WESTERN SLOPE HEMP GROWERS, INC. Seller’s Standard Terms & Conditions of Sale
These Terms & Conditions of Sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) sold by Seller to Buyer as identified in the associated Purchase Order Commitment (and with these Terms collectively, this “Agreement”).
This Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Buyer Representations and Acknowledgements.
Buyer acknowledges that transfer of Goods by Seller to Buyer is for hemp-related research purposes or for production of industrial hemp under the auspices of a state agricultural program as allowed under Section 7606 of the Agricultural Act of 2014 as amended or superseded by the Agriculture Improvement Act of 2018. Buyer warrants that it accepts the Goods for these purposes only.
Buyer acknowledges that all information relating to varieties, varietal characteristics, or periods of maturity and all descriptions, illustrations, or photographs on Seller’s website or in Seller’s catalogs, price lists, advertisements, or otherwise communicated to the Buyer are intended to present merely a general idea of the Goods described and shall not form part of this Agreement or constitute a representation.
Buyer shall acknowledge Seller as the supplier of the Goods in any publications that result from the Buyer’s use of the Goods and shall provide Seller with copies of the relevant publications.
Buyer agrees to indemnify, defend, and hold harmless Seller from and against all claims or causes of action, including for reasonable attorney fees and costs incurred by Seller, arising from Buyer’s misuse, unauthorized transfer, or resale of the Goods according to the terms of this Agreement.
The Goods will be delivered within a reasonable time after acceptance of Buyer’s Offer and payment as required by Seller, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit.
Unless otherwise agreed in writing by the parties, Seller shall ship the Goods to the location referred to on the Purchase Order Commitment as the “F.O.B. Point” (the “FOB Point”) using Seller’s standard methods for packaging and shipping such Goods. (1) If Buyer has elected “FOB Origin,” Buyer shall take delivery of the Goods at Seller’s designated location for such shipments (the “Delivery Point”). Buyer shall take delivery within seven days of Seller’s written notice that the Goods have been delivered to the Delivery Point. (2) If Buyer has elected “FOB Shipping,” Seller shall ship to Buyer’s address as provided on the Purchase Order Commitment and the “Delivery Point” shall be the location at which Seller turns over Goods to any shipper or transportation company. In all cases, Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s Purchase Order Commitment.
If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within one business day of the date when the Goods would in the ordinary course of events have been received.
Seller shall have the right to cure any non-delivery of Goods at its sole discretion. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
If Seller delivers to Buyer a quantity of Goods of up to 5% more or less than the quantity set forth in the Purchase Order Commitment, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
Title and Risk of Loss.
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
Amendment and Modification.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
Inspection and Rejection of Nonconforming Goods.
Buyer shall inspect the Goods at the Delivery Point within two (2) business days of Seller’s delivery (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Purchase Order Commitment; quantity or weight of the order; or (ii) the Good’s label or packaging incorrectly identifies its contents. If Buyer determines any portion of the Goods are Nonconforming Goods, Buyer will cooperate with Seller in identifying all deficiencies including, but not limited to, by releasing to Seller copies of all lab or test results, and by providing samples, data, or other information for further testing, if required.
If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility. Receipt by Seller of all payments as required by the Purchase Order Commitment and receipt of such Nonconforming Goods are express conditions precedent to any refund or replacement, whether in whole or in part. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, deliver the replaced Goods to Buyer at the Delivery Point, at Buyer’s expense and risk of loss.
Buyer acknowledges and agrees that the remedies set forth in Section 9(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 9(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
Buyer shall purchase the Goods from Seller at the price (the “Price”) set forth on the Purchase Order Commitment.
All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
Buyer shall make all payments hereunder by wire transfer and in US dollars. Buyer shall make payments hereunder as provided on the Purchase Order Commitment.
Buyer shall pay interest on all late payments at the rate of 2% per month, compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorney’s fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.
Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
GOODS ARE SOLD “AS IS” AND SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING BUT NOT LIMITED TO ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY OF TITLE; (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; (V) WARRANTY OF COURSE OF DEALING; (VI) WARRANTY OF USAGE OF TRADE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, OR OTHERWISE.
The Goods may be manufactured, grown, or prepared by a third party (“Third Party Product”). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Buyer hereby acknowledges and agrees that the Goods CONSIST OF “FIELD STOCK” seeds and are not a colorado department of agriculture certified variety and perform differently in different growing environments and therefore no warranty can be given as to the nature, SEX RATIO, size, CBD/THC CONTent or ratio, or appearance of any plants grown from the Goods. Buyer is solely responsible for determining whether or not the anticipated growing conditions are suitable for the Goods. any advice given by Seller in this respect shall be given without liability to Seller and shall not be deemed a warranty, representation, or covenant. FURTHER, BUYER ACKNOWLEDGES THE GOODS (INCLUDING SEED PARENTS) HAVE NOT BEEN TESTED/EVALUATED BY CHEMICAL ANALYSIS FOR CANNABINOID CONTENT, COULD CONTAIN A FULL SPECTRUM OF CANNABINOIDS, INCUDING RATIOS RANGING FROM 1:1 THROUGH 1:INFINITY FOR ALL CANNABINOIDS, AND ANY AND ALL WARRANTIES OR REPRESENTATIONS RELATED THERETO ARE ALSO DISCLAIMED.
BUYER HEREBY ACKNOWLEDGES THAT Disease of plants can be transmitted by wind, insects, animals, or by human agencies and can be seed or soil borne. SELLER believes the GOODS transferred subject to this agreement to be free from latent defect, HOWEVER, SELLER DOES NOT warrant that THE GOODS ARE free from such a defect.
Limitation of Liability.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR (I) ANY LOSS OF USE, REVENUE, OR PROFIT INCLUDING BUT NOT LIMITED TO LOSS DUE TO OR ARISING FROM THE USE, STORAGE, OR DISPOSAL OF THE GOODS, OR (II) FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF (X) BREACH OF CONTRACT, (Y) ANY TORT (INCLUDING NEGLIGENCE), OR (Z) OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, ANY TORT CLAIM (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
The limitation of liability set forth in Section 12(b) above shall not apply to liability resulting from Seller’s gross negligence or willful misconduct.
Compliance with Law.
Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for five (5) business days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, adverse weather conditions (including but not limited to flood, winds, rain, or snow), fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes, or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown, power outage, or any change in, or creation of, applicable federal, state, or local regulation which renders this Agreement, and the transaction contemplated herein, subsequently illegal.
Buyer may assign any of its rights under this Agreement, however, any such purported assignment or delegation containing terms that vary or contradict the terms of this Agreement is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Relationship of the Parties. The relationship between the parties is that of buyer and seller. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
All matters arising out of or relating to this Agreement and the Goods are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado.
Submission to Jurisdiction/Waiver of Jury Trial.
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the State of Colorado located in Delta County, Colorado and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Buyer and Seller each irrevocably waive any and all rights to trial by jury of any action, proceeding, claim, cause of action, or defense arising out of or related to this Agreement, the relationship of the Parties, or the Goods.
Attorney’s Fees & Costs.
The prevailing party in any legal action arising from or related to this Agreement, the relationship of the Parties, or the Goods, shall be entitled to recover its reasonable and necessary attorney’s fees and expenses or costs.
All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order Commitment or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond the term of this Agreement will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction/Waiver of Jury Trial, and Survival.