This Agreement (“Agreement”) binds you (“End User” or “you”) and SPECIALTY CROPS EXCHANGE, LLC (“SPECCX”, "we" or "us") in the governance and regulation of your use of the SPECCX Exchange, (including all related documentation, the “Exchange”).
SPECCX hereby grants you a limited, non-exclusive and nontransferable license to use the Exchange in accordance with the terms within this Agreement, hereafter referred to as "Terms of Use" or "terms of this Agreement".
BY USING THE EXCHANGE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE EXCHANGE.
The following are the terms and conditions that govern your access to and use of www.SPECCX.net (the "Website") , including any content, functionality and services offered on or through the Website.
- Definitions
Access Credentials means any user name, password, or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Exchange.
Authorized User means individuals authorized to use the Exchange pursuant to Section 3.1 and the other terms and conditions of this Agreement.
Documentation means any manuals, instructions or other documents or materials that SPECCX provides or makes available to Participant in any form or medium and which describe the functionality, components, features or requirements of the Exchange or SPECCX Materials.
Exchange Software means the SPECCX software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that SPECCX provides remote access to and use of as part of the Exchange.
Harmful Code means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Participant or any Authorized User from accessing or using the Exchange or SPECCX Systems as intended by this Agreement. Harmful Code does not include any SPECCX Disabling Device.
Intellectual Property Rights means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
SPECCX Disabling Device means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by SPECCX or its designee to disable Participant’s or any Authorized User’s access to or use of the Exchange automatically with the passage of time or under the positive control of SPECCX or its designee.
SPECCX Materials means the Exchange software, documentation and SPECCX Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by SPECCX in connection with the Exchange or otherwise comprise or relate to the Exchange or SPECCX Systems. For the avoidance of doubt, SPECCX Materials include Resultant Data and any information, data or other content derived from SPECCX’s monitoring of Participant’s access to or use of the Exchange, but do not include Participant Data.
SPECCX Personnel means all individuals involved in the performance of Services as employees, agents or independent contractors of SPECCX.
SPECCX Systems means the information technology infrastructure used by or on behalf of SPECCX in providing the Exchange, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by SPECCX or through the use of third-party services.
Participant Data means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Participant or an Authorized User, by or through the Exchange.
Participant Systems means Participant’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Participant or through the use of third-party services.
Personal Information means any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.
Process means to take any action or perform any operation or set of operations that the Exchange are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
Representatives means, with respect to a party, that party and its employees, officers, directors, consultants, agents, independent contractors, service providers, sub-participants, subcontractors and legal advisors.
Resultant Data means information, data and other content that is derived by or through the Exchange from Processing Participant Data.
Third-Party Materials means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Exchange that are not proprietary to SPECCX.
1. Changes to the Terms of Use
- We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Website thereafter. Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page so you are aware of any changes, as they are binding on you.
2. Services
- Subject to and conditioned on Participant’s and its Authorized Users’ compliance with these Terms of Use, SPECCX shall use commercially reasonable efforts to provide to Participant and its Authorized Users access to the Exchange in accordance with the terms and conditions hereof, including to host, manage, operate and maintain the Exchange for remote electronic access and use by Participant and its Authorized Users.
- Except as otherwise expressly provided in these Terms of Use, as between the parties, SPECCX has and will retain sole control over the operation, provision, maintenance and management of the Exchange and Materials related to the Exchange, including the SPECCX Systems.
- Participant has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Participant Systems, and sole responsibility for all access to and use of the Exchange and Materials related to the Exchange by any Person by or through the Participant Systems or any other means controlled by Participant or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Exchange or SPECCX; (ii) results obtained from any use of the Exchange or Materials related to the Exchange; and (iii) conclusions, decisions or actions based on such use.
- SPECCX reserves the right, in its sole discretion, to make any changes to the Exchange and Materials related to the Exchange that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of SPECCX’s services to its Buyers or Sellers, (ii) the competitive strength of or market for SPECCX’s services or (iii) the Exchange’s cost efficiency or performance; or (b) to comply with applicable Law.
- Upon written notice, SPECCX may, directly or indirectly, and by use of a SPECCX Disabling Device or any other lawful means, suspend, terminate or otherwise deny Participant’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Exchange or Materials related to the Exchange, without incurring any resulting obligation or liability, if: (a) SPECCX receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires SPECCX to do so; or (b) SPECCX reasonably believes that: (i) Participant or any Authorized User has failed to comply with, any term of these Terms of Use, or accessed or used the Exchange beyond the scope of the rights granted or for a purpose not authorized under these Terms of Use or in any manner that does not comply with any instruction or requirement of the Rules of the Exchange; (ii) Participant or any Authorized User is or has been involved in any fraudulent, misleading or unlawful activities relating to its use of the SPECCX Systems; or (iii) the Participant’s Platform Agreement expires or is terminated. If, within 30 days of a suspension or termination of access pursuant to section 6 of the Platform Agreement, Participant satisfactorily cures the conditions that are the basis of the suspension or termination of access, SPECCX will restore access to Participant. Section 6 of the Platform Agreement does not limit any of SPECCX’s other rights or remedies, whether at law, in equity or under these Terms of Use.
3. Authorization and Participant Restrictions
- 3.1 Subject to and conditioned on Participant’s compliance and performance in accordance with these Terms of Use, SPECCX hereby authorizes Participant to access and use the Exchange and materials related to the Exchange as SPECCX may supply or make available to Participant in accordance with the conditions and limitations set forth herein and the Rules of the Exchange (available at www.SPECCX.com/rules.aspx ). Participant may designate Representatives as Authorized Users and provide Access Credentials to access and use the Exchange, subject to the terms and conditions herein and conditioned upon each Authorized User’s assent to and compliance with these terms and the Rules of the Exchange. The authorization set forth in this Section 3.1 is non-exclusive and non-transferable.
- 3.2 Nothing in these Terms of Use or the terms of any other Agreement in connection with this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Exchange, Materials related to the Exchange or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Exchange, the Materials related to the Exchange and the Third-Party Materials are and will remain with SPECCX and the respective rights holders in the Third-Party Materials.
- 3.3 Participant shall not, and shall not permit any other Person to, access or use the Exchange or Materials related to the Exchange except as expressly permitted by the terms of this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Participant shall not, except as these Terms of Use expressly permit:
- (a) copy, modify or create derivative works or improvements of the Exchange or Materials related to the Exchange;
- (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any aspect of the Exchange or Materials related to the Exchange to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Exchange or Materials related to the Exchange, in whole or in part;
- (d) bypass or breach any security device or protection used by the Exchange or Materials related to the Exchange or access or use the Exchange or Materials related to the Exchange other than by an Authorized User through the use of his or her own then valid Access Credentials;
- (e) input, upload, transmit or otherwise provide to or through the Exchange or SPECCX Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- (f) flood, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Exchange, SPECCX Systems or SPECCX’s provision of services to any Third-Party, in whole or in part;
- (g) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any aspect of the Exchange or Materials related to the Exchange, including any copy thereof;
- (h) access or use the Exchange or Materials related to the Exchange in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Third-Party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other SPECCX Participant), or that violates any applicable Law;
- (i) access or use the Exchange or Materials related to the Exchange for purposes of competitive analysis of the Exchange or Materials related to the Exchange, the development, provision or use of a competing software service or product or any other purpose that is to the SPECCX’s detriment or commercial disadvantage;
- (j) use the Exchange in any manner that violates these Terms of Use or the Rules of the Exchange; or
- (k) otherwise access or use the Exchange or Materials related to the Exchange beyond the scope of the authorization granted by the terms of this Agreement.
4. Data Backup
- The Services do not replace the need for Participant to maintain regular data backups or redundant data archives. SPECCX HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF PARTICIPANT DATA. “Participant Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Participant or an Authorized User by or through the Exchange. Participant Data is not “Resultant Data”, which means information, data and other content that is derived by or through the Exchange from Processing Participant Data.
5. Privacy and Security
- 5.1 SPECCX will employ security measures in accordance with SPECCX’s data privacy policy as amended from time to time, as available on SPECCX’s website at https://www.speccx.com/privacy-policy(“Privacy Policy”).
- 5.2 Participant acknowledges that the Exchange is not designed with security and access management for Processing Personal Information. Participant shall not, and shall not permit any Authorized User or other Person to, provide any Personal Information to, or Process any Personal Information through, the Exchange, the SPECCX Systems or any SPECCX Personnel. Participant is solely responsible for reviewing all Participant Data and shall ensure that no Participant Data constitutes or contains any Personal Information.
- 5.3 Participant has and will retain sole responsibility for: (a) all Participant Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Participant or any Authorized User in connection with the Exchange; (c) Participant’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Participant or through the use of third-party services (“Participant Systems”); (d) the security and use of Participant’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Exchange and Materials related to the Exchange directly or indirectly by or through the Participant Systems or its or its Authorized Users’ Access Credentials, with or without Participant’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
- 5.4 Participant shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Exchange; and (b) control the content and use of Participant Data, including the uploading or other provision of Participant Data for Processing by the Exchange.
6. Intellectual Property Rights
- The Website and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by SPECCX, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
- These Terms of Use permit you to use the Website for your commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as follows:
- (1) Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
- (2) You may store files that are automatically cached by your Web browser for display enhancement purposes.
- (3) You may print or download one copy of a reasonable number of pages of the Website for your commercial use and not for further reproduction, publication or distribution.
- You must not:
- (1) Modify copies of any materials from this site.
- (2) Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
- (3) Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.
- You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.
- 6.1. All right, title and interest in and to the Exchange and Materials related to the Exchange, including all Intellectual Property Rights therein, are and will remain with SPECCX and the respective rights holders in the Third-Party Materials. Participant has no right, license or authorization with respect to any aspect of the Exchange or Materials related to the Exchange (including Third-Party Materials) except as expressly set forth herein or the applicable third-party license, in each case subject to the limitations and restrictions addressed herein. All other rights in and to the Exchange and Materials related to the Exchange (including Third-Party Materials) are expressly reserved by SPECCX and the respective third-parties. In furtherance of the foregoing, Participant hereby unconditionally and irrevocably grants to SPECCX an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
- 6.2 Participant Data. As between Participant and SPECCX, Participant is and will remain the sole and exclusive owner of all right, title and interest in and to all Participant Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 6.3.
- 6.3 Consent to Use Participant Data. Participant hereby irrevocably grants all such rights and permissions in or relating to Participant Data: (a) to SPECCX and the SPECCX Personnel as are necessary or useful to perform the Exchange; and (b) to SPECCX as are necessary or useful to enforce these Terms of use and the terms of the Platform Agreement and exercise its rights and perform its obligations hereunder.
- If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Website in breach of these Terms of Use, your right to use the Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by SPECCX. Any use of the Website not expressly permitted by these Terms of Use is a breach of this Agreement and may violate copyright, trademark and other laws.
7. Confidentiality
- 7.1 In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing: all Materials related to the Exchange are the Confidential Information of SPECCX.
- 7.2 Confidential Information does not include information that : (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with these Terms of Use; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with these Terms of Use; (c) was or is received by the Receiving Party on a non-confidential basis from a Third-Party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
- 7.3 As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
- (a) not access or use Confidential Information other than as necessary to exercise its rights or to perform its obligations under and in accordance with the terms of this Agreement, except that SPECCX shall not under any circumstance disclose financial information of Participant, whether conveyed to SPECCX from the Participant or from a third-party data provider;
- (i) Notwithstanding 7.3(a), SPECCX retains the right to use data generated by SPECCX in the ordinary course of operating the exchange and cleansed of names or other means of identifying specific Participants of the Exchange in discussions with potential participants of SPECCX to secure their participation on SPECCX.
- (b) except as may be permitted by and subject to its compliance with Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms of Use; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.3;
- (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and
- (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 7.
- (a) not access or use Confidential Information other than as necessary to exercise its rights or to perform its obligations under and in accordance with the terms of this Agreement, except that SPECCX shall not under any circumstance disclose financial information of Participant, whether conveyed to SPECCX from the Participant or from a third-party data provider;
- 7.4 If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
8. Trademarks
- The SPECCX name and the SPECCX logo and all related names, logos, product and service names, designs and slogans are trademarks of SPECCX or its affiliates or licensors. You must not use such marks without the prior written permission of SPECCX. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.
9. Monitoring and Enforcement; Termination; Mutual Termination Rights
- We have the right (1) to take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website and (2) to terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of the terms of this Agreement.
- Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS SPECCX AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
- Without limiting the foregoing, this Agreement and any other agreement between you and us will renew on January 1 unless terminated by you or us prior to the end of the calendar year. Either Party may terminate this Agreement at any time by giving written notice to the other party at its address set forth herein and with no further obligation, provided that termination of this Agreement or any other agreement between you and us shall not affect the rights or duties of either party accrued prior to and including the date of termination or expiration and/or any terms intended expressly or by implication to survive termination or expiration, including pending transactions on the Exchange.
10. Information About You and Your Visits to the Website
- All information we collect on this Website is subject to our Privacy Policy (available at http://www.SPECCX.com/privacy.aspx). By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
11. Geographic Restrictions
- The owner of the platform is based in the State of Tennessee in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
12. DISCLAIMER OF WARRANTIES
- As an Exchange, SPECCX does not own any commodities listed on the Exchange. Pricing decisions are at the sole discretion of the Participant.
- EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7 OF THE SPECCX PLATFORM AGREEMENT, THE EXCHANGE AND MATERIALS RELATED TO THE EXCHANGE ARE PROVIDED “AS IS” AND SPECCX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND SPECCX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SPECCX MAKES NO WARRANTY OF ANY KIND THAT THE EXCHANGE OR MATERIALS RELATED TO THE EXCHANGE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET PARTICIPANT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN PARTICIPANT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
13. Indemnification
- 13.1 Participant Indemnification. Participant shall indemnify, defend and hold harmless SPECCX and its officers, directors, employees, agents, successors and assigns (each, a “SPECCX Indemnitee”) from and against any and all Losses incurred by such SPECCX Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third-party to the extent that such Losses arise out of or relate to any:
- Participant Data, including any Processing of Participant Data by or on behalf of SPECCX in accordance with both the terms of this Agreement and the terms of any agreement between the Participant and SPECCX in connection with this Agreement, including the SPECCX Platform Agreement;
- any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Participant or any Authorized User, including SPECCX’s compliance with any specifications or directions provided by or on behalf of Participant or any Authorized User to the extent prepared without any contribution by SPECCX, in connection with either these Terms of Use or the terms of any agreement between Participant and SPECCX in connection with this Agreement, including the SPECCX Platform agreement;
- 13.2 SPECCX Indemnification. SPECCX shall defend, indemnify and hold harmless Participant from and against any and all Losses incurred by the Participant arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third-party (other than an affiliate of the Participant) alleged to arise out of or result from:
- breach by SPECCX of any representation, warranty, covenant or obligation of SPECCX under the terms of This Agreement (including any action or failure to act by any SPECCX contractor that, if taken or not taken by SPECCX, would constitute such a breach by SPECCX) or the terms of any agreement between the Participant and SPECCX in connection with this Agreement, including the SPECCX Platform Agreement.
- 13.1 Participant Indemnification. Participant shall indemnify, defend and hold harmless SPECCX and its officers, directors, employees, agents, successors and assigns (each, a “SPECCX Indemnitee”) from and against any and all Losses incurred by such SPECCX Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third-party to the extent that such Losses arise out of or relate to any:
14. Limitations of Liability
- EXCLUSION OF DAMAGES. IN NO EVENT WILL SPECCX OR ITS SERVICE COMPANIES OR ITS SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF USE OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE OR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
15. Force Majeure
- In no event will SPECCX be liable or responsible to Participant, or be deemed to have defaulted under or breached either this Agreement or any agreement between the Participant and SPECCX in connection with this Agreement, including the SPECCX Platform Agreement (“Agreements”), for any failure or delay in fulfilling or performing any term of these Agreements when and to the extent such failure or delay is caused by any circumstances beyond SPECCX’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effectice Date of a Participant’s Platform Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
16. Law and Jurisdiction
- The terms of this Agreement are governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Tennessee.
- Any legal suit, action or proceeding arising out of, or related to, this Agreement or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of Tennessee in each case located in the City of Nashville and County of Davidson, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
17. Waiver and Severability
- No waiver by SPECCX of any term or condition set forth in this Agreement or condition, and any failure of SPECCX to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
- If any provision of this Agreement invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
18. Seller Payment Agency Agreement
This Seller Payment Agency Agreement (“Agreement”) is entered into between SPECCX, Inc., a Tennessee limited liability company (“SPECCX”), and
the seller (“Seller”). SPECCX and Seller may be referred to individually as a “Party” and collectively as the “Parties.” SPECCX shall have no authority to act on Seller’s behalf for any purpose other than those expressly stated in this Agreement.
1.Motivation. In the event that a buyer pays by check, this provision serves to enable SPECCX to act as an agent for the single and limited purpose of enabling SPECCX to collect payment on behalf of seller and to transmit funds, less the SPECCX Transaction Fee payable by both buyer and seller, directly to the seller.
2.Appointment of SPECCX as Payment Agent. Seller hereby appoints SPECCX as Seller’s limited payment agent solely for the purpose of:
a. Receiving payments from buyers for produce or other goods sold by Seller through the SPECCX platform (“Buyer Payments”), and
b. Remitting such funds to Seller, less applicable SPECCX transaction fees. Seller agrees that payment to SPECCX constitutes payment to Seller, and that Buyer’s payment obligation is fully satisfied upon SPECCX’s receipt of funds.
3. Authorizations. Seller authorizes SPECCX to:
a. Receive Buyer Payments by any method permitted by SPECCX including checks made payable to SPECCX.
b. Deposit such payments into a SPECCX‑controlled account.
c. Deduct SPECCX’s transaction fees or other agreed charges.
d. Remit the remaining balance (“Net Proceeds”) to Seller.
4. Remittance of Funds. SPECCX will remit Net Proceeds to Seller:
a. by ACH, wire transfer, or other method designated by Seller,
b. after the Buyer Payment has fully cleared SPECCX’s financial institution, and
c. within a commercially reasonable timeframe. SPECCX may delay remittance if (i) a payment is suspected to be fraudulent, (ii) a check has not yet cleared, (iii) there is a dispute between Buyer and Seller, or (iv) SPECCX is required to comply with law or regulation.
5. Fees. Seller authorizes SPECCX to deduct from each Buyer Payment:
a. SPECCX’s transaction fee(s),
b. Any other charges expressly agreed to in writing.
c. The deducted amounts are the property of SPECCX upon receipt.
6. No Commingling Representation. Seller acknowledges that SPECCX may deposit Buyer Payments into accounts that also contain SPECCX’s own funds, provided that SPECCX maintains accurate internal accounting and remits Net Proceeds as required by this Agreement.
7. Limitation of Liability. To the fullest extent permitted by law,
a. SPECCX is not liable for delays caused by banks, payment processors, or clearing times.
b. SPECCX is not liable for losses arising from Buyer non‑payment.
c. SPECCX’s total liability under this Agreement is limited to the amount of the specific Buyer Payment at issue.
Nothing in this section limits SPECCX’s obligations under Section 3 (Duty of Care).
8. Term and Termination. Either Party may terminate this Agreement upon written notice. Termination does not affect SPECCX’s obligation to remit Net Proceeds already received.
9. Governing Law. Either Party may terminate this Agreement upon written notice. Termination does not affect SPECCX’s obligation to remit Net Proceeds already received.
10. Entire Agreement. This Agreement constitutes the entire understanding between the Parties regarding SPECCX’s role as payment agent and supersedes all prior agreements on this subject.