Terms of service

Leaf International Corporation

SaaS Agreement

1. THE SERVICE

1.1. Provision of the Service. Subject to all the terms of this Agreement, Leaf grants Customer a non-sublicensable, non-transferrable (except with an assignment of this Agreement as authorized herein), nonexclusive, limited right to access and use the application programming interface (“API”), and associated hosted services, described in an Order Document (collectively, the “Service”) - but only to help enable Customer’s own application(s) (“Customer Applications”) to access and translate farm data from end users. All activity under the Agreement shall be strictly in accordance with and subject to Leaf’s applicable usage documentation (located at learn.withleaf.io – or such other webpage as Leaf may notify Customer of.

1.2. Services Levels. Leaf will provide Customer with the services levels set forth in Schedule A attached hereto. Leaf will also provide reasonable technical support.

1.3. General Restrictions. Customer shall not (and shall not allow any third party to): (a) rent, lease, copy, provide access to or sublicense the Service to a third party; (b) use the Service to help develop any products or services that compete with the Service, (c) use the Service for the direct benefit of any third party, (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any of any part of the Service (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law - and then only upon advance notice to Leaf, in which case Leaf may terminate this Agreement on written notice), (e) modify or create derivatives of the Service or any other materials provided by Leaf, or (f) remove or obscure any proprietary or other notices contained in the Service or documentation provided by Leaf.

1.4. Feedback. Notwithstanding anything else, Customer grants Leaf a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback for any purposes. Leaf agrees that (i) Customer does not have to provide Feedback, and (ii) all Feedback is provided “AS IS”. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions or other feedback provided by Customer (whether in oral, electronic or written form) to Leaf for the Service.

1.5. Third-Party Applications. The Service may enable Customer to send Customer Data to and from different third-party equipment, services, sources, and destinations Customer uses (“Third-Party Applications”). Customer use of any Third-Party Applications is subject to Customer’s separate agreement with the provider. Customer is responsible for selecting and configuring the Third-Party Applications it chooses to use with the Service and for any exchange of Customer Data it enables through the Service. Notwithstanding anything to the contrary, Leaf is not responsible for any Third-Party Applications used by Customer with the Service. For clarity, Leaf has no liability or obligation under the separate agreement between Customer and the applicable third-party provider.

2. DATA

2.1. End User Data. “End User Data” means raw data that Leaf may receive and collect via third party applications and sources of data connected with or accessed by Customer Applications. For example, this information may include farm management data, machine data, land data, agronomic data, and weather and climate data. End User Data will be owned by the applicable End User. Customer represents and warrants that it has all right, power, authority, licenses, and consents necessary for Leaf to receive, collect and use End User Data for all purposes hereunder. For clarity, it is Customer’s responsibility to secure appropriate rights and licenses from the applicable End Users.

2.2. “Customer Data” means all (i) data provided by Customer or its systems or providers to Leaf, and (ii) all data (if any) collected by the Software from Customer’s equipment or environment. As between the parties, Customer shall retain all right, title and interest in the Customer Data.

2.3. License of Data. Subject to the terms of this Agreement, Customer hereby grants to Leaf a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data to the extent necessary to provide the Service to Customer. Customer represents and warrants that (i) it has all rights and authorization to provide the Customer Data, and (ii) Customer’s provision, use and maintenance of Customer Data complies with all laws, regulations and third-party rights.

2.4. Security. Leaf will implement and maintain an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of Customer Data (for clarity, including the End User Data).

2.5. Aggregate and Deidentified Data. Leaf will have an irrevocable, perpetual right to retain and internally use any data collected hereunder in an aggregated and deidentified form to improve its products and services and develop new products and services (such as training models and algorithms). Aggregate and deidentified information may be publicly disclosed (such as if Leaf publishes industry infographics) provided that, for clarity, it does not identify Customer or any End User.

3. INTELLECTUAL PROPERTY

No intellectual property rights are assigned or transferred by either party in connection with this Agreement.

4. FEES; PAYMENT

4.1. Fees; Payment. All fees are as set forth in the applicable Order Document and are payable in advance. Fees must be paid within thirty (30) days of Customer’s receipt of Leaf’s invoice, unless otherwise specified in the applicable Order Document. If Customer pays in advance for usage-based pricing, and then exceeds such usage, Leaf will invoice Customer for the excess usage on a pro rata basis for the remainder of the term. Leaf may adjust the fees charged to Customer hereunder on written notice delivered to Customer at least sixty (60) days prior to the end of the then-current term (and such fees will take effect beginning on the next term). If Customer disagrees with an invoice, it must notify Leaf within sixty (60) days from receipt of the invoice – or it is deemed final. Leaf’s fees are exclusive of all taxes and other governmental assessments. Customer is responsible for all of the foregoing - other than taxes based on the income of Leaf. Except as expressly set out herein, all fees are non-cancellable and non-refundable.

4.2. Late Payments. In the event of late payments, Customer agrees to pay interest at the rate of one and one-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less). In addition, Customer will reimburse Leaf for all costs of collection (including attorneys’ fees). If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Leaf reserves the right to suspend Customer’s access to the Service, on five (5) days email notice, without liability to Customer until such amounts are paid in full.

5. TERM AND TERMINATION

5.1. Term. This Agreement will begin on the Effective Date and terminate as set forth below. Unless otherwise terminated as set forth below, each Order Document will begin on its effective date and have the initial subscription term set forth thereon. Thereafter, each Order Document will automatically renew for successive renewal terms of equal length to the initial subscription term, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current subscription term.

5.2. Termination. Either party may terminate this Agreement on thirty (30) days written notice if there are no Order Documents in effect. There is no other right to terminate for convenience. Order Documents cannot be terminated for convenience. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate) (email notice is sufficient in the case of non-payment); (b) ceases operation without a successor; or (c) seeks protection under, or is subject to, any bankruptcy, receivership or comparable proceeding. For clarity, termination of this Agreement will automatically terminate all Order Documents. Notices for failure to pay may be provided via email.

5.3. Effect of Termination. Upon any expiration or termination of this Agreement, (i) Customer shall immediately cease any and all use of and access to the Service and (ii) each party will return to the other party (or destroy at the discloser’s request) such other party’s Confidential Information (subject to Section 5.4 below). In the event this Agreement is terminated by Customer for Leaf’s uncured breach as authorized in Section 5.2, or is terminated pursuant to Sections 6.2 or 7, Leaf will promptly refund to Customer all fees paid in advance for the remainder of the term. In the event of any other termination, all fees that but for termination would otherwise have been due for the full term of all Order Documents (as if no termination had occurred) will be non-cancellable and non-refundable (and, if not already paid, will become promptly due).

5.4. Data on Termination. During the ninety (90) days period immediately following expiration or termination of this Agreement, Leaf will provide Customer with access to the Customer Data (for clarity, including the End User Data) for download (provided that, Leaf may retain the deidentified data set forth in Section 2.3). Thereafter, all data may be deleted by Leaf.

5.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.3, 1.4, 2.3, 4 (with respect to outstanding payment obligations), 5, 6.3, 7, 8 and 12.

6. WARRANTIES; DISCLAIMER

6.1. Mutual Warranties. Each party represents and warrants that (i) it has all right, power, and authority to execute this Agreement and perform hereunder, (ii) its activities in connection with this Agreement will not violate any laws or regulations, and (iii) its performance will not conflict with an obligations it has to any third party.

6.2. Limited Warranty. Leaf warrants, for Customer’s benefit only, that the Service will operate in conformity, in all material respects, with the applicable Documentation. Leaf does not warrant that Customer’s use of the Service will be uninterrupted or error-free. Leaf’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Leaf’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Leaf determines such remedies to be impracticable, to allow Customer to terminate the Order Document and receive as its sole remedy a refund as set out in Section 5.3. The limited warranty set forth in this Section 6.2 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) if the Service is provided on a no-charge or evaluation basis.

6.3. Disclaimer; Limitation. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.2, THE SERVICE IS PROVIDED “AS IS'' AND LEAF DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO LEAF DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE US$1,000.00), OR (III) IN THE CASE OF LEAF’S LIABILITY, THE COST OR PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES. THE LIMITATIONS ABOVE WILL NOT APPLY TO EITHER PARTY’S BREACH OF SECTION 8 OR CUSTOMER’S BREACH OF ANY LICENSE RESTRICTIONS. FOR INDEMNITY OBLIGATIONS, THE CAP SET FORTH IN SECTION 6.3(II) WILL BE INCREASED TO TWENTY-FOUR (24) MONTHS.

7. INDEMNIFICATION

7.1. By Leaf. Leaf shall indemnify and hold harmless Customer from and against any claim that the Service (as provided by Leaf) infringes any patent, copyright, trademark, or privacy rights provided that Customer provides Leaf with: (i) prompt written notice of such claim (but in any event notice in sufficient time for Leaf to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the Service is, or in Leaf’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Leaf may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and Leaf will promptly issue a refund to Customer as set out in Section 6.3. The foregoing indemnification obligation of Leaf shall not apply: (1) if the Service is modified by any party other than Leaf, but solely to the extent the alleged infringement is caused by such modification; (2) if the Service is combined with other services or processes not authorized by Leaf, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Service; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within the Service.

7.2. By Customer. Customer shall indemnify and hold harmless Leaf from and against (i) any claim that any Customer Applications infringe or violate any patent, copyright, trademark, or privacy rights, (ii) any issues between Customer and any End User (including, without limitation, with respect to the Customer Applications, Customer’s provision or use of the End User Data, or Leaf’s use of the End User Data as authorized hereunder), or (iii) any breach of the warranties in Section 2; provided that Leaf provides Customer with: (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Leaf.

8. CONFIDENTIAL INFORMATION

Each party agrees that all business and technical information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. All fees and pricing information, and the API Package, will be Leaf’s Confidential Information. Except as expressly authorized herein, the Receiving Party will, using reasonable measures, hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; or (ii) is or has become public knowledge through no fault of the Receiving Party. If required to be disclosed by law, the Receiving Party will immediately notify the Disclosing Party and use its best efforts to limit the disclosure. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.

9. LOGO USE

Customer agrees that Leaf may use Customer's name and logo on Leaf’s web site and in Leaf promotional materials as part of a general list of customers. Any other marketing or promotion use is subject to Customer’s written approval (email is sufficient).

10. GENERAL TERMS

10.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assignees. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.

10.2. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, or refusal of a license by a government agency. If a force majeure event prevents a party’s performance hereunder for more than ten (10) days, the other party may terminate this Agreement on written notice. Force majeure will not excuse payment obligations for services performed.

10.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in Santa Clara, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legally be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Diego, California and both parties hereby submit to the personal jurisdiction of such courts.

10.4. Notice. Except as otherwise set forth in this Agreement, any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the first page of this Agreement, an Order Document, or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, any legal notices to Leaf must be delivered to the following email address: help@withleaf.io (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).

10.5. Entire Agreement. 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 and communications relating to the subject matter of this Agreement. It may only be amended or waived in a writing executed by both parties. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed electronically and in counterparts (such as via DocuSign).