THIS AREEMENT (THIS “Agreement”) CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN CUSTOMER AND AFIMILK. THE INDIVIDUAL INSTALLING OR OTHERWISE ATTEMPTING TO USE OR USING THE SOFTWARE, SERVICES OR PRODUCT HEREBY REPRESENTS THAT HE/SHE IS AUTHORIZED TO BIND CUSTOMER TO THE TERMS OF THIS AGREEMENT. BY USING OR MAKING ANY ATTEMPT TO USE THE DEFINED BELOW SOFTWARE, SERVICES OR PRODUCT (INCLUDING BY WAY OF INDICATING CUSTOMER’S ACCEPTANCE OF THIS AGREEMENT BY CLICKING THE “I ACCEPT” BUTTON), CUSTOMER CONSENTS TO ENTER INTO THIS AGREEMENT, ACCEPTS AND AGREES TO BE BOUND BY ALL THE TERMS PROVIDED HEREIN AND REPRESENTS AND WARRANTS THAT IT IS AUTHORIZED TO CONSENT TO SUCH TERMS ACCORDING TO APPLICABLE LAW. IF CUSTOMER DO NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER MUST IMMEDIATELY CEASE ALL USE OF THE SOFTWARE, THE SERVICES, THE PRODUCT AND ANY PORTION THEREOF.
Customer may not access the Software, Services or Product if it is a direct competitor of Afimilk, except with Afimilk’s prior written consent. In addition, Customer may not access the Software, Services or Product for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
|“Affiliate”||means, any entity controlling, controlled by or under common control with Afimilk, including, without limitation, Afimilk USA Inc., Afimilk UK Limited and Silent Herdsman Ltd..|
|“Afimilk”||–||means Afimilk Agricultural Cooperative Ltd. of Kibbutz Afikim, 1514800 Israel and its Affiliates.|
|“Afimilk’s Technology”||–||means, as between the parties, Afimilk’s technology, including the Software, the Product and any technology used in connection with the Software, Services, or Product, software tools, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property or proprietary rights throughout the world (whether owned by Afimilk or licensed to Afimilk from a third party) and also including, any derivatives, improvements, enhancements or extensions of the foregoing.|
|“Authorized User”||–||means a user authorized by Customer to use the Software pursuant to the terms of this Agreement.|
|“Customer”||–||means an entity that has purchased Products and/or Services and/or a license to use the Software from Afimilk, or Afimilk’s authorized reseller.|
|“Customer Agreement”||–||As defined in section 2.1 below.|
|“Designated Site(s)”||–||means site(s), owned controlled and operated by Customer.|
|“Licensed Configuration”||–||means the choice of features and software specifications, as specified in Afimilk’s specifications document provided to Customer.|
|“Marks”||–||all trademarks, trade names and service marks, design elements, trade dress and the look and feel used with or associated with Services, Software or Product(s).|
|“Party”, “Parties”||–||each Customer and Afimilk shall be referred to as a “Party” and jointly as the “Parties”.|
|“Product”||–||means product(s) provided by Afimilk, supplied or otherwise made available to Customer by Afimilk and/or Afimlk’s authorized reseller.|
|“Services”||–||means professional services rendered by Afimilk or anyone on its behalf, if purchased by Customer from Afimilk or its authorized reseller as part of the Customer Agreement.|
|“Software”||–||means any software utilized by Afimilk in connection with the Services and/or the Products including (i) any software which may be accessed through servers used by Afimilk, by the means of the service user interface or designated application programmable interface (API); (ii) any third party’s software embedded in and/or used in connection with the Services and/or the Product. The term Software shall include any documentation provided to Customer in connection with the above said software and any modifications, additions, updates or upgrades made available by Afimilk to Customer, if any.|
Without derogating from the generality of the foregoing, it is specifically clarified that the latest versions of AfiFarmTM Software (commencing on version 4.1 and onwards) require a license to Microsoft SQL Server, and therefore Customers using those versions of AfiFarmTM Software are bound by the terms and conditions of the applicable version of the SQL Server EULA.
Afimilk’s sole obligation and liability, and Customer’s sole and exclusive remedy under this Software Warranty shall be for Afimilk to use reasonable efforts to correct or replace that portion of the Software that fails to substantially perform the functions described in the relevant end-user mannual at Afimilk’s expense, provided that Afimilk is notified in writing of all such failures during the Software Warranty Period. If, after using its reasonable efforts, Afimilk is unable to correct the defective Software so that it operates as warranted, Customer may recover the license fees paid to Afimilk for the defective Software.