NOTICE TO ALL USERS: PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “I AGREE” BUTTON YOU AGREE THAT THIS EVER.AG LICENSED APPLICATION END USER LICENSE AGREEMENT (THE “AGREEMENT”) IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU AND THAT YOU ARE AN AUTHORIZED USER OF THE LICENSED APPLICATION. IF YOU DO NOT AGREE, THEN YOU MUST CLICK THE “I DO NOT AGREE” BUTTON AND YOU MUST IMMEDIATELY CEASE AND DESIST FROM USING THE LICENSED APPLICATION.
- DEFINITIONS. The following definitions of certain key terms used in this Agreement shall apply:
1.01 “Agreement” means, collectively, this Agreement and any agreements entered into by You and Ever.Ag in writing which are expressly made part of this Agreement.
1.02 “Authorized User” means You, as a user of the Licensed Application who Ever.Ag has determined, in its sole discretion, may be granted access to the Licensed Application by virtue of Your relationship with an entity with whom Ever.Ag has a business relationship and certain agreements in place, including agreements related to the confidential and proprietary nature of the information and documents, and that such information and documents are trade secrets of Ever.Ag.
1.03 “Beta Services” is a version of Ever.Ag software that is designated as beta, pilot, limited release, early adoption, non-production, sandbox, evaluation or similar description and has yet to be fully released to the general public.
1.04 “Documentation” means any materials provided by Ever.Ag, in electronic or other form, that describe the installation, operation, use, or technical specifications of the Licensed Application.
1.05 “Ever.Ag” “We,” “Our,” and “Us” refer to Dairy, LLC, dba Ever.Ag, a Delaware limited liability company, and its affiliates, successors, and assigns.
1.06 “Licensed Application” means the [Mobile Manifest application] that is accessible through [the App Store], as well as any updates or revisions to the same made by and including any related Documentation which may be provided by Ever.Ag.
1.07 You” and “Your” refer to You as an individual person or single entity to whom Ever.Ag has agreed to provide access to the Licensed Application as provided herein. “You” shall also refer to all Your permitted successors and assigns.
2. ACCESS AND LICENSE GRANT. Ever.Ag agrees to provide You with access to the Licensed Application, as further specified below. Such access shall be governed by the terms of this Agreement.
2.01 Subject to all conditions and limitations set forth in this Agreement, Ever.Ag grants You, and You accept, a limited, non-exclusive, non-transferable, non-assignable license to download and install the Licensed Application in accordance with the Documentation, and to use and run the Licensed Application in accordance with this Agreement and the Documentation and solely for Your internal business purposes.
2.02 Ever.Ag will attempt to provide access to the Licensed Application on a twenty-four hours per day, seven days per week basis. Notwithstanding the foregoing, You acknowledge and agree that access to the Licensed Application may be interrupted or disrupted from time to time, and that Ever.Ag will not be liable for any damages, direct or indirect, arising out of any interruption to or disruption of access to the Licensed Application.
2.03 Upon making a determination that You are an Authorized User, Ever.Ag will provide You with access to the Licensed Application by providing You with a unique user identification and password. This user identification and password shall allow You to access the Licensed Application.
2.04 You shall comply with, and shall be responsible for compliance with the rules set forth in this Agreement and promulgated from time to time by Ever.Ag regarding use and access to the Licensed Application. You shall indemnify and hold Ever.Ag harmless against all claims and/or losses, including attorneys’ fees, related to a breach of this Agreement by You. Ever.Ag reserves the right, at any time and in its sole discretion, to terminate Licensed Application access for a failure to comply with the terms of this Agreement.
2.04.1 You shall maintain Your passwords in confidence and Ever.Ag shall have no liability therefor. You are responsible for any and all activities that occur on Your account. You agree to notify Ever.Ag immediately of any unauthorized use of Your account or any other breach of security of which You become aware. We shall not be liable for any loss to You resulting from someone else using Your password or account, either with or without Your knowledge.
2.04.2 You shall not modify, copy, download, transmit, distribute, perform, reproduce, publish, license, transfer, sell, use to create works from or use the Licensed Application in any way other than as authorized hereunder.
2.04.3 You shall not alter any material on the Licensed Application (including, but not limited to, removing, modifying, or altering any confidentiality, copyright, and proprietary rights notices that may be present) other than Your own data, and shall not “mirror” (i.e.: create a replica of the Licensed Application or features on the Licensed Application that diverts traffic from the Licensed Application) any material contained on the Licensed Application.
2.04.4 You shall not use the Licensed Application in any manner that could disable, overburden, or impair any Ever.Ag server, or interfere with any other person’s use and enjoyment of the Licensed Application through hacking, password mining or any other means. You shall not obtain or attempt to obtain any materials or information on the Licensed Application through any means not intentionally made available to You through the Licensed Application.
2.04.5 You are granted a limited license to print or download sufficient copies of the content from the Licensed Application solely for internal business use, provided You keep intact all copyright and other proprietary notices.
2.04.6 You agree and understand that We do not screen, review, or control the information provided by You on the Licensed Application. We are not responsible for the information or material submitted to Us by You.
2.04.7 You agree that We may collect and use technical data and related information—including but not limited to technical information about Your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to You (if any) related to the Licensed Application. We may use this information, as long as it is in a form that does not personally identify You, to improve Our products or to provide services or technologies to You.
2.04.8 The Licensed Application may enable access to third-party services and websites (collectively and individually, “External Services”). You agree to use the External Services at Your sole risk. We are not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Licensed Application or External Service, including but not limited to financial and location information, is for general informational purposes only and is not guaranteed by Us. You will not use the External Services in any manner that is inconsistent with the terms of this Agreement or that infringes the intellectual property rights of Us or any third party. To the extent you choose to use such External Services, You are solely responsible for compliance with any applicable laws.
3. TERMINATION OF SERVICE. Ever.Ag reserves the right to terminate the Licensed Application and Your right to access the Licensed Application at any time, without notice, for any reason, including for conduct that We believe violates this Agreement and/or is harmful to other users of the Licensed Application, to Us, or Our affiliates. Further, You shall immediately terminate Your use of the Licensed Application if Your relationship with an entity with whom Ever.Ag has a business relationship has been terminated, suspended, or otherwise modified in any way.
4. OWNERSHIP, COPYRIGHT, AND TRADEMARK.
4.01 You agree and acknowledge that Ever.Ag is the owner or licensee of all source code and materials that appear on the Licensed Application (other than the information and data that You input into the Licensed Application for Your own use) and You will not challenge those rights or do anything that might impair or damage those rights. The Licensed Application is protected by copyright, trademark, and other laws of the United States and other countries. Any unauthorized use of any material on the Licensed Application may violate such laws.
4.02 The trademarks, logos, and service marks used and displayed on the Licensed Application (the “Trademarks”) are registered and unregistered trademarks of Ever.Ag and others. Nothing on this Licensed Application should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademarks without the written permission of the trademark owner.
4.03 You should assume that everything You see, read or use on the Licensed Application is copyrighted or protected by trade secrets and may not be used except as permitted in writing by Ever.Ag. If You make any permitted copies of the Licensed Application, or portions of the Licensed Application, such copies must include the appropriate copyright, trademark, or other proprietary notices. No links may be established to any part of the Licensed Application and no information on the Licensed Application may be framed without Our prior written approval of Ever.Ag. If You modify or use the materials for any other purpose You will be violating the intellectual property rights of Ever.Ag, which it vigorously protects.
5. CONFIDENTIALITY
5.01 By using the Licensed Application, You further acknowledge that You may be furnished with, receive, or otherwise have access to information of or concerning Ever.Ag that Ever.Ag considers to be confidential, a trade secret or otherwise restricted. “Confidential Information” means any information that is treated as confidential by a Party, or its affiliates or representatives, whether in oral, written, electronic or other form or media, whether or not such information is marked, designated or otherwise identified as “confidential,” and includes any information that due to the nature of its subject matter or circumstances surrounding its disclosure, would reasonably be understood to be non-public, confidential or proprietary, including, without limitation: (a) all information concerning past, present and future business affairs including finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, research, development, sales and other commercial strategies; (b) all information concerning unpatented inventions, ideas, methods and discoveries, know-how, trade secrets, unpublished patent applications and invention disclosures, invention summaries and other confidential intellectual property; (c) all designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; (d) all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials that contain, are based on, or otherwise reflect or are derived from, any of the foregoing in whole or in part. Confidential Information does not include Information that: (w) was already known by or in the possession of You without restriction on use or disclosure before the receipt of such information directly or indirectly from or on behalf of Ever.Ag; (x) was or is independently developed by You, as established by documentary evidence, without reference to or use of any of Ever.Ag’s Confidential Information; (y) was or becomes generally known by the public other than as a result of any breach of this Agreement, or other wrongful act, of You or Your affiliates, or Your representatives; or (z) was or becomes available to You or Your affiliates, or Your representatives received by You from a third party who was not, at the time, under an obligation to Ever.Ag or its affiliates or its representatives or any other person to maintain the confidentiality of such Confidential Information.
5.02 You shall: (a) protect and safeguard the confidentiality of Ever.Ag’s Confidential Information with at least the same degree of care You would protect You own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use Ever.Ag’s Confidential Information, or permit it to be accessed or used, for any purpose other than as specified in this Agreement, or otherwise in any manner to Ever.Ag’s detriment; and (c) not disclose any such Confidential Information to any person or entity, except strictly in connection with the performance of Your job responsibilities and only to representatives who (1) need to know the Confidential Information to assist You, or act on Your behalf, in relation to the purpose or to exercise Your rights under the Agreement; (2) are informed by You of the confidential nature of the Confidential Information; and (3) are subject to confidentiality duties or obligations to Ever.Ag that are no less restrictive than the terms and conditions of this Agreement; and be responsible for any breach of this Agreement caused by any of its representatives or affiliates.
6. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY. No warranties of any kind are made with respect to the Licensed Application.
6.01 YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE USE OF THE LICENSED APPLICATION. THE LICENSED APPLICATION IS PROVIDED ON AN “AS IS” BASIS. EVER.AG AND ITS SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE LICENSED APPLICATION OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE LICENSED APPLICATION. TO THE FULLEST EXTENT PERMISSABLE BY APPLICABLE LAW, EVER.AG AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS, AND FREEDOM FROM ERRORS, VIRUSES, BUGS OR OTHER HARMFUL COMPONENTS.
6.02 From time to time, Ever.Ag may make Beta Service available to You through the Licensed Application. You may choose to try such Beta Service or not in Your sole discretion. If You participate in beta testing, You may be asked to provide feedback to Ever.Ag regarding the Beta Service. Use of the Beta Service is at your sole risk and you acknowledge the Beta Service may contain bugs or errors. You acknowledge and agree that Ever.AG BETA SERVICE AND DOCUMENTATION, ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. EVER.AG EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EVER.AG SHALL HAVE NO INDEMNIFICATION OBLIGATIONS AND NO LIABILITY OF ANY TYPE WITH RESPECT TO THE BETA SERVICE UNLESS SUCH EXCLUSION IS UNENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE EVER.AG’S LIABILITY WITH RESPECT TO THE BETA SERVICE PROVIDED SHALL NOT EXCEED $500.00. Ever.Ag shall have no obligation to maintain, correct, update, change, modify, or otherwise support the Beta Service in beta testing. Ever.Ag may discontinue providing service to the Beta Service at any time.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL WE, OUR AFFILIATES, OR ANY OF OUR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE LICENSED APPLICATION, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE LICENSED APPLICATION (INCLUDING ANY INFORMATION, PRODUCTS OR SERVICES ADVERTISED IN, OBTAINED ON OR PROVIDED THROUGH THE LICENSED APPLICATION OR CONTENT CREATED ON OR THROUGH THE LICENSED APPLICATION). IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE LICENSED APPLICATION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE LICENSED APPLICATION. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE LICENSED APPLICATION, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, GROSS NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, EVEN IF THE CLAIM ALLEGES THAT THE INDEMNIFIED PARTIES’ CONDUCT WAS WILLFUL.
8. INDEMINATION
You hereby agree to indemnify and hold Ever.Ag, its directors, officers, members, managers, employees, agents, affiliates, suppliers and licensors harmless from and against any and all third-party claims of liability, losses, damages and costs, including, without limitation, reasonable attorneys’ fees, arising out of or in connection with your use of or inability to use the Licensed Application or its content, products or services.
8.01 JURISDICTION AND GOVERNING LAW
YOU AGREE THAT ANY DISPUTE BETWEEN YOU AND EVER.AG WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA AND THE STATE OF TEXAS, WITHOUT REGARD TO CHOICE OF LAW RULES, AND THAT ANY LEGAL ACTION BROUGHT BY ONE PARTY AGAINST THE OTHER WILL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS IN COLLIN COUNTY, TEXAS.
9. ASSIGNMENT. This Agreement and any rights granted under them, may not be transferred or assigned by You, but may be assigned by Ever.Ag without restriction.
10. GENERAL.
10.01 This Agreement constitutes the entire agreement between You and Ever.Ag. It governs Your use of the Licensed Application, and completely replaces any prior agreements, whether electronic, oral or written, between You and Us in relation to the Licensed Application. Even if We act in a way that You believe to be inconsistent with this Agreement, those actions will not be deemed a waiver or constructive amendment of this Agreement. Similarly, Our failure to object to Your breach of Your obligations under this Agreement does not constitute a waiver of any of Our rights. If any provision of this Agreement is ruled unlawful, void, or unenforceable, that provision will be severed from this Agreement, and the other provisions will remain effective and enforceable. In addition, the severed provision will be deemed replaced with a comparable provision that most closely reflects the intent of the parties. The Confidentiality, Disclaimers of Warranties, Limitations of Liability, and Jurisdiction and Governing Law sections of this Agreement shall survive any such termination.
10.02 You agree that no joint venture, partnership, employment, or agency relationship exists between You and Us as a result of this Agreement or Your access to and use of the Licensed Application.
10.03 No provision of this Agreement may be interpreted to limit Our right to comply with governmental, court, and law enforcement requests or requirements relating to Your use of the Licensed Application or information provided to or gathered by Us with respect to such use.
10.04 A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.