Last revised on August 25th, 2023

The PIVOT BIO PRODUCT LICENSE AGREEMENT (the “Agreement”) is by and between Pivot Bio, Inc., a Delaware corporation, with offices located at 2910 Seventh Street, Berkeley, CA, 94710 (hereafter “Pivot”) and the grower/operator of a farming operation authorized and licensed by Pivot to use its products (“Licensee”).

BACKGROUND

Pivot manufactures ready to use liquid in-furrow and on-seed nitrogen-producing microbial products for use at planting, including the following:

a. Pivot Bio PROVEN® for use with corn; and

b. Pivot Bio RETURN® for use with the target crops: wheat, sorghum, sunflowers, millet, oats, and barley

(the “Product(s)”).

Licensee is a farm operator and commercial grower of one or more of the identified crops.

Pivot and Licensee have engaged in preliminary discussions involving Licensee’s farming operation, and the potential use of one or more Products by Licensee for commercial use. Pivot and Licensee have reviewed the Products’ intended use, the Products’ benefits, and the Products’ suitability for use by Licensee. Following these preliminary discussions, Pivot and Licensee agree that one or more of Pivot’s Products is suitable for Licensee’s intended use.

Upon execution, this Agreement grants to Licensee a limited use license to receive and use the Products in the United States only, subject to the Terms and Conditions of this Agreement.

TERMS AND CONDITIONS

Product Purchase

Licensee may order Product by submitting a Product order through an authorized Pivot Bio sales agent to generate a sales order for the purchased Product (“Sales Order”). All Product purchased or received by Licensee shall be subject to the terms and conditions of this Agreement, the Sales Order, Product application instructions, and any other labels, tags, markings, or directions provided by Pivot to Licensee.

Payment

Payment of the full Purchase Price (“Payment”) will be due to Pivot prior to product shipment (hereinafter “Due Date”), unless other arrangements are made in writing between Pivot and Licensee. Payment must be submitted via check, ACH, or, for qualified purchases, authorized deferred payment financing through a Pivot Bio authorized financing partner.

Failure to properly and timely remit Payment on or before the Due Date shall result in Licensee paying simple interest on the Payment at a rate of 1.5% per month (18% per annum) or the maximum amount permitted by law, whichever is less, calculated from the applicable Due Date for the Payment until paid in full. Any payments received by Pivot may be applied to unpaid fees, interest or other charges at Pivot’s discretion.

Product Delivery

Pivot will ship the quantity of ordered Product to the delivery location during the delivery period specified on the Sales Order. Prior to delivery of the Product, Licensee may, in writing to Pivot, change the delivery location.

Until the Product is delivered to Licensee, Licensee may cancel a Sales Order without penalty. If there are to be multiple deliveries of Product, Licensee may cancel any portion of the undelivered Sales Order without penalty. All such cancellations must be in writing to Pivot. If Licensee refuses to accept delivery of Product, Licensee will inform Pivot of the reason for the refusal and arrange for return shipment of the Product to Pivot, at Pivot’s expense.

Specific instructions for storage, use, and application of the Product will accompany the Product or be independently communicated to Licensee.

Agent Authorization to Submit Sales Orders and Change Orders

Licensee hereby grants its Pivot sales representative the limited and specific authority to act as an agent of Licensee to submit any Product sales or change order requests on behalf of Licensee to Pivot (“Authorized Agent”). Pivot will honor order requests submitted by the Authorized Agent on behalf of Licensee and notify Licensee of any change order requests. Licensee may revoke and terminate the authority of the Authorized Agent granted herein by notifying Pivot in writing of the revocation and termination.

Limited Use License and Obligations

Pivot hereby grants and Licensee hereby accepts a limited, non-exclusive, non-transferrable, non-sublicensable, royalty-free license under those aspects of Pivot’s Intellectual Property, including granted patents, pending patent applications, trademarks, and copyrights, as required for Licensee to use the Product during crop planting solely to produce a single crop of grain, and only on such acreage under Licensee’s direct control during crop year 2024, as agreed with Pivot, and subject to the storage, use, and application instructions that are provided with the Product.

Licensee acknowledges and agrees that the Product is to be used solely in the manner set forth in the storage, use, and application instructions that will be provided with the Product and that the licenses granted herein are expressly conditioned on Licensee’s use of the Product in compliance with these instructions on acreage under Licensee’s direct control. Licensee acknowledges that any use of the Product that is non-compliant with the application instructions shall be deemed unlicensed use and infringement, and that all rights in any unlicensed use of the Product, including all data and intellectual property generated therefrom shall be solely owned by Pivot. Licensee shall not isolate, sequence, reverse engineer or otherwise modify Product without the express written permission of Pivot. Licensee shall not give, transfer, sell, loan or otherwise dispose of Product to any third party without written authorization by Pivot and that the Product shall at all times remain the property of Pivot until such time the Product is used by Licensee in compliance with the application instructions on Licensee’s authorized acreage. This Agreement does not grant Licensee a license under any technology or activity with respect to the Products except as expressly licensed herein.

Representations and Warranties

LICENSEE IS RECEIVING PRODUCTS ON AN “AS IS” BASIS, AND PIVOT MAKES NO WARRANTY THAT THE PRODUCT SOLD SHALL BE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE, NOR DOES PIVOT MAKE ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, EXCEPT SUCH AS ARE EXPRESSLY SET FORTH HEREIN.

RESULTS MAY VARY. The results obtained by any Licensee will depend on external factors. Licensee shall be solely responsible for determining the suitability and appropriateness of the use of the Product in Licensee’s selected conditions.

If following delivery, or during use of the Product, Licensee believes the Product does not meet quality standards, is unable to be used as per the instructions, or otherwise is not suitable for use as agreed on Licensee’s acreage, Licensee will inform Pivot of Licensee’s concerns in writing. Pivot and Licensee will confer regarding possible accommodation, including replacing the Product delivered with equivalent Product, providing additional Product at no cost, or refunding Licensee’s purchase price and Grower’s return of any unused Product.

Nitrogen Assurance

Subject to the Force Majeure clause below and Licensee’s enrollment in and completion of the Nitrogen Assurance Program, the details of which shall be provided separately at Licensee’s request, Pivot hereby provides a limited guarantee for the performance of the Product for purchases of 520 Acres or more. As more fully set forth in the Terms and Conditions of the Nitrogen Assurance Program, Pivot shall provide a credit to Licensee’s account in the amount of the Total Purchase Price (as defined therein) for the total acres for which the Product fails to deliver equitable whole plant nitrogen benefits when compared with the untreated check strip.

N-Ovator Program and Environmental Credits

Licensee may choose to participate in the Pivot Bio N-Ovator™ program for certain year(s), pursuant to a separate N-Ovator Program Agreement and its accompanying annual Affidavit. Regardless of whether Licensee so participates, Licensee agrees that it will not leverage any environmental credit or asset, or enroll in any third-party program purporting to assign such interests, generated as a result of using Product(s) other than through such N-Ovator Program.

Arbitration – SEE ADDENDUM

Term and Termination

Either party may terminate this Agreement at any time for any reason by sending written notice of termination to the other party at the address for such party specified herein. In the case of termination of this Agreement by Licensee, such notice of termination must include Licensee’s full name and address. Upon termination of this Agreement, Licensee will no longer have a right to use the Product, however, Licensee’s obligations and Pivot’s rights that arose under this Agreement prior to termination will continue in effect. If Licensee violates any term of this Agreement, the limited use license set forth herein shall terminate immediately. Upon termination of this Agreement, Grower must return, destroy, or otherwise dispose of, at Pivot’s sole discretion, any unused Product.

Limitation on Damages

PIVOT SHALL NOT BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE, OR CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE OR CONTINGENT DAMAGES OF ANY KIND. This limitation on damages is intended to have the broadest possible application and is intended to apply to all disputes between Licensee and Pivot that are directly or indirectly related to the contract between the parties and/or the products to be supplied to Licensee by Pivot. EXCEPT AS OTHERWISE PROVIDED HEREIN, LICENSEE’S EXCLUSIVE REMEDY FOR ALL CLAIMS ARISING OUT OF THIS LICENSE, INCLUDING WARRANTY CLAIMS, SHALL BE LIMITED TO THE REPLACEMENT OF DEFECTIVE OR NONCONFORMING PRODUCTS, OR AT PIVOT'S OPTION, REPAYMENT OF THE PURCHASE PRICE. LICENSEE SHALL BE ENTITLED TO NO OTHER REMEDIES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEPT AS PROVIDED HEREIN.

Force Majeure

Notwithstanding anything to the contrary herein, Pivot shall not be held responsible for any delay or failure in the performance of the Product to the Licensee, to the extent that such delay or failure in the performance of the Product is caused by a fire, flood, explosion, pandemic, war, strike, embargo, government requirement, civil or military authority, act of God, or other similar causes beyond the parties’ control.

General

This Agreement shall be governed by the laws of the State of Delaware, U.S.A, without giving effect to the conflicts-of-laws principles.

This Agreement may not be assigned by either party without the prior written consent of the other party and shall benefit and be binding on the parties and their respective heirs, personal representative, successors and permitted assigns.

This Agreement is the entire agreement between the parties with respect to the matters referred to herein and supersedes all prior negotiations, written communications, and agreements relating to the subject matter hereof between the parties hereto. There are no other representations, warranties or collateral agreements, express or implied except as contained in this Agreement.

To enter this Agreement, you must be the grower/operator or authorized person for all fields where the Product will be used. You represent that you have full authority to and do hereby bind to this Agreement yourself, all entities for which you obtain Product, and all individuals and entities having ownership interest in any entities for which you obtain Product.

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ADDENDUM - ARBITRATION

Any claim, action or dispute (“Dispute”) made or asserted by Licensee against Pivot, and arising out of and/or in connection with this Agreement, must be resolved by confidential, binding arbitration. The foregoing requirement to arbitrate specifically excludes any Dispute involving the infringement, validity, or enforceability of a patent or that otherwise arises under the U.S. patent laws. As a condition precedent to arbitration of a Dispute, a Party must provide written notice to the other Party describing such Dispute in a reasonably detailed manner. If the Parties fail to resolve such Dispute within 30 days, the Dispute shall be resolved by final and binding arbitration administered by the American Arbitration Association (“AAA”) according to its Commercial Arbitration Rules (“Rules”). With respect to each such unresolved Dispute, the arbitration shall be conducted by a single, independent and neutral arbitrator mutually selected by the Parties, and shall apply the laws of the State of Delaware, without regard to its conflicts of law principles. If the Parties cannot agree on an arbitrator within thirty (30) days from the filing of a demand for arbitration with the AAA, the arbitrator shall be chosen pursuant to the Rules. The arbitration shall be conducted in Chicago, Illinois, and the Parties will not challenge that seat for the arbitration. The Parties shall bear their own costs and expenses of preparing testimony, presenting witnesses and evidence, including attorneys’ fees and costs. The costs of the arbitrator and the proceedings shall be borne by the Parties equally. The award of the arbitrator, and the reasons for the arbitrator’s decision, shall be in writing and shall be binding and may be enforced by any court of competent jurisdiction. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Section and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Section including, but not limited to, any assertion that all or any part of this Arbitration Section is void or voidable. The arbitration will decide the rights and liabilities, if any, of Licensee and Pivot. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon Licensee and Pivot. The arbitration proceedings and results shall remain confidential and shall not be disclosed without the written agreement of the Parties, except to the extent necessary to effectuate the decision or award or as otherwise required by law.

LICENSEE MAY ONLY BRING A CLAIM IN ARBITRATION IN LICENSEE’S INDIVIDUAL CAPACITY AND LICENSEE WAIVES ANY RIGHT TO DO SO AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OR PUTATIVE CLASS. If a decision is issued stating that applicable law precludes enforcement of any of this paragraph’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in San Francisco, California. All other disputes, claims, or requests for relief shall be arbitrated.

If any part or parts of this Arbitration Section is found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder shall continue in full force and effect.