Invoice payment is due prior to shipping the product and is the final sale of the product. Buyer shall pay invoices in full prior to shipping the product. Buyer shall not withhold payment or offset any claims that the Buyer may have. In all cases, the Buyer agrees not to assert any defense, setoff, recoupment, claim or counterclaim which Buyer may have against Seller relating to sums due under this agreement. All amounts due under this Agreement are payable in U.S. funds unless otherwise noted on the front of this agreement.
SHIPPING TERMS AND RISK OF LOSS:
Delivery is made Ex Works, at Seller’s designated location. Risk of loss to the goods passes at Seller’s designated location. If Seller pays for shipping or any related costs, this cost will be added to the price. In this event, the Parties do not intend to alter the shipping terms or risk of loss term set forth in this Agreement and the Buyer, to the fullest extent allowable by applicable law, assumes right, title and interest to and risk of loss in the product at the Seller’s designated location.
Any excise, taxes, fees or other charges now or hereafter imposed by any governmental agency or authority on the products, their production, refining, sale or use, will be added to the price set forth herein.
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..
Buyer shall not assign this Agreement or Buyer’s rights hereunder without the express written consent of Seller.
GOVERNING LAW; VENUE:
This Agreement will be construed in accordance with and governed in all respects by the laws of the State of Colorado without regard to any conflicts of law principles that would result in application of laws of any other jurisdiction. Any dispute arising out of this Agreement (a “Dispute”) will be resolved solely according to the procedures set forth in this section. The parties shall first negotiate in good faith to attempt to resolve the Dispute. If the Dispute is not so resolved within 30 days, either party may initiate mediation. If the parties are unable to resolve the Dispute(s) by mediation, then either party may initiate binding arbitration of such Dispute(s). The binding arbitration shall be initiated and conducted according to the JAMS Comprehensive Arbitration Rules and Procedures, including the Optional Appeal Procedure provided for in such rules (the “Arbitration Rules”).The arbitration shall be conducted in Denver, Colorado before a single neutral arbitrator appointed in accordance with the Arbitration Rules. The decision of the arbitrator, or the appellate arbitration panel, shall be binding upon the parties and no further appeal of any kind shall be made by either party. The non-prevailing party shall pay the fees and expenses of the arbitrator and the attorneys’ fees of
the other party in the amount fixed by the arbitrator. If no party prevails entirely, the parties shall pay their own attorney fees and each shall pay one half of the fees and expenses of the arbitrator.
CONFIDENTIALITY AND NON-DISCLOSURE.
Buyer acknowledges and agrees that in the course of negotiating and executing this Order, Buyer may learn or have learned Seller’s nonpublic, confidential, or proprietary information, including but not limited to Seller’s pricing, sales strategy, and proprietary product information, or other information relating to Seller’s business or affairs (“Confidential Information”). For a period of five years following Buyer’s execution of this Order Form and Sales Confirmation, Buyer shall maintain, and shall cause its employees and agents to maintain, confidentiality of all such Seller Confidential Information, and unless expressly authorized by this Agreement or Seller’s written consent, Buyer shall not disclose any Seller Confidential Information to any third parties, except for information that: (a) is or will be in the public domain (other than through Buyer’s unauthorized disclosure); (b) is required to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such individuals shall be bound by confidentiality obligations similar to those set forth in this Section. This Section shall survive the termination of this Agreement for any reason.
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. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to and if they are unable to agree an arbitrator or a court, as the case may be, may modify the terms of this Agreement to effect the original intent of the Parties as closely as possible.
This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, if any, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
MUTUAL REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreement of such Party or any judgment, order, or decree by which such Party is bound.
SEED ORDERS OF UNDER 1,000 UNITS ARE SOLD AS IS WITH NO WARRANTY.
Disclaimer: The materials are provided as is, where as seller has direct reseller agreement with supplier, where seller and purchaser agree to hold each party harmless and mutual indemnification. Seller agrees to and is not authorized to furnish any information other than what is furnished directly from the supplier. Seller makes no, and hereby disclaims all other warranties, express, implied, or statutory regarding the materials, including any warranties of merchantability, fitness for a particular purpose, title, non-infringement and any warranties arising from course of dealing of performance. Buyer understands that environment, nutrient regime, weather, stress, harvest date scheduling, and other factors are subject to management and is the sole and exclusive responsibility of Buyer.
Damages for any cause, including breach of contract, breach of warranty and negligence, with respect to this sale of seed is limited to a refund of the purchase price of the seed or a one-time replacement of seed by the seed provider, at the seed provider’s option.
Any claim for damages pursuant to this agreement must be made within one year after delivery of the product alleged to be defective. This remedy is exclusive. In no event shall Seller be liable for any incidental or consequential damages, including loss of profits.
This Order Form and Sales Confirmation operates as Buyer’s acceptance of Seller’s offer. By Buyer’s signature on the Order Form, Buyer has caused the terms and conditions in the Order Form and Sales Confirmation to be executed. Buyer acknowledges that the Seller is not required to execute the Order Form and Sales Confirmation in order for it and its terms to be effective and enforceable. Buyer’s accepts that payment processed also executes and enforces this Sales Confirmation agreement and buyer’s signature is not required to enforce this agreement.