Terms and Conditions of Sale
These General Terms and Conditions of Sale (“General Terms”) set forth the terms and conditions that apply to all sales of Goods (as defined below) by means of a purchase order or any other written or electronic order or document (“PO”) received and accepted by Kula Bio, Inc. (“Kula”) or an affiliate or distributor from the entity identified in the PO as the buyer ("Buyer"). The terms and conditions included with Kula's written quotation (if any) (“Quotation”) and/or Kula’s acknowledgement of the PO or invoice with shipment (“Invoice”) are incorporated herein by reference, and such terms and conditions together with the General Terms are referred to herein as the “Agreement.”
Kula reserves the right to change the General Terms at any time. Any changes made will not apply to the Agreement between Kula and Buyer for any order received before the changes are made. The most recent revision can be found at www.Kulabio.com.
Acceptance
Kula shall provide its nitrogen biofertilizer products (collectively, "Goods") in accordance with the terms and conditions of this Agreement. All sales of Goods between Kula and the Buyer are subject to the terms and conditions contained herein. By submitting a PO or accepting shipment of Goods, Buyer shall be bound by the provisions of this Agreement, regardless of whether Buyer acknowledges or otherwise signs this Agreement or the Invoice. This Agreement may not be added to, modified, superseded, or otherwise altered, except in a writing signed by an officer or other authorized representative of Kula. This Agreement supersedes the conflicting terms of any PO. Kula hereby expressly rejects the terms and conditions on any Buyer PO. Any terms in any other order, release, contract, or other communication that are additional to, different from, or inconsistent with the provisions of this Agreement will be deemed to be void and of no effect. Kula’s sale of its Goods to Buyer is expressly made conditional on Buyer’s assent to these terms and conditions. Buyer understands and acknowledges that Kula would not consummate this sale without Buyer’s agreement to these terms and conditions and that Kula’s pricing of its Goods is in reliance on these terms and conditions. Any supplemental terms, such as label licenses or field restrictions, included with the sale of Goods hereunder, shall be in addition to, and if in conflict, shall take precedence over the conflicting terms of this Agreement.
Changes
Kula may at any time make changes in the specifications, designs, drawings, samples, qualities, prices, terms, conditions, requirements or descriptions to which the Goods are to conform. Kula shall not be bound by the descriptions or specifications of the Goods, or any other information contained in, any advertisement, or publications of Kula.
Shipment.
All Goods shall be suitably packed in Kula’s standard shipment packaging, marked, and shipped in accordance with Kula’s applicable specifications (or if no specifications are provided, in accordance with reasonable commercial practices) using a carrier of Kula’s choice. Goods may be shipped, depending on lead time and availability, in installments. Each installment shall be invoiced and considered a separate sale. Buyer shall clear any imported Goods at the point of import and pay all relevant duties or import or brokerage fees.
Delivery
Kula will use commercially reasonable efforts to make shipments on date(s) agreed by Kula. Shipments are made Ex Works (Incoterms 2020) Kula’s or its affiliate’s or distributor’s (as applicable) facility. All Goods shall be deemed to be delivered and risk of loss shall pass to Buyer at such time as Goods are loaded onto a transportation carrier vehicle. Buyer shall pay, and be exclusively liable for, all costs of shipping, delivery, and any related insurance. All claims by Buyer for damage, loss, or delays in transit shall be made by Buyer against the carrier, and Kula shall have no responsibility or obligations with respect to any such damage, loss, or delay. All shipments shall be at Buyer’s sole risk and expense. Buyer shall pay any increase in transportation costs that are charged to Kula subsequent to its invoice to Buyer, including any fuel surcharges.
If the quantity mentioned in a PO deviates from the standard quantity applied by Kula or a multiple thereof, Kula has the right to deliver the nearest higher quantity being, as applicable, the standard quantity applied by Kula or a multiple thereof.
The quantity of any shipment of Goods as recorded by Kula or its affiliate or distributor (as applicable) upon dispatch from Kula’s or its affiliate’s or distributor’s (as applicable) place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
If at any time total demand for Goods shall for any reason exceed Kula’s available supply through its regular sourcing arrangements, Kula shall not be obligated to deliver the quantity ordered by the Buyer and the Goods to be supplied under this Agreement shall be such quantity as Kula shall in its sole discretion allocate to be supplied under this Agreement and Kula shall not be liable to the Buyer if such quantity is less than the quantity ordered by Buyer.
If for any reason Buyer does not accept delivery of Goods when they are ready for delivery, or Kula is unable to deliver Goods on time because Buyer has not provided appropriate instructions, documents, licenses or authorizations (a) Goods will be deemed to be delivered; and (b) Kula may store Goods until delivery whereupon Buyer will be liable for all related costs and expenses (including without limitation storage and insurance). If five (5) business days after Kula notified Buyer that Goods were ready for delivery, Buyer has not accepted delivery, Kula may resell or otherwise dispose of all or part of the Goods.
Kula shall not be liable for any damages, loss, or penalty as a result of any delays in manufacturing or delivery of Goods.
Force Majeure
Kula will not be liable for any delay or failure of performance, including for any delays or damage to Goods resulting from extraordinary events beyond Kula’s reasonable control, such as (but not limited to) epidemics, pandemics, quarantines, flood, unusually severe weather, earthquake or other act of nature, power loss, war, riots, labor events, acts of State, an inability or delay in obtaining materials or any other acts of God. In the event of such delay or failure of performance, Kula shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances.
Prices and Payment
All prices for the purchase of Goods from Kula or its affiliate or distributor (as applicable) are in the currency stated on the Invoice and are exclusive of all taxes (including VAT), excises, duties, levies, or other government fees and freight and insurance. Buyer shall be liable for such taxes (including VAT), excises, duties, levies, or other government fees and freight and insurance and if Kula pays them they will appear as a separate item on Kula’s invoice. Unless agreed to in writing and signed by an officer or other authorized representative of Kula, Kula reserves the right to adjust pricing as it sees fit and does not offer any best price guarantees.
Buyer shall pay Kula one hundred percent (100%) of invoice price upon issuance of the PO. Goods will not be shipped until payment is received. To avoid delays, customers are encouraged to complete these purchases with a credit card.
Kula reserves the right to modify its prices periodically and in the interim. Each new price listing shall cancel the previous price with regard to orders placed after such new price listing.
At all times subject to the price adjustment set forth by the Agreement, the price of the Goods shall be affixed at the moment of placing the order by the Buyer and after that may only be changed subject to written agreement of the Parties, however, Kula may, by giving notice to Buyer at any time before delivery, increase the price of Goods due to (a) any factor beyond Kula's control (including without limitation foreign exchange fluctuations and tax or duty increases); (b) acceptance by Kula of Buyer’s request to change the delivery date(s), quantities or types of Goods ordered; or (c) delay caused by any Buyer instructions or failure to give Kula adequate or accurate information or instructions.
Overdue Accounts/Late Charges
If Buyer fails to pay the price or any other payment due to Kula promptly and when due, Kula may require Buyer to pay, in addition to the price payment, interest thereon at a rate equal to the lesser of two percent (2%) per month and the maximum rate of interest allowable under applicable law, from the original due date until full payment has been made by Buyer or on Buyer’s behalf. This late fee is in addition to any other remedies Kula may have under applicable laws. The parties acknowledge and agree that this late fee is reasonable in the light of the anticipated or actual harm caused by the Buyer’s late payments to Kula, the difficulties of proof of loss, and the inconvenience or non-feasibility of Kula otherwise obtaining an adequate remedy. Kula may immediately stop any and all deliveries and/or shipments of Goods to Buyer if Buyer is more than fifteen (15) days delinquent on its payments to Kula.
If Kula incurs any legal and/or collection agent costs in relation to Buyer’s overdue account, then Kula has the right to charge such costs to the Buyer’s account.
Use Restrictions; No Reverse Engineering. Buyer is not licensed to, and agrees not to resell, transfer, or distribute any Goods, directly or indirectly, to any third party for any purpose or use, unless otherwise authorized by Kula in writing. Buyer also agrees not to re-export Goods from the country or region in which Goods were originally purchased. Buyer may not disassemble, re-assemble, design around or reverse engineer any Goods without Kula’s prior written consent or permit any third party to do any of the foregoing.
Instructions setting forth the restrictions of use of the Goods by the Buyer may be included in the Goods’ packaging and/or labelling. By using the Goods, the Buyer confirms his/her commitment(s) to comply with these restrictions. The Goods are exclusively intended for commercial agricultural applications. The Goods are proprietary to Kula and are protected by intellectual property rights. Unless otherwise agreed in writing, the Buyer’s use of the Goods is limited to commercial agricultural applications.
Intellectual Property
“Intellectual Property” shall mean any and all intellectual property rights related to Goods sold by Kula to Buyer, as they are now or may in future exist in any country or jurisdiction in the world, including without limitation: (a) any and all rights, privileges and priorities arising under the laws or treaties of the United States or European Community, relating to intellectual property, including patents, copyrights, trade names, trademarks, service marks, mask works, trade secrets, inventions, technical data, plans, drawings, flow diagrams, layout details, specifications, databases, names and logos, trade dress, technology, know-how, and other proprietary information and licenses from third persons granting the right to use any of the foregoing, including all registrations and applications for any of the foregoing that have been issued by or filed with the appropriate authorities, any common-law rights arising from the use of the foregoing, all rights of renewal, continuations, divisions, extensions, and the like regarding the foregoing and all claims, causes of action, or other rights arising out of or relating to any actual or threatened infringement by any person relating to the foregoing; and (b) all cost information, sales and pricing data, customer prospect lists, supplier records, customer and supplier lists, customer and vendor data, correspondence and lists, product literature, artwork, design, development and manufacturing files, vendor and customer drawings, formulations and specifications, quality records and reports, and other books, records, studies, surveys, reports, plans, and documents.
As between Kula and Buyer, Kula solely and exclusively owns all rights, title and interests in and to the Intellectual Property. Unless otherwise expressly provided, Kula’s sale of Goods to Buyer only grants Buyer a limited, non-exclusive, non-transferable, non-sublicensable right under Kula’s Intellectual Property to the extent necessary to use the Goods purchased from Kula for Buyer’s internal purposes. No right to transfer, reverse engineer, decompile, disassemble, distribute, or resell Kula’s Goods or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted in writing, Buyer will not modify, change, remove, cover or otherwise obscure any of Kula’s brands, trade or service marks on the Goods. Nothing in the Agreement limits Kula’s ability to enforce its Intellectual Property rights.
Buyer shall immediately notify Kula in writing of any third party intellectual property claim against Buyer in relation to the Goods. In the event that Kula chooses to defend the claim, Buyer shall (a) not admit any liability or take any action in connection with the claim, (b) give Kula sole control of the defense or settlement of any such claim, and (c) provide reasonable information and assistance in such defense. If Kula concludes that the Goods infringe the intellectual property rights of a third party, Kula may in its sole discretion (a) secure the right for Buyer to continue use of the Goods, (b) replace the Goods with similar Goods that do not infringe, or (c) require Buyer to return the Goods and provide Buyer with a refund of the purchase price, with a reasonable deduction for the Goods’ use, damage, and obsolescence.
Kula shall have no responsibility under the Section entitled “Limited Warranty” or the immediately preceding paragraph to the extent the Goods (a) are supplied according to Buyer’s design or instructions, (b) are modified by Buyer after delivery, (c) are combined with other goods, devices, methods, systems or processes not furnished by Kula without its written consent, or (d) are not used in conformity with Kula written instructions.
Kula may enforce this paragraph through any and all legal action, including, but not limited to, injunctive and other equitable relief.
All of the trademarks, service marks and logos displayed on the Goods, in the Agreement and/or in any document or website referenced by them (the “Trademarks”) are registered and unregistered trademarks of Kula. Buyer shall not reproduce, display or otherwise use any Trademarks without Kula’s prior written
permission. Unless agreed otherwise in writing, Buyer is not permitted to use Trademarks, signs and other marks used by Kula, for its own products or services, nor to suggest a (direct or indirect) commercial connection with Kula.
Confidential Information
All non-public, confidential or proprietary information of Kula, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Kula to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Kula in writing. Upon Kula request, Buyer shall promptly return all documents and other materials received from Kula. Kula shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that : (a) is or later becomes generally available to the public by use, publication or the like, through no fault of Buyer; (b) is in Buyer’s prior possession without obligation of confidentiality, as evidenced by Buyer’s competent written records; or (c) is obtained from a third party who had the legal right to disclose such Confidential Information to Buyer without obligation of confidentiality, or (d) has been independently developed by Consultant prior to the Effective Date and contemporaneous competent written evidence of such prior development.
In the event that the Buyer is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any Confidential Information, Buyer will notify Kula promptly so that Kula may seek a protective order or other appropriate remedy. Buyer will reasonably cooperate with Kula in its efforts to seek such protective order or other appropriate remedy and will limit disclosure of such Confidential Information to only that portion of the Confidential Information which is required to be disclosed. Any Confidential Information disclosed pursuant to this paragraph shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
Indemnification, Release, Waiver and Hold Harmless
BUYER RELEASES, RELINQUISHES AND DISCHARGES AND AGREES TO INDEMNIFY, PROTECT, AND SAVE HARMLESS KULA, ITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES FROM ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER INCLUDING THE COST OF DEFENSE THEREOF, FOR ANY INJURY TO, INCLUDING DEATH OF PERSONS (WHETHER THEY BE THIRD PERSONS, CONTRACTORS, OR EMPLOYEES OF EITHER OF THE PARTIES HERETO) AND ANY LOSS OF OR DAMAGES TO PROPERTY (WHETHER THE SAME BE THAT OF EITHER OF THE PARTIES HERETO OR THIRD PARTIES) CAUSED BY OR ALLEGED TO BE CAUSED, ARISING OUT OF, OR IN CONNECTION WITH ANY USE OF GOODS BY BUYER, ITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES . BUYER FURTHER AGREES TO DEFEND ANY SUIT OR ACTION COVERED BY THIS PARAGRAPH BROUGHT AGAINST KULA, ITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES, FOR ANY ALLEGED LOSS, DAMAGE, INJURY TO, OR DEATH OF, PERSONS OR PROPERTY LOSS OR PATENT OR TRADEMARK INFRINGEMENT AND TO PAY ALL DAMAGES, COSTS, AND EXPENSES, INCLUDING ATTORNEY’S FEES ARISING OUT OF, OR IN CONNECTION WITH ANY USE OF GOODS BY BUYER, ITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES THAT IS INCONSISTENT WITH KULA’S INSTRUCTIONS AND SPECIFICATIONS REGARDING SUCH GOODS OR ANY OTHER MISUSE OR ABUSE OF SUCH GOODS.
Assignment
Kula reserves the right to assign all or part of this Agreement, and/or the ability to fulfill any other agreements between Kula and Buyer, to any of its subsidiaries and/or affiliates as it sees fit, without notice to Buyer. No right or interest in this contract may be assigned by Buyer without the prior written consent of Kula. Any attempted delegation of performance by Buyer without prior written consent of Kula will be void and ineffective for all purposes.
Suitability of Goods/Limited Warranty
The warranty provided hereunder applies only to the Buyer. No third party claims will be honored.
Kula warrants that the Goods will conform to the chemical description on the label and SDS and are reasonably fit for the purposes stated on the label when used in strict accordance with the directions. Unless otherwise mentioned herein, Kula excludes all other warranties of any kind, express or implied, as to merchantability, fitness for a particular purpose or any other matter with respect to Goods whether used alone or in combination with other products. These Conditions also apply to replacement Goods. Goods are warranted for four (4) weeks after the delivery date provided, that such Goods are at all times stored unopened at four (4) degrees Celsius.
All information given in Kula’s catalogue or otherwise provided by Kula, or by any agent or representative on Kula’s behalf, relating to the Goods or the performance of the Goods, is given for general guidance only. Buyer agrees that any information so given or provided does not constitute a representation or warranty by Kula as to any matter and shall not be relied on as such. The Buyer itself shall assess whether the Goods and/or information is suitable for Buyer’s desired application(s). Performance may depend on local climatic and other conditions. Sales are made by Kula on the basis that Buyer has satisfied itself of the suitability of the Goods for its requirements.
Any warranty claim by Buyer shall be made within ten (10) days from the discovery of the facts supporting such claim but in no event more than six (6) weeks after the delivery date.
Warranty Exclusions.
Unless otherwise required by law, the warranties provided above do not include/apply to: Defects that did not exist at the time of Delivery;
Damages caused by spillage, improper use, storage or handling, or neglect;
Damages caused by accident and disaster which include, but are limited to, fire, flood, water, wind, and electrical surge;
Goods which have altered or modified in any way without the prior written consent of Kula; Any Goods used in combination with other products;
Any Goods sold through an unauthorized reseller;
Any Goods used in a country or associated region different from the country or associated region in which the Goods were sold to Buyer;
Any Goods that are not used within the timeframe specified on the label if stored at room temperature; Any Goods that are not used within the timeframe specified on the label once they are opened; and
Any Goods not used in accordance with Kula's labels, directions or other published documentation.
Disclaimer of Warranties
THE FOREGOING WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY WITH RESPECT TO KULA’S GOODS AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, KULA HEREBY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, EXPRESSED, IMPLIED, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS (WHETHER ARISING FROM STATUTE, OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING, OR USAGE OF TRADE). THIS WARRANTY IS NOT TRANSFERABLE FROM THE ORIGINAL BUYER TO A SUBSEQUENT OWNER. FURTHER, KULA IS NOT LIABLE IN CASES OF DELIBERATE, NEGLIGENT OR ACCIDENTAL MISUSE OF THE GOODS, USE WITH OTHER PRODUCTS, DAMAGE CAUSED BY DISASTER OR MODIFICATIONS DONE BY ANYONE OTHER THAN KULA. KULA DOES NOT WARRANT THAT THE GOODS WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY EITHER ALONE OR IN COMBINATION WITH OTHER PRODUCTS. KULA DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS GOODS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL KULA BE LIABLE TO BUYER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), WARRANTY, STRICT LIABILITY, OR OTHERWISE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, THE COST OF LABOR, REQUALIFICATION, DELAY, BUSINESS INTERRUPTION, COSTS FOR THE PROCUREMENT OF SUBSTITUTE GOODS, OR LOSS OF PROFITS, SAVINGS, USE OR GOOD WILL, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF KULA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Buyer’s Exclusive Remedy
THE SOLE AND EXCLUSIVE REMEDY OF BUYER FOR ACTS OR OMISSIONS OF KULA OR ITS EMPLOYEES, AGENTS AND SUB-CONTRACTORS TO BUYER IN RESPECT OF ANY BREACH OF THIS AGREEMENT AND ANY REPRESENTATION, WARRANTY, STATEMENT OR ACT OR OMISSION INCLUDING NEGLIGENCE ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT IS THE REPLACEMENT OF NONCONFORMING GOODS OR THE ISSUANCE TO BUYER OF CREDIT OR REFUND FOR THE PURCHASE PRICE OF THE NONCONFORMING GOODS, AT KULA’S DISCRETION. IN THE EVENT OF BREACH OR REPUDIATION OF THE CONTRACT BY KULA, BUYER SHALL NOT BE ENTITLED TO ANY CONSEQUENTIAL OR EXEMPLARY DAMAGES. IT IS THE INTENT OF THE PARTIES THAT THIS REMEDY PROVIDED HEREIN IS THE SOLE REMEDY AVAILABLE TO BUYER AND IS NOT CUMULATIVE OF THOSE PROVIDED BY COMMON LAW OR STATUTE. IN NO EVENT SHALL KULA BE LIABLE TO BUYER, ITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES, OR AFFILIATES FOR MORE THAN THE APPLICABLE PURCHASE PRICE OF THE GOODS SOLD BY KULA TO BUYER. BUYER UNDERSTANDS AND ACKNOWLEDGES THAT KULA RELIED ON THIS PROVISION IN PRICING ITS GOODS.
Stewardship
The Buyer shall (i) engage only properly instructed, qualified personnel (ii) comply with all applicable laws, regulations and industry standards regarding the handling, transport, storage, labeling, use and disposal of the Goods, (iii) follow at all times all safe use and disposal practices as recommended by Kula, and (iv) use the Goods only for their intended purposes.
Applicable Laws and Forum Selection
This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the State of Delaware and the applicable federal laws of the United States of America, except that conflict of law rules shall be disregarded. Furthermore, the exclusive venue for resolving any dispute action, proceeding or claim arising from or relating to this Agreement between the Parties shall lie in the State of Delaware.
The parties expressly agree that the United Nations Convention on Agreements for the International Sale of Goods shall not apply to this Agreement. This choice of jurisdiction above not prevent Kula from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations of this Agreement in any appropriate jurisdiction.
Relationship of the Parties.
The relationship between Buyer and Kula is that of buyer and seller, as independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between Kula and Buyer, and neither Buyer nor Kula shall have the authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries.
This Agreement is for the sole benefit of Buyer and Kula and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever hereunder.
Severability
The unenforceability or invalidity of any provision of this Agreement shall not affect the enforceability or validity of any other provision herein, and the invalidity or unenforceability of any provision to any specific person or circumstance shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances. However, such a term or clause may be revised to the extent required according to the opinion of the court to render the Agreement enforceable or valid, and the rights and responsibilities of the parties shall be interpreted and enforced accordingly, so as to preserve their agreement and intent to the fullest possible extent.
No Offset
All payments due by Buyer to Kula under any sale between the parties are to be made by Buyer without offset or other reduction.
Survival of Terms
Except as otherwise contemplated by this Agreement, all covenants and agreements of the parties contained herein shall survive the delivery and acceptance date.
Cancellation
Buyer shall not have the right of cancellation, except upon the written consent of Kula. When cancellation is accepted, Kula reserves the right to make a cancellation charge of up to 25% of the price for the applicable Goods.
Costs
Buyer hereby agrees to reimburse Kula for all costs and expenses (including reasonable attorney’s fees) incurred by Kula in connection with any legal proceeding commenced hereunder or otherwise arising out of this Agreement for recovery of Goods sold or for collection of monies due hereunder.
Remedies; No Waiver
The remedies herein shall be cumulative and in addition to any other or further remedies provided in law or equity. Buyer consents to injunctive and other equitable interim or permanent relief as may be requested by Kula without a requirement to post a bond or other security and awarded by a court. Kula’s forbearance or failure to exercise, at any time, any of its rights and/or remedies herein shall not be deemed a subsequent waiver thereof nor a waiver of any other right or remedy contained herein. No waiver or breach of any provision of this Agreement shall constitute a waiver of any other provision or breach.
Notices.
All legal notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Invoice and in the case of Kula with copy to “OrganicNE@KulaBio.com” and “Mark Haddad, Foley Hoag LLP, 155 Seaport BLVD, Boston, Massachusetts 02210”. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Amendments
No waiver or breach of any provision of this Agreement shall constitute a waiver of any other provision or breach. No waiver, consent, modification, amendment or changes to the terms of the Agreement will be binding unless in writing and signed by both Kula and Buyer.
Headings
The headings herein are for convenience only and do not define or limit the provisions hereof.
Compliance with Laws
Buyer shall comply with all applicable country, state, and local laws and regulations including but not limited to laws and regulations governing the manufacture, processing, distribution, transportation, labeling, handling, discharge, treatment, storage, installation, disposal, recycling, reclamation, use, exporting, importing, or other activity relating to the Goods sold hereunder. Buyer shall have the sole responsibility to obtain any transportation, storage, use, or other licenses required under applicable laws and regulations.
Entire Agreement.
This Agreement sets forth the entire agreement between Buyer and Kula with respect to the subject matter hereof and supersedes any and all prior and contemporaneous writings, communications, agreements and understandings relating to the same subject matter.
Export
Buyer shall have the sole responsibility at its expense to obtain any and all export or import licenses or permits required under applicable laws and regulations.
The Goods are subject to United States, European Union and local export-control laws and regulations. Buyer may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Goods to any destination, entity, or person prohibited by United States, European Union or local laws or regulations.
Resale
If Kula believes that Buyer is purchasing Goods other than for its own account without Kula’ prior written consent, Kula reserves the right to cancel any PO and withhold delivery of any Goods.
Personal Data
At times, Kula and Buyer may exchange information that falls under the protection of certain data security and privacy laws. Each of Kula and Buyer will, to the extent applicable, comply with (i) the EU General Data Protection Regulation (Regulation 2016/679) (the “GDPR”) and the applicable laws, rules and regulations of the individual EU member states implementing the GDPR, (ii) all other applicable data protection laws, regulations, rules and orders of the EU and U.S. to the extent relevant to this Agreement and activities thereunder, and (iii) all applicable data protection laws, regulations, rules and orders of countries outside the EU and U.S. to the extent relevant to this Agreement and activities thereunder.