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AgVerdict® End User License Agreement

Date of Last Revision: February 20, 2014.
THIS IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR THE “USER”) AND WILBUR-ELLIS COMPANY (“WILBUR-ELLIS” OR “COMPANY”). BEFORE CLICKING “ACCEPT” OR DOWNLOADING, ACCESSING, OR USING ANY PART OF AGVERDICT (AS DEFINED BELOW), YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS AGVERDICT LICENSE (“AGREEMENT”), AS THEY GOVERN YOUR ACCESS TO AND USE OF AGVERDICT. COMPANY IS WILLING TO LICENSE AND ALLOW THE USE OF AGVERDICT ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY TERM OR CONDITION OF THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE AGVERDICT AND YOU MUST IMMEDIATELY CEASE USING AGVERDICT. For purposes of this Agreement, “AgVerdict” shall mean any and all of the distinct series of software applications and platforms (including any amendments, modifications, updates, or improvements to, or replacements of, existing applications or platforms) that assists persons and entities in the sale use and application of agricultural chemicals and the production of reports relating to such use and that provides such persons with other agricultural-related data, analysis, and decision-making tools.

 

  1. License. Wilbur-Ellis (or its licensors) holds all right, title, and interest in and to AgVerdict. Subject to the terms and conditions set forth herein, Wilbur-Ellis hereby grants You a fully paid-up, limited, personal, non-exclusive, non-assignable, and non-transferable license to use and display AgVerdict on Your computer, laptop, smartphone, tablet or other electronic workstation (each a “Device”) and only for business purposes associated with Your use of AgVerdict. You may also load information from AgVerdict into Your Device’s temporary memory (RAM) and print and download materials and information from AgVerdict solely for Your business use, provided that all hard copies contain all copyright and other applicable notices contained in such materials and information. If You are using AgVerdict on behalf of a company or other form of entity, please note that such entity may have a separate agreement with Company regarding access and usage privileges for AgVerdict. Nevertheless, Your use of AgVerdict will be subject to the obligations and restrictions regarding use of AgVerdict as set forth in this Agreement, unless specifically over-ridden by such entity’s separate agreement.
  2. Limitations. Except as specifically set forth herein, You shall have no right to copy, download, display, perform, reproduce, distribute, rent, sell, lease, license, sublicense, commercially exploit, modify, edit, alter, translate, adopt or enhance any part of AgVerdict in any manner or reverse engineer or decompile any code, script, or software forming part of AgVerdict. You have no right, title or interest (and no copyright, trademark, patent or other intellectual property right) in or to AgVerdict.
  3. User Obligations. USER MAY NOT CLICK “ACCEPT” OR DOWNLOAD, ACCESS, OR USE ANY PART OF AGVERDICT IF USER IS NOT AT LEAST 18 YEARS OF AGE. By downloading, accessing, or using AgVerdict in order to view information and materials or submit information of any kind, You represent that You will, at all times, provide true, accurate, current, and complete information when submitting information or materials on AgVerdict, including, without limitation, when You provide information via an AgVerdict registration or submission form. In addition, You agree to abide by all applicable local, state, national, and international laws and regulations with respect to Your use of AgVerdict. This Agreement is also expressly made subject to any applicable export laws, orders, restrictions, or regulations.
  4. Proprietary Rights. This Agreement provides only a limited license to access and use AgVerdict. Accordingly, You expressly acknowledge and agree that Company transfers no ownership or intellectual property interest or title in and to AgVerdict to You or anyone else. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation, as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through AgVerdict, unless otherwise indicated, are owned, controlled, and/or licensed by Company or its successors and assigns and are protected by law including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other state, national, and international laws and regulations. Except as expressly provided herein, Company does not grant any express or implied right to You or any other person under any intellectual or proprietary rights. Accordingly, Your unauthorized use or transmittal of AgVerdict may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes. Additionally, You will keep confidential and not disclose to any person or entity any information contained in AgVerdict that is considered by Wilbur-Ellis or its licensors to be proprietary, confidential, of a sensitive nature and/or the trade secrets of such party, including, without limitation, source code or algorithms contained in AgVerdict. AgVerdict and this Agreement are Copyright © 2013 Wilbur-Ellis Company. All rights reserved. The Wilbur-Ellis and AgVerdict names and logos, as well as all other product names, logos, labels, depictions, and descriptions associated with Wilbur-Ellis and/or AgVerdict are tradenames or trademarks of Wilbur-Ellis, the applicable software owners, chemical manufacturer(s) or third parties, and any use of such marks, including, without limitation, as domain names, without the express written permission of Company is strictly prohibited. The omission of a copyright or trademark notice on AgVerdict shall not be interpreted to mean the material is, or cause the material to be, in the public domain.
  5. User Data; Privacy Policy. You shall have sole ownership of all data, text, information, images, and material that You or Your users enter or submit in connection with use of AgVerdict (all of the foregoing collectively referred to as “Customer Data”), provided that Wilbur-Ellis shall have access to all Customer Data while it remains in AgVerdict. In addition, Wilbur-Ellis shall have a royalty-free, perpetual and irrevocable license to use Customer Data, in aggregated form, for its own business purposes, provided that Wilbur-Ellis shall not sell, transfer, or otherwise provide any Customer Data to any third party. To the extent any of the Customer Data is provided without Wilbur-Ellis’ participation, Wilbur-Ellis hereby disclaims any obligation to confirm or verify the accuracy of any such data, and Wilbur-Ellis shall have no liability whatsoever for any defects in such data. For further information related to Wilbur-Ellis’ use of, and obligations with respect to, information You or Your users enter or submit in connection with use of AgVerdict, please see Wilbur-Ellis’ Privacy Policy.
  6. Feedback. Company welcomes Your suggestions, information, material, or other content about Company’s products or services or AgVerdict (collectively, “Feedback”). Any Feedback received through AgVerdict will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for Company to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and You hereby waive any claim to the contrary. In addition, by transmitting any Feedback to Company, You represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that You have all rights necessary to convey to Company and enable Company to use such Feedback. Wilbur-Ellis hereby disclaims any obligation to confirm or verify the accuracy of any such Feedback, and Wilbur-Ellis shall have no liability whatsoever for any defects in such Feedback.
  7. Disclaimers. AGVERDICT IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. WILBUR-ELLIS AND ITS LICENSORS MAKE AND YOU RECEIVE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WILBUR-ELLIS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. WILBUR-ELLIS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN AGVERDICT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF AGVERDICT WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS IN AGVERDICT WILL BE CORRECTED, OR THAT ANY DOWNLOADABLE FILES OR INFORMATION WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. FURTHERMORE, WILBUR-ELLIS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING USE OR THE RESULTS OF THE USE OF AGVERDICT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. WILBUR-ELLIS HEREBY DISCLAIMS ANY AND ALL LIABILITY BASED ON, ARISING OUT OF, OR IN ANY WAY RELATED TO YOUR USE OF, OR INABILITY TO ACCESS, AGVERDICT, AND YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME THE FULL RISK OF USING AGVERDICT. YOU HEREBY WAIVE ANY RIGHT TO SUE WILBUR-ELLIS OR OTHERWISE SEEK COMPENSATION BASED ON ANY DEFECTS, KNOWN OR UNKNOWN, IN AGVERDICT OR ANY ISSUES RELATED TO INCORRECT APPLICATIONS ARISING FROM YOUR USE OF AGVERDICT (INCLUDING WITHOUT LIMITATION OFF-LABEL RECOMMENDATIONS).
  8. Limitation of Liability. SUBJECT TO APPLICABLE LAWS: (1) IN NO EVENT WILL WILBUR-ELLIS OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE USE OR OPERATION OF AGVERDICT OR ACCOMPANYING DOCUMENTATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY; (2) THIS LIMITATION WILL APPLY EVEN IF WILBUR-ELLIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; (3) THIS LIMITATION SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES HEREIN. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY IN SUCH CASES. NOTWITHSTANDING THE FOREGOING, TOTAL LIABILITY OF WILBUR-ELLIS FOR ANY REASON WHATSOEVER RELATED TO USE OF AGVERDICT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO WILBUR-ELLIS IN CONNECTION WITH THE SUBJECT MATTER OF THE PARTICULAR DISPUTE DURING THE PRIOR THREE MONTHS.
  9. Indemnity. You agree to defend, indemnify, and hold harmless Wilbur-Ellis, its affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from any breach by You of this Agreement.
  10. Accounts. You are responsible for all activity occurring and transactions made under Your user accounts and for maintaining the confidentiality of all login account information and passwords. User accounts may only be used by You and Your authorized users. You shall protect any login and password data related to AgVerdict as confidential information, and shall insure that each individual user of AgVerdict has, and uses, a unique login identifier. Each individual user shall complete such training as Wilbur-Ellis deems appropriate prior to using AgVerdict’s recommendation-writing and label checking tools, and each such user shall execute and deliver to Wilbur-Ellis the Wilbur-Ellis third-party acknowledgement form for written recommendations. You agree to immediately notify Wilbur-Ellis of any unauthorized use of Your account or any other breach of security known to You in relation to AgVerdict. You shall immediately take all reasonable steps to stop unauthorized use or copying by Your users or those who have access to Your account.
  11. Termination. This Agreement and Your right to use AgVerdict will take effect at the moment You click “ACCEPT” or You install, access, or use AgVerdict and is effective until terminated as set forth below. This Agreement will terminate automatically if You click “REJECT”. In addition, Company reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this Agreement, to deny Your access to AgVerdict or to any portion thereof in order to protect its name and goodwill, its business, and/or other Users, and this Agreement will also terminate automatically if You fail to comply with this Agreement, subject to the survival rights of certain provisions identified below. Termination will be effective without notice. You may also terminate this Agreement at any time by ceasing to use AgVerdict, but all applicable provisions of this Agreement will survive termination, as identified below. Upon termination, You must destroy all copies of any aspect of AgVerdict in Your possession. In addition to the miscellaneous section below, the provisions concerning proprietary rights, user data, feedback, accounts, indemnity, disclaimers, limitation of liability, and governing law and dispute resolution will survive the termination of this Agreement for any reason.
  12. No Assignment. This Agreement shall not be assignable by either party without the prior written consent of the other party, but shall otherwise inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
  13. Waiver. The failure or delay of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision, nor shall any single or partial exercise of a right preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies shall be cumulative and not exclusive of any rights or remedies provided by law.
  14. Third Party Beneficiaries. Your use of AgVerdict is subject to the terms and conditions of the end user license agreement provided by Crop Data Management Systems, Inc., a copy of which is available upon request, and You agree to comply with all terms and conditions applicable to Your use of AgVerdict. You understand that portions of AgVerdict and related documentation have been licensed to Wilbur-Ellis from third parties and that such third parties are intended third party beneficiaries of the provisions of this Agreement.
  15. Entire Agreement. The terms and conditions herein constitute the entire agreement among the parties and supersedes all other prior agreements or understandings, both written and oral, with respect to the subject matter hereof. Should any part of this agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties and the remaining portions shall remain in full force and effect. This Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. Paragraph or section headings are solely for the convenience and are not intended to affect, any of the terms or provisions hereof.
  16. Governing Law; Dispute Resolution. This Agreement shall be construed and enforced solely in accordance with the laws of the State of California, excluding its conflict of law principles. All disputes arising out of this Agreement and/or Your use of AgVerdict shall be settled by binding arbitration under the Commercial Rules of the American Arbitration Association, in San Francisco, California, by a single arbitrator selected in accordance with such rules and in any event selected by mutual agreement of the parties. In any such arbitration proceeding, each party shall initially bear all of its own costs and share joint costs such as the cost of an arbitrator; upon resolution, the losing party shall pay the other party all costs incurred by the other party for the arbitration, including reasonable attorneys’ fees. Any claim You might have against Company must be brought within two (2) years after the cause of action arises, or such claim or cause of action is barred. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. Company makes no representation that AgVerdict is appropriate or available for use in Your jurisdiction, and access to AgVerdict from states, territories, or nations where any aspect of AgVerdict is illegal is prohibited. You access AgVerdict on Your own volition and are responsible for compliance with all applicable local laws with respect to Your access and use of AgVerdict. A printed version of this Agreement and of any related 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. Please contact Company if You wish to receive a printed copy of this Agreement.
  17. Notice to U.S. Government End Users. AgVerdict is a Commercial Item, as that term is defined at 48 C.F.R. Section 2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States. Wilbur-Ellis Company, 345 California Street, 27th Floor, San Francisco, CA 94104.
  18. Miscellaneous. You acknowledge that any breach, threatened or actual, of this Agreement will cause irreparable injury to Company, such injury would not be quantifiable in monetary damages, and Company would not have an adequate remedy at law. You therefore agree that Company shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of Your obligations under any provision of this Agreement. Accordingly, You hereby waive any requirement that Company post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Company to enforce any provision of this Agreement. No joint venture, partnership, employment, or agency relationship exists between You and Company as a result of this Agreement or Your utilization of Agreement. Headings herein are for convenience only.

 

CDMS
PLEASE READ THIS CONTRACT (THIS “AGREEMENT”) CAREFULLY. BY CLICKING THE ACCEPT BUTTON OR ACCESSING THE SOFTWARE, YOU (“USER”) AGREE THAT (A) THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU AND (B) YOU ARE AUTHORIZED TO REPRESENT AND BOND THE AGROCHEMICAL RETAINER OR DEALER FOR WHOM YOU WORK. IF YOU DO NOT AGREE, DO NOT CLICK ON THE BUTTON THAT INDICATES THAT YOU ACCEPT THE TERMS OF THIS CONTRACT AND DO NOT ACCESS OR USE THE SOFTWARE.
If User is residing in a jurisdiction that restricts the use of internet-based applications according to age, or that restricts the ability to enter into agreements such as this Agreement according to age and User is under such a jurisdiction and under such age limit, User may not enter into this Agreement or use Checking Web Service (including any features of CDMS’ compliance service that CDMS may make available). Furthermore, if User is residing in a jurisdiction where it is forbidden by law to offer or use software such as this, User may not enter into this Agreement or use Checking Web Service. By entering into this Agreement User explicitly states that User has verified that the use of Checking Web Service is allowed in User’s jurisdiction. User may not click on the ACCEPT button if User is not at least 18 years of age.

  1. Definitions. For the purposes of this Agreement, the following definitions apply:
    1. “Checking Web Service” uses product label information to support crop decisions and includes software specifications, source code, object code, software documentation, software specifications, flow charts, diagrams, terminal displays and printouts, software routines, screen displays, content entry formats, data base structures (including the design and arrangement of the product information), data base formats and prompting sequences embodied in such software, and any tangible or intangible things that embody, represent, describe or specify any aspect of the operation or application of Checking Web Service, which have been furnished to User, as well as any such other information as CDMS shall so designate.
    2. “CDMS” means Crop Data Management Systems, Inc.
    3. “CDMS Confidential Information” shall mean any information disclosed by CDMS that is disclosed in a manner such that User should reasonably understand such information to be confidential. Confidential Information shall include, but not be limited to, CDMS Proprietary Information, CDMS’ research, development, trade secrets, software design, content collection, inventions, source code, vendor and customer information, and information about or provided by any of its customers. Confidential Information shall not include any information already in the public domain at the time of disclosure by CDMS.
    4. “CDMS Proprietary Information” shall mean and include Checking Web Service, software specifications, software routines, screen displays, content entry formats, data base structures (including the design and arrangement of the product information), data base formats, flow charts, printouts and prompting sequences embodied in such software, and such other information as CDMS shall so designate; provided, however, that Proprietary Information shall specifically exclude publicly available product information accessible using the Checking Web Service. This definition shall extend to Proprietary Information in whatever form such Proprietary Information may be embodied, including, but not limited to, source code, object code, software documentation, software specifications, flow charts, diagrams, terminal displays and printouts. Proprietary Information shall include information regarding User’s use of Checking Web Service, including specific product information accessed by User, Checking Web Service usage habits.
    5. “Integrator Agreement” means that certain Integrator Agreement and License last executed as of September 23, 2013 between CDMS and Wilbur-Ellis.
    6. “Term” means the period from the date of User’s acceptance of this Agreement until the expiration or termination of this Agreement pursuant to its terms.
    7. “Territory” shall mean the United States.
    8. “Use” shall mean the copying of any portion of Checking Web Service, instructions or content from storage media into the Central Processing Unit (CPU) for processing, or any other use of Checking Web Service for entering or retrieving information.
    9. “User Proprietary Information” shall mean information entered into Checking Web Service by User.
    10. “Wilbur-Ellis” shall mean Wilbur-Ellis Company.
  2. CDMS Grant of License. Contingent upon User’s acceptance of this Agreement, the payment of fees by Wilbur-Ellis under the Integrator Agreement and the payment of fees by User under this Agreement (if any), CDMS hereby grants User, under its intellectually property rights, a limited, nontransferable, non-sublicenseable, nonexclusive license to Use Checking Web Service in object code form solely for its internal use within the Territory during the Term at any owned location of User without regard to crop groups or acres. User may not, without CDMS’ prior written consent, assign, delegate, sublicense, pledge, sell or transfer this license, otherwise provide a third party access to Checking Web Service or CDMS Proprietary Information, or use Checking Web Service or CDMS Proprietary Information to provide services to a third party. User may not, without CDMS’ prior written consent, disassemble, decompile, or otherwise reverse engineer any component of Checking Web Service nor use any component of Checking Web Service to provide services to third parties as a service bureau or content processor, except as may be expressly authorized in this Agreement.
  3. User’s Grant of License. User hereby grants CDMS a fully paid, limited, perpetual, nonexclusive right and license to use User Proprietary Information included in, added to, or processed using Checking Web Service. Additionally, CDMS may use any such information for the purposes of monitoring and analyzing grower preferences and usage of products. User shall retain the ownership of the User Proprietary Information as provided in Section 6.2.
  4. Charges
    1. Training. Except as otherwise agreed in writing, CDMS shall not be required to provide any on-site training or implementation, development of interfaces/integration of Checking Web Service to User’s third party software platform, [custom content fields], or custom features requested by User and provided by CDMS.
    2. Hardware. User shall be responsible for providing and maintaining all hardware at User’s location(s) necessary to operate Checking Web Service. In addition, User shall pay all communication costs, charges and fees related to telecommunications between User and CDMS. User acknowledges that the full functionality of Checking Web Service and/or access to Checking Web Service is not available unless the computer containing Checking Web Service installation has continuing access to the Internet.
    3. Taxes. Unless paid by Wilbur-Ellis pursuant to the Integrator Agreement, User shall be responsible for and pay any and all taxes assessed against the services provided by CDMS hereunder, including those taxes billed by CDMS, however designated or levied, other than taxes based on the income or property of CDMS.
    4. Expiration of Integrator Agreement. Upon the expiration or termination of the Integrator Agreement, this Agreement shall, at CDMS’ sole discretion, terminate or remain in full force and effect; provided that User shall be responsible for the payment of the then-current license fee for Checking Web Service, any and all taxes assessed against the services provided by CDMS hereunder (other than taxes based on the income or property of CDMS), and any other fees or charges previously paid by Wilbur-Ellis on behalf of User pursuant to the Integrator Agreement.
    5. Invoices. Any fees payable by User pursuant to this Section 4 shall be due upon User’s receipt of the applicable invoice and become delinquent thirty (30) days after the date of such invoice. Delinquent payments will be assessed a late fee of Twenty Five Dollars ($25.00) and such unpaid amounts shall accrue a finance charge equal to the lesser of one percent (1%) per month or the maximum amount permitted by law until paid. All fees due are payable in U.S. dollars.
  5. User’s Prohibitions and Obligations.
    1. No Infringement. User shall take no action that, in any way, would infringe upon the copyrighted programs, Checking Web Service or content of CDMS, or that would infringe upon CDMS Proprietary Information or CDMS Confidential Information. User shall not remove any proprietary, copyright, confidential or trade secret legend from any portion of Checking Web Service or any content or support materials provided to User by CDMS.
    2. Copies. Checking Web Service may be copied, in whole or in part, for use by User solely with its designated computer, for archive or backup purposes, or to replace a worn copy; provided, however, that User may keep no more than two (2) machine readable copies at any time without CDMS’ prior written consent. User shall reproduce and include CDMS’ copyright notice on any copies, in whole or in part, in any form, of Checking Web Service. User shall maintain a log of the number and location of all originals and copies of Checking Web Service and support materials. Within one (1) week after the termination of this Agreement, User shall return to CDMS the original and all copies, in any form, of Checking Web Service, printed materials and manuals received from CDMS.
    3. Non-Solicitation. User shall not knowingly solicit, directly or indirectly, for employment and employ any employee of CDMS. The prohibition on solicitation and hiring shall extend 90 days after termination of any CDMS’ employee’s employment. This provision shall not operate or be construed to prevent or limit any employee’s right to practice his or her profession or to utilize his or her skills for another employer or to restrict any employee’s freedom of movement or association. The (i) publication of classified advertisements in newspapers, periodicals, Internet bulletin boards, or other publications of general availability or circulation, (ii) consideration and hiring of persons responding to such advertisements, or (iii) use of independent employment agencies or search firms not specifically targeting CDMS’ employees shall not be deemed a breach of this Paragraph 5.3, unless the advertisement and solicitation is undertaken with the intent to circumvent or conceal a breach of this Paragraph 5.3.
    4. Compliance. User represents and warrants that User is authorized to enter into this Agreement and comply with its terms. Furthermore, User represents and warrants that User will at any and all times meet with User’s obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of Checking Web Service, or any related Web Services.
    5. Confidential and Proprietary Information. User shall not disclose to any third party any CDMS Proprietary Information or CDMS Confidential Information unless authorized to do so in a writing executed by CDMS. User shall not provide or otherwise make available Checking Web Service or content incorporated therein, including, but not limited to flow charts, logic diagrams, machine codes, screen displays or printouts, in any form, to any person or entity, other than its consultants or contractors who have a need to know such information and are bound by a written agreement to keep such services or information confidential, without prior written consent from CDMS. Upon request by CDMS, User shall provide to CDMS copies of all such confidentiality/nondisclosure agreements executed by its consultants and contractors. User shall secure and protect all printed materials, manuals, software programs, disks, copies, or other media, if any, that embody, contain, or describe any CDMS Proprietary Information or CDMS Confidential Information in a manner consistent with the protection of CDMS’ rights therein and to take appropriate action by instruction or agreement with its employees to satisfy its obligations hereunder. User further agrees that it shall be strictly liable for all damages to CDMS that result from any disclosure of any CDMS Proprietary Information or CDMS Confidential Information or any portion of Checking Web Service and/or CDMS Proprietary Information that result from any disclosure of same to any third party.
    6. 5.6 Passwords. User is responsible for keeping its password secure and is solely responsible and liable for any activity that occurs under User’s user name.
  6. Ownership of Intellectual Property.
    1. CDMS Proprietary Information. As between the parties, CDMS is the sole and exclusive owner of the intellectual property rights, including but not limited to copyrights, patents, trademarks, and trade secrets, and any other applicable intangible property rights, in the Confidential Information and Proprietary Information, and in all media, printouts, papers, support materials, or hard copies containing or bearing such intellectual property. User agrees not to contest CDMS’ ownership of a copyright in Checking Web Service. The exclusion of any copyright or trademark notice on or in any media, printouts, papers, materials, or copies containing CDMS’ Confidential Information or Proprietary Information shall not cause, or be construed to cause, CDMS’ rights in such matter to be in the public domain. User shall have a license to use CDMS’ Proprietary Information and Confidential Information, and the intellectual property rights therein, only to the extent specifically provided in this Agreement and to the extent such is reasonably necessary for User’s performance under the Agreement. All rights not expressly granted herein are reserved by CDMS.
    2. User Proprietary Information. As between the parties, User is the sole and exclusive owner of User Proprietary Information.
  7. Disclaimer, Limited Warranties.
    1. LIMITED WARRANTY. EXCEPT AS SET FORTH IN THE LAST SENTENCE IN THIS PARAGRAPH 7.1, CDMS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY KIND WITH RESPECT TO ADVISOR, SERVICES OR DATA MADE AVAILABLE THROUGH ADVISOR, OR ANY OTHER CDMS SERVICE, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE (INCLUDING ANY PURPOSE RELATING TO MANUFACTURER’S OR A USER’S LEGAL OR REGULATORY COMPLIANCE OBLIGATIONS) OF ANY INFORMATION CONTAINED IN ADVISOR, ADVISOR, OR OTHER CDMS SERVICES. ADVISOR, ADVISOR AND OTHER CDMS SERVICES, AND THE INFORMATION CONTAINED IN THE ADVISOR DATABASE, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE SOLE LIMITED WARRANTY WITH RESPECT TO ADVISOR IS THAT THE MEDIA ON WHICH ADVISOR IS FURNISHED SHALL BE FREE FROM DEFECTS UNDER NORMAL USE FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF DELIVERY TO USER.
    2. CONNECTIVITY. USER ACKNOWLEDGES THAT, IN CONNECTION WITH ADVISOR, INFORMATION SHALL BE TRANSMITTED OVER LOCAL EXCHANGE, INTEREXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES AND OTHER DEVICES OWNED, MAINTAINED, AND SERVICED BY THIRD PARTY LOCAL EXCHANGE AND LONG DISTANCE CARRIERS, UTILITIES, INTERNET SERVICE PROVIDERS, AND OTHERS, ALL OF WHICH ARE BEYOND CONTROL AND JURISDICTION OF CDMS. ACCORDINGLY, CDMS ASSUMES NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH ADVISOR. CDMS FURTHER MAKES NO WARRANTY OR ASSUMES NO LIABILITY REGARDING THE AVAILABILITY, RELIABILITY, OR SUITABILITY OF ANY INTERNET SERVICE PROVIDER OR DIGITAL SUBSCRIBER LINE SERVICES. CDMS ASSUMES NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH ADVISOR DUE TO THE FAILURE OF ANY INTERNET SERVICE PROVIDER OR DIGITAL SUBSCRIBER LINE SERVICE. CDMS MAKES NO WARRANTIES AS TO THE SECURITY OF CUSTOMER DATA COMMUNICATIONS. CDMS MAKES NO WARRANTIES AS TO THE SECURITY OF USER’S DATA COMMUNICATIONS, OR THAT THIRD PARTIES WILL NOT GAIN UNAUTHORIZED ACCESS TO OR MONITOR USERS’ COMPUTER(S) OR ONLINE COMMUNICATIONS. USER AGREES THAT CDMS WILL NOT BE LIABLE FOR ANY SUCH ACCESS.
    3. DATABASE INFORMATION. USER ACKNOWLEDGES THAT CDMS IS NOT THE AUTHOR OF THE INFORMATION INCLUDED IN THE ADVISOR DATABASE, THAT SUCH INFORMATION IS PROVIDED TO CDMS BY VARIOUS THIRD PARTIES AND THAT CDMS HAS NO RESPONSIBILITY FOR THE ACCURACY OR CURRENCY OF SUCH INFORMATION. CDMS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY KIND WITH RESPECT TO ADVISOR, SERVICES OR DATA MADE AVAILABLE THROUGH ADVISOR INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE. ADVISOR IS PROVIDED “AS IS” AND WHEN AVAILABLE WITHOUT WARRANTY OF ANY KIND.
    4. Risk of Use. User acknowledges and agrees that the entire risk arising out of the use or performance of Checking Web Service remains with User, to the maximum extent permitted by law. User’s only right or remedy with respect to any problems or dissatisfaction with Checking Web Service is to cease use of Checking Web Service.
  8. Limitation of Damages.
    1. CAP ON DIRECT DAMAGES. THE AGGREGATE AMOUNT OF DAMAGES RECOVERABLE AGAINST CDMS ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE CHARGES PAID TO CDMS BY CUSTOMER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY (EXCLUSIVE OF ANY INSTALLATION FEE AND/OR ACTUAL TRAVEL EXPENSES OR OTHER OUT-OF-POCKET EXPENSES PAID OR REIMBURSED TO CDMS DURING SUCH PERIOD), REGARDLESS OF THE TYPE OF CLAIM, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT FORESEEABLE AND REGARDLESS OF THE CAUSE OF SUCH DAMAGES, EVEN IF CDMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN BASED ON CDMS’ OWN NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CDMS WILL NOT BE LIABLE FOR ANY LOSSES RELATED TO THE INFORMATION CONTAINED WITHIN THE DATABASE OR PROVIDED TO CDMS BY CUSTOMER.
    2. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL THE MEASURE OF DAMAGES PAYABLE BY CDMS INCLUDE ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING DAMAGES DUE TO BUSINESS INTERRUPTION OR LOST PROFITS) ARISING FROM OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE TYPE OF CLAIM, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT FORESEEABLE AND REGARDLESS OF THE CAUSE OF SUCH DAMAGES, EVEN IF CDMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN BASED ON CDMS’ OWN NEGLIGENCE.
    3. Essential Basis. The parties recognize the fees charged to Wilbur-Ellis and User would be substantially increased, reflecting a substantially increased level of risk to CDMS, if this Agreement did not contain the provisions of Section 7 and this Section 8 of this Agreement, which form an essential basis of the bargain between the parties.
  9. User Indemnification of CDMS. User, on behalf of itself, and any employees, agents, successors, parent corporations, affiliate corporations, predecessor corporations and successor corporations, in all capacities, including individually, agree to indemnify and hold CDMS, its officers, directors, employees and agents harmless from any and all losses, claims, detriment, damages, charges, costs and expenses arising out of or related to (directly or indirectly) (a) User’s use of Checking Web Service, Checking Web Service, the Checking Web Service System; (b) the entering by User of any information into Checking Web Service under this Agreement, including any claim based on the negligence of CDMS; (c) violation or breach of any term of this Agreement or any applicable law, regulation, policy, or guideline, whether or not referenced herein, (d) violation of any rights of any third party, or (e) use, disclosure, or publication of Checking Web Service or of any information obtained in whole or in part by User from or through Checking Web Service. This Section 9 shall survive any termination of this Agreement.
  10. Events of Default. CDMS may terminate this Agreement upon the occurrence of any of the following:
    1. User violates any terms of this Agreement or any other agreement between User and CDMS, fails or neglects to perform or observe any of its existing or future obligations under this Agreement, or uses Checking Web Service in any manner inconsistent with the terms of this Agreement;
    2. CDMS determines in its reasonable and good faith discretion that User’s financial condition prevents it from being able to fulfill its obligation to indemnify CDMS as provided in Section 9 above; or
    3. User makes an assignment of User’s business for the benefit of creditors, a petition in bankruptcy is filed by or against User, a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or part of User’s property, or User is adjudged a bankrupt.

Immediately upon the occurrence of any event of default of this Agreement, CDMS may, in its sole discretion, elect to terminate this Agreement and to discontinue providing Checking Web Service to User.

  1. Termination. Either party may terminate this Agreement upon thirty (30) days prior written notice to the other party if the other party materially breaches this Agreement including without limitation a failure to pay fees and fails to cure such breach within thirty (30) days of receiving notice of such breach without cause.
  2. General Provisions
    1. Severability. If any part of this Agreement is adjudged by any court of competent jurisdiction to be invalid, that judgment shall not effect or nullify the remainder of the Agreement and the effect shall be confined to the part immediately involved in the controversy adjudged.
    2. Non Waiver. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder, nor shall such waiver preclude the further exercise of that right.
    3. Attorney’s Fees and Costs. In the event of any suit or proceeding to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs incurred in negotiations and discussions to settle a dispute arising out of the subject matter of this Agreement.
    4. Choice of Law/Choice of Forum. This Agreement shall be construed in accordance with and governed by the laws of the State of California, without regard to its choice of law rules. Any action to enforce the terms of this Agreement, or arising out of the subject matter of this Agreement, shall be brought in the Superior Court for the County of Yuba, State of California, or, if that is not a proper venue or jurisdiction, the United States District Court for the Eastern District of California.
    5. ARBITRATION. USER UNDERSTANDS AND AGREES THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN USER AND CDMS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE BREATH THEREOF, INCLUDING BUT NOT LIMITED TO TORT AND CONTRACT CLAIMS (INCLUDING THE ENFORCEABILITY OF THIS AGREEMENT), NEGLIGENCE CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES IN MARYSVILLE, CALIFORNIA. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY ANY STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT, AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”). NEITHER USER NOR CDMS SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CONSUMERS OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL.
    6. Commercial Software. Checking Web Service is deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of Checking Web Service by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
    7. Successors. This Agreement is binding on and shall inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns, unless otherwise prohibited by this Agreement.
    8. Titles. The titles to the sections and paragraphs of this Agreement are solely for the convenience of the parties, and are not an aid in the interpretation of the instrument.
    9. Entire Agreement and Acknowledgment. The parties acknowledge that this Agreement has been read and understood, represents the entire Agreement and understanding of the parties relating to the rights granted and obligations assumed in this Agreement, and supersedes all prior agreements, communications, or understandings, whether oral or written. Any oral representations or modifications concerning this Agreement not contained herein shall be of no force or effect unless contained in a subsequent written modification signed by both parties. The parties agree that the terms and conditions herein may be amended or supplemented by written agreement or by terms and conditions included in click-through, click-wrap or shrink-wrap agreements by and between the parties; provided that such agreements reference this Agreement.
    10. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
    11. Construction of Agreement. For the purposes of this Agreement, the use of the singular shall include the plural, and vice versa, and the use of the conjunctive shall include the disjunctive, and vice versa.
    12. Assignment. Neither party shall assign its rights, duties or obligations under this Agreement without the prior written consent of the other party and such consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to an affiliate or in connection with any merger, reorganization, sale of substantially all of such party’s assets, or other change of control transaction, without any consent from the non-assigning party.
    13. Survival. Sections 3 through 12, as well as any obligation to pay fees arising prior to termination, shall survive the expiration or termination of this Agreement for any reason.

I, the “User” to which the preceding terms and conditions refer, acknowledge that I have read the preceding terms and conditions of this Addendum, that I understand them and that I hereby manifest my assent to, and my agreement to comply with, those terms and conditions by “clicking” on the box labeled “I Accept.” I understand this is a binding legal agreement. Should I disagree with any of the terms or have any questions regarding the same I shall not continue to the next page and shall contact CDMS at 1.800.237.2367.

 

 
 
 
 
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