Regrow Subscription Terms

These Subscription Terms apply to new Sales Orders (or renewals of existing Sales Orders) effective on or after September 1, 2023.If you are an existing Customer and previously agreed to a version of the Subscription Terms or Master Subscription Agreement (as applicable) before September 1, 2023, these Subscription Terms will go into effect upon the renewal date of your next Sales Order. If you have a separate written agreement with Regrow on this subject matter (such as a Master Services Agreement), these online Subscription Terms will not apply to you.

These Subscription Terms (“Agreement”) are entered into by and between Regrow Agriculture, Inc., (“Regrow”), and the party identified as the customer in the applicable Sales Order (“Customer”) and is effective as of the date the parties enter into a Sales Order incorporating these terms (the “Effective Date”).  This Agreement sets forth the terms and conditions under which Regrow agrees to provide, and Customer agrees to obtain, access to the Regrow online services described herein. In the event of a conflict, an exhibit, attachment, addendum, or Sales Order prevails over this Agreement.

1. Construction.  Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, including the initial order set forth in Exhibit A (the “Initial Order”), and its exhibits and addenda.

2. Software as a service.

2.1 Access.  
Commencing on the Effective Date of this Agreement, Regrow shall make available to Customer the Regrow software identified in one or more orders referencing this Agreement, including without limitation the Initial Order (each, an “Order”), as hosted by Regrow for internal use by Customer within the specific territory and use limitations set forth in the Order (the “Service”).

2.2 Rights to  the Service.  
Subject to the terms and conditions of this Agreement, Regrow hereby grants Customer a non-exclusive, non-transferable, worldwide right during the Term to access the Service and permit the number of individual users specified in the Order to use the Service solely for Customer’s internal purposes up to the limits set forth in the applicable Order (“Authorized Users”).

2.3 Updates.
At no charge to Customer, Regrow shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”).  Updates (if any) shall be subject to the same terms and conditions of this Agreement.

2.4 Restrictions and Conditions.
Customer shall not, directly or indirectly, and Customer shall not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Regrow Offering; (b) modify, translate, or create derivative works based on any element of the Service; (c) sell, rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Service; (d) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (e) allow access to the Service by multiple individuals impersonating a single end user; (f) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Regrow technologies, services, systems or other offerings, including data transmission, storage and backup; (g) use the Service for the purpose of developing a product or service that competes with the Regrow online products and services; (h) circumvent or disable any security features or functionality associated with the Service; (i) remove any proprietary notices from the Service; (j) publish or disclose to third parties any evaluation of the Service without Regrow’s prior written consent; (k) use the Service for any purpose other than its intended purpose; (l) introduce any open source software into the Service; or (m) use the Service in any manner prohibited by law.

2.5 Service Level Agreement.
Regrow shall use commercially reasonable efforts to make access to the Service available twenty-four (24) hours per day, seven (7) days a week with a minimum uptime level of ninety-nine percent (99%) measured on an aggregate monthly basis.  Such service availability does not, however, include regularly scheduled maintenance or any unscheduled downtime due to failures beyond Regrow’s control (such as errors or malfunctions due to the end user’s computer systems, local networks or Internet connectivity). A failure to meet this uptime target during a given calendar month is referred to herein as an “SLA Failure.”  A failure to meet the above uptime levels during two or more consecutive calendar months, or three or more calendar months during a rolling twelve-month period, is referred to herein as a “Critical SLA Failure.”  Customer may immediately terminate the Agreement or the applicable Service Order without penalty in the event of a Critical SLA Failure upon written notice to Regrow, provided that such notice is made within thirty days of the event giving rise to the termination right.

3. Confidentiality

3.1 Confidentiality.
Each party agrees that, without the express consent of the other party, none of its employees or agents will disclose to any third party any information or material that the other party designates as confidential (including without limitation the terms and conditions of this Agreement) unless such information or material (a) is or becomes publicly known through no wrongful act of the receiving party, (b) is received from a third party without restriction and without breach of any confidentiality obligation to the other party, (c) is independently developed by the receiving party, or (d) is required by law to be disclosed (provided that the other party is given advance notice of, and an opportunity to, contest any such requirement).

3.2 Customer Content.
As between the parties, Customer (or Customer’s licensors) own all rights, title and interest in and to all content and other data submitted by or on behalf of Customer to Regrow or the Service (“Customer Content”).  Customer shall have sole responsibility for the legality, reliability, accuracy and quality of Customer Content.  Customer hereby represents and warrants to Regrow that it has all rights necessary to provide the Customer Content and grant the license specified below without infringing upon the rights of any third party.  Customer hereby grants to Regrow a non-exclusive, royalty-free, worldwide license to use, copy, store, modify, distribute, transfer, perform and display the Customer Content for quality control and for the purpose of improving Regrow’s products and services.  In addition, Regrow may (during and after the term hereof) freely use and disclose aggregated or anonymized Customer Content for any purpose without restriction. Resulting models will not include, or be reversible to expose, the identity of Customer, its users or any other person.  If requested by Customer in writing within thirty (30) days of the expiration or termination of this Agreement, Regrow shall make available to Customer all Customer Content stored within the Service at the time of expiration or termination in a format reasonably acceptable to Customer.  After such 30-day period, Regrow shall have no further obligation to Customer.

4. Professional Services.

4.1 Additional support services, including custom configuration, consulting, training and system integration, may be separately purchased from Regrow under the terms of a statement of work referencing this Agreement (“Professional Services”).

4.2 As between the parties, Customer owns all rights, title and interest in and to (a) all content and other data submitted by Customer or its Authorized Users to the Professional Services, and (b) all content specifically designated in a SOW as “deliverables” to be provided by Regrow to Customer as a result of the performance of the Professional Services under such SOW; provided, however, that the deliverables shall at all times exclude the Regrow’s Works as defined by 4.3.

4.3 Regrow retains all rights, titles and interest in and to (a) Regrow’s independently developed property of any type or nature, including property provided, used or developed in the course of performing the Services or preparing the Deliverables, whether tangible or intangible, including Regrow’s software applications, software tools, software scripts, methodologies, templates, sample code, specifications or know-how as well as any modifications, extensions, derivative works to the foregoing; (b) Regrow’s Confidential Information; and (c) the Intellectual Property Rights in the foregoing (“Regrow Works”). This excludes any software products (including open source software), software documentation or technical specifications (including industry standards issued by a standards organization), technical data, equipment, APIs, connectors, software development kits, hosting or other services, or any other items owned by a party not affiliated with Regrow or the Customer that are not the sole property of Regrow that are either (a) used by Regrow to develop, test, or deliver the Deliverables or provide the Services; (b) incorporated by Regrow into a Deliverable; or (c) procured by Regrow for the Customer as required under this Agreement.4. 4 For clarity, Regrow has no obligation to support Customer’s own technology, internal infrastructure, provide free training, or provide consulting on Customer created content or third-party technologies and services unless mutually agreed to in writing via an approved sales agreement and or statement of work, except that Regrow will, in its reasonable discretion, respond to simple Customer inquiries regarding the functionality of the Services.

5. Customer Obligations

5.1 Fees and Payment Terms.  
In consideration of the rights granted herein, Customer shall pay Regrow the amounts specified in each Order, including without limitation the Initial Order located in Exhibit A, separately attached and incorporated herein to the Agreement (“Fees”).  

(a)
Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”).  Customer shall be solely responsible for the payment of any Sales Taxes.  In the event Regrow is required to pay Sales Taxes on Customer’s behalf, Customer shall promptly reimburse Regrow for all amounts paid.  If Customer is required by law to withhold or deduct any withholding taxes from or in respect of any amount payable by Customer to Regrow hereunder, then the amount payable under this Agreement shall be increased to such amount which, after making all required withholdings or deductions of withholding taxes therefrom, will equal the amount payable hereunder had no such withholding taxes or deductions been required.

(b)
The calculation of Fees may depend on the number of acres of land for which Customer submits for certification under a certification program, as further specified in an applicable Order.  Concurrent with each submission by Customer for certification under the certification program, Customer must provide to Regrow a copy of such submission. In addition, Customer shall maintain complete and accurate submissions, books, records, contracts and accounts relating to the Fees due under this Agreement (“Records”).  Regrow shall have the right, at its expense (except as otherwise provided for below) at any time during the Term and for a period of three years thereafter, to audit and conduct an inspection of Customer’s Records.  If an audit reveals underpayment, then Customer party shall immediately pay the underpaid amount to the other party plus interest (as determined in accordance with Section 5.1(d).  If Customer underpaid by more than 5% over the audited period, then Customer shall bear (or promptly reimburse the Regrow for) the reasonable cost of the audit.
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(c)
All amounts shall be paid to Regrow within thirty (30) days of receipt of an undisputed invoice.  An invoice shall be deemed undisputed if, within such thirty (30) day period, Customer fails to notify Regrow in writing of any disputed amounts.  
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(d)
Fees not paid when due shall be subject to a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law.  Regrow further reserves (among other rights and remedies) the right to suspend access to the Service.  Amounts payable to Regrow shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Regrow.    
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(e)
All prices and other payment terms are confidential information of Regrow and Customer agrees not to disclose such information to any third party throughout the Term and for three (3) years thereafter.

(f)
Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the scope of the subscription cannot be decreased during the relevant subscription term.

5.2 Compliance with Laws.  
Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations.  Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights.  Notwithstanding anything to the contrary in this Agreement or any other agreement between the parties, Customer will not upload any data or information that is subject to government regulation, including without limitation, protected health information regulated under the Health Insurance Portability and Accountability Act of 1996 or sensitive financial information regulated under the Gramm-Leach-Bliley Act of 1999.

5.3 No Legal or Professional Advice.  
The Service should be used for informational purposes only and is not intended as business or legal advice. If Customer makes decisions in reliance on information it receives in connection with the Service, it does so at its own risk and Regrow, its employees, and its agents will not be liable for any losses that it may sustain.

5.4 Government Rights.  
Regrow provides the Service for ultimate federal government end use solely in accordance with the following:  Government technical data and software rights related to the Services 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 conveyed under these terms, it must negotiate with Regrow to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.  Customer covenants not to use the Service in any manner that would subject the Service or its output to a freedom of information act disclosure requirement or similar requirement under any applicable law.

6. Term and termination.

6.1 Term.  
Unless otherwise specified in the Order, the initial term of this Agreement will begin on the Effective Date and shall continue thereafter until the End Date specified in the Order (the “Initial Term”), and shall thereafter automatically renew for additional periods of one (1) year unless either party provides written notice of its intention not to renew to the other party at least ninety (90) days prior to expiration of the current term (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”).  If no End Date is specified in the Order, the End Date will be one year from the Effective Date of this Agreement.  In the event that Regrow increases Fees in an applicable renewal term by more than three percent (3%), Regrow will notify Customer at least one hundred and twenty (120) days prior to the expiration of the then current term.  Fee increases up to 3% or less in a given renewal term may be made by Regrow and will be binding on Customer if reflected on Regrow’s invoice for such renewal term.

6.2 Termination.  
Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach has not been cured within thirty (30) days of providing notice thereof.

6.3 Effect of Termination.  
Upon expiration or termination for any reason, Customer shall discontinue all use of the Service, and return any and all software and documentation provided to Customer by Regrow. Customer will be responsible for all annual contract fees unpaid upon termination, and Regrow will provide an invoice for any annual fees unpaid at the date of termination. After any termination or expiration of this Agreement for any reason, Customer shall not claim to use the DeNitrification DeComposition Soil Carbon Model in any submission for any certification of carbon credits.  If Customer breaches the foregoing sentence, Customer shall pay Regrow an amount equal to the product of (i) 500% times (ii) the then-current list price that Regrow would have charged Customer for use of the SaaS Service in connection with such submission, had Customer purchased the lowest tier of subscription then offered by Regrow.  The parties intend that the payment amount set forth in this section constitutes compensation, and not a penalty.  The parties acknowledge and agree that the Customer’s harm caused by a breach by Customer would be impossible or very difficult to accurately estimate, and that the payment amount set forth in this section is a reasonable estimate of the anticipated or actual harm that might arise from such a breach.  Any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled and apply to successors and assignees. The section survives any termination or expiration of this Agreement for any reason.

7. Indemnification.

7.1 Customer.  
Customer shall indemnify and hold Regrow, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under this Agreement.  In the event Regrow is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Customer agrees to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorney's fees.

7.2 Regrow.  
Regrow shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out a third-party claim that the Service infringes or misappropriates any U.S. patents issued as of the Effective Date or any copyright or trade secret of any third party during the term of this Agreement.  Regrow shall have no indemnification obligation, and Customer shall indemnify Regrow pursuant to this Agreement, for claims of infringement arising from the combination of Service with any unique aspects of Customer’s business, for instance Customer’s content, products, services, hardware or business processes, or for any use of the Service or any Regrow software not expressly authorized herein.

7.3 Process.  
A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought.  Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party.  Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties.  The indemnified party may, at its own expense, participate in the defense of any such claim.

8. Warranty / Liability / Total Liability

Mutual Warranties.  Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.

8.1 Disclaimer.  
THE SERVICE AND ANY REGROW TRAINING, INSTRUCTION AND SUPPORT OR OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED STRICTLY ON AN "AS IS" BASIS.  ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY REGROW, ITS SUPPLIERS AND ITS LICENSORS.  THE SERVICE SHOULD BE USED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED AS BUSINESS OR LEGAL ADVICE.  IF CUSTOMER MAKES DECISIONS IN RELIANCE ON INFORMATION IT RECEIVES IN CONNECTION WITH THE SERVICE, IT DOES SO AT ITS OWN RISK AND REGROW, ITS EMPLOYEES, AND ITS AGENTS WILL NOT BE LIABLE FOR ANY LOSSES THAT IT MAY SUSTAIN.

8.2 Customer's Disclaimer.
CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS.  REGROW IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND REGROW’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY REGROW.

8.3 Limitation.  
CUSTOMER’S EXCLUSIVE REMEDY AND REGROW’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER, UP TO THE AGGREGATE AMOUNTS PAID BY CUSTOMER AND RECEIVED BY REGROW HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM.  THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES.  CUSTOMER HEREBY RELEASES REGROW, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION.

8.4 Exclusion of Certain Damages and Limitations of Types of Liability.  
IN NO EVENT WILL REGROW BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE.  THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.

8.5 Interpretation.  
The limitations in sections 8.3 and 8.4 are independent of each other.  The limitation of damages set forth in section 8.3 shall survive any failure of essential purpose of the limited remedy in section 8.4.

9. Notices and Requests.  
Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement.  All additional access licenses purchased by Customer during the Term shall be subject to the terms of this Agreement.  For clarity, in no event shall any other term or provision of this Agreement be deemed modified, amended or altered as a result of such purchase and all other changes to this Agreement shall be governed by terms of Section 10, below.

10. Marketing Activities.
Regrow may use Customer's name and logo in general listings of Regrow’s customers.  Regrow may use Customer’s name and logo in press releases or white papers only upon prior approval of Customer (which approval shall not be unreasonably withheld or delayed).  From time to time, Regrow may request Customer to participate in reference calls and/or site visits with noncompetitive new Customers, partners, media and industry analysts, provided, that, Customer shall have no obligation to participate in any such reference calls or site visits.  Regrow will attempt to give Customer a 2-week notice in requesting an upcoming reference.

11. Additional Terms.  
Regrow shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by Regrow and counter-signed by its authorized agent.  The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution.  The terms of any addendum shall control any conflicting terms in this Agreement.  Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement.

12. General.  
This Agreement shall be governed by Delaware law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware.  No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service.  The failure of Regrow to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.  All disclaimers, limitations, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this "General" section shall survive termination of this Agreement.   If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect.  This Agreement, together with its the following exhibits, comprises the entire agreement between Customer and Regrow and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained in the Sales Order.