BUSHEL SOFTWARE LICENSE AND TERMS OF USE

(Last updated January 22, 2019)

INTRODUCTION

Myriad Mobile, LLC (“Myriad”) has created this mobile software platform (the “Bushel app”) to provide and permit end-users the ability to connect with the Bushel Platform and other existing systems for the purpose of connecting with their grain elevators, including The Scoular Company (and its Farmer Customer Service (“FCS”) app (“Scoular”), and for accessing and reviewing information and reports regarding their grain elevator relationship, including specific growers' grain and business information and related industry information (collectively, the “Services”). For purposes of clarity, please note that the Bushel app, as in this case where it is being licensed to Scoular, also includes Scoular branding, and may be referred to interchangeably as the FCS app.  For purposes of these Software License and Terms of Use, the FCS app and the Bushel app will be referred to as the “Bushel app.”

Throughout these Software License and Terms of Use, and Privacy Policy (separately the “Software License and Terms of Use,” and the “Privacy Policy,” and collectively the “Agreement”), the terms “we”, “us”, and “our” may refer to Scoular and Myriad jointly or singularly, depending on the context of the term. In the case of any ambiguity, the construct shall default to Scoular and Myriad jointly. “Scoular” refers to The Scoular Company, a Nebraska corporation, and “Myriad” refers to Myriad Mobile, LLC, a North Dakota limited liability company. The terms “you” and “User” refer to you and/or any individual downloading or using the Bushel app, or using the Services. By registering to use the Services, or by downloading or using the Bushel app, you agree to and are bound by the terms and conditions in this Agreement.

If you do not accept this Agreement, you are not authorized to use the Services or the Bushel app. Myriad may modify this Agreement at any time and such modification will be effective upon posting to the Bushel app, however we will endeavor to notify our users of any such changes via email or via notification when using the Services. Your continued use of the Bushel app and Services after changes are posted constitutes your acceptance of this Agreement as modified.

 

SOFTWARE LICENSE

Your use of the Bushel app is subject to this Agreement as well as the Google Play Terms of Service, the Microsoft’s Windows Store Terms of Use, or Apple app Store Terms and Conditions and any applicable usage rules set forth therein. You are hereby granted a non-exclusive, non-transferable, revocable license to use the Bushel app on any authorized device that you lawfully own or control, for the sole purpose of accessing and using the Services under this Agreement.

Any use of the Bushel app beyond the scope of the foregoing license is strictly prohibited. As a condition of use, you agree not to use the Bushel app or Services for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third party to): (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Bushel app, (b) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Bushel app except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) interfere with or attempt to interfere with the proper functioning of the Bushel app; (d) attempt to engage in or engage in, any potentially harmful acts that are directed against the Bushel app, the Services, Scoular and/or Myriad, including but not limited to violating or attempting to violate any security features of the Bushel app; or (e) access the Bushel app or Services in order to build a similar or competitive application, platform, or service. Any unauthorized use of the Bushel app or Services terminates the licenses granted by Scoular and/or Myriad pursuant to this Agreement.

USE OF THE APP AND SERVICES

You acknowledge that the Bushel app is the intellectual property of and is owned by Myriad, and may contain intellectual property owned by Scoular. The structure, organization and code of the Bushel app are the valuable trade secrets and confidential information of Myriad, and you agree not to disclose such structure, organization and code for any purpose other than as approved by Myriad in writing or disclose such structure, organization and code to third parties. The Bushel app is protected by copyright, including without limitation by United States copyright law, international treaty provisions and applicable laws in the country in which it is being used. You acknowledge that Myriad and/or Scoular retains the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Bushel app. You will take no actions that adversely affect Myriad’s and/or Scoular’s intellectual property rights in the Bushel app.

The Services include material, such as software, source code, text, graphics, images, video, audio, data and other material (collectively referred to as the “Content”). The Content may be owned by us or by others, including Users of the Services, or other third parties (“Third-Party Content”). Myriad makes no claim of ownership in connection with Third-Party Content and makes either licensed use or fair use of such Third-Party Content for the editorial, news reporting, or other transformative purposes of the Services. The Content is protected by intellectual property laws under United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, patent and other laws. You have no rights in or to the Content, and you may not use the Content, except as permitted under this Agreement.

Myriad Mobile, the Myriad Mobile Logo, Bushel, and the Bushel Logo, other products or service names or slogans displayed on the Bushel app, and the “look and feel” of the Bushel app are the trademarks and trade dress of Myriad Mobile, LLC or The Scoular Company, and may not be used or copied, in whole or in part, without our prior written consent. Other trademarks referenced, depicted, or otherwise used in connection with the Services (the “Third-Party Trademarks”) belong to their respective owners or licensees and Myriad is not affiliated with, sponsored by, or otherwise associated with such entities unless such a relationship is explicitly identified in the Services. The Third-Party Trademarks may not be used to disparage any applicable third-party, or their products or services, or in any manner in which, in our reasonable judgment, may damage any goodwill in the Third-Party Trademarks.

The Services may include links to, and content and data from, third-party websites (“External Sites”). These links, content, and data are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. Your use of any such links, content, and External Sites is at your own risk, and Myriad and/or Scoular are not responsible for any loss or damage that arises from, relates to, or is due to your use of or reliance on any content, data, products or services offered on External Sites. In addition, the Services contain content posted, stored, or displayed at the direction of Users of the Services, for which we cannot accept any responsibility or liability.

The Services are for personal use only and may not be used by third parties except those that are specifically approved by us. The following activities are expressly prohibited: (i) collecting usernames and/or email addresses of other Users by electronic or other means for the purpose of sending unsolicited email or other communications, (ii) any use of the Services, which in our sole judgment, degrades the reliability, speed, or operation of the Services or any underlying hardware or software thereof, and (iii) any use of the Services that is unlawful or in violation of this Agreement.

No individual under the age of 13 years may use the Bushel app or Services. By downloading and using the Bushel app or using the Services, you represent and warrant that you are 13 years of age or older. Your account may be terminated without warning if we believe that you are under 13 years of age.

Use of the Services is subject, in our sole discretion, to termination at any time and for any reason whatsoever.

USER CONTENT

The Services may now or in the future permit the submission of Content, including information and data regarding growers’ crops stored at participating elevators and other Content submitted at the direction of Users of the Services or generated by participating elevators based on growers’ data (“User Content”) and the hosting, sharing, and/or publishing of such User Content. You understand that whether or not such User Content is published, we do not guarantee any confidentiality with respect to any submissions except as otherwise specified in the Privacy Policy as may be amended from time to time.

You shall be solely responsible for User Content you submit and the consequences of our posting or publishing such User Content. Myriad and/or Scoular do not control, endorse, or verify User Content or any opinion, recommendation, or advice expressed therein and expressly disclaims any and all liability with regard to such User Content.

In connection with any User Content you submit, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement; and (ii) you have the express consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement. By submitting the User Content to us, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, modify, display, translate and perform all or any portion of the User Content in connection with and to conduct our operation of the Services and our (and our successors’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels now known or hereafter devised, for any Purpose, subject to the Privacy Policy as may be amended from time to time. You also hereby grant each User of the Services a non-exclusive license to access your User Content through the Services, if you have permitted such access through your account settings, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Services and under this Agreement and the Privacy Policy. Myriad and/or Scoular may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required by law.

We do not permit copyright infringing activities or infringement of intellectual property rights through the Services, and we may, in our sole discretion, remove all Content and User Content if properly notified or determined that such Content or User Content infringes on another's intellectual property rights. We may remove any Content and User Content without prior notice. We may also terminate your access to the Services if you are determined to be a repeat infringer. A repeat infringer is anyone who has been notified of infringing activity more than once and/or has had any User Content removed from the Services more than twice. We also reserve the right to decide, in our sole discretion, whether Content or User Content is appropriate and complies with this Agreement, and we may remove User Content and/or terminate your access to the Services for uploading any material deemed in violation of this Agreement at any time without prior notice and at our sole discretion.

NOTICES AND PROCEDURES FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

If you are a copyright owner or an agent thereof and believe that any User Content or other Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
  4. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our designated Copyright Agent to receive notifications of claimed infringement and other notices relating to User Content and/or violation of this Agreement (e.g., violations of criminal laws) are

Copyright Agent
Myriad Mobile, LLC
503 7th St. N, Suite 301
Fargo, ND 58102 USA
Copyright Agent
The Scoular Company
2027 Dodge St
Omaha, NE 68102

For clarity, only DMCA notices and notices relating to complaints in connection with User Content or violations of this Agreement should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be addressed to our standard support contacts as identified through the Services.

DATA, PERSONAL INFORMATION, AND PRIVACY

As further described and provided for in the Privacy Policy, when you interact with Myriad and/or Scoular through your use of the Bushel app or the Services or through your grain elevator(s), we may collect, retain, analyze, use, share, and disclose data and information, including personally-identifiable data, aggregated data, de-identified data, and other information from you. You agree that such data and information may be used by us as described herein and in the Privacy Policy. By using the Bushel app or the Services, or entering into this Agreement, you hereby acknowledge that you have read the Privacy Policy and you understand and agree to our use of such data and information as described therein.

INDEMNITY

You agree to defend, indemnify, and hold Myriad and/or Scoular and their respective officers, directors, employees, partners, vendors, customers, contractors, agents, associates and affiliates harmless from and against any and all liabilities, claims, actions demands, or expenses, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, your violation of the law or rights of any third-party, or your access to, use or misuse of the Bushel app, the Content (including User Content) or the Services. Myriad and/or Scoular reserve the right, but are not obligated, to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Myriad and/or Scoular's defense of such matter.

DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

MYRIAD AND/OR SCOULAR, OUR AFFILIATES, OUR PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, CONTRACTORS, OR LICENSORS (COLLECTIVELY THE “ PARTIES”), MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT (INCLUDING THE USER CONTENT), INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY.

THE PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO USERS OF THE SERVICES OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOUR USE OF THE SERVICES, THE BUSHEL APP, AND THE CONTENT (INCLUDING USER CONTENT) IS AT YOUR OWN RISK.

THE PARTIES MAKE NO WARRANTY THAT THE SERVICES OR THE BUSHEL APP WILL MEET YOUR REQUIREMENTS OR OPERATE ERROR FREE OR THAT THE BUSHEL APP, SERVICES, THEIR SERVER(S), OR THE CONTENT (INCLUDING THE USER CONTENT) ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE BUSHEL APP OR SERVICES OR THE CONTENT (INCLUDING USER CONTENT) RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS.

THE BUSHEL APP, SERVICES AND CONTENT (INCLUDING USER CONTENT) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.

IN NO EVENT SHALL THE PARTIES BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE BUSHEL APP, SERVICES OR THE CONTENT (INCLUDING USER CONTENT), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE PARTIES’ LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

 

GENERAL

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction.

This Agreement is governed by the internal substantive laws of the State of North Dakota, without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of Fargo in the State of North Dakota.

If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Agreement, which shall remain in full force and effect.

Failure by us to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.

Except as expressly agreed by us and you, this Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter.

The section headings are provided merely for convenience and shall not be given any legal import.

This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.