Terms of Service
Last Modified: September 3, 2018
Terms of Service (US)
These terms of service (the “Terms of Service”) are entered into by and between you or the entity you represent, as applicable, (the “Customer”) and Cropster, Inc. (“Cropster”, or “Provider”). The following terms and conditions, together with any documents they expressly incorporate by reference, govern your access to and use of any services offered on or through cropster.com or the Cropster application available in app stores (the “Services”), whether as a guest or as a registered user. Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
By using the Services, you represent and warrant that (a) you are of legal age to form a binding contract with Cropster; (b) you are authorized to represent the Customer; (c) the Customer is a business and not an individual or a consumer. If you or the Customer do not meet any of these requirements, you must not access or use the Services. THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
|"Authorized User"||means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms of Service and (ii) for whom access to the Services has been purchased hereunder.|
|"Customer Data"||means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.|
|"Documentation"||means Provider's manuals, handbooks, and guides relating to the Services provided by Provider to Customer either electronically or in hard copy form.|
|"Provider IP"||means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP does not include Customer Data.|
2. Access and use of Service
- Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all other terms and conditions of these Terms of Service, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use.
- Documentation License. Subject to the terms and conditions contained in these Terms of Service, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
- Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in these Terms of Service. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Reservation of Rights. Provider reserves all rights not expressly granted to Customer in these Terms of Service. Except for the limited rights and licenses expressly granted under these Terms of Service, nothing in these Terms of Service grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
- Suspension. Notwithstanding anything to the contrary in these Terms of Service, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(b) (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
- Service Modification. Customer may upgrade or downgrade Services upon thirty (30) days' written notice to Provider. Customer understands that downgrading Services may cause loss of content, features, or capacity of the Services that were previously available to Customer. Provider shall not be liable for any content losses in as a result of Customer's downgrade of Services.
3. Customer Responsibilities and Warranties
- Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms of Service. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms of Service if taken by Customer will be deemed a breach of these Terms of Service by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of the provisions of these Terms of Service as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
- Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Provider's standard published policies then in effect and all applicable laws and regulations. Customer shall not do the following:
- upload, post, email, or otherwise transmit any computer routines, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- allow employees or Authorized Users of Customer to exceed the scope of the Services for which Customer has ordered or have employees share login information for the Services;
- take any action that imposes an unreasonable or disproportionately large load on Provider's infrastructure; or
- copy, reproduce, alter, modify, or publicly display any information displayed on Provider's website (excluding Customer Data), or create derivative works from Provider's website, to the extent that such action(s) would constitute copyright infringement or otherwise violate the rights to Provider to the Provider IP or any other third party, except with the prior written consent of Provider or the appropriate third party.
- Customer agrees that it will use the Services only for lawful purposes. Customer shall maintain the security of Customer's content and all accounts associated with the Services.
- The software provided by Cropster and required for the use of the Services is automatically updated by Cropster on a regular basis except in case of a downgrade of Services (as defined in Section 2 (f) above). These updates serve to enhance, up-value and develop the Services and may include bug fixing and patching, enhanced functions or complete new versions of the Services. The Customer declares and acknowledges that it is a prerequisite for the delivery of the Services offered by Cropster that the Customer accepts such updates as part of the Services and allows Cropster to provide the Customer with such updates.
- The interface with respect to the Services provided by Cropster under these Terms of Services is the transition point to the internet of the data processing service centre used by Cropster. The internet connection of the Customer, the maintenance of the network connection as well as the supply and provision of hard- and software on the side of the Customer is not included on the Services provided by Cropster. In connection therewith, the Customer expressly acknowledges that the use of Cropster Services (as described on its website) requires a current web-browser as specified on the website of Cropster. Cropster shall not be responsible for the installation or maintenance of any such web-browser on the local systems of the Customer.
The access rights granted hereunder entitles Customer to the support services described on the Exhibit to these Terms of Service during the Term of the Agreement for use in connection with the Services.
5. Fees and Payment
- Trial Period. For the first fourteen (14) or thirty (30) calendar days (depending on service contracted) from the Effective Date of these Terms of Service, Provider will provide the Services to the Customer without charge (the "Trial Period"). All terms of these Terms of Service other than Section 5(b) below shall apply during the Trial Period.
- Fees. Following the Trial Period, Customer shall pay Provider the fees ("Fees") as set forth on the Website www.cropster.com without offset or deduction. The Fees will be based on the specific service Customer selects, the production volume, the number of roast machines, and any additional modules selected by Customer. Customer shall make all payments hereunder in US dollars on or before the due date stated on the invoice. If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Provider may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
- Taxes. All Fees and other amounts payable by Customer under these Terms of Service are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
- Pricing Modifications. Provider may, in its sole discretion, modify the Fees for the Services, upon sixty (60) days' notice to Customer. If Provider modifies its Fees, Provider will update the Fees on its website. Customer is responsible for periodically checking Provider's website to monitor the Fees and any changes thereto. If Customer does not agree to pay the modified Fees, Customer may terminate the Service upon thirty (30) days' written notice to Provider.
6. Intellectual Property Ownership
- Provider Intellectual Property. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
- Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer.
- Customer Data Collection. Provider shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Provider will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Provider offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted by Customer to Provider except as expressly set forth herein.
7. Warranty Disclaimer
THE PROVIDER IP IS PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider and its shareholder and other affiliated companies from and against all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Provider resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Customer Data, or any use of the Customer Data in accordance with these Terms of Service, infringes or misappropriates such third party's intellectual property rights, and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by these Terms of Service; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
9. Limitations of Liability
IN NO EVENT WILL PROVIDER OR ITS SHAREHOLDERS OR OTHER AFFILIATED COMPANIES, BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THESE TERMS OF SERVICE IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination
- Term. The initial term of these Terms of Service begins on the Effective Date and, unless terminated earlier pursuant to these Terms of Service's express provisions, will continue in effect until either one month or one year from such date, depending on the service you selected (the "Initial Term"). These Terms of Service will automatically renew for additional successive terms of equal duration as the Initial Term, as applicable, unless earlier terminated pursuant to these Terms of Service's express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
Termination. In addition to any other express termination right set forth in these Terms of Service:
- Provider may terminate these Terms of Service, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
- either Party may terminate these Terms of Service, effective on written notice to the other Party, if the other Party breaches these Terms of Service, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured ten (10) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
- (iii) either Party may terminate these Terms of Service, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms of Service, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
- Survival. This Section 10(d) and Sections 1, 5, 6, 7, 8, 9, 11 and 12 survive any termination or expiration of these Terms of Service. No other provisions of these Terms of Service survive the expiration or earlier termination of these Terms of Service.
11. Waiver of Jury Trials and Binding Arbitration
- YOU AND CROPSTER ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE WEBSITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
- The arbitration will be administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules and Mediation Procedures ("Commercial Rules"). The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
- Entire Agreement. These Terms of Service, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms of Service and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms of Service, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms of Service, excluding its Exhibits; (ii) second, the Exhibits to these Terms of Service as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
- Relationship of the Parties. These Terms of Service shall not be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any Party to enter into any commitment or agreement binding on the other Party.
- Notices. The Parties may provide any notice to you under these Terms of Service by: (i) sending a message to the email address provided, and (ii) Provide may provide notice by posting to the Website. Notices sent by email will be effective when the email is sent and notices Cropster provides by posting will be effective upon posting. It is Customer's responsibility to keep its email address current.
- Amendment and Modification; Waiver. Cropster may revise and update these Terms of Service from time to time in its sole discretion and provide reasonable notice of the changes ("Change Notice") via the email to Customer at the email address provided. However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction will not apply to any disputes of which the Parties have actual notice prior to the date of the Change Notice. Customer's continued use of the Service following the receipt of the Change Notice means that Customer accepts and agree to the changes. If Customer does not accept and agree to the changes, it has the right to terminate these Terms of Service with 30 calendar days prior written notice. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms of Service, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms of Service will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any provision of these Terms of Service is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms of Service so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law. These Terms of Service is governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California.
- Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms of Service is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Export Regulation The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
- Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of Section 2(c) or Section 6 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.