VYLA, INC. (“VYLA”)

END-USER SUBSCRIPTION AGREEMENT (“EUSA”)

You own your data.

VYLA creates value for you through its software, services, and products by creating Computational Data, hosting data, formatting data, and providing technology to help you focus on making the best decisions for your business and to deliver you the best results through our products and services. To do that, we need a license to use your data. And you need a license to use our data and technology.

This EUSA governs the terms under which you agree to use VYLA’s services and products.

This EUSA is for all subscriptions for services sold or provided by VYLA, including subscriptions for software as a service.

(See www.vyla.com for additional details, including our Privacy Policy at https://vyla.com/privacy, which is part of this EUSA)

If you have any further questions about this EUSA please contact us at legal@vyla.com.

EUSA Terms & Conditions

Nature & Purpose of the EUSA: This EUSA is a legal agreement between You (either an individual or a single entity) hereafter also referred to as (“Subscriber”) and VYLA for VYLA-provided services that accompany this EUSA or are otherwise provided by VYLA to Subscriber, including software as a service, (hereafter referred to “Service”) and software provided by VYLA to facilitate use of the Service, even if provided or preinstalled on devices sold or leased by VYLA (the “Software”). An “Affiliate” is any person (natural or legal) that directly or indirectly controls, is controlled by, or is under common control with VYLA. “Control” is presumed if at least one of the following conditions is present: (a) for corporate entities, owning at least fifty percent of the stock or shares, directly and indirectly, having the right to vote for the election of directors or any direct or indirect parent of that corporate entity, and (b) for non-corporate entities, owning at least fifty percent of the equity interest, directly or indirectly, with the power to direct the management and policies of that non-corporate entity.

There will be times when You need to update the Software to keep using the Services or Software or to improve or fix technical issues related to the Software or Service. Indeed, we may check the version of the Software You have licensed or your Service and recommend updates to You. These updates are subject to this EUSA, unless other terms accompany the updates. In that case, the other terms will apply. VYLA has no obligation to provide any updates, and we do not guarantee that VYLA will support the software version You licensed or the device on which You run the Software You licensed or Service you purchased.

Also, VYLA may decide to remove or makes changes in the functionalities or features of the Software or Service or stop providing access to the Service or Software completely. Unless otherwise required by applicable law, VYLA is under no obligation to provide new downloads or replacement materials related to any Software You licensed or Service You purchased. Additionally, VYLA may offer and you may use beta versions of the Software or Service that may not work correctly or may work differently than the final version.

An amendment or addendum to this EUSA may accompany updates to the Service or Software or emails updating this EUSA. You agree to be bound by the terms of this EUSA by using any Service or Software, if You do not agree, do not use the Service or Software.

This EUSA may be periodically updated. Any updates will be emailed to Subscribers and made available on https://vyla.com/EUSA. You agree to be bound to the terms of any updated EUSA by continuing to use any Service or Software after notice of the updated EUSA. If You do not agree to the updated EUSA, do not continue use of the Service or Software; You may cancel your subscription for a partial refund of pre-paid subscription fees for any subscription period remaining within 30 days of the notice of the updated EUSA, if applicable.

Data and System Access: Subscriber owns the Original Data. Use of Software and Service provides Subscriber access to some aspects of VYLA’s data and System. It also requires that VYLA use the Subscriber’s Original Data. Subscriber represents and warrants that it owns the Original Data or that it has the right to provide VYLA with the Original Data, grant the necessary licenses in this EUSA, and to be treated as the owner of the Original Data by VYLA.

Definitions: “access” means any use or implementation or any permission to use or implement; “data” means any information or combination of information, including information protected by intellectual-property rights, like copyright; “System” means any software, hardware, firmware, network, or any combination thereof provided, used, owned, leased, or implemented by VYLA or under its direction or control; “Original Data” means data gathered by or created by Subscriber or on behalf of Subscriber without using the System, Software, or Service that is inputted by Subscriber or on behalf of Subscriber into the System, Service, or Software.

VYLA’s data includes Computational Data and Hosted Data. Any access to Software, Service, Computational Data, Hosted Data, or System given to Subscriber by VYLA is for Subscriber’s own use. Subscriber cannot provide any third-party access to Hosted Data. Subscriber may request that VYLA provide a third party with temporary access to Hosted Data for limited purposes related to helping Subscriber run its business. VYLA will determine whether to grant temporary access on a case-by-case basis, and VYLA is under no obligation to grant that temporary access. Any access of Software, Computational Data, Hosted Data, Service, or System by a third party that is beyond the access provided in this EUSA is without authorization or exceeds authorized access as defined in 18 U.S.C. § 1030(a)(2)(C). Nothing in this provision is meant to preclude or prevent Subscriber from complying with any applicable laws or participating in government-sponsored programs meant to support, improve, or study the dairy industry or dairy farming.

Without limiting the generality of the foregoing, VYLA does acknowledge that certain categories of third parties—who do not compete with VYLA—are pre-approved as third-parties that Subscriber can share Hosted Data with, assuming those third parties are not sharing the Hosted Data with competitors of VYLA:

• Milk Recording organizations for purposes of regular milk testing and herd improvement;
• Consultants, veterinarians, and nutritionists using analyzer version of VYLA programs and services;
• Universities for research purposes; and
• Other dairy industry companies, such as genetic or pharmaceutical companies, offering data-driven advice back to the farm.

As part of this pre-approval, VYLA reserves the right to request, upon reasonable notice, a list of third parties that Subscriber has shared Hosted Data with. VYLA will give at least 30-days’ notice when requesting such a list and will not make excessive requests during the subscription or license period. VYLA may decide to never exercise this right. VYLA will not share this list with other dairies or farmers. VYLA will inform Subscriber if any particular third party that otherwise qualifies under this pre-approval program is no longer pre-approved. In addition, based on its own criteria, VYLA may inform Subscriber that previously disclosed or pre-approved third parties are no longer pre-approved or authorized to receive Computational Data or Hosted Data without VYLA’s express permission before disclosure or sharing, in accordance with the other data-sharing provisions of this EUSA.

Definitions: “Computational Data” means data produced, processed, organized, or formatted by VYLA, the System, the Service, or the Software, even if that data incorporates, is based on, is related to, arises out of, is a copy of, or uses Original Data; and “Hosted Data” means any data maintained or found on the System or otherwise maintained or stored by VYLA.

Subject to the VYLA Privacy Policy, including its anonymity provisions, Subscriber grants VYLA a non-exclusive, perpetual, irrevocable, transferable, royalty-free, and worldwide license to use, share, copy, and sublicense the Original Data.

VYLA owns the Computational Data. VYLA grants Subscriber a limited, non-exclusive, and worldwide license to use the Computational Data in the operation of its business—this license expires upon the expiration of this EUSA. Subscriber does not claim any ownership interest in the Computational Data, and to the extent Subscriber has any ownership interest in the Computational Data—despite the existence of this provision—Subscriber assigns any and all interest to VYLA. To the extent any such interest cannot legally be assigned, Subscriber grants VYLA a non-exclusive, perpetual, irrevocable, transferable, royalty-free, and worldwide license to use, copy, share, and sublicense any such unassignable interest. If VYLA, its Affiliates, contractors, and vendors share Computational Data with other entities or persons, that data would be anonymous—it could not be used to identify the Subscriber.

VYLA also creates and maintains databases that are governed by Sui Generis Database Rights. VYLA owns all Sui Generis Database Rights in any database hosted, produced, created, originated, formed, or formatted using the System, Service, or Software and in any database hosted, produced, created, originated, formed, or formatted on or in the Software, Service, or System. To the extent that Subscriber owns any part of these Sui Generis Database Rights—despite the existence of this provision—Subscriber assigns them to VYLA. If Subscriber is not able to legally assign these rights, Subscriber grants VYLA a non-exclusive, perpetual, irrevocable, transferable, royalty-free, and worldwide license to use, copy, share, and sublicense these rights. VYLA grants Subscriber a personal, worldwide, non-exclusive, and royalty-free license to use and download any copyrighted databases or databases protected by Sui Generis Database Rights in the form of data reports or data exports; this license expires upon the termination of this EUSA.

Definitions: “Sui Generis Database Rights” means any rights—excluding copyright—derived from Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, as amended or succeeded, in addition to any other equivalent rights anywhere in the world.  

VYLA also maintains or has access to third-party data. Subscriber does not have any right to third-party data. Nor does anything in this EUSA give Subscriber the right to use the System, Service, or Software to access, obtain, or copy third-party data.

Definition: “third-party data” means any data inputted, created, or gathered by a party that is not Subscriber or VYLA, unless that data is inputted, created, or gathered by a third party on behalf of Subscriber.

Waiver of warranties regarding data: Any data provided by VYLA to Subscriber—including Original Data, Computational Data, and Hosted Data—is provided on an as-is basis and without any warranties.

Termination of access: Subscriber’s access of the System, Service, and Software terminates upon termination of this EUSA. Subscriber has the right to request in writing a copy of its Original Data at any time—while this EUSA is in effect—and within 45 days of termination of this EUSA. Subscriber understands that the Original Data will not necessarily be provided in the form that it is found in the System, Service, or Software or as presented by the Software, System, or Service.

With regard to how VYLA treats data that can identify any natural person and privacy issues, please refer to VYLA’s Privacy Policy available at https://vyla.com/privacy,

Software License: VYLA hereby grants Subscriber a limited, non-transferable, license to use Software in the manner described in this EUSA. Regardless of the method of marketing, the Software is not in the public domain. It is copyrighted by VYLA, all rights reserved. Copying, selling, or otherwise distributing this Software is a violation of the law.

You may use the Software only in connection with the Service. All copying of the Software is prohibited, except for loading the Software from any media or links provided by VYLA into the computer memory of your devices for the purpose of using the Service and, where the documentation included in Software expressly permits it, for back-up purposes in support of your use of the Service. You must reproduce the copyright notice displayed on the media package or otherwise provided by VYLA on any back-up copy. You are granted no other right to copy, duplicate, modify, adapt or lend, sell, rent, substitute, or otherwise transfer to any third party the Software. Nor can you grant any third-party access to the Software. You are granted no right to use the source code of the Software in any manner.

Copies of the Software created or transferred under this EUSA are licensed, not sold, and Subscriber receives no title to or ownership of any copy of or the Software itself, even if the Software is preloaded or included in devices or products provided by VYLA. Furthermore, Subscriber receives no rights to the Software other than those specifically granted under this provision. Without limiting the generality of the foregoing, Subscriber will not: (a) modify; create derivative works from; distribute; publicly display for others for the purpose of copying, stealing trade secrets or reverse engineering; publicly perform for others for the purpose of copying, stealing trade secrets or reverse engineering; or sublicense the Software; (b) use the Software for service-bureau or time-sharing purposes or in any other way allow third parties to exploit the Software—except for any bureauing that is expressly contemplated by the parties or that is disclosed to VYLA before or at the time the EUSA is entered into; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.

Feedback: Subscriber hereby grants VYLA a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Subscriber communicates to VYLA during the term of the Agreement, without compensation, without any obligation to report on such use, and without any other restriction. VYLA’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. VYLA has not agreed to and does not agree to treat as confidential any Feedback Subscriber provides to VYLA, and nothing in this EUSA or in the parties’ dealings arising out of or related to this EUSA will restrict VYLA’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Subscriber

“Feedback” means any suggestion or idea for modifying any of VYLA’s products or services, including without limitation any intellectual-property rights in any such suggestion or idea.

Confidentiality: Each party to this EUSA will maintain the confidentiality of Confidential Information that is disclosed by the other party under this EUSA. Each party may disclose the Confidential Information to its affiliates, directors, officers, investment committee members, advisory board members, limited partners, employees, potential sources of financing, agents, representatives, consultants, legal counsel, accountants or financial advisors (such parties actually receiving Confidential Information from a party or at the party’s direction, collectively, “Representatives”) if such Representatives are advised of the confidential nature of such Confidential Information and agree to be bound by the same confidentiality obligations found in this EUSA. Each party will be permitted to disclose Confidential Information in the event that the party or any of its Representatives are requested or required by law, regulatory authority, the rules of any national securities exchange or other applicable judicial or governmental order, or otherwise are legally compelled (e.g., by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose Confidential Information. Meaning of “Confidential Information”: “Confidential Information” includes all information and materials originated within or belonging to a party, not generally known to persons outside of the party and designated as confidential by the party. Confidential Information does not include information that: (a) was the receiving party’s possession prior to its being furnished, provided the source of that information was not known by the receiving party to be bound by an obligation of confidentiality to the disclosing party; (b) is now, or hereafter becomes generally available to participants in the receiving party’s industry or to the public; (c) is rightfully obtained by the receiving party from a third party, without breach of any known obligation to the disclosing party; (d) is independently developed by or for the receiving party or its Representatives without use of or reference to the Confidential Information; or (e) must be disclosed to for the receiving party to secure the rights granted to either party under this EUSA; for example, nothing in this provision is meant to restrict or limit the permissions granted in this EUSA or our Privacy Policy with respect to the use and creation of data and the related licenses to that data granted by the parties.

Limited Warranty, Limitation of Liability: VYLA warrants to you that any media provided to you containing the Software will be free from defects in materials and workmanship for a period of 90 days from the date of delivery to you, as evidenced by a copy of your receipt (the “Delivery Date”). VYLA also warrants to you that the Software and Service will perform substantially in accordance with any accompanying documentation included as part of Software or Service for a period of 1 year from the Delivery Date of the Software or the start of your Service subscription when used as directed. There are no other expressed or implied warranties (including implied warranties of merchantability and fitness for a particular use) regarding the Software, Service, or media. Except any implied warranties which cannot be disclaimed under applicable law, any such implied warranties covering the media are limited in duration to 90 days from the Delivery Date. Any such implied warranties covering the Software and Service are limited in duration to 1 year from Delivery Date of the Software or the start of your Service subscription. Your sole and exclusive remedy for any breach of warranty is that VYLA, at its option, either will refund or repair the Software or Service.

The foregoing warranties do not apply if you mishandle, alter, or improperly use or store the Software, Service, or media. VYLA does not warrant that the Software or Service will meet your requirements or that the operation of the Software or Service will be uninterrupted or error free. Although changes or improvements to the Software or Service may be made, VYLA will be under no obligation to provide them to You, unless You remain an active registered Subscriber and maintain Software maintenance agreements. VYLA is not responsible for problems caused in the operating characteristics of computer hardware or computer-operating systems which are made after the release of the Software or Service. If the media or Software are not as warranted, VYLA will replace it on an exchange basis without charge. In addition to the foregoing warranties, if for any reason you are not satisfied, you may return the Software and media and all copies (if any) made therefrom, to VYLA within 90 days of the Delivery Date, and VYLA will refund your payment for the Service subscription less installation/hardware costs. Such a return will terminate all your rights to use the Software and Service.

Exclusive Remedy: The parties agree that the remedies set forth in this EUSA constitutes the sole and exclusive remedies available for any breach of this EUSA, including any breach of warranty, whether expressed or implied. VYLA’s sole obligation and Subscriber’s exclusive remedy for any warranty failure is the correction or replacement of any nonconforming Software, Service, or hardware or the refund of an amount not to exceed the actual payments paid by Subscriber to VYLA for the nonconforming Software, Service, or hardware.

Limitation of Liability for Consequential Damages: The parties expressly agree that VYLA will not be liable for consequential damages, including but not limited to acts of third parties, whether authorized or unauthorized, that cause any type of loss; loss of data for any reason; damage to equipment caused by electrical surges, static charges, or other related causes; or loss of business opportunities or actual losses related to equipment or service failure.

Customization: If VYLA customizes or configures any Service, Software, or hardware at Subscriber’s direction or request, any such Service, Software, or hardware is subject to the warranty and damages limitations in this Agreement. In addition, VYLA’s sole obligation and Subscriber’s exclusive remedy for any failure or defect in any customized or configured Service, Software, or hardware is the correction or replacement of any nonconforming custom or configured Service, Software, or hardware or the refund of an amount not to exceed the actual payments paid by Subscriber to VYLA for the nonconforming custom or configured Software, Service, or hardware.

Third Parties: Subscriber may request that VYLA customize or configure Service, Software, or hardware for use with third-party products or services or with services or products provided by Subscriber to its customers. If VYLA provides this custom or configuration work, VYLA will not be liable for any claims by any third parties or customers claiming damages. Subscriber will indemnify VYLA and hold VYLA harmless for any damages claimed by any third party or customer as a result of its use of VYLA’s custom or configuration work, Service, Software, or hardware. This Agreement is not intended to and will not be construed to give any third party any interest or rights (including, without limitation, any third party-beneficiary rights) with respect to or in connection with any provision or section of this Agreement or any VYLA Service, Software, or hardware.

Trade Secrets: You acknowledge that the Software and Service contain trade secrets of VYLA. You agree to take all steps necessary to protect the Software, as well as any copies thereof, and the Service from disclosure. VYLA reserves the right to copy protect the Software, Service, and media with any means possible either by software or hardware solutions. Should such a protection plan take effect, you agree to protect the Software, Service, and media; and you may not modify or remove said copy protection. You also agree that you will not reverse engineer, decompile, disassemble, or otherwise attempt to derive any source code from the Service, including related software.

Exports: Subscriber will not: (a) permit any third party to access or use the Software, Service, or System in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Subscriber will not permit any third party to access or use the System or Service, or export the Software to, a country subject to a United States embargo.

Assignment of Contract Obligations: Neither party may assign this EUSA or any rights or obligations hereunder without the other’s express written consent, except that either party may assign this EUSA to the surviving party in a merger of that party into another entity or an acquisition of all or substantially all that party’s assets. An assignment authorized by the preceding sentence will not become effective unless and until the assignee agrees in writing to be bound by all the assigning party’s rights and obligations as set forth in this EUSA. Except to the extent forbidden by this provision, this EUSA will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

Termination: If you violate any item of use set forth above, this EUSA, the Service, and the license provided hereunder will be automatically terminated, and you agree to return the Software, media, and all copies (if any) made therefrom, to VYLA at the address below. Your obligations under the EUSA will remain in effect until you have returned all those materials. You may voluntarily terminate the Service and license by similarly returning the Software, media, and all copies to VYLA or by sending a written cancelation notice to the address below. If the license is terminated automatically or voluntarily more than 90 days after the Delivery Date or the execution of this EUSA or 30 days after notice of an updated EUSA—whichever is later—you will not be entitled to any refund from VYLA. This EUSA also automatically terminates upon Subscriber ceasing to pay subscription fees in exchange for the rights granted under this EUSA. All licenses and other rights granted to Subscriber under this EUSA are automatically terminated upon the end of the subscription term. To the extent that VYLA offers any limited, free access to or use of the Service, VYLA-owned data, Software, and System, this EUSA will govern that access or use, but You may not have the same access or use You had under a paid subscription, even if previously You were a paid subscriber. This EUSA and all rights it grants Subscriber, including any licenses, will also be automatically terminated if Subscriber fails to regularly connect to the System or to update any Software provided under license as part of this EUSA.

Returns, Non-Acceptance: Any returns or request for refunds should be made to the following address:

VYLA: Address 6766 E CR 18, Johnstown, CO 80534; Email: info@VYLA.com URL: www.VYLA.com. You will be given instructions regarding packing, and shipping if a return or refund is authorized.

General: You acknowledge that you have read this EUSA, understand it, and agree to be bound by its terms. The agreement between you and VYLA regarding the Software, data, Service, System, and media consist solely of this EUSA. The EUSA does not include any other prior or contemporaneous promises, representations or descriptions regarding the Software, Service, data, System, or media, even if they are contained in materials provided by VYLA. This EUSA may only be modified in a written amendment signed by an authorized officer of VYLA. If any provisions of this EUSA are invalid under applicable law, they are, to that extent, deemed omitted. This EUSA and performance hereunder will be governed by and construed in accordance with the laws of the State of Colorado, without reference to choice-of-law principles. The parties to this EUSA irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Denver County, Colorado for all disputes arising out of or relating to this EUSA or the Software.

Authority to bind: If Subscriber is using Software or Service on behalf, as an employee, or agent of another person or entity, including a corporation or other non-natural person, Subscriber represents and acknowledges that they have the authority to bind that person or entity to this EUSA and that Subscriber, as used herein, includes that person or entity, who will be bound by this EUSA.