farmOS: agricultural record keeping software (as a service)

Farmier Subscription Agreement

This Farmier Subscription Agreement (this "Agreement") governs the use of the services provided by Barnowl.io LLC, a Connecticut limited liability company with a mailing address of P.O. Box 364, Mansfield Center, CT 06250 ("Barnowl"), to the customer identified on the online subscription order form ("Order") that references this Agreement ("Customer"). Barnowl's Service Level Agreement (SLA) terms are attached as Schedule A and the Customer Support Guide is Schedule B hereto.

This Agreement sets forth the terms under which Barnowl will provide Customer with access to and use of a software-as-a-service offering based primarily on farmOS, an open source farm management and planning application which is licensed under the GNU General Public License, and which may also include other open source or proprietary applications (collectively, the "Farmier Service").

The parties hereby agree as follows:

1. LICENSES

  • 1.1. Access Rights. Barnowl hereby grants Customer, during the Term, a limited, non-transferable and non-exclusive license for Customer's employees and third party consultants ("Authorized Users") to use the Farmier Service in accordance with the use parameters described in the Order, solely for Customer's internal business purposes consistent with the terms and conditions of this Agreement.
  • 1.2. Administration. Barnowl will issue to one Authorized User ("Administrator") an individual logon identifier and password ("Administrator's Logon") for purposes of administering the Farmier Service. Using the Administrator's Logon, the Administrator shall assign each remaining Authorized User a unique logon identifier and password and assign and manage the business rules that control each such Authorized User's access to the Farmier Service.
  • 1.3. License to Customer Data. Customer hereby grants Barnowl, its affiliates and service providers a worldwide, limited-term license to host, copy, transmit and display electronic data, as well as images and video, and other information submitted by or for Customer to the Farmier Service or collected and processed by or for Customer using the Farmier Service (the "Customer Data"). Subject to the limited licenses granted herein, Barnowl acquires no right, title or interest from Customer or Customer's licensors under this Agreement in or to the Customer Data.
  • 1.4. License to Feedback. Customer grants to Barnowl and its affiliates a worldwide, perpetual, irrevocable, royalty-free, transferrable license to use and incorporate into the Farmier Service any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorized Users relating to the operation of the Farmier Service.
  • 1.5. Restrictions. Customer and its Authorized Users shall be prohibited from and will not: (a) sell, lease, license or sublicense the Farmier Service, or include the Farmier Service in a service bureau or outsourcing offering; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile any proprietary components of the Farmier Service; (c) provide, disclose, divulge or make available to, or permit use of the Farmier Service by, any third party (except as expressly provided for herein); (d) copy or reproduce all or any part of the Farmier Service (except as expressly provided for herein); (e) knowingly interfere, or attempt to interfere, with the Farmier Service in any way; (f) use the Farmier Service to engage in spamming, mailbombing, spoofing or any other fraudulent, illegal or unauthorized use of the Farmier Service; (g) knowingly introduce into or transmit through the Farmier Service any virus, worm, trap door, back door; (h) interfere with or disrupt the integrity or performance of the Farmier Service or third-party data contained therein, (i) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Farmier Service; or (j) attempt to gain unauthorized access to the Farmier Service or its related systems or networks, or permit direct or indirect access to or use of the Farmier Service in a way that circumvents a contractual usage limit, or access the Farmier Service in order to build a competitive product or service. Additionally, Customer may not access the Farmier Service if Customer is a direct competitor of Barnowl, except with Barnowl's prior written consent. Customer may not access the Farmier Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
  • 1.6. Free Trial License. Barnowl may from time to time, offer a free trial license to the Farmier Service for thirty (30) days or other period as authorized by Barnowl. If by the end of the free trial period, Customer does not order the Farmier Service, then all Customer Data will be deleted from the Farmier Service, in accordance with Barnowl's data retention and removal policy in effect at that time, and Customer's access to the functionality of the Farmier Service will be terminated.

2. RESPONSIBILITIES

  • 2.1. Provision of Farmier Service. Barnowl will (a) make the Farmier Service available to Customer pursuant to this Agreement and the applicable Order, (b) provide Barnowl standard Customer Support for the Farmier Service to Customer at no additional charge, and/or upgraded support (if made available by Barnowl and purchased by Customer), and (c) use commercially reasonable efforts to make the online Farmier Service available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Barnowl shall give at least 8 hours electronic notice and which Barnowl shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Eastern time), and (ii) any unavailability caused by circumstances beyond Barnowl's reasonable control, including, for example, an act of god, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Barnowl's employees), Internet service provider failure or delay, non-Barnowl application, or denial of service attack (each a "Force Majeure Event").
  • 2.2. Protection of Customer Data. Barnowl will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Barnowl personnel except (a) to provide the Farmier Service and prevent or address service or technical problems, (b) as compelled by law, or (c) as Customer expressly permits in writing.
  • 2.3. Professional Farmier Service. Customer may order from Barnowl professional services that are beyond the scope of the Farmier Service, such as configuration, customization and data entry services, pursuant to the terms set forth in an Order.
  • 2.4. Customer Responsibilities. Customer will (a) be responsible for Authorized Users' compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired the Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Farmier Service, and notify Barnowl promptly of any such unauthorized access or use, and (d) use the Farmier Service only in accordance with the Barnowl documentation and applicable laws and government regulations.

3. FEES; PAYMENT TERMS

  • 3.1. Fees. In consideration of the provision of the Farmier Service, Customer shall pay the fees specified on the Farmier website. Customer will provide Barnowl with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Barnowl. If Customer provides credit card information to Barnowl, Customer authorizes Barnowl to charge such credit card for all Farmier Services listed in the Order for the initial subscription term and any renewal subscription term(s). Unless terminated by either party, subscriptions for the Farmier Service will renew automatically and will be charged at the then-current pricing as set forth on the Farmier website. Customer authorizes Barnowl to charge the Customer's credit card for renewals and other fees indicated in an Order without the requirement of seeking Customer authorization in each instance. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card, Barnowl will invoice Customer in advance and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, invoiced charges (as opposed to credit card charges) are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Barnowl and notifying Barnowl of any changes to such information. Late payments will incur interest in an amount equal to the lesser of 1.0% per month or the maximum allowable under applicable law. Payment obligations are non-cancelable and fees paid are non-refundable. All payments shall be in U.S. dollars. Customer shall reimburse Barnowl for any costs of collection, including reasonable attorneys' fee, incurred collecting from Customer overdue fees.
  • 3.2. Taxes. All fees quoted or specified on the Order do not include, and Customer will pay or reimburse Barnowl (or its authorized reseller identified on the applicable Order) for, any applicable sales tax, use tax, and value added taxes (VAT) or other taxes which are levied or imposed by reason of the performance by Barnowl under this Agreement, excluding income taxes. If Customer is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Customer will provide Barnowl with any required documentation to verify its tax exempt status with the applicable taxing authorities.
  • 3.3. Future Functionality. Customer agrees that Customer purchases of the Farmier Service are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Barnowl regarding future functionality or features.

4. LIMITED WARRANTIES

  • 4.1. Customer Warranty. Customer represents, warrants and covenants to Barnowl that: (a) it has the authority to enter into this Agreement and perform its obligations hereunder; and (b) it and its Authorized Users will only use the Farmier Service for lawful purposes and will not use the Farmier Service to violate any law of any country or the intellectual property rights of any third party.
  • 4.2. Barnowl Warranty. Barnowl warrants that: (a) Barnowl has the authority to enter into this Agreement; (b) the Farmier Service will operate and conform to Barnowl's published documentation; and (c) Barnowl shall perform the obligations specified in the Farmier Service Level Agreement attached as Schedule A and workarounds, and fixes as specified in the Customer Support Terms attached as Schedule B. "Documentation" shall mean the reference, administrative and user manuals, delivered by Barnowl to Customer with the Farmier Service. Documentation shall not include marketing materials.
  • 4.3. Disclaimer. Except as set forth in Section 4.2, Barnowl makes no representations or warranties, whether express or implied regarding or relating to any part of the Farmier Service or any other matter covered by this Agreement. BARNOWL SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Barnowl does not guarantee that Customer's access to the Farmier Service will be uninterrupted or error free or that all errors will be corrected.

5. LIMITATION OF LIABILITY

IN NO EVENT WILL BARNOWL BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF OR DAMAGE TO OR DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ALLEGED AS A BREACH OF CONTRACT, TORT OR OTHER FORM OF ACTION, EVEN IF BARNOWL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BARNOWL'S LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO BARNOWL UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE ON WHICH A CLAIM FIRST ACCRUES.

6. PROPRIETARY RIGHTS

Except for the license granted in Section 1, no right title or interest of intellectual property or other proprietary rights in and to the Farmier Service made available under this Agreement is transferred to Customer hereunder. Barnowl and its third party licensors retain all right, title and interests, including, without limitation, all copyright and other proprietary rights in and to the Farmier Service and all, modifications, enhancements and derivatives thereof. Customer will retain all right, title and interest to the Customer Data and documents created by Customer using the Farmier Service.

7. MUTUAL INDEMNIFICATIONS

  • 7.1. Indemnification by Barnowl. Barnowl will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Farmier Service in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights (a "Claim Against Customer"), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer, provided Customer (a) promptly gives Barnowl written notice of the Claim Against Customer, (b) gives Barnowl sole control of the defense and settlement of the Claim Against Customer (except that Barnowl may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Barnowl all reasonable assistance, at Barnowl's expense. If Barnowl receives information about an infringement or misappropriation claim related to the Farmier Service, Barnowl may in its discretion and at no cost to Customer (i) modify the Farmier Service so that they no longer infringe or misappropriate, without breaching the warranties under Section 4.2, (ii) obtain a license for Customer's continued use of the Farmier Service in accordance with this Agreement, or (iii) terminate Customer's right to use the Farmier Service upon 30 days' written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated use. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from (i) Customer's breach of this Agreement; (ii) the combination of the Farmier Service with other software products, processes or materials where the alleged infringement relates to such combination; or (iii) open source software or third party software.
  • 7.2. Indemnification by Customer. Customer will defend Barnowl against any claim, demand, suit or proceeding made or brought against Barnowl by a third party alleging that Customer Data, or Customer use of any Farmier Service in breach of this Agreement, infringes or misappropriates such third party's intellectual property rights or violates applicable law (a "Claim Against Barnowl"), and will indemnify Barnowl from any damages, attorney fees and costs finally awarded against Barnowl as a result of, or for any amounts paid by Barnowl under a court-approved settlement of, a Claim Against Barnowl, provided Barnowl (a) promptly gives Customer written notice of the Claim Against Barnowl, (b) gives Customer sole control of the defense and settlement of the Claim Against Barnowl (except that Customer may not settle any Claim Against Barnowl unless it unconditionally releases Barnowl of all liability), and (c) gives Customer all reasonable assistance, at Customer's expense.
  • 7.3. Exclusive Remedy. This Section 7 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 7.

8. TERM AND TERMINATION

  • 8.1. Term. The initial term of this Agreement shall be the term specified on the Order. After expiration of the initial term specified on the Order the Customer's subscription to the Farmier Service shall automatically renew for successive one-year periods (the initial term and each renewal term, a "Term") unless either party provides written notice of non-renewal at least 30 days prior to commencement of the applicable renewal term. Barnowl may send Customer written notice of an increase in fees for any renewal term at least 30 days prior to commencement of the applicable renewal term.
  • 8.2. Termination by Barnowl. Barnowl shall have the right, upon notice to Customer, to suspend the Farmier Service and/or terminate this Agreement if: (a) Customer fails to pay Barnowl any amount due hereunder; (b) Customer materially breaches any term or condition of this Agreement, provided such breach is not cured by Customer within 10 days following Barnowl's notice to Customer of such breach; or (c) Customer (i) terminates or suspends its business activities; (ii) liquidates all or a substantial portion of its assets for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority to effect such liquidation of assets; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes to effect such liquidation of assets.
  • 8.3. Termination by Customer. Customer will have the right, upon notice to Barnowl, to terminate this Agreement if Barnowl is in material breach of this Agreement and Barnowl fails to remedy such material breach within 10 days of its receipt of such notice or Barnowl (i) terminates or suspends its business activities; (ii) liquidates all or a substantial portion of its assets for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority to effect such liquidation of assets; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes to effect such liquidation of assets.
  • 8.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 8.3, Barnowl will refund Customer any prepaid fees covering the remainder of the Term of all Orders after the effective date of termination. If this Agreement is terminated by Barnowl in accordance with Section 8.2, Customer will pay any unpaid fees covering the remainder of the Term of all Orders. In no event will termination relieve Customer of Customer's obligation to pay any fees payable to Barnowl for the period prior to the effective date of termination.
  • 8.5. Data Extraction. Upon any termination (except for trial licenses) and for a period of 30 days thereafter, Customer may request and Barnowl shall provide Customer with a copy of the data/files that have been uploaded or otherwise saved to the database provided as part of the Farmier Service subscription purchased by Customer under this Agreement. After such period, Barnowl may delete all data/files. Customer may request and Barnowl shall provide such data at any time during the term of this Agreement for its then current administrative fee for such service. Data will be returned by encrypted media, unless prior arrangements have been made to use another method. Upon confirmation of receipt of the media, Barnowl will send the password for decrypting the data.
  • 8.6. Survival. Any provisions necessary to interpret the respective rights and obligations of the parties hereunder shall survive any termination or expiration of this Agreement, regardless of the cause of such termination or expiration.

9. GOVERNING LAW; VENUE

This Agreement will be governed by the laws of the State of Connecticut, excluding its rules regarding conflicts of law. Venue for any dispute hereunder shall be a court of competent jurisdiction located in Tolland County, Connecticut, and the parties irrevocably submit to the exclusive jurisdiction of such courts.

10. FEDERAL GOVERNMENT END USER PROVISIONS

Barnowl will provide the Farmier Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Farmier Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Barnowl to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

11. EXPORT COMPLIANCE

The Farmier Service and other technology Barnowl makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Authorized Users to access or use the Farmier Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

12. ASSIGNMENT

Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without Barnowl's prior written consent (not to be unreasonably withheld). Barnowl may freely assign this Agreement.

13. AGREEMENT CHANGES

Barnowl may change the terms of this Agreement at any time upon 30 days' notice to Customer, and if Customer objects to any material modification to this Agreement, then Customer may terminate this Agreement by written notice within 30 days from receipt of Barnowl's notice and Barnowl will refund Customer fees for the period remaining of the Term after the termination date.

14. GENERAL PROVISIONS

Barnowl and Customer are independent contractors. Any notice required or permitted to be delivered pursuant to this Agreement shall be in writing (including email). Excluding payment obligations, neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to a Force Majeure Event (defined in Section 2.1 hereof). The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement. Customer grants Barnowl the right to use Customer's name in its website, press releases, product brochures and financial reports to indicate that Customer is a Barnowl client. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof. No purchase order or any hand written or typewritten text on a purchase order which purports to modify or supplement the printed text of this Agreement or any Order shall add to or vary the terms of this Agreement. All such proposed variations or additions (whether submitted by Barnowl or Customer) are objected to and shall have no force or effect. This Agreement will not create any right or cause of action for any third party beneficiary or any other third party. This Agreement (including the Schedules hereto) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.

Schedule A - Farmier Service Level Agreement (for Software as a Farmier Service)

This Farmier Service Level Agreement ("SLA") shall only apply to the Farmier Service during the Term of the Customer's subscription for the Farmier Service as set forth in the applicable Order. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement.

1. Availability

a. Formula. The Farmier Service will, subject to the exceptions listed below, be available at least 99% of the time during each calendar month (referred to herein as the "Availability Commitment"). The availability of the Farmier Service for a given month will be calculated according to the following formula (referred to herein as the "Availability"):

Where:

  • Total minutes in the month = TMM
  • Total minutes in the month the Farmier Service is unavailable = TMU

And:

  • ((TMM - TMU) X 100) / TMM

b. For purposes of this calculation, the Farmier Service will be deemed to be unavailable (referred to herein as "Unavailable") only (i) if the Farmier Service do not respond to HTTP requests issued by Barnowl's monitoring software, or (ii) for the duration of a Severity-1 Error (i.e., the Farmier Service suffer an error or issue in a production down situation which cannot be reasonably circumvented and which so substantially impairs the performance of the Farmier Service or any components of the Farmier Service, which are critical to the Customer's business, as to effectively render them unusable). Further, the Farmier Service will not be deemed Unavailable for any downtime or outages excluded from such calculation by reason of the exceptions set forth in Section 2 of this SLA. Barnowl's records and data will be the basis for all SLA calculations and determinations.

c. Maintenance performed at Customer's request outside of the normally scheduled maintenance will not be considered an outage.

2. Exceptions

a. The Farmier Service will not be considered to be Unavailable for any outage that results from any maintenance performed by Barnowl during Barnowl's standard maintenance windows which occur between 6:00 p.m. Friday and 3:00 a.m. Monday Eastern time (collectively referred to herein as "Scheduled Maintenance").

b. The Barnowl network extends to, includes and terminates at the data center located router that provides the outside interface of each of Barnowl's WAN connections to its backbone providers (referred to herein as the "Barnowl Network"). The Farmier Service will not be considered Unavailable for any outage unavailability of the Farmier Service due to (a) Customer's information content or application programming, acts or omissions of Customer or its agents; (b) delays or failures due to circumstances beyond Barnowl's reasonable control that could not be avoided by its exercise of due care; or (c) failures of Internet backbone itself and the network by which Customer connects to the Internet backbone or any other network unavailability outside of the Barnowl network.

Schedule B - Customer Support Terms

CUSTOMER SUPPORT FOR BARNOWL OFFERINGS

This Support Terms sets forth the terms, conditions, and procedures under which maintenance and support ("Support") is offered for the Farmier Service during the Term of the Customer's subscription for such Farmier Service as set forth in the applicable Order. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement.

1. GENERAL

Scope. Support will consist of: (i) email support; (ii) correction of errors to keep the Farmier Service in conformance with the user documentation included in the Farmier Service; and (iii) updated versions of the Farmier Service provided by Barnowl to its general customer base of subscribers at no additional charge. Support will not include: (x) set-up, installation, or configuration of hardware and software required for the Customer to access the Farmier Service; or (y) consultation, error correction, or research with respect to Customer-created documents and information. Additional levels of Support may be offered by Barnowl from time to time and ordered by Customer.

2. CUSTOMER SUPPORT

Links to Support resources and contact information can be found in Customer's Farmier Service dashboard.

3. RESPONSE

The severity level of the problems reported by Customer shall be reasonably determined by Barnowl. Barnowl will resolve each reported error or issue with the Farmier Service by using commercially reasonable efforts to provide: (i) a patch or fix as necessary; or (ii) a reasonable workaround for the error or issue; or, if either (i) or (ii) are not reasonably practicable, a specific action plan regarding how Barnowl intends to address the reported error or issue and an estimate on how long it may take to correct or workaround the error or issue. Customer agrees to use commercially reasonable efforts to assist and provide information to Barnowl as required to resolve errors or issues with the Farmier Service reported by Customer. If a permanent repair cannot be made, a temporary resolution (bypass and recovery) will be implemented to the extent possible.

4. SUPPORT ISSUES

Support covers any issue or problem that is the result of a verifiable, replicable error (Barnowl will use all reasonable means to verify and replicate) in the Farmier Service ("Verifiable Support Issue"). An error will be a Verifiable Support Issue if it constitutes a material failure by the Farmier Service to function in accordance with the Barnowl documentation included in the Farmier Service. If Technical Support reasonably determines that Customer's problem is not caused by Barnowl or its systems, equipment, or software, Barnowl is not obligated to provide support under this Agreement. Nevertheless, Barnowl will, if possible, offer suggestions as to how Customer can remedy the problem. If Barnowl determines that the issue was not the result of a Verifiable Support Issue, Barnowl may offer to provide for out of scope professional services at Barnowl's then current rates upon its standard terms to address the issue.

5. ADDITIONAL SUPPORT

Technical Support may also determine that Customer's request is a request for "Additional Support." Additional Support is any assistance not covered above. Examples of Additional Support include substantive questions regarding data or results, requests for Farmier Service customization, specialized training regarding use of the Farmier Service, custom documentation, and consulting. If Barnowl believes that it can appropriately and effectively provide the requested services, it will offer to do so at its then-current rates upon its standard terms, subject to an Order.

6. CUSTOMER'S RESPONSIBILITIES

Customer's designated representative shall initiate all requests for Customer Support. The representative must be trained, qualified and authorized to communicate all necessary information, perform diagnostic testing under the direction of the Barnowl service representative and be available during the performance of any Customer Support if required.