Terms, Conditions and License

The following Terms, Conditions and License Term shall be incorporated by reference into each Agreement entered into by Agrograph, Inc. as if fully set forth therein.

License & Services

1. Rights and License Granted.

   Agrograph hereby grants to Client a non-exclusive, royalty-free worldwide License, during the Term of the Master Agreement, for Client to access and use the Agrograph Services. Client shall have no right to use the Agrograph Services for any other purpose, implied or otherwise. Client does not have the right to such utilize the Agrograph Services for the benefit of third parties unless specifically stated in the Master Agreement.

2. Agrograph Service Coverage.

   Client shall have access to the Agrograph Services on 24 hours a day 365 days a year request. All technical and service complaints will be made to Agrograph which will address them as follows:

   1. Support and Escalation. Agrograph will provide Client technical support for the Agrograph program at no cost to the Client. Technical support will cover patches, bug fixes and functional feature support, as deemed appropriate by Agrograph. Requests for technical support can be sent to Agrograph via email, the web portal or phone, and will be received and handled by Agrograph Staff during Normal Working Hours.
   2. Agrograph's Normal Working House are 8:00 AM – 5:00 PM Central Time USA, Monday through Friday. Non-Normal Working Hours.Agrograph's non-Normal working out are Monday thru Friday before 8:00 AM and after 5:00 PM Central Time USA, as well as Agrograph's holidays. Agrograph's holidays are available upon request.

3. Minimum Standards Required for Agrograph Services.

   In order for Client's to utilize the Agrograph Services, Client must have an internet connection with an upload and download speed of no less than 1 MBPS.

4. Transfer of License.

   Client may not assign or transfer this License, or the Master Agreement set forth herein, in whole or in part, without the prior written consent of Agrograph.

Data Use & Services

5. Defintions.

   1. “Agrograph Materials” shall mean any software, code, data or other materials developed, created or transmitted to Client in order to provide any of the Services under this License, including all patents, trade secrets, confidential information, trademarks and copyrighted content and materials.
   2. “Agrograph Services"shall mean the web-based data and software made available by Agrograph to the Client to the extent of the Services as defined in the Master Agreement.

6. Rights in Data and Works.

   1. Ownership of Client Data. Agrograph agrees that Client is the owner of all right, title and interest with respect to material and data developed by Client.
   2. Ownership of Agrograph's Proprietary Material.Client acknowledges and agrees that Agrograph is the sole and exclusive owner of all rights, title and interest in and to the Services, Data and Agrograph's Material. Nothing contained herein shall grant Client title to or ownership of any of the Services, Data or Agrograph Material.

7. Confidential Information

   1. Non-Disclosure by Agrograph, Inc. Agrograph, Inc. agrees not to use, disclose, sell, reproduce, or otherwise make available Client's Confidential Information except and only to the extent necessary to perform under this Agreement. Agrograph, Inc. also agrees to secure and protect Client's Confidential Information and to take appropriate action by instruction or agreement with its employees, contractors or other agents who are permitted access to the other Client's Confidential Information to satisfy its obligations under this Section. Agrograph, Inc. acknowledges that Client is required by federal law to maintain the confidentiality of its financial information and also desires and intends to maintain the confidential status of such elements of Client's Confidential Information.
   2. Non-Disclosure by Client.Client agrees not to use, disclose, sell, reproduce or otherwise make available Agrograph, Inc.'s Confidential Information except and only to the extent necessary to perform under this Agreement. Client also agrees to secure and protect Agrograph, Inc.'s Confidential Information and to take appropriate action by instruction or agreement with its employees, contractors or other agents who are permitted access to Agrograph, Inc.'s Confidential Information to satisfy its obligations under this Section.
   3. Definitions.
      1. “Client's Confidential Information” shall mean Confidential Information of Client to which Agrograph, Inc. may be exposed and which may include, for example and without limitation, personal, financial or other non-public information concerning Client, Client's business operations or Client's Client information.
      2. “Agrograph, Inc.'s Confidential Information” shall mean Confidential Information of Agrograph, Inc. to which Client may be exposed and which may include, for example, Agrograph, Inc.'s Proprietary Information; personal, financial or other non-public information concerning Agrograph, Inc. or Agrograph, Inc.'s business operations; Agrograph, Inc.'s Client information or reports, studies, findings, data, plans or other records, and/or software related to Agrograph, Inc.'s Proprietary Information.
      3. “Confidential Information” shall mean a party's information, not generally known by non- party personnel, used by the party and which is proprietary to the party or the disclosure of which would be detrimental to the party. Confidential Information includes, but is not limited to, work product resulting from or related to Services performed under this Agreement; internal personnel, financial, marketing and other business information and manner and method of conducting business; a party's strategic operations and other business plans and forecasts; and confidential information provided by or regarding a party's employees, Clients, vendors and other contractors. The definition of Confidential Information does not include information that (i) was rightfully in the possession of a disclosing party prior to the date of disclosure of such information to disclosing party as demonstrated by competent evidence; or (ii) was in the public domain prior to the date of disclosing party coming into possession thereof, or become part of the public domain by publication or otherwise through no fault or unauthorized act or omission on the part of disclosing party; or (iii) is independently developed by disclosing party without reference to any Confidential Information, as demonstrated by competent evidence; or (iv) is acquired directly or indirectly by disclosing party from a source having the right to disclose such information, as demonstrated by competent evidence or (v) is required to be disclosed by law or regulation, in which case disclosing party will promptly notify the other party of such required disclosure, take all reasonable steps to limit the scope of such disclosure and secure the confidential treatment thereof by the recipient(s) consistent with the terms and conditions herein, and provide the other party with an opportunity to comment on such proposed disclosure.
   4. Use of Confidential Information. Each party understands that disclosure of the other party's Confidential Information could destroy the value of the information. Therefore, the parties agree to use commercially reasonable efforts to keep the Confidential Information of the other party in strictest confidence and to prevent the disclosure or publication of the other party's Confidential Information except as specifically authorized by this Agreement or with the express written permission of the party owning the Confidential Information. Each party hereby agrees to exercise at least the same degree of care to protect the other party's Confidential Information that it exercises to protect its own Confidential Information, and in any event, such care shall at least be reasonable care to prevent disclosure of the other party's Confidential Information to any third party. Internal dissemination of the other party's Confidential Information by either party shall be limited to those employees, party's agents, representatives, consultants, or affiliates whose duties justify the need to know such information and then only on the basis of a clear understanding by these individuals of their obligation to maintain the confidential status of such Confidential Information. Upon the completion of Services, each party shall discontinue using the other's Confidential Information, and, within thirty (30) days of receiving a request, shall return to the owner of the Confidential Information all Confidential Information and copies of Confidential Information that are identified in such request; provided, however, that each party's legal counsel may retain one copy of the returned Confidential Information in a secure location for purposes of identifying the responding party's obligations hereunder.

8. Non-Solicitation

   1. Non-Solicitation. During the period of this Agreement; and for a period of two (2) years immediately following the termination of the relationship by either Agrograph, Inc. or Client, with or without cause, Agrograph, Inc. and Client shall not, directly or indirectly:
      1. Solicit or induce or attempt to solicit or induce any employee of the other party to terminate employment with the other or hire any employee of the other without the other's prior written consent; or
      2. Solicit or induce or attempt to solicit or induce any supplier, vendor or contractor of the other to terminate its relationship or business with the other.
   2. Reasonable Restrictions. The undersigned acknowledge that the restrictions placed upon each party by this Agreement are reasonable and necessary.

9. Injunctive Relief

   It is hereby understood and agreed that damages shall be an inadequate remedy in the event of a breach by Agrograph, Inc. or Client of Section 7 or 8 of these Terms, Conditions and License and that any such breach will cause the non-breaching party great and irreparable injury and damage. Accordingly, the parties agree that the non-breaching party shall be entitled, without waiving any additional rights or remedies otherwise available to such party atlaw or in equity or by statute, to injunctive and other equitable relief in the event of a breach or intended or threatened breach by the non-breaching party.

Terms & Payments

10. Payment Terms and Taxes

    1. All payments shall be due within ten (10) days of Agrograph sending an invoice, unless otherwise noted in Master Agreement, and interest shall occur on all amounts not paid within ten (10) days of invoice at a rate of 10% per month of amount due.
    2. It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials rendered under this Agreement. Client shall pay any such taxes unless a valid exemption certificate is furnished to Agrograph for the state of use.

11. Termination

    1. Commencement and Termination. These Terms and Conditions shall be in force until the Client agreement with Agrograph, Inc. ends either due to the end of the Term or otherwise.
    2. Termination. Clients' rights and access to Agrograph data services shall terminate upon termination of Agrograph Master Agreement.
    3. Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Agrograph, Inc. shall allow Client all copies of files, documentation, related material and any other material that is owned by Client. Upon termination of the contract, Client shall make final payment to Agrograph, Inc. for all work done through the termination date within three (3) days of receipt of a final invoice. Expiration or termination of this Agreement shall not relieve either party of its obligations regarding Confidential Information.

Warranties

12. Warranties; Disclaimer of Warranties and Liabilities; Exclusive Remedy.

    1. Limited Warranty. Agrograph represents and warrants that during the Term of the Master Agreement, Services will be available twenty-four (24) hours a day, three hundred sixty-five (365) days per year except for (a) scheduled maintenance of no more than four (4) hours per month of which Client will receive prior notice by electronic mail and (b) subject to force majeure.
    2. Warranty Disclaimer. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FOREGOING WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER IMPLIED WARRANTIES. AGROGRAPH DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND IMPLIED WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AGROGRAPH DOES NOT WARRANT THAT THE HOSTED SERVICES WILL NOT BE UNINTERRUPTED OR ERROR FREE. CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR ANY INTERRUPTIONS IN THE HOSTED SERVICES OR ERRORS IN THE SOFTWARE SHALL BE LIMITED TO THE REMEDY SET FORTH BELOW.
    3. Exclusive Remedy. Agrograph expressly limits its damages to Client for any non- accessibility time to the pro-rata monthly charge during the system unavailability. Pro-rata credits will be based on actual hours of unavailability over the total hours in a month based on 24 hours per day unless such unavailability was foreseeable or the result of the acts or omissions of Client. Client shall not be entitled to receive any pro-rata credit if Agrograph Service unavailability is caused by or related to a Force Majeure Event, failure or incompatibility of non-Agrograph controlled equipment), interruptions or slowdowns of the Internet that are not caused by Agrograph, loss of data, scheduled maintenance of which Agrograph has informed Client, and or suspension due to lack of payment.
    4. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT OR THE USE OR PERFORMANCE OF THE AGROGRAPH NETWORK, PRODUCTS OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.CLIENT'S INDEMNIFICATION OBLIGATIONS TO AGROGRAPH, INC. SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

13. Indemnification.

    Client shall indemnify, defend, and hold harmless each of Agrograph and its shareholders, employees, officers, directors and agents and their heirs, successors and assigns (each, a “Agrograph Indemnitee”) from and against any and all claims, judgments, awards, costs, expenses, damages of every kind and nature, and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted, or imposed against Agrograph directly arising from or in connection with Client's use or misuse of Agrograph Materials, Data or Services or the unauthorized representation of the product and Services. Agrograph shall indemnify, defend, and hold harmless each of Client and its shareholders, employees, officers, directors and agents and their heirs, successors and assigns (each, a “Client Indemnitee”) from and against, any and all losses, costs, expenses, liabilities, and damages of every kind and nature (including, without limitation, reasonable attorney fees) (together, “Claims”) incurred by an Client Indemnitee arising from (a) any alleged breach of patent, trademark or copyright rights brought by any party relating to the Services or any product of Agrograph or (b) relating to any act or omission of Agrograph relating to grossly negligent, intentional or malicious act or omission of Agrograph.

General

14. Independent Contractor

    Agrograph, Inc. and Client are independent of one another and neither party's employees will be considered employees of the other party for any purpose. Nothing contained in this Agreement shall be deemed to create the relationships of employer and employee, master and servant, franchisor and franchisee, partnership or joint venture between the parties. Neither party has the authority to bind the other to any third party. Client shall have no right to direct or control Agrograph, Inc. with respect to Agrograph, Inc. activities hereunder.

15. Miscellaneous Provisions

    1. Notices. Any notice or other communication required or permitted under this Agreement shall be given in writing and delivered by hand, US mail or facsimile.
    2. Waiver. No waiver of any breach of any of the provisions of this Agreement by either party shall be deemed a waiver of any preceding or succeeding breach of the same or any other provisions hereof. No such waiver shall be effective unless in writing and then only to the extent expressly set forth in writing.
    3. Entire Agreement. This Agreement constitutes the general terms and conditions upon which Agrograph, Inc. will provide services to Client. This Agreement anticipates that Statements of Work requesting the Service will be entered into between Client and Agrograph, Inc.
    4. Modifications. No modification of this Agreement shall be effective unless in writing and signed by both parties.
    5. General. If any provision of this License, the Master Agreement or the Terms and Conditions is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby. This License and any disputes arising here under shall be governed by the laws of the State of Wisconsin USA. A failure by any party to exercise or any delay in exercising a right or power conferred upon it in this License shall not operate as a waiver of any such right or power.
    6. Severability. If any provision of this Agreement is invalid or unenforceable under any statute or rule of law, the provision is to that extent to be deemed omitted, and the remaining provisions shall not be affected in any way.
    7. Limited Effect of Waiver by Agrograph, Inc. Should Agrograph, Inc. waive breach of any provision of this agreement by the Client, that waiver will not operate or be construed as waiver of further breach by the Client
    8. Force Majeure. Agrograph is not responsible for failure to render services due to circumstances beyond its control including, but not limited to, acts of God.
    9. Disputes. If legal proceedings are commenced to resolve a dispute arising out of or relating to this License Agreement, the prevailing party shall be entitled to recover all costs, legal fees, and expert witness fees as well as any costs or legal fees in connection with appeals.
    10. Governing Law. The construction, interpretation and performance of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of Wisconsin USA, without reference to principles of conflict of laws.