CamoAg Terms and Conditions
Effective Date: March 19, 2024
Welcome to the CamoAg website, camo.ag (the “Site”), and all related sites and subdomains (collectively, the “Sites”). Tillable, Inc. d/b/a CamoAg (“CamoAg,” “we,” “us,” or “our”) has created the Sites to offer and provide information to you (“you,” or the “Customer”) on our products and services (the “Services,” and collectively with the Sites, the “Platform”). Our Services include, without limitation, a proprietary software-as-a-service offering, accessible through the internet, that is designed to offer information and services to parties that own, manage, invest in, offer services related to, or are otherwise involved or interested in farmland. Our Services also offer access to data for the purpose of evaluating farms, creating reports, identifying farm ownership, identifying parcel boundaries, evaluating borrowers, and other uses.
Acceptance of Terms
These terms and conditions (“Terms”) apply to you when you access and use the Platform, whether personally or on behalf of an entity. By executing an Order Form that references these Terms or by otherwise accessing and using the Platform, you agree that you have read, understand, and agree to be legally bound by: (i) these Terms; and any other agreements applicable to your access to or use of the Platform that we enter into with you or your organization, which may include an Order Form, Statement of Work, Service Level Agreement, or Software-as-a-Service Agreement (“Applicable Agreements”).
Binding Arbitration; Class Action and Jury Trial Waiver
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS CONTAIN PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES BY MANDATORY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. THESE TERMS ALSO PROVIDE THAT YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION OR A RIGHT TO A JURY TRIAL REGARDING ANY DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR THE USE OF THE PLATFORM.
We may modify these Terms at any time. We will notify you if we update these Terms by providing a notice at the top of these Terms, on the Site, or by communicating with you in another manner. Any updates will be effective upon posting.
CamoAg reserves the right, in its sole discretion, to make any changes to the Platform and CamoAg Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of CamoAg’s services to its customers, (ii) the competitive strength of or market for CamoAg’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.
We collect, use, share, and sell certain information and data when you use the Platform, including certain Personal Information. For more information about how we collect, use, protect, and share Personal Information, please see our Privacy Policy, available https://camo.ag/privacy-policy/.
3.1 The Platform and CamoAg Materials. We (or third parties who have licensed their content to us) own all right, title, and interest to the Platform, including, without limitation, the Documentation and CamoAg Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by CamoAg or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or CamoAg Systems (“CamoAg Materials”). For the avoidance of doubt, CamoAg Materials include Resultant Data and any information, data or other content derived from CamoAg’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data. Nothing in these Terms grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Platform, CamoAg Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the CamoAg Materials and the Third-Party Materials are and will remain with CamoAg and the respective rights holders in the Third-Party Materials.
3.2 Customer Data. As between you and us, you own all right, title, and interest in and to Customer Data. You hereby irrevocably grant all such rights and permissions in or relating to Customer Data: (a) to CamoAg and its subcontractors as are necessary or useful to perform the Services for you; and (b) to CamoAg as are necessary or useful to enforce these Terms, any Applicable Agreements, and exercise its rights and perform its duties hereunder.
3.3 Feedback. Notwithstanding any provision in these Terms to the contrary, CamoAg may use, develop and implement any information, suggestions, comments or other feedback provided by you or any of your Authorized Users (collectively, “Feedback”) in connection with the development, operation, marketing and sale of the Services, in its discretion and with no compensation to any Person providing Feedback. CamoAg shall own all right, title, and interest in and to all Feedback (including all Intellectual Property Rights therein).
4.1 Eligibility. THE PLATFORM IS NOT INTENDED FOR PERSONS UNDER THE AGE OF 18 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE PLATFORM BY US. YOU ARE NOT AUTHORIZED TO USE THE PLATFORM UNLESS YOU ARE AT LEAST 18 YEARS OF AGE AND ABLE TO ENTER INTO LEGALLY BINDING CONTRACTS.
4.2 Limited Rights to Access Use the Platform. Subject to your acceptance of, and compliance with, the Terms, we grant you a limited, revocable, non-exclusive, non-transferrable, non-sublicensable right to access and use the Platform and any CamoAg Materials. Any use of the Platform that is not for one of these purposes or otherwise in accordance with these Terms or as otherwise authorized by us in writing is expressly prohibited. You obtain no rights in the Platform or and CamoAg Materials except to use them in accordance with the Terms.
4.3 Support. We have no obligation under these Terms to provide support, maintenance, upgrades, bug fixes, error corrections, modifications, or new releases of the Platform, unless otherwise stated in the applicable Additional Agreements.
4.4 Accounts. You may be required to create an account, including a username and password, to use the Platform. Once you do so, you are responsible for maintaining the confidentiality of your password and account, and you may not share your password or account with another Person. You are responsible for all activities that occur under your account. If you lose your password or become aware of access to your account other than by you, you agree to notify CamoAg immediately. CamoAg reserves its rights to cancel, suspend or limit the use of your account in CamoAg’s sole discretion. We are not liable to you or any third party for any unauthorized use of your account, including, without limitation, any damage that results from any compromise or theft of your account.
4.5 Acceptable Use Policy. In using the Platform, you shall not, except as the Terms expressly permit:
(a) copy, modify or create derivative works or improvements of the Platform or CamoAg Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any part of the Platform or CamoAg Materials to any individual or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform or CamoAg Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Platform or CamoAg Materials or access or use the Platform or CamoAg Materials other than by an Authorized User through the use of his or her own then valid access credentials;
(e) intentionally input, upload, transmit or otherwise provide to or through the Platform or CamoAg Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) intentionally damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, CamoAg Systems or CamoAg’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Platform or CamoAg Materials, including any copy thereof;
(h) access or use the Platform or CamoAg Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other CamoAg customer), or that violates any applicable law;
(i) access or use the Platform or CamoAg Materials for purposes of competitive analysis of the Services or CamoAg Materials, the development, provision or use of a competing software service or product or any other purpose that is to the CamoAg’s detriment or commercial disadvantage; or
(j) otherwise access or use the Platform or CamoAg Materials beyond the scope of these Terms or Applicable Agreements.
You agree that your violation of any term or condition of this Acceptable Use Policy is deemed a material breach of these Terms and, without limiting CamoAg’s remedies elsewhere under these Terms or at law, CamoAg has the right to immediately terminate or suspend your access to the Platform.
4.6 Authorized Users. you or your organization may authorize certain officers, employees, and contractors to access and use the Platform in accordance with the conditions and limitations set forth in the Terms or Applicable Agreement (“Authorized Users”). You may access and use the Platform solely as permitted under these Terms and any Applicable Agreements.
4.7 Third Party Content. The Platform may link to websites and resources not maintained or controlled by us. These links are provided for your convenience only. We have no control over the content of those websites or resources. We are not responsible for examining or evaluating the content or accuracy of, and does not warrant or endorse, any third-party website, resource, or any programs, products, or services made available through those websites or resources. If you decide to access any of the third-party websites that are linked to this Platform, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
5.1 Cooperation. You shall at all times during the Term provide all cooperation and assistance as CamoAg may reasonably request to enable CamoAg to exercise its rights and perform its obligations under and in connection with these Terms.
5.2 Effect of Customer Failure or Delay. CamoAg is not responsible or liable for any delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of its obligations under these Terms.
5.3 Corrective Action and Notice. If you become aware of any actual or threatened activity prohibited by Section 4.5 (Acceptable Use Policy), you shall, and shall cause your Authorized Users to, if applicable, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Platform and CamoAg Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify CamoAg of any such actual or threatened activity.
5.4 Control and Responsibility. You agree that you have and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on your behalf or any Authorized User, if applicable, in connection with the Platform; (c) the security and use of your account and password; and (d) all access to and use of the Platform and CamoAg Materials directly or indirectly by or through your account and password, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
5.5 Security. You shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all accounts and passwords of Authorized Users and protect against any unauthorized access to or use of the Platform; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the applicable Services.
6.1 Confidential Information. In connection with these Terms each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 6.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, Personal Information and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing all CamoAg Materials are the Confidential Information of CamoAg.
6.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with these Terms; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with these Terms; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
6.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term and for five (5) years thereafter:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms;
(b) except as may be permitted by and subject to its compliance with Section 6.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives’ compliance with, and be responsible and liable for, any of its Representatives’ non-compliance with, the terms of this Section 6.
6.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.4, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. Nothing in these Terms prevents Customer from disclosing Confidential Information, without notice, to its internal or external auditors and its regulator as required during an audit or examination.
7.1 Term. The “Term” will be as set forth in an Order Form or other Applicable Agreement. If there is no other Applicable Agreement between you or your organization and us, the Term shall commence upon your first access of the Platform and will expire when you cease using the Platform.
7.2 Termination. In addition to any other express termination right set forth elsewhere in these Terms:
(a) CamoAg may terminate these Terms or other Applicable Agreements, effective on written notice to you, if you: (i) fail to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after CamoAg’s delivery of written notice thereof; or (ii) breach any of your obligations under Section 4.5 (Acceptable Use Policy) or Section 6 (Confidentiality);
(b) either party may terminate these Terms, effective on written notice to the other party, if the other party materially breaches the Terms, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate these Terms, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.3 Effect of Expiration or Termination. Upon any expiration or termination of these Terms, except as expressly otherwise provided in these Terms or an Applicable Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) CamoAg shall immediately cease all use of any Customer Data and Customer’s Confidential Information and (i) within thirty (30) return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems CamoAg directly or indirectly controls, provided that, for clarity, CamoAg’s obligations under this Section 7.3(b) do not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services or CamoAg Materials and (i) within thirty (30) days return to CamoAg, or at CamoAg’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any CamoAg Materials or CamoAg’s Confidential Information; and (ii) permanently erase all CamoAg Materials and CamoAg’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to CamoAg in a signed written instrument that it has complied with the requirements of this Section 7.3(c);
(d) notwithstanding anything to the contrary in these Terms, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information (ii) CamoAg may retain Customer Data; and (iii) Customer may retain CamoAg Materials, in the case of each of subclause (i), (ii) and (iii) in its then current state and solely to the extent and for so long as required by applicable law; (iv) CamoAg may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 7.3(d) will remain subject to all confidentiality, security and other applicable requirements of these Terms;
(e) CamoAg may disable all Customer and Authorized User access to the Platform and CamoAg Materials;
(f) if Customer terminates these Terms pursuant to Section 7.2(b), Customer will be relieved of any obligation to pay any fees attributable to the period after the effective date of such termination and CamoAg will refund to Customer fees paid in advance for Services that CamoAg has not performed as of the effective date of termination;
(g) if CamoAg terminates these Terms pursuant to Section 7.2(a) or Section 7.2(b), all fees that would have become payable had the Terms or Applicable Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such fees, together with all previously accrued but not yet paid fees, on receipt of CamoAg’s invoice therefor.
(h) subject to Section 7.3(d), CamoAg shall, at Customer’s request, within thirty (30) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by CamoAg, provided that Customer has at that time paid all fees then outstanding and any amounts payable after or as a result of such expiration or termination, including in transferring such Customer Data.
(i) On either party’s request, the other shall promptly deliver a written certification that it has fully complied with all obligations under this Section 7.
7.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in these Terms that, by its nature, should survive termination or expiration of these Terms, will survive any expiration or termination of these Terms: Section 4.5, Section 6, Section 7.3, this Section 7.4, Section 9.3, Section 10, Section 11, Section 12, and Section 13.
8.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under these Terms;
(c) the execution of these Terms by its representative whose signature is set forth at the end of these Terms has been duly authorized by all necessary corporate or organizational action of such party; and
(d) each party shall comply with all applicable federal, state, local and foreign laws, rules and regulations in connection with its obligations under the Terms or any Applicable Agreement.
8.2 Your Representations and Warranties. You represent and warrant to CamoAg that you own or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by CamoAg and Processed in accordance with these Terms, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any third party or violate any applicable law.
8.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.1, SECTION 8.2 AND SECTION 9.2, THE PLATFORM CAMOAG MATERIALS ARE PROVIDED “AS IS” AND CAMOAG HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND CAMOAG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CAMOAG CANNOT ENSURE, AND MAKES NO WARRANTY OF ANY KIND THAT, THE PLATFORM OR CAMOAG MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
9.1 Subscription Services. Certain Services are offered under a subscription (the “Subscription Services”). The Subscription Services are subject to and conditioned on your payment of the subscription fees as detailed in an Applicable Agreement and your compliance and performance with these Terms and any other Applicable Agreements.
9.2 Additional CamoAg Representations, Warranties, and Covenants. CamoAg represents, warrants and covenants to Customer that CamoAg will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under these Terms.
9.3 CamoAg Indemnification.
(a) Customer Indemnification. Customer shall indemnify, defend and hold harmless CamoAg and its subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “CamoAg Indemnitee”) from and against any and all Losses incurred by such CamoAg Indemnitee in connection with any claim, suit, action or proceeding by a third party (other than an Affiliate of a CamoAg Indemnitee) to the extent that such Losses arise from any:
(i) Processing of Customer Data by or on behalf of CamoAg in accordance with these Terms, if such Losses arise from Customer not having the appropriate rights to have the Customer Data processed by CamoAg;
(ii) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including CamoAg’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by CamoAg;
(iii) Customer breach of any of its representations, warranties, covenants or obligations under these Terms; or
(iv) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with these Terms.
(b) CamoAg Indemnification. CamoAg shall indemnify, defend, and hold harmless Customer its officers, directors, employees, agents, successors, and permitted assigns (each a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee in connection with any action by a third party (other than by an Affiliate of a Customer Indemnitee) to the extent such Losses arise from any:
(i) bodily injury, death of any person, or physical damage to property resulting from the negligent or willful acts or omissions of CamoAg;
(ii) any material misrepresentation or breach of warranty of CamoAg set forth in these Terms and any Applicable Agreements;
(iii) any breach of Confidentiality by CamoAg or any third party under CamoAg’s control that impacts Customer or its customers; or
(iv) any allegation that the Services infringe a patent or copyright enforceable in the United Stated or in a country that is a signatory to the Berne Convention unless such infringement is due to (1) modification of the Services by a party other than CamoAg and not under CamoAg’s control; (2) combination or use of the Services with materials or processes not provided by CamoAg; or (3) the Customer Data.
(c) Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 9.3(a), as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 9.3(c) will not relieve the Indemnitor of its obligations under this Section 9.3 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
(d) Mitigation. If any part of the Platform or CamoAg Materials are, or in CamoAg’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or CamoAg Materials is enjoined or threatened to be enjoined, CamoAg may, at its option and sole cost and expense:
(i) obtain the right for Customer to continue to use the Services and CamoAg Materials materially as contemplated by these Terms;
(ii) modify or replace the Services and CamoAg Materials, in whole or in part, to seek to make the Services and CamoAg Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and CamoAg Materials, as applicable, under these Terms; or
(iii) by written notice to Customer, terminate these Terms with respect to all or part of the Services and CamoAg Materials, and require Customer to immediately cease any use of the Services and CamoAg Materials or any specified part or feature thereof, provided that, subject to Customer’s compliance with its post-termination obligations set forth in Section 7.3, CamoAg will refund to Customer fees paid in advance for Services that CamoAg has not performed as of the effective date of termination
(e) THIS SECTION 9.3 (Indemnification) SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE PLATFORM AND CAMOAG MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
10.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL CAMOAG OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SAAS SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE REFUND OR SERVICE CREDITS, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF CAMOAG AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE GREATER OF THE FEES RECEIVED BY CAMOAG FROM CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE CAUSE OF LIABILITY OR THE AMOUNT OF ANY INSURANCE MAINTAINED BY CAMOAG THAT COVERS THE LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.3 Exceptions. The exclusions and limitations in Section 10.1 and Section 10.2 do not apply to CamoAg’s liability for CamoAg’s gross negligence or willful misconduct.
11.1 Any dispute, claim or controversy arising out of or relating to these Terms or the Platform, including the determination of the scope or applicability of these Terms to arbitrate (hereinafter, collectively, the “Dispute”), which cannot be resolved informally, shall be resolved by binding arbitration under the terms set forth below (the “Arbitration Agreement”). The arbitration proceeding will be administered using the streamlined Arbitration Rules & Procedures of the Judicial Mediation, Arbitration and ADR Services (“JAMS”) before a single arbitrator. The place of arbitration shall be in Cook County, Illinois, unless otherwise agreed to in writing by all parties to the arbitration.
11.2 This provision does not prevent a party from seeking a claim for injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s Intellectual Property Rights. The institution of any action for injunctive relief shall not constitute a waiver of the right or obligation of any party to submit any claim seeking relief other than injunctive relief to arbitration.
11.3 The decision of the arbitrator will be final and binding and will not have precedential effect. The arbitrator shall not have the authority to award damages outside of those set forth in these Terms. Any final award or judgment may be filed and enforced in any court of competent jurisdiction. The parties shall share equally in the costs assessed for the arbitration, and each party shall bear its own attorneys’ fees and costs, unless the arbitrator determines that your claims were improper or frivolous, in which case the arbitrator may require you to reimburse us for certain fees and expenses. Any arbitration proceeding may not be consolidated or joined with any other proceeding and will not proceed as a class action.
11.4 THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, AND TO PARTICIPATE IN A CLASS ACTION OR OTHER PROCEEDING INVOLVING MULTIPLE CLAIMANTS, BUT THEY INSTEAD CHOOSE AND AGREE TO HAVE ALL DISPUTES AS SET FORTH HEREIN DECIDED THROUGH INDIVIDUAL ARBITRATION.
11.5 The parties acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce, and the Federal Arbitration Act, 9 U.S.C. Sections 1–16, shall govern the interpretation, enforcement, and proceedings pursuant to this Arbitration Agreement. The parties expressly agree that any and all actions taken under the Arbitration Agreement and related provisions, including but not limited to all filings, orders, judgments, and awards made in any arbitration proceeding, are confidential and may not be disclosed to any third party.
11.6 The Arbitration Agreement provision will survive the termination of these Terms.
11.7 Subject to applicable law, any claim by you arising in connection with these Terms, the Platform, or your purchase of products must be commenced by you within one (1) year of the accrual of a claim.
11.8 If CamoAg modifies this Arbitration Agreement, you may reject that change by sending CamoAg written notice within thirty (30) days of our posting of the change, in which case we will terminate your account(s) and you must stop using the Platform. If you wish to opt out of the Arbitration Agreement, you must, within forty-five (45) days of first using the Platform, send a letter stating “Request to Opt Out of Arbitration Agreement” to: 220 N Smith Street Ste 408, Palatine, IL 60067 If any provision of this Arbitration Agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
12.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, (except for any payment obligation), 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, pandemics, epidemics, embargoes or blockades in effect on or after the date of these Terms, 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. Either party may terminate these Terms if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
12.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected 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.
13.1 Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to these Terms.
13.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
13.3 Public Announcements. CamoAg shall obtain prior written approval from the Customer for any specific use of the Customer Name and Customer Logo, including but not limited to advertising, marketing materials, and public relations activities.
13.4 Interpretation. For purposes of these Terms: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, these Terms; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend these Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of these Terms to the same extent as if they were set forth verbatim herein.
13.5 Headings. The headings in these Terms are for reference only and do not affect the interpretation of these Terms.
13.6 Entire Agreement. These Terms, including any Applicable Agreements and Exhibits and Supplements thereto, constitute the sole and entire agreement of the parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
13.7 Conflict with Other Agreements. In he event of any inconsistency between the provisions of these Terms and any Applicable Agreements or other documents incorporated herein by reference, the following order of precedence governs: (a) an applicable Order form or Statement of Work; (b) these Terms; (c) any other Applicable Agreement or other document incorporated herein by reference unless such document expressly provides that it is modifying these Terms and is signed by an authorized representative of both parties.
13.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without CamoAg’s prior written consent, which consent CamoAg shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under these Terms for which CamoAg’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under these Terms. Any purported assignment, delegation or transfer in violation of this Section 13.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
13.9 Subcontractors. CamoAg may from time to time in its discretion engage third party subcontractors to perform Services on CamoAg’s behalf. CamoAg shall remain solely responsible for all of the Services under this Agreement and for the performance of all obligations hereunder. All Subcontractors shall be bound by terms of confidentiality at least as restrictive as these Terms.
13.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
13.11 Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing, and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
13.12 Severability. If any provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.13 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois 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 Illinois.
13.14 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 6 or, in the case of Customer, Section 4.5 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Authorized User” means each of the individuals authorized to use the Services pursuant to Section 4.6 and the other terms and conditions of these Terms.
“CamoAg” has the meaning set forth in the preamble.
“CamoAg Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by CamoAg or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of CamoAg or its designee.
“CamoAg Indemnitee” has the meaning set forth in Section 9.3.
“CamoAg Materials” has the meaning set forth in Section 3.1.
“CamoAg Systems” means the information technology infrastructure used by or on behalf of CamoAg in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by CamoAg or through the use of third-party services.
“Confidential Information” has the meaning set forth in Section 6.1.
“Customer” has the meaning set forth in the preamble.
“Customer Data” means, other than Resultant Data or Public Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data or content by or through the Services. Customer Data includes any Customer annotations or notes made in relation to Public Data, but not the Public Data itself.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“Disclosing Party” has the meaning set forth in Section 6.1.
“Documentation” means any manuals, instructions or other documents or materials that the CamoAg provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or CamoAg Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Effective Date” has the meaning set forth in the preamble.
“Force Majeure Event” has the meaning set forth in Section 12.1.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or CamoAg Systems as intended by these Terms. Harmful Code does not include any CamoAg Disabling Device.
“Indemnitee” has the meaning set forth in Section 9.3(c).
“Indemnitor” has the meaning set forth in Section 9.3(c).
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, or from which a specific individual or household may be identified, contacted or located.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Public Data” means data provided through the Services sourced from government databases or other public sources of information.
“Receiving Party” has the meaning set forth in Section 6.1.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.
“Resultant Data” means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
“Services” has the meaning set forth in the preamble.
“Subscription Services” has the meaning set forth in Section 9.1.
“Term” has the meaning set forth in Section 7.1.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to CamoAg.
