FOB END USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) is a binding agreement between you (“End User” or “you”) and Digital Grain Elevator, Inc. (“DGE” or “FOB”) and is subject to the terms and conditions of the Underlying Agreement (as defined below), if any. This EULA, together with the terms of the Underlying Agreement, if any, governs your use of the Subscription Service (defined below) made available to you by DGE.
BY CLICKING THE “AGREE” BUTTON OR OTHERWISE USING THE SUBSCRIPTION SERVICE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS EULA; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT, AND (C) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THIS EULA, DO NOT CLICK THE “AGREE” BUTTON AND DO NOT USE THE SUBSCRIPTION SERVICES.
1. Relationship. You are either using the Subscription Service through your Underlying Agreement or through the Underlying Agreement entered into by a customer of DGE. In either case, you agree to comply with the terms of the Underlying Agreement that apply to Users.
2. Definitions. Capitalized terms not otherwise defined herein shall have the following meanings:
- “Subscription Service” means the FOB application set forth in the Underlying Agreement, or otherwise provided by DGE to you, and the Software per the applicable subscription (“Supplier,” “Shipper,” or “Premium”).
- “Underlying Agreement” means the agreement between DGE and you or your company for the FOB Subscription Service.
3. Restrictions and Obligations.
- Restrictions. You shall not: (a) copy the Subscription Service; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Subscription Service; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Subscription Service or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Subscription Service, including any copy thereof; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Subscription Service, or any features or functionality of the Subscription Service, to any third party for any reason; (f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Subscription Service; (g) use the Subscription Service in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, nor upload any individually-identifiable information protected by state, federal, or international law (“PII”) into the Subscription Service or otherwise disclose PII to DGE; and (h) use the Subscription Service to (i) send or receive any material for which you have not obtained all necessary licenses and approvals, including from third parties, or which constitutes or encourages conduct that would be considered a criminal offense, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party in any country in the world; (ii) send or receive any material which is technically harmful (including computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data); (iii) intercept or attempt to intercept any communications transmitted by way of a telecommunications system; (iv) further any fraudulent purpose; (v) commit any act that would or does impose an unreasonable or disproportionately large load on DGE’s infrastructure; (vi) attempt to circumvent DGE’s security or network including to access data not intended for you, log into a server or account you are not expressly authorized to access, or probe the security of other networks (such as running a port scan); (vii) hack into or maliciously extract data from the Subscription Service; (viii) engage in any unlawful activity in connection with the use of the Subscription Service; or (ix) engage in any conduct which, in DGE’s exclusive reasonable opinion, restricts or inhibits any other customer from properly using or enjoying DGE’s products or services.
You further agree that you shall not, directly or indirectly:
(a) use the Subscription Service except as set forth in Section 1;
(b) combine the Subscription Service or any part thereof with, or incorporate the Subscription Service or any part thereof in, any other programs;
(c) use the Subscription Service or its derivative documentation for purposes of competitive analysis of the Subscription Service, the development of a competing product or service, or any other purpose that is to DGE’s commercial disadvantage.
2. Account Information. You warrant that all information contained in your FOB account is true, complete, and accurate and that you will promptly inform DGE of any changes to such information by updating the information in your account.
3. Passwords. The Subscription Services have tools that allow you to record and store information. You shall not share any username or password with any person or publicly disclose any username and password, or permit any third person to use your account You will be responsible for maintaining the security of your account, passwords (including but not limited to administrative and user passwords), and any files, data, text, links, media, suggestions, ideas, enhancement requests, feedback, recommendations, or other information or content that You submit via the Subscription Service (collectively, the “User Content”). You shall be solely responsible for all activity associated with your account, including any User Content, occurring with or without your knowledge or consent.
4. Compliance Measures.
The Subscription Services may contain technological copy protection or other security features designed to prevent unauthorized use of the Subscription Service, including features to protect against use of the Subscription Service:
(a) beyond the scope granted to pursuant to Section 1; or
(b) prohibited under Section 3.
You shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
5. Reservation of Rights. You do not acquire any ownership interest in the Subscription Service under this EULA, or any other rights thereto other than to use the Subscription Service in accordance with the grant in the Underlying Agreement, and subject to all terms, conditions, and restrictions, under this EULA. DGE and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Subscription Service, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto.
8. Third-Party Materials. The Subscription Service may display, include, or make available third-party content (including data, information, applications, and other products, services, and materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that DGE is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. DGE does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
9. Geographic Restrictions. The Subscription Service is provided from the United States. Certain Subscription Services and Content are provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access some or all of the Subscription Services and Content from outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access such Subscription Services or Content from outside the United States, you are responsible for compliance with local laws.
10. Term and Termination.
- The term of EULA commences when you first use the Subscription Service, and will continue in effect until terminated by you or DGE as set forth in this Section.
- You may terminate this EULA by ceasing all use of the Subscription Service.
- DGE may terminate this EULA at any time without notice if it ceases to support the Subscription Service, which DGE may do in its sole discretion, but in such case, you will not be charged for any period after termination. This EULA will terminate immediately and automatically without any notice if (a) the Underlying Agreement expires or is terminated, or (b) you violate Section 3. If you use or allow anyone else to use the Subscription Service in violation of this EULA, or otherwise breach this EULA, DGE may suspend your account or terminate this EULA in its sole discretion.
- Upon termination: (a) all rights granted to you under this EULA will also terminate; and (b) you must cease all use of the Subscription Service.
- Termination will not limit any of DGE’s rights or remedies at law or in equity.
11. Disclaimer of Warranties. THE SUBSCRIPTION SERVICE (INCLUDING ALL THIRD PARTY CONTENT CONTAINED THEREIN) IS PROVIDED “AS IS,” WITH ALL FAULTS AND DEFECTS, AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DGE, ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SUBSCRIPTION SERVICE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, DGE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SUBSCRIPTION SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. DGE DISCLAIMS ALL RESPONSIBILITY FOR ANY CONSEQUENCES ATTRIBUTABLE TO OR RELATED TO ANY USES, NONUSE, MISUSE, OR INTERPRETATION OF THE INFORMATION CONTAINED IN OR NOT CONTAINED IN THE SUBSCRIPTION SERVICE. DGE DOES NOT WARRANT THAT THE DATA CONTAINED IN THE SUBSCRIPTION SERVICE WILL BE ACCURATE, COMPLETE OR WITHOUT ERROR, OR THAT SUCH DATA WILL COMPLY WITH YOUR REQUIREMENTS. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SUBSCRIPTION SERVICE REMAINS WITH YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DGE OR ITS LICENSORS OR SERVICE PROVIDERS HAVE ANY LIABILITY FOR ANY SPECIAL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, BUSINESS PROFITS, BUSINESS INTERRUPTION, DATA, BUSINESS INFORMATION, OR GOODWILL, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RESULTING FROM THE EULA OR THE USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICE, REGARDLESS OF THE CAUSE OF ACTION, EVEN IF DGE IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND KNOWN DEFECTS. DGE’S MAXIMUM LIABILITY ARISING OUT OF OR AS A RESULT OF THIS EULA SHALL NOT EXCEED THE FEES PAID TO DGE FOR THE APPLICABLE SUBSCRIPTION SERVICE PURSUANT TO THE APPLICABLE UNDERLYING AGREEMENT UNDER WHICH THE LIABILITY AROSE IN THE 12 MONTHS BEFORE THE LIABILITY AROSE.
13. Indemnification. You agree to indemnify, defend, and hold harmless DGE, FOB, its licensors, and their respective officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Subscription Service or your breach of this EULA, including but not limited to the content you submit or make available through this Subscription Service.
- Waiver. No waiver of any term or condition of this EULA by DGE shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of DGE to assert a right or provision under this EULA shall not constitute a waiver of such right or provision.
- Severability. If any provision of this EULA is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the EULA will continue in full force and effect.
- Law and Venue. The parties agree to work cooperatively to resolve any dispute amicably at appropriate, mutually-determined management levels. If such resolution does not occur and a party wishes to escalate to a formal dispute resolution forum, such party must submit the dispute to binding arbitration at an agreed-upon site in Chicago, Illinois, under the then-prevailing rules of the American Arbitration Association. Notwithstanding the foregoing, either party may bring an action in court to enjoin actual or threatened infringement or misuse of intellectual property or other proprietary rights. If for any reason a claim proceeds in court rather than in arbitration, then you hereby consent to personal jurisdiction and exclusive venue in the courts situated in Chicago, Illinois, and hereby waive any right to jury trial, or to object to personal jurisdiction or venue. This EULA shall be governed by and construed in accordance with the laws of the State of Illinois, excluding all choice of law provisions. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS EULA OR THE SUBSCRIPTION SERVICE MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Force Majeure. DGE will not be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities.
- Independent Contractor. Nothing in this EULA shall be deemed or construed as creating a joint venture, partnership, agency, employment, fiduciary, or other form of joint enterprise relationship between the parties. Neither party nor their agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
- Export Regulation. The Subscription Service may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Subscription Service to, or make the Subscription Service or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Subscription Service available outside the US.
15. Assignment. Neither this EULA nor any rights conferred by this EULA may be assigned by you, in whole or part, whether voluntarily, by operation of law or otherwise, by you without the prior written consent of DGE, which consent DGE may withhold or condition in its sole discretion. Subject to the preceding sentence, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and assigns. Any attempted assignment by you other than in accordance with this Section shall be null and void.