Evolved By Nature, Inc. (“Seller”) offers to sell goods that are Seller’s natural ingredients products (“Goods”) that are specifically described in the quote or sales order issued by Seller, whether as a standalone sale of Goods or pursuant to the [INSERT NAME OF SERVICES AGREEMENT] (the “Services Agreement”) in which these terms and conditions are referenced (the “Quote”, and together with any the Services Agreement these terms and conditions, this “Agreement”) to the customer set forth on the Quote (“Buyer”). The Quote is conditioned upon Buyer’s acceptance of the Agreement. Seller hereby rejects any contrasting or additional terms relating to this Agreement proposed by Buyer or included in Buyer’s purchase order or other ordering document(s) (collectively, “Purchase Order”), none of which shall be effective unless signed by Seller’s authorized representative.

1. Purchase Order. Sales by Seller to Buyer of Goods shall be requested by means of a Purchase Order, which shall be sent to Seller at [117 Kendrick Street, Suite 700 Needham, MA 02494, USA]. Buyer’s submission of a Purchase Order shall create a binding order on Buyer subject to the terms of the Agreement. Each Purchase Order must include (i) the volume or quantity of Goods needed; (ii) the desired delivery date(s); (iii) the Buyer’s delivery address; and (iv) shipping instructions.

2. Price. In exchange for the Goods, Buyer hereby agrees to pay Seller the associated prices per unit of Goods as set forth herein, or otherwise as described in the Quote, which pricing includes the necessary licenses to utilize those of Seller’s trademarks, product claims and certifications that Seller has informed Buyer in writing are eligible for use in connection with the Goods. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed with respect to Seller’s income, revenues, gross receipts, personnel, real property, personal property or other assets. Seller will use commercially reasonable efforts to deliver the Goods on the date specified in the Purchase Order; provided that Seller will not be obligated to ship or deliver any Goods if Buyer is delinquent in any undisputed payment for any previously shipped or delivered order.

3. Delivery. If Seller anticipates that it will be unable to supply, in whole or in part, the volume or quantity of Goods specified in a Purchase Order, Seller will notify Buyer of such inability and the proposed remedial measures. Seller shall deliver the Goods to Buyer using Seller’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all loading costs, and shall provide equipment and labor reasonably suited for receipt of the Goods, if applicable. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Goods shipped whether such shipment is a whole or partial fulfillment of Buyer’s Purchase Order. The terms of delivery from Seller to Buyer will be Ex Works Incoterms 2020 (Seller’s local warehouse).

4. Payment. Seller shall issue an invoice to Buyer, with the amount payable thereunder based on the price for the Goods set forth in the relevant Quote. Unless provided otherwise in the relevant Quote, all payments due hereunder shall become due and payable upon invoicing and amounts due shall be paid within thirty (30) days of issuance of the corresponding invoice by Seller. Any amounts that remain unpaid after the applicable due date will bear interest at the lesser of two percent (2%) per month or the maximum rate allowed by applicable law.

5. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) the product shipped is different than identified in the Purchase Order; or (ii) the product’s label or packaging incorrectly identifies its contents or does not meet the limited warranty specified in Section 11(a). If Buyer timely notifies Seller of any Nonconforming Goods and Seller agrees with Buyer’s assessment that the Goods are Nonconforming Goods, Seller shall replace such Nonconforming Goods with conforming Goods. Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods. Buyer acknowledges that the preceding remedies are Buyer’s sole and exclusive remedies with respect to Nonconforming Goods. Except as provided in the foregoing, all sales of Goods to Buyer are made on a one-way basis, and Buyer has no right to return Goods purchased under this Agreement to Seller.

6. Non-Exclusivity. Nothing herein will be deemed to create an exclusive relationship between Buyer and Seller. Buyer acknowledges and agrees that Seller may sell and supply to other buyers goods of a similar nature to the Goods.

7. Trademarks; Branding. Subject to the terms of the Agreement, Seller hereby grants to Buyer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use those of Seller’s trademarks (as described in, and at all times in accordance with, the Trademark Usage Guidelines and Brand Guidelines available at https://biotech.evolvedbynature.com/brand-guidelines (the “Brand Guidelines”)), product claims and certifications that Seller has informed Buyer in writing are eligible for use in connection with the Goods for purposes of selling its own products utilizing the Goods. The aforementioned licenses do not include the rights to make or have made, or to use any of such Seller’s trademarks, product claims or certifications in connection with the production of, Goods or other products of Seller. Any proposed use of Seller’s trademarks that is not covered in the Trademark Usage Guidelines and Brand Guidelines, or of the applicable product claims or certifications that are not covered in guidelines therefore provided by Seller, must be pre-approved by Seller in writing. Buyer agrees that it shall notify each of its customers of the Brand Guidelines by providing the URL therefor set forth above, or of any requirements for further use of the product claims and/or certifications, and shall require such customers to abide by the Brand Guidelines and any such requirements, as applicable.

8. Intellectual Property Rights. Except for the limited licenses explicitly granted herein, Seller retains all right, title, and interest in and to the Goods and all associated intellectual property rights. Without limiting the effect of the restrictions detailed in Section 10, in the event that Buyer develops any derivative, enhancement, improvement, or modification of any Good (each a “Modification”), Buyer shall assign, and does hereby assign, to Seller all of its right, title, and interest in and to each such Modification.

9. Confidentiality.
   1. Each party may disclose to the other party certain Confidential Information in connection with this Agreement. “Confidential Information” shall mean any information that (i) is designated by a disclosing party in writing as confidential or (ii) should reasonably be considered to be the confidential information of the disclosing party, whether or not so marked or identified, due to the nature of the information or the circumstances of its disclosure. Without limiting the foregoing, any information related to the composition or functionality of any Good(s) shall be considered Seller’s Confidential Information. The receiving party shall maintain the Confidential Information as secret and confidential, such efforts to be no less than the degree of care employed by the receiving party to preserve and safeguard its own confidential information (but in no event less than a reasonable degree of care). Each party shall use the other party’s Confidential Information only for the purposes of performing under this Agreement, and such information shall not be disclosed or revealed to anyone except employees and representatives of the receiving party who have a need to know the Confidential Information and who have each entered into a confidentiality agreement with the receiving party, under which such employees and representatives are required to maintain as confidential the Confidential Information of the disclosing party and have been advised of the confidential nature of the Confidential Information. The receiving party shall (a) not reverse engineer, reverse compile or otherwise attempt to derive the composition or underlying information, structure or ideas of any Confidential Information, (b) be responsible for any breach of this Agreement by its employees or representatives and (c) promptly notify the disclosing party of any unauthorized release of, access to or use of Confidential Information of the disclosing party (which notice does not remedy any unauthorized release, access or use). The obligations in this Section apply to Buyer’s affiliates, as well as any sub-customers. Confidential Information shall exclude any information or materials that the receiving party can demonstrate through written documentation: (a) was already in the public domain or publicly known prior to the date of the disclosure by the disclosing party, not due to any unauthorized act of the receiving party or any third party; (b) was in the receiving party’s possession prior to receipt from the disclosing party, without an obligation of confidentiality; or (c) was developed by or for the receiving party without reference to or use of Confidential Information disclosed by the disclosing party. Nothing in this Agreement shall be construed as prohibiting or restricting a receiving party from disclosing Confidential Information in response to a subpoena or a valid order of a court or government body; provided that, prior to disclosing such Confidential Information, the receiving party notifies the disclosing party so that the disclosing party may contest or attempt to limit the scope of the requested disclosures.
   2. Each party acknowledges and agrees that the Confidential Information of the other party constitutes proprietary information and trade secrets valuable to the other party, and that the unauthorized use, loss, or disclosure of such Confidential Information may cause irreparable injury to the other party, for which monetary damages may not be a sufficient remedy, and that the other party may be entitled, without waiving other rights or remedies, to obtain injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of any actual or threatened unauthorized use, loss, or disclosure. The obligations of confidentiality set forth herein shall supersede any existing confidentiality agreement between the parties concerning the subject matter of the Agreement.

10. Restrictions on Use. In addition, Buyer shall store, handle, and maintain the Goods in accordance with the documentation, specifications, and instructions (whether oral or written) provided by Seller, which specifications may be updated at any time upon written notice to Buyer; and Buyer shall not use any expired Goods. Buyer shall be exclusively responsible for disposing of Goods, unless a return shipment is authorized in writing by Seller. Buyer shall not, and shall not assist any other party to (i) perform tests on any Good (except as permitted by Seller in advance and in writing); or (ii) attempt to determine the structure, composition, or underlying ideas or functionality of any Good or otherwise characterize, reverse engineer, or deconstruct any Good. Notwithstanding the foregoing, if any Goods are provided to the Authorized Third Party Manufacturer, if any, identified in the Purchase Order, Buyer shall require such Authorized Third Party Manufacturer to agree to be bound by the Agreement. Buyer shall be liable for any breach of the Agreement or misuse of Goods by such Authorized Third Party Manufacturer. Buyer agrees to obtain any information requested by Seller related to an Authorized Third Party Manufacturer. Buyer acknowledges and agrees that Seller may suspend or terminate supply under a Purchase Order at any time if Seller reasonably believes that an Authorized Third Party Manufacturer has breached this Agreement.

11. Warranties.
    1. Warranty. Seller warrants that the Goods supplied by it hereunder shall, at the time of shipment, meet the specifications provided by Seller to Buyer. For any Goods that do not meet this warranty, Buyer’s sole remedy shall be for Buyer, as described in Section 5, to replace that portion of the order that does not meet the aforementioned warranty with conforming Goods.
    2. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY EXPLICITLY SET FORTH IN SECTION 11(A) OF THIS AGREEMENT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. FURTHERMORE, SELLER DISCLAIMS, AND BUYER AGREES NOT TO ASSERT ANY CLAIMS AGAINST SELLER IN RELATION TO, ANY AND ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED CONDITIONS, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO (A) THE SUITABILITY OF THE USE OF THE GOODS IN BUYER’S OPERATIONS AND/OR (B) THE QUALITY OR PERFORMANCE OF ANY PRODUCTS MANUFACTURED BY BUYER.

12. Limitation of Liability. SELLER’S TOTAL LIABILITY FOR CUMULATIVE, AGGREGATE DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY BUYER TO SELLER UNDER THE APPLICABLE PURCHASE ORDER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE. EXCEPT FOR A BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13. Audit. Seller, through its authorized employees and representatives, upon giving reasonable notice to Buyer, shall have the right to inspect at reasonable times and at reasonable places, all facilities, equipment, procedures, and practices employed by Buyer and to examine and audit all records, including financial records, files, quality assurance reports, laboratory notebooks, relevant standard operating procedures, and data relating to the Goods, in order to confirm Buyer’s compliance with the terms of this Agreement.

14. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances, including, without limitation, the European Union regulation on registration, evaluation and authorization of chemicals (REACH), and those related to the importer of finished goods. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.

15. Force Majeure. Seller shall not be liable for any failure or delay in performing its obligations under any Purchase Order to the extent that such failure or delay is due to any: (i) war, riot, insurrection or other civil commotion; (ii) strike, lockout or other labor dispute; (iii) epidemic, fire, flood or other act of God; (iv) utility shortage or curtailment; (v) governmental order, decree or regulation; or (vi) other similar causes beyond Seller’s reasonable control.

16. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

17. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this section is null and void.

18. Amendment and Modification. These terms and conditions may be amended or modified by Seller upon delivery of written notice of such amendments or modifications to Buyer.

19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms and conditions.

21. Governing Law; Forum. This Agreement is governed by and shall be construed in accordance with the laws of the State of New York excluding choice of law rules. Any action arising under or relating to this Agreement shall be brought in a court of the State of New York (or, if appropriate, a federal court located within New York), and Buyer hereby consents to jurisdiction in such forum for any such action.

22. Notices. All notices, requests, consents, claims, demands, waivers, and other communications (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order 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 or transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this section.

23. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

24. Survival. Provisions of these terms and conditions which by their nature should apply beyond their terms will remain in force after termination or expiration of this Agreement, including, without limitation, Sections 5 (with respect to the limited remedy available for Nonconforming Goods) and Sections 6-24.