1. Agreement. All purchase orders issued by AdeptAg Ultimate Holdings, LLC and/or its subsidiaries or affiliates (such entity, if identified as the purchaser on the face of the relevant purchase order, the “Purchaser”) for the purchase of Goods & Services (as defined below) from Seller constitutes an offer by Purchaser to purchase those certain goods and services specified on the face of the purchase order (the “Goods & Services”)(i) at the price(s) and with the delivery date(s) so specified on the purchase order, (ii) upon the terms and conditions set forth herein (these “Terms and Conditions of Purchase”), and (iii) in accordance with any specifications appearing on the face of the purchase order or in any attachments, test reports, schedules, exhibits, designs or drawings attached thereto (the “Specifications”)(all such purchase orders, the Specifications and these Terms and Conditions of Purchase, collectively the “Order”). Seller shall be deemed to have accepted the Order by written acknowledgement or by commencement of work upon or delivery of any of the Goods & Services. There are no oral understandings or agreements between Purchaser and Seller other than those embodied in the Order. Any proposal in Seller’s acceptance to vary any of the terms of the Order, including, without limitation, any proposal that Purchaser be liable for any expense, charge, fee or payment not expressly set forth in the Order, is hereby objected to and rejected by Purchaser, and shall not become a part of the Order. No agreement or understanding to amend or modify the Order shall be binding upon Purchaser except by a writing signed by an authorized representative of Purchaser. The Order shall in no respect constitute an acceptance of any offer by Seller. 

2. Termination. Purchaser may, by written notice effective immediately when received by Seller, cancel and terminate the Order, in whole or in part, if (i) any Goods & Services delivered thereunder are defective or otherwise do not conform to the Order, (ii) Seller fails to deliver any Goods & Services in accordance with the delivery schedule set forth in the Order, except as a result of Seller’s excused force majeure delay under Section 15 (Force Majeure) where Purchaser has determined that cancellation is not necessary to protect itself, (iii) Seller makes an assignment for the benefit of creditors, files or has filed against it proceedings in bankruptcy, if a receiver is appointed for Seller, or if Seller’s financial condition becomes otherwise unsatisfactory to Purchaser, (iv) Seller, within ten (10) days after request by Purchaser, fails to provide Purchaser with reasonable assurances of its ability to perform under the Order, or (v) Seller otherwise fails to comply with any of the terms of the Order. In addition, and not as a limitation of any of the foregoing, in the event of any breach of the Order by Seller, the Purchaser may hold Seller liable for all damages, whether direct or consequential, and all losses of every type, resulting from such breach. Notwithstanding the foregoing or any other provision of the Order, Purchaser may also at any time for its convenience, by written notice effective immediately when received by Seller, cancel and terminate the Order, in whole or in part, in which event Purchaser’s sole obligation to Seller for such termination shall be to reimburse Seller for those Goods & Services actually shipped and accepted by Purchaser up to the date of Purchaser’s termination, and any direct, verifiable reasonable costs incurred by Seller for any unfinished Goods & Services which have been specifically manufactured for or furnished to Purchaser. 

3. Delivery. Seller shall adhere strictly to the delivery date(s) and other time provisions specified in, and shall make delivery per the terms of, the Order. Time is of the essence, and failure of Seller to deliver the Goods & Services by the time specified in the Order (notwithstanding Purchaser’s acceptance of such Goods & Services after the delivery date) shall entitle Purchaser to terminate the Order in accordance with paragraph 2 (Termination) or declare the Order breached. Seller, however, shall not manufacture Goods & Services in advance of reasonable flow time or deliver in advance of scheduled delivery without Purchaser’s prior written consent. In the event of any termination or change of the Order, no claim will be allowed against Purchaser for manufacture or procurement in advance of reasonable flow time unless Purchaser has given such written consent. Seller warrants clear title to the Goods & Services when delivered to Purchaser, free from any and all liens or other encumbrances. Seller shall pay all costs and expenses arising out of any unscheduled delivery. 

4. Payment. The pricing specified in the Order shall, unless otherwise expressly excluded in writing, include all taxes and duties of any kind levied by all federal, state, local, or other governmental authorities, which Purchaser is required to pay with respect to the production, sale, use or shipment of the Goods & Services covered by the Order, with Seller remaining solely responsible for any and all other taxes or duties. Seller’s invoice shall set forth the items included within all Goods & Services delivered to the project site, the date of delivery, the unit cost and total costs of the items invoiced and services rendered. Unless otherwise stated in writing in the Order, payment terms are Net 60 from Purchaser’s acceptance of the material or services rendered and receipt of the invoice. 

5. Inspection and Acceptance. Purchaser’s payment for or receipt of the Goods & Services delivered under the Order shall not constitute acceptance thereof. Purchaser shall have the right to inspect such Goods & Services within a reasonable period after delivery. Purchaser shall not be obligated to exercise its right of inspection prior to cutting, processing or altering any Goods & Services which are raw materials, and no such action by Purchaser shall constitute acceptance of such Goods & Services. If, in Purchaser’s judgment, any Goods & Services are defective or fail to conform to the terms of the Order, Purchaser may reject such Goods & Services and return them to Seller at Seller’s expense, and, in addition to Purchaser’s other rights, may charge Seller all expenses of unpacking, examining, repacking and reshipping such Goods & Services. In the event Purchaser accepts Goods & Services whose defect or nonconformity is not apparent on visual examination, Purchaser reserves the right to later reject or revoke any acceptance of such Goods & Services, and in such event shall have all of the rights and remedies with respect to such Goods & Services as if they had been initially rejected. Complaints, claims or notices of any defect or breach shall be considered to be timely made if made by Purchaser within fifteen (15) days after Purchaser actually discovers or learns of the existence thereof. If any such inspection or test is to be made on the premises of Seller, Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. 

6. Shipping. All shipments shall be suitably packed, marked and shipped by Seller in accordance with all requirements for shipment by common carrier and in such a manner as to secure the lowest transportation costs, unless otherwise noted on the face of the Order. A separate delivery receipt must be issued on each purchase order, regardless of whether a single delivery under two or more purchase orders are made at the same time. 

7. Containers; Invoices. Purchaser shall not be responsible for the return of containers unless Purchaser has been advised of such return costs prior to its issuance of the Order. When shipments are prepaid and the costs are added to the invoice, the receipted shipping document must be attached to the invoice. The invoice payment and cash discount periods shall commence upon the later of delivery and Purchaser’s receipt of Seller’s invoice. 

8. Expenses. Seller shall bear all expenses of boxing, packing, crating and shipping unless specifically indicated otherwise on the face of the Order. If any delivery required of Seller is behind the schedule specified in the Order, Purchaser may elect to have such delivery made via express shipment, and Seller shall be responsible for payment of all additional amounts incurred as a result of such express shipment. 

9. Risk of Loss; Liability. Regardless of any other shipping or payment terms deemed to have been agreed to by Seller and Purchaser, risk of loss or damage in transit shall be the sole responsibility and liability of Seller until Goods & Services conforming to the terms of the Order have been delivered to, and inspected and accepted by Purchaser. Seller shall be liable to Purchaser for any loss or damage and expenses incurred by Purchaser resulting from Seller’s failure to provide adequate protection during shipment or otherwise to have complied with the Order. For any cross-border shipments, Seller shall, (i) follow all instructions of Purchaser and cooperate with any customs broker of Purchaser as directed by Purchaser (including providing requested shipping documentation), and (ii) comply with all requirements of any customs or other governmental authority. 

10. Warranty. Seller warrants that all Goods & Services delivered pursuant to the Order have been manufactured, distributed and delivered in compliance with all applicable federal, state, local and other governmental laws, regulations and ordinances. Seller expressly warrants that all such Goods & Services shall (i) conform to all Specifications and appropriate standards and be free from faulty design (to the extent such design is not furnished by Purchaser) or defects in material or workmanship, (ii) be of sufficient size, capacity and materials so as to fulfill in all respects all of the Specifications, (iii) be merchantable and be safe and appropriate for the purpose for which Goods & Services of that kind are normally used, and (iv) be free and clear of all liens, security interests, charges, assessments and encumbrances, of any sort. If Seller knows or has reason to know of any particular purpose for which Purchaser intends to use the Goods & Services, or that Purchaser is relying on Seller’s skill or judgment to select or furnish suitable Goods & Services, Seller warrants that such Goods & Services will be fit for such particular purpose. Seller warrants that all Goods & Services delivered under the Order will conform in all respects to any samples previously provided. Seller’s warranties shall run to Purchaser, its successors, assigns and customers, and to any users of any of the Goods & Services. In the event any of the Goods & Services fail to meet the standards contained in the warranties made in the Order, Purchaser may, in addition to any other rights it may have by law, at its option (i) require Seller at its own expense and as promptly as possible to make all changes, modifications or improvements necessary to cause such Goods & Services to conform with such standards, (ii) elect to accept or retain any such Goods & Services, subject to an appropriate adjustment to the purchase price of such Goods & Services to reflect the diminution in value of the Goods & Services resulting from the defects, or (iii) repair, adjust or alter any such Goods & Services or materials or parts thereof, or replace and return such Goods & Services, materials or parts to Seller. In the event Purchaser chooses any of the options set forth in clauses (i) or (iii) above, Seller shall reimburse Purchaser as promptly as possible for any and all loss, damage and expense incurred by Purchaser as a result of the delivery of such nonconforming or defective Goods & Services and the corrective action taken. 

11. Pricing; Invoices. Purchaser shall not be billed at prices higher than stated in the Order unless authorized in writing by Purchaser. Seller represents that the pricing charged for all Goods & Services covered by the Order is the lowest price charged by the Seller to purchasers of a class similar to Purchaser under conditions similar to those specified in the Order. Seller agrees that any price reduction made for any items covered by the Order subsequent to Purchaser’s placement of any purchase order covered by the Order will be made applicable to the Order. All invoices from Seller must contain the following information: Seller name, remit address, phone number, unique invoice number, invoice date, purchase order number (if applicable), item number, description of items, quantities, unit prices, extended totals, and any other information required by the Order. Invoices with supporting documentation that is insufficient to prove that the Goods & Services were delivered/completed, accepted, and consistent with the payment terms in the Order will be rejected by Purchaser and will not be paid. Payment of invoices will be subject to adjustment for any shortages, defects, or Seller’s failure to comply with the Order. Invoices must be submitted by Seller to Purchaser within 90 days of receipt or completion of the Goods & Services by Purchaser, and Seller’s failure to do so will constitute a waiver by Seller of any legal or equitable rights to demand payment for such Goods & Services. Where any item or items of Goods & Services on an invoice are disputed, Purchaser may withhold payment for the disputed items until the dispute is resolved. 

12. Indemnification and Insurance. Seller shall indemnify and hold harmless Purchaser, its agents, customers and others for whom Purchaser is acting, against any and all damages, liabilities, claims, losses and expenses (including reasonable attorneys’ fees and court costs) arising out of or resulting in any way from (a) any defect or non-conformity in the Goods & Services, (b) any injury to persons or property caused by, relating to or arising out of the sale or use by anyone, of the Goods & Services, (c) any infringement of any intellectual property rights caused by, relating to or arising out of the sale or use by anyone, of the Goods & Services, and (d) any breach of the Order or violation or alleged violation of applicable law by Seller or any of Seller’s affiliates, employees, agents or subcontractors. In the event any claims are made against Purchaser with respect to any such matters, Purchaser reserves the right, in addition to other rights and remedies, to return the Goods & Services already delivered and accepted by Purchaser for full repayment of the purchase price. At Purchaser’s request, Seller shall promptly assume full responsibility for the defense of any suit or proceeding that may be brought against Purchaser, it agents or customers for any such indemnified matters. Further, Seller shall maintain with financially sound and reputable insurers such liability insurance, including products liability, automobile liability, workers’ compensation, and employer liability insurance, as will adequately protect Purchaser, and its agents and customers, against any and all damages, liabilities, claims, losses, and expenses for which Seller may be required to indemnify Purchaser pursuant to this paragraph. If the Seller is providing service and installation, Seller acknowledges and agrees to maintain the following insurance coverage: (v) workers’ compensation insurance as required by law if performing work on the project site, (w) commercial general liability insurance on an “occurrence” basis covering bodily injury and property damages for not less than $1,000,000 per occurrence and $2,000,000 general aggregate, (x) automobile liability covering owned, non-owned and hired coverage with limits of liability of not less than $1,000,000 per occurrence (combined single limit for bodily injury and property damage), if performing work on the project site, (y) broad form property damage including completed operations, if performing work on the project site, and (z) other insurance coverage as required by law or otherwise reasonably required by Purchaser. Seller will notify Purchaser at least 30 days in advance of any changes to such coverages and/or notices of non-renewal or cancellation of such coverages. Purchaser shall be named as an additional insured under the commercial general liability policy and any excess liability policy and such insurance shall apply as primary insurance. 

13. Confidential and Proprietary Information. All disclosures, drawings, Specifications, patterns or other technical or business information furnished at any time to Seller by Purchaser shall remain the sole property of Purchaser, shall not be disclosed to any third party by Seller or used by Seller other than in the performance of its obligations under the Order without the prior written consent of Purchaser, and any and all copies thereof shall be returned to Purchaser promptly upon Purchaser’s request. Purchaser shall at all times be free to copy, reproduce and use, or permit the copying, reproduction or use of, any designs or patterns which it has made available to Seller. Without Purchaser’s prior written consent, Seller shall not advertise or publish the fact that Purchaser is using, has purchased or has contracted for the purchase of, the Goods & Services specified in the Order or otherwise disclose any information relating to the Order. 

14. Patent Rights. Patent rights to all improvements embodied in designs, tools, patterns, drawings, information and equipment supplied by the Purchaser under the Order and exclusive rights for the use and reproduction thereof, and all patent rights arising out of the performance under the Order shall accrue and be assigned to, and be owned by, Purchaser, and Seller shall execute and deliver all such instruments as may be necessary to effect or confirm such ownership in Purchaser. 

15. Force Majeure. Purchaser may delay the receipt or acceptance, or Seller the manufacture, distribution or delivery, of any of the Goods & Services if such delay is occasioned by governmental action, acts of God, an accident, strike, lockout or other labor dispute, or any other cause beyond the control of the party affected thereby. Seller’s obligations under the Order shall not be so suspended if it is able to supply such Goods & Services from a facility not affected by such cause. Notwithstanding the foregoing, in the event Seller is caused by force majeure to delay the manufacture, distribution or delivery of any Goods & Services, Purchaser shall have the right to cancel all or any part of the Order if in Purchaser’s judgment such cancellation is necessary to protect itself, including, without limitation, as necessary to enable Purchaser to terminate its obligations to third parties or to purchase similar Goods & Services elsewhere in order to meet its own requirements in the ordinary course of business. 

16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATION. PURCHASER’S LIABILITY TO SELLER ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THE ORDER OR FROM THE PERFORMANCE UNDER OR BREACH OF THE ORDER SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS & SERVICES (OR UNITS THEREOF) WHICH GIVE RISE TO SUCH CLAIM. IN NO EVENT SHALL PURCHASER BE LIABLE TO SELLER FOR ANTICIPATED PROFITS OR FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, NOR FOR PENALTIES OF ANY DESCRIPTION. ANY ACTION RESULTING FROM ANY BREACH OR FAILURE TO PERFORM BY PURCHASER UNDER THE ORDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. 

17. Assignments and Subcontracting. Seller may not assign or subcontract any part of the Order without the prior express written consent of Purchaser. 

18. Waiver. No waiver of any of the terms and conditions of the Order shall be effective unless in writing and signed by an authorized officer or authorized employee of Purchaser. No waiver of any breach of any terms or conditions of the Order shall be construed as a waiver of any subsequent breach of the term or condition or of another item or condition of the same or different nature. 

19. Changes. Purchaser shall have the right at any time before completion of all deliveries to be made by Seller under the Order, by written change or other notice of any kind, to make changes in drawings, Specifications, quantities, delivery schedules or methods of shipment or packaging on any Goods & Services. If Seller notifies Purchaser in writing, within (10) days of its receipt of such change order or other notice of change, of its desire to amend any of the terms of the Order in response thereto, then Purchaser and Seller shall attempt to negotiate an equitable adjustment of such terms as Purchaser and Seller may deem appropriate. Purchaser may, at its option, cancel the Order as to any Goods & Services not yet accepted if Purchaser and Seller cannot reach agreement on an equitable adjustment, such cancellation to be made pursuant to paragraph 2 (Termination). The Order, together with any change orders or instructions approved by Purchaser in writing constitutes one integrated agreement between Purchaser and Seller. 

20. Compliance with Applicable Law. By acceptance of the Order, Seller hereby warrants and represents to Purchaser that all Goods & Services delivered under the Order and Seller, in the installment or erection of the Goods & Services or otherwise, shall comply with all applicable federal, state, local and other governmental laws, regulations and orders, including without limitation, those regarding (a) safety, (b) content, (c) flammability, (d) weights, measures and sizes, (e) special use, care handling instructions or warnings, (f) processing, manufacturing, labeling, advertising, selling, shipping and invoicing, (g) registration and declaration of responsibility, and (h) occupational safety and health. 

21. Severability. Any part of the Order held to be invalid or unenforceable shall be deemed ineffective to the extent thereof without affecting the validity or enforceability of any other part of the Order. 

22. Governing Law. The Order shall be governed by and shall be construed in accordance with the laws of the State of Ohio, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. 

23. Arbitration. Any controversy or claim arising out of or relating to the Order or the performance or breach thereof shall be settled by arbitration conducted in Ohio in accordance with the Rules of American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties consent to the jurisdiction of the state and federal courts sitting in Ohio for all purposes in connection with such arbitration. The parties further consent that any process, notice of motion or other application to any such court, arbitral panel, judge or arbitrator may be served by registered mail or personal service in or outside the State of Ohio, provided a reasonable time for appearance is allowed, or in such other manner as may be allowed under the rules of such courts. 

AdeptAg – Terms & Conditions of Purchase last updated- 03/21/2025 v1.1