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Sales & Purchase Agreement


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Sales & Purchase Agreement


SCHEDULE A

FREIGHT FARMS TERMS AND CONDITIONS OF SALE

1. Certain Definitions. Freight Farms, Inc., a Delaware corporation, is referred to as “Supplier” or “Company”. “Conditions” means the terms and conditions of sale set out in this document and any other special terms and conditions agreed to in writing by an authorized officer of Supplier and Customer. “Contract” means, collectively, an Order and/or a Sales and Purchase Agreement that is accepted by Supplier, these Conditions and any other Schedules referenced in this document relating to the purchase of the Products and/or Services. “Customer” means the organization(s) that buy(s) or agree(s) to buy the Products and/or Services, and/or license the Software from Supplier under a Contract. “Excluded Use” means any use of product and/or services that will not result in the legal growth and production of consumable produce or is otherwise outside of Supplier’s specifications for the Products. “Order” means an order for Products and/or Services signed by the Customer. “Products” means the instrumentation and Software that Supplier is to supply to the Customer in accordance with the Contract. “Services” means services performed by Supplier pursuant to a definitive contract between the parties. “Software” means any software embedded within, or distributed by Supplier for use in connection with, the Products. “System” means the Product, subscription materials and equipment control settings, in each case as supplied and configured by Supplier under the Contract.

2. Quotation and Pricing. If a written quotation for Products or Services is issued by the Company, such quotation shall be regarded as provisional and may be changed at any time prior to the Company’s written acceptance of an Order. Company reserves the right to reject Orders for any reason. The costs of packing, shipping, insurance, taxes, duties, and other related fees are not included in quoted Product prices; such costs will be quoted on a case by case basis, and are the responsibility of Customer, and if paid by Company will be separately itemized in billings to the Customer. Before or after acceptance of an Order, Company may, without approval from or notice to Customer, make Products changes that do not adversely affect performance or function. Any certificate of exemption or similar document or proceeding required to exempt the sale of Products or Services from sales or use tax liability, shall be obtained by the Customer, at its expense. The publication of Supplier’s price list does not constitute an offer to sell or license at those prices.

3. Purchase and Payment. Customer agrees to buy, lease or license the Products and related optional Services in accordance with these Conditions. Payment for the Products is due according to the schedule outlined in the Contract.

If payment is not received within 48 hours of the due date outlined in the Contract if remitted by electronic payment, or within 3 business days if remitted by paper check, Supplier may assess, and Customer agrees to pay, a late payment charge at the rate of 1.5% per month (18% annualized) or the maximum legal rate, whichever is less, of any overdue amount from the due date to the date of receipt by Supplier.

Notwithstanding the above, in the case that Customer does not submit any Payment for Products within 90 days of its due date, Company may, in its sole discretion, cancel the Contract, and given the difficulty in estimating and defining damages, the Customer agrees to forfeit all amounts previously paid for such Products and/or Services as liquidated damages, in addition to any and all other remedies available to Supplier.

Customer agrees to timely pay all costs of collection, including without limitation reasonable attorney’s fees, incurred in the collection of payment in connection with the Contract.

4. Software License; Restrictions. With respect to any Software provided by Supplier under any Contract, Customer and Supplier intend and agree that such Software is being licensed and not sold, and that the words “purchase”, “sold” or similar or derivative words are understood and agreed to mean “license” and that the word “Customer” or similar or derivative words is understood and agreed to mean “Licensee”. Customer is hereby granted by Supplier a royalty-free, nonexclusive, limited license (“License”) to use the Software solely in connection with use of the hardware components of the Products. The License may not be transferred, permitted, sublicensed or assigned.

5. Software Updates and Upgrades. Software Upgrades are defined as providing additional features or functionality, and Software Updates are defined as modifications to correct system operation and functions. Supplier, at its sole option, may issue Software Updates at no cost to Customer, and may offer Software Upgrades for license to Customer at Supplier’s then current list prices. Other than as set forth in the Contract, Supplier shall not be obligated to provide Software Updates or Software Upgrades to Customer.

6. Intellectual Property of the Company or Third Parties.

A. Ownership. All patent, copyright, trademark, or other intellectual property rights in the Products, Software and Services are and shall remain exclusively vested in Company and nothing in these Conditions or the Contract shall be construed as granting to Customer any ownership rights, any right of manufacture of the Products or, other than as expressly set forth in the Contract, any rights to such intellectual property rights. In any cases where Customer supplies other designs or specifications to Supplier to enable it to manufacture nonstandard or bespoke Products or Software, Customer warrants that such manufacture will not infringe the intellectual property rights of the Company or any third party and will indemnify and hold Company harmless from any third-party infringement claims arising therefrom. The purchase of Products hereunder does not confer on Customer any rights or licenses under any of Supplier’s patents other than the implied license to use such Products. Customer must obtain a separate license directly from the licensor of any software or other intellectual property in addition to the Software that Customer desires to utilize in connection with the Products. Title to and ownership of all derived data remains solely and exclusively with Company.

B. Modifications. Customer agrees that it will not copy, alter, adapt, improve, modify, decode, decompile, disassemble, reverse engineer, or otherwise attempt to derive or obtain information about the functioning, manufacture or operation of the Products and Software, reproduce, disclose, publish, and/or provide third party access to any Products or Software, in whole or in part, to facilitate any such activities. Customer further agrees that it will not sell, license, disclose or otherwise distribute any data, or assist any third-party with respect to the foregoing, resulting from use of the Products, unless expressly authorized, pursuant to a subsequent written addendum to these Conditions signed by Supplier. Customer agrees that the obligations in this paragraph shall survive termination of the Contract for any reason.

C. Unauthorized References to Company Intellectual Property. Customer agrees not to make any public references to the Products, Software and Services, including but not limited to, in public announcements, press releases, websites, blogs, pamphlets, promotional and marketing materials, and advertisements that expressly state, implicitly suggest, or can be readily construed as indicating the Products, Software and/or Services have been developed and/or are being made and/or marketed and sold by Customer. “Freight Farms” and “Farmhand” are trademarks of the Company and accordingly any use or representation, other than that expressly permitted by the Contract, is hereby prohibited without the Company’s prior written consent.

D. Use of Data. Customer agrees not to collect or otherwise use any data or information of any kind generated from the Products, Software and/or Services except in connection with the Products and/or Services without the prior written consent of Supplier.

7. Risk of Loss and Delivery. Delivery of Products shall be to the Customer location set forth in the Contract, EXW Supplier’s dock (Incoterms 2010), freight prepaid upon transfer to a common carrier, unless otherwise stated in an accepted Order. When the Products leave Supplier’s dock, (a) risk of loss or damage to the Products shall pass to Customer, and (b) except for title to the Software, which shall remain with Supplier at all times, title to the Products shall pass to the Customer.

Prices for Products exclude all packing, shipping, insurance, taxes, fees, duties, and levies, all of which shall be paid by Customer (or if paid by Supplier, separately invoiced to Customer and reimbursed by Customer to Supplier). Unless Supplier receives specific shipping instructions from Customer, Supplier will exercise its discretion in selecting the method of shipment and the carrier. Supplier or its representative may make partial deliveries. Supplier will use commercially reasonable efforts to meet scheduled delivery dates. If Customer elects for the Supplier to arrange shipping and delivery, the Company requires thirty (30) days lead time from the date of payment for shipping to coordinate delivery of Products. In such event, shipping and delivery costs will be invoiced separately from the Contract. If Customer is unable to accept delivery on or before the scheduled delivery date and completed Product, Customer will promptly reimburse Supplier for all costs of storage, to be billed at a rate of $200/month. Customer will bear full responsibility for all necessary site preparations and for installation of the Products at Customer’s site. Supplier will assist in this preparation to the extent reasonably possible. Without limiting Customer’s rights pursuant to the warranty set forth in the Contract, the Products will be deemed accepted when they departs the Supplier’s dock. Any shipments will not be made until all terms and payments per the Contract have been met.

8. Confidential Information. Customer acknowledges that, in connection with the Contract and its relationship with Supplier, Customer may obtain information relating to the Products and/or Services, Software or to Supplier itself, which is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information includes, but is not limited to, trade secrets, knowhow, inventions, techniques, processes, programs, schematics, the Software, software documentation, data, customer lists, financial information, intellectual property, growth strategy or sales and marketing plans or information. Customer agrees and acknowledges that the internal design of the Products is the Confidential Information of the Company; Customer shall limit third party access to this Confidential Information of the Product. Customer shall at all times keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by the Company under the Contract, nor shall Customer disclose any such Confidential Information to any third party without Company’s written consent. Customer shall limit the disclosure of the Confidential Information to the employees of the Customer who have a need to know and said employee and third parties are hereby bound by the same or no less restrictive Confidential Information restrictions and provisions as the Customer and contained within the Contract.

9. Customer Indemnity. Customer shall indemnify and hold harmless Supplier in respect of any claim which may be made against Supplier (a) arising in connection with any breach by Customer of any provision, term or condition contained in the Contract, including any breach of any representation or obligation therein; (b) arising from any Excluded Use by Customer of the Products, Services and/or Software; and/or (c) arising out of a failure by Customer to observe the terms of the Contract.

10. Termination and Default. If Customer breaches any terms or conditions of the Contract, Customer shall cure or remedy said breach within thirty (30) days following written notice of such breach by Supplier. If Customer fails to cure such breach within said cure period, Supplier may, without limiting its other legal or equitable remedies, terminate or suspend any or all of its obligations and Customer licenses under the Contract.

11. Limited Warranty. Subject to the limitations set forth elsewhere within the Contract, Supplier warrants exclusively to Customer that for a period of ONE (1) year from delivery of the Products (the “Warranty Period”), that the Product, under normal use and conditions, will operate in material conformance with applicable Supplier specifications or standards that are current at the date of the Contract. Customer’s exclusive remedy for breach of warranty concerning Products will be repair or replacement of the defective portion thereof or a refund to Customer, in Supplier’s sole discretion. Parts or components may be replaced as deemed necessary solely at Supplier’s discretion, with the returnable part or components becoming the property of Supplier. Supplier would be responsible for any transportation and disposal of these parts within the Warranty Period. External Warranties may apply to components past the Warranty Period with manufacturers. It is the responsibility of the customer to register these products and claim any warranties necessary outside of the 1-Year Freight Farms Warranty Period directly with the manufacturer

A. During the Warranty Period, Supplier will provide Software Updates to Customer, as may be mutually agreed from time to time, to address material software defects at no charge. Supplier does not warrant that Products will work in combination with third party hardware or software, operate uninterrupted or error free or that nonmaterial defects will be corrected.

THIS WARRANTY DOES NOT APPLY TO ANY DEFECT CAUSED BY FAILURE OF CUSTOMER OR ITS AGENTS TO PROVIDE A SUITABLE OPERATING ENVIRONMENT, ANY OTHER EXCLUDED USE, OR ANY OTHER ABUSE, MISUSE, MODIFICATION OR NEGLECT OF THE PRODUCTS BY CUSTOMER OR ITS AGENTS.

12. Warranty and Remedy Limitations. The warranties and remedies listed within the Contract are exclusive, nontransferable, and effective only with respect to the original purchaser of any Products. THE WARRANTIES AND REMEDIES DO NOT APPLY TO ANY PRODUCT OR ANY PART THEREOF THAT (A) HAS NOT BEEN INSTALLED, SERVICED, MAINTAINED, OR UPGRADED (INCLUDING ALL SOFTWARE AND FIRMWARE ASSOCIATED WITH IT) PURSUANT TO THE MANUFACTURERS’ RECOMMENDATIONS OR SPECIFICATIONS OR AS REQUIRED BY COMPANY OR EXTERNAL INDUSTRIAL CODES; OR (B) HAS BEEN DAMAGED BY ACCIDENT, SHIPMENT, HANDLING, ABUSE, MISUSE, MODIFICATIONS, MISAPPLICATION, OR A FAILURE TO EXERCISE DUE CAUTION IN CLEANING, MAINTENANCE, OR OPERATION. Exterior non-functional elements and aesthetic elements of the Products may be replaced as deemed necessary in Supplier’s sole discretion. Customer will give notice of warranty failure within a reasonable period of time during the Warranty Period to prevent latent sequential failure. The Company and its Suppliers are not obligated to provide service, upgrades, updates, improvements, or enhancements to Company’s Products beyond those set forth in the Contract.

EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 11, TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ITS SUPPLIERS, LICENSORS, AND REPRESENTATIVES SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING,BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SAMPLES PREVIOUSLY PROVIDED, SECURITY (OF CONNECTION, ACCESS, OR DATA), OR COURSE OF DEALING. DUE TO THE COMPLEX NATURE OF COMPUTER SOFTWARE, SUPPLIER DOES NOT WARRANT THAT THE SOFTWARE IS COMPLETELY ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS.

13. Disclaimer and Limitations on Damages.

A. Customer agrees that in no event will Company or its suppliers, licensors, or representatives be liable to Customer or anyone else, for indirect, special, incidental, punitive, or consequential damages or for lost profitsts or revenue, loss of use of the products or related materials, loss of data, the cost of recovering such products, related materials or data or, the cost of any substitute products or materials, arising from any breach of the Contract, or the sale, license, use of, or inability to use the products, or related materials, even if advised of the possibility of such damages, regardless of the form of action, whether contract, tort (including negligence), strict product liability, or otherwise.

B. Customer agrees that in no event will Company or its suppliers, licensors, or representatives be liable to Customer or anyone else, for any damages incurred by improper or incorrect use of the Products or Service in growing, harvesting, buying, selling and/or consuming crops.

C. CUSTOMER AGREES THAT IN NO EVENT SHALL SUPPLIER’S AGGREGATE LIABILITY ARISING IN CONNECTION WITH A PRODUCT OR SERVICE EXCEED THE PURCHASE PRICES ACTUALLY PAID TO SUPPLIER UNDER THE CONTRACT IN RESPECT OF SUCH PRODUCT OR SERVICE.

14. Liability. The remedies set forth in the Contract are the sole and exclusive remedies for any breach of any obligation by the Company or its suppliers, licensors, or representatives.

15. Force Majeure and Allocation. If either party’s performance under the Contract (except payment of monies due) is prevented, restricted, or interfered with by reason of casualty, accident, fire, strikes or labor disputes, terrorist acts, inability to procure materials or components, power or supplies, war or other violence, compliance with any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency or intergovernmental body (including, without limitation, those related to infringement), production delays, or any other act, circumstance, or condition whatsoever beyond such party’s or its suppliers’ or licensors’ reasonable control, the party whose performance is prevented, restricted, or interfered with, upon notice to the other party, shall be excused from such performance to the extent of such prevention, restriction, or interference. Supplier may allocate its available supply of Products among any or all of its customers, including the internal requirements of Supplier and its affiliates, on such basis as it may deem fair and practical, without liability for any failure to comply with the provisions of the Contract.

16. Export. The Products and Software may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer must comply strictly with all such regulations that are now or later in effect. Customer certifies that it will not export or re-export the Products or Software furnished within the Contract unless it complies fully with all laws and regulations relating to such export or re-export, including but not limited to the customs and export control laws and regulations of the United States and the country in which the Products or Software are received. Customer acknowledges that it is Customer’s sole responsibility to comply with and abide by those laws.

17. Modifications. The Contract may only be modified by a written amendment or agreement signed by authorized representatives of Supplier and Customer. Any and all proposed modifications to Products and Services contained in an Order must be approved by Supplier and added as an Exhibit to the Contract.

18. Severability. If any provision of the Contract is found to be unenforceable, the remaining provisions shall remain in full force and effect, and any unenforceable provision shall be replaced by a legally effective provision that comes as close as possible to the purpose of the unenforceable provision. In the event of a conflict between an Order, Sales and Purchase Agreement and/or these Conditions, any such conflict shall be resolved in the following order of procedure: the Sales and Purchase Agreement, these Conditions, and such Order, unless such Order expressly states and identifies which provisions of the Sales and Purchase Agreement and/or these Conditions shall control and take precedence.

19. Environmental. Customer shall be solely responsible and Supplier shall have no responsibility for (1) properly disposing of wastes, spent materials, and other materials constituting or used in connection with the Products, and (2) personal injury or property damage resulting from or alleged to result from the improper use of the Products or the use of non-supplier authorized materials in conjunction with the Products, including, without limitation, material introduced into the Products by the Customer.

20. No Waiver. Failure on any occasion by either party to enforce any term of the Contract shall not prevent enforcement on any other occasion. If any provision of the Contract is held by a court of law to be legally unenforceable, all other provisions shall remain in full force and effect.

21. Notices. All notices and other communications having material impact or effect to the Contract shall be in writing and shall be sent by email or registered mail (with proof of response) to the parties’ respective addresses set forth on the Contract, subject to the right of either party to change its address by written notice to the other party.

22. Governing Law. The Contract is made in, governed by and shall be construed in accordance with the laws of the Commonwealth of Massachusetts without reference to its principles of conflict of laws to the extent such principles would apply to the laws of any other jurisdiction. Customer consents to the exclusive personal jurisdiction and venue of the courts of the Commonwealth of Massachusetts for all litigation which may be brought with respect to or arising out of the terms of and the transactions and relationships contemplated by these Conditions. The parties hereby expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Products.

23. Priority. The Terms provided within the Contract shall supersede any prior agreements, understandings, oral agreements, or other contracts in place between the parties.

24. Terms of Sale. The sale or license of the Products as described in the Order shall be governed by these Conditions. Supplier’s offer to sell the Products or Services or license the Software to Customer is expressly limited by Customer’s total acceptance of these Conditions, and Customer accepts, without qualification, these Conditions upon any one of the following: (i) Customer signs a Contract for the purchase of the Products; (ii) Customer accepts any of the Products under the Contract; or (iii) Customer pays for any of the Products under the Contract. Any additional, contradictory, or different terms or conditions proposed by Customer shall be void and of no effect unless Supplier specifically identifies and accepts such terms and conditions in writing. Subject to the terms and conditions included in the Contract, the Order, and these Conditions shall be the exclusive agreement between Supplier and Customer for the sale of the Products. Customer reaffirms understanding that these Conditions shall prevail over anything inconsistent in any of these other documents. Agents and sales representatives of Company have no authority to make any representation that is not included here or is different or contradictory to what is included here, and Customer should not rely upon any such representation.

25. General Conditions of Sale. Supplier shall sell and the Customer shall purchase the Products and Services in accordance with an Order of the Customer that is accepted by Supplier, subject to these Conditions. The Contract, along with its related Schedules and Exhibits constitutes the entire agreement between the parties and supersedes all previous communications, whether oral or written. Any change to the Contract may be made only upon mutual agreement of Company and Customer in writing and signed by an authorized officer of both parties.

The Contract is not assignable by Customer and any attempt to assign any rights, duties or obligations of the Company to a third party shall void the Contract. These Conditions and the Contract shall be binding on each party’s successors and assigns.

No Order which has been accepted by Supplier may be canceled by the Customer except with the agreement in writing of Supplier and on terms acceptable to Supplier. Customer shall indemnify Supplier in full against all losses (including consequential loss), costs, damages, charges and expenses incurred by Supplier as a result of such cancellation.

26. Equitable Remedies. Customer recognizes and agrees that Customer’s breach of this Agreement may cause irreparable injury to the Company for which it may not have an adequate remedy at law, and that any actual or threatened breach of this Agreement will entitle the Company to seek immediate injunctive relief prohibiting such breach, in addition to any other rights and remedies available to it.

[END OF SCHEDULE A]