1. Offer and Acceptance, Buyer.

These Terms and Conditions of Sale (the “Terms and Conditions”), together with the terms on the document into which these Terms and Conditions are incorporated by reference, any agreed upon attachments hereto and any documents expressly referenced herein (collectively, this “Contract”) constitute the complete and entire agreement between Plant Response, Inc., d/b/a Mosaic Biosciences (“Supplier”) and the buyer to whom it is addressed (“Buyer”) in accordance with its terms, and none of the general terms and conditions set forth in any purchase order or in any invoice, acknowledgement form, or any other documentation issued by Buyer shall apply. Supplier offers to sell to Buyer and Buyer is willing to purchase from Supplier the products and/or services identified in this Contract (collectively “Products”).

 

Neither the sales confirmation from Supplier nor these Terms and Conditions shall constitute an acceptance of any offer made by Buyer. If, notwithstanding the foregoing, any acceptance of an offer by Buyer is deemed to be made hereby, such acceptance is expressly conditioned on Buyer’s assent to these Terms and Conditions. Supplier hereby objects to any additional or different terms that may be contained in any of Buyer’s purchase orders or other forms, or in any other material received from Buyer. All inconsistent or additional terms, modifications or changes are material, are expressly rejected, and do not form a part of the Contract unless Supplier expressly agrees to such terms in writing. No order is binding on Supplier until accepted by Supplier and such acceptance is limited to these Terms and Conditions. This Contract may be amended, modified, or supplemented only in a writing signed by an authorized representative of Supplier. This Contract supersedes any prior contracts, proposals, understandings, offers or course of conduct, performance or custom of trade existing with respect to the subject matter of this Contract, other than (i) a written confidentiality agreement, or (ii) another written agreement that is specifically negotiated between the parties and signed by each party that is in effect at the time of purchase and specifically covers the Products to be purchased hereunder (excluding any click-through agreements, purchase orders, bids, offers, or other similar documents).

 

2. Quotations, Pricing, Changes.

Unless otherwise agreed in writing, prices quoted by Supplier shall be firm for 30 days after the date appearing on the quotation, or if no quotation is issued, the price shall be the price set out in Supplier’s price list then in effect. Prior to shipment, any quotation or price list is subject to change by Supplier at any time upon verbal or written notice to Buyer. Supplier reserves the right to make any changes or corrections to prices quoted upon written notice to Buyer or due to clerical errors or errors of omission. Unless otherwise stated in the Contract or agreed in writing, all prices are in U.S. Dollars and prices for Products do not include any federal, state, provincial, or local taxes and import duties.

 

3. Payment Terms; Invoice; Setoff.

Terms of payment are net 30 days from the date of invoice. Buyer agrees to pay interest on overdue invoices at one and one-half percent (1.5%) per month. All shipments shall at all times be subject to the approval of Supplier’s credit department. If Buyer is in default under any contract with Supplier or if, in Supplier’s sole judgment, the financial responsibility of Buyer is or becomes unsatisfactory, then Supplier may at its option and without prejudice to any of its other remedies (i) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, (ii) deduct any amount owed by Buyer or any of its affiliates to Supplier or its affiliates from any amount payable to Buyer by Supplier or its affiliates, or (iii) terminate any order of goods or services that may have been placed by Buyer. Buyer shall reimburse Supplier for any costs incurred by Supplier, including reasonable attorney’s fees, to collect amounts due by Buyer to Supplier.

 

4. Security Interest.

Supplier retains, and Buyer hereby grants to Supplier, a purchase money security interest under applicable laws in the Products until payment in full has been made. In the event of default by Buyer under this Contract, Supplier shall have all the rights and remedies of a secured creditor under applicable laws. Buyer authorizes Supplier to prepare any such financing statements and other documents as Supplier may require in order to perfect Supplier’s security interest.

 

5. Delivery & Risk of Loss.

Unless otherwise agreed in writing, delivery term is FCA (Incoterms 2020) Supplier’s Facility. Buyer will bear all risk of loss once Products are delivered to the carrier at Supplier’s Facility. Unless otherwise agreed in writing by the parties, Supplier reserves the right to select the mode of transport and the identity of the carrier. The delivery date provided by Supplier is only an estimate and is based upon prompt receipt of all necessary information from Buyer. Delivery times may vary depending on available production capacity and material availability. Supplier will not be responsible for any delays, loss or damage in transit or failure to deliver within the time estimated, and none of delays, loss or damage in transit or failure to deliver within the time estimated will be a breach of Contract on Supplier’s part. Under no circumstances shall Supplier have any liability for penalties or other consequential damages of any kind resulting in whole or in part from Supplier’s delay in delivering, or failure to deliver, any Products to Buyer as agreed.

 

6. Warranty; Disclaimer.

The directions for use that accompanies the Product (“Directions for Use”) must be followed carefully. However, it is impossible to eliminate all risks inherently associated with the use of this Product, including but not limited to risks that may arise from weather conditions, soil factors, unconventional farming techniques, the presence of other materials, the manner of use or application, incompatible products, or other influencing factors all of which are beyond the control of Supplier and can cause crop injury, injury to non-target crops, plants, or soil, ineffectiveness of the Product, or other unintended consequences. All such risks shall be assumed by the user and Buyer. Supplier warrants that this Product conforms to the chemical description and specifications on the label and is reasonably fit for the purposes stated in the Directions for Use, when used in accordance with the Directions for Use under normal conditions, subject to the inherent risks referred to above. This limited warranty does not extend to the use of this Product contrary to label instructions or under abnormal conditions or other conditions not reasonably foreseeable to or beyond the control of Supplier, and the Buyer and/or user assume the risk of any such use. Buyer shall promptly notify Supplier of any claim that the Product does not conform to the warranty set forth in this Section.

 

TO THE EXTENT CONSISTENT WITH APPLICABLE LAW, SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT CONSISTENT WITH APPLICABLE LAW, SUPPLIER, MANUFACTURER, AND SUPPLIER DISCLAIM AND SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT, INCLUDING RESULTING FROM THE USE, HANDLING, APPLICATION, STORAGE, OR DISPOSAL OF THIS PRODUCT OR FOR DAMAGES IN THE NATURE OF PENALTIES, AND BUYER WAIVES ANY RIGHT IT MAY HAVE TO SUCH  DAMAGES. NO AGENT, REPRESENTATIVE OR EMPLOYEE OF SUPPLIER IS AUTHORIZED TO MAKE ANY WARRANTY, GUARANTEE OR REPRESENTATION BEYOND THOSE CONTAINED HEREIN OR TO MODIFY THE WARRANTIES AND DISCLAIMERS CONTAINED HEREIN. TO THE EXTENT CONSISTENT WITH APPLICABLE LAW, THE EXCLUSIVE REMEDY OF THE BUYER, AND THE TOTAL LIABILITY OF SUPPLIER AND MANUFACTURER FOR LOSSES OR DAMAGES RESULTING IN ANY WAY FROM THIS CONTRACT OR THE PRODUCT (INCLUDING CLAIMS BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHER LEGAL THEORIES) SHALL BE LIMITED TO, AT SUPPLIER’S ELECTION, THE PURCHASE PRICE PAID FOR THE PRODUCT OR THE REPLACEMENT OF THE PRODUCT, PROVIDED THAT THE FOREGOING REMEDY IS CONDITIONED ON BUYER PROMPTLY NOTIFYING SUPPLIER OF ANY BREACH OF WARRANTY IN WRITING.

 

7. Inspection.

Upon the carrier’s delivery of Products to Buyer, Buyer shall immediately inspect the Products for damage, missing quantity, defects or other non-conformities. If Buyer discovers any damaged or missing Product, or any defective or other non-conforming Product, Buyer shall (a) note the defect on its proof of delivery and (b) notify Supplier in writing of the claim immediately, and in any event no later than 5 days after the date of the carrier’s delivery of the Product to Buyer (the “Inspection Period”). Any Product for which Buyer does not provide written notice of rejection to Supplier during the Inspection Period shall be deemed accepted by Buyer. Prior to returning any rejected Product, Buyer must obtain authorization, including a return destination, from Supplier. Unless otherwise agreed by Supplier in writing, Buyer’s return shipment to Supplier of rejected Product shall be at Buyer’s expense and risk of loss.

 

8. Compliance with Instructions.

Buyer shall comply with all instructions relating to the Products as may be issued by Supplier from time to time, including, but not limited to, instructions concerning (a) storage, handling, blending, transportation, possession, processing, further manufacture or use, safety precautions, or other measures required or recommended to be taken in order to ensure that the Products function properly and do not cause damage or injury to any property or person, (b) any trademarks, trade names, or service marks related to the Products and (c) use of the Products, whether contained in any instructions set forth on or included in any of the Products’ labels or packaging (collectively, “Instructions”). Buyer shall bring such Instructions to the attention of any subsequent buyer of the Products and shall ensure that such subsequent buyer complies with all Instructions. Buyer shall not promote any Products for use contrary to the Product label or any Instructions provided by Supplier.

 

9. Ownership of Proprietary Materials.

Except for a limited license to use or sell the Products, as applicable, Supplier does not transfer or license to Buyer any patent, trade secret, trademark, copyright or other intellectual property right (“Intellectual Property Right”) owned or used by Supplier, and Supplier retains ownership of any Intellectual Property Right that is related to the Products or is otherwise developed by or provided to Buyer in connection with the supply of the Products. Supplier will have no obligation with respect to any infringement claim based upon any: (a) misuse or modification of the Products by Buyer or its employees or agents, (b) use of the Products in combination with other materials, goods, products, or services, (c) failure of Buyer to implement any update provided by Supplier that would have prevented the claim, or (d) Products that Supplier made to Buyer’s specifications or designs.

 

10. Data Usage.

Buyer consents that Supplier may indefinitely use Buyer information and data related to this Contract, provided that such information and data shall be aggregated and anonymized (“Anonymized Information”). For the avoidance of doubt, Anonymized Information shall not be considered Buyer’s confidential information and Supplier may use Anonymized Information for its business purposes.

 

11. Indemnification.

Buyer assumes complete responsibility for, and agrees to defend, indemnify and hold Supplier and its affiliates and its and their respective employees, directors, officers, agents, and representatives harmless from, all claims, demands, actions, and causes of action, and all actual costs incurred as a result thereof, including reasonable attorney’s fees, expert witness fees and court costs, on account of injury to any person or any property damage, arising out of the handling, transportation, storage, possession, processing, further manufacture or other use or resale of the Products sold by Buyer after the Products are delivered to Buyer or upon Supplier’s delivery to carrier at Supplier’s Facility, whether or not such Products are handled, stored, or used singly or in conjunction with other Products; provided, however, this paragraph shall not operate to relieve Supplier from liability resulting solely from Supplier’s gross negligence or willful misconduct. Buyer will not make any admissions on behalf of Supplier or enter into a settlement without Supplier’s prior written consent. The indemnification obligations of Buyer under this Section are not exclusive and are in addition to any rights or remedies otherwise available to Supplier under applicable law, and all such rights and remedies of Supplier are cumulative.

 

12. Termination; Force Majeure.

A party terminate this Contract upon written notice to the other party, if the other party is in material breach of this Contract, however, if the material breach can be cured then only if such material breach is not cured within thirty (30) days of receipt of written notice of such breach from the non-defaulting party. Supplier may terminate this Contract at any time for its convenience, by notice to Buyer. Supplier shall not be liable to Buyer for any delays in delivery or any losses, damages or expenses incurred or sustained by Buyer or any other person(s) by reason of Supplier’s delay in a scheduled delivery or a failure in performance caused by acts beyond Supplier’s reasonable control, such as, without limitation: (a) acts of God, earthquakes, fires, natural disasters, floods, explosions, acts of war or other hostilities, sabotage, terrorism riots, cyberattacks, or public health emergencies or pandemics; (b) strikes, lockouts or other industrial disturbances; and (c) governmental actions (“Force Majeure”). In the event of the occurrence of any Force Majeure event, the time for performance shall be extended for such time as may be reasonably necessary to enable Supplier to perform, and Supplier may, allocate its available supply of Products among itself and its customers in such manner as Supplier deems is fair and equitable.

 

13. Limitation on Supplier’s Liability.

UNDER NO CIRCUMSTANCES WILL SUPPLIER BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF REVENUE, OR COST OF CAPITAL, WHETHER BASED ON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY. SUPPLIER’S LIABILITY ON ANY CLAIM OF ANY KIND FOR LOSS OR DAMAGE ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS CONTRACT SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS WHICH GIVE RISE TO THE CLAIM.

 

14. Independent Contractors.

Buyer and Supplier are independent contractors, and nothing in this Contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party. Each of Buyer and Supplier, respectively, assumes full responsibility and exclusive liability for the payment of all contributions, unemployment obligations, payroll taxes, federal, state, provincial, local and foreign, if applicable, as to all of its employees engaged in the performance of such party’s work under this Contract.

 

15. Governing Law, Jurisdiction and Venue.

This Contract shall be governed by the substantive laws of the State of North Carolina applicable to contracts made and to be performed there, without application of its choice of law rules. It is expressly agreed that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract. Each party submits to the exclusive jurisdiction of any state or federal court sitting in Wake County, North Carolina, in any action or proceeding arising from or out of this Contract and agrees not to bring any such action or proceeding in any other court. Each party waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought in accordance with the immediately prior sentence and waives any bond, surety or other security that might be required of any other party with respect thereto. Judgment awarded pursuant to the foregoing may be entered in any court having jurisdiction thereof.

 

16. Assignment, Third Party Beneficiaries, Precedence, Waiver, Severability.

Buyer shall not assign this Contract in whole or part without the prior written consent of Supplier. Subject to the foregoing, all of the terms, conditions, covenants, and agreements contained herein shall inure to the benefit of, and be binding upon, any such affiliate or successor and any permitted assignees of the respective parties hereto. Supplier’s affiliates are intended third party beneficiaries of this Contract. Except as expressly provided herein, nothing in this Contract is intended to, or shall, confer any right, benefit or remedy of any nature whatsoever on any third party. No provision of this Contract may be waived unless pursuant to a written instrument executed by the party against which any such waiver is to be effective. The failure of either party to enforce any right or remedy provided hereunder or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable.

 

17. Compliance.

Each of Buyer and Supplier will at its expense comply with all federal, state, provincial, local and foreign laws, orders, rules, regulations and ordinances, including import and export laws and regulations (“Laws”), that may be applicable to such party’s performance of its obligations under this Contract. Buyer assumes all responsibility for shipments of Products requiring any government import clearance.

 

This Contract involves the sale of goods governed by U.S. economic sanctions laws, among other national or international laws. Buyer confirms as a condition to this agreement and warrants to Seller that it will abide by all applicable economic sanctions laws, export control laws, anti-boycott laws and trade restrictions imposed, including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), and other applicable U.S. economic and trade measures, as well as those administered by the United Nations Security Council, Canada, the European Union, the United Kingdom, and any other jurisdiction with authority over contemplated transactions (collectively, the “Sanctions Laws”). Accordingly, Buyer certifies that neither it nor any of its directors, officers, or employees (i) has been designated under any Sanctions Laws, including in lists administered by OFAC and BIS; or (ii) is directly or indirectly owned or controlled by, or acting for or on behalf of, an entity or person designated under any Sanctions Laws. Buyer also warrants and agrees that the Commodity will not be exported, reexported, transferred, sold, re-sold, or transported (i) to or by any individuals or entities designated under the Sanctions Laws in violation of such Sanctions Laws or from or by any other prohibited end-users, or (ii) to or through any country, region or territory that is the subject or target of Sanctions Laws that broadly prohibit trade or investment with that country, region or territory, including Cuba, Iran, North Korea, Syria, and the Ukrainian regions of Crimea, Donetsk, Kherson, Luhansk and Zaporizhzhia. Buyer further certifies that the Commodity will not be used, in whole or in part, for any prohibited end-uses under the Sanctions Laws. Buyer certifies that it will not otherwise engage in any transaction or dealing involving the Commodity that would be contrary to the Sanctions Laws or representations made herein. Should Buyer discover, or otherwise become aware of, circumstances presenting a violation of this provision or any Sanctions Laws, Buyer shall notify Seller as soon as practicable, but in no event later than 24 hours after discovery and agrees to cooperate with Seller in order to take all necessary corrective actions. This confirmation and warranty by Buyer refers to any nominated vessel (without regard to whoever may own, control operate or have chartered her, to Buyer’s documentary instructions, to any intervening banks and, in general, to any person, company or entity involved in the performance of this contract).

 

Each Party agrees to comply with all applicable foreign or domestic anticorruption and anti-bribery Laws, as in effect from time to time, including, but not limited to, the United States Foreign Corrupt Practices Act of 1977, as amended, and any Laws intended to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (collectively, “Anti-Corruption Laws”). Without limiting the generality of the foregoing, each Party agrees not to make, authorize, offer, or promise to make or give any money or any other thing of value, directly or indirectly, to any current or former government official, government employee (including any employee of a state-owned or state-controlled enterprise or of a public international organization), candidate for political office, or official of a political party, or any employee, director, or consultant of a non-government client or potential client, for the purpose of securing any improper or unfair advantage or obtaining or retaining business in connection with the activities contemplated hereunder or for the purpose of improperly inducing or rewarding favorable treatment or advantage in connection with this Agreement. Each Party agrees to immediately notify the other of any request that it receives to take any action that reasonably might constitute, or be construed as, a violation of the Anti-Corruption Laws.

 

18. Notices.

All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Contract or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has compiled with the requirements of this Section.

 

19. Survival.

The provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination of expiration of this Contract, including, but not limited to the following provisions: Insurance, Compliance, Confidentiality, Governing Law, Limited Trademark License, Jurisdiction and Venue, Limitation of Liability and Survival.