END-USER LICENSE AGREEMENT (“EULA”)
THIS END-USER LICENSE AGREEMENT (“EULA”), TOGETHER WITH ANY APPLICABLE VAS ORDER CONFIRMATION THAT REFERENCES THIS EULA (COLLECTIVELY, THE “AGREEMENT”), IS BETWEEN VALLEY AGRICULTURAL SYSTEMS, INC., A CORPORATION INCORPORATED UNDER THE LAWS OF CALIFORNIA (“VAS”) AND ANY AND ALL OF ITS AFFILIATES AND VALUE ADDED RESELLERS, AND THE CUSTOMER INCLUDING ALL OF ITS WHOLLY OWNED SUBSIDIARIES (COLLECTIVELY, THE “CUSTOMER”). VAS and Customer are referred to collectively in this Agreement as the “Parties” and individually as a “Party”. For purposes of this Agreement, an “Affiliate” with respect to VAS shall mean any entity, including without limitation, any individual, corporation, company, partnership, limited liability company, cooperative, organization or group which on or after the Effective Date, directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with VAS, including, but not limited to, AgSource Cooperative Services, and a “Value Added Reseller” is any entity, including without limitation, any individual, corporation, company, partnership, limited liability company, cooperative, organization or group that is authorized by VAS or an Affiliate to sell Licensed Software.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND VAS REGARDING THE VAS SOFTWARE PRODUCTS (“LICENSED SOFTWARE”) AND THE MAINTENANCE AND SUPPORT AND PROFESSIONAL SERVICES THAT ARE LISTED ON THE ORDER CONFIRMATION FORM. BY INSTALLING OR USING THE LICENSED SOFTWARE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND AGREES TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
PLEASE NOTE THAT THE TERMS OF THIS AGREEMENT SHALL GOVERN CUSTOMER’S USE OF THE LICENSED SOFTWARE, REGARDLESS OF ANY TERMS THAT MAY APPEAR DURING THE INSTALLATION OF THE LICENSED SOFTWARE.
IMPORTANT – READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE LICENSED SOFTWARE, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT DOWNLOAD, INSTALL, OR USE THE LICENSED SOFTWARE, AND CUSTOMER MUST DELETE OR RETURN THE UNUSED LICENSED SOFTWARE TO VAS (OR THE VENDOR FROM WHICH YOU ACQUIRED IT) WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, THAT CUSTOMER PAID FOR THE LICENSED SOFTWARE.
1. Grant of Limited License. The Licensed Software, which includes all configurable and executable application content, whether such content is preinstalled on or included with a hardware product, acquired separately, or downloaded from a VAS web site or a third-party website approved by VAS, is licensed to Customer for use subject to the terms of this Agreement. VAS hereby grants to Customer and Customer fully accepts, upon delivery, a nonexclusive, revocable, personal and nontransferable (unless terminated as provided below) right to use only the executable version (no source code) of the Licensed Software. Customer’s authorized concurrent users of the Licensed Software may include Customer, their employees and authorized representatives, agents and contractors.
2. Intellectual Property Rights.
2.1 Definition and Ownership. For purposes of this Agreement, the term “Intellectual Property” means, collectively, and without limitation: (i) the Licensed Software and all technology related to the Licensed Software and all modifications, enhancements and additions thereto and any intellectual property rights related to the Licensed Software, technologies, modifications, enhancements, and additions; and (ii) all trade or brand names, business names, domain names, trademarks (including logos), trademark registrations and applications, service marks, service mark registrations and applications, copyrights, copyright registrations and applications and any and all improvements and derivative works thereof, issued patents and pending applications and other patent rights, industrial design registrations, pending applications and other industrial design rights, trade secrets, know-how, equipment and parts lists and descriptions, instruction manuals, inventions, investors’ notes, data, blueprints, drawings and designs, formulae, processes and technology and other proprietary information owned or licensed by VAS, including the goodwill associated therewith.
Customer acknowledges and agrees that the Intellectual Property will at-all-times remain the sole and exclusive property of VAS, and Customer will have no right, title or interest therein or thereto other than as specifically provided for in this Agreement. For greater certainty, in the event that any interest in any of the Intellectual Property, or any part thereof, vests in Customer, Customer hereby assigns to VAS all of the right, title and interest Customer has, or may acquire, in any of the Intellectual Property and in any patent, copyright, industrial design, trademark, trade secret, and other similar right (including all moral rights) pertaining to the Intellectual Property.
2.2 Limitations on use of Licensed Software and Intellectual Property. The Licensed Software is licensed, not sold, to the Customer. As such, Customer shall not, and shall not allow any third party to, directly or indirectly: (i) copy the technology related to the Licensed Software, including source and object code, (ii) modify, decompile, disassemble, or reverse engineer the Licensed Software, including source and object code, (iii) rent, lease, resell, distribute or use the Licensed Software to unauthorized third parties, (iv) remove or alter any proprietary notices or labels on the Licensed Software; (v) engage in any activity that interferes with or disrupts the Licensed Software and its corresponding services; (vi) use or attempt to use disabled features in the Licensed Software, (vii) install on the Licensed Software any other software not provided by VAS, unless expressly approved in writing by VAS, or (vii) allow or encourage any third party to do any of the foregoing.
Customer will not use, directly or indirectly, in whole or in part, any Intellectual Property except in the manner and to the extend provided for herein or as may from time-to-time be agreed to in writing by VAS, and will not in any way modify or alter any of the Intellectual Property without the prior written consent of VAS, which consent may be withheld by VAS in its sole discretion. Customer will not take any action, or omit or fail to take any action, that would reasonably be expected to in any way infringe upon or harm any of the Intellectual Property, and Customer will not in any way contest the validity of any of the Intellectual Property.
2.3 Potential Infringement of Intellectual Property. VAS is not under any obligation to take legal action to protect the Intellectual Property. Nonetheless, Customer will immediately notify VAS of any infringement of the Intellectual Property that comes to Customer’s attention, and must assist VAS in the protection of the Intellectual Property by furnishing VAS with all available relevant information relating to such infringement in a timely manner.
Customer acknowledges and agrees that failure of Customer to comply with the provisions of this Agreement intended to protect the Intellectual Property may cause immediate and irreparable harm to VAS. Accordingly, in the event of a violation, or threatened violation, of this Agreement, in addition to any other right or remedy, VAS will be entitled to equitable relief by way of, temporary or permanent injunction.
3. Customer Obligations and Warranties. Customer represents and warrants to VAS that, as of the Effective Date, it has no knowledge of any defect related to the Licensed Software, of any filed or threatened claim for infringement related to the Licensed Software or any failure of the Licensed Software to comply with appropriate safety standards related to and in connection with the Licensed Software.
To the maximum extent permitted under applicable law VAS shall have no responsibility whatsoever regarding Third Parties’ Services and makes no representation or warranty of any kind, either express or implied, regarding any such Third Parties’ Services including such services’ non infringement of third parties’ rights, accuracy, usefulness, safety of use or full compliance with applicable law. Customer hereby waives any and all claims and causes of action against VAS in connection with any loss or damage Customer may suffer as a result of, or in connection with any of such Third Parties’ Services. Customer hereby acknowledges that third parties which provide content or services through the Licensed Software or in connection thereto may change their policies’ terms condition or guidelines with respect to such content or services.
4. Confidentiality. Each Party agrees (a) to hold the other Party’s Confidential Information in strict confidence; (b) to not disclose such Confidential Information to any third party; and (c) to not use the other Party’s Confidential Information for any purpose other than as permitted by this Agreement. Each Party will use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Each Party may disclose the other Party’s Confidential Information to its employees who are informed of this confidentiality obligation and who have a bona fide need to know such information, and to its auditors, consultants, contractors, or legal advisors that are bound by a confidentiality obligation substantially similar to those set forth herein.
If either Party is compelled by a judicial or administrative proceeding or by any governmental or regulatory authority to disclose any Confidential Information of the other Party, the compelled person or entity will furnish only that portion of such Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be afforded such Confidential Information. The obligations in this Section 4 shall survive the termination of this Agreement and shall continue in effect with respect to all items of Confidential Information.
“Confidential Information,” for purposes of this Agreement, shall mean all confidential and proprietary information of a Party, whether in oral, written, or other tangible form, that the Party disclosing the information designates as being confidential. Confidential Information includes, but is not limited to, all information regarding the Licensed Software and Customer’s use of the Licensed Software. Confidential Information does not include information that (a) is now, or hereafter becomes, through no act or failure on the part of the receiving Party, generally known or available to the public; (b) is information that was independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information; or (c) is necessary to be disclosed in order to establish the rights of either Party under this Agreement.
6. Data Ownership.
6.1 Raw Data. Customer owns the data gathered or created by Customer that is inputted by Customer into the Licensed Software (the “Raw Data”). Customer represents and warrants that (i) Customer owns all right, title, and interest in the Raw Data; and (ii) Customer’s submission, storage, and handling of the Raw Data (including the exercise by VAS of their rights according to the terms provided herein) shall not infringe (a) any applicable law, and (b) the rights of any third party (including such third party intellectual property or privacy); and (iii) Customer shall make best efforts to ensure the Raw Data it submits, stores, and makes available to VAS is true, complete, and accurate.
Customer hereby grants VAS a worldwide, irrevocable, unconditional, royalty free, and perpetual license, with the right to upload and store the Raw Data on its servers as part of its cloud services, and to copy, modify, use, distribute, prepare derivative works, perform, display and otherwise exploit the Raw Data in connection with operation of the Licensed Software, including in order to perform its obligations under this Agreement and/or improve VAS’ services and products and/or develop new products and/or services.
6.2 Computational Data. VAS owns the data produced, processed, organized, or formatted by VAS and/or the Licensed Software even if that data incorporates, is based on, is related to, arises out of, is a copy of, or uses Raw Data (“Computational Data”). For greater certainty, VAS shall have the right to generate averaged data, aggregated data, benchmarks, analytics (such as usage habits), comparisons or recommendations using or based on Raw Data, and to generate other calculations, derivatives, using, containing or referencing Raw Data, and aggregate Raw Data with or without data relating to third parties, (the products of the foregoing activities shall be included in the definition of Computational Data). Customer shall not have a right to consideration or any other right or interest arising from the creation or exploitation of Computational Data. VAS grants to Customer a limited, non-exclusive and royalty-free license to use the Computational Data in the operation of Customer’s primary business during the term of this Agreement. This license to use Computational Data terminates immediately and automatically upon the expiration or termination of this Agreement.
Customer acknowledges and agrees that the Computational Data will at-all-times remain the sole and exclusive Intellectual Property of VAS, and Customer will have no right, title or interest therein or thereto other than as specifically provided for in this Agreement. For greater certainty, in the event that any interest in any of the Computational Data, or any part thereof, vests in Customer, Customer hereby assigns to VAS all of the right, title and interest Customer has, or may acquire, in any Computational Data.
6.2.1 Anonymity of Computational Data. Without derogating from the above, VAS shall undertake reasonable efforts to not disclose the identity of the Customer when disclosing Computational Data to third parties. Reasonable efforts include encrypting all passwords in the VAS database and sending traffic between VAS controlled systems over encrypted channels.
6.2.2 Disclosure of Anonymized Computational Data to Third Parties. Unless Customer has signed a separate data release agreement with VAS, VAS reserves the right at all times to share or otherwise commercialize the anonymized Computational Data pursuant to 6.2.1 with any entity, including without limitation, any individual, corporation, company, partnership, limited liability company, cooperative, organization or group without prior approval or consent of Customer. In the event that Customer has signed a separate data release agreement with VAS, the terms of that data release agreement shall be controlling upon VAS’ disclosure rights regarding Computational Data.
6.3 Sui Generis Database Rights. VAS also creates and maintains databases that are governed by Sui Generis Database Rights. VAS owns all Sui Generis Database Rights in any database hosted, produced, created, originated, formed or formatted using Licensed Software. Sui Generis Database Rights means any rights derived from Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on
the legal protection of databases, as amended or succeeded, in addition to any other equivalent rights anywhere in the world.
Customer acknowledges and agrees that the Sui Generis Database Rights will at-all-times remain the sole and exclusive property of VAS, and Customer will have no right, title or interest therein or thereto other than as specifically provided for in this Agreement. For greater certainty, in the event that any interest in any of the Sui Generis Database Rights, or any part thereof, vests in Customer, Customer hereby assigns to VAS all of the right, title and interest Customer has, or may acquire, in any Sui Generis Database Rights.
7. Third-Party Use. Customer shall promptly inform VAS in writing from time-to-time as to any problems encountered with the Licensed Software, including and any breaches or potential breaches of this Agreement by any third party of which Customer becomes aware. VAS shall have the right, but not the obligation, to make modifications to the Licensed Software based upon Customer’s report of unauthorized third-party use. Any modifications made to the Licensed Software based on such feedback shall be the sole property of VAS.
Customer acknowledges that VAS’ Licensed Software and Computational Data constitute valuable proprietary and Confidential Information of VAS and that unauthorized dissemination or disclosure of VAS’ Confidential Information could cause VAS irreparable harm. As such, Customer shall take reasonable steps to safeguard VAS’ Confidential Information and implement reasonable security practices against any unauthorized copying, use, disclosure, access, damage, reverse engineering, or destruction of VAS’ Confidential Information.
8. License Fee Payment. Customer shall pay VAS a non-refundable license fee in the amount specified in the VAS Order Confirmation Form or any similar Affiliate purchase order document. This license fee is separate from the purchase price of any hardware products and equipment accompanying the Licensed Software, but may include an implementation fee and recurring subscription fees to use the Licensed Software. If Customer does not comply with the license fee payment obligations, VAS shall be entitled to terminate Customer’s right to use the Licensed Software under this Agreement.
9. Restrictions. To the maximum extent permitted by applicable law, Customer may not resell or otherwise transfer for value the Licensed Software without the written consent of VAS, which consent may be withheld by VAS in its sole discretion. Customer may not export, ship, transmit, or re-export the Licensed Software in violation of any applicable law or regulation, including, without limitation, the Export Administration Regulations issued by the United States Department of Commerce and the United States trade embargoes and economic sanctions administered by the U.S. Treasury Department, Office of Foreign Assets Control, or any such similar law or regulation issued by such other governmental entity which may have jurisdiction over such export. Customer agrees not to: (i) modify, adapt, alter, decompile, disassemble, translate, or reverse engineer the object code portions of the Licensed Software; (ii) distribute, rent, lease or lend the Licensed Software to any third party; (iii) merge the Licensed Software with other software; or (iii) use the Licensed Software except as expressly permitted under this Agreement.
Customer acknowledges and agrees that, in addition to VAS’s Intellectual Property rights in and to the Licensed Software, the structure, organization, and source and object code of the Licensed Software constitute valuable trade secrets of VAS and that Customer has no right to the source or object code of the Licensed Software. At the direction of VAS, Customer shall include, on or within all copies of the Licensed Software made or distributed by Customer, all proprietary rights notices of VAS.
10. Safeguards. Customer shall maintain all appropriate physical, electronic and procedural safeguards to store and secure the Computational Data, and to protect the Licensed Software from any unauthorized access, use, disclosure, alteration, loss or destruction. Such safeguards shall include any encryption required
by VAS. In addition, Customer shall use and maintain any other security safeguards that are reasonably requested by VAS to protect the Computational Data. Customer shall notify VAS immediately upon discovery or notification of any unauthorized access, use or disclosure of Computational Data, and to take action immediately, at its own expense, to investigate any such unauthorized access, use or disclosure and to identify, prevent and mitigate the effects thereof.
11. Competing Products; Conduct of Business. Customer acknowledges and agrees that: (i) it is not currently in the business of producing or distributing any product, service or technology that is similar to or competitive with the Licensed Software (“Competing Products”), and (ii) any production or distribution of any Competing Product by Customer after Customer has had access to the Licensed Software, would almost certainly rely on, be built on or include the Licensed Software. Accordingly, Customer agrees that except as expressly authorized under this Agreement, during the Term and for a period of two years after any termination or expiration of this Agreement, Customer will not directly or indirectly produce, manufacture, market, promote, distribute, license, sell, or offer for sale any Competing Product. Customer further agrees that at all times it shall conduct their business in a manner that favorably reflects upon the Licensed Software and that they shall not at any time engage in any activity which would defame the name or status of VAS. Without limiting the foregoing, Customer agrees that it shall not, directly or indirectly, use any software, know-how, ideas, processes, algorithms or similar information underlying or embodied within the Licensed Software to directly or indirectly develop or assist a third party in the development of any product, hardware, firmware, software or other code which performs or is intended to perform the same processes or deliver similar functionality as the Licensed Software.
12. Obsolescence. VAS acknowledges that Customer is making a significant resource commitment to acquire the Licensed Software and that Customer does not want to involuntarily move to new software or systems in order to utilize the Licensed Software. Accordingly, provided that Customer continues to fulfill all its payment obligations, VAS shall continue to make maintenance and support available to Customer for the then-current version, release, or updates of the Licensed Software for no less than one (1) year from the installation date. Within that time, VAS may also provide an upgrade path to migrate to a new version, release, or update of the Licensed Software.
13. No Warranty; Disclaimer. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS REGARDING THE LICENSED SOFTWARE INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED BY VAS. VAS shall not be liable if the Licensed Software introduces any virus or such disabling code or commands into any of Customer’s equipment. Customer hereby accepts the Licensed Software in its “AS- IS” condition. Some states do not allow certain warranty limitations, so the restrictions will apply only to the full extent permitted by applicable law.
14. Consequential Damages and Other Liability. VAS’s liability with respect to the Licensed Software shall be limited to an amount no greater than the applicable license fee paid by Customer to VAS in connection with the relevant Licensed Software in the one (1) year period prior to notice of the claim under which damage or recovery is claimed. The existence of one or more claims shall not enlarge this one (1) year period limit. VAS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR CONTINGENT DAMAGES WHATSOEVER, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO THE LICENSED SOFTWARE, CUSTOMER’S USE OF THE LICENSED SOFTWARE, OR TO THE SERVICES PROVIDED BY VAS TO CUSTOMER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO.
15. Indemnification. Customer shall, at Customer’s sole expense, indemnify, defend and hold harmless VAS and its respective directors, officers, shareholders, employees, subcontractors, customers, agents and assigns against all claims, demands, suits, liabilities, actions, proceedings and expenses, including reasonable attorneys’ fees (collectively, “Claims”), arising from or relating to (i) the negligence (including strict liability), gross negligence or willful misconduct of Customer and Customer’s employees, contractors, subcontractors, vendors and agents (each a “User Party”), (ii) violation of any law or regulation by the User Parties, (iii) material breaches or misrepresentations with respect to the Agreement by a User Party, or (iv) any allegation that any Licensed Software, or its receipt, possession or use by Customer or its Affiliates, in each case whether alone or in combination with any other item or the operation of any process, infringes upon or misappropriates, or allegedly constitutes an infringement or misappropriation of, any patent, copyright, trademark, trade secret or other intellectual property or other proprietary right of any third party. The obligations, indemnities and liabilities of Customer under this Section 13 shall not be limited by any provisions or limits of insurance maintained by VAS.
16. Injunctive Relief. The Parties agree that irreparable harm shall be presumed if either Party breaches any covenant within the Agreement including, but not limited to, the covenant relating to Confidentiality, as described in Sections 3 above, or if Customer breaches the covenants related to the Limited License, contained in Section 2 above. Therefore, in the event of a breach of this Agreement, including, but not limited to Sections 2 or 3 of this Agreement, the aggrieved Party may petition a court of competent jurisdiction for an injunction immediately enjoining the other Party from continuing its breach of the Agreement, in addition to any other remedies to which either Party may be entitled as a result of said breach.
17. Maintenance and Support and Services
17.1 General. Maintenance and Support is offered by VAS and invoiced in accordance with the Order Confirmation Form. Failure to pay any amount due under this Agreement may result in suspension of Maintenance and Support. If Maintenance and Support is interrupted as a result of expiration or termination, Customer may be charged a reinstatement fee equal to the cost of Maintenance and Support for the period from the date of expiration or termination to the date of renewal.
17.2 Maintenance. “Maintenance” entitles Customer to receive updates, upgrades, patches, bug fixes and new releases or versions of the Licensed Software, including updated documentation, as VAS may provide from time to time without requirement of a separate license agreement, and without additional charge.
17.3 Support. Where provided by and purchased from VAS, “Support” entitles Customer to technical assistance with Customer’s ongoing use of the Licensed Software from 7AM to 7PM, Central Standard Time (CST). Any technical assistance provided by VAS for Customer’s use of Licensed Software outside these two time windows may be charged at an hourly rate as determined by VAS. VAS will provide Support for the most current version of the Licensed Software and one prior version, including interim releases between the two versions; for example, upon release of version 10.x VAS will support version 10.x and 9.x. VAS may provide limited support for older versions. VAS will use its best efforts to answer Customer’s specific questions and provide support in accordance with VAS’s service and support guidelines. Support does not include any third-party products that are not part of the Licensed Software.
17.4 Professional Services. Where provided by and purchased from VAS, “Professional Services” may include training, implementation, installation, on-site assistance, customization, and configuration of the Licensed Software. The total “Professional Services” fee quoted on the VAS Order Confirmation Form, if any, is an estimate of the number of days required based on VAS’s current understanding of Customer’s stated implementation requirements. A statement of work shall be mutually agreed upon prior to commencement of any Professional Services. Any training provided during the initial two years after
installation shall be provided at the same rates as set forth on the initial Order Confirmation Form. VAS makes no representation or warranty regarding its Professional Services.
18.1 Effective Date and Term. This Agreement is effective and commences as of the earlier of the date set forth on the VAS Order Confirmation Form or the date Customer first installs or uses the Licensed Software (the “Effective Date”) and terminates as of December 31st of the same year as the year of the Effective Date (the “Initial Term”), and automatically renews for successive one (1) year periods beginning as of January 1st of the following year and terminating on December 31st of that year (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless terminated earlier as provided for below in Section 18.2.
18.2 Termination. Either Party may terminate this Agreement upon written notice to the other Party (a) not later than ninety (90) days prior to the end of a Renewal Term, or (b) if the other Party fails to cure a breach of this Agreement within thirty (30) days of written notice of the breach from the terminating Party specifying in sufficient detail the nature of the alleged breach.
18.2.1 Termination by Customer.
(a) Termination for Breach. Upon termination of this Agreement by Customer for an uncured breach by VAS, Customer, in addition to any other damages provided for herein, shall be entitled to claim any other rights or remedies available by law as a result of the breach.
(b) Voluntary Termination. If Customer returns the Licensed Software to VAS within 90 days of the initial delivery date, Customer may receive a partial or full refund of the purchase price for the Licensed Software as determined by VAS. Such a return by Customer shall constitute a termination under this Agreement. Customer’s obligations under this EULA will remain in full effect until Customer has returned all of its Licensed Software to VAS and VAS has confirmed its receipt of the Licensed Software in writing. However, for any voluntary termination by Customer more than 90 days after Customer’s initial receipt of the Licensed Software or 30 days after notice of an updated EULA—whichever is later—Customer will not be entitled to any refund from VAS.
18.2.2 Termination by VAS. Upon termination of this Agreement by VAS, Customer agrees to cease using the Licensed Software, remove all Licensed Software from its computers, destroy all copies of the Licensed Software, and, upon request from VAS, certify in writing its compliance.
19.1 Severability. If any of the terms, or portions thereof, of this Agreement are invalid or unenforceable under any applicable statute or rule of law, the court shall reform the Agreement to include an enforceable term as close to the intent of the original term as possible; all other terms shall remain unchanged.
19.2 Entire Agreement. This Agreement constitutes the entire agreement between Customer and VAS relating to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, proposals and negotiations, whether written or oral. Any additions to, or modifications of, this Agreement shall be binding upon the Parties only if in writing and executed by a duly authorized representative of Customer and VAS. TERMS AND CONDITIONS OF ANY CORRESPONDING PURCHASE ORDER OR OTHER DOCUMENT RELATING TO THE LICENSED SOFTWARE THAT ADD TO OR CONFLICT WITH THE TERMS CONTAINED IN THIS AGREEMENT SHALL BE DEEMED MATERIAL AND ARE REJECTED.
19.3 Waiver. The waiver or failure of either Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further or future right under this Agreement.
19.4 Past Due Accounts. Any invoices not paid by Customer within the time period agreed to by the Parties on the Order Confirmation Form may be subject to a monthly finance charge of 1.5% of amounts due or the maximum amount allowed by law, whichever is lower. IN THE EVENT THAT VAS HAS SENT WRITTEN NOTICE OF PAST DUE AMOUNTS AND SUCH AMOUNTS ARE NOT PAID BY CUSTOMER WITHIN TEN (10) DAYS OF SUCH NOTICE, VAS MAY WITHHOLD ANY APPLICABLE LICENSE KEY OR PASSWORD UNTIL ALL AMOUNTS DUE FOR THE LICENSED SOFTWARE ARE FULLY PAID.
19.5 Assignment. This Agreement is binding upon, and inures to the benefit of, the Parties hereto and their respective successors and permitted assigns. A Party may not assign any of its rights, obligations, or responsibilities under this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld, except that neither a change in control in the assigning Party nor assignment to any entity (other than a competitor of the other Party) that controls, is controlled by or is under common control with the assigning Party, shall be deemed an assignment in violation of the foregoing; provided, however that the assigning Party gives the other Party written notice of any such change in control or assignment.
19.6 Governing Law; Dispute Resolution and Attorney Fees. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN. ALL DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF THIS AGREEMENT SHALL BE DISCUSSED MUTUALLY BETWEEN VAS AND CUSTOMER. ANY DISPUTES WHICH ARE NOT RESOLVED BY MUTUAL AGREEMENT, AND WHICH REQUIRE RESOLUTION THROUGH LITIGATION SHALL BE BROUGHT IN A COURT OF COMPETENT JURISDICTION IN THE STATE OF WISCONSIN.
The prevailing Party to any action, proceeding or claim in a court or arbitration proceeding (whether it be the final proceeding or not) shall be entitled to recover from the non-prevailing Party the reasonable attorneys’ fees, expenses and costs incurred by the prevailing Party in any arbitration or other court process. The prevailing Party refers to the party to such action, proceeding or claim that obtains an award of recovery or other form of relief closer to that requested than the non-prevailing Party.
19.7 Taxes. Unless otherwise stated on an Order Confirmation Form, VAS’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including without limitation value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases of under this Agreement. If VAS has the legal obligation to remit or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to, and paid by Customer, unless Customer provides VAS with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, VAS is solely responsible only for taxes assessable against VAS based on its income, property or employees.
19.8 Compliance with Laws; Export Control; Government Regulations. Each Party shall comply with all laws applicable to the actions contemplated by this Agreement. Customer acknowledges that the Licensed Software is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. Customer represents that Customer is not, and is not acting on behalf of (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity
listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List. The Licensed Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Licensed Software and documentation by or for the U.S. Government shall be governed solely by the terms and conditions of this Agreement.
19.9 Contact Information. Please direct legal notices or other correspondence to Valley Agricultural Software: 3950 South “K” STREET – TULARE, CA 93274 – USA
Last Updated January 12, 2021