1. Entire Agreement / Order

This agreement (the “Agreement”) is between Akona Process Solutions, Inc., a North Carolina corporation (collectively referred to as “Akona” or “Seller”) and the buyer named in the applicable Formal Proposal (“Buyer”). No order for Akona’s products (“Products”) or services (“Services”) shall be binding upon Akona until acknowledged in writing by Akona through a written order acknowledgment (“Order Acknowledgment”). The Order Acknowledgment and these Terms and Conditions of Sale (the “Terms”) constitute the Agreement between Akona and Buyer. Seller and Buyer are each a “Party” and, collectively, the “Parties.”

Except to the extent that Akona’s Order Acknowledgment expressly identifies technical assistance or field services included in pricing set forth in the Order Acknowledgment, the pricing set forth in the Order Acknowledgment does not include Services (including without limitation installation or commissioning).

Any purchase order, offer or counter-offer made by Buyer before or after Akona’s Order Acknowledgment is rejected and all documents exchanged prior to Akona’s Order Acknowledgment are merely preliminary negotiations and not part of any agreement between the parties. In no event will Akona be deemed to have in any way changed, enlarged or modified its liabilities or obligations as fixed by these Terms including, without limitation, situations in which Akona satisfies an order submitted on Buyer’s own purchase order form.

Buyer shall have been deemed to agree to these Terms upon the earlier of acceptance of Seller’s Formal Proposal, issuance of a purchase order to Seller, receipt of an Order Acknowledgment, or acceptance of delivery of the Products or Services.

2. Payment Terms

Unless otherwise expressly set forth in the Quote or Order Acknowledgement, Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice. Buyer shall make all payments by wire transfer or check in U.S. Dollars.

Payment Terms	Machines & Controls	Aftermarket & Parts	Field Service & Automation
Down Payment	50%	40%	40%
Progress Payment	25%	NA	NA
Balance	25%	60%	60%
Balance Terms	Net 30	Net 30	Net 30
Commissioning	NA	NA	NA
Convenience Fee	5%	5%	5%
Freight Terms	Ex Works	Ex Works	NA

Buyer shall pay interest on all late payments at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products or performance of any Services if Buyer fails to pay any amounts when due hereunder.

All payment terms are subject to credit approval. Price does not include any state or local taxes. Seller reserves the right to collect taxes from Buyer under existing or future law. Seller shall retain title to and a security interest in the goods until the full amount owed is paid. Please note that for credit card payments, a 5% surcharge will be added to cover Seller’s additional processing costs.

Buyer shall not withhold payment of any amounts due as a set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

3. Price

Buyer shall purchase the Products and, if applicable, Services from Seller at the price (the “Price”) set forth in the Order Acknowledgment. Notwithstanding the foregoing, the Price shall be subject to adjustment on account of specifications, quantities, shipping arrangements or other changes in the order on the part of the Buyer or any factor beyond the control of Seller that are not part of the Price as set forth in the Order Acknowledgment.

If the Formal Proposal includes a predetermined amount of start-up time, it includes only the predetermined amount of startup time specifically described in the Formal Proposal. Seller will furnish, at Buyer’s request, additional time by a competent person for the purpose of startup or field service for the system covered by the Formal Proposal, whose services shall be paid for by Buyer to Seller at the rates listed in the Formal Proposal, together with all overtime, living and traveling expenses, and including all time said person is absent from Seller’s factory on Buyer’s business, which shall be payable monthly upon Seller’s invoice.

All Prices are exclusive of all shipping and handling charges, sales, use, and excise taxes, and any other similar taxes, duties, process controls, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, taxes, costs, and expenses; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets. Where applicable, the amount of any such tax or taxes which Seller may be required to pay or collect may be added to the invoice as a separate charge to be paid by Buyer unless Buyer has furnished Seller with valid evidence of tax exemption that is acceptable to Seller.

4. Cancellation

Buyer may terminate the Contract at any time, for any reason or for its convenience, effective upon Seller’s receipt of written notice. In the event of any termination pursuant to this Section, Buyer shall pay, within 30 days from date of Seller’s invoice: (a) a cancellation charge of 100% of the unit price for all Products ready for shipment per the applicable Order; and (b) cost incurred to-date plus a reasonable margin for all Products & Services where work is in process but not complete or ready for shipment.

5. Limited Warranty

Seller warrants to Buyer that, subject to the remainder of this Section, the Products shall be free from defects in workmanship and material for 12 months from the date of equipment start-up or 18 months from the date of shipment, whichever comes first (“Warranty Period”).

Exclusions

• Select products require seller installation and/or commissioning support services for limited warranty coverage to apply. These products include equipment that requires on-site assembly and/or interconnection of multiple mechanical devices (including, but not limited to, drag conveyors, and other material handling systems). Without engaging these recommended services, Akona reserves the right to determine, at its sole discretion, whether warranty coverage applies.
• Parts subject to normal wear, including but not limited to gaskets, seals, drive belts, conveyor spirals, conveyor tubes, conveyor cables, chains, discs, and sprockets.

Except for the limited warranty set forth herein, Seller makes no warranty whatsoever with respect to the products or services, including no (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; (c) warranty as to meeting any performance standards or specifications not explicitly identified in the quote; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise. Seller hereby disclaims all such warranties. In addition, Buyer acknowledges and agrees that neither Seller nor any of its personnel are licensed (nor will they become licensed) or otherwise authorized by any governmental authority to provide the services in the applicable jurisdiction where services may be performed, whether as an engineer or otherwise. Further, if the services provided include a performance test with respect to any of the products, the parties acknowledge and agree that the results of any performance test are based on how the products performed in Seller’s own testing laboratory and not in Buyer’s facility; accordingly, Seller makes no warranty or assurances of any kind whatsoever that the products will perform in Buyer’s facility or systems in a manner that is consistent with the results achieved in Seller’s performance test.

Further, the limited warranty set forth is contingent upon Buyer: (a) correctly installing the products, (b) using the products only in the manner they were designed to be used and in accordance with all instructions furnished by Seller; and (c) observing good maintenance practices with respect to the products. Buyer’s failure to observe any of the foregoing shall render the aforementioned warranty null and void.

Seller shall not be liable for a breach of the limited warranty unless: (i) Buyer gives written notice of the defective Products, reasonably described, to Seller within thirty days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies that the Products or Services are defective.

The Seller shall not be liable for a breach of the warranty if: (i) Buyer makes any further use of such Products after giving notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or use the Products in accordance with applicable instruction manuals; or (iii) Buyer alters or repairs Products without the prior written consent of Seller.

Subject to sections above, with respect to any defective Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate; provided that, if Seller so requests, Buyer shall return defective Products to Seller and Seller shall reimburse Buyer for the reasonable and documented out-of-pocket expenses incurred by Buyer for such return. These remedies are Buyer’s sole and exclusive remedy for any breach of the limited warranty. No parts, components or service time will be provided without a Purchase Order from the Buyer and Order Acknowledgment from Seller. No charge will be made to Buyer for warranty items; however, Buyer will be billed for goods and/or services not covered by this limited warranty.

Seller points out that it will endeavor to ensure that any supplied equipment and components are shipped from its premises clean and free of any broken or loose ferrous and non-ferrous particles. It is advised that it is the customer’s responsibility to ensure the cleanliness of the equipment meets their requirements prior to start-up and to provide an adequate and reliable method of monitoring their products.

6. Limitation of Liability

In no event shall seller be liable to buyer or any third party for any loss of use, revenue or profit or diminution in value, 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.

In no event shall seller’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the lesser of (x) the total of the amounts paid to seller for the products and services sold hereunder or (y) $250,000.

The limitation of liability set forth shall not apply to liability resulting from Seller’s gross negligence or willful misconduct.

7. Delivery of Products and Performance of Services

a) The Products will be delivered within a reasonable time after Seller’s delivery of a signed Sales Confirmation, subject to availability of finished Products, and any stated delivery schedule or date set forth in the Sales Confirmation or otherwise is an estimate only and not a commitment as to delivery on specific dates. Seller shall not be liable for any delays, loss, or damage in transit, and delay in delivery shall not relieve Buyer of its obligations to accept Products.

b) Unless otherwise stated in the Quote or Order Acknowledgement, Seller shall deliver the Products Ex Works (EXW Incoterms 2020) to the location set forth in the Order Acknowledgement (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Products. Buyer shall take delivery of the Products within five (5) days of Seller’s written notice that the Products have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point, and will unload and release all transportation equipment promptly so Seller incurs no demurrage or other expense.

c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the

units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.

d) If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Seller’s notice that the Products have been delivered at the Delivery Point, or if Seller is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall pay Seller $1,000 per day of such storage plus the amount of all related out-of-pocket costs and expenses.

e) Seller shall use reasonable efforts to meet any performance dates to render the Services (if any) specified in the Sales Confirmation, and any such dates shall be estimates only.

f) With respect to any Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

g) Seller shall use commercially reasonable efforts to accommodate reasonable requests by Buyer in advance and in writing to have mutually agreed representatives of Buyer witness, at Buyer’s sole cost and expense and during regular business hours, Seller’s mutually agreed factory tests of Products, subject to appropriate access restrictions as determined in Seller’s sole discretion, if such witnessing can be arranged without delaying the work or otherwise interfering with Seller’s business or operations.

h) Shipments, deliveries, and/or performance of Services shall at all times be subject to the approval of Seller’s credit department and in case Seller shall have any doubt as to Buyer’s responsibility, Seller may decline to make any further shipments and provide further Services hereunder, except upon receipt of satisfactory security or payment in advance.

8. Non-Delivery

a) Seller shall not be liable for any non-delivery of Products unless Buyer gives written notice to Akona of the non-delivery within 5 days of the date when the Products would in the ordinary course of events have been received.

b) Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.

c) Buyer acknowledges and agrees that the remedies set forth above are Buyer’s exclusive remedies for any non-delivery of Products.

9. Title and Risk of Loss

Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code.

10. Inspection and Rejection of Nonconforming Products

a) Buyer shall inspect the Products within thirty (30) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Products” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.

b) If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller’s facility. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point.

c) Buyer acknowledges and agrees that the remedies set forth are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.

d) A per diem charge of .05% of the purchase order value of the involved equipment or a per diem charge of $50.00 per day, whichever is greater, will be charged for delays created by Buyer to schedule customer inspection or acceptance testing. The charge will be computed commencing 2 weeks after Buyer has been notified of a specific date for inspection or test. Notwithstanding the foregoing, if final inspection of equipment is required that includes testing with material, a $250 per diem charge will apply.

11. Indemnification

a) Buyer and Akona (each, an “Indemnifying Party” as applicable) shall each indemnify, defend and hold the other Party, including the other Party’s directors, officers, employees, agents and representatives (the “Indemnified Parties”), harmless from and against any and all demands, claims, actions, causes of action, liabilities, suits, proceedings, investigations or inquiries, or any settlement thereto, and all related expenses, including, but not limited, to all litigation expenses (including reasonable attorneys’ fees and court costs) and settlement amounts, that arise from or in connection with, directly or indirectly, the Indemnifying Party’s negligence or breach of this Contract, provided, however, that any indemnification under this Subsection is capped at the price allocable to Products or Services under the Contract or (where applicable) the Indemnifying Party’s applicable insurance policy limits.

b) In the event Buyer modifies Products or incorporates Products into another product or component part, Buyer agrees to hold harmless, fully defend and indemnify Seller and Seller Indemnitees from any and all claims, liabilities, losses, penalties, interest, costs, damages and expenses (including attorneys’ fees and litigation costs) involving personal injury or property damage.

c) Buyer assumes all risk and liability for loss, damage or injury to third person or property arising from the use of goods supplied by Seller to Buyer. Buyer agrees to defend, indemnify and hold harmless Seller, including its directors, officers, employees, agents and representatives (collectively “Seller Indemnitees”), against liability or obligations that arise from contract or tort, including but not limited to negligence including strict liability or otherwise with respect to any indirect or consequential damages, lost profits, overtime, replacement equipment or services, penalties, loss or damage to Buyer or any third person.

d) Buyer agrees to hold harmless, fully defend and indemnify Seller and Seller Indemnitees from and against any and all patent or other intellectual property claims related to (i) any Products made in accordance with Buyer’s designs or specifications; (ii) the use of any drawings provided to Seller by Buyer for use in the manufacture, production or assembly of Products; or (iii) Buyer’s modification of Products or Buyer’s combination of Products with another product, which in either case was not previously authorized by Seller.

12. Confidentiality 

All non-public, confidential, or proprietary information of Seller—including, without limitation, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, and rebates—disclosed to Buyer in any form (oral, written, electronic, or otherwise), and whether or not marked or identified as “confidential,” shall be treated as confidential and used solely for purposes related to this Agreement. Such information may not be disclosed or duplicated without Seller’s prior written consent. Upon request, Buyer shall promptly return or securely dispose of all documents and materials provided by Seller. Seller may seek equitable relief, including injunctive remedies, for any unauthorized use or disclosure of such information.

This obligation does not apply to information that: (a) is or becomes publicly available through no breach of this Agreement; (b) was already known to Buyer at the time of disclosure without restriction; or (c) is lawfully received from a third party without a duty of confidentiality.

13. Intellectual Property 

Akona and Buyer will each retain ownership of their respective intellectual property. If any Akona intellectual property is incorporated into the products or services provided under this Agreement, Akona grants Buyer a non-exclusive, perpetual, royalty-free license to use such intellectual property as necessary for the installation, operation, and maintenance of those products or services. This license is limited to the scope of use required for Buyer’s internal business purposes and does not transfer any broader rights or ownership.

14. Termination 

In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Seller shall not be required to proceed or continue with performance of the Order Acknowledgment while Buyer is in default under this Agreement or any other contract or agreement with Seller.

15. Buyer’s Acts or Omissions

If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer, or of Buyer’s agents, subcontractors, consultants, or employees (including any failure by Buyer to timely perform its obligations), Seller shall not be deemed in breach of this Agreement or otherwise liable for any costs, losses, or damages incurred by Buyer to the extent such prevention or delay is caused, directly or indirectly, by such act or omission. In such cases, all delivery and performance timelines for the products and/or services shall be automatically extended to account for the duration and impact of the delay.

16. Compliance with Law

Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.

17. Waiver

No waiver by Seller of any 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. No single or partial exercise of any right, remedy, power or privilege precludes any other or further exercise of any other right, remedy, power, or privilege.

18. 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.

19. 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.

20. Force Majeure

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) national or regional emergency; (f) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 180 consecutive days following written notice, either party may thereafter terminate this Agreement upon 30 days’ written notice.

21. 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. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

22. Severability

If any provision of these Terms is found to be, for any reason, unenforceable, such a finding will have no effect on other provisions.

23. Governing Law

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Iowa or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.

24. Dispute Resolution

Any legal suit, action, or proceeding arising out of or relating to this Agreement, or breach thereof, shall be finally resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “Arbitration”), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator in the Arbitration must have no less than 10 years of experience in complex commercial transactions.

25. 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 the Order Acknowledgment 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 Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

26. Survival 

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: [Insurance,] Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.

27. Drawing Revisions

Customers are entitled to up to two (2) revisions of approval drawings at no additional charge. Any revisions requested beyond the second will be billed at a rate of $500 per hour, with a minimum charge of four (4) hours per additional revision cycle.

28. Amendment and Modification 

These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each Party. Neither the Agreement nor any of its provisions may be modified, amended or waived, whether orally, through the parties’ course of performance, course of dealing or course of conduct, or manifested in any other way, unless in writing and signed by a representative of each Party.

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