These Supplemental Terms are incorporated and made a part of the Agreement between Micro and Customer for Technology, Services, and Products. Micro will provide Technology, Services, and Products on the terms and conditions set forth in these Supplemental Terms and the Master Agreement. Any and all references to the “Agreement” in the Master Agreement or these Supplemental Terms shall be deemed to include both the Master Agreement and these Supplemental Terms.
In the event of any conflict between these Supplemental Terms and the Master Agreement, the provisions of the Master Agreement will control. Capitalized terms used in these Supplemental Terms have the meaning given to them in the Master Agreement, or if not defined in the Master Agreement, then such terms have the meaning set forth in these Supplemental Terms.
These Supplemental Terms are comprised of two parts: Part I contains additional terms and conditions that apply to and govern all Technology, Services, and Products provided to Customer by Micro; and Part II contains terms and conditions that only apply as specified and to the specific Technology identified therein.
PART I. Applies to all Technology, Services, and Products provided by Micro to Customer.
A. LICENSE AND PURCHASE OF TECHNOLOGY; SERVICES
A.1.1. License. In consideration of Customer paying all applicable set up, license, support, maintenance and other fees, Micro hereby grants to Customer a non-exclusive, limited, personal, revocable, non-assignable, non-transferable, non-sublicensable license to use the Licensed Technology provided by Micro to Customer for its intended purpose and solely for Customer’s internal business purposes and operations in accordance with the terms of the Agreement including any incorporated Order Form.
A.1.2. Maintenance; Access. Micro will perform routine maintenance on all Licensed Micro Technology but, unless otherwise agreed in writing, Customer will be responsible for all maintenance on Purchased Technology including any Licensed Third Party Technology embedded in Purchased Third Party Technology. Customer will grant Micro all reasonable access to the Licensed Technology to service, repair or remove such Technology. Unless otherwise agreed, non-routine support or maintenance will be charged at Micro’s standard rates and travel charges.
A.1.3. Operation of Technology. Customer will use and operate all Technology (i) in a careful and proper manner; (ii) in strict compliance with this Agreement and any instructions or manuals provided to Customer; (iii) only in a manner consistent with the Technology’s intended use; and (iv) in compliance with all applicable laws. Customer will be solely responsible, and assumes all liability, for Customer’s use or operation of the Technology and all feed, products or other outputs blended or processed with any Technology. Micro may consult with Customer on micro feed additives and input ingredient formulas into the Technology, but Customer is ultimately responsible to make the final decision on the components and ingredients in Customer’s feed and products, including their proportions and ratios. Customer shall establish and perform adequate quality and inventory control procedures to ensure the proper operation of the Technology and application of any ingredients and inputs delivered through or by any Technology. At a minimum, Customer will conduct daily inventories and promptly report to Micro any material discrepancies between the change in inventory and the volume of product that the Technology shows was dispensed. For purposes of clarity and without limitation, any discrepancy greater than 2% is material.
A.1.4. Requirements. Customer shall (i) maintain all physical Technology in good condition, ordinary wear and tear excepted, with reasonable cleanliness at all times; (ii) provide an environment that will protect physical Technology from dust, moisture and extreme variances in the elements and maintain the temperature within any recommended temperature range; (iii) use reasonable efforts to ensure that Customer does not store, distribute or transmit any viruses, worms, Trojan Horses, spyware, adware, or ransomware, or any material through any software Technology or hosting services provided by Micro that is unlawful or harmful; (iv) provide adequate electrical power, together with suitable wiring; (v) report any irregularities or malfunctions of the Technology to Micro within 12 hours of occurrence; and (vi) provide, at its own cost, high speed internet connectivity to the Technology at all times for remote support and monitoring.
A.1.5. Restrictions. Customer shall not (i) sublicense, transfer, rent, loan or assign Licensed Technology to any third party; (ii) permit any third party to access, use, possess or operate any Licensed Technology; (iii) move or relocate the Licensed Technology; (iv) use the Licensed Technology to provide services to any third party; or (e) make any alteration, additions or improvements of any nature to the Licensed Technology. Customer will not, directly or indirectly, export any Technology outside the U.S. and will comply with all U.S. export control laws.
A.1.6. Intellectual Property. The Technology constitutes valuable trade secrets and proprietary information of the Originator of such Technology and all copyrights, trade secrets, patents and other intellectual property rights in or related to the Technology will remain the exclusive property of the Originator. Customer will not (i) copy, modify, reverse engineer, decompile, decode, disassemble, translate or reproduce, (ii) attempt to derive the architecture, structure or source code of, or (iii) reveal or disclose to a third party any proprietary information related to, any Technology or any of its components. Customer will use reasonable efforts to prevent unauthorized access, use or copying and immediately notify Micro upon learning of any unauthorized access, use or copying of the Technology by any person or entity. All additions, conditions, attachments, accessories, and repairs at any time made to or placed upon the Licensed Technology shall become part of the Technology and shall be the property of the Originator. “Originator” means, with respect to Micro Technology, Micro, and with respect to Third Party Technology, the applicable third party provider of such Third Party Technology. Originator has sole and complete control over and reserves the right at any time to make changes to any Licensed Technology, including the configuration, operation, appearance, content and functionality of the Licensed Technology. Originator reserves all rights in the Technology not expressly provided to Customer in this Agreement or an incorporated Order Form.
A.1.7. Title. All Licensed Technology is, and will at all times remain, the sole and exclusive property of the Originator. Customer will have no title or ownership interest in or to the Licensed Technology. Customer shall keep the Licensed Technology free and clear of all levies, liens, security interests and encumbrances. Any and all software embedded in or supporting Technology, including Purchased Technology, is deemed to be Licensed Technology. Title to any Purchased Technology hardware will transfer to Customer upon payment in full for such Technology but ownership of all intellectual property rights in and to such Technology, including any embedded software, will remain with the Originator. Risk of loss of Technology shall transfer to Customer when the Technology is delivered to a location designated by Customer.
A.1.8. Offerings. In Micro’s sole discretion, Micro may make changes to its Technology offerings at any time including the configuration, operation, appearance, content, and functionality of any Technology Micro offers for license or purchase. Micro has no obligation to offer or continue to offer any Technology to Customer for license or purchase even if Micro has previously licensed or sold such Technology to Customer. Additionally, unless otherwise expressly stated in a mutually executed writing, Micro has no obligation to continue to support any Technology possessed by Customer.
A.1.9. Right to Remove or Delete. Upon the (i) expiration or termination of any agreement between Micro and an Originator of Third Party Licensed Technology, (ii) termination or expiration of this Agreement or any Order Form in whole or in part, or (iii) material default of Customer of this Agreement, Micro may, with or without notice to Customer, enter the premises or systems of Customer, either physically or remotely, and remove, disable and/or delete the Technology subject to such expiration, termination, or default.
A.1.10. Insurance. Customer shall, at Customer’s sole expense, maintain at all times during the term of this Agreement primary and noncontributory commercial general liability insurance and all-risk property insurance in amounts sufficient to cover the replacement costs of all Licensed Technology. The required insurance shall name Micro as an additional insured and as the loss payee with respect to the Licensed Technology. The fact that a loss may not be covered by insurance provided by Customer under this Agreement or, if covered, is subject to deductibles, retentions, conditions or limitations, shall not affect Customer’s liability for any loss to Licensed Technology, in whole or in part.
A.1.11. Services. All right, title and interest in and to all software, reports, materials, specifications, designs, models, processes and other deliverables (“Services Materials”) created by Micro or provided to Customer in connection with the Services shall, unless expressly agreed otherwise in writing, be and remain the exclusive property of Micro (or its suppliers if applicable). Micro grants Customer a non-exclusive, limited, personal, non-assignable, non-transferable, non-sublicensable license to use such Services Materials for their intended purpose solely for Customer’s internal business purposes and operations. Unless otherwise agreed, fees for Services will be charged at Micro’s standard rates and travel charges.
B. PURCHASE OF PRODUCTS
B.2.1. Required Products. Customer may agree in one or more Order Forms to a Purchase Commitment for all of Customer’s locations or facilities, for as long as Customer licenses or possesses the applicable Technology. Customer’s failure to comply with any Purchase Commitment will constitute a material breach of this Agreement and Customer shall be obligated to pay all damages to Micro resulting from such breach notwithstanding any waiver of consequential damages in the Agreement.
B.2.2. Products Pricing. If Micro and Customer have a mutually executed agreement for firm pricing for any Product, Micro still reserves the right to pass through any increase in pricing for Products by the same percentage that any manufacturer or supplier increases Micro’s price for such Products at any time, including, but not limited to, shipping, courier, freight, labor, fuel, or handling charges, notwithstanding anything to the contrary in such pricing agreement. In all other cases, Micro may prospectively increase the price for Products at any time in its sole discretion.
B.2.3. No resale; Agency. Customer will purchase Products only for its own account and for use at its own facilities and will not distribute, resale or otherwise transfer any Product to any third party. Products sold under an agency model will be subject to the respective manufacturer’s terms of sale.
B.2.4. Returns. As a distributor, Micro generally follows the return policy of each manufacturer whose Products Micro distributes, and the Products may be returned only to the extent the return is permitted by the respective manufacturer’s return policy.
B.2.5. Orders; Title; Risk of Loss. Micro will use reasonable endeavors to deliver the Products as ordered by Customer and accepted by Micro. Title and risk of loss to the Products will pass to Customer upon delivery if the Products are delivered directly by Micro or shipped via a carrier selected and engaged by Micro. Otherwise, title and risk of loss to the Products will pass to Customer upon the departure of the Product from Micro’s facility.
B.2.6. Delays. Micro is not responsible for the inability to provide Products purchased or delay in providing Products purchased caused or effected by any cause beyond Micro’s control. Micro shall perform as soon as practicable after such cause is removed.
B.2.7. Offered Products. Micro has no obligation to offer, or continue to offer, any certain product or any certain brand of products for purchase by Customer even if Micro has previously offered such products to Customer for purchase. If Micro does not offer for purchase a certain product or brand of product historically used by Customer, then such products will not be subject to any Purchase Commitment during any period of time that Micro does not offer such products for purchase.
B.2.8. Legal Compliance. Customer represents, warrants and covenants that it has and will maintain all licenses, certificates, prescriptions, and other authorizations as are required for Customer to purchase, handle, possess or use any of the Products and that Customer’s purchasing, handling, possession and use of the Products will strictly comply will all applicable laws, regulations, rules and ordinances.
B.2.9. Taxes; Shipping Charges. Unless otherwise agreed, Customer is solely responsible for all shipping charges, duties and taxes (other than taxes on Micro’s income) attributable or related to the sale, delivery or use of the Products by or to Customer. Micro may include the charges, duties and taxes on its invoice, otherwise Customer will directly pay the applicable shipper and tax authority.
B.2.10. Custom Trace Mineral Premix. At Customer’s request, Micro may purchase and supply to Customer Products that consists of custom formulated feed additive or custom trace mineral premix that is specifically formulated for Customer (“Custom Premix”). Customer acknowledges that Custom Premix is non-merchandisable by Micro to any other Micro customer and therefore agrees that Custom Premix is non-returnable and non-refundable. Customer may terminate usage of any Custom Premix at any time, however, Customer must first purchase all such Custom Premix that Micro has in its inventory and pay for such Custom Premix within Micro’s normal billing terms. Micro will use commercially reasonable efforts to manage Micro’s Custom Premix inventory levels (i) to adequately address the needs of Customer based upon Customer’s historical purchases and (ii) based on the manufacturer’s production lead times in order to control Micro’s Custom Premix inventory level.
C. INVOICING; PAYMENT
C.3.1. Invoicing; Payments. Customer will pay all amounts owed to Micro, including the applicable price of all purchased Products and any set up, license, support, maintenance, purchase, and any other fees and costs described in each Order Form. Customer will pay all invoices within 30 days of the invoice date. In addition to any other remedy available to Micro, Micro may charge Customer interest at an amount not to exceed the lesser of (i) 1.5% per month or (ii) the highest amount permitted by law on any past due undisputed amounts. Micro may, at its option, charge Customer a 3% processing fee for any payment made by credit or debit card. Customer is responsible for all taxes, (including value added or business privilege taxes but excluding any taxes on Micro’s income), duties, fees and tariffs attributable to the Technology or the Products, including the sale, delivery, possession or use of the Technology or the Products.
D. CONFIDENTIAL INFORMATION
D.4.1. Confidential Information. Except as expressly provided herein, each party agrees to retain all confidential, nonpublic or proprietary information, including the terms of this Agreement, received from or on behalf of the other party in confidence, not to disclose any such information to any other person, and not to use any such information to the other party's detriment or for any purpose other than in furtherance of or as permitted by this Agreement. This Section does not apply to information that (i) is generally available to the public through no fault of the recipient, (ii) was or is rightfully received by recipient from a third party without a duty of confidentiality, or (iii) is independently developed by recipient without use of or reference to such confidential information and such information will not be deemed to be confidential information. The recipient may disclose confidential information to its agents only to the limited extent necessary to carry out the purpose of this Agreement and will be fully responsible for any use or disclosure of confidential information by any of its agents.
D.4.2. Sales Data. For purposes of clarity, and notwithstanding anything to the contrary, Micro owns all information and data related to its sale, distribution, provision or delivery of Technology, Products and Services, and Micro retains all rights, in its sole discretion, to use, modify, copy, disclose, transfer, license or sell such data for any lawful purpose (which may include reporting such data to affiliates, manufacturers, suppliers, and data consolidators or aggregators). All such sales data are Micro’s confidential information.
E.5.1. Termination Obligations. Upon termination of this Agreement or any Order Form in whole or in part, Customer shall (i) surrender all applicable Licensed Technology in good condition and working order and grant Micro reasonable access to, at its expense, remove such Technology, (ii) return (or destroy at Micro’s request) all confidential or proprietary information of Micro, and (iii) promptly pay Micro all amounts due or accrued hereunder prior to termination and all applicable fees and non-amortization balances resulting from such termination. The termination of any Order Form will not affect the continuing force and validity of this Agreement or any other Order Form.
F. CUSTOMER DATA AND ACCESS
F.6.1. Data. Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data. Customer is solely responsible for maintaining all back-ups of Customer Data.
F.6.2. Access Request. From time to time, Customer may request Micro to enable a third party to access and download certain or all Customer Data (“Accessing Party”) through an automatic process with the Technology or other method (“Access”). Micro reserves the right to deny any such Access request from Customer for any reason or no reason. Additionally, Micro may require payment and that Customer and/or such Accessing Party sign an agreement prepared by Micro related to such Access.
F.6.3. Accessing Party Agreement. In the event that Micro does agree to grant an Accessing Party Access to Customer Data at Customer’s request (whether through an interface with Technology or otherwise), then Customer shall be solely responsible for entering into an agreement directly with the applicable Accessing Party that sets out the terms and conditions of the Accessing Party's possession, storage, handling, use, copying, processing, modification, editing, transfer and all other rights and obligations of Accessing Party with regard to the Customer Data (“Accessing Party Agreement”). Customer acknowledges and agrees that the applicable Accessing Party's possession, storage, handling, use, copying, processing, modification, editing, and transfer of Customer Data will be governed solely by the Accessing Party Agreement and that Micro is not responsible for monitoring, controlling, restricting or regulating the Accessing Party's possession, storage, handling, use, copying, processing, modification, editing, or transfer of Customer Data.
F.6.4. Release. Customer releases and indemnifies Micro and its affiliates, and its and their agents, servants, successors, and assigns from and against all claims, demands, losses, damages, liabilities, injuries and expenses, including without limitation reasonable attorney’s fees and costs, which arise out of or in connection with: (i) the Accessing Party’s possession, storage, handling, use, copying, processing, modification, editing, and transfer of Customer Data; and (ii) the services provided to Customer by Accessing Party, and (iii) any act, error or omission of the Accessing Party.
F.6.5. Termination of Access. Customer shall notify Micro immediately if any Accessing Party Agreement is terminated or expires. Upon receipt of such notification, Micro shall use reasonable efforts to terminate the Accessing Party's access to Customer Data. Micro reserves the right to terminate Access at any time without notice.
F.6.6. Interface. Micro shall have sole control and discretion over the development, functionality and operation of any interface or other process that provides Access. Micro retains the right, in its sole and absolute discretion, to modify, revise, improve, update, replace or further develop any interface or other process providing Access, including (without limitation) the format of Customer Data and the means of Access, and nothing in this Agreement shall restrict Micro's ability to do so.
F.6.7. Disclaimer. Micro does not represent or warrant: (i) that the Access will be of satisfactory quality or fit for any particular purpose; (ii) that the Access will be free from interruption or errors, or completely secure; or (iii) that the Access will be compatible with Customer's or the Accessing Party’s systems.
G. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY; INDEMNIFICATION
G.7.1. Micro Product and Services Warranties. Customer acknowledges that Micro is merely a distributor and not the manufacturer of the Products. As such, Micro only warrants that Micro will transfer good title to the Products and the Products will be delivered free of any security interest, lien or encumbrance. Micro will perform Services in a good and workmanlike manner.
G.7.2. Manufacturer's Warranty. The manufacturer of the Products or Third Party Technology may provide their own warranty. All such third-party warranties will be passed on to Customer to the fullest extent permitted. Micro does not represent or warrant the existence or scope of any manufacturer's or third-party warranty.
G.7.3. NO MICRO TECHNOLOGY WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL MICRO TECHNOLOGY AND SERVICES ARE BEING PROVIDED “AS AVAILABLE” AND “AS IS” WITHOUT WARRANTY OF ANY KIND AND WITH ALL FAULTS ACCEPTED AND THAT USE OF TECHNOLOGY, INCLUDING RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT, IS AT CUSTOMER’S SOLE RISK.
G.7.4. DISCLAIMER OF WARRANTIES. THE WARRANTIES IN THIS SECTION G CONSTITUTE THE SOLE AND EXCLUSIVE WARRANTIES BY MICRO WITH RESPECT TO THE TECHNOLOGY, SERVICES AND PRODUCTS AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. MICRO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SATISFACTORY QUALITY, NO HIDDEN OR LATENT DEFECTS, ACCURACY, OR ANY OTHER WARRANTIES IMPLIED BY OR ARISING FROM ANY COURSE OF DEALING, USAGE OF TRADE OR ADVERTISING. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.
G.7.5. SOLE REMEDY. CUSTOMER’S EXCLUSIVE REMEDY FOR ANY BREACH OF MICRO’S LIMITED WARRANTY IS FOR MICRO, AT MICRO’S SOLE EXPENSE AND DISCRETION, TO REPAIR, REPLACE, RE-PERFORM OR ACCEPT THE RETURN FOR A REFUND OF THE TECHNOLOGY, SERVICE OR PRODUCT AT ISSUE. SUCH REMEDY REPRESENTS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AGAINST MICRO FOR ANY DEFECTIVE, NONCONFORMING OR MALFUNCTIONING TECHNOLOGY, SERVICE OR PRODUCTS OR ANY BREACH OF THE LIMITED WARRANTIES IN THIS SECTION.
G.7.6. WAIVER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO PARTY SHALL BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY FOR ANY LOST REVENUE, LOST PROFIT, LOST GOODWILL, BUSINESS INTERRUPTION, LOSS OF CAPITAL, LOST DATA, WORK STOPPAGE, INACCURATE OUTPUT, LOSS OF USE, ADVERSE EFFECT, REDUCTION IN PRODUCTIVITY, OVER-, UNDER- OR MIS-APPLICATION OF PRODUCT OR INGREDIENTS OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE TECHNOLOGY, SERVICES OR PRODUCTS OR OTHERWISE AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing waiver shall not apply to liability or damages relating to Customer’s payment obligations or any Purchase Commitment. Notwithstanding anything in this Agreement to the contrary, no limitation or waiver of liability, damages, claims or remedies shall apply to any loss, damage, claim, judgment, or liability related to a third party claim for which one party is obligated to indemnify the other party under this Agreement.
G.7.7. LIMITATION OF LIABILITY. MICRO'S TOTAL LIABILITY TO CUSTOMER FOR ANY CLAIMS OF ANY KIND RELATED TO THIS AGREEMENT OR ANY PRODUCTS, TECHNOLOGY OR SERVICES, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, SHALL BE LIMITED TO DIRECT MONETARY DAMAGES ONLY AND SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID TO MICRO BY CUSTOMER FOR THE PRODUCTS, TECHNOLOGY OR SERVICES TO WHICH SUCH CLAIM RELATES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO CUSTOMER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN SIX MONTHS AFTER THE EVENTS THAT GAVE RISE TO THE CAUSE OF ACTION OCCURRED AND CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS NOT MADE WITHIN SUCH SIX MONTH PERIOD.
G.7.8. Indemnification. Customer shall defend, indemnify, protect and hold harmless Micro and its affiliates, and its and their agents, servants, successors, and assigns from and against all claims, demands, losses, damages, liabilities, injuries and expenses, including without limitation reasonable attorney’s fees and costs, to the extent caused by Customer’s (i) use or operation of the Technology, (ii) failure to follow any instructions or documentation provided in relation to the Technology, (iii) negligence or intentional misconduct, or (iv) breach of this Agreement, except to the extent caused by the fraud, negligence or willful misconduct of Micro.
H.8.1. Notices. Any notice required or permitted hereunder must be in writing and will be deemed given upon delivery, when delivered personally, by overnight courier or by email with confirmation of receipt, or the third business day after being deposited in the U.S. mail as registered or certified mail, postage prepaid, return receipt requested, addressed to the receiving party at its address indicated below its signature block on the Master Agreement or to such other address as such party has indicated by written notice.
H.8.2. Entire Agreement. The Agreement (which includes the Master Agreement and these Supplemental Terms) along with each incorporated Order Form, and all exhibits, schedules and incorporated terms, constitute the entire agreement and understanding of the parties and supersedes any prior agreements and understandings between the parties with respect to the specific subject matter of the Agreement and such related documents.
H.8.3. Modifications; Waivers. No provision of the Agreement may be altered, amended, changed or waived in any way except by a mutually signed, written instrument that (i) specifically identifies the Master Agreement, (ii) includes the specific intention to supersede a term, and (iii) identifies the location of such term by Section number. Notwithstanding the foregoing, Micro may update or change these Supplemental Terms by and upon communicating to Customer by email, on invoice, or other writing that such changes have been posted on the website hosting these Supplemental Terms (https://www.microtechnologies.com/supplemental-terms). Customer’s continued use of Technology, Services, or Products after receiving such communication of an update or change to these Supplemental Terms constitutes Customer’s acceptance of the changes. Any waiver shall be effective only in the specific instance and for the specific purpose stated in such writing and not obligate the waiving party to grant any further, similar, or other waivers. No waiver of any rights or obligations shall be implied, whether by course of dealing, any failure or delay in exercising any right, power or privilege hereunder, or otherwise. No amendment to any Order Form will amend any other Order Form.
H.8.4. Interpretation. Neither the Agreement nor any provision will be interpreted for or against any party on the basis that it or its attorney drafted the Agreement or the provision at issue.
H.8.5. Assignment. Customer may not assign, delegate nor transfer its rights or obligations under the Agreement or any Order Form to any third party without the prior written consent of Micro.
H.8.6. Independent Contractors. Neither party shall have authority to bind the other party. Nothing contained in the Agreement will be interpreted or construed so as to characterize the relationship between the parties as a joint venture, partnership, agency or franchise for any purposes whatsoever.
H.8.7. Severability. If any term, provision or agreement contained or incorporated in the Agreement is held to be invalid, illegal or unenforceable, the remaining provisions of the Agreement shall remain valid, legal, and enforceable and be enforced and construed as if such invalid provision were never a part of the Agreement.
H.8.8. Survival. All rights, obligations or liabilities accrued under the Agreement or any applicable Order Form prior to termination, and all rights or obligations which by their nature or express duration extend beyond the expiration or termination of the Agreement, will survive such expiration or termination and continue in effect indefinitely or for that express duration.
H.8.9. Legal Compliance. Customer represents and covenants: that it will comply with all applicable laws, regulations and rules; it has and will maintain all licenses, certificates and other authorizations as are required for Customer to purchase, possess or use the Technology and Products; and Customer’s purchasing, handling, possession and use of the Technology and Products will comply with all applicable laws, regulations and rules.
H.8.10. Force Majeure. Micro shall not be liable for any delay or failure in its performance of the Agreement if prevented by fire, explosion, accident, earthquake, flood, drought, embargo, war (whether or not declared), riot, terrorist attack, governmental act, pandemic, epidemic, delay or failure of carriers, acts of God, or any other cause beyond its control and such failure shall not constitute a breach of the Agreement.
H.8.11. Place of Business; Third Party Beneficiaries. Micro’s principal place of business is located in Idaho. Customer, Micro, and the guarantor, if any, are the only parties to this Agreement, and there are no intended or incidental third-party beneficiaries; provided, that, Section A.1.6. of these Supplemental Terms and each Section of the Agreement limiting liability and/or disclaiming warranties, each with respect to Third Party Technology, shall apply to Micro’s third party suppliers (including Originators of Third Party Technology and such Originators’ third party suppliers) in the same manner that they apply to Micro, mutatis mutandis. In any dispute the prevailing party shall recover from the other party reasonable attorney fees and costs, collection agency fees, and any other costs incurred.
H.8.12. Counterparts; Originals. The Agreement and any Order Form may be executed and delivered in counterparts and by facsimile, PDF or other electronic format, each of which will be deemed an original but all of which will constitute one and the same instrument.
PART II – Applies only to the specific Technology identified below as set forth below.
AA. IBM TERMS
AA.1.1. IBM Terms. If any Licensed Technology provided to Customer by Micro contains any embedded software for which International Business Machines Corporation (“IBM”) is the Originator, then in addition to the terms and conditions of the Agreement with Micro, Customer agrees as follows (i) Customer is not authorized to use the embedded software separately from the Licensed Technology; and (ii) upon request from Micro, Customer will provide adequate records, system tools output, and access to Customer’s premises as reasonably necessary for Micro to verify Customer’s compliance with this Agreement.
BB. AFIMILK TECHNOLOGY
BB.2.1. Afimilk. If Afimilk Agricultural Cooperative Ltd. is the Originator of any Technology provided to Customer by Micro then in addition to the terms and conditions of the Agreement with Micro, Customer agrees it will also be bound by the terms and conditions set forth at https://www.afimilk.com/app/uploads/afimilk-end-user-license-agreement.pdf.
CC. SCR TECHNOLOGY
CC.3.1. SCR. If SCR (Engineers) Ltd. is the Originator of any Technology provided to Customer by Micro then in addition to the terms and conditions of the Agreement with Micro, Customer agrees it will also be bound by the terms and conditions set forth at https://st.scrdairy.com/eula/terms_conditions_en.html.
Rev. June 2022