SOFTWARE AS A SERVICE (SaaS) SUBSCRIPTION AGREEMENT
Last Updated 9/20/2022
This Agreement is a binding agreement made between Main Street Data Corp. (“MSD”) and You, and governs Your use, under license, of certain MSD software and access to certain MSD services according to the terms and conditions set forth below. All components, or terms and conditions, contained in this Agreement are integral to the Agreement, and Licensee consents to all of these terms and conditions. Licensee acknowledges it has had the opportunity to review the Agreement. By accessing or using the Software, You acknowledge that You have read and understand this Agreement, that You accept all of the terms and conditions contained here in full. You agree the terms and conditions shall be fully and legally binding upon the parties, without the need for any further indication of acceptance on Your part (such as by signature, click through or other means of electronic acceptance). If You are acting on behalf of another Licensee, You represent that You have full legal authority to bind the Licensee. MSD recommends that Licensee print copies of the Agreement for Licensee’s own records and future reference.
Your access and/or use of the MSD Software or Services shall constitute Your acceptance of all of the terms and conditions set forth in this Agreement.
“Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with the entity named above. “Control” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity named above.
“Agreement” shall mean this Software as a Service (SaaS) Subscription Agreement and any exhibits, schedules, addenda and associated MSD Order Forms related hereto or otherwise submitted to MSD in connection with the Software or Services.
“Customer” shall mean the Licensee under this Agreement that has executed an MSD Order Form in connection with the Software or Services.
“Customer Data” shall mean electronic data and information submitted by or for Customer for the Services.
“MSD Order Form” shall mean a written order form specifying the Software or Services to be provided hereunder that is entered into between MSD and Licensee or otherwise submitted by Licensee to MSD, including any addenda and supplements thereto. By submitting an MSD Order Form, Customer agrees such MSD Order Form shall be considered part of this Agreement and further agrees to be bound by all the terms and conditions of this Agreement.
“Services” shall mean the services, if any, that MSD agrees to provide to You as provided in the MSD Order Form.
“Software” shall mean the MSD proprietary yield evaluation and forecasting models, including (without limitation), subsequent updates, enhancements, modifications and releases of the same, as well as third party software added to or used in connection with the foregoing; and, all related components, templates, features, enhancements, modifications, data and related files that is used by MSD to provide the Software and the Services.
“MSD Materials” shall mean any Software, programs, tools, systems, data or other materials made available by MSD to Customer in the course of providing access to the Software and the performance of the Services.
- SaaS Services and Support
2.1 Subject to the terms of this Agreement, MSD will use commercially reasonable efforts to provide Customer the Services in accordance with the MSD Order Form. As part of the ordering process, Customer will identify an administrative user name and password for Customer’s account.
2.2 Subject to the terms of this Agreement, MSD will provide Customer with reasonable customer support services as provided in Your MSD Order Form. Please review Your executed MSD Order Form for a complete description of those Services.
- Restrictions and Responsibilities
3.1 Customer will not make any Software available to, or use any Software for the benefit of, anyone other than Customer, unless expressly stated otherwise in an MSD Order Form. Customer will not sell, resell, license, sublicense, distribute, make available, rent or lease any Software, or use any Software for the benefit of a third party.
3.2 Customer will not directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, models, ideas, know-how or algorithms relevant to the Software or any MSD Materials or (ii) modify, translate, or create derivative works based on the Software (except to the extent expressly permitted by MSD in writing).
3.3 This Agreement is subject to and conditioned upon compliance with the U.S. Export Administration Regulations, the International Traffic of Arms Regulations, country specific economic sanctions programs implemented by the Office of Foreign Assets Control, and the applicable regulations thereunder (collectively, the “U.S. Export Laws”). Customer may not remove or export from the United States or allow the export or re-export of the Software or anything related thereto, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control or any other United States or foreign agency or authority. For clarity, the Customer shall be solely responsible for compliance with U.S. Export Laws related to the manner in or by which the Customer chooses to use the Software.
3.5 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including without limitation, hardware, software, networking, internet service and the like. Customer shall also be responsible for maintaining the security of Customer’s account, passwords and files and for all uses of Customer’s account with or without Customer’s knowledge or consent, and Customer hereby acknowledges and agrees that MSD shall have no responsibility for such matters.
3.6 Customer owns and accepts all responsibility for any data, information or material that Customer submits to MSD in the course of using the Software, including any personally identifiable information (Customer Data). Customer at all times retains ownership of all Customer Data. Customer, and not MSD, shall have sole responsibility for the accuracy, quality, security, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data.
- Customer acknowledges and agrees that the Software and other MSD Materials are and shall at all times be and remain the sole and exclusive property of MSD, subject only to the rights granted to Customer in this Agreement. MSD retains all right, title and interest in and to the Software and other MSD Materials. Customer does not and will not be deemed to acquire any right, title or interest therein, except as expressly granted in this Agreement. Further, Customer does not and will not be deemed to acquire any right, title or interest in any patent(s), copyrighted material, or other intellectual property, or proprietary information or data, owned by MSD Corporation and /or any of its subsidiaries or affiliates. Customer shall own all right, title and interest in and to the Customer Data. Notwithstanding anything to the contrary, MSD shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and MSD will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software and other MSD offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth in this Agreement.
- Payment of Fees
5.1 Customer acknowledges and agrees that it will pay MSD the applicable fees described in the MSD Order Form for the Software (“Fees”) in accordance with the terms therein and in this Agreement. If Customer’s use of the Software exceeds the frequency selected by the Customer as set forth on the MSD Order Form or otherwise requires the payment of additional fees, Customer shall be notified and will have the opportunity to acknowledge the need for frequency of use of the Software to be increased. MSD will bill for such increased usage and Customer agrees to pay the additional fees in the manner provided herein or as otherwise described to Customer. If Customer acknowledgement is not received within 72 hours of notification, MSD shall have the right to suspend Services. MSD reserves the right to change Fees or applicable charges and to institute new charges and Fees at the end of the initial service term or then-current renewal term, and Customer’s renewal and continued use of MSD’ Software shall be deemed acceptance of such changes to the charged Fees or applicable charges. If Customer believes MSD has billed Customer incorrectly, Customer must contact MSD no later than 60 days after the closing date on the first invoice in which the error or problem appeared, in order to receive an adjustment or credit, and MSD shall not be responsible for any errors in billing not brought to its attention in accordance with this provision. Inquiries should be directed to MSD’s customer support department.
5.2 MSD will invoice Customer in accordance with this Agreement and the relevant MSD Order Form. Fees are due net 30 days from the invoice date. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Failure of Customer to pay MSD’s invoices in accordance with this Agreement shall represent a breach of Customer’s obligations under this Agreement and shall entitle MSD to immediately terminate Customer’s access to the Software.
5.3 MSD may provide Customer with an option to make payment of fees online or to electronically transfer funds from Your bank. If You choose to use the online payment system or electronically transfer funds from Your bank, You represent and warrant that: (i) You are 18 years of age or over, and(ii) You have the appropriate authority to validly accept the terms contained herein and are able to and will meet Your obligations in relation to the terms contained herein, and (iii) that the information supplied to us is true and correct; (ii) if you. If You use the online payment system, You represent and warrant that: (i) The credit card used by You is issued in Your name or You are authorized to use the credit card, and (ii) You will pay the credit card issuer all charges incurred in order to pay the fees agreed to in the MSD Order Form. If You electronically transfer funds from Your bank, You represent and warrant that: (i) You are requesting that we settle an electronic transfer (via the Automated Clearing House or ACH of the Electronic Payment Association) in the amount equal to the fees agreed to in the MSD Order Form; (ii) You will not attempt to cancel or reverse the charges paid by Your bank to MSD through the ACH transfer; and (iii) the account information provided by You is Your account information and You are authorized to give MSD permission to initiate and complete an ACH transfer from Your bank account.
- Term and Termination
6.1 This Agreement commences on the Effective Date and continues until the date indicated on the MSD Order Form.
6.2 The term of this Agreement shall be automatically renewed for a one year term at the expiration of each term unless either party gives notice to the other at least Thirty (30) days prior to the expiration of any term of its, his or her intention not to renew.
6.3 Either party may also terminate this Agreement upon 30 days written notice if the other party materially breaches any of the terms or conditions of the Agreement and fails to correct the breach within the notice period. Customer will pay in full for the Services up to and including the last day on which the Services are performed.
6.4 Upon any termination and upon Customer request, MSD will make all Customer Data available to Customer for electronic retrieval for a period of 30 days, but thereafter MSD may delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control.
6.5 The following sections will survive any termination or expiration of this agreement: 3.2, 3.6, 4, 5, 6, 7, 8 and 9.
- Warranty and Disclaimer
7.1 The Software and other MSD Materials are based on historical data gathered by or provided to MSD, and MSD cannot predict future occurrences with complete accuracy. MSD does not guarantee that any of the Software, MSD Materials or information derived from the Software or other MSD Materials can provide You with all of the information You need to make agronomic decisions. You must use Your own judgement when making decisions for Your business while using or after using the Software or other MSD Materials. You alone are responsible for Your results when using the Software or other MSD Materials. MSD shall use reasonable efforts consistent with prevailing industry standards to provide and maintain the Software in a manner which minimizes errors and interruptions in Customer’s use of the Software. Customer acknowledges that the Software may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, either by MSD or by third-party providers, or because of other causes beyond MSD’s reasonable control. Where reasonably possible, MSD shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled services that may cause a disruption.
7.2 MSD DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES MSD MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE. THE SOFTWARE IS PROVIDED “AS IS” AND MSD DISCLAIMS ALL WARRANTIES OF ANY TYPE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
7.3 The information made available here is provided a representation based on our data, models and experience, without obligation and without specific recommendations for action. It does not constitute and cannot replace grain marketing advice. It is meant to be used along with other factors and advice available to you. We therefore recommend that you contact your personal financial advisor before carrying out specific transaction.
- Limitation of Liability and Limitation on Damages
UNDER NO CIRCUMSTANCES AND UNDER NO THEORY OF LAW (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL MSD, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR CONSEQUENCES, FINANCIAL OR OTHERWISE, OF THE DECISIONS YOU MAKE DURING OR AFTER YOUR USE OF THE SOFTWARE, RESULTS ACHIEVED, FINANCIAL OR OTHERWISE, DURING OR AFTER YOUR USE OF THE SOFTWARE OR OTHER MSD MATERIALS, LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF DATA OR USE, OR ANY BUSINESS INTERRUPTION OR DISRUPTION, INCURRED BY EITHER CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION SOUNDING IN CONTRACT, TORT, WARRANTY, FIDUCIARY DUTY, STATUTORY CLAIM UNDER ANY FEDERAL, STATE, LOCAL LAW OF THE UNITED STATES OF AMERICA OR ANY OTHER JURISDICTION, OR ANY OTHER TYPE OF LEGAL CLAIM, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, NEITHER MSD NOR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS OR SERVICE PROVIDERS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, LOSSES, COSTS OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S INABILITY TO USE THE SOFTWARE, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SOFTWARE, (II) MSD’S DISCONTINUATION OF ANY OR ALL ACCESS TO THE SOFTWARE, OR (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE ACCESS TO THE SOFTWARE FOR ANY REASON WHATSOEVER, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER TO ANY THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SOFTWARE; (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, DENIAL OF ACCESS, OR FAILURE TO MAINTAIN OR STORE ANY OF CUSTOMER’S CONTENT OR OTHER DATA, (E) ANY DECISIONS MADE BY CUSTOMER, FINANCIAL OR OTHERWISE, DURING OR AFTER USING THE SOFTWARE OR OTHER MSD MATERIALS, OR (F) ANY RESULTS ACHIEVED, FINANCIAL OR OTHERWISE, DURING OR AFTER THE USE OF THE SOFTWARE OR OTHER MSD MATERIALS.
THE AGGREGATE AND CUMULATIVE TOTAL LIABILITY OF MSD, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS AND SERVICE PROVIDERS FOR DAMAGES, INCLUDING FOR DIRECT DAMAGES, UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM, AND IF SUCH DAMAGES RELATE TO A PARTICULAR PROGRAM OR MODEL, SUCH LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE SOFTWARE GIVING RISE OR RELATED TO THE ALLEGED LIABILITY AND DAMAGES UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM.
LICENSEE ACKNOWLEDGES THAT THE FEES APPLICABLE FOR THE SERVICES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT MSD WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF BOTH LIABILITY AND DAMAGES SET FORTH IN THIS AGREEMENT (INCLUDING THOSE SET FORTH ABOVE IN THIS SECTION 8 AND IN SECTION 9.2 BELOW).
9.1 This Agreement and the associated MSD Order Forms shall not be assignable by Customer without the prior, written consent of MSD. Any assignment or transfer by Customer in violation of this Section will be void. This Agreement may be assigned or transferred by MSD.
9.2 No Liability for Certain Delays or Failures of Performance. MSD and its affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms, floods, or other elements of nature, blockages, embargoes, riots, cyber attacks (including without limitation distributed denial of service attacks, malware, ransomware, and any other cyber events), acts or orders of government, acts of terrorism, or war.
9.3 If any term or provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid, the remaining terms and provisions shall remain in effect.
9.5 Any notice, report or statement required to be given or made hereunder shall be considered properly given if sent by email or registered or certified mail, return receipt requested, postage-paid to the respective address of each party as either of the parties shall have last furnished in writing to the other.
9.6 Customer will not, without MSD’s express prior written permission, use any trade name, trademark or other identification (or any abbreviation, contraction or simulation thereof) owned or used by MSD in any advertising, publicity, or marketing.
9.7 This Agreement shall be construed in accordance with the laws of the State of Missouri without reference to conflict of law rules.
9.8 Any dispute or claim relating in any way to the Customer’s use of the Software will be resolved by binding arbitration, rather than in court, except that Customer may assert claims in small claims court if the claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. Any arbitration will be conducted by the American Arbitration Association (AAA) under its rules, or such alternative arbitration rules to which the parties may agree. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules or as the parties may agree. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial and Customer hereby acknowledges that this waiver constitutes a relinquishment of an important right and that such waiver is provided freely, knowingly and voluntarily.