THIS SYSTEM AND ITS RELATED SERVICES ARE SOFTWARE PROVIDED SUBJECT TO THESE TERMS AND CONDITIONS. PLEASE READ THE FOLLOWING INFORMATION CAREFULLY.
YOU UNDERSTAND AND AGREE THAT BY CREATING AN ACCOUNT, LOGGING IN, OR BY INSTALLING, ACCESSING, OR USING THE SYSTEM, PRODUCTS, SERVICES AND ASSOCIATED DOCUMENTATION AND ENHANCEMENTS (AS DEFINED BELOW) PROVIDED WITH THIS AGREEMENT, YOU WILL BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DAIRY LLC IS NOT WILLING TO LICENSE TO YOU AND YOU MAY NOT USE THE SYSTEM AND OTHER ITEMS DESCRIBED ABOVE.
This License Agreement (“Agreement”) is a binding legal contract between Licensee (either an individual or a legal entity) and DAIRY LLC, with its principal place of business at 10 Forest Ave Suite 101, Fond du Lac, WI (“Licensor”). By (i) signing this Agreement; (ii) downloading, installing, accessing or using the Licensed System or Enhancements (both as defined below) or any associated documentation (collectively, the “System”); or (iii) uploading, transferring, or otherwise providing content, data or information (the "Data") required in connection with Licensee's use of the System Licensee will be bound by the terms of this Agreement. If Licensee does not agree to the terms of this Agreement, Licensor is not willing to license any right to use or access the System to Licensee. In such event, Licensee may not download, install, access, use or copy the System. The licensed System shall include the products and services relating to the System that are made available via the Internet or otherwise provided to Licensee by Licensor.
SYSTEM ACCESS AND USE LICENSE
The System is licensed to Licensee, not sold. Except for the limited license granted in this Agreement, Licensor and its licensors retain all right, title and interest in the System, all copies, and all proprietary rights in the System, including copyrights, patents, trademarks and trade secret rights.
1. GRANT OF LICENSE. This Agreement grants Licensee the following rights, as applicable:
a. License. During the term of this Agreement, Licensor grants Licensee a revocable, nontransferable, nonexclusive license to use the object code version of the System for the purpose of data collection and testing operations hosted by Licensor or its designee for Licensee's internal use only.
b. Enhancements. Licensor reserves the right to upgrade, enhance, change or modify the System at any time in its sole discretion (“Enhancements”). Any Enhancements made available to Licensee by Licensor, if any, will be subject to the terms of this Agreement.
c. Term. The license will commence on the date Licensee first use the System or accept this Agreement, whichever is earlier, and continue in effect until it is terminated as provided in Section 4 (Termination).
2. LIMITATIONS ON LICENSE. The license granted to Licensee in this Agreement is restricted as follows:
a. Limitations on Copying and Distribution. Licensee may not copy or distribute the System except to the extent that copying is necessary to use the System for purposes set forth herein.
b. Limitations on Reverse Engineering and Modification. Licensee may not reverse engineer, decompile, disassemble, modify or create works derivative of, similar to, or competitive with the System. Licensee may not alter or modify any disabling mechanism which may be resident in the System. To the extent I take any such actions I hereby assign, and agree to assign, the any works or inventions resulting from such actions to Licenor.
c. Licensee Data Ownership. Licensee retains ownership of all original data uploaded, transferred or otherwise provided with use of the System. Licensor may collect, use, maintain and make available all Data provided in connection with use of the System for internal or research purposes to debug and improve the software.
d. Sublicense, Rental and Third Party Use. Licensee may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the System, or directly or indirectly permit any third party to use or copy the System. Licensee will keep any passwords associated with use of the System in strict confidence, and will not share passwords with any third party.
e. Client System. In the event Licensee provides access to the System to any authorized end user, Licensee shall be responsible for ensuring that the each such end user is presented with and bound by the terms of this End User License Agreement. Licensee agrees to defend, indemnify and hold Licensor harmless from and against any claims against or losses incurred by Licensor arising out Licensee's failure to comply with the foregoing.
f. Proprietary Notices. Licensee may not remove any proprietary notices (e.g., copyright and trademark notices) from the System.
g. Use in Accordance with Documentation. All use of the System shall be in accordance with the Licensor's corresponding then current documentation (the "Documentation").
h. Compliance with Applicable Law. Licensee shall be solely responsible for ensuring that Licensee's use of the System is in compliance with all applicable foreign, federal, state and local laws, and rules and regulations.
i. Confidentiality. Licensee shall maintain the System and documentation in strict confidence and shall not disclose them or make them available to any unauthorized third parties.
3. FEES. The Licensee must pay all fees by their due date notified to Licensee and in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date may result in late fees, interest, repayment of collection fees, and/or the immediate termination of the licenses granted under this EULA.
4. LICENSEE WARRANTIES
a. Integrity of Data. Licensee represents and warrants that the Data uploaded, transferred, or otherwise provided in connection with use of the System are true and accurate. Licensee shall indemnify Licensor for any intentional or reckless upload, transfer, transmission, or provision of false, misleading, or inaccurate Data.
b. Covenant Not to Compete or Develop Similar System. Licensee represents and warrants that it will not sell or license any product that competes with or is similar to the Licensed System during the Term of this Agreement and for two (2) years after the termination of this Agreement for any reason. In addition, Licensee expressly warrants that Licensee shall not, directly or indirectly, do or attempt to do, or permit any person to do or attempt to: use or modify, or allow others to use or modify (pursuant to a sublicense or otherwise), the Licensed System or any related information that is subject to Section 2.i. (Confidentiality) of this agreement or data belonging to or pertaining to the Licensed System for the purpose of creating computer software which is competitive with the Licensed System; or furnish any information, data or copies of the Documentation to any third party to assist in the creation or design of competitive computer software.
5. TERMINATION
a. Breach of Agreement. Without prejudice to any other rights, Licensor may terminate this Agreement on thirty (30) calendar days prior written notice if Licensee fails to comply with any of the terms and conditions of this Agreement and fail to cure the failure within the foregoing period.
b. Infringement Claims. In the event of a claim of intellectual property infringement by any third party relating to the System (“Infringement Claims”), Licensor reserves the right to immediately terminate this Agreement and the rights granted hereunder.
c. Termination for Convenience. Licensee may terminate this Agreement at any time by discontinuing use of the System, complying with Licensee's termination obligations set forth below, and providing Licensor sixty (60) calendar days prior written notice. Licensor may also terminate this agreement for any reason upon providing sixty (60) calendar days written notice.
d. Licensee’s Termination Obligations. In the event of any expiration or termination of this Agreement for any reason, Licensee must remove all copies of the System and all of its components from all of Licensee's systems, and destroy all related media and documentation, if any. Licensee agrees that Licensor shall have no obligation to return any Data as the result of the termination of this Agreement for any reason.
6. LICENSOR WARRANTIES. To the maximum extent permitted by applicable law in the jurisdiction in which the Software or any Supplementary Software is supplied or Maintenance is provided, Licensor provides the Software and any Maintenance AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EULA, hereby disclaim all other warranties and conditions, whether express, implied or statutory. Licensee understands and agrees that Licensor makes no warranties for the System, including any physical media and documentation. Licensor makes no representations or warranties regarding uptime or accessibility of the System. Licensor shall not be liable for failures caused by third party hardware and System (including Licensee's own systems), misuse of the System, or Licensee's negligence or willful misconduct.
7. WARRANTY DISCLAIMER. WARRANTY DISCLAIMER. THE SYSTEM AND ANY ASSOCIATED MAINTENANCE SERVICES ARE SOFTWARE PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SYSTEM AND MAINTENANCE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SYSTEM WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SYSTEM WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE ANY ADDITIONAL LICENSOR WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF LICENSOR’S OBLIGATIONS HEREUNDER. THE SYSTEM MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. LICENSOR HAS NO OBLIGATION TO PROVIDE OR SUPPORT CONNECTIVITY SERVICES TO THE SYSTEM. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSOR DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SYSTEM; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE LICENSEE'S DATA, WEB-SITES, COMPUTERS, OR NETWORKS. LICENSOR SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. LICENSEE IS SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF LICENSEE'S DATA AND SYSTEMS.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SYSTEM, EVEN IF LICENSOR HAS NOT BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE LIABILITY OF LICENSOR AND ITS SUPPLIERS OR LICENSORS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE PAST THREE MONTHS SUBSCRIPTION FEES, IF ANY, FOR THE SYSTEM.
9. INDEMNITY
a. Licensee agrees to indemnify, defend and hold harmless Licensor from and against any and all third party claims of any kind (along with attorney's fees and litigation costs) arising out of, resulting from, or in connection with Licensee's breach of this Agreement or Licensee's use or misuse of the System.
b. Licensee agrees to indemnify and hold harmless Licensor and its parent and their respective officers, directors, shareholders, agents, affiliates, and licensors for any damages arising out of, resulting from, or in connection with Licensee's intentional or reckless transmission of inaccurate, misleading or false Data in violation of Section 4.a. of this Agreement.
10. GOVERNING LAW. This Agreement is governed by and construed in accordance with the laws of the State of Wisconsin. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods nor any provision of the Uniform Computer Information Transactions Act (“UCITA”) whether or not UCITA has been enacted in the State of Wisconsin.
11. GENERAL. This Agreement constitutes the entire understanding and agreement between Licensor and Licensee with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement. In particular, if Licensee is a current licensee of the System, this Agreement shall supersede Licensee's existing license agreement and that agreement shall be of no further force or effect. This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Any failure by Licensor to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. The following provisions shall survive any termination or expiration of this Agreement: Sections 2 (Limitations on License), 5 (Termination), 7 (Warranty Disclaimer), 8 (Limitation of Liability), 9 (Indemnity), 10 (Governing Law), and 11 (General). Licensor may assign any of its rights or obligations hereunder as it deems necessary. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
12. U.S. GOVERNMENT RIGHTS. The System is commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer System) and 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer System and/or commercial computer System documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFAR”) and its successors.
13. AUTHORIZATION. By (i) signing this Agreement; (ii) downloading, installing, accessing or using the Licensed System and any associated documentation and Enhancements; or (iii) accessing the System, Licensee indicates that Licensee has the authority to bind itself and Licensee's organization to the terms of this Agreement.