AGN RESOURCES LLC
Effective Date: July 1, 2020
IF YOU DO NOT AGREE THESE TERMS, IMMEDIATELY STOP ACCESSING THE SITE AND DO NOT ACCESS, USE OR PURCHASE ANY PRODUCTS, APPLICATIONS OR SERVICES.
- PRODUCTSWe may deliver our Products through our website www.agnresources.com (“Site”), web applications, and mobile applications (each, an “Application,” and collectively, “Applications”). The Product features and services available to you will be based on the content, subscription plan or services you purchase from AGN (“Plan”), as detailed in the service order and/or services agreement (collectively referred to as “Services Agreement”) or the “Registration” page within the Application. The Products specifically exclude any third-party database or Third-Party Services (as defined in Section 5).We reserve the right to modify content, features and functionality of our Products from time to time in our sole discretion. We will determine in our sole discretion whether any new content or features require additional fees. We may decide to add new content or features to the Products and make them generally available at no cost to Customers. We may or may not provide notice to you of changes to the Products. We will not be liable to you or to any third party for any modifications, price increases, or discontinuations of our Products.Any additional product add-ons, including but not limited to additional content, features or services you later add to an existing Plan (the “Add-Ons”) during your subscription term shall be subject to these Terms. Any time-and-materials services provided to you, such as consulting services (“Professional Services”) shall also be subject to these Terms.
- REGISTRATIONYou agree that you will only access our Applications for your internal business purposes and subject to these Terms. You will be required to register for our Application and may pay a subscription fee for the use of certain Products. You must pay such subscription fees on the first day of your subscription term unless otherwise specified on your Service Agreement.If you, as a Customer, add Users to your account, you must bind each of the Users to these Terms. You are responsible for all information, data, content, messages or other materials that you or your Users post or otherwise transmit via the Applications (collectively, “Content”). You are responsible for maintaining the confidentiality of your login and account, and are fully responsible for any and all activities that occur under or in connection with your login or account. You agree that you will not trade, transfer, or sell access to your login or account to another party unless otherwise agreed to in writing by AGN.As a User, you represent and warrant that you are: (i) 18 years or older, (ii) not prohibited or restricted from having a AGN account, and (iii) not a competitor of or using the Products for purposes that are competitive with AGN.You agree to use reasonable efforts to prevent unauthorized use of the Products and notify us immediately if you discover any unauthorized use through your account. You will take all necessary steps to terminate the unauthorized use and agree to cooperate with us in preventing or terminating such unauthorized use of the Products.
- AVAILABILITY OF SERVICEWhile we will use commercially reasonable efforts to keep our Applications available and accessible, the Applications may be unavailable from time to time for repairs, upgrades, routine and emergency maintenance, or other interruptions that may be out of our reasonable control, including any outages of Third-Party Services (as defined in Section 5) or any related application programming interface and integrations. Interruptions of our Applications shall not serve as a basis to terminate your subscription or demand any full or partial refunds or credits of prepaid and unused subscription fees.
- PAYMENT TERMSWe will charge you pursuant to the terms as provided at the time of plan purchase or subscription. We will continue to charge you for your Plan, including any Add-Ons as applicable. AGN reserves the right to increase fees at the time of any subscription term renewal.If you elect to make full payment and you cancel during the subscription term, you will not be issued any refunds or credits of any prepaid and unused fees for the remainder of the subscription term and you will continue to have access to the Products until the end of the current term of plan.If you elect to make monthly payments and you cancel during the subscription term, you will be charged an early termination fee equal to 50% of payments remaining under the then current subscription term and you cease to have access to the Products at the time of termination.
Payment By Invoice. If we invoice you for your Plan, your subscription term will be detailed on the Service Agreement and your payment will be due upon receipt of the applicable invoice. Unless otherwise specified on your Service Agreement, if we do not receive payment within thirty (30) days of us issuing you the invoice, your account may be suspended and you will lose access to the Products. Unless otherwise specified on your Service Agreement, your Plan will automatically renew at the end of the subscription term. If you would like to cancel your Plan, you can provide such notice via email to [email protected] AGN reserves the right to increase subscription fees upon renewal.
Changes To Your Plan. If you choose to upgrade your Plan or add any Add-Ons to your Plan during your subscription term, you will be charged for the then-current price for the upgrade or Add-Ons prorated based on the number of days remaining in your subscription term. Unless otherwise specified on your Service Agreement, any upgrade or Add-Ons that you add will be coterminous with the existing Plan and automatically renew at the end of the subscription term along with your Plan. If you choose to downgrade your Plan or remove any Add-Ons from your Plan, you will not be issued any refunds or credits for the unused and prepaid fees in connection with the downgrade or removal. Downgrading your Plan may cause the loss of content, features, or capacity of your account and we do not accept any liability for any such loss.
Credit Card Authorization. By submitting your credit card information to AGN, you authorize AGN to store this information with its third party service providers and to charge the credit card account you have provided to us until your account is terminated. In addition, you authorize us to use a third-party payment processor in processing payments. If your credit card expires, or is declined, we will provide you notice via email. If, for any reason, your payment cannot be completed through credit card, we may suspend your account until we receive payment.
Disputes and Late Payments. You must notify us in writing of any amounts you wish to dispute prior to the date such amounts would otherwise be due. Any undisputed amount not paid when due shall be subject to a finance charge of 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. You will also be required to reimburse us for any costs or expenses (including any reasonable attorneys’ fees) we incur to collect past due amounts. Any amounts due under these Terms shall not be withheld or offset by you against amounts due to you for any reason.
Taxes. All payments you make are exclusive of federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including, without limitation, sales taxes, use taxes, and value-added taxes). You agree to be responsible for the payment of all such charges, excluding taxes based upon our net income.
- CANCELLATION AND TERMINATION
Termination by You. You may terminate your account at any time without cause, but you will not be entitled to any refunds of any prepaid and unused fees, and any unpaid fees under your Plan for the applicable subscription term will become immediately due and payable. You may terminate your account and receive a prorated refund of any prepaid and unused fees, if we fail to cure a material breach of these Terms within thirty (30) days of our receipt of written notice from you describing the breach. You may also cancel your account as provided in Section 6 (Payment).
Termination by Us. We may restrict functionality of the Products or temporarily suspend your account if we reasonably believe that you have violated these Terms. Unless we believe the need to restrict or suspend access is time-sensitive and requires immediate action without notice, or we are prohibited from providing notice under law or legal order, we will use commercially reasonable efforts to notify you by email prior to such suspension. We will not be liable to you or any third parties for any of the foregoing actions. We may terminate your account and use of the Products for any of the following reasons: (i) you fail to comply with these Terms, (ii) you do not pay your fees in accordance with the payment terms under your Plan, (iii) at the expiration of the subscription period of your Plan if we provide prior written notice to you, (iv) you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (v) if we reasonably determine you are acting or have acted in a way that could present substantial reputational harm to AGN or our current or prospective partners or customers. In no event will any termination by us for the foregoing reasons entitle you to any refunds of any prepaid and unused fees or relieve you of your obligation to pay any fees payable to us prior to the date of termination, and any unpaid fees under your Plan will become immediately due and payable. Any suspected fraudulent, abusive, hateful, discriminatory or illegal activity may be grounds for immediate termination of your use of the Product and may be referred to law enforcement authorities.
Post Termination. If your account is terminated, you must cease using the Products and AGN reserves the right to delete your account settings and Content within thirty (30) days of such cancellation or termination with no liability or notice to you. Once your account settings and Content are deleted, you will not be able to recover such account settings and Content, except any Content that remains on Third Party Services pursuant to the terms and conditions of such Third-Party Services.
- CONFIDENTIAL INFORMATIONFor the purpose of these Terms, “Confidential Information” means non-public information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or to which the other party may have access, which (i) a reasonable person would consider confidential, or (ii) is marked “confidential” or “proprietary” or some similar designation by the disclosing party. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a violation of these Terms by the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations under these Terms, and shall take actions reasonably necessary and appropriate to prevent the unauthorized disclosure of the Confidential Information, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents and other representatives who require access in order to perform its obligations under these Terms.
DMCA. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that content or material on the Products, the Applications or Site or any of its web properties hosted on the Site infringes a copyright owned by you, you (or your agent) may send AGN DMCA agent a notice requesting that the material be removed, or access to it blocked. This request should be sent to: [email protected]; or, alternatively to: AGN Resources LLC, Attn: DMCA Registered Agent, P.O. Box 201, Medfield, MA USA. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or the subject of infringing activity; (d) the name, address, telephone number, and email address of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices with respect to the website should be sent to the address above.
- WARRANTYTHE APPLICATIONS AND PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, GUARANTEES, CONDITIONS, OR REPRESENTATIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, DESIGN, TITLE, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE CANNOT AND DO NOT WARRANT THAT THE APPLICATIONS AND PRODUCTS WILL BE UNINTERRUPTED, AVAILABLE, ACCESSIBLE, SECURE, TIMELY, ACCURATE, COMPLETE, FREE FROM VIRUSES, OR ERROR-FREE. AGN DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK OR ANY OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, DATA NOT WITHIN AGN’S REASONABLE CONTROL.
- INDEMNIFICATIONYour failure to comply with any of your obligations set forth in these Terms shall be considered a breach of these Terms. You agree to defend, indemnify, and hold harmless AGN and its officers, directors, employees, agents, successors, and assigns from any and all third party claims, losses, demands, liabilities, damages, settlements, expenses, and costs (including attorney’s fees and costs), arising from, in connection with, or based on allegations of, your or your Users’ breach of these Terms, use of Third-Party Services, or for any action arising from the Excluded Claims.
- LIMITATION OF LIABILITYNEITHER PARTY NOR ITS AFFILIATES WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, BUSINESS, OR DATA; BUSINESS INTERRUPTION; OR LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF WHETHER THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR ANY LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF AGN AND OUR RESPECTIVE AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO AGN UNDER THE APPLICABLE PLAN DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL NOT IN ANY WAY LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 ABOVE. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO YOU AND YOUR AFFILIATES.EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY AGN TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.State Prohibition of Limitation of Liability and Disclaimer of Implied Warranties. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE STATES, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Use of Logo. As a Customer, you grant us the right to use your company name and logo on our website and in any promotional materials. Please notify AGN if you do not wish to have your name or logo be used in this way, or wish to remove your name or logo from such list.
Updates To Terms. We may revise and update these Terms from time to time, in our sole discretion. Any changes we make to these Terms are effective immediately when we post them. We will provide notice to the account owner designated on the account of any material changes. Continued use of our Products after we provide you notice of the updated Terms shall constitute acceptance of the updated Terms.
Export Compliance and Anti-Corruption. The Products may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you are not named on any U.S. government denied-party list. You will not permit Users or any other third party to access or use the Products subject to a U.S. government embargo or in violation of any U.S. export law or regulation. You further represent that you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with your purchase or use of our Products (excluding any reasonable gifts and entertainment provided in the ordinary course of business).
Assignability. Neither party may assign its right, duties, and obligations under these Terms without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that AGN may assign these Terms, and the licenses granted to AGN under these Terms, without your consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of AGN’s obligations under these Terms.
Notices. Except as otherwise specified in these terms, any notices under these Terms must be sent to AGN by email to [email protected], with a duplicate copy sent via registered mail (return receipt requested) to: AGN Resources LLC, P.O. Box 201, Medfield, MA USA. Any notices under these Terms that are sent to you shall be sent via email to the named account owner of your AGN account. You are responsible for maintaining the accuracy of the email address and other contact information of your named account owner on the “Personal Settings” page within the Application.
Force Majeure. AGN will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as it uses commercially reasonable efforts to avoid or remove the causes of non-performance.
Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the Commonwealth of Massachusetts, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
Venue. In circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of law rules. Under such limited circumstances, each party hereby expressly and irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts located in the Commonwealth of Massachusetts in connection with such an action.
Agreement to Arbitrate Disputes. You and AGN agree to resolve any claims relating to these Terms through final and binding arbitration, except to the extent you have in any manner violated or threatened to violate AGN’s Intellectual Property Rights or Payment Terms. In all other cases, both parties hereby agree to submit to arbitration administered by JAMS under its Commercial Arbitration Rule with one (1) arbitrator. You agree that an arbitrator cannot award punitive damages to either party and to abide by and perform any award rendered by the arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
Waiver and Severability. The waiver by AGN of any term or condition set out in these Terms shall not be deemed a further or continuing waiver of any other provision of these Terms, and any failure of AGN to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, unenforceable, or illegal for any reason, such provision shall be limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
Entire Agreement. Except for any separate Service Agreement, these Terms are the final and complete expression of the agreement between these parties regarding your use of the Products, Site and Application. These Terms supersede, and the terms of these Terms govern, all previous oral and written communications regarding these matters, all of which are merged into these Terms.
Independent Contractor. Nothing herein contained shall be so construed as to constitute the parties as principal and agent, employer and employee, partners or joint venturers, nor shall any similar relationship be deemed to exist between the parties. Neither party shall have any power to obligate or bind the other party, except as specifically provided herein.
Survival. Section 5, 6, 7, 8, 9, 11, 12, 13, 14, 15 will survive any termination of these Terms.