Subscription Agreement for the Cogastro services

1. Definitions and Interpretation
1.1. Affiliate: means any entity that directly or indirectly controls, is controlled by, or is under common Control with the subject entity.
1.2. Agreement: means this Subscription Agreement for the Cogastro services.
1.3. Applicable law: means the law of the Republic of Lithuania.
1.4. Beta Services: means Cogastro’s Services that are not generally available to customers.
1.5. Cogastro: means the limited liability company named Cogastro, incorporated under the laws of the Republic of Lithuania, having its registered seat in Pušyno 14, Pašekščiai, Molėtai district, with corporate number 305196545.
1.6. Content: means information obtained by Cogastro from Licensee and provided to Third parties through the Services.
1.7. Confidential Information: has a meaning given to it in Section 14.
1.8. Control: means direct or indirect ownership or power to control of more than 50% of the voting interests of the subject entity.
1.9. Effective Date: the execution date of the Subscription Agreement for the Cogastro services
1.10. Initial Term: The first period for which the license is agreed as per the Order Form.
1.11. Intellectual Property Rights: all rights designated as “Intellectual Property Rights” under any applicable law, including copyrights, trademarks, patents including all registrations and applications of such rights.
1.12. Licensee Related Parties: Licensee and any entity Licensee Controls, is Controlled by or is under common Control with Licensee.
1.13. Licensee: means the company or other legal entity, or person which/who orders Services via Order Form.
1.14. Licensee’s Data: means electronic data and information submitted by Licensee or for Licensee to the Services or collected and processed by Licensee or for Licensee using the Services, excluding third-party content providers.
1.15. Notice: Written document sent by post or courier with receipt confirmation, or e-mail.
1.16. Order Form: means the form that is used to request Services from Cogastro.
1.17. Personal Data: any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, identification number, email address or other factors specific to that natural person.
1.18. Software: the object code of the computer program(s) specified in a Product Order Form including any updates and versions.
1.19. Subscription Agreement: the present document containing the terms and conditions for licenses of the Software,
the annexes and any additional Order Forms.
1.20. Services: means the functionality of software that are ordered by Licensee under the Order Form and made available online by Cogastro, including associated offline components, if any.
1.21. Term: the Initial Term of the license as agreed in the Order Form starting at the Effective Date and every subsequent year thereafter until termination.
1.22. Third-parties: mean people and/or organizations outside of this agreement.
1.23. User: means an individual who is authorized by Cogastro to use the Services and who has been supplied with a user identification and password.

2. Rights, Restrictions and Obligations of Licensee.
Subject to the terms and conditions set forth in this Agreement, Cogastro grants to Licensee for the Term a non-exclusive, non-transferable right to (i) use the Software and Services within the limits provided for in the Order Form solely for Licensee’s internal business needs; (ii) receive from Cogastro login accounts to enable the authorized use of the Software.

Cogastro reserves all rights not expressly granted to Licensee. Licensee shall not be granted any other rights than those specified in this Subscription Agreement. Licensee’s use, as described above, does not provide the right to use the Services for external purposes, including but not limited to the provision of processing services to Third parties, commercial timesharing, rental or sharing arrangements, or use of the Software (including but not limited to test results obtained with the Software) for external marketing or sales purposes.
Licensee agrees not to:
i. Assign, lease, transfer, sublicense, or encumber any portion of the Services;
ii. Decompile, disassemble, or reverse engineer the Software, in whole or in part;
iii. Provide, disclose, divulge or make available to, or permit use of the Software by persons other than to Licensee;
iv. Write or develop derivative work or any other program based on Cogastro’s Software and/or Confidential Information. In the event Licensee breaches this Subscription Agreement by writing or developing derivative work or any other program based on Cogastro’s Software and/or Confidential Information, Licensee agrees that all Intellectual Property Rights on such derivative work belong to Cogastro and accepts the obligation to execute all acts required to transfer these IP rights to Cogastro;
v. Use a Service to store or transmit infringing, libellous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights;
vi. Use a Service to store or transmit malicious code;
vii. Interfere with or disrupt the integrity or performance of any Service or third party data contained therein;
viii. Attempt to gain unauthorized access to any Service or Content or its related systems or networks;
ix. Copy Service or any part, feature, function or user interface thereof.

Licensee shall:
i. be responsible for Users’ compliance with this Subscription Agreement;
ii. be responsible for the accuracy, quality and legality of Licensee’s Data and the means by which Licensee acquired Licensee’s Data;
iii. use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Cogastro promptly of any such unauthorized access or use;
iv. use Services and Content only in accordance with the applicable laws and government regulations;
v. ensure that those Users Licensee have given access to Licensee’s farm data, are granted the right level of permissions and that the permission is adjusted according to Licensee’s access rule and revoked when needed, for example, but not limited to, the User is not working for Licensee anymore, does not cooperate with external advisors or likewise.
Cogastro will not have any responsibility for data damages in case of User permissions or access right have not been adjusted or revoked for a user timely. It is Licensee’s responsibility to maintain the User access and permissions.

3. Title.
This Subscription Agreement does not constitute a transfer to Licensee of any title or Intellectual Property Rights to the Software and or Services, or modifications.

4. Obligations of Cogastro.
Cogastro will use commercially reasonable efforts to make the Services available during commercial banks of Lithuania business hours from Monday to Friday, except for:

i. planned downtime (of which Cogastro shall give at least 8 hours’ notice and which Cogastro shall schedule to the extent practicable during the weekend or night hours); and
ii. any unavailability caused by circumstances beyond Cogastro reasonable control, including, for example, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving our employees), Internet service provider failure or delay, non Cogastro applications, Acts of God, denial of service attack or any other force majeure.

5. Protection of Data.
Cogastro will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee’s Data and Personal Data. Those safeguards will include, but not limited to measures for preventing access, use, modification or disclosure of Licensee’s Data and Personal Data by Cogastro except:
i. To provide the Services and prevent or address service or technical problems;
ii. As compelled by Applicable law;
iii. As expressly permitted by Licensee in writing;
iv. As in accordance with Section 13.2.

6. Beta Services.
From time to time, Cogastro may invite Licensee to try Beta Services at no charge. Licensee may accept or decline any such trial in Licensee’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered to be part of the Services under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of 3 months from the trial start date or the date that a version of the Beta Services becomes generally available. Cogastro may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. Cogastro will have no liability for any harm or damage arising out of or in connection with the Beta Services.

7. Support.
Cogastro will provide Licensee a support for the Services. Cogastro does not support Licensee with insect production related issues and/or advisory. Licensee is required to acquire and establish a certain level of knowledge of the Services and support Licensee’s own organisations with the needed help in using Services in Licensee’s daily operations. Cogastro support includes:

i. Direct response to the User with respect to inquiries concerning the performance, functionality or operation of the Services;
ii. Direct response to the User with respect to problems or issues with the Services;
iii. Diagnosis of problems or issues of the Services;
iv. Resolution of problems or issues with Services.

8. Use of services and content.
Unless otherwise provided in the applicable Order Form, Services and Content are acquired as subscriptions. The subscription fee is based on the subscribed Services, farms per account, number of users.

9. Third party integration.

9.1. Cogastro applications and Licensee’s Data.
If Licensee is using a third-party product that Licensee is integrating with the Services, Licensee grant Cogastro permission to allow the provider of the non-Cogastro application to access Licensee’s Data as required for the interoperation of the non-Cogastro application with the service. Cogastro is not responsible for any disclosure, modification or deletion of Licensee’s Data resulting from access by a non-Cogastro application.

9.2. Integration with non-Cogastro applications.
The Services may contain features designed to interoperate with non-Cogastro applications. To use such features, Licensee may be required to obtain access to non-Cogastro applications from the providers, and may be required to grant Cogastro access to Licensee’s account(s) on the non-Cogastro applications. If the provider of a non-Cogastro application ceases to make the non-Cogastro application available for interoperation with the corresponding service features on reasonable terms, Cogastro may cease providing those service features without entitling Licensee to any refund, credit, or other compensation.

9.3. Third-party data integration.
Data delivered from third-party systems is not Cogastro responsibility. Cogastro provides and maintains interfaces to various third-party systems. If such third-party systems interface changes due to software/hardware upgrade, network access, system not available, data format changes or other similar changes – Cogastro cannot be held responsible for such changes in any circumstances. Cogastro will with reasonable effort upgrade or repair the Cogastro interfaces so that the integration will be operational again.

10. Payment and fees for the Services

10.1. Payments
In consideration of the rights granted herein, Licensee agrees to pay Cogastro the fees specified in the applicable Order Forms. Except as otherwise provided in this Subscription Agreement, the fees are non-cancellable and non-refundable and due and payable in full immediately, unless otherwise indicated in the Order Form. All charges and fees provided for in this Subscription Agreement do not include any VAT, service taxes, withholding taxes, duties, or similar charges imposed by any government and Licensee agrees to reimburse Cogastro for such taxes and charges (if any). Licensee may not set off an obligation to pay any charges or fees against any claim on Cogastro or suspend payment on any ground.

10.2. Overdue Charges.
If any payment of an invoiced amount is overdue, Cogastro has a right to condition or suspend subscription renewals and/or service.

10.3. Suspension of service and acceleration.
If any amount owed by Licensee under Subscription Agreement for Services is overdue, Cogastro may, without limiting Cogastro’s other rights and remedies, accelerate Licensee’s unpaid fee obligations under Subscription Agreement so that all such obligations become immediately due and payable, and suspend the Services to Licensee until such amounts are paid in full.

10.4. Future Functionality.
Licensee agrees that Services are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Cogastro regarding future functionality or features.

11. Term and termination.

11.1. Termination.
This agreement commences on the Effective Date as stated in the applicable Order Form and will remain in force until the last Order Form is expired or terminated in accordance with this Section. Cogastro may forthwith terminate this Subscription Agreement and/or all or any related Order Forms if:
i. Licensee breaches this Agreement and such breach is not cured within ten (10) working days after Licensee has received Notice of such breach; or
ii. if Licensee terminates its business activities or becomes insolvent, is unable to pay its debts as they mature, makes an assignment for the benefit of creditors or becomes subject to direct control of a trustee, receiver or similar authority.
No termination on the basis of this provision will entitle Licensee to a refund of any portion of the fees paid or due to Cogastro.
After the Term of Order Form will be extended automatically for one more year unless either party has given written Notice to the other party at least 30 (thirty) days before the end of the current Term that it does not wish to extend the Order Form. The yearly fee as per the current list price will be invoiced 30 days prior to the moment the Agreement is extended and will be due at the moment the Order Form is extended.
Not subject to Section 11, 60 days before the automatic extension of the Order Form, as it is indicated above, Cogastro is obliged to inform the Licensee in case the fee for the Services is being recalculated.

11.2. Refund or payment upon termination.
If this agreement is terminated by Cogastro in accordance with Section 11.1., Licensee will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Licensee of Licensee’s obligation to pay any fees payable to Cogastro for the period prior to the effective date of termination.

11.3. Licensee’s Data portability and deletion of Licensee’s Data.
Upon request by Licensee made within 30 days after the effective date of termination or expiration of Agreement, Cogastro will make Licensee’s Data available to Licensee for export or download through the usual web interface. After that 30-day period, Cogastro will have no obligation to maintain or provide Licensee’s Data, and will thereafter delete or destroy all copies of Licensee’s Data in Cogastro systems or otherwise in Cogastro possession or control, unless legally prohibited.

11.4. Surviving provisions.
10 (Payment and fees for the Services), 11.3. (Licensee’s Data portability and deletion of Licensee’s Data), 12 (Proprietary Rights and Licenses), 13 (Confidentiality), 14 (Representation, warranties, exclusive remedies and disclaimers), 15 (Limitation of Liability), 16 (Who Licensee Are Contracting With, Notices, Governing Law and Jurisdiction) and 17 (General Provisions) will survive any termination or expiration of Agreement.

12. Proprietary Right and Licenses.

12.1. Reservation of Rights.
Subject to the limited rights expressly granted hereunder, Cogastro reserves all of Cogastro right, title and interest in and to the Services, Content, including all of Cogastro related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.

12.2. License by Licensee to host and use Licensee’s Data.
Licensee grant Cogastro limited-term license to host, copy, transmit and display Licensee’s Data, and any third-party imported data from systems owned by Licensee.

Licensee grants Cogastro permission to aggregate and consolidate Licensee’s Data with other farm data. Cogastro can use the consolidated data for statistical, benchmarking, simulation, commercial and other similar services and products that Cogastro might offer to any third part, notwithstanding Section 14.

Licensee’s Data will always be aggregated and consolidated with other farm data; it will always be a blend of minimum three farms/organizations. Licensee’s Data will not be referable to Licensee.

Cogastro will never share or grant anyone access to Licensee’s Data without Licensee’s consent. In case of benchmarking Licensee will actively select who will have access to which data/KPIs inside Licensee’s farm.

12.3. By Licensee granted access to Licensee’s farm(s) or data.
In cases Licensee grant other farms/organizations and/or users access to Licensee’s Data, Cogastro will deliverer such data to the granted farms/organizations and/or users. For example in the case of benchmarking, Licensee can grant access to Licensee’s KPI’s or data to known farms/organizations and/or users. In this case Licensee’s Data will be referable to Licensee. Cogastro will have no responsibility for the farms/organizations and/or users, which Licensee have granted access to Licensee’s KPI’s or data, for how they are sharing and securing Licensee’s Data.

12.4. License by Licensee to Use Feedback.
Licensee grant to Cogastro and Cogastro’s affiliates a worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Licensee or users relating to the operation of the services.

13. Confidentiality.

13.1. Definition of Confidential Information

Confidential Information means all information disclosed by a party (Disclosing Party) to the other party (Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Licensee’s confidential information includes Licensee’s Data (except as it set in this Section below); Cogastro confidential information includes the Services and Content. The confidential information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.

However, confidential information does not include any information that:

i. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
ii. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
iii. is received from a Third-parties without breach of any obligation owed to the Disclosing Party;
iv. was independently developed by the Receiving Party; or
v. otherwise agreed in the Order Form.

13.2. Protection of confidential information.
The Receiving party will use the same degree of care, it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care):

i. not to use any confidential information of the Disclosing Party for any purpose, outside the scope of Agreement; and
ii. except as otherwise authorized by the disclosing party in writing, to limit access to Confidential Information of the Disclosing party. Neither party will disclose the terms of this Agreement or any Order Form to any Third-parties.

13.3. Compelled disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure – to the extent legally permitted.

14. Representation, warranties, exclusive remedies and disclaimers.

14.1. Representations.
Each party represents it has validly entered into Agreement and has the legal power to do so.

14.2. Warranties.
Cogastro warrants that the Services is substantially compliant with the Order Form for a period of three (3) months as from the Effective Date (“Warranty Period”), unless otherwise indicated in the Order Form. Non-compliant Software will be corrected or replaced as appropriate or, if neither of the above is commercially practicable, the Agreement will terminate with respect to the non-compliant services or part thereof and Licensee will be refunded the license fees paid for such Services or part thereof.
The warranty is subject to the following conditions:
i. the Services has properly been used at all times;
ii. Licensee has given prompt written notice to Cogastro of any non-compliance; and
iii. no modifications, alterations or additions have been made to the Services by Licensee.
The foregoing are Licensee’s sole and exclusive remedies under this Subscription Agreement. The warranty is made to and for the benefit of Licensee only.
Except as otherwise set forth in the Subscription Agreement and to the extent permitted by applicable law and the Services are provided to Licensee “as is”, and, except as otherwise set forth herein, Cogastro makes no express or implied warranties with respect to their functionality, condition, performance, operability or use. Without limiting the foregoing, Cogastro disclaims all implied warranties including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.

15. Limitation of Liability.
To the maximum extent permitted by law, in no event shall Cogastro (or its suppliers) be liable to Licensee or any third party for any lost profits, lost data, costs of procurement of substitute products, or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to these terms or your use of Service. Access to, and use of, the Service is at Licensee’s own discretion and risk, and Licensee will be solely responsible for any damage to its devices or computer systems, or loss of data resulting therefrom. Notwithstanding anything to the contrary contained herein, Cogastro liability for any Licensee’s damages arising from or related to Subscription Agreement (for any cause whatsoever and regardless of the form of the action), will at all times be limited to a maximum of the amount paid by customer hereunder in the 6 month preceding the incident.

15.1. Exclusion of Consequential and Related Damages.
In no event will either party have any liability to the other party for any lost profits, revenues or indirect, special, incidental consequential, cover or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.

16. Governing law and Jurisdiction.
All disputes arising based on this Agreement shell be governed by the Republic of Lithuania, which is a member of the European Union, the Council of Europe, Eurozone, Schengen Agreement, NATO and OECD.

16.1. Manner of Giving Notice.
Except as otherwise specified in the Subscription Agreement, all notices, permissions and approvals hereunder shall be made in English language and shall be considered as duly served if sent to the address of the Party indicated in Order Form by written Notice to the other Party:

i. on the following business day when delivered upon acknowledgment of the receipt;
ii. upon actual receipt when it is send by pre-paid registered mail (with written confirmation of the receipt);
iii. on the following business day if sent by email (with written confirmation of the receipt).

17. General provisions.

17.1. Export Compliance.
The Services, Content, other technology Cogastro makes available, and derivatives thereof may be subject to export laws and regulations of the European Union. Licensee shall not permit users to access or use any Service or Content in a European Union embargoed jurisdiction or in violation of any European Union export law or regulation.

17.2. Entire Agreement and Order of Precedence.
Agreement is the entire agreement between Licensee and Cogastro regarding Licensee’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Licensee’s purchase order or in any other of Licensee’s order documentation (excluding order forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be:
i. the applicable Order Form, and
ii. Agreement.

17.3. Assignment.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this agreement in its entirety (including all order forms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

17.4. Relationship of the Parties.
The parties are independent contractors. Agreement does not create a partnership, franchise, joint venture, agency or employment relationship between the parties.

17.5. Waiver.
No failure or delay by either party in exercising any right under Agreement will constitute a waiver of that right.

17.6. Severability.
If any provision of this Subscription Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of Subscription Agreement will remain in effect.

17.7. Attorney Fees.
Licensee will pay on demand all of Cogastro’s reasonable attorney fees and other costs incurred by Cogastro to collect any fees or charges due to Cogastro under this Agreement following Licensee’s breach of Section 10 (Payment and fees for purchased services).

18. Software License.
The Software, including software embedded in the Software, is licensed, not sold, to the Licensee by Cogastro only under the terms of the Subscription Agreement, the Order Form, and Cogastro reserves all rights not expressly granted to the Licensee. Software may include some third-party software. The Licensee own the media or device on which the Software is recorded or stored, but Cogastro retains ownership of the Software itself.
This Agreement updated on 8th August 2019 and is effective between Licensee and Cogastro as of the date set forth in the applicable Order Form.