GEOSYS PLATFORM - GENERAL TERMS AND CONDITIONS OF USE
EFFECTIVE AS OF JUNE 8, 2023
BY ACCESSING THE GEOSYS PLATFORM (AS DEFINED BELOW), YOU, ON YOUR OWN BEHALF AND ON BEHALF OF ANY OTHER ENTITY INDICATED IN YOUR SIGN-UP FORM OR PURCHASE ORDER (COLLECTIVELY, “CUSTOMER”), ARE AGREEING TO BE BOUND BY THESE GENERAL TERMS AND CONDITIONS (THIS “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. THIS AGREEMENT IS CONSIDERED AN OFFER BY GEOSYS-INT’L, INC. D/B/A EARTHDAILY AGRO (“EARTHDAILY AGRO”). CUSTOMER’S ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS AND THOSE SET FORTH IN ANY MUTUALLY EXECUTED PURCHASE ORDER (IF ANY). EARTHDAILY AGRO AGREES TO GRANT THE RIGHTS AS SET FORTH HEREIN AND IN ANY MUTUALLY EXECUTED PURCHASE ORDER, AND MAKE THE GEOSYS PLATFORM AVAILABLE TO CUSTOMER ONLY UPON THE CONDITION THAT CUSTOMER ACCEPTS THIS AGREEMENT.
WHEREAS, EarthDaily Agro provides access to the Geosys Platform and Content to its customers;
AND WHEREAS, Customer desires to access the Geosys Platform and Content, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
In this Agreement, all capitalized and undefined terms have the meanings set out in the attached Exhibit A.
2. ACCESS AND LICENSE
Purchase Order. The Parties may execute Purchase Orders providing for Customer’s access to and use of the Geosys Platform with a paid subscription. In the case of an individual executing a Purchase Order on behalf of Customer, that individual represents and warrants to EarthDaily Agro that he/she/they possess the right and authority to enter into this Agreement and such Purchase Order on behalf of Customer. Upon execution, each Purchase Order shall be deemed part of this Agreement.
Trial Access Subscription. In lieu of an executed Purchase Order with payment terms, EarthDaily Agro may grant Customer access to the Geosys Platform with a limited, free trial subscription for a period of up to thirty (30) calendar days, or as otherwise expressly indicated in the sign-up form used by Customer to access the Geosys Platform trial on EarthDaily Agro’s website (the “Trial Sign-Up Form”). In such case, the Trial Sign-Up Form on EarthDaily’s website shall be deemed to be the “Purchase Order” for the purposes of this Agreement. If a paid Purchase Order is subsequently executed by the Parties, it shall supersede and replace such Trial Sign-Up Form. For all trial access subscriptions, notwithstanding any other provision of this Agreement, Customer shall only use the Content and Geosys Platform for internal, non-commercial, evaluation purposes. Such evaluation use is limited to internal testing and assessment of the features, functionality, performance, and suitability of Geosys Platform and the Content for Customer’s or its own customers’ potential future use. The Trial Sign-Up Form may include other limitations on use, such as Download Quotas, APIs, limited coverage areas or inaccessible value-added products, which shall apply to Customer’s use of the Geosys Platform and Content, and will supersede any conflicting term of this Agreement until such time as a paid Purchase Order is executed by the Parties.
Access and Delivery. Subject to the terms and conditions of this Agreement, EarthDaily Agro will use commercially reasonable efforts to provide and make the Geosys Platform available to Customer via the passwords and network links or connections given to Customer, or as otherwise expressly agreed in the Purchase Order. Content will be deemed delivered when it is ﬁrst accessible via the Geosys Platform. Where an API is authorized by EarthDaily Agro to access the Geosys Platform, Customer shall only use such API in accordance with Documentation provided by EarthDaily Agro for that API. Provider sets and enforce limits on Customer’s use of APIs (e.g. number of API requests) in its sole discretion. Customer agrees not to circumvent, or attempt to circumvent, such limitations. Provider may monitor Customer’s use of APIs to ensure compliance with this Agreement.
License. Subject to the terms and conditions of this Agreement and an applicable Purchase Order, including any usage limits, Download Quotas or modified license terms specified in a Purchase Order, which supersede this clause, EarthDaily Agro grants to Customer and its Authorized Users a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable right and license, solely for the internal use of Customer, to: (i) access and use the Geosys Platform and Documentation, and view the Content through the Geosys Platform; (ii) download, store, display, and print the Content; and (iii) use, alter or modify the Content to produce VAPs and/or Derivative Products; in each case as set out herein and in a Purchase Order solely during the Term, provided that Customer shall be permitted to continue to use any Derivative Products that were created during the Term in perpetuity.
Use Restrictions. Customer shall not use the Geosys Platform, Content or Documentation (collectively, the “Licensed Material”) for any purposes beyond the scope of the access granted in this Agreement, unless expressly and specifically permitted in a Purchase Order. For clarity, unless permitted in a Purchase Order, Customer shall not, directly or indirectly, and shall not permit any Authorized User to: (i) copy, modify, or create derivative works of the Geosys Platform, in whole or in part; (ii) directly or indirectly, or permit any third party to, rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Material, any VAP or any Derivative Product to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive the algorithms, databases, or data structures or gain access to any software component of the Licensed Material, in whole or in part; (iv) remove, bypass, or circumvent any electronic or other form of protection included in the Licensed Material; (v) remove any proprietary, confidentiality or copyright notices from the Licensed Material; or (v) use the Licensed Material, any VAP or any Derivative Product 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.
Suspension. Notwithstanding anything to the contrary in this Agreement, EarthDaily Agro may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Geosys Platform if: (i) EarthDaily Agro reasonably determines that (A) there is a threat or attack on the Geosys Platform, (B) Customer's or any Authorized User's use of the Geosys Platform disrupts or poses a security risk to the Geosys Platform or to any other customer or vendor of EarthDaily Agro, (C) Customer, or any Authorized User, is using the Geosys Platform for fraudulent or illegal activities, (D) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, (E) EarthDaily Agro's provision of the Geosys Platform to Customer or any Authorized User is prohibited by applicable Law; or (F) Customer’s usage exceeds the amount specified in a Purchase Order or in this Agreement, unduly burdens Geosys Platform, or is otherwise inconsistent with normal usage; (ii) any vendor of EarthDaily Agro has suspended or terminated EarthDaily Agro's access to or use of any third-party services or products required to enable Customer to access the Geosys Platform; or (iii) in accordance with Section 4(a) regarding Fees (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). EarthDaily Agro shall use commercially reasonable efforts to contact Customer and/or provide written notice of any Service Suspension to Customer to attempt to resolve the matter and provide updates regarding resumption of access to the Geosys Platform following any Service Suspension. EarthDaily Agro shall use commercially reasonable efforts to resume providing access to the Geosys Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. EarthDaily Agro will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. EarthDaily Agro may charge Customer, and Customer will pay EarthDaily Agro’s costs associated with any misuse described in clause (i)(F) above if Customer fails to cure such misuse in a timely manner, not to exceed one (1) business day after EarthDaily Agro’s initial notice to Customer.
Geosys Platform Updates. EarthDaily Agro reserves the right to modify, update, or discontinue the products and services included in the Geosys Platform (including any portions or features) at any time, without liability. EarthDaily Agro will use reasonable efforts to notify Customer of the modification, update, or discontinuation. If EarthDaily Agro discontinues a material product or service in its entirety, EarthDaily Agro may, at its discretion, provide Customer with a pro rata refund for any prepaid but unused Fees applicable to such product or service.
Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, EarthDaily Agro may monitor Customer's use of the Geosys Platform and collect and compile Aggregated Statistics. As between EarthDaily Agro and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by EarthDaily Agro. Customer acknowledges that EarthDaily Agro may compile Aggregated Statistics based on Customer Data input into the Geosys Platform. Customer agrees that EarthDaily Agro may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law, provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
3. CUSTOMER RESPONSIBILITIES
General. Customer is responsible and liable for all uses of the Licensed Material or Third-Party Products resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement, if taken by Customer, will be deemed a breach of this Agreement by Customer. Customer shall use all reasonable efforts to make all Authorized Users aware of this Agreement's provisions applicable to such Authorized User's use of the Licensed Material Third-Party Products and shall cause Authorized Users to comply with such provisions.
Third-Party Products. EarthDaily Agro may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through and licensing terms, which will be indicated on the Geosys Platform or included with such imagery data, as applicable. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
4. FEES AND PAYMENT
Fees. Customer shall pay EarthDaily Agro the fees ("Fees") as set forth in each Purchase Order (except in the case of a free trial subscription, for which no fees are charged) without, in each case, withholding, set-off or deduction. Unless otherwise expressly set out in a Purchase Order, Customer shall make all payments hereunder in United States Dollars on or before the due date set forth in the applicable Purchase Order, or if no due date is specified, then within thirty (30) days from the billing date specified in a Purchase Order. Customer shall make all payments hereunder by wire transfer to the account communicated to Customer in writing, unless otherwise stated in the Purchase Order. If Customer fails to make any payment when due, without limiting EarthDaily Agro's other rights and remedies: (i) EarthDaily Agro may charge interest on the past due amount at the rate of eighteen percent (18%) per annum or, if lower, the maximum amount permitted under applicable Law; (ii) Customer shall reimburse EarthDaily Agro for all costs incurred by EarthDaily Agro in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, EarthDaily Agro may suspend Customer's and its Authorized Users' access to any portion or all of the Geosys Platform and Content until such amounts are paid in full.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales taxes, value added taxes, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, provincial, territorial, or local governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on EarthDaily Agro's income.
Fee Audits. Not more than twice per year, EarthDaily Agro may perform an audit of the Customer’s records associated with use of the Licensed Material, which may be conducted either by EarthDaily Agro or by a third-party independent auditor selected by EarthDaily Agro. Such audit shall be conducted upon prior notice to Customer of not less than ﬁve (5) business days during Customer’s regular business hours. If the results of an audit show an underpayment of Fees to EarthDaily Agro, Customer shall pay the underpayment to EarthDaily Agro within ﬁve (5) business days of notice thereof, subject to payment of interest set forth in Section 4(a) above, and if the results of the audit show an underpayment of ﬁve percent (5%) or more of the Fees, then Customer shall also reimburse EarthDaily Agro for the reasonable costs of the audit.
5. 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 orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's (and in the case of EarthDaily Agro, EarthDaily Agro’s Affiliates and each of such Affiliate’s) officers, directors, employees and advisors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) 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, if permitted by applicable Law, first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the expiry of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (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 subject to trade secret protection under applicable Law.
6. INTELLECTUAL PROPERTY; PERSONAL INFORMATION; FEEDBACK
EarthDaily Agro IP. Except for the limited license granted under Section 2 (Access and License) of this Agreement or in a Purchase Order, EarthDaily Agro (or its licensor in the case of certain Content) retains all right, title, and interest, including all Intellectual Property Rights, in and to the Licensed Materials and all other EarthDaily Agro IP. All rights not expressly granted in this Agreement are hereby reserved by the respective Parties. With respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. The following copyright notice, or such other copyright notice as EarthDaily Agro may advise Customer, must be conspicuously displayed alongside the Content, or any portion thereof: “© EarthDaily Agro [Year of Acquisition]. All Rights Reserved.”
Customer Data. EarthDaily Agro acknowledges that, as between EarthDaily Agro and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to EarthDaily Agro a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data solely as may be necessary for Customer to access, and EarthDaily Agro to operate, the Geosys Platform, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
Feedback. If Customer or any of its Authorized Users, employees, agents or contractors sends or transmits any communications or materials to EarthDaily Agro by mail, email, telephone, or otherwise, suggesting or recommending changes to the EarthDaily Agro IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), EarthDaily Agro is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to EarthDaily Agro on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and EarthDaily Agro is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although EarthDaily Agro is not required to use any Feedback.
EarthDaily Agro Indemnification of Customer.
- EarthDaily Agro shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable legal fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Licensed Material, or any use of the Licensed Material in accordance with this Agreement, infringes or misappropriates such third party's Canadian or United States patents, trade-marks or copyrights, provided that Customer promptly notifies EarthDaily Agro in writing of the claim, cooperates with EarthDaily Agro, and allows EarthDaily Agro sole authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Customer agrees to permit EarthDaily Agro, at EarthDaily Agro's sole discretion, to (A) modify or replace the Licensed Material, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If EarthDaily Agro determines that neither alternative is reasonably available, EarthDaily Agro may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
- This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Licensed Material in combination with data, software, hardware, equipment, technology or other intellectual property not provided by EarthDaily Agro or authorized by EarthDaily Agro in writing; (B) modifications to the Licensed Material not made by EarthDaily Agro; (C) Customer Data; or (D) Third-Party Products. This Section 8(a) sets forth Customer’s sole remedies and EarthDaily Agro’s sole liability for any actual or threatened claims that the Licensed Material infringes, misappropriates or otherwise violates any Intellectual Property Rights of any third-party.
Customer Indemnification. Customer shall indemnify, hold harmless, and, at EarthDaily Agro's option, defend EarthDaily Agro from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights, and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Licensed Material in a manner not authorized by this Agreement or otherwise contrary to any applicable Law (iii) infringement of any third-party rights resulting from Customer’s use of the Licensed Material (other than Third-Party Claims to be indemnified by EarthDaily Agro pursuant to Section 8(a)); (iv) use of the Licensed Material in combination with data, software, hardware, equipment, technology or other intellectual property not provided by EarthDaily Agro or authorized by EarthDaily Agro in writing; or (v) modifications to the Licensed Material not made by EarthDaily Agro; provided, in each case, that Customer may not settle any Third-Party Claim against EarthDaily Agro unless EarthDaily Agro consents to such settlement, and further provided that EarthDaily Agro will 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.
9. LIMITATION OF LIABILITY
Unlimited Liability. Neither Party will exclude or limit its liability for damages resulting from: (i) unauthorized use or disclosure of Confidential Information; (ii) breach or violation of EarthDaily Agro’s Intellectual Property Rights; (iii) either Party’s indemnity obligations under this Agreement; (iv) death or bodily injury arising from either Party’s negligence or willful misconduct; (v) any failure by Customer to pay any Fees due under the Agreement; or (vi) any other liability which cannot be excluded or limited by applicable Law.
Liability Cap. SUBJECT TO SECTION 9(A), (I) IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE GREATER OF (A) THE TOTAL AMOUNTS PAID TO EARTHDAILY AGRO UNDER THE APPLICABLE PURCHASE ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM AND (B) US$100 (ONE HUNDRED UNITED STATES DOLLARS); AND (II) IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT PRODUCT IS DEPENDENT ON DATA ACQUIRED FROM SATELLITE IMAGING SYSTEMS, SUBJECT TO REGULATORY LEGISLATION AND RULINGS, AND INVOLVING A SIGNIFICANT DEGREE OF RISK OF A SYSTEM FAILURE, INCLUDING EQUIPMENT OR SOFTWARE FAILURE OR IMPAIRED PERFORMANCE. EARTHDAILY AGRO WILL NOT BE LIABLE TO CUSTOMER FOR ANY COSTS OR DAMAGES CAUSED BY ANY SYSTEM FAILURE, INCLUDING, WITHOUT LIMITATION, FAILURE, DELAY, OR LIMITATION OF THE SYSTEM OR ANY COMPONENT THEREOF. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. TERM AND TERMINATION
Term. The term of this Agreement begins on the Effective Date of the Purchase Order (or in the case of a free trial subscription, on the date that EarthDaily Agro first grants access to the Geosys Platform to Customer) and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect until the termination or end date specified in such Purchase Order (or in the case of of a free trial subscription, on the later of thirty (30) calendar days thereafter or such later date that EarthDaily Agro may communicate to Customer in writing) (the "Term").
Termination. In addition to any other express termination right set forth in this Agreement
- (i) EarthDaily Agro may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after EarthDaily Agro's delivery of written notice thereof; (B) breaches any of its obligations under Sections 2(b) (Trial Access Subscription), 2(d) (License), 2(e) (Use Restrictions), 5 (Confidential Information), 6(a) (EarthDaily Agro IP), 8(b) (Customer Indemnification), or 11(i) (Compliance with Laws), or in the case of a free trial subscription, Section 2(b) (Trial Access Subscription); (C) 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; (D) makes or seeks to make a general assignment for the benefit of its creditors; or (E) 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; or
- (ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured sixty (60) days after the non-breaching Party provides the breaching Party with written notice of such breach.
Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Geosys Platform, Content and any other EarthDaily Agro IP and, without limiting Customer's obligations under Section 5 (Confidential Information), Customer shall delete, destroy, or return all copies of the EarthDaily Agro IP and certify in writing to the EarthDaily Agro that the EarthDaily Agro IP has been deleted or destroyed (if requested), except as expressly permitted by a Purchase Order. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
Survival. Sections 2(e) (Use Restrictions), 2(f) (Suspension), 2(h) (Aggregated Statistics), 3 (Customer Responsibilities), 4(b) (Taxes), 4(c) (Fees), 5 Confidential Information), 6 (Intellectual Property), 7 (Warranty), 8 (Indemnification), 9 (Limitation of Liability), 10(c) (Effect of Expiration), this Section 10(d) and Section 11 (Miscellaneous), as well as any terms in a Purchase Order that are expressly identified as surviving termination, shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, including any Purchase Orders, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersede all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
Order of Precedence. In the event of any inconsistency between the statements made in the body of this Agreement, its Exhibits, a Purchase Order, and any other documents incorporated herein by reference, the following order of precedence governs, except where expressly and specifically stated herein: (i) this Agreement, excluding its Exhibits; (ii) the Exhibits to this Agreement; (iii) the Purchase Order; and (iv) any other documents incorporated herein by reference.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the applicable Purchase Order, or in the case of a free trial access subscription, the Trial Sign-Up Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email (in each case, with confirmation of transmission) if sent during the addressee's normal business hours, and on the next business day if sent after the addressee's normal business hours; and (d) on the second business day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
Force Majeure. Except for Customer’s payment obligations, in no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, epidemics, pandemics, including the 2019 coronavirus disease and its variants (COVID-19) pandemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, unavailability of necessary utilities or raw materials, Internet service provider failures or delays, denial of service attacks, or passage of Law or any action taken by a governmental or public authority, including imposing an embargo.
Amendments and Modifications. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Governing Law and Disputes. This Agreement and all related documents, including all Purchase Orders, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the Province of British Columbia without regard to conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods. All claims, controversies or disputes arising out of or in connection with this Agreement, including any Purchase Order, or in respect of any legal relationship associated with or derived from this Agreement, including any Purchase Order, shall be administered by the ADR Institute of British Columbia and be finally resolved by a single arbitrator under the Rules of the ADR Institute of British Columbia. The place of arbitration shall be Vancouver, British Columbia, Canada. The language of the arbitration shall be English. The arbitrator shall have the authority to award temporary, preliminary and permanent injunctive and equitable relief in the arbitration (in addition to any monetary relief); provided, however, that either Party may opt to seek equitable relief, including emergency injunctive relief, at any time, from a court of competent jurisdiction.
Compliance with Laws and Regulations. The Geosys Platform and other Licensed Material provided through or in connection with the Geosys Platform may be subject to restrictions under applicable Law, including regulations of import/export and dealing with embargoed countries or sanctioned/denied parties, and licensing or regulations applicable to Earth observation imagery. Customer shall comply with all applicable licensing, sanctions, and export and import Laws, restrictions and regulations, and will not, directly or indirectly, assist or facilitate others in non-compliance with any of the foregoing or any other applicable Laws. From time to time, EarthDaily Agro may be compelled by governmental authorities to suspend or limit its operations, including the collection or distribution of Content or other Licensed Material of, relating to or in certain areas. Any such suspension or limit shall not be considered a breach of this Agreement by EarthDaily Agro or give rise to any liability to Customer.
Assignment. Customer may not assign or otherwise transfer any of its rights or delegate or otherwise transfer any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of EarthDaily Agro. Any purported assignment, transfer or delegation in violation of this Section will be null and void. No assignment, transfer or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and enures to the benefit of the Parties and their respective permitted successors and assigns. EarthDaily Agro may assign, subcontract or delegate any of its rights and obligations under this Agreement or any Purchase Order.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Sections 5 (Confidential Information), or 6 (Intellectual Property), or, in the case of Customer, Sections 2(b) (Trial Access Subscription), 2(d) (License) or 2(e) (Use Restrictions), 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 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.
Counterparts. A Purchase Order may be executed in original or electronic .PDF counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same agreement.
EXHIBIT A - DEFINITIONS
"Affiliate” means an entity controlling, controlled by, or under common control of an entity, where “control” means ownership of at least fifty percent (50%) of the equity or beneficial interest of such entity.
"Aggregated Statistics" means data and information related to Customer's use of the Geosys Platform that is used by EarthDaily Agro in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Geosys Platform.
“API” means an application programming interface used to access the Geosys Platform, and associated software.
"Authorized User" means Customer's direct employees and contractors, who are authorized by Customer to access and use the Geosys Platform under the rights granted to Customer pursuant to this Agreement and a Purchase Order. To the extent Customer purchases access for one or more of its Affiliates pursuant to a Purchase Order, the term Authorized User shall be deemed to include the employees, consultants, contractors, and agents of such expressly identified Affiliate(s).
"Confidential Information" has the meaning set forth in Section 5.
“Content” means any satellite or Earth observation imagery or imagery data and any information products, analyses, tools and data generated from or integrated with such imagery or imagery data that are made available to Customer via the Geosys Platform. “Content” does not include Third-Party Products.
"Customer Data" means, other than Aggregated Statistics or Feedback, any information, data, and other content, in any form or medium, that is submitted, posted, or otherwise first transmitted by or on behalf of Customer or an Authorized User via the Geosys Platform.
“Derivative Product” means any unique derivative product or information developed by Customer from the Content which does not contain any imagery data from the Content and is irreversibly modified and uncoupled from the Content.
"Documentation" means EarthDaily Agro's user manuals, handbooks, end user documentation and guides relating to the Geosys Platform provided by EarthDaily Agro to Customer either electronically, including by URL link, or in hard copy form, as they may be updated or amended from time to time.
"Download” means any download of Content from the Geosys Platform, using Geosys Platform’s designated functionality for such data transfer.
“Download Quota” means the maximum amount of Downloads permitted by Customer during the Term or portion thereof, which shall be expressly set out in each applicable Purchase Order and may be stipulated in a Trial Sign-Up Form, including the applicable units of measure.
"EarthDaily Agro IP" means the Licensed Material, and any and all intellectual property otherwise provided or made available to Customer or any Authorized User in connection with the Geosys Platform, or generated, reduced to practice or otherwise developed by EarthDaily Agro in the course of providing access to the Geosys Platform, including all ideas, deliverables, know-how, concepts, inventions, discoveries, developments, productions, processes, improvements, source and object code, data, models, equations, studies, calculations, solutions, reports, drawings, process flows, modifications and/or adaptations of existing software and any other intellectual property, together with all Intellectual Property Rights in each of the foregoing. For the avoidance of doubt, EarthDaily Agro IP includes Aggregated Statistics and any information, data, or other content derived from EarthDaily Agro's monitoring of Customer's access to or use of the Geosys Platform, but does not include the Customer Data or Third-Party Products.
"Feedback" has the meaning set forth in Section 6(d).
"Fees" has the meaning set forth in Section 4(a).
“Geosys Platform” means the application programming interface and graphical user interface that is made available to Customer under a Purchase Order or Trial Sign-Up Form for Customer to access and use Content, and which includes tools such as searching, viewing, manipulating, analyzing and downloading Content and Third-Party Products.
“Intellectual Property Rights” means all: (a) works of authorship, copyrights, mask works, copyright and mask work registrations and applications; (b) industrial designs and any registrations and applications therefor; (c) trade secrets, including inventions, manufacturing secrets, or secret processes; (d) trade names, logos, trademarks and service marks and any registrations and applications therefor; and (e) patents and applications for patents, wherever registered and applied for.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, provincial, state, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Licensed Material” has the meaning set forth in Section 2(e).
"Losses" has the meaning set forth in Section 8(a)(i).
"Notice" has the meaning set forth in Section 11(c).
"Party” means either Customer or EarthDaily Agro, and “Parties” means both, collectively.
“Purchase Order” means an order for Customer’s purchase of access to the Geosys Platform, which is subject to the terms and conditions of this Agreement. As noted in Section 2(b), in the case of Customer accessing the Geosys Platform through a free trial access subscription, the Trial Sign-Up Form shall function as the Purchase Order and references herein to the Purchase Order shall be deemed to refer to the Trial Sign-Up Form, until such time as Customer and EarthDaily Agro enter into a paid Purchase Order that supersedes the trial access or the trial access expires.
"Service Suspension" has the meaning set forth in Section 2(f).
"Term" has the meaning set forth in Section 10(a).
"Third-Party Claim" has the meaning set forth in Section 8(a)(i).
"Third-Party Products" means any third-party products provided with or incorporated into the Geosys Platform, as they may be offered from time to time, such as satellite imagery that may be owned by and licensed from a third party.
“Trial Sign-Up Form” has the meaning set forth in Section 2(b).
“Value-Added Product” or “VAP” means any unique product generated by Customer that both (i) contains source imagery data from the Content (including a reasonable facsimile thereof) and (ii) has been materially modified through higher processing, technical manipulations, and/or the integration of additional data.