TERMS OF SERVICE
For Buyers and General Users
Last Updated: August 20, 2018
1. Introduction

AgVend Inc. (“AgVend,” “us,” or “we”) provides an online marketplace and associated services as further set forth herein (collectively, the “AgVend Services”), for sellers (“Partner Retailers”) to list and sell agricultural products and services, and for users of the AgVend Services to place orders for such products and services (such users referred to herein as “Buyers”). The AgVend Services may be accessed by Buyers, Partner Retailers and other users via AgVend’s website, currently located at www.agvend.com (the “Website”), and may also be accessible via downloadable applications, such as mobile applications (the “Apps,” and together with the AgVend Services and the Website, the “Platform”).

These Terms of Service, together with any supplemental terms and conditions that we may post from time to time on the Website or Apps (collectively, the “Terms”) apply to your use of the Platform. These Terms of Service do not apply to Partner Retailers, who are subject to a separate agreement with AgVend (except to the extent set forth in such separate agreement). If you would like to sell products or services via the AgVend Website or Apps, please contact us at [email protected] for further information. Our collection, storage, processing, use and disclosure of personal information in connection with the Platform is subject to our Privacy Policy, located here.

For purposes of these Terms of Service, “you” and “your” means you as the user of the Platform. If you use the Platform on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) such entity is legally and financially responsible for your use of the Platform as well as for the use of your account by others affiliated with the entity, including any employees, agents or contractors.

PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING THE WEBSITE OR APPS OR MAKING ANY USE OF THE AGVEND SERVICES, YOU ARE AGREEING TO THESE TERMS. YOUR PARTICIPATION IN AND ACCESS TO THE PLATFORM IS CONDITIONED ON AND SUBJECT TO YOUR COMPLIANCE WITH THE TERMS. IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM. You should be aware that these Terms may change from time to time in accordance with Section 15 below. If you have any questions regarding these Terms, please contact us via email at [email protected].

PLEASE NOTE THAT THIS TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS. YOU CAN VIEW THESE TERMS HERE.

2. The Platform

The Platform will enable Partner Retailer to conduct transactions for the sale of certain agricultural products and services to potential Buyers, such as yourself (“Transactions”). AgVend’s role in any Transaction is limited to providing a means by which Partner Retailers can advertise and promote their products and services and a means by which Buyers can provide payment to Partner Retailers for such products and services. Other than our provision of the Platform and reasonable efforts to provide certain assistance upon request (as further set forth herein), AgVend does not enable any Transactions. Moreover, AgVend is not a party to any Transactions. More specifically:

  • AgVend is not a distributor, seller or reseller of any of the Partner Retailer’s products or services, nor is AgVend a broker, contracting agent or insurer.
  • AgVend does not control the accuracy or completeness of any product descriptions, product availability, shipping information, pricing information or other information provided by Partner Retailers or third parties, and we ultimately cannot control, monitor, independently verify or guarantee such information, including any user’s purported identity, creditworthiness, credentials or background.
  • AgVend has no control over the existence, quality, safety, condition, legality or suitability of any products or services provided by Partner Retailers, and makes no claim regarding the effect or effectiveness of any product which Partner Retailers advertise, promote or offer.
  • AgVend does not take possession or control of any products or services in a Transaction, and title for all products will pass directly from Partner Retailer to Buyer.
  • AgVend does not provide for or coordinate the shipping, delivery, or other transfer of the products or the provision of services in a Transaction but will use reasonable efforts to assist a Buyer who notifies AgVend of an issue with a shipment.
  • AgVend puts agreements into place with Partner Retailers that include Transactions fulfillment requirements, but AgVend has no control over the conduct of its Partner Retailers of any persons who access or use the Platform.
  • AgVend does not endorse any Buyer, Partner Retailer or other user of the Platform, any products or services provided by any Partner Retailer or any information provided by Partner Retailers or other third parties.
  • Any searches you conduct on the Platform are generated based on product information provided by Partner Retailers and other third parties, and AgVend does not guarantee that any search results are complete, accurate or up-to-date.

YOU UNDERSTAND AND AGREE THAT AGVEND IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN OR AMONG USERS OF THE PLATFORM. ANY AND ALL TRANSACTIONS CONDUCTED VIA THE PLATFORM ARE STRICTLY BETWEEN BUYER AND PARTNER RETAILER. AGVEND IS NOT A PARTY TO ANY SUCH TRANSACTION, OR TO ANY CONTRACT BETWEEN A BUYER AND PARTNER RETAILER. AGVEND HAS NO CONTROL OVER THE CONDUCT OF ITS USERS AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.

3. Updates

AgVend may from time to time provide updates, upgrades, bug fixes, patches and other error corrections or new features, functionality tools or content for the Website or the Apps (collectively, “Updates”). Updates may modify or delete features, functionality, tools or content in their entirety. AgVend may at any time modify or discontinue offering the Platform or any elements thereof, including any of the AgVend Services and any features, functionality, tools or content that constitute the AgVend Services, for any reason or no reason, with or without notice to you.

Based on your mobile device settings, when your mobile device is connected to the Internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates. If you do not download and install all Updates, portions of the App may not properly operate. All Updates will be deemed part of the App and be subject to these Terms.

4. Eligibility and Account Registration

The Platform is intended for use by persons who are 18 years of age or older. If you are under 18 years of age, your use of the Platform is expressly prohibited. If we discover that we have collected any personally identifiable information from a child under the age of 18, we will suspend the associated account and remove that information from our database. By using the Platform, you represent and warrant that you are 18 years of age or older.

In order to access certain features, functionality, tools and content of the Platform, including to complete a Transaction or to access your order history accessing order history, you must register on the Website or App and create an account. If you are registering for an account on behalf of a Buyer, you must be authorized to act on behalf of Buyer. You must input complete and accurate information upon registration, and you agree to update such information as necessary to ensure that it remains up-to-date. You will be responsible for creating and safeguarding, and shall not disclose to any third party, your username and password for the Website and Apps. You agree to immediately notify AgVend of any unauthorized use of your account. You acknowledge and agree that you will be solely responsible for any activities on or through your account whether or not you have authorized such activities. If you engage in a Transaction, Partner Retailer will have access to your contact and shipping information as well as any other information you submit with your order, such as any license or certification information and documentation.

5. Suspension or Termination

We reserve the right at any time and without notice to: (a) cancel or suspend your account or access to the Platform for any reason, including if you breach any provision of these Terms, if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, outdated, deceptive or fraudulent, if you have an unconfirmed account, if your account has been inactive, or if we suspect that you have failed to obtain or maintain any necessary federal, state, local or other licenses and registrations required to purchase products or services that you purchase or attempt to purchase via the Platform, (b) to remove from the Website and App any information, materials, opinions or other content (“User Content”) that you provide, (c) warn other users against interacting with you, and (d) review, delay, suspend or terminate any pending Transactions. If you breach any of these Terms, permission to use the Platform will terminate automatically.

Should we terminate or suspend your account or your use of the Platform, you acknowledge and agree that we shall not incur any liability to you or to any other person, including with respect to your inability to complete an ongoing Transaction, and you will not be entitled to any compensation for any Transactions that were cancelled as a result of a suspension or termination of your account or access to the Platform. If AgVend deletes your account for any suspected breach of these Terms by you, you may not register for the AgVend Services under a different name. Termination will not limit any of AgVend’s other rights or remedies at law or in equity, and you agree to fulfill any obligations that have accrued prior to the date of suspension or termination.

6. Conduct of Platform Users

You agree that you will comply with any and all applicable local, state, federal and other laws, rules and regulations, including any and all rulings and orders of any court or administrative body, in using the Platform. You agree not to:

  • obtain, collect or store any information from or about any other user of the Platform other than for purposes of evaluating and executing a Transaction;
  • post, upload, publish, transmit, distribute or otherwise communicate information, opinion or any content, including User Content, that is fraudulent, false, inaccurate, misleading, deceptive, defamatory, obscene, pornographic, vulgar, lewd, offensive or unlawful, that promotes discrimination, harassment or harm or is otherwise inflammatory, abusive or violent;
  • use the Platform for any purpose prohibited by law, including the development, design, manufacture or production of missiles or nuclear, chemical or biological weapons;
  • license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, display, disclose, time share or otherwise commercially exploit or make available to any third party the Platform;
  • use the Platform in the operation of a service bureau or a similar service for third parties;
  • modify, copy or create derivative works based on the Platform;
  • disassemble, reverse engineer, or decompile or otherwise attempt to extract or derive any aspect or component of the Platform;
  • access the Platform in order to build a competitive product or service, build a product or service using similar ideas, features, functions or graphics of the Platform, or copy any ideas, features, functions or graphics of the Platform;
  • input, upload, send, store or otherwise provide to or through the Platform, any information, data or materials that are unlawful or injurious, or that contain or transmit software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
  • interfere with or disrupt the integrity or performance of the Platform or the data contained therein or otherwise damage, destroy, disrupt, disable, impair, interfere with, or otherwise impeded or harm in any manner the Platform;
  • attempt to gain unauthorized access to the Platform or its related systems or networks; or
  • otherwise misuse the Platform or encourage or assist a third party in doing any of the foregoing.

You acknowledge that AgVend has no obligation to monitor your access to or use of the Platform or to review or edit any User Content, but has the right to do so for the purpose of operating and improving the Platform, to ensure your compliance with the Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to User Content that it determines is otherwise objectionable, or as set forth in the Terms. AgVend reserves the right, at any time and without prior notice, to remove or disable access to any User Content. We may also access, preserve and disclose your User Content if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (a) respond to claims asserted against AgVend or to comply with legal processes, (b) enforce or administer our agreements with other Platform users, (c) for fraud prevention, risk assessment and investigation, or (d) protect the rights, property or safety of AgVend, its users or members of the public.

If you feel that another user has violated the Terms, abused the Platform or otherwise acted inappropriately, you may report the user to AgVend at [email protected] AgVend reserves the right, but assumes no obligation, to investigate and take action in response to such reports, any other complaints and claims, or otherwise suspected misconduct or violations of law. You agree to cooperate with and assist AgVend or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request. Regardless of our action or inaction, in no event will AgVend be liable for the acts or omissions of any user or any other third party.

If you are a California resident, you may also report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

7. Transaction Process and Buyer Conditions

As a Buyer, you may search agricultural products and services available in your area, and if the desired products or services are not available in your area, you may request a quote from Partner Retailers. You will also be able to see available deals and to select an offer that meets your needs in terms of price, delivery options, service options and so on. In order to complete a Transaction, you will need to provide payment and shipping information. You will also need to provide valid license or certification information and supporting documentation as required by law if the product you have purchased is a Restricted Use pesticide or other restricted product or service. The identity of the Partner Retailer will be revealed once you have provided all information necessary for the Transaction, have submitted your order, and your payment has been successfully processed. The Partner Retailer should then reach out to you to finalize delivery or pick-up of your purchased products or services. If the product you have purchased is a Restricted Use Pesticide or other restricted product or service, the Partner Retailer will first have to confirm that you have the appropriate licenses or certifications. AgVend will assist the Partner Retailer if there are any issues in completing the Transaction.

As a Buyer entering into or attempting to enter into a Transaction, you hereby acknowledge and agree that:

  • you are ordering products for personal use only, and not for purposes of resale or redistribution;
  • it is your responsibility to review the product and services information, including the official manufacturer product label information, applicable regulations, and otherwise research and determine the completeness, accuracy, timeliness and usefulness of the User Content for yourself using your professional judgment;
  • your order only includes those services specified in the product offer, no additional services are included;
  • you are responsible for complying with all laws, rules and regulations applicable to the Transaction, purchase, shipment, and use of all products and services purchased through the Platform, including having all licenses or permits and meeting any other requirements necessary under applicable law to purchase the products or services;
  • in the case of a Restricted Use pesticide, you have any and all certifications required for purchase and use of the pesticide, and if you do not provide corresponding information as requested by AgVend or the Partner Retailer, your order may be cancelled;
  • you will provide timely responses to requests for information from AgVend or the Partner Retailer;
  • if a Partner Retailer or AgVend has questions about an order placed by you, AgVend or the Partner Retailer may contact you for further information;
  • when you place an order on the Platform, you are entering into a legally binding contract with the Partner Retailer to purchase the Partner Retailer’s the products or services in accordance with the terms that Partner Retailer has offered;
  • when you submit account information to AgVend to process your payment in connection with placing an order, you authorize AgVend to charge the amount due to your account and to notify the Partner Retailer upon approval of the transaction by the Payment Processor (defined below);
  • you are responsible for coordinating the delivery of products and services directly with the Partner Retailer; and
  • your obligations with respect to orders placed prior to the suspension or termination of your account will survive such suspension or termination unless terminated by AgVend or the applicable Partner Retailer(s).
8. Payment Information

AgVend contracts with a payment processor to handle payments via the Platform (“Payment Processor”) and all payment transactions will be subject to the Payment Processor’s applicable terms of service. The Payment Processor is able to process payments made using credit cards, debit cards, or ACH. You agree to be bound by such terms, as may be modified by Payment Processor from time to time. AgVend is not responsible or liable for any issues that arise from the processing of payments on the Platform. The Payment Processor will process a payment once you successfully submit an order on the Website or App, which includes providing all necessary account information. The order total will include, and you must pay, all applicable sales and local taxes and fees. AgVend will notify the Partner Retailer when the payment has been approved and will notify you of confirmation of the Transaction. The Partner Retailer should deliver the order in accordance with the terms specified in its offer, and the Payment Processor will transmit your payment to the Partner Retailer, minus any applicable service fees.

IN ORDER TO PROVIDE YOU WITH COMPETITIVELY PRICED PRODUCTS AND SERVICES TAILORED TO YOUR OPERATIONS, ALL SALES ARE FINAL. AGVEND WILL NOT ISSUE ANY REFUNDS OR CREDITS OR MAKE ANY EXCHANGES FOR PRODUCTS OR SERVICES YOU PURCHASE VIA THE PLATFORM. Nevertheless, if a product or service does not perform as advertised or in accordance with its warranty provisions (if any), you may request a refund, credit or exchange via the Website or App, and AgVend will notify the Partner Retailer and, if you have provided notice within 30 days of purchase, encourage the Partner Retailer to provide the requested refund, credit or exchange. Ultimately, however, the Partner Retailer shall be solely responsible for fulfilling such requests in its discretion. If your account is over 60 days past due, we may retain collection agencies and legal counsel. You agree to pay any such costs of collection.

9. Proprietary Rights

AgVend or its licensors exclusively own all right, title and interest in and to the Platform, including the AgVend Services, Website and App, and all features, functionality, tools and content thereof; all trade names, logos, tag line and other trademarks and services marks contained therein; and any data and information collected by AgVend via the Platform.

Subject to your compliance with the Terms, AgVend grants you a limited right to access and use the Platform, including the right to download and install a copy of the App on each mobile device or computer that you own or control, for your own internal business purposes only. You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Platform in any form or by any means, or sublicense the rights granted in the Terms.

No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by AgVend or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.

In the event that you submit any User Content on or through the Platform, you hereby grant AgVend a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free right and license to use, copy, distribute, publish and display your User Content as necessary for us to provide the AgVend Services to you, including, customer support services, and otherwise operate the Platform, including, for product development and de-bugging purposes. AgVend does not claim any ownership rights in any User Content and nothing in the Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.

We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by emailing us, at [email protected] You acknowledge and agree that all Feedback you give us will be the sole and exclusive property of AgVend, and you hereby irrevocably transfer and assign to AgVend all of your right, title, and interest in and to all Feedback. You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect AgVend’s rights in improvements, enhancements and modifications to the Platform resulting from such Feedback.

10. Copyright Policy

Anyone who believes that his or her work has been reproduced on the Website or Apps in a manner which constitutes copyright infringement may submit a notification to our copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:

  • identification of the copyrighted work that is claimed to be infringed;
  • identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Website or Apps;
  • information for our copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address;
  • a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agents or the law;
  • a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
  • a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.

If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.

Notices of copyright infringement claims should be sent by mail to: AgVend Inc., Attn: Copyright Agent, 400 South 4th Street, Suite 401-227, Minneapolis, MN 55415; or by email to [email protected] AgVend will respond to claims of copyright infringement that comply with the DMCA and other applicable law and that are reported to AgVend’s copyright agent pursuant to the notification procedures explained above. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.

If you believe that your User Content that was removed (or to which access was disabled) after we received a notice of copyright infringement is not actually infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to AgVend’s Copyright Agent: (1) your physical or electronic signature (with your full legal name); (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief, under penalty of perjury, that the content was removed or disabled as a result of mistake or a misidentification of the content; and (4) your name, address, telephone number, and email address, and a statement that you will accept service of process from the person who provided the original notification of the alleged infringement.

If a counter-notice is received by AgVend’s Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten business days or more after receipt of the counter-notice, at AgVend’s sole discretion.

Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.

Further information on the DMCA can be found in 17 U.S.C. 512 or on the United States Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf.

11. Third Party Terms

The Platform may provide links to third-party websites or services. You acknowledge and agree that AgVend is not responsible or liable for (a) the availability, terms or practices of such websites or services, or (b) the content, products or services available on or through such websites or services. Links to such websites or services do not imply any endorsement by AgVend of such websites or services or the content, products or services available on or through such websites or resources. You assume sole responsibility for and assume all risk arising from your use of any such websites or services or the content, products or services available on or through such websites or services.

The following terms and conditions apply to you only if you are using the App from the Apple App Store: To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and AgVend, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and AgVend acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. You and AgVend acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party's intellectual property rights, AgVend, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim solely to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the App. You and AgVend acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the App, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.

The following terms and conditions apply to you only if you are using the App from the Google Play store: If you acquire the App from Google, Inc. or one of its affiliates (“Google”) via Google Play or its successor(s), then to the extent of any conflict between the Google Terms of Service and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and the other terms and conditions in these Agreements, the Google Play Terms shall apply with respect to your use of any App that you acquire from Google Play. AgVend and you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by AgVend or you (or any other user) under the Google Play Terms.

12. Warranties and Disclaimers

You hereby represent and warrant to AgVend that: (a) you have all right, title and interest necessary to accept and agree to the Terms and to grant the rights granted herein, (b) your use of the Platform, your purchase of Partner Retailers’ products and services, and the information you provide via the Platform will not violate any applicable laws, rules, regulations or professional standards, and will not infringe or misappropriate any intellectual property or other proprietary rights of a third party, (c) you have obtained and will maintain all federal, state, local and other licenses and registrations required to purchase the products and services that you purchase or attempt to purchase via the Platform, and (d) you will comply with all rules, policies and procedures set forth on the Platform.

THE PLATFORM, INCLUDING THE WEBSITE AND THE APP ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, AGVEND EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE PLATFORM, AND ANY INFORMATION OR CONTENT PROVIDED THROUGH THE WEBSITE OR THE APPS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT.

WITHOUT LIMITING THE FOREGOING, AGVEND MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR UPLOADING, DOWNLOADING, AND/OR USING FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM OR THROUGH THE PLATFORM, AGVEND OR AGVEND USERS. AGVEND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF THE PARTNER RETAILERS’ PRODUCTS OR SERVICES, INFORMATION OR CONTENT PROVIDED THROUGH THE WEBSITE AND THE APPS. AGVEND DOES NOT WARRANT THAT THE SERVICE IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.

AGVEND DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCTS OR SERVICES ADVERTISED OR OFFERED BY A PARTNER RETAILER OR THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE. BUYERS AND PARTNER RETAILERS CONDUCT TRANSACTIONS ON OR THROUGH THE PLATFORM AT THEIR OWN RISK. AGVEND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY PARTNER RETAILER OR OTHER USER. AGVEND DISCLAIMS ANY AND ALL LIABILITY IN REGARD TO SUCH TRANSACTIONS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

13. Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AGVEND SHALL NOT BE LIABLE FOR THE SALE OR PURCHASE OF ANY PARTNER RETAILER’S PRODUCTS OR SERVICES OR FOR THE EXECUTION OF ANY TRANSACTIONS OR OTHER INTERACTIONS BETWEEN BUYERS AND PARTNER RETAILERS.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AGVEND OR ITS AFFILIATES, OR ITS AND THEIR CURRENT AND FORMER PARTNERS, PRINCIPALS, EMPLOYEES, AGENTS, LICENSORS AND SUBCONTRACTORS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, RIGHTS, USE, DATA, OR GOODWILL, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AGVEND HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL AGVEND’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED US $500.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

You agree that the above limitations of liability, together with the other provisions in these Terms that limit liability, are essential terms of these Terms and that AgVend would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability. You are agreeing to these limitations of liability to induce AgVend to grant you the rights set forth in these Terms.

14. Indemnification

You agree to release, defend, indemnify, and hold AgVend and its affiliates and subsidiaries, and its and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Platform; (b) your violation of these Terms; (c) your User Content; and (d) your interaction with any user of the Platform, including any Transactions with Partner Retailers.

Without limiting the foregoing paragraph, you acknowledge and agree that if you have any dispute with one or more users or Partner Retailers, including any dispute with respect to any Transaction, you release us, our affiliates and subsidiaries, our successors and assigns, and our and their respective officers, directors, employees and agents, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. With respect to such release, you further waive all rights under Section 1542 of the California Civil Code, and any law or legal principle of similar effect in any jurisdiction, as such rights that may relate to the releases in this section. Section 1542 of the California Civil Code, provides as follows:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

This Section will survive any termination of these Terms.

15. Changes to these Terms

We reserve the right to amend the Terms at any time without notifying you in advance. However, we will post any modifications to these Terms on the Website and the Apps. Therefore, it is your sole responsibility to check the Website or Apps from time to time to view any such changes. If you continue to use the Platform after such modifications are posted, you signify your agreement to our revisions to the Terms. Any changes to these Terms (other than as set forth in this paragraph) or waiver of our rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of AgVend. No purported waiver or modification of these Terms by AgVend via telephonic or email communications shall be valid.

16. Notice

Communications made through the Website or Apps (including by messages submitted to us at [email protected]) will not constitute legal notice to AgVend or any of its officers, employees, agents, representatives, or affiliates in any situation where notice to AgVend is required by contract or any law or regulation. Except as explicitly stated otherwise in these Terms, notices to us must be sent by registered or certified mail to: 400 South 4th Street, Suite 401-227, Minneapolis, MN 55415. For contractual purposes, you (a) consent to receive communications from AgVend in an electronic form via any email address you may submit to us; and (b) agree that all Terms, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect your non-waivable rights. Because we will provide certain notices and other important correspondence to you through your email address, you must ensure that the email address related to your account is kept current and that you have access to it. You agree that AgVend shall have no liability in connection with any failure by you to keep current your email address that is on file with AgVend.

17. Governing Law; Arbitration; Class Action Waiver

You agree that these Terms and your use of the Platform are governed by the federal laws of the United States of America and the laws of the State of California, without regard to conflict of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

THIS SECTION INCLUDES AN ARBITRATION AGREEMENT AND AN AGREEMENT THAT ALL CLAIMS WILL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY (AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING). PLEASE READ IT CAREFULLY. YOU MAY OPT OUT OF THE ARBITRATION AGREEMENT BY FOLLOWING THE OPT OUT PROCEDURE DESCRIBED BELOW.

You agree that if you have any dispute with AgVend relating in any way to these Terms or from access to or use of the Platform, you will first contact us and attempt to resolve the dispute with us informally.

If we are unable to resolve the dispute informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding arbitration. If you are an individual you may opt out of this Arbitration Agreement within 30 days of the first of the date you access or use the Platform by following the procedure described below.

Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and AgVend are each waiving the right to a trial by jury or to participate in a class action. This Arbitration Agreement will survive any termination of these Terms.

If you intend to seek arbitration, after following the informal dispute resolution procedure, you must first send written notice to AgVend of your intent to arbitrate (“Notice”). The Notice should be sent by registered or certified mail to the address set forth in Section 16 above. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. The arbitration will be administered by the International Institute for Conflict Prevention and Resolution (“CPR”) under the CPR Rules for Administered Arbitration by a single arbitrator. The arbitration will be conducted in the County of Santa Clara.

Each party will be responsible for paying any CPR, administrative and arbitrator fees (other than the initial filing fees) in accordance with CPR Rules, except that we will pay for your reasonable filing, administrative, and arbitrator fees if your claim for damages does not exceed $75,000 and is non-frivolous (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Nothing in this Arbitration Agreement shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the Service.

If you do not want to arbitrate disputes with AgVend and you are an individual, you may opt out of this Arbitration Agreement by sending an email to: [email protected] within 30 days of the first of the date you access or use the Platform.

ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS GUEST IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND AGVEND ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then the entirety of this Arbitration Agreement will be null and void.

If for any reason a claim proceeds in court rather than in arbitration, the dispute will be governed by the laws of the State of California and the FAA without regard to or application of its conflict of law provisions or your state or country of residence, and will be brought solely in the federal or state courts located in the County of Santa Clara. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.

18. General

If any part of these Terms is held invalid or unenforceable, that portion of these Terms will be construed consistent with applicable law. The remaining portions will remain in full force and effect. The headings to the Sections and Articles in this Agreement are for ease of reference only and do not affect the interpretation or construction of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation.” Any failure on the part of AgVend to enforce any provision of these Terms will not be considered a waiver of our right to enforce such provision. Our rights under these Terms shall survive any cancellation or termination of your account, and any termination of these Terms. Neither AgVend nor you shall be deemed to be an agent of the other party and our relationship with you shall be that of independent contractors. Neither party shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever. We may assign or delegate these Terms, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms without our prior written consent, which may be granted or withheld in our sole discretion, and any unauthorized assignment and delegation by you is null and void from the beginning. In the event of any conflict between these Terms of Service and any policies or other terms set forth on the Website or Apps, these Terms of Service shall control to the extent of such conflict.

19. Acknowledgement

YOU ACKNOWLEDGE THAT YOU HAVE READ ALL TERMS, UNDERSTAND THEM, AND WILL BE BOUND BY THE TERMS. YOU FURTHER ACKNOWLEDGE THAT THE TERMS REPRESENT THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THE TERMS.