Definitions for certain terms used in these Cultivas General Terms and Conditions (these “Terms”) are found at the end of these Terms.
- Cultivas Bio, Inc. is a wholly owned subsidiary of Front Range Biosciences, Inc., with offices located at 1724 Majestic Drive, Suite 109B, Lafayette, CO 80026 (“Cultivas”). These Terms apply to all commercial transactions of any party (the “Buyer”) with Cultivas. These Terms supersede all conditions stated in prior Cultivas agreements and communications.
- Cultivas will: (1) issue a Cultivas Bio Quote Form (“Quote”) detailing pricing, scheduling and amounts of Product requested by Buyer; if Cultivas accepts a completed Quote, Cultivas will send Buyer a P&S with all the terms of the sale; or (2) directly issue a P&S. For both cases, (1) and (2), the P&S (which is the only binding agreement) requires Buyer’s signature within three (3) days of receipt and a Deposit within two (2) weeks of signature to secure the order and to reserve Buyer’s Pickup (Delivery) schedule of Product. All accepted orders with Cultivas typically require a minimum fifty percent (50%) initial deposit for Clean Stock® plants, and a thirty percent (30%) initial deposit for all seed orders (each a “Deposit”).
- After receipt of an executed P&S, Cultivas will send Buyer an initial invoice (“Invoice”) for the initial Deposit amount(s), current amount(s) due and total amount(s) due, plus any further scheduled Payment(s). If further scheduled Payments are due as a part of the P&S, additional Invoices will be sent for each scheduled payment.
PAYMENT OF DEPOSIT
- Payment of the Deposit within two (2) weeks of Buyer signature on the P&S is required to secure scheduling of Product Pickup. If the Deposit is unpaid when due, Cultivas may cancel the Order and charge Buyer ten percent (10%) of the total Order amount as an order cancellation fee (“Order Cancellation Fee”).
- Full payment for all scheduled shipments is due two (2) weeks before scheduled Pickup Date. An alternate (other than 2 weeks) due date for full payment before scheduled Pickup Date requires prior written agreement of Cultivas. If the full amount(s) due is not paid by the Final Payment Due Date, Cultivas may cancel the Order, keep all monies paid to date, and Buyer will owe Cultivas an additional twenty-five percent (25%) cancellation charge. The cancellation charge and retention of monies paid is intended to recover lost profits and incidental damages for Cultivas’ commitment of resources to fulfill the Order and is subject to the Mitigation provisions recited herein.
ORDER PICKUP & DELIVERY
- Cultivas will provide a shipping estimate at the time the P&S is signed and then prior to shipping, upon confirmation of the order, the final shipping cost will be provided to the Buyer. At this time the Buyer can accept or can provide their own reliable transportation. To expedite pickup, Cultivas will stage each Buyer order on rolling racks for inspection. Cultivas does NOT schedule the pickup with service providers. Cultivas also does NOT supply any equipment (e.g., racks, tables, boxes, or other equipment) to aid in the transport of plant material. Loading assistance services may be available.
- Cultivas shall provide four weeks’ prior written notice of the Pickup (Delivery) Date to Buyer. If Buyer does not arrange for Pickup on the Pickup (Delivery) Date(s) as identified in the Schedule Table on the P&S, and on the Invoice(s), or if Buyer has not made all payments due for Product, Buyer is still responsible for the full amount of the final Invoice. Subject to events beyond Buyer's control, such as force majeure, if Buyer does not pick up Product within forty-eight (48) hours of the scheduled Pickup Date, Cultivas may destroy or resell Product without any compensation to Buyer except according to the Mitigation provisions recited herein. A Cultivas representative will attempt to contact Buyer by email or phone using the contact information on the P&S within approximately eight (8) hours before the expiration of the scheduled Pickup Date. If for any reason, Cultivas agrees to extend the pickup window beyond the 48hrs based on Buyer request, Buyer will be charged an additional $0.20 per plant per day. The additional payment must be made before the release of plants.
- Title to Product and risk of loss or damage passes to Buyer upon receipt/pickup of Product. Buyer assumes sole responsibility for use and disposition of Product (including pickup, transport, and delivery to buyer’s location) and warrants that all such use and disposition will be in accordance with applicable laws and regulations.
CERTIFICATE OF ANALYSIS
- Cultivas will provide a Certificate of Analysis (a “CoA") from field testing as available for all varieties sold. Buyer acknowledges that any CoA is merely representative of the potential performance of the variety tested and is not a guarantee of an equal or similar outcome under cultivation by Buyer.
WAIVER OF REPRESENTATIONS AND WARRANTIES, NO GUARANTEE
- OTHER THAN COMPLIANCE WITH CULTIVAS RELEASE SPECIFICATIONS, CULTIVAS MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES CONCERNING THE PRODUCT, AND FURTHER DISCLAIMS ANY STATED OR IMPLIED WARRANTIES OF ANY KIND BY ANY CULTIVAS REPRESENTATIVE OR AGENT, WHETHER VERBAL OR WRITTEN. IN ADDITION, ALL PLANT MATERIAL IS SOLD "AS IS" AND CULTIVAS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BECAUSE THE PRODUCTIVITY OF PLANT MATERIAL IS AFFECTED BY GROWING PRACTICES AND ENVIRONMENTAL INFLUENCES BEYOND THE CONTROL OF CULTIVAS, CULTIVAS DISCLAIMS ANY AND ALL WARRANTIES OF PRODUCTIVITY AND QUALITY. PERFORMANCE VARIES BASED ON GROWING CONDITIONS, SOIL PROFILE, IRRIGATION METHOD, AND CLIMATE AND BUYER RESULTS WILL VARY. CULTIVAS FURTHER DISCLAIMS ANY GROWING ADVICE OR SUGGESTIONS BY ANY REPRESENTATIVE OR EMPLOYEE OF CULTIVAS AS TO HOW TO USE ANY PRODUCT. BUYER ACCEPTS FULL RESPONSIBILITY FOR ACCEPTING ANY SUCH ADVICE. CULTIVAS’ AGGREGATE POTENTIAL LIABILITY IS LIMITED TO THE TOTAL AMOUNT PAID FOR AN ORDER (AS DEFINED IN THE P&S), OR THE VALUE OF AN INDIVIDUAL SHIPMENT MADE, WHICHEVER IS LESS.
- All Products and the terms on a Quote or P&S are proprietary and confidential. Any release of the terms of the P&S may cause irreparable harm to Cultivas.
- Buyer must deliver a copy of their License or Permit (“License”) before or at the time of signing a P&S with Cultivas, or the P&S may not be accepted.
USE OF PRODUCT
- No Buyer of Product shall be permitted to reproduce Product in any form. Only approved Resellers are permitted to resell Products. “Product Derivatives” include but are not limited to breeding or propagating Products as well as any mutants or sports of the Products. Buyer agree to notify Cultivas of any/all mutants or sports discovered within 48 hours of learning of their existence and to preserve such for transfer to Cultivas or to destroy them if so instructed by Cultivas. Buyers may not use any Product or Product Derivatives in a breeding program to generate new varieties. Buyers may not propagate or sell any Product or Product Derivatives for commercial use or distribute any form of Product or Product Derivatives to any third party without the prior written consent of Cultivas.
INTELLECTUAL PROPERTY – PLANT VARIETIES AND MATERIALS
- Cultivas retains ownership of all intellectual property rights for all Cultivas products including, but not limited to, seeds, liners, crosses, rooted or non-rooted cuttings, and clones (“Products”) as well as for all Product Derivatives. Purchase or receipt of Products or Product Derivatives from Cultivas or from any Reseller, or sublicense of any Products or Product Derivatives from any End User does not transfer any intellectual property rights to Buyer. By purchasing or accepting receipt of any Product, Buyer is not acquiring any rights to the underlying intellectual property of any kind.
- For Buyer-supplied varieties transferred to Cultivas for production or breeding, Buyer retains all intellectual property rights in the genetics of the Buyer-supplied varieties and all plant material derived from such varieties (“Buyer Plant Material”). Cultivas agrees to return or destroy all Buyer Plant Material upon termination of a Production or Nursery Agreement, and there may be a charge associated with such activities.
- Any data created or obtained by Cultivas either from its handling of its own varieties or from its handling of Buyer Plant Material is property of Cultivas. Buyer has no right of access to or ownership of such data without a separate data agreement with Cultivas. Placement of Buyer Plant Material with Cultivas constitutes a license from Buyer to Cultivas to obtain and use data from Buyer Plant Material without limitation and without future payments.
- Certain names, words, phrases, logos, marks and designs that appear on the FRB website, including “Cultivas”, “Clean Stock®”, “Front Range Biosciences®”, and related words and logos, are official marks, trademarks or trade names of Cultivas and Affiliates (“Company Trademarks”). Nothing in any Agreement or on the FRB website shall be construed as granting or conferring, either expressly, by implication, by estoppel or otherwise, a license or other right for Buyer to use any Company Trademarks or any other intellectual property right. The names of other companies, products and services referred to on the FRB website may be trademarks or trade names of their respective owners.
COMPLIANCE WITH LAWS
- In addition to complying with these Terms, Buyer agrees to use all Products for lawful purposes only and in a manner consistent with local, national or international laws and regulations.
- Cultivas reserves a limited audit right to ensure any Buyer’s appropriate use of Cultivas' Products and Product Derivatives. If Cultivas has a good-faith belief supported by competent evidence that a Buyer has violated these Terms, Cultivas may audit relevant business records, growing operations and/or storage facilities under Buyer’s control with at least forty hours eight (48) prior notice via email or other written method to ensure that Buyer is not violating the Terms and/or any other agreement between Cultivas and Buyer. If Cultivas finds that Buyer has violated the Terms in any manner, Buyer agrees upon request of Cultivas, to: (a) surrender or (b) destroy, all Cultivas Hemp plants and crosses of Cultivas Hemp plants growing on Buyer’s farm or premises (whether leased or owned) or anywhere such plants are growing. If a violation is found, Buyer also agrees to pay all costs of removing or destroying the Hemp plants from all growing location(s) that are deemed to be in violation of these Terms, and to remit any revenue/commercial value from clone/seed transfers or sales to third parties over the past six months, and pay any legal and accounting/audit costs Cultivas has incurred to ensure compliance with the terms of these Terms or any Agreement. If no violation is found, Cultivas shall reimburse Buyer for all costs incurred in defending such action.
- In a case of cancellation of an Order, or failure by Buyer to pick up an Order, Cultivas will make a good-faith attempt to mitigate damages by reselling the Product to a third party. Buyer acknowledges that numerous factors create significant obstacles to such mitigation, including but not limited to the nature of the Product and its perishability, the expense of maintaining Product in good condition for resale, the harm to standard pricing that can be caused by distress/urgent resale, as well as regulatory requirements associated with sale of Products. Buyer acknowledges that any form of mitigation may not be possible and that Cultivas will fully discharge its duty to mitigate by posting a notice on its loading docks and/or website of a distress sale, and that such notice need not be posted for longer than 24 hours due to the perishability of the Product. Funds from any successful mitigation shall first offset any cancellation charge and/or other fees owed by Buyer to Cultivas, and then any excess funds from mitigation shall create a purchase credit to Buyer on a future Order. Apart from the purchase credit, Cultivas shall have no other obligation to return funds from mitigation to Buyer.
- Buyer agrees to indemnify, defend and hold Cultivas and its affiliates harmless from and against any and all claims, liabilities, damages, demands, suits, actions, losses or expenses (including all legal fees) (collectively “Claims”) arising out of: (a) Buyer’s infringement of any Cultivas or third party official mark, trademark, trade secret, copyright, patent or other intellectual property rights; (b) any act or omission by Buyer, Buyer affiliates or agents which results in: (i) loss, damage, interference with or disruption to reputation of the Clean Stock® brand; (ii) use of any Product for any illegal purpose; or (c) Buyer’s breach of any of these Terms, or any rule, regulation, guideline or policy of Cultivas as may be established and changed from time to time and posted on the FRB website.
LIMITATIONS OF LIABILITY
- BUYER ACKNOWLEDGES THAT ANY LIVING MATERIAL IS INHERENTLY VARIABLE AND SUBJECT TO VARIABLE OUTCOMES BASED UPON BUYER’S CARE AND CULTIVATION AS WELL AS ENVIRONMENTAL FACTORS AND OTHER FACTORS BEYOND CULTIVAS’ CONTROL. BUYER ACCEPTS AND ASSUMES FULL RESPONSIBILITY FOR THESE UNCERTAINTIES AND RISKS AS PART OF ANY TRANSACTION WITH CULTIVAS AND/OR HANDLING OF PRODUCT, AND EXPRESSLY ACCEPTS THAT UNDER THE CIRCUMSTANCES SUCH ASSUMPTION OF RISK AND RESPONSIBILITY IS REASONABLE AND INTENTIONAL. IN NO EVENT SHALL CULTIVAS BE LIABLE TO RECIPIENT FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, COMPENSATORY OR PUNITIVE DAMAGES OR LOSSES, OR DAMAGES FOR LOSS OF INCOME, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF OR DAMAGE TO PROPERTY, OR CLAIMS OF THIRD PARTIES, OR OTHER PECUNIARY LOSS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THESE TERMS, THE ACQUISITION OR USE OF ANY PRODUCTS OR PRODUCT DERIVATIVES PURCHASED FROM CULTIVAS. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF CULTIVAS ARISING OUT OF OR RELATED TO ANY AGREEMENT OR THESE TERMS (X) EXCEED THE REPLACEMENT COST OF ANY SUCH PRODUCTS OR PRODUCT DERIVATIVES, IF CULTIVAS DOES NOT MAKE THE ELECTION PROVIDED FOR BY THE IMMEDIATELY FOLLOWING CLAUSE, OR (Y) REQUIRE CULTIVAS, AT CULTIVAS’ ELECTION MADE IN ITS SOLE DISCRETION, TO DO ANY ACT OR PAY ANY MONEY, OTHER THAN TO REPLACE THE RELEVANT PRODUCTS OR PRODUCT DERIVATIVES. THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE CAUSES, CIRCUMSTANCES OR FORM OF ACTION GIVING RISE TO THE LOSS, DAMAGE, CLAIM OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE, CLAIM OR LIABILITY IS BASED UPON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND EVEN IF ADVISED OF THE POSSIBILITY OF THE LOSS, DAMAGE, DELAY, CLAIM OR LIABILITY.
WARRANTY PERIOD, NOTICE REQUIREMENT
- The warranty period is one year from the effective date of the applicable Agreement (the “Warranty Period”). As a condition precedent to Buyer or any other person or entity asserting any claim, action, or dispute against Cultivas under any Agreement, Buyer or such person or entity must provide Cultivas a written prompt and timely notice regarding performance or non-performance of Cultivas or any Products or Product Derivatives to Cultivas within sufficient time to allow an inspection about which any controversy, claim, action, or dispute is being asserted. The notice will be timely only if it is delivered 15 days or less after the Buyer or such person or entity first observes the issue(s) regarding performance or non-performance of Cultivas or any Products or Product Derivatives. The notice must include a statement setting forth the nature of the claim in reasonable detail and must be delivered to Cultivas at Front Range Biosciences, 1724 Majestic Drive, #109B, Attention: Chief Executive Officer, Lafayette, CO 80026. Any notice with respect to claims for breach of warranty must be made within the Warranty Period.
FAILURE TO DELIVER AND REFUNDS
- Cultivas release specifications dictate the release of plants and Cultivas will not release plants that do not meet those specifications. A specification for release (“Release Specification”) is available for customers upon request. Subject to the Mitigation provisions recited herein, Orders may not be cancelled and deposits are non-refundable unless Cultivas does not offer Product ordered (or equivalent) to Buyer within the schedule in the P&S, or Product does not meet the Cultivas Release Specification (before or at the time of pick-up). If Cultivas cannot deliver the quantities of any particular variety of ordered Product, Cultivas may, upon Buyer’s consent, substitute a variety with similar characteristics. If Buyer does not consent to the substitute variety, Buyer may request a credit or refund on any amount not delivered.
GOVERNING LAW AND LEGAL DISPUTES
- Each Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with, the substantive laws of Boulder County and the State of Colorado, without regard to any choice of law rules or principles.
- The parties shall attempt in good faith to resolve any dispute arising out of or relating to any Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of such Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 calendar days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (i) a statement of each party's position and a summary of arguments supporting that position, and (ii) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place.
- Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above ("First Meeting"). Such closure shall not preclude continuing or later negotiations, if desired. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered in admissible or non-discoverable as a result of its use in the negotiation.
- At no time prior to the First Meetings hall either side initiate an arbitration or litigation related to any Agreement except to pursue a provisional remedy in aid of arbitration or as authorized by law or by JAMS Rules (defined below). However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of the first paragraph of this provision regarding Confidential Negotiation. If the matter is not resolved by negotiation pursuant to this Confidential Negotiation provision, then the matter will proceed to arbitration as set forth below.
- Any dispute, claim or controversy arising out of or relating to any Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Denver, Colorado before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (“JAMS Rules”). The arbitrator shall be a retired judge from a state court in Colorado, a lawyer with 10 or more years of legal experience in Colorado, or a lawyer with 5 or more years of legal experience in the cannabis industry. Judgment on the arbitration award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an arbitration award or its enforcement, or unless otherwise required by law or judicial decision. In any arbitration arising out of or related to any Agreement, the arbitrator is not empowered to award any damages, costs or monies of any kind (including, without limitation, attorney fees, arbitration costs or enforcement costs), except as expressly authorized by the agreement.
- If performance by Cultivas is delayed or made impracticable or burdensome by any cause beyond Cultivas’ control, including, without limitation, (i) acts of God, (ii) natural disasters, (iii) acts of war, insurrection and terrorism, (iv) strikes, lockouts and labor disputes, (v) government orders or regulations, or (vi) shortages of goods, labor or transportation, then Cultivas shall be excused from performance to the extent that and for so long as such performance is delayed or made impracticable or burdensome by such cause. Cultivas shall not be liable for any damages caused by any delay or failure to perform its obligations where such delay or failure is caused directly or indirectly by an event beyond its reasonable control.
- In case any provision in these Terms shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
- Cultivas reserves the right to discontinue Products, or to modify the specifications of any Product without notice, without incurring any obligation. Product pricing is valid for 30 days from the date of the latest written communication to Buyer.
- Buyer may not assign any rights or obligations under a P&S without prior written consent of Cultivas.
- Except as explicitly stated otherwise, legal notices shall be served to Buyer at the email address provided to Cultivas on the P&S or by direct communication to Cultivas. Notice shall be deemed given 24 hours after the email is sent, unless the sending party is notified that the email address is invalid.
- “Agreement” means any agreement relating to the Products between the Parties, including but not limited to any P&S [or Production and Nursery Agreement].
- “Buyer” is any individual or entity that purchases “Product” from Cultivas, directly or through an Approved Reseller.
- “Cultivas” includes Cultivas Bio Inc., its suppliers, agents, partners and designated affiliates.
- “Cuttings” are any plants which may also be referred to as clones.
- “P&S” means any agreement between the Parties for the purchase and sale of the Products.
- A “Party” is either Buyer or Cultivas and “Parties” are collectively Buyer and Cultivas.
- “Product(s)” include all Cultivas products including, but not limited to seeds, liners, crosses, rooted or non-rooted cuttings, and clones provided and sold by Cultivas.
- “Product Derivatives” include, but are not limited to crosses, mutants, sports, or propagated Products. Product Derivatives do not include biomass, flower or extracted oil.