This SaaS license agreement applies to, and governs any written and/or electronic order form issued by FarmSee and agreed to by Customer, by clicking and/or execution, as applicable, for the provision of the applicable license and services granted under such ordering document (the "Order Form"). This Agreement is hereby incorporated by reference into, and made a part of, such Order Form. This Agreement and the Order Form are collectively referred to as this "Agreement". This Agreement constitutes a binding agreement between FarmSee, (or the any other FarmSee subsidiary or affiliate entity specified in the Order Form, if applicable) (“Company”) and the customer specified in the Order Form ("Customer") (each, a “Party” and collectively, the “Parties”). To the extent of any conflict or inconsistency between a provision in this Agreement and a provision in the Order Form, this Agreement shall prevail, unless the Order Form specifically state otherwise.

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1.License.

Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable and revocable right and license to remotely access (i.e. on a SaaS basis) and/or use (as the case may be) the Farmsee precision livestock monitoring and growth optimization application (the "FarmSee Platform") during the Term (as defined below), solely for Customer's internal purposes and in conjunction with Customer's use of the hardware devices that Customer purchased from Company or a Company-Authorized Reseller (as applicable) (the "Authorized Equipment"). "Company Authorized Reseller" refers to any third-party entity that Company has expressly approved to sell, distribute, or market the hardware devices compatible with the FarmSee Platform. This approval may be granted through a formal reseller agreement, written authorization, or other documented means as determined by Company in its sole discretion. Company reserves the right to add or remove entities from this designation at any time and may communicate such changes to Customer as appropriate. For the avoidance of doubt, Company does not endorse or provide warranties for any services or products provided by Company Authorized Resellers other than as expressly provided otherwise herein. Unless otherwise indicated, the term “Licensed Product” includes the FarmSee Platform, the Authorized Equipment, as well as any appliance, manuals or documentation (“Documentation”) provided or made available to Customer in connection with the operation of the FarmSee Platform. Customer may only use the Licensed Product in accordance with the Documentation, subject to the use limitations indicated herein, in the Order Form and applicable laws and regulations.

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2.Services.

2.1 The support and maintenance services (as detailed in the SLA) may be performed by Company, Company Authorized Resellers, and/or Company's other certified third-party providers ("Support Providers"). The Licensed Product, any services detailed in the Order Form, any Professional Services (as defined below) and the services provided under the SLA shall be referred to as the “Services”). The Company reserves the right to provide any of the Customer's information (including, without limitation, the Customer Data, as defined below) to the Support Providers as needed to facilitate the provision of the Services and/or any related support.

2.2 The Licensed Product may be accessed solely by Customer's employees or service providers who are explicitly authorized by Customer to access and use the Licensed Product (each, a “User”). Customer shall immediately report any unauthorized access or use of the Licensed Product to Company. In order to access the Licensed Product, Customer and/or its Users may be required to set up an administrative account with Company ("Account"). Customer warrants and represents that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities of its Users and all activities that occur under or in its Account. Customer will require that all Users keep their user ID and password information strictly confidential.  

2.3 In the event Customer wishes to receive any additional services from Company which are not included in this Agreement, such as installation, deployment, configuration, customization, integration, training, or other professional services (“Professional Services”) Customer shall request same from Company in writing, and, subject to Company's agreement in its sole discretion, such Professional Services shall be set out in subsequent Statements of Work to this Agreement, as shall be negotiated and executed by both Parties (each, a “SOW”). Professional Services shall be charged in accordance with the fees and payment terms specified within the applicable SOW. Each SOW is hereby deemed incorporated into this Agreement by reference. To the extent of any conflict between the main body of this Agreement and a respective SOW, the former shall prevail, unless and to the extent that the SOW expressly states otherwise.

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3.Subscription Fees.

3.1 The Services are conditioned on Customer's payment in full of the applicable fees set forth in the Order Form.

 

4.Prohibited Uses.

Except as specifically permitted herein, without the prior written consent of Company, Customer must not, and shall not allow any User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of, make available or distribute, publicly perform, or display any part of the Licensed Product (including by incorporation into its products), or use the Licensed Product to develop any service or product that is the same as (or substantially similar to) it; (ii) sell, license, lease, assign, transfer, pledge, rent, sublicense, or share Customer's rights under this Agreement with any third party (including but not limited to offering the Licensed Product as part of a time-sharing, outsourcing or service bureau environment); (iii) use any “open source” or “copyleft Licensed Product” in a manner that would require Company to disclose the source code of the Licensed Product to any third party; (iv) disclose the results of any testing or benchmarking of the Licensed Product to any third party; (v) disassemble, decompile, decrypt, reverse engineer, extract, or otherwise attempt to discover the Licensed Product’s source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms); (vi) remove or alter any trademarks or other proprietary right notices displayed on or in the Licensed Product; (vii) circumvent, disable or otherwise interfere with security-related features of the Licensed Product or features that enforce use limitations; (viii) export, make available or use the Licensed Product in any manner prohibited by applicable laws; and/or (ix) store or transmit any malicious code (i.e., Licensed Product viruses, Trojan horses, worms, robots, malware, spyware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Licensed Product.

 

5.Mutual Warranties.

Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.

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6.Intellectual Property Rights.

6.1 The Licensed Product is not for sale and is Company’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Licensed Product (and any and all improvements, modifications and derivative works thereof) and any other products, deliverables or services provided by Company, are and shall remain owned solely by Company. This Agreement does not convey to Customer any interest in or to the Licensed Product other than a limited right to use the Licensed Product in accordance herewith. Nothing herein constitutes a waiver of Company’s intellectual property rights under any law.

6.2 If Company receives any feedback (which may consist of questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and such shall be considered Company's Confidential Information. Customer hereby irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of the Feedback.

6.3 Customer shall retain all right, title, and interest in and to any pictures and/or video data (excluding Analytics Information, as defined in Section 6.4 below) collected by the Licensed Product on behalf of Customer ("Customer Data"). Customer hereby grants Company a non-exclusive, worldwide, royalty free, sublicensable (to the Support Providers), free of charge license to make use of the Customer Data for the purposes of providing the Services, Improving the Services and developing new services.  Unless required otherwise by applicable law, following the termination of this Agreement, upon Customer's request, Company shall delete any and all copies of the Customer Data in its possession.  

6.4Company shall own all right, title and interest in and to any anonymous information which is derived from Customer's use of the Services (i.e., metadata, aggregated and/or analytics information and/or intelligence relating to the operation, support, and/or Customer’s use, of the Licensed Product) provided that such information is not personally identifiable information or identifiable with Customer (“Analytics Information”).

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7.Third Party Components.

The Licensed Product may use or include third party open source Licensed Product, files, libraries or components that may be distributed to Customer and are subject to third party open source license terms. A list of such components can be found at the link here and may be updated from time to time by Company.  If there is a conflict between any open source license and the terms of this Agreement, then the open source license terms shall prevail but solely in connection with the related third party open source Licensed Product. Company makes no warranty or indemnity hereunder with respect to any third party open source Licensed Product.

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8. Confidentiality.

Each Party may have access to certain non-public information and materials of the other Party, in any form  or media, including without limitation trade secrets and other information related to the products, Licensed Product, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, use of, or reliance on, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein; in any event, the receiving party shall remain liable for any acts or omissions of such persons. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that it promptly notifies the disclosing Party in writing of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure and cooperates reasonably with disclosing party in connection therewith. All right, title and interest in and to Confidential Information is and shall remain the sole and exclusive property of the disclosing Party.

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9.LIMITED WARRANTIES.

Company represents and warrants that, under normal authorized use, the FarmSee Platform shall substantially perform in conformance with the Documentation. As Customer's sole and exclusive remedy and Company's sole liability for breach of this warranty, Company shall use commercially reasonable efforts to repair the FarmSee Platform. The warranty set forth herein shall not apply if the failure of the FarmSee Platform results from or is otherwise attributable to: (i) repair, maintenance or modification of the FarmSee Platform by persons other than Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the FarmSee Platform; (iii) use of the FarmSee Platform other than in accordance with the Documentation; or (iv) the combination of the FarmSee Platform with equipment or FarmSee Platform not authorized or provided by Company. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FARMSEE PRODUCT, SERVICES AND THE RESULTS THEREOF ARE PROVIDED ON AN “AS IS” AND "AS AVAILABLE" BASIS. COMPANY DOES NOT WARRANT THAT: (i) THE FARMSEE PRODUCT AND/OR THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR (ii) THE FARMSEE PRODUCT WILL OPERATE ERROR-FREE. EXCEPT AS SET FORTH IN THIS SECTION 9, THE COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, SATISFACTORY QUALITY TITLE, NON- INFRINGEMENT, NON-INTERFERENCE, OR FITNESS FOR A PARTICULAR PURPOSE REGARDUBG THE SERVICES. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR CUSTOMER'S HOSTING SERVICES. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY WARRANTIES AND REPRESENTATIONS MADE BY ANY PARTY OTHER THAN COMPANY TO CUSTOMER.

 

10.LIMITATION OF LIABILITY.

EXCEPT FOR ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND/OR CUSTOMER'S MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY'S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE LICENSE BY CUSTOMER): (A) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, PROFITS, DATA, OR DATA USE, OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; AND (B) EACH PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID OR PAYABLE TO COMPANY BY CUSTOMER IN CONSIDERATION FOR THE FARMSEE PLATFORM LICENSE GRANTED HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT (INCLUDING THE ORDER FORM).

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11.Indemnification.

11.1 The Company shall indemnify, defend, and hold harmless, the Customer from and against any judgments, direct losses, damages, liabilities, costs or expenses (including, but not limited to, reasonable attorneys’ fees and legal expenses) finally awarded by court or settled (with Company's prior written consent) to the extent directly arising from any third party claim or action brought against the Customer associated with Customer’s use of the Farmsee Platform in accordance with the terms of this Agreement, and to the extent such claim or action was caused by Company's breach infringement of such third party’s Intellectual Property rights (“IP Infringement Claim”), provided that (i) the Customer promptly notifies the Company in writing of such claim; and (ii) the Customer grants the Company the authority to handle the defense or settlement of any such claim and provides the Company with all reasonable information and assistance and further provided that (iii) Company shall not be liable for any claim to the extent attributable to Customer.

11.2 If the Farmsee Platform becomes, or in Company's opinion is likely to become, the subject of an IP Infringement Claim, then Company may, at its sole discretion: (a) procure for Customer the right to continue using the Farmsee Platform; (b) replace or modify the Farmsee Platform to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Company's reasonable efforts, then Company may terminate this Agreement, provided that in such case Company will refund Customer for any pre-paid and unutilized FarmSee Platform Subscription Fees.

11.3 Notwithstanding the foregoing, Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Farmsee Platform made by a party other than Company or its designee; (ii) Customer's failure to implement Farmsee Platform updates (if applicable) provided by Company specifically to avoid infringement; (iii) combination or use of the Farmsee Platform with equipment, devices or Licensed Product not supplied by Company or not in accordance with the Documentation; or (iv) use of the Farmsee Platform in breach of this Agreement or Documentation.

11.4 This Section sets forth the ‎entire liability and exclusive remedy for any IP Infringement Claim.

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12.Term and Termination.

12.1 This Agreement shall enter into force and effect on the Order Effective Date and, unless earlier terminated in accordance herewith, shall remain in full force and effect for the subscription period detailed in the Order Form. 

12.2 Either Party may terminate this Agreement with immediate effect upon written notice if (a) the other Party materially breaches this Agreement and such breach remains uncured thirty (30) days after having received written notice thereof; or (b) a receiver is appointed for the other Party, if the other Party makes a general assignment for the benefit of its creditors, or if the other Party commences proceedings under any bankruptcy or insolvency law.

12.3 Upon termination or expiration of this Agreement: (i) the Licensed Product license granted to Customer under this Agreement shall expire, and Customer shall discontinue any further use thereof; (ii) Customer shall immediately delete and dispose of all copies of the Documentation in Customer’s or any of its representatives’ possession or control; and (iii) Company may delete any data collected or accessed by the Services. The provisions of this Agreement and any Order Form that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive, including but not limited to Sections 6, 8 and 10 hereof. The termination of this Agreement shall not limit Company from pursuing any other remedies available to it under applicable law.

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13.Miscellaneous.

This Agreement, including any related Data Processing Agreement entered into by the Parties, any Order Form(s) and any schedule or exhibits attached or referred hereto, represents the entire agreement between the Parties concerning the subject matter hereof, replaces all prior and contemporaneous oral or written understandings and statements, and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach shall not be deemed a waiver by that Party as to subsequent enforcement or actions in the event of future breaches. Any waiver granted hereunder must be in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and such provision shall be reformed only to the extent necessary to make it enforceable. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, or sale of all of the equity interests of such Party, or a sale of all or substantially all of the assets of the assigning Party. Without derogating from and subject to the abovementioned, this Agreement will bind and benefit each Party and its respective successors and assigns. This Agreement shall be governed by and construed under the laws of the State of New York, without giving effect to principles of conflict of laws, and the competent courts of New York County, New York shall have exclusive jurisdiction over any dispute related to this Agreement.  Notwithstanding the foregoing in the event of disputes that arise under this Agreement in connection with Customers that are situated outside of the United States, the Parties hereby agree that in such cases, this Agreement shall be governed by the laws of the England and Wales, without giving effect to principles of conflicts of laws, and the competent courts of London, England shall have exclusive jurisdiction over any dispute related to this Agreement. Notwithstanding anything the contrary, each Party may seek equitable relief in any court of competent jurisdiction in order to protect its proprietary rights. Each Party irrevocably waives its right to trial of any issue by jury. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party. Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Company including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, riot, acts of terrorism, earthquakes, explosions, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Company. Notices to either Party shall be deemed given (a) four (4) business days after being mailed by airmail, postage prepaid, (b) the same business day, if dispatched by facsimile or electronic mail before 15:00 hour (Eastern Time) and sender receives acknowledgment of receipt, or (c) the next business day, if dispatched by facsimile or electronic mail after the hour 15:00 (Eastern Time) and sender receives acknowledgment of receipt. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.

 

Last Update: 29 March 2024