PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE. BY USING THE SERVICE OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.

This agreement is between ECR Software Corporation (ECRS), DBA reciProfity, a North Carolina corporation and the customer agreeing to these terms (Customer).

1. ONLINE SERVICE. This agreement provides Customer access to, and usage of an Internet based software service as specified on an order (Service).

2. USE OF SERVICE.

a. Customer Owned Data. All data uploaded by Customer remains the property of Customer, as between ECRS and Customer (Customer Data). Customer grants ECRS the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, certain parts of Customer Data will be provided upon request. For more information, please contact us at support@reciprofity.com.

b. Access and Usage. Customer may allow its contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.

c. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account and notify ECRS promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s online technical documentation and applicable law.

d. Technical Support. ECRS will provide customer support for the Service under the terms of ECRS’s Technical Support Policy (Support) which is located at http://reciprofity.com/pricing/support/.

e. Trial. If Customer has registered for a trial use of the Service, Customer may access the Service for the duration specified by ECRS. The Service is provided AS IS, with no warranty during this time period. All Customer data may be deleted within 30 days ECRS after the trial period, unless Customer converts its account to a paid Service.

f. Beta. If Customer has registered for a beta use of the Service, Customer may access the Service for the duration specified by ECRS. The Service is provided AS IS, with no warranty during this time period. ECRS does not guaranty that the final version of the Service will contain all the beta features. All Customer data may be deleted within 30 days ECRS after beta period, unless Customer converts its account to a paid Service.

g. Data Security Measures.

i. Reasonable Security Measures. In order to protect Customer’s Confidential Information, ECRS will (i) implement and maintain all reasonable security measures appropriate to the nature of the Confidential Information including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such Confidential Information; (ii) implement and maintain industry standard systems and procedures for detecting, preventing and responding to attacks, intrusions, or other systems failures and regularly test or otherwise monitor the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designate an employee or employees to coordinate implementation and maintenance of its Reasonable Security Measures; and (iv) identify reasonably foreseeable internal and external risks to the security, confidentiality and integrity of Customer Data that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks (collectively, Reasonable Security Measures). ECRS shall provide 10 business dECRS’ prior written notice to Customer and any applicable Customer Company before making substantive adverse changes to Vendor’s security procedures and protections.

ii. Notice of Data Breach. If ECRS knows that Customer Confidential Information may have been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, ECRS will alert Customer of any data breach within two business dECRS, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. ECRS will give highest priority to immediately correcting any data breach and devote such resources as may be required to accomplish that goal. ECRS will provide Customer with all information necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted Customer may provide notice to any or all parties affected by any data breach. In such case, ECRS will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. ECRS will provide Customer information about what ECRS has done or plans to do to minimize any harmful effect or the unauthorized use or disclosure of, or access to, Confidential Information.

3. SERVICE LEVEL AGREEMENT & WARRANTY.

a. Warranty. ECRS warrants to Customer: the functionality or features of the Service may change but will not materially decrease during any paid term; and that the Support may change but will not materially degrade during any paid term.

b. THIRD PARTY DATA SOURCE DISCLAIMER. ECRS SPECIFICALLY DISCLAIMS AND PROVIDES NO WARRANTY REGARDING THE ACCURACY OR COMPLETENESS OF ANY THIRD-PARTY DATA SOURCES, SUCH AS USDA NUTRIENT AND CONVERSION DATA AND THE BOOK OF YIELDS, AMONG OTHERS. CUSTOMER SHOULD MAKE ITS OWNS DECISION ON WHETEHR AND TO WHAT EXTENT IT WANTS TO RELY ON SUCH DATA.

c. GENERAL DISCLAIMERS. ALL CALCUATIONS BY THE SERVICE ARE ESTIMATES AND DO NOT NECESSARILY REPRESENT THE ACTUAL COST OF AN ITEM. ECRS DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE ECRS TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, ECRS DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

4. PAYMENT. Customer must pay all fees as specified on the order, but if not specified then within 30 dECRS of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.

5. MUTUAL CONFIDENTIALITY.

a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). ECRS’s Confidential Information includes without limitation the Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below).

b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order but will provide Discloser with advance notice to seek a protective order.

6. ECRS PROPERTY

a. Reservation of Rights. The software, workflow processes, user interface, designs and Software and Documentation, and other technologies provided by ECRS as part of the Service are the proprietary property of ECRS and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with ECRS. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. ECRS reserves all rights unless expressly granted in this agreement.

b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Software and Documentation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.

c. Software and Documentation. All software provided by ECRS as part of the Service, and the Service documentation, sample data, marketing materials, training material and other material provided through the Service or by ECRS (Software and Documentation) are licensed to Customer as follows: ECRS grants Customer a non-exclusive, non-transferable license during the term of this agreement, to operate such Software in accordance with the Documentation, solely in connection with the Service.

d. Anonymized Data. During and after the term of this agreement, ECRS may use without restriction and owns all statistical, aggregated and anonymized data within the Service for purposes of enhancing the Service, technical support and other business purposes.

7. TERM & TERMINATION

a. Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).

b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

c. Return of Customer Data.

i. Within 30-dECRS after termination, certain parts of Customer Data will be provided upon request. Please contact us at support@reciprofity.com.

ii. After such 30-day period, ECRS has no obligation to maintain the Customer Data and may destroy it.

iii. Return ECRS Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay ECRS for any unpaid amounts, and destroy or return all property of ECRS. Upon ECRS’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

d. Suspension for Violations of Law. ECRS may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. ECRS will attempt to contact Customer in advance.

e. Suspension for Non-Payment. ECRS may suspend or terminate, or both, the Service if Customer is more than 15 dECRS late on any payment due or violates any restriction in Section 6(b).

8. LIABILITY LIMIT

a. EXCLUSION OF INDIRECT DAMAGES. ECRS is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss.

b. TOTAL LIMIT ON LIABILITY. ECRS’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.

9. INDEMNITY. If any third-party brings a claim against ECRS related to Customer’s acts, omissions, data or information within the Service, Customer must defend, indemnify and hold ECRS harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.

10. GOVERNING LAW; JURISDICTION; VENUE. This Agreement and any exhibits or attachments hereto will be governed by and construed in accordance with the substantive laws of the State of North Carolina, without regard to conflict of law principles. The Parties agree that any action or proceeding arising out of or relating to this Agreement, Products or Services, Service Specifications, or the relationship of the Parties hereto including, without limitation, any and all disputes between the Parties (whether such litigation sounds in contract, quasi-contract, statutory violation, law, equity, or tort), must be instituted and maintained exclusively in the state courts of Watauga County, North Carolina and the Parties hereby consent to such exclusive jurisdiction and venue and waive any right to object to such exclusive jurisdiction and venue including any defense to personal jurisdiction. Without limiting the generality of the foregoing, except for claims over which federal courts have exclusive jurisdiction, the Parties waive the right of removal to any federal court in North Carolina, it being understood and agreed that there are no federal courts in Watauga County, North Carolina. The Parties acknowledge and agree that they are executing this Agreement in the State of North Carolina.

11. OTHER TERMS.

a. Community forums. The Services may include a community forum or other social features to exchange Customer content and information with other users of the Services and the public (Community Forum). ECRS does not support and is not responsible for the content in these Community Forums. Please use respect when you interact with other users in a Community Forum. Do not reveal confidential or other information that you do not want to make public. Users may post hypertext links to content of third parties for which ECRS is not responsible.

b. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by ECRS. No waiver is effective unless the party waiving the right signs a waiver in writing.

c. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.

d. Independent Contractors. The parties are independent contractors with respect to each other.

e. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.

f. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

g. Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.

h. Feedback. If Customer provides feedback or suggestions about the Service, then ECRS (and those it allows to use its technology) may use such information without obligation to Customer.