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Terms of Service to the Tolling Supply Agreement

Effective Date: November 22nd, 2022

Last Updated: November 22nd, 2022

Terms of Service to the Tolling Supply Agreement

These Terms of Service (“Terms”) are entered into by and between True Terpenes, Inc. (“True Terpenes”) and you (“Client”) (each, a “Party,” and collectively, the “Parties”) and constitute a binding contract between the Parties. These Terms govern, and are incorporated by reference into, the Parties’ Tolling Manufacturing and Supply Agreement (“Supply Agreement”). True Terpenes may, in its sole discretion, update and modify these Terms upon written notice to you. Your continued use of True Terpenes’s services and/or your continued purchase of any True Terpenes Goods after the date upon which you have been notified of a change to these Terms constitutes your: (i) acceptance of the updated Terms; and (ii) and confirmation that you have read, understand and agree to be bound by them. Unless otherwise provided herein, all capitalized terms in these Terms shall have the meaning given to them in the Supply Agreement.

  1. Certain Obligations of Client.
      • Certain Prohibited Acts. Notwithstanding anything to the contrary in the Supply Agreement, neither Client nor any Client Personnel shall:
        • make any representations, warranties, guarantees, indemnities, similar claims or other commitments: (i) actually, apparently or ostensibly on behalf of True Terpenes, or (ii) to any customer or other Person with respect to the Goods, which are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims or other commitments in the Supply Agreement or any written documentation provided by True Terpenes to Client; and/or (iii) engage in any unfair, competitive, misleading or deceptive practices respecting True Terpenes, True Terpenes’ Trademarks or the Goods, including any product disparagement.
      • Credit Risk on Resale of the Goods to Customers. Client shall be responsible for all credit risks with respect to, and for collecting payment for, all products (including Goods) sold to its customers or other third parties, whether or not Client has made full payment to True Terpenes for such products. The inability of Client to collect the purchase price for any product shall not affect Client's obligation to pay True Terpenes for any Goods.
  1. Limitation of Liability.
      • IN NO EVENT SHALL TRUE TERPENES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THE SUPPLY AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT TRUE TERPENES WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL TRUE TERPENES'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SUPPLY AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO TRUE TERPENES PURSUANT TO THE SUPPLY AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
      • WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY TRUE TERPENES, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS.
  1. Compliance with Law. Client shall comply with all Laws applicable to the Supply Agreement, Client's performance of its obligations hereunder and Client's use or sale of the Goods. Without limiting the generality of the foregoing, Client shall: (a) at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the purchase, use, or resale of the Goods; and (b) not engage in any activity or transaction involving the Goods, by way of resale, lease, shipment, use or otherwise, that violates any Law.
  1. Indemnification.
    • Client Indemnification. Subject to the terms and conditions of the Supply Agreement, including those set forth in Section 4.2 herein, Client (as "Indemnifying Party") shall indemnify, defend and hold harmless True Terpenes and its Representatives/officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees, the costs of enforcing any right to indemnification under the Supply Agreement, and the cost of pursuing any investigatory services and/or insurance providers, (collectively, "Claim"), relating to or resulting from any third-party Claim or any direct Claim alleging:
      • a breach or non-fulfillment of any representation, warranty or covenant of the Supply Agreement by Indemnifying Party or Indemnifying Party's Personnel;
      • any negligent or more culpable act or omission of Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of the Supply Agreement;
      • any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or negligent acts or omissions of Indemnifying Party or its Personnel; or
      • any failure by Indemnifying Party or its Personnel to comply with any applicable Laws.
    • Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in the Supply Agreement, an Indemnifying Party is not obligated to indemnify or defend (if applicable) an Indemnified Party against any Claim if such Claim or corresponding losses arise out of or result from the Indemnified Party's or its Personnel's:
      • gross negligence or more culpable act or omission (including recklessness or willful misconduct); or
      • bad faith failure to materially comply with any of its obligations set forth in the Supply Agreement.
    • True Terpenes Intellectual Property Indemnification. Subject to the terms and conditions of the Supply Agreement, including Sections 4.4 and 7 herein, True Terpenes shall indemnify, defend and hold harmless Client and its Representatives (collectively, the "Client Indemnified Parties") from and against all losses arising out of any Claim of a third party alleging that any of the Goods infringe any Intellectual Property Right of a third party, provided that such indemnification shall not extend to any Claim alleging that Client Ingredients (or the Goods, because of their embodiment of Client Ingredients), infringe upon the Intellectual Property Rights of a third party. If the Goods, or any part of the Goods, becomes, or in True Terpenes’ opinion is likely to become, subject to a third-party Claim that qualifies for intellectual property indemnification coverage under this Section 4.3, True Terpenes shall, at its sole option and expense, notify Client in writing to cease using all or a part of the Goods, in which case Client shall immediately cease all such use of such Goods on receipt of True Terpenes’ Notice.
    • Exceptions to True Terpenes’ Intellectual Property Indemnification. Notwithstanding anything to the contrary in the Supply Agreement, True Terpenes is not obligated to indemnify or defend any Client Indemnified Party against any Claim under Section 4.3 herein if such Claim or corresponding losses arise out of or result from, in whole or in part:
      • the circumstances described in Sections 4.2(a) or 4.2(b) herein;
      • Client's marketing, advertising, promotion or sale or any product containing the Goods;
      • use of the Goods, including use of the Goods in combination with any products, materials or equipment supplied to Client by a Person other than True Terpenes or its authorized Representatives, if the infringement would have been avoided by the use of the Goods or use of the Goods not so combined;
      • any modifications or changes made to the Goods by or on behalf of any Person other than True Terpenes or its Representatives, if the infringement would have been avoided without such modification or change;
      • goods (including Goods), products or assemblies manufactured or designed by Client.
    • EXCLUSIVE REMEDY. THIS SECTION 4 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 4.
  1. Representations and Warranties.
    • Client's Representations and Warranties. Client represents and warrants to True Terpenes that:
      • it is duly organized, validly existing and in good standing;
      • it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of the Supply Agreement;
      • it has the full right, power and authority to enter into the Supply Agreement and to perform its obligations hereunder;
      • the execution of the Supply Agreement by its Representative whose signature is set forth at the end of the Supply Agreement, and the delivery of the Supply Agreement by Client, have been duly authorized by all necessary action on the part of Client;
      • the execution, delivery and performance of the Supply Agreement by Client will not violate, conflict with, require consent under or result in any breach or default under any of Client's organizational documents or any applicable Law;
      • the Supply Agreement has been executed and delivered by Client and (assuming due authorization, execution and delivery by True Terpenes) constitutes the legal, valid and binding obligation of Client, enforceable against Client in accordance with its terms;
      • it is in compliance with all applicable Laws and Client Contracts relating to the Supply Agreement, the Goods, and the operation of its business;
      • it has obtained all licenses, authorizations, approvals, consents or permits required by applicable Laws to conduct its business generally and to perform its obligations under the Supply Agreement;
      • it is not insolvent and is paying all of its debts as they become due;
      • all financial information that it may provide to True Terpenes is true and accurate and fairly represents Client's financial condition; and
      • it has reviewed and acknowledges the handling and use information regarding the Goods, including safety information, that has been made available by True Terpenes either directly or through its Website, www.trueterpenes.com.
    • True Terpenes’ Representations and Warranties. True Terpenes represents and warrants to Client that:
      • it is a limited liability company, duly organized, validly existing and in good standing under the laws of the Oregon;
      • it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of the Supply Agreement;
      • it has the full right, power and authority to enter into the Supply Agreement and to perform its obligations hereunder;
      • the execution of the Supply Agreement by its Representative whose signature is set forth at the end of the Supply Agreement, and the delivery of the Supply Agreement by True Terpenes, have been duly authorized by all necessary action on the part of True Terpenes; and
      • the execution, delivery and performance of the Supply Agreement by True Terpenes will not violate, conflict with, require consent under or result in any breach or default under any of True Terpenes’ organizational documents or any applicable Law;
      • the Supply Agreement has been executed and delivered by True Terpenes and (assuming due authorization, execution and delivery by Client) constitutes the legal, valid and binding obligation of True Terpenes, enforceable against True Terpenes in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors’ rights generally or the effect of general principles of equity;
      • it has obtained all licenses, authorizations, approvals, consents or permits required by applicable Laws to conduct its business generally and to perform its obligations under the Supply Agreement.
    • Disclaimer as to Third-Party Products. Client acknowledges that the Goods purchased by Client may contain, be contained in, incorporated into, attached to, or packaged together with products manufactured by a third party (“Third Party Products”). For the avoidance of doubt, True Terpenes makes no representations or warranties with respect to any Third-Party Products.
    • DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5 HEREIN AND THE LIMITED PRODUCT WARRANTY SET FORTH IN SECTION 6 HEREIN, (A) NEITHER TRUE TERPENES NOR ANY PERSON ON TRUE TERPENES’ BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR PERFORMANCE OF GOODS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY TRUE TERPENES, OR ANY OTHER PERSON ON TRUE TERPENES’ BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 3.2 HEREIN AND SECTION 7 OF THE SUPPLY AGREEMENT.
  1. Limited Product Warranty.
    • Limited Warranty. True Terpenes warrants to Client that for a period of three (3) months from the date of shipment of the Goods ("Warranty Period"), such Goods will materially conform to the specifications set forth in Exhibit A and will be free from material defects in material and workmanship (“Limited Product Warranty”). This Limited Product Warranty covers Nonconforming Goods and Goods otherwise materially defective in material or workmanship (“Defective Goods”). This Limited Product Warranty does not cover any damages due to:
      • Transportation, storage, improper use, improper handling, unlawful use, unintended use, failure to follow the product instructions or to perform any preventative maintenance, modifications, combination or use with any products, materials, processes, hardware, products, systems, or other matter not expressly and unequivocally provided or authorized in writing by True Terpenes; unauthorized repair; normal wear and tear;’ or external causes such as accidents, abuse, or other actions or events beyond True Terpenes’ reasonable control; or
      • Goods that have been reconstructed, repaired or altered by Persons other than True Terpenes or its authorized Representative.
    • Client's Exclusive Remedy. Subject to Section 4.7 of the Supply Agreement, and notwithstanding any other provision herein or in the Supply Agreement, this Section 6(b) contains Client's exclusive remedy for Defective Goods. Client's remedy herein is conditioned upon Client's compliance with its obligations under this Section 6. During the Warranty Period, with respect to any allegedly Defective Goods:
      • Client shall notify True Terpenes, in writing, of any alleged claim or defect within 14 Business Days from the date Client discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period);
      • Client shall ship, at its expense and risk of loss, such allegedly Defective Goods to a location specified by True for inspection and testing by True Terpenes;
      • if True Terpenes’ inspection and testing reveals, to True Terpenes’ reasonable satisfaction, that such Goods are Defective and any such defect has not been caused or contributed to by any of the factors described under Section 6(a) above, True Terpenes shall, in its sole discretion and at its expense, repair or replace such Defective Goods; and
      • True Terpenes shall ship to Client, at True Terpenes’ expense, the repaired or replaced Goods to a location designated by Client.

      Client has no right to return for repair, replacement, credit or refund any Good except as set forth in this Section 6 and Section 4.7 of the Supply Agreement. In no event shall Client reconstruct, repair, alter or replace any Good, in whole or in part, either itself or by or through any third party. THIS SECTION SETS FORTH CLIENT'S SOLE AND EXCLUSIVE REMEDIES AND TRUE TERPENES’ ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH IN THIS SECTION 6.

    • Applicability of Warranty. This Limited Product Warranty extends only to the original purchaser of the Goods. It does not extend to any subsequent or other owner or transferee of the Goods or any transferee or other beneficiary of the warranty service.
  1. Withdrawal of Goods. If True Terpenes determines that any Goods sold to Client may be Defective, at True Terpenes’ request, Client shall withdraw all similar Goods from sale and, at True Terpenes’ option, either return such Goods to True Terpenes (pursuant to the terms of Section 6 herein or 4.7 of the Supply Agreement) or destroy the Goods and provide True Terpenes with written certification of such destruction. Notwithstanding the limitations of Section 6 herein, if Client returns all withdrawn Goods or destroys all withdrawn Goods and provides True Terpenes with written certification of such destruction within 30 days following True Terpenes’ withdrawal request, in either case consistent with True Terpenes’ instructions, unless any such defect has not been caused or contributed to by any of the factors described under Section 6 herein, True Terpenes shall, in its sole and exclusive discretion, (a) repair or replace all such returned Goods (b) replace such destroyed Goods, in either case pursuant to the terms of Section 6 herein; or (c) refund the purchase price of the Goods. THIS SECTION 7 SETS FORTH CLIENT'S SOLE REMEDY AND TRUE TERPENES’ ENTIRE LIABILITY FOR ANY GOODS THAT ARE WITHDRAWN PURSUANT TO THIS SECTION 7.
  1. No Set-off Right. Client shall not, and acknowledges that it will have no right, under the Supply Agreement, any Purchase Order (as defined therein), any other agreement, document or Law to, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to True Terpenes or any of its Affiliates, whether under the Supply Agreement or otherwise, against any other amount owed (or to become due and owing) to it by True Terpenes or True Terpenes’ Affiliates, whether relating to True Terpenes’ or its Affiliates' breach or non-performance of the Supply Agreement, any Purchase Order, any other agreement between (a) Client or any of its Affiliates and (b) True Terpenes or any of its Affiliates, or otherwise.
  1. Intellectual Property Rights.
    • Ownership. Client acknowledges and agrees that: (i) Intellectual Property Rights are the sole and exclusive property of True Terpenes or its licensors who shall retain all Intellectual Property Rights used to create, embodied in, used in and otherwise relating to the Goods and any of their component parts, as well as the benefit of any goodwill derived from the use by Client of such rights; and (ii) Client shall not acquire any ownership interest in any Intellectual Property Rights under the Supply Agreement and shall use True Terpenes’ Intellectual Property Rights only in accordance with such Agreement and any written instructions of True Terpenes. Under no circumstances shall Client allege or otherwise assert that True Terpenes was “hired to invent” or that the Supply Agreement constitutes a “work-for-hire.” Notwithstanding the foregoing, and subject to the License granted to True Terpenes under Section 2.2 of the Supply Agreement, Client is and remains the sole and exclusive owner of all Client Intellectual Property Rights used to create, embodied in, used in, and otherwise relating to its Client Ingredients (as defined in Section 11 below) (“Client IP Rights”).
    • Prohibited Acts. Client shall not:
      • take any action that may interfere with any of True Terpenes’ rights in or to True Terpenes’ Intellectual Property Rights, including True Terpenes’ ownership or exercise thereof;
      • challenge any right, title or interest of True Terpenes in or to True Terpenes’ Intellectual Property Rights;
      • register or apply for registrations, anywhere in the world, for True Terpenes’ Trademarks or any other Trademark that is similar to True Terpenes’ Trademarks or that incorporates True Terpenes’ Trademarks in whole or in confusingly similar part;
      • engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under the Supply Agreement (including Goods) or any True Terpenes Trademark;
      • misappropriate any of True Terpenes’ Trademarks for use as a domain name without prior written consent from True Terpenes; or
      • alter, obscure or remove any of True Terpenes’ Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under the Supply Agreement (including Goods), marketing materials or other materials that True Terpenes may provide.
  1. Miscellaneous.
    • Survival. Sections 8-9 and 10.3 of the Supply Agreement and Sections 2, 4, 6, 8-9, 10(a)-(c) and 10(j) herein shall survive termination of the Supply Agreement, together with any other provision that logically ought to so-survive.
    • Cumulative Remedies. All rights and remedies provided in the Supply Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Client's rights under Sections 4.5 and 4.7 of the Supply Agreement, Section 6 herein and each of the Parties' rights under Section 4 herein are such Party's exclusive remedies for the events specified therein.
    • Equitable Remedies. Client acknowledges and agrees that (a) a breach or threatened breach by Client of any of its obligations under Sections 8 and 10.1 of the Supply Agreement or its obligations under Section 9 herein would give rise to irreparable harm to True Terpenes for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Client of any such obligations, True Terpenes shall, in addition to any and all other rights and remedies that may be available to True Terpenes at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Client agrees that Client will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 10(c).
    • Severability. If any term or provision of the Supply Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of the Supply 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 modify the Supply Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Amendment and Modification. No amendment to or recession, termination or discharge of the Supply Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of the Supply Agreement, and signed by an authorized Representative of each Party.
    • Waiver.
      • No waiver under the Supply Agreement is effective unless it is in writing and signed by an authorized representative of the Party waiving its right.
      • Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
      • None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from the Supply Agreement: (x) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under the Supply Agreement; or (y) any act, omission or course of dealing between the Parties.
    • Assignment. Neither Party may assign any of its rights or delegate any of its obligations under the Supply Agreement without the prior written consent of the other Party, which such consent may be withheld in such Party’s sole and exclusive discretion. Either Party may assign any of its rights or delegate any of its obligations to any Affiliate, in the event of a change in Control, or to any Person acquiring all or substantially all of such Party’s assets. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under the Supply Agreement.
    • No Third-Party Beneficiaries. Except as may be expressly set forth in the second sentence of this Section 10(h), the Supply Agreement benefits solely the parties to the Supply Agreement and their respective permitted successors and permitted assigns and nothing in these Terms or the Supply Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Supply Agreement. True Terpenes’ Affiliates are intended Third Party Beneficiaries of the Supply Agreement.
    • Exclusion of Federal Law. Any and all references herein and/or within the Supply Agreement to “applicable law,” “Law,” “governing body,” “governmental authority,” “regulatory agency,” and/or “governmental agency” shall specifically and intentionally exclude any federal law, rule, or regulation of any governmental agency that identifies or classifies the growing, production, manufacture, sale, and/or possession of Cannabis as a crime or otherwise prohibits the growing, production, manufacture, sale, and/or possession of cannabis, including, without limitation, the United States Federal Controlled Substances Act (“Excluded Laws”). Neither Party shall interpose a defense of illegality under the Excluded Laws to the enforcement of the Supply Agreement.
    • Dispute Resolution. Except as otherwise set forth herein or in the Supply Agreement, any dispute, controversy or claim arising out of or relating to the Supply Agreement, or the breach, termination or invalidity hereof (each, a "Dispute"), shall be submitted for negotiation and resolution to the management of True Terpenes (or to such other person of equivalent or superior position designated by True Terpenes in a written Notice to Client) and the management of Client (or to such other person of equivalent or superior position designated by Client in a written Notice to True Terpenes), by delivery of written Notice (each, a "Dispute Notice") from either of the Parties to the other Party. Such persons shall negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute within 60 days after delivery of the applicable Dispute Notice, either Party may institute arbitration as provided herein. Any controversy or claim arising out of or relating to the Supply Agreement, or breach thereof, shall be settled by arbitration administered by JAMS under the Comprehensive Arbitration Rules & Procedures, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either party may make a demand for binding arbitration by filing with JAMS a demand in writing signed by an officer of the complaining party. The parties shall agree upon one arbitrator which will be selected and appointed in accordance with such rules. The arbitration shall take place in Portland, Oregon, Multnomah County.
    • Right to Manufacture and Sell Competitive Goods. Subject to Section 2.3 of the Supply Agreement, the Supply Agreement does not limit True Terpenes’ right to manufacture or sell, or preclude True Terpenes from manufacturing or selling, to any Person, or entering into any agreement with any other Person related to the manufacture or sale of goods or products that are similar to or competitive with the Goods.
    • Further Assurances. Upon a Party's reasonable request, the other Party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to the Supply Agreement.
    • Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
    • Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
  1. Definitions.

"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise.

"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

"Agreement" has the meaning set forth in the preamble to the Supply Agreement.

"Basic Purchase Order Terms" means, collectively, any one or more of the following terms specified by Client in a Purchase Order pursuant to Section 3.2: (a) a list of the Goods to be purchased; (b) the quantity of each of the Goods ordered; (c) the Requested Delivery Date; (d) the unit Price for each of the Goods to be purchased; (e) the billing address; and (f) the Delivery Location. For the avoidance of doubt, the term "Basic Purchase Order Terms" does not include any general terms or conditions of any Purchase Order.

"Business Day" means any day except Saturday, Sunday or any other day on which commercial banks located in Portland, Oregon are authorized or required by Law to be closed for business.

"Client" has the meaning set forth in the preamble to the Supply Agreement.

"Client Indemnified Parties" has the meaning set forth in Section 5 to the Terms of Service.

“Client Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to Client, including Intellectual Property Rights associated with Client Ingredients.

"Claim" means any Action brought against a Person entitled to indemnification under Section 5 to the Terms of Service.

"Control" (and with correlative meanings, the terms "Controlled by" and "under common Control with") means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership or voting securities, by contract, or otherwise.

"Delivery Location" means the street address for delivery of the Goods specified in the applicable Purchase Order.

"Effective Date" means the date first set forth on the Supply Agreement.

"Forecast" means, with respect to any three-month period, a good faith projection or estimate of Client's requirements for Goods during each month during the period, which approximates, as nearly as possible, based on information available at the time to Client, the quantity of Goods that Client may order for each such month.

"Goods" means the goods identified on Schedule 1 to the Supply Agreement and described in the Specifications.

"Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

"Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.

"Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.

"Law(s)" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.

"Nonconforming Goods" means any goods received by Client from True Terpenes pursuant to a Purchase Order that: (a) do not conform to the Goods listed in the applicable Purchase Order; (b) do not fully conform to the Specifications; or (c) materially exceed the quantity of Goods ordered by Client pursuant to this Agreement or any Purchase Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of this Agreement.

"Patents" means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates, petty patents and patent utility models).

"Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.

"Personnel" of a Party means any agents, employees, contractors or subcontractors engaged or appointed by such Party.

"Purchase Order" means Client's purchase order issued to True Terpenes hereunder, including all terms and conditions attached to, or incorporated into, such purchase order.

"Representatives" means a Party's Affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.

"Requested Delivery Date" means the requested delivery date for Goods ordered hereunder that is set forth in a Purchase Order, which must be a Business Day no less than 15 days following delivery of the applicable Purchase Order to True Terpenes.

"Specifications" means the specifications for the Goods, if any, attached to the Supply Agreement as EXHIBIT A.

"Taxes" means any and all present and future sales, income, stamp and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any Governmental Authority, together with any interest or penalties imposed thereon.

"Territory" means the US, and its territories and possessions, and Canada.

"Trademarks" means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein.

"True Terpenes" has the meaning set forth in the preamble to the Supply Agreement.

“True Terpenes’ Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to True Terpenes and includes, without limitation, Intellectual Property Rights associated with the Goods, including any Exclusive Goods, that are subject to the Supply Agreement.

"True Terpenes’ Trademarks" means all Trademarks owned by or licensed to True Terpenes.

 
 

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