AgriWare, Inc. (“AgriWare”), a Minnesota corporation with offices at 23419 472^nd Ave., New Ulm, MN 56073 maintains the Enterprise Seed Management System (“eSMS”) and Seed Management System Professional("SMS Pro"), which may be accompanied by documentation, which AgriWare creates, markets, sublicenses, distributes and supports, including any updates thereto (the “Product”). As a user of the Product, the person or entity agreeing to this contract (“Licensee”) agrees to all of the terms and conditions set forth herein and will not use the Product until and unless Licensee has expressly agreed to these terms and conditions. This License is effective upon the indicated start date set forth in the Licensee’s renewal notice or new license notice (the “Notices”).  The parties hereto agree as follows:

  1.   License to the Product; License.

A.        During the term set forth in the applicable Notices and upon full payment of the applicable fees due to AgriWare, AgriWare shall grant to Licensee a license (the “License”) to use the Product solely by the Authorized Personnel for purposes pursuant to the terms and conditions set forth in the License and separately issued Notices. 

B.        In connection with the License, AgriWare hereby grants to Licensee a nonexclusive, nontransferable, limited license and license to use the Product pursuant to this License during the Term.  Licensee shall only use and allow its Authorized Personnel to use the Product for each License for which it has paid the applicable Fees. 

C.        The Product may only be used by Authorized Personnel.  “Authorized Personnel” means Licensee’s employees or contractors.  As between Licensee and AgriWare, Licensee hereby assumes full responsibility for ensuring the appropriate use and reliance upon the Product in view of all attendant circumstances, indications and contraindications.

D.        AgriWare or its representative may periodically deliver “Updates” (i.e. updated changes to the content contained in the Product) to Licensee.  For installations hosted by Licensee, Licensee will install the Updates within fourteen (14) days of notice of availability.  Licensee shall be allowed to keep one (1) copy of the superseded material for legal archival purposes when applicable; Licensee shall destroy all additional copies of the Product.

E.         AgriWare may make changes to the Product, including, without limitation, ceasing to distribute a Product or a portion of a Product.   If AgriWare ceases to distribute a Product, AgriWare shall provide as much notice as is reasonably possible, whereupon, the License shall terminate as to such Product.  As its sole obligation, AgriWare or its distributor shall return to Licensee a pro rata refund of the portion of the prepaid Fee attributable to the terminated Product.

F.         The Product may only be utilized for Licensee’s own internal uses. 

G.        Except as expressly permitted in this License, Licensee shall not:  (i) modify the content of the Product, (ii) copy, download, upload or in any other way reproduce the Product in any form, (iii) sell, distribute, sublicense, provide access to, or transfer the Product, in whole or part, to a third party (including, without limitation, by facsimile or electronic means); (iv) create compilations or derivative works, or reverse engineer, decompile or disassemble any part of the Product;  (v) use any version of the Product other than the most current version or access the Product by any means other than through AgriWare authorized interfaces; (vi) use the Product for the benefit of a third party or give any third party beneficial use of the Product, including, without limitation, any parent, subsidiary, or affiliated company, without the express written consent of AgriWare, including unauthorized manipulation or unauthorized display or use of the Product by using framing or similar navigational technology; (vii) modify or remove any copyright, trademark, disclaimer notices, proprietary markings or restrictive legends placed on the Product; (viii) violate any applicable local, state, national or international law or use the Product for any purpose that is unlawful or prohibited by these terms and conditions; (ix) use the Product in any manner that could damage, disable, overburden or impair AgriWare's servers or networks, or interfere with any other user's use and enjoyment of the Product; or (x) attempt to gain unauthorized access to any of the Product, services, accounts, computer systems or networks connected to AgriWare through hacking, password mining or any other means.   AgriWare reserves the right to embed an automatic shutdown feature or disable access to the Product, which will render the Product inoperable beyond the scope of this License.

H.        AgriWare does not guarantee the accuracy, completeness, or usefulness of any third party content. Furthermore, AgriWare neither endorses nor is responsible for the accuracy and reliability of any opinion, advice, or statement made on the Product or on any site that might be linked to the Product by anyone other than an authorized AgriWare representatives acting in their official capacity.

I.          Licensee is entirely responsible for (i) setting up a separate log in information for each Authorized Personnel; and (ii) maintaining the security and confidentiality of Licensee’s log in information. Licensee acknowledges that by providing any information to AgriWare that is untrue, inaccurate, not current or incomplete, AgriWare reserves the right to terminate this License and Licensee’s continued access and use of the Product.  FURTHERMORE, LICENSEE IS ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT OF THE LICENSEE AND ITS AUTHORIZED PERSONNEL RELATED TO THE USE OF THE PRODUCT UNDER THIS LICENSE. Licensee agrees to notify AgriWare immediately of any unauthorized use of Licensee’s or Authorized Personnel’s log in information or any other breach of security. AgriWare will not be liable for any loss or damages of any kind that may arise as a result of someone else using Licensee’s or Authorized Personnel’s log in information, either with or without Licensee’s or Authorized Personnel’s knowledge. However, Licensee may be held liable for any losses incurred by AgriWare or another party due to someone else using Licensee’s or Authorized Personnel’s log in information.

2.    Property Rights.

A.       Licensee shall not, nor permit others to, provide, disclose, or otherwise make Proprietary Information available to, or accessible by, any person other than Authorized Personnel.  Licensee shall take appropriate security precautions to effect its obligations under this Section 3(A).  “Proprietary Information” means the Product, any permitted modifications thereto, and includes all copyrights, trademarks and other proprietary rights in connection therewith.

B.       Upon expiration or termination of any License under this License, Licensee shall immediately discontinue use of the Product.   Notwithstanding the foregoing, Licensee shall have no obligation to destroy work product of Authorized Personnel produced in accordance with the terms and conditions of this License.

C.       During the period of this License, and thereafter, Licensee agrees to permit AgriWare to inspect, during regular business hours and upon prior notice, the point or points at which the Product are or were used and to furnish whatever assistance is reasonably necessary to permit AgriWare to determine Licensee’s compliance or the extent of Licensee’s noncompliance with this License.

D.       Licensee shall ensure that any notices, including without limitation copyright, trademark, and disclaimer notices supplied to Licensee by AgriWare or its third party licensors for the Product, shall be used in compliance with any instructions contained in the Product and shall appear in a conspicuous manner on the Product and/or on all printed materials from the Product.

E.         Nothing in this License shall convey or otherwise transfer title to any Proprietary Information or any modifications within the functionality of the Product to Licensee, its Authorized Personnel or any other third party.

  3. Term and Termination.

A.       This License shall take effect as of the start date set forth in the applicable Notices, shall continue to be in effect for the term set forth in the applicable Notices, and may be renewed for additional periods as set forth in the applicable Notices (“Renewal Term”) on the same terms and conditions herein (except that any proposed adjustment to the Fees as set forth in the proposed renewal Notice shall apply unless specifically rejected).  If neither party provides notice of termination, this License shall continue on the then current terms and conditions.   Any Renewal Term shall be governed by the provisions hereof and shall be deemed to have commenced upon the expiration of the immediately preceding Initial Term or Renewal Term, as applicable.

B.       In the event of a breach of this License by either party, the other may, in addition to pursuing all other legal remedies, terminate this License, upon thirty (30) days’ prior written notice unless the breach is cured within such time.  In the event the breaching party is Licensee, AgriWare may elect to cease to distribute the Product until the breach is cured.  In the event Licensee terminates this License due to a breach by AgriWare, as its sole obligation, AgriWare shall provide Licensee a pro-rata refund of any applicable prepaid Fees.

C.        Termination of a License does not affect the parties’ obligations that have accrued prior to the License termination and which are intended to survive termination of this License.

D.        The Renewal Term will begin on August 1^st and continue through July 31^st for a 12 month sales year.

  4.    Fees and Payment .

A.       The Product and the total Fees for the initial license or renewal term are set forth in the Notices applicable to Licensee.

B.       Licensee shall pay AgriWare or its distributor all applicable Fees due.  All Fees are exclusive of applicable state or local sales, use, ad valorem, personal property, value-added taxes or other taxes not based upon the net income of AgriWare.  Licensee shall pay any such taxes, unless exempt.  However, this Section 4(B) does not apply to, and Licensee has no obligation under this License or otherwise to pay or reimburse AgriWare for, any taxes imposed on AgriWare’ income.

C.       All amounts due under this License are payable in United States currency (unless otherwise stated on the Notice) within thirty (30) days after the date of the Notice.  AgriWare may, in addition to all other legal or equitable remedies, subject any amount not paid when due to a late payment fee equal to the greater of 1½% of the unpaid amount per month, or the maximum rate allowed by applicable law.   Failure to pay the entire amount when due may also result in AgriWare disabling access to the Product or withholding the Updates until Licensee’s account is current.  Licensee shall be responsible for all charges incurred through Licensee’s account, including any applicable taxes, in accordance with billing terms in effect at the time the fee or charge becomes payable. AgriWare reserves the right to change the amount of, or basis for determining, any fees or charges, and to institute new fees, charges or terms effective upon notice to Licensees.    Licensee’s right to use the Product is conditional upon AgriWare’s receipt of payment. If payment is not received in a timely fashion, AgriWare reserves the right to immediately and without notice, either suspend or terminate Licensee access and account, thereby terminating all of AgriWare's obligations under this License. Licensee is required to pay any amounts still owed to AgriWare at the time Licensee’s account is suspended or terminated.

5.    Warranties.

A.        The Licensee is responsible for any charges associated with accessing the Product, including, but not limited to, any computer equipment, telephone or Internet connections and access software.   AgriWare makes no guarantee as to the availability of the Internet for delivery or access to the Product.   AgriWare will make reasonable efforts to ensure uninterrupted online access to and continuous availability of the Product to Licensee in accordance with this License, and to restore access to such Products as promptly as possible in the event of an interruption or suspension of the Product which is not attributable to any third-party service provider over which AgriWare has no control (e.g., an Internet or telecommunications service provider).

B.        AgriWare believes that the information contained in the Product (except with respect to any information contained therein which has been modified, as permitted hereunder) has been obtained from reliable sources.  However, except as specifically provided herein, the Product is provided “as is,” "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AGRIWARE AND ITS THIRD PARTY LICENSORS SUPPLIERS AND AGENTS DO NOT WARRANT AND EXPRESSLY DISCLAIM THAT: (i) YOUR USE OF THE PRODUCT AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE, (iii) THAT DEFECTS WILL BE CORRECTED, (iv) THAT THE PRODUCT SHALL BE AVAILABLE WITHOUT DELAY, FAILURE, INTERRUPTION OR CORRUPTION DUE TO LOCAL EXCHANGES, INTER-EXCHANGES, CARRIER LINES, ROUTES, SWITCHES AND OTHER EQUIPMENT OWNED BY THIRD-PARTIES or (v) THAT ANY SOFTWARE, SERVICES, PRODUCT OR SERVER(S) ON WHICH THE PRODUCT ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. LICENSEE’S USE OF THE PRODUCT AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE PRODUCT IS ENTIRELY AT LICENSEE’S OWN RISK.

C.       LICENSEE EXPRESSLY AGREES AS A CONDITION OF USING THE PRODUCT THAT NEITHER AGRIWARE NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO LICENSEE OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE PRODUCT; (ii) ANY CONTENT CONTAINED ON THE PRODUCT; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE PRODUCT; (iv) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE PRODUCT; (v) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE PRODUCT; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT ON THE PRODUCT, or (vii) ANY OTHER MATTER RELATING TO THE PRODUCT.

D.       IN NO EVENT SHALL AGRIWARE'S TOTAL LIABILITY TO LICENSEE FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE], STATUTORY, OR OTHERWISE) EXCEED THE TOTAL OF ALL PAYMENTS MADE BY LICENSEE TO AGRIWARE UNDER THIS AGREEMENT DURING THE TWELEVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

E.         AgriWare makes no representation or warranty that the content and materials on the Product are appropriate or available for use in locations outside the United States. Those who choose to access the Product from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. AgriWare reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the Product to any person, geographic area, or jurisdiction it so desire. 

F.         Regardless of the form of action, no action arising from this License may be brought by Licensee (including its Authorized Personnel) more than three (3) months after the cause of action arises.

G.        Licensee and it Authorized Personnel, at its own expense, agrees to indemnify, defend and hold harmless AgriWare and its directors, officers, employees and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) insofar as such Losses (or actions in respect thereof) arise out of, are related to, or are in any way connected with any use of the Product, unless such claims or damages result from the infringement of any copyright or other proprietary right of any third party (except if due to a combination with, or the addition of, products not developed or supplied by AgriWare, and/or (b) a modification of the Product after delivery by AgriWare, if applicable).  AgriWare agrees to give Licensee the opportunity to defend or negotiate a settlement of any claim, and to cooperate, to the extent reasonable with Licensee, at Licensee's sole expense, in defending or settling such claim.   Licensee shall not have the right, without AgriWare’s prior written consent, to settle any claim if such settlement (i) contains a stipulation to or admission or acknowledgement of, any liability or wrongdoing (whether in contract, tort or otherwise) or the incurrence of any costs or expenses, on the part of AgriWare, (ii) imposes any obligation upon AgriWare; or (iii) would otherwise have a material adverse effect on AgriWare’s business.  AgriWare reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification by Licensee.

6.    Miscellaneous.

A.        This License, including all Notices applicable to Licensee, constitutes the entire understanding between the parties with respect to the subject matter hereof and shall not be modified, amended or changed except by a writing signed by both parties.  Any terms or conditions appearing on the face or reverse side of any of Licensee’s purchase orders, acknowledgments or confirmations that are different from or in addition to those required hereunder shall not be binding on the parties, even if signed and returned, unless both parties hereto expressly agree in a separate writing to be bound by such separate or additional terms and conditions.

B.        This License shall be binding upon Licensee, its employees, officers and agents, including its Authorized Personnel.  The rights and obligations of Licensee hereunder may not be transferred, sublicensed or assigned to any other person, entity or individual without the express written approval of AgriWare, which approval shall not be unreasonably withheld.  AgriWare may grant, assign, or otherwise convey or transfer this License or any rights inuring to AgriWare or any obligation or duties owed by AgriWare under this License to a subsidiary or affiliated company, or to a third party successor to all or substantially all of the business, stock or assets of AgriWare, in each case, without the prior consent of Licensee.

C.        This License shall be construed and the rights and liabilities of the parties determined in accordance with the laws of the State of Minnesota, without giving effect to any body of law or precedent relating to conflicts of laws.

D.        Licensee acknowledges that a violation of any term of this License could result in irreparable injury to AgriWare and its business, and AgriWare may be entitled to equitable remedies, including an injunction for threatened or continuing breach of this License, in addition to any other remedy that AgriWare may have at law or in equity.

E.         AgriWare may deliver notice to Licensee under this License or any other published policy on the Product by email, a general notice published on the Product or by first class U. S. Mail to the street address provided by Licensee at the time Licensee become a member. Licensee may give notice to us via email, by certified U.S. Mail postage prepaid or by nationally recognized overnight courier to the following address: AgriWare, Inc., 23419 472^nd Ave., New Ulm, MN 56073.

F.         Licensee shall comply with all local laws and regulations of a country, while in that country and shall comply with all provisions of any applicable export laws of the United States Government.

G.        Notwithstanding the expiration or termination of this License for any reason whatsoever, the provisions of Sections 1G, 2, 4B, 4C, 5, and 6 shall survive and bind the parties indefinitely.

H.        In the event a court finds any provision of this License to be invalid, void or unenforceable, the remainder of this License shall remain valid and enforceable according to its terms.

I.          Should Licensee or AgriWare fail to exercise or enforce any provision of this License or to waive any rights in respect thereto, such waiver or failure shall not be construed as constituting a continuing waiver or waiver of any other right.

J.          Nothing herein shall be construed to create a partnership, joint venture or agency relationship between the parties.  Each party shall be solely responsible for their payment of all compensation owed to its employees, as well as employment related taxes and benefits.

K.        For purposes of this License, any term in the singular shall have the same meaning in the plural.

L.         The captions to the Sections hereof are not a part of this License, but are included merely for convenience of reference only and shall not affect its meaning or interpretation.

M.      This License may be executed in hard copy and electronic form and shall be considered a whole agreement.  Electronic or facsimile copies of an executed License are considered equivalent to original documents.