TERMS and CONDITIONS

Last Updated: October 29, 2021

  1. Harvestar, Inc., a Delaware corporation (“Harvestar”, “us”, or “we”), requires that all subscribers and users (“you”) of the platform accessible via www.harvestar.co (“Platform”) adhere to the following terms of use. These terms of use (the “Terms”) govern your access to and use of the Platform and the Services (defined below). Please read these Terms carefully, and contact Harvestar if you have any questions. By accessing or using the Platform of the Services, you agree to be bound by these Terms and our Privacy Policy. “Party” or “Parties” means each or both Harvestar and you as the context may require.

    1.       GENERAL TERMS OF SERVICE. You shall be granted access to the Platform and use of the Services, as provided herein. We agree to provide the Services to you, and you agree to use the Services subject to these Terms. As used in these Terms, the term “End Users” means any and all people you provide access to the Services, including but not limited to, your employees, third parties, or independent contractors. As used in these Terms (“Services”) means the services described in the Order Forms provided to you and under these Terms provided by us for your benefit, including, without limitation the technology platform for logistics planning, grain purchase, and distribution services in the agricultural industry. As used in these Terms, “Order Form” means each online order form entered into by Harvestar and you for the purchase of Services. These Terms govern your use of the Services and Platform at all times, including before an Order Form is properly executed.

    2.       PRIVACY POLICY. Information that you provide to us or that Harvestar collects about your access and use of the Platform and Services is subject to our Privacy Policy and these Terms. We encourage you to read and become familiar with our Privacy Policy.

    3.       ACCESS AND USE.

    a.       Access Right. Subject to the terms and conditions of these Terms, we grant you a nonexclusive, non-sublicensable (except as set forth herein) and non-transferable right to access and use the Platform and the Services solely for your business purposes. If you are accessing the Platform as an authorized End User of a Harvestar customer, the foregoing license includes the right for you to access the Platform and use the Services solely on behalf of such customer, provided that such customer shall be fully responsible for any and all liabilities arising from your activities in connection with your access to the Platform and use of the Service or otherwise breach of these Terms. You may not use (or authorize the use of) the Service for any other purpose or for the benefit of any other party, except as may be permitted in writing by Harvestar.

    b.      Service Availability. Harvestar’s goal is be to make the Platform and the Services available twenty-four (24) hours a day, seven (7) days a week, except during scheduled maintenance windows. However, 24x7 availability of the Platform and Services is only a goal and we do not represent or guarantee that such goal will be achieved at all times. You acknowledge that your ability to access and use the Platform and the Service may also be affected by resources and factors outside the control of Harvestar, including your access to the internet and equipment.

    c.       Account Information. You shall provide Harvester with complete and accurate account, billing and payment information on each Order Form and keep such information up to date.

    d.      Passwords and Account Security. All UserIDs and passwords are dedicated to individual users and may not be shared. You are responsible for ensuring that you and your End Users maintain the security and confidentiality of all passwords associated with your and your End Users’ accounts, and for all activities that occur under your and your End Users’ accounts. If you become aware of any unauthorized or illegal use of any such password or account, you shall immediately notify Harvestar.

    e.       Input Data. In connection with your use of the Services, you will input certain data elements related to agricultural operations (the “Input Data”). You acknowledge and agree that as between the parties hereto, all Input Data is the responsibility of and owned by you; provided, however, that Harvestar shall have the right (but not the obligation) in its discretion to remove from the Platform or Services any Input Data that violates these Terms or Harvestar’s policies and procedures, or is otherwise objectionable.

    f.        Aggregated Data.  You acknowledge and agree that the purpose of the Service is to apply analytic capabilities to your business, and that the results provided by the Service are enhanced by the addition of transactional and Input Data. Accordingly, and notwithstanding anything to the contrary in these Terms, you  hereby grant to Harvestar a perpetual, worldwide, royalty-free, irrevocable, non-exclusive license to access, use and store your Input Data to (a) provide the Service to you and your End Users and (b) for Harvestar’s internal business purposes, including but not limited to improving the capability of the Platform and the Service, so long as such use of the Input Data is anonymized and aggregated and used solely for the purpose of delivering its Services.

    g.       Content Resulting From Use of the Services. You acknowledge and agree that Harvestar may combine Input Data with data and other content developed or collected by Harvestar (the “Harvestar Content”) to produce reports for you (such reports, the “Results”).  Except as expressly set forth in these Terms, as between the parties hereto, all the Input Data shall be owned exclusively by you, and you grant to Harvestar a limited license to use the Input Data in the Harvestar Content and Results solely in connection with Harvestar delivering services to you under these Terms.  Subject to the licenses in these Terms, the Results shall be owned exclusively by Harvestar (with the exception of any Input Data contained in the Results), and Harvestar hereby grants you a limited license to use the Harvestar Content and Results as delivered by Harvestar in connection with your business.  For clarity, the results of, and your reliance on, or use of Results is your responsibility and Harvestar has no responsibility for such Results.

    h.      Security. The parties acknowledge and agree that the Input Data does not contain, and the Service does not collect or use, any personally identifying information in order to produce Results. You acknowledge that servers and databases are maintained by or on behalf of Harvestar to store the Input Data and other data processed by the Service, and may keep such information indefinitely. Harvestar employs reasonable technological and operational security procedures intended to protect such data from loss, misuse, alteration, or destruction. However, you acknowledge that no security measure can guarantee against compromise, and Harvestar does not guarantee that the servers and databases underlying the Platform or Service will not experience any such compromise.

    4.       RESTRICTIONS.

    1. You agree not to remove or modify any copyright notice or trademark legend, author attribution, or other notice placed on or contained on the Platform or within the Services, or any Harvester provided content (including without limitation any Results or Provider Content). Except as expressly authorized by Harvestar in writing, in no event shall you publish, disclose, reproduce, redistribute, duplicate, copy, sell, resell, reverse-engineer, or exploit, all or any portion of the Platform or the Services inclusive of its methodologies. Any such duplication of the Platform or the Services, its methodologies, or any portion thereof copied, displayed, distributed, downloaded, sub-licensed, modified, published, reposted, reproduced, reverse engineered, reused, sold, transmitted, used to create a derivative work, or otherwise used for private, public, or commercial purposes, without the express prior written permission of Harvestar, will result in a direct material breach of these Terms.

      In connection with your access to the Platform and use of the Services and that of any person authorized by you to access the Platform and use the Services (including, without limitation, your End Users), you are responsible for complying with all applicable laws, regulations, and policies of all relevant jurisdictions, including all applicable local rules regarding online conduct. Specifically, in connection with your use of the Services, you may not cause or permit any person (including your End Users) to do any of the following:

      i.      use the Platform or Services for any unlawful purpose;

      ii.      use the Platform to post or transmit any material that contains any viruses, Trojan horses, worms, time bombs, cancelbots, malware, adware, or other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;

iii.      impose an unreasonably or disproportionately large load on the Platform or otherwise interfere with or inhibit any other user of this Platform from using or enjoying the Platform;

 iv.      use the Platform to post or transmit any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, harassing, or otherwise objectionable information of any kind;

    v.      use the Platform to post or transmit any information which is invasive of another’s privacy or publicity rights or that otherwise violates or infringes in any way upon the rights of others;

            vi.      access, use or copy any portion of the Platform or Services through the use of bots, spiders, scrapers, web crawlers, indexing agents, or other automated devices or mechanisms; and

            vii.      use the Platform to post or transmit any solicitations, chain letters, pyramid schemes, investment opportunities or schemes, or other unsolicited commercial communication.

5. TERM

a.       The obligations and restrictions in these Terms are ongoing and continue to apply so long as you and your End Users access the Platform and/or use the Services.

b.      Suspension and Access. Harvestar may, at any time, suspend Services and/or access to the Platform, if it reasonably believes that any of the following is occurring: (i) the unauthorized use of any username or password attributable to you or your End User; (ii) your or your End User’s breach of any agreement between you and Harvestar, including, without limitation, an Order Form or these Terms; or (iii) a significant threat to the security or functionality of the Services, the Platform or to Harvestar’s reputation. Harvestar will provide you with written notice as soon as reasonably practicable after suspension. Harvestar will re-establish your access promptly after the issue causing the suspension has been resolved to its reasonable satisfaction. During any such suspension or following termination of access, you will continue to be bound hereunder to the fullest extent applicable.

6.       FEES.   You shall pay Harvestar for the Services in the amount and pursuant to the Order Form generated for you by Harvestar in conjunction with your acceptance of these Terms. Unless otherwise set forth on an Order Form, all payments shall be due ten (10) days following the date of the invoice for the same and you agree to be responsible for payment of all applicable taxes, fees, duties and charges, and any related penalties and interest, that may arise from your use of the Platform and Services. For fees not paid when due, Harvestar reserves the right to charge a late payment fee of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. If you withhold payment of any amount due under an invoice that has not been disputed in good faith and in writing prior to the payment due date, Harvestar may suspend your access to the Platform and use of the Service until the outstanding balance has been paid in full. We will restore your access to the Platform and the Service promptly after all outstanding amounts owed have been paid.

7.       SUPPORT.

a.       Technical Support. Harvestar will provide reasonable technical support to you and your End Users, by telephone and email during the hours of 9 a.m. to 5 p.m. Central Time Monday through Friday, excluding holidays, to assist in your access to and use of the Platform and Services. Harvestar will use its reasonable efforts to respond to all technical support inquiries within twenty-four (24) hours of such request. Unless otherwise agreed to by the Parties, you acknowledge and agree that you shall be directly responsible for all End User technical support inquiries.

b.      Software Updates. Harvestar may update from time to time the server-side software and web interfaces underlying the Platform or Services. Such updates are intended to improve or enhance the Platform and Service and may take the form of bug fixes, program code updates and enhancements. You acknowledge that you are solely responsible for the equipment used by you and your End Users to access the Services and installing any required browser updates for the proper functioning of the Platform and Services, as may be communicated by Harvestar from time to time.

8.       Confidentiality.

a.       Confidential Information. Except as contemplated herein and as necessary for Harvestar to provide the Service, neither party (a “Receiving Party”) nor any third party acting on any Receiving Party’s behalf, will disclose any Confidential Information (as defined below) of the other party (the “Disclosing Party”) without the Disclosing Party’s consent.  “Confidential Information” means the proprietary information of the Disclosing Party designated as such by the Disclosing Party, whether verbally, in writing by letter or by the use of an appropriate proprietary stamp or legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the Receiving Party. The Receiving Party shall use at least the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses in safeguarding its own Confidential Information, but not less than a reasonable degree of care, to prevent the unauthorized access, use or disclosure of the Disclosing Party’s Confidential Information. Without limitation of the foregoing, the Recipient shall not cause or permit reverse engineering of any Confidential Information or decompilation or disassembly of any software programs which are part of the Confidential Information.  A Receiving Party may disclose Confidential Information to its employees, independent contractors and advisors that have a need to know in the course of their assigned duties and responsibilities in connection with these Terms, provided such parties are bound by legally binding obligations to protect such Confidential Information in a manner consistent with these Terms. With regard to Confidential Information that constitutes a trade secret under applicable law, the obligations in this Section shall continue for so long as such information constitutes a trade secret under applicable law.  With regard to all other Confidential Information, the obligations in this Section shall continue for the term of these Terms and survive termination or expiration for a period of three (3) years thereafter.

b.      Exceptions. The following information shall not be subject to the confidentiality restrictions set forth in this Section 9(a): (i) information that the Receiving Party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the Disclosing Party or from a third party under a continuing obligation of confidence to the Disclosing Party; (ii) information which is now or subsequently becomes known or available to the public or in the trade by publication, commercial use or otherwise through no act or fault on the part of the Receiving Party; and (iii) information which the Receiving Party is required to disclose in response to a valid court order or otherwise required to be disclosed by law, but only if the Receiving Party has given the Disclosing Party prompt written notice of the potential for such disclosure and the opportunity to seek a protective order or obtain other relief to preserve the confidentiality of the Confidential Information. 

9.       INTELLECTUAL PROPERTY RIGHTS.

a.       Reservation of Rights. The proprietary technology of Harvestar used in producing the Results, including software, processes, algorithms, models, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information (collectively, the “Harvestar Technology”) is owned exclusively by Harvestar. All rights not expressly granted herein are reserved by Harvestar, including, but not limited to, the unrestricted right to grant access to the Platform and the Service to third parties in any form anywhere. Nothing in these Terms is intended by the parties to constitute a sale of the Platform or associated documentation underlying the Service, or any derivations thereof. Harvestar reserves the right to modify the Platform and the Service in Harvestar’s discretion.

b.      Title. The Platform and Services (including the Harvestar Technology and associated documentation underlying the Service) are the valuable proprietary and trade secret information and property of Harvestar. Title, ownership rights and intellectual property rights, including but not limited to, copyright and patent rights, in the Service, and all derivatives thereof, shall remain with Harvestar. You acknowledge the ownership and intellectual property rights of Harvestar and will not take any action to jeopardize, limit or interfere in any manner with such ownership or other rights.

c.       Marks. The trademarks, logos and service marks (the “Marks”) displayed in the Service and on the Platform are the property of Harvestar or third parties. You shall not use any Mark (or allow the use of any Mark by any of your third-party contractors or consultants) without the prior written consent of Harvestar or applicable third-party owner of the Mark. Upon your request, Harvestar may at its sole discretion display your Marks on in the Services or Platforms. In making such a request, you grant Harvestar a perpetual, worldwide, royalty-free, revocable, non-exclusive license to access, use and store your Mark on the Services and Platform.

d.      Feedback. You acknowledge that you are free to submit any feedback, ideas or suggestions relating to the Platform and the Services (collectively, “Feedback”). You understand and agree that any such Feedback shall become the sole and exclusive property of Harvestar, and you hereby assign and transfer to Harvestar all title and right to use or otherwise commercially exploit any such Feedback.

10.   NO WARRANTY. THE PLATFORM, THE SERVICES, RESULTS AND ANY RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED. HARVESTAR DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HARVESTAR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR RESULTS WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT ANY INFORMATION OBTAINED THROUGH USE OF THE SERVICE (INCLUDING, WITHOUT LIMITAITON, THE RESULTS) WILL BE ACCURATE OR RELIABLE, THAT USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ALL DEFECTS IN THE SERVICE WILL BE CORRECTED.

11.   RISK OF LOSS AND LIMITATION OF LIABILITY.

a.       Risk of Loss. You accept all risk of loss or damage to your computer systems or other devices (including your End Users‘), or loss of data, which results from or in connection with use of the Service by you and your End Users.

b.      Limitation of Liability. IN NO EVENT WILL HARVESTAR BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND EVEN IF HARVESTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HARVESTAR’S TOTAL CUMULATIVE LIABILITY UNDER THESE TERMS FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE AMOUNTS PAID TO HARVESTAR BY YOU FOR ACCESS TO THE PLATFORM OR SERVICES DURING THE PRECEDING TWELVE (12) MONTHS. You acknowledge and agree  that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of these Terms would be substantially different.

12.    INDEMNIFICATION. You shall defend, indemnify and hold Harvestar and its officers, directors, employees and representatives harmless from and against all claims by third parties arising out of or relating in any way to your or your End Users‘ conduct, business or the use of or inability to use the Platform or the Services, and all associated losses, costs, damages, and settlements, including reasonable legal fees and expenses.

13.   GENERAL PROVISIONS.

a.       These Terms represent the entire agreement between you and Harvestar with respect to our provision, and your access to the Platform and use of the Services. These Terms shall be governed by the laws of the State of Illinois and any controlling U.S. federal laws, exclusive of choice of law rules.

b.      Harvestar may use your name, logo, and testimonials for the purpose of case studies, press releases or promotional marketing materials, or on Harvestar’s websites. All other uses are strictly prohibited without prior written consent.

c.       If either party waives or modifies any term or condition of these Terms, such waiver and modification will not void, waive or change any other term or condition. If either party waives a default by the other party, that does not mean that either party will waive future or other defaults. You may not assign or otherwise transfer these Terms or any rights granted under it without the prior written consent of Harvestar, which consent may be withheld at Harvestar’s sole discretion, and any purported assignment without Harvestar’s prior written consent shall be void. Each party’s relationship to the other is that of an independent contractor, and neither party is an agent or partner of the other. Nothing in these Terms, including the use of Marks or Input Data, shall be interpreted to create a partnership, ownership, joint venture, or similar business relationship between Harvestar, you, an End User or any third party. If any part of these Terms, for any reason, is declared to be invalid, it shall be reformed to the minimum extent necessary in order for such part to remain in effect and be enforceable in accordance with applicable law, and the remaining provisions of these Terms shall remain in full force and effect. All notices under these Terms must be delivered in writing by courier or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth above, and will be effective upon receipt or three (3) business days after being deposited in the mail, whichever occurs sooner. Those provisions that by their express terms or their nature should survive termination or expiration of these Terms shall so survive.

d.      Harvestar may change these Terms and the Privacy Policy at any time, and all such changes are effective immediately upon notice, which Harvestar may give by any means, including, but not limited to, by posting a revised version of these Terms or the Privacy Policy or other notice on the Platform. You should view these Terms and the Privacy Policy often to stay informed of changes that may affect you. Your use of the Platform or Services constitutes your continuing agreement to be bound by these Terms and the Privacy Policy, as they are amended from time to time.

e.       These Terms, together with any Order Forms, and the Privacy Policy, all of which are incorporated herein by reference constitute the entire agreement between the parties in connection with its subject matter and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties.

f.        All other feedback, comments, requests for technical support, and other communications relating to the Platform or the Services should be directed to: support@harvestar.co