Now therefore, in consideration of the mutual promises herein contained, the parties hereto agree as follows:
1. Term of Agreement
This Agreement will remain in force for a period of one month from the date that Company receives Customer’s fee payment, and will automatically renew on a monthly basis unless cancelled in writing by either party with a written notice at least 15 days in advance of the renewal date. In some cases, your Monthly Payment Date may change, for example if an attempted payment was not successfully settled, if you change the Monthly Payment Date in “My Account,” or if your paid membership began on a day not contained in a given month. When your Monthly Payment Date is changed, you may be charged an adjusted fee in the month of the Payment Date change. Visit our website and click on the “Billing details” link on the “My Account” page to see your next payment date. Fees paid to Company under this Agreement are non-refundable.
Company will provide Customer with daily and weekly updates, market commentary, and marketing recommendations.
Customer shall pay Company for publications provided to Customer by Company during the time this Agreement is in effect, an amount equal to the list in Appendix A, located at the end of this Agreement. Fees may be paid by credit card or ACH withdrawal. Customer authorizes Company to automatically process each monthly fee to the same account. Company reserves the right to increase fees in accordance with the Core Consumer Price Index used by the Federal Reserve, to a maximum of 5%.
4. Limit of Liability
Company warrants that it will use its reasonable best efforts to ensure that any publications it provides under this Agreement will be based upon information that Company believes to be accurate, though such information may not be audited or verified. Company will not be responsible for Customer’s losses due to recommendations. In turn, Company will have no claim of gains due to recommendations.
Company and Customer agree that the maximum liability of Company under this Agreement is the total amount of the monthly fees paid by Customer during the 1-month period prior to the date that the claim for damages arose. In no event shall the Company’s total cumulative liability hereunder, from all causes of action of any kind, whether arising under contract, tort (including negligence), strict liability, breach of warranty or otherwise, exceed the total amount paid by Customer during such period. Company and Customer agree that the Company shall not be liable for any lost profits, reputational damages, loss of business or other consequential, indirect, incidental, special, punitive or exemplary damages, even if a party has been advised of the possibility of such damages. Both parties further agree that any claim that may arise out of or be in any way connected with this
Agreement must be commenced within one year from the date that the cause of action arose. Customer hereby authorizes Company and its affiliates to make recordings of telephone conversations between Customer and Company, regardless of any further notification. Company may erase or dispose of such tapes in accordance with its normal procedures.
All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be in writing and shall be deemed to have been given when delivered in person by certified or registered mail, postage prepaid or by commercial overnight delivery service addressed as follows (print name and address of Customer):
If to Customer:
Billing Address of Customer found within “My Account” page of Company website will be used.
If to Company:
Total Farm Marketing
137 S. Main St.
West Bend, WI 53095
Except as expressly provided hereunder, neither this Agreement nor any rights or obligations hereunder may be assigned or otherwise transferred by either party without the prior written consent of the other party (which consent shall not be unreasonably withheld); provided, however, that Company may assign this Agreement and its rights and obligations hereunder without Customer’s consent: (a) in connection with the transfer or sale of all or substantially all of the business of Company to which this Agreement relates to a third party, whether by merger, sale of stock, sale of assets or otherwise; or (b) to an affiliate of Company, provided that the Company shall remain liable and responsible to Customer for the performance and observance of all such duties and obligations by such affiliate.
7. Privacy and Information Security
8. Entire Agreement; Amendment; Counterparts
This Agreement constitutes the entire agreement between the parties as to the subject matter hereof and supersedes all prior understandings or agreements whether oral or written. This Agreement may be modified only by a written instrument signed by the parties hereto. This Agreement may be executed in dual counterparts, each of which shall be deemed an original.
This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto.
10. No Waiver
The failure of a party to require strict performance of any provision of this Agreement by the other, or the forbearance to exercise any right or remedy, shall not be construed as a waiver by such party of any such right or remedy or prelude any other or further exercise thereof or the exercise of any other right or remedy.
11. Relationship of the Parties
The parties are independent contractors and nothing in this Agreement will be construed as establishing a joint venture, partnership, employment or agency relationship between the parties.
12. Severability; Survival
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. The parties agree that clauses 4, 13 and this clause 12 shall survive the termination of this Agreement.
13. Governing Law and Forum Selection
The terms of this Agreement shall be construed and enforced under the laws of the State of Wisconsin, without regard to its conflict of laws principles.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in Milwaukee, Wisconsin administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Subject to the duty to arbitrate, any court proceedings arising out of or relating to this Agreement shall be conducted exclusively in the state or federal courts of Wisconsin, and Subscriber consents to the personal jurisdiction of such courts for any such proceedings.
The headings used in this Agreement are for convenience only and are not to be used in construction or interpretation.
Charges for each TFM publication are listed below:
TFM Cash+ – $299/month
TFI (Top Farmer Intelligence) – $14.99/month