A Breeder's EULA: End User License Agreement for the strawberry plant varieties of Sweet Darling Sales, Inc., with royalty fee of thirty-six cents (usd) per dozen plants included and incorporated into the price of the online platform listed product
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Sweet Darling Sales, Inc. Protected Strawberry Plant Varieties EULA End User License Agreement
THIS END USER LICENSE AGREEMENT (the "Agreement") dated on the effective date of online sales platform strawberry plant purchase date (the "Agreement Date")
BETWEEN Sweet Darling Sales, Inc. with address of record and primary location at 24 Seascape Village Aptos CA 95003 (the "Vendor") OF THE FIRST PART - AND - The buyer that purchases and receives delivery of strawberry plant material from the "vendor" of the Strawberry Plants thereby purchases and agrees to this license by the executing the purchase method of this online sales platform with the buyer's address of record and primary location being the billing address recorded by this online sales platform (the "Licensee") OF THE SECOND PART.
WHEREAS The Vendor has previously granted a license to to Goddess Plant Sciences ("Goddess",) LLC of California to offer for sale this license on behalf of the Vendor and "Goddess" may then accordingly provide protected plant varieties to Licensees of the Vendor in quantities comensurate with the monetary price of the license purchased by the Licensee.
WHEREAS The Vendor wishes to license the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties to the Licensee and the Licensee desires to purchase the license to in order to legally possess and to grow the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties under the license terms and conditions stated below.
IN CONSIDERATION OF the provisions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
- Under this Agreement the Vendor grants to the Licensee a non-exclusive and non-transferable license (the "License") to use the plants for ornamental enjoyment and fruit production (the "Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties").
- The Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties may be grown for three annual consecutive fruiting seasons at one location for the purpose of ornamental landscape plantings or fruit production plantings.
- "Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties" license provides for ornamental and fruit production use of plants provided to the Licensee by Goddess Plant Sciences LLC or by Sweet Darling Sales, Inc. Under this agreement the Licensee is not allowed to cause the reproduction, replication or any manner of increase that could result in a quantity of plants greater than the quantity of plants originally slated to be provided by the vendor to the Licensee at the time when this license was purchased. Propagation for replication or increase is expressly prohibited by either vegetative or in vitro clonal propagation. The use of plant parts such as pollen and ova for plant breeding or other genetic techniques is expressly prohibited.
- Title, copyright, intellectual property rights and distribution rights of the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties remain exclusively with the Vendor. Intellectual property rights include the genetic markers and the look and feel of the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties.
- The rights and obligations of this Agreement are personal rights granted to the Licensee only. The Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity. The Licensee may not make available the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties for sale or for use by one or more third parties.
- The Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties may not be used for breeding, cross pollination or genetically modified in any manner through current or future available technologies.
- Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement.
- License Fee: The royalty fee of $.36 USD per dozen Sweet Darling Sales, Inc. plants is included into the online sales platform purchase price of the plants and as such will be considered as paid by the Licensee to the Vendor and will constitute the entire license fee and is the full consideration for this Agreement.Limitation of Liability
- The Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties is provided by the Vendor and accepted by the Licensee "as is". Liability of the Vendor will be limited to a maximum of the original purchase price of the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties. The Vendor will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Licensee arising out of the use or failure to use the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties.
- The Vendor makes no warranty expressed or implied regarding the fitness of the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties for a particular purpose or that the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties will be suitable or appropriate for the specific ornamental or fruiting requirements of the Licensee.
- The Vendor does not warrant that use of the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties will thrive or produce flowers or fruit. The Licensee accepts that Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties in general are prone to insect infestation, fungal and bacterial infections within an acceptable level as determined by the strawberry plant variety breeder.
- Warrants and Representations: The Vendor warrants and represents that it is the owner of Breeder's Rights and Plant Patents of the Sweet Darling Sales, Inc. Breeder's Rights Protected and Plant Patent protected Strawberry Plant Varieties. The Vendor warrants and represents that granting the license to use the purchased Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties is not in violation of any other agreement, copyright or applicable statute.
- Acceptance All terms, conditions and obligations of this Agreement will be deemed to be accepted by the Licensee ("Acceptance") upon execution of this Agreement.
- Term: The term of this Agreement will begin on Acceptance and will continue for a period of 3 years from time of purchase. At the end of the term of this Agreement the Licensee must destroy all copies of the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties in their possession.
- Termination: This Agreement will be terminated and the License forfeited where the Licensee has failed to comply with any of the terms of this Agreement or is in breach of this Agreement. On termination of this Agreement for any reason, the Licensee will promptly destroy the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties or return the Sweet Darling Sales, Inc. Patented Strawberry Plant Varieties to the Vendor.
Force Majeure: The Vendor will be free of liability to the Licensee where the Vendor is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the Vendor has taken any and all appropriate action to mitigate such an event.
- The Parties to this Agreement submit to the jurisdiction of the courts of the State of New York for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the State of New York.
- This Agreement can only be modified in writing signed by both the Vendor and the Licensee.
- This Agreement does not create or imply any relationship in agency or partnership between the Vendor and the Licensee.
- Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
- If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
- This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
- This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Vendor's successors and assigns.
- All notices to the parties under this Agreement are to be provided at the following addresses, or at such addresses as may be later provided in writing:
Sweet Darling Sales, Inc. 24 Seascape Village Aptos CA 95003
Sweet Darling Sales, Inc. BD2EAAC46E47948A