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1. Applicability
These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of goods (“Goods”) by MycoTechnology, Inc. (“Seller”) to the purchaser of such goods (“Buyer”). The accompanying quotation, confirmation of sale, and/or invoice from Seller (“SalesConfirmation”) 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, written or oral, regarding the sale of Goods. Unless Buyer notifies Seller to the contrary within three (3) days after issuance of the Sales Confirmation, Buyer shall be deemed to have accepted these Terms andSeller may rely on this fact in performing. These Terms prevail over any inconsistent, contrary or additional terms related to the Goods in any purchase order or any other document from Buyer (and this shall serve as Seller’s objection under UCC §2-207(2)(c) to any such terms). Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms or conditions nor serve to modify or amend these Terms. These Terms may only be amended or modified in a writing that specifically states that it amends these Terms and is signed by an authorized representative of Seller. Notwithstanding anything herein to the contrary, if a separate written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
2. Quotations and Orders.
Any quotation or proposal made by Seller is subject to satisfactory trade and credit references and shall only remain open for acceptance for thirty days, subject to revision for errors and availability of Goods. An “Order” shall exist upon Seller’s written confirmation, to be given at Seller’s sole discretion, to Buyer of a purchase order to purchaseGoods.
3. Shipping and Delivery.
(a) After receipt of an Order, the Goods will be delivered to Buyer as stated in the SalesConfirmation, subject to availability of the Goods. Any date given by Seller for delivery of Goods is given as an estimate only and shall not constitute a term of any contract between the parties. Delivery shall be made EXW Seller’s designated facility. Seller shall not be liable for any delays, loss or damage in transit. Seller shall also not be liable for any delay in performance due to any cause beyond its reasonable control.
(b) Unless otherwise agreed in writing by the parties, Seller shall arrange for delivery of the Goods to the address specified by Buyer using Seller’s standard methods for packaging and shipping for such Goods and Seller will have discretion in selecting the carrier and broker. Title and risk of loss to Goods passes to Buyer upon delivery of such Goods to Buyer (or Buyer’s carrier) at EXW Seller’s designated facility (the “Delivery Point”). Buyer shall be responsible for all loading costs and shipping costs as well as import and export duties and all other payments and documentation for customs.
(c) 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 Goods shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
4. 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 hereby grants to Seller alien on and security interest in and to all of the right, title and interest ofBuyer 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, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Colorado UniformCommercial Code.
5. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within three (3) days of receipt thereof (“Inspection Period”) and will be deemed to have accepted the Goods unless it notifies Seller in writing during the InspectionPeriod of any Nonconforming Goods and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) 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) issue a credit for such Nonconforming Goods. Buyer shall return the Nonconforming Goods toSeller’s designated facility upon request from Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, the replaced Goods to theDelivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies, and Seller’s entire liability, for the delivery of Nonconforming Goods. Except as provided under Section 5(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.
6. Price.
Buyer shall purchase the Goods from Seller at the price (the “Price”) set forth in the Sales Confirmation. All Prices set forth in quotations are subject to change by Seller. 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 and Buyer shall be responsible for all such charges, duties and taxes.
7. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice. Buyer shall make all payments hereunder in US dollars and in accordance with the invoice.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% 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, attorneys’ 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 and such failure continues for five (5) days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.
8. Limited Warranty.
(a) Seller warrants to Buyer that the Goods will materially conform to Seller’s published specifications for such Goods for a period of the published shelf life for suchGoods (“Warranty Period”), provided that Buyer has continually stored and maintained the Goods in a sterile environment under cool, dry conditions and in food grade packaging.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS. SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Seller shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Buyer receives written notice of the defect, reasonably described, to Seller within three (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 such Goods and Buyer (if requested to do so by Seller) returns such 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.
(d) Seller shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, use or maintenance of the Goods; or (iii) Buyer alters suchGoods without the prior written consent of Seller.
(e) Subject to Section 8(c)and Section 8(d) above, with respect to any such defective Goods during theWarranty Period, Seller shall, in its sole discretion, either: (i) replace suchGoods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, atSeller’s expense, return such Goods to Seller.
(f) THE REMEDIES SET FORTH IN SECTION 8(e) 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).
9. Limitation of Liability.
(a) INNO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OFUSE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT,TORT(INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OFITS ESSENTIAL PURPOSE.
(b) INNO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER IN THE PAST TWELVE MONTHS FOR THE GOODS SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 9(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct resulting in death or bodily injury.
10. 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 thisAgreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer shall be deemed to have full knowledge of the nature of the Goods and has sole responsibility to obtain any permissions, consents, or licenses which may be necessary for the use, possession, or sale of the Goods or products which include the Goods.
11. 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.
12. IntellectualProperty Rights.
Buyer acknowledges and agrees that Seller retains all intellectual property rights in the Goods and nothing herein grants a license, assignment or other transfer of any such rights to Buyer. Buyer specifically agrees that it will not, directly or indirectly, analyze any of the Goods for chemical composition or structure, modify, reverse engineer, disassemble, or design around any of the Goods.
13. Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
14. NoThird-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.
15. Governing Law; Venue.
These Terms shall be governed by and interpreted in accordance with the substantive (and not conflicts) laws of theState of Colorado. Any cause of action arising hereunder or related in any way hereto shall be brought only in the federal or state courts in Denver, Colorado and Buyer hereby submits to the exclusive jurisdiction of such courts.
16. Severability.
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.
17. Force Majeure.
Seller shall not be liable for any delay in or impairment of performance resulting in whole or in part from fire, floods or other catastrophes, acts of God, severe weather conditions; strikes, lockouts or labor disruption; wars, riots, embargo delays, raw material market conditions, the inability to procure supplies or raw materials; or shortages of transportation equipment, fuel or labor; or any other circumstance or cause beyond its reasonable control.
