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* Terms of Agreement
IMPORTANT PLEASE READ CAREFULLY
This Agreement for Software and Services along with all materials referenced herein ("Agreement") is a legal agreement between a person, entity, or organization ("User") and the Council on Dairy Cattle Breeding, an Ohio nonprofit corporation ("CDCB") permitting User to access and use, subject to the terms of this Agreement, (i) CDCB's software identified on the license agreement page, and accompanying documentation provided electronically ("Software") and (ii) services relating to User's access and use of the Software or otherwise resulting from this Agreement, including the provision of a website and database, content therein, and information generated therefrom or otherwise received by User from accessing and/or using the Software, including without limitation, reports, data, numeric results, scores, evaluations, predictions, results, and hardware and software relating thereto (collectively, "Services").
USER MUST READ THIS AGREEMENT CAREFULLY BEFORE INDICATING ACCEPTANCE AT THE END BY CLICKING THE "I ACCEPT" BUTTON. IF USER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, CLICK ON THE "I DO NOT ACCEPT" BUTTON AT THE END OF THIS AGREEMENT AND USER WILL NOT BE PERMITTED TO ACCESS AND USE THE SOFTWARE AND SERVICES. INSTEAD, PLEASE CONTACT CDCB TO DETERMINE WHETHER THE SOFTWARE AND SERVICES MAY BE PURCHASED OR RECEIVED BY NON-ELECTRONIC MEANS.
1. LICENSE GRANT. Subject to the terms of this Agreement, CDCB grants User a nonexclusive, nontransferable license to access and use the Software and Services without the right to sublicense such rights, provided User unconditionally agrees to access and use the Software and Services in accordance with this Agreement ("License"). Under the License, User may print out, or otherwise make, printed copies of the reports, data, numeric results, scores, evaluations, predictions, work product and other materials resulting from the Services (collectively, "Reports"). Any such Reports are provided as part of the Services, and the defined term "Services" as used in this Agreement includes the defined term "Reports" for all purposes. Any updates, modifications, enhancements or new versions of the Software and Services provided or made available to User by CDCB, in accordance with Section 15 of this Agreement, shall be considered Software and Services subject to this Agreement. CDCB may at any time and for any reason elect to modify, discontinue, delete or restrict any aspect or feature of the Software and Services without notice to User or any liability to CDCB or any CDCB Party (as defined in Section 2); however, CDCB agrees to make commercially reasonable efforts to provide User with prior notice of any such changes.
2. DISCLAIMERS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SOFTWARE AND SERVICES ARE PROVIDED "AS-IS" AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CDCB AND ITS MEMBERS, DIRECTORS, OFFICERS, LICENSORS, SUBCONTRACTORS AND AGENTS ("CDCB PARTIES") DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND ACCURACY; (B) NEITHER CDCB NOR ANY CDCB PARTY WARRANTS THAT THE SOFTWARE AND SERVICES ARE OR WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (C) USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF CDCB'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (D) EACH OF CDCB AND THE CDCB PARTIES DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE REPORTS.
3. ASSUMPTION OF RISK. USER ASSUMES ALL RISK AND LIABILITY FOR THE USE OF THE SOFTWARE AND SERVICES, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, HERD MANAGEMENT, CULLING, AND BREEDING DECISIONS, DECISIONS RELATED TO HEALTH DATA, SEMEN AND ANIMAL SALES AND PURCHASES, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY CDCB, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE SOFTWARE AND SERVICES. EACH OF THE CDCB PARTIES SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFOR.
4. LIMITATIONS ON LIABILITY. THE TOTAL LIABILITY OF CDCB AND THE CDCB PARTIES IN THE AGGREGATE TO USER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, AND SERVICES WILL BE LIMITED TO THE PAYMENTS RECEIVED FROM USER WITH RESPECT TO THE SPECIFIC USE OF THE SOFTWARE OR SERVICES THAT IS ALLEGED TO HAVE RESULTED IN LIABILITY TO USER. CDCB AND THE CDCB PARTIES SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, OR SERVICES, WHETHER OR NOT CDCB AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE). CDCB AND THE CDCB PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM ALTERATION, DESTRUCTION OR LOSS OF ANY DATA OR INFORMATION INPUT, GENERATED OR OBTAINED FROM ACCESS OR USE OF THE SOFTWARE AND SERVICES, WHETHER OR NOT CDCB AND THE CDCB PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF DAMAGES AND LIABILITIES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CDCB AND USER, AND THE PRICING FOR THE SOFTWARE AND SERVICES REFLECTS SUCH LIMITATIONS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES (SUCH AS CONSEQUENTIAL OR INCIDENTAL DAMAGES), OR THE EXCLUSION OF IMPLIED WARRANTIES AND LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, THE ABOVE LIMITATIONS MAY NOT APPLY TO USER.
6. USER REPRESENTATIONS AND WARRANTIES. User represents and warrants to CDCB that this Agreement shall be binding on User, and, unless User is an individual, User represents and warrants that this Agreement was executed by an authorized signatory of User with the authority to enter into binding agreements on behalf of User.
7. PROPRIETARY RIGHTS. The Software and Services are protected by applicable United States and foreign laws and treaties, including copyright laws and treaty provisions. CDCB or its licensors own all rights, title and interests in the Software and Services, including trade secrets, patents, copyrights and database rights, and the Software and Services shall remain the sole and exclusive property of CDCB or its licensors. Except as provided in Section 1 of this Agreement, or by other agreement with CDCB, User has no, and is not granted, any right, title, interest or license in the Software or Services.
8. RESTRICTIONS ON USE.
a. Software and Services. Except as otherwise expressly provided in this Agreement, User agrees to: (i) only use the Software and Services in the manner, and for the purposes, expressly specified in this Agreement; (ii) not decompile, disassemble, analyze or otherwise examine the Software and Services for the purpose of reverse engineering (except to the extent this restriction is expressly prohibited by applicable law); (iii) not delete or in any manner alter any notices, disclaimers or other legends contained in the Software and Services or appearing on any screens, Reports, or other materials obtained by User through use of the Software and Services ("Notices"); (iv) reproduce and display all Notices on Reports User makes, in accordance with this Agreement; (v) not provide service bureau facilities or commercial time-sharing services to any third party or supporting operations for any third party through the access or use of the Software or Services; (vi) not attempt to access any systems, programs or data of CDCB or any CDCB Party that are not licensed under this Agreement, or otherwise made available by CDCB or a CDCB Party for public use; (vii) not copy, reproduce, republish, upload, post, transmit, or distribute the Software or Services, or any portion thereof, or facilitate or permit a third party to do so, without the written consent of CDCB; (viii) not use any device or software to interfere or attempt to interfere with the proper operation of the Software and Services; (ix) not ship, transmit, transfer, or export the Software and Services into any country or use the Software and Services in any manner prohibited by United States export laws, restrictions or regulations; (x) not use the Software and Services in any manner that competes with the CDCB; and (xi) abide by all applicable local, state, national and international laws and regulations.
b. Reports. User agrees and understands that any Reports may only be used by User for its internal business purposes to examine, review and otherwise analyze its operations, and may not be used by, disclosed to, represented to, or otherwise communicated to any third party for any other purpose except as contemplated by CDCB's then current Fee Schedule for Genomic Evaluation and then only if all applicable Fees are paid by User. User may not represent itself as accredited, certified or recognized, as applicable by CDCB or any CDCB Party, based on Reports.
c. Attribution. To the extent User is authorized under this Agreement or otherwise in writing to disclose or communicate Services or Reports to a third party, User shall ensure that any such disclosure includes recognition and acknowledgement of CDCB as the origin of such Services or Reports and any related terminology, including Net Merit, NM$, Fluid Merit, FM$, Cheese Merit, CM$, or other similar terminology developed by CDCB.
9. USER ACCESS DATA. User agrees that CDCB and the CDCB Parties are permitted to access any information or data User inputs or provides while accessing or using the Software and Services (collectively, "User Access Data"), for the sole purpose of ensuring proper access and use of the Software and Services by User in accordance with this Agreement and to maintain and troubleshoot Software and Services. Following User's submission of User Access Data to CDCB, CDCB has access to such User Access Data in accordance with this Agreement. Subject to the terms and conditions of this Agreement, CDCB may store and otherwise maintain User Access Data in its discretion, and CDCB shall follow the same archival procedures for User Access Data as CDCB employs for its own data, as modified from time to time in CDCB's discretion. In the event of any loss or damage to User Access Data, User's sole and exclusive remedy shall be for CDCB to use commercially reasonable efforts to replace or restore the lost or damaged User Access Data from the latest backup of such User Access Data which CDCB has maintained in accordance with its standard archival procedures.
10. CONFIDENTIALITY. User acknowledges that the Software and Services constitute and contain confidential, proprietary and copyrighted information and subject matter of CDCB and the CDCB Parties ("Confidential Information"). Except as expressly permitted under this Agreement, User agrees to not, directly or indirectly, without CDCB's prior written consent: (a) use the Confidential Information for any purpose; (b) divulge, discuss, provide, transmit, copy, make available or otherwise communicate the Confidential Information to a third party; or (c) permit any third party to use such Confidential Information. "Confidential Information" shall not include information that, as shown by competent evidence: (w) is in or enters the public domain without breach of this Agreement; (x) was possessed by User prior to first receiving it from CDCB or a CDCB Party; (y) was developed by User independently and without use of or reference to the Confidential Information; or (z) was received by User from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Notwithstanding the foregoing, each party shall be permitted to disclose Confidential Information of the other party if such disclosure is required by law, provided that the party required to disclose Confidential Information of the other party shall give prompt notice of such requirement to the other Party so it will have the opportunity to seek a protective order or other appropriate remedy and cooperate in the other party's attempts to obtain confidential treatment of such Confidential Information.
11. TRADENAMES AND TRADEMARKS. This Agreement does not grant to any party a license to use any trademark, trade name, or logo of the other party, and each party recognizes that the trademarks, trade names, and logos of the other party represent valuable assets of that party and that substantial recognition and goodwill are associated with such trademarks, trade names, and logos. Each party hereby agrees that it shall not use or permit any third party to use, at any time, the other party's trademarks, trade names, or logos.
12. INJUNCTIVE RELIEF. Each party acknowledges that a violation of Section 8, Section 10, or Section 11 of this Agreement would cause irreparable harm to the other party for which no adequate remedy at law exists and each party therefore agrees that, in addition to any other remedies available, the aggrieved party shall be entitled to seek injunctive relief to enforce the terms of Section 8, Section 10, or Section 11. The prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys' fees incurred because of any such legal action.
13. HARDWARE AND SERVICE REQUIREMENTS. User is solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services (such as long distance phone charges) not owned or operated by or on behalf of CDCB, that allow User to access and use the Software and Services, and for all expenses relating thereto (plus any applicable taxes). User agrees to access and use the Software and Services in accordance with any and all operating instructions or procedures that may be issued by CDCB, and amended by CDCB from time to time. CDCB and the CDCB Parties do not make any commitments with respect to use or performance of the Software and Services with any browsers.
14. PERFORMANCE. User understands and agrees that the operation and availability of the systems used for accessing and interacting with the Software and Services, including, the public telephone, computer networks and the Internet or to transmit information, whether or not supplied by User or CDCB, can be unpredictable and may, from time to time, interfere with or prevent the access to, or the use or operation of, the Software and Services. CDCB and the CDCB Parties are not in any way responsible for any such interference with, or prevention of, User's access or use of the Software and Services.
15. TRAINING AND SUPPORT. Unless User and CDCB enter into a separate agreement, CDCB will not provide any training or on-site support to User relating to the Software and Services. CDCB will provide User with updates and enhancements for the Software and Services to the extent that CDCB generally makes such updates and enhancements available to Users without a separate charge.
16. INDEMNITY. User agrees to defend, indemnify and hold CDCB and each CDCB Party, as well as the members, directors, officers, agents, and employees of CDCB and each CDCB Party, harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonable attorneys' fees and court costs) arising or resulting from User's breach of any term of this Agreement or caused by acts or omissions performed by User or under User's Password or any password issued to Licensed Users.
17. U.S. GOVERNMENT USERS. If User uses the Software and Services on behalf of a U.S. Government agency, this Agreement constitutes the entire agreement between the Government agency and CDCB with respect to the subject matter of this Agreement and is binding on government users in accordance with the policy stated at Federal Acquisition Regulation (FAR) 48 CFR §§ 12.211 and 12.212 (for non-defense agencies) or Defense FAR Supplement (DFARS) 48 CFR §§ 227.7201 and 227.7202 (for defense agencies). Pursuant to Federal Acquisition Regulation (FAR) 48 C.F.R. § 12.212 (for non-defense agencies) and Defense FAR Supplement (DFARS) 48 C.F.R. § 227.7202-1 (for defense agencies), the Government's rights in the Software and Services with respect to the subject matter of this Agreement are limited to those rights granted in this Agreement.
18. TERMINATION. User's right to use the Software and Services shall be effective from the date User accepts this Agreement by clicking "I ACCEPT" below, and shall terminate when User ceases all access and use of the Software and Services and provides CDCB with notice of such termination or as otherwise provided in this Agreement. CDCB may terminate this Agreement immediately if User breaches a material term of this Agreement and fails to remedy that breach within two business days after notice from CDCB. Upon termination of this Agreement, all rights, including the License granted to User, under this Agreement will cease and User's access to the Software and Services may be disabled. Upon termination of this Agreement, Sections 2–4, 6–12, and 16–21 of the Agreement, along with all payment obligations under this Agreement, CDCB's then current Fee Schedule for Genomic Evaluation, or otherwise, shall survive such termination.
19. ELECTRONIC AGREEMENT/NOTICES.
a. Notices. All questions, comments or notices concerning this Agreement shall be submitted to CDCB by User via email at: firstname.lastname@example.org
or via mail at: Council on Dairy Cattle Breeding
Attention: Customer Support
One Town Centre
4201 Northview Dr., Suite 302
Bowie, MD 20716.
All notices to be given under this Agreement to User shall be submitted by CDCB via email at the account User provided to CDCB pursuant to Section 5 or to User upon accessing the Software and Services.
b. Acceptance. By clicking "I ACCEPT" below, User agrees and consents to (i) contract electronically with CDCB for the Software and Services in accordance with this Agreement; (ii) receipt of electronic legal notices regarding this Agreement to the email account User provided under Section 5 or upon accessing the Software and Services; and (iii) that by clicking "I ACCEPT", User intends to be bound by this Agreement.
c. Agreement. In order to access, download, and print this Agreement, User should click on the link for the .PDF file version of this Agreement. User may also request to receive a copy of this Agreement by U.S. mail free of charge by giving notice to CDCB of such request within 45 days after entering into this Agreement.
d. Changes. User may (i) update its email information by providing notice to CDCB and/or (ii) withdraw such consent by providing notice to CDCB. Please be aware that if User withdraws its consent, such withdrawal of consent will not be effective until the date of receipt. The legal effect of this intervening time period is that User is still bound by the terms of this Agreement during such period. The legal consequence of withdrawing User's consent shall not act to void or invalidate User's actions prior to the effective date that shall remain subject to the terms of this Agreement. Upon withdrawing User's consent, User will be responsible for all incurred fees and charges payable under this Agreement, CDCB's then current Fee Schedule for Genomic Evaluation, or otherwise.
20. DISPUTE RESOLUTION.
a. Arbitration. In the event of any claim, controversy or alleged dispute between User and CDCB, its members or affiliates ("Dispute"), User shall attempt in good faith to amicably resolve any Dispute at least 30 days before instituting any legal proceeding. Each party agrees to submit any Dispute for resolution by final binding arbitration after serving written notice, which notice shall set forth in detail the controversy, question, claim or alleged breach along with such party's attempt to resolve such Dispute. Upon such notice and attempt to resolve, the party may then commence an arbitration proceeding pursuant to the rules of the American Arbitration Association ("AAA") to be held in Columbus, Ohio before an arbitrator to be selected by the AAA. Any such arbitration may only be commenced within one year after the party requesting arbitration obtains knowledge of the cause of action forming the basis of the controversy or claim accrued.
b. Procedure. In any arbitration and subject to the ultimate discretion of the presiding arbitrator, each side will be limited to a maximum of one day of argument (including rebuttal), and the parties agree in good faith to minimize discovery burdens (e.g. confine the scope to actual areas in dispute and limit the topics and number of pages on which information is requested to matters directly relevant). The decision(s) of the arbitrator shall be final and binding and may not be appealed to any court of competent jurisdiction, or otherwise, except upon claim of fraud or corruption as provided by law provided; provided, however, that implementation of such decision(s) shall in no way be delayed or otherwise impaired pending the outcome of any such appeal. Judgment upon the award rendered in such arbitration may be entered by any court having jurisdiction thereof. User agrees that all Disputes will be limited between User and CDCB. To the full extent allowable by law, no arbitration proceeding or other dispute resolution proceeding shall be joined with any other party or decided on a class-action basis.
c. Non-Arbitration Disputes. Notwithstanding the foregoing, the following matters shall not, at the election of CDCB, be subject to binding arbitration: (i) any Dispute related to, or arising from allegations of criminal activity; (ii) any Disputes concerning CDCB's intellectual property rights; and (iii) any claim for injunctive relief. Any Dispute not subject to arbitration shall be decided by a state or federal court of competent jurisdiction within Columbus, Ohio. Each party hereby waives any claim that such venue is improper or inconvenient.
b. Force Majeure. CDCB shall not be responsible for any failure to perform due to causes beyond its reasonable control, including, acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like.
c. Governing Law and General Provisions. This Agreement will be governed by the laws of the State of Ohio, excluding the application of its conflicts of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the remainder of the Agreement, which shall remain valid and enforceable according to its terms. The words "and" as well as "or" shall be interchangeable to provide the broadest interpretation, and the word "including" shall mean "including without limitation" and "including but not limited to" to provide the broadest interpretation. The headings contained in this Agreement are for reference only and shall not affect the meaning or interpretation of this Agreement. CDCB's failure to exercise or enforce any right or power under this Agreement shall not constitute a waiver of such right or power.
d. No Third-Party Beneficiaries. Nothing contained in this Agreement is intended to confer upon any person other than the parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this Agreement, except with respect CDCB Parties who shall be deemed third-party beneficiaries under this Agreement but solely with respect to those terms that specifically reference a CDCB Party.
To ACCEPT this Agreement for the Software and Services, click "I ACCEPT", which will create a legal contract that will bind User and CDCB as soon as you click "I ACCEPT".