Last updated June 12, 2019

THIS AGREEMENT (“AGREEMENT”) IS A BINDING CONTRACT BETWEEN YOU AND CROPTRACKER, INC. AND ITS AFFILIATES (“CROPTRACKER”, “DRAGONFLY IT”, “WE”, “OUR” OR “US”) AND GOVERNS YOUR ACQUISITION OF, ACCESS TO, AND USE OF THE SERVICES.

Capitalized terms used herein are defined terms, and definitions can be found at the end of this Agreement.

By using or accessing the Services You are agreeing to the terms in this Agreement. If you are entering this Agreement on behalf of a company or other legal entity, You are accepting these terms on behalf of that entity and representing that You have the authority to bind the entity, in which case “You” refers to the entity and its Affiliates. If You do not have such authority, are not 18 years or older, or do not agree to these terms, You may not use the Services.

THIS AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. UNITED STATES USERS: THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION AND JURY TRIAL WAIVERS, WHICH ARE APPLICABLE TO ALL UNITED STATES USERS AND USERS HAVING OPERATIONS IN THE UNITED STATES.

Additional Terms may apply to the Services and are hereby incorporated into this Agreement and govern Your use of the Services.

You may not access the Services if You are Our Competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring the performance or functionality, showing the Services or Our Information to any Competitor or third party not governed by this Agreement, or for any other benchmarking or competitive purposes.

1. USE OF SERVICES.

1.1 Permitted Use. Subject to the terms of this Agreement, including its Additional Terms, We grant You the limited right to use and access the Services and Our Information for Your personal use or internal business purposes. You may create User accounts for applicable Services, and You are responsible for managing all User accounts and for any activity that occurs under User accounts.

1.2 Restrictions. You and Your Users may not: (a) copy, distribute, modify, edit, create derivative works, disassemble, reverse engineer, or decompile any portion of the Services and its associated software code and functionality, (b) assign, transfer, or sublicense Your rights to the Services or Our Information, or use the Services or Our Information on behalf of or for the benefit of a third party other than Your Users, including in any service bureau or timesharing arrangement, (c) use the Services or Our Information for the purposes of competitive comparison or competitive development, (d) use the Services or Our Information in any way that violates law or is intended to violate a third party’s privacy or threaten or defame a third party, (e) interfere with the integrity of the performance of the Service, (f) access or try to access any Services or Our Information that You do not have the right to access, (g) allow any unauthorized party to access Our Information or Your instance of the Services, (h) use any third party content or services available through the Services separately from the Services; (i) use the Services or Our Information for the purposes of sending, uploading, posting, displaying, or transmitting commercial electronic messages, including advertisements, chain letters, spamming, junk mail, solicitations, or any other promotional materials; or (j) harvest or otherwise collect or store any information, including personal information, about other users of the Services, including email addresses, without the express consent of such users. You must promptly notify Us if You suspect or know of any violations to the terms of the Agreement, and You agree to cooperate with Us in any investigation of such potential violations or enforcement of the terms of the Agreement.

2. DATA, ACCOUNT INFORMATION, AND CONFIDENTIALITY

2.1 Data Privacy. We will handle Personal Information and Other Information in accordance with Our Privacy Terms.

2.2 Confidentiality. Confidentiality of Your Personal Information is addressed in the Privacy Terms referenced above. The Services and ways in which Our Information is generated constitute valuable trade secrets that are not generally known to the public. You will treat the Services and Our Information as confidential and not share the Services or Our Information with any third parties not authorized to access the Services.

2.3 Accuracy of Account Information. When You create an account for certain Services, You may be asked to provide certain information such as email address, screen name, location, or other user information. By entering that information, You represent all such information is true and accurate. For example, You will not associate land or equipment that you do not own or have a right to access with the Services. You also agree to update such information if it changes at any time during Your use of the Services.

2.4 Login Credentials. When You create an account for certain Services, You may be asked to provide a user name and password. You and Your Users are responsible for maintaining the confidentiality of Your login credentials and preventing others from using Your login credentials to access the Services. You are solely responsible for the activities of anyone accessing the Services using Your login credentials. You must promptly notify Us of any unauthorized use of Your login credentials or the Services and promptly change Your password if Your account has been compromised.

3. INTELLECTUAL PROPERTY RIGHTS

3.1 Our rights. We, or third parties who have granted Us rights, own and shall retain all right, title, and interest (including any intellectual property rights therein) in and to: (a) the Services and all derivative works, modifications, and improvements to the Services, (b) Our Information, and (c) Our Branding Material. We do not grant You any rights to any of the above other than those explicitly provided in this Agreement.

3.2 Feedback. You agree that any Feedback will be Our exclusive property. To the extent You own any rights in the Feedback, You agree to assign and hereby do assign to Us all right, title and interest in and to the Feedback. You agree to perform all acts reasonably requested by Us to perfect and enforce such rights.

3.3 Your rights. You own Your Information, and, subject to the Privacy Terms, You grant Us a non-exclusive license to access, use, reproduce, display, modify, and prepare derivative works based on Your Personal Information or Other Information for the purpose of providing, improving, and enhancing the Services. You own Your Branding Material. You give Us a non-exclusive, non-transferable license to use Your Branding Material in the provision of the Services, publishing of material on Our website, and production of marketing materials to promote Our products and services, which may include the disclosure of Your relationship with Us.

4. FEES AND PAYMENTS

4.1 Fees. You shall be responsible for the payment of all fees, which may include but are not limited to Service subscription fees or those set forth on any Order Form, for the Services associated with this Agreement. Fees will be disclosed and assessed, as needed, according to Our procedures, and We may change those fees at Our sole discretion from time to time.

4.2 Taxes. You are responsible for any Taxes and will pay Us for the Services without any reduction for such amounts. If We are obligated to collect or pay Taxes, We will include such Taxes on Our invoice, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. If You are required by law to withhold any Taxes from Your payments to Us, You must provide Us with official documentation to support such withholding.

4.3 Invoices; Payment; Late Payment. All amounts are due and payable upon Your receipt of Our invoice or other method of billing for Service, unless otherwise stated in billing statements. Interest shall accrue on amounts more than fifteen (15) days past due at the lower rate of twelve percent (12%) per annum or the highest rate of interest allowed by law, calculated from the date such amount was due. You shall reimburse Us for the reasonable costs of collection, including legal fees.

5. TERM AND TERMINATION

5.1 Term. This Agreement shall commence on the Effective Date and continue until the expiration or termination of Your use of all Services. The initial term and renewal periods are collectively the “Term”.

5.2 Termination. If You wish to terminate Your relationship with Us, You must notify us via email at: support@croptracker.com and provide us with any additional account information necessary to terminate Our relationship with You. Either You or We may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party for material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In addition, if We become aware of inappropriate or unauthorized use of the Services by You or Your Users, We may respond in any way that, in Our sole discretion, We deem appropriate, which may include termination of this Agreement without notice.

5.3 Rights and Obligations Upon Termination. Upon expiration or termination of this Agreement, You and Your Users shall no longer access the Services, and Your licenses to the Services shall immediately terminate.

5.4 Survival. The rights and obligations contained in Sections 2, 3, 6, 7, 8, 9, and 10 shall survive any expiration or termination of this Agreement.

6. LIMITED WARRANTY AND DISCLAIMERS.

6.1 Limited Warranty. We warrant that the Services will function substantially in accordance with Our then-available specifications for the Services. Your sole and exclusive remedy for any breach of the foregoing warranty will be for Us to re-perform the Services in a manner that conforms to this warranty. If We are unable, or it is not commercially reasonable to correct the non-conformity, We may, at our discretion, terminate the Agreement and provide You a pro-rata refund of any prepaid fees for the applicable Term.

6.2 Disclaimers. THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR LIMITATIONS OF LIABILITY. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS. Your use of, and any reliance upon, the Services or Our Information, including, but not limited to, any information, materials, downloaded applications, agronomic information, yield data, weather forecast, advice and commodity prices, or land valuation is at Your own risk. Some of the services are location-specific and services available in one location may not be available in another location. The results of any report, output or recommendation from the Services are based, in large part, by completeness, truth and accuracy of Your Information. Any incorrect information input by You or Your Users will affect such report, output or recommendation in a negative manner, potentially rendering them incorrect and damaging. Even if Your Information is true and accurate, We do not warrant that any output, report or recommendation made available through the Services will be processed correctly, save You money, increase profits, increase yields or any other result or otherwise allow You to meet Your goals. You must use Your professional judgment in determining whether to comply with any report, output or recommendation from the Services. We are not responsible for any of Your acts or omissions resulting from Your action or inaction resulting from such report, output or recommendation. As the Services evolve, We may provide You and Your Users explanations on how the Services work and certain additional specific disclaimers. Any such specific disclaimers provided to any User, including through a notice made available within the Services, are incorporated by reference into this Agreement.

The Services are provided to You on an “as is”, “as available” and “where-is” basis. Except as provided in the limited warranty in section 6.1, We provide no representations, warranties, or guarantees of any kind in connection with or regarding the Services, including but not limited to the suitability, truth, accuracy or completeness of any content, material, information, product, representation, or Services. To the maximum extent permitted under applicable law, We disclaim all representations, warranties, and guarantees, whether express or implied, statutory or otherwise, including, but not limited to, any implied warranty or condition of quality, merchantability, fitness for a particular purpose, or non-infringement of third party rights, or those arising out of a course of dealing, custom, or usage of trade. Specifically, except as provided in the limited warranty, We make no warranty, representation or guarantee regarding the availability, accuracy, reliability, completeness, legality, security, or operability of the Services, any stored data or other information, functionalities, applications or other features provided. In the case of third party content or services offered as part of the Services, our third party service providers disclaim liability as described in this section as well.

7. LIMITATION OF LIABILITY.

THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will We, or our Affiliates, officers, directors, employees, agents, suppliers, licensors, or third parties providing Services be liable to You or any third party for any indirect, incidental, special, exemplary, consequential, punitive or other similar damages, including lost profits, lost sales or business, lost data, business interruption or any other loss incurred by such party or third party arising out of or in connection with this Agreement or the use of, or inability to use, the Services, regardless of whether we have been advised of the possibility of or could have foreseen such damages.

Notwithstanding anything to the contrary in this Agreement or the failure of essential purpose of any limited remedy, Our (including Our Affiliates, officers, directors, employees, agents, suppliers, licensor’, and third party service providers) aggregate liability to You or any third party arising out of this Agreement or otherwise in connection with any subscription to, or use or employment of the Services, shall in no event exceed the subscription charges paid by You during the twelve (12) months prior to the first event or occurrence giving rise to such liability, or in the event You have not paid a fee, then $25. You acknowledge and agree that the essential purpose of this section 7 is to allocate the risks under these terms between the parties and limit potential liability given the subscription charges, which would have been substantially higher if We were to assume any further liability other than as set forth herein. We have relied on these limitations in determining whether to provide You the rights to access and use the Services provided for in this Agreement.

Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. In these jurisdictions, Our liability will be limited to the greatest extent permitted by law. If You are a resident of the European Union, We do not exclude or limit our liability for death or personal injury resulting from negligence.

8. DISPUTE RESOLUTION

8.1 Binding arbitration (as allowed by applicable law). You and We agree to resolve any and all disputes, controversies or claims that in any way arise out of or relate to this agreement or from any Services (or from any advertising for Services) (“Dispute(s)”), only by arbitration on an individual basis. You understand that by agreeing to these terms, arbitration will be the sole and exclusive means of resolving any dispute between You and Us. You also understand that by agreeing to this Agreement, You and We are giving up the right to bring a claim in court or in front of a jury (except for matters that may be brought in small claims court), and that You and We are giving up the right to proceed with any class action or other representative action. While arbitration procedures may be different than court procedures, an arbitrator can award You individually the same damages and relief as a court, and judgment on the award rendered by the arbitrator may be entered and enforced in any court with jurisdiction. You and We understand that absent this mandatory provision, You and We would have the right to sue in court and have a jury trial. You and We further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

8.2 ARBITRATION PROCEDURE.

8.3 Jury Trial Waiver for United States or Canadian customers and customers with United States or Canadian Operations or Users. If for any reason a dispute proceeds in court rather than through arbitration, You and We agree that there will not be a jury trial. You and We unconditionally waive any right to trial by jury in any action, proceeding or counterclaim in any way arising out of or relating to this Agreement. In the event of litigation, this paragraph may be filed to show a written consent to a trial by the court.

8.4 Class Action Waiver for United States or Canadian customers and customers with United States or Canadian Operations or Users. This Agreement does not allow class or collective arbitrations, even if the arbitration procedures or rules would. Notwithstanding any other provision of these terms, the arbitrator may award money or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide the relief warranted by that party’s individual claim. Arbitration or court proceedings held under this Agreement cannot be brought, maintained or resolved on behalf of or by a class, as a private attorney-general, or in any other representative capacity. In addition, individual proceedings cannot be combined without the consent of all of the parties. Any question regarding the enforceability or interpretation of this section will be decided by a court and not the arbitrator.

9. INDEMNIFICATION

9.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from: (a) any damages, awards or fees finally awarded against You or (b) for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You promptly give Us written notice of the Claim Against You and give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability). Additionally, You must provide Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our sole discretion and at no cost to You (x) modify the Service so that it no longer infringes or misappropriates, without breaching warranties under Section 6.1, (y) obtain a license for Your continued use of that Service in accordance with this Agreement, or (z) terminate Your subscriptions for that Service upon thirty (30) days’ written notice and refund You pro-rata fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply: (i) to the extent a Claim Against You arises from Your breach of this Agreement, (ii) if the Services you are accessing are provided free of charge, or (iii) if You use one or more Services in an infringing manner and a non-infringing manner of use is available.

9.2 Indemnification by You. You alone are responsible for Your actions related to the use of the Services or the actions of any person using Your credentials or Your computing device. As such, You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party relating in any way to: (a) Your breach of this Agreement; (b) Your use of the Services; (c) the use of the Services or Our Information by any User or person using Your credentials or Your computing device; (d) any allegation that Your Information, or Your use of any Services or Our Information other than in conformance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”). You will indemnify Us from any: (y) damages, awards or fees finally awarded against Us as a result of, and (z) for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We promptly give You written notice of the Claim Against Us, give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and give You all reasonable assistance, at Your expense.

9.3 Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.

10. MISCELLANEOUS

10.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of law provisions. If for any reason a Dispute proceeds in court rather than through arbitration, such Dispute may only be brought exclusively in the provincial or federal courts located in Kingston, Ontario. We and You hereby submit to the exclusive jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding, and waive all defenses relating to jurisdiction, venue, or that such court is an inconvenient forum. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods.

10.2 Entire Agreement. This Agreement, including Additional Terms, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.

10.3 Third Party Content. The Services may contain or enable access to third party content, software, services, or websites that are subject to different license terms, and Your use of those services is governed by the applicable terms. You are responsible for obtaining and complying with any necessary rights or licenses to third party content, software, services, or websites.

10.4 Service Access. You are responsible for and must provide all telephone and other equipment, software (other than any software provided by Us), hardware, and services (including internet access) necessary to access and utilize the Services.

10.5 Amendment. We may modify this Agreement at any time. Any and all changes will become effective when We post the revised Agreement on the Services. Your use of the Services following these changes means You accept the revised Agreement. If You do not consent to the revised Agreement, You must stop using the Services, and You may notify us to receive a pro-rated refund for unused Services.

10.6 Waiver. The waiver by Us of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

10.7 Force Majeure. We shall not be responsible or liable in any way for Our failure to perform any of Our covenants or obligations under this Agreement if such failure results from events or circumstances reasonably beyond Our control.

10.8 Notices. We may periodically contact You or Your Users via email or other means to inform You or your Users about product updates, special offers or other information that We believe may be valuable.

10.9 Severability. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force. The parties agree that neither party shall be deemed the drafter of this Agreement and, in the event any provision in this Agreement is alleged to be ambiguous, such provision will not be construed in favor of one party on the ground that the provision was drafted by the other party.

10.10 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on behalf of the other without its prior written consent.

10.11 Assignment/Successors. You may not assign or transfer this Agreement, in whole or in part, without Our prior written consent, and if consent is provided, only if assignee agrees in writing to be bound by the terms of the Agreement. Any attempted assignment or transfer in violation of this Section will be null and void. Notwithstanding the foregoing, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.

10.12 Non-Exclusive Remedies. Except as set forth in this Agreement, the exercise by Us of any remedy under this Agreement will be without prejudice to Our other remedies under this Agreement or otherwise.

10.13 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of You or Us and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

10.14 Compliance with Laws; Export Control. You agree that you will comply with all applicable laws. We provide the Services from Our headquarters in Canada. If You use the Services from outside the United States of America or Canada, You are entirely responsible for compliance with applicable local laws, including but not limited to export and import regulations.

DEFINITIONS:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

“Additional Terms” means any other terms that apply to Your use of the Services, such as terms specific to a particular Service, order form terms, invoice terms, and the Privacy Terms referenced herein.

“Aggregated Information” means a combination of information from various sources and may include Your Information or Other Information that does not personally identify You.

“Branding Material” means distinctive brand features including without limitation the unique symbol, design, and/or name unique to an entity.

“Competitor” means a company or organization that: a) develops, sells, or distributes software or information management services to the agricultural community, b) provides insurance and risk management in the agricultural sector, c) provides lending services in the agricultural sector, d) is an agricultural input supplier or distributor, e) is an agricultural equipment supplier, f) provides farmland real estate brokerage services, or g) provides commodity market pricing information.

“Effective Date” means the date that You first access the Services.

“Feedback” means feedback or ideas You or Your Users provide to Us relating to the Services or Our Information or any suggested improvements thereto.

“Order Form” means any document specifying the Services to be provided that is entered into between Us and You, including any exhibits, addenda and supplements thereto. By entering into the Order Form, You agree to be bound by the terms of this Agreement as if the Order Form were an original part hereto.

“Other Information” means information we collect that may not specifically identify You, as further described in the Privacy terms.

“Our Information” means any data provided by Us to You, including all content, data, analyses, Aggregated Information, recommendations, or other information generated by or made available to You by the Services, excluding Your Information but including data that may be related to Your Information (for example, when Your Information is used to develop Aggregated Information and analyses).

“Personal Information” means information that identifies You as an individual or relates to an identifiable individual, as further described in the Privacy Terms.

“Services” means Our products, services, websites, software applications, documentation, and other content provided by Us to You.

“Taxes” means taxes, duties, levies, tariffs, and other governmental charges (other than Our income tax) associated with the sale of the Services, including any related penalties or interest.

“User(s)” means an individual or individuals who are authorized by You to use the Services, to whom You (or We at Your request) have supplied login credentials. Users may include, for example, Your employees, consultants, contractors and agents, or third parties with whom you transact.

“You” or “Your” mean the individual(s), company or companies or other legal entity or entities for which you are accepting this Agreement, and Affiliates of that company, companies, entity or entities.

“Your Information” means information We collect or have access to when You or Your agent, such as a certified sales agent or duly authorized representative, submit(s) the information while using or subscribing to the Services and may include Personal Information or Other Information, each as defined herein and further described in the Privacy Terms.