Thombar Terms of Service

1. Agreement to Terms

(a) By using our Services, you agree to be bound by these Terms. If you do not agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. In that case, "you" and "your" will refer to that entity.

(b) You acknowledge that certain Services and Third-Party Financial Services may be subject to additional terms set forth by Thombar as stated within the Services or the applicable Banking Provider(s). Further, these Terms are in addition to any other agreement(s) entered into between you and Thombar or between you and a Banking Provider ("Other Agreements"), and nothing in these Terms will be deemed to amend or modify the terms of any such Other Agreements. If there is any conflict between these Terms and any Other Agreement you enter into for specific Services or Third-Party Financial Services, the Other Agreement will take precedence in relation to the specific Services or Third-Party Financial Services to which it applies. You acknowledge sole responsibility for complying with all Other Agreements entered into by you.

2. Privacy Notice

Please review our Privacy Notice, which also governs your use of the Site and the Services, for information on how we collect, use and share your information.

3. Changes to these Terms or the Services

We may update the Terms from time to time in our sole discretion. If we do, we will let you know by posting the updated Terms on the Site, and/or may also send other communications. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you do not agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.

4. Use of the Services

(a) Our Services are only available to you, and you may only use the Services, if you are (i) 18 years or older and capable of forming a binding contract with Thombar or a legal entity, (ii) engaged in, or represent a company or other legal entity operating within, the specialty crop growing industry, (iii) an individual resident in the United States, or a legal entity incorporated in and headquartered in the United States, and (iv) not otherwise barred from using the Services under applicable law. By creating an account or otherwise using the Services, you represent and warrant that you meet the foregoing requirements. Any use of the Services for personal purposes or by any person or entity not engaged in the specialty crop industry is expressly prohibited.

(b) Subject to the terms and conditions of these Terms, Thombar hereby grants you a limited, non-exclusive, non-transferable (except in compliance with Section 16(b)) right to access and use the Services for your personal or internal business purposes (as applicable) in accordance with these Terms.

(c) Third-Party Financial Services and certain Services may be subject to different or additional eligibility requirements set forth by Thombar or our Banking Providers, as communicated to you via the Site.

(d) For certain Services, you will need an account. It is important that you provide us with accurate, complete and current account information and keep this information up to date. If you do not we may have to suspend or terminate your account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. You are responsible for all activities that occur under your account.

(e) In addition to the Third-Party Financial Services, the Services enable you to interface or interact with, access and/or use certain other compatible third-party services, products and technology (such other services, products and technology, collectively, "Third-Party Services"), such as to import User Materials into the Services. You acknowledge and agree that: (i) the use of Third-Party Services are subject to the terms and conditions agreed between you and each such Third-Party Service provider; (ii) you may be required to grant Thombar access to your Third-Party Service account and/or to grant the Third-Party Service provider access to your Thombar account; and (iii) User Materials may be transferred between Thombar and the Third-Party Service provider as required and authorized by you for the interoperation with the Services. Thombar does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto, or for any use of User Materials by Third-Party Services. Thombar may cease supporting (or modify) integrations with Third-Party Services at any time. You are solely responsible for obtaining any associated licenses and consents necessary for you to use the Third-Party Services in connection with the Services.

5. Fees

Thombar may at any time require payment of fees for use of the Services; any such fees will be communicated to you in advance via the Site or Services interface. You agree to pay such fees. Use of Third-Party Financial Services is subject to payment of fees as set forth in the applicable Other Agreement.

6. Thombar Intellectual Property

Subject to the limited rights expressly granted hereunder, Thombar reserves and, as between the parties will solely own, the Thombar IP and all rights, title and interest in and to the Thombar IP. No rights are granted to you hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein. "Thombar IP" means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services and Aggregate Data (as defined below), all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.

7. User Materials; Aggregate Data; Input and Output

(a) Submitting User Materials. Our Services may allow you to store or share materials, including financial statements and documents and other documents and files. Anything (other than Feedback) that you submit into or otherwise make available through the Services, including Input (as defined below), is referred to as "User Materials". Thombar does not claim any ownership rights in any User Materials and nothing in these Terms will be deemed to restrict any rights that you may have to your User Materials.

(b) User Materials; Aggregate Data. By making any User Materials available through the Services, you hereby grant to Thombar a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, display and perform your User Materials and Output (as defined below) for the purpose of (i) operating and providing the Services and (ii) developing, deriving or aggregating Aggregate Data, which Thombar may use for any lawful purpose (including in connection with operating, providing, improving, training and developing the Services and Thombar's other products, services and technology, including, without limitation, algorithms, machine learning, and artificial intelligence technology, models and tools). "Aggregate Data" means any data that is derived or aggregated in deidentified form from any User Materials or your use of the Services.

(c) Your Responsibility for User Materials. You are solely responsible for all your User Materials. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Materials under these Terms. You represent and warrant that neither your User Materials, nor your use and provision of your User Materials to be made available through the Services, nor any use of your User Materials by Thombar on or through the Services will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

(d) Removal of User Materials. You can remove your User Materials by specifically deleting or removing it. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Materials.

(e) Input and Output. The Services may generate output for you (each, "Output") in response to (i) your interaction, request or input; or (ii) User Materials uploaded or submitted to influence the Output or Services (collectively, "Input"). As between you and Thombar, to the extent permitted by applicable law and subject to Section 9, you own all right, title and interest in and to all Output generated in response to your Input. If any rights, title and interest in and to such Output vests in Thombar, then Thombar hereby assigns such rights, title and interest to you. Thombar may use and modify Input and Output to enforce any applicable acceptable use policies or usage policies as set forth in Section 9(b) and to comply with applicable law.

8. Feedback

From time to time you may provide us with suggestions, comments, feedback or the like with regard to the Services (collectively, "Feedback"). You hereby grant Thombar a perpetual, irrevocable, royalty-free and fully-paid-up license to use and exploit all Feedback in connection with Thombar's business purposes, including the testing, development, maintenance and improvement of the Services.

9. General Prohibitions and Thombar's Enforcement Rights

You agree not to do any of the following:

• (a) Post, upload, publish, submit or transmit any User Materials that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
• (b) Use the Services or any Output in a manner that violates the acceptable use polices of third party services accessible through the Services or any other such usage policies as applicable and communicated to you;
• (c) Utilize the Services (including any underlying AI models) or documentation to train, improve, or have trained or improved an AI model (e.g., engage in "model scraping");
• (d) Use, display, mirror or frame the Site or the Services or any individual element within the Site or the Services, Thombar's name, any Thombar trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Thombar's express written consent, or copy, modify or create any derivative work of any portion of the Services;
• (e) Access, tamper with, or use non-public areas of the Site or the Services, Thombar's computer systems, or the technical delivery systems of Thombar's providers;
• (f) Attempt to probe, scan or test the vulnerability of any Thombar system or network or breach any security or authentication measures;
• (g) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Thombar or any of Thombar's providers or any other third party (including another user) to protect the Site or the Services;
• (h) Attempt to access or search the Site or the Services or download content from the Site or the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Thombar or other generally available third-party web browsers;
• (i) Attempt to decipher, decompile, disassemble, reverse engineer, engage in any of the adversarial attacks set forth in the NIST AI 100-2 E2023 publication available at https://nvlpubs.nist.gov/nistpubs/ai/NIST.AI.100-2e2023.pdf, or otherwise attempt to reverse engineer, decompile, decode, or disassemble or otherwise derive or gain improper access to any of the software, components, models, algorithms or systems used to provide the Services;
• (j) Use any meta tags or other hidden text or metadata utilizing a Thombar trademark, logo URL or product name without Thombar's express written consent;
• (k) Use the Site or the Services for the benefit of any third party or in any manner not permitted by these Terms;
• (l) Collect or store any personally identifiable information from the Site or the Services from other users of the Services without their express permission;
• (m) Impersonate or misrepresent your affiliation with any person or entity;
• (n) Violate any applicable law or regulation; or
• (o) Encourage or enable any other individual to do any of the foregoing.

Thombar is not obligated to monitor access to or use of the Services or to review or edit any content or materials. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content or materials, including User Materials or Output, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

10. Links to Third Party Websites or Resources

The Services may allow you to access third-party websites or other resources, including websites and resources provided by Banking Providers. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources, including the payment of all fees in connection with your use of such third-party resources.

11. Termination

We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. Subject to any requirements set forth in the applicable Other Agreement, you may cancel your account at any time by contacting us through the Services interface. Upon any termination, discontinuation or cancellation of your access to the Services or your account, the following Sections will survive: 5, 7, 9, 10, 11, 12, 13, 14, 15, and 16.

12. Warranty Disclaimers

(a) General. THE SERVICES, THOMBAR IP AND OUTPUT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICES, THOMBAR IP OR OUTPUT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE SERVICES OR ANY OUTPUT.

(b) SIMILARITY, ACCURACY, AND APPROPRIATENESS OF OUTPUT. DUE TO THE NATURE OF MACHINE LEARNING, OUTPUT MAY NOT BE UNIQUE, AND THE SERVICES MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR THOMBAR OR A THIRD PARTY. THOMBAR'S ASSIGNMENT OF OUTPUT AS SET FORTH IN SECTION 7(e) DOES NOT EXTEND TO OTHER CUSTOMERS' OR USERS' OUTPUT. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE SERVICES MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE, OR OTHERWISE UNDESIRABLE. NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, THOMBAR WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM USER MATERIALS, OUTPUT OR THEIR USE. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING THE CONTENT, NATURE, AND ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR THE APPLICABLE USE CASE, INCLUDING BY EMPLOYING HUMAN REVIEW OF THE OUTPUT.

(c) NO PROFESSIONAL OR FIDUCIARY ADVICE. THOMBAR IS NOT A REGISTERED INVESTMENT ADVISER, BROKER-DEALER, COMMODITY TRADING ADVISOR, COMMODITY POOL OPERATOR, CERTIFIED PUBLIC ACCOUNTANT, OR LAW FIRM AND DOES NOT PROVIDE FINANCIAL, INVESTMENT, ACCOUNTING, AUDIT, BOOKKEEPING, COMMODITY, INSURANCE, TAX, OR LEGAL ADVICE, NOR DOES THOMBAR ACT AS A FIDUCIARY OR BROKER OR EXECUTE TRANSACTIONS ON YOUR BEHALF. YOU SHOULD CONSULT YOUR OWN LEGAL, TAX, ACCOUNTING, AND FINANCIAL ADVISORS BEFORE MAKING ANY DECISION BASED ON THE SERVICES OR THE OUTPUT. ALL OUTPUT, RECOMMENDATIONS, PROJECTIONS, FORECASTS, SCENARIOS, BENCHMARKS, AND OTHER INFORMATION GENERATED OR PROVIDED BY THOMBAR OR THROUGH THE SERVICES ARE FOR GENERAL INFORMATIONAL AND ORGANIZATIONAL PURPOSES ONLY, MAY BE INCOMPLETE, INACCURATE, OUT-OF-DATE, OR ERRONEOUS, AND DO NOT TAKE INTO ACCOUNT YOUR PARTICULAR OPERATIONAL, GEOGRAPHIC, REGULATORY, OR FINANCIAL CIRCUMSTANCES. YOU ALONE ARE SOLELY RESPONSIBLE FOR (I) ALL BUSINESS, OPERATIONAL, AND FINANCIAL DECISIONS MADE IN CONNECTION WITH YOUR USE OF THE SERVICES, (II) INDEPENDENTLY VERIFYING ANY OUTPUT BEFORE RELYING ON IT, AND (III) DETERMINING WHETHER ANY TRANSACTION, INVESTMENT, FINANCING, OPERATING, HEDGING, OR RISK MANAGEMENT STRATEGY OR RELATED TRANSACTION IS APPROPRIATE FOR YOUR BUSINESS AND YOU BASED ON YOUR OWN BUSINESS OBJECTIVES, FINANCIAL AND OPERATIONAL CIRCUMSTANCES, CREDITWORTHINESS, AND RISK TOLERANCE, AND APPLICABLE LAW.

(d) MARKET DATA AND THIRD-PARTY INFORMATION. CERTAIN OUTPUT MAY INCORPORATE OR REFLECT MARKET PRICES, COMMODITY DATA, WEATHER INFORMATION, OR OTHER DATA SOURCED FROM THIRD-PARTY PROVIDERS ("MARKET DATA"). THOMBAR MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF ANY MARKET DATA. MARKET DATA MAY BE DELAYED, INCOMPLETE, OR ERRONEOUS. YOU SHOULD NOT RELY ON ANY MARKET DATA PROVIDED THROUGH THE SERVICES AS THE SOLE BASIS FOR ANY BUYING, SELLING, HEDGING, OR OTHER COMMERCIAL DECISION. THOMBAR IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGES ARISING FROM YOUR RELIANCE ON MARKET DATA.

13. Indemnity

You will indemnify and hold Thombar and its officers, directors, employees, and agents harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your User Materials or their processing or use by Thombar, or (c) your violation of these Terms.

14. Limitation of Liability

(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER THOMBAR NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THOMBAR OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THOMBAR'S TOTAL CUMULATIVE LIABILITY TO YOU ARISING FROM ALL CLAIMS UNDER OR RELATED TO THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED (A) THE AMOUNTS ACTUALLY PAID BY YOU OR PAYABLE BY YOU TO THOMBAR DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100.00) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO THOMBAR, AS APPLICABLE, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED.

(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THOMBAR AND YOU.

15. Governing Law and Forum Choice

These Terms and any action related thereto will be governed by the laws of the State of California, without regard to its conflict of laws provisions. The parties expressly consent to personal and exclusive jurisdiction in the state and federal courts located in the Northern District of California, and you and Thombar each waive any objection to jurisdiction and venue in such courts.

16. General Terms

(a) Reservation of Rights

You acknowledge that the Site and the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

(b) Entire Agreement

These Terms (together with any applicable Other Agreements) constitute the entire and exclusive understanding and agreement between Thombar and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Thombar and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Thombar's prior written consent. Any attempt by you to assign or transfer these Terms absent our consent will be null and void. Thombar may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

(c) Notices

You agree to receive all notices and other communications from us electronically. Any notices or other communications provided by Thombar under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.

(d) Waiver of Rights

Thombar's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Thombar. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

17. Contact Information

If you have any questions about these Terms or the Services, please contact Thombar at help@thombar.ag.