THIS TERMS OF SALE AND SERVICES AGREEMENT (the “Agreement”) is made and entered into as of the date of Site use, visit and/or purchase(s), (the “Effective Date”), between Imperial Seedlings, a Wyoming limited liability company, (“Seller”), each Site visitor or user, (“Buyer”), and each developer of Technology and Seed, as described herein, (“Breeder”). In consideration of the sale of Seedlings, as defined herein, to Buyer by Seller, Buyer agrees to be bound by the terms of this Agreement. Seller, Buyer and Breeder(s) may be referred to hereinafter individually as “Party” and collectively as “Parties”.
READ THIS AGREEMENT CAREFULLY. THE TERMS OF THIS AGREEMENT SHALL GOVERN ALL TRANSACTIONS BETWEEN SELLER AND BUYER OCCURRING AT ANY TIME. BY SIGNING THIS AGREEMENT, BUYER AGREES TO BE BOUND BY ITS TERMS FOR ANY AND ALL SALES.
BUYER AGREES THAT BY USING THE SITE AND THE SERVICES, BUYER IS AT LEAST 21 YEARS OF AGE, IS LEGALLY ABLE TO ENTER INTO A CONTRACT AND AGREES TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS.
WHEREAS, Breeder has developed certain proprietary technologies of hemp plant varieties and hybrids, which may include, but are not limited to, germplasm, transgenic traits, native traits, transformation technologies, methods of use, breeding methods, other traits and technologies and/or any combination of these traits and technologies (collectively the “Technology”) and has used the Technology to produce certain cultivars of hemp materials for the use of growth and cultivation of hemp genetics (“Seed”) in quantities and varietals as demonstrated during Site use.
WHEREAS, Seller operates a seed germination nursery (“Facility”) and has developed certain proprietary technologies, plant sciences, and processes particular to the germination of hemp plant varieties and hybrids (collectively the “Process”). Seller uses the Process to provide (“Services”), defined as (i) germination of hemp seeds to a plant height of between five to seven (5-7) inches (“Seedlings”), (ii) adaptation of Seedlings to full outdoor exposure prior to shipment, and (iii) coordination of packaging and shipment by a designated third-party logistics company.
WHEREAS, Buyer wishes to purchase Seedlings in quantities and varietals as demonstrated during Site use.
NOW, THEREFORE, in consideration of the foregoing premises and the respective agreements, covenants, representations, warranties and conditions herein, the Parties hereby agree as follows:
- Authority of Buyer. When used in this Agreement, the term “Buyer” means the person, firm, corporation, limited liability company or other entity purchasing Seedlings from Seller. The person executing this Agreement represents and warrants to Seller that he/she is authorized to do so and to bind Buyer to the terms contained herein.
- Purchase and Sale. Subject to the terms of this Agreement, Buyer shall purchase from Seller, and Seller shall sell to Buyer, Seedlings as agreed upon pursuant to the terms set forth in Section 2 herein upon receipt of the purchase price listed during Site use (“Purchase Price”).
- Time of Delivery. The Time of Delivery for Seedlings purchased by Buyer shall be within 10 business days from time of Purchase.
- Place of Delivery. Seedlings shall be delivered to Buyer at the address specified during Site use, or at such other place as Buyer may direct Seller in writing.
- Title and Risk of Loss. Title to Seedlings, and risk of loss thereof to such Seedlings shipped under this Agreement passes to Buyer upon the earliest to occur of: (i) delivery of the Seedlings to Buyer, (ii) Buyer’ acceptance of the Seedlings, (ii) Seller’s tender of the Seedlings to the carrier of the Seedlings to the Delivery Location. Buyer remains obligated to pay the remainder of any outstanding sum of the Purchase Price of such Seedlings in accordance with the terms hereof.
- Restrictions on Technology Use and Transfer. Buyer agrees not to perform such activities with the Technology as breeding or inbreeding, production of seed, molecular characterization including in the broadest sense possible: genetic profiling, sequencing, analyzing molecular species, isolating molecular species, subjecting to molecular marker analysis (including, but not limited to, using Polymerase chain reaction, hybridization or any other technique requiring the inquiry of a nucleic or amino acid, whether directly or indirectly), genotyping, DNA fingerprinting, and/or use of double-haploid technology, research, or generation of herbicide registration data. Buyer agrees not to conduct research on the Technology other than to make agronomic comparisons and conduct testing for Buyer’s own use. Buyer agrees to use the Technology and any plant or material derived therefrom in a manner and in compliance with all applicable laws and regulations, including those for import, transport, use, and disposition. Any crops, grain, or material produced from the Technology shall only be exported to, or used, processed or sold in states and/or countries where all necessary regulatory approvals have been granted. It is a violation of national and international law to move material containing biotech traits across boundaries into nations where import is not permitted. Buyer has been informed, acknowledges and agrees that no property rights, seed from Technology productive rights, or seed Technology multiplication rights are given to Buyer by Breeder. Buyer agrees not to perform research on or with the Technology and shall not sell, transfer, exchange, lease, donate or otherwise make available to any third party the Technology including, but not limited to, cuttings, tissue, seeds, or pollen, for research or development, including, but not limited to, seed multiplication, creation of new hybrid lines, breeding or inbreeding, production of seed, molecular characterization including in the broadest sense possible: genetic profiling, sequencing, analyzing molecular species, isolating molecular species, subjecting to molecular marker analysis (including, but not limited to, using Polymerase chain reaction, hybridization or any other technique requiring the inquiry of a nucleic or amino acid, whether directly or indirectly), genotyping, DNA fingerprinting, and/or use of double-haploid technology, research, or generation of herbicide registration data. At all times during this Agreement, Buyer shall take all necessary steps and precautions to protect the Seeds and/or Technology from misuse, theft, damage or abandonment.
- If, during the term of this Agreement, Buyer or its agents breach any covenants related to use of or Breeder’s ownership of the Technology, then Buyer will pay to Breeder liquidated damages in an amount equal to 100% of the Gross Revenues arising from or in any way derived from such breach (“Damages”). The term “Gross Revenues” means all sales or transfers of goods, services, or property rights (including intellectual) arising from or in connection with a breach. Payment of such amounts will be made monthly, and Breeder is entitled to receive the same reports of revenues and to exercise the same audit rights as it deems necessary and appropriate to enforce the payment obligations under this section. It is the purpose of this provision that such amounts constitute a part of the damages which Breeder will or is probable to incur by reason of a Breach, because it is anticipated by the Parties that the actual damages which Breeder will incur are difficult or impossible to calculate due to the expanding and diversifying business of Breeder and because the amount of such loss may be held by a court or arbitrator to be speculative. In addition, based upon the Parties’ knowledge as of the Effective Date, the Parties hereby agree that the amount of Damages is a fair and reasonable estimate of the damages that Breeder is likely to incur as a result of a breach, and that the amount of Damages is not intended to act nor would it act as a penalty under the circumstances contemplated under this Agreement. Therefore, such continued payments will serve as the measure of Breeder’s damages in connection with the loss of sales revenue and business opportunities, and the damage to Breeder’s reputation in the industrial hemp marketplace, on account of such breach.
- Any Party shall have all remedies afforded each by the Uniform Commercial Code or other applicable law. Without limiting the foregoing, in the event of nonpayment for seed, Seller shall be entitled to enforce the lien provided by California Food & Agricultural Code Section 57561 et seq. and any other lien rights afforded by law.
- Attorney’s Fees. In the event legal proceedings are brought by either party to enforce any term, covenant, or condition in this Agreement, the prevailing Party in such proceeding shall be entitled to recover all costs, including reasonable attorneys’ fees.
- The unenforceability, invalidity or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal.
- Authority of Seller’s Agents. No agent, employee or representative of Seller shall bind Seller to any affirmation, representation, or warranty concerning Seedlings except as provided in this Agreement.
- DISCLAIMER AND LIMITATION OF WARRANTIES. A) SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE DESCRIPTION, QUALITY, PURITY, ABSENCE OF PESTS OR DISEASE, RESISTANCE TO PESTS OR DISEASE, TRUENESS TO VARIETY, GERMINATION RATIOS OR PRODUCTIVENESS, OR AS TO ANY MATTER INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, IMPLIED MERCHANTABILITY, FITNESS OR FITNESS FOR A PARTICULAR PURPOSE REGARDING THE GENETICS OF THE SEEDLINGS PURCHASED BY BUYER. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED AS TO THE ABILITY OF THE HEMP SEEDLINGS TO SURVIVE BEING SHIPPED FROM SELLER’S GROWING PREMISES TO BUYER’S PREMISES. B) SELLER WARRANTS TO BUYER THAT THE SEEDLINGS WILL BE PROVIDED USING COMMERCIALLY REASONABLE CARE AND SKILL. SELLER WARRANTS TO BUYER THAT SELLER WILL USE COMMERCIALLY REASONABLE CARE TO MINIMIZE THE PRESENCE OF PESTS AND DISEASE AT SELLER’S FACILITY. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO THE QUALITY, PURITY, RESISTANCE TO PESTS OR DISEASE, TRUENESS TO VARIETY, OR PRODUCTIVENESS, OR AS TO ANY MATTER OF MERCHANTABILITY, IMPLIED MERCHANTABILITY, FITNESS OR FITNESS FOR A PARTICULAR PURPOSE REGARDING THE SEEDLINGS THAT SELLER CULTIVATES FROM THE SEEDS PROVIDED BY BUYER. BUYER ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND REGARDING THE SUITABIILTY OF A PARTICULAR HEMP VARIETY EVEN IF SELLER PROVIDES INPUT TO BUYER DURING BUYER’S IDENTIFICATION AND SELECTION OF HEMP SEED VARIETIES THAT MAY MATCH BUYER’S EXPRESSED NEEDS OR GROWING CONDITIONS AT BUYER’S PREMISES. C) ALL SEEDS ARE PROVIDED TO SELLER “AS IS.” BREEDER MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO ANY INTELLECTUAL PROPERTY RIGHTS OR TECHNOLOGY HEREUNDER. BREEDER EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OF THE TECHNOLOGY UNDER THIS AGREEMENT.
- DISCLAIMER OF LIABILITY. A) BUYER AGREES THAT BUYER’S SOLE REMEDY AND SELLER’S SOLE LIABILITY FOR BREACH OF ANY PROVISION OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, SELLER’S OWN NEGLIGENCE, OR THE NEGLIGENCE OF SELLER’S AGENTS SHALL BE THE REFUND OF THE AGREEMENT PRICE FOR THE SEEDLING SERVICES PAID BY BUYER TO SELLER. BUYER ACKNOWLEDGES AND AGREES SELLER SHALL NOT BE LIABLE FOR PROSPECTIVE PROFITS, LOST PROFITS, OR SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES WHICH BUYER MAY CLAIM AS A RESULT OF THIS AGREEMENT OR BREACH OF THE AGREEMENT. NOR MAY AN ACTION IN LAW OR IN EQUITY RESULT IN A RECOVERY AGAINST SELLER IN AN AMOUNT GREATER THAN THE TOTAL AGREEMENT PRICE, AS INDICATED IN THIS AGREEMENT. BUYER ASSUMES ALL RISKS AND LIABILITIES FOR LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY OF THE BUYER, OR OTHERS, ARISING OUT OF THE USE OR POSSESSION OF THE HEMP SEEDLINGS CULTIVATED UNDER THIS AGREEMENT. B) IN NO EVENT SHALL BREEDER OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS OR EMPLOYEES BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE OR INJURY TO PROPERTY AND LOST PROFITS, REGARDLESS OF WHETHER BREEDER SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW OR IN FACT KNOW OF THE POSSIBILITY. THE MAXIMUM LIABILITY OF BREEDER HEREUNDER SHALL BE THE AMOUNT PAID TO BREEDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATLEY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
- Buyer’s Indemnification of Seller Regarding State and Federal Law. Buyer acknowledges and agrees that it is solely responsible for determining whether the hemp variety it chooses to cultivate complies with state and federal law. Buyer acknowledges and agrees that Seller is not responsible for determining whether the hemp variety Buyer chooses to cultivate complies with state or federal law. Buyer expressly agrees that Seller cannot be held responsible for Buyer’s choice of hemp variety even if Seller provides input to Buyer on the identification of potential hemp varieties that may match Buyer’s needs.
- Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement except for any obligations to Buyer hereunder, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other commercial disturbances; and (i) other similar events beyond the reasonable control of Seller.
Seller shall give notice within ten (10) days of the Force Majeure Event to Buyer, stating the period of time the occurrence is expected to continue. Seller shall use diligent efforts to end the failure or delay and to ensure the effects of such Force Majeure Event are minimized. Seller shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that Seller’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 19, Buyer may thereafter terminate this Agreement upon thirty (30) days advance written notice.
- This Agreement constitutes the full agreement of the parties, superseding all prior representations or agreements, oral or written.
- This Agreement constitutes the entire agreement between the parties and may not be altered, modified, terminated, or rescinded except in writing signed by each party hereto.
- Waiver by either party of a breach by the other party of any term hereof shall not be considered a waiver of any other term or any subsequent breach of the same term.
- Assignment and Successor. This Agreement shall be binding upon and shall inure to the benefit of heirs, representatives, successors, and assigns of the parties hereto. Neither Party shall assign its right or delegate any of its obligations under this Agreement without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section 24 is null and void. Further, no assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement.
- Each Party acknowledges and agrees that this Agreement has been negotiated and prepared jointly by each party and that in the event of ambiguity, it shall not be construed against either Party, but rather each term herein shall be given a reasonable interpretation.
- Resell on Non-Shipment, Non-Payment. Should Buyer elect not to take delivery of seedlings produced on Buyer’s behalf or fails to make final payment prior to shipment of seedlings, Seller has the right to resell any, and all, of the seedlings produced on Buyer’s behalf.
- Choice of Law and Venue. Seller and Buyer specifically agree that this Agreement shall be interpreted in accordance with Texas law, and should any action be brought upon this Agreement, the proper venue shall be the Superior Court for the County of Seller and that the last act to make this Agreement enforceable occurred in Dallas County, Texas.
TERMS OF WEBSITE USE
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