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© 2021 FolioGrow

Your Cloud-Based Horticulture Productivity Platform

Run your Grow like a Stock Portfolio.
Manage assets, teams and crops, while using data to analyze results and maximize profit margins.

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Terms and Conditions.

SOFTWARE AS A SERVICE AGREEMENT

FOLIOGROW, LLC (“FOLIOGROW”) SERVICE AND PRODUCTS

THIS LEGAL DOCUMENT IS A SOFTWARE AS A SERVICE AGREEMENT ("AGREEMENT") BETWEEN YOU, THE END-USER ("USER"), AND FOLIOGROW FOR ALL SERVICES AND PRODUCTS PROVIDED BY FOLIOGROW HEREIN. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING AND/OR ACCESSING THE SERVICE. BY USING THIS SERVICE, YOU, THE USER, ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

Subject to the terms hereinafter set forth, FOLIOGROW grants to USER a personal, non-exclusive, nontransferable license to access the FOLIOGROW SAAS proprietary service and any downloadable software for use with the FOLIOGROW SAAS proprietary service, if any, (collectively, the “Service”), proprietary to FOLIOGROW or its suppliers, including associated documentation, as a part of USER-purchased products which contain FOLIOGROW products (“Products”). USER is granted no title or ownership rights in or to the Service, the Products, and any software therein or related thereto, in whole or in part, and USER acknowledges that title to and all copyrights, patents, trade secrets, and/or any other intellectual property rights to and in all such Service, and the software therein or related thereto, and associated documentation are and shall remain the property of FOLIOGROW and/or FOLIOGROW’s suppliers.

This Agreement will be effective from the earlier of: (a) the date this Agreement is accepted by USER; or, (b) the date on which USER first accessed the Service, whichever is earlier, and shall continue until terminated.

FOLIOGROW considers the Service to contain “trade secrets” of FOLIOGROW and/or its suppliers. Such “trade secrets” include, without limitation thereto, the specific design, structure, and logic of individual software programs, business methods, screens, output and their interactions with other portions of Service, both internal and external, and the programming techniques employed therein.

All grants of rights to use intellectual property intended to be accomplished by this Agreement are explicitly stated. No other grants of such rights shall be inferred or shall arise by implication.

USER shall not assign its rights under this Agreement to any third party. Any attempted assignment of rights shall be void and conclusively presumed a material breach of this Agreement.

If FOLIOGROW, in its sole discretion, (i) claims a material breach of this Agreement, and (ii) provides written notice of such claimed material breach to USER and (iii) observes that such claimed material breach remains uncorrected and/or unmitigated more than thirty (30) days following USER's receipt of written notice specifying in reasonable detail the nature of the claimed material breach, then USER acknowledges that this Agreement may be immediately terminated by FOLIOGROW and USER further acknowledges that any such termination shall be without prejudice to any other rights and remedies that FOLIOGROW may have at law or in equity. Further, this Agreement may be terminated at any time by FOLIOGROW, with or without cause, effective upon notice of termination. All confidentiality obligations of USER shall survive termination.

FOLIOGROW, in its sole discretion, may or may not respond to USER feedback or promise to address all USER feedback in the development of future features or functionalities of the Service or any related or subsequent versions of such Service. In the event FOLIOGROW uses USER’s feedback, USER grants FOLIOGROW an unrestricted, perpetual, worldwide, exclusive, transferable, irrevocable, sub-licensable, royalty-free, fully paid-up license to use, copy, modify, create derivative works of, make, have made, distribute (through multiple tiers of distribution), publicly perform or display, import, export, sell, offer to sell, rent, or license copies of USER’s feedback as part of or in connection with any FOLIOGROW product, service, technology, content, material, specification, or documentation. USER warrants that any feedback provided by USER does not infringe any copyright or trade secret of any third party, and that USER has no knowledge of any patent or other type of intellectual property of third party that may be infringed by the feedback (including any implementation thereof recommended by USER). USER further warrants that USER’s feedback is not subject to any license terms that would purport to require FOLIOGROW to comply with any additional obligations with respect to any FOLIOGROW product or service that incorporates USER’s feedback.

USER acknowledges that FOLIOGROW and its providers may obtain certain information and data from USER in connection with USER’s use of the Service; including, without limitation, information and data provided in connection with registration, activation, updating, authentication, monitoring installation of, and access to the Software. USER hereby grants FOLIOGROW a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sub-licensable license to use, access, transmit, host, store, and display such data for the purpose of providing and improving the Service. FOLIOGROW (or its sub-licensees) may exercise such license for purposes of providing, maintaining, repairing, administering, and improving the Service or in developing new products or services, including, but not limited to, the rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of such data. USER hereby represents, warrants, and agrees that any data and/or other materials provided or made available to FOLIOGROW by USER will include only information relevant to the Service and the use thereof and will not include any personally-identifiable information or any protected health data. USER acknowledges and agrees that USER is solely responsible for all data uploaded or submitted using the Service by USER and for USER’s conduct while using the Service. USER further acknowledges and agrees that: (a) USER will evaluate and bear all risks associated with the use of any data; (b) USER is responsible for protecting and backing up data; (c) USER is responsible for protecting the confidentiality of any data; and (d) under no circumstances will FOLIOGROW be liable in any way for any data, including, but not limited to, any errors or omissions in any data, or any loss or damages of any kind incurred as a result of USER’s use, deletion, modification, or correction of any data. USER hereby consents to FOLIOGROW and its providers maintaining, using, storing, and disclosing such information and data (including, without limitation, personal information) in conformity with the “FolioGrow Privacy Policy,” which may be updated from time to time. USER further consents to receiving electronic communications and notifications from FOLIOGROW in connection with USER’s use of the Service. However, FOLIOGROW has no responsibility to store, protect, remove, or delete any data for USER and shall have no liability for the deletion of or failure to store any data.

USER shall:

  • Hold the Products and Service in confidence for the benefit of FOLIOGROW and/or FOLIOGROW’s suppliers using no less a degree of care than it uses to protect its own most confidential and valuable information; and
  • Maintain logos of FOLIOGROW and/or FOLIOGROW’s suppliers, appearing on the original copy of Products delivered to USER; and retain the same without alteration on all original copies; and
  • Issue instructions to each of its authorized employees, agents, and/or representatives to whom Service is disclosed, advising them of the confidential nature of such Service and to provide them with a summary of the requirements of this Agreement; and

USER shall not:

  • Use the Service (i) for any purpose other than USER's own internal use; and (ii) other than as provided by this Agreement; or
  • Allow anyone other than USER's employees, agents and/or representatives with a "need to know" to have access to the Service; or
  • Duplicate any aspect or feature of the Service for the purpose of reengineering or recreating software or a service similar to the Service; or
  • Attempt to reverse engineer, disassemble, reverse translate, decompile, or in any other manner decode Service in order to derive the source code form; or
  • Make full or partial copies of any documentation or other similar printed or machine-readable matter provided with Service or Products unless the same has been supplied in a form by FOLIOGROW intended for periodic reproduction of partial copies.

THE SERVICE IS PROVIDED “AS IS” AND WITH ALL FAULTS. THIS AGREEMENT DOES NOT CONFER ANY WARRANTY TO USER FROM OR BY FOLIOGROW.

FOLIOGROW HAS NO OBLIGATION TO SUPPORT, UPDATE, OR UPGRADE THE SERVICE. IN NO EVENT WILL FOLIOGROW AND/OR FOLIOGROW’S SUPPLIERS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO OR THROUGH USER FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF BUSINESS OR BUSINESS INFORMATION, BUSINESS INTERRUPTION, OR OTHER ECONOMIC DAMAGE, AND FURTHER INCLUDING INJURY TO PROPERTY, AS A RESULT OF USE OR INABILITY TO USE THE SERVICE OR BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, REGARDLESS OF WHETHER FOLIOGROW AND/OR FOLIOGROW’S SUPPLIERS WERE ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.

LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL FOLIOGROW BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO USER’S USE OF OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF FOLIOGROW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FOLIOGROW’S TOTAL LIABILITY TO USER FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

THE RIGHTS AND OBLIGATIONS ARISING UNDER THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT WILL BE BROUGHT EXCLUSIVELY IN THE FEDERAL OR STATE COURTS LOCATED IN OR AROUND DALLAS, TEXAS, AND THE PARTIES HEREBY CONSENT TO PERSONAL JURISDICTION AND VENUE THEREIN.



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