End User License Agreement
Effective date: January 1, 2020
These Terms of this End User License Agreement (the “Terms”) are a binding contract between you and Herd Connect LLC, a US company (“Herd Connect,” “we,” “us,” or “our”). You must agree to and accept all of the Terms in order to use our Services (defined below), website(s), App, and/or products (collectively, the “Services”). If you do not agree to these Terms, please do not install, access or use the Services in any manner or in any form.
You affirm that you are at least 18 (eighteen) years old. If you are under 18 years of age, you may not use the Services.
Herd Connect Services
Herd Connect grants you a limited, non-transferable, non-exclusive, non-sublicensable license to access and use the Services for your own internal, personal, non-commercial use (subject to these Terms). All rights not expressly granted remain reserved by Herd Connect.
The materials displayed, performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images and illustrations (collectively, the “Content”) may be protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions related to any Content you access through the Services, and agree that you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you: (i) without the prior consent of the owner of that Content or (ii) in a way that violates a third-party’s rights.
You understand that Herd Connect or its Related Companies own the Services and has no obligation to compensate you for any suggestions, ideas, enhancement requests, feedback, or information provided by you or any other party relating to the Services. You agree not to modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services.
Herd Connect does not claim ownership in any Content that you may upload through the Services. However, when you do so, you represent and warrant that you have the right to upload such content.
You understand that use of the Services may result in additional network traffic and/or affect certain on-device resources, such as battery.
Responsibilities and Acceptable Use
Any Content publicly posted or privately transmitted through the Services (including by you) is the sole responsibility of the person from whom such Content originated, and you access all such Content at your own risk. You agree that we are not liable for any errors or omissions in that Content or for any damages or loss you incur in connection with such Content. We cannot control, and have no duty to take any action regarding, how you may interpret and use such Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability related to such Content. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Herd Connect is not responsible for such risks. Herd Connect has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, practices, or opinions of any third-party websites or services or any third party that you interact with through the Services. You understand that Herd Connect does not endorse or sponsor any such third-party websites or services and that Herd Connect will not and cannot monitor, verify, censor, or edit the content of any third-party website or service. Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any such third parties. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party websites or services (as well as your interactions with any organizations or individuals related to such third-party websites or services).
If there is a dispute between users of our Services, or between users and any third party, you agree that Herd Connect is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Herd Connect, its Related Companies, and the officers, employees, agents, and successors of Herd Connect and its Related Companies from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
You understand that the Services may modify network traffic and/or device characteristics for your benefit (e.g., data compression) and hereby agree to any such modifications.
This End User License Agreement (this “Agreement”) between Herd Connect LLC, a Texas limited liability company and the customer set forth on the Order (“End User”), is effective as of the date the applicable Order is executed (the “Effective Date”). Subject to the terms of this Agreement, Herd Connect grants to End User, during the Term, a non-exclusive, non-transferable, nonsublicensable right and license to use Herd Connect’ application/software product (the “Software”) for internal business purposes only. The “Term” begins on the date Customer agrees to this End User License Agreement and lasts for the period specified in the applicable Order (unless terminated earlier in accordance with this Agreement). Any references in the Order to an “agreement” or “EULA” or other similar term shall be deemed to refer to this Agreement.
RESTRICTIONS ON USE
Herd Connect Production and Free Trial Edition licenses may be used in nonproduction (test) or production environments. Except as otherwise expressly provided in this Agreement, End User shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, make any external commercial use of, outsource, use on a timeshare or service bureau basis, or use in an application service provider or managed service provider environment, or otherwise generate service based income from the Software; (b) copy the Software onto any public or distributed network, except for secure cloud computing environments; (c) cause the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover any source code or other operational mechanisms of the Software (except where such restriction is expressly prohibited by law without the possibility of waiver, and then only upon prior written notice to Herd Connect); (d) modify, adapt, translate or create derivative works based on all or any part of the Software; (e) use any Third Party Software provided with the Software other than with the Software; (f) modify any proprietary rights notices that appear in the Software or components thereof; (g) use the Software in violation of any applicable laws and regulations; (h) configure the Software to collect any (1) social security numbers or other government-issued identification numbers, (2) unencrypted passwords or other authentication credentials, (3) health information, biometric data, genetic data or any other such information subject to HIPAA requirements (4) payment, financial information, or any other such information subject to PCI security standards, (5) any data relating to a person under the age of 13 years old, or (6) any other data that is subject to regulatory or contractual handling requirements pursuant to the Gramm-Leach-Bliley Act) (collectively, “Prohibited Data”); or (i) use the Software to (1) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware, or (2) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity, (3) interfere with or disrupt the integrity or performance of third party systems, or the Software or data contained therein, or (4) attempt to gain unauthorized access to the Software or Herd Connect’ systems or networks, or (5) perform, or engage any third party to perform, authenticated or unauthenticated penetration testing, vulnerability assessments or other security assessments on the SaaS version of the Software.
Violation of any of the foregoing is grounds for termination of your right to use or access the Services.
If End User accesses any software provided by Herd Connect pursuant to a no-fee Evaluation, then the License Term is for the period enabled by the license key for the Evaluation. Herd Connect shall have the right to terminate, downgrade, limit or otherwise modify the Evaluation at any time without notice or compensation, and no warranty, indemnity, availability, Maintenance or Support obligations of Herd Connect will apply to the Evaluation. End User may use the number and type of licenses enabled by End User’s specific license key, but only to test and evaluate the Service for its intended purpose. End User agrees to provide feedback related to the Evaluation as reasonably requested by Herd Connect. End User grants to Herd Connect, without charge, the fully paid-up, perpetual, sublicensable right to exploit such feedback for any purpose. The Evaluation is subject to the terms of this Section to the same extent as the Services.
Modifications to the Services
We may, at any time, suspend or discontinue any part of the Services, introduce new features, impose limits on certain features or restrict access to part or all of the Services. Similarly, we reserve the right to remove and/or block any Content from the Services at any time for any reason (including, but not limited to, if someone alleges you contributed such Content in violation of these Terms).
Termination and Survival
Herd Connect may terminate (or suspend) your access to the Services at any time for any reason. Herd Connect has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
All data (including user name, password, and any livestock data) uploaded to or created within the Service by you are your sole responsibility and are owned by you. Should you not renew the Services at the end of any term, your data will be stored for one (1) year, at the end of which period it will be deleted. You may restart your services, and will have full access to your data, at any point within one (1) year of the end of a fully paid term. Your data is available to you, at any point, through the reporting tool(s) available within the Services only.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
We reserve the right to increase or charge separately for part or all of Services at any time. If the Services are not paid for in a timely manner, including any renewals, we reserve the right to terminate your access to the services. We will notify you before any such increases or other fees become applicable.
THE SERVICES AND CONTENT ARE PROVIDED STRICTLY ON AN “AS-IS” BASIS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY HERD CONNECT (INCLUDING ITS RELATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS AND ASSIGNS) AND ITS LICENSORS. WITHOUT DEROGATING THE FOREGOING, HERD CONNECT AND ITS RELATED COMPANIES MAKE NO REPRESENTATION, WARRANTY OR GUARANTY THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, BE ERROR-FREE, OPERATE WITHOUT DISRUPTION, DELAYS, OR LIMITATIONS OR BE IMMUNE FROM UNAUTHORIZED ACCESS.
Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL HERD CONNECT OR ANY OF ITS RELATED COMPANIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY MATTER BEYOND OUR OR THEIR REASONABLE CONTROL. APPLICABLE LAW MAY NOT ALLOW CERTAIN LIMITATIONS AND/OR EXCLUSIONS. IN SUCH CASES, HERD CONNECT OR ITS RELATED COMPANIES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You agree to indemnify and hold Herd Connect, its Related Companies, officers, agents, employees, and partners harmless from and against any and all complaints, claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to third-party claims involving: (a) your use of the Services (including any actions taken by a third party using your account) and (b) your violation of these Terms.
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder in any way (by operation of law or otherwise) without Herd Connect’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law
These Terms are governed by and will be construed under the laws of the State of Texas, without regard to the conflicts of law provisions thereof. The location and venue for any litigation and related disputed arising from or relating to the subject matter of these Terms must be filed in the Court of competent jurisdiction in Clay County, Texas, or the Federal District Court for the Northern District of Texas in Wichita Falls, Texas. All proceedings will be in accordance with laws of the State of Texas and of the United States.
The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Herd Connect agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Herd Connect and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. Modifications to these Terms may happen at any time, in Herd Connect’s sole discretion, and will be made available on Herd Connect’s web site. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Herd Connect, and do not have any authority to bind Herd Connect in any respect whatsoever. These Terms were written in English (US). To the extent any translated version conflicts with the English version, the English version controls.
We reserve the right to update these Terms at any time and encourage you to review them periodically. You agree that continued use of the Services after changes to the Terms have been posted signifies your acknowledgement and consent to such updated Terms. If you do not agree to the updated Terms, you must terminate your use of the Services (see “Termination,” above).