PLEASE READ THIS AGREEMENT CAREFULLY BEFORE BUYING A SUBSCRIPTION TO, ACCESSING, ACTIVATING OR USING AGCOMMAND
March 17, 2016
Thank you for your interest in purchasing a subscription to AgCommand. This Agreement sets out important details regarding your (i) paid, trial, or other subscription (“Subscription”) to the AgCommand telemetry service (“AGCOMMAND” or “Service”) and the website available to Subscribers and others at www.AgCommand.com (“Site”), and (ii) the use of, and your consent to the use of, certain information or data that may be collected, recorded, and transmitted from and about the agricultural machinery associated with AGCOMMAND. This is a legal Agreement between you and AGCO Corporation, Duluth, GA, USA (“AGCO” or “we” or “us”) which supersedes any prior proposal, representation, or understanding between the parties regarding AGCOMMAND. If you do not agree to the terms of this Agreement, you may not access, activate or use AGCOMMAND. You confirm by “accepting” the terms of this Agreement and/or activating and/or using AGCOMMAND that you enter into this Agreement either in the course of a business and not as a Consumer or alternatively on the basis that you acknowledge that the subject matter of this Agreement is a license of rights that is not granted for private domestic, leisure or social purposes normally associated with Consumers.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE BUYING A SUBSCRIPTION, ACCESSING, ACTIVATING OR USING THE SITE OR THE SERVICE. BY “ACCEPTING” THESE TERMS, ENTERING INTO A SUBSCRIPTION, ACCESSING, ACTIVATING OR USING THE SITE OR THE SERVICE, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. PLEASE DO NOT “ACCEPT” THIS AGREEMENT OR ACCESS OR ACTIVATE OR USE THE SITE OR THE SERVICE IF YOU DO NOT AGREE WITH THIS AGREEMENT.
Service Limitations. The Services rely on wireless communication networks and the Global Positioning System (“GPS”) satellite network. NOT ALL SERVICES ARE AVAILABLE EVERYWHERE, PARTICULARLY IN REMOTE OR ENCLOSED AREAS, OR ON ALL VEHICLES, AT ALL TIMES. The area you are operating in may affect the Services that we can provide to you. The Services only work in places where we have retained a Wireless Service Provider for Service in that area and only if the Wireless Service Provider has technical compatibility, coverage, network capacity, and reception when and where the Service is needed. Services that use location information about your vehicle only work if GPS satellite signals are unobstructed, available in that place and compatible with your vehicle systems.
YOUR VEHICLE MUST HAVE A WORKING ELECTRICAL SYSTEM FOR THE SERVICES TO OPERATE.
Software Updates. AGCOMMAND involves software that AGCO makes available to you (“Software”). The Software is licensed, not sold to you, and may need to be updated or changed from time to time. You agree that AGCO may remotely change or update the Software on your vehicle without any further notice or consent. For example, these updates or changes may maintain or improve the proper operation of your equipment. These Software updates or changes may affect or erase data that you have stored in your equipment. We are not responsible for any affected or erased data due to a Software update or change.
Intellectual Property. AGCOMMAND is protected by intellectual property laws and international treaties. All rights in and to AGCOMMAND are owned by AGCO or its suppliers and nothing contained in this Agreement transfers or assigns any right, title, or interest in AGCOMMAND to you.
License. AGCO grants you a non-exclusive, non-transferable, revocable, locally and time restricted end user license to activate and use the Service and Site. You may not rent, lease, sub-license or lend AGCOMMAND to any third-party. AGCO reserves the right to assign its rights in AGCOMMAND and for that purpose to assign this Agreement but will provide notice of such event within the paragraph below headed CHANGES IN TERMS AND SERVICE.
No Reverse Engineering. You may not reverse engineer, decompile, or disassemble AGCOMMAND, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
CHANGES IN TERMS AND SERVICE: WE RESERVE THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME. ANY CHANGES WILL BE EFFECTIVE UPON POSTING OF THE REVISIONS ON THE SITE. THE UPDATED AGREEMENT WILL INCLUDE THE POSTING DATE THAT THE CHANGES BECAME EFFECTIVE. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE POSTING OF THE CHANGES ONLINE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. YOU SHOULD FREQUENTLY REVIEW THE AGREEMENT (INCLUDING THE EFFECTIVE DATE) AND APPLICABLE POLICIES TO UNDERSTAND THE TERMS THAT APPLY TO YOUR USE OF THE SERVICE AND/OR USE OF THE SITE. If we make any material changes to this Agreement that, in our sole judgment, would have an adverse effect on your use of the Service, we will either post a notice on the Site that this Agreement has changed and the effective date of such change or provide you a notice describing such changes and their effective date. In the event of any potential conflict between this Agreement and the terms of any offer for the Service, this Agreement will govern.
Service Cancellation: We reserve the right to cancel your Subscription at any time if you fail to pay amounts owing when due, violate or breach this Agreement, or for any other reason in our sole discretion. If your Subscription is cancelled, you will still be responsible for payment of all outstanding balances accrued through the cancellation date, including any fees described herein.
Support Services. AGCO and its dealers may offer to provide you with support services related to AGCOMMAND (“Support Services”).
Compliance with Laws. You must comply with all applicable laws regarding use of AGCOMMAND including all applicable data privacy laws.
Third Party Products. If you access or use any third party products or services, the terms associated with those third party products or services will also apply, and you will not hold AGCO responsible for your access to or use of such third party products or services.
Termination. Without prejudice to any other rights, AGCO may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement or for any other reason without penalty. In the event that AGCO terminates this Agreement, no refund of fees paid will be available.
No Warranty. YOU UNDERSTAND AND AGREE THAT THE SITE AND THE CONTENT AND FUNCTIONALITY OF THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, REGARDING THE SERVICE, THE RELIABILITY, PREDICTIVE VALUE, COMPLETENESS, TIMELINESS, OR ACCURACY OF THE INFORMATION CONTAINED WITHIN THE SERVICE, OR THAT YOUR ACCESS TO OR YOUR USE OF THE SERVICE OR THE SITE WILL BE UNINTERRUPTED, ERROR FREE OR TIMELY WITH ALL UPDATES. ALL SUCH WARRANTIES (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE HEREBY DISCLAIMED. AGCO DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN THE AGCOMMAND APPLICATION. AGCO MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB, OR OTHER SUCH COMPUTER PROGRAM.
Data Collection. Upon your “acceptance” of these Terms, activation of AGCOMMAND will commence and the Service and Site may collect, record and transmit machine and related data (“AGCOMMAND Data”), including data related to machine position, tracking, monitoring, and activity or other data gathered by any sensor on the machine, such as but not limited to, engine RPM, PTO speed, master apply switch, yield, and/or fuel rate. The type and amount of AGCOMMAND Data collected will vary by machine type and may change at any time without notice. While using AGCOMMAND your vehicle is trackable by the GPS satellite network. If your machine is not only used by yourself, you will inform any user of the machine of the trackability.
Data Storage. For the provision of the Services AGCO will maintain the AGCOMMAND Data for a period of One (1) year (“Data Retention Period”). The Data Retention Period extends from the date of the data collection, during which time you will have the ability to view the AGCOMMAND Data. AGCO in its sole discretion may destroy AGCOMMAND data after its one-year retention period or immediately upon the cancellation or expiration of your Subscription. AGCO will store and secure AGCOMMAND Data in Florida, USA. By accepting the terms of this agreement you acknowledge your consent for AGCO to store, secure and process this data in the USA.
Data Sharing. AGCO agrees that you own any information and data about the machine that is available through the Site and Service. By checking the “Data Sharing” box you thereby grant your dealer from which you purchased AGCOMMAND and AGCO and its affiliates (Exhibit A)(collectively the “License Recipients”) a royalty-free, worldwide, perpetual, non-exclusive license to access, use, store and otherwise process all AGCOMMAND Data of your machine for the purposes of (i) monitoring machine health; (ii) assisting in on-going product development and improvement initiatives; (iii) defending the License Recipients against any claim made by you or any third-party related to the machine associated with the AGCOMMAND Data.
If you elect and give consent to share data with a third party through the AGCOMMAND API, all data transferred to the third party will be governed by the agreement between you and them.
If your machine is operated by others than yourself, you will inform any such operator of the aforementioned Data Sharing. The AGCOMMAND Data used/shared will not include any personal information of you or the users of your machine unless you give us your consent for you and/or procure the consent as a data controller of such person’s related use of the AGCOMMAND Data. For your protection and for our compliance purposes, AGCO procures in its contractual arrangements with its dealers and third parties engaged by AGCO that such dealers and third parties accept obligations to comply with applicable data protection laws imposed on them.
If you as the data owner elect not to share AGCOMMAND Data, on a per machine basis, you may simply leave the box marked “Data Sharing” unchecked for that particular machine. You acknowledge that if you do not check the “Data Sharing” box although you will have access to your AGCOMMAND Data within the Site, AGCO and your servicing dealer will be unable to monitor that machine and you agree that (i) neither AGCO nor its dealers shall have any liability for failure to monitor such machine and (ii) that any Support Services will be unavailable unless and until you check the “Data Sharing” box and any Support Services purchased by you will be terminated immediately upon you opting out of data sharing.
LIMITATION OF LIABILITY. IN NO EVENT SHALL AGCO OR ANY RECIPIENT OF A LICENSE TO USE THE AGCOMMAND DATA AND SITE BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION) RISING OUT OF: (I) THE USE OF OR INABILITY TO USE AGCOMMAND OR THE SITE; OR (II) THE FAILURE OF AGCO OR THE LICENSE RECIPIENT TO MONITOR THE PERFORMANCE OF THE MACHINE AND MAKE RECOMMENDATIONS FOR MACHINE SERVICE OR MAINTENANCE, EVEN IF AGCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AGCO OR ANY LICENSE RECIPIENT TO THE AGCOMMAND DATA BE LIABLE FOR LOSS OF DATA OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFIT), OR OTHER DAMAGES BASED IN CONTRACT, TORT OR OTHERWISE. AGCO SHALL HAVE NO LIABILITY WITH RESPECT TO THE CONTENT OF AGCOMMAND OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ERRORS OR OMISSIONS CONTAINED THEREIN, LIBEL, INFRINGEMENTS OF RIGHTS OF PUBLICITY, PRIVACY, TRADEMARK RIGHTS, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, MORAL RIGHTS OR THE DISCLOSURE OF CONFIDENTIAL INFORMATION.
Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the state of Georgia, USA without giving effect to conflict of law rules. At AGCO’s sole election, any dispute, controversy or claim arising out of or relating to this Agreement or the transactions contemplated hereby shall be decided by final and binding arbitration under the American Arbitration Association Commercial Arbitration Rules in Gwinnett County, Georgia. The arbitration award shall be in writing and include detailed findings of fact, conclusions of law, and a statement of the remedy provided. The arbitration award shall be specifically enforceable and judgment thereon may be entered in any court having jurisdiction thereof. If AGCO elects not to arbitrate, then the dispute, controversy or claim shall be decided exclusively in the State or Superior Court of Gwinnett County, Georgia, USA or the United States District Court for the Northern District of Georgia, Atlanta Division and in no other venue or jurisdiction. Each party further irrevocably consents to personal jurisdiction and venue exclusively in, and agrees to service of process issued or authorized by, any such court. To the extent it may be applicable, the parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods to this Agreement.
You are entitled at any time to request AGCO to supply you with the identity of your servicing dealer and of third parties engaged by AGCO from time to time by contacting DataPrivacy@agcocorp.com
AGCO Affiliates granted a license to data upon checking the “Share Data” box. For more info contact DataPrivacy@agcocorp.com
4205 River Green Parkway
Duluth, Georgia, 30096 United States
Marktoberdorf, Germany, D-87616 Germany
AGCO International GmbH
Victor von Bruns-Strasse 17
Neuhausen am Rheinfall, Switzerland
Warwickshire, United Kingdom, CV8 2TQ
AGCO France SAS
41 Avenue Blaise Pascal
Beauvais, France, 60000
AGCO do Brasil Máquinas E Equipamentos Agrícolas Ltda.
Rua Capitão Francisco de Almeida, 695
Bairro Brás Cubas
Mogi das Cruzes, SP, Brazil, 08740-300
AGCO do Brasil Comercio E Industria Ltda.
Av. Guilherme Schell, 10.260
Bairro São Luís
Canoas – RS, Brazil, 92.420-910
AGCO Australia Limited
615-645 Somerville Road
Victoria, Australia, 3020
AGCO Power Oy
Linnavuori, Finland, 37240
AGCO Netherlands BV
Grubbenvorst, Netherlands, 5971 NG
AGCO Italiana GmbH/SRL
Via dell’Industria 63
Breganze, Italy, 36042