Terms of Service Agreement
Applicability. These Terms and Conditions for the Sale of Goods (these “Terms”) govern the sale of goods set forth on the Sales Confirmation (“Goods”) by Balanced Health Botanicals, LLC (or an entity set forth in the Sales Confirmation controlled or owned by Balanced Health Botanicals, LLC, including, without limitation, Agora Terpenes, LLC (“Seller”), to the buyer set forth in the Sales Confirmation (“Buyer”). Notwithstanding anything to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby (the “Master Agreement”), the terms and conditions of said Master Agreement shall prevail to the extent they are inconsistent with these Terms or a Sales Confirmation, and in the event of a conflict between these Terms and a Sales Confirmation, these Terms shall prevail; provided, however, that the Sales Confirmation shall prevail with respect to the Goods covered by such Sales Confirmation if any contrary terms have been fully approved in a signed writing by an authorized representative of each party. The accompanying confirmation of sale by Seller (“Sales Confirmation”), the Master Agreement (if any), and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, subject to Section 22. This Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order (“PO”) 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.
- Delivery; Shipping. Delivery of the Goods to Buyer shall be made FOB origin unless otherwise agreed by the parties (the “Delivery Point”) within a reasonable time after the receipt of Buyer’s PO. As such, Buyer is responsible for the costs involved in taking the Goods from the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor suited for receipt of the Goods at the Delivery Point. Buyer shall take delivery of the Goods within 3 days of Seller’s written notice that the Goods have been delivered to the Delivery Point. If Buyer fails to accept delivery of any Goods within 3 days of Seller’s written notice that the Goods have been delivered at the Delivery Point: (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. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment constitutes a separate sale, and Buyer shall pay for the Goods shipped whether the shipment is in whole or partial fulfillment of Buyer’s PO.
- Quantity. 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. 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 5 business days of the date when the Goods would in the ordinary course of events have been received. 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, and Buyer takes delivery of, a quantity of Goods of up to 2% more than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus 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. As collateral security for the payment of the purchase price of the Goods, Buyer grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, and all related proceeds (including insurance proceeds). The security interest granted under this provision constitutes a purchase money security interest under the Colorado Uniform Commercial Code.
- Inspection and Rejection of Nonconforming Goods. (a) Buyer shall inspect the Goods within 5 business days of receipt (“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 written evidence as reasonably required by Seller. “Nonconforming Goods” means only the following: either product shipped is different than identified in the Sales Confirmation, or product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Goods, and Seller agrees that the Goods are Nonconforming Goods (which shall not be unreasonably withheld), then Seller shall, in its sole discretion, either (i) replace the Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price of 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 the location specified by Seller in writing. If Seller exercises its option to replace Nonconforming Goods, Seller shall—after receiving Buyer’s shipment of Nonconforming Goods and agreeing that the Goods are Nonconforming—ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for delivery of Nonconforming Goods. Except as provided under this Section, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods bought under this Agreement to Seller.
- Price. Buyer shall buy Goods from Seller at the price(s) set forth in Seller’s published price list in force as of the date that Seller issues the Sales Confirmation. 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.
- Payment Terms. Invoices are payable upon receipt and before Goods are delivered to Buyer. Buyer shall make all payments hereunder by wire transfer, certified check, or automated clearinghouse (ACH) payment, and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorney 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 under these Terms), Seller may suspend delivery of any Goods if Buyer fails to pay any amounts due to Seller and such failure continues for 3 days after written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.
- Limited Warranty. (a) Seller warrants to Buyer that for a period of 12 months from the date that a Good is manufactured (“Warranty Period”), that the Good will materially conform to Seller’s published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship. (b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY OR (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. (c) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 8(a). 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. (d) Seller shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 3 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine the Goods and Buyer (if requested to do so by Seller) returns the Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective. (e) Seller shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Buyer uses the Goods after giving notice of breach of such warranty; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs the Goods without Seller’s prior written consent. (f) Subject to Section 8(d) and Section 8(e), with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace the Goods (or the defective part) or (ii) credit or refund the price of the Goods at the pro rata contract rate; provided that, if Seller so requests, Buyer shall, at Seller’s expense, return the Goods to Seller. (g) THE REMEDIES SET FORTH IN SECTION 8(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(a).
- Limitation of Liability. (a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATED TO THESE TERMS OR THE GOODS. (b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE GOODS EXCEED THE TOTAL AMOUNT PAID TO SELLER BY BUYER FOR THE GOODS SOLD HEREUNDER. (c) The limitation of liability set forth in Section 9(b) shall not apply to liability resulting from Seller’s willful misconduct, and death or bodily injury resulting from Seller’s acts or omissions.
- Compliance with Law. Buyer shall comply with all applicable laws. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, permits, certifications, and credentials necessary to carry out its obligations under and arising from 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. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
- Termination. 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 3 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.
- Waiver. 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.
- Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing pursuant to this Agreement and may not be disclosed or copied without Seller’s prior written consent. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
- Force Majeure. Seller shall not be liable or responsible for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent the failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, 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, materials or telecommunication breakdown or power outage; provided that, if the event in question continues for a continuous period in excess of 30 days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
- Assignment. Buyer shall not assign any of its rights or delegate any of its duties without Seller’s written consent.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. This Agreement shall not 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.
- Buyer’s Conduct. Buyer shall not make any representations, warranties, guarantees, indemnities, similar claims, or other commitments (including, without limitation, any health or medical claims re: any Goods) actually, apparently, or ostensibly on behalf of Seller without Seller’s written consent, and Buyer shall not engage in any unfair, disparaging, misleading, or deceptive practices regarding the Goods or Buyer.
- 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.
- Governing Law; Dispute Resolution. This Agreement and all claims or causes of action arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the State of Colorado, USA, including Colorado’s Uniform Commercial Code, without regard to the chosen jurisdiction’s choice-of-law principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any dispute arising under this Agreement shall be resolved through binding arbitration according to the Rules of the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures; provided, however, the Parties shall have the right to invoke self-help remedies (such as set-off), and/or request ancillary or provisional judicial remedies (such as specific performance, injunction, and restraining order), before, during or after any arbitration. Venue for any such ancillary and/or provisional judicial remedy shall reside exclusively in the state or federal courts having jurisdiction in or for Arapahoe County, Colorado, USA. Use of self-help or ancillary and/or provisional judicial remedies shall not operate as a waiver of either Party’s right to compel arbitration. Any ancillary or provisional judicial remedy which would be available from a court at law shall be available from the Arbitrator. The seat or place of arbitration shall be Denver, Colorado, USA. The arbitration shall be conducted and the award shall be rendered in the English language. Except as may be required by law, no Party and no Arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both Parties, except to the extent necessary to protect or pursue a legal right. This Section shall survive the expiration or earlier termination of this Agreement. In the event suit or action is brought to enforce or interpret any of the provisions of this Agreement, or that arise out of or relate to this Agreement, the Parties agree to reimburse the prevailing Party’s reasonable attorney fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled. The determination of who is the prevailing Party and the amount of reasonable attorney fees to be paid to the prevailing Party shall be decided by agreement of the Parties, or, if the Parties cannot reach agreement, then by the Arbitrator.
- Notice. Any notice required or permitted by this Agreement shall be effective if delivered in writing either personally to the party to be notified or deposited in the United States mail, postage prepaid and return receipt requested, addressed to the party at the address set forth in the Sales Confirmation (or to such other address as is specified by the party by like notice).
- Severability. If any part of this Agreement is held to be unenforceable in a court of law, such provision will be severed, and the remainder of this Agreement will remain in full force and effect.
- Amendment. These Terms are subject to Seller’s Terms and Conditions for the Sale of Goods set forth on Seller’s website at https://www.theAgora Terpenes.com/termsandconditions (as modified from time to time, the “Online Terms”). To the extent the Online Terms differ from these Terms, these Terms shall be deemed amended and restated by the Online Terms, which shall be deemed incorporated herein by this reference. Seller shall send a copy of the Online Terms to Buyer upon request. These Terms may be amended in a writing signed by the parties, or unilaterally by Seller modifying the Online Terms. The parties intend to be bound by these Terms as amended in accordance with this Section.
- Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which, taken together, will constitute one and the same agreement. Execution by facsimile, by scanned attachments, or by electronic signature has the same force and effect as an original.
- Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, Sections 7, 8, 9, 11, 13, 16, 17, 19, and
- Intellectual Property. Subject to this Agreement, Seller grants to Buyer a non-exclusive, non-transferable, and non-sublicensable license during the term solely on or in connection with the promotion, advertising, and resale of the Goods in accordance with this Agreement to use all Seller’s copyright(s), trademark(s) and service mark(s) approved by Seller in writing, whether registered or unregistered. On expiration or termination of this Agreement, or upon Seller’s request, Buyer shall promptly discontinue the display or use of any copyright, trademark or service mark, or change the manner in which it is displayed or used with regard to the Goods. Upon expiration or termination of this Agreement, Buyer’s rights under this Section shall cease immediately. Other than the express licenses granted by this Section, Seller grants no right or license to Buyer, by implication, estoppels, or otherwise, to the Goods or any intellectual property rights of Seller.
Sales Tax License. Buyer must provide a copy of its valid, applicable wholesale license or standard retail license (i.e., sales tax license) to Seller prior to each purchase of Goods, otherwise Buyer is responsible for paying all taxes associated with any failure to have and/or provide such license.