The Software is a product of Ever.Ag, LLC (“Ever.Ag”). The Software includes an Ever.Ag-hosted cloud service that allows Producer Data to be captured and sent to the Ever.Ag servers and it provides a web-based program that allows you to view and analyze the data associated with your dairy farm operation, including without limitation your Scope 3 Data, baseline and SIP surveys, Farm ES, Cool Farm Tool footprints, and Customer footprint packages – all in one application. Your use of the Software is governed by your subscription terms, these Terms of Use and the Privacy Policy (collectively, the “Order”). The Order comprises the entire agreement between you and Ever.Ag regarding the Software, the products and services being provided under this Order, and the data being fed into the Software.

BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS ORDER; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SOFTWARE.

Definitions: The following definitions shall apply to these terms and conditions:

1. Access Credentials shall mean any user name, identification number, password, code or security key established for purposes of accessing the Software.
2. Authorized User shall mean any individual authorized by you to access the Software via any web enabled device.
3. Confidential Information shall mean all information, in any form, concerning the business, technical plans, technology, trade secrets, know-how, plans, strategies, customers, and pricing of you and Ever.Ag, all applicable Producer Data, and all information and intellectual property concerning the Software, which is disclosed by one party to the other or learned by one party and which is not: (a) already known to the other party; (b) conveyed to the other party by a third party; (c) released by the disclosing party without restriction; (d) independently developed by the receiving party; or (e) widely known or publicly available.
4. Producer Data shall mean information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from you by or through the Software (“Producer Data”).
5. Intellectual Property Rights shall mean any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, or other intellectual property rights laws,
6. Privacy Policy shall mean the Ever.Ag policy that is incorporated herein and that describes how Ever.Ag collects, stores and uses data directly from you or via the Software, including Producer Data.
7. Software shall mean the Sustainability Platform, the specific online proprietary application and Site, including all enhancements and updates thereto, and any applicable third-party software that Ever.Ag provides remote access to and use of as part of the Order.
8. Services Offered by Ever.Ag: Subject to and conditioned on your (and your Authorized Users’) compliance with the terms and conditions of this Order, during the Term, Ever.Ag shall use commercially reasonable efforts to provide, host, manage, operate and maintain the Software for remote access and use by you and your Authorized Users (collectively, the “Services”).

   Ever.Ag may, directly or indirectly, suspend, terminate or otherwise deny you access to or use of all or any part of the Software, without incurring any resulting obligation or liability, if: (a) Ever.Ag receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Ever.Ag to restrict access; or (b) Ever.Ag believes, in its sole discretion, that: (i) you, or any of your Authorized Users, has failed to comply with any term of this Order, or accessed or used the Software beyond the scope of the rights granted under this Order; (ii) you, or any of your Authorized Users is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with its use of the Software; or (iii) this Order expires or is terminated.

Data Collection and Use: The Software has the ability to collect Producer Data. Such Producer Data may include, without limitation:

1. Scope 3 Data
2. Baseline and SIP surveys
3. Farm ES
4.  Cool Farm Tool footprints
5. Customer footprint packages

Ever.Ag believes this Producer Data is owned by you. It is up to you to determine how you share your Producer Data and with whom. By entering into this Order, you are agreeing that Ever.Ag may collect the Producer Data through the Software, and will comply with the terms of the Privacy Policy as it relates to providing any third-party access to the Producer Data. No Producer Data will be used for any unlawful or anti-competitive activities.

Grant of License: Ever.Ag owns any and all rights, title and interests in the Software, including(without limitation) ownership rights to any and all Intellectual Property Rights. Ever.Ag grants you a limited, non-exclusive, non-assignable and non-transferable license to access the Software for the Term, subject to your compliance with the Order, including the payment of the monthly license fees noted in your subscription. You shall not reverse engineer, decompile, disassemble, translate or create derivative works of the Software. Nor shall you upload viruses, spyware or any other malicious software to the Software.

Ownership and Title of Producer Data: We each agree that any Producer Data collected through the Software is owned by you. As part of the Services, Ever.Ag may aggregate the Producer Data with other data (so that it is not individually identifiable) in order to analyze and report on activities and trends within the dairy industry.

Fees: The Order contains the managed fee structure for access to and use of the Software. Unless otherwise noted on the Order, all fees shall be due and payable, by Customer or Client as set forth on the Order, on a quarterly basis throughout the Term. All amounts payable to Ever.Ag shall be paid in full without any setoff, recoupment, deduction or withholding for any reason. If a payment is not received by the invoice due date, Ever.Ag may, in addition to any other remedies, impose a 1.5% per month, or the maximum rate permitted by law, whichever is lower, late charge on the total balance of past due amounts.

Access and Security:

Each Authorized User shall use an Access Code for purposes of accessing the Software during the Term. You shall employ all physical, administrative, and technical controls and other safeguards necessary to a) securely administer the distribution and use of the Access Codes and b) control the use and distribution of Producer Data.

Term and Termination: The term of the Order commences when you subscribe to the Software and will continue in effect thereafter as set forth on the Order until terminated by you or Ever.Ag (the “Term”). You may terminate the Services and your access to the Software by providing notice to Ever.Ag at any time. Ever.Ag may terminate the Services and your access to the Software with or without notice if you violate any terms of the Order.

Confidential Information: You and Ever.Ag shall maintain the confidential nature of the other party’s Confidential Information. Neither party shall use or disclose Confidential Information except as otherwise permitted under this Order.

Disclaimer; No Guaranty: Ever.Ag warrants that the Software will not violate, infringe upon or result in the misappropriation of any Intellectual Property Rights of any third party, and Ever.Ag will indemnify and hold you harmless from and against any and all loss, liability, obligation and expense (including reasonable attorneys’ fees and expenses) arising out of or related to any breach or claimed breach of any warranty or representation of Ever.Ag set forth in this Order. If the Software provided by Ever.Ag is found to infringe or result in a misappropriation, Ever.Ag will, at Ever.Ag’s option: (i) obtain the right for you to continue using such Software free from infringement at no additional cost; or (ii) replace or modify such Software so that it is no longer infringing.

WARRANTY LIMITATION: THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY. EVER.AG HEREBY DISCLAIMS AND YOU HEREBY WAIVE ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. EVER.AG DOES NOT WARRANT AND EXPRESSLY DISCLAIMS THAT USE OF THE SOFTWARE WILL INCREASE EFFICIENCY, PRODUCTIVITY OR YIELD FOR YOUR BUSINESS.

Indemnity and Limitation of Damages: You agree to indemnify, defend and hold harmless Ever.Ag, including its employees, agents, officers and members, from any damages, costs, claims, injuries or liabilities (including attorney fees), for you and your Authorized User’s use of the Software. Except as otherwise set forth herein, Ever.Ag shall not be liable for any lost profits or consequential, exemplary, incidental or punitive damages under this Order (including, without limitation, in connection with the use, performance or operation of the Software regardless of the form of action, whether in contract or in tort, including negligence, regardless of whether Ever.Ag has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable).

CAP ON LIABILITY: The liability of EVER.AG UNDER the ORDER, shall not exceed THE GREATER OF (A) the total amount of money paid TO EVER.AG WITHIN the IMMEDIATELY preceding THIRTY (30) DAYS from the date THE CLAIM ARISES OR (B) ONE THOUSAND DOLLARS ($1,000).

Access to the Software: Upon termination or cancellation of the Order (and license), you shall cease accessing the Software and Ever.Ag will restrict further access to the Software for the Authorized Users.

Assignments: This Order and the license granted pursuant hereto may not be assigned, sublicensed or otherwise transferred by you without the prior written consent of Ever.Ag.

Amendments and Modifications: Ever.Ag may revise these Terms of Use from time to time and the most current version will be available on the Ever.Ag website. Ever.Ag will notify you of any changes to these Terms of Use electronically. Continuing to access or use the Software after revisions become effective, reflects your agreement to the revised terms.

Governing Law: This Order shall be governed by the laws of the State of Texas without regard to any rules of conflict.

Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of licensor and licensee. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.

Publicity: During the Term of this Order, you grant Ever.Ag the right to identify you as a client of Ever.Ag.