Terms of Service and Subscription Agreement
MSD is collaborating with partners, including GiSC, as a part of its Preferred Partner Network™ to help Users leverage and get the most out of their or their customer’s farm operation data. MSD strives to be transparent as to how your data is used and managed by MSD. The details and specifics in the Terms of Service/Subscription Agreement below set forth MSD’s commitment regarding your data.
ii) Getting the Most Out of your User Data: MSD makes it easy for Users to get the most out of their data by aggregating de-identified data stored at MSD and applying data science to generate high-quality, actionable insights to you. MSD has developed and continues to develop agricultural production data sets (referred to and defined herein as “Market Data”) that can be used to provide value back to you and other users of MSD Services, including actionable insights and high-quality, state-of-the art data analytics. Any data submitted by you or an Authorized User (such data referred to and defined herein as “User Data”), to MSD may be included in one or more aggregated data sets as part of MSD’s Market Data. If any such User Data is included in Anonymized Market Data, the data will first be “de-identified” by removing any and all Personally Identifiable Information before incorporating User Data into Anonymized Market Data.
3) Overview of the Services
a) The services are comprised of MSD’s software, systems, Market Data and Documentation available at the website www.mainstreetdata.co (herein collectively the “Services”). Please note MSD retains the right to change the Services at any time. While we will typically notify you of any change in the Services as circumstances permit, we retain the right to make such changes without notice. This includes suspension or termination of components of the Services, updates or revisions to current components of the Services, and/or offering additional components to the Services. If additional services are added, please be aware those additional services may be subject to additional and/or different terms. By accessing, using, or subscribing to those additional services, you consent to those additional and/or different terms in their entirety. If any provision in such additional and/or different terms conflicts with a provision in these Terms of Service, the additional/different terms will control for such new services.
4) Use of the Services, Restrictions and License Grants
a) Subject to the terms and conditions of this Agreement, MSD hereby grants to User, during the Term of this Agreement, a limited, nonexclusive and nontransferable right and license to access and use the Services for use in connection with your own agricultural operation (the “Permitted Use”), which includes the processing of your User Data. MSD or an authorized third party will enable User to access and use the Services through the use of a user name and password. User may register up to three Authorized User who shall be authorized to use User’s user name and password exclusively for the Permitted Use. User shall immediately communicate any loss, theft or misuse of user names or passwords to MSD in writing.
b) This license does not transfer to User any right, title or interest in or to the Services or any components thereof, except for the rights expressly granted herein.
c) User and its Authorized Users shall only use the Services for the Permitted Use and shall not disclose, release, distribute, or deliver the Services, or any portion thereof, to any third party without MSD’s prior written consent. Any purpose or use not specifically authorized herein is prohibited unless otherwise agreed to in writing by MSD. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, User and its Authorized Users shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Services or methods used to compile the Services, in whole or in part; (iv) remove any proprietary notices included within the Services; (v) publish, enhance, or display any compilation or directory based upon information derived from the Services; (vi) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vii) use the Services or any part thereof after the Term of this Agreement. MSD reserves all rights not expressly granted to User in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to User or any third party any intellectual property rights or other right, title, or interest in or to any or all of the Services.
d) Each of MSD and User represents and warrants that it has in place, and shall continue to implement, support and maintain and use all commercially reasonable legal, organizational, physical, administrative and technical measures, and security procedures to safeguard and ensure the security of the Services and User Data and to protect the same from computer viruses and any unauthorized access, disclosure, duplication, use, modification, or loss.
e) User grants to MSD a limited, non-exclusive, non-transferable license to store, access, use, modify, and transfer the User Data to the extent reasonably necessary to perform its obligations hereunder, provided that such does not limit or eliminate the requirement of MSD to comply with the provisions of Section (10) (Confidential Information) below, and which includes the right to transmit and disclose User Data and to third party service providers for administrative purposes, provided that such third party service providers are bound by confidentiality and use restrictions at least as strict as those set forth in this Agreement.
f) The parties acknowledge and agree that notwithstanding anything to the contrary in this Agreement or any ancillary agreements between the parties, MSD reserves, and User hereby grants to MSD, the non-exclusive, worldwide, perpetual right and license to use the User Data to create and use Anonymized Market Data for its business purposes, and the right to permit others to do so. For clarity, MSD’s business purposes may include any purpose permitted by law, including comparative data analysis, aggregated data analysis and development of other products or services utilizing the Anonymized Market Data.
5) Warranties and Agreements of the User:
a) As between you and MSD, you agree that MSD is the sole and exclusive owner of the Services and all MSD intellectual property.
b) You agree that you are using the Services only in connection with your own or your customer’s agricultural operations, and that you are NOT a Competitor of MSD, nor are you aiding, directly or indirectly, a Competitor of MSD by providing access to, or reporting on the functionality of, the Services.
c) Except as otherwise specifically set forth herein, User shall be solely responsible for: (a) its selection of the Services to achieve User’s intended results and the results obtained there from; (b) any data entry and loading of User Data; and (c) promptly notifying MSD of any problems or failures of the Services to perform in accordance with the Documentation.
f) You agree that you are exclusively responsible for all use of the Services by your Authorized Users and any use by or through the user names and passwords provided to you and your Authorized Users.
6) Acceptable Use Terms:
a) You agree to use the Services in a manner that complies with all applicable laws.
b) You agree, to the best of your knowledge and ability, to provide or transmit content and data that is true and accurate.
c) You agree not to provide or transmit content or data that is inappropriate or objectionable, including, but not limited to, content that a reasonable person would deem: abusive, deceptive, defamatory, hostile, illegal, indecent, obscene, offensive, profane or threatening.
d) You agree not to attempt to disrupt, impede, or prevent us from delivering the Services to other users and/or licensees, nor will you attempt to alter the Services, MSD’s websites, or MSD’s systems. This includes but is not limited to: transmitting or uploading malicious software code (such as malware or computer viruses), manipulating search engine results, attempting to hack another user’s account, attempting unauthorized contact with another user (such as spamming or phishing).
e) You agree not to use the Services to misuse, abuse, violate, infringe, or misappropriate any third party’s rights, including, but not limited to, intellectual property rights and privacy rights.
f) You agree not to use the Services in a manner that violates the terms and conditions of any device, software, network, or Internet Service Provider (ISP) used to access the Services.
g) You agree not to attempt to access another user’s account for any purpose, including transmitting content to another user’s account as the user.
h) You agree not to attempt to collect, store, and/or distribute any user content without obtaining the express consent of both the user and MSD via the information sharing protocols established in the Services. If no sharing consent is obtained, the transmission, transfer, or distribution of another’s content, including personal information, is strictly prohibited.
7) Subscription Registration.
a) You agree to register for a user account before using the Services. To complete registration you may be asked for information such as your full name, name of legal entity (if registering as a legal entity), and e-mail address. Additional information, such as payment information or identification numbers, may be requested.
b) You agree the information provided by you in the registration process is yours and is accurate and includes no misrepresentation(s) of your identity or authority.
c) Upon completion of registering your account, you will be asked to create a username and password to access the Services. You agree you will take reasonable means to keep the username and password confidential.
8) Content Submitted
b) You are responsible for the content in your user account, whether submitted by you or an Authorized User, and you alone are responsible for the accuracy of the information. Only you
are liable for any errors or omissions in the information you and your Authorized Users provided as User Data.
9) Intellectual Property.
User acknowledges that, as between User and MSD, MSD owns all right, title and interest, including all intellectual property rights, in and to the Services. User further acknowledges that: (a) the Market Data is an original compilation protected by United States copyright laws; (b) MSD has dedicated substantial resources to collect, manage and compile the Market Data; and (c) the Market Data and MSD benchmarks constitute trade secrets and Confidential Information of MSD. MSD may terminate this Agreement without advance notice to User or an opportunity for User to cure and without further obligation or liability/User acknowledges and agrees that it will be considered a material breach by User under this Agreement if User contests any of MSD’s right, title, or interest in or to the Market Data or MSD benchmarks, including without limitation, in a judicial proceeding anywhere throughout the world.
10) Confidential Information.
From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Without limiting the foregoing, for purposes of this Agreement, the Market Data will be deemed Confidential Information of MSD and User Data will be deemed Confidential Information of User. Confidential Information does not include information that, at the time of disclosure is: (i) available in the public domain in the form, arrangement and/or compilation as disclosed hereunder; (ii) known to the receiving party at the time of disclosure; (iii) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (iv) independently developed by the receiving party. MSD shall only disclose User’s Confidential as permitted herein, and User shall only disclose MSD’s Confidential Information as provided herein. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret, including Market Data and MSD benchmarks, as otherwise set forth herein, and as determined under applicable law, such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret.
11) Warranty Disclaimers, Damage Exclusions, & Liability Limitations
a) Authority. MSD represents and warrants that it owns all right, title, and interest in and to, or has sufficient rights in the Services, and all components thereof, to grant and provide the licenses and services as set forth in this Agreement.
b) Performance. MSD represents and warrants that during the Term, it will use commercially reasonable efforts to ensure that the Services will substantially perform in accordance with the Documentation, if any.
c) Right to Use Store and Process User Data. User represents and warrants to MSD that it owns, controls, or otherwise has all necessary rights in and to the User Data sufficient to grant and provide the license and permissions as set forth in this Agreement.
d) Improper Use. The warranties to User contained herein will apply only if the Services have been properly used by User in strict accordance with the terms and conditions of this Agreement and the Documentation. e) EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION (11), ALL SERVICES PROVIDED BY MSD ARE PROVIDED “AS-IS”, “WITH ALL FAULTS”, AND “AS-AVAILABLE”. MSD MAKES NO REPRESENTATION THAT THE SERVICES PROVIDED WILL SATISFY YOUR REQUIREMENTS OR OPERATE ON YOUR HARDWARE AND/OR SOFTWARE. MSD MAKES NO REPRESENTATION THAT THE SERVICES PROVIDED WILL BE SECURE, UNINTERRUPTED, OR FREE OF ERRORS ON ANY KIND. MSD EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR MERCHANTABILITY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. MSD MAKES NO REPRESENTATION OR WARRANTY FOR ANY THIRD-PARTY SERVICE, MATERIAL, OR CONTENT ASSOCIATED WITH OR AVAILABLE THROUGH THE SERVICES PROVIDED BY MSD.
f) MSD AND ITS OWNERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, AND AFFILIATES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCE OR UNDER ANY LEGAL THEORY FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS, LOST SALES, BUSINESS INTERRUPTION, OR ANY OTHER LOSS, RELATED TO, CONNECTED WITH, OR ARISING OUT OF THE USE OF THE SERVICES PROVIDED BY MSD.
g) THE AGGREGATE LIABILITY OF MSD RELATED TO, CONNECTED WITH, OR ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES PROVIDED BY MSD SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU, IF ANY, DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST INSTANCE OR OCCURRENCE THAT GAVE RISE TO THE LIABILITY.
H) IN JURISDICTIONS THAT DO NOT ALLOW LIMITATION OF LIABILITY FOR DAMAGES OR THE EXCLUSION OF IMPLIED WARRANTIES, MSD’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
a) MSD Indemnification.
i) MSD shall indemnify, defend, and hold harmless User from and against any and all losses,
damages, liabilities, or costs (including reasonable attorneys’ fees) (”Losses”) incurred by User resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that User’s Permitted Use of the Market Data infringes or misappropriates such third party’s US intellectual property rights, provided that User promptly notifies MSD in writing of the claim, cooperates with MSD, and allows MSD sole authority to control the defense and settlement of such claim.
ii) If such a claim is made or appears possible, User agrees to permit MSD, at MSD’s sole discretion, to (A) modify or replace any such infringing material to make it non-infringing, or (B) obtain rights to continue use. If MSD determines that none of these alternatives is reasonably available, MSD may terminate this Agreement, in its entirety or with respect to the affected part or feature of the Market Data, effective immediately on written notice to User.
iii) This Section (12)(a) will not apply to the extent that the alleged infringement arises from (A) use of the Market Data in combination with data, software, hardware, equipment, or technology not provided by MSD or authorized by MSD in writing or (B) User’s violation of this Agreement.
b) User Indemnification. User shall indemnify, hold harmless, and, at MSD’s option, defend MSD from and against any Losses resulting from any Third-Party Claim based on: (i) any claim that that MSD’s use of the User Data in the manner contemplated by this Agreement infringes or misappropriates such third party’s intellectual property rights; (ii) User’s negligence, willful misconduct or breach of this Agreement; or (Iii) User’s use of the Services or the Market Data in a manner not authorized by this Agreement, provided that User may not settle any Third-Party Claim against MSD unless such settlement completely and forever releases MSD from all liability with respect to such Third-Party Claim or unless MSD consents to such settlement in writing, and further provided that MSD shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
c) Sole Remedy. THIS SECTION (12) SETS FORTH USERS’S SOLE REMEDIES AND MSD’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR MARKET DATA INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
13) Governing Law; Submission to Jurisdiction.
This Agreement is governed by and construed in accordance with the internal laws of the State of Missouri 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 Missouri. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses or rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Missouri in each case located in the County of Jackson, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
14) Additional Terms
a) Force Majeure. You acknowledge and agree MSD is not liable for failing to perform or deliver the Services under this Agreement as the result of any event beyond its control. Events beyond its control would include, among other things, events such as acts of God, acts of governments, terrorism, riots, civil unrest, communication failures or disruptions (including loss of internet access), and cyberattacks.
b) Entire Agreement. This Agreement constitutes the entire and exclusive agreement between the parties and supersedes all other written or oral agreements.
c) Severability. If a provision of this Agreement is found to be invalid or unenforceable, in part or in whole, that provision will be enforced to the maximum extent possible and all other provisions of the Agreement will remain in force.
d) Waiver. The failure of either party to exercise or enforce any provision of this Agreement is NOT a waiver of the right to exercise or enforce the same provision, or any other provision of the Agreement, at any time in the future.
e) Cancellation & Termination.
i) This Agreement will remain in force until terminated as provided herein (the “Term”). You may cancel your account and stop using the Services at any time. Please contact us at firstname.lastname@example.org to notify us regarding your cancellation. Upon your written request, your User Data will be deleted and removed from our system within sixty (60) days of receipt by MSD of such written request. If you would like a copy of your User Data, within 72 hours of cancellation, you may either transfer a copy of that data or request in writing that we deliver you the data in a standard electronic format (processing and delivery fees may apply).
ii) Your access and use of the Services may be terminated if we reasonably believe you have breached these Terms of Service. We will attempt to notify you of such action and allow you to reply under most circumstances but retain the right to terminate your account without notice. Upon termination of your account, you will be prohibited from accessing the Services and we will take necessary steps to prevent your unauthorized access.
iii) Upon termination of this Agreement, the license granted hereunder will also terminate, and User shall cease using and delete, destroy, or return all copies of the Market Data and certify in writing to the MSD that the Market Data has been deleted or destroyed.
iv) Any rights, obligations, or required performance of the parties in this Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
f) Assignment. MSD may freely transfer or assign all of its rights or obligations under this Agreement. You may not transfer or assign your rights and obligations under these Terms of Service without our express written consent.
h) Notices. Other than notice of cancellation, which can be provided via email at email@example.com, all notices, requests, consents, claims, demands, waivers, and other communications hereunder to MSD (each, a “Notice”) must be in writing and addressed to MSD, at the address set forth on the first page of this Agreement (or to such other address that may be designated by MSD from time to time in accordance with this Section). Such Notices shall be provided by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). All notices, requests, consents, claims, demands, waivers, and other communications hereunder to User may be provided either in writing or by email, and addressed to MSD, at the address(es) provided in its subscription application. Except as otherwise provided in this Agreement, a notice is effective only: (i) upon receipt by the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
i) Certain Definitions. When used herein, the following terms have the meaning set forth:
i) “Authorized User” means employees of User, User’s temporary or contract personnel, and User’s consultants, advisors and ergonomists with a need to use the Services for limited, non-competitive purposes for the sole benefit of the User including (i) helping User set agricultural business goals, take steps to achieve those goals and assess if User is achieving those goals, (ii) determining whether the products and services used by User are being validated by the Services, and (iii) planning purposes related to the operations of the User.
ii) “Anonymized Market Data” means Market Data that has been “de-identified” by removing any and all Personally Identifiable Information, does not identify any individual or any particular business operation, and that no individual or particular business operation could be deduced from such Anonymized Market Data without the use of extraordinary means.
iii) “Documentation” means any on-line user manuals or help files for use and operation of the Services, or any other technical materials that have been provided to User by MSD containing specifications for the Services.
iv) “Market Data” means all data gathered by MSD, or developed by MSD, including that developed or gathered in connection with the performance or utilization of Services by the User under this Agreement.
v) “User Data” means all data residing on or available through the Services provided by or on behalf of User by its Authorized Users.