Terms and conditions

Terms and conditions for product purchases—for use with U.S. and international customers

Last updated March 20, 2024

These are terms and conditions for product purchases (“Terms”) of Oliver Manufacturing Company, Inc. (“Oliver”). These Terms legally bind the customer (“Customer”) which has executed Oliver’s Acknowledgement issued to Customer.

1. Definitions

Unless defined elsewhere in these Terms, capitalized words and phrases have the meanings set forth in this Section 1.

“Acknowledgement” means Oliver’s order acknowledgement setting forth information as to the Products Customer is purchasing and their shipment to Customer for such order, which Customer approves, signs and returns and Oliver then signs and returns to Customer. The Acknowledgement contains an electronic link to these Terms and requires Customer to acknowledge being legally bound by these Terms. By executing an Acknowledgement for an order, Customer represents that Customer has read these Terms and Customer expressly accepts and agrees to be legally bound by these Terms.

“Amended Acknowledgement” means a change, modification, revision, or adjustment to an Acknowledgement, which is set forth in substantially the form attached as Exhibit A.

“Confidential Information” means proprietary and/or non-public information one Party discloses or makes available to the other Party and includes: engineering data, technical data, diagnostics, specifications, confidential business information, customer information, forecasts, financial plans and data, product costs, service costs, marketing plans, unannounced product information, the Firmware, these Terms, the terms of an Acknowledgement, and the terms of a Pro Forma. Confidential Information does not include information the receiving Party can demonstrate: (a) was independently developed by the receiving Party without any use of or access to the disclosing Party’s Confidential Information; (b) became known to the receiving Party from a source having the right to disclose such information without breach of an obligation owed to the disclosing Party; (c) was generally available to the public at the time it was disclosed or becomes available to the public through no act or omission of the receiving Party; or (d) was rightfully known by the receiving Party, without restriction, at the time of disclosure by the disclosing Party.

“Copyright Act” means the U.S. Copyright Act of 1976, 17 U.S.C. § 1 et seq.

“Customer(s)” means and includes U.S. Customers and International Customers.

“Damages” has the meaning set forth in Section 14.a.

“Defect” means a demonstrated defect in materials or workmanship in a Product at the time of shipment which results in such Product not operating in accordance with the Operations Manual; Oliver determines whether a Defect exists at the time of shipment based on Oliver’s inspection of such Product.

“Designated Freight Carrier” means the freight carrier Customer designates to ship Products to Customer, in accordance with Section 6.a.

“Firmware” has the meaning set forth in Section 9.a.

“Infringement Claim” has the meaning set forth in Section 14.a.

“Insolvency Event” means the occurrence of any of the following as to Customer: (i) the filing of a petition commencing a voluntary or involuntary proceeding under any applicable bankruptcy or insolvency law, (ii) a general assignment by Customer for the benefit of creditors, (iii) an admission in writing by Customer of its inability to pay its debts as they become due, (iv) the filing by Customer of a petition or answer for, or consenting to, or acquiescing in, any insolvency, receivership, composition, readjustment, liquidation, dissolution, or similar relief under any present or future statute, law, or regulation, or (v) other action or omission of Customer as to Oliver or as to which Oliver becomes aware, by which it is objectively reasonable for Oliver to determine that Customer by reason of Customer’s financial condition will not pay or otherwise be unable to pay its obligations to Oliver as and when they become due.

“International Customers” means Customers whose corporate address as set forth on the Acknowledgement is outside of the United States and its territories; International Customers includes South America Customers.

“OEM Equipment” means equipment that, at Customer’s request, Oliver specially orders and procures from an original equipment manufacturer to re-sell to Customer.

“Oliver Intellectual Property” has the meaning set forth in Section 10.b.

“Operations Manual” has the meaning set forth in Section 11.

“Parties” refers to Oliver and Customer, collectively.

“Party” refers to Oliver or Customer, individually.

“Pro Forma” means Oliver’s form of pro forma invoice which Oliver may elect to issue to a South America Customer setting forth information as to the Products the South America Customer is purchasing and their shipment, which has been approved and signed by Oliver and Customer. The Pro Forma is not a legal document and serves solely as a back end, supporting document to the Acknowledgement issued to a South America Customer. In the event of any inconsistent term or provision between the Acknowledgement and Pro Forma, the terms and provisions of the Acknowledgement shall prevail over any such inconsistent term or provision in the Pro Forma.

“Product Warranty” has the meaning set forth in Section 13.a.

“Products” means a product from Oliver’s line of materials processing and grain separation products, new and Refurbished, and new parts.

“Purchase Price” has the meaning set forth in Section 5.b.

“Quote” has the meaning set forth in Section 4.a.

“Refurbished” means Oliver’s Products which have been previously used by another Oliver Customer and refurbished by Oliver for additional use.

“Rescheduling Notice” has the meaning set forth in Section 8.a.

“Security Interest” means Oliver’s security interest in Products which Oliver sells to a Customer when a portion of the Purchase Price is paid after shipment, which Oliver may elect to create and perfect in accordance with Section 7.e.

“Ship Date” has the meaning set forth in Section 5.b.

“South America Customers” means Customers whose corporate address as set forth on the Acknowledgement is within any country in either South America or Central America; for clarity, under these Terms International Customers include South America Customers.

“Terms” means these Terms and Conditions for Product Purchases, as they may be amended and updated by Oliver from time to time; these Terms are expressly incorporated into the Acknowledgement and are a part thereof.

“Third-Party Claim” has the meaning set forth in Section 14.c.

“U.S. Customers” means Customers whose corporate address as set forth on the Acknowledgement is within the United States and its territories.

2. Sale of products to customer; terms apply to U.S. and international customers; no distribution authorization

Oliver shall sell to Customer and Customer shall purchase from Oliver the Products in accordance with these Terms. These Terms apply to and govern Product sales to U.S. Customers and International Customers.

Any quote (including the Quote), purchase order, correspondence, Customer link to other terms, communication, or other document, whether delivered or exchanged in hard copy or digitally which purports to govern Oliver’s sale of Products, OEM Equipment or parts shall be of no force or effect.

Customer’s purchase of Products from Oliver is solely for Customer’s ownership and use. Customer shall not be authorized to act as a reseller or distributor of the Products unless, as of the date of the Acknowledgement, Customer and Oliver have in effect between them Oliver’s Manufacturing Distribution and Service Agreement.

Representations of the parties

a. Oliver

Oliver hereby represents to Customer that: (i) Oliver is duly authorized to execute, deliver and perform these Terms; (ii) these Terms do not violate or conflict with any agreement to which Oliver is a party or by which Oliver is bound; and (iii) Oliver is in compliance with applicable laws and regulations governing Oliver’s business including export controls, import controls, customs regulations, and fair trade.

b. Customer

Customer hereby represents to Oliver that: (i) Customer is duly authorized to execute, deliver and perform these Terms; (ii) these Terms do not violate or conflict with any agreement to which Customer is a party or by which Customer is bound; and (iii) Customer is in compliance with all applicable laws and regulations governing Customer’s business including export controls, import controls, customs regulations, and fair trade.

4. Price quotes; all inclusive; taxes and duties

a. Price quotes

Oliver provides Customer with a price quote (“Quote”) for Products proposed to be purchased by Customer. The Quote includes a description of the Product, quantity, pricing, and other data. Oliver’s pricing on the Quote is valid until the “Expiration Date” on the Quote. Oliver’s pricing relies on Customer’s specific request and information Customer provides to Oliver, orally or in writing, as to the (i) materials Customer processes (for example, grain, seeds, plastics, or recycled materials), (ii) qualities, quantities, and characteristics of Customer’s materials which impact processing them, and (iii) physical samples Customer provides to Oliver. The Quote is not a legal agreement between Oliver and Customer.

b. All inclusive

The pricing set forth on the Quote is all-inclusive except for freight and insurance charges; applicable taxes; CE (for Products intended for the (EU) European market) or ATEX (for Products intended for the (EU) European market) compliance; and crating fees, all of which are added and set forth on Oliver’s final invoice.

c. Taxes and duties

Customer shall pay all taxes and applicable import and export duties which are computed based on the Purchase Price of the Products and correspondingly that which Oliver is required to collect and remit to tax and other governmental authorities. Customer is responsible for sales, use and excise taxes and taxes charged to Oliver by its OEM suppliers for OEM Equipment. Customer is not responsible for taxes based on Oliver’s income, gross receipts, or franchise and similar taxes.

5. Completion of items prior to sale

a. Completion of items prior to product sale

Oliver’s sale and Customer’s purchase of Products is not legally binding until the Parties have completed and exchanged the following items: (i) the Acknowledgement is complete as provided in Section 5.b; (ii) Oliver and Customer have approved, signed and exchanged the signed Acknowledgement; (iii) Oliver has received Customer’s signed approval of drawings (graphical depictions prepared by Oliver) of the size and configuration of Oliver’s Products to be situated in Customer’s premises, provided, this third requirement does not apply when Products are Refurbished, are parts, are used, are in response to a warranty claim, or Oliver in writing waives this drawings requirement; and (iv) Customer has made the initial payment set forth on the Acknowledgement. Except for such initial payment, all such exchanges shall be made via electronic mail.

Oliver shall be entitled to rescind an Acknowledgement at any time by electronic mail notice to Customer, in the event Customer has not returned the signed Acknowledgement and the initial payment to Oliver within ten (10) days after the “Sales Order Date” set forth on the Acknowledgement.

b. Completion of acknowledgement

In order for an Acknowledgement to be complete prior to Oliver and Customer signing it, the Acknowledgement shall include substantially the following information: (i) Customer’s name and address; (ii) Customer’s materials (grain, seeds, plastics or recycled materials) Customer intends to process; (iii) if Customer is an authorized Oliver distributor or reseller, the name, address and other designated information as to the Product(s) end user; (iv) Parts ID numbers and Product name(s) and description(s), and if applicable whether the Products are used or Refurbished; (v) quantity of Products ordered; (vi) each Product unit price; (vii) applicable discount, extended price and payment terms; (viii) shipping method or who arranged shipment, and freight terms or that freight was billed; (ix) the designated delivery destination; (x) the estimated ship date (the “Ship Date”); and (xi) the purchase amount (the “Purchase Price”) (Grand Total).

Oliver may issue a separate Acknowledgement for a Customer’s OEM Equipment order or combine such order in an Acknowledgement for a Product order. In either case, the Acknowledgement will include such information as to the OEM Equipment as Oliver determines to include in such Acknowledgement.

c. Completion of pro forma for South America customers.

For South America Customers, in order for a Pro Forma to be complete prior to Oliver and Customer signing it, the Pro Forma shall include substantially the following information: (i) Customer’s name and address; (ii) Product name(s) and description(s), and whether such Products are used and if applicable Refurbished; (iii) OEM Equipment name(s) and description(s) (if any); (iv) the quantity of Products ordered, including OEM Equipment (if any); (v) each Product and OEM Equipment (if any) unit price; (vi) applicable discount, if any, and corresponding total price and agreed-upon payment terms; (vii) shipping method and freight terms; (viii) the delivery destination; and (ix) the Purchase Price (Grand Total).

6. Shipping and risk of loss; Oliver invoicing for shipping (freight and transportation); drop shipments for products, OEM equipment and parts; completion estimate; shipping delay.

a. Shipping and risk of loss

Oliver shall ship all Products to Customer with the freight carrier designated by Customer (“Designated Freight Carrier”). Oliver shall convey to Customer good title to the Products, subject to Oliver’s Security Interest (if any). All Products shall be prepared, marked (bar coded), and packed for shipment in accordance with Oliver’s customary methods of packing Products for shipment.

Except for drop shipments for Products, OEM Equipment, and parts as provided in Section 6.c, all Products shall be shipped from Oliver’s warehouse in La Junta, Colorado. Incoterms 2022, Ex-Works shall apply to all shipments. Title and risk of loss shall pass to Customer at the time the Products are delivered to the Designated Freight Carrier at Oliver’s warehouse in La Junta, Colorado, which delivery shall terminate Oliver’s responsibility for risk of loss or damage in transit. Title and risk of loss shall pass at such time regardless of whether Oliver or Customer arranges shipment. When Oliver arranges shipment, it will insure the shipped Products and charge the cost to Customer. When Customer arranges shipment, it will insure the shipped Products.

In the event Oliver arranges freight and shipment of the Products for Customer, this shall be solely an accommodation and shall not affect Customer taking title and bearing all risk of loss once the Products are delivered to the Designated Freight Carrier at Oliver’s warehouse. All claims for freight damage or loss are Customer’s sole responsibility. In the event of a Customer claim against the Designated Freight Carrier, Oliver providing documentation in support of the claim shall solely be an accommodation for Customer. Oliver shall have no responsibility if the claim is unsuccessful or otherwise by reason of a Customer claim against the Designated Freight Carrier.

b. Oliver invoicing for shipping (freight and transportation)

In the event Oliver arranges for shipping of Products to Customer and Oliver agrees to pay the Designated Freight Carrier directly, Oliver shall invoice Customer for its shipping costs (freight, transportation and insurance) in advance of actual Product shipment. Oliver shall invoice for its estimated shipping costs, which may be greater than the shipping cost charged by the Designated Freight Carrier. Customer shall pay Oliver for its estimated shipping costs and Oliver shall retain the excess, if any, over the actual Designated Freight Carrier charges.

In the event Oliver’s estimated shipping costs turn out to be lower than Oliver’s costs owing to the Designated Freight Carrier, Oliver shall invoice Customer for the difference for Oliver to remit to the Designated Freight Carrier. Customer will notify Oliver in writing within five (5) days after Customer’s receipt of shipped Products of any damage or loss to such shipped Products in order to enable Oliver to report such damage or loss to the Designated Freight Carrier.

c. Drop shipments for products, OEM equipment and parts

. In the event Oliver arranges freight and shipment for Products, OEM Equipment or Parts to be drop-shipped directly to Customer, this shall also be solely an accommodation for Customer. Oliver shall have no responsibility for drop-shipped Products, OEM Equipment or parts at the manufacturer or third-party warehouse or in transit. Customer shall take title and bear all risk of loss once the Products, OEM Equipment or parts are delivered to the Designated Freight Carrier at the manufacturer or third-party warehouse.

Customer shall be responsible and shall pay for all costs incurred in shipping, handling and insurance and all charges of such Designated Freight Carrier, all as invoiced by Oliver. All claims for freight damage or loss are Customer’s sole responsibility. In the event of a Customer claim against the Designated Freight Carrier, Oliver providing documentation in support of the claim shall solely be an accommodation for Customer. Oliver shall have no responsibility if the claim is unsuccessful or otherwise by reason of a Customer claim against the Designated Freight Carrier.

d. Completion estimate; shipping delay

The Ship Date on the Acknowledgement is Oliver’s estimate of the time required to build and complete the Products set forth on the Acknowledgement and ship the Products from Oliver’s warehouse in La Junta, Colorado. Oliver shall not be liable for any cost, expense, damage or loss which results from sourcing components or logistics delays, other delays, or failure to deliver, any or all of the Products or OEM Equipment ordered on or by the Ship Date.

Oliver will use reasonable efforts to notify Customer via electronic mail of any event or condition that could delay having the Products ready for shipment by the Ship Date. If shipment is delayed by any person other than Oliver, payment will be due under Oliver’s invoice to Customer whether or not Customer has received the shipment.

7. Invoices; payments; payment by credit card; credit requests; interest; security interest on shipped products; collection costs.

a. Invoices

Oliver invoices Customer for Products in the course of their manufacture and assemblage, and Customer’s payments of such invoices shall be made to Oliver in accordance with the terms of the Acknowledgement. Oliver issues separate invoices for each Acknowledgement. All invoices for the Products shall be delivered to Customer via electronic mail. An invoice is not a legal agreement between Oliver and Customer.

b. Payments; payment by credit card

The Purchase Price and Oliver’s terms are based on Customer paying all amounts due in cash (that is, check, ACH or wire transfer). In the event Customer determines to pay the Purchase Price with a credit card, Oliver will charge Customer a processing fee which will be a percentage of the Purchase Price. This percentage reflects the fees and charges Oliver incurs with the various merchant (credit card) companies, which Oliver may adjust from time to time in its discretion to cover such fees and charges.

c. Credit (refund) requests

Not later than thirty (30) days after Oliver receives a written request by Customer for a credit or refund, Oliver in its discretion shall either (i) issue a credit or refund to Customer in the full amount of the request, or (ii) deliver written information via electronic mail to Customer as to Oliver’s refusal to grant credit or a refund or granting a partial credit or refund. Oliver must receive a credit or refund request in writing via electronic mail by not later than ninety (90) days after the date of Oliver’s delivery of the Products to the Designated Freight Carrier at Oliver’s warehouse, manufacturer or third-party warehouse.

d. Interest

Oliver shall charge Customer interest on unpaid amounts due under Acknowledgements commencing on the date payment is due, at one and one-half percent (1½%) per month until paid-in-full.

e. Security interest in shipped products

Oliver at its election shall be authorized to create and perfect an enforceable first-priority Security Interest in any Products shipped to Customer in the event any portion of the Purchase Price is to be paid to Oliver after shipment, no matter the amount involved or when the payment will be due. Customer authorizes Oliver to prepare and file such financing statements and other documentation in accordance with applicable laws including as to International Customers’ and South America Customers’ local laws as Oliver determines appropriate. At Oliver’s request Customer will sign such instruments and documents in cooperation with Oliver to effect fully Oliver obtaining a Security Interest in shipped Products.

f. Collection costs

In the event Oliver incurs attorneys’ and/or agency fees and/or other costs of collection to collect sums due Oliver under unpaid invoices, Customer shall pay and reimburse Oliver for Oliver’s attorneys’ and/or agency fees and costs incurred and any other costs incurred by Oliver.

8. Rescheduling; cancellation of an acknowledgement; returned products; Oliver termination of acknowledgement.

a. Rescheduling

Customer shall be authorized to reschedule the Ship Date for the Products to be delivered pursuant to an Acknowledgement once without charge. In order to reschedule the Ship Date, Customer shall provide Oliver with a written notice with the Re: or email subject line entitled “Rescheduling Notice” (the “Rescheduling Notice”) to Oliver via electronic mail. Customer must send the Rescheduling Notice to Oliver by not later than forty-five (45) days prior to the original Ship Date. Such new Ship Date shall not be later than sixty (60) days after the original Ship Date.

The new Ship Date specified in such Rescheduling Notice, in order to become effective, must be affirmatively acknowledged and agreed-to by Oliver and set forth in an Amended Acknowledgement to be completed and exchanged via electronic mail. Such new date as reflected in the Amended Acknowledgement shall then become the new Ship Date for the Acknowledgement, which in all other respects shall remain unchanged and in full force and effect.

Upon receiving a Rescheduling Notice, Oliver may elect to either (i) adjust (delay) its production schedule for the Products subject to the Acknowledgement consistent with the new Ship Date, or (ii) proceed to manufacture such Products, hold them for shipment consistent with the new Ship Date, and upon completion invoice Customer with Oliver to be paid based upon the invoice date notwithstanding the revised Ship Date. Customer may not reschedule the Ship Date more than once without Oliver’s prior written consent.

b. Cancellation of an acknowledgement

Customer shall not be authorized to cancel an Acknowledgement without Oliver’s prior written consent and unless Customer’s cancellation is prior to Oliver commencing the manufacturing and assemblage process. In the event Oliver authorizes cancelling an Acknowledgement, Customer shall reimburse Oliver for Oliver’s costs incurred as follows:

(i) For cancelled Acknowledgements for Products only, Customer shall pay Oliver an amount equal to forty percent (40.0%) of the Purchase Price for the Products ordered plus applicable taxes and shipping charges incurred; and

(ii) For cancelled Acknowledgements for Products and OEM Equipment, for the Products ordered Customer shall pay Oliver an amount equal to forty percent (40.0%) of the portion of the Purchase Price applicable to the Products plus applicable taxes and shipping charges incurred. In addition, Customer shall pay Oliver for the full portion of the Purchase Price applicable to the OEM Equipment or such lesser amount charged by the OEM Equipment vendor, plus applicable taxes and shipping charges incurred.

c. Returned products

No Products may be returned and accepted for credit unless Oliver first expressly authorizes the return in writing via electronic mail. In the event Oliver authorizes a return, Customer may return the Products with freight prepaid and the Products being in good condition upon Oliver’s receipt. OEM Equipment and all non-standard items are not returnable under any circumstance.

Oliver will charge up to a forty percent (40.0%) restocking fee on all returned Oliver Products. Oliver shall determine the restocking fee in its sole discretion based on: (i) whether the Products are fully built and customized for Customer, or whether the purchase was for parts which are more readily re-saleable; (ii) Oliver’s processing and handling times; and (iii) other items to account for Oliver’s costs.

d. Oliver termination of acknowledgement

Oliver shall be authorized to terminate an Acknowledgement in its sole and absolute discretion immediately upon written notice via electronic mail to Customer, in the event Oliver reasonably determines that Customer is subject to or is likely to become subject to an Insolvency Event.

9. Firmware; Oliver ownership

a. Firmware

Oliver’s Products contain and incorporate as part of their use and operation proprietary software and programming code which Oliver embeds into the Products to facilitate their operation, including as to all programmable logic controllers (PLC), variable frequency drives (VFD), human (user) machine interfaces (HMI) and other operational functionalities in the Products (“Firmware”). Oliver hereby authorizes Customer to use the Firmware in accordance with these Terms solely for Customer to properly operate and fully utilize the Products. Oliver will not provide Customer with updates or revisions to the Firmware unless Oliver and Customer expressly arrange for additional support and the terms for same are set forth in an Amended Acknowledgement.

b. Oliver ownership

Oliver is the sole and exclusive owner of the Firmware and all rights of copyright and other intellectual property rights therein throughout the world under the Copyright Act and all international laws, treaties, and conventions. Customer shall not modify, adapt, create a derivative work, sublicense, share, make available, reverse engineer, decompile, or transfer all or any part of the Firmware. Customer shall not cause or permit removal or alteration of any notice, legend or symbol denoting any copyright or other proprietary right of Oliver. In the event of Customer’s breach, Oliver may elect to revoke the authorization granted in Section 9.a upon written notice to Customer. Oliver reserves solely for itself all rights in and to the Firmware.

10. Confidential information; Oliver intellectual property

a. Confidential information

In the course of their work and relationship, Oliver and Customer may likely disclose Confidential Information to each other. All such disclosures shall be deemed confidential and strictly treated as such by the receiving Party. Oliver and Customer each agree not to use, other than for Oliver’s sale and Customer’s Product purchase and operations or disclose to third parties at any time any Confidential Information of the other Party. The standard of care for protecting Confidential Information shall be that standard used by the receiving Party to prevent the disclosure, publication or dissemination of its own Confidential Information.

b. Oliver intellectual property

Oliver is the sole and exclusive owner throughout the world of all intellectual property rights, including copyright, in and to the Firmware, the Operations Manual, all user documentation and instructions of Oliver, the Acknowledgment, and the Pro Forma (collectively, the “Oliver Intellectual Property”) under the Copyright Act and all international laws, treaties and conventions. Customer shall not modify, adapt, create a derivative work, reverse engineer, decompile, make available, transfer, or distribute to any other person, firm, or organization all or any part of the Oliver Intellectual Property. Customer shall not cause or permit removal or alteration of any notice, legend, or symbol denoting any intellectual property or other proprietary right or interest of Oliver.

11. Operations manual.

Oliver shall include with each Product shipped (exclusive of Parts shipments) an Operations Manual for such Product (in print or electronic format) in the English language, which shall set forth pertinent information as to safety precautions, installation, operation, maintenance, trouble shooting, warranties, and parts ordering (the “Operations Manual”).

The Operations Manual is applicable only to the specific Product to which it pertains and Customer shall use the Operations Manual only to support Customer’s operation of the Products. Upon an International Customer’s request, Oliver may produce a translation of the Operations Manual and elect to charge its translation costs to such International Customer.

12. Certain obligations of customer

In addition to the other obligations of Customer set forth in these Terms and whether the Products are new, used or Refurbished, Customer is responsible for: (i) using the Product in accordance with the instructions and restrictions set forth in the Operations Manual; (ii) complying with electrical manufacturer’s recommendations, underwriter’s code, and safety precautions; (iii) establishing and enforcing its own electrical safety program and procedures, and providing comprehensive safety training, for all persons operating, maintaining or interfacing with the Oliver Products; and (iv) implementing and enforcing an approved lockout-tagout program, whether by OSHA or applicable domestic or international governmental agency where Customer or the end-user is located; that is, a program for the adoption and implementation of procedures and practices to shut down equipment, isolate it from energy source(s), and prevent the release of potential energy while maintenance and servicing activities are being performed, applicable to authorized, affected and other employees.

In Customer’s operation of the Products, U.S. Customers are solely responsible for compliance with any applicable provisions of OSHA, and International Customers are solely responsible for compliance with applicable local laws governing worker health and safety where Customer or the end-user is located.

13. Product warranty for new products; product warranty for refurbished products; product warranty void; notice and replacement; disclaimer.

a. Product warranty for new products

Oliver warrants new Products (not Refurbished or used) to be free from Defects for a period of one (1) year after the date that the Products are delivered to the Designated Freight Carrier either at Oliver’s warehouse or in the case of drop-shipped Products as provided under Section 6.c) at the manufacturer’s or other third party’s warehouse (“Product Warranty”). All OEM Equipment, OEM software, and other components not manufactured by Oliver are covered by the warranty and related terms provided by the OEM or other manufacturer. Oliver’s Product Warranty covers replacement of defective parts and excludes labor and costs of shipment. Parts Oliver repairs will have one (1) additional year of warranty coverage starting with delivery to the Designated Freight Carrier.

b. Product warranty for refurbished products

Oliver provides no warranty on Refurbished Products unless a warranty is expressly set forth on the Acknowledgement.

c. Product warranty void

Oliver’s Product Warranty shall be void and of no effect in the event that: (i) Customer changes that which is to be processed by an Oliver Product, to a different sample (for example, a different grain type or size); (ii) Customer has not fully installed and powered-up the Product within six (6) months after the date the Product is delivered to the Designated Freight Carrier; (iii) a Product has not been installed in accordance with the Operations Manual; (iv) Customer uses the Product in a manner at variance with the Operations Manual or otherwise in a manner at variance with a Product’s objective and customary function; (v) the Product is moved from its original shipped-to location, whether on or off Customer’s premises; (vi) the Product is sold to a third party; (vii) Customer itself services or otherwise creates alterations and repairs of a Product or Customer sources servicing of the Product from a person or firm which is not an authorized Oliver service provider without Oliver’s advance written consent; or (viii) in fixing or maintaining a Product, Customer sources or utilizes non-original (after-market) parts or components instead of Oliver manufactured parts and components.

Without limitation to the above and by way of example only, Oliver’s warranty does not apply to and Oliver is not liable or responsible for: (i) inaccuracies or errors in Customer specifications; (ii) abrasion, corrosion, or erosion of a Product; (iii) misuse or abuse of a Product; or (iv) any costs incurred to remove, ship or reinstall parts.

d. Notice and replacement

In order for Oliver’s Product Warranty to apply, Customer must provide Oliver with written notice via electronic mail not later than fifteen (15) days after the alleged Defect becomes apparent. Oliver will replace, F.O.B. La Junta, Colorado, any parts within Products which have been determined by Oliver’s inspection to have a Defect. This Product Warranty only applies to Customer and is not transferable.

e. Disclaimer

THE PRODUCT WARRANTY SET FORTH IN THIS SECTION 13 IS OLIVER’S SOLE AND EXCLUSIVE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. OLIVER MAKES NO REPRESENTATION OR WARRANTY THAT THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS.

14. Indemnification obligations of the parties.

a. Oliver indemnification of customer

Oliver shall indemnify and defend Customer from and against expenses, liabilities, damages, and settlements, including reasonable attorneys’ fees and costs incurred as a result of a third-party claim, action, suit or proceeding (collectively, “Damages”) which are incurred by, asserted against, or recoverable from Customer arising from:

(i) A products liability claim relating to the Products by reason of injury to person or property caused by a Product Defect which existed in the condition and form delivered to the Designated Freight Carrier; this indemnity excludes a Product Warranty claim as a result of a Defect which does not cause injury to person or property, the sole remedy for which is the Product Warranty under Section 13; and

(ii) Subject to Section 14.c below, an intellectual property infringement claim that a Product infringes upon the United States patent, copyright, trademark or trade secret of a third party (an “Infringement Claim”).

Oliver shall have no obligation or liability to indemnify Customer for a Product as to which the Product Warranty is void under Section 13.c.

b. Customer indemnification of Oliver

Customer shall indemnify and defend Oliver from and against Damages which are incurred by, asserted against, or recoverable from Oliver arising from:

(i)A claim of any kind relating to the Products from an employee, contractor or end user of Customer; and

(ii)A claim of any kind relating to the Products from or related to a customer or end user of Customer, which or who has purchased the Product from Customer acting as an authorized Oliver distributor.

c. Indemnification procedure

A Party to be indemnified hereunder (“Indemnitee”) shall within ten (10) days of its receipt of or becoming aware of a claim giving rise to indemnification provide written notice to the Party responsible for indemnification (“Indemnitor”) of any third party claim, suit, demand, action or cause of action for which the Indemnitee is entitled to indemnification under this Section 14 (“Third-Party Claim”).

Any delay or failure to provide such prompt notice shall relieve the Indemnitor of liability for indemnification of such Third Party Claim hereunder only to the extent (if any) that the Indemnitor is prejudiced by such delay or failure.

The Indemnitee shall provide the Indemnitor with any assistance and cooperation reasonably requested by the Indemnitor in writing to defend the Third-Party Claim. The Indemnitor shall have sole control over the defense and settlement of a Third-Party Claim. The Indemnitor shall not settle any Third-Party Claim without first obtaining the Indemnitee’s prior written consent unless such settlement would not reasonably be expected to have an adverse effect on Indemnitee.

d. Oliver obligations as to an infringement claim

Oliver shall have no obligation or liability to indemnify Customer for any Infringement Claim for a Product as to which the Product Warranty is void under Section 13.c. Oliver will provide no indemnity for an Infringement Claim relating to the Firmware if Customer has modified or revised the Firmware in any respect.

In the event Oliver believes that an Infringement Claim is likely or, as a result of any Infringement Claim, a court of competent jurisdiction enjoins Oliver from offering, marketing, using, selling, reselling or otherwise distributing a Product (an “Infringing Product”), Oliver shall, at its option (with respect to selecting subclauses (i), (ii) or (iii) below) and expense, and as Customer’s sole remedy in the event of an Infringement Claim, promptly:

(i) procure the right for Customer to continue to use the Infringing Product;

(ii) replace the Infringing Product by delivering a substitute, compatible, non-infringing Product to Customer substantially equivalent in functionality, useful life and performance to the Infringing Product; or

(iii) in the event that, after using reasonable efforts, Oliver is unable to achieve one of the remedies identified in subclauses (i) or (ii) above on commercially reasonable terms, (a) accept the return of the Infringing Product, and (b) provide reimbursement to Customer of the paid Purchase Price for the returned Infringing Product, depreciated on a straight-line basis over five (5) years from Oliver’s delivery of such Product.

This Section 14.d sets forth Oliver’s entire liability and Customer’s sole recourse and remedy for any Infringement Claim. All other warranties against infringement, whether statutory, express or implied, are hereby disclaimed by Oliver.

15. Limitations of liability

EXCEPT IN THE EVENT OF A BREACH BY A PARTY OF SECTION 9 OR 10 HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFITS OR REVENUE, OR LOSS OF USE OF ANY PROPERTY), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

OLIVER’S AGGREGATE LIABILITY UNDER THESE TERMS OR OTHERWISE TO CUSTOMER FOR ANY DIRECT DAMAGES SHALL NOT EXCEED THE PURCHASE PRICE PAID OR PAYABLE BY CUSTOMER TO OLIVER UNDER THESE TERMS FOR THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY.

IN THE CASE OF ANY PRODUCTS LIABILITY, PERSONAL INJURY OR ERRORS AND OMISSIONS CLAIM, OLIVER’S AGGREGATE LIABILITY SHALL NOT EXCEED THE LIMITS OF ITS APPLICABLE INSURANCE COVERAGE.

THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 15 SHALL APPLY, REGARDLESS OF WHETHER THE DAMAGES ARISE FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), BY OPERATION OF LAW OR OTHERWISE.

16. Governing law and dispute resolution for U.S. and international customers; No fee shifting.

a. For U.S. customers

This Section 16.a is applicable to U.S. Customers only. This Agreement is solely governed by Colorado law without regard to conflicts of laws. In the event of a controversy or dispute between the Parties, the Parties through their duly authorized officers shall engage in good-faith negotiations in an effort to reach a resolution of such controversy or dispute. In the event the Parties do not reach a resolution, one or both Parties may submit the dispute to the state courts seated in La Junta, Colorado, which shall have sole and exclusive jurisdiction over the dispute.

b. For international customers

This Section 16.b is applicable to International Customers only. This Agreement is solely governed by Colorado law without regard to conflicts of laws. In the event of a controversy or dispute between the Parties, the Parties through their duly authorized officers shall engage in good-faith negotiations in an effort to reach a resolution of such controversy or dispute.

If the Parties do not reach a resolution through negotiations, the Parties shall submit the controversy or dispute to the International Centre of Dispute Resolution (“ICDR”) (https://www.icdr.org/) as follows:

The Parties shall first try and settle the dispute by mediation conducted by a single mediator mutually acceptable to the Parties, to be administered by the ICDR under its International Mediation Rules. Unless otherwise agreed by the Parties, such mediation shall be conducted remotely via then current audiovisual meeting technology.

If the Parties do not resolve the dispute by mediation and the amount in dispute is less than U.S. $2,000,000.00, the Parties shall submit the dispute to binding arbitration conducted by a single arbitrator in accordance with ICDR’s International Arbitration Rules. The place of arbitration shall be Chicago, Illinois, and the language of the arbitration shall be English. If the Parties do not resolve the dispute by mediation and the amount in dispute or controversy is $2,000,000.00 or more, the arbitration shall be conducted by a panel of three (3) arbitrators administered by ICDR, in accordance with ICDR’s International Arbitration Rules. The place of arbitration shall be Chicago, Illinois, and the language of arbitration shall be English. Each party shall appoint one arbitrator and the two party-appointed arbitrators shall appoint the third arbitrator, who shall chair the tribunal. Each arbitrator shall be neutral and independent of the Parties.

The arbitrator or arbitrators, as applicable, shall issue a reasoned award. The award shall be final and binding on the Parties and may be enforced in any court of competent jurisdiction. For any mediation or arbitration conducted by the ICDR hereunder, the Parties shall split equally ICDR’s fees and costs, including the fees of the mediator and arbitrator(s).

c. No fee shifting

There will be no fee shifting (e.g., no payment or reimbursement for a Party’s attorneys’ fees or costs incurred) under or arising from these Terms; provided, however, that Oliver is entitled to obtain reimbursement of its costs of collection of amounts due under Section 7.f.

17. General provisions

a. Independent attorney

Customer acknowledges and agrees that Customer has had ample opportunity to obtain the services and advice of independent legal counsel in Customer’s review, agreement with and execution of the Acknowledgement including these Terms.

b. Amendment

Any amendment to an Acknowledgement must be made only with the form of Amended Acknowledgement attached hereto as Exhibit A, to be exchanged by the Parties via electronic mail. Oliver may amend and update these Terms at any time in its sole discretion. Acknowledgements approved and signed by Customer and Oliver will link to, and Customer will be bound by, any such amended and updated Terms.

c. Force majeure

Oliver shall not be liable for the delay or inability to deliver, manufacture, sell, or deliver Products or services due to labor strikes, accidents, fire, flood, acts of God, pandemics, acts of governmental authorities, war, terrorism, or any other cause beyond Oliver’s control.

d. Severability

In the event any provision of these Terms is held void or unenforceable, these Terms shall be construed as closely as possible to preserve their intent and all other provisions of these Terms shall remain in full force and effect.

e. Integration

These Terms constitute the entire agreement and understanding between the Parties with respect to the specific subject matter hereof and supersede all other agreements, either oral or written, and no representations, promises or warranties have been made that are not fully expressed herein.

f. Electronic mail notices; other notices.

All written notices exchanged by the Parties under these terms which are to be sent via electronic mail are designated as such, and shall be sent to Customer’s email address set forth on the face of the Acknowledgement and to Oliver’s email address at: ar@olivermanufacturing.com.

Other notices under these Terms shall be delivered to a Party’s address as set forth on the face of the Acknowledgement and shall be in writing. All notices shall be delivered at the sending Party’s expense via (i) U.S. Certified Mail, (ii) UPS Certified Mail, or (iii) FED EX. Notices shall be deemed to have been given on the date of delivery to the recipient’s address as evidenced by the delivery receipt or tracking number.

g. Construction

Terms defined herein in the singular shall have a comparable meaning when used in the plural, and vice versa. As used herein, the words, “include, includes, including,” and all variations thereof shall be deemed to mean “including, but not limited to.” “Days” means calendar days. All captions contained in these Terms are for convenience only and shall not be deemed to be part of these Terms. No provision of these Terms shall be interpreted to resolve an ambiguity against the drafting Party.

End of Terms and Conditions for Product Purchases