1 AGREEMENT DEFINITIONS
“You” and “your” refers to the individual or entity that has ordered the horticultural farm management system from Apunga Pty Ltd (the “Farm Management System”) by executing the ordering document that accompanies and incorporates this Agreement (collectively, the “Agreement”).
Our services consist of system administration, system management, and system monitoring activities that Apunga Pty Ltd performs for the Farm Management System, and includes the right to use the Farm Management System, support services for the Farm Management System, as well as any other services provided by Apunga Pty Ltd, as defined in the ordering document (collectively, the “services”).
“Farm Management System” refers to the software products owned by Apunga Pty Ltd to which Apunga Pty Ltd grants you access as part of the services, including program documentation, and any program updates provided as part of the services.
“users” mean those individuals authorised by you or on your behalf to use the services, as defined in the ordering document.
“your data” refers to the data provided by you that resides in the Farm Management System.
“ordering document” refers to the ordering document signed by the parties that accompanies and incorporates the agreement, including the services policies and any other document referenced or incorporated into the ordering document.
2 RIGHTS GRANTED
2.1 When Apunga Pty Ltd accepts your order and for the duration of the services term (as defined in the ordering document), you get:
(a) a nonexclusive, non-assignable, royalty free, worldwide limited right to use the services solely for your internal business operations subject to the terms of the agreement;
(b) initial set up consultation to get the Farm Management System installed to your specifications;
(c) maintenance services; and
(d) technical support.
2.2 You may allow your users to use the services for each user you pay for for this purpose and you are responsible for your users’ compliance with the agreement. The services are provided as described in the ordering document.
2.3 You agree that you do not acquire any licence to use the Farm Management System specified in the ordering document in excess of the scope and/or duration of the services. Upon the end of the agreement, your right to access or use the Farm Management System specified in the ordering document and the services terminates.
2.4 You acknowledge that any features within the Farm Management System are provided at the sole discretion of Apunga Pty Ltd. Apunga Pty Ltd reserves the right to remove any features within the Farm Management System from time to time without providing notice to you. Apunga Pty Ltd is not responsible for any loss you suffered as a result of the removal of a feature within the Farm Management System.
3 OWNERSHIP AND RESTRICTIONS
3.1 You retain all ownership and intellectual property rights in and to your data. Apunga Pty Ltd retains all ownership and intellectual property rights to the services and the Farm Management System. Apunga Pty Ltd retains all ownership and intellectual property rights to anything developed and delivered under the agreement.
3.2 As the Farm Management System is cloud based, third party technology may be necessary for the Farm Management System to function effectively. Your right to use such third party technology is governed by the terms of the third party technology licence agreement and not under the agreement.
3.3 You may not:
(a) remove or modify any notice of Apunga Pty Ltd’s proprietary rights including, but not limited to, Apunga Pty Ltd’s trademarks;
(b) make the Farm Management System or materials resulting from the services available in any manner to any third party (unless such access is expressly permitted by Apunga Pty Ltd);
(c) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (includes, but not limited to, review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Apunga Pty Ltd; and
(d) licence, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, the Farm Management System or materials available, to any third party other than, as expressly permitted under the terms of the agreement.
3.4 The rights granted to you under the agreement are also conditioned on the following:
(a) the rights of any user licensed to use the services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such licence is reassigned in its entirety to another authorised user, in which case the prior authorised user shall no longer have any right to access or use the licence);
(b) except as expressly provided herein, no part of the services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
(c) you agree to make every reasonable effort to prevent unauthorised third parties from accessing the services.
4 USE OF THE FARM MANAGEMENT SYSTEM
4.1 You are responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services required to access and use the Farm Management System and will ensure that all such equipment and services comply with any technical specifications provided by Apunga Pty Ltd.
4.2 You must:
(a) comply with all reasonable directions regarding access to, and use of, the Farm Management System provided to you from time to time by Apunga Pty Ltd including any procedures imposed by Apunga Pty Ltd to prevent unauthorised access to the Farm Management System;
(b) take all reasonable precautions to ensure the security of access to the Farm Management System and must not, under any circumstances, allow any third party or any person other than authorised user to access or use the Farm Management System for any purpose without the prior written consent of Apunga Pty Ltd; and
5 AVAILABILITY OF THE FARM MANAGEMENT SYSTEM
5.1 Apunga Pty Ltd will use its best endeavours to:
(a) maintain the reliability and efficiency of the Farm Management System subject to:
(i) scheduled downtime for maintenance services or other interruptions; and
(ii) unscheduled interruptions to the availability of the Farm Management System due to factors beyond the control of Apunga Pty Ltd including any actions on your part or third parties, including telecommunications providers.
(b) ensure the Farm Management System is available 24 hours a day, 365 days each year. However, Apunga Pty Ltd cannot guarantee or warrant that the Farm Management System has a 100% uptime.
5.2 You will communicate any difficulties encountered with the Farm Management System to Apunga Pty Ltd as soon as is reasonably practicable following detection.
5.3 You acknowledge that the speed of response from the Farm Management System is dependent on your internal connection and performance of the Farm Management System may be affected by such external factors as speed of connection and infrastructure bandwidth from your equipment to the server and the number of users on the connection.
5.4 Apunga Pty Ltd takes no responsibility for any delay, malfunction, non-performance or other degradation of the Farm Management System caused by or resulting from any alteration, modifications or amendments to the Farm Management System requested by you.
6 SUSPENSION OF ACCESS
6.1 Apunga Pty Ltd may suspend access to the Farm Management System:
(a) to carry out any maintenance services to the Farm Management System;
(b) to carry out modifications or updates to the Farm Management System, including uploading any product updates;
(c) to preserve data and integrity;
(d) in the event of a security breach; or
(e) if the server malfunctions.
6.2 Apunga Pty Ltd also reserves the right to terminate or suspend access to the Farm Management System indefinitely and without refund or compensation in the event that you use, or appear to use, the Farm Management System in a manner that reasonably deemed inappropriate by Apunga Pty Ltd or which breaches the terms of the agreement.
6.3 Suspension of access to the Farm Management System will continue until any maintenance services, modifications or updates are carried out, the problem or breach is rectified, or until otherwise agreed in writing between the parties.
6.4 Apunga Pty Ltd will not be liable to you, your officers, employees, contractors or agents or any third party whatsoever as a result of taking the action referred to in this clause where such action is taken on a view which is reasonably formed by Apunga Pty Ltd.
7 PRODUCT UPDATES
7.1 Apunga Pty Ltd may in its sole discretion, make enhancements, updates or new releases of the Farm Management System from time to time in order to enhance or improve the functionality or operation of the Farm Management System or comply with legislative requirements.
7.2 Use of any product updates will be subject to the same terms and conditions as use of the Farm Management System under the agreement.
8 WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
8.1 Apunga Pty Ltd warrants that the services will perform in all material respects in accordance with the ordering document.
8.2 Apunga Pty Ltd does not guarantee that the services will be performed error-free or uninterrupted, or that Apunga Pty Ltd will correct all services errors. Apunga Pty Ltd is not responsible for any delays, delivery failures, or other damage resulting from the output of the services.
8.3 You acknowledge that your data may be lost whilst using the Farm Management System for whatever reason. Apunga Pty Ltd is not liable to you for any data loss relating or resulting from the use of the Farm Management System or loss relating to the malfunctioning of the Farm Management System.
8.4 You acknowledge that Apunga Pty Ltd does not control the transfer of data over communications facilities, including the internet, and that the service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Apunga Pty Ltd is not responsible for any delays, delivery failures, or other damage resulting from such problems.
8.5 To the extent not prohibited by law, these warranties are exclusive and there are no other express or implied warranties or conditions including for hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose.
9.1 If a third party makes a claim against either you or Apunga Pty Ltd (“Recipient” which may refer to you or Apunga Pty Ltd depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or Apunga Pty Ltd (“Provider” which may refer to you or Apunga Pty Ltd depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
(a) notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
(b) gives the Provider sole control of the defence and any settlement negotiations; and
(c) gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
9.2 If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a licence to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the licence for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Apunga Pty Ltd’s ability to provide the services to you, then Apunga Pty Ltd may, at its option and upon 30 days prior written notice, terminate the agreement.
9.3 The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient.
9.4 The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon:
(a) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or
(b) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party Web page accessed via a hyperlink).
9.5 Apunga Pty Ltd will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Apunga Pty Ltd. Apunga Pty Ltd will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. Apunga Pty Ltd will not indemnify you for any infringement claim that is based on:
(a) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or
(b) your actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
10 END OF AGREEMENT
10.1 Services provided under the agreement are provided for the period defined in the ordering document unless earlier terminated in accordance with the agreement. The term of the services and any renewal years are collectively defined as the “services term.” At the end of the services term, all rights to access or use the services, including the Farm Management System ends.
10.2 If either of us breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable ordering document under which the breach occurred.
10.3 In addition, Apunga Pty Ltd may immediately suspend your password, account, and access to or use of the services if you fail to pay Apunga Pty Ltd as required under the agreement and do not cure within the ten days.
10.4 Any suspension by Apunga Pty Ltd of the services under this paragraph shall not excuse you from your obligation to make payment(s) under the agreement.
10.5 At your request, and for a period of up to 60 days after the termination of the agreement, Apunga Pty Ltd may permit you to access the services solely to the extent necessary for you to retrieve a file of your data then in the services environment.
10.6 You agree and acknowledge that Apunga Pty Ltd has no obligation to retain your data and that your data may be irretrievably deleted after 60 days following the termination of the ordering document.
10.7 Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
All fees due under the agreement are non-cancellable and the sums paid non-refundable.
12.1 By virtue of the agreement, the parties may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.
12.2 A party’s confidential information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of the other party;
(b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
(d) is independently developed by the other party.
12.3 We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorised disclosure in a manner no less protective than under the agreement. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.
13 ENTIRE AGREEMENT
You agree that the agreement is the complete agreement for the services, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term is replaced with a term consistent with the purpose and intent of the agreement. The agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorised representatives of you and of Apunga Pty Ltd.
14 LIMITATION OF LIABILITY
Neither party shall be liable for any indirect, incidental, special, punitive, or consequential damages, or any loss of revenue or profits (excluding fees under the agreement), data, or data use. Apunga Pty Ltd’s maximum liability for any damages arising out of or related to this agreement or your order, whether in contract or tort, or otherwise, shall in no event exceed, in the aggregate, the total amounts actually paid to Apunga Pty Ltd for the services under the order that is the subject of the claim in the twelve (12) month period immediately preceding the event giving rise to such claim. Any damage in your favour against Apunga Pty Ltd shall be reduced by any refund or credit received by you and any such refund and credit shall apply towards the limitation of liability.
15.1 No partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
15.2 The agreement is governed by the laws of Queensland and you and Apunga Pty Ltd agree to submit to the exclusive jurisdiction of, and venue in, the courts in Queensland in any dispute arising out of or relating to the agreement.
15.3 You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity. If you grant a security interest in any portion of the services, the secured party has no right to use or transfer the services or any deliverables.
15.4 Except for actions for non-payment or breach of Apunga Pty Ltd’s proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.
15.5 Apunga Pty Ltd may audit your use of the services. You agree to cooperate with Apunga Pty Ltd’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, Apunga Pty Ltd can end your services and/or the agreement. You agree that Apunga Pty Ltd shall not be responsible for any of your costs incurred in cooperating with the audit.
16 YOUR DATA
You agree to provide any notices and obtain any consents related to your use of the services and Apunga Pty Ltd’s provision of the services, including those related to the collection, use, processing, transfer and disclosure of personal information. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.
17 RESTRICTIONS ON USE OF THE SERVICES
17.1 You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may:
(a) menace or harass any person or cause damage or injury to any person or property;
(b) involve the publication of any material that is false, defamatory, harassing or obscene;
(c) violate privacy rights or promote bigotry, racism, hatred or harm;
(d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters;
(e) constitute an infringement of intellectual property or other proprietary rights; or
(f) otherwise violate applicable laws, ordinances or regulations.
17.2 In addition to any other rights afforded to Apunga Pty Ltd under the agreement, Apunga Pty Ltd reserves the right to remove or disable access to any material that violates the foregoing restrictions. Apunga Pty Ltd has no liability to you in the event that Apunga Pty Ltd takes such action. You agree to defend and indemnify Apunga Pty Ltd against any claim arising out of a violation of your obligations under this section.