MYFARM PLATFORM AGREEMENT
This MyFarm Platform Agreement (this “Agreement”) is a legal, binding contract between you, as an individual and on behalf of your business entity (“Customer”), and AgriSecure, LLC, a Nebraska limited liability company (“AgriSecure”) (each a “Party”; and collectively, the “Parties”).
- FEES AND PAYMENT TERMS. Customer agrees to pay to AgriSecure fees in the amounts and on the terms described in its Order Form (“Fees”). Unless otherwise agreed by the Parties in writing, all Fees are due and payable within thirty (30) days of the date of invoice. AgriSecure has the right to suspend Customer’s access to the Platform should Customer default in the payment of Fees, or any part thereof. AgriSecure reserves the right to impose a processing fee for any Customer Data that is not distributed after its submission to AgriSecure. Any late payment of fees shall accrue interest at the rate of one and one-half percent (1-1/2%) per month or the highest allowable legal rate, whichever is less, commencing on the date when such payment was due.
- USE RESTRICTIONS. The Platform, any documentation of AgriSecure or any tangible or intangible property of AgriSecure, including, without limitation, the underlying software of the Platform, together with all copies, reproductions, enhancements, modifications, edits, adaptions or derivative works thereof, and all enhancements, modifications, edits, additions, adaptions or derivative works of Customer Data made by AgriSecure or the Platform in accordance with the license granted to it in Section 2 or by Customer or Authorized Users via their respective use of the Platform are collectively “AgriSecure Property.” Customer and Authorized Users will not use AgriSecure Property for any purposes beyond the scope of the access to the Platform granted in this Agreement. Customer and Authorized Users will not at any time, directly or indirectly, and will not permit any third party to: (a) copy, modify, or create derivative works of AgriSecure Property, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available AgriSecure Property; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (d) remove any proprietary notices from AgriSecure Property; or (e) use AgriSecure Property in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity or that violates any Law. Customer will cause all Authorized Users to comply at all times with all representations, warranties, covenants, obligations and restrictions in this Agreement. Customer will be liable to AgriSecure for any breach by any Authorized User of any representation, warranty, covenant, obligation or restriction in this Agreement.
- INTELLECTUAL PROPERTY. Notwithstanding anything to the contrary herein or elsewhere, Customer acknowledges and agrees that, and will cause all Authorized Users to acknowledge and agree that, AgriSecure and its licensors and service providers are the owners of all right, title and interest in and to all AgriSecure Property, and all copyrights, trade secrets, patents, trademarks and other intellectual property rights therein. Customer acknowledges and agrees that, and will cause all Authorized Users to acknowledge and agree that, AgriSecure Property is protected by United States and international copyrights, patents, trademarks, service marks, trade secrets or other proprietary and intellectual property rights and laws, as applicable. Customer acknowledges and agrees that, and will cause all Authorized Users to acknowledge and agree that, it claims no proprietary rights in any AgriSecure Property. Customer hereby assigns to AgriSecure, and Customer will cause all Authorized Users to assign to AgriSecure, all right, title and interest, including all intellectual property rights, in and to AgriSecure Property. The AgriSecure Property may be used only in accordance with the terms and conditions of this Agreement. All pending and/or registered trademarks and service marks, and other graphics, logos, and trade names used by AgriSecure in connection with the Platform, and any other products or services offered by AgriSecure are the trademarks of AgriSecure or its licensors or service providers. Customer hereby grants AgriSecure a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Customer communicates to AgriSecure, without compensation, without any obligation to report on such use, and without any other restriction. AgriSecure’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses under copyright, patent, and any other form of intellectual property. “Feedback” means any suggestion or idea for modifying any of AgriSecure’s Platform or any other products or services.
- CONFIDENTIAL INFORMATION.
5.1 “Confidential Information” means the following items AgriSecure (“Discloser”) discloses or makes available Customer (“Recipient”): (a) any document Discloser marks “confidential”; (b) any information Discloser orally designates as “confidential” at the time of disclosure; and (d) any other nonpublic or proprietary information Recipient should reasonably consider confidential or proprietary, whether or not marked “confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s lawful possession at the time of disclosure without confidentiality restrictions; (ii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iii) is approved for release in writing by Discloser.”
5.2 Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (“Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and is subject to a written agreement with Recipient with nondisclosure terms no less restrictive than those of this Section 5; and (b) shall not disclose or make available Confidential Information to any other third party without Discloser’s prior written consent. Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information to the extent required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest, limit, or protect such required disclosure, at Discloser’s expense.
5.3 Recipient agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Section 5; (b) it would be difficult to determine the damages resulting from its breach of this Section 5, and such breach would cause irreparable harm to Discloser; and (c) a grant of injunctive relieve provides the best remedy for any such breach, without any requirement that Discloser prove actual damage or post a bond or other security. Recipient waives any opposition to such injunctive relief or any right to such proof, bond, or other security. This Section 5.3 does not limit either party’s right to injunctive relief for breaches not listed. Upon termination or expiration of this Agreement for any reason, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
- CANCELLATION, TERM AND TERMINATION. This Agreement will remain in effect for so long as Customer or any Authorized User accesses the Platform. AgriSecure reserves the right to terminate or suspend access to the Platform without notice or liability if it has reason to believe that Customer or any Authorized User is in breach of any term or condition of this Agreement or upon the termination or expiration of the duration of Platform access for which AgriSecure has been paid. The terms of the following Sections will survive any termination or expiration of this Agreement: 2, 3, 4, 5, 6, 7, 8, 9, 11 and 12.
- LIMITATION OF LIABILITY. IN NO EVENT WILL AGRISECURE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY CUSTOMER OR ANY AUTHORIZED USER OR THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR NEGLIGENCE, EVEN IF AGRISECURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY OF THE LIMITED REMEDIES OF THIS AGREEMENT FAIL TO FULFILL THEIR ESSENTIAL PURPOSE. IN NO EVENT WILL AGRISECURE’S AGGREGATE LIABILITY UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER IN AN ACTION IN CONTRACT, TORT OR NEGLIGENCE, EXCEED FEES PAID BY CUSTOMER TO AGRISECURE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
- NO AGRISECURE WARRANTY. AGRISECURE RESERVES THE RIGHT TO CHANGE, ADD OR REMOVE FUNCTIONALITIES OF THE PLATFORM FROM TIME TO TIME AT AGRISECURE’S SOLE DISCRETION. MALFUNCTION OR CESSATION OF INTERNET SERVICES BY INTERNET SERVICE PROVIDERS OR OF ANY OF THE NETWORKS THAT FORM THE INTERNET MAY MAKE AGRISECURE PROPERTY TEMPORARILY OR PERMANENTLY UNAVAILABLE. AGRISECURE PROPERTY ARE PROVIDED TO CUSTOMER AND AUTHORIZED USERS “AS IS.” AGRISECURE GIVES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO AGRISECURE PROPERTY. AGRISECURE HEREBY DISCLAIMS, AND CUSTOMER AND AUTHORIZED USERS EXPRESSLY WAIVE, ALL REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR AND WITHOUT LIMITING THE FOREGOING, AGRISECURE MAKES NO WARRANTIES THAT (A) THE PLATFORM WILL MEET CUSTOMER’S OR AUTHORIZED USERS’ REQUIREMENTS, (B) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, PLATFORMS, DELIVERABLES, INFORMATION OR OTHER MATERIAL RECEIVED OR OBTAINED BY CUSTOMER OR AUTHORIZED USERS THROUGH THE PLATFORM WILL MEET CUSTOMER’S OR AUTHORIZED USERS’ EXPECTATIONS, OR (E) ANY ERRORS IN THE SOFTWARE USED TO OPERATE THE PLATFORM WILL BE CORRECTED. ALL AGRISECURE PROPERTY, INCLUDING WITHOUT LIMITATION ANY MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM, ARE ACCESSED AT CUSTOMER’S AND AUTHORIZED USERS’ OWN DISCRETION AND RISK, AND CUSTOMER AND AUTHORIZED USERS WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS RESPECTIVE COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, AGRISECURE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. AGRISECURE’S DISTRIBUTION LISTS MAY CHANGE FROM TIME TO TIME, AND AGRISECURE DOES NOT GUARANTEE DISTRIBUTION OF CUSTOMER DATA TO ANY SPECIFIC DISTRIBUTION POINT. AGRISECURE DOES NOT GUARANTEE THAT ANY CUSTOMER DATA WILL BE PICKED UP BY ANY WEBSITE, MEDIA OUTLET OR MEMBER OF THE MEDIA.
- INDEMNIFICATION. Customer agrees to indemnify, defend and hold AgriSecure and its respective affiliates, distributors, resellers, licensors, service providers, contractors, customers, members, managers, employees, agents, representatives, successors and permitted assigns, harmless from and against any and all claims, suits, actions, proceedings, litigation, investigations, subpoenas, damages, settlements, costs, liabilities, losses, fines, penalties, and expenses of any nature whatsoever (including, but not limited to, reasonable legal fees) arising out of, based upon, relating to or resulting from: (a) the use or access of, or reliance on, the Platform or AgriSecure Property, or any part thereof, by Customer or any Authorized User or other third party whose access to or reliance on such AgriSecure Property is made available, directly or indirectly, by, through or because of Customer; (b) the use, access or distribution of Customer Data by Customer or any Authorized User or other third party whose access to such Customer Data is made available, directly or indirectly, by, through or because of Customer; (c) the use, access, distribution or publication of Customer Data by AgriSecure; (d) content of Customer Data; (e) any negligent or willful act or omission by Customer or any Authorized User; or (f) any breach of any representation, warranty, covenant or obligation in this Agreement by Customer or any Authorized User.
- FORCE MAJEURE. In no event will AgriSecure be liable to Customer or any Authorized User, or be deemed to have breached this Agreement or any other agreement between the Parties, for any failure or delay in performing its obligations under this Agreement or such other agreement, if and to the extent such failure or delay is caused by any circumstances beyond AgriSecure’s reasonable control, including but not limited to failures of the internet, computer systems or communications networks, pandemics, epidemics, acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- GOVERNING LAW; WAIVER OF JURY TRIAL. This Agreement is governed by and construed in accordance with the internal laws of the State of Nebraska 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 Nebraska. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal or state courts in Omaha, Nebraska and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Notwithstanding the foregoing, AgriSecure may seek injunctive relief in any court of competent jurisdiction. Each Party hereby irrevocably waives its right to a trial by jury in connection with any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder.
- AMENDMENT. AgriSecure may amend this Agreement from time to time by posting an amended version at its website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives AgriSecure written notice of rejection of the amendment. In case of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next renewal term following the Proposed Amendment Date. Customer’s continued use of the Platform following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each Party.
- ENTIRE AGREEMENT; SEVERABILITY; SUCCESSORS AND ASSIGNS. This Agreement, together with any Order Form, other documents incorporated herein by reference and all agreements between the Parties regarding payment of Fees by Customer, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter, and will bind and inure to the benefit of the Parties and their successors and assigns. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
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