AgOS Services Agreement

1. DEFINITIONS.

1.1 “Agreement” means the Support Terms, Proposal, AgOS Terms of Use, and this AgOS Services Agreement, along with all terms contained or referenced in any of the foregoing.

1.2 “AgOS Cloud Service” means the AgOS software solution identified in the Proposal.

1.3 “AgOS Terms of Use” means AgOS Terms of Use (located at http://www.agworks.net/agos-cloud-service-terms-of-use/)

1.4 “AgWorks” means AgWorks, LLC, a Washington limited liability corporation.

1.5 “Authorized Sites” means the physical premises owned and controlled by Customer listed in a Proposal where Customer may use the AgOS Cloud Service.

1.6 “Authorized User” means an individual Users is an employee of Customer and who has been provided a unique user log in and password by AgWorks for administrator use rights to access and use the AgOS Cloud Service at a site similar to https://x1234.agworks.com/apps/agos/, where x1234 is replaced with Customer’s legal name or some reasonable representation of Customer’s name.

1.7 “Client User” means an Admin or Permissioned User who is accessing the AgOS Cloud service by way of a unique log in and password that has been issued by Customer or by AgWorks via the Admin Console within the AgOS Cloud Service.

1.8 “Customer” means the individual or entity identified as in the “Customer” Proposal.

1.9 “Customer Data” means any content, data, and other information provided by Users to AgWorks through the AgOS Cloud Service.

1.10 “Documentation” means user manuals, instructions, and other documentation, whether in written or electronic form, that AgWorks generally provides to Customers regarding the AgOS Cloud Service.

1.11 “Service Term” means the Service Term specified in the Proposal.

1.12 “Proposal” means the written order form executed by AgWorks and Customer that describes the AgOS Cloud Service, contains specific terms and conditions applicable to the AgOS Cloud Service, and which references this AgOS Service Agreement.

1.13 “Support” means the maintenance and support services for the AgOS Cloud Service described in the Support Terms.

1.14 “Support Terms” means AgWork’s then-current standard Maintenance and Support Terms for AgOS Cloud Service located at http://www.agworks.net/agos-cloud-service-terms-of-use/

1.15 “User” means any individual that accesses and uses the AgOS Cloud Service under Customer’s account, including Authorized Users and Client Users.

Capitalized terms use but not defined within this Agreement will have the meanings assigned to them in the Proposal, Support Terms, or the AgOS Terms of Use.

2. SERVICES.

2.1 Customer has ordered and accepted the AgOS Cloud Service selected by Customer in one or more Proposal(s). The AgOS Cloud Service will be provided to Customer according to the terms of the Agreement.

2.2 In connection with AgWorks providing the AgOS Cloud Service, AgWorks may develop modifications to the AgOS Cloud Service and/or new software programs (collectively, the “Developed Software”) and may provide implementation, support, and professional services as indicated in the Proposal.

3. ACCESS TO THE AGOS CLOUD SERVICE.

3.1 Access Right. Subject to the terms, conditions, and limitations set forth in this Agreement, AgOS Terms of Use hereby grants to Customer a personal, non-transferrable, non-exclusive, non-sublicensable license for (i) Authorized Users to access and use the AgOS Cloud Service solely for Customer’s internal business purposes and (ii) for Client Users to access and use the AgOS Cloud Service solely to carry out typical agronomical and analytical functions, provided that all Users use is in accordance with this Agreement and the Documentation. AgWorks may restrict access to the AgOS Cloud Service only to Users who have a unique user identification name and password issued by AgWorks for access to the AgOS Cloud Service.

3.2 Intellectual Property. As between Customer and AgWorks, AgWorks owns and retains all right, title and interest in and to the AgOS Cloud Service, Developed Software, Documentation, and any software, programming, documentation, templates, questionnaires, methodologies, models, charts, specifications, reports, and any other intellectual property developed as a part of or resulting from AgWorks’ provision of services (including professional services) to Customer (“Developed IP”). The AgOS Cloud Service, Developed Software, Documentation, and Developed IP are protected by applicable copyright, trade secret, industrial and other intellectual property laws and rights under such laws. Except for the limited licenses granted under Section 3.1, no other rights are granted to the AgOS Cloud Service, Developed Software, Documentation, and Developed IP or any improvements, design contributions, or derivative works, by implication, estoppel or otherwise. For the avoidance of doubt, AgWorks reserves any rights not expressly granted to Customer. Customer’s rights under Section 3.1 do not include the right to access or use the AgOS Cloud Service, Developed Software, Documentation, and Developed IP to build a product or service.

3.3 CUSTOMER DATA. Customer will provide Customer Data to AgWorks in connection with the use of the AgOS Cloud Service and Customer is solely responsible for the provision of Customer Data. Customer will own Customer Data. Customer hereby grants AgWorks the right to access and use the Customer Data for the purposes of providing the AgOS Cloud Service pursuant to the Agreement and for its own business purposes. More information regarding AgWorks’ personal information handling practices is located at http://agworks.net/privacy-policy/ (“Privacy Policy,” as such document may be amended from time-to-time by AgWorks in its sole discretion) and Customer consents to AgWorks’ data collection, use, and disclosure practices outlined in its Privacy Policy.

3.4 Terms of Use. Customer and all Users must comply with the AgOS Terms of Use which each User must accept before accessing or using the AgOS Cloud Service. Customer and Users must not use the AgOS Cloud Service in any manner that is not described in the Documentation and must not license, sell, rent, lease, lend, transfer, outsource, act as a service bureau for, or otherwise provide access to the AgOS Cloud Service or utilize the AgOS Cloud Service for the benefit of any third party. In addition, Customer and Users may not use the AgOS Cloud Service in any manner that AgWorks reasonably believes is abusive or contrary to applicable law. Customer is responsible for the acts and omissions of its Users as if they were the acts and omissions of Customer including any non-compliance with the AgOS Terms of Use. Without limiting the generality of the foregoing, Customer acknowledges and accepts the AgOS Terms of Use, and accepts responsibility for its Users’ compliance with the AgOS Terms of Use. Rights of any User to utilize the AgOS Cloud Service cannot be shared or used by more than one individual. In addition, a User’s access information and privileges may not be transferred from one individual to another unless the original User no longer requires and is no longer permitted access to the AgOS Cloud Service, as a result of which that individual is no longer a User. Customer and its Users will not remove, obscure, or alter AgWorks’ copyright notices, trademarks, other proprietary rights notices, or any other content of any kind appearing in the AgOS Cloud Service or Documentation.

3.5 Data Access. If Customer desires to directly access and extract data stored within the AgOS Cloud Service, Customer may contact AgWorks Sales at sales@agworks.net (or Customer’s sales representative directly) for more information regarding the requirements for and limitations on access. AgWorks does not have an obligation to permit access to or allow the extraction of data from the AgOS Cloud Service by other means; however, if AgWorks provides access through a defined set of “read-only” API endpoints or other means Customer’s use is governed by AgWork’s standard API addendum which Customer must execute and pay any fees required by AgWorks for such access Customer may request data access to by contacting AgWorks Sales at sales@agworks.net (or Customer’s sales representative directly).

4. SERVICES AND DEVELOPMENT.

4.1 Maintenance and Support. Provided that Customer is in compliance with all of the terms and conditions of this Agreement and has paid all fees owed to AgWorks, during the Service Term, AgWorks will provide Customer with Support in accordance with the Support Terms located at http://www.agworks.net/support-terms/.

4.2 Pre-Release Software. If, during the Service Term, AgWorks provides Customer access to any evaluation or pre-release product, software, or service (“Pre-Release Items”), Customer is only permitted to use the Pre-Release Items for. the limited evaluation period indicated by AgWorks for the number of Authorized Users indicated by AgWorks at a single Authorized Site solely for purposes of internal evaluation and testing and for providing Feedback (defined in Section 10) to AgWorks. If AgWorks delivers Customer software code for Pre-Release Items in lieu of providing access on Customer’s servers, then Customer may install it on a single computer owned by Customer residing on Customer’s premises. Pre-Release Items may contain errors and discrepancies and AgWorks is not obligated to fix any errors or discrepancies. Customer further acknowledges that AgWorks is not obligated to commercially release Pre-Release Items or any feature of the Pre-Release Items and that nothing in this Agreement entitles Customer to receive access to, a copy of, or a license to, any version of the Pre-Release Items that is commercially released by AgWorks.

5. PAYMENTS.

5.1 Customer will pay AgWorks the fees for the AgOS Cloud Service and any other services provided under the Agreement, in the amount as set forth in the applicable Proposal within 30 days of the date of invoice. All amounts that are prepaid in advance are non-refundable.

5.2 Upon the renewal of the then-current Service Term for AgOS Cloud Service for which renewal is permitted, AgWorks will have the right to unilaterally increase any prices specified in the Proposal to AgWorks’ then-current fees for the applicable AgOS Cloud Service based on the length of the renewal Service Term. AgWorks will notify Customer of the increase prior to the date upon which Customer must notify AgWorks that it intends not to renew the Service Term and any increase will automatically become effective on the renewal date if renewed.

5.3 Customer will not have any right to withhold or reduce fees under this Agreement or set off any amount against fees owed.

5.4 A finance charge of 1.5% per month or the highest amount allowed by law, whichever is less, will be assessed on all payments that are past due. All payments will be made in United States Dollars.

5.5 Fees and other charges described in the Agreement do not include federal, state or local sales, foreign withholding, use, property, excise, service, or similar taxes (including any sales or value added taxes) (“Tax(es)”) now or hereafter levied, all of which are Customer’s responsibility. AgWorks, however, will be responsible for all taxes based upon its net income. With respect to state/local sales tax, direct pay permits or valid tax-exempt certificates must be provided to AgWorks prior to the date AgWorks invoices Customer for the relevant fees. If AgWorks is required to pay Taxes, Customer will reimburse AgWorks. Customer hereby agrees to indemnify AgWorks for any Taxes and related costs, interest and penalties paid or payable by AgWorks.

6. TERM AND TERMINATION.

6.1 Term. This Agreement will be effective on the date the Proposal is signed by AgWorks and will continue for the Service Term set forth in the Proposal, unless terminated earlier by either party as set forth in this Section. If the parties have executed more than one Proposal for AgOS Cloud Service, the parties may terminate an individual Proposal without terminating other Proposals.

6.2 Termination by Either Party. Either party may terminate the Agreement including any or all Proposals upon not less than 30 days prior written notice to the other party of any material breach of this Agreement by the other party, provided that the other party has not cured the material breach within the 30-day notice period.

6.3 Termination by AgWorks. AgWorks may terminate this Agreement and any or all Proposals immediately in the event of insolvency affecting Customer under which Customer (i) is unable to pay its debts. when due, (ii) makes any assignment or composition for the benefit of creditors, (iii) has appointed or suffers the appointment of a receiver or trustee for its business, property or assets, (iv) files or has filed against it any petition under the bankruptcy or insolvency laws of any jurisdiction, or (v) is adjudicated bankrupt or insolvent.

6.4 In the event of termination, all rights to access the AgOS Cloud Service automatically terminate and Customer agrees to immediately cease all use of the AgOS Cloud Service. The following Sections of this Agreement will survive termination: 3.2, 3.3, 5, 6.4, and 7-20.

7. DISCLAIMER OF WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE AGOS CLOUD SERVICE, PRE-RELEASE ITEMS, DOCUMENTATION, AND SUPPORT ARE PROVIDED AS IS AND WITH ALL FAULTS, AND AGWORKS AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE AGOS CLOUD SERVICE, PRERELEASE ITEMS, DOCUMENTATION OR SUPPORT, LACK OF VIRUSES OR BUGS, SECURITY, ACCURACY OR COMPLETENESS OF RESPONSES, DATA, OR RESULTS. IN PARTICULAR, AGWORKS DOES NOT WARRANT THAT THE OPERATION OF THE AGOS CLOUD SERVICE, PRERELEASE ITEMS, OR ACCESS TO CUSTOMER DATA WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. THE ENTIRE RISK ARISING OUT OF THE USE, PERFORMANCE OR QUALITY OF THE AGOS CLOUD SERVICE, PRE-RELEASE ITEMS, CUSTOMER DATA, DOCUMENTATION AND ANY SUPPORT, REMAINS WITH CUSTOMER.

8. EXCLUSIONS OF CERTAIN DAMAGES.
IN NO EVENT WILL AGWORKS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO ACCESS OR USE THE AGOS CLOUD SERVICE, PRE-RELEASE ITEMS, OR CUSTOMER DATA, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES OR THE REMEDIES OTHERWISE PROVIDED UNDER THIS AGREEMENT, AT LAW OR EQUITY FAIL OF THEIR ESSENTIAL PURPOSE. AGWORKS BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE OR ATTEMPTED USE OF THE AGOS CLOUD SERVICE, PRE-RELEASE ITEMS, OR DOCUMENTATION.

9. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF AGWORKS AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND CUSTOMER’S EXCLUSIVE REMEDY HEREUNDER WILL BE LIMITED TO THE ACTUAL DAMAGES CUSTOMER INCURS UP TO THE LICENSE FEES PAID TO AGWORKS FOR THE RIGHT TO ACCESS AND USE THE AGOS CLOUD SERVICE FOR THE 3 MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

10. FEEDBACK.
Customer may provide, or AgWorks may solicit, input regarding the AgOS Cloud Service and other products and services of AgWorks, including comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the AgOS Cloud Service (collectively “Feedback”). Customer agrees that AgWorks may freely use, disclose, modify, reproduce, license or otherwise distribute, and otherwise exploit Feedback without obligation or restriction of any kind on account of intellectual property rights or otherwise.

11. ASSIGNMENT.
Customer may not assign this Agreement, or any rights or duties hereunder, by contract, operation of law, or otherwise, without first obtaining the AgWorks’ prior express written consent, and any attempted Change of Control without AgWorks’ consent is void and will allow AgWorks to immediately terminate this Agreement, without notice or opportunity to cure. A “Change of Control” includes: (i) a change in beneficial ownership of greater than 50% (by one or more transaction); (ii) a merger of Customer with a third party, whether or not Customer survives; (iii) the acquisition of more than 50% of any class of Customer’s voting stock (or any class of non-voting security convertible into voting stock) by another party (by one or more transaction); and (iv) the sale or other transfer of more than 50% of Customer’s assets (by one or more transaction). Subject to the foregoing, this Agreement will bind and benefit the parties, their successors, and permitted assigns.

12. NO PARTNERSHIP.
This Agreement will not be construed as creating a partnership, joint venture, agency relationship or franchise. AgWorks may in its sole discretion sub-contract its obligations to third-parties.

13. U.S. GOVERNMENT RIGHTS.
The AgOS Cloud Service is provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the AgOS Cloud Service. If Customer uses the AgOS Cloud Service on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue use of the AgOS Cloud Service. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

14. EXPORT RESTRICTIONS.
Customer acknowledges that the AgOS Cloud Service and any Pre-Release Items are subject to U.S. export laws and regulations. Customer agrees to comply with all applicable international and national laws that apply to the AgOS Cloud Service and Pre-Release Items, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the U.S. and other governments.

15. GOVERNING LAW, JURISDICTION, AND ATTORNEY’S FEES.
This Agreement will be construed and controlled by the laws of the State of Washington, and Customer consents to exclusive jurisdiction and venue in the federal courts sitting in Spokane County, Washington, unless no federal jurisdiction exists, in which case Customer consents to exclusive jurisdiction and venue in the Superior Court of Spokane County, Washington. Customer waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses.

16. FORCE MAJEURE.
AgWorks will not be liable for any delay or default in its performance of any obligation under this Agreement caused directly or indirectly by an act or omission of Customer, fire, flood, pandemic, act of God, acts of government, an act or omission of civil or military authority of a state or nation, strike, lockout or other labor problem, inability to secure, delay in securing or shortage of, labor, materials, supplies, transportation or energy, failures of subcontractors or suppliers, or by war, riot, embargo or civil disturbance, breakdown, or destruction of plant or equipment arising from any cause whatsoever, or any cause or causes beyond AgWorks’ reasonable control. At AgWorks’ option any of the foregoing causes will be deemed to suspend AgWorks’ obligations as long as that cause prevents or delays performance, and AgWorks agrees to perform, and Customer agrees to accept performance of, AgWorks’ obligations whenever that cause has been remedied.

17. NOTICES.
All notices, authorizations, and requests in connection with this Agreement will be deemed given on the day they are (i) deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested, or (ii) sent by overnight courier, charges prepaid, with a confirming fax; and addressed to the contacts of AgWorks and Customer at the addresses set forth in the Proposal.

18. CONSTRUCTION.
If a court of competent jurisdiction finds any part of this Agreement unenforceable, that part will be enforced to the fullest extent permissible to affect the parties’ intent, and the remainder of the Agreement will continue in full force. The Agreement will be interpreted according to the plain meaning of its terms without any presumption that it should be construed in favor of or against either party. All choices by AgWorks under this Agreement are to be made in its sole discretion, unless expressly stated otherwise. Any list of examples following “including” or “e.g.,” is illustrative and not exhaustive, unless qualified by terms like “only” or “solely.” Unless stated otherwise, all references to sections, parties, terms and similar references are to the sections of, parties to, and terms of the Agreement. All captions and headings are intended solely for the parties’ convenience, and none will affect the meaning of any provision. All references to “written,” “in writing,” or other words of similar import refer to a non-electronic, paper document only, except where electronic mail communication is expressly authorized. The words “herein,” “hereof,” and words of similar meaning refer to this Agreement as a whole, including any exhibits. All references to “days” refer to calendar days, unless otherwise expressly set forth in the Agreement.

19. WAIVER.
No waiver of any provision of the Agreement will be effective unless it is in a signed writing, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.

20. CDMS DATA USAGE TERMS

THE PRODUCT INFORMATION RETRIEVED AND DISPLAYED FROM CDMS SUCH AS SDS, LABEL, AND DOT HAZMAT INFORMATION IS PROVIDED “AS IS,” WITHOUT WARRANTY EXPRESS OR IMPLIED, AND FOR INFORMATION PURPOSES ONLY. ALTHOUGH CDMS ENDEAVORS TO PRESENT CURRENT AND ACCURATE INFORMATION, THIS DATA CONTAINS INFORMATION CREATED AND MAINTAINED BY A VARIETY OF EXTERNAL SOURCES THAT MAY NOT BE CURRENT OR COMPLETE. WE DO NOT CONTROL, MONITOR OR GUARANTEE THE TIMELINESS OR ACCURACY OF THE INFORMATION PROVIDED BY SUCH EXTERNAL SOURCES. INCLUSION OF A PRODUCT IN A SEARCH RESULT DOES NOT CONSTITUTE OUR ENDORSEMENT OF THAT PRODUCT. IT IS YOUR RESPONSIBILITY TO REVIEW THE OFFICIAL MANUFACTURER PRODUCT LABEL INFORMATION, APPLICABLE REGULATIONS, AND OTHERWISE RESEARCH THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL INFORMATION, CLAIMS AND OPINIONS CONTAINED IN THESE SEARCH RESULTS. IN NO EVENT WILL WE OR OUR DATA PROVIDERS BE RESPONSIBLE OR LIABLE DIRECTLY OR INDIRECTLY FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY INFORMATION CONTAINED IN THESE SEARCH RESULTS, INCLUDING INFORMATION THAT IS OUTDATED OR INCORRECT. THIS DATA IS PROVIDED UNDER A LIMITED NON-EXCLUSIVE, REVOCABLE, NONTRANSFERABLE LICENSE, AND MAY NOT BE REDISTRIBUTED OR USED TO DEVELOP A STAND-ALONE DATABASE. FURTHER, THE DATA MAY INCLUDE MATERIALS COVERED BY REGISTERED COPYRIGHTS AND TRADEMARKS. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY THE INTELLECTUAL PROPERTY OWNERS. IN NO EVENT SHALL THE LIABILITY OF CDMS, ITS OFFICERS, DIRECTORS AND AGENTS HEREUNDER EXCEED $100 IN THE AGGREGATE.

21. ENTIRE AGREEMENT.
The Agreement constitutes the entire agreement between the parties with respect to the subject matter contemplated herein, and merges all prior and contemporaneous communications. The Agreement may not be amended except in writing duly signed by an authorized representative of Customer and AgWorks. This Agreement will prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any Proposal, or other document furnished by Customer to AgWorks. The following order of precedence will be applied in the event of conflict or inconsistency between provisions of the components of this Agreement: (i) this AgOS Services Agreement; (ii) the AgOS Terms of Use; (iii) the Support Terms; and (iv) the Proposal(s).