Terms of Use
FarmPro Terms of Use
Last Updated Date: 2.6.2023
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING (a) THIS WEBSITE OR ANY OTHER WEBSITES OF FP AG, INC. (“FARMPRO” OR “US” OR “WE”) CONTAINING A LINK TO THESE TERMS OF USE (COLLECTIVELY, THE “WEBSITE”), (b) ANY MOBILE APPLICATION(S) THAT WE OFFER SUBJECT TO THESE TERMS OF USE (EACH AN “APPLICATION”), AND (c) USING OUR MARKETPLACE, AS WELL AS OUR RELATED SERVICES, NETWORKS, AND RESOURCES AVAILABLE (COLLECTIVELY, THE “PLATFORM”), OR CLICKING ON THE “I ACCEPT” BUTTON, OR COMPLETING THE REGISTRATION PROCESS ON THE PLATFORM, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS OF USE (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). THESE TERMS OF USE GOVERN USE OF THE PLATFORM BY USERS LOCATED ANYWHERE IN THE WORLD WHERE A COUNTRY SPECIFIC SET OF TERMS EXPRESSLY APPLIES, AND TO ALL SERVICE PROVIDERS PERFORMING SERVICES FOR PRODUCERS GOVERNED BY THESE TERMS OF USE APPLY. IF YOU ARE ACCESSING OR USING THE PLATFORM FROM ANY OTHER JURISDICTION OTHER TERMS AND CONDITIONS APPLY. IF THE INDIVIDUAL ENTERING INTO THESE TERMS OF USE OR OTHERWISE ACCESSING OR USING THE PLATFORM IS DOING SO ON BEHALF OF, OR WITHIN HIS, HER, OR THEIR CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY AGREE THAT: (a) THE TERMS “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY AND, AS APPLICABLE, SUCH INDIVIDUAL; AND (b) YOU REPRESENT AND WARRANT THAT THE INDIVIDUAL ENTERING INTO OF USE HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS OF USE ON BEHALF OF SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE PLATFORM.
SECTION 18 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND FARMPRO. AMONG OTHER THINGS, SECTION 18 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 18 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 18 (ARBITRATION AGREEMENT) CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 18) WITHIN 30 DAYS IN ACCORDANCE WITH SECTION 18.10 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Your use of, and participation in, certain portions of or services offered on the Platform may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use that particular service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.” You acknowledge and agree that this Agreement is a legally binding agreement between you and FarmPro.
SECTION 3.3 (ELECTRONIC COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
PLEASE NOTE THAT The Terms OF USE are subject to change by FarmPro in its sole discretion at any time. When changes are made, FarmPro will make a new copy of the Terms of Use available on the Platform and any new Supplemental Terms will be made available from within, or through, the affected portion of the Platform. We will also update the “Last Updated” date at the top of the Terms of Use. If we make any material changes, and you have registered with us to create an Account (as defined in Section 3.1), we will also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Any changes to the Terms of Use will be effective immediately for new users of the Platform. Any changes to these Terms of Use will be effective for continuing users upon the earlier of: (a) thirty (30) days after posting notice of such changes on the Platform for existing users; (b) thirty (30) days after dispatch of an e-mail notice of such changes to you; or (c) your provision of consent to the updated Terms of Use in a specified manner, as applicable. Unless otherwise stated, your continued use of the Platform constitutes your acceptance of such change(s). If you do not agree to any change(s) after receiving a notice of such change(s), you may not be permitted to continue using the Platform. PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THEN-CURRENT TERMS OF USE.
1. THE PLATFORM.
1.1 Description. The Platform includes a marketplace that allows Producers to connect and contract with Service Providers to perform Shipping Services for Producer as a contractor of Producer.
1.2 Definitions. For purposes of these Terms of Use:
(a) “Personnel” means any employees, contractors, or other personnel of the Service Provider and includes any substitute and/or subcontractor utilized in the performance of Shipping Services;
(b) “Platform Fees” means fees owed to or collected by FarmPro for use of the Platform;
(c) “Producer” means the entity or individual user, including a producer, shipper, or hiring manager, who solicits Service Providers for the performance of Shipping Services;
(d) “Service Listing” means a listing submitted by Producer to the Platform setting forth the Shipping Services for which Producer would like to solicit Service Providers;
(e) “Service Provider” means a user that delivers, intends to deliver, or seeks to deliver shipments whether as a self-employed individual or through a legal entity;
(f) “Shipping Service Description” means the description of the Shipping Services containing the specific details of a shipment to be completed and the terms, including Shipping Service Fees, schedules for performance, payment schedules, milestones, and anything related to the Shipping Services;
(g) “Shipping Service Fees” means the fees payable by Producer to Service Provider for Shipping Services as identified in a Shipping Service Description; and
(h) “Shipping Services” means the services to be performed for Producer by the Service Provider, such as transporting dry agricultural bulk products.
2. USE OF THE PLATFORM.
2.1 Access to the Platform. Subject to your compliance with this Agreement, FarmPro grants you the non-exclusive, limited right to access and use the Platform for your internal business purposes.
2.2 Updates. You understand that the Platform is evolving. As a result, FarmPro may update, add, improve, or remove any or all parts of the Platform and require you to accept updates to the Platform. You acknowledge and agree that FarmPro may update the Platform with or without notifying you. You may need to update third-party software from time to time in order to use the Platform.
2.3 Certain Restrictions. You agree that you will not: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Platform or any portion of thereof; (b) frame or utilize framing techniques to enclose any trademark, logo, or other portion of the Platform (including images, text, page layout or form); (c) use any metatags or other “hidden text” using FarmPro’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Platform except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Platform in order to build a similar or competitive website, application, or service; (g) copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any part of the Platform; and (h) remove or destroy any copyright notices or other proprietary markings contained on or in the Platform. Any future release, update, or other addition to the Platform shall be subject to this Agreement. FarmPro, its suppliers and service providers reserve all rights not granted in this Agreement. The rights granted to you hereunder are subject to your compliance with this Section 2.3. Any unauthorized use of the Platform terminates the licenses and rights granted to you by FarmPro pursuant to this Agreement.
2.4 USER CONDUCT. While accessing or using the Platform you agree that you will not, under any circumstances:
(a) breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account (as defined in Section 3.1) status;
(b) interfere with or damage the Platform, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) take any action that may undermine our feedback or ratings systems;
(d) transfer your Account (as defined in Section 3.1) or username to another party without our consent;
(e) interfere with the working of the Platform, or impose an unreasonable or disproportionately large load on our infrastructure;
(f) Make Available (as defined in Section 7.1) any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
(g) use the Platform to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; or
(h) Make Available any Content (as defined in Section 7.1) that: (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities.
2.5 Shipping Service Cancellation Policy. Service Provider or Producer may cancel or modify the agreed upon Shipping Service by delivering to FarmPro and the other party notice through the Platform at least thirty-six (36) hours prior to the agreed upon pick-up date and time (the “Agreed Shipping Start Time”). If Producer so cancels the Shipping Service upon the amount of prior notice through the Platform indicated below, it will be entitled to a refund of the corresponding portion of all pre-paid amounts for such Shipping Service (the “Prepayment”) indicated below:
Amount of Notice Prior to Agreed Shipping Start Time Percentage of Prepayment to be Refunded
Within 36 hours 0% and termination prohibited
36-48 hours 30%
48-72 hours 60%
More than 72 hours 90%
In such circumstance, FarmPro will be paid the Prepayment less any refund as described above. As between FarmPro and the Service Provider, FarmPro will retain any Platform Fees owed to FarmPro and pay the Service Provider the remaining amount. If a Service Provider cancels a Shipping Service, FarmPro reserves the right to terminate its access to the Platform. If Service Provider remains a user on the Platform, Service Provider may be subject to a negative review by the Producer whose Shipping Service was cancelled.
3. REGISTRATION.
3.1 Registering Your Account. In order to access certain features of the Platform, you may be required to register an account on the Platform (“Account”).
3.2 Registration Data. In registering for an Account on the Platform, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Platform’s registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You may not share your Account or password with anyone, and you agree to notify FarmPro immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or FarmPro has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, FarmPro has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform (or any portion thereof). You agree not to create an Account using a false identity or any false information, or on behalf of someone other than yourself. FarmPro may require you to participate in any additional registration checks as it deems necessary in its sole discretion. FarmPro reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Platform if you have been previously removed by FarmPro, or if you have been previously banned from any of the Platform.
3.3 Electronic Communications. By providing your cellphone number and using the Platform, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Platform. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us may include, but are not limited to (i) operational communications concerning your Account or the use of the Platform, (ii) updates concerning new and existing features on the Platform, (iii) communications concerning promotions ran by us or our third-party partners, and (iv) news concerning FarmPro and industry developments. Message frequency varies. FarmPro will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing contact@farmpro.ag.
4. TERMS APPLICABLE TO PRODUCERS. This Section applies solely to the extent that you access and use the Platform as a Producer.
4.1 Service Listings. As a Producer, you may be able to submit Service Listings seeking to engage one or more Service Providers for the performance of Shipping Service(s). You represent that, to the best of your ability, the information you provide in the Service Listing is true and accurate. We do not make promises or guarantees of any of the Service Providers or and their performance of the Shipping Services.
4.2 Producer’s Use of the Platform. You agree that:
(a) you are responsible for the accuracy and content of your Service Listings;
(b) you will pay all fees and agreed expenses payable for the Shipping Services;
(c) you will comply with this Agreement during the engagement, performance and completion of Shipping Services;
(d) you will ensure the safety of the Service Provider and its Personnel in connection with Shipping Services performed at specified pickup and delivery locations, and that you have adequate insurance in place for any third-party injury or death occurring at your premises;
(e) you will refrain from interacting with a Service Provider and any Personnel on any basis other than as an independent professional contractor, and will not seek to or otherwise integrate the Service Provider or any Personnel into your own workforce by its actions, or seek to or otherwise supervise, manage and/or control any Service Provider or any Personnel; and
(f) at the time of each acceptance of a Service Listing by a Service Provider, you will confirm and agree with the Service Provider on all terms of the Shipping Service Description and verify that all insurance and other requirements are satisfactory; and you further agree that such terms will not be changed without further agreement with the Service Provider; all such agreements and subsequent changes shall be documented via the Platform.
4.3 Payment for Shipping Services. The timing and method for payment of Shipping Service Fees will be agreed between FarmPro and Producer at the time of Account registration. You agree to pay all Shipping Service Fees for each Invoice (as defined in Section 5.4) we deliver to you and which is accepted or deemed accepted in accordance with Section 4.4. Each Service Provider will be entering into a Factoring Agreement and selling to FarmPro all of its accounts receivable (and related Invoices) arising from Shipping Services performed for Producers through use of the Platform, as provided in more detail in Sections 5.2(n) and 5.4. In connection with such Factoring Agreement, FarmPro and/or the applicable Service Provider will be sending you one or more notices of the sale of receivables to FarmPro. Following receipt of such notice(s), you will pay all Shipping Service Fees to FarmPro as the purchaser of the accounts receivable (and related Invoices). Payments of Shipping Service Fees, through your Payment Method or otherwise, are to be made to FarmPro’s [Stripe Wallet[BA1] ] or to such other payment account of and designated by FarmPro, and such amounts shall belong to FarmPro (as it is the owner of the account receivable and related Invoice as noted in the preceding sentence). Your payment obligation to a Service Provider for Shipping Service Fees, and/or to FarmPro in respect of purchased accounts receivables (and related Invoices), remains in force until the Shipping Service Fees have been paid in accordance with this Agreement.
4.4 Job Completion Verification; Invoices. FarmPro will send Producer any applicable Shipping Service verification documents (e.g. weigh ticket, bill of lading, receipt, or any other documents provided by Service Provider) at the Shipping Service end-date, as listed in the agreed Shipping Service Description. At the time of receiving the verification documents, FarmPro will also deliver the Invoice (via the Platform or email) to Producer (with a copy to the applicable Service Provider). Producer will be asked to confirm, within twenty-four (24) hours, via email to FarmPro (or such other method of which Producer is notified by FarmPro), that the Invoice is accepted and that the Shipping Service was completed in accordance with the agreed Shipping Service Description. Once Producer sends this email (or satisfies such other verification method designated by FarmPro), Producer is acknowledging and agreeing that the Shipping Service was completed in accordance with the agreed Shipping Service Description, no dispute or recourse is possible and Producer will pay the applicable Invoice in full in accordance with Section 4.3 of this Agreement. If Producer does not accept the Invoice and disputes that the Shipping Service was completed in accordance with the agreed Shipping Service Description, Producer must (i) notify FarmPro via the Platform within such twenty-four (24) hour period and (ii) notify the Service Provider via the Platform within such twenty-four (24) hour period and provide the Service Provider with detailed information regarding what is being disputed and why. Producer and Service Provider shall work together to resolve disputes. If Producer and Service Provider are unable to reach a resolution within 30 days, FarmPro, as a courtesy, will endeavor to facilitate further discussion among the parties to reach a resolution. If, after FarmPro assists in the dispute process, Producer and Service Provider are still unable to reach a resolution, Producer and Service Provider shall resolve their dispute via arbitration, with the losing party to pay all arbitration fees. Upon resolution of a dispute, Producer and Service Provider shall confirm the terms of the resolution via email to FarmPro and FarmPro shall generate and deliver a revised Invoice reflecting such resolution to Producer and Service Provider. Such revised Invoice shall be automatically deemed accepted by Producer and paid in accordance with Section 4.3 of this Agreement. If Producer fails to accept an Invoice and confirm the completion of the Shipping Service via email (or other verification method designated by FarmPro) or notify FarmPro that such Shipping Service is disputed within such twenty-four (24) hour period from receipt of the initial Invoice, then at the end of such twenty-four (24) hour period such Invoice will be deemed accepted and the related Shipping Service will be deemed completed in accordance with the agreed Shipping Service Description, no additional dispute or recourse will be allowed and Producer will pay the applicable Invoice in full in accordance with Section 4.3 of this Agreement.
4.5 Platform Fees Payable by Producer. In consideration of your use of the Platform, you will be required to pay the Platform Fee, which is based upon a percentage of the Shipping Service Fees, set forth at https://www.farmpro.ag/pricing, which FarmPro may change from time to time. Unless otherwise agreed by us in writing, such Platform Fees are due and payable at the same time as the Shipping Service Fees on which the Platform Fees are calculated. You represent and warrant that any information provided by you, based upon which any Platform Fees are calculated is true, complete, and accurate, and will be kept true, complete, and accurate at all times.
5. TERMS APPLICABLE TO SERVICE PROVIDERS. This Section applies solely to the extent you access and use the Platform as a Service Provider.
5.1 To Become a Service Provider. In order to be a Service Provider, you may have to be approved by FarmPro. Any such approval can be refused or revoked at any time by FarmPro in its sole discretion. You agree to provide the necessary information, such as proof of insurance, in an honest and truthful manner. During the approval process, FarmPro may require you to provide a referral contact for purposes of verifying the information that you provide. By providing such information, you give us permission, and you represent and warrant that you have the right to give us permission to contact your referral contact for purposes of verifying the information you have provided and determining to invite you as a Service Provider on the Platform. By beginning your user registration as a Service Provider, you acknowledge and agree that you are not guaranteed to become a Service Provider of the Platform.
5.2 Freedom to Operate. You acknowledge and agree that:
(a) you decide when to log into the Platform and whether to accept Service Listings; however, if you accept a Service Listing, you will complete the Shipping Service within the time period and other requirements set forth in the Shipping Service Description;
(b) you may use features in the Platform to show interest in a Service Listing;
(c) you are responsible for determining and negotiating with each Producer the price and terms for any Shipping Services;
(d) you are permitted to maintain your independent business and other Producers without using the Platform;
(e) you are not restricted from using competitive services or technology platforms;
(f) you assume complete responsibility for all Shipping Services you perform or commit to perform, including, but not limited to, possessing the requisite skills, credentials and training to perform Shipping Services that you accept hereunder, and for compliance with all laws, regulations, and professional ethical guidelines and standards pertaining to Shipping Services;
(g) you are solely responsible for any failures, issues, errors, or any of Producer’s rejections of your performance of the Shipping Services, and if any failure, issues, errors, or rejection occurs, then you may, in your discretion, file a claim with your insurance provider to cover the loss;
(h) subject to any agreement to the contrary between you and a Producer, you retain the right to hire Personnel in performing Shipping Services, and acknowledges that your Personnel will possess the licensing, skill and ability to provide Shipping Services; provided that: (i) all Personnel sign an agreement with you containing terms and conditions substantially similar to the Shipping Service Descriptions and the terms set forth therein; and (ii) you shall remain fully liable for the due performance of your obligations under the performance of the Shipping Service;
(i) you solely control the amount of your investment in the Shipping Services;
(j) you are solely responsible for paying and will pay all taxes on the Shipping Services you perform and on any income you receive hereunder;
(k) you do not receive supervision from or performance evaluations by FarmPro;
(l) FarmPro does not require you to perform any particular volume of Shipping Services for any particular period as a condition of using the Platform and nothing will guarantee you a particular volume of business for you for any particular period;
(m) at the time of each acceptance of a Service Listing, you will confirm and agree with the Producer on all terms of the Shipping Service Description and verify that all insurance and other requirements are satisfactory, and you further agree that such terms will not be changed without further agreement with the Producer; all such agreements and subsequent changes shall be documented via the Platform; and
(n) as a condition of using the Platform you are required to enter into the Factoring Agreement upon registration of your Account (the “Factoring Agreement”). Pursuant to the Factoring Agreement, you agree to sell FarmPro all of your accounts receivable (and related Invoices) arising from Shipping Services that you perform for Producers through use of the Platform[BA2] .
5.3 Service Provider Use of the Platform. By accessing and using the Platform as a Service Provider, you represent and warrant that:
(a) you will provide complete, up-to-date, and accurate information as is reasonably requested (and whether requested before, during, or after any Shipping Services) as to your prior Shipping Services and the work history of any Personnel and other information relating to the Shipping Services as may be required in order for FarmPro or Producer to comply with any applicable laws or its contractual obligations;
(b) all information provided by you on or through the Platform is accurate and complies with relevant law, and you will immediately notify FarmPro of any change in any such information;
(c) you and your Personnel have the legal right to work in the jurisdiction in which the Shipping Services will be performed and to carry out the Shipping Services for each Service Listing;
(d) you have and the Personnel has the necessary skills, technical ability, and experience, including the proper training, license, and qualifications, to perform the Shipping Services;
(e) as a condition of doing business with FarmPro, you maintain current insurance, in amounts and of types required by law or as specified as part of a Service Listing to provide the Shipping Services, at your own expense;
(f) you are not subject to any suit, action, claim, arbitration or legal, administrative or other proceeding, or government or professional investigation, pending or threatened, related to or affecting your ability to perform Shipping Services, and will immediately inform FarmPro of any such action;
(g) you and your Personnel will provide and maintain all equipment required for the Shipping Service, including all necessary fuel, oil, gasoline, tires and repairs for the operation of such equipment;
(h) you will pay all expenses incidental to such operation, including, but not limited to, any penalties or fines incurred, including overweight fines, insurance surcharges, hose charges, tolls and parking fees;
(i) you ensure all equipment to be in good working condition prior to arriving to receive the bulk products for the Shipping Service; and
(j) you and your Personnel are a motor carrier under 49 USC 13102(12) and are duly registered with the Department of Transportation pursuant to 49 USC 13902 and 13905 with a Motor Service Provider Safety Rating of “satisfactory” or “unrated”; if not, you or Personnel shall promptly notify FarmPro if Service Provider or Personnel is assessed an “unsatisfactory” or “conditional” safety rating, and in such event, FarmPro may suspend the Shipping Service(s) with Service Provider.
5.4 Shipping Service Fees. You will earn Shipping Service Fees as set forth in the Shipping Service Description. As part of the services provided pursuant to the Platform, on your behalf and for your benefit, upon completion of a Shipping Service, FarmPro will produce an invoice for such Shipping Service you perform, which will be based on the applicable Shipping Service Description (each, an “Invoice”). FarmPro will deliver (via email or the Platform) each Invoice to the applicable Producer (with a copy to you). As provided in Section 5.2(n), you are required to enter into the Factoring Agreement. Pursuant to the Factoring Agreement, you will sell to FarmPro all of your accounts receivable (and corresponding Invoices) arising from Shipping Services that you perform for Producers through use of the Platform. As provided in the Factoring Agreement, FarmPro will purchase accounts receivable following (a) receipt of all documentation sufficient to verify that the services with respect to such account receivable were performed in full compliance with the Shipping Service Description, and (b) acceptance or deemed acceptance by the applicable Producer of completion of the Shipping Service and the related Invoice (in accordance with Section 4.4). With respect to each such purchase, FarmPro will pay you the Purchase Price (as defined in the Factoring Agreement). Pursuant to the Factoring Agreement: (i) you authorize us to deduct from the Purchase Price, a factoring commission for each purchased account receivable and (ii) in addition, you authorize us to deduct from the Purchase Price any Platform Fees then due and owing from you. Timing of receipt of the Purchase Price to your Payment Method may vary and will be dependent on the third-party service provider remitting such payment. You, as a Service Provider, accept that you shall only receive payment of the Purchase Price (less any applicable Platform Fees) in respect of any Shipping Services in accordance with the payment terms set forth herein and in the Factoring Agreement. All amounts payable to you hereunder will be paid to your Payment Method.
5.5 Platform Fees Payable by Service Provider. You acknowledge and agree that FarmPro may set off against, and deduct from the Purchase Price to be paid for accounts receivable under the Factoring Agreement, any Platform Fees payable by you hereunder. You represent and warrant that any information provided by you, based upon which any Platform Fees are calculated is true, complete, and accurate, and will be kept true, complete, and accurate at all times.
5.6 No Employment Relationship; No Legal or Other Advice. Service Providers are not employees nor contractors of FarmPro. Except as expressly set forth in Section 5.6, above, neither this Agreement nor your performance under this Agreement shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between FarmPro or its affiliates and you, or between FarmPro or its affiliates and your employees and agents. FarmPro and you agree that you and your employees and agents will receive no FarmPro-sponsored benefits from FarmPro or its affiliates where benefits include, but are not limited to, paid vacation, sick leave, medical insurance and 401k participation. If you or your employees or agents, are reclassified by a state or federal agency or court as FarmPro’s employee, you or your employees or agents, as applicable, will become a reclassified employee and will receive no benefits from FarmPro or its affiliates, except those mandated by state or federal law, even if by this Agreement of FarmPro’s benefit plans or programs of FarmPro in effect at the time of such reclassification, you or your employees or agents, as applicable, would otherwise be eligible for such benefits. You acknowledge your sole responsibility for complying with all federal, state and local tax filing and payment obligations that pertain to any remuneration received from users or as facilitated by FarmPro (or its affiliates or agents) in connection with this Agreement, including your sole responsibility for all tax withholding, Social Security, Worker’s Compensation Insurance, FICA, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pensions, and other obligations or benefits. You acknowledge that FarmPro is not rendering legal, tax, or investment advice, nor is FarmPro a fiduciary of you. Accordingly, you acknowledge that you may seek advice from an appropriate professional to comply with any and all applicable federal, state, and local laws or ordinances.
6. FEES AND PAYMENT POLICY.
6.1 Access. In order to access and use certain features of the Platform, you will be required to provide credit card information or bank account information necessary to a third-party payment service provider to facilitate payments hereunder (“Payment Method”) unless an alternative payment arrangement is agreed upon mutually between you and FarmPro. You agree to keep all Payment Method information true, accurate, and complete at all times. We may change our fees, or accepted Payment Methods, from time to time by posting the changes on the Platform. You hereby authorize FarmPro’s third party payment service provider to charge your Payment Method for any amounts payable by you hereunder.
6.2 Refunds. Except as expressly set forth herein, FarmPro has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by FarmPro, in each case in FarmPro’s sole discretion. Any disputes related to the Shipping Services shall be processed as set forth in Sections 4.4.
6.3 Taxes. The payments required under this Agreement do not include any Sales Tax that may be due in connection with any products or services provided under this Agreement. If FarmPro determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, FarmPro shall collect such Sales Tax in addition to the payments required under this Agreement. If any services or products, or payments for any services or products under this Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to FarmPro, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify FarmPro for any liability or expense FarmPro may incur in connection with such Sales Taxes. Upon FarmPro’s request, you will provide it with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
6.4 Third Party Provider. FarmPro uses Stripe, Inc. and Plaid Inc. as third-party service providers for payment services (e.g., card acceptance, merchant settlement, and related services). By contracting for Shipping Services on the Platform, you agree to be bound by Stripe’s Privacy Policy (https://stripe.com/privacy) and Terms of Use (https://stripe.com/payment-terms/legal) and Plaid’s Privacy Policy (https://plaid.com/legal/) and Terms of Use (https://plaid.com/legal/terms-of-use/) and hereby consent and authorize Plaid and Stripe to share any information and payment instructions you provide with third party service provider(s) to the minimum extent required to complete your transactions. FarmPro reserves the right to change its third-party service providers from time to time, by posting the changes on the Platform.
7. CONTENT ON THE PLATFORM.
7.1 Types of Content. You acknowledge that all Content contained in the Platform, is the sole responsibility of the party from whom such Content originated. This means that you, and not FarmPro, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Platform (“Your Content”), and other users of the Platform, and not FarmPro, are similarly responsible for all Content they Make Available through the Platform (“User Content”).
7.2 No Obligation to Pre-Screen Content. You acknowledge that FarmPro has no obligation to pre-screen Content (including, but not limited to, Your Content or any other User Content), although FarmPro reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. If FarmPro pre-screens, refuses or removes any Content, you acknowledge that FarmPro will do so for FarmPro’s benefit, not yours. Without limiting the foregoing, FarmPro shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. FarmPro is not responsible for and does not control User Content. FarmPro does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content at your own risk.
7.3 Storage. Unless expressly agreed to by FarmPro in writing elsewhere, FarmPro has no obligation to store any of Your Content that you Make Available on the Platform. FarmPro has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Platform.
7.4 Ownership of the Platform. Except with respect to Your Content, you agree that FarmPro and its licensors own all rights, title and interest in the Platform (including, but not limited to, any computer code, themes, objects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Platform.
7.5 Your Content. FarmPro does not claim ownership of Your Content. However, when you Make Available Your Content on or through the Platform, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the purpose of providing the Platform.
7.6 License to Your Content. Subject to any applicable Account settings that you select, you grant FarmPro a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Platform to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Platform.
7.7 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Platform, you hereby expressly permit FarmPro to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
7.8 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of FarmPro.
7.9 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to FarmPro through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that FarmPro has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to FarmPro a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Platform.
7.10 Reviews. The Platform hosts Content that is related to reviews of certain users. Such reviews are opinions and are not the opinion of FarmPro, have not been verified by FarmPro, and each user should undertake his or her own research to be satisfied concerning any specific user. You agree that FarmPro is not liable for any such Content.
7.11 Referrals. Both Producer and Service Providers can refer people to become Service Providers on the Platform. If you refer someone to become a Service Provider on the Platform, you represent and warrant you have the authority to give that information to FarmPro and permit us to contact that person. FarmPro will not compensate you for any referrals.
8. INTERACTIONS WITH OTHER USERS.
8.1 User Responsibility. You are solely responsible for all of your interactions with other users of the Platform and any other parties with whom you interact through the Platform; provided, however, that FarmPro reserves the right, but has no obligation, to intercede in such disputes. Service Providers and Producers understand that FarmPro does not make any attempt to verify the statements of either parties and that FarmPro is not affiliated with, and does not have any control over, any Service Providers.
8.2 Non-Circumvention. Notwithstanding anything else contained herein, you represent and warrant that all payments will be made through the Platform in accordance with the payment terms set forth herein. You acknowledge and agree that a substantial portion of the compensation FarmPro receives for making the Platform available to you is collected through the Platform Fees described in Sections 4.5 and 5.5. FarmPro only receives Platform Fees for the Platform when a Producer and a Service Provider pay and receive payment via the Platform. Therefore, for the greater of 24 months from the time you first interact with any user through the Platform (the “Non-Circumvention Period”), you agree to use the Platform as your exclusive method to request, make, and receive all payments with that user for Shipping Services or otherwise arising out of your relationship with that user. For the avoidance of doubt, if you did not identify or were not identified by another user through the Platform, such as if you and another user worked together before meeting on the Platform, then the Non-Circumvention Period does not apply; provided that any payment of Shipping Service Fees contracted for through the Platform must be made through the Platform and in accordance with Sections 4.3 and 5.4. You agree not to circumvent the payment methods offered by the Platform. By way of illustration and not in limitation of the foregoing, you agree not to:
(a) submit proposals or solicit parties identified through the Platform to contract, hire, work with, or pay outside the Platform;
(b) accept proposals or solicit parties identified through the Platform to contract, invoice, or receive payment outside the Platform;
(c) report on the Platform any payment amounts lower than that actually agreed between users; or
(d) refer a user you identified on the Platform to a third-party who is not a user of the Platform for purposes of making or receiving payments that should otherwise be made or received through the Platform.
You agree to notify FarmPro immediately if a user suggests making or receiving payments outside of the Platform in violation of this Section 8.3.
9. RELEASE. FarmPro expressly disclaims any liability that may arise between users of the Platform. In the event that you have a dispute with one or more users, including with respect to the performance of or failure to perform any Shipping Services, the amount or sufficiency of any Shipping Service Fees, or the authorization to release or failure to authorize the release of any Shipping Service Fees, you hereby release FarmPro (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” THE FOREGOING RELEASE DOES NOT APPLY TO ANY CLAIMS, DEMANDS, OR ANY LOSSES, DAMAGES, RIGHTS AND ACTIONS OF ANY KIND, INCLUDING PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE FOR ANY UNCONSCIONABLE COMMERCIAL PRACTICE BY A FARMPRO PARTY OR FOR SUCH PARTY’S FRAUD, DECEPTION, FALSE, PROMISE, MISREPRESENTATION OR CONCEALMENT, SUPPRESSION OR OMISSION OF ANY MATERIAL FACT IN CONNECTION WITH THE PLATFORM OR ANY SERVICES PROVIDED HEREUNDER.
10. THIRD-PARTY SERVICES. The Platform may contain links to third-party websites (“Third-Party Websites”) and applications (“Third Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the Platform and are subject to this Agreement and conditions (including privacy policies) of another website or destination. Such Third-Party Websites or Third-Party Applications are not under the control of FarmPro. FarmPro is not responsible for any Third-Party Websites or Third-Party Applications. FarmPro provides these Third-Party Websites or Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or their products or services. You use all links in Third-Party Websites or Third-Party Applications at your own risk. When you leave the Platform, our Terms of Use and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
10.1 Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) this Agreement is concluded between you and FarmPro only, and not Apple, and (ii) FarmPro, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between FarmPro and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of FarmPro.
(d) You and FarmPro acknowledge that, as between FarmPro and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and FarmPro acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between FarmPro and Apple, FarmPro, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(f) You and FarmPro acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
11. INVESTIGATIONS. FarmPro may, but is not obligated to, monitor or review the Platform and Content at any time. Although FarmPro does not generally monitor user activity occurring in connection with the Platform or Content, if FarmPro becomes aware of any possible violations by you of any provision of this Agreement, FarmPro reserves the right to investigate such violations, and FarmPro may, at its sole discretion, immediately terminate your license to use the Platform, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
12. INDEMNIFICATION. You agree to indemnify and hold FarmPro, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “FarmPro Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (1) Your Content; (2) your use of, or inability to use, the Platform; (3) your violation of this Agreement; (4) your violation of any rights of another party, including any users; (5) the actual or alleged negligence or intentional wrongdoing of you or persons under your control; (6) any liability for your payment or non-payment of federal, state, or local taxes, or other withholdings; or (7) your violation of any applicable laws, rules or regulations. FarmPro reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with FarmPro in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Platform.
13. DISCLAIMER OF WARRANTIES AND CONDITIONS.
13.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK, AND THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FARMPRO PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) FARMPRO PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE; OR (iv) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED.
(b) FARMPRO PARTIES MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY SERVICE PROVIDERS AND OTHER THIRD PARTIES WILL MEET YOUR SHIPPING REQUIREMENTS.
(c) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PLATFORM, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(d) THE PLATFORM MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. FARMPRO MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FARMPRO OR THROUGH THE PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(f) From time to time, FarmPro may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at FarmPro’s sole discretion. The provisions of this section apply with full force to such features or tools.
13.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT FARMPRO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FARMPRO PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES OR OTHER USERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
(a) FARMPRO MAKES NO WARRANTY THAT THE SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FARMPRO MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE PLATFORM.
(b) WHILE WE MAY HELP FACILITATE THE RESOLUTION OF DISPUTES THROUGH VARIOUS PROGRAMS, WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY OF SHIPPING SERVICES, THE TRUTH OR ACCURACY OF USER CONTENT OR JOBS, THE PHYSICAL OR LEGAL ABILITY OF SERVICE PROVIDERS TO PERFORM SHIPPING SERVICES, THE ABILITY OF FARMERS TO PAY FOR SHIPPING SERVICES, OR THAT SERVICE PROVIDER WILL ACTUALLY COMPLETE ANY SHIPPING SERVICES.
(c) WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE PLATFORM AND OPERATION OF THE PLATFORM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. ACCORDINGLY, TO THE EXTENT LEGALLY PERMITTED, WE EXCLUDE ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS.
14. LIMITATION OF LIABILITY.
14.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL FARMPRO PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM OR SHIPPING SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FARMPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM, ON ANY THEORY OF LIABILITY.
14.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL FARMPRO PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY FARMPRO AS A RESULT OF YOUR USE OF THE PLATFORM. IF YOU HAVE NOT PAID FARMPRO ANY AMOUNTS FARMPRO’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
14.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FARMPRO AND YOU.
15. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is FarmPro’s policy to terminate Platform access of any user who repeatedly infringes copyright upon prompt notification to FarmPro by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Platform in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Platform of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for FarmPro’s Copyright Agent for notice of claims of copyright infringement is as follows: contact@Farmpro.ag
16. TERMINATION AND SUSPENSION. FarmPro may terminate or suspend this Agreement or your right to access and use the Platform at any time for any or no reason. We may modify or discontinue the Platform. Without limitation, FarmPro may terminate or suspend your right to use the Platform if: (1) you breach any provision of this Agreement or any policy of FarmPro posted through the Platform from time to time; (2) FarmPro otherwise finds that you have engaged in inappropriate and/or offensive behavior; (3) FarmPro believes you are creating problems or possible legal liabilities for FarmPro; (4) FarmPro believes such action will improve the security of our community or reduce another user’s exposure to financial liabilities if FarmPro believes you are infringing the rights of third parties; (5) FarmPro believes you are acting inconsistent with the spirit of this Agreement; or (6) despite our reasonable endeavors, FarmPro is unable to verify or authenticate any information you provide. In addition to terminating or suspending your Account, FarmPro reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Platform is terminated or suspended, this Agreement will remain enforceable against you. You may terminate your Account at any time via the Platform. Any provisions of this Agreement or the Factoring Agreement that by their nature should survive any termination of this Agreement will survive. Any outstanding payments will be made as directed by FarmPro. Despite termination of this Agreement, you are liable for any outstanding obligation that you may have as set forth herein, including all outstanding Shipping Services, and in the Factoring Agreement.
17. VIOLATIONS. If FarmPro becomes aware of any possible violations by you of this Agreement, FarmPro reserves the right to investigate such violations. If, as a result of the investigation, FarmPro believes that criminal activity has occurred, FarmPro reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. FarmPro is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Platform, including Your Content, in FarmPro’s possession in connection with your use of the Platform, to: (i) comply with applicable laws, legal process or governmental request; (ii) enforce this Agreement; (iii) respond to any claims that Your Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of FarmPro, its users or the public, and all enforcement or other government officials, as FarmPro in its sole discretion believes to be necessary or appropriate.
18. ARBITRATION AGREEMENT. Please read this Section (the “Arbitration Agreement”) carefully. It is part of your contract with FarmPro and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
18.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and FarmPro agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Platform, any communications you receive, any services sold through the Platform or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of these Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and FarmPro may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or FarmPro may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
18.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and FarmPro. If that occurs, FarmPro is committed to working with you to reach a reasonable resolution. You and FarmPro agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and FarmPro therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to FarmPro that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to contact@farmpro.ag. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
18.3 Waiver of Jury Trial. YOU AND FARMPRO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and FarmPro are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
18.4 Waiver of Class and Other Non-Individualized Relief. YOU AND FARMPRO AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 18.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE PRODUCER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PRODUCER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 18.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and FarmPro agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or FarmPro from participating in a class-wide settlement of claims.
18.5 Rules and Forum. The Agreement evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and FarmPro agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the Account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and FarmPro otherwise agree, or the Batch Arbitration process discussed in subsection 18.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and FarmPro agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
18.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 18.9 is triggered, the AAA will appoint the arbitrator for each batch.
18.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
18.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or FarmPro need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
18.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and FarmPro agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against FarmPro by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by FarmPro.
You and FarmPro agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
18.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: FarmPro, 3411 Parkway Ave, Bozeman, MT 59718, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
18.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with FarmPro as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
18.12 Modification. Notwithstanding any provision in these Agreement to the contrary, we agree that if FarmPro makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to FarmPro at FarmPro, 3411 Parkway Ave, Bozeman, MT 59718, your continued use of the Platform, including the acceptance of products and services offered on the Platform following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Platform, any communications you receive, any products sold or distributed through the Platform, or these Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to these Agreement) remain in full force and effect. FarmPro will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Agreement.
19. GENERAL PROVISIONS.
19.1 Electronic Communications. The communications between you and FarmPro use electronic means, whether you visit the Platform or send FarmPro e-mails, or whether FarmPro posts notices on the Platform or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from FarmPro in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that FarmPro provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
19.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without FarmPro’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
19.3 Force Majeure. FarmPro, Service Provider, nor Producer shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, pandemic, quarantine, epidemic, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
19.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Platform, please contact us at: contact@farmpro.ag. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
19.5 Limitations Period. YOU AND FARMPRO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PLATFORM OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
19.6 Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the international sale of goods does not apply to this Agreement.
19.7 Notice. Where FarmPro requires that you provide an e-mail address, you are responsible for providing FarmPro with your most current e-mail address. If the last e-mail address you provided to FarmPro is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, FarmPro’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to FarmPro at the following address: FarmPro, 3411 Parkway Ave, Bozeman, MT 59718. Such notice shall be deemed given when received by FarmPro by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
19.8 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
19.9 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
19.10 Export Control. You may not use, export, import, or transfer the Platform except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Platform, and any other applicable laws. In particular, but without limitation, the Platform may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Platform, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Platform for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by FarmPro are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer FarmPro products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.