Terms and Conditions

Terms and Conditions of use of the Agrocycle Software.

 

(1) Agrocycle is incorporated and registered in Ireland with company number 1234567890 whose registered office is NexusUCD, University College Dublin, Blocks 9 & 10, Belfield Office Park, Belfield – Dublin 4 (from now on the “Company”)

(2)"Licensee" is the organization named in the invoice from Agrocycle when charging the organization for access to the 'Agrocycle' software.

 

BACKGROUND

 

(A) The Licensee would like to receive, and the Company has agreed to supply and license to the Licensee, the Company's software upon the terms and conditions of this agreement (“Agreement”).

 

AGREED

 

  1. Interpretation

    1. The definitions and rules of interpretation in this Clause 1 apply in this Agreement.

    2. Services: the provision of access to the Software and the hosting of Licensee Data.

    3. Intellectual Property Rights: the copyright, patents and applications for the above and all other intellectual property rights in the Software and/or the Services (including all modifications and/or enhancements to the Software made by the Company).

    4. Licensee Data: the data inputted on the Services by the Licensee by their Users only and by no other person.

    5. Normal Business Hours: means between 9am and 5pm on a normal working day in Ireland and excluding weekends and bank holidays.

    6. Software: the object code version of the software programs identified by the Company as Agrocycle

    7. Use: to use the Software in accordance with the limitations on use set out in this agreement.

    8. Users: those employees, agents and independent contractors of the Licensee who are authorized by the Licensee to use the Services, accessing with a unique user id per person. The invoice will stipulate a maximum number of active user accounts, where applicable.

    9. Virus: anything or device (including, without limitation, any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including, without limitation, the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including, without limitation, worms, Trojan horses, viruses and other similar devices.

    10. Writing or written: includes faxes and post mails but neither e-mail nor any other form of electronic communication, except where expressly provided to the contrary.

    11. Clause and schedule headings do not affect the interpretation of this agreement.

 

 

 

  1. Obligations in Outline

    1. The Company agrees to provide the Services.

 

 

  1. Use of the Services

    1. Subject to the terms of this Agreement, the Company grants to the Licensee a non-exclusive, non-transferable right to permit their Users to use the Services solely for the Licensee's internal operations.

    2. The Licensee agrees to comply with any relevant terms relating to the Services as applied by the Company's third-party hosting service provider.

    3. The Licensee will procure that each User shall keep a secure password for their use of the Services and that shall be keep confidential.

    4. The Licensee will independently obtain licenses for third party software necessary to utilize the Software namely Microsoft Edge, Mozilla Firefox or Google Chrome. Where necessary, the Licensee is required to license any additional third-party product in relation to the use of the Software, the Licensee will enter and comply with such license. The Company will have no responsibility in relation to such third-party product.

 

  1. The Licensee shall:

    1. Effect and maintain adequate security measures to safeguard the Software and/or the Services from theft or from other unauthorized access (including, but not limited to, taking care of passwords and user names);

    2. Ensure that all persons allowed access to the Services by the Licensee will comply with the terms and conditions of this Agreement and any act or omission by any such user will be deemed to be a breach of this Agreement by the Licensee if it would have been a breach had it been committed or omitted by the Licensee;

    3. Ensure that the Company or its duly authorized representative will be entitled upon request by the Company to audit the Licensee's use of the Software and/or access to the Services in compliance with this Agreement during normal business hours and the licensee will give full co-operation to the Company in carrying out such audit;

    4. Use the Software only for the purpose of processing its own data for its own internal business purposes only and the Licensee agrees not to use the Services and/or the Software directly or indirectly for the purpose of processing data for third parties.

 

  1. The Licensee shall not access, store, distribute or transmit in the course of its use of the Services any material that:

    1. contains Viruses;

    2. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

    3. is in breach of third-party intellectual property rights;

    4. facilitates illegal activity;

    5. depicts sexually explicit images;

    6. promotes unlawful violence;

    7. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;

    8. in a manner that is otherwise illegal or causes damage or injury to any person or property; or

    9. may be in breach of the applicable terms of a third-party service provider’s term (together 'Inappropriate Content')

 

  1. The Company reserves the right, without liability or prejudice to its other rights to the Licensee, to disable the Licensee's access to any material that breaches the provisions of clause 3.5.

 

  1. The Licensee shall indemnify and keep indemnified the Company against all claims, liabilities and expenses arising out of:

    1. Inappropriate Content stored under the Services by the Licensee; and/or;

    2. any breach of clause 3.5.

 

  1. The Licensee shall not (except as may be allowed by any applicable law which is incapable of exclusion by Agreement between the parties and except to the extent expressly permitted under this Agreement):

    1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display or distribute all or any portion of the Software in any form or media or by any means;

    2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

    3. access all or any part of the Services in order to build a product or service which competes with the Services;

    4. use the Services to provide services to third parties;

    5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or make the Services available to any third party except the Users;

    6. directly or indirectly sell, license, transfer, charge or encumber the Software;

    7. publish or make available

      1. any description of the functionality of the Software, and/or

      2. any information and/or data provided or generated by the Services and/or the Software other than the Licensee Data itself;

    8. attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 3.1. Merge or combine the whole or any party of the Software with any other; and/or

    9. use any of the confidential information of the Company contained in or derived from the Software to develop or market any competing software which is substantially similar in its function or expression to any part of the Software.

  2. The Licensee shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, the Licensee shall promptly notify the Company.

  3. The rights provided under this clause 3 are granted to the Licensee only and shall not be considered granted to any subsidiary or holding company of the Licensee.

 

  1. Services

    1. The Licensee acknowledges that unscheduled maintenance may be performed at any time although the Company will seek to give the Licensee appropriate notice in advance (the Licensee acknowledges that in certain situations such as an emergency or an urgent security issue, little or no notice will be given).

    2. While the Company will endeavor to have the Services available, the Company:

      1. does not warrant that the Services (or the content on it or the Licensee Data) will be always available or uninterrupted or error-free; or that the Services, and/or the information obtained by the Licensee through the Services will meet the Licensee's requirements; and

      2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including, without limitation, the internet, and the Licensee acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

      3. The Company may suspend, withdraw, discontinue or change all or any part of the Services without notice. Subject to the other terms in this Agreement, the Company will not be liable to the Licensee or any third party if for any reason the Services are unavailable at any time or for any period.

 

  1. Data Protection

    1. If the Company processes any personal data (contained within the Licensee Data) on the Licensee's behalf when performing its obligations under this Agreement, both parties will always comply with the General Data Protection Regulation (GDPR) (EU) 2016/679 (GDPR) in relation to any processing of personal data;

    2. the Company will ensure that its staff processing the data are subject to a duty of confidence;

    3. the Company will allow data subjects to exercise their rights under the GDPR;

    4. the Company will assist the Licensee in meeting its GDPR obligations in connection with the personal data in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;

    5. the Company will delete or return all personal data to the Licensee as requested at the end of the contract (except for backups kept in accordance with and access restricted in accordance with standard industry practice);

    6. the Company will provide the Licensee with whatever information it needs to ensure that both Parties are meeting their obligations under Article 28 of the GDPR, and tell the Licensee immediately if it is asked to do something infringing the GDPR;

    7. the Licensee shall ensure that the Licensee is entitled to transfer the relevant personal data to the Company so that the Company may lawfully use, process and transfer the personal data in accordance with this agreement on the Licensee's behalf;

    8. the Licensee shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by the GDPR; and

    9. each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.

 

  1. Charges

    1. The Company will charge a fee for the Services. These charges are set out in the invoice for the Services.

 

  1. Confidentiality

    1. The Company will keep confidential and will ensure that its employees and sub-contractors keep confidential all information supplied by the Licensee which is marked or asserted as confidential at the time of its disclosure and shall not (except as expressly authorized by the Licensee or required by the duties imposed on the Company hereunder) use, or attempt to use for the purpose of gaining a competitive advantage, or disclose or attempt to disclose to any person any of the licensee's confidential information which comes to the knowledge of the Company during this Agreement.

    2. The Licensee will keep confidential the Software and all information supplied by the Company which is marked or asserted as confidential at the time of its disclosure, and shall not without the prior written consent of the Company use, or disclose to any third party the Software or other confidential information for any purpose whatsoever except for the purposes permitted or envisaged under this Agreement and only to the extent necessary for those purposes, and shall inform its employees and contractors of their duty of confidentiality.

 

  1. The obligations of confidentiality shall not extend to any part of the Software and/or the Services or information which is:

    1. already known to the recipient prior to its disclosure by the dis-closer;

    2. lawfully received by the recipient from a third party;

    3. published at the date of such disclosure or subsequently through no fault of the recipient;

    4. independently developed by the receiving Party without recourse to the confidential information; or

    5. required to be disclosed by law to the extent of such required disclosure.

    6. Each Party gives the other its consent to publicize the fact that the parties have a business relationship, but not to disclose the terms of this Agreement.

 

  1. Intellectual Property Rights

    1. All Intellectual Property Rights are and will remain the Company's property.

 

  1. Limitation of Liability

    1. Notwithstanding any other provisions in this Agreement, nothing in this Agreement shall exclude or limit either Party's liability for the following:

      1. death or personal injury resulting from negligence;

      2. fraud or statements made fraudulently;

      3. any other acts or omissions for which the governing law prohibits the exclusion or limitation of liability.

    2. Save as provided in Clause 9.1. the Company will not be liable for any loss of profit, business, goodwill, savings; claims by third parties, indirect loss or consequential loss, damage to licensee's (or any other person's) data or computer programs, whatsoever and howsoever caused (even if caused by the Company's negligence and/or breach of contract and even if the Company were advised that such loss would probably result).

    3. Subject to Clause 9.1 the Company accepts no total liability for any claims, losses, damages or expenses whatsoever and howsoever caused (even if caused by the Company's negligence and/or breach of contract).

 

  1. Termination

    1. Either Party may end this Agreement and the licenses granted under it by telling the other, in writing, if the other Party:

      1. commits any significant breach of this Agreement and (in the case of a breach which is not persistent and can be remedied) have failed, within 30 days after receipt of a request in writing to do so, to remedy the breach; or

      2. has a receiver or administrative receiver appointed over it or over any part of its business or assets or a court of competent jurisdiction makes an order to that effect, or becomes subject to an administration order or enter into any voluntary arrangement with its creditors, or it ceases or threatens to cease to carry on business.

    2. Either party may end this Agreement by giving 30 days' notice to the to the other in writing (including by email) at any time.

 

  1. Consequences of Ending the Agreement

    1. If this Agreement ends:

      1. the right to access the Services granted in Clause 2.1 will cease immediately;

      2. it will not affect any already existing rights or liabilities of either Party, nor will it affect the coming into force or continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into or continue in force on or after ending this Agreement.

 

  1. General Terms

    1. Amendment or variation: This Agreement may only be amended where this has been agreed in writing or electronically signed by a duly authorized representative of the Company.

    2. Notices: All notices to be given under this Agreement must be in writing and sent to the address of the recipient set out in this Agreement, or any other address which the recipient may tell the other in writing. Any notice may be delivered by hand personally or sent by paid letter (within Ireland) or airmail (if overseas) or by facsimile and will be treated as serviced; if by hand, when delivered; if by first class post, 48hours after posting; if by airmail, 6 Business Days after posting; and if by facsimile, when dispatched, provide the sender's fax machine produces automatic confirmation of error free transmission to the recipient's fax number.

    3. Force Majeure: Neither Party will be liable for any delay in performing its obligations under this Agreement if that delay is caused by circumstances beyond its reasonable control (including, without limitation, any delay caused by an act or omission or the other Party), and the Party affected will been titled to a reasonable extension of time for the performance of its obligations.

    4. Severance: If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

    5. Waiver: If a Party doesn't enforce a right available to it under this Agreement in any instance, then that won't prevent it from enforcing that right in future or in any other instance.

    6. Third Party Rights: This Agreement is made for the benefit of the Parties and their successors and permitted assigns; and is not intended to benefit or been forceable by anyone else.

    7. Entire Agreement: Subject to Clause 9.1 the Parties agree that this Agreement together with its Schedules under it constitute the entire agreement between them in respect of the subject matter of this Agreement and supersedes all proposals, oral or written, and all other communications between the Parties with respect to the subject matter of this Agreement. This Agreement also supersedes all prior agreements between the Parties.

    8. No Joint Venture or Partnership: Each Party is an independent contractor, and nothing will be construed to express or imply a joint venture, partnership, or relationship other than vendor and purchaser under contract. Neither Party shall actor describe itself as the agent of the other, nor shall it make any commitments on the other's behalf.

    9. Assignment and Transfer: Neither Party shall assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld.

    10. Governing Law and Jurisdiction: This Agreement will be governed by and construed in accordance with Irish law and both Parties agree to submit to the non-exclusive jurisdiction of the courts of Ireland.