Terms & Conditions of Sale and EULA

TERMS AND CONDITIONS OF SALE FOR NIR4® AND ANCILLARY PRODUCTS

These Terms and Conditions of Sale (the “terms and conditions”) are effective from March 2017.

1. Definitions

1.1 In this Agreement:

AB Agri means AB Agri Limited, a company registered in England (company number 193800) whose registered office is at Weston Centre, 10 Grosvenor Street, London, W1K 4QY;

Ancillary Products means Licence, Annual Licence Renewal and Tokens;

Annual Licence Renewal means an annual renewal of the Licence for a 12 month period;

Application means AB Agri’s real time nutritional analysis app(s) which have been installed on the Product and the Web Portal, as updated from time to time;

Buyer means the company, partnership or person placing an order for the Product. In these terms and conditions, a person includes a natural person, corporate or unincorporated body (whether or not a separate legal entity);

Calibration Transfer Fee means the fee payable for the initial trasnfer of the Calibrations onto the Product;

Calibrations means the library of dependent files and calibration formulae (whether owned by AB Agri or licensed from a third party) which are installed on the Product, as updated from time to time;

Contract means an individual contract between AB Agri and the Buyer for the sale and purchase of the Product on these terms and conditions;

EULA means the end user licence agreement in respect of the Buyer’s use of the Software as set out in Appendix A to these terms and conditions;

Event of Force Majeure means (i) any circumstances beyond the control of AB Agri (including, but not limited to, acts of God, governmental actions, strikes or other labour disputes (whether or not relating to AB Agri’s workforce), lock-outs, accidents, war or national emergency, acts of terrorism, protests, riot, civil commotion, explosion, flood, adverse weather conditions, epidemic, fire, reduction in or unavailability of power at manufacturing plant, breakdown, stoppage, slow working or reduced efficiency of plant or machinery, restraints or delays affecting carriers, shortage or unavailability of raw materials from normal sources of supply), unexpected cost increases (including in the cost of manufacture and processing or obtaining raw materials from alternative sources of supply) caused by unexpected events such as severe weather, or (ii) the amendment or coming into force of any legal provision adversely affecting AB Agri in relation to the production, import, export or sale of the Product or any element thereof or materials for production of the Product;

Insolvency Event occurs when (i) the Buyer has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), or has a receiver and/or manager, administrator or administrative receiver appointed of the Buyer’s undertaking or any part thereof, or the Buyer’s credit-worthiness materially deteriorates; or documents are filed with the court for the appointment of an administrator of the Buyer’s undertaking or notice of intention to appoint an administrator is given by the Buyer or the Buyer’s directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer’s undertaking or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the Buyer’s insolvency or possible insolvency; or (ii) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on the Buyer’s property or to be obtained by the Buyer, or the Buyer fails to observe or perform any of the Buyer’s obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or (iii) analogous proceedings or events to those specified above are instituted or occur in relation to the Buyer elsewhere than in England and Wales.

Licence means a licence to use the Software and access the Web Portal on the terms of the EULA for 12 months from either the date of delivery of the Product to the customer or the date on which the relevant Software was installed on the Product (as applicable);

Loss(es) means any loss, claim, liability, expenses or damages suffered or payable whether arising directly or indirectly;

Operating Guidelines means the guidelines and instructions for use of the Product available on the Web Portal, as updated from time to time;

Product means the NIR4® product incorporating the Software to be used to perform Scans;

Scan means each set of 5 scans of an individual sample as required to generate an analysis of the sample;

Software means the Application and the Calibrations;

Specification means the specification of the Product set out on the Web Portal;

Spectrometer means the spectrometer as further described in the Specification;

Support Services means the support services provided by AB Agri in relation to the Software for such time as the EULA remains in effect, as further described in the Schedule to the EULA;

Tablet means the tablet or such other mobile computing device as may be incorporated in the Product from time to time, as further described in the Specification;

Third Party Component means the Spectrometer and the Tablet;

Token means the currency to be used by the end user to purchase a Scan;

Update means an update to the Software, including improvements, extensions, code corrections and other changes;

Web Portal means the website where the Buyer may view the results generated by the Product in respect of a Scan (with the applicable web address set out on the following webpage: www.aunir.com/products/nir4);

Working Day means Monday to Friday (except Bank Holidays in England);

1.2 Words used in this Agreement in the singular tense are to be read to include the plural and references to a person are to be read to include companies, partnerships and other similar undertakings.

2. Application of these Terms and Conditions

2.1 Unless otherwise agreed in writing, these terms and conditions are the only terms and conditions upon which AB Agri is prepared to deal with the Buyer and they shall govern and are incorporated into every contract for the sale of the Product or an Ancillary Product (to the extent described in Condition 2.2 and without prejudice to Condition 2.3) made by or on behalf of AB Agri. They apply to the entire exclusion of and prevail over all other terms or conditions (whether or not in conflict or inconsistent with these terms and conditions), including those of the Buyer or which are implied by trade custom, practice or course of dealing, unless specifically excluded or varied in writing by an authorised representative of AB Agri and any purported provisions to the contrary are hereby excluded or extinguished.

2.2 The only provisions of these terms and conditions applicable to sales of Ancillary Products are Conditions 1-6. In all other respects the Ancillary Products shall be subject to the terms of the EULA.

2.3 Any purchase of a Product must be in conjunction with the purchase of one or more Licences at the applicable fee and payment of the Calibration Transfer Fee where applicable. Acceptance by the Buyer of delivery of the Product or Ancillary Product is (without prejudice to any other manner in which acceptance of these terms and conditions may be evidenced) deemed to constitute unqualified acceptance of these terms and conditions and the EULA.

2.4 Where the Buyer has been authorized to distribute the Product and/or Ancillary Products, the Buyer shall ensure that: (i) its customers are made aware that the Licence is subject to the terms of the EULA; (ii) its customers sign the EULA in conjunction with their purchase of the Product before their receipt of the Product; and (iii) it promptly provides AB Agri with the customer’s name and such contact details as may be reasonably required in order for AB Agri to be able to provide support to the customer under the EULA and the Buyer shall comply with all data protection and other applicable laws in the course of dealing with such information.

2.5 If, subsequent to any Contract, a contract of sale is made between AB Agri and the Buyer in respect of a Product or Ancillary Product without reference to any conditions of sale or purchase, such contract however made is deemed to be subject to these terms and conditions.

2.6 AB Agri reserves the right to replace or amend these terms and conditions and any such replacement or amendment shall apply to the exclusion of these terms and conditions with effect from 30 days following written notice by AB Agri of its revised terms and conditions. For these purposes it shall be sufficient for AB Agri to notify the Buyer that it has revised its terms and conditions and that such revised terms and conditions are accessible on AB Agri’s website or via any other medium accessible to the Buyer.

3. Orders

3.1 Each order or acceptance of a quotation for the Product or Ancillary Product by the Buyer from AB Agri shall be deemed to be an offer by the Buyer to buy the Product subject to these terms and conditions and is subject to acceptance by AB Agri. Each acceptance of an order by AB Agri shall give rise to a separate Contract. The Buyer is responsible to AB Agri for ensuring the accuracy and completeness of the terms of any order and any applicable specification submitted by the Buyer.

3.2 No order shall be binding on AB Agri unless and until it has been accepted in writing, or performed by AB Agri. AB Agri shall use its reasonable endeavours to meet the Buyer’s requested delivery timings but reserves the right to vary delivery deadlines where operationally necessary. Subject to Conditions 4.3 and 11, once AB Agri has accepted an order, the Buyer may not cancel the order except with the prior written agreement of AB Agri and on terms that the Buyer must indemnify AB Agri in full against all Losses to the extent such Losses cannot reasonably be mitigated by AB Agri, (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses reasonably and properly incurred by AB Agri as a result of the cancellation.

4. Prices

4.1 Unless otherwise agreed by AB Agri in writing and subject to these terms and conditions:

(a) the price payable for the Product or any Ancillary Product and the Calibration Transfer Fee shall be the price quoted by AB Agri or any of its authorised agents or, if no price is quoted, as set out in AB Agri’s current list price in Pounds Sterling except that (i) for sales outside the UK, the price payable for the Product shall be as set out in AB Agri’s current list price in Euro or US Dollar as at the date of the Contract and the price payable for any Ancillary Product shall be as set out in AB Agri’s current list price in Euro or US Dollar price list as at the date of invoice and (ii) the price of Tokens shall be as set out on the Web Portal;

(b) the price for the Product or Ancillary Product shall be exclusive of all costs and charges in relation to carriage, insurance, transport and duties all of which amounts the Buyer shall pay in addition when it is due to pay for the Product; and

(c) if the Contract specifies payment be made in EUR, then AB Agri may direct the Buyer to satisfy its obligations as to payment by means of payment in GBP or USD (at the Buyer’s discretion) into a UK bank account in the name of AB Agri if the country in which the Buyer operates exits the Eurozone and, if the provisions of this Condition 4.1(c) are triggered and the Buyer makes payment to AB Agri in GBP/USD to a UK bank account, the applicable conversion rate shall be the average EUR to GBP/USD (as relevant) exchange rate reported in the Financial Times over the six (6) months ending on the date on which the Buyer’s country of operation exited the Eurozone.

4.2 All prices are exclusive of any applicable value added tax (or any similar or equivalent sales taxes or duties), which the Buyer is additionally liable to pay to AB Agri.

4.3 Notwithstanding Condition 4.1 and without prejudice to Condition 11, AB Agri reserves the right at its sole election, at any time before delivery, to increase the price of the Product or Ancillary Product or the Calibration Transfer Fee, and notwithstanding anything contained in the Contract to pass on to the Buyer any increase in the costs to AB Agri of producing and/or supplying the relevant product including any such increases which are due to any factor beyond the control of AB Agri (such as, without limitation, a significant increase in the costs of, or shortages or the unavailability of, labour or materials, the increase or imposition of any tax, duty or other levy, any variation in exchange rates, any change of delivery dates). AB Agri shall notify the Buyer of any such price increases and the Buyer shall have the right to refuse to pay such additional costs by notice in writing to AB Agri, within two (2) Working Days of receipt of notice from AB Agri of the relevant price increase under this Condition 4.3, in which case the Buyer shall be deemed to have cancelled its order for the Product, without liability to either party. The rights of AB Agri under this Condition 4.3 are in addition to any other rights AB Agri may have.

5. Terms of payment

5.1 AB Agri or its authorised agent shall be entitled to invoice the Buyer on or at any time after it has accepted the Buyer’s order for the Product or Ancillary Product.

5.2 Unless otherwise agreed in advance in writing, signed by a director within AB Agri, the Buyer shall pay for the Product or Ancillary Product and the Calibration Transfer Fee (where applicable) in Pounds Sterling in cleared funds within 30 days from the date of invoice and, unless otherwise agreed in writing, prior to despatch or installation of the relevant product (as applicable), notwithstanding that property in the Product has not passed to the Buyer. Time for payment shall be of the essence.

5.3 The Buyer shall make all payments due under the Contract in full to AB Agri to the bank account in the UK of AB Agri as notified to the Buyer and without any deduction whether by way of set-off, counterclaim, discount, or abatement.

5.4 If the Buyer fails to make any payment on the due date, then without prejudice to any other right or remedy available, AB Agri shall be entitled to (i) suspend any further deliveries to the Buyer (without prejudice to AB Agri’s right subsequently to terminate the Contract for the same cause should it so decide) until any default by the Buyer be remedied and if the Product or Ancillary Product has been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary; (ii) by notice in writing terminate wholly or in part any and every order or Contract between the parties; and (iii) (both before and after any judgment), in respect of any unpaid amounts, charge interest at a rate equal to the higher of the interest rate payable on court judgments or 4% above the base rate from time to time of Barclay’s Bank plc accruing on a daily basis from the due date until payment is made.

6. Delivery

6.1 All times, dates or periods given for delivery are estimates given in good faith but without any responsibility on AB Agri's part. The Buyer is required to accept delivery of Product within 7 days of AB Agri giving the Buyer notice that the Product is ready for delivery. The Product may be delivered by AB Agri in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.2 Unless otherwise agreed by AB Agri in writing the Product will be delivered by courier or registered post (at the Buyer’s cost). If the Buyer requests delivery in any other manner and AB Agri has agreed to such changes in writing, any difference in price shall be charged to the Buyer's account.

6.3 In respect of a Licence purchased subsequent to the Buyer’s purchase of the Product, the relevant Software may be installed on the Product remotely or by such other means as shall be notified to the Buyer.

6.4 Except where pre-installed on the Product, Token delivery shall be administered via the Web Portal and the Buyer or authorized user shall be able to download the Tokens from the Web Portal onto the Tablet when online. Tokens will be uploaded onto the Web Portal within approximately 2 Working Days of the time of order.

6.5 The Buyer shall provide at the delivery point and at its own expense, adequate equipment and labour for taking delivery of the Product.

6.6 AB Agri shall not be liable (whether in contract or for negligence or otherwise howsoever arising) for: (i) loss of or damage to the Product occurring prior to delivery; or (ii) non-delivery of the relevant product, unless claims to that effect are notified in writing by the Buyer to AB Agri within five days of the quoted delivery date.

6.7 If the Buyer shall fail to give notice in accordance with Condition 6.6 above the relevant product shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly and all claims in respect of non-delivery or loss shall thereafter be wholly barred.

7. Passing of title and risk

7.1 Risk of any loss or damage to the Product shall pass to the Buyer in accordance with CPT (Incoterms 2010) or as otherwise agreed or, if the Buyer wrongfully fails to take delivery of the Product, the time when AB Agri has tendered delivery of the Product. Notwithstanding delivery and the passing of risk in the Product, or any other provision of these terms and conditions, ownership of the Product shall only pass when AB Agri has received in cash or cleared funds payment in full of the price of the Product.

7.2 Until title to the Product has passed to the Buyer, the Buyer shall: (a) hold the Product on a fiduciary basis as the Seller's bailee; (b) store the Product separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller's property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to the Product; (d) maintain the Product in satisfactory condition and keep it insured against all risks for its full price from the date of delivery; (e) notify the Seller immediately if the Buyer becomes subject to an Insolvency Event; and (f) give the Seller such information relating to the Product as the Seller may require from time to time. Notwithstanding the foregoing, the Buyer may resell or use the Product in the ordinary course of its business, provided that: (i) the proceeds of any such resale are received and held by the Buyer in a separate bank account as identifiable funds on trust for the Seller; (ii) as between the Buyer and its customer(s) the Buyer shall sell the Products (at its own cost and expense) as principal and the Buyer shall not commit the Seller to any contract with or liability to the Buyer or any other person; and (iii) as between the Seller and the Buyer, the Buyer shall sell the Products in a fiduciary capacity as agent for the Seller.

7.3 Until title passes, the Buyer shall insure and keep insured the Product for its full price against all risks to the reasonable satisfaction of the Seller. Until property in the Product passes to the Buyer, the Buyer shall hold the proceeds of any claim on such insurance policy on trust for the Seller and shall forthwith account to the Seller for such proceeds.

7.4 If before title to the Product passes to the Buyer the Buyer becomes subject to an Insolvency Event or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Product and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Product is stored in order to recover it.

7.5 Where the Seller is unable to determine whether any Products are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.

7.6 Notwithstanding the provisions of this Condition 7, the Seller shall be entitled to bring an action against the Buyer for the price of the Product in the event of non-payment by the Buyer by the due date even though property in the Product has not passed to the Buyer and/or has the right by notice to the Buyer at any time after delivery to pass property in the Product to the Buyer as from the date of such notice.

8. Conditions, warranties and representations

8.1 Subject to the remainder of this Condition, AB Agri agrees that the Product will meet the Specification in all material respects for a period of 12 months from delivery to the Buyer and will comply with all applicable existing UK statutory requirements in all material respects.

8.2 AB Agri shall promptly repair or replace any Product (or part thereof) which has been returned to AB Agri under the RMA procedure (as defined in Condition 8.8) and which in the reasonable opinion of AB Agri breaches the warranty contained in Condition 8.1. The decision to carry out repairs or provide replacements where the relevant claim is not covered by the warranty shall at AB Agri’s full discretion and AB Agri shall have the right to charge for any such replacement or repair.

8.3 Except as set out in these terms and conditions, any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise) or other terms as to the quality of the Product, its fitness for any particular purpose (even if that purpose is made known expressly or by implication to AB Agri), the accuracy or reliability of any results or information generated through use of the Product, its non-infringement or as to the correspondence of the Product with any description or sample are hereby expressly excluded to the fullest extent permitted by law. For the avoidance of doubt, the conditions implied by section 12 of the Sale of Goods Act 1979 are not excluded from the Contract.

8.4 The Buyer acknowledges and agrees that it has not entered into any Contract or placed any order in reliance on any statement or representation of any person (whether a party to this agreement or not) other than as expressly set out in these terms and conditions or the relevant Contract.

8.5 Without limiting the generality of the foregoing, the Buyer irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or to rescind any Contract or cancel any order by reason of any misrepresentation (other than a fraudulent misrepresentation) having been made to it by any person (whether party to the Contract or not) and upon which it has relied in entering into any Contract or placing any order.

8.6 If AB Agri breaches any of the warranties in Condition 8, the Buyer shall promptly notify AB Agri and will allow AB Agri a reasonable opportunity to correct the breach. This Condition states the Buyer’s sole remedy and AB Agri’s sole liability for any breach of the warranty in Condition 8.1. However, if AB Agri fails to remedy a breach in the manner set out in this Condition 8.6, AB Agri’s liability for such failure will be limited to a sum equal to the amount paid by the Buyer for the Product.

8.7 The Buyer has no rights under the warranty contained in Condition 8.1 with respect to defects or non-conformities caused by (i) the Buyer’s failure to follow the Operating Guidelines or the Buyer’s use of the Product where the Buyer has failed to take proper care of it, damaged it or used it in a harsh environment (including, without limitation, by exposing the Product to any of the following conditions: rain or water, high humidity, excessive cold, extreme temperature changes, or restricted ventilation); (ii) any failure to comply with any restrictions or update requirements as set out in the EULA (iii) acts or omissions of persons other than AB Agri or its authorised representatives in contravention of anything contained in the Operating Guidelines; (iv) the Product being accidentally damaged, disassembled, modified, or repaired, in each case by any party other than AB Agri or its authorised agents; or (v) the Buyer’s breach of any of these terms and conditions.

Returns

8.8 The Buyer must make all claims under the warranty in Condition 8.1, and no claim will be accepted from any third party. All warranty claims or returns made pursuant to the cancellation rights set out in Condition 8.9 shall comply with AB Agri’s Return Material Authorisation process (“RMA”). The Buyer shall obtain an RMA number from AB Agri prior to returning any Product and send the Product prepaid and insured to such location as instructed by AB Agri. If the Buyer returns a Product in relation to a claim under the warranty without an itemised statement of claimed defects, AB Agri will not evaluate the Product but will return it to the Buyer at the Buyer's expense. Any Product that is returned to AB Agri in relation to a claim under the warranty but which is found to meet the Specification shall be subject to AB Agri’s standard examination charge in effect at the time, which shall be charged to, and paid for by, the Buyer.

Cancellation Rights for Consumers purchasing online or via telephone

8.9 If the Buyer is contracting as a consumer and has purchased the Product online or over the phone, the Buyer shall have the right to cancel their order within 14 days of the date on which the Buyer receives the Product. The Buyer may cancel their order within such period by emailing AB Agri at support@nir4.co.uk and filling in the model cancellation form we send you or calling AB Agri on 01327 810910 between the hours of 9am to 5pm Monday to Friday (except for Public Bank Holidays). The Buyer is not required to return the Product in its original packaging but must ensure that the Product is packaged in a way that will prevent it from getting damaged. The Buyer shall bear the costs for returning the Product to AB Agri. AB Agri shall issue a refund within 14 days of receiving the Product from the Buyer.

9. Third Party Components and Restrictions on Use

9.1 The Buyer is responsible for complying with all manufacturer’s recommendations regarding the use of any Third Party Component and, if in doubt, must contact that manufacturer or check their website. AB Agri accepts no liability for any Losses arising from a failure by the Buyer or any end user of the Product to follow the relevant manufacturer’s recommendations.

9.2 The Buyer shall use the Product in compliance with all applicable laws.

9.3 The Buyer shall not use the Product for purposes other than those listed in Appendix B.

10. Limitation of Liability

10.1 The following provisions set out the entire financial liability of AB Agri (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: (a) any breach of a Contract; including wilful breach; (b) any claim in connection with the Product or the Tokens, supply of any of the foregoing by AB Agri, or the use of any of the foregoing by the Buyer or end user; or (c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

10.2 Nothing in these terms and conditions excludes or limits the liability of AB Agri: (a) for death or personal injury to humans caused by AB Agri's negligence; (b) for any matter which it would be illegal for AB Agri to exclude or attempt to exclude its liability; or (c) for fraud or fraudulent misrepresentation.

10.3 Subject to Condition 10.2, AB Agri's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total price paid or payable for the Product or, if the relevant claim relates to an identifiable component of the Product, the cost ascertained by AB Agri as being attributable to that component.

10.4 Subject to Condition 10.2, AB Agri shall not be liable to the Buyer (whether in contract, tort or otherwise) for any pure economic loss, loss of profit, loss of anticipated savings or cost reductions, loss of business, depletion of goodwill (in each case whether direct or indirect), for any indirect or consequential loss whatsoever and howsoever caused which arise out of or in connection with the Contract or for any losses which the Buyer suffers through the use of or reliance on any results or information generated through use of the Product.

10.5 The Buyer is responsible for making its own arrangements for the insurance of the Product and for insuring itself against all risks associated with its use of the Product.

11. Force Majeure

11.1 If by reason of an Event of Force Majeure AB Agri is prevented from or hindered in or delayed in manufacturing, obtaining or delivering (by normal route or means of delivery) the Product, or if by reason of such an event AB Agri can only manufacture, obtain or deliver (by normal routes or means of delivery) the Product at an increased cost which is unacceptable to AB Agri, AB Agri shall: (a) not be liable to the Buyer or deemed to be in breach of the Contract by reason of any resulting delay in performing, or any failure to perform, any of AB Agri’s obligations in relation to the Product; and (b) be entitled (without liability to the Buyer) to cancel any order or to delay delivery. Where any such Event of Force Majeure continues for a period of more than 14 days, AB Agri shall be entitled to terminate the Contract on notice in writing to the Buyer.

12. Disposal of the Product – Compliance with WEEE Regulations

12.1 The Product consists of Electronic and Electrical Equipment (“EEE”) for the purposes of the WEEE Regulations 2013. The Buyer must dispose of this Product in compliance with all laws and regulations that may apply in the jurisdiction in which the Buyer is located. Please note that for the purposes of the WEEE Regulations, the battery must also be disposed of separately from regular waste. If the Buyer is located in the United Kingdom, local authorities can advise on how to dispose of the Product properly, or it can be returned to AB Agri for disposal at the following address: NIR4, AB Agri, 64 Innovation Way, Peterborough Business Park, Lynchwood, Peterborough PE2 6FL.

13. Intellectual Property Rights

13.1 All Intellectual Property Rights in and to the Product belong to and will remain vested in AB Agri, its licensors or the manufacturers of any Third Party Component (as applicable) at all times. You shall not obscure, remove or alter any trade marks, patent numbers, labels, serial numbers, product identification, copyright or other notices affixed to the Product or any part thereof or to any related documentation or packaging.

13.2 AB Agri may refer to the Buyer in marketing and promotional materials as being a user of the Product.

14. General

14.1 A waiver of any right or remedy under the Contract is only effective if given in writing. Any waiver by AB Agri of any breach, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall not affect the other terms of the Contract.

14.2 Subject to Condition 2.6, this Contract may only be varied by the written agreement of both parties and (in the case of AB Agri) must be signed by a duly authorised representative of AB Agri.

14.3 If, in any particular case, any provision of these terms and conditions (or any part of any provision) shall be held to be invalid, illegal or unenforceable by any court or competent authority, or shall not apply to the Contract, that provision or part-provision shall, to the extent required, be deemed to be deleted and the other terms and conditions shall continue in full force and effect and will not in any way be impaired. If any provision of these terms and conditions is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question will apply with the minimum modifications necessary to make it valid and enforceable.

14.4 AB Agri may assign the Contract or sub-contract the whole or any part thereof. The Buyer shall not attempt to assign, transfer, charge or otherwise deal with its rights or obligations under the Contract without the prior written consent of AB Agri.

14.5 The rights and remedies of AB Agri under these terms and conditions shall be cumulative and no right or remedy of AB Agri set out in these terms and conditions shall be deemed to be in lieu of any other right or remedy.

14.6 Nothing in these terms and conditions shall create or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties and no employee of one party shall be deemed to be or become an employee of the other party.

14.7 The parties to the Contract do not intend that any term of the Contract shall be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999.

14.8 The Contract and any dispute or claim arising out of or in connection with it, or its subject matter or formation, whether of a contractual or non-contractual nature, shall in all respects be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts, including (without limitation) in respect of any application for injunctive or ancillary relief.

APPENDIX A

End User Licence Agreement

This End User Licence and Support Agreement (EULA) is effective from March 2017 and is a legal agreement between the end user (you) and AB Agri for your use of the software incorporated onto your NIR4® product and the web portal which you may access in conjunction with your use of your NIR4 product.

1. Definitions

1.1 In this Agreement:

AB Agri the means AB Agri Limited, a company registered in England (company number 193800)

whose registered office is at Weston Centre, 10 Grosvenor Street, London, W1K 4QY;

Annual Licence Renewal means an annual renewal of the EULA for a 12 month period upon expiry of the First Year or subsequent Contract Year;

Application means AB Agri’s real time nutritional analysis app(s) which have been installed on the Product and the Web Portal, as updated from time to time;

Calibrations means the library of dependent files and calibration formulae (whether owned by AB Agri or licensed to AB Agri by a third party) which are installed on your Product, as updated from time to time;

First Year means the twelve month period commencing on the date of commencement of the Licence Period;

Licence Period has the meaning given in Condition 3.3;

Loss(es) means any loss, claim, liability, expenses or damages suffered or payable whether arising directly or indirectly;

Operating Guidelines means the guidelines and instructions for use of the Product which is available and updated from time to time on the Web Portal;

Product means the NIR4® product to be used to perform Scans;

Scan means each set of 5 scans of an individual feed sample as required to generate an analysis of that sample;

Software means the Application and the Calibrations;

Support Services means the support services described in the Schedule below;

Third Party Software means SureLock and any other third party software that may be notified to you from time to time.

Token means the currency to be used by to purchase a Scan; and

Web Portal means the website where you may view the results generated by the Product in respect of a Scan (with the applicable web address set out on the following webpage: www.aunir.com/products/nir4);

2. Entering into the EULA

2.1 By using the Product, you agree to enter into this EULA which will bind you and your employees.

2.2 If you do not agree to the terms of this EULA we will not licence the Software to you and you should discontinue your use of the Product immediately and return the Product to us or to the relevant supplier.

2.3 AB Agri reserves the right to replace or amend this EULA and any such replacement or amendment shall apply to you to the exclusion of this EULA with effect from 30 days following written notice by AB Agri of its revised EULA. For these purposes it shall be sufficient for AB Agri to announce on the Web Portal or notify you by email that it has revised its EULA and that such revised agreement is accessible on the Web Portal or via any other medium accessible to you.

2.4 If more than one copy of the EULA has been made available to you and there are differences in their content, the latest version will apply.

2.5 You should print a copy of this EULA for future reference.

3. Licence

3.1 AB Agri hereby grants you a limited, non-exclusive, non-transferable, non-assignable licence to use the Software on a single Product and to access and use the Web Portal (subject to the terms and conditions of use as set out on the Web Portal) for the Licence Period on and subject to the terms and conditions of this EULA. This licence does not allow you to distribute or make the Software available via a network.

3.2 You shall not grant or purport to grant sub-licences, in whole or in part, of any of the rights granted under this EULA.

3.3 The Licence Period will start on the date that the Product is delivered to you or, where you already have a Product and you are purchasing additional Calibrations, the date on which the additional Calibrations are installed on the Product and will terminate upon the expiry or permanent failure of Product unless terminated earlier under Condition 3.4 as a result of your failure to purchase the Annual Licence Renewal or under Condition 5.4.

3.4 Prior to expiry of the First Year and each subsequent twelve month period (“Contract Year”), you will automatically be invoiced in respect of the Annual Licence Renewal in order to continue to benefit from the rights under the EULA for the subsequent Contract Year unless you notify AB Agri or its authorised distributor at least one month before the end of the then current Contract Year that you wish to terminate your EULA. For the avoidance of doubt, if you fail to purchase the Annual Licence Renewal prior to expiry of the First Year or any subsequent Contract Year or you notify AB Agri or its authorized distributor that you wish to terminate the EULA, your licence to the Software shall automatically terminate upon expiry of the then current Contract Year at which point AB Agri shall have the right to de-activate the Software and any unused Tokens shall automatically expire.

3.5 For the duration of the Licence Period you shall be entitled to receive the Support Services, unless AB Agri, at its discretion, decides to stop selling the Product, in which case AB Agri shall not be required to provide the Support Services following expiry of the then current Contract Year. In these circumstances AB Agri may, at its discretion, review the fee payable for the Annual Licence Renewal to take account of the fact that Support Services are no longer being provided. Please contact your local distributor for all matters relating to Support Services.

4. Licence Restrictions

4.1 Except as expressly set out in this EULA or as permitted by any local law, you agree:

(a) not to copy, translate, adapt, modify, reverse engineer, disassemble, decompile, or create derivative works based on the whole or any part of the Software or attempt to do any such thing;

(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software;

(c) not to make alterations to, or modifications of, the whole or any part of the Software, or permit the Software or any part of it to be combined with, or become incorporated in, any other programs or install any third party applications or software on the Product;

(d) not to update, alter or remove the Software unless permitted in writing by AB Agri;

(e) not to provide or otherwise make available the Software in whole or in part (including object and source code), in any form to any person without prior written consent from AB Agri;

(f) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the Software; and

(g) not to allow anyone other than AB Agri or its nominated agent or sub-contractor, to provide any repair or maintenance services in respect of the Software

4.2 In respect of the Third Party Software, you are responsible for complying with the relevant third party licensor’s terms and recommendations regarding the use of such software and, if in doubt, must contact that third party licensor. AB Agri accepts no liability for any Losses arising from your failure to follow the third party licensor’s recommendations or breach of the third party licensor’s licence terms.

5. Acceptable Use Restrictions

5.1 You shall:

(a) not use the Software or Web Portal in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Software, the Product or any operating system;

(b) not infringe our intellectual property rights or those of any third party in relation to your use of the Software or Web Portal (to the extent that such use is not licensed by this EULA);

(c) not use the Software or Web Portal in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;

(d) not collect or harvest any information or data obtained from the Web Portal or generated by the Product or attempt to decipher any transmissions to or from the servers running the Web Portal;

(e) not sell or licence any data obtained from the Web Portal or generated by the Product or otherwise commercialize such data in any way; and

(f) not use the Software outside the territory in which you purchased the Product.

5.2 You agree to be bound by the usage terms and privacy policy as posted on the Web Portal from time to time.

5.3 No third party software or applications shall be installed on the Product without AB Agri’s prior written consent. You shall not at any time update, alter or remove the Software unless permitted in writing by AB Agri.

5.4 AB Agri may immediately terminate this EULA if you materially breach the EULA and (if the breach can be remedied) you do not remedy it within thirty days of a notice requiring it to be remedied.

6. Scans and Tokens

6.1 The price payable for each Scan is one Token. Unless you are on the Token Buy-Out scheme described on the Web Portal and in Condition 6.2 below, as at the date of purchase of the Product, 50 Tokens have been pre-installed on the Product. Depending on where you are located, you may purchase additional Tokens via the Web Portal or from our local authorized representative and subject to the terms and conditions contained on the Web Portal. For more information on how to purchase Tokens please log in to the Web Portal.

6.2 Where the Token Buy-Out was automatically included in the price paid for the Licence or Annual Licence Renewal, or you have opted to pay an annual rate for the Token Buy-Out, you will receive an unlimited number of Tokens for 12 months.

7. Updates

7.1 You are responsible for implementing any updates that AB Agri supplies within 30 days of being requested so to do by AB Agri. If you do not implement any update (including, without limitation, any improvement, extension, code correction or other change) within such time, AB Agri has the right to suspend the EULA if it considers that the system integrity may be compromised.

8. Intellectual Property Rights and Confidentiality

8.1 You acknowledge that all intellectual property rights in and to the Software and all documentation, including specifications and schematics, relating to the Software (together, “Information”) belong to and will remain vested in AB Agri or its licensors (as applicable) at all times.

8.2 You shall at all times:

(a) maintain the confidentiality of the Information;

(b) ensure that each of your employees from time to time having access to the Information is made aware, prior to such access, that the Information is confidential and that he or she owes a duty of confidence to AB Agri;

(c) ensure that neither you nor any of your employees, agents or contractors from time to time having access to the Information copies or duplicates it or divulges or makes any disclosure relating to it to any third party (whether during or after their employment by you);

(d) effect and maintain adequate security measures to safeguard the Information from theft, or from access by any person other than its employees in the normal course of your employment;

(e) promptly give AB Agri notice of any infringement of AB Agri’s rights in, or any unauthorised use of, or access to, the Information, of which you become aware and give AB Agri all reasonable assistance in connection with any proceedings which AB Agri may commence in respect of it; and

(f) enforce the terms of any confidentiality agreements or duties of confidence owed to you by your employees in respect of the Information.

8.3 AB Agri reserves the right to collect, use and sell information and data collected using the Web Portal or generated by the Product in a form that does not personally identify you, to improve its products, services and technology and to verify compliance with this EULA.

9. Liability

9.1 To the maximum extent permitted by law, AB Agri does not warrant that: (i) the operation of the Software or the Web Portal will be uninterrupted or error free, or (ii) that any results or information generated through use of the Product or Web Portal (the “Results”) shall be completely accurate or reliable. The Results are not intended to be relied upon in isolation, whether for making any decision relating to your business or farming policies or practices or otherwise, and are intended to be used as one of a number of considerations in relation to which you will make such decisions. To the maximum extent permitted by law, you accept that all use of and reliance on any Results shall be at your sole risk and that AB Agri shall not be liable, whether in contract, tort or otherwise, for the consequences of your use of or reliance on any Results.

9.2 Except as set out in this EULA, any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise) or other terms as to the quality of the Software or Support Services, the Software’s fitness for any particular purpose or its non-infringement are hereby expressly excluded to the fullest extent permitted by law.

9.3 Subject to Condition 9.4, to the maximum extent permitted by law, (a) our maximum aggregate liability under or in connection with this EULA (including, without limitation, in respect of the Support Services and your use of the Web Portal) whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the amount paid for your most recent Annual Licence Renewal and (b) we shall not be liable (whether in contract, tort (including negligence) or otherwise) for any pure economic loss, loss of profit, loss of anticipated savings or cost reductions, loss of business, depletion of goodwill, loss of, damage to or corruption of data or information (in each case whether direct or indirect), or for any indirect or consequential loss whatsoever and howsoever caused which arise out of or in connection with this EULA.

9.4 Nothing in this EULA shall limit or exclude our liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation or any other liability that cannot be excluded or limited by English law.

10 General

10.1 AB Agri shall not be liable to you if we are prevented from or delayed in performing our obligations under the EULA by circumstances outside our reasonable control, including, but not limited to, strikes and other industrial action, sub contractor default or breakdown of machinery.

10.2 The EULA sets out the entire agreement and understanding between the parties, and supersedes all proposals and prior agreements, arrangements and understandings between the parties, relating to its

subject matter.

10.3 Subject to Condition 2.3, no variation of the EULA will be effective unless it is in writing and is signed by or on behalf of each of the parties.

10.4 You are not entitled to assign or sub-contract any of your rights or obligations under the EULA in whole or in part without first obtaining our consent. We are entitled to assign, novate and sub contract our rights and obligations under the EULA, in whole or in part, at our discretion and without the need for your consent.

10.5 All notices to be given under the EULA will be in writing in English and delivered by registered post or e-mail at our contact address or e-mail address as provided on the Web Portal and to you at such post or e-mail address as you may from time to time designate by notice pursuant hereto. Any such notice will be deemed duly received:

(a) if sent by registered post, at 9am on the fifth working day after posting; or

(b) if sent by e-mail, on transmission or if the e-mail is transmitted outside Working Hours, on the first working day after the day of transmission.

10.6 A waiver of any right or remedy under the EULA is only effective if given in writing. Any waiver by AB Agri of any breach, or any default under, any provision of the EULA shall not be deemed a waiver of any subsequent breach or default and shall not affect the other terms of the EULA.

10.7 All provisions of the EULA are severable and if any of them (or any part of them) are held to be invalid, illegal or unenforceable by any competent court the EULA will be interpreted as if such provisions (or part of them) were not contained in the EULA and the other provisions shall continue in full force and effect and shall not be in any way impaired.

10.8 A person who is not party to this EULA shall not have any rights under it pursuant to the Contract (Rights of Third Parties) Act 1999 or otherwise.

10.9 The EULA will be governed by English law and the parties agree to submit to the non-exclusive jurisdiction of the English courts in respect of any disputes.

SCHEDULE

Software Support Services

Support Services– inclusions and exclusions

1. First-line support is provided via the distributor or sub-distributor of the Product. If the relevant problem is escalated to AB Agri, AB Agri may contact the end user directly in order to request additional information.

Availability of Support Services: 09:00 to 17:00 UK Time on Working Days. To contact AB Agri for a support-related matter, please email us at support@nir4.co.uk

2. The distributor or AB Agri, as applicable, will use commercially reasonable efforts to respond to your enquiries by phone or email and resolve any support issues in relation to the Software by issuing either:

(a) ad hoc advice;

(b) correction information (such as correction documentation, corrected code or notice of availability of corrected code all of which responses will be issued remotely such as via e-mail, tape, disk etc); or

3. Subject to your prior consent, AB Agri may respond to error calls by remote diagnosis. In this case, you shall provide AB Agri with such access as AB Agri may require to the Software through the internet.

4. The provision of the Support Services is subject to you:

(a) providing AB Agri with adequate information to enable AB Agri to diagnose any errors in the

Software; and

(b) using the latest version of the Software.

5. The Support Services do not include the diagnosis or rectification of any fault resulting from:

(a) misuse, improper use or alteration of the Software or the Product or other failure to follow the

operating instructions as provided by AB Agri or its authorised representatives or acts or omissions of persons other than AB Agri or its authorised representatives in contravention of anything contained in the Operating Guidelines;

(b) a breach of the EULA;

(c) your failure to implement AB Agri’s or its authorised representatives’ recommendations or proposed solutions in respect of faults previously advised to AB Agri or its authorized representatives;

(d) any repair, adjustment, alteration or modification of the Product by any person other than AB Agri or its authorised representatives without AB Agri’s prior written consent;

(f) failure to install and use in substitution of the previous Update any Updates supplied by AB Agri within 30 days of receipt of the same;

(g) use of the Product for a purpose for which it was not designed (as described in the Operating

Guidelines);

(h) the Product being accidentally damaged, disassembled, modified, or repaired, in each case by any party other than AB Agri or its authorised representatives.

APPENDIX B

Fields of Use

Ruminant & Equine	Swine
Grass and other forage crops to be used in direct feeding or the manufacture of silage or other forms of ruminant animal feed products in the field All forms of forage (including, but not limited to grass, maize and whole crop) during cutting, storage and at point of feeding to the animal Non-fermented preserved crops including, but not limited to grass hay, clover hay and alfalfa. TMR (Total Mixed Rations), as individual ingredients, through weighing and the mixing phase, including the final ration as fed to the animal. All co-products, moist, liquid and dry (including but not limited to DDGS, beet pulp, oilseed meals and blends) suitable for feeding to ruminant animals at point of source, in transit, in store and up to feeding to the animal. All ingredients destined for use in feed and all finished feed at all stages of the supply chain including manufacture including, but not limited to, cereals, co- products, animal proteins, oilseed meals and compound feed. For the avoidance of doubt, the Field of Use shall include use in all processes required to convert any ingredients or raw materials into a form suitable for feeding to the animal including, but not limited to grinding, mixing etc.	All feed ingredients and finished feed at all stages of the supply chain including manufacture including, but not limited to, cereals, co-products, animal proteins, oilseed meals and compound feed. For the avoidance of doubt, the Field of Use shall include use in all processes required to convert any ingredients or raw materials into a form suitable for feeding to the animal including, but not limited to grinding, mixing etc.
	Poultry
	All ingredients destined for use in feed and all finished feed at all stages of the supply chain including manufacture including, but not limited to, cereals, co- products, animal proteins, oilseed meals and compound feed. For the avoidance of doubt, the Field of Use shall include use in all processes required to convert any ingredients or raw materials into a form suitable for feeding to the animal including, but not limited to grinding, mixing etc.
	Aqua
	Non-exclusive use in the aqua feed industry globally for feed and feed ingredients
	Pet

March 2017 version