NOTICE: READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING, ACCESSING, COPYING OR USING THE SOFTWARE ACCOMPANYING THIS AGREEMENT. CLICKING ON THE "I ACCEPT" BUTTON BELOW, OR IN ANY OTHER WAY INSTALLING, ACCESSING, COPYING OR USING THE SOFTWARE, CREATES A LEGALLY ENFORCEABLE CONTRACT AND CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.
RETURN: IF YOU ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU MUST CLICK ON THE "CANCEL" BUTTON BELOW, AND YOU MUST NOT INSTALL, ACCESS, COPY OR USE THE SOFTWARE, AND YOU MUST, WITHIN 3 DAYS, DELETE AND PERMANENTLY ERASE FROM ALL COMPUTER MEMORIES AND STORAGE MEDIA ALL COPIES OF THE SOFTWARE AND DOCUMENTATION, AND TO OBTAIN A REFUND, YOU MUST NOTIFY LICENSOR IN WRITING THAT YOU HAVE COMPLIED WITH THE FOREGOING.
THIS AGREEMENT MAY BE AMENDED OR MODIFIED BY LICENSOR BY POSTING AN UPDATED VERSION OF THIS AGREEMENT. YOUR CONTINUED USE OF THE SOFTWARE AFTER ANY SUCH AMENDMENTS OR MODIFICATIONS CONSTITUTES YOUR ACCEPTANCE OF THE AMENDED OR MODIFIED AGREEMENT.
This End-User License Agreement (the "Agreement"), effective as of the date you accept the terms hereof (unless returned as specified above, the "Effective Date"), is entered into between AgWizard LLC, with an address at 1089 Jordan Creek Parkway, Suite 240, West Des Moines, IA 50266 USA ("Licensor") and Licensee (as defined below). The parties agree as follows:
"Documentation" means the user guide, help information and/or other documentation provided by Licensor with the Software.
"Licensee" means the User, together with the business or other entity for which the Software is obtained.
"Software" means any Licensor computer program (in object code) accompanying this Agreement.
"Updates" means, if applicable, any patch, update or new version of the Software delivered to Licensee pursuant to the Support Services.
"User" means you, the individual who accepts this Agreement, not any other person.
2.1 Software. Subject to all terms and conditions in this Agreement, Licensor grants Licensee a limited, nonexclusive, nontransferable, non-sublicenseable right and license to have the User use the Software and Documentation without modification.
2.2 Limitations. User may use one (1) copy of the Software solely for Licensee's internal business purposes, and only on one (1) computer. However, subject to the same use limitations and restrictions, User may make a second copy and install it either on a portable or on a home computer under his or her control, provided that: (a) both copies of the Software are not used at the same time, and the portable/home computer copy is used solely as allowed for such version or edition (e.g., educational use only); and (b) the second copy of the Software is not installed or used after the time such User is no longer the primary user of the computer on which the primary copy of Software is installed.
2.3 License Control. Licensee acknowledges that the Software may contain code or require devices that detect or prevent unauthorized use of, or disable, the Software.
2.4 License Fees. Licensee will pay all applicable fees for the Software and the license granted herein, which fees may be set forth in an order form (whether paper-based or electronic) or purchase terms issued by Licensor or by any contractor or agent of Licensee or any reseller or co-marketer of the Software that has a relationship with Licensee (each, an “Advisor”), in accordance with the payment terms set forth in any such form or terms. In some situations, these fees may be paid by an Advisor.
3.1 Support. Licensor will use commercially reasonable efforts to provide Licensee with Software maintenance and support in accordance with its standard practices (as amended from time to time, "Support Services"). Licensor shall have no obligation to support any version other than the then current and immediate prior version. Licensee agrees that Licensor may charge in accordance with its then current policies for any support services resulting from (a) problems, errors or inquiries relating to any hardware, system, service or other software or (b) use of any unsupported version of the Software.
3.2 Updates. Licensor will provide Licensee with any Update that it makes generally available to its other licensees which have purchased the same level of support. Any Update delivered by Licensor shall be treated as Software for all purposes under this Agreement.
4.1 Scope. The term "Confidential Information" means all trade secrets, know-how, software and other financial, business or technical information of Licensor or any of its suppliers that is disclosed by or for Licensor in relation to this Agreement, but not including any information Licensee can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the Licensor, (b) generally available to the public without, US.56583339.02 and prior to any, breach of this Agreement or (c) independently developed by it without reliance on or use of such information. All Software and Documentation is Confidential Information.
4.2 Confidentiality. Except for the specific rights granted by this Agreement, Licensee shall not possess, use or disclose any Confidential Information without Licensor's prior written consent, and shall use reasonable care to protect the Confidential Information. Licensee shall be responsible for any breach of confidentiality by its employees.
5.1 Restrictions. Licensee shall not (a) use any Confidential Information to create any software or documentation that is similar to any Software or Documentation, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Software (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, lease, rent, loan, sublicense, transfer or distribute any Software, (d) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Software or Documentation, (e) use the Software in an automated process, (f) use the Software, or allow the transfer, transmission, export or re-export of all or any part of the Software or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (g) permit any third party to engage in any of the foregoing proscribed acts. Licensee shall not use the Software for the benefit of any third party without Licensor's prior written consent, at its discretion.
5.2 No Implied License. Except for the limited rights and license expressly granted hereunder, no other license is granted, no other use is permitted and Licensor (and its suppliers) shall retain all right, title and interest in and to the Software and Documentation (and all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein).
5.3 Markings. Licensee shall not alter, obscure or remove any copyright, trademark, patent notice or other proprietary or legal notice displayed by or contained in any Software, Documentation or packaging.
5.4 Third Party Software. The Software may operate or interface with software or other technology ("In-Licensed Code") that is in-licensed from, and owned by, third parties ("Third Party Licensors"). Licensee agrees that (a) it will use In-Licensed Code in accordance with this Agreement and any other restrictions specified in the applicable license set forth or referenced in the Documentation, (b) no Third Party Licensor makes any representation or warranty to Licensee concerning the In-Licensed Code or Software and (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee's use of the InLicensed Code.
5.5 Data. Licensee hereby grants Licensor a perpetual, irrevocable, fully paid-up, sublicensable license to use, reproduce, transmit, display, perform, distribute and create derivative works of any and all data or information provided or transmitted to the Software by or on behalf of Licensee or any Advisor (collectively “Data”) (i) in connection with the provision of the US.56583339.02 Software and the performance of services for Licensee (whether by Licensor or an Advisor); or (ii) for any of Licensor’s business purposes (and including through third parties or sublicensees) so long as the Data is used in a manner that does not identify Licensee or Users as the source of the Data. Licensee represents and warrants that it has the right to provide the Data to Licensor and for Licensor to exercise all rights under the foregoing license and that it has obtained any and all necessary consents in connection with the foregoing. Licensee also acknowledges that Licensor is not responsible or liable for any errors or inaccuracies in the Data or for any results obtained through use of the Software or any Data.
THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR SUPPORT SERVICES WILL MEET LICENSEE'S REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
IN NO EVENT SHALL LICENSOR (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SUPPORT SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AGGREGATE DAMAGES, IN EXCESS OF THE AMOUNT PAID TO LICENSOR FOR THE SOFTWARE OR SUPPORT SERVICE THAT GAVE RISE TO THE CLAIM DURING THE PRIOR 3-MONTH PERIOD, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
8.1 Term. Except as set forth in any order form or purchase terms, this Agreement shall commence on the Effective Date and continue in effect for one (1) year and will automatically US.56583339.02 renew for successive one (1) year periods unless either party provides written notice of termination at least thirty (30) days in advance.
8.2 Termination. This Agreement shall automatically terminate without further action by any party, immediately upon any material breach by Licensee of any limitation or restriction set forth in Section 2 or 5. Further, either party may terminate this Agreement if the other party materially breaches any term or condition of this Agreement and the breach is not cured within thirty (30) days of notice of the breach.
8.3 Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement shall survive any termination, (b) Licensee shall promptly return or destroy all Software and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media and (c) the provisions of Sections 2.4 (License Fees), 4 (Confidentiality), 5 (Proprietary Rights), 6 (Warranty Disclaimers), 7 (Limitation of Liability), 9 (General Provisions) and this Section 8 shall also survive.
9.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in Licensee's Purchase Order (or any similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by Licensee. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa, without regard to its conflicts of law provisions.
9.3 Remedies. Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Licensee agrees that, in the event of any breach or threatened breach of Section 4 or 5, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
9.4 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested. Notices shall be delivered to the address US.56583339.02 specified by Licensee when the Software was ordered, or to the address above for Licensor, as the case may be, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
9.5 Assignment. This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without Licensor's prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Licensee's consent, Licensor may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
9.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
9.7 License to the Government. If any user of the Software or Documentation is a department, agency or other entity of the United States Government, the use, duplication, reproduction, modification, release, disclosure or transfer of the Software and Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer software and the Documentation is commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement.
9.8 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS ARE MATERIAL BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT BY EACH PARTY AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY HEREUNDER AND IN THE DECISION TO ENTER INTO THIS AGREEMENT.
9.9 Acknowledgment. Licensee acknowledges that (a) it has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Licensor requires identification of the User and Licensee before issuing this license and (e) issuance of this license does not constitute general publication of the Software or any other Confidential Information.