These Terms and Conditions govern all industrial hemp product testing services (“Services”) agreed to be performed by Apricot Analytics, Inc, a California corporation (“Apricot”), for any person requesting such services (“Client”). The Terms and Conditions are incorporated into any order, offer, invoice, arrangement or understanding between the Client and Apricot, including pursuant to a sample submission form accepted by Apricot (individually and collectively “Order”). All Orders by Client are expressly limited and conditioned upon acceptance of the Terms and Conditions and without limiting any other mode of acceptance, Client’s submission of samples is deemed acceptance of these Terms and Conditions. Apricot objects to and rejects any provision additional to or different from the Terms and Conditions that may appear in Client’s submission forms, purchase order, acknowledgement, confirmation, writing, or in any prior or later communication between Client and Apricot, unless Apricot expressly agrees to such provision in a written amendment signed by Apricot. An Order together with these Terms and Conditions are herein referred to as the “Contract”.
Price and Payment Terms
All fees for Services are set forth on Apricot’s offer to Client and are firm, fixed, and cannot be varied without the prior written agreement of Apricot. Prices do not include any sales, use, excise, privilege, or other taxes or assessments imposed on the Services, and the same will be added to the price of Services at invoice. All fees are billed directly to Client, and no third-party billing will be accepted without the prior written consent of Apricot. Other than for Clients with a pre-approved credit from Apricot, payment for all Services is due at the time of Order and must be received prior to the release of testing results. For Clients with pre-approved credit from Apricot, terms are net 15 days from the date of invoice unless otherwise stated on that invoice. Client agrees to pay a fee of 1.5% per month (18% annual rate) against all outstanding balances from the date such balance is due until paid. A 3.99% processing service charge will be applied to all fees paid by credit card. There is an additional $25.00 charge for any returned checks. Client agrees that it will pay Apricot for all costs of collection (including attorney fees and court costs) Apricot incurs to collect amounts owed hereunder.
Requests for Services can be made by telephone, email, or in writing, however, Client must confirm requests for Services in writing, using a Apricot chain of custody and sample submission form prior to the commencement of the Services. Materials (“Samples”) must be shipped to Apricot for testing following directions provided by Apricot.
Compliance with Law
Client represents and warrants to Apricot that: (i) all Samples provided to Apricot for testing were produced and shipped in compliance with all applicable federal laws, the laws of the State of Colorado, and the state and local laws applicable to Client; (ii) all Samples comprising agricultural products qualify as “Industrial Hemp” as such term is defined in the Agricultural Act of 2014, (as may be amended); and (iii) the Client will sell all products represented by the Samples in strict compliance with all applicable federal, state and local laws. For any propagative plant material, Client shall comply with all regulations, including but not limited to, any inspection and certification requirements provided by the Colorado Department of Agriculture or applicable state department. Client shall provide evidence of registration under a state’s industrial hemp program or any other compliance documentation, upon request by Apricot.
Return of Samples
Samples remain the property of Client at all times. Client authorizes Apricot to store all Samples for a reasonable period after issuance of the final testing report. After completion of the Services, Apricot is authorized to destroy or otherwise dispose of the Samples. Any portion of Samples found or suspected to be hazardous according to state or federal laws will, in Apricot’s sole discretion, be either returned to the Client or properly disposed of as hazardous waste at Client’s expense.
Reports, Document Retention, Confidentiality
Apricot retains final testing reports and supporting documentation for five years following the Services, and may retain such information for longer period of time as may required by law. Unless otherwise required by law, Apricot will only release testing information to third parties with the authorization of the Client.
Disclaimer of Warranty
SERVICES DELIVERED HEREUNDER ARE “AS-IS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, APRICOT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM A COURSE OF DEALING, USAGE OF THE TRADE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER, WITH RESPECT TO GOODS PRODUCED OR SOLD AND REPRESENTED BY THE SAMPLES, whether used alone or in combination with any other GOODS, SUBSTANCES, PROCESSES or materials OR SERVICES.
Limitation of Liability
THE LIABILITY OF APRICOT AND ITS AFFILIATES IS LIMITED TO THE PRICE ALLOCABLE TO THE SERVICES GIVING RISE TO THE CLAIM, AND IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF APRICOT HOWSOEVER ARISING, WHETHER UNDER WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, DEFENSE OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER, EXCEED THE TOTAL PAYMENTS RECEIVED FROM CLIENT UNDER THE CONTRACT. TO THE EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THE CONTRACT, APRICOT SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOSS OF BUSINESS REVENUES, LOSS OF CAPITAL, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS, OVERHEAD COSTS, LOSS BY REASON OF SERVICE INTERRUPTION OR INCREASED EXPENSE OF OPERATION, LOSS OF GOODWILL, LOSS OF REPUTATION, LOSS OF VALUE IN ANY INTELLECTUAL PROPERTY, DAMAGES OR LIQUIDATED SUMS PAYABLE PURSUANT TO OTHER AGREEMENTS OR TO OTHER THIRD PARTIES, OTHER ECONOMIC LOSSES, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE (INCLUDING NEGLIGENT MISREPRESENTATION) OR OTHER TORT, STRICT LIABILITY, BREACH OF STATUTE, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES, INCLUDING ANY THEORIES OF CONCURRENT LIABILITY ARISING FROM A DUTY OF CARE BY OPERATION OF LAW OR OTHERWISE.
Client shall indemnify and hold Apricot, and its affiliates and subsidiaries, and their respective employees, directors, officers, agents and representatives, harmless from and against any suits, liabilities, losses, damages, claims, causes of actions, and expenses (including attorneys’ fees) arising out of or connected with any act or omission of Client, its agents, employees, subcontractors, or customers, including, without limitation, any breach of the representation or warranties herein or the sale, manufacture, or use of goods represented by a Sample.
All costs associated with compliance by Apricot to any subpoena for documents, for consultation in preparation for or testimony in any deposition or proceeding, or for any other purpose relating to the Services, shall be paid by Client. Such costs include, but are not limited to, fees for persons responsible for responding to subpoenas, reproduction of reports and data in support of reports, mileage and other travel expenses, attorney preparations for testimony, court testimony, attorney fees, and any other expenses associated with Apricot’s participation in the litigation.
The rights and duties of the parties and any dispute regarding the Services covered hereby shall be resolved according to the laws of the state of Colorado, without regard to its conflicts of law provisions. Client hereby agrees to submit to the non-exclusive jurisdiction of the state courts located in Denver, Colorado. The prevailing party in any proceeding shall be entitled to recover its reasonable attorneys’ fees and costs, in addition to any other relief obtained. No failure to exercise nor any delay or omission in exercising any right, power or remedy by Apricot operates as or constitutes a waiver. A waiver is not valid or binding on Apricot unless made in writing.