deemed given on the day they are (i) deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested or (ii) sent by overnight courier, charges prepaid, with a confirming fax; and addressed to the Notices Contacts of AgWorks and Customer at the addresses set forth in the Proposal Form.

19. Construction. If a court of competent jurisdiction finds any part of this Agreement unenforceable, that part will be enforced to the fullest extent permissible to effect the parties’ intent, and the remainder of this Agreement will continue in full force. This Agreement will be interpreted according to the plain meaning of its terms without any presumption that it should be construed in favor of or against either party. All choices by AgWorks under this Agreement are to be made in its sole discretion, unless expressly stated otherwise. Any list of examples following “including” or “e.g.,” is illustrative and not exhaustive, unless qualified by terms like “only” or “solely.” Unless stated otherwise, all references to sections, parties, terms and similar references are to the sections of, parties to, and terms of this Agreement. All captions and headings are intended solely for the parties’ convenience, and none will affect the meaning of any provision. All references to “written,” “in writing,” or other words of similar import refer to a non-electronic, paper document only, except where electronic mail communication is expressly authorized. The words “herein,” “hereof,” and words of similar meaning refer to this Agreement as a whole, including its Exhibits. All references to “days” refer to calendar days, unless otherwise expressly set forth in this Agreement.

20. Waiver. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.

21. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contemplated herein, and merges all prior and contemporaneous communications. This Agreement may not be amended except in writing duly signed by an authorized representative of Customer and AgWorks. This Agreement will prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase Proposal or other document furnished by Customer to AgWorks. The following order of precedence will be applied in the event of conflict or inconsistency between provisions of the components of this Agreement: (i) these AgWorks Terms; (ii) the Support Terms; (iii) and the Proposal Forms.

CDMS Data Usage Terms

The product information retrieved and displayed from CDMS such as SDS, Label, and DOT Hazmat information is provided “AS IS,” without warranty express or implied, and for information purposes only.  Although CDMS endeavors to present current and accurate information, this data contains information created and maintained by a variety of external sources that may not be current or complete.  We do not control, monitor or guarantee the timeliness or accuracy of the information provided by such external sources.  Inclusion of a product in a search result does not constitute our endorsement of that product.  It is your responsibility to review the official manufacturer product label information, applicable regulations, and otherwise research the accuracy, completeness and usefulness of all information, claims and opinions contained in these search results.  In no event will we or our data providers be responsible or liable directly or indirectly for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any information contained in these search results, including information that is outdated or incorrect.  This data is provided under a limited non-exclusive, revocable, nontransferable license, and may not be redistributed or used to develop a stand-alone database.  Further, the data may include materials covered by registered copyrights and trademarks.  All rights not expressly granted herein are reserved by the intellectual property owners. In no event shall the liability of CDMS, its officers, directors and agents hereunder exceed $100 in the aggregate.

 AgWorks Maintenance and Support Terms 

1. Scope of Support 

These terms document the standard that AgWorks provides for delivery of the AgOS Service including levels of service and communication methods to Customers.

2. AgOS application availability 

The cloud service where AgWorks provides access to the suite of AgOS applications will be made available to Customer twenty-four hours a day, seven days a week less (i) scheduled network, hardware or service maintenance; (ii) downtime caused by the acts or omissions of Customer or Customer’s employees, agents, contractors, or vendors, or anyone gaining access to the Site by means of Customer’s or Authorized Users’ passwords or equipment; (iii) failures or malfunctions of any equipment or services provided directly or indirectly by Customer; (iv) a failure of the Internet, power outages, natural disasters, or data communication failures; or (v) the occurrence of any event that is beyond AgWorks’ reasonable control (collectively, the “Excusable Downtime”). AgWorks guarantees that the cloud services will be available to Customer at least 99.9% of the time during each month, excluding Excusable Downtime (“Uptime Commitment“). Compliance with the Uptime Commitment and calculation of Outages (as defined below) will be measured on a calendar month basis. The Uptime Commitment percentage will be calculated by dividing the total number of minutes in which there were no Outages during an applicable month (excluding Excusable Downtime) by the total number of actual minutes in that month (also excluding Excusable Downtime), and then subtracting the resulting number from 1 and multiplying that amount by 100; i.e., a calculation using the following formula: 1- (total Outage minutes in a month/total minutes in said month less Excusable Downtime) x 100 (“Actual Uptime”). “Outage” means disruption to AgOS off-line sync process between local install and cloud services caused by inaccessibility to AgWorks’ cloud services. “Outage” does not include issues caused by local network, ISP, hardware/software issues, or other circumstances outside AgWorks’ control.

AgWorks will provide at least three (3) business days prior notice of any scheduled downtime. Notices will be communicated via the ‘AgWorks-announce’ email list described in Section 3 of these terms.

If AgWorks fails to satisfy the Uptime Commitment during any month, then AgWorks will issue a credit to Customer’s account equal to the percentage of the monthly AgOS Service Access Fee for the month in which the failure occurs corresponding with the Actual Uptime for that month:

Actual Uptime

% Credit of AgOS Cloud Service

Access Fee

99.8-99.89

1%

99.7–99.79

2%

99.6-99.69

3%

99.5-99.59

4%

Less than 99.5

5%

If Customer has paid an annual AgOS Service Access Fee, the monthly fee will be 1/12 of the annual fee. Any credit issued under these terms may be applied to future AgOS Service Access Fees owed by Customer, but in no event will AgWorks be required to issue a refund for any unused credits. All credits must be used within 12 months. Customer acknowledges and agrees that the foregoing credit will be its sole and exclusive remedy for AgWorks’ failure to comply with the Uptime Commitment in this Section.

3. Site Notifications 

AgWorks maintains an ‘AgWorks-announce’ email list and uses that list to communicate notices about planned maintenance, Site outages, and other events. Customer will be added to that list based on the information on the first Order Form executed by Customer. If Customer would like to change its contact information, Customer must notify AgWorks by emailing support@agworks.com

4. Change Request Process 

If Customer would like to recommend a change to the AgOS Cloud Service, the requests should be submitted by email to support@agworks.com or at www.agworks.net/changerequest.html

AgWorks insists that requests for changes include:

• Client Name

• Category

• Nature of the Request

• Date Change is requested

AgWorks has no obligation to make changes to the AgOS Cloud Service except as needed to resolve Problems reported under Section 5.

5. Problem Severity and Response Time 

     a. Process for Problem Submission 

Customer must notify AgWorks of Problems (defined below) by email to support@agworks.com or via the Client Services page at www.agworks.net and clicking “Support” link that is available on pages within the Site. If Problems are not resolved by AgWorks following the process outlined below, Customer may escalate the issue by contacting AgWorks management in the following order:

          1. Client Services Representative

          2. Director of Client Services

          3. Sales Representative

          4. Director of Technology

          5. President

Customer’s Problem notification must include:

• Customer name and Customer contact and contact information

• Detailed description of the Problem

• Customer’s proposed Problem Severity Level (based on the definitions set forth below)

     b. Problem Definitions 

          1. Problem Severity Level 0: (Critical/Severe) 

          Major or Significant Business Impact – means a problem with the application that prevents a       majority of Customer’s Authorized Users from accessing the program or using a critical feature (previously tested and released with current version) and there is no available workaround. The problem has one or more of the following characteristics:

• Internal software error, causing the program to fail.

• Severely degraded performance.

• Important functionality (previously tested and released with current version) is unavailable, yet the program can continue to operate in a restricted fashion.

          2. Problem Severity Level 1: (Moderate) 

Moderate Business Impact – means a problem that causes minimal loss of application access or impaired performance. The impact of the problem is moderate or an inconvenience, such as a manual workaround to restore functionality. The problem has one or more of the following characteristics:

• A software error for which there is a workaround.

• Moderate performance degradation.

• Software error requiring manual editing of Provider/Employer Administration settings, database query to correct a data inconsistency, or upload of CSV or XML files to work around a problem.

          3. Problem Severity Level 2: (Minor/Trivial) 

Minor Business Impact – means a problem that causes no loss of application access or impaired performance. The impact of the problem has one or more of the following characteristics:

• A software feature or preference for which there is a workaround.

          – Cosmetic issues, report layouts, etc

• A preference regarding documentation or screen layout.

c. Response time 

AgWorks will use commercially reasonable efforts to respond to Problem notifications and target problem resolution based on the Problem Severity Level according to the following:

Level 0 (Critical/Severe) 

Live-agent response as quickly as humanly possible (typically within 1 hour) following AgWorks’ receipt of notification at 855-AGWORKS or email to support@agworks.net. Target resolution is 1 business day after receipt of notification.

Level 1 (Moderate) 

Live-agent response within 1 business day following AgWorks’ receipt of notification at 855-AGWORKS or email to support@agworks.net. Target resolution will be determined per case.

Level 2 (Minor/Trivial) 

Live-agent response within 1 business day following AgWorks’ receipt of notification.

For Level 1 & 2 notices submitted to AgWorks outside of AgWorks’ standard business hours, the notice will be deemed received and initial response and target resolution times will be measured starting at the beginning of AgWorks’ next business day (e.g., a submission after hours on a Tuesday will be received Wednesday morning and submissions after close of business on Friday will be received Monday, unless Monday is a holiday).

6. Customer Responsibilities 

In order for AgWorks to provide the support services described in these terms Customer must:

• Provide AgWorks with documentation and information requested by AgWorks in order to enable AgWorks to reproduce Problem or incident;

•  Upon reasonable advance notice, allow AgWorks appropriate on-site access to Customer’s computers that Customer uses to access the suite of AgOS applications;

•  Provide AgWorks with remote access to the Customer’s systems and reasonable assistance, as requested by AgWorks to enable AgWorks to provide support remotely;

• Provide AgWorks with reasonable assistance, if requested.

7. Support Exclusions. 

AgWorks will not be obligated to provide any of the following as part of support services under these terms:

• Support for software or hardware other than the suite of AgOS applications;

• Support for the suite of AgOS applications if (a) it has been repaired, tampered with, altered or modified; (b) in which problems result from use with any hardware or software not provided by AgWorks; (c) any use not expressly authorized by the Documentation.

AgWorks may refuse to provide support where, in AgWorks’ reasonable opinion, a condition exists that represents a hazard to the safety of its employees, contractors or agents.

AGWORKS PRIVACY POLICY

This Privacy Policy provides our policies and procedures for collecting, using, and disclosing your information. Users can access AgWorks Software (any AgWorks Service) through, our website (agworks.com, agworks.net), applications on Devices, through APIs, and through third-parties. A Device is any computer used to access the AgWorks Service, including without limitation a desktop, laptop, mobile phone, tablet, or other consumer electronic device. This Privacy Policy governs your access of the AgWorks Service, regardless of how you access it, and by using our Services you consent to the collection, transfer, processing, storage, disclosure and other uses described in this Privacy Policy. All of the different forms of data, content, and information described below are collectively referred to as information.

1. The Information We Collect and Store

We may collect and store the following information when running the AgWorks Service:

Information You Provide.   When you register an account, we may collect some personal information, such as your name, phone number, credit card or other billing information, email address and home and business postal addresses. You may also ask us to import your contacts by giving us access to your third party services (for example, your accounting or precision software) or configuring your business operations like inventory product, applicator machines, and staff. You may also provide us with your contacts email addresses for sharing AgWorks system notifications with them.

Files.   We collect and store the data you upload, download, or access with the AgWorks Service (Data).

Log Data.   When you use the AgWorks Service, we automatically record information from your Device, its software, and your activity using the Services. This may include the Device’s Internet Protocol (IP) address, browser type, locale preferences, identification numbers associated with your Devices, your mobile carrier, date and time stamps associated with transactions, system configuration information, metadata concerning your Files, and other interactions with the Service.

Cookies.   We also use “cookies” to collect information and improve our Services. A cookie is a small data file that we transfer to your Device. We may use “persistent cookies” to save your registration ID and hashed access credentials to simplify future logins to the Service. We may use “session ID cookies” to enable certain features of the Service in order to better understand how you interact with the Service and to monitor aggregate usage and web traffic routing on the Service. You can instruct your browser, by changing its options, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit.  However, if you do not accept cookies you may not be able to use all aspects of the Service.

2. How We Use Personal Information

Personal Information.   In the course of using the Service, we may collect personal information that can be used to contact or identify you (“Personal Information“). Personal Information is or may be used: (i) to improve our Service, (ii) to administer your use of the Service, (iii) to better understand your needs, (iv) to personalize and improve your experience, and (v) to provide or offer software updates and product announcements. If you no longer wish to receive communications from us, please contact sales@agworks.com.

Geo-Location Information.   Some Devices allow applications to access real-time location-based information (for example, GPS). Our mobile apps collect such information from your mobile device at any time while you download or use The Service. We use this information to optimize your experience by identifying a Device’s location.

Analytics.   The collected Data can be used to validate past decisions by correlating various layers of Data. We use this information for the sole purpose of anonymous community comparison.

3. Information Sharing and Disclosure

Your Use.   We will display your User Information in only in a few select places within the Service. We do not sell your personal information to third parties.

Service Providers, Business Partners and Others.   We may use certain trusted third party companies and individuals to help us provide, analyze, and improve the Service (including but not limited to data storage, maintenance services, database management, web analytics, payment processing, and improvement of the Service’s features). These third parties may have access to your information only for purposes of performing these tasks on our behalf and under obligations similar to those in this Privacy Policy. As of the date this policy went into effect, we use Microsoft’s Azure Cloud platform and Amazon’s AWS service to store some of your information (for example, your Files and Database). You can find more information on Microsoft Azure’s data security at the  Azure Trust Center or Amazon’s data security on the AWS Security Center.

Compliance with Laws and Law Enforcement Requests; Protection of AgWorks’ Rights.   We may disclose to parties outside AgWorks Files stored in your AgWorks Service and information about you that we collect when we have a good faith belief that disclosure is reasonably necessary to (a) comply with a law, regulation or compulsory legal request; (b) protect the safety of any person from death or serious bodily injury; (c) prevent fraud or abuse of AgWorks Service or its users; or (d) to protect AgWorks ‘s property rights. If we provide your AgWorks Files to a law enforcement agency as set forth above, we will remove AgWorks’ encryption from the files before providing them to law enforcement.

4. Data Retention

We will retain your information for as long as your account is active or as needed to provide you services. If you wish to cancel your account or request that we no longer use your information to provide you services, we may delete your account. We may retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. Consistent with these requirements, we will try to delete your information quickly upon request. Please note, however, that there might be latency in deleting information from our servers and backed-up versions might exist after deletion. In addition, we do not delete from our servers files that you have in common with other users. Also, be advised that some anonymized community data cannot be deleted once it has entered our analytical database, however rest assured that nothing revelatory to you and/or your customer will be retained.

Please refer to your organization’s policies if you have questions about your Administrator’s rights.

6. 3rd Party Sites and Services

Our Service may include links to other Web sites whose privacy practices may differ from those of AgWorks. If you submit personal information to any of those sites, your information is governed by their privacy statements. We encourage you to carefully read the privacy statement of any Web site you visit.

7. Security

The security of your information is important to us. When you use the AgWorks Service, we encrypt the transmission of Data using secure socket layer technology (SSL).

We follow generally accepted standards to protect the information submitted to us, both during transmission and once we receive it. No method of electronic transmission or storage is 100% secure, however. Therefore, we cannot guarantee its absolute security. If you have any questions about security on our website, you can contact us at sales@agworks.com.

9. Contacting Us

If you have any questions about this Privacy Policy, please contact us at sales@agworks.com, 111 W 76th St, Davenport, IA 52806, or at 855-AGWORKS

10. Changes to our Privacy Policy

This Privacy Policy may change from time to time. If we make a change to this privacy policy that we believe materially reduces your rights, we will provide you with notice (for example, by email). And we may provide notice of changes in other circumstances as well. By continuing to use the Service after those changes become effective, you agree to be bound by the revised Privacy Policy.

Privacy Policy | Terms of Service