Terms and Conditions

 

END USER LICENSE AGREEMENT

 

THIS END USER LICENSE AGREEMENT (the “Agreement”) is entered into as of the date of your acceptance of this Agreement, electronically by clicking “I agree” with your order (the “Effective Date”) by and between Cargill, Incorporated, a Delaware corporation, having its principal place of business at 15407 McGinty Road West, Wayzata, Minnesota  55391-2399 (hereinafter “CARGILL”), and the individual identified in the order confirmation (hereinafter “CUSTOMER”).  CARGILL and CUSTOMER are collectively referred to herein as “Parties”, in singular or plural usage, as required by context.

 

WHEREAS, CUSTOMER desires to obtain a license to use a device, and application service and software for its own agribusiness within the Territory (as defined below); and CUSTOMER certifies that the CUSTOMER does not derive any income from the sale of nutritional consulting and/or feed sales; and

 

WHEREAS, CARGILL desires to provide to CUSTOMER a right to use certain device and application services and software on the terms and conditions specified in this Agreement;

 

NOW, THEREFORE, the Parties hereby agree as follows:

 

Definitions

“Access” shall mean the ability to access the Device, and SCiO Services through the Mobile Application.

“Affiliates” shall mean any entity which has: (a) the legal, beneficial, or equitable ownership, directly or indirectly, of (i) at least 50% of the aggregate of all voting equity interests in an entity or (ii) equity interests having the right to at least 50% of the profits of an entity or, in the event of dissolution, to at least 50% of the assets of an entity; (b) the right to appoint, directly or indirectly, a majority of the board of directors; (c) the right to control, directly or indirectly, the management or direction of the entity by contract or corporate governance document; or (d) in the case of a partnership, the holding by an entity (or one of its Affiliates) of the position of sole general partner.

CARGILL Data” means CARGILL’s chemometric models, NIR equations, scan data, including CUSTOMER’s Scan Data.

 “Confidential Information” shall mean any and all business, technical, and financial information that is disclosed by CARGILL and its Affiliates to the CUSTOMER and its Affiliates under this Agreement.  Confidential Information shall include, but is not limited to, Proprietary Information, trade secrets, software, design, data collection, inventions, know how, pricing information, source code, vendor information, and information about or provided by CARGILL. Notwithstanding the foregoing, Confidential Information shall not include information which: (a) is in the public domain prior to disclosure by CARGILL; (b) becomes part of the public domain, by publication or otherwise, through no unauthorized act or omission on the part of CUSTOMER; (c) is lawfully in the CUSTOMER’s possession prior to disclosure by CARGILL; or (d) is independently developed by CUSTOMER with no access to the disclosed Confidential Information.

              “CUSTOMER Scan Data” shall mean all CUSTOMER data entered into, and retrieved from, the Device, including the spectrum collected by the Device, time of scan, material reference data, and the scan results.

              “Device” means the handheld spectrometer product, including related accessories, purchased through CARGILL.

“Mobile Application” shall mean the platform for display of the SCiO Services and CUSTOMER Scan Data generated by CUSTOMER’s use of the Device.  The mobile application centralizes information for the CUSTOMER and is available in a number of formats.

 “Proprietary Information”  shall mean and include the CARGILL Data and the models and applets provided by CARGILL, and such other information as CARGILL shall so designate; provided, however, that Proprietary Information shall specifically exclude publically available product information included in the Mobile Application.  This definition shall extend to Proprietary Information in whatever form such Proprietary Information may be embodied, including, but not limited to, source code, object code, software documentation, software specifications, flow charts, diagrams, terminal displays and printouts.  Proprietary Information shall include information regarding CUSTOMER’s use of the Mobile Application, SCiO Services, Device, CUSTOMER’s Scan Data, and information accessed by Users regarding Mobile Application usage habits.

 “SCiO Service” shall mean the Software, applications, equipment, firmware, network resources, data or materials provided by VeriFood in providing the cloud service.  The SCiO Service is owned by VeriFood.

Software”  means all software distributed by or on behalf of VeriFood as part of the SCiO Service and the Device, including, (i) firmware included by VeriFood with the Device to enable it to perform its basic functions, and (ii) mobile and desktop applications of the SCiO Service and any updates or upgrades.

“Term” shall mean the period from the date of CUSTOMER’s acceptance of this Agreement until the expiration or termination of this Agreement pursuant to its terms.

“Territory” shall mean the United States (or other Territory mutually agreed upon by the parties in writing).

 “Users” shall mean CUSTOMER or CARGILL and its Affiliates, including but not limited to, (i) employees, agents and contractors of CARGILL and its Affiliates, (ii) third-parties to which CARGILL or an Affiliate of CARGILL has outsourced information technology or business functions (including but not limited to helpdesk and administrative functions), who need to use the SCiO Services in the performance of their duties for CARGILL and/or Affiliates and (iii) successors and assigns of any of the foregoing.

VeriFood” means VeriFood Ltd., the manufacturer of the Device and SCiO Services.

  1. Grant of License. Contingent upon CUSTOMER’s acceptance of this Agreement and purchase of the Device directly from CARGILL, CARGILL hereby grants CUSTOMER, a limited, nontransferable, non-sublicenseable, nonexclusive, revocable license to Use the Mobile Application, SCiO Service and Software in object code form solely for its internal agribusiness use within the Territory during the Term. CUSTOMER may not, copy, reproduce, republish, post or transmit, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Device, SCiO Service, or Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open source components included with the Software).  In addition, CUSTOMER may not 1) use the SCiO Service on a service basis; or 2) permit any other individual or entity to create links to the Software or “frame” or "mirror" the Software on any other server or wireless or Internet-based device.
  2. Customer Grant of License. CUSTOMER hereby grants Users a fully paid, unlimited, perpetual, nonexclusive right and license to use, copy, analyze, display, compile, decompile, sublicense, and prepare derivative works of and otherwise use the CUSTOMER Scan Data. Additionally, CUSTOMER expressly agrees that CARGILL, and CARGILL Affiliates, may use any such CUSTOMER Scan Data for any purpose, including but not limited to monitoring and analyzing scan data and usage of products.  CUSTOMER grants VeriFood a nonexclusive, worldwide, perpetual, irrevocable, royalty free license to use, copy, analyze, display and prepare derivative works of CUSTOMER’s aggregated and anonymized Scan Data only for the purposes such as analyzing usage trends, providing customer support, improving VeriFood’s products, systems and quality of service, to enhance algorithms and models or to create new models and offerings, or to debug product issues.
  3. Prohibitions and Obligations.

4.1          Hardware.  CUSTOMER shall be responsible for providing and maintaining all hardware necessary to operate the Mobile Application.  In addition, CUSTOMER shall pay all communication costs, charges and fees related to telecommunications related to its use of the Mobile Application.  CUSTOMER acknowledges that the full functionality of the Mobile Application and/or access to the Mobile Application is not available unless the device containing the Mobile Application installation has continuing access to the Internet.

4.2          No Infringement.  CUSTOMER shall take no action that, in any way, that would infringe upon the copyrighted programs of the Mobile Application, SCiO Services, Software or Device or that would infringe upon Proprietary Information or Confidential Information. CUSTOMER shall not modify or remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary notices or markings from any part of the Devices, SCiO Service and on or in the Software.

4.3          Compliance.  CUSTOMER represents and warrants that CUSTOMER is authorized to enter into this Agreement and comply with its terms. Furthermore, CUSTOMER represents and warrants that CUSTOMER will at any and all times meet with CUSTOMER’s obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Mobile Application, or any related Internet services or web pages.

4.4          Confidential and Proprietary Information. CUSTOMER shall not use or disclose to any third party any Proprietary Information or Confidential Information other than as permitted under this Agreement unless authorized to do so in a writing executed by CARGILL. CUSTOMER shall not provide or otherwise make available the Mobile Application or data incorporated therein, in any form, to any person or entity, other than CARGILL or its Affiliates, without prior written consent from CARGILL. CUSTOMER shall secure and protect all printed materials, manuals, software programs, disks, copies, or other media, if any, that embody, contain, or describe any Proprietary Information or Confidential Information in a manner consistent with the protection of CARGILL’s rights therein and to take appropriate action by instruction or agreement with its employees to satisfy its obligations hereunder. CUSTOMER further agrees that it shall be strictly liable for all damages to Cargill that result from any disclosure of any Proprietary Information or Confidential Information or any portion of the Mobile Application and/or Proprietary Information that result from any disclosure of same to any third party.

4.5          Passwords and Manufacturer IDs.  CUSTOMER is responsible for keeping its password secure and is solely responsible and liable for any activity that occurs under CUSTOMER’s user name.

  1. Ownership. VeriFood is the sole and exclusive owner of the intellectual property rights, including but not limited to copyrights, patents, trademarks, and trade secrets, and any other applicable intangible property rights, in the Device, Mobile Application, SCiO Service, and Software, and in all media, printouts, papers, support materials, or hard copies containing or bearing such intellectual property. CARGILL is the sole and exclusive owner of the intellectual property rights, including but not limited to copyrights, patents, trademarks, and trade secrets, and any other applicable intangible property rights, in the Proprietary Information, and in all media, printouts, papers, support materials, or hard copies containing or bearing such intellectual property.  CUSTOMER shall have a license to use the Mobile Application, Device, SCiO Service, Software, and Proprietary Information, and the intellectual property rights therein, only to the extent specifically provided in this Agreement and to the extent such is reasonably necessary for CUSTOMER’s performance under the Agreement. All rights not expressly granted herein are reserved by CARGILL. The Mobile Application is deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Mobile Application by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
  2. Disclaimer.

6.1          LIMITED WARRANTY.  CARGILL HEREBY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (INCLUDING ANY PURPOSE RELATING TO LEGAL OR REGULATORY COMPLIANCE OBLIGATIONS) OF ANY KIND WITH RESPECT TO THE MOBILE APPLICATION, DEVICE, OR SCIO SERVICES OR DATA MADE AVAILABLE THROUGH THE MOBILE APPLICATION, DEVICE OR SCIO SERVICE.  THE MOBILE APPLICATION, DEVICE AND SCIO SERVICE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.

6.2          CONNECTIVITY.  CUSTOMER ACKNOWLEDGES THAT, IN CONNECTION WITH MOBILE APPLICATION, INFORMATION SHALL BE TRANSMITTED OVER THE INTERNET AND OTHER DEVICES OWNED, MAINTAINED, AND SERVICED BY THIRD PARTIES, ALL OF WHICH ARE BEYOND CONTROL AND JURISDICTION OF CARGILL. ACCORDINGLY, CARGILL ASSUMES NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH THE MOBILE APPLCIATION. CARGILL DOES NOT (A) MAKE ANY WARRANTY OR ASSUMES ANY LIABILITY REGARDING THE AVAILABILITY, RELIABILITY, OR SUITABILITY OF ANY INTERNET SERVICE PROVIDER OR DIGITAL SUBSCRIBER LINE SERVICES, (B) ASSUME ANY LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH THE MOBILE APPLICATION DUE TO THE FAILURE OF ANY THIRD PARTY, OR (C) MAKE ANY WARRANTIES AS TO THE SECURITY OF CUSTOMER’S DATA COMMUNICATIONS, OR THAT THIRD PARTIES WILL NOT GAIN UNAUTHORIZED ACCESS TO OR MONITOR CUSTOMER’ COMPUTER(S) OR ONLINE COMMUNICATIONS.

  1. Limitation of Damages.

7.1          CAP ON DIRECT DAMAGES. THE AGGREGATE AMOUNT OF DAMAGES RECOVERABLE AGAINST CARGILL ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF THE CHARGES PAID TO CARGILL BY CUSTOMER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY (EXCLUSIVE OF ANY INSTALLATION FEE AND/OR ACTUAL TRAVEL EXPENSES OR OTHER OUT-OF-POCKET EXPENSES PAID OR REIMBURSED DURING SUCH PERIOD) OR ONE THOUSAND DOLLARS ($1,000.00), REGARDLESS OF THE TYPE OF CLAIM, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT FORESEEABLE AND REGARDLESS OF THE CAUSE OF SUCH DAMAGES, EVEN IF CARGILL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN BASED ON NEGLIGENCE OF CARGILL. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CARGILL WILL NOT BE LIABLE FOR ANY LOSSES RELATED TO THE INFORMATION CONTAINED WITHIN THE DEVICE OR SCIO SERVICE OR PROVIDED BY CARGILL.

7.2           DISCLAIMER OF CONSEQUENTIAL DAMAGES.   IN NO EVENT WILL THE MEASURE OF DAMAGES PAYABLE BY CARGILL INCLUDE ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING DAMAGES DUE TO BUSINESS INTERRUPTION OR LOST PROFITS) ARISING FROM OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE TYPE OF CLAIM, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT FORESEEABLE AND REGARDLESS OF THE CAUSE OF SUCH DAMAGES, EVEN IF CARGILL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN BASED ON NEGLIGENCE OF CARGILL.

  1. Indemnification. CUSTOMER, on behalf of itself, and any employees, agents, successors, parent corporations, affiliate corporations, predecessor corporations and successor corporations, in all capacities, including individually, agree to indemnify and hold CARGILL and its Affiliates, their officers, directors, employees and agents harmless from any and all losses, claims, detriment, damages, charges, costs and expenses arising out of or related to (directly or indirectly) (a) CUSTOMER’s use of the Mobile Application, the Device, or the SCiO Service; (b) the entering by CUSTOMER of any information into the Mobile Application under this Agreement, including any claim based on the negligence of CARGILL; (c) violation or breach of any term of this Agreement or any applicable law, regulation, policy, or guideline, whether or not referenced herein, (d) violation of any rights of any third party, or (e) use, disclosure, or publication of the Mobile Application or of any information obtained in whole or in part by CUSTOMER from or through the Mobile Application.
  2. Term and Termination. This Agreement shall be effective as of the Effective Date written above and will remain in effect for a period of one (1) year.  The Agreement shall be automatically renewed for subsequent one (1) month intervals unless a party provides the other parties a written notice of non-renewal at least ten (10) days prior to the end of the then current term.  CUSTOMER, however, may choose to terminate this Agreement at any time by providing notice to CARGILL with at least thirty (30) days prior written notice.  If CUSTOMER chooses to terminate, CUSTOMER will be responsible for charge up to the date of termination.  CARGILL’s notice of non-renewal will take precedence over CUSTOMER’S request to renew.   

                  (a)  CARGILL may terminate this Agreement with CUSTOMER upon ten (10) days prior written notice if CUSTOMER materially breaches this Agreement, including without limitation a failure to pay fees, and fails to cure such breach within thirty (30) days of receiving notice of such breach without cause.

(b)  Upon the expiration or termination of this Agreement for any reason set forth herein, CUSTOMER agrees to remove all Access to the Mobile Application on its devices.  Additionally, CUSTOMER agrees to return to CARGILL all Confidential Information then in CUSTOMER’s possession or control.  The termination or expiration of this Agreement shall have no impact on the continuing rights of CARGILL to the use the CUSTOMER Scan Data.

(c)  CUSTOMER acknowledges and agrees that the entire risk arising out of the use or performance of the Mobile Application remains with CUSTOMER, to the maximum extent permitted by law. CUSTOMER’s only right or remedy with respect to any problems or dissatisfaction with the Mobile Application is to cease use of the Mobile Application. Upon the expiration or termination of CARGILL’s agreement with VeriFood for any reason, CARGILL may terminate this Agreement with CUSTOMER upon ten (10) days prior written notice to CUSTOMER.  Sections 3 through 9, as well as any obligation to pay fees arising prior to termination, shall survive the expiration or termination of this Agreement for any reason.

  1. Cost/Payment. Upon acceptance of this Agreement and completion of the ordering process, CUSTOMER agrees to pay the fees below.  Fees will automatically be billed to CUSTOMER’S credit card on file, commencing upon delivery of the Device to CUSTOMER.  CUSTOMER will provide accurate and complete credit card payment information and maintain any changes to the payment information through CUSTOMER’S user account.  In the event the credit card on file expires or becomes invalid services may be terminated immediately. Any unpaid fees shall accrue interest at the maximum rate permitted by law or CARGILL’S standard rate, whichever is less, and CUSTOMER agrees to pay reasonable legal fees and other reasonable costs incurred for collection of overdue amounts.    

Items

Fees

Each Device

$499 (USD)

SCiO Service fees

$180 (USD) monthly

Mobile Application

Included

 

  1. Maintenance and Support. All requests for maintenance and support for the Mobile Application, Device and/or SCiO Service shall be communicated to the CARGILL representative.
  2. Notice. Any notice required to be given by this Agreement shall be emailed to reveal@cargill.com
  3. General Provisions. If any part of this Agreement is adjudged by any court of competent jurisdiction to be invalid, that judgment shall not effect or nullify the remainder of the Agreement and the effect shall be confined to the part immediately involved in the controversy adjudged. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder, nor shall such waiver preclude the further exercise of that right. This Agreement shall be construed in accordance with and governed by the laws of the State of Minnesota, without regard to its choice of law rules. Any action to enforce the terms of this Agreement, or arising out of the subject matter of this Agreement, shall be brought in the courts of Hennepin County, State of Minnesota.  This Agreement is binding on and shall inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns, unless otherwise prohibited by this Agreement. The titles to the sections and paragraphs of this Agreement are solely for the convenience of the parties, and are not an aid in the interpretation of the instrument. Any oral representations or modifications concerning this Agreement not contained herein shall be of no force or effect unless contained in a subsequent written modification signed by both parties. The parties agree that the terms and conditions herein may be amended or supplemented by written agreement or by terms and conditions included in click-through, click-wrap or shrink-wrap agreements by and between the parties; provided that such agreements reference this Agreement. No party shall assign its rights, duties or obligations under this Agreement without the prior written consent of the other parties and such consent shall not be unreasonably withheld. Notwithstanding the foregoing, any party may assign this Agreement to an affiliate or in connection with any merger, reorganization, sale of substantially all of such party’s assets, or other change of control transaction, without any consent from the non-assigning party.



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