DTN Addendum – Sustainability Marketplace (Pilot)

Last updated: July 24, 2024

The following additional terms set forth in this Sustainability Marketplace Addendum (this “Addendum”) apply to the use of DTN’s Sustainability Marketplace:

Definitions. For purposes of this Addendum, the following terms have the meanings set forth below. Capitalized terms not otherwise defined in this Addendum have the meaning set forth in the Terms of Service:
1. “Addendum” means this Sustainability Marketplace Addendum.
2. “Buyer(s)” means a party buying or purchasing Commitments through the Marketplace.
3. “Commitment” means: (i) a farmer’s contractual commitment to follow certain specified Sustainable Farming Practices to the extent referenced or set forth in the relevant Offer for a Transaction (including the particular growing season to which the Commitment applies); and (ii) the Completion Certificate.
4. “Completion Certificate” means a farmer’s contractual representation and certification, effective at the end of such growing season, that the farmer fulfilled the Commitment in all material respects
5. “Marketplace” means DTN’s Sustainable Marketplace; also referred to as the “Services.”
6. “Marketplace Fees” means the fees charged for use of the Marketplace, in accordance with Paragraph 5.
7. “Offer” means an offer made by a Buyer or Seller (as applicable) within the Marketplace for the purpose of inducing another Buyer or Seller (as applicable) to enter into a Transaction, upon the terms set forth within such offer (e.g., the specific Sustainable Farming Practices required by the Commitment, the number of acres or credits, the price to be paid by the Buyer, etc.).
8. “Payment Deposit” means the deposit by a Buyer to DTN of the funds necessary to support a Buyer’s obligations pursuant to an Offer or Transaction, as collateral or security, in accordance with Paragraph 8.
9. “Seller(s)” means a party selling Commitments through the Marketplace.
10. “Sustainable Farming Practices” means farming methods designed to protect the environment in accordance with stated criteria (such as applicable laws and regulations), which may include (but not be limited to): building healthy soil, erosion prevention, water management, carbon sequestration, minimizing air and water pollution, increasing resilience to extreme weather, and promoting biodiversity. The specific criteria for Sustainable Farming Practices may vary by Transaction, based upon the terms of such Transaction.
11. “Transaction(s)” means any sale, purchase or transfer of Commitments between Buyer(s) and Seller(s) via the Marketplace.
12. “Verification Services” means services which may be provided by DTN, in connection with any individual Transaction, designed to verify whether or not a Commitment appears to have been satisfied in accordance with the terms of the applicable Transaction.
About the Marketplace. DTN’s Sustainability Marketplace allows users to offer, sell, and buy Commitments. DTN makes no representation, warranty or covenant with respect to any Commitment and shall not be responsible or liable for any failure or default in the fulfillment of such Commitment. To the extent, if any, that a Transaction includes Verification Services, such services do not guarantee that a Commitment will be or has been fulfilled. If DTN determines that Verification Services indicate that a Commitment is not being or has not been fulfilled, DTN may notify the Buyer and Seller of such Commitment, including a summary of the basis for DTN’s determination. DTN shall not be obligated to pay for any Commitment that is not being or has not been fulfilled. PLEASE NOTE THAT, AT THIS TIME, THE SUSTAINABILITY MARKETPLACE WILL NOT FACILITATE ANY TRANSACTION RELATING TO ANY RIGHTS (INCLUDING RIGHTS TO MARKET), INTERESTS, OR OWNERSHIP IN ANY CARBON CREDITS OR CARBON OFFSETS GENERATED BY SUSTAINABLE FARMING PRACTICES. FOR PURPOSES OF THIS PARAGRAPH 2: “CARBON CREDITS” SHALL BE DEFINED AS TRADEABLE PERMITS THAT EACH REPRESENT THE RIGHT TO EMIT SPECIFIED AMOUNTS OF CARBON DIOXIDE OR OTHER GREENHOUSE GASES WITHOUT CONTRIBUTION TO THE GREENHOUSE GAS EMISSION FOOTPRINT OF THE HOLDER; AND “CARBON OFFSETS” SHALL REFER TO MARKETABLE VALUE ATTRIBUTABLE TO THE AMOUNT OF CARBON AVOIDED OR PERMANENTLY REMOVED FROM THE ATMOSPHERE THROUGH SUSTAINABLE FARMING PRACTICES. FOR AVOIDANCE OF DOUBT, SELLERS SHALL NOT BE PERMITTED TO SELL OR TRANSFER, AND BUYERS SHALL NOT BE PERMITTED TO PURCHASE OR ACQUIRE ANY ACTUAL OR POTENTIAL RIGHTS RELATING TO ANY CARBON CREDITS OR CARBON OFFSETS THROUGH THE SUSTAINABILITY MARKETPLACE, AND ANY TRANSACTION ATTEMPTING TO TRANSFER RIGHTS TO ANY OF THE FOREGOING SHALL BE VOID. EACH BUYER AND SELLER OF ANY TRANSACTION THROUGH THE MARKETPLACE HEREBY WAIVE, DISCLAIM, AND RELEASE ANY CLAIM AGAINST DTN, THE APPLICABLE BUYER OR SELLER OF A TRANSACTION, OR ANY OTHER PARTY RELATING TO ANY ALLEGED TRANSFER OF CARBON CREDITS OR CARBON OFFSETS ARISING FROM THE USE OF THE MARKETPLACE.

In some circumstances, DTN may be identified as the Buyer or Seller for specific Transactions; in such cases, DTN shall be deemed the “Buyer” or “Seller” (as applicable) under this Addendum for purposes of such Transaction. In the event that Customer (as a Seller) enters into a Transaction with DTN (as a Buyer), Customer expressly acknowledges that DTN may be obtaining (or has obtained) the relevant Commitment for the purpose of assignment or resale to third parties and Customer consents to any such assignment or resale. In the event that Customer (as a Buyer) enters into a Transaction with DTN (as a Seller), Customer expressly acknowledges and agrees that the relevant Commitment has been or may be acquired by DTN from a third party user of the Marketplace for the purposes of resale and assignment to Customer in connection with such Transaction; therefore, Customer further acknowledges and agrees that DTN’s ability to perform a Transaction with Customer (as a Buyer) is conditioned upon DTN’s receipt of the necessary Commitment(s) from a third party Seller or Sellers. If DTN determines, in its reasonable judgment, that it is commercially unfeasible for DTN to obtain a Commitment under any Transaction with Customer (as a Buyer), then, unless otherwise set forth in writing between DTN and Customer (as a Buyer), DTN’s obligations under such Transaction shall be reduced to align with the extent of the Commitment(s) available to DTN, and Customer’s obligation to pay DTN shall be reduced on a pro-rated basis on account of such reduction. UNLESS AGREED OTHERWISE IN WRITING, THE REDUCTION OF THE PRICE PAYABLE BY BUYER SHALL BE CUSTOMER’S SOLE REMEDY IN THE EVENT THAT DTN (AS A SELLER) IS UNABLE TO DELIVER THE FULL COMMITMENT CONTEMPLATED IN SUCH TRANSACTION. For avoidance of doubt, to the extent that DTN obtains or has obtained a Commitment in any Transaction from Customer (as a Seller) or for the purpose of resale or assignment to Customer (as a Buyer), any contractual relationship shall arise only between DTN and Customer; Customer shall not be deemed a party or third party beneficiary of any other contractual relationship between DTN and any other user of the Marketplace solely by virtue of the resale or assignment of Commitments.

Except as expressly set forth above, DTN acts as a facilitator, and not a party, to any Transactions and the contracts for the sale or transfer of Sustainable Farming Practices between Sellers and Buyers created thereby. When DTN is not the Buyer, Buyer and Seller each acknowledge and agree that DTN is a third-party beneficiary of any contract created by a Transaction, and DTN shall have the right (but not the obligation) to enforce any such contract for the benefit of any Buyer or Seller of the Marketplace, including enforcement for the benefit of or against Customer. Notwithstanding the preceding sentence, both Buyer and Seller acknowledge that DTN (as a facilitator) shall have no obligation to take any action to enforce any contract between any Buyer and any Seller, and any guidance or assistance provided by DTN as part of the Marketplace is solely for informational purposes and does not constitute legal advice or a recommendation or advice to take or refrain from taking any specific course of action. No Customer shall have any recourse whatsoever to DTN with respect any Commitment.

While DTN may, but is not obligated to, incorporate certain Verification Services and other safeguards pertaining to Commitments transferred within the Marketplace, DTN has no direct control over and makes no representation or warranty regarding, and shall not be liable for the fulfillment or failure of any Commitment, the accuracy or quality of any Sustainable Farming Practices that are the subject of any Commitment, or the ability of Buyers and/or Sellers to enter into or fulfill their obligations under Transactions, or to sell, buy, perform or otherwise pay for any Commitment. DTN further has no liability whatsoever with respect to Customer’s use of or reliance on any Commitment or Transaction or the results thereof. If a third party makes any claim against DTN arising out of or related to any Commitment or a Transaction pertaining thereto, Customer shall indemnify, defend and hold DTN harmless against such claim.
Using the Marketplace. In connection with using or accessing the Marketplace, Buyers and Sellers agree to comply with DTN’s Terms of Service, this Addendum, and all applicable laws, rules, and regulations. Without limiting the foregoing, Buyers and Sellers shall not:
1. use the Marketplace if they are not able to form legally binding contracts (for example, if under 18 years old), or are temporarily or indefinitely suspended from using the Marketplace, or are a person with whom Transactions are prohibited under economic or trade sanctions;
2. fail to deliver or pay for Commitments they have transacted using the Marketplace;
3. attempt to manipulate any other users’ offers within the Marketplace or interfere in any in any other users’ Transactions;
4. share log-in credentials with any third parties;
5. use the Marketplace to make any offer or statement that is false, inaccurate, misleading, deceptive, defamatory, libelous, illegal, inappropriate, harmful, or violates and/or infringes the rights of others;
6. use any data mining or extraction tools within the Marketplace, for any purpose;
7. commercialize the Marketplace or any information, data, or software associated with the Marketplace, without DTN’s prior written consent, except with respect to Transactions between Buyers and Sellers with respect to Sustainable Farming Practices within in the ordinary and intended purpose of the Marketplace; or
8. harvest or otherwise collect or use information about other users of the Marketplace without their express consent.
In the event that DTN reasonably believes that Customer has materially violated DTN’s Terms of Service, this Addendum, any Commitment or any applicable laws, DTN may, in its sole discretion, and without liability to Customer or limiting any other remedies, suspend or terminate Customer’s user account(s) and access to the Marketplace, remove any published offers, delay or terminate any pending Transactions within the Marketplace, and take any other technical and/or legal steps to prevent Customer from using the Marketplace.
Marketplace Fees. DTN charges fees to Buyers for the use of the Marketplace (the “Marketplace Fees”), which fees are set forth in writing between DTN and each Buyer. Buyers are liable to DTN for the payment of fees arising out of each Transaction to which they are a party, even if all or a portion of such Transaction is finalized or payment is made outside of the Marketplace, or without using DTN as a facilitator.
Offer Conditions. When making an Offer within the Marketplace, Customer agrees that:
1. Customer shall be solely responsibility for the accuracy and content of such Offer;
2. DTN will take commercially reasonable efforts to promptly publish Offers within the Marketplace, but Offers may not be published immediately, and no guarantee is made regarding the timing for when Offers will be published within the Marketplace;
3. Offers that DTN reasonably believes violate its Terms of Service, this Addendum, or any applicable law may be modified or removed at DTN’s discretion;
4. DTN makes no representations or warranties regarding the searchability, appearance or placement of Offers within the Marketplace, which may be based on numerous criteria (including, but not limited to, location), within DTN’s sole discretion; and
5. DTN may publish and promote Offers, including any proposed terms and relevant related information (such as Customer’s name, location, information relating to the specific fields and crops involved, etc.).
Transaction Conditions. When entering into a Transaction using the Marketplace, Customer agrees that:
1. Customer is solely responsible for reading and understanding the terms of any applicable Offer, including any modified or additional terms negotiated between Buyer and Seller (if any);
2. Customer is entering into a legally binding contract to purchase or sell (as applicable) Commitments on the terms set forth within the Offer (including any modified or additional terms negotiated between Buyer and Seller, if any);
3. Customer (as a Buyer) shall be obligated to pay each Seller: (i) upon delivery of the Completion Certificate, unless, if Verification Services apply, DTN has provided notification of a failure or default with respect to the relevant Commitment; or (ii) as otherwise as required by the applicable Transaction;
4. Customer (as a Seller) shall not be entitled to payment from Buyer: (i) if DTN has determined to its reasonable satisfaction, that a Commitment is not being or has not been fulfilled; and (ii) until all other conditions set forth in the applicable Offer and Transaction have been satisfied; and
5. Unless DTN is expressly identified as the “Buyer” or “Seller” of the Transaction, DTN acts solely as a facilitator for the transfer of Commitments and shall be deemed a third-party beneficiary of each Transaction. In acting as a facilitator, DTN may (but shall not be obligated to), as requested, provide advice or limited assistance to Buyers and Sellers with respect to Transactions. Notwithstanding the preceding sentence, DTN shall not be deemed a party to any Commitment or the contract created by the Transaction, and DTN does not and cannot independently transfer any Commitments between any Seller and any Buyer relative to any Transaction.
Seller Representations, Warranties, and Covenants. By making or accepting any Offer or otherwise entering into any Transaction, Customer (as a Seller) represents, warrants, and covenants to DTN and to each applicable Buyer that:
1. Customer is bound by the Commitment and has all necessary rights, power and authority fulfill its obligations in the Transaction, and possesses all necessary power and authority to make, accept and consummate each of its Offers and Transactions.
2. Customer has not previously transferred, sold or in any way encumbered any Commitment to the Sustainable Farming Practices which are the subject of the Offer and Transaction, nor has Customer entered into any other agreement with the intent or which would have the effect, with the passage of time, to so transfer, sell or encumber such Commitments; and
3. Once an Offer is accepted, Customer shall not enter into any other agreement relating to the transfer, sale or encumbrance of any Commitment sought to be transferred through the Offer and Transaction, without the prior written consent of DTN and the Buyer, unless the Transaction is terminated or voided prior to completion, as determined in DTN’s sole discretion.
Facilitation. DTN may, but shall not be obligated to, facilitate Transactions.
1. If Customer is a Buyer, DTN may, as a condition precedent to allowing Customer (as a Buyer) to place any such Offer or accept any existing, published Offer from any Seller through the Marketplace, require Customer to deposit the necessary funds (the “Payment Deposit”) to support any Offer Customer desires to place or accept through the Marketplace. The Payment Deposit, if required, will be returned to Buyer after DTN receives confirmation of Buyer’s payment to Seller as required by the Transaction. Customer acknowledges and consents that DTN (and its selected escrow agent, if applicable) shall have no obligation to maintain separate accounts for Payment Deposits, and that Customer’s Payment Deposit may be co-mingled with any other Payment Deposit(s) made by Customer or any user of the Marketplace; provided that DTN shall maintain industry standard practices with respect to the accounting and records of such Payment Deposits.
2. Customer shall reasonably cooperate with DTN in verifying Customer’s compliance with the terms of any applicable Offer(s); provided that the determination of compliance with the terms of any Offer(s) reasonably made by DTN shall be binding upon Customer.
3. Except as expressly provided herein, Customer acknowledges and agrees that DTN is not acting for the benefit of Customer, nor shall DTN have any fiduciary or other obligation to take any specific action at the request or for the benefit of Customer. Customer acknowledges and agrees that DTN’s actions relating to any Transaction are provided solely as a convenience to its Customer and is not intended to create any fiduciary, trustee, agent or similar relationship between the parties and, as such, Customer expressly releases, disclaims, and waives any claim against DTN based on the foregoing or any liability or damages alleged or arising in connection therewith.
4. Notwithstanding anything to the contrary herein, Customer acknowledges that, in DTN’s reasonable judgment, DTN shall have the right (or may be legally obligated) to delay, hold or freeze a Transaction or Payment Deposit for suspected fraud, legal compliance (including, without limitation, suspected Money Laundering or suspicious transactions), compliance with economic or trade sanctions, actual or suspected errors within the Marketplace and/or systems supporting the Marketplace, or due to potential violations of any DTN policy, including the Terms of Service and this Addendum. DTN shall have the right to terminate or void any Transaction, and return any applicable Payment Deposit, based upon any of the foregoing, in DTN’s sole discretion.
Delivery of Commitments and Documents.
In connection with any Transaction through the Marketplace, Customer (as a Seller) shall complete, execute and/or deliver to the applicable Buyer and DTN such certifications and documentation as the Buyer or DTN may reasonably require to transfer the Commitments, or as otherwise deemed necessary to effectuate the intent of the Transaction between Customer and Buyer, as determined by DTN. In addition, Customer (as a Buyer) shall cooperate with DTN and each applicable Seller in the completion, execution, and delivery of the foregoing.
General Warranties and Disclaimers.
1. By making or accepting an Offer or otherwise entering into a Transaction, Customer represents and warrants that it has full power and authority to execute such Transaction facilitated through the Marketplace without any further ratification or approval.
2. Customer represents and warrants to DTN and each other party to any Offer which Customer has made or accepted or any Transaction to which Customer has entered that the execution and performance of this Agreement, and the terms of each applicable Offer and Transaction, will not violate any judgment, order, or decree, or cause a default under any material contract under which Customer or any of its material assets are bound, or be deemed an event that would, with notice or lapse of time, or both, constitute such a default.
3. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR WHERE PROVIDED BY APPLICABLE LAW, DTN PROVIDES THE MARKETPLACE ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE MARKETPLACE BY CUSTOMERS IS AT THEIR OWN RISK, AND THAT THEY ARE BEING PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DTN EXCLUDES ALL EXPRESS OR IMPLIED WARRANTIES, TERMS AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
4. Except with respect to a Transaction where DTN is expressly identified as the Seller, DTN does not collect, and is not responsible for collecting, any sales tax, use tax, transfer tax, or any other tax or fee that might be assessed by any jurisdiction having taxing authority over any Transaction facilitated through the Marketplace. Additionally, DTN is not responsible for calculating, reporting, withholding, or remitting taxes to any taxing authority in connection with Transactions facilitated through the Marketplace..
5. Customer is solely responsible for monitoring legal developments applicable to its business, determining how to comply with all applicable laws, and maintaining an ongoing compliance program. Customer acknowledges that DTN does not monitor or interpret the laws applicable to DTN’s diverse customer base or provide compliance services to Customers. Consequently, DTN has no responsibility to monitor or interpret laws that might apply to Customer, Customer’s business, or Customer’s activities using the Marketplace.
6. DTN does not qualify or pre-qualify Buyers or Sellers that use the Marketplace. Additionally, DTN disclaims all representations and warranties of any kind as to the willingness or ability of any Buyer or Seller to complete Transactions. Sellers are solely responsible for independently verifying the background and credit worthiness of Buyers with whom Sellers enter into transactions.
7. Except as expressly set forth herein, DTN is not a party to any Transaction facilitated through the Marketplace. DTN disclaims all representations and warranties of any kind concerning any Transactions, including (without limitation) all representations and warranties regarding the quality of the applicable Sustainable Farming Practices and the truth or accuracy of any Offers.
Disputes.
In the event of a dispute between Customer and any other user of the Marketplace (including any Buyer or Seller), DTN may (but shall not be obligated to) offer to facilitate or assist each party in attempting to resolve such dispute, to the extent agreed by the parties. However, except with respect to a Transaction where DTN is expressly identified as the Buyer or Seller, Customer acknowledges that such dispute arises solely between Customer and such other third-party user of the Marketplace and, as such, Customer releases DTN (including its affiliates, subsidiaries, and our and their respective officers, directors, employees, and agents) from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. In entering into this release, Customer expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which Customer may know or suspect to exist in Customer’s favor at the time of agreeing to this release.
Provision and Use of Data.
In accordance with applicable law (including, without limitation, Section 1619(b)(4)(C) of the Food, Conservation, and Energy Act of 2008), in connection with the use of the Marketplace, Customer acknowledges and agrees that: (i) DTN shall have a non-exclusive, worldwide, perpetual, royalty-free right to collect, use, transfer, disclose, sell, license, aggregate, modify, reproduce, and/or create derivative works of any Data for any lawful purpose (in DTN’s sole discretion), including (but not limited to) operating and marketing any of its Services (including the Marketplace), communicating with Customer regarding any of its Services, and sharing the Data with third parties to facilitate the operation, or otherwise in connection with the provision, of the Marketplace or any other relevant DTN Services; and (ii) Customer releases DTN from any claim or allegation asserting its failure to obtain consent or provide any notification of the reason for any use or processing of the Data. In addition, Customer agrees to provide or otherwise make available to DTN such Data as may be reasonably be necessary for DTN to provide the Services to Customer, and acknowledges that Customer’s failure or refusal to provide such Data may result in the reduction or prevention of Customer’s ability to use or derive any benefit from DTN’s Services.
Miscellaneous.
Any provisions in this Addendum which, by their express terms or nature and context are intended to survive termination or expiration of the Agreement, survive any such termination or expiration, including without limitation the provisions set forth in Paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13. Unless otherwise defined herein, all capitalized terms used in this Addendum have the meaning set forth in the Agreement. This Addendum modifies and supplements the Agreement solely to the extent expressly set forth herein, and the terms of this Addendum shall control in the event of any conflict or inconsistency with respect to the subject matter hereof. All other terms and conditions within the Agreement, including any amendments or addenda thereto, remain unchanged and in full force any effect.