Bushel Plus Software and Product Terms and Conditions - Limited Warranty
These Terms and Conditions (the “Agreement”) is an agreement entered into between Bushel Plus Ltd. (referred to hereinafter as “Bushel Plus”) and you (“Customer” or “You”) and describes the terms by which Bushel Plus, or one of its Affiliates, offers and provides the Bushel Plus hardware and equipment set, such equipment set including the Bushel Plus Drop Pan and Air Separator (the “Products”) to you, as well as access to our software offerings, such as the Bushel Plus App (the “Software”, and the offering and provision of the Products and Software, and the benefits thereof, are referred to herein as the “Services”). These Services are intended to give You accessible storage of, as well as meaningful analysis of and on-demand access to, important current and historical information relating to your grain, as well as other agricultural products that are or may be compatible with our products, and the fields, harvesting equipment, and inventories associated therewith, including in particular operational settings associated with combine harvesters or other harvesting equipment (the “Purpose”). “Affiliate” means, in respect of one of the parties, any business entity that, from time to time, directly or indirectly controls, is controlled by, or is under common control with a party, or that is a successor (including, without limitation, by change of name, dissolution, merger, consolidation, reorganization, sale or other disposition) to any such business entity or its business and assets.
1) Software End-User License Agreement
Bushel Plus Products may include embedded software (“Embedded Software”) and you may choose to download and use Bushel Plus Software (“Non-Embedded Software”), including the Bushel Plus App. By accepting and using Bushel Plus Products and/or by downloading and using Bushel Plus Software, your use of any Bushel Plus Software is subject to Bushel Plus’s End User License Agreement, a copy of which may be found here: https://www.bushelplus.ca/EULA. The terms of the EULA form part of, and are incorporated into, this Agreement. In the event of any, conflict or inconsistency between the terms as set out in this Agreement and the EULA, the EULA shall prevail to the extent of such conflict or inconsistency. Bushel Plus Software is protected by applicable copyright laws and Bushel Plus reserves all rights thereto, including the right to revoke any licenses hereunder if you fail to comply with the terms of the EULA.
2) Personal Information
3) Representations and Warranties
a) Representations and Customer Obligations. Customer acknowledges that the Products and Software, and the output thereof, are often complex, forward-looking projections, based on third party models and analysis relating, in part to combine harvesters, and are affected by unforeseen and unforeseeable conditions and events. While Bushel Plus takes commercially reasonable measures to ensure that the Products and Software shall meet industry acceptable standards, that third party information used in connection with the Services is correct and up to date, and that it presents complete and accurate analysis and recommendations, it is not possible to guarantee the achievement or avoidance of any outcomes, and accordingly, except as provided in this Section hereinbelow, Bushel Plus makes no representation or warranty in respect of the Products and Software, and the output thereof, or the accuracy of data or information provided to you, or to the third party data. Customer acknowledges the absence of any representation or warranty of any kind, and agrees to accept the Products and Software, and the output thereof, “as is/where is”. Moreover, Customer is responsible for providing accurate information, for proper usage, application, and placement of Bushel Plus Products. You acknowledge and agree the Bushel Plus will not evaluate user submitted data for compliance or correctness, and it is the sole responsibility of the user to ensure that the information as provided is correct. All formula calculations are best practice and may have margins of error of up to +-2%.
b) Limited Product Warranty. The Bushel Plus Drop Pan and/or Air Separator (“Equipment Set”) is warranted to be free of all defects in workmanship or materials for a one (1) year period from the date when the Equipment Set is purchased by the original end user. This warranty does not apply to any Non-Embedded Software The warranty of Bushel Plus is limited to repair or replacement at the sole option of BUSHEL PLUS of any defective workmanship or materials. Bushel Plus’s liability is limited to the cost of parts and labour required to repair or replace the Equipment Set. Bushel Plus may, at its sole option, require the end user to return the Equipment Set to Bushel Plus or its authorized Dealer. Where the repair is covered by warranty, as determined by Bushel Plus in its sole discretion, Bushel Plus shall pay for the cost of repair provided the Equipment Set is returned to Bushel Plus or its authorized Dealer. In the event that, upon inspection Bushel Plus determines that the repair is not covered by this warranty, the end user shall be responsible for all costs associated with any servicing, including shipping costs, parts and labour. This Limited Product Warranty contains the following exclusions and limitations:
i) Any warrant applicable hereunder is subject to Section 4 below (Limitation of Liability and Damages).
ii) This limited warranty is extended to the original end user only, and is not transferable or assignable;
iii) This limited warranty does not cover damages to the Equipment Set caused by handling, shipping, transit, processing or installation;
iv) Bushel Plus will not be liable for any damage or wear to the Equipment Set or consequential damages caused by improper or abnormal operating conditions, accident, abuse, misuse, unauthorized alteration or repair, failure by the end user to properly service and repair the Equipment Set, the improper alteration or repair of the Equipment Set, or failing to install or operate the Equipment Set in accordance with the Instruction Manual; and
v ) Any use, misuse, alteration, modification, repair or maintenance of the Equipment Set which is contrary to, or not in accordance with the manufacturer’s operating instructions or any service bulletins issued by Bushel Plus, from time to time, will void this warranty.
vi) Any claim of a defect in the Equipment Set shall be deemed waived by the end user unless written notice thereof is given to Bushel Plus within thirty (30) days after discovery of the defect and within the applicable warranty period. The end user shall be required to provide proof of purchase in the event of making any warranty claim. Bushel Plus shall have a reasonable opportunity to investigate all warranty claims.
vii) The total liability of Bushel Plus is as set out herein, and Bushel Plus makes no implied warranties, including any implied warranty of merchantability of fitness for a particular purpose.
viii) Bushel Plus and their manufacturers reserve the right to modify this warranty statement at any time without prior notice.
4) Limitation on Liability and Damages
GENERAL. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR AMOUNTS REPRESENTING INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF BUSINESS OR OPPORTUNITY, OF THE OTHER PARTY ARISING FROM THE PERFORMANCE OR BREACH OF ANY TERMS OF THESE TERMS AND CONDITIONS. NONE OF BUSHEL PLUS, ITS AFFILIATES, ITS SUPPLIERS, ITS LICENSORS, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS OF ANY OF THEM (THE “PROTECTED PARTIES”) WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE PURCHASE PRICE OF THE SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EARLIEST CLAIM HEREUNDER, WHETHER FOR A SINGLE CLAIM, ACT, OR OMISSION OR FOR A SERIES OF RELATED OR UNRELATED CLAIMS, ACTS, OR OMISSIONS.
5) Intellectual Property
a) Bushel Plus and Bushel Plus’s licensors, respectively, retain ownership of all right, title, and interest (including copyright) in and to the Software, associated documentation, all copies of the Software, and all intellectual property rights therein or thereto. Nothing in this Agreement constitutes a transfer or conveyance of any right, title, or interest in the Software or associated documentation, or a sale of the Software, associated documentation, or copies of the Software.
b) All of Bushel Plus’s models, data, confidential and proprietary information, methods, processes, copyright and copyrighted works, trademarks, licenses, designs, patents, and other associated intellectual property rights owned or licensed by Bushel Plus, including specifically all data created from or resulting from modification, aggregation, anonymization of BP Data, or combination thereof with other data, are all Bushel Plus’s valuable intellectual property. Bushel Plus reserves all rights to its intellectual property. Any unauthorized use thereof, including any copying, reverse engineering, distribution, renting, sale, disclosure, or any other act that is the exclusive right of Bushel Plus under applicable law, which is not expressly licensed hereunder, is prohibited.
a) Assignment. Customer will not assign any part or all of this Agreement without Bushel Plus’s prior written consent. Any attempt to assign in violation of this section is void in each instance. Bushel Plus may assign this Agreement (or any of its rights and obligations under the Agreement or any Proposal) to any of its Affiliates or in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction.
b) Governing Law/Venue. This Agreement is governed by the laws of the Province of Manitoba and the federal laws of Canada applicable therein, excluding its conflicts of law rules. Customer irrevocably submits to venue and exclusive personal jurisdiction in the federal and provincial courts in Brandon, Manitoba, for any dispute arising out of this Agreement, and waives all objections to jurisdiction and venue of such courts. This Agreement and associated documentation have been written in the English language, and the Parties agree that the English version will govern. (For Canada: Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s’y rattaché, soient redigés en langue anglaise. (Translation: The parties confirm that this Agreement and all related documentation is and will be in the English language).
c) Severability. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present, and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable.
d) No Waiver. A party does not waive any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver.
e) Remedies. Customer acknowledges that any material breach of Section 6 by Customer would cause Bushel Plus irreparable harm for which Bushel Plus has no adequate remedies at law and would not be compensable by monetary damages alone. Accordingly, Bushel Plus is entitled to specific performance or injunctive relief for any such breach without posting a bond or proving actual damages, and without prejudicing any other remedies available to Bushel Plus.