This Purchase Agreement (“Agreement”) applies to all Products provided by Full Circle Microbes, Inc. (“Supplier”) to the person or entity purchasing such Products (“Purchaser”), and is effective on the date of Purchaser’s first order for such Products (“Effective Date”).
1. Supply of Products. During the Term, Purchaser may purchase from Supplier the Products identified on Supplier’s website at www.imio.co (the “Site”) (the “Products”). Supplier will use commercially reasonable efforts to accept and fulfill any order for Products that is consistent with the forecast of estimated Product demands provided by Purchaser to Supplier. Purchaser will keep Supplier informed of its estimated Product demands and provide updated forecasts (via e-mail or telephone) throughout the Term. Either party may cancel or reschedule any order as long as production of the ordered Products has not yet started (and in any event no less than 15days prior to the scheduled delivery date).
2. Pricing and Payment. Pricing for Products will be as set forth on the Site (“Prices”). All Prices are exclusive of any taxes and shipping and handling costs, which will be added to the Price in the applicable invoice and payable by Purchaser. Supplier will issue invoices to Purchaser for Products on a monthly or quarterly basis as elected by Purchaser, and Purchaser will pay invoiced amounts within 30 days from the date of invoice unless otherwise agreed by Supplier. All payments will be made in U.S. dollars in accordance with the instructions provided in the invoice.
3. Delivery and Shipping. Supplier will use commercially reasonable efforts to deliver Productsby the requested delivery dates, provided such dates are consistent with manufacturing lead times as currently set forth on the Site. All Products will be delivered to Purchaser’s designated address, and title to and risk of loss of the Products will transfer to Purchaser upon delivery to such address.
4. Inspection and Returns. Purchaser may inspect and reject any Products that do not meet thewarranty in Section 6 within 10 days following delivery (if not so rejected, Products will be deemed accepted). Purchaser must provide Supplier with (a) the specific reasons for any rejection and documentation thereof, and (b) a reasonable opportunity to inspect rejected Products. Purchaser may return Products to Supplier only as authorized by Supplier. If Supplier confirms that Products are defective and that the defect existed at time of delivery (and was not caused by improper storage or use, including use beyond the applicable shelf life, or alteration after delivery), Supplier may, at Supplier’s sole option (and as Purchaser’s sole and exclusive remedy for failure of Products to meet the warranty in Section 6): (i) replace such Products, or (ii) issue a credit to Purchaser for amounts paid for such Products.
5. Purchaser Responsibilities. Purchaser will (a) use the Products only for its internal business purposes, (b) comply with any directions of use or instructions on the label or otherwise issued by Supplier with respect to the use, storage and handling of the Products, and (c) comply with this Agreement and all applicable laws and regulations with respect to use of the Products. Purchaser will not (i) alter, modify, reverse engineer, or resell the Products or (ii) make any false, misleading or deceptive statements about Supplier or the Products. Supplier will be free (without payment or restriction) to use and exploit any feedback or suggestions about the Products that Purchaser may provide.
6. Limited Warranty. Supplier warrants to Purchaser that, at the time of delivery, the Products will comply with the specifications set forth on the Site. Any shelf life set forth therein states the expected remaining useful life of a Product, but does not constitute a warranty. THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7 IS THE SOLE AND EXCLUSIVE WARRANTY MADE BY SUPPLIER, AND SUPPLIER HEREBY EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.
7. Intellectual Property; Confidentiality. As between the parties, Supplier owns all intellectual property rights in and to the Products, and nothing in this Agreement grants to Purchaser any rights or licenses with respect thereto (other than the limited right to use purchased Products as set forth herein). Supplier may disclose to Purchaser information of a confidential or proprietary nature. Purchaser will not use or disclose such information except as needed to perform its obligations and exercise its rights hereunder, or as required by a governmental entity or court order (provided Purchaser notifies Supplier of such requirement). These restrictions will not apply to information that is or becomes generally available to the public without Purchaser’s breach of this Agreement or that Purchaser independently develops. At the end of the Term or onSupplier’s request, Purchaser will return or destroy, at Supplier’s option, any information of Supplier in its possession, except as required to exercise any surviving rights hereunder.
8. Indemnification. Purchaser will defend, indemnify and hold harmless Supplier from and against any and all third party liabilities, claims, actions, lawsuits, proceedings, losses, damages, expenses and costs (including reasonable attorneys’ fees) resulting from or arising out of Purchaser’s (a) breach of this Agreement, (b) use of the Products, or (c) violation of laws and regulations. Supplier will promptly notify Purchaser of any claim for which it seeks to be indemnified under this Section 10, provided that failure to do so will not relieve Purchaser from its obligations hereunder except to the extent it is actually prejudiced thereby. Purchaser may notsettle any such claim without the prior written consent of Supplier. Supplier will have the right to participate in the defense of any such claim with counsel of its own choice and at its own expense.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL SUPPLIER BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND. SUPPLIER’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID BY PURCHASER TO SUPPLIER FOR PRODUCTS HEREUNDER.
10. Term; Termination. This Agreement will remain in effect until the second anniversary of the Effective Date and will automatically renew and continue in effect for successive renewal terms of 1 year each (each such renewal term, together with the initial 2-year term, the “Term”), unless terminated by either party in accordance with this Section 10. Either party may terminate this Agreement if the other party materially breaches any of its obligations hereunder, and fails to cure such breach within 30 days following receipt of notice thereof. In addition, either party may terminate this Agreement for any reason on 60 days’ prior written notice to the other party. Termination of this Agreement will not release either party from any liability which has already accrued. Sections 5-11 will survive expiration or termination of this Agreement.
11. Miscellaneous. This Agreement will be governed by the laws of the State of Delaware and the federal laws of the United States, without regard to the conflicts of laws provisions thereof. Any actions or other proceedings related to this Agreement will be brought in the state or federal courts of the State of Delaware and each party hereby submits to the exclusive jurisdiction of such courts. The relationship of Purchaser and Supplier is that of independent contractors. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Purchaser will not assign its interest in this Agreement without Supplier’s prior written consent. Any notice required by this Agreement will be in writing and may be provided by e-mail or delivered to the addresses set forth on the signature page. This Agreement, including any exhibits, constitutes the entire Agreement between the parties relating to the subject matter hereof. No other terms or conditions which may be found in any purchase order, invoice, confirmation or other similar document will modify, supplement or otherwise vary these terms. Any amendment or modification of these terms must be in writing and signed by the parties. If any provision of this Agreement is judicially determined to be unenforceable or invalid, that provision will be limited or removed to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. The waiver by either party of a breach or default of any provision of this Agreement by the other party will not be construed as a waiver of any other provision. Neither party will be responsible for any failure or delay in performance caused by events beyond such party’s reasonable control. Neither party will use the name, trademark or logo of the other without prior approval. This Agreement may be executed via electronic signature in one or more counterparts, each of which will be deemed an original and will constitute the same instrument. No mobile information will be shared with third parties/affiliates for marketing/promotional purposes. All the above categories exclude text messaging originator opt in data and consent; this information will not be shared with any third parties.