Terms & Conditions
These terms and conditions (these “Terms”) govern your access to and use of the BASF Corporation (“BASF”) Grow Smart® Live applications and related services, including any crop protection or other product recommendations made by BASF. By signing these Terms, without any changes, you are agreeing to these Terms and entering into a legally binding contract with BASF. As such, you are representing to BASF that you are at least 18 years of age. If you sign these Terms as an employee or agent on behalf of another person or an organization, or you are sharing the information of another person or organization on their behalf via any Grow Smart® Live application, you also agree to these Terms on behalf of that person or organization and you represent and warrant to BASF that you have the authority to bind that person or organization to these Terms. In order to access and use the Grow Smart® Live applications and related services, you must also consent to the BASF Privacy Policy. Do not access or use any Grow Smart® Live application or services, including any crop protection or other product recommendations made by BASF, if you are unwilling or unable to be bound by these Terms and consent to the BASF Privacy Policy. If you do not consent to the BASF Privacy Policy, or you withdraw your consent to the BASF Privacy Policy at any time, effective on the date that you refuse or withdraw consent: (i) you will not be granted access to or be able to use the Grow Smart™ Live applications and related services; and (ii) you will not be eligible to participate in other BASF incentive or rebate programs, including those in which you have previously enrolled, because BASF will be unable to access the required data to confirm your qualifications for such incentives and programs.
1. Definitions
1.“Affiliate” means any company controlling, controlled by or under common control with BASF, “control” meaning in this context the direct or indirect ownership of more than fifty percent (50%) of the voting rights of a company, or the power to nominate more than half of the directors, or the power otherwise to determine the policy of a company or organization.
2. “BASF”, “we”, “us” and “our” means BASF Corporation.
3. “BASF Entities” means BASF and its Affiliates, and the officers, directors, employees, agents and representatives of each of them.
4. “BASF Services” means the services offered by BASF or any of its Affiliates, or in conjunction with trusted business partners, on, through or in connection with any Grow Smart® Live application or service, including (i) the provision of tailored growth plans, forecasting, benchmarking and recommendations, including, without limitation, third-party product recommendations; (ii) access and use of farm (including costs and workforce), field, product and treatment (including applications and spraying), equipment and task management and information systems, all of which may be offered in individual or condensed platforms, as well as reporting abilities related to those systems; (iii) the provision of reports related to information provided through or in connection with any Grow Smart® Live application or through other data gathering sources such as trusted business partners; (iv) the provision of information related to sustainability and efficiency; (v) analytics related to farm, field and market, including analytics based on data independent of any Grow Smart® Live application or service, and analytics provided in reports; (vi) certification management, monitoring and auditing; (vii) risk management tools such as tools related to scouting for biotic and abiotic stress; as well as (viii) any information, content and advice or recommendations provided by BASF or any of its Affiliates, or in conjunction with trusted business partners, related to any of the above
5. “You” and “your” means you as an individual user of any Grow Smart® Live application or BASF Services and, if you are using any Grow Smart® Live application or BASF Services on behalf of another person or organization, also includes that person or organization.
II. Compliance with Law
1. A. You agree that your access to and use of any Grow Smart® Live application and/or BASF Services is subject to these Terms. You agree that you will use any Grow Smart® Live application and BASF Services in compliance with all applicable laws and regulations. You shall not violate any third party`'`s rights, including without limitation any breach of confidence, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary right; or provide false or misleading information when establishing or using any Grow Smart® Live application.
2. B. You agree that you will always read and follow label directions, including label rates and timing, on any and all products, including BASF products and third-party products, that you decide to use in connection with or as a result of any BASF Services.
3. C.“MRL” is the Maximum Residue Level of pesticide legally allowed in/on food or animal feed after use of pesticide according to Good Agricultural Practice (GAP) as specified on the applicable product label. You are advised that international regulations and permissible MRLs frequently change. You and/or the person or entity exporting harvested commodities are responsible for verifying current MRL(s) in the target import countries prior to using BASF products or any other crop protection or other product on your crops, including, without limitation, any third-party products recommended by BASF in connection with the BASF Services and/or shipping harvested commodities to foreign markets. You must consult an appropriate, reliable MRL source to verify current foreign MRL(s) before using any BASF product or third-party product on crops to be exported to foreign markets. Residue levels in the harvested commodities must not exceed domestic tolerances or foreign market MRLs if exported. BASF is not liable for any damages, in whole or in part, caused by, or arising in any way from user`'`s use of the different national/regional MRL databases, or the rejection of imported produce by foreign countries.
III. Intellectual Property
We do not grant you any express or implied intellectual property rights under these Terms, and all rights in and to BASF’s intellectual property are retained by us and/or our Affiliates. These Terms do not grant you any rights to use any trademarks, service marks, logos, domain names, or other brand features of BASF or any BASF Affiliate. Other trademarks and logos used in connection with any Grow Smart® Live application and/or BASF Services may be the trademarks of their respective owners. These Terms do not grant you any right or license with respect to any such trademarks and logos.
You acknowledge and agree that certain third-party products recommended by BASF in connection with the BASF Services, mixtures containing such products and methods for using such products may be covered by the intellectual property rights of other persons or entities. You also acknowledge and agree that these Terms do not include any licenses or other rights to use the intellectual property rights of any other person or entity. You are solely responsible for determining whether any licenses or rights to the intellectual property rights of any other person or entity are needed to use any third-party products recommended by BASF in connection with the BASF Services, mixtures containing such products and methods for using such products, and you are solely responsible for obtaining any necessary licenses or rights to practice any such intellectual property rights.
IV. Indemnity
Upon reasonable notice, you agree to indemnify and hold the BASF Entities harmless from any loss, claim, demand, suit, liability, judgments, cost and expenses, including, without limitation, damages and legal fees, from any claim or demand made by any third party arising out of or relating to (i) your violation of these Terms or any applicable laws or regulations or (ii) the infringement by you, or any third party acting on your behalf, of any intellectual property or other right of any person or entity. You agree that BASF may, at your expense, and in its sole discretion assume the exclusive defense and control of any matter for which you are required to indemnify us. In such event you agree to cooperate at your cost with our defense of such claims. Such cooperation will include providing access to records whether maintained electronically or otherwise, timely producing documents, granting access to property, and providing access to witnesses. You agree not to settle any matter without the prior written consent of BASF.
V. Disclaimers and Limitations of Liability
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE BASF ENTITIES. EACH OF THE SUBSECTIONS BELOW APPLIES ONLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED.
1. 1. THE Grow Smart® Live applications and BASF Services ARE MADE AVAILABLE TO `"`WITH ALL FAULTS`"` AND `"`AS AVAILABLE`"` BASIS. YOUR USE OFTHE Grow Smart® Live applications and BASF Services IS AT YOUR OWN DISCRETION AND RISK. THE BASF ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, COMPLETENESS OR RELIABILITY OF THE BASF SERVICES, INCLUDING, WITHOUT LIMITATION, TECHNICAL ADVICE FURNISHED OR RECOMMENDATIONS MADE BY BASF OR ITS REPRESENTATIVES CONCERNING ANY USE OR APPLICATION OF ANY PRODUCT OR OF THE RESULTS TO BE OBTAINED. ACCORDINGLY, THE BASF ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE BASF SERVICES
2. 2. EXCEPT AS EXPRESSLY STATED ON THE LABEL OF A BASF PRODUCT, THE BASF ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING (I) WARRANTIES AS TO ANY PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES AND RECOMMENDED BY BASF IN CONNECTION WITH THE BASF SERVICES, AND (II) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF ANY OF THE BASF ENTITIES SHALL CREATE A REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED. WITH REGARD TO ANY HANDLING OF ANY PRODUCT, BUYER ASSUMES FULL RESPONSIBILITY FOR QUALITY CONTROL, TESTING AND DETERMINATION OF SUITABILITY OF PRODUCT FOR ITS INTENDED APPLICATION OR USE
3. 3. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY AGAINST BASF OR ITSAFFILIATES IN CASE OF DISSATISFACTION WITH THE Grow Smart® Live applications AND/OR BASF Services, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE Grow Smart® Live applications and BASF Services.
4. 4. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE BASF ENTITIES BE LIABLE FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; (II) LOSS OF PROFITS, BUSINESS, OR USE; (III) REPUTATIONAL HARM, OR (IV) LOSS OF INFORMATION OR DATA, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT BASF HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
VI. Changes to these Terms
We may amend these Terms from time to time. When changes are made, we will notify you by making the revised version available to you, which may occur in connection with BASF’s next provision of any BASF Services to you. You understand and agree that your continued access to or use of any Grow Smart® Live application and/or BASF Services is dependent upon agreeing to such amendments to these Terms and that if you do NOT agree to any amended Terms you will no longer be granted access to any Grow Smart™ Live application or receive any BASF Services.
VII. Surviving Terms
These Terms will continue to be in effect for all Grow Smart® Live applications and/or BASF Services accessed, used or received by you from time to time. Upon written notice to you, you acknowledge that BASF may, in its sole discretion, stop offering you the BASF Services and/or deny you access to and use of Grow Smart® Live applications at any time. In the event that: (A) you choose to stop using Grow Smart® Live application and receiving BASF Services or (B) BASF decides, in its sole discretion, to stop offering you the BASF Services and/or to deny you access to and use of Grow Smart® Live applications, the provisions of these Terms shall survive and continue to apply in full force and effect to all of your prior use of and/or access to all Grow Smart® Live applications and receipt of BASF Services.
VIII. Choice of Law and Venue
These Terms will be governed by and construed in accordance with the substantive laws of the State of New Jersey, U.S.A. FOR ANY CAUSE OF ACTION OR DISPUTE RELATING TO THESE TERMS BROUGHT BY EITHER PARTY, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED WITHIN MORRIS COUNTY, NEW JERSEY, AND YOU WAIVE ANY RIGHT TO OBJECT TO VENUE IN SUCH COURTS ON ANY GROUND.
IX. Dispute Resolution
1. If at any time there occurs a dispute under these Terms, the performance hereunder, or the interpretation hereof, you and BASF shall attempt in good faith to resolve any such dispute promptly by negotiation between representatives who have authority to settle the controversy. Any party may give the other party written notice of any dispute not resolved in the normal course of business. The notice shall include with reasonable particularity a statement of the party’s position and a summary of arguments supporting that position and the name and title of the representative who will represent that party and of any other person who will accompany the representative in such good faith negotiation. Within thirty (30) days after delivery of the notice, the representatives of both parties shall meet at a mutually acceptable time and place. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. At no time prior to the meeting required under this Section shall either party initiate an arbitration or litigation related to these Terms except to pursue a provisional remedy that is authorized by law or by the arbitration rules specified in Section IX(B) or by agreement of the parties.
However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of this Section.
2. 2. Unless otherwise agreed by you and BASF, any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity of these Terms, including the determination of the scope or applicability of this agreement to arbitrate, that is unable to be resolved within a period of ninety (90) days following the delivery of the notice required under Section IX(A), shall be determined by binding arbitration in New York, New York by one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
X. Miscellaneous
Any waiver of BASF`'`s rights under these Terms must be in writing in order to be enforceable, and a waiver given in any single instance shall not constitute a waiver in any future instance. If any section or provision of these Terms is later deemed void by a court, the remaining sections or provisions shall remain valid. These Terms, together with BASF`'`s Privacy Policy, constitute the entire agreement with you concerning the subject matter herein. BASF will not accept any addition to, or alteration or modification of, these Terms. The headings contained in these Terms are for convenience of reference only and are not considered a part of these Terms and shall in no way affect or alter the meaning or effect of any of the provisions of these Terms. You acknowledge and agree that your electronic signature on these Terms, as well as facsimile signatures and PDF files containing signatures, shall be considered original for all purposes.
