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Dealer Terms and Conditions

TERMS AND CONDITIONS GOVERNING EARTHOPTICS DEALERS

These Terms and Conditions (“Terms”) shall govern the relationship between EarthOptics, with a registered address located at 2461 S. Clark Street, Suite 840, Arlington, VA 22202 (“EarthOptics”) and any dealer (“Dealer”) that executes a Dealer Contract or other dealer agreement with EarthOptics, which contract or agreement expressly references these Terms (the “Dealer Agreement”). EarthOptics and Dealer are referred to herein as the “Parties.”

1. APPLICABILITY.

Dealer may place sample plan orders ("Sample Plan Order(s)") with EarthOptics for the Services defined in the attached Appendix A (the "Services), digitally through a web, or other EarthOptics-supported, application (the “App”), and all such Sample Plan Orders will be governed solely by these Terms and the terms of the Dealer Agreement, unless otherwise mutually agreed upon in writing. EarthOptics shall not be deemed to have waived the terms and conditions contained herein or in the Dealer Agreement if it fails to object to provisions appearing on, incorporated by reference in, or attached to any Sample Plan Order form or other document. The Dealer Agreement (including these Terms and its exhibits, along with the EULA (as defined below) and EarthOptics Privacy Policy, shall be the entire agreement between the Parties with respect to the subject matter hereof and merges all prior discussions, agreements and understandings with respect to its subject matter. No contrary or additional terms or conditions contained in any Sample Plan Order form or other document shall apply unless agreed to in writing and signed by an authorized representative of EarthOptics.

2. APPOINTMENT.

Dealer has been appointed as an authorized independent dealer for purposes of marketing and selling the Services to farmers and other prospective customers of the Service (referred to herein as “Customers”). Dealer has no authority, without the prior written consent of EarthOptics, to bind EarthOptics to any contract, representation, understanding, act or deed concerning EarthOptics or the Services, or any other service or product offered by EarthOptics. Dealer shall make no representations or warranties concerning the Services (including with respect to price, performance, payment terms and conditions of service), unless such warranty or representation is authorized in advance and in writing by EarthOptics. The Dealer Agreement, and Dealer’s appointment as an authorized independent dealer, is not exclusive, and EarthOptics may appoint other dealers, agents, sales representatives, distributors, and resellers for the Services within any territory that Dealer does business, or elsewhere, in EarthOptics’s sole discretion.

3. DEALER RESPONSIBILITIES.

The commissions described in the Dealer Agreement are contingent upon fulfillment of the following responsibilities by Dealer. Dealer shall:

1. maintain reasonable technical and practical knowledge with regard to the Services and participate in any service and technology training required by EarthOptics;

2. utilize promotional materials provided to Dealer by EarthOptics for the purpose of marketing and selling the Services;

3. promptly respond to all communications by customers and EarthOptics regarding the Services;

4. submit all required information about the farmer or other Customer and his/her operation as instructed by EarthOptics;

5. upload the necessary field data to EarthOptics's website in order for sample plans to be ordered;

6. deliver results to the Customer within 14 days of those results being available; and

7. reasonably assist EarthOptics with regard to any and all collection matters as requested by EarthOptics.

4. SAMPLE PLAN ORDERS.

In order to initiate a sale, Dealer must provide to EarthOptics a Sample Plan Order for each Customer through the App. Dealer will identify the party who will be paying for the service when submitting the Sample Plan Order and will submit the required information about the farmer and his/her operation. The price for the Services specified will be calculated at that time. In the event that Dealer will be the responsible billing party, Dealer shall comply with the provisions in section 5 of these Terms. Dealer agrees to the terms in EarthOptics’s End User License Agreement (“EULA”) and Privacy Policy, which can be found at https://www.earthoptics.com/eula and https://www.earthoptics.com/privacy-policy . respectively, and which are made a part of these Terms and the Dealer Agreement and shall be binding on Dealer.

5. PRICES AND PAYMENTS.

Payment is due to EarthOptics within 30 days of receipt of invoice. Upon delivery of the Services, EarthOptics will send the invoice to Dealer as the responsible billing. In the event payments are not made in a timely manner, EarthOptics may, in addition to all other remedies provided at law, either: (1) declare Dealer’s performance in breach and terminate the Sample Plan Order for default; (2) withhold future services until delinquent payments are made; (3) recover all costs of collection including reasonable attorney’s fees; and (4) at EarthOptics’s option combine any of the above rights and remedies as provided by law. Interest equal to the lesser of 1.5% per month or the highest rate allowed by law will apply to late payments.

6. DEALER INCENTIVES.

EarthOptics may pay Dealer a sales incentive or commission on Services completed (assuming Dealer is the designated commission agent at the time of Service completion), as may be set forth in the Dealer Agreement. The exact payment due will be determined by the services ordered, the quarter in which the Sample Plan Order was placed, the current incentive schedule in place at time of Sample Plan Order placement, and achievement of any acreage commitments in all cases as set forth in the Dealer Agreement. The incentive or commission structure is included in the Dealer Agreement, and is subject to revision at any time within EarthOptics’s sole discretion by providing notice of such revision to Dealer by electronic mail or in writing. Any revised incentive or commission structure shall be effective 30 days following EarthOptics’s notification to Dealer of the revised structure. A sale is deemed complete for Dealer incentive purposes when the associated sample plan has been ordered through the App, and the samples have been received successfully at EarthOptics’s facilities located at the registered address above or such other EarthOptics address as EarthOptics may provide to Dealer.

7. SAMPLING

Samples must be pulled according to the sampling protocol outlined in Appendix B (the “Sampling Protocol”). Dealer will ensure that Dealer, or any Customer of Dealer, pulling samples will follow the Sampling Protocol. Dealer understands that the accuracy of the results for any sample may be dependent on adherence to the Sampling Protocol and that EarthOptics disclaims any responsibility for any inaccuracies resulting from failure to adhere to the Sampling Protocol.

8. COMPLIANCE WITH LAW.

Dealer shall comply with all applicable federal, state, and local laws, ordinances and regulations related to its performance under the Dealer Agreement and these Terms. Dealer shall not offer to pay, assign, or give any part of the commissions or other compensation to be paid to Dealer to any agent, customer, or potential customer, or to any other person as an inducement or reward for assistance.

9. NON-COMPETITION.

Throughout the term of any Dealer Agreement between the Parties, Dealer shall not refer EarthOptics’s customers or potential customers to any person or entity other than EarthOptics that offers products and services that are in competition with the metagenomic or DNA-based products and services, or any biological analytic, offered by EarthOptics.

10. INDEPENDENT CONTRACTOR.

Dealer’s relationship with EarthOptics will be that of an independent contractor, and nothing in the Dealer Agreement or these Terms shall establish, or be interpreted as establishing, a partnership, joint venture, employer-employee relationship, or any agency relationship except as expressly set forth in the Dealer Agreement or these Terms. Dealer (and its employees, if any) are not entitled to and will not be eligible for any benefits that EarthOptics may make available to its employees, such as group insurance, profit-sharing (whether in the form of equity grants or otherwise), or retirement benefits. Because Dealer is an independent contractor, EarthOptics will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on behalf of Dealer or its employees. If, notwithstanding the foregoing, Dealer is reclassified as an employee of EarthOptics or any affiliate of EarthOptics by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal, state or foreign agency or court as the result of any administrative or judicial proceeding, Dealer agrees that Dealer (and its employees, if any) will not, as a result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by EarthOptics or any affiliate of EarthOptics.

Dealer is solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from the payment of commissions or any other amounts under the Dealer Agreement, and Dealer agrees to do so in a timely manner. If applicable, EarthOptics will report the commissions or any other amounts paid to Dealer under the Dealer Agreement by filing a Form 1099 with the U.S. Internal Revenue Service as required by law. Dealer will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability, and other contributions.

11. TERM AND TERMINATION.

These Terms will remain in force during the term of any Dealer Agreement between EarthOptics and Dealer. Unless earlier terminated as set forth herein, the Dealer Agreement will terminate in accordance with its terms, and these Terms will apply for the duration of any Dealer Agreement between the Parties. Notwithstanding the foregoing, the Dealer Agreement and these Terms may be terminated for any reason or no reason upon thirty (30) days’ written notice by either Party given to the other Party. Additionally, EarthOptics may terminate the Dealer Agreement and these Terms immediately upon written notice to Dealer if Dealer, in EarthOptics’s sole discretion, materially breaches these Terms or the terms of the Dealer Agreement. The appointment of Dealer as a EarthOptics dealer shall terminate upon the expiration or termination of the Dealer Agreement, unless Dealer executes a new Dealer Agreement with EarthOptics upon such expiration or termination. EarthOptics shall be responsible for paying any and all commissions owed to Dealer under the Dealer Agreement only for those sales made before the termination or expiration of the Dealer Agreement that are not subsequently canceled, revoked or refunded. Notwithstanding anything to the contrary contained in this Section 11, the provisions of Sections 8, 10, 11, 12, 13 (other than the second paragraph thereof) and Sections 14-23 shall survive termination of these Terms, along with any outstanding payment obligations accrued in accordance with Section 5 or 6 (including, as applicable, the refund provisions related thereto and the remedies contained herein or in the Dealer Agreement).

12. CONFIDENTIALITY.

All documents, data, information, processes, know-how, techniques, formulae, models, apparatuses, software programs, agricultural product formulations, equipment and other materials made available to Dealer in connection with the Dealer Agreement (or otherwise in connection with Dealer’s relationship with EarthOptics), including without limitation all information regarding the Services, EarthOptics’s customers (including those customers and potential customers on which Dealer has called), marketing data, business plans, product information and technical information (collectively “Confidential Information”) shall be deemed to have been furnished to Dealer in confidence and shall remain the exclusive property of EarthOptics both during the term of these Terms and after these Terms terminate or expire. Dealer shall treat as trade secrets and keep in strict confidence all Confidential Information it obtains from EarthOptics at any time, or which Dealer develops for or on behalf of EarthOptics, and Dealer will not at any time, either during, or following the termination of, these Terms, use such Confidential Information for its own benefit or in any way that is not authorized by EarthOptics, nor shall Dealer disclose, or permit any of its employees, agents, or representatives to disclose, such Confidential Information to any person or entity other than as authorized under the Dealer Agreement or these Terms without the written consent of EarthOptics. Notwithstanding the foregoing nondisclosure obligations, pursuant to 18 U.S.C. Section 1833(b), Dealer will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

Upon termination of these Terms or upon EarthOptics’s request at any other time, Dealer will deliver to EarthOptics all Confidential Information, and all other EarthOptics property (including intellectual property), equipment, and documents, together with all copies thereof, and Dealer will certify to EarthOptics in writing that Dealer has fully complied with this obligation.

13. INTELLECTUAL PROPERTY.

Dealer agrees that EarthOptics retains full ownership rights in and to all EarthOptics intellectual property, including without limitation any EarthOptics trademark, service mark, trade dress, and any associated goodwill (“EarthOptics Marks”), any EarthOptics trade secret, any EarthOptics copyright, patent or patent right, any EarthOptics cell line or other biological material, whether presently existing or later developed, or any EarthOptics digital application (whether web-based, mobile-based or otherwise) along with the associated software. Dealer agrees to sign any document and take any other steps as reasonably required by EarthOptics to effect the recording of, to perfect EarthOptics’s rights in, or to defend or protect EarthOptics intellectual property (including the EarthOptics Marks). EarthOptics shall retain full ownership of all relationships with Customers that Dealer makes sales to or refers to EarthOptics under or in connection with the Dealer Agreement, including all information relating to such Customers, which shall be considered Confidential Information as defined in, and subject to the terms of, Section 12 above.

If approved in advance and in writing by EarthOptics, Dealer may use advertising and other promotional materials for EarthOptics or its Services, including any EarthOptics Marks contained therein, in the course of performing its duties to EarthOptics. Dealer may use such materials only upon the terms and conditions stated by EarthOptics from time to time. Dealer may not delete any EarthOptics Marks or notices contained in, or modify in any way, EarthOptics’s advertising and promotional materials that it is authorized to use without the advance written consent of EarthOptics.

Except for the rights expressly granted under these Terms (or under any other written agreement between the Parties), EarthOptics does not grant any right or license to Dealer.

14. SOIL SAMPLE DONATION.

Dealer and EarthOpticsree that EarthOptics will be the sole owner of all soil samples (“Samples”) taken from land associated with, or identified in, a Sample Plan Order placed by or through Dealer under a Dealer Agreement and Dealer agrees that it has irrevocably assigned and transferred to EarthOptics, on behalf of itself and each Land Owner, all right, title and interest that Dealer or such Land Owner may have in and to such Samples without any compensation to Dealer, Land Owner or any other party. Dealer will take all further acts reasonably required to evidence such assignment and transfer to EarthOptics. EarthOptics has the full right and authority to use the Samples, and to permit others to use the Samples, for any and all purposes. EarthOptics has no obligation to make any payment or other compensation to Dealer, any Land Owner or any other party in connection with (1) EarthOptics's ownership of the Samples, (2) any use of the Samples by EarthOptics or others or (3) any information, data, results, materials or intellectual property rights that are obtained directly or indirectly through use of the Samples, including, without limitation, any commercial products, microorganisms or molecules that may be identified, isolated or derived from the Samples. For the purposes of this section, “Land Owner” shall mean, with respect to any Sample, the owner of the land from which such Sample was obtained, or any rights associated with such land.

15. NO WARRANTY; INDEMNIFICATION.

Dealer shall extend no warranties or guarantees of any kind concerning the Service or EarthOptics without the advance written approval of EarthOptics. Dealer shall indemnify and hold EarthOptics and its officers, directors, employees, agents, suppliers and licensors harmless from and against any liabilities, losses, claims, suits, damages and expenses (including attorney’s fees) arising out of Dealer’s breach of this Section 15 or of Section 8 or Dealer’s breach of any of the representations, warranties, certifications or agreements contained herein or in the Dealer Agreement.

16. LIABILITY LIMITATION.

NEITHER EARTHOPTICS NOR ITS AFFILIATES, SUPPLIERS OR LICENSORS SHALL BE LIABLE TO DEALER OR ANY THIRD PARTY FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM THE USE OR INABILITY TO USE THE PRODUCTS OR SERVICES, DELAY OF DELIVERY AND IMPLEMENTATION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

17. EQUITABLE REMEDIES.

Dealer acknowledges that any breach of these Terms or of the Dealer Agreement by it would cause irreparable injury to EarthOptics for which monetary damages would not be an adequate remedy and, therefore, EarthOptics will be entitled to injunctive relief (including specific performance) in addition to any other remedies available to EarthOptics.

18. DISPUTES.

To ensure the rapid and economical resolution of disputes that may arise in connection with these Terms or the Dealer Agreement, the parties agree that any and all disputes, claims, or causes of action, in law or equity, including but not limited to statutory claims, arising from or relating to the enforcement, breach, performance, or interpretation of these Terms or the Dealer Agreement that cannot be resolved by the good faith efforts of the parties shall be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. § 1-16, to the fullest extent permitted by law, by final, binding and confidential arbitration conducted by JAMS, Inc. (“JAMS”) or its successor, under JAMS’ then applicable commercial arbitration rules (available upon request and also currently available at http://www.jamsadr.com). The arbitration shall be administered by the San Francisco, California office of JAMS (the “Administrator”). The dispute shall be submitted to a single arbitrator (“Arbitrator”) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties within ten (10) days after request by either party. Should the parties be unable to agree on a choice of arbitrator within ten (10) days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The location of the arbitration will be in Alameda County, California, or such other location as the parties shall agree. The parties acknowledge that by agreeing to this arbitration procedure, both Dealer and EarthOptics waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. This paragraph shall not apply to any action or claim that cannot be subject to mandatory arbitration as a matter of law. The parties will have the right to be represented by legal counsel at any arbitration proceeding. Questions of whether a claim is subject to arbitration hereunder shall be decided by the Arbitrator. Likewise, procedural questions which grow out of the dispute and bear on the final disposition are also matters for the Arbitrator. The Arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (b) issue a written statement signed by the Arbitrator regarding the disposition of each claim and the relief, if any, awarded as to each claim, the reasons for the award, and the Arbitrator’s essential findings and conclusions on which the award is based (including the calculation of any damages awarded). The Arbitrator shall be authorized to award all relief that EarthOptics or Dealer would be entitled to seek in a court of law. Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements, and/or the fees and costs of the Administrator and the Arbitrator. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction.

Notwithstanding the foregoing, Dealer agrees that EarthOptics may proceed directly to any court of competent jurisdiction to seek protection or enforcement of its intellectual property rights and/or to seek injunctive relief or other equitable relief (including specific performance) to prevent irreparable harm. Exclusive venue for any claim falling under the preceding sentence shall be the state and federal courts located within the Northern District of California.

19. APPLICABLE LAW.

These Terms shall be interpreted in accordance with the laws of the State of California, exclusive of any choice of law provisions. The Parties expressly agree to exclude from these Terms from the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto.

20. WAIVER.

Failure by EarthOptics to assert all or any of its rights upon any breach of these Terms or of the Dealer Agreement shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the payment of any commission or fee or the provision of any service. No waiver of any right shall extend to or affect any other right EarthOptics may possess.

21. SEVERABILITY.

If any provision of these Terms or the Dealer Agreement is determined to be illegal, invalid, or unenforceable, for any reason, then such provision shall be deemed stricken for purpose of the dispute in question, and all other provisions shall remain in full force and effect.

22. ASSIGNMENT; AMENDMENT.

These Terms and the Dealer Agreement, and Dealer’s rights and obligations hereunder and thereunder, may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by Dealer without EarthOptics’s express prior written consent. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. EarthOptics may assign these Terms or the Dealer Agreement, or any of its rights hereunder or thereunder, to any third party with or without Dealer’s consent. No modification or amendment to these Terms or the Dealer Agreement will be effective unless in writing signed by both parties.

23. NOTICES.

Each party must deliver all notices and approvals required or permitted under these Terms or the Dealer Agreement in writing to the other party by electronic mail. Notice will be effective upon receipt. The receiving party will be deemed to have received such Notice upon delivery or transmission. The applicable electronic mailing address for EarthOptics is support@EarthOptics.ag. The applicable electronic mailing address for the Dealer shall be the email address on file with their user profile within the EarthOptics Web Portal (“Portal”) that is associated herewith. Each party may change such party’s e-mail address for receipt of notice by providing notice of such change in accordance herewith.

Appendix A: Service Description

The Services referenced in the Terms and the Dealer Agreement include the features listed below. These features may be changed at any time at EarthOptics's sole discretion.

General Service Features:

  • Shipping of customer's soil samples to EarthOptics's laboratory
  • Processing of soil samples through EarthOptics's genetic sequencing and / or chemistry pipeline
  • Delivery of data via EarthOptics's web portal

Service-Specific Features:

Pro Nutrient Panel

  • Soil fertility assessment including measures of: P, K, Ca, Mg, pH, CEC, along with the key micronutrients Zn, Fe, Cu, B, and Mn.
  • Optional add-on: Nitrogen

Pressure Panel

  • Detection of specific high value pests / pathogens

Complete Bio Panel

  • Includes all Pressure Panel results
  • Additional pest / pathogen detection
  • Biofertility metrics

EarthOptics 360 Panel

  • Includes all Complete Bio Panel results (including Pressure Panel results) and Pro Nutrient Panel results

Appendix B: Sampling Protocol

The Dealer must follow the below sampling protocol for every soil sample pulled on behalf of EarthOptics:

  • Record all sampling within the EarthOptics Sampling app on your mobile device.
  • In each zone indicated by the sampling app, collect 12 to 14 soil cores at 6-inch depth at regular intervals across the zone such that the cores are spread out evenly across the zone. Here is an example of the desired driving path and core locations in a grid sampling plan:

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  • Pour all 12 to 14 soil cores into a EarthOptics soil bag and ensure the amount of soil fills the bag up to the fill line printed on the bag.
  • Scan the QR code on the bag into the EarthOptics Sampling app at the point where you collected the sample. Make sure not to move from the sampling point before you scan the QR code, as the app will record your location when you scan the QR code and will assume that is the point from which you took the sample.
  • Between each sample, make sure to clean the probe of any leftover soil. If soil is getting stuck on the probe, please spray the probe with silicone spray. Please do not use any other type of spray.
  • Please use EarthOptics provided shipping labels when sending the samples to our lab. The labels should be pre-filled with our shipping address (included here for reference).‍

Commercial Soil Receiving

EarthOptics

2461 S. Clark Street, Suite 840

Arlington, VA 22202

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