CAREFULLY READ THESE TERMS OF USE (these “TOU”), AS THEY, TOGETHER WITH THE BASF CONNECT WEB APPLICATION TERMS OF USE (the “Connect TOU”), AND ANY APPLICABLE TERMS, CONDITIONS, DISCLAIMERS, AND NOTIFICATIONS REFERENCED IN THESE TOU AND/OR CONNECT TOU, CONSTITUTE A LEGALLY BINDING AGREEMENT (the “Agreement”) WHICH GOVERNS USER’S USE OF THE SUPPLY SNAPSHOT BY BASF PORTAL (“Portal”) AND BASF’S PROVISION OF SERVICES IN CONNECTION WITH MAKING THE PORTAL AND THE BASF CONTENT AVAILABLE TO USER.

BY INSTALLING, LOGGING INTO, OR USING THE PORTAL OR DOWNLOADING, INPUTING CONTENT, AND/OR USING THE BASF CONTENT MADE AVAILABLE ON OR THROUGH THE PORTAL, USER AGREES TO THE TERMS AND CONDITIONS OF THE AGREEMENT. IF USER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT, USER MUST NOT DOWNLOAD, INSTALL, LOG INTO, AND/OR USE THE PORTAL IN ANY MANNER WHATSOEVER.

BASF RECOMMENDS THAT USER FREQUENTLY REVIEW THESE TOU AS THEY MAY CHANGE FROM TIME TO TIME WITHOUT PRIOR NOTICE. USER’S DOWNLOAD, INSTALLATION, AND/OR USE OF THE PORTAL AFTER SUCH A CHANGE HAS BEEN MADE TO THESE TOU INDICATES USER’S AGREEMENT TO SUCH CHANGES.

Provider of the Portal is BASF Corporation, 100 Park Avenue, Florham Park, NJ 07932, USA. As used in these TOU, “BASF” means collectively, BASF Corporation and its Affiliates.  "Affiliate" means any person or entity that directly or indirectly controls, is controlled by or is under common control with BASF Corporation. In this context, "control" means the ownership or control of more than fifty percent (50%) of the voting stock or interest of BASF Corporation.

1.    General Information

BASF provides the Portal exclusively to its business customers (i.e., non-consumer customers) who have registered (“Register,” Registration,” or “Registering” as the context requires) and created a user account (each a “User”) at no additional charge. To create a user account (“User Account”), User must have a unique, valid email address.  User Accounts cannot be shared. Registration and the creation of a User Account is required to use the Portal. Users must be 18 years of age or older.

The User Account, any material, submissions, creations, information, or data inputted, uploaded, or published by User into or through the Portal (“User Content”), and use of the Portal and the Portal Content (as defined below) contained or made available therein is subject to the following terms and conditions:

2.     Scope and Functionalities

(1)   The purpose of Portal is to improve transparency with BASF’s distributor business customers by displaying data concerning estimated available inventory and anticipated future availability of BASF’s US crop protection products (“Products”). The Portal will include, but is not limited to, information indicating if a Product is on a supply plan, the Product number, product description, the estimated availability of inventory, and the corresponding location of available Product inventory within BASF's warehouse network - updated from time to time. The Portal communicates with BASF internal systems to gather the data that will be displayed and periodically updated. The Portal may include the capability for User to input User Content and may further include information on any other BASF Product, order, content, data, or materials, including, without limitation, any content, data, or materials licensed to BASF by a third-party licensor) (collectively, “BASF Content”).

(2)   BASF reserves the right to modify or discontinue the availability, number, and scope of the Portal and/or Portal features or functions at any time without advance notice to User.

(3)   The use of the Portal and the BASF Content is subject exclusively to the terms and conditions of the Agreement.

(4)   In the event of a conflict between these TOU and the Connect TOU, these TOU shall prevail. Deviating or conflicting terms and conditions shall not form part of the Agreement, unless BASF has expressly agreed to such terms and conditions in writing and such writing specifically references BASF’s agreement to deviate from the terms and conditions of the Agreement.

(5)   Notwithstanding the forgoing, these TOU are limited to activities under these TOU in respect to the Portal and/or BASF Connect and in no event shall be interpreted to explain, limit, and/or amend the parties’ rights or obligations set forth in duly executed agreements between BASF and its distributor business customers.

3.     Access to the Portal

(1)   The use of the Portal by User is voluntary. Access to the Portal, via the User Account, is password-protected. To activate access to the Portal, User needs to create a User Account consisting of a username and password (“Access Information”) and to Register as instructed by BASF. Access is granted after Portal access has been activated by an administrator of BASF.

(2)   By creating a User Account and logging into the Portal, User creates a legally binding agreement with BASF in which User accepts the terms and conditions of the Agreement. Therefore, User agrees that User has obtained access to the Portal solely for its business purposes. Any other use of User’s User Account or the Portal not authorized by these TOU by User or through third parties is prohibited. If User is accepting these TOU on behalf of a legal entity, User represents that User has the authority to bind such entity to these TOU, in which case the terms “User” refers to such entity.

(3)   These TOU and the Portal are made available in English only.

(4)   These TOU are stored by BASF and are accessible to the User at any time within the Portal.

4.     Provision of the Portal  

(1)   BASF shall use commercially reasonable efforts to provide reasonable access to and use of the Portal. BASF provides access to the Portal in a hosted environment, which allows User to use the Portal over the internet without having to install and operate the software on its own IT-devices or equipment.

(2)   BASF shall use commercially reasonable endeavors to maintain the availability of the Portal for the use by User at the gateway between the public internet and the network of BASF’s hosting servers. The Portal is “available” if it is usable at the gateway between the public internet and the network of BASF’s hosting servers.  Notwithstanding the above, BASF DOES NOT WARRANT OR GUARANTY THE AVAILABILITY OF THE PORTAL OR ITS FEATURES OR FUNCTIONS OR THAT THE PORTAL WILL OPERATE ERROR-FREE. THE PORTAL IS PROVIDED ON AN “AS-IS” BASIS, WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION THE WARRANTIES OF FITNESS FOR PURPOSE OR MERCHANTABILITY.   

(3)   BASF shall use commercially reasonable endeavors to ensure trouble-free operation of the Portal during normal business hours of BASF in New Jersey. Outside of the normal business hours of BASF in New Jersey, the Portal may also be accessible by User. However, due to the nature of the internet, technology, and computer systems, BASF does not ensure that the Portal is or will operate trouble-free and does not assume any liability for the availability of the Portal or the services provided in connection with the Portal.

(4)   BASF is free to restrict access to the Portal or User Account in whole or in part, temporarily or permanently, for any reason whatsoever, in its sole judgment, without prior notice.

5.     User Obligations

(1)   User is solely responsible for any User Content. BASF is not responsible to check User Content for any reason, including, without limitation, for completeness, accuracy, legality, availability, quality, and suitability for a specific purpose.

(2)   User is prohibited from any activities on or in connection with the Portal that violate applicable law, infringe the proprietary, privacy, or other rights of third parties, or violate the principles of youth protection.

(3)   In addition, User is also prohibited from performing the following activities irrespective of any violation of the law:

     i.    the distribution of viruses, trojans, malware, and other harmful files;

     ii.    sending junk or spam mails and chain letters;

     iii.    the dissemination of offensive, sexually oriented, obscene, derogatory, or defamatory content or communication as well as such content or communication which is/are suitable to promote or support racism, fanaticism, hatred, physical violence, or illegal acts (either explicitly or implicitly in each case);the harassment, stalking, threatening, or violation of the legal rights of other Users (e. g. by multiple personal contact without or against the reaction of the other User as well as the promotion or support of such harassment);

    iv.    the request of other Users to disclose passwords or personal information for commercial or illegal purposes; and/or

    v.    the dissemination and/or public reproduction of BASF Content available on or through the Portal.

(4)   User is obliged to keep User’s Access Information secret and to protect it from disclosure to or access by third parties. Should User become aware of the loss or misuse of its Access Information or suspect of misuse of its User account, User must notify BASF immediately in writing at BASF-Connect-Online-Support@basf.com.

(5)   User shall indemnify, defend, and hold harmless BASF (including members of BASF and any BASF licensor or service recipient/provider, and its and their respective, employees, officers, directors, shareholders, agents, successors, and assignees) from and against any claims, lawsuits, actions, damages, costs, fines, penalties, and expenses (including reasonable legal costs and disbursements) or other liability arising out of or related to the User Content or User’s unauthorized use of the Portal or Portal Content.

(6)   Without prior notice, BASF reserves the right to suspend User from using the Portal at any time and or any reason, including, but not limited to, if the terms and conditions of the Agreement, applicable law, or the rights of third parties are violated, as determined in BASF’s sole judgment. BASF has the right to block or delete any and all of User Content without prior notice if such User Content violates the Agreement and/or applicable law.

6.     Rights of Use to Portal

(1) Upon successful Registration, BASF grants to User the non-exclusive, non-transferable, and revocable right, which is limited in time for the term of Registration, to use the Portal in accordance with the Agreement. The BASF Content available on the Portal is protected by copyright or other intellectual property rights. The owners of such rights are BASF, its business partners, its licensors, or other third parties who have made the respective BASF Content available. The Portal and the BASF Content made available on the Portal may therefore not be changed, extended, mirrored, edited, copied, and/or otherwise distributed by the User. BASF or its licensor is and will be the sole and exclusive owner of the BASF Content.

(2) User agrees not to reproduce, distribute, modify, or create derivative works of the Portal, BASF Content, or any other components thereof and not to reverse engineer or decompile the Portal except as the same may be authorized under applicable law.

(3) If User publishes User Content on the Portal, User grants BASF a non-exclusive, worldwide, perpetual, irrevocable right to use the User Content for commercial purposes.

7.     Term of Use and Termination

(1)  These TOU shall stay in effect for as long as the User has a User Account or otherwise uses the Portal (the “Term”). These TOU can be terminated by either User or BASF at any time with immediate effect without cause, however, all confidentiality obligations and use restrictions of User shall survive ten (10) years after any termination.  User may terminate these TOU at any time by deleting its User-Account.

(2)  The Term ends at the latest automatically with the end of the operation of the Portal.

(3)  Upon termination of these TOU by User, User shall immediately cease use of the Portal and acknowledges that BASF may block User’s access to the same and/or delete User’s User Account in Portal.

(4)  User acknowledges that it has no right to export User Content and that BASF has no obligation to provide such User Content after termination of these TOU, except where required by applicable law.

8.    Rights in Case of Defects and Limitation of Liability

(1)   To the extent and for as long as the Portal is made available at no additional charge to User, any liability for defects in the functions of the Portal and its documentation as well as for any other defective performance vis-à-vis the User shall be excluded.

(2)   With regard to the BASF Content, text, images, software, and any and all Products, services, submissions, and creations (including those of third parties) made available through or in connection with the Portal (individually and collective, “Portal Content”) , the following applies:

    i. Portal Content reflects the situation at the time that such content has been collected and BASF shall be under no obligation to update the Portal Content. Portal Content is PROVIDED ON AN "AS IS" BASIS. THE PROVISION OF PORTAL CONTENT SHALL NOT CONSTITUTE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND SHALL NOT RELIEVE USER FROM UNDERTAKING ITS OWN EVALUATIONS, INVESTIGATIONS, AND TESTS. IN PARTICULAR, PORTAL CONTENT DO NOT CONSTITUTE AN AGREED QUALITY, AVAILABILITY, OR SUITABILITY OF PRODUCTS.  USER AGREES THAT USER BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE PORTAL, INCLUDING WITHOUT LIMITATION ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY PORTAL CONTENT AVAILABLE THROUGH OR IN CONNECTION WITH THE PORTAL

    ii. ACCORDINGLY, ANY LIABILITY OF BASF WITH REGARD TO DAMAGES OR LOSSES, WHICH USER SUFFERS, THROUGH THE USE OR THROUGH USER’S RELIANCE UPON THE ACCURACY, QUALITY, COMPLETENESS, OR FITNESS OF PORTAL CONTENT FOR A PARTICULAR PURPOSE SHALL BE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

(3)   BASF is only liable for its own content and information provided on the Portal in accordance with applicable laws and as set forth in these TOU; however, BASF is not liable for any transmitted or stored third-party information.

(4)   Further claims for damages, liability, and reimbursement of expenses of User related to the use of the Portal, irrespective of their legal basis, in particular due to a breach of duties arising from the contractual obligation and from tort, are excluded.

(5)   User agrees to indemnify, defend, and hold harmless BASF and its and their respective employees from any damages arising from claims raised by third parties, should these claims be the result of the third parties using and relying upon BASF Content received from User.

(6)   Except where prohibited by applicable law, User waives all damages under any cause of action other than actual damage for out-of-pocket loss.  For example, except with respect to such laws, User waives nominal damages, liquidated damages, statutory damages, consequential damages, presumed damages, as well as the imposition of costs and attorney’s fees.

9.     Data Protection

BASF and its agents, licensors, representatives, and service providers use of the personal information collected via the Portal is subject to BASF’s Privacy Policy.  Please also see BASF’s CCPA Notification applicable to California residents.

10.  Confidentiality

(1)   User undertakes to keep Confidential Information confidential and not to forward and/or disclose it to any third party unless, and to the extent, approved for disclosure by the express prior written consent of BASF in its sole discretion or permissible in accordance with below sub-section (3).

(2)   "Confidential Information" includes all information of BASF:

    i.    concerning the features and functionalities of the Portal;

    ii.    concerning business and trade secrets, regardless of whether such information is marked as "confidential";

    iii.    which - orally, in writing, electronically or in any other form - are recognizable as confidential at the time of disclosure or acknowledgement due to the circumstances of the disclosure or its nature; and

    iv.    BASF Content.

(3)   The confidentiality obligations and/or use restrictions shall not apply for Confidential Information that the User can prove:

    i.     is or becomes generally available to the public through no fault of User or any violation of these terms of use; or

    ii.     was rightfully in the possession of User without confidentiality or non-use restrictions prior to the initial download of such data; or

    iii.     is lawfully received by User without confidentiality or non-use restrictions from an unaffiliated third party without breach of any confidentiality obligations, statutory provisions or official order; or

    iv.     is independently developed by or for User without the use or benefit of any Confidential Information.

User may disclose Confidential Information to the extent compelled to do so pursuant to any involuntary court order or statutory or regulatory authority, but only if User (a) provides prompt prior written notice to BASF, (b) fully cooperates with BASF to obtain a protective order or other appropriate limitations to prevent or narrow disclosure, and (c) makes such disclosure solely to the extent mandatory under such order or authority.

(4)   User shall be responsible and liable (including towards BASF) for its affiliates’, subsidiaries’, parents’, employees’, agents’, representatives’, contractors’, successors’, assigns’ (individually and collectively, “User Group”), compliance with the confidentiality obligations and/or use restriction, and a breach of confidentiality or use restriction by any member of User Group shall be treated in the same way as a corresponding breach by User.

11.  Changes to Terms of Use

BASF reserves the right to amend these TOU at any time without notice.

12.  Miscellaneous

(1)  Should one or more provisions of the Agreement be invalid or unenforceable due to violation of applicable law or another reason, the rest of the Agreement shall remain valid. The invalid or unenforceable provision shall be replaced by BASF by amending the Agreement with a valid, enforceable provision, which most approximately represents the intent of the original provision.

(2)  The validity, interpretation, and implementation of the Agreement shall be governed by the laws of state of New Jersey, USA, excluding its conflict of laws principles.

(3)  User agrees that in regards to suggestions, feedback, or input by User (“User Input”) related to the Portal, or the services provided in connection with the Portal, BASF will own all right, title and interest in and to the User Input, even if User has designated the User Input as confidential. BASF will be entitled to use the User Input without restriction.

(4)  BASF hereby expressly draws the User's attention to the fact that the Portal may operate in conjunction with or using certain third-party tools, formats, software, or products (“Third-Party Components”), and BASF expressly disclaims any liability relating to such functionality. Any Third-Party Components incorporated into or accompanying the Portal are third parties’ intellectual property and are protected by applicable local laws, international copyright laws, and applicable treaties. In addition, all such Third-Party Components incorporated into or accompanying the Portal are or may be subject to a separate software licensing agreement containing separate and discrete terms, conditions, and restrictions governing User’s right to use the Third-Party Components. User hereby acknowledges that under the Agreement BASF provides User only with a right of limited use under the terms and conditions of the Agreement and that the Third-Party Components are provided on an “AS-IS" basis without any warranty by BASF of any kind. And User hereby agrees and confirms to use the Third-Party Components only in conjunction with the Portal and as permitted by the more restrictive of any Third-Party Components license agreement applicable to User’s and/or BASF’s use of the Third-Party Components.

(5)  The parties agree, consent, and waive contest to the exclusive jurisdiction and venue of the federal or state courts of New Jersey for all disputes arising out of or relating to the Agreement.

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