TERMS AND CONDITIONS OF SERVICE
1.1 These terms and conditions of service (“Terms and Conditions”) are the only terms that govern the provision of services by Highland Ag Solutions, LLC, a Florida limited liability company (“Highland”), to you, the “Client,” as identified on the accompanying order confirmation or in an equivalent online order confirmation (“Order Confirmation”), and your Affiliates.
1.2 The Order Confirmation, these Terms and Conditions, and its exhibits, which are incorporated herein by this reference (collectively, this “Agreement”), comprise the entire agreement between the parties concerning the matters covered herein, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral, between the parties. Each of the parties acknowledges that no other party, nor any agent or attorney of another party, has made any promise, representation, or warranty whatsoever, express or implied, and not contained herein, concerning the subject matter hereof to induce the party to execute or authorize the execution of this Agreement, and acknowledges that the party has not executed or authorized the execution of this Agreement in reliance upon any such promise, representation, or warranty not contained herein. In the event of any conflict between these Terms and Conditions and the Order Confirmation, these Terms and Conditions shall govern.
1.3 These Terms and Conditions prevail over any of Client’s general terms and conditions regardless of whether or when Client has submitted a request for proposal, order, or such terms. Provision of Services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms and Conditions.
2.1 “Affiliate(s)” means, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of the applicable entity whether through the ownership of voting securities or otherwise.
2.2 “Business Day” means any of Monday, Tuesday, Wednesday, Thursday, or Friday, excluding all national holidays observed by the Federal Reserve Bank.
2.3 “Client Data” means data or information that is collected by or made available to Highland by or on behalf of Client and Processed (as defined herein) by Highland to provide the Services to Client.
2.4 “Client Materials” means all materials, documents, data, content, trademarks, logos, designs, Client’s food safety data, and other information, in any form or media, and all Intellectual Property Rights therein, made available to Highland by or on behalf of Client in connection with this Agreement or the Services.
2.5 “Deliverables” means the content, information, reports, logs, and other data or materials delivered to Client as part of the Services; provided, however, that for the avoidance of doubt, the Deliverables shall not include any Highland Materials or Third-Party Materials.
2.6 “Equipment” means any and all products, devices, instruments, gauges, sensors, irrigation controls, weather stations, and other equipment provided to Client, whether by Highland or a third party, in the course of performing the Services.
2.7 “Highland Hub” means the online portal provided by Highland for Client’s access and use in connection with the Services, and currently located at www.highlandhub.com.
2.8 “Highland Materials” means all materials and information, including documents, data, know-how, ideas, methodologies, processes, specifications, software, content, designs, and technology, in any form or media, and all Intellectual Property Rights therein, developed, acquired, or otherwise obtained by Highland prior to, during, or after the Term of this Agreement, including without limitation, all material, content, and information contained in or provided through the Highland Hub.
2.9 “Intellectual Property Rights” means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable Law in any jurisdiction throughout the world.
2.10 “License” shall have the meaning set forth in Section 3.2 below.
2.11 “Licensed Technology” means, collectively, the Highland Materials, the Highland Hub, the Equipment, the Services, and the Deliverables, and all Intellectual Property Rights in and to any of the foregoing.
2.12 “Services” shall have the meaning set forth in Section 3.1 below.
2.13 “Service Package” means a set of services provided by Highland in connection with Highland Hub, and as more fully described in Exhibit “A.”
2.14 “Subcontractor” means any third party engaged by Highland to perform the Services, in whole or in part.
2.15 “Third Party Materials” means any materials or information, including documents, data, data structures, databases, know-how, ideas, methodologies, processes, specifications, software (including open source software), histories, content, designs, or technology, in any form or media, and all Intellectual Property Rights therein, which any person other than Client or Highland owns, provides, or maintains for use in the Services.
3.1 Engagement of Highland. Client hereby engages Highland, and Highland hereby accepts such engagement, to provide the Licensed Technology and related data and information for use by Client in its agricultural business through those Service Packages indicated in the Order Confirmation (“Services”). Client acknowledges and agrees that the Licensed Technology, data, and information are provided by Highland in connection with the Services for Client’s use and application in Client’s agricultural business in Client’s sole and absolute discretion and judgment. Highland will use reasonable efforts to meet any performance dates specified in the Order Confirmation or Service Packages, and any such dates shall be estimates only.
3.2 License. Subject to all the terms and conditions of this Agreement, Highland hereby grants Client a limited, non-exclusive, revocable license during the Term to internally use the Licensed Technology for its intended purpose, and solely for the benefit of Client, and for no other use or purpose (“License”). Unless otherwise provided to Client or agreed upon in writing, Client has no right to receive, use, or examine any source code or design documentation relating to the Licensed Technology. Subject to the foregoing License, Highland reserves all rights in the Licensed Technology. The License granted in this section shall be non-transferable by Client.
3.3 License Restrictions: Client shall not (i) modify, adapt, translate, duplicate, disassemble, decompile, reverse assemble, or reverse engineer, or take similar action with respect to the Licensed Technology for any purpose, or (ii) attempt to discover the underlying source code or algorithms of the Licensed Technology (unless enforcement is prohibited by applicable law and then, only to the extent specifically permitted by applicable law, and then only upon providing Highland with reasonable advance written notice and opportunity to respond). Client also shall not, for the purpose of designing, modifying, or developing software or services similar in purpose, scope, or function to the Licensed Technology, engage in competitive analysis, benchmarking, use, evaluation, or viewing of the Licensed Technology or create any derivatives based on the Licensed Technology, whether for Client’s internal use or for license or for resale.
3.4 Subcontracting. Client acknowledges and agrees that Highland will engage Subcontractors to perform all or part of the Services. From time to time, Highland may refer Client to contract directly with a Subcontractor. The terms and conditions set forth in any agreement between Client and such Subcontractor will govern Client’s dealing with such Subcontractor. Highland makes no warranty of any kind with respect to, and shall in no event be liable for any damages directly or indirectly caused by, any Subcontractor-provided Equipment or services.
3.5 Changes to Services.
(a) By Client. At any time, Client may request changes to the Services by adding or removing Service Packages from the scope of the Services identified on the parties’ then-in-effect Order Confirmation (each, a “Change”). The parties shall evaluate Client’s request, and upon the parties’ mutual agreement of the Changes, including adjustments to fees, if any, the parties shall execute a revised Order Confirmation, signed by the authorized representatives of both parties. No Changes will be effective unless and until memorialized in a written, duly executed Order Confirmation.
(b) By Highland. Highland reserves the right to immediately modify or terminate any Service Package, in whole or in part, due to the failure, non-performance, or unavailability of any Subcontractor involved in rendering the Services under the Service Package. Any such modification resulting in a material reduction in the Service Package shall be subject to the Change provisions of Subsection 3.5(a) above. Upon termination under this Section of any Service Package, Highland will return to Client the prorated amount of any pre-paid, unused fees paid by Client for the terminated Service Package.
3.6 Effect of Client Failure or Delay. If Highland’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Highland shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay. In the event of any such delay or failure, Highland may, by written notice to Client, extend all or any subsequent due dates for milestones related to any Service Package as Highland deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Highland may have for any such failure or delay by Client.
3.8 Client Obligations. Client shall, in accordance with any milestones or other timelines related to a Service Package, timely perform all obligations identified as responsibilities of Client in any Service Package and timely provide the Client Materials and other resources specified in relation to any Service Package. Client shall also provide Highland, its Subcontractors, and each of their employees and agents with such access to Client’s premises, operating environment, and personnel, as well as such other cooperation and assistance Highland may reasonably request to perform the Services. Client will timely respond to any such requests by Highland.
3.9 Food Safety Audit Links. The License includes the right for Client to share with or deliver to a third party a communication link that enables the third party to access Client’s food safety data available through the Services for audit or compliance purposes. Subject to Section 7.3 (Disclaimer of Warranties), Section 7.4 (Use of the Licensed Technology), Article 9 (Indemnification), and Article 10 (Limitations on Liability), Client hereby authorizes Highland to share with or deliver to such third parties designated by Client a communication link through which such third parties may access Client’s food safety data.
FEES; PAYMENT TERMS
4.1 Fees. The fees for Highland’s performance of the Services will be set forth in the Order Confirmation. Client shall pay all amounts due under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable to Highland whether under this Agreement, applicable law, or otherwise.
4.2 Reimbursable Expenses. Client will reimburse Highland for Highland’s reasonable out-of-pocket costs and expenses required and actually incurred by Highland in performing the Services, including travel expenses, provided that Highland submits supporting documentation reasonably satisfactory to Client.
4.3 Terms of Payment. Unless otherwise provided in the Order Confirmation, all fees for the Services shall be payable by Client within thirty (30) days of receipt of Highland’s invoice. All payments shall be made in US Dollars. If Client fails to make any payment when due then, in addition to all other remedies that may be available, Highland may charge interest on the past due amount at the rate of 1.5% per month, or the maximum rate allowable by law, if less. Client shall reimburse Highland for all reasonable costs incurred by Highland in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees.
4.4 Taxes. All fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Highland’s income.
INTELLECTUAL PROPERTY RIGHTS
5.1 Acknowledgment. Notwithstanding any provision of this Agreement to the contrary, Client acknowledges and agrees that: (i) Highland is the sole and exclusive owner of all rights, title, and interest in and to the Licensed Technology, the goodwill pertaining thereto, and of the right to use the Licensed Technology and to grant licenses for use of the Licensed Technology; (ii) Client will never claim or assert any claim of ownership or title to the Licensed Technology; (iii) Client will never claim any right to use the Licensed Technology except for the License expressly granted by Highland under this Agreement; and (iv) Highland at all times has retained ownership of the Licensed Technology and has made no transfers thereof to Client. Client shall include all notices and legends with respect to Highland’s trademarks and trade names as are or may be required by applicable federal, state and local trademark laws or which may be reasonably requested by Highland. Client shall not take any action that could be detrimental to the goodwill associated with the Licensed Technology or Highland.
5.2 Assignment. To the extent that the Licensed Technology, or any portion thereof is created by Client, Client hereby forever, unconditionally, and irrevocably sells, assigns, conveys, and transfers to Highland all of Client’s rights, title, and interest in and to such Licensed Technology worldwide to the fullest extent such that, following the assignment, Highland shall have all ownership rights that would otherwise be possessed by Client. Highland retains the sole right and discretion to register the copyrights in any of the foregoing in the name of Highland in any countries throughout the world.
5.3 Challenges to Validity. Client shall not contest or deny the validity or enforceability of any or all of the Licensed Technology or oppose or seek to cancel any registration thereof by Highland, or aid or abet others in doing so, either during the Term of this Agreement or at any time thereafter.
5.4 Client Materials. As between the Client and Highland, Client is and shall remain the sole and exclusive owner of the Client Materials, including all Intellectual Property Rights therein. Client hereby grants to Highland a limited, non-exclusive, fully-paid up, royalty-free right and license to use, reproduce, perform, display, distribute, modify, and create derivative works and improvements of the Client Materials in connection with the Services.
5.5 Client Data. As between Client and Highland, Client will own all right, title, and interests in and to Client Data. Client hereby grants to Highland a worldwide, perpetual, non-exclusive right and license to collect, access, store, maintain, use, disclose, transmit, transfer, and otherwise process (“Process”) Client Data in accordance with the Agreement, including the Data Protection Exhibit, which is attached hereto as Exhibit C and incorporated herein by reference.
5.6 Third-Party Materials. Any Deliverable or any portion of the Services or Licensed Technology may include or operate in conjunction with Third-Party Materials. All Third-Party Materials are provided pursuant to the terms and conditions of the applicable third-party license agreements. Client shall comply with all such third-party license agreements, and any material breach thereof shall constitute a material breach of this Agreement.
6.1 Confidential Information. In connection with this Agreement, Highland may disclose or make available Confidential Information to Client. “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Highland considers, and Client should reasonably be expected to consider, confidential or proprietary, including information consisting of or relating to the Licensed Technology and any other of Highland’s technology, trade secrets, information, data, know-how, business operations, plans, strategies, client lists, and pricing, and information with respect to which Highland has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. The terms of this Agreement (including pricing) are the Confidential Information of Highland.
6.2 Exclusions. Confidential Information does not include information that Client can demonstrate was rightfully known to Client without restriction prior to such information being disclosed or made available to Client in connection with this Agreement, was or becomes generally known by the public other than by noncompliance with this Agreement, was or is received by Client on a non-confidential basis from a third party that is not at the time of such receipt under any obligation to maintain its confidentiality, or that Client can demonstrate is independently developed by Client without reference to or use of any Confidential Information.
6.3 Protection of Confidential Information. Client shall not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement, and shall not disclose or permit access to Confidential Information other than to its representatives who (a) need to know such Confidential Information for purposes of Client’s exercise of its rights performance of its obligations under and in accordance with this Agreement, (b) have been informed of the confidential nature of the Confidential Information and Client’s obligations under this Section 6, and (c) are bound by obligations at least as protective of the Confidential Information as the terms set forth in this Section 6. Client shall safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its Confidential Information and in no event less than a reasonable degree of care. Client shall be liable for any of its representatives’ non-compliance with the terms of this Section 6.
6.4 Compelled Disclosures. If Client or any of its representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, Client shall promptly, and prior to such disclosure, notify Highland in writing of such requirement so that Highland can seek a protective order. If required by law to disclose any Confidential Information, Client shall disclose only that portion of the Confidential Information that Client is legally required to disclose and use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
6.5 Duration of Obligations. Client’s obligations of confidentiality under this Section 6 shall begin on the Effective Date of the Order Confirmation and continue as long as any Confidential Information qualifies as trade secrets or confidential or proprietary information under the laws of the State of Florida or any other states or jurisdictions.
REPRESENTATIONS AND WARRANTIES
7.1 Highland Representations and Warranties. Highland represents and warrants that: (i) it has full right, power, and authority to enter into and perform this Agreement without the consent of any third party; and (ii) Highland will comply in all material respects with all laws, regulations, and ordinances applicable to Highland’s performance of the Services and its other obligations under this Agreement.
7.2 Client Representations and Warranties. Client represents and warrants that: (i) it has full right, power, and authority to enter into and perform this Agreement without the consent of any third party; (ii) Client will comply in all material respects with all laws, regulations, and ordinances applicable to Client’s performance of its obligations under this Agreement; (iii) Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Materials so that, as received by Highland and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party; (iv) Client has provided all required notices and obtained all required rights and consents for Highland to Process Client Data in accordance with the Agreement; and (v) Client has the right and ability to grant to Highland the consents under Section 3.7 of this Agreement.
7.3 Integrity of Client Materials. Client acknowledges that Highland’s Services, including Highland’s Market Watch Service Package, rely on the provision of accurate client data and information. Client represents and warrants that Client data and information made available to Highland by or on behalf of Client in connection with Highland’s Services or this Agreement has not been altered or manipulated by Client or on behalf of Client before providing any such data or information to Highland. Highland reserves the right to terminate this Agreement at any time should Highland determine, in its sole and absolute discretion, that Client is not in compliance with this subsection.
7.4 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE, HIGHLAND HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT, THE SERVICES, THE LICENSED TECHNOLOGY, THIRD PARTY MATERIALS, OR CLIENT MATERIALS, INCLUDING WITHOUT LIMITATION ALL WARRANTIES FOR MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, HIGHLAND MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DELIVERABLES, EQUIPMENT, HIGHLAND MATERIALS, THIRD PARTY MATERIALS, CLIENT MATERIALS, OR ANY OTHER LICENSED TECHNOLOGY, OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, TIMELY, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL SERVICES, DELIVERABLES, EQUIPMENT, HIGHLAND MATERIALS, LICENSED TECHNOLOGY, AND THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
7.5 Use of the Licensed Technology. THE LICENSED TECHNOLOGY AND THIRD PARTY MATERIALS ARE PROVIDED AS AN EDUCATIONAL TOOL TO ASSIST CLIENT’S UNDERSTANDING AND MANAGEMENT OF CLIENT’S AGRICULTURAL BUSINESS. THE INFORMATION AND REPORTS THAT CAN BE PROVIDED USING THE LICENSED TECHNOLOGY AND THIRD PARTY MATERIALS THAT ARE AVAILABLE THROUGH HIGHLAND HUB AND THE SERVICES ARE NOT INTENDED TO BE IN SUBSTITUTE OF CLIENT’S PROFESSIONAL EXPERIENCE OR JUDGMENT. CLIENT IS SOLELY RESPONSIBLE FOR INTERPRETATION, USE, AND APPLICATION OF THE LICENSED TECHNOLOGY AND ALL THIRD PARTY MATERIALS IN THE MANAGEMENT AND OPERATION OF CLIENT’S AGRICULTURAL BUSINESS. HIGHLAND DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC PRODUCTS, METHODOLOGIES, OPINIONS, CONSULTANTS, THIRD PARTY MATERIALS, OR CLIENT MATERIALS.
7.6 Compliance with Antitrust Laws. Client is committed to fair competition. Client agrees and commits to comply with Highland’s Antitrust and Competition Policy (found at https://highlandagsolutions.com/) and all applicable antitrust laws in connection with its use of Highland’s Services, including information available through the Market Watch Service Package. Highland’s Service Packages, including the Market Watch Service Package and its aggregated and anonymized information, are intended for use by each Client individually and independently in the course of Client’s own business operations. Client will not communicate and/or share any Market Watch Service Package information with any other party, and will provide legal counsel to ensure compliance by any Client employee authorized to access or use the Market Watch Service Package. Highland reserves the right to terminate this Agreement at any time should Highland determine, in its sole and absolute discretion, that Client is not in compliance with this subsection.
TERM AND TERMINATION
8.1 Term. This Agreement shall commence on the Effective Date and shall continue unless and until terminated pursuant to Section 8.2 (“Term”).
(a) Highland may terminate this Agreement and/or any or all Service Packages, effective on written notice to Client, if Client fails to pay any amount when due hereunder, and such failure continues for more than thirty (30) days.
(b) Highland may terminate this Agreement pursuant to Sections 3.5(b), 7.3 or 7.6 above.
(c) Either party has the right to terminate this Agreement and/or any or all Service Packages if the other party materially breaches or is otherwise in material default of any obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of written notice of such default from the other party; provided that to the extent that the defaulting party has diligently worked during such thirty (30) day period to cure such default and the period shall be extended by a reasonable amount of time necessary to cure such default.
(d) Either party may immediately terminate this Agreement and/or any or all Service Packages by written notice to the other party, if the other party: (i) becomes insolvent; (ii) makes a general assignment for the benefit of creditors; (iii) suffers or permits the appointment of a receiver for its business or assets; (iv) becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign; or (v) has wound up, dissolved, or liquidated, voluntarily or otherwise.
(e) Either party may terminate this Agreement by providing the other party with at least ninety (90) days written notice of termination.
8.3 Effect of Termination. In the event of any termination of this Agreement:
(a) All licenses granted by either party to the other party will also terminate, except to the extent that any license has an express term that continues for longer period or is perpetual.
(b) Upon any termination or expiration of this Agreement, Client will return to Highland all Confidential Information.
(c) If Highland terminates this Agreement pursuant to Section 8.2, all fees that are or would have become payable had the Agreement remained in effect will become immediately due and payable, and Client shall pay all such amounts, together with all previously accrued but not yet paid amounts.
(d) Within fifteen (15) days of such termination, Client will either return to Highland all Equipment used by Client in connection with the Services or the Deliverables, or, at the direction of Highland, destroy such Equipment. Client shall make no use of any Equipment after termination of this Agreement unless expressly authorized by Highland in writing.
8.4 Survival. The terms of this Agreement that expressly survive, or by their nature would survive, will survive any termination or expiration of this Agreement.
8.5 Remedies Not Exclusive. Unless expressly stated herein or limited hereby, the right to termination is in addition to all other remedies that may be available at law or in equity.
9.1 Indemnification by Client. Client shall indemnify, defend, and hold harmless Highland and its representatives and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Highland Indemnitee”) from and against any and all losses, liabilities, costs, or expenses, including attorneys’ fees (“Losses”) incurred by such Highland Indemnitee that arise out of or relate to any (a) Client Materials, including any use of Client Materials by or on behalf of Highland in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client, including Highland’s compliance with any specifications or directions provided by or on behalf of Client to the extent prepared without any contribution by Highland; (c) willful misconduct by Client or any third party on behalf of Client, in connection with this Agreement; or (d) Client’s unauthorized use of the Equipment.
9.2 Procedures. Highland shall promptly notify Client in writing of any Loss for which Highland believes it is entitled to be indemnified pursuant to this Section. Highland shall cooperate with Client at the Client’s sole cost and expense. Client shall immediately take control of the defense and investigation of the circumstances of such Loss and shall employ counsel of its choice to handle and defend any actions related thereto, at Client’s sole cost and expense. Highland may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
LIMITATIONS OF LIABILITY
10.1 Limitations of Liability. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE AFFILIATES, SUBCONTRACTORS, LICENSORS, SERVICE PROVIDERS, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, ATTORNEYS, AGENTS, ASSIGNS, OR SUCCESSORS-IN-INTEREST BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, AGGRAVATED, EXEMPLARY OR CONSEQUENTIAL DAMAGE, LOSS, COST OR EXPENSE OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND/OR OPPORTUNITY COSTS) WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
10.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF HIGHLAND AND ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH ANY SERVICE PACKAGE, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR FRAUD), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES PAID UNDER THIS AGREEMENT DURING THE SIX (6) MONTH IMMEDIATELY PRECEDING THE COMMENCEMENT OF THE EVENTS GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.3 Assumption of Risk. CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT’S USE OF THE LICENSED TECHNOLOGY REQUIRES CLIENT’S EXPERIENCE AND JUDGEMENT IN INTERPRETING, USING, OR APPLYING THE THIRD PARTY MATERIALS, CLIENT MATERIALS, OR LICENSED TECHNOLOGY IN CLIENT’S BUSINESS. CLIENT ASSUMES ALL RISK RELATED TO ANY AND ALL OF THE FOREGOING. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER HIGHLAND NOR ITS AFFILIATES OR SUBCONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE OF ANY KIND, WHETHER PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO CROPS, DOWNTIME, REPLANTING, LOST YIELD, OR OTHERWISE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR FRAUD), STRICT LIABILITY, OR OTHERWISE, ARISING IN WHOLE OR IN PART FROM THE ACCURACY, AVAILABILITY, OR TIMELINESS OF ANY THIRD PARTY MATERIALS, CLIENT MATERIALS, OR LICENSED TECHNOLOGY, OR FROM CLIENT’S USE, INTERPRETATION, OR APPLICATION THEREOF.
10.4 Mitigation of Damages. If any portion of the Licensed Technology is, or in Highland’s opinion is likely to be, accused of infringing, misappropriating, or otherwise violating any third-party intellectual property or similar rights, or if Client’s use of the Licensed Technology is enjoined or threatened to be enjoined, Highland shall, as Client’s sole right and remedy, (a) obtain the right for Client to continue to use the accused Licensed Technology substantially as contemplated by this Agreement, (b) modify or replace the accused Licensed Technology, in whole or in part, to seek to make the Licensed Technology (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Licensed Technology, as applicable, under this Agreement, or (c) by written notice to Client, terminate this Agreement with respect to all or part of the Licensed Technology.
10.5 Acknowledgments. Each party is a sophisticated purchaser and acknowledges and agrees that the allocation of risks in this Agreement are reflected in the fees and expenses charged under this Agreement, and that higher charges would be made but for limitation of liability set forth in this Article 10 and throughout this Agreement, and that the allocation of risks under this Agreement are reasonable and appropriate under the circumstances.
11.1 Expenses. Except as otherwise provided in this Agreement, each party shall bear its own expenses, costs, fees, and taxes in connection with the transactions contemplated by this Agreement.
11.2 Independent Contractor. Highland is an independent contractor, and this Agreement will not be construed as constituting either party as partner, joint venture, or fiduciary of the other, or to create any other form of legal association that would impose liability on one party for the act or failure to act of the other or as providing either party with the right, power, or authority (express or implied) to create any duty or obligation of the other. Except as otherwise expressly provided in this Agreement, each party has the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all work to be performed by it pursuant to this Agreement.
11.3 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Tampa and County of Hillsborough, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
11.4 Assignment. Client shall not assign or sublicense any of its rights, nor delegate any of its duties, under this Agreement without the prior written consent of Highland. Highland may assign or sublicense and of its rights, and delegate any of its duties, under this Agreement, including to a successor in connection with a Change of Control. Any attempted transfer, assignment, or sublicense of this Agreement by Client in violation of this Section shall be void and of no force or effect. This Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
11.5 Change of Control. Highland will notify Client in writing within thirty (30) days after Highland undergoes a Change of Control (“COC Notice”). Client may, by delivering written notice of termination to Highland within thirty (30) days after the date of such COC Notice (the “Termination Notice”), terminate this Agreement on a date that is at least thirty (30) days, but no more than ninety (90) days, after the date of such Termination Notice. As used herein, “Change of Control” means: (a) a change of ownership of more than 50% of the voting stock of Highland, whether by merger, acquisition, or otherwise; or (b) the sale by Highland of all or substantially all of the assets or business to which this Agreement relates.
11.6 Severability. If any term or provision hereof should be held to be invalid, unenforceable, or illegal, such holding will not invalidate or render unenforceable any other provision hereof, and the remaining provisions will not be impaired thereby.
11.7 Notices. All notices, consents, waivers, and other communications under this Agreement from one to party must be in writing to the other party and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by electronic mail, facsimile, or other electronic means, or (c) when received by the addressee, if sent by certified or registered mail, return receipt requested or by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses set forth in the preamble hereto (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties).
11.8 Amendment, Modification and Waiver. No amendment, modification, or addendum to this Agreement will be effective unless reduced to a writing signed by duly authorized officers of both parties. No term or provision hereof will be deemed waived and no breach excused unless such waiver or consent is in writing and signed by an authorized officer of the party claimed to have waived or consented. Furthermore, for the avoidance of doubt, the parties agree that no amendment, modification, or addendum to this Agreement may be effectuated by email or text message.
11.9 Third-Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by the parties hereto, and, subject to the “Indemnification” and “Limitations of Liability” Articles hereof, this Agreement will not be deemed to create any rights in third parties, including suppliers, customers, or subcontractors of a party, or to create any obligations of a party to any such third parties.
11.10 Further Assurances. The parties will execute and deliver such other instruments and documents, and take such other actions, as either party reasonably requests to evidence or effect the transactions contemplated by this Agreement.
11.11 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and court costs from the non-prevailing party (including “fees for fees”).
11.12 Drafting Ambiguities. The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement.
11.13 Counterparts. The Order Confirmation may be executed in one or more counterparts, each of which will constitute an original but all of which together constitute a single document. A signed copy of the Order Confirmation delivered by facsimile, e-mail, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Order Confirmation.
11.14 Non-Waiver. The failure of either party to exercise any of its rights under this Agreement for breach thereof shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach.
11.15 Remedies. The parties stipulate that a breach of Article 5 or Article 6 above will cause immediate and irreparable harm and significant injury, for which there is no adequate remedy at law and that Highland shall be entitled, in addition to any other rights and remedies it may have, to specific performance and other equitable remedies to restrain any threatened, continuing or further breach of this Agreement without proof of actual damages sustained by Highland. In addition to these equitable remedies, Client shall be liable to Highland for any and all damage to Highland caused by breach of Articles 5 or 6 above.
11.16 Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by a Force Majeure Event. In the event of any failure or delay caused by a Force Majeure Event, such party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
This Exhibit “A” to the Terms and Conditions of Service (“Terms and Conditions”) is entered into by and among Highland Ag Solutions, LLC(“Highland”), and the party identified as the “Client” on the Order Confirmation executed by the parties in connection with these Terms and Conditions. Defined terms used in this Exhibit “A” shall have the meanings ascribed to them in the Agreement. In addition to the terms of the Agreement, Highland and Client, intending to be legally bound, agree to the following:
The Service Packages available through Highland Hub include the following:
CropIQ – The CropIQ Service Package provided through Highland Hub Dashboard enables Client to document and review spray records, calculate product needs based on application rate and land area, create work orders, search product labels, manage application reports, and more. The product information displayed in these search results is provided “AS IS,” without warranty express or implied, and for information purposes only. Although Highland endeavors to present current and accurate information, search results contain information created and maintained by a variety of external or third-party sources that may not be current or complete. Highland does not control, monitor, or guarantee the timeliness or accuracy of the information provided by such external or third-party sources. Inclusion of a product in a search result does not constitute Highland’s endorsement of that product.
It is Client’s responsibility to review the official manufacturer product label information, applicable regulations, and otherwise research the accuracy, completeness, and usefulness of all information, claims, and opinions contained in these search results. In no event will Highland or our data providers be responsible or liable directly or indirectly for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any information contained in these search results, including information that is outdated or incorrect. The search results are provided under a limited non-exclusive, revocable, nontransferable license, and Client may not redistribute or use the search results to develop a stand-alone database. Further, the search results may include materials covered by registered copyrights and trademarks. All rights not expressly granted herein are reserved by their respective intellectual property owners. In no event shall the liability of Highland, its Affiliates, officers, directors, or agents hereunder exceed $100 in the aggregate.
Food Safety – The Food Safety Service Package enables Client to customize management and compliance of its food safety program. Highland Hub delivers functionality that includes interactive logs, detailed activity reports, and out of compliance notifications for Client’s food safety programs, as well as self-audit tools and secure cloud-based storage of documents and certifications.
Highland Ag MarketWatch – The Market Watch Service Package provides aggregate industry data about crop production and pricing based on daily, self-reported picked and sold amounts. Connection to this service will be quoted separately and defined through a Statement of Work upon execution of this agreement. To be subsequently provided in Exhibit B.
To be determined by scope of work review for the Market Watch Service Package.
Highland understands the challenges that growers face in the digital age, and we respect the sensitivity, security, and privacy of your data. This Data Protection Exhibit (the “Exhibit”) describes how we Process Client Data and the steps we take to secure Client Data. Capitalized terms used but not defined in this Exhibit will have the meanings given to them in the Terms and Conditions. In the event of a conflict between the terms of this Exhibit and the rest of the Agreement with respect to the subject matter of this Exhibit, the terms of this Exhibit will control to the extent of such conflict.
1. Data Protection. Highland may Process Client Data in connection with: (i) the performance of the Services; (ii) the purposes set forth in the T&Cs or as set forth in any other written agreement(s) between Client and Highland; (iii) Highland’s internal business purposes; (iv) the improvement of the Highland’s products and services; (v) Highland’s compliance with its legal obligations or in cooperation with law enforcement or in response to a court order or government inquiry; or (vi) the prevention of actual or threatened fraud or attempts at unauthorized access to Highland’s systems or services or Client Data. Client also acknowledges and agrees that Highland may generate or derive deidentified or aggregated data or information from Client Data or Client’s use of the Services (collectively, “Aggregated Data”), and that Highland may Process Aggregated Data for any lawful purpose. In the event any Client Data constitutes “personal information,” “personal data,” “personally identifiable information,” or an analogous term under laws applicable to Highland’s Processing of such Client Data (“Privacy Laws”), Highland will comply with all applicable Privacy Laws with respect to such Client Data.
2. Penetration Testing. At least once per twelve-month period during the performance of the Services for Client, Highland will engage a third party to conduct a penetration test of systems used by Highland to process Client Data (“Penetration Tests”). The objective of a Penetration Test is to identify material vulnerabilities to Client Data stored in such systems to material risks from malicious activities. Within a reasonable period after a Penetration Test has been conducted, Client may request from Highland in writing, an executive summary of any high- and medium-severity vulnerabilities that were revealed by Highland’s most recent Penetration Test and steps taken by Highland to address such vulnerabilities. Any information provided by or on behalf of Highland pursuant to this Section 2 will constitute Highland’s Confidential Information.
3. Notice of Data Breach. If Highland becomes aware of any unauthorized access to Client Data by (a “Data Breach”), Highland shall notify Client in writing of such Data Breach without undue delay, and Highland shall keep Client reasonably informed of Highland’s efforts to address such Data Breach. In the event of a Data Breach, Highland shall take reasonable steps in accordance with applicable law to address the Data Breach.