This Hemp Seed Purchase Agreement (this “Agreement”), dated as of the date of mutual execution hereof, is entered into by and between Gualdi LLC, d/b/a Fortuna, a Florida Limited Liability Company (“Fortuna”) and ______ (“Buyer”) (each a “Party” and collectively, the “Parties”). WHEREAS, Fortuna is in the business of providing viable hemp (“Hemp”) seeds (the “Seed”), pursuant to Section 7606 of the Agricultural Act of 2014 (the “2014 Farm Bill”), the Agricultural Improvement Act of 2018 (the “2018 Farm Bill”), and the applicable state regulatory Hemp law and program where (i) Fortuna has grown its Hemp Seed, and (ii) where Buyer is located and conducts business (each such state regulatory Hemp law respectively, a “State Hemp Act,” and collectively with the 2014 Farm Bill and the 2018 Farm Bill, “Hemp Laws”), as more fully set forth in Exhibit A; WHEREAS, such Seed is covered by intellectual property protection, including but not limited to plant variety certificates and applications, confidential information, trade secrets and patent applications and patents, which may include patented germplasm and other protected traits and technologies; WHEREAS, on the terms and conditions set forth herein, Buyer wishes to purchase such Seed from Fortuna and Fortuna wishes to sell such Seed to Buyer; and WHEREAS, as further inducement of Fortuna selling such Seed to Buyer, Buyer specifically agrees to comply with the Hemp Laws, and other representations and warranties, as more fully set forth herein. NOW, THEREFORE, in consideration of the promises and covenants made herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows: AGREEMENT Buyer represents and warrants that Buyer has full management and control (including, but not limited to ordering, maintaining, shipping, and disposition of the Hemp) on the real estate of all of the operations where Buyer intends to store and ship seed.
- Purchase and Sale.
- Supply of Purchased Seed. Subject to the terms and conditions hereof, Fortuna shall sell Seed to Buyer that meets the type, quantity, price, delivery date and terms for the transport of the Seed, as specified in Exhibit A hereto (the “Purchased Seeds”). Fortuna shall provide Buyer with all requested information related to the Purchased Seeds including, without limitation, the plant variety, certificate of analysis, packing list and invoice prior to Delivery (as defined below) and related inspection process described below. Buyer waives any objection to any item(s) listed herein that were not provided unless specifically enumerated in this Agreement as still being requested and outstanding.
- Purchase Price; Payment. Payment, via check, credit card, or wire transfer to the account designated by Fortuna, of the Purchase Price to Fortuna is due on the terms set forth on Exhibit A. Fortuna reserves the right to charge interest at a rate of eighteen percent (18%) per annum for any payments more than thirty (30) days past due.
- Inspection; Acceptance.
- Inspection. Buyer may conduct a customary inspection of the Purchased Seed upon receipt or promptly after such Delivery (as defined below) to determine if such Purchased Seed conforms to the specifications set forth in Exhibit A (the “Specifications”), the Seed order listing the Specifications (“Seed Order”) and this Agreement. Buyer shall clearly designate, mark and represent the Purchased Seed as Fortuna property and maintain and preserve the Purchased Seed in good order and condition in its delivered form until the actions contemplated within this Section 2 are completed.
- Rejection; Non-Conforming Seed. If the Buyer rejects Delivery (as defined below) of the Purchased Seed in whole or in part (a “Rejected Delivery”), Buyer shall provide notice thereof to Fortuna in writing within [two (2)] days of receipt of the Purchased Seed notifying Fortuna of the Rejected Delivery. Purchased Seed shall be deemed accepted in the event Buyer (i) affirmatively accepts such Purchased Seed; or (ii) otherwise has not provided Fortuna a notice of Rejected Delivery (“Notice of Rejected Delivery”) within [two (2)] days of Delivery (as detailed above) of such Purchased Seed (“Acceptance”). In the event Buyer has provided to Fortuna a Notice of Rejected Delivery, Fortuna shall first have the right to inspect any Non-Conforming Seed(s); such Non-Conforming Seed(s) may be counted and re-profiled by Fortuna to confirm the count and profile of such Non-Conforming Seed. In the event Fortuna determines that any of the Purchased Seed is Non-Conforming Seed as reflected in the Notice of Rejected Delivery, Fortuna, at its election within [ten (10)] days of receipt of the Notice of Rejected Delivery, may require that Buyer return the non-conforming Purchased Seed (“Non-Conforming Seed”) to Fortuna, at Buyer’s cost, or Fortuna may require Buyer to destroy or otherwise dispose of the Non-Conforming Seed. In the event any Seed alleged by Buyer to be Non-Conforming Seed is determined, upon Fortuna’s inspection, to be Conforming Seed (i.e. such Seed is within the count or profile purchased), such Rejected Delivery shall be invalidated. The Buyer agrees that not being able to grow the Purchased Seed in a particular jurisdiction will not be considered a valid rejection.
- Delivery; Title and Risk of Loss.
- Delivery. Except as restricted in Section 1(b) above, Delivery shall be made at Buyer’s designated location within ten (10) days of the Seed Order, or as otherwise agreed to amongst the Parties in writing. Buyer and Fortuna shall mutually arrange for transportation, sales tax, packaging, and insurance during delivery of Purchased Seed to Buyer in accordance with the Seed Order or this Agreement (“Delivery”). Unless otherwise specified in Exhibit A, Buyer shall bear all cost of transportation, sales tax, packaging, and insurance during Delivery. In the event, if at all, the payment terms in Exhibit A allow for Buyer to remit payment to Fortuna, in whole or in part, subsequent to Acceptance, Fortuna shall be listed as an additional insured party on the policies obtained by Buyer in accordance with Section 9 below for an amount equal to the balance due on Purchase Price, and Buyer shall deliver to Fortuna proof of insurance reflecting that Fortuna is listed as an additional insured party prior to Delivery. Upon Fortuna providing a tracking number to the Buyer, Fortuna disclaims all liability for loss, damage, delay and/or seizure. Buyer shall sign for receipt of the Delivery prior to Seed inspection. Delivery terms may be changed by the Parties only upon mutual agreement in writing. Buyer’s sole remedy for failure of Fortuna to supply the agreed upon Purchased Seed in the time provided will be the cancelation of Buyer’s Seed Order of the Purchased Seed and a full return of Buyer’s deposit.
- Title and Risk of Loss. Title and risk of loss or damage of the Purchased Seed shall pass to the Buyer upon Delivery; provided, however, prior to the conveyance of title to the Purchased Seed and resulting crop, the Buyer shall have tendered full Purchase Price to Fortuna. In the event Delivery of the Purchased Seed occurs without payment in full of the Purchase Price, title to the Purchased Seed shall not pass until the full Purchase Price has been paid to Fortuna. Fortuna will be entitled, at any time until the full Purchase Price has been paid and title passes to the Buyer, to demand the return of the Purchased Seed and is entitled, without notice to the Buyer and without liability to the Buyer, to enter any premises occupied by the Buyer in order to search for and take possession the Purchased Seed.
- Uses of Purchased Seed; Specific Performance.
- Permitted Uses. Buyer may use the Purchased Seed for germination, cultivation, and any other use not specifically outlined below in 4(b) Prohibited uses.
- Prohibited Uses. Buyer of Purchased Seed, or any resultant crop(s) derived therefrom in any way, shall not: (i) propagate any Purchased Seed; (ii) re-plant any seed(s) derived from such Purchased Seed, or resultant crop(s) therefrom, in subsequent seasons; (iii) use the Purchased Seed in any way for the production of more planting seed; (iv) use the Purchased Seed to clone any resulting Hemp plant(s) derived from such Purchased Seed; (v) breed, manipulate or alter any Purchased Seed; or (vi) transfer Seed to any new buyer or to any new location without the express written consent of Fortuna.
- Specific Performance. Buyer agrees that irreparable damage would occur to Fortuna if Section 4(b), located directly above, is violated by Buyer and that, in such event, Fortuna shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which Fortuna is entitled at law or in equity.
- Representations and Warranties.
- Representations and Warranties. Fortuna represents and warrants to Buyer that each of the following is true and accurate in all respects as of the date of this Agreement and shall remain true and accurate during the Term hereof: (i) Fortuna is duly organized and validly existing under the laws of its jurisdiction of organization; (ii) the execution, delivery and performance of this Agreement by Fortuna has been duly authorized by all necessary action on the part of Fortuna, as applicable, and does not violate, conflict with, or require the consent or approval of any third-party pursuant to, any contract or legally binding obligation to which Fortuna is subject; (iii) Fortuna is the owner or licensee of all right, title, and interest in and to the Purchased Seed; (iv) Buyer shall have no liability for any claim that the use of Purchased Seed contemplated hereunder may infringe the intellectual property rights of any third-party; and (v) Fortuna maintains all required licenses, registrations and/or permits to render the services contemplated hereunder. In signing this Agreement, Fortuna affirms the representations made herein. These representations and warranties shall survive the termination of this Agreement.
- Representations and Warranties of Buyer. Buyer represents and warrants to Fortuna that each of the following is true and accurate in all respects on the date of this Agreement and shall remain true and accurate during the Term hereof: (i) Buyer is duly organized and validly existing under the laws of its jurisdiction of incorporation; (ii) the person signing this Agreement on Buyer’s behalf is duly authorized and empowered to bind Buyer to the terms of this Agreement; (iii) Buyer has full power and authority to enter into and perform its obligations under this Agreement and all actions have been taken by it which are necessary for it to execute and perform under this Agreement; (iv) Buyer, along with its third-party partners, has performed the necessary due diligence prior to entering this Agreement and certify that the jurisdiction they intend to use the Purchased Seed, allows such use; (v)Buyer’s obligations under this Agreement are, valid and binding in accordance with its terms including, without limitation, the restrictions on use of Purchased Seed set forth in Section 4(b) hereof; and (vi) Buyer, itself, along with its third-party partners which shall handle, germinate and otherwise use such Purchased Seed, maintain all required licenses, registrations and/or permits to handle, germinate and otherwise use such Purchased Seed as contemplated hereunder. In signing this Agreement, Buyer affirms the representations made herein. These representations and warranties shall survive the termination of this Agreement.
- Warranties; Disclaimers and Exclusions; Limitation of Liability.
- Express Warranty. Fortuna’s sole and exclusive warranty is that the Purchased Seed conforms to label descriptions that are required by Hemp Laws. Fortuna expressly disclaims any warranty or representations: (i) that the Purchased Seed is free of seed borne diseases whether previously known to exist or not identified until this Purchased Seed is grown; (ii) relating to any germination issues; and (iii) relating to Buyer’s legal ability to germinate or use the Purchased Seed in their respective jurisdiction.
- Disclaimer of Warranty of Merchantability or Fitness for Particular Use; Disclaimer of Other Representations. Fortuna makes no other express warranty and disclaims all implied warranties including any implied warranty of merchantability and any implied warranty of fitness for a particular purpose. To the extent permitted by law, all Purchased Seed is sold “as is.” In the event Fortuna provides Buyer with any certificate(s) of analysis or any other representation(s) concerning the Purchased Seed, and evidencing the Specifications thereof, Fortuna expressly disclaims, and Buyer acknowledges such disclaimer of, the accuracy of such certificate(s) of analysis or any other representation(s). Any such certificate(s) of analysis or any other representation(s) are based upon data rendered by a third-party, which Fortuna expressly disclaims any warranty of, and shall expressly be subject to any applicable margin(s) of error, respectively.
- Further Exclusions. Fortuna excludes all terms, conditions, representations and promises implied by custom, the general law or statute except any promises that cannot be excluded by law. To the extent permitted by law, Fortuna’s liability to the Buyer for breach of any promise that cannot be excluded is limited, at Fortuna’s option, to replacing the Seed or refunding the Purchase Price for the Purchased Seed. ***hot plants***
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FORTUNA BE LIABLE TO THE BUYER FOR LOSS OF PROFITS, REVENUE OR INCOME, OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE FAIR MARKET WHOLESALE VALUE OF THE PURCHASED SEED BUYER HAS PURCHASED FROM FORTUNA UNDER THIS AGREEMENT IN ANY TWELVE (12) MONTH PERIOD, LESS THE FAIR MARKET WHOLESALE VALUE OF SUCH PRODUCT PROPERLY REJECTED BY BUYER.
- Fortuna Indemnification of Buyer. To the fullest extent permitted by law, Fortuna shall indemnify, defend and hold harmless Buyer and its officers, directors, employees, shareholders, representatives, successors, and permitted assigns from and 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 and costs, and the cost of enforcing any right to defense and indemnification hereunder that are incurred by Buyer arising out of, relating to, or in connection with (i) the breach or non-fulfillment of any representation or warranty by Fortuna; (ii) Fortuna’s failure to comply with any of the Hemp Laws or to maintain all required licenses and governmental authorizations; and (iii) the production and sale of the Purchased Seed by Fortuna which infringes, violates, or misappropriates any trademark, copyright, patent, or other intellectual property rights (collectively, “Intellectual Property”) of any third-party. This provision shall survive the termination of this Agreement.
- Buyer’s Indemnification of Fortuna. Buyer shall indemnify, defend and hold Fortuna and its owners, officers, employees, contractors, agents, attorneys, and affiliates harmless from and against any and all claims, liabilities, damages, causes of action, expenses, or similar matters which are brought against Fortuna, including the costs of any recalls, consequential or incidental damages suffered by Buyer or Buyer’s end users including, but not limited to, those arising out of Buyer’s breach of this Agreement or any terms, conditions, representations, or warranties contained herein and including reasonable attorneys’ fees, costs and expenses incurred by Fortuna arising from Buyer’s breach or Fortuna’s defense thereof. This provision shall remain in force and effect, regardless of whether this Agreement is terminated.
- Term and Termination.
- Term. This Agreement shall become effective upon the date of execution by both Parties. It shall terminate one (1) year from the date hereof, unless performed in full before such date (the “Term”).
- Termination. Either Party may terminate this Agreement immediately for (i) a material breach of the Agreement; (ii) failure of Buyer to maintain all required licenses and governmental authorizations required for the conduct of its business or to comply in all material respects with Hemp Laws or any applicable laws within the relevant jurisdictions of the Buyer; or, (iii) either Party ceases operations, makes a general assignment for the benefit of creditors, or is the subject of a voluntary or involuntary bankruptcy, insolvency, or similar proceeding.
- Effect of Termination or Expiration. Upon termination or expiration hereof: (i) any amounts owed by Buyer to Fortuna shall immediately become due and payable; and (ii) each Party’s respective obligations hereunder shall immediately terminate, except those provisions which, by their nature, are intended to survive termination or expiration hereof where such provisions shall hereby survive termination or expiration of this Agreement.
- For the Term of this Agreement, Buyer and Fortuna are each responsible for procuring their own insurance in any event reasonably adequate to cover any liabilities arising out of its respective obligations hereunder. For avoidance of doubt, in addition to any other types of insurance required hereunder, Buyer shall expressly be required to obtain commercial general liability insurance and crop insurance, each in amounts sufficient to cover the Purchased Seed contemplated hereunder, and such Purchased Seeds shall specifically be designated as “covered” by such policy. Upon Fortuna’s request, the Buyer will provide to Fortuna a certificate of insurance showing that such insurance is in place, which certificate shall demonstrate the amounts, exclusions, and deductibles of such insurance coverage. Buyer shall notify Fortuna in writing no less than thirty (30) days prior to the cancellation, termination, or modification of the insurance coverage(s) described in the Buyer’s insurance certificate(s). Upon Fortuna providing a tracking number to the Buyer, Fortuna disclaims all liability for loss, damage, delay and seizure, should the Buyer fail to purchase insurance as detailed above. Nothing in this Section 9 shall in any way be construed to limit the liability of a Party under this Agreement.
- All notices, demands, or statements of any kind between Buyer and Fortuna shall be given in writing. Notices may be hand-delivered or delivered by U.S. Mail, facsimile or electronic mail to the following:
- Force Majeure.
Neither Party shall be liable for any delay or failure to perform its obligations in this Agreement if such delay or failure is due to any cause or condition reasonably beyond that Party’s control, including, but not limited to, acts of God, war, theft, vandalism, natural disasters (including but not limited to lightning, hail, rain, drought, earthquakes, pandemics, fires, hurricanes, and floods), civil disturbances, unanticipated changes in federal, state, or local law, and orders by a court or administrative body.
This Agreement is binding upon and will inure to the benefit of the Parties and their successors and assigns. No Party may assign this Agreement or any of its rights, interests, or obligations hereunder, without written consent from the non-requesting Party. Each Party may retain contractors and employees to assist it in the provision of services hereunder. All remuneration owing to such contractors or employees by a Party shall be owing only from the Party so engaging such contractors and employees, and neither Party has the authority to bind the other to any obligation to pay money or other remuneration to any third-party.
- Integration; Severability.
This Agreement contains the entire agreement between Buyer and Fortuna with regard to the matters set forth herein. It supersedes any and all prior agreements and understandings, whether written or oral, relating to the subject matter hereof. This Agreement, or any right or condition, may be amended only by written instrument signed by both Buyer and Fortuna. In the event that any one or more of the provisions of this Agreement shall be found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the other terms of the Agreement will remain in full force and effect.
Neither Party nor any of its affiliates or representatives shall (orally or in writing) disclose the existence of this Agreement or the subject matter hereof, without the prior written approval of the other Party, except if (a) such Party is required to make any public disclosure or filing regarding the subject matter of this Agreement (i) by applicable law, (ii) pursuant to any rules or regulations of any securities exchange of which the securities of such Party are listed or traded, or (iii) in connection with enforcing its rights under this Agreement; (b) the Party is disclosing this Agreement or the subject matter hereof to employees who have a business-need-to-know; or (c) the Party is disclosing this Agreement or the subject matter hereof to its attorneys, accountants, financial advisers, bankers, or current or potential financiers or investors.
- Governing Law; Construction.
This Agreement shall be construed and interpreted in accordance with the laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida. Neither this Agreement nor any provision hereof shall be construed against the Party on whose behalf it was drafted solely because of the fact that that Party drafted it. Both Parties certify that they have had an opportunity to review this Agreement with legal counsel of their choosing, and both parties have been afforded an opportunity to make any changes they saw fit, prior to entering this Agreement.
- Dispute Resolution; Attorney Fees.
In the event of any disputes under, concerning or relating to this Agreement, the Parties agree to submit themselves to the jurisdiction of the state courts of the State of Florida regarding any issue arising from this Agreement, venue laid in Orlando, Florida. Buyer and Fortuna each expressly waive and disavow any rights that may accrue under any other body of law. The prevailing Party shall be entitled to reimbursement of all reasonable legal costs and fees from the non-prevailing Party.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, and all of which shall together constitute one and the same instrument. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY THEIR DULY AUTHORIZED SIGNATORIES AS OF THE EFFECTIVE DATE BELOW. _______________________________ ______________________________ Signature of Buyer/Authorized Agent Gualdi LLC, d/b/a Fortuna Printed Name: Printed Name: Allison Gualdi Date: Date:
Exhibit A –
|Variety of Seed||Number of Seeds||Price||Total|
Fortuna Payment Instructions Please make checks payable to:
Exhibit B –
|Seed Quantity||Price per Seed|
|10000 or more||$|