• Black Tier Terms and Services Agreement 

    Thanks for becoming a customer of Black Tier. We really value your choice and look forward to serving you with excellence. There are two final steps in the purchase process. First, we need to gather some information for your Customer Account. Second, please review the services agreement and indicate your approval. If you have any questions, please refer them to your Account Manager.

    Finally, Black Tier has a set of standard Terms and Conditions that will govern our relationship. Please review indepth and indicate your approval. If you have any questions, please refer them to your Account Manager.

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    Autonomous Drone Services

    Terms and Conditions Agreement

     

    1. INTRODUCTION

    1.1. Purpose and Objectives

    The Autonomous Drone Services Agreement outline the terms and conditions under which Black Tier Group, LLC (“Provider”) will provide specified Services (“Services”) to the Customer as indicated in the Customer Login (“Customer”) or its Affiliates. The objective of this Agreement is to provide the framework, procedures, and terms of agreement for the delivery of high-quality services as described in this document and its attached schedules of service.

    1.2. Non-exclusive Agreement

    It is understood and agreed that this Agreement does not grant to Provider any exclusive rights to do business with Customer. Nothing in the Agreement prevents Provider from marketing, developing, using and performing similar services or products to other Customers.

    1.3 Cross-border sharing

    If the Provider’s Global Security Operations Center (GSOC) or crop analysis experts are located in a country other than the United States, this Agreement may involve services that require the cross-border sharing of personal information which will occur in accordance with Section 7.4 of this Agreement.

    2. SCOPE OF WORK

    2.1. Services Identification

    Standard, custom and excluded services are described and specified in the Quotation provided to the Customer and approved by the Customer.

    2.2. Service Availability

    The availability, operational reliability and response times of the Services to be delivered under this Agreement are as specified in Schedule C to this Agreement.

    2.3. Place of Service Delivery

    The Services covered by this Agreement are to be delivered at the address or addresses given in the Quotation provided to the Customer and approved by the Customer.

    2.4. Changes to Services

    Either party may propose changes to the scope, nature or time schedule of the Services being performed under this agreement. The parties must mutually agree to any proposed changes, including adjustments to fees and expenses as a result of any changes to the Services. All changes are subject to the change control procedures included in Schedule A to this Agreement and must be approved in writing by both parties.

    2.5. Regulatory Limitations of Technology

    Customer acknowledges that autonomous drone technologies are subject to rapidly evolving local, state and federal government regulations. Provider will specifically address these regulations during the training portion of implementation, including specific instruction regarding the Customer’s obligations under the law and regulations in force at that time for their location. Customer failure to adhere to these legal obligations and associated instruction shall be a Breach of this Agreement. 

    Such law and regulations may change at any time, and such changes are beyond the reasonable control of the Provider.  Provider agrees to use its best efforts to inform Customer of such changes and to advise if and when changes materially affect the operation of Provider systems on Site. When such situations are identified. Customer agrees to work together with Provider to determine alternate solutions if applicable, and to hold Provider harmless in any instance where regulations regarding Provider equipment or other technology is incompatible and cannot be brought into the scope of coverage of this agreement with the reasonable efforts of the Provider.

    3. PERFORMANCE, TRACKING AND REPORTING

    3.1. Key Personnel Changes

    Key personnel are not required to be specifically named within this Agreement but Provider will notify Customer in advance of changes to any key personnel that could affect the delivery of the Services to Customer. Customer agrees to notify Provider regarding changes to its designated representatives that may impact Provider’s procedures or methods in providing services to Customer.  

    3.2. Service Monitoring

    The methodology used to monitor services is outlined in Schedule B to this Agreement.

    3.3. Seasonal Review Meetings

    Seasonal Review (SR) meetings may be held approximately 30 days before the anticipated initiation of use of Provider Services for each growing seasons. These meetings would usually be held using videoconferencing capabilities. If Customer requests on On Site Review, Provider will require reimbursement of travel expenses, but will not charge any Professional Services Fees for this service. Topics to be covered will include (as applicable):

    • Review and analysis of Provider services during the prior growing season, and analysis of opportunities to improve service levels
    • Planning for any future Customer changes anticipated for the next growing season, including crop mix, size, location, boundaries, or other physical factors
    • Discussion regarding any changes anticipated to crop analysis services
    • Recommendations for Best Practices and technology improvements versus the previous season
    • If any of these changes require a change in provider Products or Services, identify a Change Order to document such change

    4. PROBLEM MANAGEMENT

    4.1. Problem Definition

    The following standard problem definitions will apply to the services provided under the terms of this Agreement and are to be used by Customer when contacting the service desk for assistance to aide in defining the level of impact to Customer environment. It is anticipated that almost all issues identified here will be identified and automatically serviced by the GSOC

    Priority Level

    Priority Type

    Status

    Response

    Priority 1

    High

    drone or other security systems are failing or otherwise inaccessible

    5 minutes

    Priority 2

    Medium

    Drone is showing occasional malfunctions/unscheduled crop analysis flights are required

    4 hrs.

    Priority 3

    Low

    Operational Question on how to perform operation

    24 hrs.

     

    4.2. Problem Description

    When reporting a problem, accurate information must be provided to the operator receiving the call.  Please include:

    Your name

    Your location

    Your phone number with area code

    Description of the problem

    Severity of the problem based on problem definition in section 4.1

    Any symptoms observed

    Any known recent changes

    4.3. Problem Escalation

    Provider warrants that the work will be performed to the best of its ability and in accordance with reasonable and customary business practices.  However, there may be situations that require Customer to contact additional Provider resources to remediate a situation.  This list is provided for the convenience of both parties in situations where escalation is deemed necessary. 

     

    Provider

    Customer

    Principal Contact & After Hours Support               

    GSOC and Customer Support

    +1 859 972 7220 option 1

     

     

    First Escalation Contact:

    Mike Morrell

      mike@blacktiergroup.com

    O: +1 859 972 7220  ext.103

     

     

    Management Escalation Contact:

     

    Phil O’Sullivan

    Phil@blacktiergroup.com

     

    M: +1 813 454 3048

     

     

    Executive Escalation Contact:

    James Massa

    CEO

    E:  james@blacktiergroup.com 

     +1 859 972 7220  ext.101

     

     

     

     

    4.4. After-Hours Support

    After-hours support for emergency service is available 24 x 7 x 365 at the number listed above.  Unless otherwise noted in this agreement such services are included in the price of the Bundles. 

    5. CUSTOMER DUTIES AND RESPONSIBILITIES

    5.1. Processing and Authorization of Invoices

    Customer agrees to process and settle invoices by the due dates.

    If customer agrees to automatic ACH withdrawals of payments due on the due date for every invoice during a season, a credit of 2% of the amount normally due will be added to each invoice.

    In the event that payment is not received within 5 business days after the due date, Provider shall contact Customer to provide notice of delinquency and address payment issues. Provider reserves the right to suspend services if the account has not been paid within 5 days after notification.  No additional notice shall be given prior to termination of such services. Customer hereby agrees that Provider shall be held harmless from all damages as a result of a discontinuation of services.

    In the event that Customer is delinquent by more than 10 days the Customer will have 5 days to provide proof of proper shipment of equipment being returned by Customer to Provider or hereby provides Provider right to enter property and pick up equipment without notice at its earliest convenience and Customer shall pay all Provider costs incurred, including labor cost, incurred in re-possessing the equipment up to a maximum  of $10,000 in addition to any service fees due.   

    5.2 Collection

    The prevailing party in any disagreement shall be entitled to reimbursement of collection costs and reasonable attorney fees incurred to enforce its rights under this agreement.

    5.3. Customer Personnel, Facilities and Resources

    Customer will ensure that an appropriate space and location is provided for installation of the drone ground station

    Customer will ensure that 110 VAC/20A power is available to the ground station.

    Customer will provide and ensure that access to the Internet shall be available to the integrated drone system ground station meeting the following technical criteria

    Bandwidth: 15 Mbps Upload

    Lag: < 50 ms

    Jitter: <20 ms

    Black Tier strongly recommends backup power facilities, and backup telecommunications facilities be installed by the Customer.

    When needed, Customer will ensure Provider has timely access to appropriate Customer personnel and will arrange for Provider personnel to have suitable and safe access to Customer’s facilities and systems. Customer will also provide suitable working space and associated resources for Provider personnel working on-site including all necessary communications and security resources.

    5.4. Approvals and Information

    Customer will respond promptly to any Provider requests to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Provider to perform the services. Customer also agrees to cooperate with Provider’s reasonable investigation of service outages, security issues, FAA approvals, and any suspected breach of this Agreement or attached schedules.

    6. WARRANTIES

    6.1. Equipment Warranty

    Provider warrants that the equipment provided to the Customer shall operate in accordance with its representations as described in the Quotation provided to the Customer and approved by the Customer. and the specifications of the equipment manufacturer. In the event that any equipment does not operate in accordance with these specifications due to manufacturing defects, software errors, failure by Provider to install the systems in accordance with manufacturer instructions, failures due to actions or lack of reasonably expected preventative actions by Provider, Provider shall repair or replace components as necessary to return the system to full operation at no additional cost to Customer.

    6.2. Professional services and monitoring services

    Provider monitoring services and professional services work will be performed to the best of its ability and in accordance with reasonable and customary practices prevailing at the time for its business and industry, and in accordance with the response times noted in Section 4.1 or 9.1 of this agreement.  No other warranties exist, expressed or implied. Specific levels of services response are discussed in section 9 of this Agreement.

    6.3. Third party claims

    Provider warrants that any services, products or works of authorship written by Provider’s personnel will not infringe any third party copyrights, patents or trade secrets. If a third party takes action against Customer for any infringements of this nature.  Provider will, at its own expense, and its own discretion, either defend or settle the claim. Provider will pay all settlement costs, damages, and legal fees and expenses finally so awarded; provide that Customer (i) promptly notifies Provider of such a claim in writing and gives Provider all information known to Customer relating thereto, (ii) gives Provider sole control of the defense and/or settlement, (iii) cooperates with Provider in the settlement and/or defense. Customer will be reimbursed for all reasonable out-of-pocket expenses incurred in providing cooperation with Provider. 

    6.4. Exclusions of Service

    Provider specifically disclaims all responsibility for items as more fully described in Schedule F.

    6.5. Exclusions due to Customers Actions

    Provider is not responsible for any damage caused by Customer Action or Inaction, or damage caused by Third Parties, or damage caused by Acts of God, or damage due to Customer’s failure to adhere to Customer Responsibilities, or interruptions in failure of service due to government action.

    6.6. Exclusions due to third Parties

    Provider is not responsible for a failure to fulfill its obligations under this agreement when, through no fault of its own, third party’s acts or failures to act prevent the fulfillment of Provider’s obligations

    6.7. Force Majeure

    Except in respect of payment liabilities, neither party will be liable for any failure or delay in its performance under this Agreement due to reasons beyond its reasonable control, including acts of war, acts of God, earthquake, flood, riot, embargo, sabotage, governmental act or failure of the Internet, provided the delayed party gives the other party prompt notice of the reasons for such cause.

    7. SECURITY

    7.1. Access to Customer Systems

    Customer is to ensure that Provider’s employees and sub-contractors are given necessary access to the software and systems, including secure remote access, in order that the Services may be delivered and maintained in accordance with the terms of this Agreement.

    7.2. Compliance with Customer Physical Security Policies

    In the event that a Customer operates under formal physical security policies, Provider will ensure that its employees are made aware of such policies and will also ensure ongoing compliance with these policy statements. Customer will provide Provider with up to date information on its security policies and will keep Provider informed about any changes to these policies.

    7.3. Encryption

    Provider agrees to utilize Secure Socket Layer (SSL) encryption technology and/or IP Security encryption tunnels in the electronic transmission of data to protect private Customer information from access by unauthorized users.  Data at rest on hosted servers is not encrypted.

    7.4 Compliance with Regulatory Requirements

    Customer’s obligations or legal duties to retain data in compliance with statutory requirements, administrative regulations, or court orders are the sole duty of the Customer and fall outside the scope of this agreement.

    Any data that the Provider retains will adhere to and be in compliance with statutory requirements, administrative regulations, or court orders. These may include but not be limited to the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Fair Credit Reporting Act (FCRA) and the Children’s Online Privacy Protection Act (COPPA)And General Data Protection Regulation (GDPR)

    Provider does not represent nor undertake to fulfill any other standards or obligations unless:

    1. Customer specifically notifies and negotiates with Provider that the standards of these other regulations are encompassed as part of this Agreement; and
    2. Customer assumes the duty and responsibility of providing the exact specifications and standards required to ensure compliance with all technical requirements as well as auditing and documentation procedures. Such documentation shall be attached as a schedule to this Agreement. Responsibility of updating this Schedule shall be the sole duty and responsibility of the Customer.

    7.5 Access to Provider to Ensure Compliance Requirements

    Upon Customer’s request and reasonable notice, in order to confirm Provider’s compliance with this Agreement, as well as any applicable laws, regulations and industry standards Provider grants Customer or Customer’s representative permission to perform an assessment, audit, examination or review of all controls in Service Provider’s physical and/or technical environment in relation to all electronically stored information being handled and/or services being provided to Customer pursuant to this Agreement. Provider shall fully cooperate with such assessment by providing access to knowledgeable personnel, physical premises, documentation, infrastructure and application software that processes, stores or transports Personal Information for Customer pursuant to this Agreement.

    Upon Customer’s request and reasonable notice Provider shall provide Customer with the results of any audit by or on behalf of Provider performed that assesses the effectiveness of Provider’s information security program as relevant to the security and confidentiality of electronically storied information shared during the course of this Agreement.

    7.6 Security Breaches

    Provider is not responsible to Customer or any third-party for unauthorized access to Customer data or unauthorized use of Services under this agreement unless the unauthorized access or use results from Provider’s failure to meet its security obligations as stated in this agreement. Upon the occurrence of a breach or suspected breach of the security measures in place by Provider, Provider shall:

    1. Notify Customer of a security breach or suspected breach as soon as practicable, but no later than 24 hours after Service Provider becomes aware of it;
    2. Notify Customer of any security breaches by telephone at the number registered in their Account Profile and by e-mailing Customer at their email address registered in their Account Profile. with a copy by e-mail to Service Provider’s primary business contact.
    3. Provide Customer with the name and contact information for Provider’s employee who shall serve as Customer’s primary security contact in regard to the incident.
    4. Immediately following Provider’s notification to Customer, the parties shall coordinate with each other to investigate the Security Breach. Provider agrees to reasonably cooperate with Customer in Customer’s handling of the matter, including: (i) providing reasonable assistance with any investigation; (ii) providing Customer with physical access to the facilities and operations affected; (iii) facilitating interviews with Provider’s employees and others involved in the matter; and (iv) making available all relevant records, logs, files, data reporting and other materials required to comply with applicable law, regulation, industry standards or as otherwise [reasonably] required by Customer.
    5. Provider agrees that it shall not inform any third party of any security breach without first obtaining Customer’s prior consent, other than to inform a complainant that the matter has been forwarded to Customer’s legal counsel, except where, under Provider’s reasonable judgment, such an event must be reported to any individuals, regulators, law enforcement agencies, consumer reporting agencies or others as required by law or regulation, or otherwise under Provider’s reasonable judgment.
    6. In the event of any Security Breach, Provider shall promptly use reasonable efforts to prevent a recurrence of any such Security Breach.

    8. GENERAL

    8.1. Notices

    Notices under this Agreement will be sufficient only if personally delivered, delivered by a major commercial rapid delivery courier service with next business day delivery and tracking capabilities and costs prepaid, or mailed by prepaid certified or registered mail, return receipt requested, to a party at the address given below and will be effective when received. The parties may change their respective addresses or the person for receipt of notice by written notice to the other party, sent as provided in this Section. Alternatively, notice may be provided by E-Mail with successful receipt of a time stamped copy by the Sender. Customer is obligated to maintain a current and valid Email address with the Provider.  All notices must be in writing and properly addressed as follows:

    Provider

    Customer

    Black Tier, LLC

    501 Darby Creek Road, Unit #9

    Lexington, KY 40509

    Their Customer Address and e-mail as indicated in the Customer Profile

     

    8.2. Standard of Care

    Each party will act in good faith in the performance of its respective duties and responsibilities and will not unreasonably delay or withhold the giving of consent or approval required for the other party to fulfill their obligations under this Agreement.

    8.3. Confidentiality

    1. Parties acknowledge that in the course of performing their responsibilities under this Agreement that they may be exposed to or acquire proprietary information. Such information may be that of the other party and/or its Customers. Both parties agree to hold such information in strict confidence and not to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such information to a third parties or to use such information for any purposes whatsoever, without the express written permission of the other party and to advise each of the their respective employees, agents and representatives of their obligations to keep such information confidential.
    2. Information will not be deemed confidential or proprietary if (i) available to the public other than by breach
      of a party, (ii) rightfully received from a third party not in breach of any obligation of confidentiality, (iii)
      independently developed without access to the confidential information, (iv) if proven to have been
      already known at the time of disclosure.
    3. If disclosure of confidential information is required by law, the party shall immediately notify the other and,
      if so requested, provide reasonable assistance to limit such production.

    8.4. Disclosure

    1. Parties shall use their best efforts to prevent any unauthorized use or disclosure of any confidential information. Both parties shall use best efforts to immediately advise the other party in the event that either party learns or has reason to believe that any person who has had access to confidential information has violated or intends to violate the terms of this Proposal, and will reasonably cooperate in seeking injunctive relief against any such person.
    2. Each Party acknowledges and agrees that unauthorized disclosure, use, and/or copying of confidential information may cause irreparable injury. Accordingly, the aggrieved party shall have the right to seek injunctive or other equitable relief, in addition to any other remedy it may have at law.

     

    8.5. Assignment

     

    Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party. In the event that consent for assignment is given, the terms of this Agreement will be binding upon each party’s respective successor.

     

    8.6. Integration & Severability

     

    1. The headings of Sections herein are for convenience only and will not be deemed to affect in any way the scope, intent or meaning of the provisions to which they refer.
    2. This Agreement constitutes the full and complete understanding and agreement between the Parties. This Agreement supersedes all prior negotiations, understandings and agreements.  Except as expressly stated in this Agreement, any waiver, modification or amendment of any provision of this Agreement will be effective only if in the form of a written attachment or amendment to this Agreement and signed by an authorized representative of both Parties.
    3. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable under present or future laws, then such provision will be fully severable and this Agreement will be continue and enforced as if such invalid, illegal or unenforceable provisions were not a part hereof.
    4. The Schedules and Exhibits referred to in and attached to, these documents are to be considered an integral part of this Agreement.

     

    8.7. Disclosure of this Agreement

     

    Customer shall not disclose the terms of this agreement to a third party except to (a) its accountants, lawyers or other professional advisors under a duty of confidentiality or confidentiality agreement, or (b) as required by law. If disclosure of this agreement is required by law, Customer shall immediately notify Provider and, if so requested by Provider, provide reasonable assistance to limit such production.

     

    Provider may identify Customer as a customer of Provider, including a general description of the products and services provided by Provider to Customer, to advisors, investors, and other prospective and existing business partners. Provider will not identify Customer as a customer of Provider to the general public unless Provider receives written consent and approval from Customer. Neither party will disclose the pricing or other specific terms of this Agreement without the prior

    written consent of the other party except as may be required by law.

     

    Customer gives Provider permission to use its official logo and name (collectively the “Marks”) for internal purposes,

    including discussions with advisors, investors, and other prospective and existing business partners. To use the

    Marks for purposes other than the cases defined herein, Provider must receive written consent and approval by the

    Customer. The Customer hereby releases Provider from all liability relating to the publication or use of the Marks for the

    permitted purposes described herein.

     

     

    8.8. Limitation of Liability & Indemnification

     

    1. Provider does not undertake to perform any regulatory or contractual obligations of Customer or to assume any responsibility for Customer’s business or operations.
    2. Provider shall have no liability arising from or relating to any of Customer’s equipment or third party hardware or software (collectively referred to as “Third Party Materials”), including, but not limited to, the selection thereof or failure of such third party materials to perform in accordance with specifications or any defects therein. Responsibility for the selection of third-party materials, and any performance or functionality issues, or defects therein, shall lie solely with Customer, the manufacturer(s) or supplier(s) thereof as applicable.
    3. In no event shall either party or any of their officers, directors, employees, or sub-contractors be liable for any form of indirect, special, incidental, or consequential damages including without limitation, loss of use or lost business, revenue, or goodwill arising as a result of the services provided or relationship created in this agreement, the services included within this agreement, under any theory of tort and/or contract. In no event shall either Party be liable to the other for any punitive damages.
    4. Provider is not liable to Customer for lost income or reduction in asset value data unless and to the extent Provider fails to provide the Services as agreed, and if such failure to provide services directly leads to lost income or reduction in asset value. 
    5. Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Provider’s negligence, the maximum aggregate monetary liability of Provider and any of its officers, directors, employees, agents, or affiliates in connection with the Services provided in this Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the amount of fees paid by Customer for Services for the six months prior to the occurrence of the event giving rise to the claim.
    6. The Customer agrees to indemnify, defend and hold AR harmless from any and all damages, losses, claims, causes of actions, expenses and liability directly associated with its use of the Equipment.

     

    8.9. Arbitration & Choice of Law

    1. If a dispute arises out of or relates to this contract, or the breach thereof, and said dispute cannot be settled through reasonable negotiation, the parties agree first to try in good faith to settle the dispute by mediation. Mediation shall take place in Lexington, Kentucky through a duly qualified and agreed upon mediator. If the parties cannot resolve the dispute within a period of 30 days from the commencement of formal mediation, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. Such arbitration shall take place in Kentucky and judgment on the award
      rendered by the arbitrator shall be entered in Fayette Circuit Court, or other Fayette County, Kentucky court with appropriate jurisdiction.
    2. The validity, construction, interpretation, enforcement, and performance of this Agreement shall be controlled by and construed under the laws of the Commonwealth of Kentucky, without giving effect to provisions thereof regarding conflicts of laws.

     

    8.10. Insurance Coverage for Provider Assets

    1. Customer assumes the responsibility for all damages to the Equipment while in Customer possession and/or control, unless such damage was the fault of Provider.
    2. Customer shall include Provider as a Named Insured on the Customer’s All Hazards insurance policy within 10 days of entering agreement, and shall take such steps as necessary to ensure that the All Hazards policy specifically includes provisions to cover all Provider Assets installed at or used on Customer Property. This policy shall provide protection against damage or destruction of Assets or Liability due to Customer Action, Inaction, Failure to follow operating and maintenance procedures, or all other hazards except due to acts by Provider (except as such acts may be caused due to lack of information or receipt of incorrect information from the Customer)
    3. In addition to reimbursement for the replacement value of tangible assets, the Provider shall also be indemnified against loss of revenue during the time the equipment is unavailable for its normal usage.
    4. Provider will supply the replacement value for each tangible asset supplied as part of this agreement prior to delivery.
    5. Customer will be responsible for any deficient insurance coverage from the replacement values supplied by Provider.

    8.11. Export Matters

    Customer represents and warrants that they are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person or entity to whom Provider is legally prohibited to provide the Services. Customer may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, or as otherwise prohibited by law, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations.

    9. SCOPE AND TERMS OF TECHNICAL SERVICES

    9.1. System Performance – Drone Services

    Black Tier commits to a 99% uptime guarantee SLA during all 24x7 service hours based on deliverables solely within the control of the Provider. This guarantee does not include items out of Black Tier’s control such as internet or cellular connectivity, non-redundant solutions requested by our Customers, hardware/software provided by the Customer, Customer side equipment, and software performance issues. Customer understands any prescheduled service or maintenance will not be utilized against the SLA uptime guarantee.

    9.2. Outages – Hosted Services

    Although this program is designed to minimize the risk associated with network failure, hardware and software failure, and data loses; due to the nature of technology there are no guarantees this service will prevent these events from occurring.  It is a recommended best practice for the Customer to have a minimum of two Internet connections, one primary and one failover, as well as redundant power to the drone power supply. Customer will be notified in advance of any scheduled service outage planned on behalf of Provider. All reasonable care will be taken to minimize the impact on Customer services due to scheduled maintenance outages. The sole remedy for outages that exceed the uptime guarantee, as measured on a quarterly basis, is the pro-rata refund of services measured against Customer’s monthly billing. Under no circumstances shall the maximum total credit for failure to meet the Service Level Guaranties under this Agreement for any calendar month exceed 100% of the monthly recurring fee for the affected services.  

    9.3. Data Backup, Replication, Retention

    Provider will maintain all customer security video data for 30 days past any event in which the drone investigates an intrusion and will maintain all customer crop data (raw and processed) for 30 days.   Longer storage and access by customers to security video data and crop data can be provided with a custom quotation specifically for those services which will be incorporated into the Quotation provided to the Customer and approved by the Customer.

    9.5 Data Ownership

    Both Provider and Customer shall share Ownership of all Data generated through this service. Customer shall have access to the Subscription Components for the Subscription Term and shall own Customer Data. “Customer Data” shall mean the raw, non-aggregated video and photographic data collected as part of the Services that contains Customer-identifiable data, Customer crop yield information, Customer trademarks, information related to Customer’s proprietary business processes, or other identifiable Customer assets. Provider and any Authorized Distributor (if applicable) shall be free to use Customer Data solely for the purpose of providing the Services to the Customer and for Provider’s and Authorized Distributor’s internal purposes, including research and development, improving the operation of the Services, and conducting the Services. Provider shall not disclose any Customer Data to any third parties (except Authorized Distributors, if applicable) without Customer’s prior written consent.

    Provider shall have the exclusive right to aggregate, anonymize and analyze non-Customer Identifiable Information for both internal purposes and commercial purposes. Data includes but is not limited to any text data, information, images, photographs, scans, sound, video, data analysis and recommendations or other electronically stored information on any systems as a result of this agreement. Provider shall be free to use  non-Customer Identifiable Informatio for any purpose whatsoever, including, without limitation, improving the operation of the Services, generating models and statistical analysis about the Services, and distributing such aggregated and anonymized analysis to third parties, including the general public.

    9.6 Response to Legal Process

    Providers shall provide notice of the service of any subpoena or other legal process seeking access to Customer’s data,  or any other electronically stored information that is stored and maintained as a result of this agreement between Provider and Customer. Provider will assist and cooperate in responding to such legal process.

    Such assistance will be deemed out of the scope of any agreement with Customer and therefore Provider shall be compensated for technical services and attorney’s fees as incurred.

    9.7 Innovations

    Any algorithms, designs, or innovations generated by Provider through Provider’s interaction with Customer Data or through the act of conducting the Services shall be the sole intellectual property of Provider.

    10. TERM AND TERMINATION

    10.1. Term of Agreement

    The term of this agreement shall be as defined in the Quotation provided to the Customer and approved by the Customer. Customer is responsible to pay to return all drone equipment to Provider and to ship such within 5 days of termination of service in accordance with shipping guidelines provided by Provider. Customer shall provide proof of proper shipment of equipment being returned by Customer to Provider or hereby provides Provider right to enter property and pick up equipment without notice at its earliest convenience and Customer shall pay all Provider costs incurred, including labor cost, incurred in re-possessing the equipment up to a maximum  of $10,000

    10.2. Renewal

    This agreement automatically renews on its anniversary date for an equivalent subsequent period unless either party, Customer or Provider, advises the other party in writing 90 days prior to the last day of the Agreement Term or may be renewed with written agreement for such between Provider and Customer that references this agreement and specifying the new term of agreement.  If additional services are desired they can be appended to this agreement by adding them using the Change Control procedures identified in Section C. Provider reserves the right to adjust or amend any of the Terms and Conditions set forth in this Agreement prior to any renewal term, upon ninety (90) days’ written notice to Customer.

    10.3. Termination

    1. Either party may terminate for breach by the other party remaining uncured for 10 days after notice of breach. f
    2. Provider will not be considered in default of this agreement if they respond to and remedy any
      situation, which might otherwise place Provider in default, within 10 days from the date of
      notification.
    3. Customer acknowledges that upon termination there may be additional expenses to transfer data to an alternate location. Provider shall not be responsible for those costs and shall be reimbursed at its normal hourly rate for effectuating the transfer of services, images, and other stored data.
    4. If Customer terminates this agreement without cause of breach by Provider, in addition to other amounts owed, Customer must pay an early termination fee equal to 50% (fifty percent) of any minimum monthly financial commitment made for the remaining portion of the then-current term referenced in 10.1.
    5. The provisions of Sections 5.1, 5.2, 6, 7.4, 7.6, 8.3, 8.4, 8.6, 8.7, 8.8, 8.9, 9.5, 9.6, 9.7 of this Agreement shall survive the expiration or termination of this Agreement for any reason.

    10.4 Suspension of Services

    Provider may suspend your Services without liability if:

    1. Provider reasonably believe that the Services are being used (or have been or will be used) in violation of applicable State and/or Federal laws or this Agreement,
    2. Customer does not cooperate with Provider’s reasonable investigation of any suspected violation of the Agreement.
    3. Provider reasonably believes that Customer Services have been accessed or manipulated by a third party without Provider’s consent,
    4. Provider reasonably believes that suspension of the Services is necessary to protect its network or its other Customers,
    5. A payment for the Services is overdue (as defined in paragraph 5.1), or
    6. Suspension is required by law.

    Provider will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless determined, in Provider’s sole reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Provider or its other customers from imminent and significant operational or security risk.

    If the suspension was based on breach of Customer’s obligations under the Agreement, then Provider may continue to charge the fees for the Services during the suspension,and may charge a reinstatement fee of $700.

    10.5 End of Agreement Duties

    Upon termination of this Agreement Customer agrees to promptly release and return all equipment installed at its location. Costs of removal or shipment of such equipment shall be the responsibility of the Provider, unless otherwise agreed in writing. Returned Equipment must be returned within 5 days of end of Term and shall be evaluated for damage. In the event that damage has occurred in excess of normal and customary wear and tear, Customer shall be responsible to pay the costs of restoring equipment to its normal level of operation.

    Customer further agrees to uninstall, return, and cease its use of any licensed software provided pursuant to this Agreement or in furtherance of the goals of this Agreement. 

    10.6 Change of Terms

    Provider reserves the right to adjust labor rate at any time with a thirty (3) day notice to accommodate prevailing business conditions, such rate changes being reasonable and customary. Other expenses, unless specified otherwise or are quantity base, will remain fixed until the end of the agreement. 

    SCHEDULE A – CHANGE CONTROL PROCEDURES

    The following provides information on the change control procedures Customer must follow when it is necessary to consider changes to Services.

    The following process will be used to make changes to the type or scope of services, metrics or targets and goals for the Services provided by Provider:

    Customer modifications to the existing environment - Customer is to notify Provider of any changes to the supported and monitored environment during the month of the modification. These include but are not limited to sizes of fields, locations of fields, proposed new location of ground station and similar changes which would require a physical change to equipment or a reprogramming of flight paths.  Corresponding approved changes will be made to the fees for services coterminous to the existing agreement.

    Customer request for change to the environment or agreement - Customer is to submit a request for change to services to Provider for consideration, review and costing. 

    Provider will review the feasibility of the request and provide a proposal for time, materials and work effort to Customer for review.

    Customer is to approve or reject the provided request for change proposal.

    If the request is approved by both Customer and Provider, it will be incorporated into the agreement and corresponding approved changes will be made to the fees for services coterminous to the existing agreement.

     

    SCHEDULE B – SERVICE AND PEFORMANCE

    Information for the monitoring and administration services provided under this Agreement if identified in the Quotation provided to the Customer and approved by the Customer.

    Performance, Availability and Predictive Failure Monitoring – Provider utilizes a monitoring system designed to continuously display and monitor visual, infrared, radar and other sensor systems installed at the Customer location and track the availability and performance of critical components. The monitoring system will provide our Global Security Operations Center (GSOC) with real time alerts that will be responded to in accordance with the security protocols and best practices of the industry.  The system will also allow for the periodic production of reports which will be made available to Customer.

    Security monitoring is performed 24x7, 365 days a year during the term of this agreement and crop data reports are provided same day as flight.  Crop analytic reports involving Provider experts are provided on next business day.

    System Maintenance and Administration – Each maintenance task is performed utilizing the most expedient and unobtrusive method available, including automated, manual, remote and onsite methods. Customer Agrees not to interfere, disable, or otherwise un-install remote software agents utilized by Provider to administer, track, or aid in providing service to Customer’s systems.

    Proactive Equipment Maintenance - This is a preventive maintenance service designed to proactively and routinely maintain the most problematic areas of drones, launch systems, tethers, and other physical systems installed at the site. In accordance with the results of the Security Assessment or Site Review, the Customer may be asked to perform various tasks, such as visual inspection, hard reboots, power cycling, communications cycling, propeller replacement, reattachment of tether, swap out of SD card,  and other simple tasks as directed by Provider maintenance personnel or the GSOC.,

    Customer shall not:

    Open the drone

    Open the electrical equipment area of the base station.

    Respond to any intruder or threat.  If Customer is aware of any threat or intruder, Customer is to contact the GSOC immediately and move themselves to a safe place and not engage.

    Customer recognizes and accepts that Provider has no responsibility for the safety of Customer unless executive protection or close protection services have been purchased by Customer from Provider.   Provider is not liable for injuries or death if Customer engages intruder or threat in any manner.

    Services Provided Remotely if purchased by Customer:

    • Monitor the health and status of all equipment deployed
    • Manage programmed missions, such as Ag Data Site Surveys
    • Monitor programmed missions and responses to intruders.
    • Provide crop data analysis in accordance with contracted services description
    • Provide for monthly performance reports to the Customer
    • Continuously scan for Incidents and respond to threat or intruder according to safety protocols.

    Incident Response

    Provider shall conduct near real time Incident Response to all Incidents which threaten the security of the site. Our Incident response protocol is constantly evolving in reaction to industry best practices, threats and the needs of individual customers. As part of the Security Assessment we will discuss Incident Response procedures and develop a custom process that best meets your needs.

    In general, our Incident Response protocol normally includes:

    • Video analytics, threat detection
    • Alert and alarm
    • Integration of data from all Provider installed or all Provided monitored systems on site (such as Perimeter Intrusion Detection Systems, or CCTV systems monitored by Provider
    • Drone sensor display and dispatch
    • Continuous recording of all sensors during an incident
    • Real Time Interaction with intruders in accordance with the Security Assessment protocol
    • Initiation of communications to public and/or private first responders Initiation of communications to Customer or Customer personnel Continuous real time communications with the Customer and responders until the Incident has been resolved
    • Internal escalation to management within Provider
    • After incident response documentation and maintenance of evidence as may be required by Customer or public protection agencies.

     

    SCHEDULE C – SERVICE TIMES

    Security monitoring is performed 24x7, 365 days a year during the term of this agreement.

    Crop data reports are provided same day as flight. 

    Crop analytic reports involving Provider experts are provided on next business day.

    SCHEDULE D – EXCLUSIONS

    In addition to any exclusions identified in the Quotation provided to the Customer and approved by the Customer. this agreement does not cover the following:

    Internet Connectivity – Provider has no involvement in providing internet connectivity to any of Customer(s) locations and is in no way liable for the loss of services or systems rendered unavailable due to the loss of connectivity between the Customer and Provider. Internet connectivity is the sole responsibility of the Customer.

    Out of Warranty & Non-licensed Systems – All non-Provider hardware and software must be covered by warranties, maintenance and licensing agreements provided by Customer throughout the duration of this agreement.  In the event the Customer does not renew a warranty and the warranty is expired, Black Tier will provide best effort support during daylight business hours only at our normal billable rate.  In the event after hours support is needed, Black Tier will provide best effort support at two (2) times the normal billable rate.

    Project/Integration Work - Project and integration work is defined as any service designed to add or increase functionality or capacity.  Projects outside of the Security Assessment, the Site Review, system installation and onboarding, and Seasonal Reviews are outside the scope of this agreement and as such will be quoted and invoiced separately.  Additional Project and integration work will be identified to Customer as such before any work is permitted.

    Hardware Replacement Cost – The cost associated with Customer-owned hardware replacement falls outside this Agreement.   Provider owned equipment will be replaced as deemed by Provider as appropriate and necessary to maintain a technologically current environment.

    Implementation Cost – Services to install or implement new hardware and software or replacement hardware and software not otherwise included in this agreement.

    Hardware Repair – Customer owned hardware should be covered under maintenance agreements with the manufacturer. 

    Anti-virus / Malware Cleanup – Viruses, Malware and other similar malignant software introduced into the Provider environment by equipment, software or telecommunications systems owned, leased or controlled by the Customer shall be removed and the prior environment restored at Customer’s Cost.

    Third Party Problems – Communication with third party support representatives in excess of 30 minutes per month in aggregate will be billable unless final determination is made that the problem was caused by Provider systems which are otherwise supported under this agreement.  Examples of third parties include, but are not limited to Internet service, cabling, and Telco providers, third party security services, communications with governmental entities not directly related to Incident Response or changes in Regulations.

    Equipment Relocation – Movement of equipment is not included.  If the Customer requires physical movement of the launch box, tether or fencing or any other semi-permanently installed systems, any costs incurred by Provider in relocating such systems shall be rebilled to the Customer.

    Network Infrastructure Redesign – Changes to the underlying design of the network infrastructure, including, but not limited to VLAN, switch, router, and firewall redesign are excluded.

     

    SCHEDULE E – Payment Terms

    Initial prices, services and products are set forth in the final quotation provided to the Customer and accepted by the Customer.

    Unless otherwise agreed, Provider may increase prices effective after the initial term of an Agreement, Schedule(s), or Exhibit(s) upon 30 days’ notice.

    Payment Terms

    Security Assessments

    • 50% paid up front at time of signature of this Agreement
    • Remaining 50% plus actual Travel Costs paid after completion of the Scope of work, payable 10 days after receipt of invoice
    • A 2% discount is offered for Customer Authorization for Electronic Invoicing and automatic ACH withdrawal for all invoices associated with the Security Assessment

    Bundle Services, Security Personnel Services and Additional Roving Drone Services

    • Due and Payable in advance on the first of each month of service as contracted
    • A 2% discount is offered for Customer Authorization for Electronic Invoicing and automatic ACH withdrawal for all invoices for the Season

    Perimeter Barriers and Perimeter Intrusion Detection Systems

    • 50% paid up front at time of signature of this Agreement
    • Remaining 50% plus any variable costs paid after completion of the Scope of work, payable 10 days after receipt of invoice
    • A 2% discount is offered for Customer Authorization for Electronic Invoicing and automatic ACH withdrawal for all invoices

    Shipping and Travel:

    • Customer pays for all shipping of equipment to and from Customer site.
    • Customer pays for all travel expenses associated with Security Assessments, Installation, or other on-site responses by Provider in support of Customer.

    All Other Services

    • Billed at standard time and materials cost
    • Due and Payable in 30 days
    • A 2% discount is offered for Customer Authorization for Electronic Invoicing and automatic ACH withdrawal for all invoices

    Taxes

    Taxes shown on the quotation are based on Provider’s best estimate at the time of the Quotation. Provider shall collect such taxes as may be due for each specific transaction in each specific location and remit them to the taxing authorities in accordance with their laws and regulations.

    In the event that there was an Error in Provider’s estimate of Taxes, or if tax rates change during the Term of the Agreement, Customer agrees to pay any additional taxes due, and Provider agrees to refund to Customer any taxes collected in error.

    SIGNATORIES TO AGREEMENT

    The Black Tier, LLC (Provider) Autonomous Drone Service Agreement together with all Attachments and Schedules cover the provisions of all services by Black Tier to Customer. By clicking on the box below, Customer agrees to this Terms and Conditions Agreement.