These terms and conditions govern the use of the Services provided by Cargill, Incorporated ("Cargill") and the Customer.
1. DEFINITIONS
1.1. "Additional Services" means any Professional
Services that are outside the description of Professional Services
set forth in a particular Statement of Work.
1.2. "Agreement" means these General Terms and
Conditions and any Contract referencing these General Terms and
Conditions, and any other Quotations, Statements of Work, Software
Terms of Use, or exhibits or attachments thereto.
1.3. "Authorized User" means (i) Customer and its
Affiliates, (ii) employees, agents, and independent contractors, or
(iii) third-parties to which Customer or its Affiliate has
outsourced information technology or business functions who need to
use the Software in the performance of their duties for Customer.
All such Authorized Users must be contractually obligated to protect
the confidentiality and integrity of Customer's confidential
information and have been authorized by Customer to use the Software
in accordance with the terms hereof.
1.4. "Beta Software" means pre-production versions of
Cargill software applications that are unwarranted and are provided
to Customer for review and testing.
1.5. "Confidential Information" means information that
one party receives from the other party through the operation of the
Agreement, which information is of a confidential and sensitive
nature. Confidential Information includes the Software, Third Party
Software, the Documentation and any information that is clearly
identified as confidential or proprietary at the time of
disclosure.
1.6. "Contract" means the written description of
Software to be provided and/or Services to be performed by Cargill
for Customer, which written document references these General Terms
and Conditions.
1.7. "Customer" means the person or entity identified as
the Customer in the Agreement.
1.8. "Evaluation Software" means Cargill software that
is provided to Customer on a limited term basis for non-production
evaluation and review, prior to purchase of such software by
Customer for use in a live, production environment.
1.9. "Inventions" means work product or tangible or
intangible results produced by or with Cargill pursuant to the
Agreement, including during the performance of a Support and
Enhancement Plan or Professional Services.
1.10. "Quotation" means the written quotation of
Software, Services, pricing and other applicable fees.
1.11. "Professional Services" means the implementation,
training and services (other than a Support and Enhancement Plan)
which are provided by Cargill to Customer pursuant to the Quotation
and an associated Statement of Work.
1.12. "Services" means the Professional Services and/or
the Support and Enhancement Plan, as dictated by the context of the
applicable provision.
1.13. "Software" means the software programs identified
in the applicable Quotation.
1.14. "Statement of Work" means the written description
of Professional Services to be performed by Cargill for Customer
pursuant to the Agreement.
1.15. "Subscription License" means the Software provided
to Customer on a Software-as-a-Service basis, as identified in the
applicable Quotation.
1.16. "Support and Enhancement Plan" means the telephone
and e-mail technical support described in these General Terms and
Conditions as well as Software updates, modifications, improvements
and enhancements made available by Cargill from time to time in its
sole discretion.
1.17. "Term" means the duration of the Agreement as may
be set forth in such Order Form or a Quotation thereunder.
1.18. "Third Party Software" or "Third Party Licenses"
means software, content, data or other materials, including related
documentation, that are owned by parties other than Cargill and that
are provided to Customer on terms that are in addition to and/or
different from those contained herein.
2. SOFTWARE TERMS OF USE
The Software may be provided to Customer either as a
Customer-installed, on-premises solution or as a
Software-as-a-Service, all as set forth in the applicable Quotation.
Subject to, and conditioned upon Customer's payment of applicable
fees and its compliance with these General Terms and Conditions,
Cargill grants Customer the following rights:
2.1. Customer Hosted Software. If Customer and Cargill
agree that Customer will install the Software at Customer's
location, Customer may use one copy of the Software on a single
computer, subject to the Authorized User limitation below, during
the Term. The Software is in "use" on a computer when it is loaded
into temporary memory (i.e., RAM) or installed into permanent memory
(e.g., hard disk, CD-ROM, or other storage device) of that computer.
However, installation on a network server for the sole purpose of
internal distribution to one or more other computers shall not
constitute "use" for which a separate license is required, provided
that Customer has a separate license for each computer to which the
Software is distributed.
2.2. Software-as-a-Service. If Customer and Cargill
agree that Cargill will provide the Software to Customer on a
Software-as-a-Service basis, Cargill will provide access to the
Software on the site hosted by a third party (the "Site") and
Customer's Authorized Users may access and use the Software on the
Site during the Term, subject to the restrictions noted herein.
2.3. Mobile Application Software. To the extent provided
for in the applicable Quotation, Customer's use of the Software on
mobile devices may be permitted, subject to Customer's Authorized
User and other limitations set forth herein. Certain personal
information or other information may be stored on mobile devices
enabled with the Software and it is Customer's responsibility to
maintain the security of such mobile devices to prevent unauthorized
access and use.
2.4. Copies of Electronic Documents. Solely with respect
to electronic user documentation included with the Software
("Documentation"), Customer may make a reasonable number of copies
(either in hardcopy or electronic form), provided that such copies
shall be used only for internal purposes and shall not be
republished or distributed to any unauthorized third party.
2.5. Data Use. Customer acknowledges that Cargill may,
directly or indirectly through the Software, including through
adapters on Software installed on mobile devices, collect and store
information regarding use of the Software and about equipment on
which the Software is installed, through the Site, or through which
it otherwise is accessed and used. Customer agrees that Cargill may,
without additional consideration to Customer, use such information
for any purpose related to any use or potential use of the Software
by Customer, including but not limited to improving the performance
or functionality of the Software or verifying Customer's compliance
with these General Terms and Conditions.
2.6. Ownership. Customer owns all data it inputs into
the Software that is provided on a Software-as-a-Service basis.
Customer grants Cargill an exclusive, royalty-free, perpetual
license to Customer data to use, copy, distribute, and create
derivative works for any purpose. Cargill owns any derivative works
produced from Customer's data. Any Customer data used, copied, or
distributed by Cargill for a purpose other than providing Services
to Customer, will be aggregated and will not be linked directly to
Customer name or business address. Cargill owns all its data and
information it uses to provide the Software to Customer.
2.7. Beta Software. From time to time, Customer may
elect to evaluate Evaluation Software or Beta Software, for the
purpose of evaluation and review. Evaluation Software and Beta
Software are licensed for Customer's non-production use in
Customer's on-site test or evaluation environment for the period set
forth in the applicable Quotation. Except for the provisions of
Sections 8.1 and 8.3 below, which shall not apply with respect to
any Evaluation Software or Beta Software, as any Evaluation Software
or Beta Software is provided on an "as-is" basis, Customer
acknowledges and agrees that all Evaluation Software and Beta
Software delivered in accordance with this paragraph shall be
considered to be a "Software" hereunder. Notwithstanding anything to
the contrary, as to any Evaluation and Beta Software, Customer's
right to use such Software will terminate on the earliest of: (a)
thirty (30) days after the date such Software is activated for use
in Customer's test environment; or (b) immediately upon the delivery
of written notice of termination to Customer. Upon expiration or
other termination of its use rights, Customer will immediately
either (y) discontinue any and all of use of the Software and
related documentation and remove or permit Cargill to deactivate the
applicable Software; or (z) execute a Quotation for and deliver
payment in full of the Software price that has been agreed upon for
such Software to Cargill. The termination of any Evaluation or Beta
Software licenses shall not affect the license to any other Software
that has been licensed by Customer under the Solution Agreement.
3. SOFTWARE USE RESTRICTIONS
3.1. Authorized User Restrictions. Authorized User may
access and use the Software during the Term solely for the internal
business purposes of Customer. Unless otherwise agreed, Customer's
use rights are limited to a single Authorized User. If Customer has
purchased multi-user rights, the Software may be used by the maximum
number of Authorized Users for which use rights have been purchased,
either on a concurrent use or on a per-seat basis, as identified in
the Quotation. Only those contractors of Customer with a need to
know may use the Software for the sole benefit of Customer and thus
may qualify to be an Authorized User. Customer is fully responsible
and liable for all uses of the Software and all actions and failures
to take required actions regarding the Software by Authorized
Users.
3.2. Transfer Restrictions. For Customer-Hosted
Software, the Software may be transferred from one computer to
another provided only one Authorized User uses it at a time. The
Software may be transferred from one computer to another and may
reside on multiple servers or workstations on the network provided
it is used at any time only by the maximum number of Authorized
Users for which licenses have been purchased. If Customer has
expanded from a single-user to a multi-user license, the multi-user
restrictions supersede the single-user restrictions. Customer may
either (a) make one copy of the Customer-hosted Software solely for
backup or archival purposes or (b) install the Software on a single
computer solely for backup or archival purposes. Cargill may
periodically conduct audits of Customer's records, systems and
facilities to verify compliance with the Agreement. Customer agrees
to comply with said audits as required by Cargill.
3.3. University and University Extension Use. If the
Agreement is between Cargill and a University or an Extension Office
associated with a University, the Software may be used only in
teaching, research, and extension service environments and cannot be
used for commercial purposes unless otherwise agreed upon in the
Agreement. For non-commercial use, the Software will contain a drop
dead date, which can be reset yearly upon mutual agreement of the
parties.
3.4. Additional Restrictions. Customer agrees: (a) not
to remove any Cargill notices in the Software; (b) not to sell,
transfer, rent, lease or sub-license the Software or Documentation
to any third party; (c) not to alter or modify the Software; (d) not
to reverse engineer, disassemble, decompile or attempt to derive
source code from the Software, or prepare derivative works
therefrom; and (e) not to separate any Software component or update
for use by more than one Authorized User at a time – the Software is
provided as a single product.
3.5. Third Party Materials. The Software may include
Third Party Licenses. If the Software contains content provided by
third parties, including but not limited to content regarding drugs,
medication warnings, feeding directions, or withdrawals and
prescriptions relating to animal feed formulas, Cargill makes no
warranties, either expressed or implied, that such third party
content is accurate, complete or up-to-date. The information
contained therein may change from time to time, and Cargill assumes
no responsibility to advise Customer of any changes or additions.
Additionally, where Cargill includes data and equations in the
Software, including data related to animal performance or nutrients,
Cargill makes no warranties, either express or implied, regarding
the accuracy or reliability of the data or equations included
therein. The information contained therein may change from time to
time, and Cargill assumes no responsibility to advise Customer of
any changes or additions.
3.6. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and
Documentation are provided with RESTRICTED RIGHTS. The Software
includes commercial computer software, as such term is defined in 48
C.F.R. §2.101. Accordingly, if the Customer is the US Government or
any contractor therefor, Customer shall receive only those rights
with respect to the Software and Documentation as are granted to all
other end users under contract, in accordance with (a) 48 C.F.R.
§227.7201 through 48 C.F.R. §227.7204, with respect to the
Department of Defense and their contractors, or (b) 48 C.F.R.
§12.212, with respect to all other US Government licensees and their
contractors. Manufacturer is Cargill, 9320 Excelsior Boulevard,
MS-54, Hopkins, MN 55343.
4. SUPPORT SERVICES
4.1. Support and Enhancement Plan Generally. A Support
and Enhancement Plan, if applicable, is effective beginning with the
date of shipment of the Cargill Software until the Term of Agreement
expires or is otherwise terminated. If These Terms and Conditions
are also effective beginning with the date of shipment of Third
Party Software sold by Cargill and are automatically renewed on an
annual basis for the Third Party Software through until the Term of
the Agreement expires or is otherwise terminated.
4.2. Service/Support Requirements. Cargill is
responsible for providing phone and e-mail support during Cargill'
normal business hours, excluding Cargill holidays, for
Cargill-proprietary Software. A Support and Enhancement Plan for all
other Third-Party Software may be provided by the third party as
noted in the Quotation. A Support and Enhancement Plan is provided
for routine, normal business usage of the Software and associated
modules specified in the Quotation; provided that Customer's
personnel are trained in the normal use of the Software and provided
that there is no outstanding balance owed for any Support and
Enhancement Plan fees. Customer is responsible for installing
network equipment suitable for connecting to the Internet from least
one computer and maintaining Internet connectivity to that computer
in order for Cargill support staff to be able to connect to the
Customer's system. Any Professional Service is provided as specified
in the Agreement. Any Additional Services will be billed separately
at the standard training/support rates.
4.3. E-Mail Service/Support. Customer's Authorized Users
are entitled to e-mail support that is available by addressing
requests to:
CDS_Support@cargill.com. E-mail support questions will be answered in a priority order
based upon the order in which they are received and based upon the
priority status of the question.
4.4. Emergency or After-Hours Support. In the event of a
Support and Enhancement Plan call requiring a response outside of
Cargill normal business hours, a technical support person will
usually respond within: (a) one (1) hour for emergencies (critical
or high priority matters only) and (b) the next business day in all
other cases.
4.5. Support and Enhancement Plan Fee; Subscription
License Fee. The annual fee for a Support and Enhancement Plan or a
Subscription License Fee is listed on the Quotation. These fees are
subject to change and said price changes will be reflected in the
renewal invoice that will be provided to Customer prior to
expiration of the applicable Support and Enhancement Plan or
Subscription License term. Such price changes will increase annually
by three percent (3%) or a three month average of the CPI, whichever
is higher. Additional Software purchased after the original purchase
will also be included in the annual fee calculation. Cargill may
terminate a Support and Enhancement Plan or Subscription License if
Customer does not pay the applicable annual fee when due.
4.6. Server Requirements. Customer is responsible for
providing server hardware, server operating system software,
workstation hardware, workstation operating system software, network
cabling, and connectivity devices, and properly filtered power
supply with battery backup, except as was otherwise specified in
writing in the Quotation. Customer is responsible for ensuring that
trained, competent individuals have assembled and installed the
server hardware, server operating system software, workstation
hardware, workstation operating system software, network cabling,
and connectivity devices and that the aforementioned components have
been certified to meet or exceed the appropriate specification
standards.
4.7. Staff Training. Customer is responsible for
ensuring that its staff members are competent in the use of the
workstation hardware and software. Customer is responsible for
ensuring that at least one staff member is competent to administer
the network, manage the backup system of Customer data, and ensure
that a backup copy of Customer's data is completed and the media is
stored in safe, multiple locations at all times. Customer is
responsible for sending people to training in the use of Cargill
Software and associated modules with significant knowledge of the
Customer's business and authority to make changes as necessary to
improve the Customer's business use of the Software Cargill
provides.
4.8. Renewal. The Support and Enhancement Plan shall be
renewed automatically on an annual basis unless either party
provides written notice of non-renewal to the other party no less
than thirty day prior to expiration of the then current Term.
Payment is due prior to or on the renewal date. If the Support and
Enhancement Plan or Subscription License should lapse due to
non-payment of the annual renewal, a reactivation fee will be
charged.
5. PROFESSIONAL SERVICES
5.1. These General Terms and Conditions apply to the
Professional Services provided by Cargill to Customer pursuant to
mutually agreed Statements of Work which are incorporated into and
made a part of specific Quotations. Each Statement of Work will
reference the applicable Quotation and will specify the Professional
Services to be performed by Cargill. Statements of Work will become
effective upon execution of the Quotation of which they are a
part.
5.2. Hiring. Customer agrees not to solicit or hire, on
a temporary or permanent basis, without the express written consent
of Cargill, any of Cargill' personnel during the Term and for a
period of twelve (12) months after the termination or expiration of
the Agreement.
5.3. Professional Services Responsibilities. Each
Statement of Work shall reflect the responsibilities and
requirements of both Cargill and Customer.
5.4. Change Requests. Any modifications to a Statement
of Work must be mutually agreed upon in writing. "In writing"
includes emails ONLY for the purposes of authorizing changes to the
Expense parameters in the relevant Statement of Work. Customer shall
designate an authorized representative within each Statement of Work
to approve Professional Services fees or expenses on behalf of
Customer. If Customer requests Additional Services, Cargill will
advise Customer, to the best of its ability based on information
available, of any additional compensation and any modifications to
the delivery schedule that would be needed to perform such
Additional Services. Cargill shall perform or provide such
Additional Services upon the parties' written agreement regarding
such additional compensation and modifications to the delivery
schedule.
6. FEES
6.1. Customer shall pay to Cargill the fees for Software
and Services provided herein, in the amounts set forth in the
applicable Quotation, within 30 days from the date of the applicable
invoice, unless otherwise stated in the Quotation or agreed to by
the parties.
6.2. Except as expressly set forth in the Contract, all
purchases are non-cancelable, and all fees are non-refundable.
Customer shall have no right to withhold fees under the Agreement,
including, without limitation, for alleged defects in the Software
and/or Services.
6.3. Fees described in the Agreement do not include
federal, state or local sales tax, VAT, GST, foreign withholding,
use, property, excise, service or other taxes now or hereafter
levied, all of which shall be Customer's responsibility. If Cargill
is required to pay any such taxes, Customer shall reimburse Cargill
for such and Customer agrees to indemnify Cargill for any such taxes
and related costs, interest, fees or penalties paid or owing by
Cargill hereunder.
6.4. The Customer agrees to pay Cargill for travel
expenses 30 days from the invoice date. Cargill will invoice
Customer monthly for travel expenses. Mileage rates shall be charged
to Customer as per IRS regulations. Airfare, lodging, rental car,
meals, and other travel expenses are billed at actual Cargill costs.
Cargill personnel will use best efforts for reasonable travel
expenses. All rates are subject to change by Cargill.
7. TERM AND TERMINATION
7.1. These General Terms and Conditions and the Software
use rights granted hereunder shall remain in effect for the Term or
until terminated as set forth herein.
7.2. Customer may terminate its license to the Software
by: (a) ceasing to use and destroying all copies of the Software and
Documentation in its possession or control ; and (b) providing
written notice to Cargill of its decision to terminate such Software
license.
7.3. Cargill may terminate the Agreement, effective upon
written notice to Customer, if Customer: (a) breaches a payment
obligation; (b) breaches a material provision of the Agreement; or
(c) files or has filed against it, a petition for voluntary or
involuntary bankruptcy or pursuant to any other insolvency law,
makes or seeks to make a general assignment for the benefit of its
creditors or applies for, or consents to, the appointment of a
trustee, receiver or custodian for a substantial part of its
property.
7.4. Upon expiration or termination of the Subscription
License term, the use rights granted in the Agreement shall also
terminate, and Customer shall immediately cease using the Software,
destroy or return to Cargill all Confidential Information and
Documentation, and pay all outstanding fees due to Cargill through
the date of termination. No expiration or termination shall affect
Customer's obligation to pay all fees that may have become due
before such expiration or termination.
7.5. Customer is solely responsible for copying or
downloading all Customer data using the Software-as-a-Service within
thirty (30) days upon termination of the Agreement. After such
thirty (30) day period, Cargill is not obligated to provide Customer
access to the Software or retain any of Customer data.
8. LIMITED WARRANTY
8.1. LIMITED WARRANTIES. Cargill warrants that the
Software (excluding any Third-Party Software, content or services
provided with or accessed through the Software) will perform
substantially in accordance with the accompanying written
Documentation for a period of ninety (90) days from the date of
receipt by Customer. The warranty period for the Site is ninety (90)
days following the date it is first available for use by Customer,
and applies only to the initial implementation of the Site and not
to any future upgrades, updates, or optional additions such as
additional users or modules. Cargill further warrants and represents
that it and its employees and agents have all training, skills,
tools, and equipment necessary to competently perform the Services
described herein and that such services shall be performed in a
timely, professional, and high-quality manner. Customer is solely
responsible for data backup.
8.2. NO OTHER WARRANTIES. EXCEPT FOR THE LIMITED
WARRANTY IN SECTION 8.1 ABOVE, THE SOFTWARE, DOCUMENTATION AND
SERVICES ARE PROVIDED TO CUSTOMER "AS IS" AND WITH ALL FAULTS AND
DEFECTS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, CARGILL AND ITS SUPPLIERS DISCLAIM ALL
OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY OF
INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF
DEALING. WITHOUT LIMITING THE FOREGOING, CARGILL DOES NOT WARRANT
THE ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS OF
THIRD-PARTY CONTENT CONTAINED IN THE SOFTWARE. ADDITIONALLY, WITHOUT
LIMITATION TO THE FOREGOING, CARGILL PROVIDES NO WARRANTY AND MAKES
NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET THE
CUSTOMER'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, OR OPERATE
WITHOUT INTERRUPTION OR ERROR. TO THE EXTENT ALLOWED BY APPLICABLE
LAW, IMPLIED WARRANTIES ON THE SOFTWARE, IF ANY, ARE LIMITED TO
NINETY (90) DAYS FROM THE DATE OF CUSTOMER'S RECEIPT OF THE
SOFTWARE.
8.3. LICENSEE REMEDIES. Regarding any warranty for
non-conformance, the entire liability of Cargill and its agents,
suppliers, consultants, resellers and Customer's exclusive remedy
shall be, at the option of Cargill, either (a) return of the price
paid, or (b) repair or replacement of the Software that does not
meet Cargill' Limited Warranty and which is returned to Cargill with
a copy of Customer's receipt. This Limited Warranty is void if
failure of the Software has resulted from Customer's use of the
Software in connection with any hardware or software not specified
in the Documentation or has resulted from Customer's negligence,
reckless use, accident, abuse, or misapplication. Any replacement
Software elements will be warranted for the remainder of the
original warranty period or thirty (30) days, whichever is longer.
Outside the United States, neither these remedies nor any product
support services offered by Cargill are available without proof of
purchase from an authorized international source.
9. LIMITATION OF LIABILITY
9.1. Cargill has no liability or obligation to Customer
for any actual or alleged infringement, indemnification claim,
warranty claim, or other claim, to the extent based upon or
attributable to: (i) the combination or interfacing of the Site,
including Software, with any software or other products not produced
or approved in writing by Cargill, (ii) the alteration, repair, or
maintenance of Software, except by Cargill, (iii) Customer's failure
to install and use any update, (iv) Customer's use of third-party
software in connection with the Site that is no longer support by
such third-party, or (v) any operation or use of the Site in a
manner not in compliance with the Agreement or the Documentation, or
any other breach of the Agreement by Customer. Except for the
express warranties.
9.2. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
CARGILL OR ITS SUPPLIERS OR AGENTS BE LIABLEFOR ANY SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS-INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY
OTHER PECUNIARY LOSS) ARISING OUT OF THE AGREEMENT INCLUDING BUT NOT
LIMITED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, LOSS OR
CORRUPTION OF DATA, FAILURE TO UPDATE OR PROVIDE ACCURATE
INFORMATION OR SECURITY BREACHES, EVEN IF CARGILL HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY
FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY
NOT APPLY TO LICENSEE.
9.3. DAMAGE CAP. IN NO EVENT WILL CARGILL OR ITS
SUPPLIERS' OR AGENTS' COLLECTIVE AGGREGATE LIABILITY UNDER THE
AGREEMENT FOR ANY REASON EXCEED ONE THOUSAND DOLLARS. THE
LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF THE
CUSTOMER'S REMEDIES UNDER THE AGREEMENT FAIL OF THEIR ESSENTIAL
PURPOSE.
10. PROPRIETARY RIGHTS
10.1. Professional Services. All Inventions shall be the
exclusive property of Cargill. With the respect to any Invention,
Cargill hereby grants to Customer a non-exclusive license to use
such Inventions in the normal course of Customer's business during
the Term.
10.2. Ownership. All title and copyrights, patents,
trade secrets, trademarks and proprietary rights in and to the
Software and all derivatives thereof (including but not limited to
any images, photographs, animations, video, audio, music, text, and
"applets" incorporated into the Software), the accompanying printed
materials, and any copies of the Software are owned by Cargill or
its suppliers. To the extent that Customer provides any ideas,
reports or other feedback to Cargill as part of Customer's use of
the Software, Customer hereby freely assigns all right, title and
interest in such ideas, reports and feedback to Cargill, without
further compensation, and shall execute all necessary documentation
as may be reasonably requested by Cargill to effect such assignment.
Customer acknowledges and agrees that all updates, upgrades, work,
Inventions, and deliverables in connection with the Site or related
Services, whether or not paid for or reimbursed by Customer, is the
exclusive property of Cargill. The Software is protected by
copyright laws and international copyright treaties, as well as
other intellectual property laws and treaties. No ownership rights
in the Software or the Site are transferred to the Customer. Cargill
owns and retains the right to collect and use in any lawful manner
and disclose aggregated, anonymized data or other data that is not
Confidential Information.
11. CONFIDENTIALITY
11.1. Dissemination of Confidential Information shall be
limited to employees or agents that are directly involved with
discussions contemplated by the Agreement, and even then, only to
such extent as is necessary and essential. The Parties shall inform
their employees and agents of the confidential nature of the
information disclosed hereunder and cause all such employees and
agents to abide by the terms of the Agreement. The receiving Party
shall not disclose the disclosing Party's Confidential Information
to any unauthorized party without prior express written consent of
the disclosing Party or unless required by law or court order. If a
Party is required by law or court order to disclose Confidential
Information of the other Party, they shall give the disclosing Party
prompt notice of such requirement so that an appropriate protective
order or other relief may be sought.
11.2. Confidential Information will be used only in
connection with discussions contemplated by the Agreement; no other
use will be made of it by the receiving Party, it being recognized
that both Parties have reserved all rights to their respective
Confidential Information not expressly granted herein. All documents
containing Confidential Information and provided by the disclosing
Party shall remain the property of the disclosing Party, and all
such documents, and copies thereof, shall be returned or destroyed
upon the request of the disclosing Party. Documents prepared by the
receiving Party using Confidential Information of the disclosing
Party, or derived therefrom, shall be destroyed upon request of the
disclosing Party, confirmation of which shall be provided in
writing. The receiving Party, however, may keep one copy of any
document requested to be returned or destroyed in the files of its
legal department or outside counsel for record purposes only.
11.3. Confidential Information shall not include that
which:
11.3.1.1. is in the public domain prior to
disclosure by disclosing Party;
11.3.1.2. becomes part of the public domain,
by publication or otherwise, through no unauthorized act or omission
on the part of the receiving Party;
11.3.1.3. is lawfully in the receiving
Party's possession prior to disclosure by the disclosing Party;
or
11.3.1.4. is independently developed by an
employee(s) of the receiving Party with no access to the disclosed
Confidential Information.
11.4. The period for disclosure of Confidential
Information between the Parties under the Agreement shall endure for
the Term of the Agreement. The confidentiality obligations imposed
by the Agreement, including but not limited to non-disclosure and
non-use, however, shall endure for three (3) years from the date the
Term (or any renewal thereof) expires or the date when early
termination of the Agreement becomes effective; provided, however,
that Customer's confidentiality obligations regarding Confidential
Information that is the Software, Third Party Software,
Documentation, or Services shall survive indefinitely.
12. RELATIONSHIP OF PARTIES
12.1. The relationship of Cargill to Customer shall be
one of independent contractor, and the parties do not intend to
create any partnership, joint venture, employment or agency under
the Agreement. Cargill shall not represent that Cargill is an agent
of Customer and shall not be authorized to bind Customer in any
way.
13. GENERAL
13.1. Choice of Law. The Agreement will be governed by
the laws of the State of Minnesota, without reference to its choice
of law rules. Customer hereby irrevocably consents to the exercise
of exclusive jurisdiction and venue by the state or federal courts
in Hennepin County, Minnesota for any claim relating to the
enforcement of, or any rights under, the Agreement. The Parties
exclude application of the United Nations Convention on Contracts
for the International Sale of Goods.
13.2. Exports. Customer represents and warrants that it
is not on the United States Department of Treasury, Office of
Foreign Asset Controls list of Specially Designated National and
Blocked Persons ("SDN List") and is not otherwise legally prohibited
to use the Services. Customer will comply with all applicable
customs, technical compliance and country of origin requirements of
each country into which the Software is imported. Customer will not
export or re-export, directly or indirectly, the Software to any
country where such export or transmission is restricted or
prohibited by local law, regulations, or statutes or by U.S. legal
regulations or statutes or to any individual on the SDN List or the
U.S. Commerce Department's Table of Denial Orders.
13.3. Complete Agreement. The Agreement represents the
entire Agreement between Customer and Cargill with respect to
matters covered herein and supersedes all previous proposals and/or
agreements, whether written or oral. No variation or modification of
any term of the Agreement shall have effect, unless in writing and
signed by authorized representatives of Customer and Cargill.
13.4. Waiver and Severability. No waiver of any
provision of the Agreement will be effective unless in writing and
signed by the party against whom such waiver is sought to be
enforced. Any waiver of either party of any provision of the
Agreement will not be construed as a waiver of any other provision
of the Agreement, nor will such waiver operate as or be construed as
a waiver of such provision respecting any future event or
circumstance. If any term or provision of the Agreement is held
invalid, illegal or unenforceable in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any
other term or provision of the Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction.
13.5. Force Majeure. Except for Customer's obligation to
pay fees hereunder, neither party shall be responsible for any delay
or failure in performance, caused by flood, riot, insurrection,
fire, earthquake, strike, communication line failure and power
failure, explosion or act of God, death of, or incapacitating
illness or injury to, key personnel or any other force or cause
beyond the control of the party claiming the protection of this
paragraph.
13.6. Assignment. Customer shall not assign or otherwise
transfer any of its rights, or delegate or otherwise transfer any of
its obligations or performance, under the Agreement, in each case
whether voluntarily, involuntarily, by operation of law or
otherwise, without Cargill' prior written consent, which consent
Cargill may give or withhold in its sole discretion. For purposes of
the preceding sentence, and without limiting its generality, any
merger, consolidation or reorganization involving Customer
(regardless of whether Customer is a surviving or disappearing
entity) will be deemed to be a transfer of rights, obligations or
performance under the Agreement for which Cargill' prior written
consent is required. No delegation or other transfer will relieve
Customer of any of its obligations or performance under the
Agreement. Any purported assignment, delegation or transfer in
violation of this Section is void. The Agreement is binding upon and
inures to the benefit of the parties hereto and their respective
permitted successors and assigns.
13.7. Arbitration. Any dispute arising under the terms
of the Agreement that is not resolved within a reasonable period of
time by the authorized representatives of Cargill and the Customer
shall be brought to the attention of the Chief Executive Officer (or
designee) of Cargill and the Chief Executive Officer (or designee)
of the Customer for joint resolution at Cargill' offices. If
resolution of the dispute through discussion between the
aforementioned executive officers is pursued without success, the
issue will go to arbitration before a mutually agreed upon party.
13.8. Dongles. Cargill may provide Customer with a
dongle as part of the delivery of Software or Services. Broken or
faulty dongles will be replaced for the cost of the replacement
dongle, postage and packing. The inoperative dongle must be returned
to Cargill on receipt on the new dongle and satisfactory
installation. In the event of a dongle theft, Cargill may, at its
own discretion, issue a replacement dongle. Cargill, however, will
require proper evidence of theft (such as a police or insurance
report) and will need to be satisfied that diligent steps were taken
to recover the dongle. Failure to return the dongle or provide
satisfactory evidence of theft or destruction will incur a re-issue
charge of 50% of current software list price.
13.9. Company Information and Notice. Should Customer
have any questions concerning the Agreement, or if Customer desires
to contact Cargill for any reason, please contact Cargill by phone
at 952-984-4700 or by mail at 9320 Excelsior Blvd, MS 54, Hopkins,
MN 55343. Cargill may update its contact information from time to
time. All notices, requests, consents, claims, demands, waivers and
other communications hereunder shall be in writing and shall be
deemed to have been given: (a) when delivered by hand (with written
confirmation of receipt); (b) when received by the addressee if sent
by a nationally recognized overnight courier (receipt requested);
(c) on the date sent by facsimile or e-mail of a PDF document (with
confirmation of transmission) if sent during normal business hours
of the recipient, and on the next business day if sent after normal
business hours of the recipient; or (d) on the third day after the
date mailed, by certified or registered mail, return receipt
requested, postage prepaid. Such communications must be sent to the
respective parties at the addresses set forth on the Contract cover
page.