PAS Terms and Conditions

1. Any claim for shortage or damage or condition of product (excluding chemical analysis) sold or equipment leased hereunder must be made in writing at once upon arrival of such product or equipment. Failure by customer to so notify Professional Agronomy Services, LLC (“PAS”) will be deemed a waiver of such claims by customer. Where delivery is customer’s responsibility, risk of loss or damage to any product sold, equipment leased, or containers used to transport either shall pass to customer when product or equipment are made available for pick up at PAS’s shipping point. Where delivery is PAS’s responsibility, risk of loss of or damage to any product sold, equipment leased, or containers used to transport either shall pass to customer when PAS or its designated carrier or agent enters customer’s property.

2. PAS hereby represents that the Fair Labor Standards Act of 1938, as amended, has been complied with in the production of the goods covered hereby.

3. Customer represents and warrants that it is familiar with the characteristics, qualities and uses of the product and/or equipment sold or leased hereunder and that customer is not relying on PAS’s skill or judgement to select or furnish product or equipment for any particular purpose. No person or agent has any authority on behalf of PAS to make any warranties or representations different from, or in addition to, those stated herein. PAS is a distributor of goods manufactured by third parties; therefore, the products sold or equipment leased to customer are subject only to the manufacturer’s warranties, if any. PAS MAKES NO REPRESENTATIONS OR WARRANTIES RESPECTING ANY PRODUCT, EQUIPMENT OR SERVICES PROVIDED HEREUNDER, EXCEPT THAT SERVICES WILL BE CONSISTENT WITH PAS’s STANDARD PRACTICES AND THOSE WHICH ARE GENERALLY FOLLOWED BY SIMILAR PROVIDERS IN THE SAME INDUSTRY. PAS EXPRESSLY DISCLAIMS ALL WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE, RESPECTING THE PRODUCT, EQUIPMENT OR SERVICES, INCLUDINGWITHOUT LIMITATION FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. Customer warrants that it has been provided adequate product and equipment information and instructions, and will follow the proper direction in the use of any product and equipment.

4. NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS OR ELSEWHERE IN THIS INVOICE/STATEMENT, PAS’s LIABILITY FOR DIRECT DAMAGES (A) FOR PRODUCT SOLD OR EQUIPMENT PROVIDED SHALL IN NO EVENT EXCEED THE PURCHASE OR LEASE PRICE OF THE PARTICULAR DELIVERY OF PRODUCT OR EQUIPMENT WITH RESPECT TO WHICH SUCH DAMAGES ARE CLAIMED, OR (B) FOR SERVICES PROVIDED SHALL NOT EXCEED THE CONTRACT PRICE FOR THE PARTICULAR SERVICES PERFORMED. PAS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, ENHANCED OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOST PROFITS, DIMINUTION IN VALUE OR LOSS OF YIELD, FOR ANY REASON WHATSOEVER, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR THE CUSTOMERWAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THE LEGAL OR EQUITABLE THEORY UPONWHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. PAS does not warrant and shall not be liable for any results obtained in using any product or equipment sold or leased hereunder either alone or in combination with other substances, products or equipment, and shall not in any case be liable to customer or any other person or entity for damages to person or property or otherwise, incurred as a result of the use, treatment, storage, handling (including without limitation demurrage or like charges), disposal, application or performance of any product or equipment sold or leased hereunder.

5. Customer agrees to investigate, indemnify, defend and hold harmless PAS and its affiliates and each of their respective shareholders, directors, officers, employees and agents from and against all liability, loss, damages, injury, claims, judgments, demands, penalties, fines, suits or proceedings, whether judicial, administrative or otherwise, and attorney’s fees and other costs and expenses of whatever kind and nature, arising out of or in any manner related to the use, transportation, storage, handling, disposal, operation or performance of the product or equipment provided by or on behalf of PAS hereunder.

6. The terms of credit for customer making purchases are as follows: (i) payment in full is due and payable as presented on Page 1 of this document; (ii) for customers with payment dates of the 10th day of month, statement amounts not paid by the 25th day of the month following the statement, shall also be liable for a one time default penalty fee equal to four percent (4%) of the unpaid amount for purchases in Mississippi, North Carolina or five percent (5%) in South Carolina, Georgia, Alabama, Arkansas, Virginia, Maryland, Delaware, New York, Pennsylvania, Connecticut, Maine, Vermont, Rhode Island, New Hampshire, West Virginia, Louisiana, Oklahoma, New Mexico & Texas; (iii) all customers with credit terms, for amounts due and not paid by the 25th day of the month following the statement date, shall also be liable for a finance charge on the unpaid balance at the highest rate allowable by statutory law. In the event of any conflict between the terms of the invoice, statement and the Customer Profile (Credit Application), the terms of the invoice shall control.

7. Any invoice not paid in full by the 25th day of the month will be assessed a finance charge of 2% per month (24.0% APR) except as listed below. The finance charge will be computed as of PAS’s accounting month end closing and each succeeding month end until the balance is paid in full.

8. PAS, without written notification to the customer, will comply with future statues adopted by the states pertaining to permissible default penalty charges and finance charge rates.

9. Your acceptance of delivery of any product, equipment or services after January 1, 2009 constitutes acceptance of these terms by you. These terms, together with the terms presented on Page 1 of this document and any Customer Profile (Credit Application) (collectively, the “Agreement”), represent and incorporate the entire understanding between the parties with respect to the subject matter hereof and supersede all previous oral or written agreements between PAS and customer regarding the products, equipment and services. Any terms contained in any purchase order, order acknowledgement, invoice, or similar document, which are inconsistent with or in addition to the terms contained in the Agreement shall be deemed rejected and shall form no part of the Agreement, and in the event of a conflict between the terms of the Agreement and any such document, the terms of the Agreement shall govern and prevail. The terms of the Agreement may not be amended or waived except in a writing signed by the parties hereto.

10. Customer will use, handle, store, transport and dispose of products and equipment in such a manner as is necessary for the safety and protection of persons, property and the environment, and in accordance with the manufacturer’s guidelines and labels, applicable law, and Material Safety Data Sheets for such products and equipment. Customer will adequately instruct and train employees with respect to the same and will inform employees and customers of hazards with respect to products and equipment sold or leased hereunder.

11. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Colorado, notwithstanding that state’s rules relating to conflicts of laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

12. PAS shall not be liable to customer, nor be deemed to have breached this agreement, for any failure or delay in fulfilling its obligations hereunder, to the extent such failure or delay is due to causes or contingencies beyond its reasonable control, including, but not limited to, acts of God, the elements, actions of government, strikes, fires, floods, wars, civil commotions, industrial disturbances, shortages of adequate power or transportation facilities, strikes, labor disturbances and embargoes.

The following additional provisions shall apply when Customer provides Seller funds to be held on Customer’s account for future purchase(s) of qualifying product, equipment or services that are not specifically identified) at the time Customer provides such funds (a “General Prepayment”):

In consideration of Seller accepting Customer funds in connection with a General Prepayment (“General Prepay Funds”), Customer agrees to these provisions governing General Prepayment, in addition to the above Terms and Conditions (collectively, the “General Prepay Agreement”). In the event of a conflict between the following terms and the Terms and Conditions, the following terms shall govern and prevail. General Prepay Funds are non-refundable and non-transferable except within Seller’s sole discretion. General Prepay Funds may only be applied to purchases of qualifying product, equipment or services. This General Prepay Agreement does not guarantee availability or a particular price for any of Seller’s product, equipment or services. General Prepay Funds must be applied to the purchase of qualifying product, equipment or services within a commercially reasonable period of time from the date they are provided to Seller. Seller may permit an extension of this time period but shall be under no obligation to do so. If Customer has not timely applied all General Prepay Funds to the purchase of qualifying product, equipment or services, then Seller may, in its sole discretion and in addition to any other rights and remedies available to it in law or equity, terminate this General Prepay Agreement and retain, as liquidated damages and not as a penalty, the General Prepay Funds. The parties acknowledge and agree that Seller’s harm caused by Customer’s breach of this General Prepay Agreement would be impossible or very difficult to accurately estimate at the time of contracting and that the amount of General Prepay Funds is a reasonable estimate of the anticipated or actual impact to Seller. If Customer owes any outstanding amounts to Seller or its affiliates, Seller may first apply Customer’s General Prepay Funds to satisfy such amounts (including penalties and interest). General Prepay Funds do not entitle Customer to any discount, interest, or other benefit.

The following additional provisions shall apply when Customer provides Seller funds to purchase specific product, equipment or services, but desires to take possession or delivery of the same at a future date (“Specific Prepay”):

In consideration of the Seller providing the prepaid products or services set forth above (“Prepaid Items”), Customer agrees to the following terms governing Specific Prepay, in addition to the above Terms and Conditions (collectively, the “Specific Prepay Agreement”). In the event of a conflict between the following terms and the above Terms and Conditions or the Customer Contract, the following terms shall govern and prevail. Customer shall pay to Seller the Extended Price detailed in the above Customer Contract (“the Prepaid Purchase Price”) no later than the above Prepayment Due Date. Thereafter, Seller shall deliver or perform the Prepaid Items to or at the location designated by Customer at any time during the period beginning on the applicable “Valid From” date set forth above until the “Valid To” date also set forth above (the “Final Delivery Date”). Customer acknowledges that this Specific Prepay Agreement is not cancellable; however, if Customer does not take delivery of the Prepaid Items within a reasonable time, or if delivery becomes impossible or impractical in Seller’s sole discretion, the Specific Prepay balance may be converted to General Prepay. If Customer has not accepted delivery or performance of all of the contracted quantity set forth above of the applicable Prepaid Items (“Contracted Quantity”) by the Final Delivery Date, then Seller may, in its sole discretion and in addition to any other rights and remedies available to it in law or equity or under this Specific Prepay Agreement, (i) require Customer to pay a storage fee equal to ___________________ per __________ for Prepaid Items in storage on the first day of each month, until such time as delivery or performance of the entire Contracted Quantity has been accepted by Customer, or (ii) terminate this Specific Prepay Agreement and retain, as liquidated damages and not a penalty, the Prepaid Purchase Price. The parties acknowledge and agree that Seller’s harm caused by Customer’s breach of this Specific Prepay Agreement would be impossible or very difficult to accurately estimate at the time of contracting and that the Prepaid Purchase Price is a reasonable estimate of the anticipated or actual impact to Seller. If Customer is willing to accept delivery or performance of the Contracted Quantity of Prepaid Items, but Seller is unable to deliver or perform prior to the Final Delivery Date, Seller will continue to honor the Prepaid Purchase Price and deliver or perform the Prepaid Items within a mutually agreeable period of time after the Final Delivery Date. For the avoidance of doubt, if Customer’s requirements exceed the Contracted Quantity set forth above for any Prepaid Items, the price for any excess quantity will be the prevailing retail market price for that product or service and the sale of such product or services shall be governed by the Terms and Conditions provided above. Prepaid Items cannot be exchanged for other similar products or services using an equivalent prepay price. Customer agrees to pay any taxes, duties or charges that are applicable to the sale of the Prepaid Items purchased hereunder in addition to the Prepaid Purchase Price. Seller shall not be liable to Customer, or deemed to have breached this Specific Prepay Agreement, for any failure or delay in performing this Specific Prepay Agreement when such delay or failure is caused by circumstances beyond Seller’s control, including without limitation, acts of God, severe or unusual weather events or patterns, actions of government, strikes, fires, floods, wars, civil commotions, embargoes, shortages of power, supply, transportation, or infrastructure, industrial disturbances, and other similar events or circumstances.