Harvest Profit Terms of Service

“Service” means the Company’s farm financial management software that tracks crop year profitability on a crop and field level basis, including all features, modules, and related services provided to the Customer via the internet.

“User” means an individual who is authorized by Customer to use the Service under this Agreement.

“Customer Data” means all information, data, and documents entered or uploaded into the Service by Customer or its Users.

“Subscription Term” means the period during which Customer is authorized to access and use the Service, as specified below.

“Documentation” means the online or written guides, manuals, and instructions provided by Company regarding the use of the Service

Provision of Service: Company grants to Customer a non-exclusive, non-transferable, and revocable right to access and use the Service and Documentation during the Subscription Term, solely for Customer’s internal business purposes for farm financial management.

User Accounts: Customer may authorize a limited number of Users to access the Service. Each User must have unique login credentials.

Restrictions: Customer shall not (a) permit any third party to access or use the Service except as expressly permitted herein, (b) reverse engineer, decompile, or disassemble the Service, (c) use the Service to develop competing products, or (d) use the Service in any unlawful manner.

Support: Company will provide standard technical support via email or online portal during Company’s business hours. To reach customer support, email support@harvestprofit.com. To set up a call with customer support, Customers can use this link: www.harvestprofit.com/call

Updates: Company may update or enhance the Service from time to time. Significant changes will be communicated to Customer in advance.

Customer will not use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

Customer represents, covenants, and warrants that Customer will use the Services in compliance with all applicable laws and regulations.

Data Security: Customer is responsible for maintaining the confidentiality of its User(s) login credentials and for all activities that occur under its accounts.

Accuracy: Customer is responsible for the accuracy, quality, and legality of Customer Data and the means by which it acquired such data.

Each party agrees to maintain the confidentiality of Confidential Information (as defined below) received from the other party during the term of this Agreement. “Confidential Information” includes all non-public information disclosed by one party to the other, whether in writing, orally, or by other means, that is designated as confidential or that reasonably should be understood to be confidential. Both parties agree that the foregoing shall not apply with respect to any information that (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the other party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the other Party or (e) is required to be disclosed by law.

Notwithstanding clause 5.A, Customer acknowledges and agrees that Company and its affiliates and related entities may use data and other information relating to the provision, use and performance of various aspects of the Service (including, without limitation, Customer Data (which may include Confidential Information) and data derived therefrom), as set forth in this Agreement and the Harvest Profit Privacy Notice available at www.harvestprofit.com. and at https://www.deere.com.au/en/privacy-and-data/. No rights or licenses are granted except as expressly set forth herein.

Customer will pay Company the then-applicable fees described in the order form for the Service they select as set forth at www.harvestprofit.com (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared. Inquiries should be directed to support@harvestprofit.com.

Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to interest at the rate of 1.5% per month (18% per annum) on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income.

Unless otherwise terminated in accordance with this Agreement, the initial term of this Agreement shall commence on the Effective Date and continue for a period of one (1) year (“Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive renewal terms of one (1) year (each a “Renewal Term”) unless either party provides written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term. Company will endeavor to notify Customer at least three (3) days prior to the processing of the Fees for the Renewal Term. If Customer would like to cancel the Service after Fees for their Renewal Term have been processed, the Customer must contact the Company within thirty (30) days of the Fees being processed to receive a refund. Except as set forth herein, no refund will be issued for prepaid Fees.

During any Renewal Term, the terms and conditions of this Agreement shall remain in full force and effect, subject to any updates or modifications as posted by Company from time to time on its website.

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of (365) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. The Customer Data will be provided to the Customer by the Company in a .csv file.

All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8 THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If there is a claim of infringement, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY, ITS AFFILIATES OR RELATED PARTIES AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

We may modify this Agreement from time to time due to changes in our products and services, market conditions, or changes in legislation. When changes are made, we will provide notice to you of such changes by making the revised version available online and will indicate the date that revisions will take effect. You should revisit this Agreement on a regular basis as revised versions will be binding on you if you continue to use or access the Services. You understand and agree that your continued access to or use of the Services after any modification to this Agreement are posted indicates your acceptance of the modified terms, which will be effective going forward. If you do not agree to any updated terms, you must immediately stop using the Services and notify us about the termination of this agreement, and we may suspend or terminate your access to the Services.

This Agreement will be governed by and construed according to the laws identified as the Governing Law for the Contract Jurisdiction in Table 1, without reference to its conflict of laws provisions. All disputes arising under this Agreement will be heard only by a court of competent jurisdiction in the Venue for the Contract Jurisdiction in Table 1, and Customer submits to the jurisdiction of such courts for the purpose of litigating such disputes. The rights and obligations of the parties under this Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) and the parties hereto expressly exclude the applicability of the CISG to this Agreement. In the event this Agreement is translated in any language other than the English language, then in the event of a conflict between the English language version and the translated version, the English language version will prevail in all respects

Australian Consumer Law. Despite the limitations on liability contained in this Agreement, to the extent you are entitled to the protection of any of the consumer guarantees in Part 3-2 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth), sections 8 and 10 of this Agreement do not invalidate, modify or otherwise limit those consumer guarantees.

Contract Jurisdiction. If you are a corporate entity with its headquarters in Australia or an individual living in Australia, for the purpose of Section 12 and Table 1, the Contract Jurisdiction is the United States of America. In the event of a dispute arising under this Agreement, the Venue will be the courts of the State or Territory of Australia in which you are ordinarily resident.

Privacy.

Collection. use and disclosure of information. You acknowledge and agree that the Company may collect, use and disclose information you provide in connection with this Agreement outside of Australia, to other destinations including but not limited to the United States of America, as required to permit the Company and its related entities to access and use the information for the purposes described in this Agreement and in our Enterprise Privacy Statement which is available on the Harvest Profit website and at https://www.deere.com.au/en/privacy-and-data/ and the Australia & New Zealand addendum to this statement which is available at https://www.deere.com.au/en/privacy-and-data/australia-new-zealand-privacy-supplement/.

GST.

Recovery of GST. If GST is payable, or notionally payable, on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable, or notionally payable, on that supply (the "GST Amount"). Subject to the prior receipt of a tax invoice, the GST Amount is payable at the same time that the other consideration for the supply is provided. If a tax invoice is not received prior to the provision of that other consideration, the GST Amount is payable within 10 days of the receipt of a tax invoice. This Section 13.D(i) does not apply to the extent that the consideration for the supply is expressly stated to be GST inclusive or the supply is subject to reverse charge.

Liability net of GST. Where any indemnity, reimbursement or similar payment under this Agreement is based on any cost, expense, or other liability, it shall be reduced by any input tax credit entitlement, or notional input tax credit entitlement, in relation to the relevant cost, expense or other liability.

Adjustment events. If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST Amount will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.

Survival. This Section 13.D will not merge upon completion and will continue to apply after expiration or termination of this Agreement.

Definitions. Unless the context requires otherwise, words and phrases used in this Section 13.D that have a specific meaning in the GST law (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) shall have the same meaning in this Section 13.D.