1. GRANT OF LICENSE

Dutchland Farms, LLC (“DF”) hereby grants to Customer and Customer hereby accepts a limited, revocable, non-transferable and nonexclusive license to use certain data collection software (the “Application“) on Customer’s electronic devices subject to the terms of this agreement (the “Agreement”).  Customer acknowledges that the development of the Application is solely within DF’s discretion and DF shall be under no obligation to develop new releases of the Application.

  1. RESTRICTIONS OF USE

The following terms apply to the Application under this Agreement:

  1. The Application may be used only by Customer and only for the direct benefit of Customer. Customer may allow its contractors (including third parties to whom services are outsourced) to be authorized users provided such contractors use the Application solely for the benefit of Customer in accordance with this Agreement.
  2. Customer shall use the Application only in its original form, and shall not modify, decompile, reverse engineer, disassemble, or translate the Application, nor shall Customer create any derivative works or otherwise use the Application except as specifically permitted in this Agreement. Customer shall not use the Application to create software that competes with the Application or provides substantially the same functions as the Application.
  3. Customer will not rent, lease, sublicense, allow access to, or transfer the Application to any other Party except as explicitly provided in this Agreement.
  4. Customer shall not separate the Application into component parts for use on more than one computer.
  5. Customer will not attempt to defeat, modify, copy or duplicate any security devices protecting the Application.
  6. Any updates, upgrades, or new versions received by Customer from DF shall become part of the Application and shall be governed by the terms of this Agreement.
  1. CONFIDENTIAL INFORMATION

 

  1. During the term of this Agreement, each Party may come into contact with, or acquire knowledge about, the other Party’s technical or business information, including specifications, drawings, sketches, models, samples, pricing, computer programs including but not limited to the Application, solutions, designs, techniques, methods, methodologies, tools, processes, templates, data, customer information, networks and facilities, which information may be in written or oral form (“Confidential Information“). Such Confidential Information is, and shall remain, the exclusive property of the disclosing Party. The receiving Party shall treat and maintain all such Confidential Information received from the disclosing Party as confidential, whether or not it has been physically marked as Confidential or Proprietary. The Confidential Information may be used by the receiving Party only to the extent reasonably required in the performance of its obligations under this Agreement and may only be distributed to those employees of the receiving Party who have a need to know in order to perform pursuant to this Agreement. The Confidential Information may not be released to any other person, entity, or the public without the written consent of the disclosing Party.
  2. The foregoing obligations shall not apply to any Confidential Information lawfully in the receiving Party’s possession prior to its acquisition from the disclosing Party; received in good faith from a third Party not subject to any confidentiality obligation to the disclosing Party; now is or later becomes publicly known through no breach of confidentiality obligation by the receiving Party; or is independently developed by the receiving Party without the use or benefit of the disclosing Party’s Confidential Information.
  3. If the receiving Party receives a request to disclose any Confidential Information to comply with any law, rule, regulation or order of a court or governmental agency, receiving Party agrees that, prior to disclosing any Confidential Information, it shall, at the disclosing Party’s expense, (i) notify the disclosing Party of the existence and terms of such request, (ii) cooperate with the disclosing Party in taking legally available steps to resist or narrow any such request, and (iii) if disclosure is required, use its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be afforded to the Confidential Information disclosed.
  4. The obligation of confidentiality and use with respect to Confidential Information shall survive termination of this Agreement.
  1. TITLE AND INTELLECTUAL PROPERTY RIGHTS
  1. Customer acknowledges that title to the Application, including but not limited to any proprietary code, source code and object code, remains solely with DF.
  2. Customer grants DF the right to modify the Application at any time.
  3. DF acknowledges that any data collected shall be the property of the Customer.
  4. DF reserves all rights not expressly granted to Customer in this Agreement.
  5. Except as set forth in this Agreement, no express or implied license or right of any kind is granted to Customer regarding the Application.
  1. TERMINATION

This Agreement is effective on the Effective Date and shall continue in perpetuity unless terminated at any time by either party. Upon any termination, Customer shall immediately discontinue use of the Application.

  1. LIMITED WARRANTY

DF PROVIDES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE APPLICATION. DF SPECIFICALLY DISCLAIMS (A) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND (B) THAT THE APPLICATION WILL OPERATE UNINTERRUPTED OR ERROR FREE.

  1. GENERAL INDEMNIFICATION

Customer hereby agrees to indemnify and hold harmless DF, its directors, officers and employees from any and all claims, liabilities, damages, losses, expenses, demands, claims, suits or judgments, including all attorneys’ fees, costs and expenses incidental thereto, for death of or injuries to any person and for the loss of, damage to or destruction of any property in any manner arising out of use of the Application.

  1. LIMITATION OF LIABILITY

IN NO EVENT SHALL DF BE LIABLE TO THE CUSTOMER FOR ANY LOST INCOME, LOST PROFITS, LOST SAVINGS LOST DATA OR ANY OTHER INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE APPLICATION, EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN ADDITION, IN NO EVENT IS DF OR ITS OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, CONTRACTORS, CONSULTANTS, SUPPLIERS, AFFILIATES, INSURERS, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, TO BE HELD LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, LOST PROFITS, IMPAIRED GOODWILL, INTANGIBLE LOSSES, DELAY, OR BUSINESS INTERRUPTION, REGARDLESS OF WHETHER DF HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME.   CUSTOMER EXPRESSLY AGREES THAT DF’S LIABILITY TO CUSTOMER SHALL BE LIMITED TO PROCEEDS OF ANY INSURANCE AVAILABLE TO IT UNDER ITS APPLICABLE INSURANCE POLICIES. UNDER NO CIRCUMSTANCE IS DF LIABLE FOR THE ACTS, OMISSIONS OR NEGLIGENCE OF THIRD PARTIES.

  1. APPLICABLE LAW

This Agreement, and the rights and obligations contained in it, shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction. Jurisdiction and venue for any action arising under this Agreement is exclusively in the state or federal courts located in or governing Lancaster County, Pennsylvania. The parties waive any other choice of venue.

 

 

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