Agreement: The contract between Provider and Customer under which Provider agrees to supply Provider Applications and Subscription Services to Customer in exchange for Customer’s compliance with the Terms of Service set forth in this document.
Application Services Provider: A Customer who has agreed to be bound to the terms of the Application Services Provider Terms and Conditions and is authorized by Provider to share, distribute, or relicense Provider Applications or outputs therefrom to a party other than Customer.
Customer: The party completing a Subscription Account Order Form and identified as “Customer” on that form.
Force Majeure: Any act, event, or circumstance beyond the reasonable control of a Party to this Agreement, whether or not mentioned or foreseeable, and including but not limited to a severe weather event, earthquakes, governmental regulation, fire, flood, labor difficulties, civil disorder and all acts of God.
Log-In Information: The combination of a user name and password used to access Provider Applications and Subscription Services.
Party: Provider, Customer, or User as defined in this document.
Provider: Ninja Ag, LLC, an Oklahoma limited liability company
Provider Applications and Subscription Services: All analytical tools, algorithms, procedures, consultation services, or other processes provided to a Customer or User by Provider. Where used separately, the term “Provider Applications” include computer-based analytical tools, algorithms, and software used to generate agronomic reports, and “Subscription Services” includes agronomic recommendations and any consultation services provided by Ninja Ag personnel to Customers and/or Users.
Subscription Order: The form completed for the purposes of establishing, extending, or modifying account access to Provider Applications
User: A party who has not completed a Subscription Account Order Form but is given access to Ninja Ag, LLC applications through the creation of a login credential provided by a Customer who has agreed to be bound by the Application Services Provider Terms and Conditions.
- Grant of License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer, during the term specified in the Subscription Order, a non-exclusive, non-transferable, non-assignable, non-sublicensable license to access electronically in the manner authorized by Provider and to use, solely for internal business purposes, the Provider Applications and Subscription Services (the “Provider Applications”). Customer may not share, distribute or relicense the Provider Applications or outputs therefrom with or for any other person or entity, unless the Subscription Order states that Customer is an Application Services Provider (“ASP”), in which event the additional Provider ASP Terms and Conditions shall also apply.
- The subscription and license and corresponding fees shall commence for all Provider Applications and Subscription Services upon the earliest of (a) the Effective Date shown in the Subscription Order for the Provider Applications, or (b) the first download, access session, or use of the Provider Applications and Subscription Services by Customer, its employees or agents.
- Permitted and Prohibited Use. Customer and each of its Users agrees, as a condition of use of the Provider Applications and the Subscription Services, not to use the Provider Applications and Subscription Services for any purpose that is unlawful or prohibited by this Agreement, or in any manner that could damage, disable, overburden, or impair any Provider or Customer server, or the network(s) connected to any Provider or Customer server, or interfere with any other party’s use and enjoyment of any Service. No user may attempt to gain unauthorized access to any part of the Subscription Services, other accounts, computer systems or networks connected to any Provider or Customer server or to any part of the Subscription Services, through hacking, password mining or any other means. No Customer or Users may obtain or attempt to obtain any materials or information through any means not intentionally made available through the Subscription Services. Except as expressly set forth herein, neither Customer nor any Users may (i) copy, reproduce, alter, modify, transmit, perform, create derivative works of, publish, sub-license, distribute, or circulate the Subscription Services or any associated applications, tools or data thereof; (ii) disassemble, decompile, or reverse engineer the Provider Applications used to provide the Subscription Services, or use a robot, spider, or any similar device to copy or catalog the content available through the Subscription Services or any portion thereof; or (iii) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the Subscription Services’ control or security systems, or allow or assist a third party to do so.
- Proprietary Rights. Customer acknowledges that (a) Provider owns and controls all right, title and interest in the Provider Applications and Subscription Services and all intellectual property rights relating thereto; (b) the Provider Applications and Subscription Services, as well as Provider’s tools and infrastructure constitute valuable intellectual property of Provider; (c) Provider does not grant to Customer any right or license, either express or implied, in the Provider Applications and Subscription Services except as specified in this Agreement, and Provider reserves all other rights; and (d) Customer’s use of the Provider Applications shall be subject to the restrictions set forth in this Agreement. Provider shall be entitled to use and exploit, without restriction or charge, any ideas, improvements, suggestions, or enhancements to the Provider Applications made or provided by Customer, its personnel, or Users.
- Payment Terms. Fees for the Services (the “Fees”) are stated in United States Dollars, must be paid in United States Dollars, and are exclusive of out-of-pocket expenses of Provider. Upon expiration of the initial term, and any renewal term, this Agreement shall be automatically renewed on a year-to-year basis on the same terms as shown in this Agreement at Provider’s then-current pricing, unless Customer notifies Provider in writing at least ninety (90) days prior to the scheduled renewal date of its intention not to renew. Provider will invoice Customer for the Fees at the time of execution of this Agreement, at each scheduled renewal, and upon any future Subscription order. Any and all payments made by Customer pursuant to this Agreement are non-refundable. Customer will make payment upon acceptance of each initial Subscription order and within thirty (30) days of the date of each subsequent invoice. Provider reserves the right to suspend or cancel performance of any Services if Customer is in default of its obligations, including any payment obligations, provided in this Agreement. If Customer fails to pay an invoice when due, Provider will issue a notice of late payment, and Customer will be charged a late fee of five percent (5%) of the outstanding past-due balance or the highest amount permitted by applicable law, if less. Failure to pay an invoice and any accumulated late fees for 90 days or longer may result in the cancellation of the Customer’s access to the Provider Applications and Subscription Services. A fee of $100 will be charged for any returned check or other failure of payment tender.
- All Fees are exclusive of any Taxes. Customer will pay to Provider an amount equal to any Taxes arising from or relating to this Agreement which are paid by or are payable by Provider. “Taxes” means any form of taxation, levy, duty, customs fee, charge, contribution or impost of whatever nature and by whatever authority imposed (including without limitation any fine, penalty, surcharge or interest, excluding any taxes or franchise fees based solely on the net U.S. income of Provider. If Customer is a non-U.S. entity or engages in any use of the Services outside the U.S. and is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due Provider, then the sum payable to Provider will be increased by the amount necessary so that Provider receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.
- Licensing Rules. Customer may authorize Users to access Provider Applications and Subscription Services through the Customer’s account, provided that any such Users shall be bound to these Terms of Service. Customer shall bear responsibility for the compliance of Users with these Terms of Service and agrees to indemnify and hold harmless Provider from any damages, injuries, or other claims against Provider caused by User’s use of Provider Applications or Subscription Services.
- Provider expressly warrants that it is the owner or licensee of Provider Applications, including any and all copyrights and trade secrets, and has the right and authority to enter into this Agreement and to license Provider Applications to Customer in accordance with the terms herein as of the Effective Date. For the period beginning on the original date of delivery of the Provider Applications and continuing for thirty (30) days thereafter, Provider expressly warrants that the Subscription Services produced using the Provider Applications will perform substantially in accordance with the written specifications contained in the documentation provided by Provider with the Subscription Services.
Customer has sole responsibility for defining and maintaining its business objectives and requirements that will guide its use of the Provider Applications; training its users generally in the use of the Provider Applications; and administering the Provider Applications generally for its own internal business purposes.
EXCEPT AS PROVIDED IN THIS SECTION, ALL SOFTWARE AND SERVICES PROVIDED HEREUNDER IS PROVIDED “AS IS.” THE FOREGOING WARRANTIES ARE EXCLUSIVE OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
- IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY OR END USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES INCLUDING LOSS OF PROFITS, OR ANY AMOUNTS THAT IN THE AGGREGATE EXCEED THE FEES ACTUALLY PAID TO PROVIDER BY CUSTOMER (THE FOREGOING BEING COLLECTIVELY CALLED “DAMAGES”) INCURRED BY CUSTOMER OR ANY OTHER THIRD PARTY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER SUCH THEORY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Provider shall indemnify and hold harmless Customer and its officers, employees, agents and representatives and defend any action brought against same with respect to any third-party claim, demand or cause of action, including reasonable attorney’s fees, to the extent that it is based upon a claim that the Provider Applications infringe or violate any United States patents, copyrights, trade secrets, or other proprietary rights of a third party. Customer may, at its own expense, assist in such defense if it so chooses, provided that Provider shall control such defense and all negotiations relating to the settlement of any such claim. Customer shall promptly provide Provider with written notice of any claim which Customer believes falls within the scope of this Section 11. In the event that the Provider Applications or any portion thereof is held to constitute an infringement and its use is enjoined, Provider may, at its sole option and expense, (a) modify the infringing Provider Applications so that it is non-infringing, (b) procure for Customer the right to continue to use the infringing Provider Applications, or (c) replace said Provider Applications with suitable, non-infringing software. Notwithstanding the foregoing, Provider will have no obligation for any claims to the extent such claims result from (i) modifications or alterations of the Provider Applications made by or for Customer or any other party that were not provided by Provider or authorized by Provider in writing; (ii) use outside the scope of the license granted hereunder, (iii) use of a superseded or previous version of the Provider Applications if infringement would have been avoided by the use of a newer version which Provider made available to Customer, or (iv) use of the Provider Applications in combination with any other software, hardware, data, or materials not supplied by Provider. This indemnity obligation is subject to the limitation of liability and the other pertinent terms and conditions of this Agreement.
- Support and Maintenance Terms. The Subscription affords the Customer and Users access to the Provider’s customer support services via the contact channels specified in the confirmation of the Customer’s order. The Provider will make all commercially reasonable and practicable efforts to resolve Customer and User support issues but does not guarantee a specific time.
- Professional Services; Statement of Work. In the event that the professional or consulting services are provided to Customer, the terms of Provider’s professional services policy shall apply, as in effect from time to time.
- During the term of this Agreement, Customer and Provider may engage in co-marketing and publicity programs, including advertisements in trade and other publications, upon written approval (not to be unreasonably withheld or delayed). Provider may also use Customer’s name and logo as a reference, on Provider’s website, and in marketing materials. Customer agrees to serve as a “reference” for Provider which means that Customer may be called from time-to-time to serve as a reference to other prospective customers, current or potential investors, the press, and financial and technology analysts, as mutually agreed to by both parties. If requested by Provider, Customer further agrees to cooperate with Provider within one (1) year following the effective date of this Agreement to produce and publish a public or non-public (at Customer’s discretion), “case study” of Customer’s usage of Provider’s products.
- S. Government Customers and End Users. Any Provider Applications or related materials are “commercial items” as that term is defined in 48 C.F.R. § 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1, 227.7202-3, and 227.7202-4, if the Customer hereunder is the U.S. Government or any agency or department thereof, any Provider Applications and related materials are licensed (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users and customers pursuant to the terms and conditions of this Agreement.
- Force Majeure. If by reason of Force Majeure a Party is unable to perform in whole or in part its obligations as set forth in this Agreement, except for payment obligations, such Party shall not be liable to the other for its failure to perform said obligations.
- No Waiver. Neither Party shall be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by an authorized officer of such Party. Such a waiver shall be limited specifically to the extent set forth in said writing. Waiver as to one event shall not be construed as waiver of any right or remedy as it relates to any subsequent event.
- Assignment. Neither party may assign this Agreement or any right or obligation hereunder, without the other party’s prior written consent. However, Provider may assign this Agreement in the event of a merger or consolidation or the purchase of all or substantially all of its assets. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.
- Termination of Agreement. Provider may terminate this Agreement and the licenses granted hereunder, upon written notice for any material breach of this Agreement that Customer fails to cure within thirty (30) days following written notice specifying such breach. Customer may terminate this Agreement and the licenses granted hereunder upon written notice for any material breach of this Agreement that Provider fails to cure within thirty (30) days following the written notice specifying such breach. In the event of termination of this Agreement for any cause, all rights granted hereunder automatically revert to the granting Party.
- Customer and its Users release and waive all claims against Provider, its parent, subsidiaries, affiliated companies, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing (the “Provider Group” for the purposes of this Section 20), from any and all claims, damages, liabilities, costs and expenses arising out of Customer or User’s use of the Provider Applications and Subscription Services. California residents waive any rights they may have under § 1542 of the California Civil Code, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Customer and its Users agree to release unknown claims and waive all available rights under California Civil Code § 1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of the Provider Group.
- By virtue of this agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Customer and Provider each agree to disclose to the other party only Confidential Information that is required for the performance of obligations under this Agreement. Confidential Information shall include (a) technology and software, including related documentation and tools, (b) the terms and pricing under this Agreement, and (c) any other information that either party, as recipient, should reasonably recognize to be Confidential Information of the other party at the time of disclosure. A party’s Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (iv) is independently developed by the other party. Each party agrees to hold each other’s Confidential Information in confidence for so long as the Confidential Information is held and continues to exist. Also, each party agrees to disclose the other party’s Confidential Information only to those employees or agents who have a “need to know” such information in connection with the subject of this Agreement and are required to protect it against unauthorized disclosure. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders submitted under this Agreement in any legal proceeding arising from or in connection with this Agreement or disclosing the Confidential Information to a federal or state governmental entity as required by law.
- Certification; Recordkeeping; Audit. Provider reserves the right to monitor the use of Customer’s and User’s use of Provider Applications and Subscription Services to confirm that such use is in compliance with this Agreement. Customer agrees to retain any and all records reasonably necessary to confirm the compliance of Customer and any of its Users with the terms of this Agreement. Provider further reserves the right to audit such records to verify Customer’s compliance with the terms of this Agreement.
- This Agreement constitutes the exclusive terms and conditions with respect to the subject matter hereof. This Agreement represents the final, complete and exclusive statement of the agreement between the parties with respect to subject matter hereof and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter hereof are merged therein. The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the United States and of the State of Oklahoma without giving effect to the conflicts of laws provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Customer hereby irrevocably consents to jurisdiction of both the state or federal courts located in Oklahoma. In the event the Uniform Computer Information Transactions Act (UCITA) or any similar federal or state laws or regulations are enacted, it will not apply to this Agreement, and the governing law will remain as if such law or regulation had not been enacted.
1.1. If the Subscription Order indicates that Customer is an independent application service provider (“ASP”), Provider grants to ASP and ASP accepts from Provider a non-exclusive and non-transferable license during the term of the Agreement to: (a) provide customer recommendations and consultation services based upon Provider Application outputs and other Subscription Services; (b) integrate the Provider Applications into ASP’s own hosted applications and system (the “ASP Applications”) so that the Provider Applications and/or the information provided therefrom are operational and provide substantial value in combination with ASP’s own services, hosted applications, and system (the “Bundled Application”); (c) market the Bundled Applications as a service only as integrated into and combined with remote application services produced using the Bundled Applications (the “Bundled Service”); (d) use the Provider Applications in connection with ASP Customer’s development, marketing and support of the Bundled Applications in connection with the Bundled Service, in accordance with the terms of this Agreement; and (e) allow ASP’s own customers to access and use the Provider Applications solely as part of the Bundled Service. The foregoing license supplements the license terms contained in the Terms of Service.
1.3. Provider is not obligated to provide support of the Bundled Application, unless separately agreed between the parties. ASP shall be responsible in all cases for providing first- and second-level support (e.g., accepting and responding to all contacts and requests made by its customers).
1.4. Upon request from Provider, ASP shall provide a written report to Provider indicating the number of copies of the Bundled Application incorporating the Provider Applications distributed during the previous twelve (12) months.
1.5. Provider grants ASP the right to indicate to the public that it can offer the Provider Applications as part of the Bundled Services and to advertise and promote the Provider Applications as part of the Bundled Services. ASP shall comply with Provider’s trademark usage agreement. Upon termination of the ASP license, Provider shall discontinue all advertising, promotion and public use of the marks and logos of Provider in connection with ASP’s business.
1.6. Exercise of the ASP license and use of the Provider Applications by ASP and its customers is limited to the United States of America, Canada, and the Federative Republic of Brazil. Exercise of the ASP outside those territories shall require entry of a separate and distinct ASP license to be developed by Provider and ASP.
1.7. ASP will independently establish prices for the Bundled Services.
1.8. Provider reserves the right upon written notice to ASP to discontinue the distribution or licensing of any or all Provider Applications at any time, either on a temporary or permanent basis.
ASP will indemnify, defend, and hold harmless Provider from and against, and will defend or settle at ASP’s own expense, all claims, damages, losses and expenses, including court costs and reasonable fees and expenses of attorneys, expert witnesses and other professionals, to the extent arising out of or resulting from any representations, acts or omissions of ASP in connection with its business relating to the use of Provider Applications and/or Subscription Services, ASP Applications, and the Bundled Applications, including (a) any ASP representations, warranties, or guarantees made in excess of those contained in this Agreement; (b) any infringement by ASP of a third party’s intellectual property rights unless such infringement results solely from use by ASP of the Provider Applications in accordance with this Agreement; or (c) a third party claim against Provider arising out of the use of the ASP Applications or any other product or service provided by ASP.
4. Term And Termination.
4.1. The term of the ASP license shall run with the acceptance of the Subscription Order by Provider and shall continue until the sooner to occur of (a) ASP provides written notice terminating its Provider Account, (b) Provider provides written notice of the termination of ASP’s account, (c) the ASP account is terminated due to a failure to pay any amounts due under the terms of the Subscription Order, or (d) ASP account has not requested an order for 365 consecutive days.
4.2. Provider may terminate the ASP license and this Agreement upon written notice if ASP uses, markets or distributes the Provider Applications or the Subscription Services based on the Provider Applications separately from the Bundled Services or outside the approved territory.
THESE TERMS AND CONDITIONS ARE SUBJECT TO ALL PROVISIONS OF THE TERMS OF SERVICE THAT APPLY TO THE PROVIDER APPLICATIONS AND SUBSCRIPTION SERVICES.