Field Manager Terms of Use
1. General Information
The provider specified in Appendix 1 (hereinafter "BASF", "We") offers Users (as defined in Section 2) the access to the xarvio FIELD MANAGER mobile and web-based application (hereinafter "Mobile App", "Web App" and collectively "App"). The provider specified in Appendix 1 depends upon the "Service Territory" in which the User's service address is located when the User creates their account. The use of the App is subject to the following terms ("Terms of Use"), subject to additional or divergent terms as specified in Appendix 1 and Appendix 2.
2. Scope
(1) BASF provides access to the App exclusively to retailers, including retailer's administrators, agronomists and/or sales representatives ("Retail User(s)") and end users of the App that are farmer customers of Retail User ("Farm User(s)") - collectively "Users" and each a "User". A User refers to the individual person, company, or organization that (i) registers and/or creates a User account within the App, (ii) accesses and/or uses any part of the App, and/or (iii) in the case of a Retail User, has fully executed an order for a paid subscription to the App ("Subscription Order"). User must be at least eighteen (18) years old or the age of majority in User's jurisdiction, whichever is greater, to use the App. By accessing or using the App, User confirms that User meets these age requirements. While the basic functionality of the App is made available under a paid subscription between BASF and User, additional special features may be available within the App ("Features"), which may require a separate paid subscription or fee. Except as otherwise set forth in these Terms of Use, the use of the defined term "App" in these Terms of Use shall be deemed to include "Features".
(2) If User is accepting these Terms of Use on behalf of a legal entity, User represents that User has the authority to bind such entity to these Terms of Use, in which case the term "User" refers to such entity.
(3) BASF grants to the User a revocable, non-exclusive, non-transferable, limited in time for the term of the subscription (or, as applicable, for the term for which the User has licensed a Feature), the right to use the App in accordance with these Terms of Use and (if applicable) the Subscription Order ("License"). Please note that prices for License subscriptions are subject to change, except as otherwise set forth in an applicable Subscription Order.
USER ACKNOWLEDGES THAT USER HAS REVIEWED AND AGREES TO BE LEGALLY BOUND (AND BIND THE ENTITY THAT USER MAY REPRESENT) BY THESE TERMS OF USE. IF USER DOES NOT ACCEPT THESE TERMS OF USE, OR DOES NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THESE TERMS OF USE, USER MAY NOT ACCESS OR USE THE APP, FEATURES (AS APPLICABLE) OR ANY RELATED SERVICES. THESE TERMS OF USE RESTRICT THE REMEDIES AVAILABLE TO USER IN THE EVENT OF A DISPUTE.
(4) The App is a digital crop optimization mobile and web-based application which offers field and field-zone-specific real-time information and recommendations on how to produce crops most efficiently. The App is the exclusive property of BASF and is licensed, not sold. The functionality of the App available to User may differ depending on the country in which the App is used.
(5) The use of the App is subject exclusively to these Terms of Use, the information provided within the App and if applicable, the Subscription Order. Deviating or conflicting terms and conditions do not form part of an agreement with BASF, unless BASF has expressly agreed to them in writing. Notwithstanding the preceding sentence, the User is aware that in addition to these Terms of Use of BASF, it may be necessary to comply with further terms of use of the respective app store operator (e.g. Apple in case of the Apple App Store or Google in case of the Google Play Store) if the User makes use of the Mobile App downloaded from the respective app store and that BASF has no influence on such further terms of use and consequently assumes no responsibility therefor.
(6) These Terms of Use do not apply to third-party components. For such components, separate terms apply as described under Section 8 -- Open Source Components below.
(7) Downloading the Mobile App requires suitable terminal devices and internet access, through which costs for the connection to the Apple App Store / Google Play Store may be incurred at User's sole expense.
(8) User agrees that these Terms of Use shall apply to the use and access of beta functionalities within the App. The term 'beta functionalities' refers to functionalities or components of the App that are labeled or identified as being in a testing phase, are subject to ongoing development, and may not yet be fully polished or ready for widespread use. The inclusion of beta functionalities within the scope of these Terms of Use acknowledges that User understands and accepts the inherent risks and uncertainties associated with using beta software. It is understood that beta functionalities may have known or unknown issues, bugs, or unexpected behaviors, and their functionality may change or be modified during the testing phase. User acknowledges that the purpose of including beta functionalities is to gather Feedback (as defined in Section 7(5)), assess performance, and make necessary improvements before the official release of the functionality. Therefore, any obligations, responsibilities, and rights outlined in these Terms of Use, including but not limited to confidentiality, intellectual property, and liability, shall also extend to the use and evaluation of beta functionalities. User further agrees that participation in testing beta functionalities is
voluntary, and any Feedback provided by User using the beta functionalities shall be considered as non-binding recommendations for the improvement of the App. Except as otherwise set forth in these Terms of Use, the use of the defined term "App" in these Terms of Use shall be deemed to include 'beta functionalities'.
3. Acceptance
(1) The Terms of Use are concluded as follows:
(i) The mere provision of the App does not constitute a binding offer to conclude these Terms of Use, but an invitation to the User to submit an offer for a registration.
(ii) By registering and creating a user account within the App, the User submits a legally binding offer to register subject to these Terms of Use with BASF. The Terms of Use are concluded between BASF and User upon the User's receipt of BASF's registration confirmation.
(2) The Terms of Use are concluded in the language of this document. The User can correct input errors before conclusion at any time by correcting the input.
(3) The then-current Terms of Use are stored accordingly by BASF and are accessible to the User at any time within the App.
(4) The User has no right of withdrawal from the Terms of Use.
(5) BASF's code of conduct can be retrieved under https://www.basf.com/global/en/who-we-are/organization/management/code-of-conduct.html
4. Provision of the App; Maintenance
(1) BASF shall provide reasonable access to and use of the App. Notwithstanding the forgoing, BASF may, reasonably taking into account the Users' interests, cancel access to and use of this App at any time and for any reason.
(2) BASF is free to restrict access to the App in whole or in part, temporarily or permanently due to maintenance work, capacity concerns and other events beyond its control. BASF will typically maintain the App outside of the peak usage hours, unless an immediate event requires, in BASF's sole discretion, maintenance during peak usage hours. Any part of the App may change without notice at any time in BASF's sole discretion. Subject to Section 4(5), as-needed patches or minor updates to the App and/or underlying algorithm are possible throughout the term of a User's License, however, these are not activities considered in determining the nature of BASF's promise in granting the License.
(3) BASF provides access to the Web App in a hosted environment, which allows the User to use the App over the internet without having User install and operate the software on User's own IT-Infrastructure.
(4) BASF shall use reasonable endeavors to maintain the availability of the Web App for the use by the User at the gateway between the public internet and the network of BASF's hosting servers. The Web App is available if it is usable at the gateway between the public internet and the network of BASF's hosting servers.
(5) Notwithstanding Sections 11 and 13 below, BASF is under no obligation to maintain the App or provide the solutions contained in the App and makes no warranty that it will do so. BASF is not obligated to update and/or upgrade the Mobile App and/or to offer regular updates and/or upgrades. If, however, BASF provides downloadable updates and/or upgrades for the Mobile App, the User is obligated to install these in order to receive information that is as up to date as possible and to ensure proper operation of the Mobile App. Otherwise, BASF cannot assure that the Mobile App will function properly, or that the information provided reflects the current status. Should the User not install an update and/or upgrades that are provided but continues to use the old version of the Mobile App nonetheless, the User thereby waives any claims regarding defects and claims for payment of damages to which User may be entitled.
5. Fee/Payment
(1) Each Retail User is obliged to pay BASF a License fee as specified in that Retail User's Subscription Order. For detailed information on pricing and fees, please refer to the Subscription Order.
(2) If a fee for a particular License subscription cannot be collected, User shall bear all resulting costs, in particular bank charges, other chargeback costs or comparable charges. Furthermore, BASF reserves the right to suspend Users from using the App if the applicable fee payment is overdue. All overdue amounts will accrue interest 1.5% per month or the maximum amount permitted by law, whichever is less. User's obligation to pay any balance or amounts due shall survive termination or expiration of the Subscription Order. BASF also reserves the right to apply and/or offset any balance or amounts due to User (for example, rebates) against any payment owed to BASF or BASF Affiliates by User, regardless of whether the amounts involved arose out of the same transaction or unrelated transaction.
(3) All fees are exclusive of any indirect taxes, including but not limited to value added taxes ("VAT") and/or similar taxes like for example, sales taxes, goods and service taxes, service taxes, business taxes, excise duties, customs duties and environmental levies that are or may be imposed by any tax authority and are arising or payable as a result of using the App under these Terms of Use. If applicable, indirect taxes will be charged in addition. In the event of the introduction of any new taxes or governmental levies by any level of government subsequent to the execution of a Subscription Order that negatively effects BASF (other than
taxes or levies based upon or measured by BASF's net income, capital or net worth), BASF reserves the right to invoice Retail User for said governmental taxes and/or levies attributable to the Subscription Order. USER AGREES TO COMPLY WITH ALL APPLICABLE TAX LAWS AND REGULATIONS AND SHALL INDEMNIFY AND HOLD BASF HARMLESS FROM ANY CLAIMS, PENALTIES, FINES, OR LIABILITIES ARISING FROM USER'S FAILURE TO FULFILL ITS TAX OBLIGATIONS. THIS TAX RESPONSIBILITY PROVISION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THESE TERMS OF USE.
(4) Payments for applicable Licenses shall be made as specified in Retail User's executed Subscription Order, subject to account set up and approval by BASF.
(5) BASF may use a third-party payment processor, in which case User must comply with such payment processor's (i) terms and conditions and (ii) process for payment. For some payment methods, the issuer may charge the User certain fees, such as foreign transactions fees or other fees relating to the processing of the User's payment method. Local tax charges may vary depending on the payment method used. It is the User's sole responsibility to check his payment method service provider for details.
6. User Obligations
(1) The User is solely responsible for any content User uploads, publishes or otherwise makes publicly available through the App. By using an account on the App, User represents and warrants to BASF that the information provided to BASF is true, accurate and complete. Further, User agrees to keep its information true, accurate and complete. BASF does not check the content, in particular for completeness, accuracy, legality, availability, quality and suitability for a specific purpose of any User uploads.
(2) The User is prohibited from any activities on or in connection with the App that violate applicable law, infringe the rights of third parties or violate the principles of youth protection.
(3) Furthermore, the User is also prohibited from performing the following activities irrespective of any violation of the law:
(i) Use the App outside of the User's Service Territory;
(ii) the distribution of viruses, trojans and other harmful files;
(iii) sending junk or spam mails and chain letters;
(iv) the dissemination of offensive, sexually oriented, obscene or defamatory content or communication as well as such content or communication which is/are suitable to promote or support racism, fanaticism, hatred, physical violence or illegal acts (either explicitly or implicitly in each case);
(v) the harassment of other Users, e. g. by multiple personal contact without or against the reaction of the other User as well as the promotion or support of such harassment
(vi) the request of other Users to disclose passwords or personal data for commercial or illegal purposes;
(vii) the dissemination and/or public reproduction of content available on the App; and
(viii) Utilizing or accessing the App for the intention of (i) conducting any form of benchmarking or comparative analysis of the App's functionality or any BASF products or services against those offered by competitors, particularly if the objective is to support the development or advertisement of competing goods, and/or (ii) creating any work that is based upon or derived from the App.
(4) The User is obliged to keep his access data to his user account secret and to protect it from access by third parties. Should the User become aware of the loss or misuse of his access data or the suspicion of misuse of his user account, the User must notify BASF immediately and change the password using the functionality provided on the App. A disclosure of the login data to third parties is prohibited. The User may not use the login data of any other person to access the App. The User will be solely responsible for the activities of anyone accessing the App using a password assigned to the User, even if the activities were not, in fact, authorized by User.
(5) THE USER SHALL INDEMNIFY AND HOLD HARMLESS BASF (INCLUDING MEMBERS OF THE COMPANY AND ANY SERVICE RECIPIENT, THEIR EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, SUCCESSORS, AND ASSIGNEES) FROM AND AGAINST ANY CLAIMS, LAWSUITS, ACTIONS, DAMAGES, COSTS, FINES AND EXPENSES (INCLUDING REASONABLE LEGAL COSTS AND DISBURSEMENTS) OR OTHER LIABILITY ARISING OUT OF OR RELATED TO THE USER'S CONTENT ON OR USE OF THE APP.
(6) BASF reserves the right to suspend Users from using the App at any time, in particular, if these Terms of Use, applicable law or the rights of third parties are violated or BASF has reasonable grounds for believing they may be violated. BASF is entitled to block or delete all content without prior notice if the content, in BASF's sole discretion, violates these Terms of Use and/or applicable law.
(7) The User is responsible for making User's own backups of User's system.
7. Intellectual Property Rights
(1) The owners of the intellectual property rights in the App are BASF, its affiliates, business partners or other third parties who have made the respective content and intellectual property rights under license available to BASF. The App and the content made available on the App may therefore not be changed, extended, edited, copied and/or otherwise distributed by the User. User has no right, title or interest (and no copyright, trademark or other intellectual property right) in or to the App or any content, information, materials, applications or other functionalities related thereto.
(2) The User agrees not to reproduce, distribute, modify or create derivative works of the App or any other components thereof and not to reverse engineer or decompile the App except as the same may be authorized under mandatory law.
(3) The User bears full responsibility for all images and information that the User, or a third party who has access permissions to the App, send to BASF with regard to their content and accuracy, as well as for ensuring that the rights of third parties are not violated. The type of information used and provided by the User shall include but not be limited to data on crops and types of plants, the planting date, field boundaries, soil preparation measures, crop protection measures including the products used, doses and times, and statistics regarding the use of the App ("Licensed Data").
(4) The User acknowledges and agrees to allow, without compensation to User, BASF to use the Licensed Data that the User, or a third party who has access permissions to the App, have provided for any business purposes of BASF or any BASF Affiliates and, in particular, to reproduce and to grant third party access without limitations to the Licensed Data (including, but not limited to, for the purpose of continually improving algorithms in the field of digital agriculture). For this purpose, the User shall grant BASF an irrevocable, worldwide, non-exclusive, royalty-free, sublicensable license to use the Licensed Data. The business purposes shall include but not be limited to the development, manufacturing, enhancement, and/or marketing of products and services. "BASF Affiliates" shall comprise all entities which, directly or indirectly, control, are controlled by or are under the common control with BASF as well as minority shareholdings and joint ventures. An entity shall be deemed to "control" another entity if the controlling entity possesses, directly or indirectly, ownership of at least fifty percent (50%) of the equity shares of such an entity and/or the power to direct the management of such an entity. The most current list of the BASF Affiliates is retrievable at https://www.basf.com/global/en/investors/basf-at-a-glance/corporate-governance.html
(5) Users may elect to provide BASF with feedback, enhancement requests, comments, and suggestions with respect to the App and related services ("Feedback"). User agrees that BASF will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without restriction and without compensation or attribution to User.
8. Open Source Components
(1) The App may include or operate in conjunction with certain third-party tools, formats, software, or products ("Open Source Components") which are subject to separate terms and conditions.
(2) The Open Source-Components used / embedded in the App as well as the applicable license terms are specified in the license tab available in the App.
(3) The User acknowledges that (i) the User is obliged to comply with the aforementioned separate terms and conditions with regard to the Open Source-Component and (ii) that with regard to the Open Source-Components, BASF does not assume any liability for warranty or damages that may have been caused by the Open Source-Component. With regard to any such claims, refer to the aforementioned terms and conditions of the applicable Open Source-Component.
9. Third-Party Websites; Disclaimer
Hyperlinks to third-party websites may be contained within the scope of the App. BASF does not endorse either these third-party websites or their content. In all cases, the respective provider or operator of the sites in question is responsible for the content of the sites linked to. The sites linked to were reviewed for possible legal violations at the time of placement of the link. Unlawful content was not ascertainable at the time of placement of the link. Ongoing monitoring of the content of the sites linked to is, however, not reasonable without concrete reason to suspect a legal violation. BASF will remove such links immediately if it becomes aware of any legal violations. Furthermore, BASF is not responsible for the availability of these websites or their content. The use of hyperlinks to these websites is at the User's own risk. In this context, BASF is not liable for damage or losses occurring through or as a result of the use of third-party websites. The use of links to outside websites is therefore at the User's own risk.
10. Term and Termination
(1) The Terms of Use are concluded for an undetermined period.
(2) In general, License subscriptions by the User are valid on a season by season basis -- typically August 1 until (and including) July 31 or December 31 at the conclusion of the current growing season. With respect to Retail Users, please refer to the Subscription Order for detailed information on the term of the applicable License.
(3) The Terms of Use can be terminated with immediate effect in text form (e.g. via email) or by deleting the User account at any time (i) by a Farm User, or (ii) by a Retail User after the term of the applicable Subscription Order has expired - provided, however that termination or expiration shall not relieve User of the obligations imposed upon User in these Terms of Use or applicable Subscription Order (including, but not limited to, payment of any outstanding fees).
(4) The right to terminate these Terms of Use or a License with immediate effect for cause, as set forth in the applicable Subscription Order, remains unaffected.
(5) Upon expiration or termination of these Terms of Use, the User shall (i) immediately cease use of the App and acknowledges that BASF may block User's access to the same and (ii) immediately, but no later than in 45 (forty-five) days, download, delete and/or destroy any downloaded content and printed materials. User acknowledges and agrees that (i) notwithstanding the expiration or termination of these Terms of Use, they will remain in full force and effect during this period, and (ii) BASF is not responsible for providing technical support to User for downloading the downloadable content.
(6) Farm User may request to delete their account at any time. Upon such a request, BASF will handle Farm User's personally identifiable information in accordance with applicable privacy laws and BASF privacy policies.
11. Rights In Case of Defects
(1) The App shall be provided and maintained in a condition suitable for contractual use. The obligation to maintain does not include the adaptation of the functionalities of the App itself to changed operating conditions and technical and functional developments, such as changes in the IT environment, in particular changes in the hardware or software, in particular the operating system, adaptation to the scope of functions of competing products or creation of compatibility with new browser versions.
(2) BASF warrants that the App is free of third-party rights, in particular intellectual property rights, that restrict or preclude use thereof in accordance with these Terms of Use. In case of any allegation that the use of the App, as authorized under this Terms of Use, violates or infringes the patent, copyright, trademark or other intellectual property rights of any third party:
(i) BASF has the right to either modify the App such that the adverse effect no longer applies or to obtain authorization for the App to be used in accordance with the Terms of Use, without limitation and without additional costs to the User.
(ii) The User agrees to provide BASF with prompt written notice and all reasonable cooperation, information, and assistance in connection with the matter. BASF's warranty obligation with regard to third-party rights is limited in any event to the App itself and does not extend to third-party software that is necessary for the functionality of the App.
(3) The right to claim damages is subject to the applicable limitations of liability under these Terms of Use.
(4) For the avoidance of doubt, BASF shall in no event be liable for a damage or loss if and to the extent such damage or loss arises from the User's failure to comply to recommendations or notices provided by or contained in the App.
12. Limitation of Liability
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS APP IS PROVIDED TO USER ON AN "AS IS", "AS AVAILABLE" AND "WHERE-IS" BASIS, WITHOUT ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND.
USER'S USE OF, AND ANY RELIANCE UPON, THE APP, INCLUDING, BUT NOT LIMITED TO, ANY INFORMATION, MATERIALS, DOWNLOADED APPLICATIONS, AGRONOMIC INFORMATION, YIELD DATA, WEATHER DATA, GUIDANCE, OR SUGGESTIONS IS AT USER'S OWN RISK. BASF DOES NOT WARRANT THE ACCURACY OR TIMELINESS OF THE FOREGOING, THE APP, OR ANY RELATED SERVICES. BASF HAS NO LIABILITY RELATING IN ANY WAY TO THE FOREGOING, INCLUDING, WITHOUT LIMITATION, ERRORS OR OMISSIONS THEREIN, WHETHER PROVIDED BY BASF OR THIRD PARTIES, AND BASF DOES NOT GUARANTEE THE AVAILABILITY OR FUNCTIONALITY OF THE APP OR RELATED SERVICES. THE APP MAY INCLUDE ERRORS OR INACCURACIES THAT MAY AFFECT THE USE AND QUALITY OF THE APP AND ITS OUTPUT. THE APP HAS NOT BEEN INDEPENDENTLY VERIFIED OR AUTHENTICATED IN WHOLE OR IN PART BY BASF. BASF DOES NOT WARRANT THE ACCURACY OR TIMELINESS IN THE APP.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BASF DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY, CONDITION OF QUALITY, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. SPECIFICALLY, BASF MAKES NO WARRANTY, REPRESENTATION OR GUARANTY REGARDING THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, OR OPERABILITY OF THE APP, ANY RELATED SERVICES, ANY STORED DATA OR OTHER INFORMATION, FUNCTIONALITIES, APPLICATIONS OR OTHER FEATURES PROVIDED.
BASF, INCLUDING BASF'S SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, OR ANY THIRD PARTY PROVIDING THE APP SHALL NOT BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST PROFITS OR REVENUE OR FAILURE TO REALIZE EXPECTED BENEFITS OR SAVINGS ARISING FROM OR CONNECTED WITH THIS APP OR ANY RELATED SERVICES, INCLUDING BUT NOT LIMITED TO, USER'S USE OF THE APP OR USER'S INABILITY TO USE THE APP, EVEN IF BASF HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF BASF AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO USER REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), EXCEED THE GREATER OF $100 OR THE AMOUNT USER HAS PAID (MINUS REBATES) TO BASF IN THE PRECCEDING TWELVE (12) MONTHS FOR THE APPLICABLE LICENSE OR SERVICE OUT OF WHICH LIABILITY AROSE. ALL
CLAIMS MADE BY USER HEREUNDER MUST BE MADE WITHIN ONE YEAR OF THE ACTION TO WHICH SUCH CLAIM RELATES OR FOREVER BE BARRED.
13. Limitations of Liability for Provided Content
(1) There shall be no liability for the content of the App. The App provides support for decision-making that is based on probabilities, statistical models and on information provided by the User.
When providing information for particular crops or fields like e.g.
(i) the current weather situation and forecasts;
(ii) field-specific growth stages;
(iii) the protection time remaining from previous applications of crop protection measures;
(iv) the risk of certain insects or diseases appearing;
(v) field-specific application times for crop protection and fertilizers; and
(vi) zone-specific application maps for variable dosing of seeds, fertilizers, crop protection and growth regulators.
This App provides certain probabilities for a particular outcome and recommends actions accordingly. However, this App does not make any conclusive assessment. Making this assessment remains User's own responsibility.
(2) The User shall bear in mind the following limitations which apply to the decision-making support generated by this App:
(i) The decision-making support is generated using highly complex algorithms. However, it is obviously not possible for an algorithm to model every single feature of an individual event. The App therefore provides an approximation for customized decision-making support with the possibility of as-needed patches or minor updates throughout the Term of a User's License; however, these are not activities considered in determining the nature of BASF's promise in granting the License.
(ii) New and updated data, which form the basis of the decision-making support, may periodically be fed into the algorithm. BASF compiles this data with reasonable due diligence. However, no guarantee can be made as to whether the data is correct, complete, and up to date. Errors in a data record could lead to unreliable decision-making support.
(iii) BASF thus assumes no liability, neither explicit nor implied, for the information and decision-making support contained in this App being correct, complete, and up to date. BASF therefore recommends that the User checks all information received from this App before using it in any form. If the User requires recommendations or instructions for this App, User should not hesitate to contact BASF directly. Users of this App agree to access the App and its contents at their own risk. Neither BASF nor third parties that are involved in the creation, production, or transmission of this App are liable for damages or injuries arising from the access or the impossibility of access, the use, or impossibility of use of this App, or from the fact that they rely on information that is contained within this App.
(3) Further, the User acknowledges and agrees that the use and/or manufacture of the products, e.g. crop protection products, growth regulators, fertilizers, seeds, and/or mixtures or combinations of such products recommended by the App shall be the sole responsibility of the User and that it is up to the User to obtain any permits and/or licenses that are necessary for such use and/or manufacture. In case of a violation of any statutory requirement and/or third party rights, including intellectual property rights, as a result of the User's decision to use and/or manufacture a product, e.g. crop protection products, growth regulators, fertilizers, seeds, and/or mixtures or combinations of such products based on a recommendation made by the App, the responsibility for such use and/or manufacture will be solely with the User, and BASF's liability shall be excluded in this respect.
14. Data Protection
(1) Since data protection is a high priority at BASF, BASF complies stringently with applicable data protection laws, when processing (e.g. collecting, using, disclosing etc.) personal data. Notwithstanding anything contained in the Terms of Use, any personal information received by BASF from the User of this App shall be treated collected, used, and disclosed by BASF in accordance with applicable privacy laws and BASF privacy policies. The applicable privacy policy will be determined by the Service Territory in which the User is located and is accessible from the App. Refer to Appendix 1 for a link to the applicable privacy policy for each Service Territory.
(2) The User shall comply with the applicable data protection laws when providing personal data to BASF, e.g. through the App.
(3) The App provides functionality for the User to share specific information, such as Licensed Data, with other Users of the App. This includes, but is not limited to, the sharing of data between a Farm User and a Retail User, or sharing of data with authorized third-parties. By choosing to share information, User gives BASF permission to share the User's information as specified within the App (thereby enabling said party to download a copy of User's information to their own system or further share User's information without seeking further authorization from User). Notwithstanding Section 10(6), if a Farm User chooses to revoke a Retail User's access to the Farm User's farm (including Licensed Data) and / or any personally identifiable information of the Farm User, (i) access can be revoked to the Retail User by notifying the Retail User; and (ii) the Retail User is solely responsible for removing from the Retail User's account the Farm User's personally identifiable information. BASF assumes no responsibility and is not responsible for the actions of Users and third parties with whom the User has shared their information.
(4) Retail User represents and warrants that it has obtained all necessary rights, consents, and permissions to share personal data on behalf of any Farm User. Retail User further agrees to comply with all applicable laws, regulations, and industry standards relating to the collection, use, and disclosure of personal data. RETAIL USER SHALL INDEMNIFY AND HOLD HARMLESS BASF - INCLUDING BASF'S SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, OR ANY THIRD PARTY PROVIDING THE APP - FROM ANY CLAIMS, LIABILITIES, DAMAGES, OR LOSSES ARISING OUT OF OR RELATING TO ANY BREACH OF THIS REPRESENTATION AND WARRANTY. THIS OBLIGATION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THESE TERMS OF USE.
(5) Notwithstanding anything to the contrary in these Terms of Use, and in compliance with applicable data protection laws, in no instance will BASF be obligated to delete any data that is aggregated, de-identified, or anonymous which is no longer attributable to a specific individual.
15. Confidentiality
(1) The User shall treat the Confidential Information which he becomes aware of, in particular in connection with the use of the App, confidential and keep them secret.
(2) "Confidential Information" includes all information of BASF:
(i) concerning the functionalities of the App;
(ii) concerning business and trade secrets, in particular those marked as "confidential"; and
(iii) which - orally, in writing, electronically or in any other form - are recognizable as confidential at the time of disclosure or acknowledgement due to the circumstances of the disclosure or its nature.
(3) Such Confidential Information is excluded from this obligation,
(i) which were demonstrably already known to the User at the time of conclusion of the Terms of Use or which subsequently become known to the User by a third party without this violating any confidentiality Terms of Use, statutory provisions or official orders;
(ii) which are publicly known when the contract is concluded or are subsequently made public, unless this is due to a violation of these Terms of Use;
(iii) can be proven by the User that it has independently developed such Confidential Information;
(iv) which must be disclosed by law or by order of a court or authority. As far as permissible and possible, the User obliged to disclose will inform BASF in advance and give it the opportunity to take action against the disclosure.
(4) The User may disclose Confidential Information to its personnel and/or subcontractors to the extent necessary to perform its obligations under this Terms of Use, its professional consultants or if and to the extent the disclosure is required in order to comply with mandatory applicable law, provided that the User shall ensure that the recipient of the Confidential Information is bound by confidentiality obligations no less stringent to those set out in this Section.
(5) This confidentiality obligation continues even after termination of the Terms of Use.
16. Changes
BASF is entitled to change these Terms of Use at any time. Any changes to the Terms of Use will be effective upon posting on the Web App and will also be visible when User logs into User's App account. By continuing to use the App after these changes, User accepts the updated Terms of Use. If User does not agree to the revised Terms of Use, User must discontinue using the App immediately.
17. Miscellaneous
(1) Should one or more provisions of these Terms of Use be invalid or unenforceable due to violation of applicable law or another reason, the rest of the Terms of Use shall remain valid. The invalid or unenforceable provision shall be replaced by a valid, enforceable provision, which most approximately represents the mutual understanding of the parties.
(2) The law governing validity, interpretation and implementation of this Terms of Use as well as the courts competent to have jurisdiction over any dispute arising out of, or relating to this Terms of Use, are specified in Appendix 1.
(3) Force Majeure: BASF shall not be liable for any failure or delay in the performance of its obligations under these Terms of Use if such failure or delay is caused by events beyond the reasonable control of BASF, including but not limited to acts of God, war, terrorism, natural disasters, government actions, strikes, lockouts, or any other event that is beyond the reasonable control of BASF.
(4) No Class Actions: ANY CLAIM BROUGHT BY USER AGAINST BASF MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. USER EXPRESSLY WAIVES ANY ABILITY TO MAINTAIN ANY CLASS ACTION IN ANY FORUM.
(5) Assignment: These Terms of Use shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. However, User may not assign, delegate, or otherwise transfer these Terms of Use or any of its rights or obligations hereunder, without the prior written consent of BASF. Notwithstanding anything to the contrary in these Terms of Use, BASF may assign or otherwise transfer these Terms of Use to any of its affiliates without the prior written consent of User.
(6) Survival: The respective indemnities, representations, warranties and agreements which by their express terms or clear intent survive termination of these Terms of Use, including, without limitation, the provisions regarding indemnification, disclaimer of warranty, liability, and limits thereon, will survive termination of the Terms of Use, and will remain in full force and effect according to it terms.
(7) Additional Information and Q&A Links: Appendix 1 shall provide links to relevant resources where the additional information and materials are hosted. It is the responsibility of User to review and access the most current versions of the linked materials, as the information and resources provided through these links may be subject to change or modification over time due to updates or amendments to the App or its associated documentation.
18. Specific product information, further terms of use
(1) xarvio FIELD MANAGER offers different categories of Features:
(i) Field Monitor: visualization & easy documentation of field zone specific data from many different sources, e.g. satellite, weather stations, agronomic models, soil maps, as applied maps for all inputs.
(ii) Seeding: Variable seeding maps to adjust seeding density. Based on the yield potential of each field zone, e.g. by analyzing historical biomass distribution, yield-, soil- and elevation maps.
(iii) Fertilization: crop- and field specific growth stage models determine the best timing for fertilizers and through analyses of satellite data & yield maps. Furthermore, variable nutrition dosing maps to fertilize each field zone efficiently.
(iv) Crop Protection: crop and field specific overview and alerts on in-field stress factors as well as recommendations to prevent yield impacting risks most efficiently. Field-zone specific application maps to optimize dosing according to in- field risk differences. The recommendations are based on available data & agronomic models, e.g. satellites, weather stations, seed variety & CP characteristics, soil maps, customer input, growth stage models, disease, insect & weed models.
(v) *xarvio BIOENERGY: an ethanol plant-centric tool used for reporting low carbon intensity crops, thereby helping ethanol producers potentially monetize low carbon intensity feedstocks with associated tax credits. Additional or divergent terms of use for xarvio BIOENERGY are as specified in Appendix 2. *This Feature is only available to Users whose Service Territory is USA.
(2) Country specific xarvio FIELD MANAGER product scope can be found on the respective xarvio.com country website for the FIELD MANAGER.
19. Local Law Requirements
Depending on User's country of residence, additional or divergent terms may apply. These terms are specified in Appendix 1 and govern User's use of the App, if applicable.
20. International users
(1) This App is checked, operated, and updated by the BASF entity specified in Appendix 1. It is only intended for use in the respective country. Users accessing this App from an area outside of this region and/or download content from it are thereby solely responsible for ensuring that such use is compliant with the relevant local legislation in the User's country of residence.
Appendix 1
| Country | Provider | Applicable Law and place of Jurisdiction pursuant to Sections 18 - 20 | Additional or Divergent Terms Based on Country/Provider pursuant to Sections 18 - 20 |
|---|---|---|---|
| Canada | BASF Canada Inc. | Applicable law: Province of Alberta and the federal laws of Canada Place of Jurisdiction: Court of King’s Bench of Alberta, judicial district of Calgary |
Privacy Policy referenced in Section 14(1): https://fm.xarvio.com/docs/privacy/en_ca.html Additional Information and Q&A Links as referenced in Section 17(7) of the Terms of Use: xarvio Knowledge Base |
| USA | BASF Corporation | Applicable law: North Carolina Place of Jurisdiction: State courts of North Carolina |
Privacy Policy referenced in Section 14(1): https://fm.xarvio.com/docs/privacy/en_us.html Additional Information and Q&A Links as referenced in Section 17(7) of the Terms of Use: xarvio Knowledge Base Section 19 of the Terms of Use shall be amended to include the following subsections (1) and (2): (1) No Export: User acknowledges and agrees that the exercise of the rights granted to User under these Terms of Use are subject to all applicable laws, enactments, regulations and other similar instruments, and User understands and agrees that it shall at all times be solely liable and responsible for such due observance and performance in exercising such rights. User acknowledges and agrees that, to the extent applicable, the information available on the App is subject to the export control and economic sanctions laws and regulations of the United States, potentially including but not limited to the Export Administration Regulations (“EAR”) administered by the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”), and various economic sanctions regimes administered by the U.S. Treasury Department’s Office of Foreign Asset Controls (“OFAC”). User agrees to comply with these laws and regulations. Among other requirements of these laws and regulations, User shall not, without prior U.S. Government license or other authorization, export, re-export, transfer or sublicense any information from the App, as applicable, either directly or indirectly, to any country that is subject to a comprehensive U.S. trade embargo (currently Cuba, Iran, North Korea, Sudan, and Syria) or to any person or entity that is listed on the “Entity List” or “Denied Persons List” maintained by BIS or the “Specially Designated Nationals and Blocked Persons List” maintained by OFAC.* |
Appendix 2
The use of xarvio BIOENERGY is subject to the Terms of Use, except as specifically amended or modified by the provisions outlined in this Appendix 2. The following amendments apply exclusively to the additional xarvio BIOENERGY Feature:
(i) Section 2(1) of the Terms of Use is hereby deleted in its entirety and replaced with the following:
(1) BASF provides access to the App exclusively to (i) retailers, including retailer's administrators, agronomists and/or sales representatives ("Retail User(s)"), (ii) end users of the App that are farmer customers of Retail User ("Farm User(s)"), (iii) ethanol plants, including ethanol plant's administrators ("Plant User"), (iv) grain elevators, including grain elevator's administrators ("Elevator User"), and (iv) auditors ("Auditor User") - collectively "Users" and each a "User". A User refers to the individual person, company, or organization that (i) registers and/or creates a User account within the App, (ii) accesses and/or uses any part of the App, and/or (iii) in the case of an applicable Retail User, Plant User and/or Elevator User, has fully executed an order for a paid subscription to the App ("Subscription Order"). User must be at least eighteen (18) years old or the age of majority in User's jurisdiction, whichever is greater, to use the App. By accessing or using the App, User confirms that User meets these age requirements. While the basic functionality of the App is made available under a paid subscription between BASF and User, additional special features may be available within the App ("Features"), which may require a separate paid subscription or fee. Except as otherwise set forth in these Terms of Use, the use of the defined term "App" in these Terms of Use shall be deemed to include "Features".
(ii) Section 5(1) of the Terms of Use is hereby deleted in its entirety and replaced with the following:
(1) Each applicable Retail User, Plant User, and/or Elevator User is obliged to pay BASF a License fee as specified in that User's Subscription Order. For detailed information on pricing and fees, please refer to the Subscription Order.
(iii) Section 5(3) of the Terms of Use is hereby deleted in its entirety and replaced with the following:
(3) All fees are exclusive of any indirect taxes, including but not limited to value added taxes ("VAT") and/or similar taxes like for example, sales taxes, goods and service taxes, service taxes, business taxes, excise duties, customs duties and environmental levies that are or may be imposed by any tax authority and are arising or payable as a result of using the App under these Terms of Use. If applicable, indirect taxes will be charged in addition. In the event of the introduction of any new taxes or governmental levies by any level of government subsequent to the execution of a Subscription Order that negatively effects BASF (other than taxes or levies based upon or measured by BASF's net income, capital or net worth), BASF reserves the right to invoice the applicable Retail User, Plant User, and/or Elevator User for said governmental taxes and/or levies attributable to the Subscription Order. USER AGREES TO COMPLY WITH ALL APPLICABLE TAX LAWS AND REGULATIONS AND SHALL INDEMNIFY AND HOLD BASF HARMLESS FROM ANY CLAIMS, PENALTIES, FINES, OR LIABILITIES ARISING FROM USER'S FAILURE TO FULFILL ITS TAX OBLIGATIONS. THIS TAX RESPONSIBILITY PROVISION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THESE TERMS OF USE.
(iv) Section 5(4) of the Terms of Use is hereby deleted in its entirety and replaced with the following:
(4) Payments for applicable Licenses shall be made as specified in the applicable Retail User's, Plant User's, and/or Elevator User's executed Subscription Order, subject to account set up and approval by BASF.
(v) Section 10(2) of the Terms of Use is hereby deleted in its entirety and replaced with the following:
(2) In general, License subscriptions by the User are valid on a season by season basis -- typically August 1 until (and including) July 31 or December 31 at the conclusion of the current growing season. With respect to the applicable Retail Users, Plant Users, and/or Elevator Users, please refer to the Subscription Order for detailed information on the term of the applicable License.
(vi) Section 10(3) of the Terms of Use is hereby deleted in its entirety and replaced with the following:
(3) The Terms of Use can be terminated with immediate effect in text form (e.g. via email) or by deleting the User account at any time (i) by a Farm User, or (ii) by an applicable Retail User, Plant User, and/or Elevator User after the term of the applicable Subscription Order has expired - provided, however that termination or expiration shall not relieve User of the obligations imposed upon User in these Terms of Use or applicable Subscription Order (including, but not limited to, payment of any outstanding fees).
(vii) Section 14(3) of the Terms of Use is hereby deleted in its entirety and replaced with the following:
(3) The App provides functionality for the User to share specific information, such as Licensed Data, with other Users of the App. This includes, but is not limited to, the sharing of data between a Farm User and a Retail User, a Farm User and a Retail User to a Plant User, or sharing of data by a User with other authorized Users and/or third-parties. By choosing to share information, User gives BASF permission to share the User's information as specified within the App (thereby enabling said party to download a copy of User's information to their own system or further share User's information without seeking further authorization from User). Notwithstanding Section 10(6), if a Farm User chooses to revoke a Retail User's access to the Farm User's farm (including Licensed Data) and / or any personally identifiable information of the Farm User, (i) access can be revoked to the Retail User by notifying the Retail User; and (ii) the Retail User is solely responsible for removing from the Retail User's account the Farm User's personally identifiable information. Notwithstanding the forgoing, such a revocation by the Farm User may result in Farm User's disqualification in applicable low carbon intensity crop programs. BASF assumes no responsibility and is not responsible for the actions of Users and third parties with whom the User has shared their information.
(viii) Section 14(4) of the Terms of Use is hereby deleted in its entirety and replaced with the following:
(4) User represents and warrants that it has obtained all necessary rights, consents, and permissions to share personal data on behalf of any Farm User. User further agrees to comply with all applicable laws, regulations, and industry standards relating to the collection, use, and disclosure of personal data. USER SHALL INDEMNIFY AND HOLD HARMLESS BASF - INCLUDING BASF'S SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, OR ANY THIRD PARTY PROVIDING THE APP - FROM ANY CLAIMS, LIABILITIES, DAMAGES, OR LOSSES ARISING OUT OF OR RELATING TO ANY BREACH OF THIS REPRESENTATION AND WARRANTY. THIS OBLIGATION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THESE TERMS OF USE.
In the event of any conflict between the Terms of Use and the terms applicable to the xarvio BIOENERGY Feature in this Appendix 2, the modifications specified herein shall take precedence. By utilizing the additional Feature, the User agrees to comply with both the Terms of Use and the specific amendments detailed in this Appendix 2.