DROPCONTROL TERMS AND CONDITIONS

JANUARY, 2021

IMPORTANT: PLEASE READ BEFORE USE OF THE WEB PLATFORM, WEBSITE, OR MOBILE APPLICATION (COLLECTIVELY, THE “SERVICES”) MADE AVAILABLE BY WISECONN ENGINEERING, INC. (“WISECONN”). BY EXECUTING A PURCHASE ORDER, CREATING AN ACCOUNT, INSTALLING OR USING THE SERVICES, THE ENTITY OR COMPANY THAT YOU REPRESENT (“CUSTOMER”) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THESE TERMS AND CONDITIONS AND THE PRIVACY POLICY AVAILABLE AT https://www.dropcontrol.com/publico/condiciones.jsp (“PRIVACY POLICY”) WITH WISECONN (COLLECTIVELY, THE “AGREEMENT”). THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, INSTALLATION OR USE THIS SERVICES IS STRICTLY PROHIBITED. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

1. ACCESS TO THE SERVICE. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on any order forms entered into between WiseConn or WiseConn’s authorized distributor and Customer with respect to the Services (each, an “Order Form”)), WiseConn grants Customer the right to access and use the Services during term of this Agreement but only i) for its internal business purposes of Customer, ii) for use with WiseConn’s field monitoring and control nodes (the “Units”) as provided herein, and iii) in accordance with any documentation provided by Wiseconn. Customer agrees and acknowledges that the Services are designed and offered for use only with the Units (which, together with the Services, are the “Products”). Customer acknowledges that an internet connection, mobile sim card and mobile network subscription may be required in order to use the Products, and WiseConn shall not be responsible for providing or maintaining such services. Customer may authorize its third party contractors to access the Services and download Customer Data, provided that such Customer requires such third parties to comply with all of the terms and conditions of this Agreement. Customer shall defend and hold harmless WiseConn for any claims, damages, liabilities, costs, and fees arising from the failure of such third parties to comply with the terms of this Agreement or from such third parties’ use of Customer Data.

2. RESTRICTIONS. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Products (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Products; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products; (iv) use the Products for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Products or any portion thereof; (vi) use the Products to build an application or product that is competitive with any WiseConn product or service; (vii) interfere or attempt to interfere with the proper working of the Products; (viii) bypass any measures WiseConn may use to prevent or restrict access to the Products (including accounts, computer systems or networks connected to the Service); or (ix) use of the Services with any devices other than the Units or any other devices integrated into the Service by WiseConn. Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto and downloading Customer Data from the Service. Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Products in a manner that violates any intellectual property, contractual or other proprietary rights of any other person. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.

3. OWNERSHIP; FEEDBACK. As between the parties, WiseConn retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by WiseConn for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. Customer may from time to time provide suggestions, comments or other feedback to WiseConn with respect to the Products (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for WiseConn notwithstanding anything else. Customer shall, and hereby does, grant to WiseConn a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.

4. CUSTOMER DATA. For purposes of this Agreement, “Customer Data” shall mean any data, uploaded from the Units owned by Customer, and other information uploaded by Customer to the Service in the course of using the Service. WiseConn shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. WiseConn’s collection and use of any personal information of the Customer shall be governed by its Privacy Policy.

5. SUPPORT AND UPGRADES. From time to time, WiseConn may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that WiseConn shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that WiseConn may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that WiseConn shall use commercially reasonable efforts to give Customer sixty (60) days prior notice of any major changes. WiseConn will provide support and uptime for the Service in accordance with (i) the support package selected by Customer on the applicable Order Form (if any) and (ii) WiseConn’s then-current Support and Availability Policy set forth at https://static.dropcontrol.com/HW_RMA.pdf. All warranty claims for the Products shall be submitted in accordance with WiseConn’s Return Material Authorization (RMA) process detailed at the following link: https://static.dropcontrol.com/HW_RMA.pdf.

6. THIRD PARTY INTEGRATIONS. WiseConn offers the ability for the Services to integrate with certain third-party applications, services or software (“Third Party Integrations”) through WiseConn’s API. If Customer uses a Third Party Integration, Customer may be required by such third party to use such Third Party Integration to access and read Customer’s Data, as well as write data to Customer’s account and/or generate irrigation schedules or commands for Customer’s farm via the Service. Customer acknowledges and agrees that WiseConn is not affiliated with any Third Party Integrations and does not guarantee or otherwise warrant the performance or reliability of any Third Party Integrations. WiseConn shall not be responsible or liable for any damages, expense or loss that may arise from or occur as a result of Customer’s use of a Third Party Integration. Customer may retract any permissions granted to a Third Party Integration at any time in its sole discretion. Each party shall be responsible for the accuracy, quality, integrity, legality, and reliability of any Customer Data that such party shares or directs to be shared with any Third Party Integrations.

7. FEES. Customer shall pay WiseConn the fees set forth in each Order Form, if any. All fees shall be non-refundable and payable in US dollars on the date they come due. Customer shall also pay all sales, use, value-added and other taxes, tariffs and duties of any type assessed against WiseConn except for taxes on WiseConn’s income.

8. INDEMNITY. Customer agrees that WiseConn shall have no liability whatsoever for any use for the Services by Customer to the extent permitted by applicable law. Customer shall indemnify and hold harmless WiseConn from any claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from or relating to Customer’s use of the Products or Customer’s failure to comply with any term of this Agreement.

9. WARRANTY; DISCLAIMER. WiseConn offers a limited warranty for its hardware Products at the following link: https://static.dropcontrol.com/HW_RMA.pdf, EXCEPT AS PROVIDED THEREIN, THE PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND WISECONN (FOR ITSELF AND ITS SUPPLIERS) HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME COUNTRIES OR STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER.

10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL WISECONN OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR (i) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM CUSTOMER’S USE OF THE SERVICES, OR (ii) DIRECT DAMAGES THAT EXCEED THE LESSER OF (A) THE FEES RECEIVED FROM CUSTOMER HEREUNDER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH CLAIM FIRST ARISES OR (B) $10,000. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF WISECONN SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME COUNTRIES STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.

11. TERM AND TERMINATION. This Agreement shall continue for the Products identified in an Order Form until the expiration date set forth in such Order Form (“Order Form Term”) or earlier termination as provided below. However, an Order Form Term (x) shall continue for the initial term specified in such Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable; provided that WiseConn shall not increase the fees for the Services by more than 5% of the previous year’s fees without the Customer’s consent. In the event of a breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing thirty (30) days prior notice to the breaching party unless the breaching party cures such breach within such thirty (30) day period. Without limiting the foregoing, WiseConn may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than ten (10) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service; provided that in the case of subsection (ii): (a) WiseConn shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, WiseConn shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) WiseConn shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. Any termination of this Agreement shall also terminate the licenses granted hereunder. Sections 2, 4, and 6 through 11, and all accrued rights to payment, shall survive termination of this Agreement.

12. MISCELLANEOUS. This Agreement constitutes the complete agreement between the parties with respect to the Services, to the exclusion of any pre-printed or contrary terms of any Order Form (or similar document), and supersedes all prior agreements and representations between them; provided, however, that if there is already a mutually signed agreement between WiseConn and Customer (not including any Order Form signed only by a distributor) covering Customer’s purchase of the Services and license to use the Software, then the express terms of that signed agreement will govern to the extent they are expressly contrary to this Agreement. WiseConn reserves the right to amend or modify this Agreement at any time in its sole discretion with notice to the Customer. Customer’s continued use of the Services shall be deemed acceptance of such amended terms. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of WiseConn to act with respect to a breach of this Agreement by Customer or others does not constitute a waiver and shall not limit WiseConn’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Customer and may not be assigned or transferred for any reason whatsoever without WiseConn’s consent and any action or conduct in violation of the foregoing shall be void and without effect. WiseConn expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California. Unless waived by WiseConn in a particular instance, the sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in California and each party hereby consents to the jurisdiction of such courts for any such dispute. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.