END USER LICENSE AGREEMENT FOR CompWALK.farm
Effective as of November 2017
IMPORTANT – THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (identified herein as “You” OR “User” or with “Your”), AND NEXTLOGIK, INC. (“NEXTLOGIK”), WITH IT BEING GENERALLY UNDERSTOOD THAT YOU ARE OTHERWISE AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF AND THE ENTITY (OR FARM) THAT WILL BE NAMED ON YOUR REGISTRATION ACCOUNT WITH NEXTLOGIK. THIS AGREEMENT GOVERNS YOUR USE OF NEXTLOGIK’S COMPWALK FARM SOFTWARE SOLUTION DEFINED HEREIN AS THE “COMPWALK.FARM”. BEFORE USING ANY PART OF COMPWALK.FARM, YOU SHOULD READ CAREFULLY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, AS NEXTLOGIK IS WILLING TO LICENSE TO YOU THE RIGHT TO ACCESS AND USE COMPWALK.FARM AND ALL ITS ASSOCIATED MATERIALS AND INFORMATION ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE COMPWALK.FARM AND ARE INSTRUCTED TO STOP ALL USE OF COMPWALK.FARM IMMEDIATELY.
BY CREATING AN ACCOUNT OR BY INSTALLING, ACCESSING, OR USING ANY PART OF COMPWALK.FARM, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND ITS TERMS AND CONDITIONS, AND THAT YOU AGREE TO BE BOUND LEGALLY BY IT AND ITS TERMS AND CONDITIONS.
IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION BY NEXTLOGIK TO INSTALL, ACCESS, OR OTHERWISE USE COMPWALK.FARM. IN SUCH CASE, PROMPTLY RETURN AND/OR DELETE ANY MATERIALS RELATED TO COMPWALK.FARM THAT YOU HAVE RECEIVED FROM NEXTLOGIK OR THAT YOU HAVE IN YOUR POSSESSION.
TERMS AND CONDITIONS
1. LICENSE GRANT. Conditioned upon Your continued compliance with the terms and conditions of this Agreement, this Agreement provides to You a limited, revocable, non-exclusive, non-transferable, sublicenseable (on a limited basis as set forth below) license to access and use CompWALK.farm solely for Your personal use or for the internal business purposes of Your employer (if such entity is named on the registration account with NextLOGiK for use of CompWALK.farm) in order to facilitate your farm food safety operations. In connection with the foregoing limited sublicense grant, You may enable employees (who have an actual business need) to access and use CompWALK.farm in accordance with Your personal use or the internal business purposes of the entity named on Your registration account with NextLOGiK for use of CompWALK.farm (each, an “Authorized User”), only if any such Authorized User continues to comply with this Agreement. Notwithstanding the foregoing, You expressly acknowledge and agree that use by any other person or entity is expressly prohibited. Moreover, You acknowledge and agree that You shall be responsible for monitoring use by any Authorized User of CompWALK.farm and for maintaining compliance with the terms and conditions of this Agreement. Accordingly, any breach of this Agreement by an Authorized User shall constitute a breach by You.
2. CompWALK.farm CONTENT. Upon payment of the applicable subscription-specific fees, You have the right to access and use such NextLOGiK software solutions to which You have subscribed, which solutions may include certain or all of NextLOGiK’s “Assessments”, “Files”, “Incidents”, “Calendar”, and “Resources” (collectively, “CompWALK.farm Content”). For the purposes of this Agreement, references to “CompWALK.farm” shall expressly include all applicable CompWALK.farm Content to which You have subscribed through NextLOGiK’s registration website found here: https://www.compwalk.farm/register (“NextLOGiK Site”).
3. RESTRICTIONS. The foregoing license is limited. You may not may not (i) use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit CompWALK.farm (or any part thereof) in any manner not expressly permitted by this Agreement, including, without limitation, for further re-sale or distribution; (ii) reverse engineer, decompile, disassemble, translate, or create any derivative work of CompWALK.farm (or any part thereof); (iii) access, link to, or use any source code from CompWALK.farm (or any part thereof); (iv) erase or remove any proprietary or intellectual property notice contained in or on CompWALK.farm (or any part thereof); or (v) use or permit use of CompWALK.farm (or any part thereof) for or by any entity (including affiliates and subsidiaries) other than Authorized Users. In addition, You shall not enter into any contractual relationship or other legally binding obligation with any third party or person which shall have the purpose or effect of encumbering NextLOGiK or the use of CompWALK.farm (or any part thereof). You acknowledge and agree that exceeding the scope of the license herein shall be a material breach of this Agreement and subject to the termination provisions set forth herein.
4. USER OBLIGATIONS. At all times, You agree to use CompWALK.farm in accordance with this Agreement. In addition, by installing, accessing, or using CompWALK.farm, You agree to be responsible for and to abide by all applicable local, state, national, and international laws, regulations, rules, and guidelines with respect to Your use of CompWALK.farm. You also represent that You will, at all times, provide true, accurate, current, and complete information when You provide information via a CompWALK.farm registration or submission form, and when You submit any information to an CompWALK.farm solution in connection with the development of Your customized food safety program. In connection with the foregoing, if You provide any false, inaccurate, untrue, or incomplete information, NextLOGiK reserves the right to terminate immediately Your access to and use of CompWALK.farm. Subject to NextLOGiK’s right to monitor and audit compliance, You acknowledge and agree that it is Your responsibility to maintain compliance with the terms and conditions of this Agreement. In addition, You shall be responsible for obtaining, paying for, or providing all third party software, hardware, and firmware necessary for remote access to CompWALK.farm. Although NextLOGiK uses commercially reasonable efforts to maintain CompWALK.farm, You agree that it shall be solely Your responsibility for maintaining copies, backing-up, and/or archiving all of Your data or information which You use on or in connection with CompWALK.farm.
5. PAYMENT TERMS. Access to CompWALK.farm is offered upon payment of the fees applicable to the CompWALK.farm solution(s) to which You subscribe through the CompWALK.farm Site at www.compwalk.farm. All fees are payable in advance and are non-cancelable once You subscribe to use CompWALK.farm or the designated license renewal period begins without notice of termination in accordance with this Agreement. No more than once each calendar year, NextLOGiK may increase such fees following the designated license period. Such fees do not include any applicable taxes and You shall remain responsible for and shall pay all taxes, duties and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under the Agreement (exclusive of taxes on NextLOGiK’s net income). You shall provide copies of any and all exemption certificates to NextLOGiK if You are entitled to any exemption. You shall not offset or reduce any amount owed to NextLOGiK. All fees or expenses are in U.S. Dollars ($) and You shall forward the payment of any fees (in U.S. Dollars) to NextLOGiK at the address designated by NextLOGiK. Unless otherwise indicated by NextLOGiK in writing, all invoices that NextLOGiK submits to You must be paid within 30 days of the receipt of NextLOGiK’s invoice. All past-due payments will accrue interest at a rate of 1.5% or the highest rate permissible by law, whichever is less, per month on the unpaid balance from the due date until paid in full. NextLOGiK also reserves the right to terminate or suspend access to CompWALK.farm if You fail to pay any amounts within 60 days of when due. You shall reimburse NextLOGiK for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past-due amounts. Unless otherwise specified herein, all obligations with respect to the amounts due to NextLOGiK under the Agreement shall survive any expiration or termination of the Agreement.
6. ACCOUNT MAINTENANCE. NextLOGiK shall designate for You an account for use of CompWALK.farm. Registration with and access to CompWALK.farm and Your on-line account will require both a user name and a password (to be created by You). Anyone with knowledge of both a user name and password can gain access to the restricted portions of CompWALK.farm and to Your account. Accordingly, You agree to keep confidential the user name and password for Your on-line account, and will ensure that only You and any Authorized Users may access Your account. You agree not to use another user’s account, user name, and/or password. NextLOGiK is not responsible for the usage of Your account. Accordingly, You agree to remain solely responsible for all activities that occur under or through Your account. You will immediately notify NextLOGiK if You become aware of any loss or theft of Your password or any unauthorized use of Your user name and password. NextLOGiK will not be liable for any loss or damage arising from Your failure to comply with these obligations, including, without limitation, if another party or person accesses Your account due to such failure. In connection with the foregoing, NextLOGiK reserves the right to delete or change a user name or password at any time and for any reason. NextLOGiK will provide notice of any such deletion or change.
7. PROPRIETARY RIGHTS. This Agreement provides only a limited license to access and use CompWALK.farm, which includes the right to utilize certain CompWALK.farm Content upon subscription and payment of applicable content-specific fees. However, You expressly acknowledge and agree that NextLOGiK does not grant any implied right to You or any other person and transfers no ownership or intellectual property interest or title in or to CompWALK.farm (or any part thereof) to You or anyone else. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, databases, information, and documentation associated with CompWALK.farm as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of CompWALK.farm, unless otherwise indicated, are owned, controlled, and licensed by NextLOGiK or its licensors and are protected by law including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other state, national, and international laws and regulations. Accordingly, Your unauthorized use of CompWALK.farm may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes. CompWALK.farm is Copyright © 2017 NextLOGiK and/or its licensors. NextLOGiK, the NextLOGiK logo, CompWALK.farm, and all other names, logos, and icons identifying NextLOGiK and its programs, products, and services are proprietary trademarks of NextLOGiK or its licensors, and any use of such marks, including, without limitation, as domain names or account identifiers, without the express written permission of NextLOGiK is strictly prohibited.
8. CONFIDENTIALITY. You acknowledge and agree that in connection with this Agreement or Your use of CompWALK.farm You may receive or gain access to the confidential, proprietary, or sensitive information of NextLOGiK and/or its licensors (the “Confidential Information”). Moreover, You acknowledge and agree that (i) CompWALK.farm accesses unpublished, licensed works, and trade secrets; (ii) independent economic advantages are derived by NextLOGiK from its ownership of CompWALK.farm; and (iii) CompWALK.farm’s software, databases, and programming code are also Confidential Information. Accordingly, with respect to the Confidential Information of NextLOGiK, You agree to secure and protect the confidentiality of the Confidential Information of NextLOGiK (and/or its licensors) in a manner consistent with the maintenance of NextLOGiK’s rights therein, using at least as great a degree of care as You use to maintain the confidentiality of Your own confidential information of a similar nature, but in no event using less than reasonable efforts. You also acknowledge and agree that any disclosure or unauthorized use of such Confidential Information would be detrimental to NextLOGiK and its business and goodwill. You therefore shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make public or available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement. All Confidential Information of NextLOGiK shall remain the exclusive property of NextLOGiK. These restrictions do not apply to Confidential Information which You (i) are required by law or regulation to disclose, but only to the extent and for the purposes of such law or regulation; (ii) disclose in response to a valid order of a court or other governmental body, but only to the extent of and for the purposes of such order, and only if You first notify NextLOGiK of the order and permit NextLOGiK to seek an appropriate protective order or move to quash or limit such order; or (iii) disclose with written permission of NextLOGiK, in compliance with any terms or conditions set by NextLOGiK regarding such disclosure. Upon termination or expiration of this Agreement, You shall return to NextLOGiK or destroy, at the request of NextLOGiK, all Confidential Information of NextLOGiK and certify in writing to NextLOGiK, within ten (10) days following termination or expiration, that all such Confidential Information has been returned or destroyed.
9. REPRESENTATIONS AND WARRANTIES. You represent and warrant to NextLOGiK that (i) You are at least eighteen (18) years of age or the legal age of majority, (ii) You are authorized to enter into this Agreement on behalf of yourself, your Authorized User(s), and the entity named on the account with NextLOGiK (in the event You access CompWALK.farm and/or agree to this Agreement on behalf of such entity), (ii) You are authorized and able to fulfill and perform the obligations and meet the conditions of a User as specified herein, (iii) any information or data provided to CompWALK.farm by You or your Authorized User(s) will not violate any law or regulation or any third party or person’s right; and (iv) You and/or any Authorized Users has all required permits, licenses, and other governmental authorizations and approvals to use CompWALK.farm.
10. WARRANTY DISCLAIMER. CompWALK.farm IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. MOREOVER, NextLOGiK MAY MAKE CHANGES AND/OR MODIFICATIONS TO CompWALK.farm AT ANY TIME AND FOR ANY REASON. IN ADDITION, NextLOGiK HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NextLOGiK ALSO DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS ABOUT THE SUITABILITY, AVAILABILITY, LEGALITY, ACCURACY, RELIABILITY, CURRENTNESS, COMPLETENESS, FUNCTIONALITY, INTENDED PURPOSE, OR OTHERWISE. IN PARTICULAR, THE ASSESSMENTS ARE BASED ON INFORMATION PROVIDED BY YOU AND NextLOGiK MAKES NO REPRESENTATIONS THAT SUCH PROGRAMS WILL ACHIEVE ANY PARTICULAR RESULT. NextLOGiK ALSO DOES NOT REPRESENT OR WARRANT THAT CompWALK.farm WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF CompWALK.farm IS WITH YOU.
11. LIMITATION OF LIABILITY. You acknowledge and agree that NextLOGiK shall not be liable or responsible for any claim, damage, or loss resulting from a cause beyond NextLOGiK’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. MOREOVER, YOU AGREE THAT IN NO EVENT SHALL NextLOGiK BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF CompWALK.farm, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF NextLOGiK HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN ADDITION, NextLOGiK SHALL ASSUME NO RESPONSIBILITY OR LIABILITY FOR THE STORAGE OF ANY DATA OR FOR THE DELIVERY, SECURITY, OR AVAILABILITY OF ANY DATA. WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF NextLOGiK FOR ANY REASON WHATSOEVER RELATED TO USE OF CompWALK.farm OR FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED FIVE THOUSAND DOLLARS $5000 (USD).
12. INDEMNIFICATION. You shall indemnify, hold harmless, and defend NextLOGiK and its affiliates and all of their officers, directors, agents, employees, shareholders, attorneys, successors and assigns against any and all allegations, claims, liabilities, costs, damages, judgments, injuries, suits, actions, or proceedings (including any instituted by a government or government agency), losses and expenses, including attorneys’ fees and costs associated with any of the foregoing controversies), arising out of or resulting from any breach by You or any Authorized User of this Agreement or any failure by You or any Authorized User to fulfill any obligation or condition specified in this Agreement.
13. GOVERNING LAW. This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of Maryland, U.S.A., as applied to agreements entered into and completely performed in the State of Maryland. You agree that the state or local courts in the State of Maryland will have exclusive jurisdiction and venue over all controversies in connection with this Agreement, and You hereby consent to such exclusive and personal jurisdiction and venue. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. You access and use CompWALK.farm on Your own volition and are responsible for compliance with all applicable local laws with respect to Your use.
14. ENFORCEMENT. NextLOGiK wishes to keep CompWALK.farm a helpful resource for all of its users. As it relates to NextLOGiK (and solely as limited by applicable law), You therefore have no reasonable expectation of privacy while using CompWALK.farm because NextLOGiK reserves the right to view, monitor, and/or record activity on CompWALK.farm and to comply with government or court appointed authorities when necessary. Actual or attempted unauthorized use of CompWALK.farm may also result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. You therefore acknowledge that NextLOGiK reserves the right, at any time and without notice, to monitor compliance with the terms and conditions of this Agreement and to otherwise protect its rights in CompWALK.farm by incorporating security and management technology into CompWALK.farm. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal activity on CompWALK.farm. NextLOGiK will also comply with all court orders involving requests for such information. Moreover, and in accordance with termination provision under this Agreement, NextLOGiK reserves the right to suspend or terminate immediately Your access to CompWALK.farm if You fail to comply with the terms and conditions of this Agreement. In such event, NextLOGiK shall be relieved of its obligations under this Agreement and shall not be found to be in breach of this Agreement. You also acknowledge that any breach, threatened or actual, of this Agreement will cause irreparable injury to NextLOGiK and/or its licensors or suppliers, such injury would not be quantifiable in monetary damages, and NextLOGiK and/or its licensors would not have an adequate remedy at law. You therefore agree that NextLOGiK and/or its licensors (or on their behalf) shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of Your obligations under any provision of this Agreement. Accordingly, You hereby waive any requirement that NextLOGiK or its licensors post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to NextLOGiK to enforce any provision of this Agreement.
15. TERM AND TERMINATION. This Agreement and Your right to use CompWALK.farm will take effect at the moment You CREATE AN ACCOUNT OR BY INSTALLING, ACCESSING, OR USING ANY PART OF CompWALK.farm and will remain in effect unless terminated as set forth below. The initial term for Your subscription to certain or all of the CompWALK.farm solutions under this Agreement is twelve (12) months. NextLOGiK may terminate this Agreement at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraud, illegal activity, or actions or omissions that violate any term or condition of this Agreement. You acknowledge and agree that NextLOGiK shall have the sole and absolute right to determine in its reasonable discretion whether You or any Authorize User(s) are engaging in any unauthorized activity and/or violating any term or conditions of this Agreement. Termination of this Agreement will be effective with notice. NextLOGiK shall also not be responsible or liable for any damages or loss, such as loss of sales or profits, as a result of any termination of this Agreement in accordance with this section (including for the cost of any CompWALK.farm Content (or use) for which You have paid the content- or subscription-specific fee that You have not yet consumed or used at the time of termination). You may terminate at any time by ceasing to use CompWALK.farm and providing NextLOGiK with written notice of such termination to NextLOGiK’s designated contact address for Your registration account for CompWALK.farm. If termination notice is provided prior to the end of the subscription period, the subscription will not be auto-renewed and will otherwise expire at the end of the then current term. But, all applicable provisions of this Agreement will survive termination, as outlined below. Upon termination or expiration of the Agreement for any reason, all rights and licenses granted hereunder to You shall immediately terminate, and You shall immediately cease all use of NextLOGiK’s property or materials, including, without limitation, the CompWALK.farm. Notwithstanding, the foregoing, You shall remain obligated to pay to NextLOGiK any fees or charges that were due prior to termination or expiration. Upon termination or expiration, You and any Authorized Users must also return to NextLOGiK and/or destroy or delete from Your computer, laptop, work station, network all copies of CompWALK.farm (and any associated materials) in Your possession. If requested by NextLOGiK, You shall provide written confirmation of Your compliance with this obligation. The provisions concerning proprietary rights, confidentiality, representations and warranties, warranty disclaimer, limitation of liability, indemnification, governing law, enforcement, termination, notices, and the miscellaneous terms will survive the termination or expiration of this Agreement for any reason.
17. NOTICES. All notices, demands, and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing (electronic or tangible copy) and shall be deemed to have been given when delivered, by first class U.S. Mail, return receipt requested, in person, by commercial overnight courier (e.g., FEDERAL EXPRESS), with constructive receipt deemed to have occurred 3 calendar days after being mailed, or when receipt is acknowledged if sent by facsimile or other electronic transmission device.
Notices shall be made to:
9250 Bendix Rd
Columbia, MD 21045