FarmTRX™ End User Service Agreement And Warranties
This End User Service Agreement (EUSA or the "Agreement") governed by and interpreted in accordance with the laws of the Province of Ontario, Canada, is an Agreement between Troo Corporation (the “Supplier”), and you, the customer (the “Customer”). In consideration of Supplier providing the FarmTRX™ and/or other hardware devices, and FarmTRX™ online Services, the Customer agrees to pay the fees and to comply and ensure that its Users comply with the terms and conditions of this Agreement.
Customers account administrator will be or has been, assigned an account name and password for purpose of creating and managing Customer's account and users. Customer is responsible for maintaining the confidentiality of the password and Customer's account and is fully responsible for all activities that occur under the Customer's account. The Customer shall immediately notify Supplier of any breach of security.
Each account user shall access and use the Services solely for its intended purpose. Any other use is strictly prohibited.
Supplier may terminate the Customer's use of the Services:
a. Immediately if Customer or anyone accessing the Services through Customer is in breach of this Agreement;
b. On 30 days’ notice if the Customer's account is inactive, meaning that no devices or users are registered to use the Services, for a period of 12 months;
c. Immediately, in the case of technical difficulties, including, without limitation, incompatibility of the Customer's devices with the Services or improper installation of devices;
d. Upon termination of the agreement that entitles a reseller or a distributor to resell the Services to Customer.
Without prejudice to any other remedies which either party may have in respect of any breach of this Agreement, the parties hereby agree that, upon termination of this Agreement for any reason in accordance with the terms hereof, neither party shall be entitled to any damages or other compensation from the other as a result of such termination.
Customer acknowledges and agrees that Supplier will need to regularly back up Data files to be able to recover from a system failure.
Supplier will keep such back-up files in a location that Supplier takes commercially reasonable efforts to maintain secure. To the extent that any of the Data is personal information, Customer shall be responsible for ensuring that it has obtained all consents from the owner of such personal information to permit Supplier to provide the Services under this Agreement.
By using the Services the Customer agrees to be bound by the terms of this Agreement.
i. In order to use the FarmTRX™ Service, Customer has purchased or leased one or more devices from Supplier or reseller or some other authorized party, has installed the device in compliance with the FarmTRX™ Installation Guide, and entered into an agreement with a reseller or other party to have access to a communications network that will transmit Customer's data to Supplier;
ii. Neither the device(s) nor the communications network(s) that transmit(s) the data are the responsibility of Supplier and any failure in the performance of a device or the communications network, including the failure to transmit data to Supplier's servers in a timely and reliable manner, may disrupt the delivery of the Services;
iv. The Customer may not transfer or resell its use of or access to the Services to any third party;
v. The Customer is responsible for all activities that occur under Customer's account;
vi. The Customer will not create an unusually large burden on the Services without Suppliers prior approval, nor will they: engage in posting, uploading, transmitting, or otherwise making available information or software containing a virus, lock, key, bomb, worm, or other harmful or debilitating feature, impersonate any entity, forge or otherwise manipulate identifiers, port scan a person’s electronic device without that person’s consent, distribute mass or unsolicited email, or otherwise generate levels of traffic sufficient to impede others’ ability to send or retrieve network information;
vii. Supplier reserves the right at any time and from time-to-time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Customer agrees that Supplier shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Services;
viii. Provided that the account administrator has been authorized by Supplier or reseller, the account administrator may add devices, users or additional Services to the Customer's account all or some of which may require payment of additional fees.
DISCLOSURES REQUIRED BY THE WIRELESS CARRIER:
Regardless of whether Customers Service includes wireless data communications, Customer acknowledges and agrees that if Customer has purchased wireless services from Supplier (e.g. for vehicle tracking), the underlying wireless service carrier has obligations only to Supplier, and not to the Customer, that Customer shall not to be deemed a third-party beneficiary under any contract between Supplier and the underlying wireless service carrier, and that Customer is bound by the following provisions:
(a) Subject to Industry Canada, FCC, and other applicable number portability rules, Customer has no property right in any number assigned to Customer, and any such number can be changed from time-to-time.
(b) Customer acknowledges that Service may be temporarily refused, interrupted, curtailed or limited because of atmospheric, terrain, or other natural or artificial conditions, over-usage, relocation or repairs. Customer agrees that the underlying wireless service carrier shall not be responsible for such interruptions of Service or the inability to use the Service outside the territory. Customer understands that the underlying wireless service carrier cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Service. In no event shall the underlying wireless service carrier be liable for any cost, delay, failure or disruption of Service, or consequential damages. Customer shall use devices at their own risk.
(c) Customer will indemnify, defend and hold the underlying wireless service carrier and officers, employees and agents of each of them harmless from and against all claims, causes of action, losses, expenses, liability or damages, and including without limitation for any personal injury or death, arising in any way directly or indirectly in connection with this Agreement; the provision or use of Services; or use, failure to use or inability to use the number. This provision shall survive termination of this Agreement.
(d) Customers Service may be temporarily suspended or permanently terminated upon little or no notice in the event (where applicable) that Supplier’s agreement with the underlying wireless service carrier is terminated. Customer waives any and all claims against the underlying wireless service carrier for such suspension or termination.
Supplier warrants that FarmTRX™ devices purchased from Supplier or reseller shall be free from defects in materials and workmanship for a period of two years from date of purchase. Supplier warrants that any other third-party devices (such as vehicle tracking devices) purchased from Supplier shall be free from defects in materials and workmanship to the extent of, and for the duration of, any applicable third-party manufacturer’s warranty ("Warranty Period"). This warranty is conditional on proper installation and normal use.
Customer’s sole remedy, and Supplier’s sole obligation, under the foregoing warranty is the repair or replacement of the defective device at Supplier’s sole discretion. To make a warranty claim, Customer shall (i) promptly notify Supplier in writing of any defect in units of devices delivered; (ii) obtain a Return Material Authorization; and (iii) ship the defective goods to Supplier’s designated location at Customer’s expense. Supplier warrants that the functionality of the FarmTRX™ Services shall perform materially in accordance with Supplier’s online help, and (ii) the functionality of the Services will not be materially decreased during a subscription term.
EXCLUSION OF WARRANTIES - AS ALLOWABLE BY LAW
THE SUPPLIER MAKES COMMERCIALLY REASONABLE EFFORTS TO PROVIDE QUALITY OF SERVICES, HOWEVER, EXCEPT FOR THE WARRANTY SPECIFICALLY SET OUT ABOVE, THE SERVICES, AND ANY CONTENT OR DATA OBTAINED OR ACCESSED THROUGH THE SERVICE, ARE BEING PROVIDED BY SUPPLIER OR RESELLER ON AN "AS IS" BASIS AND WITHOUT SPECIFIC REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SUPPLIER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUPPLIERS, ADVERTISERS, AGENTS, AND RESELLERS DISCLAIM ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY OR THOSE ARISING FROM
STATUTE OR THE USAGE OF TRADE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES OF ADEQUACY, ACCURACY OR COMPLETENESS OF DATA. SUPPLIER AND ITS RESELLERS DO NOT WARRANT THAT (i) SERVICES WILL MEET CUSTOMER'S OR ITS USERS' REQUIREMENTS, (ii) SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) DATA OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THAT DEFECTS WILL BE CORRECTED, OR THAT SERVER(S) ON WHICH SERVICE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS RESPONSIBLE FOR OBTAINING ACCESS TO AND MAINTAINING ALL COMMUNICATION NETWORK, TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SERVICES, AND ALL CHARGES RELATED THERETO. CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR CUSTOMER'S USE OF THE SERVICES AND ITS RELIANCE THEREON.
LIMITATION OF LIABILITY
IN NO EVENT SHALL SUPPLIER, ITS EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, OR RESELLERS, BE LIABLE IN ANY WAY WHATSOEVER UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THE SERVICES OR DEVICES, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR BUSINESS REVENUE, LOST BUSINESS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER REGARDLESS OF HOW SUCH COSTS, LOSSES OR DAMAGES WERE CAUSED OR AROSE AND WHETHER OR NOT SUCH COSTS, LOSSES OR DAMAGES ARE/WERE FORESEEABLE OR SUPPLIER ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS, LOSSES OR DAMAGES. SUPPLIER SHALL ONLY BE LIABLE FOR DIRECT DAMAGES PROVIDED THAT SUPPLIER'S TOTAL AGGREGATE CUMULATIVE LIABILITY TO CUSTOMER FOR ALL CLAIMS FOR COSTS, LOSSES AND DAMAGES HEREUNDER FOR ANY CAUSE WHATSOEVER SHALL NOT EXCEED THE LESSER OF $10,000 OR THE AMOUNTS RECEIVED BY SUPPLIER FROM CUSTOMER FOR SERVICES PROVIDED TO THE CUSTOMER DURING THE SIX MONTH PERIOD PRECEDING THE DATE OF THE INITIAL CLAIM. CUSTOMER'S SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY OF SUPPLIER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE) SHALL BE THE TOTAL AMOUNT, IF ANY, PAID DIRECTLY TO SUPPLIER BY CUSTOMER, FOR ACCESS TO THE SERVICES. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE CLAIM AROSE IN CONTRACT INCLUDING A FUNDAMENTAL BREACH, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR UNDER STATUTE.
Customer agrees to indemnify, defend and hold Supplier, its officers, directors, employees, agents and representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees), or other expenses that arise directly or indirectly out of or from (a) Customer's violation of this Agreement; (b) Customer's use of the Services or devices; (c) any act or omission of any of its Users; or (d) Customer's violation of the rights of any third party.
ASSIGNMENT - Customer may not assign or otherwise transfer its rights and obligations under this Agreement except with the prior
written consent of Supplier, such consent not to be unreasonably withheld. Any prohibited assignment shall be null and void. Failure to comply with any provision of this Agreement shall not constitute a waiver of any term hereof.