SOFTWARE User AGREEMENT
This agreement is a legal agreement between Agric-Bioformatics, Inc., with offices at 2500 Boardwalk Street Suite 108 Norman Oklahoma 73069(“Company”, “we”, or “us”) and the business entity or person for whom you are acting ( “Customer” or “you”) (as the end user of the Service (defined below) (“Agreement”). You agree that you are an employee or agent of Customer and are entering into this Agreement for use of the Service by Customer for Customer’s own internal business purposes in accordance with this Agreement. You hereby agree that you enter into this Agreement on behalf of Customer and that you have the authority to bind Customer to this Agreement.
COMPANY IS WILLING TO PROVIDE ACCESS TO THE SERVICES TO CUSTOMER ONLY ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS IN THIS AGREEMENT. BY DOWNLOADING, INSTALLING, CONFIGURING, ACCESSING OR OTHERWISE USING THE SERVICES, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, COMPANY IS UNWILLING TO PROVIDE THE SERVICES TO YOU, AND THEREFORE, DO NOT COMPLETE THE DOWNLOAD PROCESS (IF APPLICABLE), ACCESS OR OTHERWISE USE THE SERVICES. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU SHOULD IMMEDIATELY RETURN THE SERVICES AND CEASE ANY USE OF THE SERVICES. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU CLICK “I AGREE” OR SIMILAR, OR OTHERWISE ACCESS THE SERVICES (THE “EFFECTIVE DATE”)
1.1 “Cattle” means the number of unique individual cattle that Customer may input Customer Data on into the Service, where, in each case, the cattle reside at the Location at least 5 months out of the year. 2.1 License. Subject to the terms and conditions of this Agreement, Company grants to Customer, during the Term (as defined below), a limited non-exclusive, non-sublicensable non-transferable right to remotely access and use the
1.2 “Company Site” means the web site located at a unique URL to be provided by Company to Customer where Users may access and use the Service.
1.3 “Confidential Information” means the terms and conditions of this Agreement and all information related to a party’s business, financial affairs or operations, including but not limited to information related to business plans, technology, source code, product or service development plans, pricing, techniques and methods, which is either marked or identified as confidential or which the receiving party knew or reasonably should have known, under the circumstances, was confidential.
1.4 “Customer Data” means the data and content provided by Customer in the course of Customer’s access to, and use of, the Service in accordance with this Agreement.
1.5 “Documentation” means the specifications and functional requirements published by Company for the Service and provided to Customer in either electronic, online help files or hard copy format. Marketing materials shall not be considered Documentation hereunder.
1.6 “Intellectual Property Rights” means any and all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and other proprietary rights, whether registered or unregistered.
1.7 “Location” means at the location set forth on Exhibit A.
1.8 “Service” means the on-line service delivered by Company to Customer using the Software hosted by Company and as made available by Company through the access methods described in this Agreement.
1.9 “Software” means Company’s proprietary computer software programs described in Exhibit A, including any updates and new releases thereto, made available to Customer (and its Users) under this Agreement in connection with the Service.
1.10 “Users” means Customer’s employees who are authorized by Customer to use the Service on behalf of Customer and have been supplied user identifications and passwords by Company for this purpose.
Service for the number of Users and the number of Cattle at the Location for which Customer has paid the applicable Fees (as defined below), solely for the performance of Customer’s internal business purposes in accordance with the Documentation, the limitations set forth in Exhibit A, if any, and the other terms and conditions of this Agreement. Customer may not use the Services at any location other than the Location, and may not use it for any Cattle who are not at the Location for at least 5 months out of the year.
2.2 Support and Service Levels. As part of the Service and subject to the terms and conditions of this Agreement, including, without limitation, Customer’s payment of all applicable Fees, Company will use commercially reasonable efforts to (a) ensure that the Software is accessible through the Company Site over normal network connections, excepting downtime due to necessary maintenance and troubleshooting; (b) maintain the security of the Service; and (c) provide telephone, e-mail and web-based support services during Company’s regular business hours for Software related questions. Customer is solely responsible for providing, at its own expense, all network access to the Service, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Service. Implementation, consulting and other professional services are not included under this Agreement, but may be provided by Company pursuant to a separate professional services agreement executed by the parties.
2.3 Access and Users. Each User will be assigned a unique user identification name and password (“User ID”) for access to and use of the Service. Customer shall be responsible for ensuring the security and confidentiality of its User IDs. User IDs may not be shared within Customer’s organization. Customer’s access and use of the Service will be limited to the number of Users for which Customer has paid the applicable Fees. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Company promptly of any such unauthorized use. If Customer wishes to add additional Users, Customer will submit a written request for more Users. Upon Company’s written approval of the terms of any such additional order, Company shall make the Service available to the additional Users on the terms and conditions set forth in this Agreement.
2.4 Proprietary Rights; Restrictions on Use. The Service, Software and Documentation, any content or materials therein, and in each case all worldwide Intellectual Property Rights therein, and all improvements, enhancements, or derivatives thereto are the exclusive property of Company and its licensors. All rights in and to the Service and Software not expressly granted to Customer in this Agreement are reserved by Company and its licensors. Customer is responsible for all activities that occur under Customer’s User accounts and will limit access to and use of the Service to authorized Users. Except as expressly permitted in this Agreement or as otherwise authorized by Company in writing, Customer will not, and will not permit any User to (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Service to any third party, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software ; (d) interfere in any manner with the operation of the Service; (e) remove, alter, or obscure any proprietary notices (including copyright notices) of Company or its licensors contained within the Documentation or displayed in connection with the Service (including Software); or (f) otherwise use the Service or the Software except as expressly allowed under this Agreement. Customer agrees not to engage in any of the following prohibited activities: (a) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (b) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Company servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Company grants the operators of public search engines revocable permission to use spiders to copy materials from the Company Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials); (c) transmitting spam, chain letters, or other unsolicited email; (d) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (e) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (f) uploading invalid data, viruses, worms, or other software agents through the Service; (g) collecting or harvesting any personally identifiable information, including account names, from the Service; (h) using the Service for any commercial solicitation purposes; (i) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (j) interfering with the proper working of the Service; (k) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (l) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; or (m) using the Service to create a competing product or service. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to users generally; or create usage limits for the Service. Company may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason.
2.5 Customer Data. Customer hereby grants to Company a non-exclusive, transferable, royalty-free, sublicensable, transferable right and license to use the Customer Data during the term of this Agreement for the limited purposes of performing Company’s obligations hereunder. Subject to the rights granted in this Agreement, Customer retains all right, title and interest in and to the Customer Data, and Company acknowledges that it neither owns nor acquires any additional rights in and to the Customer Data not expressly granted by this Agreement. Customer expressly acknowledges that Company may share Customer Data with its laboratory in order to performing any testing using a testing kit.
2.6 Customer Indemnity. Customer will defend, indemnify and hold harmless Company and its affiliated companies and each of their respective officers, directors, employees and agents from and against any claims, liabilities, losses, damages, judgments, awards, fines, penalties, costs and expenses (including reasonable attorneys’ fees and defense costs) which may be sustained or suffered by any of them arising out of or based upon any Customer Data or Customer’s (and its Users’) access to and use of the Service, except to the extent arising from Company’s breach of this Agreement or Company’s negligence or willful misconduct.
2.7 Usage Data. Company collects information and data on how the Services are used by customers (such as, but not limited to, demographic information, search terms used or how customer perform searches and information about the platform and workflow) (the “Usage Data”) and reserves the right to disclose to use, modify, and share such Usage Data in its discretion. Company owns all Usage Data and may use and share in its discretion. In the event any Customer Data is de-identified, Company and its agents, subcontractors and licensors may use and share such de-identified Customer Data without restriction in accordance with applicable laws.
3. FEES AND PAYMENT.
3.1 Fees. Customer will pay to Company the fees set forth in Exhibit A (“Fees”) for use of the Service under this Agreement based upon the number of Users.
3.2 Payment Terms. Company will invoice Customer for Fees pursuant to Exhibit A, and Customer will pay all Fees hereunder with thirty days after receipt of the applicable invoice. Upon ten (10) days prior written notice and Customer’s failure to cure, Company reserves the right (in addition to any other rights or remedies Company may have) to discontinue the Service and suspend all User ID’s and Customer’s access to the Service if any Fees are more than thirty (30) days overdue until such amounts are paid in full. All payments must be made in U.S. dollars. Outstanding balances shall accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Company’s reasonable costs of collection. All Fees due hereunder are exclusive of, and Customer shall pay and be responsible for, all sales, use and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement, except for taxes based upon Company’s net income.
4. WARRANTY DISCLAIMER.
4.1 Performance. During the Term, Company warrants that the Service, when used as permitted by Company and in accordance with the instructions in the Documentation, will operate as described in the Documentation in all material respects. Company does not warrant Customer’s use of the Service will be error-free or uninterrupted. Company will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, correct any reproducible error in the Service reported to Company by Customer in writing during the Term.
4.2 Disclaimers. THE EXPRESS WARRANTIES IN SECTION 4.1 ARE IN LIEU OF, AND COMPANY HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SOFTWARE AND THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 4.1, ACCESS TO THE SERVICE IS PROVIDED “AS IS” WITH ALL FAULTS. COMPANY DOES NOT MAKE ANY WARRANTIES THAT THE SERVICE WILL PROVIDE ANY PARTICULAR RESULTS OR DATA SETS. ALL USE OF THE DATA RESULTING FROM THE SERVICE IS WITHOUT WARRANTY AND AT CUSTOMER’S SOLE RISK. ALL TESTING KITS AND SUPPLIES ARE PROVIDED AS IS AND WITHOUT WARRANTY, AND COMPANY IS NOT RESPONSIBLE FOR ANY LOST, DAMAGED, TAINTED, OR OTHERWISE UNUSABLE TEST KITS.
5. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SERVICE OR THE SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
6.1 Protection. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
6.2 Exceptions. The Receiving Party’s obligations under Section 6.1 above with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6.3 Return of Information. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or upon the expiration or termination of this Agreement; provided, however, the Receiving Party may retain one (1) archival copy for record retention purposes and compliance with applicable law. Upon the request of the Disclosing Party, the Receiving Party will certify in a writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 6.3.
6.4 Injunctive Relief. Each party acknowledges that a breach or threatened breach of this Section 6 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 6 by the other party or any of its employees or agents.
7. INTELLECTUAL PROPERTY INDEMNIFICATION. Company will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Service (including the Software) infringes any U.S. patents or any copyrights or misappropriates any trade secrets of a third party, and Company will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer (a) notifying Company promptly in writing of such action, (b) giving Company sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Company’s request and expense, assisting in such defense. If the Service (including the Software) becomes, or in Company’s opinion is likely to become, the subject of an infringement claim, Company may, at its option and expense, either (i) procure for Customer the right to continue using the Service, (ii) replace or modify the Service so that it becomes non-infringing, or (iii) terminate this Agreement upon written notice to Customer and refund Customer any pre-paid but unused Fees. Notwithstanding the foregoing, Company will have no obligation under this Section 7 or otherwise with respect to any infringement claim based upon (A) any use of the Service (including the Software) not in accordance with this Agreement or the Documentation or for purposes not intended by Company, (B) any use of the Service (including the Software) in combination with other products, equipment or software not intended by Company to be used with the Service (including the Software), (C) any Customer Data, or (D) any modification of the Service (including the Software) by any person other than Company or its authorized agents or subcontractors. THIS SECTION 7 STATES COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
8. TERM; TERMINATION.
8.1 Term. The initial term of this Agreement will begin on the Effective Date and will continue for a period of time as set forth in Exhibit A (“Initial Term”), unless terminated earlier as provided herein. Thereafter this Agreement will automatically renew for additional periods of time as set forth in Exhibit A (each, a “Renewal Term”) unless a party notifies the other party in writing of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”
8.2 Termination. Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof.
8.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to Company under this Agreement before such termination or expiration will be immediately due and payable, all rights granted by Company to Customer in this Agreement will immediately cease to exist and Customer must discontinue all use of the Service and Software and return to Company or destroy all copies of Documentation and other Company Confidential Information in Customer’s possession or control. Sections 1, 2.4, 2.6, 2.7, 3, 4.2, 5, 6, 7, 8.3, and 9 together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.
9.1 Professional Services. During the term of the Agreement, the parties may agree on statements of work for professional services in the form attached to this Agreement as Exhibit B (each a “SOW”). A SOW shall only be binding if agreed to in writing by both parties. Company’s timely and proper performance of its obligations under a SOW is wholly contingent and dependent upon the nature, timeliness, and contents of those materials and information provided by Customer. Unless otherwise expressly set forth in the applicable SOW, Company (or its licensors) shall at all times own all right, title and interest in and to the deliverables and results of any professional services performed, including without limitation all code (both object code and source code), tools, routines, programs, designs, technology, ideas, processes, formulas, techniques, improvements, inventions and works of authorship, including, without limitation, related documentation which were previously owned or licensed to Company or which are made, developed, conceived or reduced to practice by Company in connection with this Agreement and/or the provision of professional services hereunder, and all intellectual property rights contained therein.
9.2 Non-Exclusive. This Agreement shall not be construed to limit or prohibit Company in any manner or fashion in providing products and/or services of any type of nature including those identical to the Service to any other customer in its sole discretion.
9.3 Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including the license rights granted to Customer to access the Service) to any third party without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Company may assign its rights and obligations under this Agreement to a parent, affiliate, or subsidiary, or to a successor, whether by way of merger, sale of all or substantially all of its assets or otherwise. Any attempted assignment of this Agreement not in accordance with this subsection shall be null and void.
9.4 Relationship of Parties. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
9.5 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party.
9.6 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier or internationally recognized overnight delivery service, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the first page of this Agreement, and will be effective upon receipt or when delivery is refused. Either party may change its address by giving notice of the new address to the other party. Notwithstanding, Company may provide effective notice to Customer at the email address Customer used to sign up for the Services.
9.7 Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of Colorado, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be brought in a federal or state court in Denver, Colorado, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
9.8 Remedies. Except as provided in Sections 4.1 and 7, the parties’ rights and remedies under this Agreement are cumulative. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
9.9 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.10 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Section 5 will remain in effect notwithstanding the unenforceability of any provision in Section 4.2.
9.11 Publicity. Customer hereby grants to Company the limited right to use Customer’s name and marks in marketing and publicity materials listing Customer as a customer of Company. Customer shall not release any reports, make any press releases, or otherwise make any public disclosures mentioning Company or the Service without Company’s prior written consent in each instance, such consent not to be unreasonably withheld.
9.12 Construction. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
9.13 Entire Agreement. This Agreement (including all exhibits and attachments) constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral regarding such subject matter. This Agreement may be amended only by a written document signed by both parties. Notwithstanding the foregoing, Company may notify Customer changes to the Agreement and such changes shall be effective (and this Agreement shall be automatically amended to incorporate those changes without actin by the parties) 30 days after Customer’s receipt of such notice.