Farm Generations and Grownby.app
Seller Terms of Service
GrownBy Software License and Service Agreement
This Software License and Service Agreement (the “Agreement”) is entered into as of ______, 20__ (the “Effective Date”) by and between FARM GENERATIONS COOPERATIVE, having a place of business at 1830 Route 9 Germantown, NY 12526 (“FARM GENERATIONS”) and FARM/BUSINESS_____________ having a place of business at _____________________("FARMER"). FARMER and FARM GENERATIONS are hereinafter individually referred to as a “Party” and collectively as the “Parties”.
WHEREAS FARM GENERATIONS provides Software and/or services, including a mobile application for the online sales of farmers produce, goods and/or services (“Software and/or Services”);
WHEREAS FARMER is utilizing the Software and/or Services for the Purpose;
WHEREAS FARM GENERATIONS is willing to grant limited and restricted access rights to the Software and/or Services on a software as a service basis to FARMER under the terms and conditions provided by this Agreement for the Purpose.
NOW, THEREFORE the Parties hereto do agree as follows:
1.1. Agreement: means this Agreement plus its annexes and its potential amendments.
1.2. Authorized Users: means an individual person who is an employee or authorized agent of FARMER.
1.3. Customer(s): means the third-party customer of FARMER who review and/or purchase(s) Products through the Software and/or Services.
1.4. Software: means the FARM GENERATIONS proprietary GrownBy software platform, in both source and object code form, including its features and functionalities, as well as all of the related services provided therein.
1.5. Purpose: means FARMER using the Software and/or Service to market and/or sell Products, all in accordance with the Agreement.
1.6. Product(s): means the food, goods and/or services grown and/or provided by FARMER, as sold through the Software and/or Services.
2. Access and Use
2.1. Subject to payment of any fees agreed to by the parties and compliance with this Agreement, FARM GENERATIONS hereby grants to FARMER a limited, fixed period, non-exclusive, non-transferrable, non-sublicensable, royalty free, worldwide, right to access the Software for the Purpose, on a software as a service basis, by means of logins enabling access via the internet during the Term. Such access shall be implemented by FARM GENERATIONS in accordance with this Agreement and shall be provided to FARMER promptly after execution of this Agreement. FARMER shall ensure that its Authorized Users comply with the obligations in this Agreement. FARMER’s sole and exclusive remedy for failure by FARM GENERATIONS to comply with this Section 2.1 shall be to fix and and/or replace the non-compliance as soon as reasonably possible.
2.2. FARM GENERATIONS shall have the right (but not the obligation) in its sole discretion to monitor, refuse, alter or remove any data or content that is available via the Software and/or Services, including altering the Software and/or Service itself, for any or no reason, including that any content violates the terms of this Agreement or is otherwise objectionable.
2.3. FARMER hereby represents and warrants that it shall comply, and agrees to require its Authorized Users to comply, with the following requirements:
2.3.1. FARMER and/or Authorized Users may not make copies of the Software, or otherwise attempt to modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer the Software, or create derivative works based upon all or part of the Software.
2.3.2. FARMER and/or Authorized Users will not create screen shots, reproductions or other representations of the Software’s user interface or functionality in any form
2.3.3. FARMER may not transfer, lease, assign, make available for timesharing, or sublicense, in whole or in part, the Software nor FARMERS’ access rights thereto.
2.3.4. FARMER agrees to conduct itself in a professional manner according to generally accepted standards for its industry while using and/or utilizing the Software and/or Services, including but not limited to providing quality Products and timely fulfilling its order obligations to its Customers.
2.4. FARMER shall adhere to all applicable laws and regulations related to food and beverage product production, marketing, sales, distribution, and claims made on product labels.
2.5. FARMER shall not make any untrue or unverifiable claims, including but not limited to claims about health or nutritional benefits of their Products, their production practices, their certifications, or the producer of their Products.
2.6. FARMER agrees that they are the sole producer of their Products, or the producer or source of the Product is described to Customer(s) in the Product’s description.
2.7. FARMER shall hold general liability insurance including product liability insurance with minimum coverage of at least $1,000,000 per occurrence and $2,000,000 in aggregate with “Farm Generations Cooperative” listed as additionally insured and FARMER’s insurance policy responding as primary noncontributory. If FARMER sells Product(s) containing alcohol, FARMER’s general liability insurance policy shall also include liquor liability with “Farm Generations Cooperative” listed as additionally insured and FARMER’s insurance policy responding as primary noncontributory.
3.1. FARMER. FARMER shall be the sole and exclusive owner of all right, title and interest in all the Products and FARMER Confidential Information (“FARMER IP”). FARMER hereby grants a non-exclusive license to FARM GENERATIONS to download, store, backup, restore, copy, print, market, transmit, access, and use the Products and/or FARMER Confidential Information, to the extent reasonably necessary to perform its obligations under this Agreement. FARM GENERATIONS shall not acquire any right, title, or interest, express or implied, in FARMER IP, other than as granted in this Agreement.
3.2. FARM GENERATIONS. FARM GENERATIONS shall be the sole and exclusive owner of all right, title and interest in the Software and/or Services, any and all trade or other marks of FARM GENERATIONS, copies thereof, all updates and other modifications thereto, and all intellectual property rights therein, whether suggested, created, made, or provided by FARM GENERATIONS, FARMER, Authorized Users or any other person including without limitation FARM GENERATIONS Confidential Information (“FARM GENERATIONS IP”). Neither FARMER or any Authorized Users shall acquire any right, title, or interest, express or implied, in FARM GENERATIONS IP, other than as granted in this Agreement.
4. Confidentiality. The Parties agree not to permit access to or to disclose the other Party’s Confidential Information, except to its authorized employees, professional agents and/or Authorized Users who are bound by confidentiality obligations and/or agreements with terms no less restrictive than those of this Section 10 and who need to use or have access to the other Party’s Confidential Information as permitted by this Agreement. A receiving Party shall use at least the same degree of care in protecting the other Party’s Confidential Information as such Party generally exercises in protecting its own most valuable proprietary information and shall inform its employees having access to the Confidential Information of its confidential nature. “Confidential Information” includes, without limitation the Software and/or Services, as well as all information relating to the disclosing Party’s business plans, marketing plans, customers, technology, employee and organizational information, product designs, product plans and financial information, which, when provided by one Party to the other: a) are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; b) are disclosed orally or visually, identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within 10 days; or c) a reasonable person would understand to be confidential or proprietary at the time of disclosure. Notwithstanding the foregoing, the receiving Party shall have no obligation of confidentiality with respect to any information which: (a) is already known to the receiving Party at the time of disclosure; (b) is or subsequently becomes publicly available through no wrongful act of the receiving Party; (c) is disclosed or provided to the receiving Party by a third party without restriction; or (d) is developed independently by the receiving Party without use of or access to the disclosing Party’s Confidential Information. Upon expiration or termination of this Agreement, or at a Party’s request, each Party will promptly return or destroy all copies of the other Party’s Confidential Information, including any notes, memoranda, reports or other documentation that contains a Party’s ’s Confidential Information, in its possession or control. At a Party’s request the non-requesting Party will certify to the destruction of all such information.
5. Data Privacy. FARM GENERATIONS may collect and/or process personally identifiable information of FARMER and/or its Customers (“FARMER PII”) through the Software and/or Services, which may be in the United States. We shall comply with all applicable data privacy laws related to the processing of any FARMER PII (e.g. CCPA and GDPR) and FARMER consents to such usage to the fullest extent possible under the law. The security of FARMER PII is important to us. While there is no such thing as "perfect security" on the Internet, we will take reasonable steps to help ensure the safety of FARMER PII. However, FARMER understands and agrees that such steps do not guarantee that use of the Software and/or Services is invulnerable to all security breaches, and that FARMER GENERATIONS makes no warranty, guarantee, or representation that use of the Software and/or Services is protected from viruses, security threats or other vulnerabilities.
6. Payments, Fees, Taxes
6.1. Customer Payments
6.1.1. At all times, FARMER agrees to maintain legal, updated and current banking information and accounts, including providing the same to Farm Generations, to facilitate and further the Parties obligations hereunder, including the receipt of payment for the sale of Products by FARMER from Customers for the Purpose.
6.1.2. All sales made by FARMER using the Software and/or Services are between FARMER and Customer only. FARMER authorizes and direct us to transfer and/or pay all amounts due from Customer(s) to FARMER for any and all sales made through the Software and/or Services to the FARM GENERATIONS designated third party payment processing party (“Payment Processor”), who shall serve as FARMER’s agent for purposes of receiving FARMER’s proceeds of credit and debit card funded processing services that may occur while using the Software and/or Service for the Purpose and such Payment Processor shall be responsible for disbursing such amounts to FARMER and/or Customer, as required. FARMER shall receive remittance of any fees due from Payment Processor within the timeframe set by such Payment Processor. Should a chargeback dispute occur between Customer and FARMER, FARMER shall promptly comply with all requests for information from FARM GENERATIONS and/or Payment Processor. FARMER shall not attempt to recharge a Customer for an item that has been charged back, unless the Customer has authorized such actions. Neither Party shall not request or use a cardholder’s account number, cardholder data and/or payment information for any purpose other than to support payment for sales of Products in accordance with this Agreement.
6.1.3. FARM GENERATIONS, or its Payment Processor, reserves the right to charge a processing fee, on a per sale basis and passed to the Customer at the point of sale, for facilitation of any sales by FARMER for the Purpose. Such fee may be deducted from payments owed to FARMER under this Section 6.1.
6.2. License Fees. For any fees charged by FARM GENERATIONS to FARMER for its right and license to the Software and/or Service (“License Fees), FARMER shall pay all valid invoices for such License Fees net thirty (30) days from the date of invoice, unless otherwise agreed to by the parties.
6.3. Taxes. FARMER shall pay all legally required applicable sales, use, transfer, and other taxes and all duties that are levied or imposed by reason of this Agreement, excluding any income taxes on the net income of FARM GENERATIONS.
7. Term and Termination
7.1. Term. The Term of this Agreement begins on the Effective Date and continues for a period of (2) years (“Term”). Thereafter, the Term of the Agreement may be renewed as mutually agreed to by the parties in a signed writing.
7.2. Termination. FARM GENERATIONS reserves the right to revoke access and use of the Software and/or Services or terminate this Agreement immediately with or without notice if FARMER breaches the terms of this Agreement. FARM GENERATIONS may, in its sole discretion, allow FARMER a right to cure such breach for a period designated by FARM GENERATIONS.
8. Intellectual Property Indemnity
8.1. FARM GENERATIONS shall indemnify, defend and hold FARMER harmless from and against all losses (including reasonable attorney fees) arising out of any third party suit or claim (“Claim”) alleging that (i) FARMER’s authorized use of the FARM GENERATIONS Software and/or Services infringe any U.S. patent, trademark, trade secret or other proprietary right of such third party (“Intellectual Property Right”). FARM GENERATIONS may, at its option and expense: (i) replace the Software and/or Services with compatible non-infringing software or content, (ii) modify the Software and/or Services so that it is non-infringing, (iii) procure the right for FARMER to continue using the Software and/or Services, or (iv) if the foregoing options are not reasonably available, terminate the Agreement or portion thereof and refund FARMER any pre-paid, unused portion of the annual License Fees for the current Term year FARMER shall indemnify, defend and hold FARM GENERATIONS harmless from and against all losses (including reasonable attorney fees) arising out of any third party suit or Claim alleging that (i) FARMER’s unauthorized use of the Software and/or Services infringes any Intellectual Property Right of such third party, (ii) FARMER’s unauthorized use of the Software and/or Services hereunder has harmed such third party claimant, or (iii) FARMER’s use of Software and/or Services is in violation of any law, rule or regulation applicable to such use. FARM GENERATIONS shall have no obligation to FARMER with respect to any Claim if such Claim existed prior to the Effective Date or such Claim is based upon (i) FARMER’s use of the Software and/or Services in a manner not expressly authorized by this Agreement, (ii) the combination, operation, or use of the Software and/or Services with third party material, if FARMER’s liability would have been avoided in the absence of such combination, use, or operation, or (iii) modifications to the Software and/or Services other than as authorized in writing by FARM GENERATIONS. The foregoing indemnification obligations of each indemnifying party will be dependent on the indemnified party: (i) providing the indemnifying party with prompt written notice of a Claim; (ii) permitting the indemnifying party to control the defense and settlement of the Claim; (iii) not entering into any settlement or compromise of any such Claim; (iv) providing the indemnifying party with reasonable information and assistance for the defense or settlement of the action; and (v) using all commercially reasonable efforts to mitigate any loss, damage or costs related to the Claim.
9. Mutual Warranties, Damages and Liability.
9.1. Warranty. Each Party hereby represents and warrants to the other that:
9.1.1. They have the right and authority to enter into this Agreement, including the right to perform the obligations enumerated herein; and
9.1.2. its shall perform its obligations under this Agreement in compliance with all applicable laws.
9.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EXCEPT AS STATED IN THIS SECTION, FARM GENERATIONS DOES NOT REPRESENT THAT FARMERS’ AND/OR ITS AUTHORIZED USERS USE OF THE SOFTWARE AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
9.3. Limitation of Damages and Liability. (A) EXCEPT FOR VIOLATION OF OWNERSHIP RIGHTS IN SECTION 3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF DATA OR USE OF DATA OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF AND (B) IN NO EVENT WILL FARM GENERATIONS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED: (i) THE TOTAL FEES RECEIVED BY FARM GENERATIONS FROM FARMER UNDER THIS AGREEMENT WITHIN THE PRECEDING TWELVE (12) MONTH PERIOD OF THE MOST RECENT CLAIM.
10. Dispute and Governing Law
10.1. Customer Disputes. FARMER shall use all reasonable methods to resolve disputes with your Customers on its own and FARM GENERATIONS may, but has no obligation to, participate to resolve such dispute, unless the conflict that resulted in such dispute was caused by FARM GENERATIONS.
10.2. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York , U.S.A. and each Party hereto will submit any dispute regarding the interpretation, execution or validity of this Agreement exclusively to the competent federal or state courts in the State of New York. The Parties expressly waive their right to trial by jury for any action or proceeding brought in relation to this Agreement. Any action or proceeding will be heard by a judge.
11.1. Export Control. Each Party must comply with all U.S. or other export and re-export restrictions that may apply to goods, Products, software (including the Software), technology, and services (including the Services).
11.2. Independent Contractors. The Parties are independent contractors to each other. In no event does this Agreement create any agency, joint venture or commercial partnership between the parties nor authorize either Party to make or enter into any commitments for or on behalf of the other Party, without that parties prior written consent.
11.3. Force Majeure. Neither Party shall be liable to the other, following notice thereof, for any failure or delay in the performance of its obligations (except for required payments pursuant to Section 6 and confidentiality obligations pursuant to Section 4) for any cause that is beyond the reasonable control of such Party.
11.4. Assignment. FARMER may not assign this Agreement, in whole or in part to any third party without the prior written consent of FARM GENERATIONS, which shall not be unreasonable withheld or delayed. Notwithstanding the foregoing, FARM GENERATIONS retains the right to prohibit any assignment to a direct competitor of FARM GENERATIONS.
11.5. Survival. Upon any expiration or termination of this Agreement, all accrued but unpaid amounts that may be properly owing from one party to the other shall become immediately due and payable. In addition to those provisions which by their nature are intended to survive any termination or expiration of this Agreement or any license granted hereunder, Section (Ownership), Section 6, Section confidentiality, warranty, limitation of liability of the Agreement shall specifically survive such termination or expiration.
11.6. Entire Agreement. This Agreement and all annexes attached hereto, if any (which are hereby incorporated as part of this Agreement) constitute the entire agreement between the Parties relating to the subject matter hereof, and supersede all prior or contemporaneous representations, understandings and agreements, whether oral or written, relating to the subject matter hereof.
11.7. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
11.8. Modification and Waiver. No modification or amendment of this Agreement shall be valid unless it is in writing and signed by each of the Parties. If one Party fails to enforce a provision of this Agreement, it shall not be precluded from enforcing the same provision at another time.
The authorized representatives of both Parties hereto have duly signed this Agreement:
FARM GENERATIONS COOPERATIVE