EFFECTIVE DATE: MAY 25, 2018
Trellis End-User License Agreement
Trellis End-User License Agreement THIS END USER LICENSE AGREEMENT BETWEEN YOU (“CUSTOMER”) AND ATP LABS LTD. d/b/a TRELLIS (“TRELLIS”) AND ITS CORRESPONDING SALES ORDER(S) (COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) GOVERN YOUR USE OF THE SOFTWARE (AS DEFINED BELOW). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE, AND/OR BEFORE ONBOARDING THE SERVICE, AND INDICATE YOUR ACCEPTANCE BY CHOOSING “I ACCEPT”. BY CHOOSING “I ACCEPT”, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS OF THIS LICENSE AGREEMENT. YOU MAY PRINT AND KEEP A COPY OF THIS AGREEMENT. BACKGROUND: Trellis provides an AI-based cloud platform for the purpose of optimizing production profitability for food & beverage companies and growers by incorporating real-time prediction on crop performance and yield, timing and costs (the “Solution”). This Agreement governs Customer’s access and use of the Solution and any proprietary technology of Trellis incorporated therein. NOW, THEREFORE, the parties hereby agree as follows:
- Solution. Subject to the terms and conditions of this Agreement, Trellis shall provide Customer with access to the Solution on a non-exclusive basis. Customer may use the Solution on a non-exclusive basis solely for its own commercial purposes. Customer shall not be entitled to any other software (including any other executable or source code) from Trellis. No licenses or rights are granted herein by estoppel or by implication. Customer represents that it has all necessary authority to enter into this Agreement and that the execution of this Agreement and the receipt of the Solution will not conflict with any legal, regulatory or contractual obligations of Customer.
- Restrictions. Except as set forth expressly herein, Customer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Solution; (b) modify the Solution, (c) sublicense, sell, distribute or provide the Solution to any third party, or (d) bypass any security measure or access control measure of the Solution. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Customer shall inform Trellis in writing in each instance prior to engaging in the activities set forth above.
- Payment. In consideration of the Solution, Customer shall make payment to Trellis as set forth in the applicable Sales Order. Except to the extent set forth otherwise in applicable Sales Order, Amounts due hereunder do not include VAT and other taxes, and Customer shall make payment in respect of such taxes in addition to other amounts due hereunder. Customer shall make payment to Trellis without deduction or withholding of any taxes or other government charges. Late payments shall bear interest at the rate of 18% per annum.
- Term. The term of this Agreement (“Term”) shall commence on the Effective Date and shall continue in effect for the period set forth on applicable Sales Order (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for subsequent periods of one year each (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless one of the parties provides written notice of its intent not to renew at least 90 (ninety) days prior to the applicable Renewal Term. Either party may terminate this Agreement upon written notice if the other party shall materially breach this Agreement and not cure such breach within 30 days of receipt of written notice thereof from the non-breaching Party. Upon any termination of this Agreement, Customer shall cease all use of the Solution. Sections 2 – 12 of this Agreement shall survive any termination or expiration thereof. Neither party shall have liability for the termination of this Agreement in accordance with its terms.
- Intellectual Property. Trellis has all right, title and interest in the Solution, including all enhancements, improvements and modifications thereof (“Trellis Property”). Trellis does not request Customer’s feedback regarding the Trellis Property. Notwithstanding the foregoing, if Customer provides Trellis with any feedback regarding the Trellis Property, Trellis may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
- Data; Privacy. To provide the Solution, including the Trellis live dashboard and associated analytics, Trellis integrates data provided by Customer, including geographic, meteorological and historical data concerning Customer’s supply chain listed in Exhibit A (“Customer Data”). Trellis supplements Customer Data with certain proprietary, open source and third party data. Trellis analyzes all Data using the Solution in order to generate prediction and optimization reports for Customer. Customer at all times retains sole ownership of all Customer Data. To maintain the confidentiality, security and integrity of Customer Data, Trellis implements the technical, physical, administrative and organizational security measures set forth in Exhibit A. Trellis may disclose Data to the extent required by applicable law or to cooperate with a law enforcement investigation. Trellis makes continuing efforts to improve the Solution, and predictive and optimization reports provided to Customer, through analysis of the results provided by the Solution.
- Confidentiality. Either party (a “Disclosing Party”) may disclose to the other party (a “Receiving Party”) certain confidential information regarding its technology and business (“Confidential Information”). Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its provision or use of the Solution. Confidential Information shall not include information that Receiving Party can show (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperate in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. All pricing information herein and all non-public information in respect of the Solution shall be deemed the Confidential Information of Trellis.
- Warranties; Disclaimer. Each party warrants that it has full corporate power and authority to execute this Agreement and to perform its obligations hereunder; and all corporate action necessary for the authorization, execution, delivery and performance of this Agreement by it have been taken. Customer warrants that it is authorized to provide Trellis with access to the Customer Data for purposes of receiving the Solution. Trellis represents and warrants that the Solution shall comply agreed specifications in all material respects and that, to its best knowledge, the Solution does not infringe the intellectual property rights of any third party. Subject to the foregoing, the Solution is provided “as is”. To the maximum extent permitted by applicable law, Trellis disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement.
- Trellis Indemnification Obligations. Trellis shall defend, indemnify and hold Customer harmless from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which Customer may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party against Customer arising from any claims that the Solution infringes the intellectual property rights of a third party. Trellis shall not have any liability to the extent any claim is the result of Customer’s actions, omissions or breach of this Agreement. If the Solution shall be the subject of an indemnifiable claim, or Trellis reasonably believes that the Solution shall be the subject of an indemnifiable claim, Trellis may terminate this Agreement with written notice if modification of the Solution to be non-infringing or compliant with applicable law is not reasonably practical.
- Customer Indemnification Obligations. Customer shall defend and indemnify Trellis (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Trellis may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from the provision by Customer of any data not in compliance with applicable law.
- Procedure. The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own election at its own expense.
- Limitation of Liability. In no event shall Trellis (or its directors, officers, affiliates, agents or employees) have any liability for any consequential, indirect, special or punitive damages, arising out of or relating to the Trellis Software or Solution. The entire liability of Trellis (or its directors, officers, affiliates, agents or employees) hereunder shall not exceed the total amount Customer has actually paid to Trellis in respect of the Solution in the 12 months prior to the applicable claim.
- Publicity. Subject to Customer’s consent, Trellis may disclose that Customer is using the Solution, including by displaying Customer’s name and logo on Trellis’s website and other marketing materials.
- Miscellaneous. This Agreement together with its Exhibits constitute the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties regarding the subject matter hereof. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties. If any part of this Agreement shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement. Trellis may assign its rights or obligations under this Agreement to an affiliated company or to a purchaser of all or substantially all of Trellis’s assets or share capital, or to any company succeeding to Trellis’s business. Customer shall not assign any of its rights or obligations hereunder without Trellis’s prior written consent. Assignments in violation of the foregoing shall be void. This Agreement shall be governed by the laws of the State of Israel, and the competent courts in the city of Tel Aviv shall have exclusive jurisdiction to hear any disputes arising hereunder. Notwithstanding the foregoing, either party may seek an injunction or other equitable relief in any court of competent jurisdiction in order to prevent a breach or threatened breach of this Agreement.
LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THIS LICENSE AGREEMENT AND AGREES TO BE BOUND BY ALL OF THE TERMS.