These Terms and Conditions of Service (“Terms”) govern all industrial hemp product testing services (“Service”) offered for sale by KCA Laboratories LLC, a Kentucky limited liability company (“KCA”) to persons or entities requesting such services (“Client”). All references to “Client” shall include all parent(s), subsidiaries and affiliates of the entity executing the Sample Submission Request. KCA and Client may be referred to individually as a “Party” and collectively as “Parties”.

KCA's performance under any sample submission request, purchase order, contract, agreement, offer, proposal, or invoice, whether made online or in hard copy (collectively “Sample Submission Request”), is expressly conditioned upon Client's acceptance of these Terms and Conditions of Service. Client’s submission of samples is deemed acceptance of these Terms and Conditions of Service.

1. Pricing

The prices included in this Sample Submission Request shall only apply to the contracted services quantities and for the term set forth in these Terms and Sample Submission Request. During the term of this Sample Submission Request and for five (5) years thereafter Client shall keep the Service pricing confidential and shall not use or disclose to a third party the Service pricing for any reason except to the extent a Party is required by law.

Prices on KCA’s website, catalogs or in KCA quotes are subject to change without notice and all such prices expire and become invalid if not accepted within 30 calendar days from the date of issue, unless otherwise noted by KCA in writing. Price extensions, if made, are for Client’s convenience only and they, as well as any mathematical, stenographic or clerical errors, are not binding on KCA. Prices shown may not include any sales, excise, or other governmental tax or charge payable by KCA to any federal, state or local authority. Any taxes now or hereafter imposed upon the Services will be added to the purchase price, and Client shall reimburse KCA for any such tax or provide KCA with an acceptable tax exemption certificate.

2. Payment

For Clients with pre-approved credit from KCA, terms are net 15 days from the date of invoice unless otherwise noted on the invoice. Payment for all other Client Service is due at the time the Sample Submission Request is issued and no Service shall commence until receipt of payment. The challenge of a test result will not entitle a customer to defer payment.

All payments shall be made in United States of America dollars. Payments due hereunder shall be made only in a form tender approved in writing by KCA. KCA may, in its sole discretion, apply Client’s payment against any open charges. Past due accounts bear interest at the lesser of 5% per month or the maximum rate permitted by applicable law. KCA may exercise setoff or recoupment to apply to or satisfy Client’s outstanding debt. Client shall have no right of setoff hereunder, the same being expressly waived hereby.

3. Performance

Requests for Services can be made by telephone, email, or in writing; however, Client must confirm requests for Services in writing, using a KCA Sample Submission Request forms prior to the commencement of the Services. Samples must be shipped to KCA for testing following directions provided by KCA.

KCA may, at its sole discretion and without notification to Client, send samples to partner laboratories as needed to complete the Services requested. Results for Services completed by a partner laboratory shall be issued on KCA Certificates of Analysis.

If KCA anticipates that it will not be able to complete all or a portion of the Services on the date(s) indicated in the Sample Submission Request, KCA shall promptly notify Client of the delay and the new anticipated date of completion. If KCA is unable to complete the Service within thirty (30) days after the Sample Submission Request is submitted, either party may cancel the Service, without liability or penalty to the other. In the event Client timely cancels any Service as provided herein, Client's sole and exclusive remedy shall be limited to a refund of any payment for Service already made.

4. Samples

Client recognizes the reliability and accuracy of the Service is dependent upon the sampling procedures and integrity of the shipped sample. KCA shall not be responsible for any test results resulting from failure to follow KCA’s sampling procedures or shipping instructions.

Unless otherwise agreed to by the parties in writing, title to and risk of loss of any samples sent to KCA shall remain with Client. If applicable, the destination routing of shipments will be at KCA's option.

Client authorizes KCA to store all samples for a reasonable period after issuance of the final testing report. After completion of the Services, KCA is authorized to destroy or otherwise dispose of the samples. Any portion of samples found or suspected to be hazardous or illegal according to state or federal laws will, in KCA’s sole discretion, be either returned to the Client or properly disposed of as required by law at Client’s expense.

5. Confidential Information

KCA retains final testing reports and supporting documentation for five years following the Services and may retain such information for longer period of time as required by law. All communications concerning the Services, test results, reports, intellectual property  and information provided by Client to KCA (“Confidential Information”) will be treated in confidence and will not be divulged to any third party except (i) to persons involved in the performance of Services as necessary, in KCA’s sole discretion, to enable completion of the Services and (ii) as required by law, regulation or valid court order, in which case KCA, to the extent not prohibited, will give Client prompt written notice of such requirement.

KCA shall have the right to store, use and publish all analysis results in an anonymous form which does not identify the Client.

Client hereby acknowledges and agrees that any and all Intellectual Property that is developed, conceived or reduced to practice by representatives of KCA in the performance of the Services and that is (i) within the business field of KCA, and (ii) does not rely on or incorporate customer materials or confidential information (“KCA Developed IP”), is not part of the Services and all rights shall vest in and be the sole and exclusive property of KCA. Customer shall be allowed to use the KCA Developed IP at no cost to customer to the extent necessary for use of the Services.

6. Taxes and Associated Costs

Client shall be responsible for any and all taxes arising in connection with the purchase of the Services, except for KCA's income taxes. In addition, any increase in freight and related costs, any material increase in the cost of producing the Services or any materials used therein, any new or increase in any duties, tariffs, taxes and/or any other governmental charge that increases the cost to KCA in producing or selling the Services may, at KCA's option, be added to the Service prices.

7. Failure to Pay

If Client fails to make any payment when due, KCA, at its option, may suspend performance hereunder, including withholding or removing online access to Client Certificates of Analysis regardless of whether they were issued previously, until receipt of payment and/or may require Client to make arrangements to ensure timely payment of future invoices. In addition, Client shall reimburse KCA for all actual costs of collection, including but not limited to reasonable attorney fees. Client may not setoff any sums allegedly or actually owed by KCA to Client against any amount due hereunder.

8. Infringement

Client agrees to protect and defend KCA against any claim of patent infringement arising from Client's samples and to hold KCA harmless from damages, costs and expenses attributable to any such claim.

9. WARRANTEES

TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, KCA MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT, ADVICE OR TESTIMONIAL PROVIDED BY KCA OR ANY OF KCA’S AGENTS, EMPLOYEES OR CLIENTS WILL CREATE A WARRANTY. CLIENT'S SOLE AND EXCLUSIVE REMEDY SHALL BE LIMITED TO A REFUND OF PAYMENT FOR SERVICES.

10. LIMITATION OF LIABILITY

THE LIABILITY OF KCA ARISING OUT OF THESE TERMS, SAMPLE SUBMISSION REQUEST OR SERVICES, UNDER ANY THEORY OF LIABILITY, SHALL NOT IN ANY CASE EXCEED THE INVOICED COST OF THE SERVICES GIVING RISE TO THE CLAIM. KCA SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL SPECIAL OR CONTINGENT DAMAGES WHATSOEVER, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO SERVICES SOLD OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KCA SHALL HAVE NO LIABILITY FOR PENALTIES, SPECIAL OR PUNITIVE DAMAGES, DAMAGE FOR LOST PROFITS OR REVENUES, LOSS OF USE OF MATERIALS, OR FOR ANY OTHER TYPES OF ECONOMIC LOSS.

11. COMPLIANCE WITH LAW

CLIENT EXPRESSLY WARRANTS THAT IT HAS ALL APPLICABLE LICENSES IN ANY JURISDICTION WHERE IT CONDUCTS BUSINESS INCLUDING, BUT NOT LIMITED TO, GROWER AND/OR PROCESSOR/HANDLER LICENSES, LEGALLY PERMITTING CLIENT TO HOLD OR TRANSFER ANY SAMPLES PROVIDED TO KCA. CLIENT SHALL PROVIDE EVIDENCE OF REGISTRATION UNDER A STATE’S INDUSTRIAL HEMP PROGRAM OR ANY OTHER COMPLIANCE DOCUMENTATION UPON REQUEST.

CLIENT EXPRESSLY WARRANTS THAT: (I) ALL SAMPLES PROVIDED TO KCA FOR TESTING WERE PRODUCED AND SHIPPED IN COMPLIANCE WITH ALL APPLICABLE FEDERAL LAWS, THE LAWS OF THE STATE OF KENTUCKY, 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 HEMP FARMING ACT OF 2018; 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 KENTUCKY DEPARTMENT OF AGRICULTURE OR APPLICABLE STATE DEPARTMENT.

CLIENT EXPRESSLY WARRANTS THAT IT WILL COMPLY WITH ALL LAWS, STATUTES, REGULATIONS, JUDICIAL OR GOVERNMENTAL RESTRICTIONS, CODES AND ORDINANCES, WHETHER LOCAL, STATE OR FEDERAL, APPLICABLE TO CLIENT’S USE OF KCA’S SERVICES AND AGREE TO DEFEND, INDEMNIFY AND HOLD KCA HARMLESS FOR ANY AND ALL CLAIMS, DEMANDS, SUITS AND LIABILITIES ARISING FROM CLIENT’S FAILURE TO COMPLY WITH ALL FEDERAL, STATE AND LOCAL LAWS, RULES AND REGULATIONS APPLICABLE TO CLIENT’S USE OF KCA’S SERVICES, INCLUDING THE PAYMENT OF REASONABLE ATTORNEYS’ FEES, EXPERT WITNESS FEES, COSTS AND EXPENSES. CLIENT SHALL IMMEDIATELY PROVIDE KCA A COPY OF ALL COMMUNICATIONS RECEIVED FROM OR SENT TO ANY REGULATORY BODY THAT PERTAINS TO THE SERVICES PURCHASED FROM KCA.

12. Excusable Delay

Except for failure to pay by Client, neither party shall be liable to the other for failure of or delay in performance when such failure or delay is caused by conditions beyond such party's control including, but not limited to war, strike, labor dispute, epidemic or pandemic illness, fire, flood, tornado, hurricane, government intervention, embargo, shortage or commercial unavailability of raw materials or transportation services, change in law or regulation, or any Act of God, act of terrorism or any other condition not occasioned by such party's negligence. The party asserting force majeure shall give the other party written notice within a reasonable time after knowledge thereof.

13. Termination

In the event there are material changes in business, economic or physical conditions, exchange rates or other circumstances, whether foreseen, foreseeable or unforeseen, which materially increase the cost to KCA in completing the Services, KCA may terminate the Sample Submission Request without liability or penalty on thirty (30) days prior written notice to Client. During such notice period, the parties will consult with each other on possible modifications to the Sample Submission Request taking into account the increased costs incurred by KCA. Upon expiration of such notice period, and unless the parties have agreed in writing on an amendment to the Sample Submission Request, the Sample Submission Request shall terminate and neither party shall have any liability to the other arising out of or relating to such material changes or the termination of the Sample Submission Request.

14. Assignment

Client shall not assign any rights or obligations under these Terms or Sample Submission Request without prior written consent of KCA. Any purported assignment or delegation in violation of this is null and void. No assignment or delegation relieves Client of any obligations under these Terms. Unless otherwise expressly agreed by the parties in writing, nothing in these Terms or Sample Submission Request shall be construed to confer upon or give to any person or entity, other than the parties to these Terms or Sample Submission Request, any rights or remedies under or by reason of the Sample Submission Request.

15. Governing Law and Jurisdiction

All matters arising out of or relating to these Terms, Sample Submission Request, or Services are exclusively governed by and construed in accordance with the laws of the State of Kentucky without giving effect to any choice or conflict of law provision or rule (whether of the State of Kentucky or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Kentucky.

16. Arbitration

Any controversy or claim arising out of or relating to these Terms, Sample Submission Request, or Services shall be settled by arbitration in Kentucky administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

17. Changes

No provision of any verbal or written correspondence or any other document exchanged by the parties shall alter or add to any of the terms of these Terms or Sample Submission Request unless both parties expressly consent to such additional or replacement terms or conditions in writing. No Sample Submission Request shall be deemed accepted by KCA unless confirmed in writing.

18. Order of Precedence

In the event of any inconsistency or conflict between or among the provisions of the Sample Submission Request, Terms, specifications or other documents, such inconsistency or conflict shall be resolved by the following descending order of preference:

1. Order-specific provisions included by KCA in any Sample Submission Request;
2. Order-specific provisions included by Client in any Sample Submission Request only if they have been explicitly confirmed by KCA in writing; and,
3. These Terms and Conditions of Service and any supplements thereto.

In cases of ambiguity in the Sample Submission Request, Terms, or other documents, Client shall be responsible for providing KCA clarification prior to KCA commencing or continuing Service.  KCA, in its sole discretion, shall not be required to proceed or continue with any order until it has provided written confirmation and acceptance of Clients clarification and any extension of the completion date required by KCA as a result of associated delay.

19. Severability

If any of these Terms, or the application of these Terms, in whole or in part, are invalid or unenforceable to any extent, the remainder of these Terms, other than those portions determined to be invalid or unenforceable, shall not be affected, and the remaining Terms or portions thereof shall be valid and enforceable to the fullest extent permitted by law.

20. Complete Agreement

The Terms and Sample Submission Request embody the complete agreement and understanding between the parties relating to the sale of KCA’s Services. These Terms and Sample Submission Request supersede and preempt any and all prior understandings, agreements or representations by or between the parties, whether written or oral, relating to the subject matter hereof in any way. Either party's failure to enforce any of these provisions shall not be construed as a waiver of such provisions and shall not affect the right of such party to enforce each and every provision hereof in accordance with its terms.