Please read these Terms of Service (these “Terms”) carefully. These Terms govern Horizen Ag’s provision of software and services, and Customer’s (as defined below) use thereof, as set forth in an Order Form (as defined below) executed between Horizen Ag, Inc. (“Horizen Ag” or “we”) and Customer. TOGETHER, THESE TERMS AND ANY ORDER FORM(S) CONSTITUTE THE “AGREEMENT.” THE AGREEMENT IS EFFECTIVE AS OF THE ORDER FORM EFFECTIVE DATE (AS DEFINED AND SET FORTH IN THE INITIAL ORDER FORM). CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE ORDER FORM.
BY EXECUTING AN ORDER FORM THAT INCORPORATES THESE TERMS BY REFERENCE AND/OR OTHERWISE USING THE SERVICES, THE INDIVIDUAL OR ENTITY OBTAINING THE RIGHT TO ACCESS SUCH SERVICES (“CUSTOMER” or “YOU”) IS AGREEING TO BE BOUND BY AND IS A PARTY TO THIS AGREEMENT. IF THE INDIVIDUAL SIGNING THE ORDER FORM FOR CUSTOMER IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
CERTAIN ASPECTS OF THE SERVICES ARE PROVIDED WITH OR OTHERWISE COMPATIBLE WITH CERTAIN SERVICES OWNED OR CONTROLLED BY THIRD PARTIES. YOUR USE OF THOSE THIRD-PARTY SERVICES WILL BE GOVERNED BY THOSE LICENSES, AND NOT THIS AGREEMENT.
YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A DIRECT COMPETITOR OF HORIZEN AG, EXCEPT WITH HORIZEN AG’S PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Horizen Ag Solution.
“Applicable Data Protection Laws” means any applicable US state laws, regulations, orders, or judgments issued by a governmental authority that govern the privacy, security, confidentiality, protection, Processing or transfer of Personal Data.
“Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Horizen Ag Solution pursuant to Customer’s rights under this Agreement.
“Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services. For the avoidance of doubt, Customer Content does not include Derived Data.
“Derived Data” has the meaning given in Section 5.3(a).
“Documentation” means the technical materials provided by Horizen Ag to Customer, if any, in hard copy or electronic form describing the use and operation of the Horizen Ag Solution.
“Horizen Ag Solution” means the software-as-a-service application identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface or mobile application.
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
“Licensed Material” means results, reports, materials and documentation made available to Customer as part of the Services.
“Order Form” means an order form that is signed by both parties and references this Agreement.
“Personal Data” means any Customer Content, whether in electronic or paper-based form that constitutes “personal data,” “personal information,” or “personally identifiable information” or similar information governed by Applicable Data Protection Laws. For clarity, Personal Data does not include information pertaining to Customer’s business contacts and/or representatives who are Customer personnel where Horizen Ag has determined what information to collect and for what purposes.
“Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
“Professional Services” means professional services provided by Horizen Ag to Customer as described in any Order Form (as may be further elaborated in any SOW), including services relating to the Horizen Ag Solution and support, implementation, training, and on-boarding thereof.
“Services” means any services provided by Horizen Ag to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the Horizen Ag Solution and Professional Services.
Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), Horizen Ag will provide Customer with access to the Horizen Ag Solution via a web browser. On or as soon as reasonably practicable after the Commencement Date, Horizen Ag will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Horizen Ag Solution in accordance with the Access Protocols; provided that nothing herein will be construed to require Horizen Ag to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Horizen Ag Solution from the Internet.
Subject to the terms and conditions of this Agreement, Horizen Ag will exercise commercially reasonable efforts to (a) provide support for the use of the Horizen Ag Solution to Customer, and (b) keep the Horizen Ag Solution operational and available to Customer, in each case in accordance with its then-current standard policies and procedures.
Horizen Ag offers an optional text messaging program under the name Horizen (the “Horizen Text Messaging Program”). Messages are sent by SMS or RCS from Horizen Ag and include Horizen AI assistant replies, sign-in and verification messages, and alerts and reports from workflows you set up. An Authorized User may opt in by turning on text messages in their Horizen profile or by replying START to the Horizen messaging number after reviewing the program disclosure. Consent to receive text messages is optional. It is not required to create an account, to use the Horizen Ag Solution, or as a condition of any purchase.
Message frequency varies. Message and data rates may apply. Reply STOP to cancel. After you reply STOP, you will receive one confirmation and no further text messages from the Horizen Text Messaging Program unless you opt in again. Reply START to resubscribe. Reply HELP for help or contact support@horizen.ag.
Carriers are not liable for delayed or undelivered messages. If you change or give up your mobile number, turn off text messaging for the old number and update your profile. A new number requires its own consent.
Horizen Ag does not sell or share mobile numbers, or text messaging opt-in data and consent, with third parties or affiliates for marketing or promotional purposes. See the Messaging Terms and the Privacy Policy for more information.
Subject to the terms and conditions of this Agreement, Horizen Ag grants to Customer a non-exclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the Horizen Ag Solution and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Horizen Ag Solution. Customer may permit any Authorized Users to access and use the features and functions of the Horizen Ag Solution as contemplated by this Agreement; provided Customer will be solely responsible for all acts or omissions of its Authorized Users with respect to the use of the Horizen Ag Solution.
Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Horizen Ag Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Horizen Ag Solution, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Horizen Ag Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Horizen Ag Solution, except as permitted by law; (e) interfere in any manner with the operation of the Horizen Ag Solution or the hardware and network used to operate the Horizen Ag Solution; (f) modify, copy or make derivative works based on any part of the Horizen Ag Solution or Documentation; (g) access or use the Horizen Ag Solution to build a similar or competitive product or service; (h) attempt to access the Horizen Ag Solution through any unapproved interface; or (i) otherwise use the Horizen Ag Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law (including, without limitation, Applicable Data Protection Laws), the Documentation, or this Agreement. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Horizen Ag or its licensors on the Licensed Material or any copies thereof.
The Horizen Ag Solution, Licensed Materials and Documentation, and all enhancements and improvements thereto, and worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Horizen Ag and its suppliers. All rights in and to the Horizen Ag Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Horizen Ag and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Horizen Ag Solution, Documentation, or any part thereof.
Subject to the terms and conditions of this Agreement, Horizen Ag grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)), non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.
Certain items of software may be provided to Customer with the Horizen Ag Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.3 (Ownership) or 11 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Horizen Ag makes such Open Source Software, and Horizen Ag’s modifications to that Open Source Software, available by written request at the notice address specified below.
Customer hereby grants to Horizen Ag a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Horizen Ag will not identify Customer as the source of any such feedback.
In consideration for the access rights granted to Customer and the Services performed by Horizen Ag under this Agreement, Customer will pay to Horizen Ag the Fees. Except as otherwise provided in the Order Form, all Fees are billed monthly and due and payable within thirty (30) days of the date of the invoice. Horizen Ag reserves the right to modify the Fees payable hereunder upon written notice to Customer at least forty-five (45) days prior to the end of the then-current term. Horizen Ag will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided Horizen Ag has furnished such documentation for authorized expenses as Customer may reasonably request. Horizen Ag reserves the right (in addition to any other rights or remedies Horizen Ag may have) to discontinue the Horizen Ag Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times. Except as provided in an Order Form, fees are not refundable.
From time to time Horizen Ag may use certain third parties to provide payment services (e.g., card acceptance, merchant settlement and related services) (“Payment Processors”). By selecting certain billing and/or payments features, Customer agrees to comply with the terms and conditions and policies of the Payment Processors used by Horizen Ag, and hereby consents and authorizes Horizen Ag to share any information and payment instructions provided herein with Payment Processors to the minimum extent required to complete Customer’s transactions hereunder.
The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Horizen Ag’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Horizen Ag Solution to Customer. Customer will make all payments of Fees to Horizen Ag free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Horizen Ag will be Customer’s sole responsibility, and Customer will provide Horizen Ag with official receipts issued by the appropriate taxing authority, or such other evidence as Horizen Ag may reasonably request, to establish that such taxes have been paid.
Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
As between the parties, the Customer Content, and all worldwide Intellectual Property Rights in it, is and will remain the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Horizen Ag in this Agreement are reserved by Customer. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content.
Customer hereby grants to Horizen Ag a non-exclusive, worldwide, royalty-free and fully paid license, during the Term and thereafter solely to the extent set forth in Section 5.3(e), to:
(a) host, store, reproduce, transmit, display, modify, and otherwise use and Process the Customer Content as necessary to provide, maintain, support, secure, and improve the Services;
(b) create and use Derived Data in accordance with Section 5.3; and
(c) use the Customer trademarks, service marks, and logos as required to provide the Services and, unless the Order Form states otherwise, to identify Customer as a customer of Horizen Ag in promotional materials, marketing websites and the like.
(a) Creation and Ownership. Horizen Ag may create, and Customer hereby authorizes Horizen Ag to create, aggregated, de-identified and/or anonymized data, and statistical, analytical, benchmarking and modeling outputs, derived from Customer Content (collectively, “Derived Data”). As between the parties, Horizen Ag is and will be the sole and exclusive owner of all Derived Data and all Intellectual Property Rights therein, and may use, reproduce, distribute, license and otherwise exploit Derived Data for any lawful business purpose, including (i) to develop, train, validate, tune, benchmark and improve the Services and Horizen Ag’s machine learning and artificial intelligence models, and (ii) to create, publish and offer industry benchmarks, indices, analyses and other data products.
(b) De-identification Standard. Before any Derived Data is used other than in providing the Services to Customer, Horizen Ag will remove or obscure all direct identifiers of Customer, its Authorized Users and its customers, and will not disclose Derived Data in any form that identifies, or is reasonably capable of identifying, Customer or any individual. Horizen Ag will not disclose to any third party any Derived Data derived from a cohort comprising fewer than five (5) distinct customers of Horizen Ag.
(c) No Re-identification. Horizen Ag will not, and will not permit any third party to, attempt to re-identify Customer, any Authorized User or any individual from Derived Data, and will contractually prohibit re-identification by any recipient of Derived Data.
(d) No Disclosure of Customer Content. For clarity, nothing in this Section 5.3 permits Horizen Ag to disclose Customer Content itself, or any Derived Data that identifies Customer, to any third party.
(e) Survival. Derived Data is not Customer Content and is not Confidential Information of Customer. Horizen Ag’s rights in and to Derived Data, and the license granted in Section 5.2(b) to the extent necessary to retain and continue using Derived Data created during the Term, survive the expiration or termination of this Agreement for any reason and are not limited or affected by Section 10 (Confidentiality) or Section 12.4 (Data Extraction).
Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Horizen Ag’s system or data; and (e) otherwise violate the rights of a third party. Horizen Ag is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Horizen Ag Solution contrary to or in violation of the representations and warranties of Customer in this Section 5.4 (Customer Warranty) constitutes unauthorized and improper use of the Horizen Ag Solution.
Customer will obtain all third-party licenses, consents and permissions necessary for Horizen Ag to collect, access, use and otherwise Process the Customer Content for the purposes set forth in this Agreement, including the creation and use of Derived Data under Section 5.3. Without limiting the foregoing, Customer will be solely responsible for providing all notices to, and obtaining from, third parties — including, without limitation, Customer’s own customers and growers — all necessary rights and consents, including all notices and consents required under Applicable Data Protection Laws. Customer represents and warrants that it holds, and will maintain throughout the Term, all such rights and consents.
Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order to access the Horizen Ag Solution. Customer will have the ability to export its own Customer Content out of the Horizen Ag Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
Customer acknowledges that it, and not Horizen Ag, is responsible for operating Customer’s own business, including with respect to obtaining all licenses, permits and other governmental registrations to enable its use of the Services. The Horizen Ag Solution is not intended to be used as advice as to whether to engage in any particular transaction.
Where the parties have agreed to Horizen Ag’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
During the Term, Horizen Ag will maintain commercially reasonable safeguards and procedures designed to prevent the unauthorized use or disclosure of Personal Data (“Data Safeguards”). During the Term, Horizen Ag will maintain commercially reasonable physical, administrative and technical security measures designed to maintain the availability, integrity and confidentiality of Personal Data.
Without limiting Customer’s obligations under Section 2 (Provision of Services) and Section 3 (Intellectual Property), each party shall comply with all Applicable Data Protection Laws in the performance of their respective obligations under this Agreement with respect to the Processing of Personal Data. The sale, retention, use or disclosure of Personal Data shall be governed by this Agreement, including the Horizen Ag Data Processing Addendum published at horizen.ag/dpa as of the Order Form Effective Date, which is incorporated into this Agreement by reference (the “DPA”), and, with respect to information not constituting Customer Content, Horizen Ag’s Privacy Policy, as in effect from time to time. In the event of a conflict between this Agreement and the DPA with respect to the Processing of Personal Data, the DPA governs.
To the extent that Horizen Ag or Customer reasonably determine that Applicable Data Protection Laws require the parties to execute any additional agreements governing Personal Data, the parties agree to negotiate in good faith with respect to such additional agreements.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED “AS IS,” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES RESIDES WITH CUSTOMER. HORIZEN AG EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DATA ACCURACY. HORIZEN AG DOES NOT WARRANT THAT OPERATION OF THE HORIZEN AG SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO HORIZEN AG DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL HORIZEN AG’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
“Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Horizen Ag. Notwithstanding anything to the contrary in this Section 10, Derived Data is not Confidential Information of Customer, and Horizen Ag’s creation, retention and use of Derived Data in accordance with Section 5.3 is expressly permitted under this Agreement and does not require the return or destruction of Derived Data at any time.
The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Horizen Ag). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
Horizen Ag will defend at its expense any suit brought against Customer, and will pay any settlement Horizen Ag makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Horizen Ag Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Horizen Ag Solution becomes, or in the opinion of Horizen Ag is likely to become, the subject of a claim of infringement, Horizen Ag may, at the option of Horizen Ag: (a) procure for Customer the right to continue using the Horizen Ag Solution; (b) replace the Horizen Ag Solution with non-infringing software or services which do not materially impair the functionality of the Horizen Ag Solution; (c) modify the Horizen Ag Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Horizen Ag Solution and Documentation. Notwithstanding the foregoing, Horizen Ag will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Horizen Ag Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Horizen Ag Solution in combination with other products, equipment, software or data not supplied by Horizen Ag; or (iii) any modification of the Horizen Ag Solution by any person other than Horizen Ag or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Horizen Ag, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
Customer will defend at its expense any suit brought against Horizen Ag, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion; (b) Customer’s breach or alleged breach of Section 5.4 (Customer Warranty), Section 5.5 (Third-Party Rights and Consents) or Section 13.6 (Compliance with Law); or (c) claims for bodily injury or damage to physical property, to the extent (i) alleged to be caused by Customer’s or any other party’s use of the Horizen Ag Solution; or (ii) caused by the acts or omissions of Customer, its employees, officers or agents. This section states the sole and exclusive remedy of Horizen Ag and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
This Agreement will begin on the Order Form Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with this Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the Commencement Date set forth in the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with this Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current term.
Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate, except for those licenses and rights expressly stated to survive; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10 (Confidentiality); and (c) any amounts owed to Horizen Ag under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 3.5 (Open Source Software), 3.6 (Feedback), 4 (Fees and Expenses; Payments), 5.1 (Ownership of Customer Content), 5.3 (Derived Data), 5.4 (Customer Warranty), 5.5 (Third-Party Rights and Consents), 7 (Data Security; Privacy), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Indemnification), 12.2 (Termination for Breach), 12.3 (Effect of Termination), 12.4 (Data Extraction), and 13 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
For twenty (20) days after the end of the Term, as applicable, Horizen Ag will make Customer Content available to Customer through the Horizen Ag Solution on a limited basis solely for purposes of Customer retrieving Customer Content, unless Horizen Ag is instructed by Customer to delete such data before that period expires. After such period, Horizen Ag will discontinue all use of Customer Content and destroy all copies of Customer Content in its possession; provided, however, that (a) Horizen Ag may retain Customer Content to the extent required by applicable law and to the extent contained in routine backup or archival systems maintained in the ordinary course of business, which retained copies will remain subject to Section 10 (Confidentiality) until deleted in the ordinary course; and (b) this Section 12.4 does not apply to, and imposes no obligation with respect to, Derived Data, in which Horizen Ag’s rights survive in accordance with Section 5.3(e).
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New Castle County, Delaware for any lawsuit filed there against Customer by Horizen Ag arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Horizen Ag, or any products utilizing such data, in violation of the United States export laws or regulations.
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
Customer will, and will ensure that all Authorized Users, always comply with all foreign and domestic laws, ordinances, regulations, and statutes that are applicable to its and their purchase and use of the Services, Licensed Material and Documentation.
Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
Customer’s relationship to Horizen Ag is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Horizen Ag.
All notices required or permitted under this Agreement must be delivered in writing, if to Horizen Ag, by emailing support@horizen.ag and if to Customer by emailing the Customer Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Horizen Ag.