Service Agreement

Updated: January 24, 2019

PARTIES: Simple Farms LLC. a Colorado limited liability company (hereinafter referred to as "Company"), and __________________________ (hereinafter referred to as "Customer"). Company and Customer are sometimes referred to as "Party" or collectively as "Parties." in this Agreement.

ACCEPTANCE: By clicking "Accept" or by using or accessing the System (defined below) and any related services, you expressly agree to be bound by the terms, conditions, policies, and guidelines of this Agreement.

IF YOU DO NOT AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE SYSTEM AND ANY RELATED SERVICES. YOU ACKNOWLEDGE THAT YOU HAVE READ, HAVE UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT USE JUST AS IF YOU HAD SIGNED IT.

RECITALS:

A. Company owns proprietary software and documentation that enables end users to access a suite of software solutions in order to operate a successful agricultural business (such software and any documentation provided is the "System");

B. Customer desires to access the System and Company desires to offer the System according to this Agreement.

NOW, THEREFORE, in consideration of the recitals, covenants, and consideration set forth herein, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:

1. System SaaS License. Subject to the terms and conditions of this Agreement, including the timely payment of all fees due hereunder, Company hereby grants to Customer a personal, non-exclusive, non-transferable right and license to access and use the System over the internet. Exhibit A lists the fees associated with this Agreement and Exhibit B lists the minimum equipment requirements, concurrent user limits, systems limitations and storage limitations.
2. Term and Termination. This Agreement shall begin on the date Customer accepts the terms of this Agreement and terminate in 6 months. Thereafter, this Agreement shall renew for additional 6 month terms unless either Party notifies the other Party in writing that it will not renew at least thirty (30) days prior to the expiration of the then-current term. Upon a material breach of this Agreement, the non-breaching Party may send written notice to the breaching Party informing the breaching Party of the nature of the breach and providing thirty (30) days to cure a non-monetary breach and ten (10) days to cure a monetary breach (the "cure period"). If the breaching Party does not cure the material breach within the cure period, the non-breaching Party may immediately terminate this Agreement.
3. Restrictions. Customer agrees that it will not, and will not allow, its directors, officers, business partners, or employees or agents to:
   1. Reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from the System or any component thereof;
   2. Copy, reproduce, modify, sell, lease, sub-license, market or commercially exploit in any way the System or any component thereof (including the further distribution or blank forms or templates) other than as expressly agreed to in this Agreement;
   3. Use, or permit the use of, the System except for Customer's internal purposes. Customer agrees that it shall not provide access to or perform services for third parties using the System including, but not limited to, any service bureau, time-sharing, lease, distribution or re-sale, rental, application service provider arrangement, or any other arrangement; or
   4. Disclose or grant access to an access code to the System or any component thereof to any third party.
4. Fees and Taxes.
   1. The fees for access and use of the System are set forth in Exhibit A. Company will invoice Customer for all fees. All amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice;
   2. Amounts which have not been paid according to invoice shall be subject to a late payment at a rate of eighteen percent (18%) per annum, payable monthly, on the amounts outstanding from the time such amount becomes due until payment is received by Company;
   3. Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law that Company must pay based on this Agreement, except for taxes based on Company's income.
5. Service Level Commitment.
   1. Except for those instances described below, Company shall ensure that the System is available 95% of any calendar month. Failure to achieve service availability shall not constitute a material breach of this Agreement.
   2. As its exclusive remedy, in the event the System availability falls to below 95% for a given month for Customer, Company will credit Customer's account as follows: (i) for 90% to 94.9% availability the credit is fifty percent (50%) of the monthly fee; and (ii) for 89.9% availability or below the credit is one hundred percent (100%) of the monthly fee. This credit will be in the form of partially extending the Term of this Agreement and will not result in a refund of any Customer fees due or previously paid. Notwithstanding the forgoing, Company may, at its sole option, elect to refund and Customer agrees to accept as its sole remedy, the amount paid by Customer for System availability for a given month.
   3. Customer agrees to notify Company immediately if Customer suspects the System is unavailable due to a fault of Company. Customer agrees to provide reasonable information as requested by Company for proper diagnosis or repair and for proper calculation of any applicable credit.
   4. Credit does not apply as a result of:
      1. Unavailability due to scheduled maintenance;
      2. Periods of unavailability during which Customer's account is not in good financial standing or Customer is in violation of this Agreement;
      3. Circumstances beyond Company's control, including, without limitation, acts of any governmental body, war, sabotage, embargo, fire, flood, extended unavailability of utility service or unavailability or delay in telecommunications, third party internet service providers, co-location sites, or issues related to a vendor's or Customer's business operations, equipment, or third party servicers; or
      4. Customer's misuse of the System.
6. Customer Support.
   1. Provided that Customer is current in its payment of fees under this Agreement, Company shall provide to Customer its standard technical support and maintenance, at no additional charge. Company support personnel shall be available to the Customer's local administrator to provide telephone support and assistance via e-mail and other internet based technology directly to Customer's local administrator during Company's normal business hour (8:00 AM - 5:00 PM Mountain Time, M-F). Company shall also provide standard error correction and maintenance modifications to the System.
   2. Notwithstanding the above, if Company makes a reasonable business determination that the technical support requested by Customer pursuant to this section will entail detailed, specialized maintenance or support services different in kind or amount from those provided to other similar Customer of the System (including, but not limited to, assistance to enable the interfacing or operation with a non-supported, unusual, or proprietary system complying with internal audits, or responding to Sarbanes-Oxley audit requests), Company shall notify Customer that the requested support is considered an additional service which shall be subject to additional fees, to be negotiated.
7. System Maintenance. Company shall operate and maintain the System server ("Server") in good working order with access restricted to qualified employees or contractors of Company and persons designated by Customer. Company shall employ reasonable efforts to ensure the security, confidentiality, and integrity of all Customer data and other proprietary information transmitted through or stored on the Server. Company shall maintain backup information on all Customer data in the application on a daily incremental basis during the week and a full backup on the weekend.
8. User Responsibilities, Password Protection. As part of the registration and account creation process, Customer will need a "User Identification Name" and a "Subscription Password." Customer may not select a User Identification Name which is identical to that used by another person or use a User Identification Name which is in the sole opinion of Company offensive or inappropriate. Customer shall be solely responsible for maintaining the confidentiality of Customer Subscription Password. Customer is solely responsible for all usage or activity on Customer's account, including but not limited to use of Customer's account, Customer's User Identification Name, and Customer's Subscription Password by any third party. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of Customer's account, in Company's sole discretion, and Company may refer Customer to appropriate law enforcement agencies.
9. Customer Responsibilities. Customer is responsible for all activity occurring under its account and will abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with its access or use of the System, including those related to data privacy, international communications, and the transmission of technical or personal data. Customer will be solely responsible for ensuring that its users receive sufficient training to enable proper access or use of the System. Customer will be solely responsible for, and will bear the cost of, providing all equipment, facilities, and connectivity, including without limitation any internet access or telecommunications services, necessary to use and access the System.
10. Provision of Releases. At its sole option, Company shall be entitled to prepare new versions of the System that Company generally makes available to its Customers ("Update Releases"). Company exclusively shall determine whether Update Releases shall be included in the System provided pursuant to this Agreement. At any time, Company may install any Update Releases to provide the services described herein, or develop new modules for upgraded licenses at an additional cost.
11. Right to Modify the System. Company may from time to time, in its sole discretion, change some or all of the functionality or any component of the System or make any modification for the purpose of improving the performance, service quality, error correction, or to maintain the responsiveness of the System.
12. Confidential Information.
    1. Each Party acknowledges that confidential information (including trade secrets and confidential technical, financial and business information) (collectively, "Confidential Information") may be exchanged between the Parties pursuant to this Agreement. Each Party shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of the other Party. Each Party agrees that it will not disclose or use the Confidential Information of the other Party except for the purposes of this Agreement and as authorized herein. Customer will promptly report to Company any unauthorized use or disclosure of Company's Confidential Information that the Customer becomes aware of and provide reasonable assistance to Company (or its licensors) in the investigation and prosecution of any such unauthorized use or disclosure.
    2. Notwithstanding Section 12(a), the recipient of Confidential Information may use or disclose the Confidential Information to the extent that such Confidential Information is: (i) already known by the recipient without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of the recipient, (iii) rightfully received from a third party without any obligation of confidentiality, (iv) independently developed by the recipient without use of the Confidential Information of the disclosing Party, (v) approved by the disclosing Party for disclosure, or (vi) required to be disclosed pursuant to a requirement of a governmental agency or law so long as the recipient provides the disclosing Party with notice of such requirement prior to any such disclosure and takes all reasonable steps available to maintain the information in confidence.
    3. Customer shall safeguard and maintain the Confidential Information of Company in strict confidence and shall not, and shall cause all users not to, disclose, provide, or make such Confidential Information or any part thereof available in any form or medium to any person except to the Customer's employees, contractors, and consultants who have a need to access such Company's Confidential Information in order to enable the Customer to exercise its rights under this Agreement. The Customer also agrees not to: (i) disclose to third parties (whether in writing or orally) any benchmark test data related to the System, and (ii) use Company's Confidential Information to create any computer software or documentation that is substantially similar to the System software.
13. Data Issues.
    1. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all data, information, or material that Customer submits to the System during Customer's access or use of the System, including Customer's intellectual property ownership of and Customer's right (and that of the Users of Customer's organization) to access or use such data, information, or material (collectively, "Customer Data"). Company does not own any Customer Data.
    2. Except as permitted in this Agreement, Company will not edit, delete, or disclose the contents of Customer Data unless authorized by Customer or unless Company is required to do so by law or in the good faith belief that such action is necessary to: (i) conform with applicable laws or comply with legal process served on Company; (ii) protect and defend the rights or property of Company; or (iii) enforce this Agreement.
    3. Company may provide user statistical information such as usage or traffic patterns in aggregate form to third parties, but such information will not include identifying information. Company may access Customer Data to respond to service or technical problems with the System.
    4. Customer will be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store regarding any Customer Data.
    5. Company reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of Customer Data that Customer may store, post, or transmit on or through the System.
14. Return of Confidential Information. Upon the termination of this Agreement for any reason whatsoever, each Party may request of the other that all documents, information, data, and/or software however recorded, which contain any of the other's Confidential Information be returned, provided that the Party shall be entitled to charge a reasonable fees and materials charge for doing so. If no request is received for the return of Confidential Information within thirty (30) days of the termination of this Agreement, the Confidential Information shall be destroyed within a reasonable time thereafter and shall not be used for any purpose whatsoever.
15. Protection of Proprietary Rights. Customer shall not remove any proprietary, copyright, patent, trademark, design right, trade secret, or any other proprietary rights legends from the System.
16. Intellectual Property Rights. Company and its licensors shall retain all ownership, title, copyright, patent, trademark, and other proprietary rights in and to the System and any component thereof, and all content, features, and functionalities of the System. Customer does not acquire any rights, express or implied, in the System.
17. Submissions. Any information, materials, suggestions, ideas, comments or other information communicated by Customer to Company (the "Submission") will not be treated as confidential, proprietary, or trade secret information. Through Customer's Submission, Customer hereby grants to Company the royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display the Submission, and to incorporate any Submission in other works in any form, media, or technology now known or later developed. Company will not be required to treat any Submission as confidential and may use any Submission in its business without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in future Company operations.
18. Limited Warranty. COMPANY, ITS SUPPLIERS, AND LICENSORS WARRANT THAT THE SYSTEM AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT (HEREINAFTER COLLECTIVELY REFERRED TO AS THE "SERVICES") WILL SUBSTANTIALLY CONFORM TO ANY SYSTEM DOCUMENTATION.
19. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED WARRANTY, AND EXCEPT AS PROVIDED IN SECTION 23 HEREOF, COMPANY AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. COMPANY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (A) THE SERVICES WILL MEET THE CUSTOMER'S BUSINESS REQUIREMENTS; (B) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (C) ALL DEFICIENCIES ANY SERVICES OR THE SYSTEM CAN BE FOUND OR CORRECTED.
20. Exclusive Remedy. EXCEPT FOR THE EXCLUSIVE REMEDY AS PROVIDED ABOVE FOR SERVICE LEVEL COMMITMENTS, AND EXCEPT FOR THE EXCLUSIVE REMEDY PROVIDED BY COMPANY FOR INFRINGEMENT, FOR ANY BREACH OF WARRANTY OR THE FAILURE OF COMPANY TO PROVIDE THE SERVICES AS REQUIRED HEREIN (A "DEFICIENCY"), THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND COMPANY'S ENTIRE OBLIGATION HEREUNDER SHALL BE, AT COMPANY'S OPTION, FOR COMPANY TO CURE THE DEFICIENCY OR FOR COMPANY TO REFUND AN AMOUNT EQUAL TO THE AMOUNT CUSTOMER PAID FOR THE SYSTEM REDUCED BY ANY BENEFIT RECEIVED BY CUSTOMER FROM THE SYSTEM.
21. Limit of Liability.
    1. EXCEPT AS OTHERWISE PROVIDED HEREIN, FOR ANY BREACH OR DEFAULT BY COMPANY OF ANY OF THE PROVISIONS OF THIS AGREEMENT, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO, COMPANY AND ITS LICENSORS' ENTIRE LIABILITY, IF ANY, SHALL IN NO EVENT EXCEED ANNUAL FEES PAID TO COMPANY BY CUSTOMER PURSUANT TO THIS AGREEMENT IN THE CALENDAR YEAR IN RESPECT OF WHICH THE CAUSE OF ACTION FIRST AROSE. CUSTOMER ACKNOWLEDGES THAT THE PRICES QUOTED HEREIN ARE CONSIDERATION FOR THE STATED LIMITS OF LIABILITY IN THIS PARAGRAPH. IN NO EVENT WILL COMPANY AND ITS LICENSORS BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF COVER, DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PERSON, EVEN IF COMPANY AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES AND EVEN IF THE REMEDY SET FORTH HEREIN SHALL BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
    2. NO PARTY MAY BRING AN ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATED TO THIS AGREEMENT (OTHER THAN TO RECOVER FEES OR EXPENSES DUE TO COMPANY) MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN OR THE DATE OF DISCOVERY OF SUCH CAUSE, WHICHEVER IS LATER.
22. Mutual Indemnification. Subject to the provisions contained herein and, with respect to Company, excluding the indemnification described below for infringement, each Party agrees to defend, indemnify and hold the other and its officers, directors, agents, affiliates, distributors, franchisees and employees harmless against any loss, damage, expense, or cost, including reasonable attorneys' fees (including allocated costs for in-house legal services) ("Liabilities") arising out of any claim, demand, proceeding, or lawsuit by a third party relating to this Agreement, and due to the indemnifying Party's acts or omissions.
23. Company Indemnity and Exclusive Remedies for Infringement. In the event of a claim against Customer asserting or involving an allegation that the System infringes upon or violates any patent, copyright, trade secret, or other proprietary or property right of any third person or entity, then, as Customer's exclusive remedy, Company will defend, at Company's expense, and will indemnify Customer and hold Customer harmless against any loss, cost, expense (including attorneys' fees), or liability arising out of such claim, whether or not such claim is successful. In the event an injunction or order should be obtained against use of the System by reason of the allegations, or if in Company's opinion the System is likely to become the subject of such a claim of infringement, Company will, at its option and in its expense, and as Customer's exclusive remedy, (a) procure for the Customer the right to continue using the System; (b) replace or modify the same so that it becomes noninfringing (such modification or replacement shall be functionally equivalent to the original); or (c) if neither (a) nor (b) is practicable, for all prepaid licensee fees, repurchase the System from Customer on a depreciated basis utilizing a straight line depreciation method, commencing on the date of acceptance (or, if no fees were prepaid, terminate the agreement). Notwithstanding the foregoing, the Company will not indemnify the Customer if the Customer alters the System or uses it outside the scope of use identified in the Company's user documentation. The Company will not indemnify the Customer to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Company, or (ii) any system from a third party portal or other external source that is accessible to Customer within or from the Service (e.g., a third-party Web page accessed via a hyperlink). Company will not indemnify Customer to the extent that an infringement claim is based upon the combination of any system with any products or services not provided by Company. Company will not indemnify Customer for infringement caused by Customer's actions against any third party if the System as delivered to Customer and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights. Company will not indemnify Customer for any infringement claim that is based on: (1) a patent that Customer was made aware of prior to the effective date of this Agreement (pursuant to a claim, demand, or notice); or (2) Customer's actions prior to the effective date of this Agreement. This section provides the Customer's exclusive remedy for any infringement claims or damages.
24. Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered by confirmed facsimile or email; (b) on the delivery date if delivered personally to the Party to whom the same is directed; (c) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (d) five business days after the mailing date, if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. The contact information below the Parties signatures may be used by the Parties hereto.
25. Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or employee of the other Party. Neither Party will have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
26. Amendments and Modifications. No amendment, modification, or supplement to this Agreement shall be binding on any of the Parties unless it is in writing and signed by the Parties in interest at the time of the modification.
27. Integration. This Agreement and all Exhibits hereto, as well as agreements and other documents referred to in this Agreement constitute the entire agreement between the Parties with regard to the subject matter hereof and thereof. This Agreement supersedes all previous agreements between or among the Parties. There are no agreements, representations, or warranties between or among the Parties other than those set forth in this Agreement or the documents and agreements referred to in this Agreement.
28. Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.
29. Consent to Jurisdiction. The Parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the State of Colorado.
30. Choice of Law. This Agreement shall be governed by and construed under the laws of the State of Colorado without consideration of its conflict of laws provisions.
31. Customer Reference. Customer agrees (a) that Company may identify Customer as a recipient of Services and use Customer's logo in sales presentations, marketing materials, and press releases, and (b) to develop a brief customer profile for use by Company on simplefarms.ag or elsewhere online for promotional purposes.
32. General Interpretation. The terms of this Agreement have been negotiated by the Parties hereto and the language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent. This Agreement shall be construed without regard to any presumption or rule requiring construction against the Party causing such instrument or any portion thereof to be drafted, or in favor of the Party receiving a particular benefit under the agreement. No rule of strict construction will be applied against any person.