Terms of Service
PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND AGRISYNC. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT ACCEPT THESE TERMS OR CREATE AN ACCOUNT, AND YOU SHOULD NOT USE THE SERVICES (AS DEFINED BELOW).
THE SERVICES ARE INTENDED FOR BUSINESS USE OR USE IN CONNECTION WITH AN INDIVIDUAL’S TRADE, CRAFT, OR PROFESSION ONLY.
THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 10.
IN ADDITION, DISPUTES RELATED TO THESE TERMS OR THE SERVICES GENERALLY MUST BE RESOLVED BY A DISPUTE RESOLUTION PROCESS WHICH MAY LEAD TO BINDING ARBITRATION. For more details, go to Section 13.
In these Terms of Service (referred to as these “Terms” or this “Agreement”), “we”, “us,” “our” or “AgriSync” will refer collectively to AgriSync Inc., a Delaware corporation, located at PO Box 475, Waukee, Iowa 50263. The terms “you”, “your”, or “Customer” will refer to you.
If you create an account or otherwise interact directly with us and the Services on behalf of an organization, you are agreeing to these Terms for that organization, you are promising to us that you have the authority to bind that organization to these Terms, and “you”, “your”, or “Customer” will refer to that organization where the context suggests is should.
Whenever you use the Services, whether on your own account or as an organization’s representative, you are also considered a User (defined below) of the Services, and certain other policies and provisions referenced in these Terms apply to you in both your individual and representative capacities.
If Customer is using the Services as part of a private program, then additional terms related to that program are set forth in one or more additional agreements (collectively “Program Terms”), and the Program Terms are incorporated into and made a part of these Terms and vice versa. Where these Terms and any Program Terms are inconsistent or in conflict, the Program Terms supersede these Terms.
If Customer has a separate written agreement with us covering the use of the Services, then these Terms continue to apply except as expressly modified or superseded in the separate written agreement.
AgriSync or Customer may be referred to in these Terms individually as “party” and together as “parties.”
To be eligible to use the Services, you must review and accept these Terms.
When we refer to the “Services” in these Terms, we mean all products and services made available by us that are used by you, ordered by you under an Order (as defined below), or provided to you as Beta Offerings (as defined below), on a trial basis, or free of charge.
1. Changes to These Terms. We may update these Terms from time to time. We will provide you with prior written notice of any material updates via communication through the Services or your Customer contact information provided to us. Except as otherwise specified by us, updates will be effective upon their publication by us. The updated version of these Terms will supersede all prior versions. Following such update, your continued use of the Services on or after the effective date of the updated version of these Terms constitutes your acceptance of such updated Terms. If you do not agree to the updated version of these Terms, you must stop using the Services immediately.
2. Your Account. To use the Services, you will be asked to create an account. As part of the account creation process, you’ll be asked to provide your name, organization name, email address and provide a telephone number to which we will send you a verification code to access the Services. Until you create an account, your access to the Services will be limited to what is available to the general public. When creating an account, you must provide true, accurate, current, and complete information about yourself as requested during the account creation process. You must keep that information true, accurate, current, and complete after you create an account.
3. Providing the Services.
3.1 Orders. Your use of the Services will be subject to and permitted after our receipt of your acceptance of the structure and rates for the Services and other commercial terms (“Order”). An Order may take any of the following forms: Your acceptance of a quote, your payment to us for the Services, your receipt of an uncontested invoice from us, your use of the Services after communication from us regarding the structure, rates and commercial terms for use of the Services, or your self-provisioning the Services through our websites or applications.
3.2 Our Responsibilities. We will (a) make the Services available to you in accordance with these Terms, any applicable Program Terms, and your Order; (b) provide the Services in accordance with laws applicable to our provision of the Services to our customers generally (i.e. without regard for your particular use of the Services), subject to your use of the Services in accordance with these Terms, any applicable Program Terms, and your Order(s); and (c) use commercially reasonable efforts to provide you with applicable support for the Services.
3.3 Beta Offerings. From time to time, we may make Services that are identified as alpha, beta, not generally available, limited release, developer preview, or any similar Services offered by us (collectively, “Beta Offerings”) available to you. You may choose to use Beta Offerings in your sole discretion. We may at any time, in our sole discretion, discontinue Beta Offerings, decide not to make a Beta Offering generally available, and change the scope of or fees for Beta Offerings.
3.4 Suspension of Services. We may suspend the Services immediately upon notice to you for cause if: (a) you or any User (as defined below) materially breaches (or we believe that you or a User has materially breached) any provision of these Terms, including any obligations under our Acceptable Use Policy; (b) there is an unusual and material spike or increase in your use of the Services and we believe that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services; (c) we determine that our provision of the Services is prohibited by applicable law or regulation; (d) there is any use of the Services by you or a User that in our judgment threatens the security, integrity, or availability of the Services; or (e) information in your account is untrue, inaccurate, or incomplete. However, we will use commercially reasonable efforts under the circumstances to (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) where practicable, limit the suspension based on the circumstances leading to the suspension (e.g., to certain phone numbers or other subset of traffic); and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
If we suspend the Services pursuant to this Section 3.4 or Section 6, we will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur in connection with any such suspension.
3.5 Changes to the Services. We may suspend or discontinue any part of the Services, introduce new features, impose limits on certain features, or restrict access to parts or all of the Services. If we intend to discontinue a material part of the Services other than Beta Offerings we will notify you in advance and offer pro-rata refunds for the discontinued portion of the Services you prepaid to use.
3.6 Integration with Non-AgriSync Applications. The Services may contain features designed to interoperate with non-AgriSync applications. We cannot guarantee the continued availability of such Service features and may cease providing them without entitling you to any refund, credit, or other compensation if, for example and without limitation, the provider of a non-AgriSync application ceases to make the non-AgriSync application available for interoperation with the corresponding Service features in a manner acceptable to us.
4. Your Responsibilities, Representations and Warranties. You accept the following responsibilities and represent and warrant to us that you have, are and will continue to fulfill them:
4.1 You are solely responsible for all use of the Services under your account, including the quality and integrity of any data and other information made available to us by you or for you through the use of the Services under these Terms.
4.2 You do not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to Users (defined below) in connection with the use permitted under these Terms) or offer them on a standalone basis.
4.3 You and your Users use the Services only in accordance with these Terms, our Acceptable Use Policy, our Messaging Policy, any applicable Order(s), and applicable law or regulation.
4.4. You are solely responsible for all acts, omissions, and activities of anyone who accesses or otherwise uses the Services as a result of your Order or your use of the Services or by using your account (“User”), including Users’ compliance with these Terms, our Acceptable Use Policy, and any applicable Order(s).
4.5 You use your best efforts to prevent unauthorized access to or use of the Services and notify us promptly of any such unauthorized access or use.
4.6 You will provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers.
4.7 You have provided, and will continue to provide, adequate notices and have obtained, and will continue to obtain, the necessary permissions and consents to provide Customer Data to us for use and disclosure pursuant to Section 7.
4.8 To the extent you manually or automatically export Customer Data from the Services or expose Customer Data from within the Services to a system or process outside of the Services, you have notified all Users prior to their use of the Services that their Customer Data may be transmitted or processed outside our Services and, to that extent, we are not responsible for the privacy, security or integrity of that Customer Data.
4.9 You and Users do not use the Services in any manner that infringes on or misappropriates a third party’s intellectual property rights.
4.10 Recordings and Communications Monitoring. If you record or monitor telephone calls, SMS messages, or other communications using the Services, then you will comply with all applicable laws prior to doing so and will secure all required prior consents to record or monitor communications using the Services. We make no representations or warranties with respect to recording or monitoring of telephone calls, SMS messages, or other communications. You acknowledge that these representations, warranties, and obligations are essential to our ability to provide you with access to recording and monitoring features that are part of the Services, and you further agree to indemnify us in accordance with the terms of Section 9 for claims arising out of or related to your acts or omissions in connection with providing notice and obtaining consents regarding recording or monitoring of telephone calls, SMS messages, or other communications using the Services.
5. Limitation of Our Warranties, Limitation of Your Remedy and Warranty Disclaimer
5.1 Except as provided in Section 5.3, we warrant that the Services will perform materially in accordance with the descriptions on our websites and in any applicable Order. Our sole obligation, and your sole and exclusive remedy, in the event the Services fail and cannot be restored within 15 days is, at our option, to re-perform the affected Services or refund to you the fees you actually paid within the latest 12 months for the affected Services.
5.2 Inherent Insecurity of Internet and Telecommunications Networks. You acknowledge that many functions of the Services utilize Internet and telecommunications providers’ networks and that those networks are inherently insecure. Accordingly, you agree we are not liable for any changes to, interception of, or loss of Customer Data while in transit via the Internet or a telecommunications provider’s network.
5.3 DISCLAIMER. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, THE SERVICES ARE PROVIDED “AS IS,” AND WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. WE ADDITIONALLY DISCLAIM ALL WARRANTIES RELATED TO THIRD PARTY TELECOMMUNICATIONS PROVIDERS. BETA OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER, AND WE WILL HAVE NO LIABILITY AND NO OBLIGATION TO INDEMNIFY FOR ANY BETA OFFERING WHATSOEVER.
6. Fees, Payment Terms, Automatic Renewals.
6.1 Fees. You agree to pay fees in accordance with the then-current publicly published rates on our websites unless otherwise set forth in applicable Order(s). Fees are payable in United States dollars, payment obligations are non-cancelable, and fees paid are non-refundable except as provided in these Terms. All fees are due immediately unless otherwise provided in an Order.
6.2 Overdue Charges. If we do not receive fees owed by you by the due date, then at our discretion, we may charge and collect late interest from you at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, without limiting our other rights and remedies, we may suspend the Services to you until your Fees and any interest charged have been paid in full.
6.3 Taxes. Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are responsible solely for taxes assessable against us based on our income, property and employees.
6.4 Automatic Renewal. All monthly and annual subscriptions to the Services renew automatically unless expressly provided otherwise in an Order. To avoid automatic renewal of an annual subscription, you must notify us at email@example.com at least two weeks before the annual renewal date for your subscription. To terminate a monthly subscription and avoid automatic renewal, you must notify us at firstname.lastname@example.org at least one week before the renewal date for your subscription. If you do not timely notify us, then your Order is considered automatically amended for the renewal period, and you authorize us to continue your automatic payments or invoice you accordingly. We have no obligation to send you renewal reminders.
6.5 Rate Changes. We may modify our rates at any time. If we increase our rates for any Services subscription which renews automatically, we will give you notice of the new rate on or before the beginning of the renewal term in which the rates will be effective. If you do not end your subscription before the automatic renewal date, then your Order is considered automatically amended for the modified rate for the renewal period, and you authorize us to update and continue your automatic payments or invoice you accordingly.
7. Data Definitions and Treatment; Licenses and Intellectual Property
7.1 Customer Data Defined. Any electronic data and information submitted by or for you or a User to the Services is “Customer Data” while in its original, as-submitted form. Subject to the limited licenses granted in these Terms, we acquire no right, title or interest in or to any Customer Data.
7.2 AgriSync Data Defined. The following data and information is “AgriSync Data,” is expressly not considered Customer Data, and is owned exclusively by us:
7.2.1 Any information or data disclosed by us to you that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, so long as we have not made the information or data generally publicly available. Examples include, without limitation, Order(s), security reports and attestations, audit reports, non-public pricing, concepts, processes, plans, designs and other strategies, “know how”, financial, and other business and/or technical information and materials.
7.2.2. Any data in anonymized or aggregated form that does not identify you or Users.
7.2.3. Any calculations, programmatic manipulations, insights, analysis, performance results, behavior volumes, frequencies, trends, metadata, translations, sentiment analysis, or machine learning outputs derived from the Services, whether or not based in whole or in part on Customer Data and whether or not made available to you through the Services.
7.3 Customer Data Treatment.
7.3.1 Privacy Notice. We maintain a Privacy Notice at https://www.agrisync.com/privacy-notice, and the latest version of it is incorporated into these Terms by this reference. If you do not agree with the terms of our Privacy Notice, you must stop using the Services immediately.
7.3.2 Data Security. You may request at any time to review our data and security customer guide.
7.3.3 Data Processing Addendum. The latest version of our data processing addendum at https://www.agrisync.com/DPA (“DPA”) is incorporated by this reference into these Terms and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by us, the Standard Contractual Clauses set forth in the DPA shall apply. For the purposes of the Standard Contractual Clauses, you and any applicable affiliates are each the data exporter, and your and any appliable affiliates’ acceptance of these Terms shall be treated as execution of the Standard Contractual Clauses and their Appendices.
7.3.4 Customer Data Retention and Deletion at Termination. Upon request by you made within 30 days after the effective date of termination of these Terms, we will make your Customer Data available to you for export or download. After such 30-day period, we will have no obligation to maintain or provide any Customer Data, and as provided in the Privacy Notice may thereafter delete or destroy all copies of Customer Data in our systems or otherwise in our possession or control, unless legally prohibited.
7.3.5 Instructions from You to Us. You instruct us to use and disclose Customer Data as necessary to: a) provide the Services consistent with our Privacy Notice, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Services, (b) respond to any technical problems or your queries and ensure the proper working of the Services, and (c) deliver any customer success, training, onboarding or similar efforts to you and your Users.
7.3.6 Customer Data License from You to Us. You grant us a worldwide, royalty free, limited-term license to host, copy, use, transmit, and display Customer Data for the following purposes:
a) To enable us to provide and ensure proper operation of the Services to you in accordance with these Terms; and
b) To enable us to discover, evaluate and develop new features, functions, products and programs that may deliver business value to you; and
c) For the further purposes identified in any Program Terms applicable to you; and
d) If you choose to use a non-AgriSync application with the Services, to allow the non-AgriSync application and its provider to access Customer Data and information about your usage of the non-AgriSync application as appropriate for the interoperation of that non-AgriSync application with the Services.
7.3.7 If compelled by legal authorities, we may disclose your Customer Data as further provided in the Privacy Notice.
7.4 Feedback Licensed from You to Us. We welcome any recommendations, suggestions, improvement or correction requests, comments, or other feedback from you about the Services (collectively, “Feedback”). By submitting Feedback to us, you agree that: (a) Feedback is not Customer Data; (b) we may use or disclose, or choose not to use or disclose, Feedback for any purpose and in any way; and (c) you grant us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our Services any Feedback.
7.5 Use of Your Marks. You grant us the right to use your name, logo, a description of your use case and to refer to you on our website and in or marketing or promotional materials, subject to your standard trademark usage guidelines that you expressly provide to us. Unless you opt out through your settings in the Services, you also grant us the right to publish your logo, name, User names, and contact information within the Services as part of the Services’ functionality.
7.6 Your Use and Disclosure of AgriSync Data. Except as otherwise authorized by us in writing, you will not a) use AgriSync Data for any purpose outside the scope of these Terms or b) disclose or make AgriSync Data available to anyone except your employees, legal counsel, accountants, and contractors who have a “need to know” in order to carry out the purpose of these Terms. If you are required pursuant to a regulation, law, subpoena, or court order to disclose AgriSync Data (collectively, “Compelled Disclosure”) you will give us advanced notice of your intent to make a Compelled Disclosure, a reasonable opportunity to decide whether to contest it, and, if we do, reasonable cooperation in our effort to do so.
7.7 Reservation of Rights. Subject to the limited rights expressly granted in these Terms, we and our licensors reserve all right, title and interest in and to the Services and AgriSync Data, including all of the related intellectual property rights. No rights are granted to you under these Terms other than as expressly set forth herein.
8. Voice and Messaging Numbers.
8.1 No Guaranteed Availability. Any voice or messaging numbers assigned by us to you or that we assist you in procuring as part of the Services are not guaranteed to remain available to you, though we will use our best efforts to minimize unwanted changes to those numbers.
8.2 Subject to Phone Number Rules. Customer acknowledges that voice and messaging numbers associated with Customer’s account are subject to (a) domestic and international laws, policies, and regulations and (b) requirements of underlying telecommunications providers, international intergovernmental organizations (e.g., International Telecommunications Union (ITU)), and phone numbering plan administrators ((a) and (b) collectively, “Phone Number Rules”). We may withdraw or replace any phone number associated with Customer’s account (x) if required pursuant to the Phone Number Rules; (y) if the use of such phone number violates Phone Number Rules; or (z) for technical reasons. We will, where possible, provide Customer with notice prior to any phone number withdrawal or replacement for the foregoing reasons.
8.3 Withdrawal or Replacement For Non-Use. We may withdraw or replace any voice or messaging number provisioned by us as part of the Services without prior notice if such phone number has not been used for more than ninety (90) days.
8.4 Portability on Termination of Services. Subject to the other provisions in this Section 8, on written request from you, we will cooperate with you to release to you within thirty (30) days of your termination of the Services any voice or messaging numbers you used with the Services.
9.1 Indemnifications by Us.
9.1.1 Scope of Indemnification. We will defend you from and against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that our provision of the Services infringes or misappropriates such third party’s intellectual property rights (“Infringement Claim”). We will indemnify you from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against you or for settlement amounts approved by us for an Infringement Claim.
9.1.2 Infringement Options. If your use of the Services has become, or in our opinion is likely to become, the subject of any Infringement Claim, we may at our option and expense: (a) procure for you the right to continue using the Services as set forth in these Terms; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms, or, if applicable, terminate the Services that are the subject of any Infringement Claim, and refund you any unused pre-paid fees.
9.1.3 Limitations. We will have no liability or obligation under this Section 9.1 with respect to any Infringement Claim (a) arising out of your breach of these Terms; (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or (c) arising from Services for which there is no charge.
9.2 Indemnification by You. You will defend us, our officers, directors, employees, and Affiliates (collectively, “AgriSync Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against an AgriSync Indemnified Party by a third party alleging or arising out of your or any User’s (a) breach of these Terms or (b) use of the Services (collectively, “Customer Indemnifiable Claims”). You will indemnify us from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against an AgriSync Indemnified Party or for settlement amounts approved by you for a Customer Indemnifiable Claim.
9.3 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Customer Indemnifiable Claim (individually and collectively referred to as a “Claim”); provided, however, any failure to give such prompt notice will not relieve Indemnifying Party of its obligations under this Section 9 except to the extent that Indemnifying Party was actually and materially prejudiced by such failure; (b) Indemnifying Party will have the sole and exclusive authority to defend or settle any Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities under this Section 9 at Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of any Claim. Notwithstanding anything to the contrary in this Section 9, Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 9 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party, without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.
9.4 Exclusive Remedy. This Section 9 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third party claims.
10. Limitations of Liability
10.1 LIMITATION ON YOUR INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES. IN NO EVENT WILL WE HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF YOUR REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.2 LIMITATION OF OUR LIABILITY. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THESE TERMS FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.3 UNLIMITED LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1 AND SECTION 10.2, THE LIMITATIONS IN THOSE SECTIONS DO NOT APPLY TO (A) YOUR BREACH OF YOUR RESPONSIBILITIES UNDER THESE TERMS; (b) YOUR BREACH OF FEES AND PAYMENT TERMS; OR (C) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.
THE PROVISIONS OF THIS SECTION 10 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION 10 IN DETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS.
11. Duration of These Terms, Termination and Survival.
11.1 Duration. These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 11.2.
11.2.1 For Convenience. Either party may terminate these Terms and close all of your accounts for any reason upon written notice to the other party. Notwithstanding the preceding sentence, if one or more Orders is in effect, then these Terms will not terminate until such Order(s) has expired or been terminated in accordance with its terms. If we terminate your use for our convenience, we will offer you a prorated refund for the unused portion of any annual subscription. No refund will be provided after any other termination for convenience.
11.2.2 Material Breach. We, at our sole discretion, may terminate these Terms and close all of your accounts in the event you commit any material breach of these Terms and fail to remedy such material breach within fifteen (15) days after we provide notice of such breach to you. You may also terminate these Terms in the event we commit a material breach of these Terms and fail to remedy such material breach within fifteen (15) days after providing written notice of such material breach to us.
11.2.3 Your Insolvency. Subject to applicable law, we may terminate these Terms immediately and close all of your accounts by providing written notice in the event of the your liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.
11.3 Survival. Upon termination of these Terms, the terms of this Section 11.3, and the terms of the following Sections will survive (i.e. still apply): Section 5.3 (Disclaimer), Section 6.1-6.3 (Fees, Payment Terms, Taxes), Section 7 (Ownership, Use of Customer Data, and Confidentiality), Section 9 (Mutual Indemnification), Section 10 (Limitation of Liability), Section 12 (General), and Section 13 (Dispute Resolution).
12. General Provisions
12.1 Notice to Us. Any notification to us about our obligations as an Indemnifying Party or our material breach of these Terms must be sent to us in writing by postal service to the following address in order to be effective:
Attn: Legal Department
PO Box 475
Waukee, IA 50263
A courtesy copy of the above notifications may be sent electronically to email@example.com. All other notifications to us will be effective when sent electronically to firstname.lastname@example.org.
12.2 Notice to You. We may send all notifications to you electronically at the last email address associated with your account under Section 2.
12.3 Governing Law and Venue. The enforceability and interpretation of Section 13 (Dispute Resolution) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 13 (Dispute Resolution), these Terms will be governed by and interpreted in accordance with the laws of the State of Delaware without regard to conflicts of laws and principles that would cause the laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 13 (Dispute Resolution), any legal suit, action, or proceeding arising out of or related to these Terms or the Services will be instituted in either the state or federal courts of Des Moines, Iowa, and each party consents to the personal jurisdiction of these courts.
12.4 Relationship. Each party is an independent contractor in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its respective employees and agents and its respective labor costs and expenses arising in connection with its respective employees and agents. Each party will also be solely responsible for any and all claims, liabilities, damages, or debts of any type that may arise on account of each of its respective activities, or those of its respective employees and agents, in the performance of these Terms. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
12.5 Assignment. You will not assign, delegate, or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be null and void. We may assign, delegate, or otherwise transfer these Terms, in whole or in part, without your consent. Subject to this Section 12.5, these Terms will be binding on each party and each party’s successors and assigns.
12.6 Effect of Other Vendor and System Terms. Your or Users’ acceptance or termination of other vendors’ or systems’ contract, terms or policies (collectively “Third Party Agreements”) has no effect on our rights or obligations under these Terms and in no way modifies these Terms, even when your or Users’ acceptance of Third Party Agreements is necessary to utilize certain features or functions of the Services.
12.7 You agree to comply with export control and economic sanctions laws in all applicable jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States of America. You will obtain all licenses or other authorizations required to export, re-export, or transfer the Services. Neither you nor any User is on any government prohibited/denied/unverified-party, sanctions, debarment, or exclusion list (collectively, “Sanctions Lists”). You will not export, re-export, or transfer the Services to an entity on any Sanctions List without prior U.S. government or other required government authorization. You will (a) immediately discontinue your use of the Services if you are placed on any Sanctions List and (b) remove an User’s access to the Services if such User becomes placed on any Sanctions List.
12.8 Entire Agreement. Except as provided in these Terms, applicable Order(s), or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, oral and written. No oral or written information or advice given by us, our agents, or our employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms. Any term or condition stated in your vendor registration form or registration portal or in any purchase order document or similar document provided by you will be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon will be null and void and have no effect with regard to these Terms between the parties and be non-binding against us even if signed by us after the date you accept these Terms.
13. Dispute Resolution
13.1 Agreement to Arbitrate. If a dispute, claim, or controversy related to these Terms or the Services (collectively, “Disputes”) cannot be resolved through our customer support team, each party’s senior representatives will engage in good faith negotiations with the other party’s senior representatives to amicably resolve a Dispute. If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, the parties may commence binding arbitration in accordance with Section 13.2. If either party has a Dispute about whether this Section 13.1 can be enforced or applies to a Dispute between the parties, each party agrees that the arbitrator will decide that, too. Pursuant to this Section 13.1, you understand that you are giving up the right to have a judge and/or jury resolve any Dispute arising out of or related to these Terms or the Services.
13.2 Details of Arbitration Procedure. Except for Disputes set forth in Section 13.3 (Exceptions to Agreement to Arbitrate), Disputes that have not been resolved between the parties will be submitted to binding arbitration in Des Moines, Iowa, USA, before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS' Streamlined Arbitration Rules and Procedures (“Rules”). This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
To the extent anything described in this Section 13 conflicts with the Rules, the language of this Section 13 applies. Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 13 does not alter in any way the statute of limitations that would apply to any Disputes asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of Delaware and the United States of America, as applicable, and will contain an award for each issue in Dispute. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.3 Exceptions to Agreement to Arbitrate. Each party agrees it will go to court to resolve Disputes relating to (a) either party’s intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights, or patents), or (b) your or a User’s breach of our Acceptable Use Policy. In addition, if either party brings a Dispute in court that should be arbitrated or either party refuses to arbitrate a Dispute that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve such Dispute (i.e., compel arbitration). Either party may also ask a court to stop a court proceeding while an arbitration proceeding is ongoing.
13.4 Class Action Waiver. Each party agrees that any Disputes between the parties must be brought against each other on an individual basis only. That means neither party can bring a Dispute as a plaintiff or class member in a class action, consolidated action, or representative action. An arbitrator cannot combine more than one person’s or entity’s Disputes into a single case and cannot preside over any consolidated class or representative proceeding. Each party agrees the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought a Dispute and cannot impact or otherwise be used to decide Disputes with other people or entities, including other Twilio customers. If a court decides that this Section 13.4 is not enforceable or valid, then this Section 13.4 will be null and void. But, the rest of these Terms will still apply.