Legal Information & Notices
Last Updated: 07/23/2024
These Terms of Service are agreed between Mycro Harvest and the Customer named in the Order Form accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Mycro Harvest Solution. Each of Mycro Harvest and Customer shall individually be referred to as a “Party” and jointly as the “Parties”. Capitalized terms used in these Terms of Use have the meaning ascribed to them in the preamble hereof or in Section 12.
BY ENTERING INTO AN ORDER FORM OR BY USING THE MYCRO HARVEST SOLUTION, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 11(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE MYCRO HARVEST SOLUTION. CUSTOMER REPRESENTS AND WARRANTS TO MYCRO HARVEST THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE MYCRO HARVEST SOLUTION ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO MYCRO HARVEST THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
These Terms of Service do not, absent the execution of an Order Form create any business relationship or impose any obligation on Mycro Harvest to provide any license, access, product, or service.
Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, during the Term, Mycro Harvest will make the Mycro Harvest Solution Services available to Customer and Permitted Users solely for Customer’s internal business purposes, subject to these Terms of Service and the scope of use set out in the Order Form. If the Mycro Harvest Solution Services are provided to Customer through the Mycro Harvest App for iOS, the terms and conditions set out in Exhibit A will govern, in addition to all the other terms and conditions of this Agreement. If the Mycro Harvest Solution Services are provided to Customer through the Mycro Harvest App for Android, the terms and conditions set out in Exhibit A will govern, in addition to all the other terms and conditions of this Agreement.
Customer will not itself, and will not permit others to:
Customer will only deploy Devices on any Premises set forth in the Order Form and provided that the Premises meets the required specifications set out in an Order Form.
Mycro Harvest may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement: (i) suspend Customer’s access to or use of the Mycro Harvest Solution or any component of them: (A) for scheduled maintenance; (B) due to a Force Majeure Event; (C) if Mycro Harvest believes in good faith that Customer or any Permitted User has violated any provision of this Agreement; (D) to address any emergency security concerns; (E) if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Laws; or (F) for any other reason as provided in this Agreement; and (ii) make any Modifications to the Myro Harvest Solution Services provided that such Modification do not reduce the material functionality of the Myro Harvest Solution Services. Customer is required to accept all patches, bug fixes and updates made by or on behalf of Mycro Harvest to the Myro Harvest Solution Services.
Mycro Harvest may engage third parties to assist it in providing the Myro Harvest Solution or any part of them, provided that Mycro Harvest will remain responsible for all its obligations under this Agreement.
Mycro Harvest will perform Additional Services if set forth in an applicable Order Form. Such Additional Services may include Professional Services if set forth in an Order Form. Customer acknowledges that Mycro Harvest’s ability to provide the Professional Services is dependent upon the cooperation of and assistance from Customer. Customer will cooperate with Mycro Harvest in the performance of the Professional Services and in the development of the Deliverables, including by providing access (whether onsite or remotely) to Customer’s personnel, systems, equipment, or communications facilities, as set out in the applicable Order Form (“Customer Dependencies”). If Customer has not performed the mutually agreed Customer Dependencies including but not limited to providing all necessary cooperation or information to Mycro Harvest, or Mycro Harvest is otherwise denied or delayed access or information by Customer, then Mycro Harvest will be excused, without liability, from performing any further Professional Services. Without limiting the foregoing, if Mycro Harvest’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, any of its personnel, agents, subcontractors, consultants, or employees, Mycro Harvest shall not be deemed in breach of its obligations under this Agreement, including its obligations to meet applicable milestones, or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly from such prevention or delay. Changes to the Professional Services will be subject to the mutual agreement of the Parties. Within ten (10) days of receiving notice from Customer of a proposed change, Mycro Harvest will provide Customer with a written statement of the estimated hours required (or fixed price if requested by Customer) to complete the change and any proposed price increase or decrease that would result from the proposed change, including justification. Mycro Harvest may propose changes to the Professional Services to Customer in writing, including a justification of the change, the estimated hours required (or fixed price if applicable) to complete the change and any proposed price increase or decrease that would result from the proposed change. Upon execution by both Parties of an amended Order Form, Mycro Harvest shall proceed in accordance with the change. The foregoing process shall be known as the “Change Control Process.
During the Term of this Agreement, Mycro Harvest will provide the Customer with limited technical support for standard issue related to the use of the Mycro Harvest Solution Services, if set out in the Order Form. During the Term of this Agreement, Mycro Harvest will provide the Customer with limited Hardware maintenance support so long as Customer takes reasonable care of Hardware. If continuance damage to any Hardware occurs, Provider shall be entitled to bill Customer for the replacement cost of such Hardware.
The Mycro Harvest Solution may contain or require the use of Licensed Third-Party Technology or other third-party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Mycro Harvest does not warrant or support Third-Party Products or other third-party products, offerings or services, whether or not they are designated by Mycro Harvest as “certified” or otherwise. Mycro Harvest cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Mycro Harvest. Mycro Harvest is not responsible for any disclosure, modification or deletion of Customer Property resulting from access by such Third-Party Products or its provider.
Mycro Harvest may issue one or more accounts (the “Customer User Account”) to Customer, for use by employees of Customer (each, a “Permitted User”).
Customer will ensure that each Permitted User only uses Mycro Harvest Solution Services through such Permitted User’s Customer User Account. Customer is responsible for identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use Mycro Harvest Solution Services.
Customer will not allow any Permitted User to share such Permitted User’s Customer User Account with any other Person. Customer will promptly notify Mycro Harvest of any actual or suspected unauthorized use of Mycro Harvest Solution Services. Mycro Harvest reserves the right to suspend, deactivate or replace any Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose, and will notify Customer of such suspension, deactivation or replacement as soon as reasonably possible.
All risks to the Hardware passes to Customer upon shipment by Mycro Harvest. Customer will cause the Hardware to be operated only at the Premises, for the purposes set out herein and to only be operated by competent and duly qualified Permitted Users. The Customer will maintain the Hardware in good operating condition and advise Provider of any damage, loss or malfunction of any Hardware. Customer will take reasonable care with the Hardware and keep the Hardware safe and secure, and advise any staff, employee or individual operating such Hardware of the specifications and safety requirements of such Hardware.
Customer will ensure that all Permitted Users comply with this Agreement. Customer acknowledges and agrees that any act or omission by a Permitted User in breach of this Agreement, or which would have been a breach of this Agreement if done or not done by Customer, will be deemed to be a breach of this Agreement by Customer for which Customer will be held responsible and liable. Without limiting the foregoing, the Customer will ensure that all individual users of the Products, including Permitted Users, are contractually bound to terms and conditions with the Customer that are no less restrictive or protective of Mycro Harvest’s rights than those set forth in this Agreement.
Customer will ensure that none of the Permitted Users bring or maintain any Claim against Mycro Harvest, its partners, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns and those of its Affiliates in respect of any matter related to or in connection with the subject matter of this Agreement.
The Customer retains all right, title and interest, including any Intellectual Property Rights in and to Customer Data and other Customer’s property provided to or made available to Mycro Harvest in order for Mycro Harvest to provide the Mycro Harvest Solution.
Customer grants to Mycro Harvest and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable non transferable (except, as permitted in Section 11(c), and fully paid-up license and right to access, collect, use, process, store, transfer, transmit, copy, modify, adapt, and display Customer Property to: (i) fulfill Mycro Harvest’s obligations under this Agreement, including providing the Mycro Harvest Solution to Customer and its Permitted Users; and (ii) improve and enhance the Mycro Harvest Solution and its other offerings, including third-parties providing Additional Services such as Mycro Harvest’s consultants, subcontractors, and referral partners.
Customer grants to Mycro Harvest, and its subcontractors a nonexclusive, worldwide, perpetual, royalty-free, irrevocable, transferable, sublicensable and fully paid-up right to access, collect, use, process, store, transfer, transmit, copy, modify, adapt, and display Customer Property to produce or generate data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Mycro Harvest may use, process, store, disclose, transfer, transmit, copy, modify and display the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. Aggregated Data is not Customer Data and is not Customer’s Confidential Information.
Mycro Harvest or its licensors retain all right, title and interest, including any Intellectual Property Rights in and to: (i) the Mycro Harvest Solution; (ii) anything developed or delivered by or on behalf of Mycro Harvest under this Agreement including Deliverables, Documentation and Aggregated Data; (iii) all other Mycro Harvest’s Confidential Information, including but not limited to, any reports generated from the Mycro Harvest Solution; (iv) any Modifications to the foregoing (i), (ii) and (iii), (collectively “Mycro Harvest Property”). All rights not expressly granted by Mycro Harvest to Customer under this Agreement are reserved.
To the extent that Customer or any Permitted User submits ideas, suggestions, documents, or proposals regarding the Mycro Harvest Solution to Mycro Harvest (“Feedback”), Customer acknowledges and agrees that: (i) the Feedback does not contain confidential or proprietary information and Mycro Harvest is not under any obligation of confidentiality with respect to the Feedback; and (ii) Mycro Harvest will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to Customer for such use.
Subject to the terms and conditions of this Agreement, Mycro Harvest hereby grants to Customer a revocable, non-exclusive, non-transferable, non-sub-licensable (other than to Permitted Users as provided herein), limited license during the Term to use the Documentation, reports and Deliverables solely for the purpose of use and receipt of the Mycro Harvest Solution Services.
To the extent Customer Data includes Personal Information, Mycro Harvest will:
Customer will pay to Mycro Harvest the fees described in an Order Form (“Fees”). Unless otherwise noted on an Order Form: (i) all Fees are in the currency identified in the Order Form; (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of the Mycro Harvest Solution exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
Mycro Harvest reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 90 days prior notice to Customer in advance of the renewal of the Term.
Mycro Harvest will prepare and send to the Customer, at the then-current contact information on file with Mycro Harvest, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 days of the invoice date.
If the Customer believes Mycro Harvest has charged or invoiced the Customer incorrectly, the Customer must contact Mycro Harvest no later than 30 days after having been charged by Mycro Harvest or receiving such invoice in which the error or problem appeared to request an adjustment or credit. In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith to resolve the dispute.
The Customer may not withhold or setoff any amounts due under this Agreement. Mycro Harvest reserves the right to suspend the Customer’s access to the Services and any delivery of Professional Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Without limiting Mycro Harvest other rights, Mycro Harvest may suspend Customer’s access to or its performance of the Services, if Customer has not paid the applicable Fees within 10 days of the date that such Fees become due.
The Fees do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including any applicable interest and penalties) payable in connection with the transactions contemplated by this Agreement, other than taxes based on the net income or profits of Mycro Harvest.
Any suspension of the Services by Mycro Harvest pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
Mycro Harvest does not store, process or transmit any of Customer’s credit card data but relies entirely on third party processors to handle these functions. Payments due for the Mycro Harvest Solution are subject to the terms and conditions of the applicable payment processor. If Customer does not agree to such payment processor’s terms and conditions, then Customer shall not use the Mycro Harvest Solution and this Agreement shall automatically terminate forthwith. Mycro Harvest is not responsible for changes in currency exchange rates or any processing fees charged by any payment processors. Customer shall pay and be responsible for all such third party payment processor charges.
Recipient hereby agrees that during the Term and at all times following the Term it will: (i) not disclose Confidential Information of Discloser to any person without the express written consent of Discloser, except to its own personnel and Permitted Users (if Recipient is Customer), or its and its Affiliate’s employees, contractors, subcontractors, advisors, consultants, officers, directors, partners, shareholders, agents and their respective successors or permitted assigns (if Recipient is Mycro Harvest), or such other recipients as Discloser may approve in writing, that have a “need to know” for the purposes of receiving or providing the Mycro Harvest Solution , who are informed of the confidential nature of the Confidential Information, who are directed to hold the Confidential Information in confidence and who agree in writing, or are otherwise legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement; (ii) not use Confidential Information of Discloser or permit it to be accessed or used for any purpose except to exercise its rights or perform its obligations under this Agreement; (iii) not alter or remove from any Confidential Information of Discloser any proprietary legend; and (iv) maintain the Confidential Information of Discloser in strict confidence, which will include taking measures to protect the confidentiality and security of such Confidential Information using a reasonable standard of care, and no less than the standard of care taken to protect its own Confidential Information of similar sensitivity.
Notwithstanding Section 6(a), Recipient may disclose Discloser’s Confidential Information: (i) only if and to the extent legally compelled or required by a Governmental or Regulatory Authority, provided that Recipient must first: (A) provide Discloser with prompt prior written notice of such compelled disclosure (except where prohibited by Applicable Laws from doing so) to give Discloser the opportunity to oppose such disclosure; and (B) cooperate fully with Discloser in protecting against or limiting any such disclosure, including obtaining a protective order narrowing the scope of such disclosure and use of the Confidential Information. Thereafter, Recipient may disclose the Confidential Information of Discloser, but only to the extent required and subject to any protective order that applies to such disclosure; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Mycro Harvest, to potential assignees, acquirers or successors of Mycro Harvest if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Mycro Harvest.
Each of the Parties acknowledge that disclosure of Discloser’s Confidential Information or any other breach of this Section 6 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and each Party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Section 6 and to the specific enforcement of the terms of this Section 6, in addition to any other remedy to which Discloser would be entitled.
Upon written request by a Discloser or upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information of the other Party in its possession or control within a reasonable amount of time in accordance with Recipient’s data destruction practices. Notwithstanding the foregoing, Mycro Harvest may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Section 6. Upon written request of Discloser, Recipient will certify in writing that it has complied with this Section 6.
Customer represents, warrants, and covenants to Mycro Harvest that: (i) Customer has obtained and provided, and shall continue to obtain and provide, all necessary consents, rights and notices, and otherwise has and continues to have all necessary authority in and relating to the Customer Data (including Personal Information) for Mycro Harvest to perform its obligations and exercise its rights under this Agreement in compliance with Applicable Laws, including applicable privacy laws, and without infringing, misappropriating or otherwise violating any Intellectual Property Rights or other rights of any third party, and shall inform Mycro Harvest immediately if any such consents, rights or authority are withdrawn or can no longer be relied upon; and (ii) Customer will comply with Section 11(d) (Export Restrictions).
EXCEPT AS EXPLICITLY PROVIDED IN SECTION 7(A) OF THIS AGREEMENT, MYCRO HARVEST DOES NOT WARRANT THAT THE MYCRO HARVEST SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MYCRO HARVEST SOLUTION EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT. THE MYCRO HARVEST SOLUTION (OR ANY PART OF THEM), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY MYCRO HARVEST TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY LICENSED TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, MYCRO HARVEST HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, MYCRO HARVEST EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE MYCRO HARVEST SOLUTION (OR ANY PART OF THEM), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. CUSTOMER ACKNOWLEDGES, AGREES AND UNDERSTANDS THAT: (I) CONDITIONS IN THE PREMISES CHANGE FROM TIME TO TIME AND AS SUCH THE: (A) DATA OR INFORMATION FROM THE MYCRO HARVEST SOLUTION (OR ANY PART THEREOF) IS NOT INTENDED, AND CANNOT BE, RELIED UPON WITHOUT INDEPENDENT VERIFICATION; AND (B) DATA, INFORMATION RESULTS, REPORT OR OUTPUTS THAT COME FROM MYCRO HARVEST SOLUTION OR ANY PART THEREOF MAY NOT REFLECT THE MOST CURRENT OR UP TO DATE INFORMATION; AND (II) IT IS NOT MYCRO HARVEST’S RESPONSIBILITY TO VALIDATE AND INSTRUCT CUSTOMER’S PERMITTED USERS TO VALIDATE THE RESULTS OF THE MYCRO HARVEST SOLUTION OR ANY PART THEREOF, INCLUDING DATA, INFORMATION, REPORT OR OUTPUTS BEFORE RELYING ON SUCH RESULT, DATA, INFORMATION, REPORT OR OUTPUTS, NOR IS IT MYCRO HARVEST’S RESPONSIBILITY TO ENSURE THAT ALL PERSONS THAT RECEIVES SUCH DATA, INFORMATION, RESULTS, REPORT OR OUTPUTS UNDERSTANDS SUCH LIMITATIONS.
The Customer will defend, indemnify and hold harmless Mycro Harvest, and its officers, directors, employees and agents (each, a “Mycro Harvest Indemnitee”) from and against any and all Losses incurred by a Mycro Harvest Indemnitee arising out of or relating to any Claim by a third party (other than an Affiliate of a Mycro Harvest Indemnitee) that arise from or relate to: (i) Customer Property; (ii) Customer’s breach of Sections 1(b), 2, 7(b) or 11(e); (iii) unauthorized use of the Mycro Harvest Solution by the Customer or any Permitted User; (iv) Customer’s business operations; or (v) use of the Mycro Harvest Solution (or any part of them) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with Mycro Harvest in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Mycro Harvest.
IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MYCRO HARVEST IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER FOR THE MYCRO HARVEST SOLUTION SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL MYCRO HARVEST’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL MYCRO HARVEST BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
This Agreement will commence on the Effective Date and continue to be in effect for the Term set out in the Order Form.
Either Party may terminate this Agreement or Order Form (in each case, in whole or in part) for cause, by giving to the other Party written notice of termination upon the occurrence of any of the following events: (i) the other Party breaches or defaults on any of the material terms or conditions of this Agreement (including Customer’s payment obligations under Section 7) and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (ii) the other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (iii) any proceedings are instituted by or against the other Party under any insolvency laws or for reorganization, receivership or dissolution. Notwithstanding the foregoing, MycroHarvest may terminate this Agreement immediately: (A) if Customer breaches any of its obligations in Section 1(b) or 11(e); (B) as otherwise provided in this Agreement or an applicable Order Form; (C) if there is a change in MycroHarvest’s relationship with a third-party software or technology provider or cloud partner has had or is likely to have a material adverse effect on MycroHarvest’s ability to provide the MycroHarvest Solution; or (D) in order to comply with the Applicable Law or requests of Governmental or Regulatory Authorities.
If this Agreement is terminated by Customer due to MycroHarvest’s material breach pursuant to Section 10(b), MycroHarvest will provide Customer with a pro rata refund of any unused Fees prepaid by Customer applicable to the period following the effective date of termination of the Agreement. If this Agreement is terminated by MycroHarvest pursuant to Section 10(b), Customer will remain liable to pay the full Fees outstanding on the effective date of termination of the Agreement. MycroHarvest will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the Term of the Agreement had it not been terminated.
Upon the effective date of the expiration or termination of this Agreement including any Order Form for Transition Services (the “Termination Effective Date”): (i) Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Mycro Harvest Solution; (ii) Customer shall promptly, and in any event within 5 business days of the Termination Effective Date arrange for the delivery of the Hardware to Mycro Harvest. All such delivery shall be arranged in consultation with Mycro Harvest and all costs and expenses related hereto paid for by the Customer; (iii) Customer will return any Mycro Harvest Property in its possession and certify in writing to Mycro Harvest that the Mycro Harvest Property has been returned; (iv) no new Order Forms may be agreed to or entered into by the Parties and all Order Forms will terminate; and (v) all Fees due and payable and any amounts due to Mycro Harvest are immediately due and are to be immediately paid by Customer to Mycro Harvest. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 8 (Customer Indemnity), Section 9 (Limitation of Liabilities), Section 10(e) (Survival), and Section 11 (General Provisions).
Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Mycro Harvest, to the following Mycro Harvest’s address and email contact:
Address: 12 Trillium TerraceActon, ON L7J 2W8
Attention: Christopher Klich, Co-Founder & CEO
Email: chris@mycroharvest.com
and (ii) if to Customer, to the current mailing or email address that Mycro Harvest has on file with respect to Customer, plus an electronic copy to legal@tmx.com. Mycro Harvest may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Mycro Harvest current at all times during the Term.
Customer may not assign this Agreement to any third party without Mycro Harvest’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Mycro Harvest may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent and without prior notice to Customer. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Mycro Harvest from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
Customer will comply with all export laws and regulations under Applicable Laws that may apply to its access to or use of the Mycro Harvest Solution. Mycro Harvest makes no representation or warranty that the Mycro Harvest Solution may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party.
Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, cyberattacks, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in law preventing or limiting the provision of the Mycro Harvest Solution (“Force Majeure Event”). This Section does not apply to any of Customer’s obligations under Sections 5, 6, 7(b) or 11(e). In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
Mycro Harvest’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
This Agreement (including all Order Forms) constitutes the entire agreement between the Parties and set out all the covenants, promises, warranties, representations, conditions, and agreements between the Parties in connection with the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral. For clarity, any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Mycro Harvest Solution; and (ii) do not override or form a part of this Agreement (including any Order Form).
SUBJECT TO THE FOLLOWING SENTENCE, NO AMENDMENT, SUPPLEMENT, MODIFICATION, WAIVER, OR TERMINATION OF THIS AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY SPECIFIED IN THIS AGREEMENT, NO CONSENT OR APPROVAL BY ANY PARTY, WILL BE BINDING UNLESS EXECUTED IN WRITING BY THE PARTY OR PARTIES TO BE BOUND THEREBY. NOTWITHSTANDING THE PRECEDING SENTENCE, MYCRO HARVEST MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY MYCRO HARVEST, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER)
Mycro Harvest may identify Customer by name and logo as a Mycro Harvest customer on Mycro Harvest’s Website and on other promotional materials. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer.
To the extent of a conflict between this Terms of Service and any Order Forms: in respect of Section 3 (Ownership; Reservation of Rights), Section 6 (Confidential Information), Section 7 (Warranty; Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 14(d) (Survival) and Section 11 (General Provisions, including this Section 11(m)), this Terms of Service will prevail; and for all other Sections, unless the Order Form expressly states that it modifies or varies this Terms of Service, this Terms of Service will prevail.
Except for Mycro Harvest’s licensors, or except as otherwise set out Section 8, no person or entity will be a third party beneficiary of this Agreement or have any right or cause of action hereunder.
The Parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the Parties further to negotiation, and were not imposed by either Party, even when drawn up by one of the Parties. The Parties further confirm that it is the express wish of all Parties that this Agreement, all documents related to this Agreement and all communications between the Parties in the context of the performance of this Agreement be in English only. Les parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des parties, même lorsque rédigées par l’une des parties. Les parties confirment également que c’est la volonté expresse des parties que la présente entente, tout document s’y rattachant et toute communication entre les parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.
As used in this Agreement, the following capitalized words have the meaning set out below:
“Additional Services” means the consulting, training and other Professional Services described in an Order Form. The term “Additional Services” does not include Products.
“Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
“Aggregated Data” has the meaning in Section 3(c).
“Agreement” has the meaning in the Order Form.
“Amendment” has the meaning set out in Section 11(l).
“Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
“Change Control Process” has the meaning in Section 1(e).
“Claim” means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.
“Confidential Information” means any and all information of Discloser or any of its Affiliates, and in the case of Mycro Harvest, any of its service providers, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business, Mycro Harvest Property, this Agreement and where Discloser is Customer, Customer’s Confidential Information includes Customer Data. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include any information that: (a) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient; (b) Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement; (c) becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until Recipient subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or (d) Recipient can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, the Confidential Information of Discloser.
“Customer” has the meaning in the Order Form.
“Customer Data” means any data (other than Aggregated Data), information, content, records, and files that Customer (or any of its Permitted Users) loads or enters into, transmits to, or makes available to the Mycro Harvest Solution, including Personal Information provided by Customer or Permitted Users.
“Customer Dependencies” has the meaning in Section 1(e).
“Customer Property” has the meaning in Section 3(a).
“Customer User Account” has the meaning set out in Section 2(a).
“Devices” means the computer vision sensors systems and any devices provided by Mycro Harvest to the Customer that enable the Customer to access the Mycro Harvest Solution Services.
“Documentation” means Mycro Harvest’s manuals, instructions or other documents or materials listed in an Order Form that Mycro Harvest provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Products, including any aspect of the installation, configuration, integration, operation, use, support or maintenance of them.
“Deliverables” means the work product, reports, data, milestones, and customizations, deliverables or other items developed, generated, created or otherwise delivered by Mycro Harvest or any of its personnel, either alone or in collaboration with others, in connection with Professional Services under any applicable Order Form.
“Discloser” means the Party disclosing its Confidential Information to the other Party.
“Effective Date” has the meaning in the Order Form.
“Hardware” means any Devices, or any successor hardware as may be specified in an applicable Order Form.
“Feedback” has the meaning set out in Section 3(e).
“Fees” has the meaning set out in Section 5(a).
“Force Majeure” has the meaning set out in Section 11(g).
“Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental, or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, court or other law, rule or regulation-making entity having or purporting to have jurisdiction over any person or matter related to this Agreement.
“High Risk Activities” means activities that: (A) has a high risk of high risk of physical harm death, serious personal injury, or severe environmental or property damage; (B) has a high risk of economic harm; or (C) involves hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines or any other application in which the failure of the MycroHarvest Solution (where applicable) could lead directly to death, personal injury or environmental or property damage.
“Initial Term” has the meaning set out in the Order Form.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
“Loss” or “Losses” means any and all losses, damages, Claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Mobile App” means Mycro Harvest App for Android and Mycro Harvest App for iOS, collectively, and any part thereof.
“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
“Mycro Harvest” has the meaning in the Order Form.
“Mycro Harvest App for Android” has the meaning set out in Exhibit A.
“Mycro Harvest App for iOS” has the meaning set out in Exhibit A.
“Mycro Harvest Property” has the meaning in Section 3(d).
“Mycro Harvest Solution” means the Products and Services collectively or any part thereof.
“Mycro Harvest Solution Services” means the services: (i) through which Mycro Harvest hosts and makes available the hosted solution as described in an Order Form; (ii) any component or Modifications of the services referred to in (i). The term “Mycro Harvest Solution Services” may include the Website and Mobile App but does not include Hardware, Support Services, Professional Services or Third-Party Products.
“Order Form” means any Mycro Harvest provided ordering document, online registration, order description or order confirmation referencing these Terms of Service.
“Party” or “Parties” has the meaning set out in the preamble.
“Permitted User” has the meaning set out in Section 2(a).
“Personal Information” means information about an identifiable individual transferred by Customer, or its permitted agents, to Mycro Harvest hereunder.
“Premises” means any premises identified in an Order Form.
“Professional Services” consulting, development, implementation, integration, and/or training services provided pursuant to an Order Form.
“Products” means as applicable, the Mycro Harvest Solution Services, Mobile App (if set out in an applicable Order Form), and Hardware (including any applicable Documentation) made available by Mycro Harvest to Customer and, any Deliverables, and all bug fixes, patches, work-arounds, updates, upgrades, enhancements, Modifications, and other new versions of the Mycro Harvest Solution Services, Mobile App (if set out in an applicable Order Form) and Hardware that Mycro Harvest makes available to Customer. The term “Products” does not include Professional Services or any Third-Party Products.
“Recipient” means the Party receiving the Discloser’s Confidential Information.
“Renewal Term” has the meaning the Order Form.
“Services” means the Mycro Harvest Solution Services and any Additional Services, collectively, and any part thereof.
“Term” has the meaning set out in the Order Form.
“Terms of Service” has the meaning in the Order Form.
“Third-Party Products” has the meaning set out in Section 1(g).
“Website” means any websites used by Mycro Harvest to provide the Mycro Harvest Solution Services, including the website(s) located at https://www.mycroharvest.com/.
If Customer accesses or uses the Mycro Harvest Solution Services through the application Mycro Harvest or its Affiliates made available for download from the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) application store (the “Mycro Harvest App for iOS”) the following terms and conditions apply to Customer in addition to all the other terms and conditions of this Agreement in respect of Customer’s access to or use of the Mycro Harvest Solution Services through the Mycro Harvest App for iOS:
If Customer is accessing or using the Mycro Harvest Solution Services through the application Mycro Harvest or its Affiliates made available for download from the ‘Google Play’ application store made available by Google Inc. (Google Inc. together with all of its affiliates, “Google”, such application the “Mycro Harvest App for Android”) the following terms and conditions apply to Customer in addition to all the other terms and conditions of this Agreement in respect of Customer’s access to or use of the Mycro Harvest Solution Services through the Mycro Harvest App for Android: