NextGen AgTech - Terms of Service

NEXTGEN AGTECH Terms of Service

Last Modified: April 23, 2024

This NextGen AgTech Terms of Service (“Agreement”) is a binding contract between you and NextGen AgTech, LLC (“NextGen AgTech”) that governs access to and use of NextGen AgTech’s cloud-based, software-as-a-service tools, application programming interfaces, product and service offerings, and their applicable user manuals, guides, and other documentation (collectively, “Platform”), including the NextGen AgTech family of products, available via https://www.nextgenagtech.com.

THIS AGREEMENT TAKES EFFECT ON THE DATE WHEN YOU CLICK THE “AGREE” BUTTON OR WHEN YOU FIRST ACCESS OR USE THE PLATFORM (“EFFECTIVE DATE”). BY CLICKING ON THE “AGREE” BUTTON OR BY ACCESSING OR USING THE PLATFORM, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE PLATFORM.

Provision of the Platform. Subject to the remaining terms of this Agreement, NextGen AgTech will provide, or make available to you, the Platform. The Platform is licensed to you, not sold. Certain NextGen AgTech products, services, features, application programming interfaces, or other tools that are components of the Platform may be subject to additional or different NextGen AgTech terms between you and NextGen AgTech that are specific to those offerings, and this Agreement does not supersede or replace such terms.
Access and Use. Subject to your payment of Fees and compliance with the terms and conditions of this Agreement, NextGen AgTech hereby grants to you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right for you and your employees, consultants, contractors, agents, and customers (a) who are authorized by you to access and use the Platform pursuant to this Agreement, and (b) for whom access to the Platform has been purchased hereunder (“Authorized Users”) to access and use the Platform and retrieve data via applicable application programming interfaces during the Term solely in accordance with the terms and conditions herein.
Downloadable Software. Use of the Platform may permit the use of downloadable software. NextGen AgTech grants you a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software that NextGen AgTech provides as part of the Platform. Any Third-Party Products (as defined in Section 11) that consist of downloadable software are subject to the terms of Section 11.
Restrictions. You shall not, and shall not permit any Authorized Users to, use the Platform for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) use the Platform or any part or element thereof for fraudulent, offensive, or obscene activities, or to commit a crime, breach any applicable law, or entice or invite others to carry out such illegal actions; (b) copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the Platform or any part or element thereof, or attempt to extract the source code thereof, except to the extent expressly allowed under applicable law; (c) timeshare, rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform except as expressly permitted under this Agreement; (d) merge, integrate, or incorporate the Platform with other software; (e) monitor the availability, performance, or functionality of the Platform for benchmarking or competitive purposes or publicly disseminate information regarding the performance of the Platform (which is deemed NextGen AgTech’s Confidential Information (as defined in Section 17.1)); (f) break or circumvent any security measures or rate limits for the Platform, or use the Platform or any part or element thereof by means of programs that send automatic inquiries or requests, unless such program has been made available by NextGen AgTech; (g) remove any proprietary notices from the Platform; (h) post or transmit into the Platform, or create, transmit, display, or make otherwise available any Client Data (as defined in Section 9) or other information, content or software that violates applicable law, is offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, defamatory, hateful, or contains viruses, worms, malware, Trojan horses, and other destructive or harmful codes; or (i) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates or invades any intellectual property, privacy, or other right of any person.
Aggregated Statistics. NextGen AgTech may monitor your use of the Platform and collect and compile data and information related to your use of the Platform to be used by NextGen AgTech in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Platform (“Aggregated Statistics”). As between NextGen AgTech and you, all right, title, and interest in Aggregated Statistics, and all IP Rights (as defined in Section 19) therein, belong to and are retained solely by NextGen AgTech. You acknowledge that NextGen AgTech may compile Aggregated Statistics based on that data that you and your Authorized Users input into the Platform. You agree that NextGen AgTech may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or your Confidential Information.
Platform Modification; Suspension. The inclusion, exclusion, and continued support for any feature, functionality, module in, release of, branding, or “look and feel” of the Platform is within the sole and absolute discretion of NextGen AgTech. NextGen AgTech retains the absolute right to modify, discontinue, delete, or restrict any aspect or feature of the Platform, without notice and without any liability or obligation to you. Without limiting the foregoing, NextGen AgTech may temporarily suspend your and any other Authorized User’s access to any portion or all of the Platform if: (a) NextGen AgTech determines that (i) there is a threat or attack on any of the Platform, (ii) your or your Authorized User’s use of the Platform disrupts or poses a security risk, (iii) you or your Authorized Users are misusing the Platform, in breach of this Agreement or for fraudulent or illegal activities, (iv) the provision of the Platform is prohibited by applicable law, or (v) suspension is otherwise reasonably necessary or prudent; or (b) if you fail to make payment when due (suspension for any of the foregoing reasons, a “Platform Suspension”). NextGen AgTech shall use commercially reasonable efforts to provide notice of any Platform Suspension to you. NextGen AgTech may, in its sole discretion, resume providing access to the Platform after the event giving rise to the Platform Suspension is cured. NextGen AgTech will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that you or any other Authorized User may incur as a result of a Platform modification or Service Suspension.
Passwords and Access Credentials. Authorized Users will create a username, identification number, password, security key, or other security code (“Login Credentials”) in order to access the Platform. You shall, and shall ensure that all Authorized Users (a) keep passwords and access credentials associated with the Platform confidential, and (b) promptly notify us about any unauthorized access to or use of passwords or access credentials. You shall not sell or transfer Login Credentials to any other person or entity.
Account Use. You are responsible and liable for all uses of the Platform resulting from access provided by you, directly or indirectly, through your Login Credentials or otherwise. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users and any act or omission by an Authorized User that would constitute a breach of this Agreement if that act or omission would be deemed a breach of this Agreement if taken by you. You shall exercise reasonable efforts to make all Authorized Users aware of rights and restrictions related to the Platform as set forth in this Agreement, as applicable to such Authorized User’s use of the Platform, and shall cause Authorized Users to comply with such rights and restrictions.
Client Data. For the purposes of this Agreement, “Client Data” means, other than Aggregated Statistics, any information, data, and other content, in any form or medium, that is entered into, uploaded, transmitted, or otherwise provided by or on behalf of you or any other Authorized User through the Platform. As between the parties and subject to the terms of this Agreement, you, or your licensors or customers, own all right, title, and interest in and to the Client Data. You are solely responsible for your and your Authorized Users’ Client Data. You hereby grant to NextGen AgTech a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for NextGen AgTech to provide the Platform and related services to you. All Client Data must be in compliance with this Agreement and applicable law. You shall ensure that Client Data and any Authorized User’s use of Client Data will not violate any applicable laws or any NextGen AgTech policies referenced or incorporated in this Agreement. By you or your Authorized Users uploading or otherwise providing Client Data to the Platform, you authorize NextGen AgTech to access, receive, collect, store, process, transmit, maintain, and possess the Client Data. NextGen AgTech is not obligated to pre-screen, monitor, or filter any Client Data. However, in the event that any unlawful Client Data is discovered by or brought to the attention of NextGen AgTech, or if NextGen AgTech has a good faith belief that any Client Data is unlawful, NextGen AgTech may, with or without notice to you: (a) notify you of such unlawful Client Data; (b) deny its publication or use on the Platform; (c) demand that you bring the unlawful Client Data into compliance with this Agreement and applicable law; or (d) temporarily or permanently remove the unlawful Client Data from the Platform or your account, restrict access to it, or delete it.
Data Security. NextGen AgTech will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Client Data, including measures for preventing access, use, modification, or disclosure of Client Data except (a) to provide the Platform, (b) to prevent or address service or technical problems with the Platform, (c) as compelled by law, or (d) as you or your Authorized Users instruct or expressly permit in writing. NextGen AgTech takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section. NextGen AgTech will reasonably assist you in complying with your obligations under applicable law solely to the extent that NextGen AgTech is required to do so under applicable data protection and privacy laws, provided, however, that NextGen AgTech is under no duty to investigate the completeness, accuracy, or sufficiency of any Client Data or your actions, instructions, or requests. NextGen AgTech will promptly notify you of any breach or suspected breach of the Platform’s data security, of which NextGen AgTech becomes aware. Such breach notification will be in writing and may include, to the extent known at the time, the data or systems compromised or believed to be compromised, the nature of the compromise, and any mitigating measures that NextGen AgTech has taken or will take.
Third-Party Products. The Platform may permit you to access products, content, services, information, websites, or other materials that are owned by third parties (“Third-Party Products”). NextGen AgTech is not responsible or liable to you or any third party for the Third-Party Products or any content or accuracy of any materials provided by any third parties. Such Third-Party Products are subject to their own terms and conditions, and if you decide to access any Third-Party Products through the Platform, you do so entirely at your own risk and subject to those applicable terms and conditions. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
Availability. Access to the Platform requires an internet connection, and you understand and accept that the reduced performance or unavailability of your internet connection may result in reduced performance, interruption, or temporary termination of the Platform. NextGen AgTech bears no responsibility for the performance or availability of your internet connection or other services provided to you by third parties. Subject to the terms and conditions of this Agreement, NextGen AgTech will exercise commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, except for the following events: (a) planned downtime or maintenance (which NextGen AgTech will use commercially reasonable efforts to notify you of through the Platform in advance), (b) any unavailability caused by a Force Majeure Event (as defined in Section 31), or (c) any disabling, suspension, or termination pursuant to the terms of this Agreement.
Support. NextGen AgTech will provide standard technical support for the Platform during NextGen AgTech’s normal business hours. Support requests should be submitted via an online ticketing system. NextGen AgTech will use commercially reasonable efforts to respond to support requests as soon as possible in accordance with the level of severity of the issue presented in the request, as reasonably determined by NextGen AgTech.
Fees and Payment. You shall pay NextGen AgTech the fees without offset or deduction as described in your invoice when you purchase access to the Platform (“Fees”). All Fees are non-refundable except in the event of material uncured breach by NextGen AgTech and then, in such event, only for the pro rata portion of Fees for the period of time impacted by such breach. There are no refunds or credits for periods where you did not use the Platform, used it only partially, or deactivated your account, or terminated this Agreement during an ongoing payment interval. Late payments may incur interest and may result in suspension of your and all other Authorized Users’ access to any portion or all of the Platform, in accordance with Section 6, until delinquent amounts are paid in full. If you fail to make any payment when due, without limiting NextGen AgTech’s other rights and remedies, you shall reimburse NextGen AgTech for all reasonable costs incurred by NextGen AgTech in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
Credit Card Authorization. You may pay Fees with a valid credit card. NextGen AgTech may seek pre-authorization of your credit card account prior to your purchase of the Platform in order to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You hereby authorize NextGen AgTech to charge all Fees and other amounts described in this Agreement to such credit card account and authorize such credit card account to pay any Fees or other amounts described herein. You agree to provide NextGen AgTech updated information regarding your credit card account upon NextGen AgTech’s request, and any time the information earlier provided is no longer valid.
Taxes. All Fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on NextGen AgTech’s income.
Confidential Information.
1. Confidentiality Obligations. From time to time during the Term, NextGen AgTech and you may disclose or make available to the other party Confidential Information. “Confidential Information” means information disclosed by a party hereto (“Discloser”) that is not generally known and that is proprietary to Discloser or its affiliates or that Discloser or any of its affiliates is obligated to treat as proprietary or confidential, including: (a) trade secret information about Discloser and its products or services; (b) information about Discloser’s business affairs, confidential intellectual property, third-party confidential information, and other sensitive or proprietary information; (c) information about Discloser’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling or leasing; (d) in the case of you as Discloser, the Client Data; (e) in the case of NextGen AgTech as Discloser, the Platform; and (f) information about the relationship between Discloser and the other party hereto receiving information hereunder (“Recipient”). Notwithstanding the foregoing, Confidential Information does not include information (i) which is or becomes publicly available from a source other than Recipient; (ii) which is received by Recipient from a source which has the right to disclose such information and did not obtain the information directly or indirectly from employees or agents of Discloser; (iii) which Recipient establishes by documentary evidence was in Recipient’s possession prior to Discloser’s disclosure; (iv) that was or is independently developed by Recipient without using any confidential information of Discloser; or (v) that Discloser has agreed in writing may be disclosed by Recipient. Recipient shall not, either during or after the Term, use Discloser’s Confidential Information for any purpose other than its performance under this Agreement or disclose Discloser’s Confidential Information to any person or entity not authorized by Discloser to receive it, except that Recipient may disclose Discloser’s Confidential Information to its employees and agents (including independent auditors, professional advisors, and required government agencies) (collectively, “Permitted Recipients”) who have a reasonable need to know such Confidential Information for purposes of performing Recipient’s obligations hereunder and who are obligated to maintain the confidentiality of and refrain from using such Confidential Information under terms at least as protective as those set forth herein. Recipient will be responsible for the breach of this Section by any of its Permitted Recipients. Discloser shall be entitled to seek injunctive relief for any violation of this Section.
2. Compelled Disclosure; Return. Recipient may disclose Discloser’s Confidential Information to the extent compelled by law or a court of competent jurisdiction to do so. In such instance, Recipient will use commercially reasonable efforts to provide Discloser with prior notice of the compelled disclosure (to the extent legally permitted), and Discloser shall provide reasonable assistance, at its cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding to which Recipient is a party, and Discloser is not contesting the disclosure, Recipient shall be responsible for its cost of compiling and providing secure access to that Confidential Information. Upon Discloser’s reasonable request upon termination or expiration of this Agreement or at any time during the Term, Recipient will promptly turn over to Discloser or destroy all copies, reproductions, and specimens of Discloser’s Confidential Information in Recipient’s possession, except that Recipient, will not be obligated to destroy electronically stored Confidential Information to the extent that it is contained in an archived computer system backup in accordance with Recipient’s security or disaster recovery procedures, so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business or used except as required for backup or data recovery purposes. Notwithstanding the foregoing, the retention, disclosure, protection, and destruction of Client Data may be subject to additional or different terms pursuant to applicable laws or as set forth in NextGen AgTech’s Privacy Policies.
Privacy Policies. NextGen AgTech complies with its privacy policies available at https://www.nextgenagtech.com/privacypolicy (“Privacy Policies”) in providing the Platform. The Privacy Policies are subject to change as described therein. By accessing, using, and providing information to or through the Platform, you acknowledge that you have reviewed and accepted NextGen AgTech’s Privacy Policies, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of the NextGen AgTech Privacy Policies.
Intellectual Property Ownership; Feedback. For purposes of this Agreement, “IP Rights” means copyrights, trade secrets, know-how, trademarks and services marks (together with all goodwill associated therewith), domain names, patents, inventions, design rights, trade dress, and any other IP Rights that may exist anywhere in the world, including, in each case, whether unregistered, registered or comprising an application for registration, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of the foregoing, and “Marks” means NextGen AgTech’s names, trademarks, service marks and trade names, including all goodwill associated therewith.
1. Platform Ownership. NextGen AgTech solely and exclusively owns all right, title and interest in and to the Platform and Marks, including (a) the interfaces, website files (including images, php and html files), graphics, designs, software code, compilation of content, and other elements comprising the Platform; (b) all documentation for the Platform; (c) all updates, new releases, improvements, and modifications to, and derivative works of, the foregoing, and (d) all IP Rights in and to the foregoing (collectively, the “NextGen AgTech IP”). You shall not take any action that jeopardizes the NextGen AgTech IP. For the avoidance of doubt, NextGen AgTech IP includes Aggregated Statistics and any information, data, or other content derived from NextGen AgTech’s monitoring of your access to or use of the Platform, but does not include Client Data.
2. Reservation of Rights. NextGen AgTech reserves all rights not expressly granted in this Agreement. Except for the limited rights and licenses expressly granted hereunder, nothing in this Agreement grants by implication, waiver, estoppel, or otherwise, to you or any third party any IP Rights or other right, title, or interest in or to the NextGen AgTech IP.
Feedback. If you or any of your Authorized Users or agents sends or transmits any comments, bug reports, feedback, modifications, questions, suggestions, or the like related to the Platform or new features or functionalities (“Feedback”), NextGen AgTech shall have the right to use such Feedback at its discretion, including the incorporation of any such Feedback into the Platform or NextGen AgTech’s other products or services. You hereby grant to NextGen AgTech, on behalf of yourself and your Authorized Users, a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid-up, transferable, sublicensable license to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit, and use your Feedback for any purpose. All Feedback is and will be treated as non-confidential.
Limited Warranty; Disclaimer.
1. By NextGen AgTech. NextGen AgTech warrants that it provides Platform using a commercially reasonable level of care and skill, and the Platform, without any modification or alteration thereto by you or any third party not authorized by NextGen AgTech, shall conform in all material respects with the documentation for the Platform, as such documentation may be amended from time to time by NextGen AgTech. THE FOREGOING WARRANTY DOES NOT APPLY, AND NEXTGEN AGTECH STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. You must provide NextGen AgTech notice of any claim under the warranties set forth in this Section within 60 days of the date you discovered such claim. Your exclusive remedies in the case of any claim under the warranties set forth in this Section shall be limited to, at NextGen AgTech’s sole option: (a) using commercially reasonable efforts to provide modifications or fixes with respect to any such error or defect in a timely manner; (b) replacing the applicable portion of the Platform; or (c) refunding pro rata amounts paid by you to NextGen AgTech for the nonconforming portion of the Platform and terminating your access rights to the Platform.
2. By You. You represent, warrant, and covenant that you have and will maintain the right, license, and all necessary consents and permissions to (a) provide the Client Data stored in, collected by, or transmitted through the Platform; (b) grant to NextGen AgTech the rights and authorizations in the Client Data granted hereunder; and (c) permit NextGen AgTech to access, receive, collect, store, process, transmit, maintain, and possess the Client Data as authorized hereunder. You further represent, warrant, and covenant that the Client Data, NextGen AgTech’s use thereof pursuant to this Agreement, and NextGen AgTech’s exercise of the license rights set forth in this Agreement, do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any privacy right, right of publicity, or other IP Rights; (ii) violate any applicable law; or (iii) require NextGen AgTech to obtain a license from or to pay any fees or royalties to any third party for the provision of the Platform or for the exercise of any rights granted herein.
3. DISCLAIMER. IT SHALL BE YOUR RESPONSIBILITY TO DETERMINE THE SUITABILITY OF THE PLATFORM FOR YOUR USE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 21.1, THE PLATFORM IS PROVIDED “AS IS” AND NEXTGEN AGTECH SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEXTGEN AGTECH MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Indemnification.
1. Indemnification by NextGen AgTech. NextGen AgTech shall indemnify, defend, and hold harmless you from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”), incurred by you resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Platform, or any use of the Platform in accordance with this Agreement, infringes or misappropriates such third party’s infringes a valid U.S. patent issued prior to the Effective Date, Berne Convention copyright or U.S. trade secret, except that NextGen AgTech shall not have any obligations under this Section if the alleged infringement or violation is based upon: (a) use of the Platform other than as set forth herein and in the then-current version of the documentation for the Platform; (b) any modification or alteration to the Platform performed by anyone (including you) other than NextGen AgTech or its authorized agents (other than modifications constituting standard implementation of NextGen AgTech-provided options, enhancements and features for the Platform); (c) NextGen AgTech’s compliance with your designs, specifications or instructions if NextGen AgTech is unable to follow such designs, specifications, or instructions without infringement; (d) combination, operation, or use of the Platform with software, hardware, information, data, or other materials, not approved or supplied by NextGen AgTech, if infringement (including contributory infringement) would have been avoided by use without such software, hardware, information, data, or other materials; (e) use of a superseded or altered release of the Platform if the infringement would have been avoided by the use of the current, unaltered release of the Platform; or (f) use of the Platform after NextGen AgTech’s notice to cease use of the Platform due to a claim of infringement (collectively, the “NextGen AgTech Indemnification Exceptions”), provided that you promptly notify NextGen AgTech in writing of the Third-Party Claim, cooperate with NextGen AgTech, and allow NextGen AgTech sole authority to control the defense and settlement of such Third-Party Claim. In the event, a court of competent jurisdiction holds that the Platform or any component thereof infringes, misappropriates, or otherwise violates any third-party IP Rights, or if NextGen AgTech believes such a claim may arise, NextGen AgTech may, in NextGen AgTech’s sole discretion and at no cost to you: (i) procure for you and your Authorized Users the right or license to continue to use the Platform; (ii) modify the Platform to render it non-infringing but substantially functionally equivalent to the Platform prior to such modification; or (iii) if the alternatives described in the foregoing clauses (i) and (ii) are not commercially practicable, terminate this Agreement, in which case NextGen AgTech shall refund to you the pro rata portion of any Fees paid by you to NextGen AgTech for unused use of the Platform. This Section sets forth your sole remedies and NextGen AgTech’s sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Platform infringe, misappropriate, or otherwise violate any IP Rights of any third party. This Section 22.1 shall not apply to the extent that any such Third-Party Claim arises from Client Data or Third-Party Products. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, THIS SECTION 22.1 STATES NEXTGEN AGTECH’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR VIOLATION, INFRINGEMENT, OR MISAPPROPRIATION OF ANY IP RIGHT, WHETHER SUCH ACTION, CLAIM, OR PROCEEDING IS BASED ON BREACH OF WARRANTY OR ANY OTHER CAUSE OF ACTION.
2. Indemnification by You. You shall indemnify, hold harmless, and, at NextGen AgTech’s option, defend NextGen AgTech and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim in connection with (a) your breach of this Agreement; (b) your acts or omissions in connection with the Platform; (c) your representations made to NextGen AgTech, its affiliates or third parties; (d) any claim related to your or any third party’s use or misuse of the Platform under your account, including allegations of violation of law; (e) your violation of any applicable law; (f) the Client Data; (g) infringement, misappropriation or violation of the rights of any other person or entity (including any third-party IP Rights); or (h) any NextGen AgTech Indemnity Exception. Notwithstanding the foregoing, you may not settle any Third-Party Claim against NextGen AgTech unless NextGen AgTech consents in writing to such settlement, and NextGen AgTech will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Limitations of Liability; Limitation of Actions.
1. Limitations of Liability. IN NO EVENT WILL NEXTGEN AGTECH AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, OR ASSIGNS, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) BUSINESS INTERRUPTION, INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, BREACH OF DATA OR SYSTEM SECURITY, OR COMPUTER FAILURE OR MALFUNCTION; (e) COST OF REPLACEMENT GOODS OR SERVICES; or (f) PERSONAL INJURY OR PROPERTY DAMAGE, IN EACH CASE REGARDLESS OF WHETHER NEXTGEN AGTECH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF NEXTGEN AGTECH AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, OR ASSIGNS ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO NEXTGEN AGTECH UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF NEXTGEN AGTECH SHALL BE LIMITED IN ACCORDANCE WITH THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.
2. Limitation of Actions. No claim or action under this Agreement by you against NextGen AgTech may be brought more than 12 months after such cause of action arises.
Term and Termination. This Agreement shall commence on the Effective Date and shall continue until terminated pursuant to the terms hereof (“Term”). In addition to any other express termination right set forth in this Agreement: (a) either party may terminate this Agreement, for any reason, upon 30 days advance notice; (b) either party may terminate this Agreement, effective on written notice to the other party if the other party materially breaches this Agreement, and such breach (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
Effect of Termination. Upon termination of this Agreement, you shall immediately discontinue use of the NextGen AgTech IP. No expiration or termination of this Agreement will affect your obligation to pay all Fees that may have become due before such expiration or termination, nor shall termination or expiration of this Agreement entitle you to any refund unless otherwise expressly set forth herein. Sections 14, 16, 17, 20, 21.2, 21.3, 22, 23, 25 through 34, shall survive termination or expiration of this Agreement.
Changes to this Agreement. You acknowledge and agree that NextGen AgTech has the right, in NextGen AgTech’s sole discretion, to modify this Agreement from time to time and that modified terms become effective on posting. You will be notified of modifications through notifications or posts on https://www.nextgenagtech.com. NextGen AgTech may send you an email notification of the revised terms, but such notice is for your convenience only and shall not be required for the effectiveness of the changes. If any change is unacceptable to you, your only remedy is to stop using the Platform. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Platform after the effective date of the modifications will be deemed acceptance of the modified terms.
US Government Rights. Each of the software components that constitute the Platform and the related documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the U.S. Government or any contractor, therefore, you receive only those rights with respect to the Platform as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government customers and their contractors.
Cumulative Remedies. Except as expressly provided otherwise in this Agreement, (a) in addition to any remedies provided in this Agreement, the parties shall have all remedies provided at law or in equity, (b) the rights and remedies provided in this Agreement or otherwise under law shall be cumulative, and (c) the exercise of any particular right or remedy shall not preclude the exercise of any other rights or remedies in addition to, or as an alternative of, such right or remedy. The parties acknowledge that violations of Section 17 (Confidentiality) and Section 19 (Intellectual Property) of this Agreement may result in irreparable harm to the non-violating party for which remedies other than injunctive relief may be inadequate, and the non-violating party shall be entitled to seek injunctive or other equitable relief to restrain such unauthorized acts in addition to other appropriate remedies. In the event of any claimed breach of any provisions of this Agreement, and in the event a party requests any injunctive relief or other relief in equity to stop or enjoin any act or acts by the other party, the parties agree that should such relief be granted by any court, the requesting party shall not be required to post any bond or other surety as a precondition to such relief being granted.
Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Idaho, United States, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Idaho. Any legal suit, action, or proceeding arising out of or related to this Agreement or the rights granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Idaho, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
Export. The United States and certain foreign countries may regulate the export and re-export of technology originating in the United States. Exporting and re-exporting may include the electronic transfer or dissemination of content and software to foreign countries, certain foreign nationals, and certain specially designated nationals. You agree to abide by all applicable provisions of export and import laws, including the Export Administration Act and the Arms Export Control Act.
Force Majeure Events. NextGen AgTech shall not be liable for any delay or failure to perform its obligations under this Agreement to the extent prevented from doing so by a Force Majeure Event, provided that NextGen AgTech promptly exercises commercially reasonable efforts to overcome or cure the Force Majeure Event to the extent within its power to effect such cure and gives prompt notice to you upon discovery of such Force Majeure Event. “Force Majeure Event” means any circumstances beyond a party’s reasonable control, including, for example, an act of God; act of government; flood; fire; earthquake; civil unrest; act of terror; pandemic; disease epidemic; public health emergency; strike or other labor problem; internet connectivity issues; internet service provider failure or delay; denial of service attack; and interruption, outage, or other problems with any software, hardware, system, network, facility, or third party services.
Relationship of the Parties. The relationship of the parties is solely of independent contractors. This Agreement shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between you and NextGen AgTech. Neither party shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party. NextGen AgTech AND ITS SUPPLIERS, LICENSORS, SERVICE PROVIDERS, AND SUBCONTRACTORS SHALL HAVE NO LIABILITY TO ANY AUTHORIZED USER OF YOU BY VIRTUE OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT CONVEY UPON ANY USER OR OTHER THIRD PARTY ANY RIGHTS HEREUNDER, AND NO USER OR OTHER THIRD PARTY SHALL BE DEEMED A THIRD-PARTY BENEFICIARY HEREOF.
Miscellaneous. This Agreement and any documents referenced herein constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to NextGen AgTech’s using the contact information listed below and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, by email (with confirmation of receipt by NextGen AgTech), or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Platform. You agree that any notices, agreements, disclosures, or other communications that NextGen AgTech sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit NextGen AgTech’s rights with respect to such breach or any subsequent breaches. No modification, amendment, or waiver of any provision of this Agreement will be effective against NextGen AgTech unless in writing and signed by an authorized representative of NextGen AgTech. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without NextGen AgTech’s prior written consent, and any action or conduct in violation of the foregoing will be void and without effect. NextGen AgTech expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. Any headings contained in this Agreement are used only as a matter of convenience and reference and are in no way intended to define, limit, expand or describe the scope of this Agreement. For purposes of this Agreement, (a) the singular includes the plural and vice versa; (b) reference to any document, law, or standard means such document, law, or standard as amended from time to time; (c) “include” or “including” means including without limiting the generality of any description preceding such term; (d) the term “or” is not exclusive; and (e) the phrase “this Agreement” and the terms “hereof,” “herein,” “hereby,” “hereunder” and derivatives or similar words refer to this entire Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement.
Contact Us. If you have any questions about this Agreement or any feedback you would like us to consider, you may call us at (208) 258-2424, email us at info@nextgenagtech.com, or write to us at:

NextGen AgTech, LLC

Re: Terms of Service

580 E Corporate Dr

Meridian, Idaho 83642

USA