FORFARMING SERVICE AGREEMENT
English v1.1, Published 08/2021
Complete Agreement: This ForFarming Services Agreement (FSA) and applicable Attachments and Transaction Documents are the complete agreement regarding each transaction under this FSA (together, the Agreement) under which Client may order ForFarming Services.
Transaction Documents: Transaction Documents (TDs) detail the specifics of transactions, such as charges and a description of and information about the ForFarming Services. Examples of TDs include statements of work, service descriptions, ordering documents and invoices. There may be more than one TD applicable to a transaction.
Attachments: Documents identified as Attachments provide supplemental terms that apply across certain types of transactions such as a solution attachment.
Any conflicting terms in an Attachment or TD that override terms of this FSA will be identified in the TD or Attachment accepted by the Client and only apply to the specific transaction.
1. ForFarming Services
a. ForFarming Services:
i. ForFarming Services are “as a service” ForFarming offerings that ForFarming makes available via a network, such as software as a service, platform as a service, or infrastructure as a service.
ii. Each ForFarming Service is described in a TD.
iii. ForFarming Services are designed to be available 24/7, subject to maintenance. ForFarming will provide advance notice of scheduled maintenance.
iv. Technical support and service level commitments, if any, are specified in an Attachment or TD.
b. Non-ForFarming Services:
i. ForFarming Services may enable access to third party ForFarming Services (Non-ForFarming Services).
ii. A TD will identify any applicable third-party terms that govern Client’s use of Non-ForFarming Services. Use of Non-ForFarming Services constitutes Client’s agreement with the third-party terms.
iii. ForFarming is not a party to any third-party terms and is not responsible for Non-ForFarming Services.
c. Order Acceptance:
i. Client accepts the applicable Attachment or TD for ForFarming Services by ordering, enrolling, using, or making a payment.
ii. ForFarming accepts Client’s order by confirming the order or enabling access.
d. What ForFarming Provides:
i. ForFarming provides the facilities, personnel, equipment, software, and other resources necessary for ForFarming to provide ForFarming Services.
ii. ForFarming provides generally available user guides and documentation to support Client’s use of ForFarming Services.
e. Enabling Software:
i. Enabling Software is software that Client downloads to Client systems that facilitates the use of a ForFarming Service and will be identified in a TD.
ii. Enabling Software is not part of the ForFarming Service and Client may use Enabling Software only in connection with use of the ForFarming Service in accordance with any licensing terms specified in a TD.
iii. The licensing terms will specify applicable warranties, if any. Otherwise, Enabling Software is provided as is, without warranties of any kind.
f. What Client Provides:
i. Client will provide hardware, software and connectivity to access and use the ForFarming Services, including any required Client-specific URL addresses and associated certificates.
g. Right to Use and Client Responsibilities:
i. Client’s authorized users may access ForFarming Services only to the extent of authorizations Client acquires.
ii. Client is responsible for the use of ForFarming Services by any user who accesses the ForFarming Services with Client’s account credentials.
h. Acceptable Use Terms:
i. ForFarming Services may not be used for unlawful, harmful, obscene, offensive, or fraudulent Content or activity. Examples of prohibited activities are advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive, or deceptive messages, introducing viruses or harmful code, or violating third party rights.
ii. Client may not use ForFarming Services if failure or interruption of the ForFarming Services could lead to death, serious bodily injury, or property or environmental damage.
iii. Client may not:
• reverse engineer any portion of a ForFarming Service;
• assign or resell direct access to a ForFarming Service to a third party outside Client’s Enterprise; or
• combine a ForFarming Service with Client’s value add to create a Client branded solution that Client markets to its end user customers unless otherwise agreed by ForFarming in writing.
i. Preview ForFarming Services:
i. ForFarming Services or features of ForFarming Services are considered “preview” when ForFarming makes such services or features available at no charge, with limited or pre-release functionality, or for a limited time to try available functionality. Examples of preview ForFarming Services include beta, trial, no-charge, or preview-designated ForFarming Services.
ii. Any preview ForFarming Service is excluded from available service level agreements and may not be supported.
iii. ForFarming may change or discontinue a preview ForFarming Service at any time and without notice.
iv. ForFarming is not obligated to release preview ForFarming Services or make an equivalent service generally available.
2. Content and Data Protection
a. Content Client Provides:
i. Content consists of all data, software, and information that Client or its authorized users provides, authorizes access to, or inputs to ForFarming Services.
ii. Client grants the rights and permissions to ForFarming, its affiliates, and contractors of either, to use, provide, store, and otherwise process Content solely for the purpose of providing the ForFarming Services.
iii. Use of the ForFarming Services will not affect Client’s ownership or license rights in Content.
b. Use of Content:
i. ForFarming, its affiliates, and contractors of either, will access and use the Content solely for the purpose of providing, managing, and improving the ForFarming Services.
ii. ForFarming will treat Content as confidential by only disclosing to ForFarming employees and contractors to the extent necessary to provide and improve the ForFarming Services.
c. Client Responsibilities:
i. Client is responsible for obtaining all necessary rights and permissions to permit processing of Content in the ForFarming Services.
ii. Client will make disclosures and obtain consent required by law before Client provides, authorizes access, or inputs individuals’ information, including personal or other regulated data, for processing in the ForFarming Services.
iii. If any Content could be subject to governmental regulation or may require security measures beyond those specified by ForFarming for the ForFarming Services, Client will not provide, allow access to, or input the Content for processing in the ForFarming Services unless specifically permitted in the applicable TD or unless ForFarming has first agreed in writing to implement additional security and other measures.
d. Data Protection:
i. ForFarming Data Security and Privacy Principles (DSP) apply for standard ForFarming Services that are generally available.
ii. Specific security features and functions of an ForFarming Service will be described in the applicable Attachment or TD.
iii. Client is responsible for selecting, ordering, enabling, and using available data protection features appropriate to support Client’s use of the ForFarming Services.
iv. Client is responsible for assessing the suitability of the ForFarming Services for the Content and Client’s intended use. Client acknowledges that the ForFarming Services used meet Client’s requirements and processing instructions required to comply with applicable laws.
e. ForFarming’s Data Processing Appendix:
i. ForFarming’s Data Processing Appendix (DPA) is attached to this agreement.
ii. Each ForFarming Service has a DPA Exhibit that specifies how ForFarming will process Client’s data.
iii. The DPA and applicable DPA Exhibit(s) apply to personal data contained in Content, if and to the extent the European General Data Protection Regulation (EU/2016/679) applies.
iv. Upon request by either party, ForFarming, Client or affiliates of either, will enter into additional agreements as required by law in the prescribed form for the protection of regulated personal data included in Content. The parties agree (and will ensure that their respective affiliates agree) that such additional agreements will be subject to the terms of the Agreement.
f. Removal of Content:
i. For ForFarming Services with self-managed features, Client can remove Content at any time. Otherwise, ForFarming will return or remove Content from ForFarming computing resources upon the expiration or cancellation of the ForFarming Services, or earlier upon Client’s request.
ii. ForFarming may charge for certain activities performed at Client’s request (such as delivering Content in a specific format).
iii. ForFarming does not archive Content; however, some Content may remain in the ForFarming Services backup files until expiration of such files as governed by ForFarming’s backup retention practices.
3. Changes and Withdrawal of ForFarming Services
a. ForFarming Right to Change ForFarming Services:
i. At any time and at ForFarming’s discretion, ForFarming may change:
• the ForFarming Services, including the corresponding published descriptions; and
• the DSP and other published data security and privacy documentation for the ForFarming Services.
ii. The intent of any change to the above will be to:
• make available additional features and functionality;
• improve and clarify existing commitments; or
• maintain alignment to current adopted operational and security standards or applicable laws.
iii. The intent is not to degrade the security or data protection features or functionality of the ForFarming Services.
iv. Changes to the published descriptions, DSP, or published other documents as specified above, will be effective when published or on the specified effective date.
v. Any changes that do not meet conditions specified above will only take effect, and Client accepts, upon:
• a new order;
• the term renewal date for the ForFarming Services that automatically renew; or
• notification from ForFarming of the change effective date for ongoing services that do not have a specified term.
b. Withdrawal of a ForFarming Service:
i. ForFarming may withdraw a ForFarming Service without notice.
ii. ForFarming will continue to provide withdrawn ForFarming Service for the remainder of Client’s unexpired term, refund the Client for the remainder of Client’s unexpired term, or work with Client to migrate to another generally available ForFarming offering.
iii. Non-ForFarming Services may be discontinued at any time if the third party discontinues or ForFarming no longer makes available such services.
a. ForFarming Warrants:
i. ForFarming warrants that it provides ForFarming Services or other ForFarming services using commercially reasonable care and skill and as described in the applicable TD.
ii. These warranties end when the ForFarming Services or other ForFarming services end.
iii. These warranties are the exclusive warranties from ForFarming and replace all other warranties, including the implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose.
b. Warranty Limitations:
i. ForFarming does not warrant uninterrupted or error-free operation of the ForFarming Services.
ii. ForFarming does not warrant it will correct all defects.
iii. While ForFarming endeavors to provide security measures to keep all data secure, ForFarming does not warrant ForFarming can prevent all third-party disruptions or unauthorized third-party access.
iv. ForFarming warranties will not apply if there has been misuse, modification, damage not caused by ForFarming, or failure to comply with written instructions provided by ForFarming.
v. ForFarming makes preview ForFarming Services or Non-ForFarming Services under the Agreement as-is, without warranties of any kind. Third parties may provide their own warranties to Client for Non-ForFarming Services.
5. Charges, Taxes, and Payment
i. Client agrees to pay all applicable charges specified in a TD and charges for use in excess of authorizations.
ii. Charges are exclusive of any customs or other duty, tax, and similar levies imposed by any authority resulting from Client’s acquisitions under the Agreement and will be invoiced in addition to such charges.
iii. Amounts are due upon receipt of the invoice and payable within 30 days of the invoice date to an account specified by ForFarming and late payment fees may apply.
iv. Prepaid services must be used within the applicable period.
v. ForFarming does not give credits or refunds for any prepaid, one-time charges, or other charges already due or paid, except as provided in the Agreement.
vi. If ForFarming commits to pricing as specified in a TD, ForFarming will not change such pricing during the specified term. If there is not a specified commitment, then ForFarming may change pricing with commercially reasonable notice.
b. Withholding Taxes:
i. Client agrees to:
• pay withholding tax directly to the appropriate government entity where required by law;
• furnish a tax certificate evidencing such payment to ForFarming;
• pay ForFarming only the net proceeds after tax; and
• fully cooperate with ForFarming in seeking a waiver or reduction of such taxes and promptly complete and file all relevant documents.
ii. Where taxes are based upon the location(s) receiving the benefit of the ForFarming Services, Client has an ongoing obligation to notify ForFarming of such location(s) if different than Client’s business address listed in the applicable Attachment or TD.
i. ForFarming will invoice:
• recurring charges at the beginning of the selected billing frequency term;
• overage and usage charges in arrears; and
• one-time charges upon ForFarming’s acceptance of an order.
6. Liability and Indemnity
a. Liability for Damages:
i. ForFarming’s entire liability for all claims related to the Agreement will not exceed the amount of any actual direct damages incurred by Client up to the amounts paid (if recurring charges, up to 12 months’ charges apply) for the service that is the subject of the claim, regardless of the basis of the claim.
ii. ForFarming will not be liable for special, incidental, exemplary, indirect or economic consequential damages, or lost profits, business, value, revenue, goodwill, or anticipated savings.
iii. These limitations apply collectively to ForFarming, its affiliates, contractors, and suppliers.
iv. The damages that cannot be limited under applicable law are not subject to the above cap.
b. Claims Not Covered:
i. ForFarming has no responsibility for claims based on:
• non-ForFarming products and services, including Non-ForFarming Services;
• items not provided by ForFarming; or
• any violation of law or third-party rights caused by Content, materials, designs, or specifications.
7. Term and Termination
a. Term of a ForFarming Service:
i. The term begins on the date ForFarming notifies Client that Client can access the ForFarming Services.
ii. The ordering TD will specify whether the ForFarming Services renew automatically, proceed on a continuous use basis, or terminate at the end of the term.
iii. For automatic renewal, unless Client provides written notice of non-renewal to ForFarming or the ForFarming Business Partner involved in the ForFarming Services at least 30 days prior to the term expiration date, the ForFarming Services will automatically renew for the specified term.
iv. For continuous use, the ForFarming Services will continue to be available on a month-to-month basis until Client provides 30 days written termination notice to ForFarming or the ForFarming Business Partner involved in the ForFarming Services. The ForFarming Services will remain available until the end of the calendar month after the 30-day period.
b. Suspension of an ForFarming Service:
i. ForFarming may suspend or limit, to the extent necessary, Client’s use of an ForFarming Service if ForFarming reasonably determines there is a:
• material breach of Client’s obligations;
• security breach;
• violation of law; or
• breach of the Acceptable Use Terms.
ii. ForFarming will provide notice prior to a suspension as commercially reasonable.
iii. If the cause of a suspension can reasonably be remedied, ForFarming will provide notice of the actions Client must take to reinstate the ForFarming Services. If Client fails to take such actions within a reasonable time, ForFarming may terminate the ForFarming Services.
c. Termination of ForFarming Services:
i. Client may terminate the ForFarming Services on 30 days’ notice:
• at the written recommendation of a government or regulatory agency following a change in either applicable law or the ForFarming Services;
• if a change to the ForFarming Services causes Client to be noncompliant with applicable laws; or
• if ForFarming notifies Client of a change to the ForFarming Services that has a material adverse effect on Client’s use of the ForFarming Services, provided that ForFarming will have 90 days to work with Client to minimize such effect.
ii. In the event of any such Client termination above or a similar termination of a Non-ForFarming Service, ForFarming shall refund a portion of any prepaid amounts for the applicable ForFarming Service for the period after the date of termination.
iii. Client may terminate the ForFarming Services for material breach of ForFarming’s obligations by giving notice and reasonable time to comply.
iv. If the ForFarming Services are terminated for any other reason, Client will pay to ForFarming, on the date of termination, the total amounts due per the Agreement.
v. Upon termination, ForFarming may assist Client in transitioning Content to an alternative technology for an additional charge and under separately agreed terms.
d. Termination of this FSA:
i. Either party may terminate this FSA:
• without cause on at least 30 days’ notice to the other after expiration or termination of its obligations under the Agreement; or
• immediately for cause if the other is in material breach of the Agreement, provided the one who is not complying is given notice and reasonable time to comply.
ii. Any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled and apply to successors and assignees.
iii. Termination of this FSA does not terminate TDs, and provisions of this FSA as they relate to such TDs remain in effect until fulfilled or otherwise terminated in accordance with their terms.
iv. Failure to pay is a material breach.
8. Governing Laws and Geographic Scope
a. Compliance with Laws:
i. Each party is responsible for complying with:
• laws and regulations applicable to its business and Content; and
• import, export and economic sanction laws and regulations, including defense trade control regime of any jurisdiction, including the International Traffic in Arms Regulations and those of the United States that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users.
b. Applicable Laws:
i. Both parties agree to the application of the laws of the State of New York, United States, without regard to conflict of law principles.
ii. The rights and obligations of each party are valid only in the country of Client’s business address.
iii. If Client or any user exports or imports Content or uses any portion of the ForFarming Services outside the country of Client’s business address, ForFarming will not serve as the exporter or importer, except as required by data protection laws.
iv. If any provision of the Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect.
v. Nothing in the Agreement affects statutory rights of consumers that cannot be waived or limited by contract.
vi. The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under the Agreement.
a. ForFarming’s Role:
i. ForFarming is an independent contractor, not Client’s agent, joint venturer, partner, or fiduciary.
ii. ForFarming does not undertake to perform any of Client’s regulatory obligations or assume any responsibility for Client’s business or operations, and Client is responsible for its use of ForFarming Services.
iii. ForFarming is acting as an information technology provider only.
iv. ForFarming’s direction, suggested usage, or guidance or use of the ForFarming Services do not constitute medical, clinical, legal, accounting, or other licensed professional advice. Client and its authorized users are responsible for the use of the ForFarming Services within any professional practice and should obtain their own expert advice.
v. Each party is responsible for determining the assignment of its and its affiliates personnel, and their respective contractors, and for their direction, control, and compensation.
b. FSA Changes:
i. ForFarming may change this FSA by providing Client at least thirty days’ notice.
ii. FSA changes are not retroactive. They will only apply as of the effective date to:
• new orders;
• continuous ForFarming Services that do not expire; and
iii. For transactions with a defined renewable contract period stated in a TD, Client may request that ForFarming defer the change effective date until the end of the current contract period.
iv. Client accepts changes by placing new orders, continuing use after the change effective date, or allowing transactions to renew after receipt of the change notice.
v. Except as provided in this section and the Changes and Withdrawal of ForFarming Services section above, all other changes to the Agreement must be in writing accepted by both parties.
c. Business Contact and Account Usage Information:
i. ForFarming, its affiliates, and contractors of either require use of business contact information and certain account usage information. This information is not Content.
ii. Business contact information is used to communicate and manage business dealings with the Client. Examples of business contact information include name, business telephone, address, email, and user ID.
iii. Account usage information is required to enable, provide, manage, support, administer, and improve ForFarming Services. Examples of account usage information include digital information gathered using tracking technologies, such as cookies and web beacons during use of the ForFarming Services.
iv. When Client provides information to ForFarming and notice to, or consent by, the individuals is required for such processing, Client will notify individuals and obtain consent.
d. ForFarming Business Partners:
i. ForFarming Business Partners who use or make available ForFarming Services are independent from ForFarming and unilaterally determine their prices and terms. ForFarming is not responsible for their actions, omissions, statements, or offerings.
ii. If ForFarming notifies Client their current ForFarming Business Partner will no longer resell ForFarming Services, Client may select to acquire auto renewing or continuous use ForFarming Services directly from ForFarming or from another authorized ForFarming Business Partner.
i. Neither party may assign the Agreement, in whole or in part, without the prior written consent of the other.
ii. ForFarming may assign rights to receive payments. ForFarming will remain responsible to perform its obligations.
iii. Assignments by ForFarming in conjunction with the sale of the portion of ForFarming’s business that includes the ForFarming Services is not restricted.
iv. ForFarming may share this Agreement and related documents in conjunction with any assignment.
f. Enterprise Companies:
i. This FSA applies to ForFarming and Client (accepting this FSA) and their respective Enterprise companies that provide or acquire ForFarming Services under this FSA.
ii. The parties shall coordinate the activities of their own Enterprise companies under the FSA.
iii. Enterprise companies include:
• companies within the same country that Client or ForFarming control (by owning greater than 50% of the voting shares); and
• any other entity that controls, is controlled by, or is under common control with Client or ForFarming and has signed a participation agreement.
g. Notices and Administration:
i. All notices under the Agreement must be in writing and sent to the business address specified for the Agreement, unless a party designates in writing a different address.
ii. The parties consent to the use of electronic means and facsimile transmissions for communications as a signed writing.
iii. Any reproduction of the Agreement made by reliable means is considered an original.
iv. The Agreement supersedes any course of dealing, discussions, or representations between the parties.
v. Where approval, acceptance, consent, access, cooperation, or similar action by either party is required, such action will not be unreasonably delayed or withheld.
h. Cause of Action:
i. No right or cause of action for any third party is created by the Agreement or any transaction under it.
ii. Neither party will bring a legal action arising out of or related to the Agreement more than two years after the cause of action arose.
iii. Neither party is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control.
iv. Each party will allow the other reasonable opportunity to comply before it claims the other has not met its obligations.
i. Global Resources:
i. ForFarming may use personnel and resources in locations worldwide, including contractors, to support the delivery of ForFarming Services.
ii. Client’s use of the ForFarming Services may result in the transfer of Content, including personal data, across country borders.
iii. A list of countries where Content may be transferred and processed for an ForFarming Service is included in the applicable TD.
iv. ForFarming is responsible for the obligations under the Agreement even if ForFarming uses a contractor and will have appropriate agreements in place to enable ForFarming to meet its obligations for the ForFarming Services.
j. Other Services:
i. ForFarming may offer additional customization, configuration, or other services to support ForFarming Services, as detailed in a TD.