Terms and Conditions of Sale for Goods

1. Incorporation and Acceptance. These Standard Terms and Conditions of Sale (“Terms and Conditions”) are incorporated into that certain quote (the “Quote”) entered into between the buyer indicated thereon (the “Customer”) and Molly Meyer, LLC, d/b/a Omni Ecosystems (“Omni”), regarding the purchase of certain goods (the “Goods”). Goods include “Products” which consist of the horticultural growing media, consisting of growing media, growing media components and growing media amendments, including but not limited to any lightweight mineral aggregate and all micronutrient, geobiological, macronutrient, solid-state biological, and liquid biological components and amendments, utilized in vegetated (green) roof assemblies and certain vegetated terrestrial assemblies which Omni sells and supplies to the Customer. Goods also include “Accessories” which consist of any component, utilized in delivering a vegetated (green) roof assembly or certain vegetated terrestrial assembly, which Omni does not manufacture but sells and supplies to the Customer. These Terms and Conditions and the Quote are collectively referred to as the “Order” and apply to the sale of all Omni Goods to Customer. Omni’s offer to sell Goods to Customer, and Omni’s acknowledgment of any purchase order or other Customer document or communication is expressly limited to, and expressly conditioned on Customer’s acceptance of this Order. The applicability of terms contained in Customer’s order or other documentation or communication is limited to the identification and the quantity of Goods ordered. Omni objects to and rejects all other Customer terms, in any form, that are different from or additional to this Order. Customer’s acceptance of this Order shall be conclusively presumed from Customer’s acceptance of all or any part of the Goods, from payment by Customer for all or any part of the Goods, or from any written or electronic affirmation from Customer’s order of the Goods. None of these Terms and Conditions may be amended, modified, superseded or otherwise altered, except by a written instrument expressly stating that it amends this Order signed by an authorized executive of Omni. Failure of Omni to object to any term or condition contained in any communication, document or form of Customer shall not be construed as a waiver of any of these Terms and Conditions, nor as an acceptance of any such term or condition.

2. Payment Terms. Unless otherwise defined in the Quote, payment terms are fifty percent (50%) of the total amount due for Goods to be paid upon acceptance of the Order and fifty percent (50%) of the total amount due (plus taxes, shipping, and fees) to be paid upon delivery of the Goods. For each shipment, Omni will invoice shipping costs plus overhead upon Customer’s receipt of Goods in that shipment. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Omni, whether relating to Omni’s breach, bankruptcy or otherwise.

3. Taxes. Omni’s prices do not include any applicable sales or value added taxes, tariffs, duties, fees, or similar charges imposed by any governmental authority, which will be separately itemized on Omni’s invoice. Customer must pay such taxes in full. Omni will not collect or remit any taxes for which Customer provides a valid tax exemption certificate. Customer agrees to reimburse Omni for those taxes, if paid by Omni, on the same terms as it shall pay the quoted purchase price for Goods.

4. Shipment. Unless otherwise expressly agreed by Omni and Customer in writing, Omni shall deliver the Goods (or cause them to be delivered) to the delivery location specified in the Order, using Omni’s standard methods for packaging and shipping and its standard carriers. Title and risk of loss to all Goods sold hereunder pass to Customer upon tender of such Goods to the carrier by or on behalf of Omni, F.O.B. (shipping point). Customer may arrange, at its expense, shipping and handling of the Goods, which shall not however change that title and risk of loss pass to Customer F.O.B. (point of shipping). Scheduled dates of delivery are determined from the date of Omni’s acceptance of any Quote or orders placed by Customer and are estimates of approximate dates of delivery, not a guaranty of a particular date of delivery. Under no circumstances will Omni be liable for failure to ship, or for Customer’s failure to receive, Goods by a certain date.

5. Security Interest. Shipments, deliveries and performance of work by Omni shall at all times be subject to the approval of and requirements of Omni’s credit department, including the requirement that Customer pay part or all of the total amount due in advance. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Omni a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision is a purchase money security interest under the Illinois Uniform Commercial Code. Customer hereby authorized Omni to execute on Customer’s behalf and file financing statements describing the Goods and Omni’s interest, and other documents which may be requested by Omni to perfect its security interest.

6. Warranty. Omni warrants that, subject to Section 7 below, when delivered to Customer Goods that Omni manufactures (specifically excluding Accessories) will conform in material respects to the applicable published description and/or specifications provided by Omni, subject to industry recognized tolerances and variations. Omni may measure, sample and test Goods at the loading location to determine the quantity and quality of Goods delivered and unless there is obvious error the results will be treated as conclusive and binding as to the quantity and quality of Goods loaded. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, ALL GOODS ARE SOLD “AS IS” WITHOUT WARRANTY OF ANY KIND; AND OMNI DISCLAIMS ALL OTHER EXPRESS AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SAFETY, OR NON-INFRINGEMENT, ANY WARRANTY THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE, AND ANY WARRANTY REGARDING THE USE OR RESULTS FROM GOODS.

7. Warranty Claims. If any Goods that Omni manufactures do not comply with the warranty in Section 6 above, Customer’s exclusive remedy is to receive a refund of the purchase price, or to receive a replacement of the nonconforming Goods, whichever Omni

selects. No Goods shall be returned for credit without first obtaining Omni’s written consent. Claims by Customer for shortages or errors in delivery must be made at the time of delivery of the Goods. Goods are sold subject to the standard manufacturing practices of Omni's suppliers. Omni’s limited warranty is subject to the following conditions: (i) Customer must submit a warranty claim to Omni in writing within one year after the date that the applicable Goods were delivered, (ii) Customer must preserve and make available to Omni for inspection all physical and documentary evidence supporting the warranty claim, (iii) Customer must have paid the purchase price and all other amounts due for the Goods in full, (iv) Customer must cooperate with Omni’s investigation of such claim, and (v) Customer must have loaded, handled, stored, transported, installed, used, maintained, and/or disposed of the Goods in compliance with all applicable federal, state, local and other laws and regulations, and in compliance, with all instructions, limitations, specifications, warnings, use statements or conditions of use made available by Omni, including product data, product information, safety data sheets, limited use information and labeling. THIS IS CUSTOMER’S EXCLUSIVE REMEDY AND OMNI’S EXCLUSIVE LIABILITY AND OBLIGATION, EVEN IF IT FAILS OF ITS ESSENTIAL PURPOSE. Omni provides no warranty or representation whatsoever about Accessories and goods manufactured or services provided by others; but the other manufacturer or service provider may provide its own warranty. Omni does not represent or warrant the existence or scope of any other manufacturer’s or service provider’s warranty.

8. Limitation Of Liability. IN NO EVENT SHALL OMNI BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF BUSINESS OPPORTUNITY OR GOODWILL, DIMINUTION IN VALUE, FOR INDEMNIFICATION OBLIGATIONS OR PENALTIES OWED TO A THIRD PARTY, OR FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT OMNI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL OMNI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO OMNI FOR THE GOODS SOLD HEREUNDER. Customer acknowledges that the prices Omni charges under this Order reflect the allocation of risk between the parties, including the exclusion of remedies and limitations on liability; and modifying the allocation of risk from what is stated herein would significantly affect those prices. Such allocation is an essential element of the bargain between the parties and, in consideration of those fees, Customer agrees to the stated allocation of risk.

9. Compliance. Omni will manufacture and sell the Goods in compliance with the federal, state, and local laws applicable to each Good. Customer must comply with the federal, state, and local laws applicable to the handling, transportation, storage, use, processing, disposal, distribution, sale, and resale of Goods and to any of Customer’s products that contain or are made by using Goods (including applicable health and safety regulations and standards such as OSHA and ANSI). Omni intends, labels, and packages its Goods for industrial or commercial use by properly trained individuals. Unless specifically stated otherwise on the applicable product packaging or literature, Goods are not intended, labeled, or packaged for sale to or use by consumers (e.g., for home, personal, recreational, or other uses not described in the applicable product packaging or literature). Customer must comply with and take any action required under any recall, field action, or other product use notice with respect to Goods. Goods are sold for Customer’s use or consumption and may not be modified, repackaged, resold, relabeled, or redistributed in any manner without Omni’s prior written consent and shall not be used, installed or promoted outside of industrial or commercial channels or to consumers.

10. Product Information, Selection, and Use.

(a) Customer must store, install, use, and dispose of Goods and otherwise comply with all instructions, limitations, specifications, warnings, use statements or conditions of use made available by Omni, including product data, product information, safety data sheets, limited use information and labeling. Any product information is subject to change without notice. Customer is solely responsible for evaluating and selecting Goods, and determining whether each Good is fit for a particular purpose and suitable for Customer’s use and method of application (including design storm, slope, exposure to wind, fire, or other hazards, and combination with other components). Customer will rely on its own analysis and judgment and the advice of qualified architects, engineers, landscape architects, vendors or other third parties as designated and determined by Customer, without relying on any advice from Omni. Goods are not manufactured to any Customer requirements or specifications unless agreed to in writing by Omni.

(b) Customer is responsible for providing conditions that are suitable for the Goods at the time of installation, which may include: (i) automated irrigation; (ii) completed roofing assembly or engineered barrier; (iii) appropriate in situ conditions, including adequate and unimpeded downstream drainage, limited upstream inflows, wind, solar exposure, fire hazard, etc.; (iv) structural, environmental, civil, architectural, landscape architectural and other design, engineering, assessments, approvals, and/or permitting; (v) compliance with industry best practices and local codes including but not limited to landscape requirements, safety requirements, drainage requirements, stormwater requirements, wind uplift standards, fire standards, irrigation codes, and other requirements.

11. Cancellation. Orders accepted by Omni are subject to cancellation by Customer only upon Omni’s prior written consent. Upon such cancellation and consent, Omni shall cease work and hold for Customer all completed and partially completed Goods and work in progress and Customer shall pay Omni for the portion of the Goods that have been completed, all work in progress and materials and labor

that have been committed to and/or allocated to Customer’s order, plus a cancellation charge as prescribed by Omni to cover costs and overhead of cancellation. Omni may cancel Customer’s Order with or without cause upon written notice to Customer at any time after 12 months from the date of the execution of the Order.

12. Indemnification. Customer agrees to defend, indemnify and hold Omni harmless from any loss, liability, damage, penalty, or expense (including attorneys’ fees, settlement payments and costs to pursue insurance benefits) that Omni incurs relating to or resulting from any claim, allegation, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, that Omni, Customer, or any third party asserts that directly or indirectly relates to, results from or is caused by actual or alleged breach or failure to comply with this Order or any requirement hereof, negligence or intentional act or omission, or violation of any applicable law or regulation by Customer (or Customer’s employees, independent contractors, customers or invitees). Customer also agrees to maintain insurance coverage appropriate for its business.

13. Omni’s Intellectual Property. All right, title and interest to the inventions, methods, designs (whether registered or not), information, technical data or drawings, copyrights, patent rights, trademark rights, know-how, formulas, discoveries, technology, designs, trade secrets, related intellectual property, and all other forms of proprietary rights throughout the world, and all improvements, enhancements, modifications and derivative works thereof (collectively, “Intellectual Property”) relating to the Goods or otherwise disclosed to Customer or its representatives, in connection with any purchase order or proposal, are the exclusive property of Omni (or its licensors). Without limiting the foregoing, the plans, descriptions, terminology, Omni’s products including the composition, formulas, and processes for use for growing media, growing media amendments and growing media components, constitute Omni’s Intellectual Property. Customer shall not directly or indirectly: (i) reverse engineer, disassemble, sample, recreate, trace or otherwise analyze the Goods (including any growing media, growing media amendment, or growing media component), their content, operation, or functionality; (ii) modify or create derivative works based on the Goods; or (iii) disclose any proprietary information regarding Omni’s Intellectual Property to any other persons without Omni’s prior written consent. Customer shall give Omni prompt written notice of any third party’s request of Customer to do any of the acts in the foregoing clauses (i) – (iii) or if Customer is aware that any third party is doing (or attempting to do) so. To the extent that use of Goods for their intended purpose requires use of Omni’s Intellectual Property associated with such Goods, Omni grants to Customer a non-transferable (including by way of pledge or assignment), personal, revocable, non-sublicensable, non-exclusive license to use such Intellectual Property solely in connection with Customer’s use of Goods purchased from Omni, for Customer’s internal purposes and not for reproduction, modification, or redistribution. Customer shall not use the growing media, growing media amendments, growing media components, and Omni’s Intellectual Property, for any other purposes. Except for the rights and licenses granted by Omni in this Section 13, this Order does not grant to Customer or any other person any right, title, or interest by implication, estoppel, or otherwise, in any of Omni’s Intellectual Property; and all rights, titles, and interests not specifically and expressly granted by Omni hereunder are hereby reserved. Any unauthorized use of the Goods, the growing media, growing media amendments, growing media components, and any other element of Omni’s Intellectual Property shall be at Customer’s sole risk and without liability to Omni.

14. Default. If Customer defaults or otherwise fails to perform any obligation or requirement under this Order, Omni may immediately exercise any rights available under this Order and applicable law (all of which are cumulative and non-exclusive). Customer agrees that (i) Omni may declare all amounts outstanding under this Order to be immediately due and payable in full, and Customer shall pay such amounts; (ii) Omni may without notice set off and recoup any amounts Omni may owe to Customer against amounts Customer owes to Omni (regardless of whether such amounts are matured, liquidated or arising in connection with any other obligations); (iii) stop further shipment or sales of Goods, suspend credit, or require that Customer pay cash on delivery or in advance; and/or (iv) add a finance charge each month at a periodic rate of 1.5% each month (18% per year) or the maximum rate allowed by law, whichever is less, on any unpaid amounts accruing from the day after the applicable due date. Customer shall be liable for lost business opportunities, lost market share, lost profits, direct damages and consequential damages arising from or caused by a breach of this Order. At Omni’s written demand, Customer shall reimburse Omni for reasonable costs and expenses that Omni incurs to enforce this Order and collect amounts due hereunder (including reasonable attorneys’ fees, court costs and other costs of collection, whether incurred before, during or after litigation or bankruptcy proceedings, and collection agency fees). This Order is a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Sections 362(b)(6), 546(e), 556, and 562 of the Bankruptcy Code apply.

15. Delay. If Customer requests deferral of deliveries, Omni’s Order to defer delivery shall not excuse Customer from its obligation to pay for the Goods at the same times and in the same quantities as the original delivery schedule, including interest due pursuant to these Terms and Conditions. In addition to adhering to the original payment schedule, Customer shall pay such storage charges as Omni may assess for storing Goods awaiting delivery. If Customer requests deferral prior to commencement of production, Omni may require progress payments in connection with expenses for materials and services incurred by Omni in anticipation of production.

16. Force Majeure. Omni shall not be liable or responsible to Customer or any other person, nor be deemed to have defaulted under or breached this Order, for any failure or delay in Omni’s performance caused or affected by conditions or events beyond Omni’s reasonable control, including natural disasters or conditions, accidents, fires, strikes or slowdowns, industrial disturbances, actions by a government authority, war, terrorist threats or acts, civil unrest, public health conditions, shortage of products or labor, interference with

transportation routes, carrier shortages, damage to carrier, damage to Goods by carrier, any act of God, or failure of utilities or telecommunications.

17. Governing Law, Venue/Jurisdiction, Time Limit to Assert Claims. The validity, interpretation and performance of the Order and the transactions hereunder shall be governed by the laws of the State of Illinois without regard to conflicts of interest laws. Customer and Omni hereby submit to the exclusive jurisdiction of the Illinois State or United States Federal courts located in Chicago, Illinois as the sole and exclusive jurisdiction and venue for the purpose of adjudication of any rights and liabilities hereunder and waive any objection based on personal jurisdiction, venue or inconvenient forum. Omni shall be entitled to injunctive and other equitable relief for any violation or threatened violation of Sections 13 or 21 hereof. The parties, intending to shorten the statute of limitations, agree that any claim arising under or related to this Order or the transactions contemplated herein must be brought within one year of the date the claim accrued, or it shall be waived and forever barred.

18. Images & Attribution. Customer grants Omni and Omni’s affiliates the right to create and use images (including photographs) of the Goods in various stages of completion at their location of installation in Omni’s advertising and marketing materials, including in publications and on websites (with or without attribution to Customer, and without charge). As between Omni and Customer, Omni owns all copyright and other intellectual property rights in such images.

19. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Order without Omni’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under the Order.

20. Compliance with Law. Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order and to use Goods.

21. Confidential Information. All non-public, confidential or proprietary information of Omni, including specifications, formulas, samples, instructions, guidelines, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed or made available to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential", is confidential, solely for the use of performing this Order and may not be disclosed or copied unless authorized in advance by Omni in writing. At Omni’s request, Customer shall promptly return or destroy all documents and other materials that contain Omni’s confidential information (and certify in writing to Omni that it has done so). This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.

22. Waiver. No waiver by Omni of any of the provisions hereof is effective unless set forth in a writing signed by Omni. No failure to exercise, or delay in exercising any rights, remedy, power or privilege arising from this Order operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

23. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

24. No Third-Party Beneficiaries. The Order is for the sole benefit of the parties hereto and their respective successive and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or reason of this Order.

25. Interpretation; Changes; Etc. Omni reserves the right to change these Terms and Conditions at any time without notice. If any provision of this Order is held to be illegal, invalid or unenforceable to any extent in any context, that provision shall be modified or restricted however necessary to render it valid, legal, and enforceable in that context. Modification or restriction may be accomplished by mutual Order between Customer and Omni; or, alternatively, by disposition of a court. If the provision cannot be modified or restricted, then: that provision will be fully severed, this Order will be construed and enforced as if the illegal, invalid or unenforceable provision was never a part of this Order, and the remaining provisions of this Order will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance from this Order. In this Order, the word “including” (or its variations) will be deemed to be followed by the words “without limitation.” Any capitalized term used in these Terms and Conditions without definition will have the meaning given to it in the Quote. Whenever written consent, approval, agreement, or other action is required by Omni, such writing must expressly and specifically address the matter for which such writing is required and be signed by an authorized executive of Omni.

Updated: Dec 13, 2023