The parties, intending to be legally bound, hereby agree as follows:
1. Definitions. All capitalized terms used in this Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.
2. Account and Registration. You shall provide aWhere with true and correct contact information and shall update such information as necessary to ensure that aWhere always has current information for You in connection you’re your Account (“ Account”). You consent to receiving phone calls, emails, texts or any other type of messages from aWhere relating to the Account and for general business purposes. Once You have successfully registered and provided Your credit card information, Your Account and associated Logins, API license keys (s) and API Applications will be given customer status associated with the Subscription Package (“Package”) selected. All activities that occur related to Your Account and Logins or API license key(s) are Your responsibility. In the event that You suspect that either may have been compromised, You shall notify aWhere immediately and terminate Your Account. You are responsible for any and all activity in connection with Your Logins, API license key(s) and Your Account. You agree to have complete and correct billing and credit card information on file at all times and to be responsible for all charges in relation to Your Account. All queries requesting data from the APIs must reference Your valid login API license key(s). You agree to keep such account information Logins and API license key(s) information confidential.
3. License. aWhere grants to Customer a non-exclusive, non-transferable license to access and use the Content for Customer’s internal business operations in accordance with the terms of this Agreement. Customer may create reports, presentations, and models using Content for internal business operations, provided that nothing in this section will operate so as to transfer ownership of the Content or any rights thereof to Customer. Customer will represent aWhere as the source of the Content in the following form: “ Includes content supplied by aWhere © [Publication Year]”. Except as expressly stated in additional agreements, Customer is granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to the Content, and Customer may not modify, copy, reproduce, display, distribute, resell, or exploit any portion of the Content without permission of aWhere.
4. Customer Information. To receive the Content, Customer must at times provide aWhere with certain information, such as field reference ID, latitude, longitude, field size for each field location, planting dates and other farm or crop planting information (“Field Information”). Customer is solely responsible for all Field Information. As between Customer and aWhere, Customer retains ownership of Field Information. By providing Field Information to aWhere, Customer grants aWhere a nonexclusive, royalty-free, irrevocable right to use, copy, store, reproduce, modify, adapt, publish, create derivative works from, distribute, and display the Field Information for the purposes of providing the Content. aWhere may aggregate Field Information with the field information of other customers to calibrate its modeling algorithms, to generate aggregate analysis, and to monitor for impending risks or alerts by geographic area, or for other product development purposes, so long as Customer’s Field Information is not distributed to a third party or used in its un-aggregated form. Customer covenants that Customer has and will obtain all rights in the Field Information necessary to allow aWhere to use the Field Information as described in this Agreement.
5. Services. Subject to the terms and conditions of this Agreement, aWhere shall provide Implementation Services, Maintenance and Support Services (collectively, “ Services”). Customer acknowledges that aWhere’s ability to perform the Services in a timely manner is contingent upon its receipt of information, resources, and assistance requested of Customer in any applicable support request or SOW. aWhere will provide Customer with maintenance and support services for the Content and Platform in accordance with aWhere’s maintenance and support policies and at the levels of support described in the Package the Customer has subscribed. Any updates, new versions, or new releases of or to the Content or Platform provided by aWhere through the Maintenance and Support Services will be treated as part of the Content or Platform, respectively, for purposes of this Agreement. Other than the Maintenance and Support Services, aWhere shall have no obligation to provide to Customer any maintenance and support services. Unless otherwise agreed to in writing by aWhere, Customer shall not permit any third party to perform or provide any maintenance and support services to Customer with respect to the Content and Platform.
6. Platform Access. Customer Platform Access. Access to the Platform will be provided to Customer through uniquely assigned credentials, which are known as an API Key and Secret and are provisioned and managed through the aWhere Developer Community portal (“ADC”). Customer should provision a distinct and unique set of keys for their Production usage, and for each piece of Software that accesses the Platform. Customer and its employees may provision any number of credentials via the ADC for development and testing purposes. Customer will be responsible for all use of the Platform by each User in compliance with the terms of this Agreement. Customer remains responsible for the actions of each employee accessing the Platform, including the costs, fees, liabilities, or damages incurred through any access to or use of the Platform through any credential assigned to the Customer or its employees. In no event will aWhere be liable for Customer’s obligations to any of its employees or any failure by Customer to fulfill such obligations.
7. Platform Technology. Customer acknowledges that the Platform, including all APIs, Portal, GUI’s, software, hardware, and other technology used by or on behalf of aWhere to implement and provide the Platform, and the Content made available through the Platform (collectively, the “Technology”), and the structure, organization and underlying data, information, algorithms, source code, and functionality thereof, constitute the valuable trade secrets of aWhere and its licensors.
8. Restrictions. As a condition to the rights granted under this Agreement, Customer will not, and will not knowingly permit any third party to: (a) access or use the Technology except as expressly permitted by this Agreement; (b) access or use the Technology, in whole or in part, except through access to and use of the Platform as expressly permitted by aWhere; (c) use the Technology in any unlawful or illegal manner or in any other manner that could damage, disable, overburden, or impair the Technology;(d) alter, modify, reproduce, create derivative works of the Technology; (e) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of Customer’s rights to access or use the Technology or make the Technology available to any third party; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Technology; (g) attempt to circumvent or overcome any technological protection measures intended to restrict access to the Technology; (h) interfere in any manner with the operation or hosting of the Technology; or (i) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Technology.
9. Ownership. aWhere retains all right, title, and interest, including, without limitation, all Intellectual Property Rights (“IPR”), in and to the Technology and any additions, improvements, updates, and other modifications thereto. Customer acknowledges that Customer is not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to Customer apart from Customer’s right to access and use the Technology as expressly stated in this Agreement. For purposes of this Agreement, “IPR” means any and all intellectual property and proprietary rights and all other legal rights protecting intangible property throughout the world, including without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, rights in data and databases, and contract rights.
11. Renewal Terms . Monthly subscription Packages shall continue to renew monthly until either party terminates. Annual subscription Packages shall continue to renew annually until either party terminates.
12. Limitations on APIs. aWhere sets and enforces limits on Your use of the APIs (e.g. limiting the number of API requests that You may make, or the rate at which requests may be made associated with the Package you have subscribed to), in our sole discretion. You agree to, and will not attempt to circumvent, such limitations documented with the APIs. If You desire to use any APIs beyond these limits or the license described herein, You must obtain aWhere’s express consent. aWhere may decline such request for any reason or no reason; or condition acceptance subject to additional terms and/or charges for that use. To seek such approval, contact aWhere.
13. Cancellation. Either party may terminate this Agreement if: (a) the other party commits a breach of a material term or condition of this Agreement and such party does not cure the breach within 30 days of written notice; or (b) if the other party files a petition in bankruptcy or is adjudicated as bankrupt, or makes a general assignment for the benefit of creditors, or has a receive appointed with respect to its assets. Any termination of this Agreement shall also terminate each Order or SOW then issued under this Agreement. Upon any termination of this Agreement: (1) unless otherwise stated herein, all licenses and other rights granted by each party to the other will immediately terminate; (2) all Fees and other amounts then owed by Customer under this Agreement, or any Order or SOW, will become immediately due and payable to aWhere; (3) Customer will cease all access to and use of the Platform and Content, and all aWhere Services; (4) Customer will return to aWhere or, at the request of aWhere, destroy all Content in Customer’s possession or control; and (5) each party will return to the other party or, at the request of the other party, destroy Confidential Information of the other party in such party’s possession or control. Upon the request of either party, an officer of the other party shall certify in writing to compliance by such party with the terms of this Section. The relevant portions of Sections 1, 6, 11, 13, 14, 15, 16, 17, 18, 19, and 20 will survive termination of this Agreement for any reason.
14. Representations and Warranties. Each party represents, warrants, and covenants to the other party that: (a) such party has the full power and authority to entire into this Agreement; (b) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is bound; and (c) such party will comply with all laws, rules, and regulations applicable to such party in its performance under this Agreement. aWhere will use its best efforts to perform Services under this Agreement in a professional and competent manner. Customer’s sole and exclusive remedy, and aWhere’s sole and exclusive obligation, for any breach of this warranty is for aWhere to re-perform the affected Services for Customer. Except as otherwise provided in this Section, THE Content, Platform, Services, and all other portions of the technology provided to customer are PROVIDED BY awhere AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR COVENANTS. awhere and its licensors DISCLAIM ALL other REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESSED OR IMPLIED, REGARDING THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF Quality, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. Customer Assumes all risk in using the Content, platform, and Services.
15.1 By aWhere . aWhere will indemnify, defend, and hold harmless Customer, its affiliates, and their respective officers, directors, employees, contractors, and agents (each, a “ Customer Indemnified Party”), from and against all costs, damages, liabilities, and expenses (including reasonable attorneys’ fees) incurred by or awarded against a Customer Indemnified Party based on a claim, allegation, or lawsuit made or filed against any Customer Indemnified Party by a third party alleging infringement or misappropriation of any U.S. copyright or U.S. patent issued as of the Effective Date due to the use by Customer of the Content, Platform, or Services as permitted by this Agreement. If a Customer Indemnified Party is, or aWhere reasonably believes will become, subject to any such third party claim resulting from the authorized use of the Content, Platform, or Services under this Agreement, then aWhere will at its option and expense: (a) procure for Customer the right to continue using the Content, Platform, or Services; (b) replace or modify the Content, Platform, or Services so as to no longer infringe; or, if (a) and (b) are not commercially reasonable, (c) terminate this Agreement. aWhere's obligation under this Section 16.1 will not extend to any claim based on or arising from any: (i) portion of material not provided by aWhere; (ii) software, hardware, technology, services, or products of any third-party or not provided by aWhere under this Agreement; (iii) additions, changes, or modifications not provided by aWhere; (iv) integration, incorporation, or combination of any material with or into any other software, hardware, technology, product, or service; or (v) use of the Content, Platform, or Services other than as permitted by this Agreement. THIS SECTION 15.1 STATES AWHERE’S ENTIRE LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO THIS AGREEMENT.
15.2 By Customer . Excluding claims, allegations, or lawsuits subject to Section 15.1 or arising out of a breach by aWhere of an express obligation under this Agreement, Customer will indemnify, defend, and hold harmless aWhere, its affiliates, and their respective officers, directors, employees, contractors, and agents (each, an “ aWhere Indemnified Party”), from and against all costs, damages, liabilities, and expenses (including reasonable attorneys’ fees) incurred by or awarded against an aWhere Indemnified Party based on a claim, allegation, or lawsuit made or filed against any aWhere Indemnified Party by a third party as a result of any: (a) alleged infringement or misappropriation of any U.S. copyright or U.S. patent issued as of the Effective Date due to any Field Information; (b) the operation (or failure to operate) of any Customer system; or (c) breach by Customer of its obligations hereunder. THIS SECTION 16.2 STATES CUSTOMER’S ENTIRE LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO THIS AGREEMENT.
15.3 Conditions . As a condition to obtaining indemnification from the other party under this Agreement, each party will: (a) give the other party prompt notice of any claim subject to Section 15.1 and 15.2, as applicable; (b) grant to the other party sole control of the defense or settlement of any resulting legal proceedings; and (c) provide the other party with reasonable cooperation and, at the other party’s request and expense, assistance in the defense or settlement of any claim subject to indemnification under this Section 15.3.
16. Limitation of Liability . IN NO EVENT WILL awhere BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF this Agreement, INCLUDING, WITHOUT LIMITATION, ANY INACCURATE data or INFORMATION; LOST, CORRUPTED, OR ALTERED DATA OR INFORMATION; LOSS OF USE OF DATA OR INFORMATION; OR LOSS OR INTERRUPTION OF BUSINESS OR PROFITS, EVEN IF awhere HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. IN NO EVENT WILL THE LIABILITY OF awhere RELATING TO THIS AGREEMENT EXCEED the amounts paid to awhere by customer in the then current year of this agreement. IN STATES WHERE LIMITATION OF LIABILITY IS NOT PERMITTED, awhere’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
17. Confidentiality. For purposes of this Agreement, “Confidential Information" means all nonpublic information disclosed or made available under this Agreement or either party's technology, services, finances, operations, customers, or business. For the avoidance of doubt, aWhere’s Confidential Information will include the Content and Platform. Confidential Information shall not include any information that the party receiving such information can demonstrate: (a) was already lawfully known to that party at the time of disclosure by the other party; (b) is disclosed to that party by a third party who had the right to make such disclosure without any confidentiality restrictions or other obligations as to the information disclosed; or (c) is, or through no fault of that party has become, generally available to the public. Each party agrees to protect the other party's Confidential Information with the degree of care that such party uses to protect its own confidential information of like nature, but in no case less than reasonable care. Each party agrees that, except as expressly directed by the other party, it will not at any time during or after the term of this Agreement: (1) disclose any Confidential Information to any third party; (2) permit any third party to examine or make copies of any reports, documents, or electronic data containing Confidential Information; or (3) use any of the Confidential Information for any reason other than for the purposes of this Agreement. Notwithstanding the foregoing, each party will be allowed to disclose Confidential Information of the other party solely to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body of competent jurisdiction, provided that the party notifies the other party of such required disclosure promptly and in writing and cooperates with the other party in any lawful action to contest or limit the scope of such required disclosure.
18. Notice. All notices, reports, consents, authorizations and approvals to be given by a party hereunder will be in writing and will either be via: (a) hand-delivery; (b) Federal Express or a comparable traceable mail service; (c) email, provided a receipt or confirmation is received from the intended recipient demonstrating that the intended recipient received the email; or (d) certified mail, return receipt requested, to the other party at its respective addresses set forth above. All notices will be effective upon receipt (or when delivery is refused) or 3 business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address for notice by giving notice of the new address to the other party.
19. Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Agreement will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado without regard to the conflict of laws provisions thereof. Each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal or state court in Denver, Colorado U.S.A. Customer and aWhere each irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by either party.
20. General. This Agreement consists of these terms and conditions, and any Order or SOW entered into by the parties under this Agreement, all of which are incorporated in and made a part of this Agreement. This Agreement supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement. This Agreement is in the English language only, which language will be controlling in all respects. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any subsequent breach. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, partnership, or joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other Agreement between the parties or under applicable law. Customer may not assign or delegate, whether by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement to any third party without the prior written consent of aWhere. For the purposes of this Section, any change of control of Customer will be deemed an assignment. aWhere will not be liable for any failure in performance under this Agreement to the extent that such failure results from causes beyond aWhere’s reasonable control. This Agreement may be executed in one or more counterparts, duplicate originals, or facsimile versions, each of which will be deemed an original, and all of which together will constitute one and the same instrument.