TERMS OF USE

1. Acceptance

1.1 These Terms of Use (TOU) set out the terms on which Bayer CropScience Pty Ltd (“we”, “us” or “Bayer”) permits you (referred to as user, you or your) to access and use the Grain Gauge web Application (App).

1.2 By using the App you agree to be bound by these TOU. If you do not agree with the terms of these TOU, you are not entitled to use the App and you must cease using the App.

1.3 By accepting these TOU you are representing that you are at least 18 years old and able to enter a valid contract, or that your legal guardian has reviewed these TOU and agreed to these TOU on your behalf.

1.4 You warrant that you are:

(a) not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country; and 

(b) that you are not listed on any US Government list of prohibited or restricted parties.

1.5 Bayer reserves the right to vary these TOU from time to time. By continuing to use the App, you agree to be bound by the most recent TOU. 

2. Licence

2.1 Bayer grants you a personal, non-exclusive, non-transferrable, revocable licence (Licence) to use the App.

2.2 Bayer reserves the right to suspend, terminate or otherwise deal with your Licence in relation to the App and its content at any time without notice.

3. Acknowledgments

3.1 By using the App, you acknowledge that you are aware:

(a) your use of and reliance on the App is at your sole risk;

(b) Bayer sources data and content displayed in the App, including commodity pricing data, from unaffiliated third parties. Bayer does not endorse or vouch for the accuracy, completeness or authenticity of this content or data; 

(c) that Bayer is not endorsing, vouching for or recommending any individual commodity traders. You remain fully responsible for identifying commodity traders you may wish to do business with and, if you engage in trading with any third party, you do so at your own discretion and risk;

(d) that these TOU are concluded between you and Bayer only; and

(e) that Bayer reserves its right to modify, suspend or discontinue all or any part of the App or content posted on it without notice.

4. Intellectual Property Rights

4.1 For the purposes of these TOU, the term "Intellectual Property Rights" means all rights in respect of registered and unregistered copyright, patents, designs, trade marks, confidential information and circuit layout rights.

4.2 All Intellectual Property Rights in the App and all components of it (including, but not limited to, any information, photos, text, or other material transmitted, communicated or otherwise provided by Bayer (Bayer Content)) are owned or licensed by Bayer. Any adaptations, translations or derivative works of the App or components of it, are the exclusive property of Bayer (or its licensors, if applicable), and Intellectual Property Rights vest in or are transferred to Bayer immediately upon creation, as the case may be. No ownership rights in the App, components of it, adaptations, translations or derivative works pass to you. 

4.3 You are not permitted to use any trade marks, logos, livery, service names and trade names belonging to Bayer or third parties that appear in the App.

4.4 Bayer gives no warranty that the App does not infringe the Intellectual Property Rights of any person.

4.5 If there are any third party claims relating to Intellectual Property Rights regarding the App, Bayer will be responsible, for any investigation, defence, settlement and discharge of any such claim.

5. Prohibited uses

5.1 You agree that in accessing and using the App, you will not engage or attempt to engage in any activities that:

(a) violate any applicable local, state, federal or international law including, without limitation the Spam Act 2003 (Cth), Copyright Act 1968 (Cth), principles of law or equity established by decisions of courts and statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a government agency;

(b) violate the rights of any third party including, without limitation abusing, stalking, threatening or otherwise, infringement of copyright, trademark, or other intellectual property right, misappropriation of trade secrets, confidential information, electronic fraud, invasion of privacy, pornography, obscenity or libel;

(c) interfere with or disrupt any other third parties (including other users of the App), equipment, functions, features, the App or Bayer Content;

(d) provide a financial service or financial advice, including providing advice about securities or other markets;

(e) introduce or allow the introduction, transmission, distribution or uploading of any, virus, worm, trojan horse, zombie, keylogger, time bomb, cancelbots, Easter eggs, spyware, mail bombing, flashing, spamming, flooding, or other potentially harmful programs, materials, information or malicious code into the App or any related network; 

(f) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, "data mine" or in any way reproduce or circumvent the navigational structure or presentation of the App; 

(g) involve distribution of unsolicited advertising or chain letters, repeated harassment of other users or third parties, impersonating another user, falsifying a users network identity for improper or illegal purposes, gaining unauthorised access any parts of the App, sending unsolicited bulk emails or calls, continuing to send someone email after being asked to stop and using a network to gain unauthorised entry to any other machine accessible via a network;

(h) involve the unauthorised use of any machine or network, denial of service attacks, falsification of header information or user identification information, monitoring or scanning the networks of others; 

(i) disrupt, impair, alter or otherwise interfere with the functions, features, Bayer Content or the App;

(j) express or imply that statements you make are endorsed by Bayer, without Bayer's prior written consent;

(k) modify, adapt, decompile, reverse engineer, disassemble or otherwise reduce the App to a human-perceivable form;

(l) remove, alter, obscure or deface any copyright, trademark, livery, or other proprietary rights notices, disclaimers or warnings contained in the App;

(m) harvest or collect information about the App's users without their express consent;

(n) are commercial, including selling, reselling, modifying, displaying, duplicating, reproducing, distributing or otherwise using any information obtained from the App, in whole or in part, for any public or commercial purpose without Bayer's prior written consent, marketing, advertising or promoting goods or services, collecting and using any product lists or pricing for the benefit of other merchants, or re-selling, sublicensing or translating the App;

(o) use any meta-tags or any other "hidden text" utilising Bayer's name or Bayer Content without Bayer's express written permission;

(p) impersonate or falsely claim to represent a person or organisation;

(q) sell, rent, lease, sub-license, lend, assign, time-share, distribute or otherwise make the App available to any third party; or

(r) reproduce, modify, enhance, translate, alter, tamper with, upgrade or create derivative works of the whole or any part of the App or combine, integrate or incorporate the whole or any part of the App in any other software or system.

5.2 Bayer has the right to withdraw your Licence to use the App if it reasonably appears to Bayer that you have been using the App to engage in any illegal, unauthorised or unconscionable conduct or any conduct stated in clause 5.1. 

6. Using the App

6.1 To the extent permitted by law, Bayer does not promise you any of the following with respect to your use of the App:

(a) that you will have uninterrupted or error-free access to and use of the App;

(b) that the content of the App is accurate, complete, or suitable for a particular purpose. You must rely on your own judgment in relation to any matter of that type;

(c) that your internet or mobile service provider will allow you access to the App. You are responsible for ensuring your service provider will allow you access to the App; or

(d) that your computer, mobile or other hardware devices will allow you access to the App. You are responsible for ensuring your devices will allow you access to the App and its content and for any costs and service fees associated with the access.

7. Privacy 

Any personal information submitted by you (whether personal information of you or another individual which you have the necessary consents to provide) to Bayer is subject to and will be collected, used and handled in accordance with Bayer's Privacy Policy. The Privacy Policy forms part of these TOU. You agree that, by using the App or communicating with Bayer, you have read the Privacy Policy, understood its contents and consented to its requirements.

8. Product claims

8.1 Bayer, is responsible for addressing any of your claims or any third party relating to 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 the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) or similar legislation. 

8.2 All complaints and claims should be directed to Bayer.

9. Limitation of liability

9.1 Subject to clause 11.2, any representation, warranty, condition, guarantee or undertaking that would be implied in these TOU by legislation, common law, equity, trade, customer or usage are excluded to the maximum extent permitted by law.

9.2 Nothing in these TOU excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the ACL or any other applicable law that cannot be excluded, restricted or modified by agreement.

9.3 Where Bayer's liability cannot be lawfully excluded, it is limited at the option of Bayer, to:

(a) the resupplying of access to and use of the App; or

(b) the payment of the cost of having access to and use of the App supplied again.

10. Indemnity

10.1 You will at all times indemnify Bayer and will continue to indemnify, hold harmless and defend Bayer and its principals, agents, servants and employees (in this clause referred to as 'those indemnified') from and against all liabilities, costs and expenses suffered or incurred by any of those indemnified including, without limitation, all reasonable legal fees incurred by those indemnified, arising out of or in connection with any of the following:

(a) any loss or damage arising out of, or in connection with, any personal injury, death or damage to tangible property arising out of the performance of these TOU by you;

(b) any breach of these TOU by you;

(c) any negligence, illegal or unlawful or wilful act or omission by you in connection with these TOU;

(d) any claim by a third party as a result or arising out of:

(i) the use of the App by any means and in any form that was not specifically approved by Bayer;

(ii) the use of the App in a manner or for a purpose not reasonably contemplated or not authorised by Bayer; 

(iii) the modification, adaptation, merger or alteration of the App without Bayer 's prior written consent; or

(e) without limiting the foregoing, any claim that your use of the App or Bayer Content infringes the rights of any person (including without limitation, Intellectual Property Rights, rights in respect of privacy, defamation, confidentiality, breach of contract and other personal and proprietary rights),

except to the extent that any liability, loss or damage is solely and directly caused by the wilful misconduct or negligence of those indemnified.

10.2 Nothing in this agreement authorises you to defend, compromise or settle any claim or proceedings on Bayer’s behalf.

11. Disclaimer

Bayer is not liable for any breach of these TOU (including any warranty contained in them) which arises as the result of:

(a) modifications to the App that were effected or attempted by a person other than Bayer or its authorised representatives;

(b) access and use of the App;

(c) any act, error, fault, neglect, misuse or omission of you; or

(d) the operation of the App other than in accordance with these TOU, or otherwise than in accordance with the directions or recommendations of Bayer.

12. Termination

This Licence is effective until terminated by you or Bayer. Your rights under this Licence will terminate automatically without notice from Bayer if you fail to comply with these TOU. Upon termination you will cease all use of the App and destroy all copies (full or partial) of the App.

13. International usage

This App is intended for use solely within Australia. If you access this App outside of Australia, Bayer makes no guarantee that the App complies with the local law of that country. The onus is on the user outside of Australia to determine whether access to the App is suitable in that country.

14. General

14.1 These TOU will be governed by and construed in accordance with the laws of Victoria, Australia which will have exclusive jurisdiction over any disputes.

14.2 If for any reason a court of competent jurisdiction finds any provision or portion of these TOU be unenforceable, the remainder of these TOU will continue in full force and effect.

14.3 If Bayer elects not to exercise or enforce any right that it has against you at a particular time, this does not prevent Bayer from later seeking to exercise or enforce that right.

14.4 You must not assign, sub-license or otherwise transfer any of your rights and obligations in these TOU to any other person.

14.5 These TOU and any documents incorporated by reference, constitute the entire agreement between the parties regarding the matters set out above and supersede any prior representations, understandings or arrangements made between the parties, whether orally or in writing.