Trilogene Terms and Conditions
THIS SEED AND TECHNOLOGY SALE AGREEMENT (the “Agreement”) is made and entered into as of the purchase date, between the buyer and MH Consulting LLC dba Trilogene Seeds (“SELLER”), a limited liability company formed under the laws of the State of Colorado, and having its principal place of business at 959 Wolf Creek Drive, Longmont, CO 80504. The Seller and Buyer may be referred to hereinafter individually as a “Party” and collectively as the “Parties.” WHEREAS, Seller 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”). WHEREAS, Seller has used the Technology to produce certain strains of hemp materials and feminized hemp seeds for the use of growth and propagation of hemp plants (the “Product”). NOW, THEREFORE, in consideration of the foregoing premises and the respective agreements, covenants, representations, warranties and conditions herein contained, the Parties hereby agree as follows: 1. Sale of Product; Price and Payment Terms. Subject to the terms of this Agreement, Buyer shall purchase from Seller, and Seller shall sell to Buyer, the Products as agreed upon for each Product order. The price for each Product supplied to Buyer hereunder shall be agreed upon by separate invoice for each Product order. At the time of order, Seller shall invoice Buyer for the Products included in such order at the applicable price. Buyer shall pay each such invoice pursuant to Seller’s standard billing and credit policies in effect at the time of any Product order. In the event of short seed crop or supply (i.e., Seller does not yield or obtain as many seeds as estimated), Seller reserves the right to fill this order “pro rata” without any liability. In case of complete failure of crop, Seller may not be held liable for any act or obligation required pursuant to the terms of the Agreement, except for a refund of a pro rata share of the purchase price. 2. Representations, Warranties, Covenants. In addition to the representation, warranties, and covenants set forth elsewhere in this Agreement, the Parties make the following representations, warranties, and covenants: (a) all information provided or to be provided prior to the execution of this Agreement will be true and correct in all material respects; (b) each Party is a business entity which is duly organized, validly existing, and in good standing under the laws of its domicile; (c) each Party has the authority, pursuant to its Articles of Organization, operating agreement, bylaws, shareholder agreement or other relevant document related to the operation of its business to enter into this Agreement and to consummate the transactions provided for herein. 3. Restrictions on Product and Technology Use and Transfer. Buyer agrees not to perform research on or with the Products and/or 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, or pollen, for research or planting for any purpose whatsoever, 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. Buyer agrees not to conduct research on the Products and/or Technology or on crop produced from the Products and/or Technology other than to make agronomic comparisons and conduct yield testing for Buyer’s own use. Buyer agrees to use the Products and/or 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 Products and/or 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. 4. Confidential Information. Buyer shall consider all information furnished by Seller to be confidential (“Confidential Information”) and shall not disclose any Confidential Information to any other person, or use such information itself for any purpose other than performing this Agreement unless Buyer obtains written permission from Seller to do so. Confidential Information includes, but is not limited to, the purchase price and manner of payment; Seller’s customers; the varietal, content, and amount of Product; the Technology; as well as specifications or other documents prepared in connection with this Agreement. Confidential Information shall not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure by Buyer or its representatives; (ii) was available to Buyer on a non-confidential and lawful basis prior to its disclosure by Seller; or (iii) becomes available to Buyer on a non-confidential and lawful basis from a person who is not otherwise bound by a confidentiality agreement with respect to such information, or is not otherwise prohibited from transmitting such information to Buyer. Buyer shall provide confidential information only to those of its agents, servants, and employees who have been informed of the requirements of this paragraph and have agreed in writing to be bound by them. Upon completion or termination of this Agreement, Buyer shall make such disposition of all such information and items as may be directed by Seller. Buyer shall not advertise or publish the fact that Buyer has ordered the Product from Seller nor shall any information relating to this Agreement be disclosed without Seller’s written permission. 5. Intellectual Property and Ownership. Any disclosure by Seller to Buyer of Product, Technology and/or Confidential Information hereunder shall not be construed as an assignment, grant, option, license or other transfer of any such right, title or interest whatsoever to Buyer or its representatives. Buyer has been informed, acknowledged and agreed that no property rights, seed productive rights, or seed multiplication rights are given to Buyer by Seller and transfer of the Technology to any third party is expressly prohibited. Seller shall retain all intellectual and other proprietary rights, interest, and title to the Products and/or Technology, including those developed using the Products and/or Technology. In addition, Seller shall own all hybrids lines that are essentially derived from the Products and/or Technology whose essential characteristics fail to be clearly distinguishable from the Products and/or Technology. Buyer may not, without a specific, written, and signed agreement with Seller, use the Products and/or Technology or any information pertaining to the Products and/or Technology to seek or obtain patent protection or plant variety rights or any other intellectual property protection for this genotype, either within the United States of America or any other country, and may not authorize a third party to do so. For jointly owned hybrids, as described above, Buyer must disclose in writing to Seller its intention to seek intellectual property protection at least sixty (60) days prior to the submission of the application for protection so that Seller can protect its interests when necessary. 6. Shipment and Delivery. Unless expressly agreed to otherwise in a purchase order, the point of delivery of the Product shall be FOB Origin at Seller’s place of business. Title and risk of loss for each purchase of Product will pass to Buyer at the time of delivery of the Products to a common carrier for shipment at the Seller’s place of business. Delivery date lead times for Products will be as agreed to by the Parties in writing pursuant to a schedule, a purchase order or other writing. If the delivery of Products is likely to fall behind the delivery date, Seller will promptly notify Buyer of the reason for the delay, and provide an alternative delivery date. If the alternative delivery date is more than fifteen (15) days after the initial delivery date, Buyer, at its option may cancel the purchase order, however, in no event shall Seller be liable to Buyer for any damages which Buyer incurs as a result of a shipment being late unless negotiated otherwise. Upon such cancellation, any deposit, if any, shall be promptly refunded to Buyer. Seller shall package each Product for shipment in accordance with its customary practices therefor, unless expressly agreed to otherwise in a purchase order prior to such shipment, in which event any extra costs incurred by Seller on account of the packaging changes requested by Buyer shall be promptly paid by Buyer. 7. Force Majeure. If the performance of this Agreement or any obligation hereunder is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident; strikes or labor disputes; inability to procure parts, supplies or power; war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency; or any other act or condition whatsoever beyond the reasonable control of the affected Party, the Party so affected, upon giving prompt notice to the other Party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the Party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall resume performance hereunder with dispatch whenever such causes are removed. 8. Termination; Remedies. Either Party shall have the right to terminate this Agreement at any time for any reason. Termination shall be in addition to, and not in lieu of, any other legal or equitable remedy that the terminating Party may have for, or in respect of, any breach of this Agreement (or failure to satisfy a condition of this Agreement) by the non-terminating Party. In particular, but without limitation, the Parties shall have all remedies afforded each by the Colorado Uniform Commercial Code. 9. Latent Defect; Product Performance and Regulations. Disease of plants can be transmitted by the wind, insects, animals or human agencies and may also be seed borne or soil borne. Seller believes the Product hereby sold to be free from latent defect, but it is not a condition of sale nor does Seller warrant that any Product sold will be free from such defect and shall not be held responsible in any way, shape or form for the resultant crop since any failure can depend on countless factors outside the Seller’s control, including, but not limited to those listed in Section 7 above. The Parties acknowledge, agree and accept that the Products will perform differently in different growing environments and therefore no warranty can be given as to the nature, size, productivity, or appearance of any plants grown from the Products. Seller does not make any guarantees as to germination rate, feminization rate and/or the CBD and/or THC potency of the seed post germination. Seller will not be held liable for any losses or damages arising to Buyer if Buyer’s hemp crop tests over .3% THC. Buyer is an experienced farmer, familiar with the applicable laws and regulations governing the farming of the Product (including regulation of cannabinoid contents) and shall be solely responsible for determining whether or not the anticipated growing conditions are suitable for the Products and any advice given by Seller in this respect shall be given without liability to Seller and shall not be deemed to be a representation, warranty, covenant or otherwise be legally binding. 10. LIMITED LIABILITY. THE EXCLUSIVE REMEDY OF BUYER AND THE LIMIT OF THE LIABILITY OF SELLER FOR ANY AND ALL LOSSES, INJURY OR DAMAGES RESULTING FROM THE USE OR HANDLING OF THE PRODUCT (INCLUDING CLAIMS BASED IN CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY, TORT, OR OTHERWISE) SHALL BE THE PRICE PAID BY BUYER FOR THE PRODUCT SPECIFICALLY INVOLVED OR, AT THE ELECTION OF SELLER, THE REPLACEMENT OF THE PRODUCT. IN NO EVENT SHALL EITHER BUYER OR SELLER BE LIABLE TO EACH OTHER OR TO ANY THIRD PERSON OR ENTITY WITH RESPECT TO THE SUBJECT MATTER OF THE ORDER, UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, ESTOPPEL, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHER THEORY, FOR ANY (A) INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES, OR (B) DAMAGES RELATING TO DIMINUTION OR DEPRECIATION IN VALUE, DELAY OR IDLE TIME FOR LABOR AND EQUIPMENT, OR LOSS OF SALES, CONTRACTS, BUSINESS, PROFITS, REVENUES, PRODUCTION, SAVINGS, DATA, OPPORTUNITY, USE, REPUTATION, OR GOODWILL, EVEN IF THE REMEDIES PROVIDED FOR IN THE ORDER FAIL FOR THEIR ESSENTIAL PURPOSE AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES OR THE FOREGOING DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. 11. Miscellaneous. a. No Assignment. Neither Party may assign or transfer in whole or in part their rights or delegate any performance under this Agreement, by operation of law or otherwise, without the express written consent of the other Party. A purported assignment or purported delegation in violation of this Section is void. b. Waiver. No failure to exercise and no delay in exercising on the part of either of the Parties, any right, power or privilege under this Agreement shall operate as a waiver of it, nor shall any single or partial exercise of any other right, power or privilege preclude any other or further exercise of it or the exercise of any other right, power or privilege. c. Entire Agreement. This Agreement constitutes the final, exclusive agreement between the Parties on the matters contained in this Agreement. All earlier and contemporaneous negotiations and agreements between the Parties on matters contained in this Agreement are expressly merged into and superseded by this Agreement. d. Amendments. The Parties may amend this Agreement only by the Parties’ written agreement that identifies itself as an amendment to this Agreement. e. Governing Law; Jurisdiction; Arbitration. The subject matter of this Agreement shall be governed by and construed in accordance with the laws of the State of Colorado (without reference to its choice of law principles), and to the exclusion of the law of any other forum, without regard to the jurisdiction in which any action or special proceeding may be instituted. EACH PARTY HERETO AGREES TO SUBMIT TO BINDING ARBITRATION LOCATED IN DENVER, COLORADO FOR RESOLUTION OF ALL DISPUTES ARISING OUT OF, IN CONNECTION WITH, OR BY REASON OF THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH LOCATION CONSTITUTES AN INCONVENIENT FORUM. AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, EACH PARTY SPECIFICALLY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY ISSUES SO TRIABLE. UNDER THE “COLORADO SEED ACT”, ARTICLE 27 OF TITLE 35, COLORADO REVISED STATUTES, ARBITRATION IS REQUIRED AS A PREREQUISITE TO CERTAIN LEGAL ACTIONS, COUNTERCLAIMS, OR DEFENSES AGAINST A SELLER OF SEED. INFORMATION ABOUT THIS REQUIREMENT MAY BE OBTAINED FROM THE COLORADO COMMISSIONER OF AGRICULTURE. f. Attorney’s Fees. In the event of any dispute, contest, arbitration or litigation between the parties hereto, the prevailing party in such matter shall be fully reimbursed by the other party for all costs, including reasonable attorneys’ fees, court costs, expert or consultant’s fees and reasonable travel and lodging expenses, incurred by the prevailing party in its successful prosecution or defense thereof, including any appellate proceedings. g. Severability. If any term of this Agreement is determined to be illegal or unenforceable, the remaining terms of this Agreement remain in full force, if the essential terms of this Agreement for each Party remain legal and enforceable. h. Survival. This Agreement’s provisions which, by their reasonable terms, are intended to survive termination of this Agreement (such as confidentiality obligations) shall survive termination. In the event that this Agreement is terminated or expires by its terms, such expiration or termination shall not affect any liability or other obligation which shall have accrued prior to such termination.