Exhibit 10.15


 


Pursuant
to Item 601(b)(10) of Regulation S-K, certain confidential portions of this exhibit marked with brackets and asterisks have been
omitted because they are both (i) not material and (ii) would be competitively harmful if publicly disclosed.


 


SUPPLY
AGREEMENT


 


This
Supply Agreement (“Agreement”) is entered into effective as of December 7, 2020, (“Effective Date”) between
Agrify Corporation (“Buyer”), with its principal place of business located at 101 Middlesex Tpke, Ste 6, PMB 326,
Burlington Massachusetts 01803, Attn: Richard Stamm, e-mail:Richard.Stamm@Agrify.com, and Mack Molding Co. (“Supplier”),
with a principal place of business at 608 Warm Brook Road, Arlington, Vermont 05250, Attn: Joan Magrath, e-mail: joan.magrath@mack.com.


 


	1.	Scope.
                                         This Agreement sets forth the terms and conditions under which Supplier will manufacture
                                         and supply certain custom made commercial cultivation systems to Buyer as set forth on
                                         Exhibit A (hereinafter collectively referred to as “Products”). Other products
                                         may be added by the parties to Exhibit A from time to time. The scope of this Agreement
                                         shall include, procurement of Materials (as hereinafter defined) and supplier management
                                         (transferred products are pre-qualified and approved) cost management, manufacturing,
                                         inventory management and order fulfillment as needed. In addition, Supplier will provide
                                         parts to support service as defined by Buyer at agreed upon prices while Products are
                                         active in production and for six (6) months thereafter based on component/material availability.
                                         Products shall be manufactured to Buyer’s Specifications. As used herein, “Specifications”
                                         means the bill of material (BOM), drawings, standards and/or samples of each Product
                                         provided by Buyer to Supplier in writing, together with the Acceptance Criteria (as hereinafter
                                         defined).



 


	2.	Purchase
                                         Terms.



 


		a.	The
                                         price set forth on the face of a Purchase Order (as hereinafter defined) shall in no
                                         event be increased without Buyer’s express consent, either initial oral consent subsequently
                                         confirmed in writing or prior written consent, given by a duly authorized agent of Buyer.
                                         If the price on the face of a Purchase Order is incorrect, Supplier must immediately
                                         notify Buyer before processing such Purchase Order. Supplier may notify Buyer in writing
                                         or orally of the incorrect price, but if said notice is oral, Supplier shall confirm
                                         this price correction in writing.



 


		b.	Pricing,
                                         Minimum Purchase Requirement; Minimum Purchase Volume. Unless otherwise stated, the prices
                                         are based on quotation for Product, based on specific product revision, quality requirements
                                         (See Agrify document QUAL-0002 Revision A), quantities and delivery schedule, and shall
                                         be calculated as set forth on Exhibit A. Buyer and Supplier acknowledge and agree that
                                         the pricing formula and cost structure for the Products is based on Buyer purchasing
                                         a minimum of at least [****] Products per year during the Term (the “Minimum Purchase
                                         Requirement”). Notwithstanding anything to the contrary in this Agreement, in the
                                         event that Buyer does not meet the Minimum Purchase Requirement during any year during
                                         the Term, Supplier reserves the right to charge a reasonable re-start or set-up fee upon
                                         Buyer’s placement of a Purchase Order in the subsequent year and upon [****] days
                                         prior written notice to Buyer. In addition, Buyer acknowledges and agrees that upon the
                                         completion of the [****] Product by Supplier for Buyer under this Agreement, Buyer shall
                                         cooperate and negotiate in good faith with Supplier to mutually agree on the minimum
                                         percentage of Buyer’s requirements for Products that Buyer shall order from Supplier.



 


		c.	Taxes
                                         and Payment Terms. Buyer shall pay sales or use tax, if any is due. Unless otherwise
                                         stated, the prices do not include sales or use taxes applicable to the Products. Any
                                         government-imposed taxes or tariffs applicable to procured Material imposed after the
                                         date of relevant Purchase Order will be passed on to Buyer. Payment terms and Credit
                                         limit shall be as set forth on Exhibit B hereto, as may be updated by mutual written
                                         agreement of the parties from time to time. Payment terms and credit line shall be established
                                         based on financial reporting and net worth. Buyer will provide financial reporting (balance
                                         sheet, net worth, profit and loss statement as available) at agreed upon frequency however
                                         no less than [****] per year. Supplier reserves the right to alter payment terms in the
                                         future based on payment history and any credit line in such a way that disfavors Buyer
                                         if Supplier believes, in its sole and reasonable discretion, that Buyer’s business
                                         or financial condition has changed in a materially adverse manner.



 






     


     


    

 


		d.	Forecasts.
                                         Buyer will provide Supplier with a non-binding, rolling 12-month forecast for planning
                                         purpose only (“Forecast”). Supplier agrees to work with Buyer to meet forecasted
                                         amounts and to accommodate fluctuations in Forecast. The Forecasts shall represent reasonable
                                         estimates for planning purposes only and do not obligate Buyer in any way, unless otherwise
                                         agreed in writing. If Buyer requests a quantity of a Product in excess of the forecasted
                                         quantity or within quoted lead-time Supplier shall use commercially reasonable efforts
                                         to accommodate such request without expedite fees. In the event Supplier’s efforts
                                         to accommodate Buyer’s request would require expedite fees, Supplier shall promptly
                                         advise the Buyer of any and all anticipated expedite fees (including labor overtime,
                                         material expedite fees and/or expedite shipping fees) for Buyer’s consideration
                                         and written approval.



 


		e.	Purchase
                                         Orders. Purchases under this Agreement shall be made with purchase orders (“Purchase
                                         Orders”) issued by Buyer, and Buyer shall be liable under this Agreement for no
                                         more than the amount set forth in the individual Purchase Orders, unless otherwise agreed.
                                         All purchases made by Buyer shall be subject to this Agreement and the parties intend
                                         for the express terms and conditions contained in this Agreement (including any Attachments
                                         hereto) to exclusively govern and control each of the parties’ respective rights and
                                         obligations regarding the subject matter of this Agreement, and this Agreement is expressly
                                         limited to such terms and conditions. Without limitation of the foregoing, to the extent
                                         that any Purchase Order, confirmation, acceptance or any similar document, contains terms
                                         that conflict with or are inconsistent with this Agreement, the terms of this Agreement
                                         shall govern, with exception to any pricing terms, payment terms, and delivery terms
                                         defined in such Purchase Order mutually agreed to in writing signed by both of the parties.
                                         Any attempt to modify, supersede, supplement or otherwise alter this Agreement, will
                                         not modify this Agreement or be binding on the parties unless such terms have been fully
                                         approved in a signed writing by authorized representatives of both parties. Material
                                         procurement will be based on price, lead-time, MOQ (minimum order quantity), EOQ (economic
                                         order quantity) and retention time, as mutually agreed. Selective components may have
                                         a separate written agreement between the parties to secure Material which have extended
                                         lead-time, require an MOQ or an advantageous EOQ. Buyer will approve in writing the procurement
                                         of Material in excess of that referred to in the Purchase Order and will be responsible
                                         for payment to Supplier for the Material that is not used, consumed, or otherwise accounted
                                         for in a usage report within [****] months after purchase, unless otherwise agreed. In
                                         the case of such purchase, in the event Material is stored to consume, Buyer shall receive
                                         a credit for any subsequent usage of the Material by Supplier. Material that is obsolete
                                         and inactive will be shipped to Buyer, unless otherwise agreed.



 


		f.	Title;
                                         Risk of Loss. Title to the Products shall transfer from Supplier to Buyer at the
                                         later of (i) shipment to Buyer pursuant to Section 5 or (ii) payment by Buyer for the
                                         Products. Risk of loss related to the Product shall transfer from Supplier to Buyer at
                                         the time the Products are shipped pursuant to Section 5, unless otherwise agreed by the
                                         parties in writing.



 


	3.	Production
                                         Planning, Order Fulfillment and Changes. In addition to the Forecast, Buyer will
                                         provide monthly production planning requirements (“Buyer’s Production Schedule”),
                                         and monthly schedule for specific shipping requirements (“Buyer’s Shipping
                                         Schedule”). Supplier’s production and build schedule shall align with Buyer’s
                                         Production Schedule, and Supplier shall ship Products in accordance with Buyer’s
                                         Shipping Schedule. Supplier will use commercially reasonable efforts to meet any unplanned
                                         requirements within 30 days of due date. Supplier shall ship Products in accordance with
                                         the quantities, ship dates, and delivery location specified in the written Purchase Order
                                         or in another written document provided to Supplier by an authorized representative of
                                         the Buyer. Beyond a two-week firm window, Supplier shall accommodate requests by Buyer
                                         to delay shipments of Products provided the delay is defined and does not exceed [****]
                                         days from the date Product is completed. Buyer has the right to make changes, additions
                                         or alterations to items, timing, destination, Specification, drawings or design. Supplier
                                         must notify Buyer within [****] business days of receipt of request if any of the adjustments
                                         affect price, timing or terms, and any such changes will only be binding if agreed to
                                         in writing by Buyer. Conversely, Supplier shall not make any changes in design, packaging,
                                         processing, marking, shipping, or delivery unless agreed to in writing by an authorized
                                         Buyer employee.



 






    2 


     


    

 


	4.	Inventory
                                         Management and Retention. Supplier will procure Material based on Buyer’s Purchase
                                         Order and agreed quantity and retention time. Supplier will inspect and receive
                                         Material based on agreed inspection standard. Supplier will retain Material inventory
                                         to support planned production schedule as provided by Buyer. Materials inventoried for
                                         more than [****] months without any usage of such Material type will be purchased by
                                         Buyer. Notwithstanding the foregoing, Supplier shall maintain a min/max safety
                                         stock of [****] to [****] finished Products at all times. Buyer will purchase finished
                                         Products produced to support Buyer’s Production Schedule, if in Supplier’s
                                         inventory for more than [****] days, unless otherwise agreed by the parties. The
                                         parties will review inventory for disposition and retention quarterly. Supplier
                                         may store Buyer-owned inventory, subject to a separate storage agreement substantially
                                         in the form attached hereto as Exhibit C. Supplier will provide monthly reporting to
                                         Buyer if Buyer BOM Sourced Content is used, listing units shipped and resulting remaining
                                         inventory balance.



 


	5.	Packing
                                         and Shipping. Supplier shall package, mark and otherwise prepare all Products in
                                         accordance with Buyer’s Specification and instructions. Supplier shall ship the
                                         Products by Supplier’s shipping agents to the destination provided by Buyer unless
                                         otherwise agreed by the parties in writing. Shipment are Incoterm FCA unless otherwise
                                         agreed by the parties in writing. Upon Buyer’s reasonable request, Supplier shall
                                         ship the Products to Buyer at Supplier’s warehouse, or another designated location,
                                         and Supplier will store the Products on Buyer’s behalf pursuant to a storage agreement
                                         substantially in the form attached hereto as Exhibit C. If Supplier shipped in excess
                                         or in error of Buyer’s order, return freight will be paid solely by Supplier, if
                                         return is required. All physical Products shall be packaged in a manner to protect from
                                         damage during transit and approved by Buyer. All shipping documents as provided by Supplier,
                                         invoices and related documents shall be marked with Buyer’s PO number and/or comply with
                                         the shipping instructions found in the Purchase Order or other Buyer provided shipping
                                         related documentation. Supplier shall appropriately label containers of all Products
                                         which are known to constitute a health, poison, fire, environmental, safety or explosion
                                         hazard. Buyer’s records will be accepted as final and conclusive with respect to all
                                         shipments which are not accompanied by invoices or shipping documents indicating quantities
                                         shipped or if adequate proof of delivery is not provided. Shipments must be made in the
                                         quantities specified on the Purchase Order or other Buyer provided written shipping related
                                         documentation and any over shipments may be rejected by Buyer in its sole discretion.



 


	6.	Obligations,
                                         Assignments, Change of Control.



 


		a.	Change
                                         Notification. Each party shall provide the other party with written notice of any
                                         name change, corporate reorganization, consolidation, merger, or acquisition or sale
                                         of the party’s company or a substantial part thereof no less than 60 days prior
                                         to such event. Neither party may assign, delegate or subcontract any of its rights or
                                         obligations under this Agreement without the prior written consent of the other. Notwithstanding
                                         the foregoing, Buyer may assign its rights and obligations under this Agreement upon
                                         a Change of Control, provided that the assignee assumes all of Buyer’s rights and
                                         obligations under this Agreement upon such assignment, and provided that Supplier shall
                                         have the right to revisit and change payment terms upon such an assignment in the event
                                         that Supplier deems, in its sole discretion, Buyer’s successor by assignment to
                                         have a lesser creditworthiness than Buyer. As used herein, a “Change of Control”
                                         means (i) any consolidation or merger of a party or any of its direct or indirect parent
                                         companies with or into any other corporation or other entity or person, or any other
                                         corporate reorganization, in which the stockholders of such party or such parent company
                                         immediately prior to such consolidation, merger or reorganization, own less than 50%
                                         of the voting power of the surviving entity immediately after such consolidation, merger
                                         or reorganization; or (B) any transaction or series of related transactions to which
                                         a party or any of its direct or indirect parent companies is a party in which in excess
                                         of fifty percent (50%) of such party’s or such parent’s voting power is transferred;
                                         and (ii) any sale, lease or other disposition of all or substantially all of the assets
                                         of a party relating to this Agreement, or a sale or exclusive license of all or substantially
                                         all of a party’s intellectual property licensed under this Agreement.



 






    3 


     


    

 


		b.	Continuous
                                         Improvement on Total Cost. Supplier commits to work with Buyer to pursue continuous
                                         improvement in product efficiencies, cost and quality. Savings shall be [****] between
                                         Buyer and Supplier if initiated by Supplier, savings initiated by Buyer will be passed
                                         on [****]%. Buyer must approve any change to the product, process, component or supply
                                         prior to implementation. Buyer is responsible for Buyer defined qualification cost required
                                         to implement change. Buyer will reimburse Supplier for any procured Material deemed obsolete
                                         due to a change prior to the implementation of the change, provided material was authorized
                                         to buy. Supplier will make best effort to return and/or cancel order obligations.



 


		c.	Performance
                                         Business Review. The parties shall conduct meetings, at an established frequency,
                                         to discuss and review the following: (i) delivery, service and quality performance; (ii)
                                         continuous improvement goals and objectives; (iii) market conditions, planning and Forecast;
                                         (iv) future business outlook and (v) financial and business health.



 


		d.	Manufacturing
                                         Site; UL Certification. Supplier’s facility will meet state and federal laws,
                                         regulation and agency requirements for labor and safety and operate in compliance with
                                         applicable environmental, occupational health and safety laws and regulations in all
                                         material respects, including obtaining and maintaining UL508A certification (Underwriters
                                         Laboratories) (“UL Certification”) of Supplier’s facility. Supplier
                                         agrees to use commercially reasonable efforts to keep current with the industry advancements
                                         and technology developments in order to maintain competitive advantage. Upon signature
                                         of this Agreement, Supplier will begin the UL Certification process. By its signature
                                         below, Buyer agrees to pay Supplier’s costs for training for such UL508A certification
                                         plus the initial annual fee incurred in obtaining the initial UL Certification. Supplier
                                         shall be responsible for payment of the annual UL Certification fee for periods after
                                         the initial UL Certification period.



 


		e.	Importer
                                         of Record; Customs Compliance. In the event any Material to be used, supplied, or
                                         consumed by Supplier for the Products is imported into the United States (“Imported
                                         Goods”), Supplier shall be the “Importer of Record” of such Imported
                                         Goods. As the Importer of Record, Supplier shall be responsible for all aspects of the
                                         Imported Goods including, without limitation (a) customs and other regulatory clearance
                                         of Imported Goods, (b) payment of all standard or general tariffs, duties, customs, fees,
                                         expenses and charges payable in connection with the importation and delivery of the Imported
                                         Goods, and (c) keeping all records, documents, correspondence and tracking information
                                         required by applicable laws, rules and regulations arising out of or in connection with
                                         the importation or delivery of the Imported Goods.



 


	7.	Term;
                                         Termination.



 


		a.	Term.
                                         This Agreement shall take effect on the Effective Date and shall expire on the fifth
                                         anniversary of the Effective Date.



 


		b.	Termination
                                         for Cause. This Agreement may be terminated by a party upon written notice to the
                                         other party for “cause” upon the occurrence of one or more of the following
                                         events: (i) any material breach in the observance or performance of any term or provision
                                         of this Agreement which has not been cured or had a cure plan presented (cure plan to
                                         be approved by the non-defaulting party in its sole discretion) within 90 calendar days
                                         of written notice thereof; or (ii) if the other party shall be insolvent or take action
                                         or be the subject of any action seeking bankruptcy, insolvency, administration, receivership,
                                         arrangement among creditors, or other similar action or shall suffer any such similar
                                         action without obtaining dismissal of such action within 60 calendar days after the taking
                                         thereof. Upon the occurrence and written notice thereof, without acceptable remedy within
                                         the cure period (if any), this Agreement shall terminate.



 


		c.	Termination
                                         without Cause. Notwithstanding anything to the contrary in this Agreement, either
                                         party may terminate this Agreement by written notice to the other, with or without cause,
                                         within one hundred and twenty (120) days after Supplier’s completion of the [****]
                                         Product for Buyer, such termination to be effective upon thirty (30) days of the other
                                         party’s receipt of such notice. For example, if Supplier completes the [****] Product
                                         on December 31, 2021, either party may terminate this Agreement by providing the other
                                         written notice of the desire to terminate on or before April 30, 2022, and such termination
                                         shall be effective upon thirty (30) days of the other party’s receipt of that notice
                                         of intent to terminate.



 






    4 


     


    

 


		d.	Obligation
                                         with Termination. Upon termination of this Agreement for any reason, Buyer’s
                                         liability to Supplier shall be for payment for (i) Materials and inventory which conform
                                         to the Specifications (components, work in process and finished goods). If Buyer’s
                                         owned equipment (tools, dies, fixtures, test equipment) requires shipment upon termination,
                                         Buyer will also be responsible for the reasonable expense of disassembly and preparation
                                         for shipment as required by Buyer. Upon termination, Buyer will have an opportunity to
                                         make one final purchase of Product in reasonable amounts mutually agreed by the parties
                                         prior to the effective date of termination. Final shipment of tools, equipment or Products
                                         will require payment in full prior to shipment.



 


	8.	Quality
                                         Assurance.



 


		a.	Acceptance
                                         Criteria. For purposes of this Agreement, “Acceptance Criteria” means
                                         (i) the mutually agreed upon written quality standard established for the manufacturing
                                         of the Products. Supplier will not make any modification to the Products without prior
                                         written consent from Buyer. Supplier shall not change the Acceptance Criteria except
                                         with Buyer’s prior written approval. Supplier shall not ship any Product that has
                                         had such changes made until change documentation is received and approved and (if required)
                                         a new Purchase Order has been issued.



 


		b.	Change
                                         Management. Supplier shall use their document control system for change management
                                         and record retention. Buyer will provide Supplier with documentation to inform and detail
                                         changes required to the Products. All changes will be evaluated for impact to components,
                                         inventory, production process and quality assurance. An ECO change protocol will be establish
                                         as mutually agreed.



 


		c.	Inspection
                                         and Test Equipment Control. Supplier shall use their calibration system for control
                                         of inspection and test equipment, including Buyer provided equipment. Calibration standards
                                         shall be traceable to National Institute for Standards and Technology or other recognized
                                         bodies recognized by national or international standards. Where this is not possible,
                                         Supplier shall use an independent, reproducible standard.



 


		d.	Raw
                                         Materials. Supplier shall confirm raw materials and components (“Materials”)
                                         used to manufacture Products meet all applicable Specifications and are procured from
                                         mutually agreed upon specified sources. Supplier shall not amend, change or supplement
                                         any of the following without Buyer’s prior written consent: (i) the Specifications;
                                         (ii) the source of Materials; or (iii) the manufacturing test of the Products. Any change
                                         in any of the foregoing shall, in each case, comply with all applicable laws, regulations
                                         and agency requirements. If mutually agreed, to enable Supplier to competitively bid
                                         and achieve cost savings, Supplier and Buyer may define Material by category for procurement
                                         as follows: (A) Buyer directs source, (B) custom components may be resourced, requires
                                         Buyers approval, and (C) open source.



 


		e.	Inspection;
                                         Non-Conforming Products. All Products shall be received subject to Buyer’s right
                                         of inspection and rejection. Buyer shall have [****] days after delivery of Products
                                         to conduct its inspection of such Products to confirm whether the Products correspond
                                         to the quantity and type of Products ordered and whether there is any externally recognizable
                                         transportation damage, visible physical defects, or other deficiencies. Buyer shall give
                                         Supplier prompt notice of any such damage or defects. Defective Product will be held
                                         for receipt of instruction and will be returned, as Supplier so directs, at Supplier’s
                                         expense, or repaired on site, in each case, in accordance with the procedures set forth
                                         in Section 10.c. below. Payment for Products on a Purchase Order prior to inspection
                                         shall not constitute acceptance thereof or a waiver of a breach of warranty and is without
                                         prejudice to any claim(s) of Buyer. Supplier shall inspect all Products prior to shipment
                                         to ensure conformance with mutually agreed Acceptance Criteria. Upon notice to Supplier
                                         of non-conforming Products in compliance with this Section 8.e., Supplier shall have
                                         [****] days to cure non-conforming Products if conforming Products can be delivered in
                                         a mutually agreed upon time frame. If Supplier is unable to provide the Products as requested,
                                         Supplier will use commercial best efforts to provide replacement Products in a timely
                                         manner.



 






    5 


     


    

 


		f.	Quality
                                         System Audit. Buyer reserves the right to audit Supplier’s facilities and records
                                         subject to the following conditions: (a) Buyer
                                         shall be entitled to conduct a full quality system audit each year unless otherwise agreed
                                         or Buyer can demonstrate that Supplier has materially breached this Agreement; (b) Buyer
                                         audits shall be conducted with reasonable advance notice and at reasonably convenient
                                         times during normal business hours; (c) all information gathered and data reviewed during
                                         any such audit shall be “Confidential Information” subject to the
                                         provisions of this Agreement; and (d) the scope
                                         of each such audit may include the systems, processes, and records related to Supplier’s
                                         performance of its obligations under this Agreement. Said audit shall not include
                                         review of Supplier’s financial records. Supplier shall cooperate with Buyer in
                                         the performance of such audit. Observations and conclusions of an audit will be issued
                                         to and promptly discussed with Supplier and corrective action shall be implemented by
                                         Supplier, at Supplier’s expense, in a timely manner, as mutually agreed; however
                                         Buyer may, in its sole discretion, accept Products from Supplier prior to Supplier’s
                                         completion of the corrective action. Buyer may visit in normal course of business as
                                         mutually agreed.



 


		g.	Records
                                         Retention; Monthly Reports. Supplier agrees to maintain complete and accurate records
                                         regarding matters hereunder including Supplier’s compliance with its obligations
                                         under this Agreement for seven (7) years. Supplier agrees to retain documentation/records,
                                         of CTP (critical to performance) materials for traceability and for duration of this
                                         Agreement. Buyer has defined CTP components and features on Buyer’s process Specifications
                                         or Buyer’s engineering prints. In the event of any dispute arising with respect
                                         to this Agreement, the retention period lasts until the resolution of the dispute becomes
                                         final and non-appealable and all obligations of the parties are fully satisfied. Supplier
                                         shall provide a [****], or at some other frequency as mutually agreed, report in connection
                                         with Supplier’s performance of its obligations under this Agreement, excluding
                                         any financial records of Supplier, and with such other content as Buyer and Supplier
                                         mutually agree.



 


	9.	Deliveries.
                                         The terms of delivery shall be as stated on each respective Purchase Order and confirmed
                                         by Supplier. Time of delivery is of the essence for each order and Supplier will use
                                         commercial best efforts to meet orders. In the event that any of the Products delivered
                                         hereunder (i) are delivered on a date [****] business days later than the date specified
                                         on the Purchase Order and (ii) such late delivery was caused by a delay in whole or part
                                         by Supplier or on Supplier’s behalf, then Buyer may, in addition to any other rights
                                         and remedies available to Buyer, (A) rescind an order in whole or in part for those Products
                                         impacted by such delay, (B) refuse to accept delivery of the Products impacted by such
                                         delay and/or (C) return all or any part of the Products impacted by such delay. If due
                                         to delivery delays, Buyer finds it necessary to call upon Supplier for premium transportation
                                         the responsibility for the price differential between the specified transportation and
                                         the premium transportation shall be paid by Supplier. Products which are delivered more
                                         than [****] days in advance of date specified herein are delivered at the risk of Supplier
                                         and may, at Buyer’s option, be returned at Supplier’s expense for proper delivery and/or
                                         have payment therefore withheld by Buyer until the date that the Products are actually
                                         scheduled for delivery.



 


	10.	Supplier’s
                                         Warranties; Remedies.



 


		a.	Warranties.
                                         Supplier hereby represents, warrants and guarantees as follows:



 


		i.	That
                                         all Products, for a period of [****] months from the date of shipment of the Products
                                         (the “Warranty Period”), shall: (i) be free from defects in workmanship and
                                         material; (ii) conform to the Specifications; (iii) be free of any claim of any third
                                         party; and (iv) be manufactured in accordance with generally accepted good manufacturing
                                         (cGMP) and quality practices. Procured component warranty will apply if different than
                                         [****] months, and if assignable to Buyer, less manufacturing time. This warranty shall
                                         not be deemed waived either by reason of Buyer’s acceptance of Products or by payment
                                         for them and shall survive delivery for the Warranty Period. Supplier will not be responsible
                                         for, and this warranty will not apply to, any defects in the Products (i) arising out
                                         of Buyer design or Specifications; (ii) arising out of the use of Materials or components
                                         that Buyer furnished to Supplier or directed Supplier to use; (ii) which results from
                                         normal wear and tear, environmental pollution, improper maintenance or repair, or neglect;
                                         (iv) which result from failure to properly store Products; or (v) any other cause beyond
                                         Supplier’s reasonable control.



 





		ii.	That
                                         Supplier has good marketable title to the Products, free from liens.


 






    6 


     


    

 


		b.	DISCLAIMER.
                                         THE WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES, EXPRESS
                                         OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
                                         FOR A PARTICULAR PURPOSE. NO COURSE OF DEALING AND NO PRODUCT DESCRIPTION SHALL BE DEEMED
                                         A WARRANTY OF ANY GOODS DELIVERABLE BY SUPPLIER.



 


		c.	Remedies.
                                         As mutually agreed, Supplier’s responsibility for breach of the warranties in Section
                                         10.a.i. is limited to repair, replacement or provide price paid credit. Product cannot
                                         be returned without prior authorization and must reference authorization number provided
                                         by Supplier CCR#, which will not be unreasonably withheld, conditioned or delayed by
                                         Supplier. Products that are deemed by the Parties to be impractical to return due to
                                         size or location may be serviced by Supplier, or, in Supplier’s sole discretion,
                                         third parties contracted to provide service by Supplier, on site, in each case, at Supplier’s
                                         expense. In the event that Buyer elects to have Products services or repaired by its
                                         own employees or contractors, any costs related to the same must be approved and agreed
                                         to by Supplier prior to such services or repairs being performed. Supplier will supply
                                         replacements for defective components at no charge. Such repaired or replaced Product
                                         shall be returned to a site reasonably designated by Buyer at Supplier’s expense.



 


	11.	Intentionally
                                         Omitted. 



 


	12.	Confidential
                                         Information. See Exhibit D for MNDA dated April 22, 2020 and executed between the
                                         parties, which MNDA is binding upon the parties and incorporated by reference into this
                                         Agreement. By their signatures below, the parties hereby agree that the term of the MNDA
                                         is hereby amended to extend it to run concurrently with the term of this Agreement, and
                                         that the term INFORMATION (as defined in the MNDA) shall include the terms and conditions
                                         of this Agreement. For clarity, the obligation to maintain INFORMATION (as defined in
                                         the MNDA) in confidence shall survive the termination or expiration of this Agreement
                                         for a period of three (3) years, as provided in Section 1)b) of the MNDA. Notwithstanding
                                         anything to the contrary in the MNDA, either Party may use the other Party’s name
                                         with the other Party’s prior consent to communicate the existence of a strategic
                                         partnership relationship between the Parties.



 


	13.	Guaranty
                                         of Supply. In the event that Supplier is unable or otherwise fails or will fail,
                                         for any reason (unless due to a Force Majeure Event (as hereinafter defined) to supply
                                         a Product in accordance with the quantities and/or delivery dates specified by Buyer
                                         in a firm Purchase Order, Supplier shall promptly inform Buyer verbally with a confirmation
                                         in writing. If Supplier is able to supply some but not all of Buyer’s orders for
                                         Products, then Supplier shall supply such partial quantities of Product. Supplier shall
                                         have a period of 90 days to cure such failure or present a plan to supply by itself or
                                         through the use of a third party manufacturer approved by Buyer pursuant to the terms
                                         of this Agreement. If Supplier is still unable to fully supply Buyer’s Product
                                         demands, then Buyer may terminate this Agreement as defined in Section 7 of this Agreement
                                         in addition to any remedy provided elsewhere herein or by law.



 


	14.	Limitation
                                         of Liability.



 


		a.	SUPPLIER’S
                                         LIABILITY FOR ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED
                                         WITH OR RESULTING FROM THIS AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, SHALL
                                         IN NO CASE, EXCEPT IN THE CASE OF SUPPLIER’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT
                                         OR FOR SUPPLIER’S VIOLATIONS OF SUPPLIER’S OBLIGATIONS UNDER SECTION 12 (CONFIDENTIALITY)
                                         AND SECTION 15(INDEMNIFICATION), EXCEED [****]. 



 






    7 


     


    

 


		b.	BUYER’S
                                         LIABILITY FOR ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED
                                         WITH, OR RESULTING FROM THIS AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, SHALL
                                         IN NO CASE, EXCEPT IN THE CASE OF BUYER’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT,
                                         OR FOR BUYER’S VIOLATION OF BUYER’S OBLIGATIONS UNDER SECTION 12 (CONFIDENTIALITY)
                                         AND SECTION 15 (INDEMNIFICATION), EXCEED [****].



 


		c.	IN
                                         NO EVENT SHALL EITHER PARTY BE OBLIGATED TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL,
                                         CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF
                                         REVENUE, PROFIT OR GOODWILL, FOR ANTICIPATED PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL
                                         OR CONSEQUENTIAL DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT,
                                         REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.



 


		d.	Any
                                         action resulting from any breach by either party as to the Products delivered and/or
                                         due hereunder must be commenced within one (1) year after the cause of action has accrued.



 


	15.	Indemnification.
                                         



 


		a.	Supplier
                                         shall defend, indemnify, and hold harmless Buyer, its officers, employees, agents, representatives,
                                         or affiliates from any claim, suit, loss, cost, damage, expense (including, without limitation,
                                         the costs and expenses incurred in the defense suits or actions alleging such liability)
                                         from (i) any third-party claims, resulting from, or in connection with the infringement,
                                         misappropriation or dilution of the intellectual property rights of any third party,
                                         including without limitation any copyright, patent, trademark, trade secret, or other
                                         intellectual property rights by Supplier’s Background IP (as hereinafter defined)
                                         (said indemnification shall not apply in the event that such infringement arises in whole
                                         or in part from Buyer’s infringement of said third party’s intellectual property),
                                         (ii) any injury to persons, real property or tangible personal property loss at Supplier’s
                                         facility during the manufacturing process of any of the Products. In such case, Buyer
                                         agrees to cooperate reasonably with Supplier, at Supplier’s expense, in the defense
                                         or settlement thereof.



 


		b.	Buyer
                                         shall defend, indemnify, and hold harmless Supplier, its officers, employees, agents,
                                         representatives, or affiliates from (i) any third-party claims, resulting from, or in
                                         connection with the infringement, misappropriation or dilution of the intellectual property
                                         rights of any third party, including without limitation any copyright, patent, trademark,
                                         trade secret or other intellectual property rights by Buyer’s IP (as hereinafter
                                         defined) and the Improvements (as hereinafter defined) or otherwise, related to the
                                         design or Specifications of the Products; and (ii) any third party claim, injury to persons
                                         or animal, real property or tangible personal property related to the design, Specifications,
                                         use, functionality and safety of such Products. In such case, Supplier agrees to cooperate
                                         reasonably with Buyer, at Buyer’s expense, in the defense or settlement thereof.



 


		c.	In
                                         such case, each party agrees to give the other prompt notice of each such claim, and
                                         each agrees to cooperate reasonably with other in the defense or settlement thereof.



 






    8 


     


    

 


	16.	Insurance.



 


During
the Term of this Agreement, each party shall, at its expense, at a minimum, maintain the following insurance coverage on a primary
basis with the limits of liability indicated and provide the other party with an insurance certificate showing such coverage.


 





	Type
    of Coverage	 	Amount
    of Coverage
	Workers’
    Compensation	 	Statutory
	Employers’
    Liability 	 	$[****]
	Commercial
    / General Liability	 	 
	Bodily
    Injury / Property	 	$[****]
    each occurrence
	Damages
    / Personal Injury	 	$[****]
    aggregate
	Automobile
    Liability (if services being provided)	 	 
	Bodily
    Injury	 	$[****]
    each person, each accident
	Property
    Damage	 	$[****]
    each person, each accident
	Umbrella
    Liability	 	$[****]
    per occurrence/aggregate


 


	17.	Miscellaneous.



 


		a.	Arbitration
                                         and Governing Law. Any dispute, claim, or controversy between the parties arising
                                         out of or in connection with this Agreement shall be settled by binding arbitration under
                                         the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”).
                                         Upon a request to arbitrate, the parties shall obtain a list of 6 arbitrators from the
                                         AAA that have practiced in the commercial or business field for at least five years.
                                         Within ten days of receipt of the AAA list, the parties shall agree on an arbitrator.
                                         In the event the parties cannot agree on a single arbitrator within the ten day period,
                                         each party shall select one arbitrator, and the arbitrators selected by the parties shall
                                         appoint a third arbitrator. The arbitration proceeding shall be governed by the laws
                                         of The Commonwealth of Massachusetts. The cost of such arbitration shall be borne equally
                                         between the parties; however, each party shall be responsible for its own attorney fees.
                                         Any judgment upon the award rendered by the arbitration may be entered in any court having
                                         jurisdiction thereof. This arbitration clause shall survive the termination of this Agreement.
                                         The foregoing arbitration clause shall not preclude a party’s right to seek pre-trial
                                         preliminary injunctive relief before competent courts of appropriate jurisdiction with
                                         respect to any alleged breach of confidentiality obligations hereunder or the intellectual
                                         property rights of the other party. This Agreement is governed by and shall be interpreted
                                         and construed in accordance with the laws of The Commonwealth of Massachusetts. The parties
                                         agree that this Agreement shall not be subject to the United Nations Convention on the
                                         International Sale of Goods.



 


		b.	Compliance
                                         with Law. Supplier agrees that the Products, including all packaging thereof, shipped
                                         pursuant to an order shall have been produced in material compliance with and meet the
                                         minimum standards of all applicable federal, state and local laws, regulations, rules,
                                         guides, ordinances and/or standards, including customs and trade compliance as detailed
                                         in Section 6(e). Each of the parties agrees that it will perform its respective obligations
                                         under this Agreement in a manner materially consistent with the requirements of all applicable
                                         U.S. laws and regulations.



 


		c.	Relationship
                                         of the Parties. Nothing in this Agreement shall create or be deemed to create a partnership
                                         or the relationship of principal and agent or employer and employee between the Parties.
                                         Neither Party has the authority or power to bind, to contract in the name of or to create
                                         a liability for the other in any way or for any purpose.



 


		d.	Successors
                                         and Assigns. This Agreement shall be binding upon and inure to the benefit of the
                                         parties and their permitted successors and assigns.



 


		e.	Entire
                                         Agreement; Severability. This Agreement, together with any Purchase Order and the
                                         Exhibits attached hereto and made a part hereof constitute the entire understanding of
                                         the parties with respect to the subject matter hereof, superseding any and all previous
                                         understandings, contracts and agreements, written and oral and this Agreement may only
                                         be waived, modified, or amended in a writing signed by the parties. The terms of this
                                         Agreement shall prevail over the terms of any other documents or agreement between the
                                         parties. If any portion of this Agreement is held to be unenforceable, the remaining
                                         portions remain in full force and effect.



 






    9 


     


    

 


		f.	No
                                         Waiver. Any waiver by either party of a breach of any provision of this Agreement
                                         will not be construed to be a waiver of any other breach or any other provision of this
                                         Agreement. Any waiver must be in writing.



 


		g.	Notice.
                                         All notices required to be given under this Agreement must be given in writing to the
                                         respective parties at the addresses shown on the first page of this Agreement or such
                                         other address as either party may designate by written notice pursuant hereto. Notices
                                         shall be deemed effectively given: (a) upon personal delivery to the party to be notified;
                                         (b) when received when sent by e-mail by the party to be notified; provided, however,
                                         that notices given by e-mail shall not be effective unless either (i) a duplicate copy
                                         of such e-mail notice is promptly given by one of the other methods described in this
                                         Section 17.g., or (ii) the receiving party delivers a written confirmation of receipt
                                         for such notice either by e-mail or any other method described in this Section 17.g.;
                                         (c) one business day after deposit with a reputable overnight courier, prepaid for overnight
                                         delivery; or (d) three business days after deposit with the U.S. Post Office, postage
                                         prepaid, certified with return receipt requested. Notwithstanding the foregoing, any
                                         notices under Section 7.b. shall be given by a method other than e-mail.



 


		h.	Waiver.
                                         Any waiver by a party of any default or other breach of this Agreement by the other party
                                         shall not constitute a waiver of any subsequent default or other breach.



 


		i.	Captions;
                                         Headings. The captions in an order are for convenience only and shall not limit or
                                         otherwise affect any of the terms or conditions of an order.



 


		j.	Force
                                         Majeure. If the performance by either party of any non-monetary obligation under
                                         this Agreement is delayed or prevented in whole or in part by any cause not reasonably
                                         within its control (including, without limitation, acts of God, natural disasters or
                                         catastrophic events such as epidemics, pandemics, nuclear accidents, fire, flood, typhoons
                                         or earthquakes, war, civil disturbances, accidents, damage to its facilities, labor disputes,
                                         embargos, acts of any governmental body not attributable to such party’s failure
                                         to comply with this Agreement (each a “Force Majeure Event”)), it shall be
                                         excused, discharged, and released of performance to the extent and only for the duration
                                         that such performance is so limited or prevented. Each party shall use its reasonable
                                         efforts to minimize the duration and consequences of any failure of or delay in performance
                                         resulting from such a Force Majeure Event. If the Force Majeure Event continues for a
                                         cumulative period of ninety days or more, either party may terminate this Agreement and/or
                                         any Purchase Order by giving the other party thirty days prior written notice.



 


		k.	No
                                         Third Party Beneficiaries. This Agreement benefits solely the parties and their respective
                                         permitted successors and assigns and nothing in this Agreement, express, or implied,
                                         confers on any other person or entity any legal or equitable right, benefit or remedy
                                         of any nature whatsoever under or by reason of this Agreement.



 


		l.	Survival.
                                         The following provisions of this Agreement shall survive the expiration or termination
                                         of this Agreement in accordance with the respective terms thereof: Sections 7.c., Section
                                         10, Section 12, Section 14, Section 15, and Sections 17 – 19.



 






    10 


     


    

 


	18.	Intellectual
                                         Property. 



 


		a.	In
                                         order for Supplier to be able to manufacture Products or otherwise fulfill its obligations
                                         hereunder Buyer may provide Supplier with information containing intellectual property
                                         rights held directly by the Buyer or through licenses to Buyer by third parties (“Buyer’s
                                         IP”). Supplier undertakes to treat such Buyer’s IP confidential in accordance
                                         with the confidentiality requirements in the MNDA attached hereto as Exhibit B executed
                                         by and between the parties. Buyer retains all rights, ownership, title and interest in
                                         Buyer’s IP including any Buyer Specifications, as well as in all modifications,
                                         enhancements, improvements and derivatives related thereto (collectively “Improvements”)
                                         to the Products, whether created by Buyer or Supplier. Buyer hereby grants to Supplier
                                         a limited, non-exclusive, non-assignable, non-sublicensable right and license to use
                                         the Buyer’s IP, including the Specifications and Improvements and such other information
                                         solely for the purposes of manufacturing Products for the account of Buyer and otherwise
                                         carrying out its obligations hereunder. For clarity, Supplier shall retain full ownership
                                         of and title to any inventions (whether or not patentable), know-how, technology and
                                         other intellectual property rights belonging to it prior to the Effective Date or which
                                         are independently developed by Supplier outside the scope of this Agreement, without
                                         reference to or the use of Buyer’s inventions or Buyer’s IP (whether or not
                                         patentable), know-how, or technology, including any improvements thereto regardless of
                                         creator (“Supplier’s Background IP”).



 


		b.	Supplier
                                         shall not sell or disclose any Products that have been customized or produced by Supplier
                                         in accordance with Buyer’s Specifications to any third party without Buyer’s
                                         consent. Notwithstanding the foregoing, Buyer acknowledges and agrees that Supplier is
                                         free to enter into and have similar agreements with others, and to conduct its business
                                         in whatever way it chooses, subject only insofar as concerns the Buyer and Buyer’s
                                         IP, to the other provisions of this Agreement.



 


	19.	Buyer’s
                                         Property. 



 


		a.	All
                                         tooling, dies, parts, schedules, and Specifications and all reproductions thereof, any
                                         other property furnished to Supplier by Buyer or paid for by Buyer, shall be (i) the
                                         property of Buyer, (ii) clearly identified as Buyer’s property by Supplier, and
                                         (iii) used only in filling orders from Buyer or its designee (“Buyer’s Property”).
                                         All tooling provided or acquired by Buyer in the course of this Agreement may not be
                                         used for any other customer unless first purchased by Supplier from Buyer. Supplier shall
                                         maintain tooling in good operating condition and free from damage for the duration of
                                         this Agreement except for normal wear within expected life.



 


		b.	Supplier
                                         shall absorb the [****] costs (“[***] Cost”) in connection with this Agreement;
                                         provided, however, that should Supplier be required to purchase unique or specific
                                         tooling, dies, parts, machinery, or any other property (“Unique Equipment”)
                                         to fulfill Supplier’s obligations hereunder, Supplier shall request Buyer’s
                                         written approval, which approval shall not be unreasonably withheld. If Buyer does not
                                         approve such purchase, Buyer and Supplier shall negotiate and cooperate in good faith
                                         regarding Supplier’s manufacture of the Products without such Unique Equipment.
                                         Buyer, upon approving Supplier’s requested purchase, shall reimburse Supplier [****]
                                         of the Unique Equipment purchased, and such purchased Unique Equipment shall then be
                                         considered Buyer’s Property and subject to Section 19(a) above.






 


 


[Signature
Page to follow]


 






    11 


     


    

 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized officers on the Effective Date.


 


	Agrify
Corporation
	 	Mack
    Molding Company
	 	 	 
	 	 	 
	Signature
	 	Signature




 


 





	Print
        Name: 	Niv
        Krikov	 	Print
        Name: 	 
	 	 	 	 	 
	Title: 	Chief
        Financial Officer	 	Title: 	 


  






    12 


     


    

 


Exhibit
A


 


Pricing


 


Product
cost shall equal, for each unit, the sum of the Landed Cost, Mark-Up, Mack Made Content, Line Fallout, and Labor (“Product
Cost”) as defined below and demonstrated in the sample table:


 


DEFINITIONS:



 


		i.	“Buyer
                                         BOM Sourced Content” shall mean parts and/or assemblies supplied to Supplier by
                                         Buyer.



 


		ii.	“Supplier
                                         BOM Sourced Content” shall mean parts and/or assemblies purchased by Supplier from
                                         third party sources (not made by Buyer).



 


		iii.	“Inbound
                                         Freight” shall mean the cost of freight shipping and any standard or general tariff
                                         and applicable fees for the BOM Sourced Content, but does not include the Section 301
                                         (Trade Act of 1974) Trade Remedies to be Assessed on Certain Products from China import
                                         penalty tariff. The Inbound Freight value is calculated by multiplying the Supplier BOM
                                         Sourced Content value by [****]%.



 


		iv.	“Labor”
                                         shall mean the assembly labor and test labor required for Supplier to produce the Products.



 


		v.	“Landed
                                         Cost” shall mean the sum of the Supplier BOM Sourced Content value and the Inbound
                                         Freight value.



 


		vi.	“Line
                                         Fallout” shall mean the percentage of anticipated defects by Supplier for all parts
                                         and/or assemblies. Line Fallout is calculated by subtracting Total BOM Material Content
                                         divided by ([****]) by the Total BOM Material Content.



 


		vii.	“Total
                                         BOM Material Content” shall mean is the sum of Landed Cost, Mark-up, and Mack Made
                                         Content.



 


		viii.	“Mack
                                         Made Content” shall mean the cost of parts manufactured or supplied by Supplier
                                         plus the cost of such parts’ powder coating or external secondary operations, exclusive
                                         of the Supplier BOM Sourced Content, and the cost of powder coating or external secondary
                                         operations of certain Buyer BOM Sourced Content. The value for such Mack Made Content
                                         should not be commercially unreasonable and shall be comparable with the [****] established
                                         after completion of the first Purchase Order hereunder, such [****] to be mutually agreed
                                         to in writing by Supplier and Buyer.



 


		ix.	“Mark-Up”
                                         shall mean the Landed Cost, multiplied by [****]% for first year of the Agreement and
                                         [****]% for the remaining years of the Agreement.



 


	SAMPLE PRICING MODEL
	Category	 	%	 	Value
	Supplier BOM Sourced Content*	 	 	 	$[****]
	Inbound Freight	 	 [****]%	 	$[****]
	Landed Cost	 	 	 	$[****]
	 	 	 	 	 
	Mark-Up	 	[****]%	 	$[****]
	Mack Made Content*	 	 	 	$[****]
	Line Fallout	 	[****]%	 	$[****]
	 	 	 	 	 
	Labor	 	Flat	 	$[****]
	 	 	 	 	 
	Product Cost	 	 	 	$[****]



 


 






		*	The
                                         values shown for these categories are just sample values to demonstrate the calculation
                                         of the Product Cost.



 






    A-1


     


    

 


Exhibit
B


 


Payment
Terms, Credit Limit and Billing


 


Initial
payment terms are NET [****] from date of shipment from Supplier to Buyers’ designated location and Buyer’s receipt
of an invoice for such Products shipped. At Effective Date, credit limit established of $[****] which includes Supplier open orders
for procured material that Supplier is obligated to pay, inventory that includes components, work in process, and finished goods
as well as receivables with a receivable limit of $[****].


 


In
addition to invoicing for finished Product, each [****] Supplier shall invoice Buyer for The Section 301 (Trade Act of 1974) Trade
Remedies to be Assessed on Certain Products from China import penalty tariff at cost plus a fixed fee of [****] percent ([****]%).


 


For
each [****] in which (i) a shipment occurs from Supplier to Buyer and (ii) Buyer BOM Sourced Content is used, Supplier shall provide
a credit memo for such Buyer BOM Sourced Content, less the [****]% overhead markup.








 






    B-1


     


    

 


Exhibit
C


 


Storage
Agreement





 


 






    C-1


     


    

 


Exhibit
D


 


Mutual
Non-disclosure and Confidentiality Agreement


 


 




    D-1