By using the Weather Forecast Tool, you (1) represent and warrant that (a) you are at least 18 years of age or the age of majority under the laws of the province in which you reside, (b) you are using the Weather Forecast Tool for your farming or agricultural business purposes in Australia only, and (c) you have the power and authority to enter into this Agreement; and (2) agree to be bound by these terms and conditions. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have authority to bind that entity, in which case “you” or “your” shall refer to you and that entity, and both you and that entity hereby agree to be bound by this Agreement.
The Weather Forecast Tool provides information, estimates, and forecasts based on models and third-party sources, as well as Data provided or inputted by you or your device. The Weather Forecast Tool information, estimates, forecasts, and services may change over time. Individual results may vary, as weather, growing conditions, and farming practices differ across growers, locations, and time. We do not guarantee any results or outcomes, and neither the Weather Forecast Tool nor Generated Data should be used as either a substitute for sound farming practices, including regular and diligent field monitoring, or the sole means for making farming, risk management, regulatory compliance, or financial decisions. Compliance with laws and regulations regarding pesticide applications are the responsibility of the applicator. The forecasts generated by the Weather Forecast Tool are for informational purposes only, and you must verify the actual conditions at your location at the time of application, as required by the pesticide label.
1. Scope of this Agreement
This Agreement describes how you can and cannot use the Weather Forecast Tool provided to you by us in Australia, and what we will and will not do in connection with your use. This Agreement also establishes important legal restrictions and obligations. Subject to the terms and conditions of this Agreement, Bayer licenses to you the rights to use the Weather Forecast Tool in Australia for free.
2. Your Use of the Weather Forecast Tool
What you can do:
If you comply with the terms of this Agreement, then you and the individuals who work for you can use the Weather Forecast Tool for your use in connection with your farming operations in Australia. You are granted a limited, revocable, and non-exclusive license to use the Weather Forecast Tool in Australia. We welcome your feedback on your experience with the Weather Forecast Tool.
What you agree to do:
You agree to: (a) provide accurate, reliable, and appropriate Data; (b) ensure that you and individuals working for you comply with this Agreement; and (c) keep your device and internet browser up to date.
What you agree not to do:
You agree not to: (a) assign, transfer, or sublicense this Agreement or any right granted by us to you in this Agreement; (b) sell, lease, lend, license, or sub-license the Weather Forecast Tool or Generated Data; (c) modify, edit, adapt, alter, translate, adopt, transfer, enhance, disassemble, scrape (through spidering, crawling, or the like), reverse engineer, or decompile the Weather Forecast Tool or any code, script, or software forming any part of the Weather Forecast Tool; (d) use the Weather Forecast Tool on land or equipment that you do not own or have a right to use or operate; (e) use the Weather Forecast Tool or Generated Data on behalf of any third party; (f) use the Weather Forecast Tool or Generated Data other than as permitted under this Agreement, including but not limited to using either or both to: (1) develop, evaluate, validate, or enhance any competitive product or service; (2) create derivative works; (3) make competitive comparisons; (4) harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of anyone or to publish material that is false, defamatory, harassing, or obscene; (g) remove or modify any markings or notices of our or our licensors’ proprietary rights; (h) violate or circumvent, or attempt to do so, any Weather Forecast Tool security feature; or (i) use or otherwise import, export, or re-export the Weather Forecast Tool or Generated Data in any way that violates any applicable laws or security programs.
If you violate any of these prohibitions, we will not be responsible in any way for your actions or any losses that may result from such acts.
3. Bayer’s Rights and Obligations
What we may do:
We may make the Weather Forecast Tool available for use through a Bayer-approved webpage.
We may provide updates, upgrades, and fixes to the Weather Forecast Tool as the need arises. If we do, you agree to use the most recent version of the Weather Forecast Tool and to abide by any additional requirements we may attach to your use of the Weather Forecast Tool. We will not be responsible in any way for use of an outdated or older version of the Weather Forecast Tool. An update may change, or altogether discontinue, certain features of the Weather Forecast Tool.
We may use your feedback for any purpose without restriction. If you contact us, we may confirm your identity to ensure you are who you say you are and to better protect your privacy.
4. Privacy Terms
We value the privacy and security of information that you choose to share with us through use of the Weather Forecast Tool. Please read these privacy terms carefully before you use the Weather Forecast Tool so that you understand our practices and your options before you choose to share your information. Your use of the Weather Forecast Tool means you agree to our collection, use, and disclosure of information that you share with us, as explained in this Agreement.
Collection and Use of Personal Information
The Weather Forecast Tool does not require or store any information that can be used to identify you as an individual person (“Personal Information”). When you visit the website with the Weather Forecast Tool, you will be asked if you wish to enable location services on your device in order to obtain weather information for your area. Where available, location-based services may use GPS, Bluetooth, and your IP address, along with crowd-sourced Wi-Fi hotspots and cell tower locations, and other technologies to determine your device’s approximate location. You may use the Weather Forecast Tool without enabling it to collect your location. But this may affect the functionality available on your Weather Forecast Tool. For example, if you do not enable the Weather Forecast Tool to collect your precise location, you will have to manually enter your location to use certain features in the Weather Forecast Tool. In either case, the Weather Forecast Tool does not store this information, it will be deleted when you close your browser.
Collection and Use of Analytical Information
We may collect information in a form that does not, on its own, reasonably permit direct association with any specific individual (“Analytical Information”). We may collect, use, transfer, and disclose Analytical Information for any purpose. Examples of Analytical Information that we collect include: (a) information about how you use and interact with the Weather Forecast Tool, which may include your general location, access dates and times, internet service provider, metadata, language, features or pages viewed, app crashes, and other similar information that assists us in understanding our users and improving the Weather Forecast Tool; (b) information about the device you use to access the Weather Forecast Tool, including the hardware model, operating system and version, a unique device identifier, and mobile network information; and (c) “cookies” and similar technologies, such as mobile device identifiers and software development kits, that create and maintain unique identifiers and collect information about your device and how you use the Weather Forecast Tool.
One service we use to collect information is Google Analytics. For more information about Google Analytics, please visit https://www.google.com/policies/privacy/partners/. You hereby consent to the use of the cookies and other technologies described above.
We use reasonable organizational, technical, and administrative measures to protect Analytical Information. If you have reason to believe that your interaction with us is no longer secure, please immediately notify us in accordance with the “Contact Us” section below.
Use of Weather Forecast Tool by Minors
The Weather Forecast Tool is not directed to individuals under the age of eighteen, and we request that individuals under the age of eighteen not provide us with any of their information or use the Weather Forecast Tool.
As between Bayer and you, we are the sole owner of the Weather Forecast Tool and all associated technology and intellectual property rights, and we reserve all rights in and to the Weather Forecast Tool. We do not grant you any rights or licenses under any of our technology or intellectual property rights, except as expressly granted in this Agreement.
6. Other Important Legal Information
LIMITATIONS ON LIABILITY AND DAMAGES FOR USE OF THE WEATHER FORECAST TOOL:
Use of the Weather Forecast Tool and Generated Data is at your sole risk. We do not promise that your use of the Weather Forecast Tool will be uninterrupted or that the Weather Forecast Tool or Generated Data will meet your requirements or expectations, be accurate or be error-free.
TO THE EXTENT PERMITTED BY LAW THE WEATHER FORECAST TOOL AND ANY SERVICES PERFORMED OR GENERATED DATA PROVIDED BY OR THROUGH THE WEATHER FORECAST TOOL ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, SUCH AS THE WARRANTIES OF YIELD RESPONSE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. No oral or written information or advice given by us or third parties will create a warranty. The disclaimers and exclusions in this Agreement will apply despite any failure of essential purpose of any limited remedy. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.
Bayer and our affiliates, and each of our respective employees, officers, directors, shareholders, agents, successors, licensors or subcontractors, will not be liable for any loss, damage, liability, claim, action, or violation including, without limitation, damages for loss of profits, loss of crops or yield, loss of data, regulatory enforcement, business interruption or any other damages or losses, incurred as a result of your use or inability to use the Weather Forecast Tool or a decision made or any action taken by you in reliance on the Weather Forecast Tool, Generated Data, or any results obtained from their use.
Certain features of the Weather Forecast Tool may permit you to upload or otherwise make Data available to the Weather Forecast Tool. You are solely responsible for your Data and the consequences of uploading or otherwise making Data available to the Weather Forecast Tool.
We have no responsibility, and will incur no liability whatsoever, arising from or related to Data not owned by you, or any disclosure to or use of your Data or Generated Data by a third party to whom you have given access to your Weather Forecast Tool or Personal Information.
We are not responsible for any delays, limitations, delivery failures, losses, or damages resulting from the transfer and/or transmission of data over communications facilities, including the internet.
NEITHER YOU NOR BAYER WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR SAVINGS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY WEATHER FORECAST TOOL OR GENERATED DATA OR FOR ANY CLAIM BY ANY THIRD PARTY.
Unless otherwise prohibited by applicable law, if an action or lawsuit arising out of or related to this Agreement, the Weather Forecast Tool, or Generated Data is not commenced within one (1) year after the cause of action accrues, that cause of action is permanently barred.
You agree to defend, hold harmless and indemnify Bayer and our affiliates, and each of our respective employees, officers, directors, shareholders, agents, successors, licensors, and subcontractors, from and against any claim, liability, damage, loss, or expense, including reasonable attorneys’ fees, arising out of or connected with: (a) your or a third party’s access to, or use of, the Weather Forecast Tool or Generated Data; (b) your violation of any portion of this Agreement or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right; and (d) any dispute or issue between you and any third party.
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
You are solely responsible for all requirements for access to or use of the Weather Forecast Tool through your mobile device, internet, or telecommunications provider, or the terms related to the use of any required additional software. The Weather Forecast Tool may contain certain third-party software provided under separate licenses.
Effective date and termination:
This Agreement will become effective when you first indicate your acceptance of this Agreement by clicking “I Agree” on the pop-up that generates when you first visit the website with the Weather Forecast Tool or upon your first use of the Weather Forecast Tool, whichever is earlier.
Either you or Bayer may terminate this Agreement if the other materially breaches this Agreement and fails to remedy the breach within 30 days of such breach.
We may terminate this Agreement with respect to any Weather Forecast Tool if: (a) we no longer offer the Weather Forecast Tool; (b) your use of the Weather Forecast Tool violates this Agreement or any applicable law or regulation; or (c) we believe that your account has been compromised or accessed without your authorization.
If we or you terminate this Agreement with respect to the Weather Forecast Tool, then your right to use or access the Weather Forecast Tool will terminate immediately, and you must immediately cease accessing and using the Weather Forecast Tool.
Order of precedence; Entire agreement:
This Agreement constitute the sole and entire agreement between you and Bayer pertaining to your use of the Weather Forecast Tool and supersedes all other prior or contemporaneous agreements (written or oral) previously existing between you and Bayer regarding your use of the Weather Forecast Tool.
The parties will perform under this Agreement as independent contractors. This Agreement does not create a joint venture, partnership, or formal business organization of any kind. This Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective heirs, executors, successors and assigns. The unenforceability of any provision will not affect any other provision in this Agreement, and any unenforceable provisions will be limited or eliminated to the minimum extent necessary. Failure to insist upon the performance of, or to exercise any rights under, this Agreement will not be construed as a waiver of any future performance or the future exercise of any such right. All rights and remedies under this Agreement are cumulative and in addition to any other rights and remedies available at law. Those provision(s) whose context indicates that it is intended to survive will survive termination or expiration of this Agreement, including the sections titled Privacy Terms; Ownership; Other Important Legal Information; Governing Law; Updates to this Agreement; and Notices.
7. Governing Law
This Agreement and all conduct, disputes, and causes of action arising out of or relating to this Agreement will be governed by and construed in accordance with the laws Victoria and the laws of Australia applicable therein (without regard to conflict of laws rules) and the parties agree to submit to the exclusive jurisdiction of the courts of Victoria.
NO CLASS ACTIONS. TO THE EXTENT NOT EXPRESSLY PROHIBITED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BAYER ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION. YOU UNDERSTAND AND AGREE THAT YOU AND BAYER MAY EACH BRING CLAIMS AGAINST EACH OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING. YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.
8. Force Majeure
Neither you nor Bayer will be in breach of this Agreement or responsible for damages caused by delay or failure to perform any of its obligations under this Agreement due to circumstances beyond your or Bayer’s control.
9. Updates to this Agreement
We may change this Agreement at any time, and we will try to let you know as soon as possible when we have made any changes, by, for example, posting a notification on the Weather Forecast Tool webpage. You can view the most current version of this Agreement in the section of the Weather Forecast Tool. The “Last Updated” legend at the bottom of this page indicates when this Agreement was last revised. Any changes to this Agreement will become effective upon the earlier of: (a) your first use of the Weather Forecast Tool with actual notice of such changes, or (b) 30 days after we post or distribute the revised Agreement, in which case those changes will apply to your use of the Weather Forecast Tool after the last updated date of the revised Agreement. If you do not wish to accept the new Agreement, you must immediately stop using the Weather Forecast Tool.
We may post notices to you within the Weather Forecast Tool. Any notices for Bayer under this Agreement must be delivered via mail to Bayer Crop Science Pty Ltd, Attn: Legal Department, Level 1, 8 Redfern Rd, Hawthorn East, VIC 3123.
11. Electronic Contracting
Your use of the Weather Forecast Tool and internet sites for using such Weather Forecast Tool includes the capacity and ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE WEATHER FORECAST TOOL, INCLUDING POLICIES AND AGREEMENTS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
“Analytical Information” has the meaning set forth in section 4 Privacy Terms.
“Data” means any Personal Information, Analytical Information, or other information or data that is uploaded, inputted, transmitted, imported, or stored to or in the Weather Forecast Tool, directly by you or through your device or internet browser.
“Generated Data” means forecasts, estimates, functionality, tools, analyses, results, and other information generated, published, displayed, transmitted, or made available in or by the Weather Forecast Tool other than Data.
“Personal Information” has the meaning set forth in section 4 Privacy Terms.
“XtendFlex cotton Spray App” or “Weather Forecast Tool” means the following items provided by us to you, regardless of naming or branding, either alone or in combination with each other or with hardware: (i) the Weather Forecast Tool that provides agricultural information, estimates, and forecasts; (ii) the websites, applications, and technology platforms that deliver, or allow you to access, these software or software as a service products or services; or (iii) all related documentation, updates, upgrades, releases, and fixes.
For Weather Forecast Tool questions or inquiries, please call 1800 804 479
Last Updated: 16 November 2021.