DTN Addendum – Ag Marketing Solutions
Last updated: June 2022
The following additional terms apply to AgriBI services, FarmFocus, FieldVision, CRM Connector, and farmer and/or grower data that are provided to Customer as part of the Services:
- Definitions. For purposes of this Addendum, the following terms have the meanings set forth below. Capitalized terms not otherwise defined in this Addendum have the meaning set forth in the Terms of Service.
- “Ag Marketing Solutions” means AgriBI, FarmFocus, FieldVision, CRM Connector, and farmer and/or grower data, whether web based or provided via API, FTP, or any other means.
- “Appended Data” means Licensed Data records that are used to supplement or enhance Customer’s third-party prospect or customer records. For avoidance of doubt, Appended Data includes only Licensed Data relating to specific third parties (i) that exist within Customer’s prospect and/or customer records prior to the delivery of the Licensed Data, or (ii) with whom Customer has established a bona fide commercial relationship, as demonstrated by Customer’s business records, during the Term of the applicable Order.
- “Customer Affiliate” means any company, corporation, subsidiary, partnership, limited liability company, association, trust, organization or other enterprise in which Customer directly, or indirectly through one or more intermediaries has a majority ownership interest (as a result of ownership of stock or other voting securities, contractual relationship, or otherwise).
- “Customer Records” means existing Customer internal records containing third-party prospect or customer contact information that are provided by Customer to DTN in connection with the Ag Marketing Solutions, but excluding any Appended Data.
- “Decoy Records” mean unique records using false names, which are included in the Licensed Data to ensure Customer’s compliance with the use restrictions of the Agreement. DTN may use these Decoy Records to track compliance through monitoring of communications to a Decoy Record via mail, phone, email, or other form of communication.
- “Licensed Data” means any Data that is provided by DTN to Customer through (or otherwise made available through Customer’s use of) the Ag Marketing Solutions, in accordance with the terms scope of any applicable Order. For avoidance of doubt, Licensed Data does not include Customer Records.
- “Non-Appended Data” means all Licensed Data records that are not Appended Data.
- “Permitted Use” means the Permitted Use described in the Order or an Exhibit attached thereto.
- Licensed Data License.
- Exceptions. Section 7(b) of the Terms of Service does not apply to Customer Records. For avoidance of doubt, the prohibition on creating derivative works set forth in Section 2(b)(i) of the Terms of Services does not preclude the creation of Appended Data, but only to the extent authorized by the Permitted Use.
- License Grant. Subject to and conditioned on Customer’s payment of Fees and compliance with the terms and conditions of the Agreement, DTN hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable license during the Term of the applicable Order to use the Licensed Data solely for the Permitted Use. Any purpose or use not specifically authorized in the Permitted Use is prohibited unless otherwise agreed to in writing by DTN. The total number of users and amount of usage by Customer will not exceed the limits set forth in the Order, except as expressly agreed to in writing by DTN and subject to any appropriate adjustment of the Fees payable under the Agreement. This license does not extend to any Customer Affiliate without an express written consent of DTN and subject to any appropriate adjustment of the Fees payable hereunder.
- Notice of Unauthorized Use. Customer shall notify DTN of any known or reasonably suspected unauthorized use or access of the Licensed Data and shall provide reasonable assistance to DTN in the investigation and prosecution of any such unauthorized use or disclosure.
- Delivery. DTN shall deliver the Licensed Data electronically or by other means to Customer as set forth in the Order.
- Decoy Records. DTN may include Decoy Records in the Licensed Data without prior notification to Customer. If the Licensed Data is comprised of 1,000 or more records, the quantity of Decoy Records will not exceed one-tenth of one percent (0.1%) of the delivered Licensed Data. If the Licensed Data is comprised of fewer than 1,000 records, DTN may insert one (1) Decoy Record in the Licensed Data.
- Effect of Termination.
Upon expiration or earlier termination of the applicable Order pursuant to which Licensed Data is provided to Customer:
- the licenses granted to Customer in section 2 of this Addendum terminate, and Customer shall cease using the Licensed Data; and
- Customer shall promptly return or destroy all Non-Appended Data by erasing all Non-Appended Data from its computer systems and destroying any information containing Non-Appended Data.
Upon request from DTN, Customer shall deliver to DTN an affidavit certifying Customer’s compliance with the obligations set forth in this section 3. No expiration or termination entitles Customer to any refund; provided, however, that where
Customer has paid any fees in advance, advanced fees will be refunded to Customer on a prorated basis based upon the effective date of termination.
- Perpetual License for Appended Data.
Upon expiration or earlier termination of the Term, DTN grants Customer a non-exclusive, non-sublicensable, and non-transferable perpetual license to retain and use such portions of the Licensed Data that constitute Appended Data for the sole purpose of maintaining such Appended Data as the same exist in Customer’s internal records at the time the Term expires. Customer shall not use Licensed Data for any other purpose after the Term expires. Unless Customer obtains the prior, written consent of DTN, Appended Data remains subject to all terms and conditions set forth in the Agreement.
- Intellectual Property.
Customer acknowledges that: (a) the Licensed Data is an original compilation protected by U.S. copyright laws; and (b) DTN has dedicated substantial resources to collect, manage, and compile the Licensed Data. Customer acknowledges and agrees that it will be considered a material breach by Customer under the Agreement if Customer contests any of DTN’s right, title, or interest in or to the Licensed Data, including without limitation, in a judicial proceeding anywhere throughout the world.
- DTN shall indemnify, defend, and hold harmless Customer from and against losses, damages, liabilities, or costs (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Licensed Data as provided to Customer infringes or misappropriates such third party’s U.S. intellectual property rights, provided that:
- Customer promptly notifies DTN in writing of the claim, cooperates with DTN, and allows DTN sole authority to control the defense and settlement of such claim;
- If such a Third-Party Claim is made or appears possible, Customer agrees to permit DTN, at DTN’s sole discretion, to (A) modify or replace any such infringing material to make it non-infringing, or (B) obtain rights to continue use. If DTN determines that none of these alternatives is reasonably available, DTN may terminate the Agreement, in its entirety or with respect to the affected part or feature of the Licensed Data, effective immediately on written notice to Customer; and
- This Section 6 will not apply to the extent that the alleged infringement arises from (A) use of the Licensed Data in combination with data, software, hardware, equipment, or technology not provided by DTN or authorized by DTN in writing, or (B) Customer’s violation of Section 2(b) of this Addendum.
- THIS SECTION 6 SETS FORTH CUSTOMER’S SOLE REMEDIES AND DTN’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE LICENSED DATA INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Compliance with Laws.
Customer shall comply with all applicable federal, state, local and foreign laws, rules and regulations in connection with its use of any Licensed Data, including (without limitation) the Telemarketing and Consumer Fraud and Abuse Protection Act of 1994, the Telephone Consumer Protection Act of 1991, The Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003, and the FTC Telemarketing Sales Rules. Customer shall defend and hold harmless DTN against all fines, claims, actions, loss, or any other liability which arise or relate to Customer’s violation of this Section 8.
- Audit Rights.
Upon reasonable suspicion that Customer is not complying with the terms of the Agreement, DTN may, on reasonable prior notice, inspect and audit Customer’s records related to its compliance with the Agreement. Such inspection and audit rights extend throughout the Term and continue for a period of two (2) years after the termination or expiration of the Agreement and/or the applicable Order.
Any provisions in this Addendum which, by their express terms or nature and context are intended to survive termination or expiration of the Agreement, survive any such termination or expiration, including without limitation the provisions set forth in Sections 2(b), 3, 4, 5, 6, 7, 8, and 9.