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

2. RESPONSIBILITIES

3. FEES; PAYMENT TERMS

4. LIMITED WARRANTIES

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

8. TERM AND TERMINATION

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:

And:

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 © 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.