Subscription Agreement

This Subscription Agreement (the “Agreement”) is entered into on, and made effective as of the date upon which an electronic signature has been affixed to a valid Proposal (the “Effective Date”), by and between FermatAgro Technology Limited, a company incorporated under the laws of the Republic of Cyprus, with company registration number HE 405750 , with its registered address at Koumandarias & Spyrou Araouzou, TONIA COURT II 7, 3036 Limassol, Cyprus (the “Company”), and the company whose authorized representative has electronically signed the valid Proposal (“Customer”), forming the legally binding basis of the Agreement.

Whereas, Company is the developer, owner and operator of the Service, provided in conjunction with the Optical Device (each as defined below), and the Customer desires to receive a right to access and use the Company’s Solution (as defined below); and

Whereas, Company agrees to provide to Customer access to use the Solution in accordance with the terms and conditions set forth in this Agreement.

Now, Therefore, the parties agree as follows:

Definitions.
1. 1.1. “Customer Data” means any data submitted by Customer to, or otherwise accessed by, the Solution including derivative and meta-data created therefrom.
2. 1.2. “Documentation” means the user’s guides and technical manuals of the Solution, and all other written and / or electronic materials relating thereto, provided by the Company to the Customer under this Agreement.
3. 1.3. “Feedback” means suggestions, insights, comments, and feedback concerning enhancements, changes or additions to the Solution or other Company offerings, that are requested, desired or suggested by the Customer.
4. 1.4. “Proposal” means any Proposal issued by Company and agreed to by Customer for the purchase of Optical Device(s) and provision of a subscription to access the Service, which shall hereby incorporated into this Agreement by reference and forms an integral part hereof.
5. 1.5.“Resulting Output” means the output the Solution provides following Customer’s use thereof – i.e., the results as provided after Customer’s data was analyzed by the Solution.
6. 1.6. “Solution” means the Company’s proprietary AI-based solution for the identification of diseases in greenhouses via image analysis, which is comprised of (i) the off the shelf third party image recording device described in Appendix A-1 hereto (the “Optical Device”), and (ii) the online platform described in Appendix A-2 hereto, accessible on a Software as a Service basis, including also any Documentation (the “Service”).
7. 1.7.“Term” shall mean the period commencing as of the Effective Date and until the termination of expiration of the Agreement.
Software as a Service.
1. 2.1. Subject to the Customer’s compliance with the terms and conditions of the Agreement, during the Term, Company grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable right (i) to use and access the Solution solely for Customer’s internal business use and for Customer’s own operations, and (ii) to use and further disseminate the Resulting Output for any reasonable business purpose.
2. 2.2. Company may make available Documentation to Customer for Customer to use for its internal business purposes and solely in connection with Customer’s use of the Solution during the Term of this Agreement. Customer may print or copy the Documentation as needed for its own internal business purposes provided that all copyright notices are included therein. The Documentation shall be considered the Confidential Information of Company. Unless the Documentation is separately referred to herein, all references in this Agreement to the Solution shall include the Documentation.
Image Recording Device.
1. 3.1. Provision of Optical Device. The Solution is designed such that the Services are to be used in connection with the Optical Device. Company is not the manufacturer of the Optical Device, it is not being tested by Company nor covered by any of its warranties.

Company shall provide Customer with the Optical Device, to be delivered by Company to the Customer premises at a time arranged between the Parties.

3.2. Optical Device Use. The Customer shall use the Optical Device in a careful and proper manner. The Customer will ensure that the storage and use of each Optical Device shall be in compliance with the Optical Device’s documentation and any limitations, restrictions and terms contained therein and the other terms of this Agreement. Any use of the Optical Device is and shall be at Customer’s sole risk. During the Term the Customer shall not provide or make available any Optical Device to any other person or entity.
3.3. Limited Device Warranty. IT IS HEREBY CLARIFIED THAT COMPANY IS NOT RESPONSIBLE FOR THE NATURE, QUALITY OR PERFORMANCE OF THE OPTICAL DEVICE. In the event that an Optical Device malfunctions during the Term, Customer shall promptly notify Company thereof, and Company shall use commercially reasonable efforts to repair or replace that Optical Device, but any responsibility therefor shall in any event solely and exclusively be in accordance with the warranty provided by the Device manufacturer/distributor of the Optical Device. For the avoidance of doubt and without derogating from the foregoing, Customer shall be responsible for any damage or malfunction of Optical Devices during the Term that are due to or are resulting from or attributable to: (i) mishandling, modifying or tampering of the Optical Device by the Customer or its agents, employees or contractors; or (ii) negligence or failure to comply with Device Documentation (including the manufacturer’s warranty) by Customer or its agents, employees or contractors; or (iii) combination of the Optical Device with products or materials not approved in writing by Company, and in each of the foregoing events the Customer shall be liable be obligated to repair or replace the Optical Device at its own expense.

Setup & Installation.
1. 4.1. A representative of Company shall assist Customer in the setup of a user account and related settings on the Customer’s systems as required for the use of the Solution, which will require, inter alia, the provision of true, accurate and complete information by the Customer as reasonably requested by Company.
2. 4.2. A representative shall assist Customer in the installation of the Optical Device at the facility of the Customer to enable the collection thereby of visual data required for the analysis thereof by the Solution (the “Hardware Installation”).
3. 4.3. Following the successful aforementioned setup in Sections 4.1 and 4.2 above, a representative of the Company shall provide 2 weeks of training to the Customer in the use of the Solution.

Feedback.
1. 5.1. Customer shall provide the Company with Feedback on an ongoing basis during the initial three (3) months of the Term, by participating in a session with the Company’s representatives for one (1) hour per month, as shall be reasonably coordinated between the Parties. Following the lapse of the aforementioned 3-month term, the Customer may provide Company with Feedback at its discretion.
2. 5.2. Customer acknowledges and agrees that Company may process, handle and use the Feedback provided (by itself or using trusted third-party service providers such as cloud service providers) at its sole discretion for any purpose, including, without limitations to provide value-added services to Customer and to other customers of Company, to enhance the Solution, fix bugs, to develop new versions, new products and new features and for research and testing purposes. Customer will not be entitled to any remuneration from Company, for the Feedback and any use thereof.
Intellectual Property Rights.
1. 6.1. Company and its licensors retain all right, title, and interest in and to the Service, including without limitation all software used to provide the Solution and all logos and trademarks reproduced through the Solution, and this Agreement does not grant Customer any intellectual property rights in the Solution or any of its components. The Solution is made available for use and access, and, other than as further described herein, is not sold or licensed.
2. 6.2. Except for Customer’s limited access to use the Solution and the Resulting Output according to the terms of this Agreement (and subject to any existing rights of its manufacturer as specified in the applicable documentation of the Optical Device), this Agreement does not grant Customer or assigns to Customer, any license, right, title, or interest in or to the Solution or the intellectual property rights associated with it. As between the Parties: (a) Company is, and shall be, the sole and exclusive owner of all intellectual property rights of any kind and in any jurisdiction in and to the Service, Solution, customizations, reports, as well as any modifications, improvements, and/or derivatives of the foregoing; and (b) Customer is, and shall be, the sole and exclusive owner of the Customer Data.
Restrictions on Use.
1. 7.1. Except as relevant law may otherwise require to be permitted, Customer may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Solution, or otherwise attempt to discover its underlying code, structure, implementation or algorithms. Customer shall not directly or indirectly take any action to contest Company’ intellectual property rights or infringe them in any way.
2. 7.2. Customer may not use the Solution in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Solution.
3. 7.3. Except for the Resulting Output, Customer may not offer the Solution to third parties, including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Solution or any part thereof. Customer shall not permit any unauthorized person to access or use the Solution.
4. 7.4. Customer may not perform or attempt to perform any of the following in connection with the Solution: (i) Breaching the security of the Solution, identifying, probing or scanning any security vulnerabilities in the Solution; (ii) Accessing data not intended for Customer, or accessing an account Customer is not authorized to access; (iii) Interfering with, circumventing, manipulating, overloading, impairing or disrupting the operation, or the functionality of the Solution; (iv) Working around any technical limitations in the Solution; (v) Using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Solution; (vi) Collecting or processing information or data about the Solution’s subscribers; (vii) Sending any virus, worm, Trojan horse or other malicious or harmful code or attachment; (viii) Using robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Solution.
5. 7.5. Customer may not use the Solution for any activity that constitutes, or encourages conduct that would constitute, a criminal offense, give rise to civil liability or otherwise violate any applicable law.
6. 7.6. Company may employ measures to detect and prevent fraudulent or abusive use of the Solution, as well as misuse of the Solution. Company may suspend or terminate Customer’s account on and access to the Solution, without prior notice, if Company, in its sole discretion, believes that Customer has engaged in fraudulent or abusive use, or misuse, of the Solution.
Support Services.
1. 8.1. Subject to proper and timely payment to Company and the Customer’s compliance with the terms and conditions of the Agreement, during the Term, Company shall provide the Customer with technical support for technical questions, problems and inquiries regarding the Solution (the “Support Requests”), during Company’s business days and hours.
2. 8.2. Company will attempt to respond to Support Requests within 24 hours of filing of such request by the Customer via support@fermata.tech (or such other address as Company may designate by notice to the Customer hereunder).
Confidentiality.
1. 9.1. Each party may have access to certain non-public proprietary, confidential information or data of the other party, regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the “Confidential Information”). Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its, directors, officers, employees, advisors or consultants (collectively, the “Representatives”) on a strict “need to know” basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief.
2. 9.2. Login to the web-based interface through which Customer may access and use the functionality and features of the Solution is authenticated with a password, which Customer is to periodically change. Customer must maintain the confidentiality of its account login details.
Customer Data.
1. 10.1. Customer hereby grants Company a non-exclusive, non-sublicensable, non-transferable, royalty-free, limited license to copy, store, process, and otherwise use Customer Data to perform the Services, as well as to generally improve the Service and Solution on a perpetual basis (the “Data License”). Customer represents and warrants that it has obtained, and will maintain, all consents and permissions from third parties for granting the Data License, and that use of Customer Data under the Data License will not violate any third party's privacy or other right. Customer shall indemnify Company for any damage including claims of third parties or governmental agencies (including legal fees of Company) arising from violation of third parties’ privacy rights attributable from Customer’s actions or omissions hereunder.
2. 10.2. Customer further acknowledges and agrees that Company will process, handle and use (by itself or using trusted third party service providers such as cloud service providers) the Feedback in order to provide the Solution, as well as value-added services, to Customer and other customers, to enhance the Solution, to develop new products and services, for research and testing and for any other purpose Company determines. Customer will not be entitled to any remuneration from Company, for its use of such Feedback.
Disclaimer of Warranties.
1. 11.1.Although Company uses skill and efforts to develop the Solution and have the Solution operate properly and provide accurate Resulting Output, as a service that relies on back-end software, computer algorithms and third party networks and continuous internet connectivity, Company does not guarantee, makes no representation, and provides no warranty about the reliability, effectiveness, accuracy or completeness of the Solution or Resulting Output, the expected business results, outcome or yields or any other operational benefits from utilizing the Solution. Customer is solely and exclusively responsible for all actions it may take in relation to the Resulting Output. If Company receives notice of any failure or malfunction, or if it becomes aware of them by itself, Company will attempt to regain the Solution’s availability as soon as practicable. However, such incidents will not be considered a breach of this Agreement.
2. 11.2.THE SOLUTION, SERVICE, REPORTS, AND OTHER ITEMS PROVIDED BY COMPANY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND AGENTS BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY DURING THE 12 MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
Indemnity. Customer shall indemnify and hold harmless Company from any claims of third parties arising from the use by Customer of the Services and Solutions other than in accordance with all applicable laws and regulations and with the terms and conditions of Company governing such use as may be in effect from time to time.
Consideration.
1. 14.1.The Customer shall pay the company in accordance with the terms outlined in the duly authorized Proposal for the area of coverage of the Solution, in such total amount as shall be specified in the Proposal or Invoice (the “Fees”). For the purpose of using the Service, Customer shall purchase Optical Device(s) from the Company, at a purchase price of indicated in the Proposal exclusive of VAT (the “Purchase Price”), in such number as agreed in the Proposal (the “Purchase Price”). Fees and Purchase Price are exclusive of any sales tax and transaction charges. Customer shall bear such taxes and charges.
2. 14.2.Unless expressly stated otherwise in the Proposal, the Fees and Purchase Price shall be due and payable in advance and shall be paid by wire transfer or credit card in accordance with the instructions of the Company against a valid tax invoice.
3. 14.3.All Customer’s payment obligations to Company are non-cancelable and all amounts paid in connection with the Solution are non-refundable, except as otherwise expressly stated herein. Customer is responsible for paying all fees applicable to its subscription to the Solution, whether it actively used, accessed or otherwise benefited from the Solution.
4. 14.4.Unless expressly stated otherwise in the Proposal, failure to settle any overdue fee upon receipt of a written notice, constitutes a material breach of this Agreement and, without limiting any remedies available to Company, Company may: (i) terminate these this Agreement; or (ii) suspend performance of or access to the Solution, until payment is made current. Late payments shall bear interest at the rate of six percent (6%) per annum. Customer will reimburse Company for all legal costs and attorney fees Company incurs while collecting Customer’s overdue fees.
5. 14.5.All fees are quoted in US Dollars and Customer shall pay Company in US Dollars, unless stated differently.
Term; Termination.
1. 15.1.This Agreement commences on the Effective Date and shall remain in force until terminated by Customer or Company for convenience subject to thirty (30) days’ prior notice to the other party.
2. 15.2.In addition, each party may terminate this Agreement by giving written notice to the other party if: (i) the other party materially breached this Agreement and fails to cure the breach within ten (10) days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
3. 15.3.Upon termination or expiration of this Agreement for any reason whatsoever, (i) the Company may terminate Customer’s account on the Service and delete data stored in its systems; (ii) Customer will immediately cease use of the Solution; and (iii) all outstanding payments will be accelerated and become due and payable.
4. 15.4.Sections 1, 6, 9, 11, 12, 15 and 18 shall survive any expiration or termination of this Agreement.
Subcontracting. Company may subcontract or delegate the performance of certain obligations hereunder to any third party of its choosing, provided however, that Company remains liable to the Customer for the performance of its obligations under this Agreement.
Force Majeure. Notwithstanding anything to the contrary contained herein, neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, acts of war or terrorism, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties or civil unrest. Both Parties will use reasonable efforts to mitigate the effects of such events.
Miscellaneous. This Agreement and the Proposal set forth the entire understanding between the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written agreements and discussions concerning the subject matter of this Agreement. In the event of any discrepancy or ambiguity between this Agreement and the Proposal, the terms of the Proposal shall prevail. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both parties. Customer agrees that Company may disclose the fact that Customer is a client of Company. The relationship between the Parties hereto is strictly that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other. While this Agreement is in effect, the Customer grants Company the right to reference Customer’s company name and logo in marketing materials and on Company’s website. The failure of either party to enforce at any time the provisions of this Agreement shall not be interpreted to be a waiver of such provisions or of the right of such party to enforce each and every such provision. This Agreement is governed by and construed in accordance with the laws of the State of Israel, without regard to the principles of conflict of laws. Any disputes arising out of or in connection with the Agreement shall be brought exclusively before the competent courts of Tel Aviv - Jaffa. If any provision of this Agreement is determined to be void or unenforceable by a court of competent jurisdiction, such clause shall be interpreted as necessary to give maximum force to the provisions thereof, and the validity and enforceability of the remainder of this Agreement shall not be affected. All notices given under this Agreement shall be in writing and shall be deemed to have been duly given: when delivered, if delivered by messenger during normal business hours of the recipient; when sent, if transmitted by facsimile transmission during normal business hours of the recipient; or on the third business day following posting, if posted by international air mail. Customer may not transfer or assign its rights or obligations under this Agreement to any third party. Any purported assignment contrary to this section shall be void.

Appendix A-1

Cameras Hikvision 4-inch 4 MP 25X Powered by DarkFighter IR Network Speed Dome DS-2DE4425IW-DE(T5) or similar

Appendix A-2

Croptimus (including, but not limited by scouting)

Subscription Agreement

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