1. General Information

(1) These terms of use (hereinafter referred to as "Terms of Use") govern the granting of rights to use the mobile application Encircle RTDS ("BASF App") developed by or on behalf of BASF Agricultural Solutions US LLC, 2 T.W. Alexander Drive, Research Triangle Park, North Carolina 27713 ("BASF") and made available via Web Browser Software Applications (“Browser”). These Terms of Use shall consequently form an integral part of all agreements on the use of the BASF App offered by BASF via Browser between BASF and the Authorized Encircle Installer (“Installer”) on whose behalf the BASF App will be used by a natural person on a suitable terminal device ("User"), unless and to the extent otherwise agreed.

(2) Exception: The BASF App contains third party components, including open-source software ("Third-Party Components"). Parts of these Third-Party Components are licensed under different license terms ("Third-Party License Terms"). A list of Third-Party Components and the corresponding Third-Party License Terms are available on the Internet at https://mydevices.com/terms-of-service/. Nothing in these Terms of Use is intended to impose any further restrictions on Licensee's use of the Third-Party Components that are licensed under Third-Party License Terms. The terms and conditions of use of the Third-Party Components shall be governed solely by the Third-Party License Terms and, to the extent they are non-commercial Third-Party Components, shall not form part of BASF's performance. BASF therefore also assumes no responsibility or liability for Third-Party 

Components.

 

(3) BASF reserves the right to introduce deviating or additional Third-Party License Terms within the scope of modifications to the product and in the event of updates to the product, insofar as this is necessary due to additional third-party components or changed Third-Party License Terms.

 

2. License for the Use of the BASF App

2.1 General Information and Functions of the BASF App

(1) This offer to use the BASF App is exclusively addressed to Authorized Encircle Installers and their actively enrolled Encircle RTDS customers.

(2) The BASF App is a website where Authorized Encircle Installers and their actively enrolled Encircle RTDS customers can login and view the status of their Encircle RTDS system(s).

(3) The use of the BASF App requires the prior consent of the User to these Terms of Use. The User is aware that, in addition to these Terms of Use of BASF, further terms of use of the Browser used to access the BASF App may have to be observed over which BASF has no influence and for which BASF therefore assumes no responsibility.

(4) The use of the BASF App requires suitable end devices as well as Internet access, which may incur costs for the connection to the Browser.

 

2.2 Conclusion of Contract

A contract for the use of the BASF App on the basis of these Terms of Use shall be concluded as 

follows:

 

(1) BASF and the Installer shall conclude a separate agreement prior to the initial use of the BASF App in the Browser by the User, the scope of services of which may include the free use of the BASF App as an ancillary service ("Installer Agreement").

 

2.3 Maintenance and Support of the BASF App

Unless otherwise agreed, BASF shall neither be obliged to update the BASF App nor to offer regular updates or upgrades. However, if BASF makes updates and/or upgrades available, the User shall install such updates and/or upgrades in order to obtain the most current information and to ensure the proper operation of the BASF App. Otherwise, BASF cannot guarantee that the BASF App will function properly or that the information provided is up to date. If the User does not install an update and/or upgrade provided and continues to use the old version of the BASF App, the User shall waive any claims for defects and damages to which it may be entitled to the extent they result therefrom.

 

2.4 Intellectual Property, Trademarks

(1) The BASF App may contain graphics, film clips, diagrams, photos and illustrations, user interfaces, audio clips as well as editorial content which may constitute protected content and materials of BASF or third parties. In such case, all rights thereto shall remain the property of BASF or third parties. The User shall not use such proprietary content or materials in any manner whatsoever except in the context of the intended use of the BASF App in accordance with these Terms of Use.

(2) The word mark "BASF", the BASF logo and other marks used in connection with the BASF App are used or registered trademarks of BASF. Other trademarks used in connection with the BASF App may be the trademarks of other rights owners. In this regard, BASF reserves all rights in and to the BASF App not expressly granted to User under these Terms of Use. Consequently, User is not granted any rights or licenses with respect to the aforementioned trademarks and their use in the context of the BASF App.

 

2.5 Third-Party Websites, Disclaimer

The BASF App may contain hyperlinks to websites of third parties. However, the linked contents are not checked in advance. BASF therefore does not adopt these third-party websites or their content as its own. The respective provider or operator of the sites is always responsible for the content of the linked sites. In this context, BASF shall not be liable for any damages that have been caused by or in connection with the use of third-party websites.

 

2.6 Rights of Use

a. Scope of the License

(1) Subject to User's acceptance of and compliance with these Terms of Use, BASF hereby grants to User a temporary, royalty-free, non-exclusive and (in case of a temporary right of use) non-transferable right of use, which, subject to the conditions set forth in Section 2.8, shall be revocable ("License") to use the BASF App for its intended purpose.

(2) The User shall not copy, decompile, reverse engineer, disassemble, attempt to obtain the source code of, edit or create derivative works from the BASF App, any updates and/or upgrades to the BASF App or any portion thereof, except to the extent that any of the foregoing restrictions are prohibited by applicable law or to the extent permitted by third-party license terms.

(3) The provisions of these Terms of Use shall also apply to any updates and/or upgrades provided by BASF which replace or supplement the original BASF App, unless such update and/or upgrade is subject to a separate term of use.

b. Export Control

The User may not use or otherwise export or re-export the BASF App except as permitted by applicable U.S. law and the laws of the country in which the BASF App was obtained. In particular, the BASF App may not be exported or re-exported (a) to embargoed countries of the U.S. or (b) to persons on the U.S. Treasury Department's Specially Designated Nationals list or the U.S. Department of Commerce's Denied Persons list or Denied Entity list. User warrants compliance with the foregoing requirements. User will not use the BASF App for any purpose prohibited by applicable U.S. law.

 

2.7 Data Privacy

The privacy policy that applies to the use of this BASF App is viewable in the BASF App under the menu item Profile Settings applies to this BASF App and available here https://www.basf.com/us/en/legal/data-protection

 

2.8 Termination and Revocation, Lapse of Rights of Use

(1) The license shall exist until the rights of use cease (e.g. by termination by one of the parties or revocation of the right of use by BASF in accordance with the following provisions).Both the User and BASF shall be entitled to terminate the license at any time.

(2) The User may terminate these Terms of Use with BASF at any time for any reason, e.g. by deactivating the BASF App or deleting it from its end device and thus ceasing to use the services.

(3) In the event of the following reasons in particular, BASF may at any time, after giving two (2) weeks' public notice, terminate these Terms of Use or revoke the right of use granted to the User:

• In the event of changes to the legal situation or case law that make it necessary to adapt these Terms of Use;

• In the event of discontinuation of the operation of the business purpose pursued with the BASF App or of the BASF App itself;

• In the event of a significant change in the infrastructure behind the BASF App (backend);

• In the event of a disruption of BASF's interest in equivalence or integrity (e.g. disproportionate costs for maintaining operation as well as maintenance, further development or due to other adaptation requirements of the BASF App);

• If User breaches these Terms of Use, in particular if User has breached a material obligation under these Terms of Use or if User continuously breaches obligations and this breach of obligation either cannot be remedied or User has not remedied the breach of obligation within the period set for remedial action after receipt of a written notice (including by e-mail).

(4) The right of both parties to extraordinary termination shall remain unaffected.

 

2.9 Third-Party Property Rights

(1) If the contractual use is impaired by third party property rights, BASF shall have the right either to modify the BASF App in such a way that the impairment ceases to exist or to obtain the authority that the BASF App may be used without restriction and at no additional cost to the User in accordance with these Terms of Use.

(2) A possible obligation of BASF to indemnify with regard to third party property rights shall not extend to third party components. For these, the license rights of third parties shall apply exclusively (cf. Section1(2)„Exception“).

(3) The User shall in any case be obliged to inform BASF in writing without undue delay if an infringement of third-party intellectual property rights is asserted against the User.

 

3. Warranty and Liability

3.1. Warranty

(1) It is the responsibility of the User to use the BASF App exclusively on the hardware and software environment approved for this purpose and to maintain it in an up-to-date and functional condition. Otherwise, BASF shall not be liable for defects unless User proves that the defect is not due to a breach of this obligation.

(2) BASF MAKES NO WARRANTY OR GUARANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY,   SATISFACTORY   QUALITY,   NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OR GUARANTEES ARISING FROM STATUTE, COURSE OF DEALING OR USAGE OF TRADE. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO A CONTRACT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH THEREIN.

3.2. Limitation of Liability

(1) BASF provides the BASF App "as is". BASF makes no representations or warranties with regard to the BASF App. Any liability of BASF is therefore generally excluded. BASF SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, TO THE EXTENT SUCH DAMAGES ARE INCIDENTAL, CONSEQUENTIAL, OR SPECIAL IN NATURE, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE.

(2) THE LIMITATIONS SET FORTH IN SECTION 3.2(1) ABOVE SHALL NOT APPLY TO ANY CLAIMS OR LIABILITIES ARISING OUT OF OR RELATING TO:

(a) personal injury or death,

(b) breach, loss, or unauthorized access of personal information or data, or

(c) BASF’s gross negligence or willful misconduct.

 

4. Changes to the Content of the BASF App BASF reserves the right to change or modify the services offered in the BASF App or to offer 

different services.

 

5. Changes to These Terms of Use / Transfer of Terms of Use

(1) BASF reserves the right to amend these Terms of Use at any time with regard to equivalent disruptions or regulatory gaps and to subject the use of the BASF App by the User to new or further terms of use, whereby the aforementioned amendments will expressly not relate to the content of the services provided by BASF through the BASF App. Also excluded are changes affecting the main contractual obligations of the parties; these cannot be unilaterally changed as described in the context of this clause.

(2) By continuing use of the BASF App after any amendment to these Terms of Use, the User hereby agrees to those amended terms.

(3) BASF reserves the right to assign the BASF App and these Terms of Use concluded with the User to another company.

 

6. Miscellaneous

(1) If individual provisions of these Terms of Use are or become void or ineffective in whole or in part, this shall not affect the validity of the remaining provisions. In place of the void or  invalid provision, BASF and the User shall agree on a valid provision which comes as close as possible to the economic purpose of the void or invalid provision, unless a supplementary interpretation of the contract takes precedence or is possible.

(2) BASF's failure to enforce any rights or provisions in these Terms of Use shall not constitute a waiver of such right or provision. BASF shall not be responsible for any failure to perform any obligation for reasons not attributable to BASF.

(3) These Terms of Use and the use of the BASF App shall be governed by and construed in accordance with the laws of the State of North Carolina, USA, excluding its conflict of laws principles. The parties agree, consent and waive contest to the exclusive jurisdiction and venue of the federal or state courts of North Carolina for all disputes arising out of or relating to this Contract. The United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended, shall not apply to the Contract