|CDMS Label Search|
Please read the following End User License Agreement.
END USER LICENSE AGREEMENT FOR CDMS LABEL SEARCH PREMIER USER
TERMS AND CONDITIONS
THIS END USER LICENSE AGREEMENT (THE "AGREEMENT") CONSTITUTES A VALID AND BINDING AGREEMENT BETWEEN CROP DATA MANAGEMENT SYSTEMS, INC. ("CDMS") AND YOU ("USER"), FOR THE USE OF CDMS LABEL SEARCH PREMIER. PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING. Before User may use CDMS LABEL SEARCH PREMIER, User must read and accept all of the terms and conditions in this Agreement. User hereby agrees and acknowledges that this Agreement covers all User's use of CDMS LABEL SEARCH PREMIER. By using CDMS LABEL SEARCH PREMIER, User agrees to be bound by the following terms and conditions. Furthermore, User's continued use of CDMS LABEL SEARCH PREMIER shall be deemed acceptance of the terms and conditions as posted, including any revisions.
Electronic Signatures and Agreement(s):
ARTICLE 1. DEFINITIONS
1.1 "Agreement" shall mean this End User License Agreement between User and CDMS, as may be renewed, modified, and/or amended from time to time.
1.2 "CDMS" shall mean Crop Data Management Systems, Inc., a California corporation with its headquarters located at 376 E. Warm Springs Road, Suite 220, Las Vegas, NV 89119, and its officers, employees, agents, subsidiaries, and attorneys.
1.3 "CDMS Website" shall refer to the CDMS internet-based collection of web pages, available, among other URLs, under the URL http://www.cdms.net.
1.4 "Chemical Information" shall mean the information made available to and accessible by User through use of CDMS LABEL SEARCH PREMIER. Such information typically includes product label information for crop protection and specialty products, worker protection and safety information, shipping descriptions, use rates, and crop rotation and pests controlled information.
1.5 "CDMS LABEL SEARCH PREMIER" or "Web Service" shall refer to CDMS's proprietary commercially available computer application and searchable database CDMS LABEL SEARCH PREMIER.
1.6 "Effective Date" shall mean the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above or the date of the first use of CDMS LABEL SEARCH PREMIER in the event that User did not click on the ACCEPT button. In the event that this agreement is modified, the Effective Date will be the first date that User first uses CDMS LABEL SEARCH PREMIER after the new Agreement terms have been posted on the CDMS Website.
1.7 "Intellectual Property" shall refer to the rights of CDMS to any copyrights, patents, trademarks, trade secrets, right of publicity and attribution, right of privacy, ideas, or expressions recognized under any federal state, or foreign law, in CDMS LABEL SEARCH PREMIER or any related Web Services, and any source code, object code, designs, graphics, text, or other constituent parts.
1.8 "Term" shall mean one (1) year from the Effective Date of this Agreement, unless it is terminated prior to that date by either CDMS or User as set forth in Article 4 below.
1.9 "User" shall mean the person or entity executing this on-line Agreement, or on behalf of whom this on-line Agreement is executed.
1.10 "Web" shall refer to or pertain to that portion of the Internet commonly known as the "World Wide Web".
ARTICLE 2. USE OF CDMS LABEL SEARCH PREMIER WEB SERVICE
2.1 Access to CDMS LABEL SEARCH PREMIER. As of the Effective Date, User's use of CDMS LABEL SEARCH PREMIER shall include access to Chemical Information provided by various manufacturers throughout the United States. User shall have access to CDMS LABEL SEARCH PREMIER subject to the terms and conditions of this Agreement. At any time during the Term of this Agreement, CDMS may require access to CDMS LABEL SEARCH PREMIER to be preceded by the entry of a password or participation in some other logon procedure by User, which procedure shall require no additional charge or fee of User.
2.2 No Warranties. CDMS makes no promise or warranty about the continuousness of service. User acknowledges that CDMS LABEL SEARCH PREMIER is or may be made accessible through electronic and/or telecommunication systems, lines, devices, or channels maintained by third parties, and beyond the control of CDMS, and in the event those systems are out of order, disconnected, or otherwise interrupted, communication will not be possible. In the event of any disconnection or interruption, CDMS will not be liable for such disconnection or interruption, or any loss or injury to User resulting there from.
ARTICLE 3. TERM
3.1 Term. This agreement will be effective as of the Effective Date and will remain effective for one (1) year, unless it is terminated prior to that date by either CDMS or User as set forth in Article 4 below.
3.2 Renewal. CDMS may but is not required to renew access to CDMS LABEL SEARCH PREMIER for additional one-year terms for an additional fee. CDMS reserves the right to change the term of the service and the fee for the service at its discretion.
ARTICLE 4. TERMINATION
4.1 Termination by CDMS. CDMS may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to courts, by providing notice to User and/or by preventing User's access to CDMS LABEL SEARCH PREMIER. User's rights will automatically and immediately terminate without notice from CDMS if User fails to comply with any provision of this Agreement.
4.2 Termination by User. User may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to the courts, provided that User shall meet the conditions as set forth in Article 4.3 below.
4.3 Consequences of Termination. Upon termination of this Agreement, User (a) acknowledges and agrees that all licenses and rights to use CDMS LABEL SEARCH PREMIER shall terminate, and (b) will cease any and all use of CDMS LABEL SEARCH PREMIER.
4.4 No Liability. CDMS will not be liable in relation to any damage caused by the termination of this Agreement.
ARTICLE 5. INTELLECTUAL PROPERTY RIGHTS AND LICENSE
5.1 Title and Ownership. Title to all Intellectual Property rights in CDMS LABEL SEARCH PREMIER, and the related computer software, source code, object code, graphics, text, data, training and explanatory materials, are and shall remain with CDMS. User agrees that CDMS LABEL SEARCH PREMIER Web Service is the copyrighted work of CDMS and is protected by copyright laws. User agrees that CDMS hereby retains all existing Intellectual Property rights owned prior to the execution of this Agreement.
5.2 Grant of Nonexclusive License. CDMS grants to User for the Term of this Agreement a limited, nonexclusive, non-sublicensable, non-assignable license to have access to and use CDMS LABEL SEARCH PREMIER as provided in this Agreement. This license shall give to User the right for one (1) uniquely identifiable employee to access and use CDMS LABEL SEARCH PREMIER in accordance with this Agreement. A separate license must be purchased for each employee. This license does not grant to User the right to copy, publish, download, broadcast, or sell CDMS LABEL SEARCH PREMIER Web Service for any purpose. This license will terminate upon the expiration of the Term of this Agreement.
5.3 No Assignment. User shall not, without prior written consent of CDMS, sell, assign, delegate, sublicense, pledge, or otherwise transfer this license, or any of its rights or obligations under this license or this Agreement, to any party.
ARTICLE 6. CDMS DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
6.1 No Warranties. User acknowledges and agrees that CDMS is not the author of the Chemical Information, that such data is provided to CDMS by various agricultural chemical manufacturers, and that CDMS has no responsibility for the accuracy or currency of such Chemical Information. USER EXPRESSLY UNDERSTANDS AND AGREES THAT USE OF THIS WEBSITE IS AT USER'S SOLE RISK. CDMS LABEL SEARCH PREMIER, AND ANY OTHER WEB SERVICES, SOFTWARE, OR RELATED SERVICES AND PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED "AS IS." CDMS EXPRESSLY DISCLAIMS ALL WARRANTIES, GUARANTEES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF CDMS LABEL SEARCH PREMIER AND RELATED COMPUTER SERVICES PROVIDED OR MADE AVAILABLE UNDER THIS AGREEMENT RESTS SOLELY WITH THE USER. CDMS SPECIFICALLY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE CDMS LABEL SEARCH PREMIER SERVICE WILL MEET USER'S REQUIREMENTS OR THAT THE OPERATION OF CDMS LABEL SEARCH PREMIER AND RELATED WEB SERVICES AND SOFTWARE WILL BE ACCESSIBLE, UNINTERRUPTED, SECURE, OR ERROR FREE. CDMS ALSO DOES NOT WARRANT THAT THE DATA OR INFORMATION PROVIDED TO USER THROUGH CDMS LABEL SEARCH PREMIER OR ANY RELATED SERVICE IS ACCURATE OR COMPLETE.
6.2 User's Risk. User acknowledges and agrees that the entire risk arising out of the use or performance of CDMS LABEL SEARCH PREMIER remains with User, to the maximum extent permitted by law.
6.3 Limitation of Liability and Damages. CDMS's liability to User for damages for any breach of this Agreement or any act or omission arising from or relating to this Agreement shall be limited to the charges paid by User for CDMS LABEL SEARCH PREMIER in the preceding twelve (12) month period. CDMS shall not be liable for any lost profits, lost savings, or other incidental, special, exemplary, consequential, or punitive damages arising out of User's access to, use, or inability to use CDMS LABEL SEARCH PREMIER, or of any other services or software provided under this Agreement, regardless of the type of claim, whether in contract, tort, negligence, strict liability or other legal or equitable theory, whether or not foreseeable and regardless of the cause of such damages even if CDMS was advised of the possibility of such damages in advance. No action shall be brought by User against CDMS more than one (1) year after the cause of action has accrued, except that an action for nonpayment may be brought within one (1) year after the date of the last payment. The parties recognize and agree that the services to be provided under this Agreement could not be made available under these terms or other similar terms without a substantial increase in cost if CDMS were to assume a greater degree of liability.
6.4 Remedy. User's only right or remedy with respect to any problems or dissatisfaction with CDMS LABEL SEARCH PREMIER is to cease use of CDMS LABEL SEARCH PREMIER.
6.5 Jurisdictional Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to User. For these jurisdictions, the aforementioned limitation on liability shall be to the maximum degree permitted by applicable law.
ARTICLE 7. USER COVENANTS, REPRESENTATIONS, AND WARRANTIES
7.1 Representations. User represents and warrants that User is authorized to enter into this Agreement and comply with its terms. Furthermore, User represents and warrants that User will at any and all times meet with User's obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of CDMS LABEL SEARCH PREMIER, or any related Web Services.
7.2 No Infringement. User shall take no action that would infringe upon the copyrighted programs or data of CDMS or, in addition, would infringe upon the Intellectual Property of CDMS.
7.3 Nondisclosure of Confidential Information. User shall not disclose to any third party any confidential information provided to User by CDMS unless authorized to do so in a writing executed by CDMS. User shall not provide or otherwise make available CDMS LABEL SEARCH PREMIER, any related Web Services, or data incorporated within the services, including, but not limited to Chemical Information, flow charts, logic diagrams, machine codes, screen displays or printouts, in any form, to any person or entity, other than its consultants or contractors who have a need to know such information and are bound by a written agreement to keep such services or information confidential, without prior written consent from CDMS. Upon request by CDMS, User shall provide to CDMS copies of all such confidentiality/nondisclosure agreements executed by its consultants and contractors. User shall secure and protect all printed materials, manuals, software programs, disks, copies, or other media, if any, that embody, contain, or describe any of CDMS's confidential information in a manner consistent with the protection of CDMS's rights therein and to take appropriate action by instruction or agreement with its employees to satisfy its obligations hereunder.
7.4 Intellectual Property Information. User shall not remove from CDMS LABEL SEARCH PREMIER, or from related Web Services or software, any marks, text, graphics, or symbols that indicate or provide notice of CDMS's trademark, copyright, patent, or other rights in CDMS LABEL SEARCH PREMIER or any related Web Services or software.
7.5 No Reverse Engineering. User shall not create, or allow to be created, any decompilation, disassembly, reverse engineering, or otherwise, any source code or source program from CDMS LABEL SEARCH PREMIER or any related Web Services, or software applications provided or licensed under this Agreement. User shall not allow CDMS LABEL SEARCH PREMIER, or any related Web Services or software applications to be used with any software except CDMS-approved integration software.
ARTICLE 8. DEFAULT; INDEMNIFICATION
8.1 Events of Default. The following shall constitute events of default of the Agreement by User:
A. User breaches any covenant or condition of this Agreement; or
B. User fails to make any payment required under this Agreement in a timely manner; or
C. User uses CDMS LABEL SEARCH PREMIER Web Service in any manner inconsistent with the terms of this Agreement, including but not limited to the applicable limit of one (1) employee per license to which User is entitled.
8.2 Effect of Default. Immediately upon the occurrence of any event of default of this Agreement, CDMS may, in its sole discretion, elect to terminate this Agreement and to discontinue providing the CDMS LABEL SEARCH PREMIER service to User. In the event of User default, all fees and/or charges due and payable for the remainder of the Term of the Agreement shall immediately become due and payable.
8.3 Indemnification. User shall indemnify and hold harmless CDMS and all of its officers, directors, employees, and their successors and assigns, from and against any loss or liability, including attorney's fees, from any claim or suit by a third party based upon or arising from User's (a) violation or breach of any term of this Agreement or any applicable law, regulation, policy, or guideline, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use, disclosure, or publication of CDMS LABEL SEARCH PREMIER Web Services or of any information obtained in whole or in part by User from or through CDMS LABEL SEARCH PREMIER.
ARTICLE 9. ARBITRATION
9.1 Arbitration. USER UNDERSTANDS AND AGREES THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN USER AND CDMS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE BREATH THEREOF, INCLUDING BUT NOT LIMITED TO TORT AND CONTRACT CLAIMS (INCLUDING THE ENFORCEABILITY OF THIS AGREEMENT), NEGLIGENCE CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES IN LAS VEGAS, NEVADA. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY ANY STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT, AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT ("FAA"). NEITHER USER NOR CDMS SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CONSUMERS OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL.
ARTICLE 10. GENERAL PROVISIONS
10.1 Severability. If any part of this Agreement is adjudged by any court of competent jurisdiction to be invalid or void, that judgment shall not effect or nullify the remainder of the Agreement and the effect shall be confined to the part immediately involved in the controversy adjudged.
10.2 Non Waiver. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder, nor shall such waiver preclude the further exercise of that right, unless the same is explicitly waived in writing and signed by an authorized agent or officer of CDMS.
10.3 Assignment. User is not allowed to assign this Agreement or any rights hereunder. CDMS may assign this Agreement or any rights hereunder to an affiliate without any consent from User.
10.4 Attorney's Fees and Costs. In the event of any action at law or equity, arbitration, or other proceeding to enforce or interpret the terms or provisions of this Agreement, or arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs incurred.
10.5 Jury Trial Waiver. TO THE MAXIMUM EXTENT ENFORCEABLE UNDER LAW, BOTH PARTIES KNOWINGLY AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL IN ANY DISPUTE ARISING OUT OF THIS AGREEMENT. THIS WAIVER WAS REVIEWED BY COUNSEL.
10.6 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Nevada, without regard to its choice of law rules. Any action to enforce the terms of this Agreement, or arising out of the subject matter of this Agreement, shall be brought in the Clark County District Court in Las Vegas, NV or, if that is not a proper venue or jurisdiction, the United States District Court for the District of Nevada in Las Vegas, NV.
10.7 Forum. If the Arbitration provision (Article 9) of this Agreement is adjudged by any court of competent jurisdiction to be invalid, void, or unenforceable, any lawsuit, civil action, or other proceeding that is brought to enforce the terms of this Agreement or that arises out of or concerns the subject matter of this Agreement shall be brought in the Clark County District Court in Las Vegas, NV or in the United States District Court for the District of Nevada in Las Vegas, NV.
10.8 Titles. The titles to the Articles and paragraphs of this Agreement are solely for the convenience of the parties, and are not an aid in the interpretation of the instrument.
10.9 Entire Agreement and Acknowledgment. The parties acknowledge that this Agreement has been read and understood and that it represents the entire Agreement and understanding of the parties relating to the rights granted and obligations assumed in this instrument and supersedes all prior agreements, communications, or understandings, whether oral or written. CDMS reserves the right to modify the terms and conditions of this Agreement, in its sole discretion and without notice, at any time by posting the revised terms and conditions on the CDMS Website. User's continued use of CDMS LABEL SEARCH PREMIER Web Service shall constitute User's acceptance to be bound by the terms and conditions of this Agreement.
USER EXPRESSLY ACKNOWLEDGES THAT USER HAS READ THIS AGREEMENT AND UNDERSTANDS THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO USE CDMS LABEL SEARCH PREMIER, USER EXPRESSLY CONSENTS TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO CDMS THE RIGHTS SET FORTH HEREIN.
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