ADAVIV MASTER SERVICES AGREEMENT US
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN THIS MASTER SERVICES AGREEMENT (“Agreement”, “MSA”) CAREFULLY. THIS AGREEMENT MAY ALREADY APPLY TO YOU PURSUANT TO YOUR HAVING ENTERED INTO ANOTHER AGREEMENT WITH ADAVIV, INCLUDING ANY ADAVIV STATEMENT OF WORK, PROJECT AGREEMENT, GENERAL SERVICE AGREEMENT OR ORDER FORM (AS DEFINED BELOW) AND, IF SO, YOUR CHOOSING “ACCEPT” OR “DO NOT ACCEPT”, OR NOT, WILL NOT AFFECT OR AMEND YOUR OBLIGATIONS TO ADAVIV OTHERWISE EXISTING.
READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING, SIGNING OR ENTERING THE SERVICES DEFINED BELOW OR IN ANY OTHER AGREEMENT BETWEEN YOU AND ADAVIV THAT REFERENCES THIS MSA, YOU ARE ENTERING INTO A BINDING LEGAL CONTRACT WITH ADAVIV INC. IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, PLEASE DO NOT “ACCEPT” OR SIGN ANY SERVICE-LEVEL AGREEMENT THAT REFERENCES THIS AGREEMENT.
This Agreement (the “Agreement”) is entered into between AdaViv, Inc, a Delaware C-Corporation (Service Provider, “Provider” for short), and you, as the client or customer (“Customer”) who signs one or more of the following: (a) any Adaviv Statement of Work or Project Agreement; (b) General Service Agreement (whether or not such General Service Agreement incorporates this Agreement by reference), including any memorandum, agreement, appendix, attachment, exhibit, schedule or similar document attached to, incorporated into, forming part of or otherwise constituting part of such General Service Agreement; (b) any memorandum, agreement, appendix, attachment, exhibit, schedule or similar document attached to, incorporated into, forming part of or otherwise constituting part of this Agreement, or any other agreement with Adaviv; and (c) any sign up form, purchase order, click-through form, order form, statement of work, work order, memorandum of understanding, or other agreement, document, record, instrument, or request for Services of any kind executed or made between Adaviv and Customer, whether via an online form or by paper copy (each and all of the foregoing referred to in this Agreement as an “Order Form”). Each may also be referred to in this Agreement as a “Party” and collectively, the “Parties.”
This Agreement defines the legal relationship between Adaviv and Customer.
Capitalized terms have the meanings defined below. Customer may be any one or more of a Grower, a Reseller or a Service Provider, or may, subject to acceptance and approval by Adaviv, have a different role or status.
This Agreement will govern the terms and conditions of all dealings between us and Customer (regardless of type of Customer), written, oral, or otherwise, and all Services provided, or to be provided, by us to Customer. References to the Services will, as applicable, include access to our proprietary software provided as a service, including on a “platform as a service” or “infrastructure as a service” basis, and to data and information as provided in this Agreement. In using or accessing the Services, Customer will not enter into, or perform, any agreement, arrangement or activity with any other customer that is contrary to the terms and conditions of this Agreement or any policy we set from time to time and communicate to Customer with respect to the use of the Services.
Each Order Form, Statement of Work (SoW) Agreement or Service-level Agreement (SLA) provides for, among other things, the Services and Deliverables to be provided by Adaviv to Customer.
Customer agrees to contract electronically with Adaviv and to be bound by all electronic contracts and communications (including this Agreement and any applicable Order Forms, SOW or SLA, whether online or in paper form) and transactions between Customer and Adaviv. Customer, or Customer’s authorized users of the Services, which may include other customers or third parties, may be required to confirm Customer’s ongoing acceptance of this Agreement from time to time, including upon executing a new Order Form, or logging on to the Services. This confirmation may be by a click-through screen.
By accepting this Agreement, you, as the individual doing so, warrant and represent that you have the full legal authority of Customer to enter into this Agreement and bind Customer, and any other customers or third parties on whose behalf you contract, to this Agreement.
In this Agreement, references to Customer will include any applicable third party, including financial institutions, insurers, professional advisors and any other parties that on Customer’s request or behalf, or with Customer’s authority, accesses the Services or Customer Data and accepts this Agreement. References to Customer shall also include, where applicable, any authorized Dealer or Service Provider that accepts this Agreement on their own behalf or on behalf of other customers. Dealers and Service Providers, and any other entity accepting this Agreement, acknowledge and agree that all the terms and conditions of this Agreement apply to them equally as with any other customer, and further that Dealers and Service Providers will follow and comply with all directives, policies and requirements imposed on them as Dealers or Service Providers from time to time by Adaviv. In no event will any Dealer or Service Provider be or become, or be deemed to be, a franchisee (as defined in application franchise legislation) of Adaviv.
TERMS AND CONDITIONS
For good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows:
Definitions. Capitalized words and phrases in this Agreement shall have the following meanings, unless otherwise expressly defined elsewhere in this Agreement:
"Aggregate Data" means Data extracted from Customer Data, other customer Data and/or Adaviv Data and rendered anonymous so that it cannot be linked with Customer, or used to identify Customer, following which it may be aggregated or combined with other Aggregate Data, provided that it remains anonymous and cannot be linked with, or used to identify, any customer.
"Confidential Information" means any information whether oral, or written, of a secret, proprietary or confidential nature, concerning either Party or its business operations, and includes proprietary aspects of the Services and Customer Data.
"Create" (and cognates such as “Created”) with respect to Customer Data, means to upload, transmit, input or otherwise copy or move Customer Data into the Services, or to access, process, download or remove Customer Data from the Services, and shall include authoring, creating, making, editing, saving, storing, modifying, deleting, transmitting, processing, uploading, downloading, viewing, displaying, delivering or otherwise dealing in any manner with Customer Data in or through the Services.
"Customer” means the Person that enters into this Agreement with Adaviv. Unless otherwise accepted and approved by Adaviv in writing, Customer will be at least one of the following (a) Grower; (b) Farm/Cultivation Operator (c) Reseller; or (d) Service Provider.
"Customer Data" means Data of any kind Created in the Services by Customer, or on Customer’s behalf by a third party Person acting with Customer’s authority (each such third party shall also be a Customer), and includes Dealer Data, Grower Data and Service Provider Data, as the case may be.
"Data" means information, records, documents, data, content, works and materials of any kind.
"Data Transfer Agreement" means any agreement or direction, including an Order Form, SOW or SLA pursuant to which a Customer directs or authorizes Adaviv to disclose or transfer Data to another customer or Person.
"Adaviv Data" means information collected or Created by Adaviv about Customer and, as applicable, Customer’s cultivation and production operations, business and/or operations that is identifiable as being about Customer or its property, business and/or operations, and that is not a matter of public record.
"Grower" means a farmer, cultivator, farm operator, or farm or cultivation operations owner.
"Grower Data" means Data Created in the Services by a Grower, or on Grower’s behalf, with respect to Grower’s own farm, operations or business.
"including", “include” and “includes” mean “including without limitation,” “include without limitation” and “includes without limitation” respectively unless expressly stated otherwise.
"Intellectual Property Rights" means any and all intellectual property rights existing from time to time in any applicable jurisdiction under patent law, trade secret law, confidential or proprietary information law, copyright law, moral rights law, privacy law, publicity law, trademark law, unfair competition law or unfair trade practices law, or other similar law, and shall include the decisions of courts of law and other public or regulatory authorities, and shall further include all rights to claim damages or other remedies with respect to the infringement, dilution, violation or misappropriation of any of the foregoing.
"Order Form" has the meaning stated above.
"PaaS" means platform as a service, and forms a component of the Services available to customers, subject to agreement with Adaviv, to use the Services to access and run services and applications to enable such customers to interact with or provide services or products to other customers also using the Services on a PaaS basis or otherwise.
"Party" means either Customer or Adaviv, and “Parties” means both Customer and Adaviv
"Person" means any individual, company, corporation, firm, partnership, joint venture, association, organization, trust, trade union, governmental body, public body or other legal entity in each case whether or not having a separate legal identity and includes any third party.
"Reseller" means an entity selling another Servicer Provider(s) Services to a customer
"Service Provider" means an entity providing products and services to a Grower or to another Service Provider, pursuant to which either the Service Provider, or the Grower, or both, are a Customer of Adaviv.
"Service Provider Data" means Data Created in the Services by a Service Provider, whether with respect to Service Provider’s own business or customers, or on behalf of another customer.
"Services" means and includes all products, services, licenses and access to information, data (including Customer Data, Dealer Data, Grower Data and Service Provider Data) and/or software provided or made available by Adaviv to Customer, including access to plant or crop imagery imagery for Grower property or any other product or service offered by Adaviv (such as Farm Action Board™, Frontline of Cultivation App™, We’d™, Lean Cultivation Platform™, Mantis™, precision agronomics, control systems integration, crop protection, news, blogs) along with any products or services provided to Adaviv by third parties, and then provided to Customer, and further shall include any of the Services provided by Adaviv without charge, or made accessible in any way, in whole or in part, to Customer as set forth in an executed Order Form or in this Agreement. The Services may include the provision of PaaS functionality, and, in providing the Services, Adaviv may directly provide services, or may grant licenses or sub-licenses, including licenses permitted by third parties.
"Suspend" or "Suspension" will mean the act by Adaviv of restricting or suspending access to the Services, including access to Data.
"Term" means the term of this Agreement, which, unless otherwise agreed in writing by the Parties and subject to termination as provided in this Agreement, shall expire six months after the last Order Form has expired or has been terminated. The Term of an Order Form shall begin on the Commencement Date (as defined in that Order Form) and continue in effect until the later of the end date stated in that Order Form or such later end date as may be agreed between the Parties.
Retention. Customer retains the Adaviv to provide the services (“Services”) and/or products described in an Order Form and deliver any materials (“Deliverables”) to Customer as described or specified in an Order Form executed by the Parties.
Order Form. Each Order Form is subject to the terms and conditions set forth in this Agreement. Each SOW will define (a) the specific Services and/or Deliverables to be provided to Customer, (b) the respective roles and responsibilities of the Parties, (c) the expected delivery date or schedule or term of the engagement, as the case may be, (d) the fees and expenses therefor, and (e) other appropriate terms and conditions as warranted. Provider will not incur charges in excess of the amounts provided in any Order Form unless approved in writing by Customer. In the event of any conflict between the terms and conditions of this Agreement and any terms set forth in an Order Form, the terms of this Agreement will prevail unless the Order Form explicitly references the term of the Agreement that it is intended to supersede.
Primary Points of Contact. The individuals primarily responsible for managing the relationship between the Parties under this Agreement are those specified in any relevant Order Form executed between the Parties.
Access and Use of the Adaviv System.
5.1 License Grant. Subject to the terms and conditions of this Agreement (including payment of applicable fees), Adaviv hereby grants to Customer a limited, non-transferable, non-exclusive license to: (a) permit Authorized Users to (i) install, execute and use the Adaviv App, in object code only, on such Authorized Users’ mobile devices, and (ii) access and use the Adaviv Platform, in object code only, over the internet, in each case, solely for accessing, monitoring and controlling the Hardware installed at Customer’s facilities and in accordance with any Usage Parameters; (b) execute and use the Firmware solely to the extent included or embedded (as and if applicable) in the Hardware in connection with Customer’s use of the Hardware; and (c) reproduce and use a reasonable number of copies of the applicable Documentation in support of the exercise of the licenses granted in clause (a) and (b) above. 5.2 Restrictions. Except as otherwise explicitly provided in this Agreement, Customer will not, and will not permit or authorize third parties (including, without limitation, any Authorized User), to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the structure of the Software or the source code of the Software, except to the extent such a restriction is not permitted by applicable law and provided that, in such event, Customer must first request such code from Adaviv in writing in advance and any such use will be limited as needed for interoperability; (b) distribute, license, sublicense, assign, transfer, provide, lend, rent, lease, disclose, use for timesharing or service bureau purposes or otherwise use or permit third parties to use the Adaviv System or any part thereof for the benefit of any third party, (except as expressly and specifically authorized in writing by Adaviv); (c) modify, adapt, translate, or create derivative works of the Software or Documentation; nor (d) circumvent or disable any security or other technological features or measures of the Adaviv System; (e) use or access the Adaviv System, or any part thereof, in order to build a similar or competitive product or service or disclose to any third party any benchmarking or comparative study involving any Adaviv System; (f) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Adaviv or its suppliers on or within the Adaviv System (or any part thereof); or (g) violate any applicable laws or regulations, or the rights of any third party in connection with the use or access of the Adaviv System. Adaviv reserves all rights and licenses not expressly granted to Customer in Section 3.1 and no implied license is granted by Adaviv. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE MAY CONTAIN DISABLING CODE THAT (EITHER AUTOMATICALLY OR AT ADAVIV’S CONTROL) WILL RENDER THE SOFTWARE (AND RELATED DATA) UNUSABLE UPON TERMINATION OR CUSTOMER’S BREACH OF THIS AGREEMENT. 5.3 Authorized Users. Customer agrees that it shall not permit any person other than Authorized Users to access and use the Adaviv System, and shall ensure that Authorized Users use the Adaviv System solely in accordance with this Agreement and the applicable Usage Parameters. Customer acknowledges and agrees that Customer is solely responsible for the use of the Adaviv System by Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Customer. 5.4 Mobile Devices. Customer acknowledges and agrees that in order to use the Software, Authorized Users must have a compatible mobile device. Customer and its Authorized Users are solely responsible for determining whether or not a mobile device is or is not compatible with the Software and Adaviv makes no representations or warranties whatsoever regarding the Software and compatibility with any mobile device. Customer acknowledges and agrees that it and its Authorized Users are solely responsible for any fees or charges incurred from use of the Software through mobile devices, including, without limitation, any mobile phone provider charges for SMS, data services, etc. 5.5 Open Source Software; Third Party Software. The Software may contain open source software components (“Open Source Components”). Such Open Source Components are not licensed under these Terms, but are instead licensed under the terms of the applicable open source license. Customer’s use of each Open Source Component is subject to the terms of each applicable license which are available to Customer on request from Adaviv and, notwithstanding any provision herein to the contrary, Customer is solely responsible for its compliance with such licenses. As used in these Terms, “Software” does not include Open Source Components. In addition, the Hardware may contain certain third party software components (“Third Party Software”) which are subject to certain third party licenses. Such third party licenses are either provided to Customer at the time of sale or are provided to Customer in the form of a click wrap agreement upon deployment of the Hardware. As used in these Terms, “Software” does not include Third Party Software. 5.6 Third Party Integrations. The Adaviv System may allow Customer to connect to and/or integrate certain third party products, services or software under separate terms and conditions (collectively, “Third Party Integrations”). Customers acknowledges and agrees that the access and use of such Third Party Integrations is governed solely by the terms and conditions of such Third Party Integrations, and Customer does not endorse, is not responsible for, and make no representations as to such Third Party Integrations. Adaviv is not liable for any damage or loss caused or alleged to be caused by or in connection with the access or use of any such Third Party Integrations. 5.7 Auditing Usage and Maintenance. The Adaviv System includes a feature that reports general metric and diagnostic information about Customer’s use of the Adaviv System, such as configuration files, node count, software versions, log files and other information regarding Customer’s environment, but in no event will such metric and diagnostic information include any of Subscriber’s content such as user names, passwords or other confidential data. This feature is required to be enabled as part of the Subscription.
Acceptance. Customer may determine whether the Deliverables are acceptable. Should Customer reasonably determine that the Deliverables are not acceptable, Customer must notify Provider of its rejection and reasons therefore in writing. Deliverables that are not rejected within ten (10) calendar days of delivery shall be deemed accepted by Customer. If Customer notifies Provider that the Deliverables are not acceptable, Provider and Customer will mutually review the Deliverables in question and Provider will use commercially reasonable efforts to achieve conformance with Customer’s reasonable requirements for the Deliverables and re-deliver, if feasible, the applicable Deliverable, provided that Provider shall not be required to exceed the scope or extent of Services set forth in the applicable SOW.
Fees, Expenses and Payment. Except where Adaviv has agreed to other arrangements, all payments to Adaviv will be made in advance by cheque/check or debit, or, if approved by Adaviv; credit card, and payment terms shall be as stated by Adaviv. Customer authorizes us to process any and all payments by the credit card provided by Customer or on its behalf, and Customer consents to our collection, use and disclosure of Customer’s personal information for billing and payment purposes, and as reasonably required to provide the Services. Each Order Form will set out the applicable fees (the “Fees”) for the Services set out in the Order Form. Invoices will be sent to Customer’s specified billing address in the applicable Order Form and may be delivered by email. Email sent by Adaviv to Customer will be deemed received immediately upon sending by Adaviv unless Adaviv receives a message stating that email to Customer has not been delivered. Customer agrees to maintain a valid and operational email address for the purposes of this Agreement. Customer’s payments are due within thirty (30) days after delivery of each invoice; unless stated otherwise. Any and all Fees not paid when due shall bear interest at the lesser of 1.5% per month compounded (19.56% annually) or the maximum interest rate permitted by applicable law. Customer will be responsible for any sales, use or comparable taxes assessed or imposed upon the Services provided or the amounts charged under this Agreement. We reserve the right to increase the Fees on a year to year basis. Customer is not obligated to pay for any Services and Deliverables additional to those forth in any Order Form unless approved in writing by Customer or a new Order Form is signed between parties. Expenses will be payable when invoiced, and due within fifteen (15) calendar days of Customer’s receipt of the applicable invoice. All payments will be made in U.S. currency.
Enforcement and Interpretation. 8.0. The parties agree to resolve any and all disputes, controversies and claims arising out of or related to this Agreement without regard to the conflict of laws rules by consulting and negotiating with each other and, recognizing their mutual interests, attempting to reach a satisfactory solution. If they do not reach settlement within a period of sixty (60) days, then, upon notice by any party to the other(s), any unresolved dispute, controversy or claim shall be settled by binding arbitration administered by the American Arbitration Association in accordance with the then-current provisions of its International Arbitration Rules. The arbitration panel will consist of one (1) arbitrator. The location will be Boston, Massachusetts, United States of America. The language will be English. Judgment on the award rendered in any such arbitration may be entered in any court having jurisdiction. Any arbitration must be on an individual basis and the parties and the arbitrator will have no authority or power to proceed with any claim as a class action, a multi-party proceeding, or to otherwise join or consolidate any claim with any other claim or any other proceeding involving third parties. 8.1. The section headings in this Agreement are solely for convenience and will not be considered in its interpretation.
8.2. Each Order Form made pursuant to this Agreement is hereby incorporated by reference as if set forth in this Agreement and may be executed without any further amendment to this Agreement. 8.3. This Agreement including any later argued or determined ambiguity shall not be construed against the drafting Party. 8.4. In the event of any conflict between this Agreement and any Order Form, or Adaviv’s Statement of Data Principles, or other document, record or policy of Adaviv, or other agreement or understanding with Adaviv, the provisions of this Agreement will prevail. 8.5. In performing, making available or providing the Services, we are an independent contractor and consultant, and neither Adaviv nor any of its employees, dealers, distributors, agents or subcontractors shall be deemed to be partners, employees, agents or subcontractors of Customer by this Agreement. 8.6. Adaviv may amend this Agreement at any time upon thirty (30) days’ notice in writing (which may be delivered by email) to the Customer of such amendment. 8.7. Adaviv will not be bound by any terms or conditions included in any purchase order or other correspondence from Customer unless Adaviv expressly accepts such terms or conditions in writing. 8.8. Customer acknowledges that a breach by Customer of this Agreement may cause Adaviv irreparable harm from which no adequate remedy exists at law, and for which damages will not be an adequate remedy, and that upon any such breach or threatened breach, and notwithstanding any other provision of this Agreement, Adaviv shall be entitled to injunctive relief in any court of competent jurisdiction without prejudice to any other right in law or equity and without the necessity of prior demand or proof of damage.
Term of Agreement. 9.0. The term of this Agreement shall be the same as the term and corresponding Effective Date stated in any and all corresponding Order Form(s) executed by the Parties. 9.1. Subject to express survival provisions in this Agreement, this Agreement may be terminated by written notice of termination:
(i) by one of the Parties if the other Party materially breaches any of its obligations under this Agreement and the material breach is not cured within 30 days of the breaching Party’s receipt of written notice of such breach; (ii) by Adaviv if Customer uses the Services in violation of the terms and conditions of this Agreement and such violation is not cured within five (5) days of delivery to Customer of notice of such violation, provided that where Customer’s conduct constitutes a threat to the Services, or to the business, software or systems of Adaviv, or to other customers, Adaviv may immediately Suspend Customer’s access to the Services, including to Customer Data, and such Suspension may continue for as long as the threat may persist; or (iii) by Adaviv, if Customer does not make timely payment of Fees or other amounts due under this Agreement or in accordance with any Order Form, or application for credit, and fails to cure such payment default within fifteen (15) days of delivery of written notice. The above termination rights, as may be applicable, may also be exercised by a Party with respect to an individual Order Form or Data Transfer Agreement, which can include a “trial period” or option to terminate at an effective date or time period in accordance with an Order Form.
Intellectual Property. 10.0. The Services and any included or related software, hardware, content and/or materials are the exclusive property of Adaviv or its licensors and are protected by copyright law and international treaties. These materials include, but are not limited to, any software, hardware or improvements or modifications to Adaviv Background IP (as defined below) and all intellectual property rights therein. Deliverables owned by the Customer specifically exclude any Adaviv Background IP. 10.1. Subject to Customer’s continued compliance with the terms and conditions of this Agreement, Customer receives only certain limited, nonexclusive rights and licenses to access the Services and use any related software on the terms and conditions set out in this Agreement, and such access and use is limited to being done in the United States. 10.2. Nothing in this Agreement will be construed as granting to Customer any waiver, permission, license or other right from Adaviv except as expressly stated. 10.3. Except for custom-developed software expressly agreed in writing by Adaviv in an executed Order Form to belong to Customer and delivered to Customer, Adaviv retains all Intellectual Property Rights in and to the Services, including copyrights, patent rights, invention rights and rights in confidential information and trade secrets, and moral rights are not waived. 10.4. Adaviv, Lean Cultivation, Frontline of Cultivation (FLoC), Mantis Crop Scanner, We’d, together with any associated trademarks, service marks, trade names, logos, graphics or designs, are the exclusive property of Adaviv, all rights reserved. Customer acknowledges and agrees that any Intellectual Property Rights that are developed, invented, conceived, reduced to practice, authored, discovered, made or created by either Party as a result of Adaviv providing the Services or that are based on Adaviv or based on pre-existing Adaviv Intellectual Property Rights shall be and hereby are owned exclusively by Adaviv, and Customer agrees to take reasonable steps requested in writing by Adaviv to record or perfect such ownership, with Customer’s reasonable out-of-pocket costs to so record or perfect ownership being the responsibility of Adaviv. 10.4. As between Customer and Adaviv, all Customer Data is owned by Customer, subject to our rights to collect, use, process, display, store and disclose Customer Data in the course of providing the Services, and to our rights to Aggregate Data as provided in this Agreement. Adaviv reserves the right to use anonymized versions of Customer Data that is shared by the Customer with Adaviv through the process of Adaviv delivering the Services and Deliverables of any executed Order Form. Those uses can include marketing purposes; these results can constitute statistics, data and data visualizations from the Services or Deliverables, but excludes any information that is considered “Customer Background IP” or Confidential Information (e.g., a specific cultivation method, input product or formula) and any information that states or shares the Customer identity unless otherwise agreed to upon by the Parties in writing). 10.5. Adaviv Background IP. “Adaviv Background IP” means all concepts, ideas, methods, methodologies, procedures, processes, know-how, data, techniques, models, materials, content, technology, hardware, equipment, software, programming routines, algorithms, documentation, reports, analysis, templates and methods of operation and all other intellectual property created, developed or acquired by Adaviv (i) prior to the date of this Agreement, or (ii) independently or outside of the scope of this Agreement. Adaviv shall retain all rights in Provider Background IP, including any improvements or additions to Adaviv Background IP developed in the course of providing the Services and all intellectual property rights in any of the foregoing.
Data. 11.0. Part of the Services includes access to data and information considered by the Parties to be useful and valuable, including Aggregate Data. Customer therefore irrevocably agrees that those aspects of Customer Data and Adaviv Data that have been rendered anonymous and not identifiable with Customer, may then be combined or aggregated by Adaviv with other data, content, materials, documents, records or information, including the Customer Data and Adaviv Data of other customers of Adaviv, into Aggregate Data, and then copied, used, published, posted, provided, distributed, disclosed, publicly performed, publicly displayed or otherwise made available by Adaviv to its customers or partners as part of the Services. This use of Customer Data excludes Data considered to be Customer background IP, specifically combinations of data that together form a growing recipe or process used repeatedly by the Customer in its operations and cultivation or Confidential Customer Information such as unique a process or method to create a plant phenotype that was developed by the Customer, unless otherwise consented to by the Customer in writing. 11.1. Customer may revoke its consent to collection and use of Adaviv Data at any time upon written notice to Adaviv, provided that Customer acknowledges and agrees that such revocation may impair or end the ability of Adaviv to continue to deliver or make available some or all of the Services to Customer, and that Adaviv’s rights with respect to Aggregate Data related to Customer already in existence at the time are irrevocable and will continue in effect. Adaviv is granted by Customer all necessary rights, permissions and licenses to use Adaviv Data and Customer Data to perform the Services required under this Agreement and an worldwide, non-exclusive, transferable, sub-licensable, royalty-free, irrevocable, fully-paid and permanent license to store, copy, use, publish, display, make derivative works and Intellectual Property from, process, store, destroy, distribute or otherwise control or exploit Aggregate Data. 11.2. Adaviv shall be the sole and exclusive owner of all modifications and derivative works of the Digitally Generated Raw Data created by or on behalf of Adaviv. Data created or generated by or on behalf of Adaviv from, related to or in connection with the Digitally Generated Raw Data (including through Adaviv personnel’s analyses, observations, review or annotations of Digitally Generated Raw Data) will be owned exclusively by Adaviv (“Adaviv Generated Data”). Without limiting the generality of the foregoing, Adaviv may use and disclose such Adaviv Generated Data without restriction, including for the purposes of the Adaviv’s marketing material including presentations, websites and other promotional materials.
Data Termination. 12.0. Upon termination or expiry of this Agreement, Adaviv will, upon written request of Customer, deliver to Customer, or to another customer or third party as designated by Customer, in a commercially reasonable format on commercially reasonable media (or by means of Adaviv enabling a download by Customer) one (1) copy of all Customer Data Created in the Services, and hosted in or available through the Services to Adaviv, provided that Customer agrees to pay all related costs, charges and fees of Adaviv with respect to providing such copy of Customer Data. 12.1. In all cases the Customer requesting and/or receiving a copy of Customer Data from Adaviv, or having such Data provided to another customer or third party, will fully and forever indemnify Adaviv against any and all claims by any customer or third party that Adaviv disclosed or provided a copy of such Customer Data to the requesting Customer or to another customer or third party without the authority or consent, or in breach of the rights, including Intellectual Property Rights, of such other customer or third party. Any Data Transfer Agreement to the contrary shall not be binding on Adaviv.
Warranties. 13.0. Adaviv warrants that the Services provided will be performed in a professional and workmanlike manner. 13.1. Adaviv warrants that, to Adaviv’s best knowledge, all Services and Deliverables provided by Adaviv according to any Order Form executed by the Parties will be based on materials wholly original with Adaviv, or that Adaviv has all rights necessary to use such materials under this Agreement, or that such materials are in the public domain throughout the world, and will not infringe upon or violate any copyright or any other intellectual property right of any person or entity.
Confidentiality. 14.0. Confidential Information. “Confidential Information” means all ideas, creations, inventions, discoveries, improvements, designs, methods, algorithms, computer programs, written works, research, data, and information of any kind, whether oral, written, or in machine- readable or any other form, which is confidential or proprietary to Customer, to the Provider or to any third party that has furnished it to Customer or Provider. Without limiting the generality of the foregoing, Confidential Information shall specifically include all Deliverables, all instructions and specifications exchanged between the Parties, all business and marketing plans, and all customer and supplier lists of either of the Parties. The existence and nature of this Agreement and the SOW, as well as all information contained herein or otherwise relating to the Services, also shall be deemed Confidential Information. The term “Confidential Information” does not include information that: (i) is independently developed by Provider without reference to or reliance upon Customer’s Confidential Information; (ii) becomes publicly known (other than through unauthorized disclosure); (iii) was already known to Provider, without any obligation of confidentiality, prior to receipt thereof; or (iv) is rightfully received by Provider from a third party that does not have any obligation of confidentiality. 14.1. Standard of Care. Provider and Customer shall protect all Confidential Information with the same degree of care as it uses to avoid unauthorized use, disclosure, publication, or dissemination of its own confidential information of a similar nature, but in no event with less than a reasonable degree of care. 14.2. Restricted Disclosure. Provider and Customer shall not disclose, or permit the disclosure of, any Confidential Information without prior written consent of the corresponding Party. Provider or Customer may disclose Confidential Information to its employees, independent contractors, accountants, attorneys, and other agents (collectively, Provider’s “Third Party Recipients”) if necessary in performing its obligations under this Agreement. The Parties shall ensure that such Third Party Recipients are aware of these confidentiality obligations and are bound by confidentiality obligations no less stringent. 14.3. Required Disclosure. Provider or Customer may disclose Confidential Information to the extent required by any federal, national, provincial, state, county, or local law, ordinance, statute, rule, regulation, regulatory guidance, code, guideline, policy, notice, treaty, judgment, order, decree, injunction, permit, issuance, or other determination or finding of any governmental authority, including any federal, national, provincial, or state government, or any political subdivision of any of them, or any agency, court or body exercising executive, legislative, judicial, regulatory or administrative functions, provided that the Parties provide to the corresponding Party with written notice that the Confidential Information is required to be disclosed. 14.4. Survival. The obligations set forth in Section 9 shall survive the termination or expiration of this Agreement for any reason. The obligations of confidentiality, non-disclosure, and non-use hereunder shall continue until the relevant Confidential Information falls within one of the exceptions provided for in Section 14.0.
No Assignment. Neither Party shall assign this Agreement, in whole or in part, without the advance written consent of the other Party.
Notices. All notices and other communications under this Agreement shall be in writing and may be given by any of the following methods: (a) personal delivery; (b) registered or certified mail, postage prepaid, return receipt requested; (c) reputable overnight delivery service or (d) email. Customer’s address for notice and billing is stated in the Order Form. Adaviv’s email address for notice is Sales@Adaviv.com. Notices to Adaviv may also be delivered as follows:
Adaviv Inc., 444 Somerville Ave., Somerville, MA. 02143.
Limitation Of Liability. In no event will either Party be liable for any incidental, special, punitive, or consequential damages, or lost profit, or any other indirect damages, whether arising in contract, tort (including negligence) or otherwise, even if the Party has been informed of the possibility thereof. In no event shall either party’s aggregate liability under this Agreement exceed the amount of Provider’s fees paid to-date by Customer under this Agreement.
Indemnities. 18.0. Customer shall indemnify, defend and hold harmless Adaviv (and its affiliates and sub-contractors and the foregoing entities’ respective employees, directors, officers, servants, contractors, subcontractors, subsidiaries and agents against any and all claims, actions, damages, losses or liabilities arising out of any action brought against Adaviv by a third party as a result of Customer’s use of the Services or any Data or materials supplied by Adaviv (except for claims by third parties claiming that the Services infringe, misappropriate or violate third party Intellectual Property Rights that are not based on changes or additions to Services by Customer or for Customer by a third party). 18.1. Subject to the limitations set forth in Section 16 (Limitation of Liability), Adaviv will indemnify, defend and hold harmless Customer (and its affiliates and their respective employees, directors, officers, contractors and agents) against any claims, actions, damages, losses or liabilities arising out of any action brought against Customer by a third party as a result of the Services infringing a third party’s Intellectual Property Rights, provided Customer is using the Services as intended and permitted by Adaviv, and is in compliance with this Agreement and any applicable Order Form and Data Transfer Agreement. 18.2. In the event that a third party restricts or enjoins Customer’s use of the Services or Products, or alleges any infringement, dilution, violation or misappropriation of such third party’s rights, including Intellectual Property Rights, by the Services or the actions of Adaviv, Adaviv shall have the right to obtain additional rights or licenses to allow the Customer to continue using the Services, or to modify the Services so that the third party’s rights are no longer infringed, diluted, violated or misappropriated (or alleged to be), or to terminate the applicable Order Form or this Agreement.
Access to Property. Customer acknowledges that in order to provide the Services, and in particular where either Customer is a Grower, or Customer, as a Dealer or Service Provider acts as an agent of a Grower, Adaviv may need to access the property on which Customer’s or the Grower’s operations are located. Customer, on its own behalf, or on behalf of any Grower for which Customer is an agent, agrees to any such access by Adaviv personnel or third party contractors as may be reasonably required for Adaviv to provide the Services, as long as Adaviv provides reasonable advance notice of such access. Such advance notice need not be in writing including that it may be delivered orally by telecommunication, email, text or in person.
General Provisions. 20.0. Customer will not assign this Agreement, an Order Form or a Data Transfer Agreement to which Adaviv is a party, in whole or in part, without the prior written consent of Adaviv, in Adaviv’s sole discretion. Adaviv may assign or subcontract all or any part of this Agreement and its rights and obligations under this Agreement or the Services without notice to Customer or Customer’s consent. 20.1. This Agreement will inure to the benefit of and will be binding on and enforceable by Customer and Adaviv and their respective successors and permitted assigns. 20.2. If any part of this Agreement is void, prohibited or unenforceable, such part will be severed from this Agreement, and the rest of this Agreement will continue in force and effect and will be construed as if such part as severed had never been part of this Agreement. 20.3. The failure of Adaviv to exercise any right under this Agreement, or Adaviv’s failure to insist upon strict or full performance of Customer’s obligations under this Agreement will not constitute a waiver of Adaviv’s rights hereunder or a relinquishment of any provision of this Agreement. In order to be binding upon Adaviv, any such waiver must be express and in writing signed by Adaviv. The rights of Adaviv under this Agreement are cumulative and not alternative. 20.4. Any provision of this Agreement that, expressly or by its nature, extends beyond the termination of this Agreement will survive any termination of this Agreement. Without limitation, all obligations to indemnify, defend and hold harmless Adaviv upon Customer in this Agreement including those in any other section of this agreement, the obligation upon Customer to record and perfect ownership of intellectual property set forth in Section 9, all rights of Adaviv to copy, use, publish, post, provide, distribute, disclose, publicly perform, publicly display and otherwise deploy, store, destroy or otherwise control Aggregate Data shall survive any termination or expiry of this Agreement, howsoever caused, and shall continue in full force and effect.
Miscellaneous. 21.0. Entire Agreement. This Agreement (including each Order Form executed by the Parties) constitutes the entire agreement, and supersedes all prior negotiations, understandings and agreements (oral or written), between the Parties concerning its subject matter. 21.1. Waiver. The failure of either Party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. No change, modification or waiver to this Agreement will be effective unless in writing and signed by both Parties. 21.2. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising under this Agreement is in the federal and state courts located in the Commonwealth of Massachusetts, and both Parties hereby consent to such jurisdiction and venue for this purpose. 21.3. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. 21.4. Electronic Signatures. Signatures to this Agreement may be transmitted by electronic mail in pdf format with the same effect as physical delivery of the paper document bearing the original signature. 21.5. Independent Contractors. The Parties are and at all times shall be and remain independent contractors as to each other, and at no time shall either be deemed to be the agent or employee of the other. Neither Party shall have any power to obligate or bind the other Party in any manner whatsoever.
Each party acknowledges that it has read this agreement, understands it, and agrees to be bound by its terms and conditions.