Terms of Sale

STANDARD TERMS AND CONDITIONS OF SALE

The following Standard Terms and Conditions of Sale (the “Terms of Sale”) govern the sale by Advanced Nutrients Ltd. and its affiliates, including without limitation Advanced Nutrients US LLC, Applied Science, Inc., Advanced Nutrients, Inc., and/or Advanced Nutrients SP, S.L. (individually or collectively, “Advanced Nutrients”) through its distributors (each a “Distributor” and, together with Advanced Nutrients, the “Seller”) to any purchaser, customer and/or end user (a “Buyer”) of Advanced Nutrients’ products (the “Products”) including without limitation a Distributor. These Terms of Sale shall be deemed consistent with Distributor quotes or invoices, and any Distributor terms and conditions (collectively, “Distributor Terms”) consistent with these Terms of Sale. These Terms of Sale shall supersede and govern over any conflicting Distributor Terms. By ordering Products from Seller or Distributor or by signing below, Buyer agrees to be bound by these Terms of Sale.

1. Pricing. Prices may be changed upon written notice to Buyer prior to shipment, including without limitation to reflect any increase in Seller’s cost of raw materials prior to order fulfillment. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively, “Taxes”). Any Taxes related to the Products purchased pursuant to this Agreement are Buyer’s responsibility of Buyer (excluding taxes based on Seller’s net income), unless Buyer presents an exemption certificate acceptable to Seller and the applicable taxing authorities.
2. Credit Terms. If Seller allows payment after Product delivery, Seller’s credit terms for each sale to Buyer are net thirty (30) days from the date of invoice, unless otherwise stated on Seller’s invoice (“Credit Terms”). Any dispute with respect to an invoice, statement, charge or credit on Buyer’s account, must be received by Seller, in writing, within ten (10) business days of Buyer’s receipt of such invoice, statement, charge or credit, or Buyer waives any such dispute. Seller shall have the sole right to determine the application of payments made by Buyer. Any failure to pay any amounts pursuant to the Credit Terms shall allow the Seller, at its sole discretion, to require Buyer to prepay any and all future orders, in addition to all other remedies available to Seller (which Seller does not waive by the exercise of any rights hereunder).
3. Payment. All amounts due either party hereunder shall be paid in Canadian Dollars (CAD) unless otherwise agreed in writing. All amounts owed to Seller shall be paid by wire transfer of immediately available funds or other means acceptable to Seller in its sole discretion. Buyer shall pay for Product in full prior to delivery, unless provided otherwise. No sales on consignment shall be permitted without Seller’s specific written approval.
4. Failure to Pay. If Buyer fails to pay any amount for any Products, including pursuant to Section 2 and 3 of these Terms of Sale, any such unpaid amounts will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Seller’s reasonable costs of collection. Seller reserves all other rights granted to a seller under the Uniform Commercial Code (“UCC”) and/or Personal Property Security Act (“PPSA”) and/or Civil Code of Quebec (“CCQ”) for Buyer’s failure to pay for the Products or any other breach by Buyer of these Terms. In addition to all other remedies available to Seller (which Seller does not waive by the exercise of any rights hereunder), Seller may suspend the delivery of any Products if Buyer fails to pay any amounts when due and the failure continues for five (5) days following Buyer’s receipt of notice thereof. Buyer’s obligation to pay when due is absolute and may not be set off against any other amounts or withheld for any other reason.
5. Product Delivery. Unless otherwise agreed in writing, Products shall be delivered Incoterms Ex Works (EXW) Seller’s designated plant, storage or loading facility, or terminal as applicable. Risk of loss or damage to the Products passes to Buyer upon delivery to a carrier unless otherwise specified in writing.
6. Deviations. Buyer shall inspect the Products upon delivery and notify Seller with reasonable particularity as soon as practicable, but no later than 10 days after delivery, of any Product quantity or type that does not conform to Buyer’s order or applicable Product specifications (each a “Deviation”). Buyer shall be deemed to have accepted any Products for which Buyer has not provided a notice of Deviation. Buyer shall make any Products that it alleges do not conform to Buyer’s order or Product specifications available to Seller for its own investigation. Buyer waives any right to make a claim for Deviations or Product refunds or returns which are not made in accordance with these Terms.
7. No Implied Warranties. SELLER DISCLAIMS ALL IMPLIED WARRANTIES AND SIMILAR OBLIGATIONS INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY, WHETHER OTHERWISE ARISING BY LAW, CUSTOM, USAGE, TRADE PRACTICE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. There are no warranties which extend beyond the express warranties contained in these Terms of Sale, if any. Buyer affirms that Buyer is an agricultural professional and has not relied upon Seller’s skill or judgment, or representations not contained in these Terms of Sale, to select or furnish the Products for any particular purpose beyond the specific express warranties (if any) included in these Terms of Sale. Seller does not warrant that the Products will comply with the requirements or specifications for a particular purpose, or technical standards, or safety or environmental code, or regulation of any federal, state, city, municipality or other jurisdiction beyond the specific express warranties (if any) or other express terms in these Terms of Sale.
8. No Guarantee as to Results. BUYER ACKNOWLEDGES THAT PLANT NUTRIENTS ALONE CANNOT GUARANTEE SUCCESSFUL CROP GROWTH. Any individual plant or crop’s development, such as its it susceptibility to or transmission of disease, or its weight, volume or content, are affected by many variables, including without limitation plant genetics, ambient light, pollination, weather, water quality, soil composition, microorganisms, and/or pest infestation. In particular, Buyer acknowledges that Cannabis sativa L. also has a known tendency to cross breed and/or generate spontaneous hermaphrodites. SELLER CANNOT CONTROL SUCH CULTIVATION VARIABLES, AND WILL NOT BE RESPONSIBLE FOR SUCH CAUSES, OR THEIR EFFECTS ON PLANT GROWTH OR RESULTS.
9. Assumption of Risk. BUYER ASSUMES ALL RISK AND LIABILITY FOR THE USE OF THE PRODUCTS, WHETHER SINGLY OR IN COMBINATION WITH THIRD PARTY PRODUCTS OTHER SUBSTANCES, INCLUDING PROPAGATION MATERIALS, AND FOR LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF THE USE OR POSSESSION OF THE PRODUCTS.
10. Sole Remedy for Breach; Limitation of Liability. Buyer’s sole remedy for any claims arising out of or relating to a breach or alleged breach of any Product warranties shall be limited to replacement of the nonconforming Products or refund of the amounts already paid by Buyer with respect to the nonconforming Products, as determined by Seller. In no event shall the total liability of the Seller to the Buyer for all damages, losses, or causes of action, whether by statute, in contract, in tort (including negligence) or otherwise, exceed the purchase price paid for the Products. In no event shall Seller be liable to Buyer for any special, economic, indirect, incidental or consequential damages incurred by the Buyer including, but not limited to, loss of profit or revenue, loss of use, loss of markets, loss of opportunity, or the cost of substitute Products.
11. Indemnification. Buyer shall defend, indemnify, and hold harmless Seller, its affiliates, successors, and assigns, and their respective directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) (collectively, “Claims”) arising out of or occurring in connection with any negligence, willful misconduct or violation of law by Buyer or its employees, agents or affiliates (collectively, “Buyer”), including but not limited to: (i) any Buyer misuse or modification of the Products; (ii) any Buyer act or omission in contravention of any safety procedures or instructions relevant to the Products that may be required by law or that Seller may provide, or (iii) Buyer’s failure to store, install, operate, or maintain the Products in accordance with Seller recommendations, or standard agricultural practice.
12. General Release; No Future Claims. The parties agreed that these Terms of Sale shall be given full force and effect in accordance with each and all of the terms and provisions hereof, with respect to all current or potential Claims, including, without limitation, all known and unknown Claims reasonably ascertainable upon Buyer’s receipt of any Products delivered. Buyer hereby waives on behalf of his/her/its heirs, agents, affiliates, representatives, and assigns any and all such Claims, as well as the effect of any law regarding such waivers or general releases of claims, including without limitation California Civil Code Section 1542, or any other similar applicable law regarding general releases, and all of the rights and benefits conferred thereby, to the greatest extent permitted by law.
13. Confidentiality. These Terms of Sale are subject to any non-disclosure agreement between Buyer and Seller (the “NDA”) existing as of the date of any Product order. If no NDA has been executed, Buyer and Seller shall proceed as follows. All non-public, confidential, and/or proprietary information of Seller, including but not limited to Product specifications, samples, patterns, designs, plans, drawings, or other Seller documents, data, business operations, or Product pricing, discounts or rebates that Seller discloses to Buyer, whether orally or in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Agreement shall be confidential, solely for the use of performing the Agreement, and may not be disclosed, copied, misappropriated or used for any other purpose other than plant cultivation without Seller’s prior written consent. Upon Seller’s request, Buyer will promptly return all documents and other materials received from Seller. Seller will be entitled to injunctive or equitable relief for any violation of this section, without having to post bond or establish the insufficiency of a remedy at law. Buyer’s Product orders under these Terms of Sale shall be held confidential by Seller and shall not be disclosed or used for any other purpose other than calculating Buyer pricing or forecasting Product demand and production planning. This section shall not apply to information that is: (a) in the public domain; (b) known to Buyer or Seller at the time of disclosure; (c) rightfully obtained by Buyer or Seller on a non-confidential basis from a third party; or (d) subject to production compelled by legal process, including without limitation a subpoena; provided, prior to any such production the party to be charged with same shall give the other notice of such production and the opportunity to apply for protective orders.
14. Force Majeure. Seller will not be liable for any failures or delays caused by strikes, boycotts, or any causes beyond the reasonable control of Seller, including but not limited to fires, floods, accidents, action of any governmental authority, war, epidemics insurrection or riots, abnormal weather or other “Acts of God”, or shortages of labor, energy, raw materials, production facilities, or transportation. If by reason of any such circumstances, Seller’s supply of Products is insufficient to meet all of its delivery requirements, Seller shall have the right, at its option, and without liability to Buyer, to apportion its available Products among any and all parties to which it is obligated to make deliveries, in such manner as Seller reasonably believes fair and equitable.
15. Passage of Title and Security Agreement. In order to provide security for the payment of the full price of materials furnished hereunder, Buyer grants Seller a first priority purchase money security interest in and to any and all materials sold by Seller to Buyer (and all products and proceeds thereof) until paid in full. Buyer authorizes Seller to file and shall cooperate with filing a UCC/PPSA/CCQ financing statement to perfect this interest.
16. Entire Agreement. These Terms of Sale (including any Distributor Terms) constitute the entire understanding between the parties with respect to the subject matter hereof, and there are no representations, warranties, covenants, agreements or collateral understandings, oral or otherwise, expressed or implied, affecting, modifying, or superseding these Terms of Sale which are not expressly set forth herein.
17. Amendments. These Terms of Sale may not be altered, supplemented or amended by any written offer, purchase order or similar Buyer document. Any attempt by Buyer to alter, supplement or amend these Terms of Sale or to enter into an order for Products that is subject to additional or altered terms and conditions shall be null and void unless otherwise agreed to in a written agreement signed by both the Buyer and the Seller. Seller may change these Terms of Sale at any time with respect to any Buyer orders which have not been accepted by Seller in writing.
18. Severability. The invalidity or unenforceability of any provision of these Terms of Sale shall not affect the validity or enforceability of any other provision, and any such invalid or unenforceable provision shall be deemed to be severable.
19. Governing Law. All matters arising out of or relating to these Terms of Sale are governed by and construed in accordance with the internal laws of the State of California without giving effect to any provision or rule of choice or conflicts of law (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. In particular, these Terms of Sale shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG). This Agreement and the provisions contained herein shall not be construed or interpreted for or against any Party hereto because said Party drafted or caused the Party’s legal representative to draft any of the provisions. Any such action shall be brought before a court of competent jurisdiction in Los Angeles, California, subject to the conditions of Section 20.
20. Arbitration. Any controversy or claim arising out of or relating to these Terms of Sale, or the breach thereof, except any injunctive or equitable relief sough pursuant to Section 13 hereto, shall be settled by arbitration administered by the JAMS or Judicate West pursuant to their commercial arbitration rules. The arbitration hearing shall take place in Los Angeles, California before a single arbitrator. Any award by an arbitrator shall provide the arbitrator’s reasoning for such an award in writing. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, then the arbitrator shall award to that party its reasonable out-of-pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorney’s fees and legal costs. The arbitration proceedings and arbitration award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate, or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management.