- Definitions: The following definitions shall apply to these terms and conditions:
- Access Credentials shall mean any user name, identification number, password, code or security key established for purposes of accessing the Software.
- Authorized User shall mean any individual authorized by you to access the Software via any web enabled device.
- Confidential Information shall mean all information, in any form, concerning the business, technical plans, technology, trade secrets, know-how, plans, strategies, customers, and pricing of you and MDD, in addition to all applicable Farm Data, and all information and intellectual property concerning the Software, which is disclosed by one party to the other or learned by one party and which is not: (a) already known to the other party; (b) conveyed to the other party by a third party; (c) released by the disclosing party without restriction; (d) independently developed by the receiving party; or (e) widely known or publicly available.
- Farm Data shall mean information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from a farm by or through the Software.
- Intellectual Property Rights shall mean any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, or other intellectual property rights laws, in any part of the world.
- Software shall mean the specific applications, including all enhancements and updates thereto, and any applicable third-party software that MDD provides remote access to and use of as part of the Order.
- Services Offered by MDD: Subject to and conditioned on your (and your Authorized Users’) compliance with the terms and conditions of this Order, during the Term, MDD shall use commercially reasonable efforts to provide, host, manage, operate and maintain the Software for remote access and use by you and your Authorized Users (collectively, the “Services”). MDD may, directly or indirectly, suspend, terminate or otherwise deny you access to or use of all or any part of the Software, without incurring any resulting obligation or liability, if: (a) MDD receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires MDD to restrict access; or (b) MDD believes, in its sole discretion, that: (i) you, or any of your Authorized Users, has failed to comply with any term of this Order, or accessed or used the Software beyond the scope of the rights granted under this Order; (ii) you, or any of your Authorized Users is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with its use of the Software; or (iii) this Order expires or is terminated.
- Data Collection and Use: The Software has the ability to collect Farm Data from any participating farm. Such Farm Data may include:
- Herd Data: reproduction, production, and health
- Feed Data: usage, animal intakes and costs
- Milk Production Data: daily shipped weights and tests
- Weather Data: minimum and maximum temperature, humidity, and other climate data (information from third-party weather sources)
MDD believes this Farm Data (other than the weather data) is owned by each particular farm. It is up to each farm to determine how it shares its Farm Data and with whom. As a third-party contractor, you may have contractual authority to access such Farm Data directly. However, prior to collecting the Farm Data through the Software, MDD must receive consent from each farm to: a) collect and aggregate the Farm Data in the Software, and b) allow you access to the collected Farm Data via the Software. MDD will obtain such consent directly from the farms. No Farm Data will be used for any unlawful or anti-competitive activities.
- Grant of License: MDD owns any and all rights, title and interests in the Software, including (without limitation) ownership rights to any and all Intellectual Property Rights. MDD grants you a limited, non-exclusive, non-assignable and non-transferable license to access the Software for the Term, subject to your compliance with the Order, including the payment of the license fees noted on the first page of the Order or in your subscription. You shall not reverse engineer, decompile, disassemble or translate the Software. Nor shall you upload viruses, spyware or any other malicious software to the Software.
- Ownership and Title of Farm Data: We each agree that any Farm Data collected through the Software is owned by the respective farm. Therefore, MDD can only provide you access to Farm Data if granted the right by the farms and the Services are contingent upon such grant of rights. MDD may aggregate the Farm Data with other data (so that it is not individually identifiable) in order to analyze and report on activities and trends within the dairy industry.
- Fees: The Sales Order or the subscription terms contain all the license and transaction fees for access to and use of the Software. Unless otherwise noted on the Sales Order or in the subscription terms, all fees shall be due and payable on a monthly basis throughout the Term. All amounts payable to MDD shall be paid in full without any setoff, recoupment, deduction or withholding for any reason. If a payment is not received by the invoice due date, MDD may, in addition to any other remedies, impose a 1.5% per month late charge on the total balance of past due amounts.
- Access and Security: Each Authorized User shall use Access Credentials for purposes of accessing the Software during the Term. You shall employ all physical, administrative, and technical controls and other safeguards necessary to a) securely administer the distribution and use of the Access Credentials and b) control the use and distribution of Farm Data.
- Term and Termination: The term of the Order commences 1) on the Effective Date noted in any Sales Order or 2) when you subscribe to the Software, and will continue in effect thereafter until the End Date noted in any Sales Order or on a month-to-month basis until terminated by you or MDD (the “Term”). You may terminate the Services and your access to the Software by providing notice to MDD at any time or in accordance with the terms of any Sales Order. MDD may terminate the Services and your access to the Software with or without notice if you violate any terms of the Order.
- Confidential Information: You and MDD shall maintain the confidential nature of the other party’s Confidential Information as well as the Farm Data. Neither party shall use or disclose Confidential Information except as otherwise permitted under this Order.
- Disclaimer; No Guaranty: MDD warrants that the Software will not violate, infringe upon or result in the misappropriation of any Intellectual Property Rights of any third party, and MDD will indemnify and hold you harmless from and against any and all loss, liability, obligation and expense (including reasonable attorneys’ fees and expenses) arising out of or related to any breach or claimed breach of any warranty or representation of MDD set forth in this Order. If the Software provided by MDD is found to infringe or result in a misappropriation, MDD will, at MDD’s option: (i) obtain the right for you to continue using such Software free from infringement at no additional cost; or (ii) replace or modify such Software so that it is no longer infringing. Each farm is free to limit access to its Farm Data at any time.
- WARRANTY LIMITATION: THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY. MDD HEREBY DISCLAIMS AND YOU HEREBY WAIVE ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. MDD DOES NOT WARRANT AND EXPRESSLY DISCLAIMS THAT USE OF THE SOFTWARE WILL INCREASE EFFICIENCY, PRODUCTIVITY OR YIELD FOR YOUR BUSINESS.
- Indemnity and Limitation of Damages: You agree to indemnify, defend and hold harmless MDD, including its employees, agents, officers and members, from any damages, costs, claims, injuries or liabilities (including attorney fees), for you and your Authorized User’s use of the Software. Except as otherwise set forth herein, MDD shall not be liable for any lost profits or consequential, exemplary, incidental or punitive damages under this Order (including, without limitation, in connection with the use, performance or operation of the Software regardless of the form of action, whether in contract or in tort, including negligence, regardless of whether MDD has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable).
- CAP ON LIABILITY: The liability of MDD UNDER this ORDER, shall not exceed THE GREATER OF (A) the total amount of money paid TO MDD WITHIn the IMMEDIATELY preceding THIRTY (30) DAYS from the date THE CLAIM ARISES OR (B) ONE THOUSAND DOLLARS ($1,000).
- Access to the Software: Upon termination or cancellation of this Order (and license), you shall cease accessing the Software and MDD will restrict further access to the Software for the Authorized Users.
- Assignments: This Order and the license granted pursuant hereto may not be assigned, sublicensed or otherwise transferred by you without the prior written consent of MDD.
- Amendments and Modifications: Alterations, modifications or amendments of a provision of this Order by you and MDD shall not be binding unless such alterations, modifications or amendments are in writing and signed by authorized representatives of you and MDD.
- Governing Law: This Order shall be governed by the laws of the State of Texas without regard to any rules of conflict.
- Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of licensor and licensee. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.
- Publicity: During the Term of this Order, you grant MDD the right to identify you as a client of MDD.