WHEREAS, Cabbige provides a business management and pricing tool, available on or through its website, or web or mobile applications (collectively, the “Platform”), which is designed to provide participating farms with price recommendations, inventory management tool, and business reports; and

            WHEREAS, Sponsor wishes to facilitate use of the Platform by its members;

            NOW THEREFORE, in consideration of the covenants set forth herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereby enter into this Agreement.

1.     Use of the Platform


(a)    During the term of this Agreement and subject to the other terms and conditions herein, Cabbige will permit members of Sponsor to use the Platform on the terms and conditions and for the prices set forth in the signed Sponsorship Program Agreement (the “Sponsorships Program Agreement”). 
(b)    All use of the Platform by Sponsor or any of its members shall be subject to Cabbige’s Terms of Service and Privacy Policy for the Platform, each in effect from time to time and available at [http://my.cabbige.com/static/terms and [my.cabbige.com/static/privacy (the “Terms of Service” and “Privacy Policy,” respectively), and each user shall be required to accept such Terms of Service and Privacy Policy electronically in order to use the Platform.
(c)    Sponsor will provide the co-branding and other messaging described on Sponsorship Program Agreement
(d)    Cabbige will provide the support and training described on Sponsorship Program Agreement.
 
2.     Sponsor Fees
Sponsor shall pay Cabbige the set forth in Sponsorship Program Agreement.

3.     Term and Termination

(a)    Unless either renewed as provided below or earlier terminated as provided below, the term of this Agreement will begin and end on the dates outlined in the signed Sponsorship Program Agreement
(b)    Either party may terminate this Agreement by written notice to the other party in the event the other party has materially breached this Agreement and such breach is not cured within thirty (30) days after receipt of written notice thereof. 
(c)    Cabbige may terminate this Agreement at any time by written notice thereof to Sponsor; provided that promptly following termination under this Section 3(c), Cabbige shall refund to Sponsor on a pro rata basis any pre-paid fees attributable to the remainder of the term (e.g., if 3 months remain in the then-current 12 month renewal term for which the Annual Fee has already been paid by Sponsor, Cabbige will refund 25% of such Annual Fee).
(d)    Upon any expiration or termination of this Agreement, Sections 7 and 8, as well as any other provisions which by their nature should reasonably survive, shall survive such expiration or termination.  In addition, following any expiration or termination of this Agreement, Sponsor shall promptly return all Proprietary Material, if any, to Cabbige.
(e)    This Agreement and any provision hereof (including pricing) may be renewed and the term of this Agreement may be extended at any time by written agreement of the parties; provided that unless it is expressly agreed to the contrary Cabbige will continue to be able to message, but Sponsors’ members will not have access to user’s tools or data, after the end of the pilot program contemplated by this Agreement unless Sponsor or any user individually renews or extends its participation in which case Sponsors’ members shall continue to have access to users’ tools and data.

4.     Supporter Status
Cabbige may disclose to potential customers, investors, sponsors and other third parties that Sponsor has executed this Agreement, and may publish Sponsor’s corporate logo and name on the Cabbige website in connection with publicizing the Platform.  All use of Sponsor’s logo and name shall inure to Sponsor and shall be subject to Sponsor’s trademark guidelines for presentation of its logo.


5.     Feedback and Proprietary Material


(a)    To the extent that Sponsor provides Cabbige with feedback about the Platform or ideas for new features or improvements for the Platform (“Feedback”), Cabbige will have the right to use and disclose the Feedback in any manner and for any purpose, without compensation to Sponsor, and (ii) allow third parties to also do so.  Sponsor obtains no right, title or interest in the Platform as a result of the provision of the Feedback.
(b)    Sponsor acknowledges that the Platform, any non-public information disclosed by Cabbige or otherwise received by Sponsor relating to the Platform, and any Feedback constitute valuable proprietary material of Cabbige (collectively, “Proprietary Material”), and that any disclosure of the Proprietary Material is a breach of this Agreement and would cause irreparable harm to Cabbige.  Sponsor agrees Cabbige is entitled to seek immediate injunctive relief prohibiting such breach, in addition to any other rights and remedies available to it. Sponsor agrees to keep confidential and not to disclose to any third party the Proprietary Material. The obligations of this paragraph shall survive the termination or expiration of this Agreement.

6.     DISCLAIMER OF WARRANTY
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY SET FORTH IN THE TERMS OF SERVICE, THE PLATFORM IS BEING PROVIDED ON AN “AS IS” BASIS, WITH ALL FAULTS, AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND.  CABBIGE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE PLATFORM WILL MEET SPONSOR’S OR ANY USER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE PLATFORM.  No advice or information, whether oral or written, obtained from Cabbige or through the Platform will create any other warranty.


7.     LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY SET FORTH IN THE TERMS OF SERVICE, UNDER NO CIRCUMSTANCES WILL SPONSOR BE ENTITLED TO RECOVER FROM CABBIGE ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PLATFORM, EVEN IF CABBIGE HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.


8.     GENERAL
This Agreement shall be governed by the laws of The Commonwealth of Massachusetts without regard to its conflicts of laws principles.  Sponsor may not assign this Agreement or any rights hereunder, or delegate any obligations hereunder, without the prior written consent of Cabbige and any such assignment or delegation without such consent shall be null and void.  Cabbige may assign this Agreement, including to any purchaser of its business.  This Agreement (together with the Terms of Service and Sponsorship Program Agreement) sets forth the entire understanding between Sponsor and Cabbige with respect to the subject matter herein, and supersedes all prior written agreements, discussions and understandings, expressed or implied, concerning such matters.  This Agreement may not be modified, amended, rescinded, canceled or waived, in whole or part, except in writing executed by Sponsor and Cabbige (or by the waiving party, for waivers). No delay or omission by Cabbige in exercising any of its rights occurring upon any noncompliance or default by Sponsor with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Cabbige of any of the covenants, conditions or agreements to be performed by Sponsor will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein.  In no event will Cabbige be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside its reasonable control.  If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, it shall be severed from this Agreement and all other provisions will continue to be enforced.  As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive.  Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement.  This Agreement may be executed by the parties in counterparts, each of which shall be an original and both of which together shall form a single agreement.

9.     Notification of Changes

Cabbige may change our Terms of Service for Sponsorship Agreements at anytime and will post those changes to this Terms of Service for Sponsorship Agreements statement and other places we deem appropriate.

 

Updated: August 31, 2015