SALES ORDER TERMS AND CONDITIONS

IMPORTANT NOTICE: ALL SALES, PURCHASE ORDERS, SALES ORDERS, QUOTATIONS, CONFIRMATIONS, ACKNOWLEDGMENTS, AND INVOICES ARE EXPRESSLY CONDITIONED ON, AND SUBJECT TO, THESE SALES ORDER TERMS AND CONDITIONS, WHICH ARE INCORPORATED BY REFERENCE INTO EVERY TRANSACTION AND ARE AVAILABLE ON SELLER’S WEBSITE. ANY DIFFERENT OR ADDITIONAL TERMS IN ANY CUSTOMER DOCUMENT ARE HEREBY OBJECTED TO AND REJECTED AND SHALL HAVE NO EFFECT UNLESS EXPRESSLY AGREED TO IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.

1. ACCEPTANCE; AGREEMENT: These Sales Order Terms and Conditions together with our acknowledgement of order, Certificate of Analysis (“COA”) and/or invoice (together, the “Agreement”) govern and control in all respects all sales of goods (the “Products”) by PRODUCE PROCESSORS, LLC, a Wisconsin limited liability company (“Seller”), to the purchaser (“Customer”). Seller’s agreement to sell the Products is expressly limited to, and conditioned on, Customer’s acceptance of the Agreement. Customer shall be deemed to have made an unqualified acceptance of this Agreement and its terms on the earliest to occur of the following: (a) failure by Customer to notify Seller in writing of any objection which Customer may have to any provision of this Agreement within five (5) days of receipt hereof; (b) Seller’s first delivery of any Product(s); or (c) any other event constituting acceptance under applicable law. Any quotation, acceptance, confirmation, purchase order or other Customer form that states additional or differing terms from the Agreement shall operate solely as Customer’s acceptance of all terms and conditions hereof, and all such additional or differing terms provided or offered by Customer are hereby objected to and rejected, shall be deemed proposals for material modification, and shall not become part of the Agreement without Seller’s express written acceptance signed by an authorized representative. Without limiting the foregoing, Seller’s shipment of Products, commencement of performance, or acceptance of payment shall not constitute acceptance of any Customer terms. In the event of any conflict between these Sales Order Terms and Conditions and any order acknowledgement, COA or invoice, these Sales Order Terms and Conditions shall control, except that the price, quantity and delivery date stated on Seller’s invoice or order acknowledgement will control for the applicable transaction. The Agreement supersedes and constitutes a modification of any and all other agreements of the parties which may be found to have been entered into prior to the date hereof or contemporaneous herewith (including, but not limited to, any and all email, text message and/or other forms of electronic, verbal or other communications between the parties) regarding the subject matter of this Agreement. No modification of this Agreement shall be effective unless consented to in a writing signed by an authorized representative of Seller. All payments made by, or owed to, either party shall be based on U.S. Dollars.
2. NGFA® TRADE RULES AND ARBITRATION TO APPLY: Except as otherwise provided herein, this Agreement shall be subject to the Trade Rules of the National Grain and Feed Association (NGFA), which are incorporated herein. The parties agree that the sole and exclusive forum for resolution of any and all disagreements or disputes arising under or related to this Agreement (including, but not limited to, any statutory or tort claims arising from the relationship between the parties) shall be through binding arbitration proceedings before the NGFA pursuant to the NGFA® Arbitration Rules. Customer consents to enforcement of the obligation to arbitrate disputes in any state or federal court and expressly waives the defenses of personal jurisdiction and venue with respect to any such action. The decision and award determined through such arbitration shall be final and binding upon the parties. Judgment upon the arbitration award may be entered and enforced in any court having jurisdiction thereof. (Copies of the NGFA® Trade Rules and Arbitration Rules are available upon request and also from the National Grain and Feed Association: Telephone: 202-289-0873; Website: http://www.ngfa.org). The parties agree that any arbitration conducted hereunder shall be governed by the Federal Arbitration Act, 9 United States Code §§ 1-16, as now existing or hereinafter amended. This Agreement shall otherwise be governed by, and construed in accordance with, the laws of the State of Wisconsin (with the exception of the State of Wisconsin’s conflict of laws statutes or caselaw).
3. PRICE: The price for each shipment shall be as set forth in Seller’s applicable sales order provided to Customer, and such price will be reflected in Seller’s invoice(s) for such shipment. Except as expressly adjusted as provided below, the price stated on Seller’s invoice shall be the controlling price for the applicable shipment. Prices are subject to change without notice in the event of (i) alterations in specifications, quantities, designs, or delivery schedules, and/or (ii) increases in the cost of fuel, power, material supplied, or labor. To the extent the prices agreed upon include allowance for freight costs or insurance costs applicable to the Products to be shipped to Customer, if said rates at the time of shipment differ from the rates quoted to Customer, the resulting increase or decrease shall be paid by or credited to (as applicable) Customer’s account. Guaranteed delivery charges requested by Customer shall be paid by Customer. If Customer is unable to accept delivery from any carrier, Customer shall be responsible for any re-delivery charges. If Seller’s costs in filling Customer’s order are increased by reason of local, state, or federal orders or taxes, the amount of such increased cost shall be added to the purchase price.
4. PAYMENT TERMS: Customer shall pay Seller 100% of the invoice price within the terms stated on Seller’s invoice for each shipment of Product, or if not stated, within 30 days from the date of invoice. Seller has the right to charge a late payment charge of the lesser of 18% per annum or the maximum annual rate allowed by law on any past due amounts. If Customer does not pay any amount due, Seller may, without prejudice to Seller’s other lawful remedies: (a) declare immediately due and payable all Customer’s obligations to Seller, (b) change credit or other terms for future deliveries, (c) suspend or discontinue any further deliveries until Customer pays all overdue amounts, or (d) repossess the Products. Customer shall pay or reimburse Seller for all costs and fees incurred in collecting any sums owed to Seller, including reasonable attorneys’ fees.
5. DELIVERY, SHIPPING AND RISK OF LOSS.
   1. GENERAL. All deliveries will be EXW (Ex Works) Seller’s warehouse or other point of origin. Seller shall have no further responsibility for the Products, and all risk of damage to or loss or delay of the Products shall pass to Customer when the Products are made available to Customer at Seller’s premises (the EXW point). Customer shall be responsible for all loading costs and shall bear all risks associated with loading the Products. Unless otherwise expressly stated in Seller’s invoice that shipping costs are included in the Product price, Customer shall be responsible for arranging and paying for all shipping, including carrier selection, routing, and all related charges. Where Seller’s invoice expressly states that shipping costs are included in the Product price, Seller shall arrange for shipping method and routing, with such costs included in Customer’s invoice. Seller shall not be liable for any damages, losses, costs, or expenses (direct, indirect, consequential, or otherwise) caused by or arising from delays in shipping or delivery for any reason whatsoever, and Customer waives any claims related thereto. Delay in the delivery of the Products shall not relieve Customer from the obligation to accept and pay for such Products.
   2. DELIVERY TERMS. Seller shall cause the Products to be shipped on or before the delivery date noted in the applicable invoice (the “Scheduled Delivery Date”); provided, however, that if Customer has given specific shipping instructions, then Seller shall have 30 days after receipt of such instructions to cause the Products to be shipped. Customer agrees Seller may make partial or full delivery(s) prior to the Scheduled Delivery Date. If the Products are delivered prior to the Scheduled Delivery Date, either at Seller’s option or upon Customer’s request, then Customer shall make payment for each such shipment in accordance with the payment terms described in the Payment Terms section above. If Customer requests that Seller delay delivery until after the Scheduled Delivery Date, then upon written notice to Customer Seller may (but is not obligated to) assess a monthly storage fee (at Seller’s then-prevailing market rate per pound or other unit) for all such Products that Seller agrees to store on Customer’s behalf. All amounts owed by Customer relating to the Products, together with any storage fees that Seller elects to charge, shall be due and payable pursuant to the Payment Terms section above. If Customer does not timely remit payment or timely provide shipping instructions, then Seller’s obligation to store and/or ship the Products shall be null and void and Seller may resell the Products in its sole discretion.
   3. INSPECTION. Any claims by Customer with respect to either the quantity or quality of the Products received under any shipment made pursuant to the Agreement shall be conclusively deemed to be waived unless received by Seller in writing within 24 hours after Customer receives the shipment. The sole and only acceptable reason for rejection based upon quality shall be Product(s)’ non-conformance with the specifications in Seller’s COA with respect to such delivery of Product(s). Orders accepted by Customer cannot be cancelled or returned, except with the prior written consent from Seller and upon terms that will fully indemnify Seller against all losses resulting therefrom, including but not limited to loss of profits, storage costs, and transportation expenses.
   4. QUANTITY VARIATIONS. For bulk Product deliveries, Customer agrees to accept a shipment quantity that is plus or minus five percent (5%) of the order quantity requested by Customer. Customer will be invoiced for the actual quantity shipped within these guidelines and Customer agrees to pay the invoice pursuant to the Payment Terms section above. This variation allowance applies regardless of shipping arrangements.
6. PRODUCT QUALITY AND TESTING. A Certificate of Analysis (COA) will accompany each shipment and reflects the results of samples analyzed using accepted industry methodologies. COAs are representative of the shipment at the time of sampling, but normal and industry-accepted variation may occur between test samples and delivered goods. COAs are not a guarantee that every unit, bag, or portion of the shipment will conform identically to the reported values. Customer shall not reject, and Seller shall have no obligation to accept returns or provide refunds for, any Products that conform to the specifications set forth in the applicable COA, including permitted variations. Claims based solely on results that fall within normal, industry-accepted variance from the COA shall not give rise to any liability of Seller. Any testing performed by Customer must be conducted promptly and in accordance with recognized industry standards, and any claim must be made within the applicable claims period set forth in the Agreement.
7. EXCEPT AS MAY BE SPECIFICALLY STATED IN A SELLER’S COA APPLICABLE TO A PRODUCT SHIPMENT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS OR THE SHIPPING AND DELIVERY OF ANY PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY ARISING FROM COURSE OF DEALING, USAGE OF TRADE, OR COURSE OF PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER FOR BREACH OF ANY WARRANTY, FOR BREACH OR REPUDIATION OF ANY OTHER TERM OR CONDITION OF SALE, OR FOR LIABILITY ON THE BASIS OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SELLER SHALL HAVE BEEN ADVISED IN ADVANCE OF THE LIKELIHOOD THEREOF. CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AGAINST SELLER SHALL BE, AT SELLER’S DISCRETION, REPLACEMENT OF PRODUCT(S) PURCHASED AND/OR REFUND OF FUNDS RECEIVED WITH RESPECT TO THE PRODUCT(S) AT ISSUE. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER FROM AND AGAINST ALL DAMAGES, LOSSES, CLAIMS AND EXPENSES, INCLUDING ATTORNEYS’ FEES AND COST OF DEFENSE, INCURRED BY SELLER AS A RESULT OF ANY BREACH BY CUSTOMER OF ANY OF ITS OBLIGATIONS UNDER THE AGREEMENT.CUSTOMER ACKNOWLEDGES AND AGREES THAT, UNLESS SELLER EXPRESSLY IDENTIFIES A PRODUCT AS “FOOD GRADE” IN THE APPLICABLE WRITTEN DOCUMENTATION (E.G., INVOICE OR COA), ALL PRODUCTS ARE “FEED GRADE” ONLY AND ARE NOT FOR HUMAN CONSUMPTION. FOR ANY PRODUCT DESIGNATED BY SELLER AS FOOD GRADE, CUSTOMER IS SOLELY RESPONSIBLE AFTER DELIVERY FOR HANDLING, STORAGE, AND USE IN COMPLIANCE WITH ALL APPLICABLE LAWS, REGULATIONS, AND INDUSTRY STANDARDS. WITH RESPECT TO FOREIGN MATERIALS: (A) ALLOWABLE FOREIGN MATERIAL — BULK SHIPMENTS MAY CONTAIN INCIDENTAL FOREIGN MATERIAL CONSISTENT WITH INDUSTRY PRACTICE FOR BULK COMMODITIES; AND (B) NON-ALLOWABLE FOREIGN MATERIAL — BAGGED/SCREENED PRODUCTS ARE NOT EXPECTED TO CONTAIN FOREIGN MATERIAL. CUSTOMER IS RESPONSIBLE FOR PROMPT INSPECTION AND, IF APPLICABLE, SCREENING OF BULK PRODUCT AT CUSTOMER’S SOLE COST AND EXPENSE. SELLER MAKES NO WARRANTY THAT ANY PRODUCT (INCLUDING BULK PRODUCT) WILL BE FREE FROM ALL FOREIGN MATERIALS OR OBJECTS, AND, FOR BULK PRODUCT, THE PRESENCE OF INCIDENTAL FOREIGN MATERIAL CONSISTENT WITH INDUSTRY PRACTICE SHALL NOT, BY ITSELF, CONSTITUTE NON-CONFORMANCE. CUSTOMER SHALL INDEMNIFY AND DEFEND SELLER FROM ANY AND ALL LOSSES AND DAMAGES SUFFERED OR INCURRED BY SELLER (INCLUDING, BUT NOT LIMITED TO, SELLER’S COST OF DEFENSE) RESULTING FROM OR RELATED TO: (I) CUSTOMER’S USE OR RESALE OF ANY FEED GRADE PRODUCT FOR HUMAN CONSUMPTION OR OTHER NON-FEED PURPOSES; OR (II) CUSTOMER’S FAILURE TO HANDLE, STORE, OR USE ANY FOOD GRADE PRODUCT IN COMPLIANCE WITH APPLICABLE REQUIREMENTS.
8. FORCE MAJEURE: Neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation under this Agreement where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party. Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, strikes or other labor unrest, embargoes, epidemics, pandemics, public health emergencies, utility interruptions, shortages of raw materials, transportation or supply chain disruptions or failures, and other governmental actions or regulations that would prohibit a party from ordering or furnishing Products or performing any other aspects of the obligations hereunder. This section shall not apply to Customer’s payment obligations hereunder.
9. TERMINATION; INDEMNIFICATION: Seller may, upon written notice to Customer, immediately terminate this Agreement and any further obligations to make shipments hereunder if Customer fails to comply with the terms of this Agreement in the event that Customer becomes insolvent or bankrupt, or is more than 45-days delinquent in payments to Seller. Customer may not cancel or modify this Agreement except upon terms accepted in writing by Seller. If Customer cancels or modifies this Agreement, Customer shall compensate Seller for all costs and damages resulting therefrom, including (without limitation) lost profits, allocable overhead, commodity market losses and all other incidental and consequential damages. Customer shall defend, indemnify and hold harmless Seller from and against all damages, losses, claims and expenses, including attorneys’ fees, incurred by Seller as a result of any breach by Customer of any of its obligations under this Agreement.
10. MISCELLANEOUS. No waiver of or failure or omission to enforce any term or provision of this Agreement or any right or claim arising hereunder shall be deemed to be a waiver of any other term or provision hereof or any other right or claim arising before, concurrently with or after any such waiver, failure or omission or any event giving rise to any right or claim so waived or unenforced. Customer may not assign this Agreement without the prior written consent of Seller. This Agreement shall bind and inure to the benefit of Seller and Customer and their respective successors and assigns. The laws of the State of Wisconsin shall govern the rights and obligations of the parties hereunder without regard to conflict of laws principles, except to the extent preempted by the Federal Arbitration Act and as otherwise provided in the NGFA Trade Rules incorporated herein. Any action to compel or stay arbitration, to confirm, enforce, modify, or vacate an arbitration award, or to obtain provisional relief in aid of arbitration may be brought exclusively in a state or federal court situated in the State of Wisconsin, and both parties irrevocably submit to the jurisdiction and venue of such courts for such limited purposes. If any provision hereof shall be determined to be illegal or unenforceable, the validity of the remaining provisions shall not be affected thereby. If any provision hereof is determined to be overbroad as written, that provision should be considered to be amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and enforced as amended. This Agreement constitutes the final written expression of the terms between the parties and is a complete and exclusive statement of those terms. In the event of any conflict between this Agreement and any terms contained in any purchase order, sales order, confirmation or other Customer documentation, the terms of this Agreement shall control in all respects. Any additional or different terms proposed by Customer are hereby expressly objected to and rejected and shall not become part of the Agreement unless expressly accepted by Seller in a writing signed by an authorized representative of Seller. The parties agree to comply with all applicable data privacy and protection laws and regulations in their performance of this Agreement. Customer’s representative represents and warrants that he/she has been duly authorized to bind Customer to the terms stated herein. These Sales Order Terms and Conditions are posted on Seller’s website and are incorporated by reference into, and govern, all sales, purchase orders and sales orders that reference them or include a link to them. ALL SALES, PURCHASE ORDERS AND SALES ORDERS ARE EXPRESSLY SUBJECT TO AND GOVERNED BY THESE TERMS AND CONDITIONS.BY PLACING OR ACCEPTING ANY ORDER, CUSTOMER ACKNOWLEDGES AND AGREES THAT THESE SALES ORDER TERMS AND CONDITIONS (AS POSTED ON SELLER’S WEBSITE) GOVERN AND CONTROL IN ALL RESPECTS. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY PURCHASE ORDER, SALES ORDER, BID, RFQ, OR OTHER CUSTOMER DOCUMENT ARE OBJECTED TO AND REJECTED.