Terms of Service

PLEASE READ THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICE (DEFINED BELOW) OFFERED BY FARMCLOUD INC. (“COMPANY”) AS THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR CUSTOMER’S USE OF THE SERVICE.

By using the Service in any manner including, but not limited to, accessing the Service, Customer agrees to be bound by this Agreement, including the terms and conditions contained in the Proposal (as defined below). This Agreement is entered into and deemed effective (“Effective Date”) on the earlier of (i) Customer accessing the Service or (ii) Customer or its agent clicking on the “consent box” acknowledging to be bound by this Agreement.

Customer acknowledges and agrees that Company may modify the terms and conditions of this Agreement at any time, by updating its website. This Agreement was last updated on August 10, 2015.

The parties agree as follows:

1.Definitions

As used in this Agreement, the following terms shall have the respective meanings:

“Company Technology” means all of Company’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Customer by Company in providing the Service.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to this Agreement, its business or the Service, in writing, orally or by inspection of tangible objects (including, without limitation, material or information relating to such party’s research, development, know-how, products, product plans, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (i) becomes a part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure by the disclosing party and had not been subject to limitations on disclosure or use, as shown by receiving party’s files existing at the time of disclosure; (iii) is independently developed by receiving party’s employees or independent contractors who have not had access to the Confidential Information; or (iv) is lawfully disclosed hereafter to receiving party, without restriction, by a third party who did not acquire the information directly or indirectly from disclosing party.

“Content” means the data, images, documents, and other information contained or made available to Customer by Company in the course of using the Service.

“Customer Data” means any data, information, or material provided or submitted by, or on behalf of, Customer to the Service in the course of using the Service.

“Documentation” means any Company documentation that may be provided to Customer by Company with the Service.

“Intellectual Property Rights” mean all rights or interests, including without limitation, all (i) patents, patent applications and patent rights; (ii) rights associated with works of authorship including copyrights, copyright applications and copyright registrations; (iii) rights relating to the protection of trade secrets and confidential information including rights in unpatented know-how; (iv) design rights; (v) trademarks, trade names, trademark applications and registrations, service marks and rights in trade dress, logos and trade secrets; and (vi) any divisions, continuations, renewals, reissues and extensions of the aforementioned rights (as applicable) now existing or filed, issued or acquired hereafter; and any other intellectual property rights recognized in any country or jurisdiction in the world.

“Proposal” means the FarmCloud Field Imaging Services Proposal signed by the parties that is made part of this Agreement.

“Service” means the crop imaging services provided by Company through (i) its platform that is accessible via https://www.myfarmcloud.com or another designated website or IP address, including the Company Technology and the Content and (ii) Support Services.

“Support Services” mean the services provided by Company to Customer as set forth in the Proposal.

“User” means Customer’s employees and contractors who are authorized to use the Service.

2.Access Grant and Restrictions

2.1During the Term (as defined below) and subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, non-exclusive, non-transferable right to access and use the Service, solely for Customer’s own internal business purposes to use the interface of the Service to (i) upload Customer Data, (ii) access and view the Content and the Services and (iii) to generate reports. All rights not expressly granted to Customer are reserved by Company and its licensors.

2.2Except as explicitly set forth in this Agreement, Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service or (c) copy any ideas, features, functions or graphics of the Service.

2.3Customer shall not: (i) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violate third party privacy rights using the Service; (ii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs using the Service; (iii) interfere with or disrupt the integrity or performance of the Service; or (iv) attempt to gain unauthorized access to the Service.

3.Customer Responsibilities

Customer is responsible for all activity by Users and shall abide by all applicable laws and regulations in connection with Customer’s use of the Service, including those related to data privacy and the transmission of technical or personal data. Customer shall: (i) notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security and (ii) promptly report to Company and use reasonable efforts to stop any copying or distribution of Content that is known or suspected by Customer or Users.

4.Confidential Information and Account Information

4.1For a period of five (5) years after the expiration or termination of this Agreement, each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party; provided, however, that either party may provide Confidential Information to its employees and contractors who have a need to know such information for the purposes of this Agreement and are bound by agreements no less protective of the disclosing party’s Confidential Information as this Agreement. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.

4.2Notwithstanding any other terms or conditions of this Agreement, the receiving party may disclose Confidential Information as required by law or by order or requirement of a court, administrative agency, or other governmental body, provided that recipient provides prompt, advance notice thereof to the disclosing party to enable the disclosing party to seek a protective order or other similar relief.

4.3Company does not own any Customer Data. Customer, not Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property rights ownership or right to use of all Customer Data. Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Company reserves the right to withhold, remove, and/or discard Customer Data without notice for any breach by Customer, including, without limitation, Customer’s non-payment.

5.Intellectual Property Ownership and Feedback

5.1Company (and its licensors, where applicable) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Company Technology, the Content, and the Service (excluding the Customer Data). This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the Content, the Company Technology or any other Intellectual Property Rights owned by Company.

5.2Customer hereby grants to Company, at no charge, a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license under Customer’s Intellectual Property Rights in and to suggestions, comments and other forms of written feedback (“Feedback”) regarding the Service and the Company Technology provided by Customer hereunder, including but not limited to, Feedback regarding features, usability and use, and bug reports. Such license specifically includes the right to reproduce, perform, display, and create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Company Technology and/or products or services of Company. Feedback is provided “as is” without warranty of any kind and shall not include any Customer Confidential Information.

6.Charges and Payment of Fees

Company shall invoice Customer at the prices and for the Services as set forth in the Proposal. Company reserves the right to modify its fees and charges and to introduce new charges at any time, upon no less than thirty (30) days prior notice to Customer, which notice may be provided by email. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.

7.Taxes

All fees for the Service are exclusive of any and all taxes, duties or levies assessed by applicable governmental authorities. All such taxes, duties and levies (exclusive of any taxes based upon Company’s net or gross income) shall be assumed by and paid for by Customer, regardless of whether included in any invoice sent to Customer at any time by Company.

8.Nonpayment and Suspension

In addition to any other rights granted to Company herein, Company reserves the right to suspend or terminate this Agreement and/or Customer’s access to the Service if Customer’s account becomes delinquent. Delinquent invoices and accounts are subject to interest of twelve percent (12%) per annum on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer will continue to be charged for all fees during any period of suspension. Company reserves the right to impose a reconnection fee in the event Customer is suspended and thereafter requests access to the Service.

9.Term and Termination

9.1Unless terminated earlier as provided herein, this Agreement shall commence on the Effective Date and continue for the term set forth in the Proposal (“Term”).

9.2Upon the expiration or termination of this Agreement, Customer shall immediately cease all use of the Service, Company Technology and all Confidential Information, and shall, at Company’s option, delete and/or return all such items to Company.

10.Termination for Cause

Any breach of Customer’s payment obligations or unauthorized use of the Company Technology or Service will be deemed a material breach of this Agreement. Company, in its sole discretion, may terminate Customer’s passwords, account or use of the Service if Customer breaches or otherwise fails to comply with the material terms of this Agreement. Customer agrees and acknowledges that Company has no obligation to retain the Customer Data, and may delete such Customer Data, if Customer has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within thirty (30) days of notice of such breach.

11.Representations and Warranties

11.1Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

11.2Company hereby warrants that the unmodified Service, when used in accordance with the associated Documentation, will materially conform to the technical specifications set forth in such Documentation. This limited warranty is void if any Service failure arises out of or relates to the modification, abuse, misuse or misapplication of any aspect of the Service or other conduct or conditions outside the control of Company. Notwithstanding anything contained in this Agreement to the contrary, Customer’s sole remedy for any breach of this limited warranty shall be, at Company’s sole discretion, either (i) refund of any fees paid by Customer under this Agreement to Company for the three (3) month period prior to the breach or (ii) repair by Company of the defective aspect of the Service.

12.Indemnification

12.1Customer shall indemnify, defend, and hold Company and its officers, directors, and employees harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party or (ii) a claim arising from the breach by Customer or Users of this Agreement, provided in any such case that Company (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally releases Company of all liability and such settlement does not affect Company’s business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim.

12.2Company shall indemnify, defend, and hold Customer and its officers, directors, and employees harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim alleging that the Service directly infringes a third party’s U.S. copyright, issued patent or registered trademark; provided that Customer (i) promptly gives written notice of the claim to Company; (ii) gives Company sole control of the defense and settlement of the claim (provided that Company may not settle or defend any claim unless it unconditionally releases Customer of all liability); (iii) provides to Company all available information and assistance; and (iv) has not compromised or settled such claim. Company shall have no obligations under this section for claims arising from or related to (a) any modifications to the Company Technology or Service made by any party other than Company or Company’s authorized representative, (b) any unauthorized use of the Company Technology or Service by Customer or any third party, (c) any use of the Company Technology or Service in combination with other software, hardware or data, to the extent such infringement is caused by such combination, or (d) any Customer Data.

13.Disclaimer of Warranties

EXCEPT AS EXPLICITLY SET FORTH IN SECTION 11, COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. COMPANY DOES NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, SYSTEM, OR DATA NOT PROVIDED BY COMPANY; (II) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (III) ERRORS OR DEFECTS WILL BE CORRECTED; OR (IV) THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPLICITLY SET FORTH IN SECTION 11, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COMPANY.

14.Limitation of Liability

IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL COMPANY AND/OR ITS LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF COMPANY OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THE EXCLUSIVE REMEDIES STATED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.

15.Additional Rights

Certain states and jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential, or certain other types of damages, so the exclusions set forth above may not apply to Customer.

16.Notice

Except as explicitly set forth in this Agreement, any notice required or permitted by this Agreement will be in writing and will be delivered as follows, with notice deemed given as indicated: (i) by personal delivery, when actually delivered; (ii) by overnight courier, upon written verification of receipt; (iii) by facsimile transmission, upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Company may also provide notice to Customer by email to the last email address on file with the Company. Customer shall provide all notices to Company using the contact information on the Company’s website under the “contact us” tab.

17.Right to Use Information

Customer acknowledges that the functionality of the Service allows Company to extract and retain certain information related to Customer’s and Users’ use of the Service (“Information”). Company shall have the right to use, at its sole discretion, all Information for its business purposes; provided, however, that at no time shall Company license or sell to others any Information which would (i) constitute unmodified Customer Data or (ii) which explicitly identifies Customer or Users. For clarity, the restrictions set forth in this Agreement shall not preclude Company from entering into a transfer or sale of all or substantially all of its business, or participate a merger, consolidation, change in control or similar transaction.

18.General

18.1Entire Agreement and Amendments. This Agreement, including the Proposal that is incorporated by reference herein, constitutes the entire agreement between the parties with regard to the subject matter hereof. This Agreement supersedes all other agreements, representations or understandings (whether oral or written and whether express or implied) relating to the subject matter hereof. Company may modify this Agreement as set forth in this Agreement. Customer may not amend or modify this Agreement except in a writing signed by both parties.

18.2Waiver. The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement shall not in any way affect, limit or waive either party’s rights thereafter to enforce and compel strict compliance with every term and condition of this Agreement.

18.3Governing Law; Venue for Disputes. This Agreement shall be governed in all respects by the laws of the state of Washington and the United States, without regard to the choice of law rules thereof.

18.4Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

18.5Assignment. Customer shall not assign or otherwise transfer this Agreement, or any part hereof, or delegate any of its duties hereunder, whether by operation of law or otherwise, to any third party without the prior written consent of Company. Without limiting the generality of the foregoing, the phrase “by operation of law” shall include a change of control of Customer. Any attempted assignment in contravention of this provision shall be void.

18.6Force Majeure. Except for payments due by Customer to Company hereunder, neither party shall be liable for delays in performance due to causes beyond its reasonable control, including but not limited to, communication issues, acts of God, acts of public enemy, acts of government or courts of law or equity, civil war, insurrection or riots, fires, floods, explosions, earthquakes or other casualties, strikes or other labor troubles. A party so delayed shall promptly inform the other party in writing of such event and of the date by which its performance may be reasonably be expected to resume.

18.7Survival. All provisions of this Agreement which may reasonably be interpreted or construed as surviving the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.