SUPPLY AND DISTRIBUTION AGREEMENT
Exhibit 10.1
This
Joint Development, Supply and Distribution Agreement
(“Agreement”) is
entered into as of November 14, 2019 (the “Effective Date”) by and between
Ceed2Med, LLC, a Florida limited liability company, located at 000
Xxxxxxxx Xxxx, Xxxxxxx Xxxxx, XX 00000 (“Ceed2Med”), and EXACTUS, INC., a
Nevada corporation, located at 00 XX 0xx Xxx, Xxxxxx Xxxxx, XX
00000 (“Exactus”).
WHEREAS, Exactus is a producer of
Industrial Hemp Floral Biomass (“Flower”);
WHEREAS, Ceed2Med is in the business of
distributing Flower and has substantial experience in selling,
marketing and distribution of Flower; and
WHEREAS, Ceed2Med is desirous of
purchasing Flower from the Exactus and the Exactus is desirous of
selling the Flower to the Ceed2Med; and
WHEREAS, the parties desire to enter
into this Supply Agreement to enumerate certain terms and
conditions as set forth herein.
NOW THEREFORE, in consideration of the
foregoing, the parties agree as follows:
1. Recitals.
The Recitals are incorporated herein by reference.
2.
Purchase and fulfillment
.2.1 Pricing.
The initial price for Flower to be charged to Ceed2Med shall, at
all times during the Term, be as set forth in Exhibit 1 (the
“Purchase
Price”).
2.2 Ceed2Med
shall pay all Purchase Price within 30 days of receipt of the
Flower from the Exactus; provided however that for that portion of
the Purchase Price which is based upon 50% of the gross sales price
invoiced by Ceed2Med upon re-sale, that balance shall be paid to
Exactus within 30 days of the date of Ceed2Med’s re-sale as
determined by the invoice date on Ceed2Med’s re-sale
invoice.
2.3 If
any payment to be made hereunder is not made on or before the date
such payment is due, the Party which is liable for such payment
shall also pay interest on such late payment, from the date such
payment was due through the date such payment is made at a rate of
interest per annum equal to 18% of the unpaid amount. Any overdue
amount or delivery may be set off against any other required
delivery or payment under this Agreement.
2.4 Each
Party will be responsible for the payment of and will pay any
applicable taxes, duties and levies levied on that Party from time
to time in relation to this Agreement. Each Party will charge,
collect and timely remit all taxes that it is required to collect
and remit under Applicable Law in connection with this
Agreement.
2.5 Minimum
Quantity. Ceed2Med shall
purchase a minimum of 10,000 lbs of 2019 Crop harvest of Flower,
untrimmed dry industrial hemp flower in 150 lb humidity-controlled
totes, FOB at Exactus One World Farms in Cave Junction, OR
(“Minimum
Order”).
2.6 Forecasts.
Ceed2Med may provide Exactus with a non-binding, rolling
12 month forecast or blanket purchase order for the estimated
quantities of Flower that Ceed2Med anticipates purchasing
(“Forecast”) in
order to ensure an uninterrupted supply to meet the demand
schedule, attached hereto as Exhibit A (the “Demand Schedule”). Any Forecast
provided by Ceed2Med shall be clearly labeled with the word
“FORECAST” or
any other similar terms that identify the document as a Forecast
instead of a firm purchase commitment. Exactus agrees to work with
Ceed2Med to meet the Demand Schedule and to accommodate
fluctuations in the Forecast. The Forecasts shall represent
reasonable estimates for planning purposes only and will not
obligate Ceed2Med in any way. However, if at any time Ceed2Med is
aware of a change or a short fall in the Forecast or the Demand
Schedule, it will immediately notify the Exactus in writing of such
deviation, and provide an updated Demand Schedule. The parties
acknowledge that any such Forecast shall be considered as a
non-binding purchase commitment unless otherwise specified in such
Forecast or blanket purchase order. If Ceed2Med requests a quantity
of a Flower in excess of the forecasted quantity reflected on the
Demand Schedule (“Additional
Amounts”), Exactus shall use commercially reasonable
efforts to accommodate such request. If such Additional Amounts
require additional fees, Exactus shall promptly advise the Ceed2Med
of any and all anticipated additional fees (including labor
overtime, material expedite fees and/or expedite shipping fees) for
Ceed2Med’s consideration and written approval. Upon written
approval by Ceed2Med, Exactus shall proceed to accommodate
Ceed2Med’s request, and the approved additional fees shall be
itemized as a separate line item on the Exactus’
invoice.
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2.7 Purchase
Orders. Exactus shall
deliver Flower in accordance with the quantities, delivery dates,
and delivery location specified in written and signed purchase
orders delivered by Ceed2Med (“Purchase Orders”). Each Purchase
Order will specify: (i) the name and quantity ordered; and (ii) the
billing ship-to addresses; (iii) the unit or aggregate price;
(iv) the required delivery dates; and (v) any special
instructions, requirements, or any other required specifications
(the “Specifications”). Exactus shall
have no obligation to supply any quantities of Flower other than
the Minimum Order, but may in Exactus’s sole discretion
supply Flower to Ceed2Med in excess of the Minimum Order. Exactus
shall use commercially reasonable efforts to deliver Flower to
Ceed2Med based upon the delivery dates set forth in any Purchase
Order. Ceed2Med shall have the right to cancel any unshipped
portion of a Purchase Order, in whole or in part, at any time until
shipment, in which event Ceed2Med shall be liable to Exactus for
the actual amount of Exactus’s reasonable costs incurred in
contemplation of performance of the canceled portion. No change in
the Specifications shall be made by the other party except with
prior written approval of the party providing the Specification.
Any changes that affect form, fit or function of the Flower will be
reflected in updated Purchase Orders. Exactus shall not ship any
Flower that have had such changes made until new Purchase Orders
have been issued.
2.8 Packing
and Shipping: All Flower shall
be delivered in bulk, shucked and bucked, untrimmed, in stackable
pallet-sized totes, marked and otherwise prepared in accordance
with good commercial practices and any specifications noted on the
Purchase Order. Upon Ceed2Med’s written request which may be
included in the Purchase Order, the Exactus will include a material
safety data sheet (MSDS) and/or certificate of analysis with each
shipment.
2.9 Risk
of Loss: Risk of loss and
damage to the Flower shall remain with the Exactus until delivery
to Ceed2Med, FOB Ceed2Med’s designated location. The risk of
loss shall pass to Ceed2Med upon delivery of the Flower to Ceed2Med
at Ceed2Med’s designated location.
2.10 Failure
to Purchase Minimum Order. If, without
excuse either by law, an express agreement in writing by both
parties, or expressly hereunder, Ceed2Med fails to purchase the
Minimum Order from the Exactus and Exactus is ready, willing, and
able to tender the Flower, then Ceed2Med shall nonetheless be
liable for the entire contract amount.
2.11 Failure
to Supply. Subject to
Paragraph 3, if Exactus shall refuse or be unable, or reasonably
anticipates being unable to deliver any part or all of a Purchase
Order, Exactus shall verbally notify Ceed2Med of such refusal or
inability at the earliest possible time and immediately confirm
such notification in writing. Such notification shall not be deemed
to operate as a release of Exactus from its obligations under a
Purchase Order, Ceed2Med shall have the right to replace, modify
and/or cancel any delayed open Purchase Orders free from liability
to Exactus. If Exactus is able to supply some but not all of a
Purchase Order, then Exactus shall supply such partial quantities,
and shall Exactus use commercially reasonable efforts to source the
remaining amounts of Flower from third parties to be delivered to
Ceed2Med, provided such Flower conforms to the Ceed2Med’s
Specifications. If Exactus is unable to provide any replacement
Flower then Ceed2Med may, in its sole discretion, may source the
supply of Flower from a third party but only to the extent of
fulfilling the Purchase Order for which Exactus was unable to meet
the Purchase Order requirements. In such event, this Agreement
shall remain in full force and effect and the Exactus shall not be
liable to the Ceed2Med for any additional costs, damages or fees of
any kind in connection with the Ceed2Med seeking an alternative
source of supply.
3. Quality
Control.
3.1 Raw
Materials. Exactus agrees to
maintain all documentation/records regarding its procurement of all
raw materials (“Materials”) for a period of 5
years. Exactus shall not amend, change or supplement any of the
following without Ceed2Med’s prior written consent:
(i) the Specifications; (ii) the Materials; or (iii) the
process for manufacturing the Flower. Any change in any of the
foregoing shall, in each case, comply with all applicable laws,
regulations and agency requirements. In the event that Exactus
desires to change any of the foregoing, Exactus agrees to
immediately notify Ceed2Med of such change in writing, and if
Ceed2Med agrees to such change, Exactus shall be responsible, at
its sole expense, for ensuring that all Flower manufactured
following such change strictly conform to the change in
Specifications, Materials or the manufacturing
process.
3.2 Inspection.
All Flower shall be received subject to Ceed2Med’s right of
inspection and rejection within 7 calendar days of receipt of the
Flower. Defective Flower or Flower not in strict conformance with a
Purchase Order or Exactus’s specifications, will be returned,
at Exactus’s expense. Ceed2Med may, by written notice to
Exactus, and without limiting any other remedies available to
Ceed2Med under applicable law, demand replacement or correction of
rejected Flower. If Exactus does not receive such written
instructions within 45 days of Ceed2Med’s request therefore,
Ceed2Med may, without liability or any financial obligation to
Exactus, sell, transfer or otherwise legally dispose of the Flower,
in any way that Ceed2Med deems appropriate. Payment for Flower on a
Purchase Order prior to inspection shall not constitute acceptance
thereof or a waiver of a breach of warranty and is without
prejudice to any claim(s) of Ceed2Med. Exactus shall inspect all
Flower prior to shipment to ensure conformance with all
Specifications and requirements of a Purchase Order.
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3.3 Performance
& Savings Reviews. The parties shall
conduct regular meetings in person at a mutually convenient
location or via video conferencing means to discuss and review the
following: (i) delivery, service and quality performance
evaluation; (ii) continuous improvement goals and objectives; (iii)
market conditions and forecasts; (iv) future budgeting; and (v)
business growth opportunities.
3.4 Records.
Exactus shall provide Ceed2Med with complete and accurate copies of
any quality control documents maintained by Exactus for the
Materials, upon Ceed2Med’s written request. This will include
full product documentation including legal farming origin, ODA
compliance tests, full panel COAs proving potency and no presence
of chemicals, pesticides, heavy metals, bacteria, mold or
toxins.
3.5 Exactus
Audit Right. Ceed2Med is to
keep, full, true and accurate books of account containing all
particulars that may be necessary for the purpose of calculating
payments to be made pursuant to Exactus. Such books of account
shall be kept at or accessible from Ceed2Med’s principal
place of business. Exactus shall have the right, at its own
expense, to perform an audit of such books and records of Ceed2Med,
but solely for the purpose of verifying the sales calculations
described above. The auditable information attributable to any
particular period may only be audited once for such
period.
3.6 Ceed2Med
Audit Right. Exactus will
maintain and retain accurate records of production, shipment,
testing, recalls, quarantines, regulatory holds, rejections, and
quality records for Flower as well as other records required to be
kept under applicable local, state and federal law or as may be
requested by Ceed2Med (collectively, “Records”); provided, that, in no
event will the retention period for any such Records be less than
four (4) years. Exactus will permit Ceed2Med’s employees or
representatives to have reasonable access to the Records for audit
purposes. Such examination will be conducted during Exactus’s
normal business hours (unless Product safety is at issue, in which
case, such examination may be conducted at any time) and in such a
manner as to reasonably minimize disruption to Exactus’s
business. Exactus will cooperate in good faith with Ceed2Med during
any audit or inspection. In addition to any on-site evaluation,
Exactus will make copies of all Records available to Ceed2Med no
later than 10 days after Ceed2Med’s request for the
same.
3.7 Conduct
of Audit. Upon reasonable
notice, such audit shall be conducted during regular business hours
in such a manner as to not unnecessarily interfere with normal
business activities. Such audit shall not be performed more
frequently than once per calendar year.
4. Force
Majeure.
4.1 For
the purposes of this Agreement, Force Majeure Event means any event
arising after this Agreement has been executed that is
unpredictable, beyond the Parties’ reasonable control and
that objectively prevents one or both of the Parties from
performing their respective obligations, including, but not limited
to, war, insurrection, civil disturbance, interruption of
transportation or communication services, major change to
agricultural law or policy in the United States or in any State in
which Flower is grown or through which Flower is transported to the
Delivery Location, blockade, embargo, strike or other labor
conflict, riot, epidemic, earthquake, storm, drought, fire, flood,
or other exceptionally adverse weather conditions, explosion,
lightning, or act of terrorism.
4.2 As
soon as reasonably practicable after occurrence of a Force Majeure
Event, a Party that is prevented, hindered, or delayed in or from
performing any of its respective obligations under this Agreement
by a Force Majeure Event (the “Affected Party”) shall notify the
other Party in writing of such Force Majeure Event, the date on
which such Force Majeure Event began, its likely or potential
duration, and the effect of the Force Majeure Event on the ability
of the Affected Party to perform any of its obligations under this
Agreement. The Affected Party shall also at such time provide the
other Party with documentation or any other available corroboration
of such Force Majeure Event.
4.3 The
Affected Party shall use all reasonable effort to mitigate the
effect of the Force Majeure Event on the performance of its
obligations under this Agreement. Provided that the Affected Party
has complied with the provisions of this Section 3.3., the Affected
Party shall not be in breach of this Agreement or otherwise liable
for any failure or delay in the performance of such obligations.
Such obligations shall be suspended during continuance of such
Force Majeure Event, and no damages or penalties for delay in
performance shall be due.
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4.4 If
an obligation is suspended by reason of Force Majeure for more than
thirty (30) calendar days from the date that the Affected
Party gives notice of such Force Majeure Event, the other Party may
in its discretion terminate this Agreement and the Parties shall
enter into good faith negotiations in an attempt to enter into a
new agreement for the purchase and sale of Hemp.
5. Representations
and Warranties.
Each
Party hereby represents and warrants to the other Party that at the
date of signing this Agreement the following representations and
warranties are true and correct in all material
respects:
5.1 Organization;
Status; Formation and Organization Documents. Such Party is
duly formed and organized and validly subsisting under the laws of
its respective jurisdiction of incorporation and is qualified to do
business in the Province of Ontario and has all requisite corporate
power and authority to execute, deliver and perform its obligations
under this Agreement.
5.2 No
Conflicts. The execution and
delivery of this Agreement, the performance by the Party of its
obligations hereunder and the consummation of the transactions
contemplated by this Agreement do not and will not conflict with,
or result (with or without notice or the lapse of time) in a breach
or violation of, or constitute a default under, any of the terms or
provisions of indenture, mortgage, charter instrument, bylaw or
other agreement or instrument to which it is a party or by which it
may be bound, nor will any consents or authorizations of any party
other than those hereto be required.
5.3 Enforceability.
This Agreement has been duly executed and delivered by such Party
and is a valid and binding obligation of such Party enforceable
against it, in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency or other laws of
general application affecting the enforcement of creditors’
rights and subject to the qualification that specific performance
and injunction, being equitable remedies, may only be granted in
the discretion of a court of competent jurisdiction.
5.4 Ceed2Med
Covenants:
5.4.1 Ceed2Med
represents that it has obtained all necessary licenses necessary to
perform its obligations as required hereunder.
5.4.2 Ceed2Med
agrees to enter into a Sublease on Exactus’s premises to
operate Ceed2Med’s distribution operating on terms and
conditions to be set forth in a Sublease agreement.
5.4.3 Ceed2Med
agrees to perform all tasks as set forth below to the full
satisfaction of Exactus, as determined by Exactus in its sole
discretion:
5.4.3.1 Fully
trim, grade, and sort Flower and byproducts of trimming
process;
5.4.3.2 Test
and document batched to full compliance;
5.4.3.3 Carry
any and all legal responsibilities of the logistics, processing,
sales and claims associated with the products;
5.4.3.4 Fraction
and package the Flower and byproducts in sealed
containers;
5.4.3.5 Store
all Flower and byproducts in a controlled environment;
5.4.3.6 Provide
full visibility of inventories and sales records;
5.4.3.7 Advertise,
market and sell Flower and byproducts;
5.4.3.8 Compensate
sales and marketing efforts; and
5.4.3.9 Carry
all costs of shipping and fulfillment to its
customers.
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5.5 Exactus’s
Representations and Warranties. Exactus
represents and warrants to Ceed2Med as follows:
5.5.1 Exactus
shall deliver to Ceed2Med good and merchantable title to the
Flower.
5.5.2 Exactus
represents that it has obtained all necessary licenses necessary to
make the deliveries required hereunder. It is Exactus’s sole
responsibility to obtain all necessary permits required to
effectuate the terms and conditions of this Agreement.
5.5.3 The
representations, warranties and indemnities contained herein will
survive the termination of this Agreement.
6. Term;
Termination.
The
term of the contract is for one (1) year (the “Initial Term”). Without prejudice to the
above, this Agreement can at any time be terminated (i) by either
party in case of a material breach of this Agreement, upon written
notice by the non-defaulting party to the breaching party providing
specific description of any such breach and then providing the
breaching party with a 30 period to cure; (ii) upon mutual
agreement of the parties; (iii) automatically at the end of the
Term, unless renewed by each party.
7. Confidential
Information. The terms of this
Agreement and any information or items marked confidential or
identified as confidential by written notice to the receiving Party
under or relating to this Agreement, including but not limited to
information concerning the information related to either party such
the business, formulas, pricing, financial information, research
data, sales and marketing information, customer lists, Exactus
lists, Ceed2Med’s Specifications, the Purchase Orders, the
Forecast, the reports and any financial or manufacturing and
technical information provided by the Exactus to the Ceed2Med shall
be treated as confidential information (“Confidential Information”). The
receiving Party hereby undertakes (i) to hold and keep in
confidence any and all such Confidential Information and not to
disclose the Confidential Information or any part thereof to any
third party except to only such of their directors, officers,
employees and advisers (collectively, “Representatives” and each a
“Representative”) whose duties
require them to possess or consider the Confidential Information
and strictly on a “need to know” basis; and who shall
prior to such disclosure agree to keep such information
confidential and be bound by this Agreement; (ii) to use the same
degree of precaution as it would use to protect its own
confidential information of like importance but in no event less
than reasonable care; (iii) not to use the Confidential
Information, in whole or in part, for any purpose other than to
complete the obligations under this Agreement; and (iv) not to use
the Confidential Information in a manner directly or indirectly
causing damages to the other party or use the Confidential
Information to gain commercial benefit to itself. Provided,
however, that Confidential Information shall not include
information that (i) is already in, or subsequently comes into, the
public domain other than through a violation of this Agreement,
(ii) is received by the non-disclosing Party on a
non-confidential basis from a source which is not prohibited from
disclosing such information pursuant to any legal, contractual or
fiduciary obligation to the disclosing Party, (iii) was already
known by the receiving Party, as established by written
documentation only, at the time of receipt from the disclosing
Party, or (iv) is independently developed or (v) ordered to be
disclosed by a competent court or a regulatory or public body. In
such event, the receiving Party shall, where permitted under the
relevant jurisdiction, immediately inform the disclosing Party so
that the disclosing Party is given the opportunity to object to
such disclosure in due time. Should any such objection by the
disclosing Party be unsuccessful or should the disclosing Party
decide not to object to any such disclosure, the receiving Party or
its Representative so obligated or requested to disclose the
Confidential Information may disclose only such Confidential
Information to the extent required by the relevant court order or
governmental or regulatory authority. Upon the expiration or early
termination of this Agreement, each party shall return or destroy,
and certify to such destruction of, all confidential information of
the other Party. The covenants contained in this Section shall
survive the termination of this Agreement regardless of the cause
of the termination.
EXCLUSION OF CERTAIN DAMAGES. EXCEPT FOR
ANY BREACH OF SECTION 7 (CONFIDENTIALITY) OR ANY OBLIGATIONS
ARISING UNDER SECTION 8 (INDEMNITY), IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER
CAUSED, ON ANY THEORY OF LIABILITY, AND REGARDLESS OF WHETHER SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS
LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY
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8. Indemnification.
8.1 Ceed2Med
agrees to indemnify, defend, and hold harmless Exactus,
Exactus’s affiliates, and their respective owners, directors,
officers, employees, agents, successors, and assignees (the
“Company Indemnified
Parties”) against any and all losses, liabilities,
damages, costs and expenses, including reasonable legal fees and
disbursements, and to reimburse any one or more of the Company
Indemnified Parties for, all third-party claims and any other
obligations and Damages, as defined below, directly or indirectly
arising out of: (1) the activities of Ceed2Med or any of
Ceed2Med’s owners, agents, personnel or employees including
any breach or alleged breach by Ceed2Med, its affiliates or its
(“Ceed2Med
Indemnitors”) respective officers, directors,
employees, or representatives of any representation, warranty
and/or covenant of Ceed2Med Indemnitors under this Agreement; (2)
the business Ceed2Med conducts under this Agreement including any
activities arising from the Farm Related Services performed by
Ceed2Med or Ceed2Med Indemnitors; (3) any action taken by Ceed2Med
or any of Ceed2Med’s owners, agents, personnel or employees
that: (i) violates any Applicable Law or fails to comply with good
production practices and good manufacturing practices as may be
described in Applicable Laws; or (ii) violates a Exactus rule,
policy or procedure; (4) products Ceed2Med distributes in addition
to the Flower, byproducts or residual materials purchased from
Exactus; or (5) any negligence or willful misconduct by
Ceed2Med, or the Ceed2Med Indemnitors. For purposes of this
provision, Applicable Law shall mean i) any domestic or applicable
foreign statute, law (including the common and civil law and
equity), constitution, code, ordinance, rule, regulation,
restriction, regulatory policy or guideline having the force of
law, by-law (zoning or otherwise) or order, (ii) any consent,
exemption, approval or licence of any Governmental Authority, and
(iii) any policy, practice, guidance document or guideline of, or
contract with, any Governmental Authority. “Governmental Authority” means (i)
any court, judicial body, tribunal or arbitral body, (ii) any
domestic or foreign government whether multinational, national,
federal, provincial, territorial, state, municipal or local and any
governmental agency, governmental authority, governmental tribunal
or governmental commission of any kind whatever, including USDA,
DEA, tribal, any state or local government, (iii) any subdivision
or authority of any of the foregoing, (iv) any quasi-governmental
or private body exercising any regulatory, expropriation or taxing
authority under or for the account of any of the above, (v) any
supranational or regional body such as the World Trade
Organization, and (vi) any stock exchange.
8.2 For
purposes of this indemnification, “claims” and Damages
above include all obligations, damages (actual, consequential, or
otherwise), and costs that any Indemnified Party reasonably incurs
in defending any claim against it, including, without limitation,
reasonable accountants’, arbitrators’,
attorneys’, and expert witness fees, costs of investigation
and proof of facts, court costs, travel and living expenses, and
other expenses of litigation, arbitration, or alternative dispute
resolution, whether or not litigation, arbitration, or alternative
dispute resolution is commenced. Each Indemnified Party may defend
any claim against it at indemnitee’s expense and agree to
settlements or take any other reasonable remedial, corrective, or
other actions. This indemnity continues in full force and effect
after and notwithstanding this Agreement’s expiration or
termination.
9. Purchase
Option. During the Term
of this Agreement, Exactus shall have the option to purchase the
distribution operations of Ceed2Med, including but not limited to
its Warehouse operations, trimming, packaging, manufacturing and
any and all ancillary operations related thereto (the
“Distribution
Assets”) at a purchase price equal to the fair market
value of the Distribution Assets as determined by an independent
appraiser mutually selected by the Ceed2Med and Exactus and based
upon a valuation as of the date coincident to Exactus’s
written notice to Ceed2Med of its desire to exercise the purchase
option hereunder.
10. Insurance.
Each Party will (i) at all times during the Term and continuing for
a period of two (2) years after the date of any expiration or
termination of this Agreement, maintain in full force and effect,
for the benefit of itself and the other Party, commercial general
liability insurance which is sufficient to adequately protect
against the risks associated with its ongoing business, including
the risks which might possibly arise in connection with the
transactions contemplated by this Agreement and in any event, will
maintain product liability insurance in an amount not less than
$5,000,000 dollars for each occurrence and in the aggregate (it
being understood that either Party may self-insure a portion of
such coverage as may be commercially reasonable and furnishes
adequate protection as described above), and (ii) use its
commercially reasonable efforts to cause its insurer of such policy
to provide that policy cannot be terminated or canceled without
giving the other Party thirty (30) days prior written notice.
During the Term, each Party’s insurance policy will name the
other Party as an additional insured. Upon request by the other
Party from time to time but not more often than once annually, each
Party shall furnish the other with a certificate of insurance
evidencing that such insurance coverage is in force.
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11. Miscellaneous.
11.1 Assignment
and Relationship of the Parties. The Parties may
not assign or subcontract this Agreement to a third party unless
both parties have agreed to such assignment or subcontracting in a
writing signed by an authorized representative. Ceed2Med may not
subcontract any of its obligations under this Agreement without
Exactus’s prior written approval. The parties are acting in
performance of this Agreement as independent contractors. Neither
Party shall have the power or authority to bind or obligate the
other Party.
11.2 Entire
Agreement; Severability. This Agreement
and the Exhibits attached hereto and made a part hereof constitute
the entire understanding of the Parties with respect to the subject
matter hereof, superseding any and all previous understandings,
contracts and agreements, written and oral This Agreement may only
be waived, modified, or amended in a writing signed by the Parties.
The terms of this Agreement shall prevail over the terms of any
other documents or agreement between the parties, including without
limitation, any pre-printed terms in Exactus’s invoices or
the Purchase Orders or other product documentation. If any portion
of this Agreement is held to be unenforceable, the unenforceable
portion must be construed as nearly as possible to reflect the
original intent of the Parties, the remaining portions remain in
full force and effect, and the unenforceable portion remains
enforceable in all other contexts and jurisdictions.
11.3 Notices.
Unless otherwise specified herein, all notices under this Agreement
shall be in writing, and shall be effective when sent by fax,
electronic mail or Certified Mail, postage prepaid via a reputable
courier company, to the Parties’ address as first written
above. Each Party may change its address which will be notified in
writing to the other Party.
11.4 No
Waiver. Any waiver by
either Party of a breach of any provision of this Agreement will
not operate as or be construed to be a waiver of any other breach
of that or any other provision of this Agreement. Any waiver must
be in writing. Failure by either Party to insist upon strict
adherence to any provision of this Agreement on one or more
occasions will not deprive such Party of the right to insist upon
strict adherence to that or any other provision of this Agreement.
No remedy herein provided shall be deemed exclusive of any other
remedy allowed by law or in equity.
11.5 Applicable
Law. For purposes of this Agreement, means all local, state,
provincial and national regulations, rules, restrictions, laws,
by-laws, codes, norms, regulatory policies, guidelines, orders,
permits, and certification requirements and standards that apply or
may apply to the Parties for their respective activities
contemplated under this Agreement, which may include, but is not
limited to, the United States Agricultural Improvement Act of 2018
and the Cannabis Act (Canada).
12. Intellectual
Property. Solely for the
duration of the Term of this Agreement, Exactus hereby grants a
non-exclusive, non-sublicensable, non-transferable perpetual, no
royalty license to use any and all trademarks, logos or other
intellectual property in connection with Exactus’s
Flower.
13. Exactus’s
IP. All intellectual
property rights arising from or in relation to the Flower, its
manufacture or production, and any other property furnished to
Ceed2Med by Exactus, shall be (i) the property of the Exactus, and
(ii) can only be used within the scope of the license provided by
Exactus to Ceed2Med under the terms of this Agreement.
14. Governing
Law and Venue. This Agreement,
the entire relationship between Ceed2Med and Exactus, and any
litigation or other legal proceeding between the parties shall be
governed by and construed in accordance with the laws of the State
of Florida, without giving effect to its choice of law rules. Any
lawsuits or other proceedings arising out of this Agreement shall
be brought in the state or federal courts located in Palm Beach
County, Florida.
15. Modification.
Except as otherwise provided in this document, this Agreement may
be modified, superseded, or voided only upon the written and signed
agreement of the parties. Further, the physical destruction or loss
of this document shall not be construed as a modification or
termination of this Agreement.
16. Rules
of Construction. The parties
acknowledge that each party has read and negotiated the language
used in this Agreement. The parties agree that, because all parties
participated in negotiating and drafting this Agreement, no rule of
construction shall apply to this Agreement which construes
ambiguous language in favor of or against any party by reason of
that party’s role in drafting this Agreement. Headings. The
headings in this Agreement are included for ease of reference only
and shall not control or affect the meaning or construction of the
provisions of this Agreement.
17. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which when so executed shall constitute an original but all of
which when taken together shall constitute but one Agreement. This
Agreement shall become effective when it has been executed by both
of the Parties. Delivery of an executed signature page of this
Agreement by facsimile transmission or by electronic messaging
system shall be effective as delivery of a manually executed
counterpart hereof.
-7-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be
signed by their duly authorized officers on the Effective
Date.
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EXACTUS:
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By:
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/s/ Xxxxxxxx
Xxxx
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Xxxxxxxx Xxxx,
CEO
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CEED2MED:
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Ceed2Med,
LLC
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By:
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/s/ Xxxxxxxxx
Xxxxxxxxx
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Xxxxxxxxx
Xxxxxxxxx, Manager
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-8-
EXHIBIT 1
Flower
Pricing
Flower pricing:
Ceed2Med
will purchase the Flower at a price of $100 per lb PLUS 50% of the
gross sales price invoiced by Ceed2Med in connection with its
resale of Flower to the extent such gross sales price is in excess
of $150 per lb.
Pricing on Residual Materials (stock, stem, shake, and/or
trim):
Ceed2Med
will purchase the Residual Material at a price equal to 50% of the
gross sales price received by Ceed2Med in connection with its
resale of Residual Material.
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