This Contract for the Sale of Goods (“Contract”) is entered between 132 Enterprises, LLC D/B/A KLONE, MED License 403R-00974 (the “Seller”), and Customer of Klone Colorado, (the “Buyer”). Seller and Buyer are herein referred to as a Party or the Parties.
The Parties agree as follows:
1. Sale of Goods. The Seller shall sell to the Buyer and the Buyer shall purchase
from the Seller the goods set forth on the applicable invoice (the “Goods”) in the quantities and at the prices stated in such invoice (“Invoice”), an example of which is attached to this Contract.
2. Invoices; Payment. Unless otherwise stated in the Invoice, payment for the
Goods is due immediately upon Buyer’s receipt of the Goods at the Seller’s facility.
3. Title; and Risk of Loss. Unless otherwise stated in the Invoice, the Buyer shall
retrieve the Goods from the Seller’s facility located at 322 N. Norfolk Street, Unit I, Aurora, CO 80011. Title to and risk of loss of the Goods will pass to the Buyer upon Buyer taking possession of the Goods at Seller’s facility. The Seller will not be liable for any losses, damages, penalties, or expenses for Buyer’s failure to retrieve the Goods at the retrieval time and date agreed upon in the applicable Invoice.
4. Personal Guaranty. Buyer’s obligations under this Contract shall be personally
guaranteed by the signer below, an Associated Key Badge holder representing the
business he/she has a direct beneficial interest in as defined by the Colorado Retail
Marijuana Code, as evidenced by his signature on this Contract and the attached Personal Guaranty. The attached Guaranty shall apply to all of Buyer’s obligations under this Contract, including all orders placed with Seller.
5. Disclaimer of Warranty; Due Diligence; No Returns.
(a) The Goods are being sold “as is,” and the Seller disclaims all warranties
of quality, whether express or implied, including the warranties of merchantability
and fitness for particular purpose.
(b) The Buyer acknowledges that it has not been induced by any statements or
representations of any person with respect to the quality or condition of the Goods and that no such statements or representations have been made. The Buyer acknowledges that it has relied solely on the investigations, examinations, and inspections as the Buyer has chosen to make and that the Seller has afforded the Buyer the opportunity for full and complete investigations, examinations, and inspections of the Goods prior to purchase.
(c) ALL SALES ARE FINAL. Buyer acknowledges that upon execution of this
Contract and Title passing to Buyer pursuant to Paragraph 3, Buyer has no rights
whatsoever to return of the purchase price and Seller will not accept a return of any part of the Goods.
6. Limitation of Liability. The Seller will not be liable for any indirect, special,
consequential, or punitive damages (including lost profits) arising out of or relating
to this Contract or the transactions it contemplates (whether for breach of contract,
tort, negligence, or other form of action) and irrespective of whether the Seller has
been advised of the possibility of any such damage. In no event will the Seller’s
liability exceed the price the Buyer paid to the Seller for the specific Goods provided by the Seller giving rise to the claim or cause of action.
7. Indemnification. Buyer agrees to indemnify, defend and hold Seller harmless from any and all claims, suits, investigations or liabilities brought against Buyer by third-
parties relating to the manufacture, distribution, use, sale, or consumption of the Goods.
Seller shall be entitled to hire its own representatives, including but not limited to attorneys and experts in investigation and defense of any such claim and shall be entitled to settle any such claim without consulting Buyer. Buyer shall be responsible for all costs, fees and expenses incurred by Seller in defending or settling any such claim, including but not limited to reasonable attorney’s fees and court costs.
8. Representations. The parties hereby represent that Buyer and Seller have all
necessary licenses and approvals required to fulfill all obligations under this Contract in accordance with all laws, rules and regulations governing the Parties’ licenses and business operations; that the Goods have been cultivated or manufactured in accordance with all laws, rules and regulations governing the Goods and Seller’s licenses; and that all individuals signing this Agreement have all necessary right and authority to bind the entity on which he/she is signing on behalf of. Buyer represents and understands its duty to promptly and accurately report this transaction in METRC in accordance with all laws, rules and regulations governing its licenses and business operations.
9. Governing Law and Designation of Forum.
(a) The laws of the State of Colorado, without giving effect to conflicts of law
principles, govern all matters arising out of or relating to this Contract and the transactions it contemplates, including, without limitation, its interpretation, construction, validity, performance (including the details of performance), and enforcement.
(b) A party bringing a legal action or proceeding against the other party arising
out of or relating to this Contract or the transactions it contemplates must bring the legal action or proceeding in any court of the State of Colorado sitting in Arapahoe County. Each party to this agreement consents to the exclusive jurisdiction of the courts of the State of Colorado sitting in Arapahoe County, for the purpose of all legal actions and proceedings arising out of or relating to this Contract or the transactions it contemplates.
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10. Force Majeure. The Seller will not be liable for delays in performance or for non-
performance due to unforeseen circumstances or causes beyond the Seller’s reasonable control.
11. Assignment; Delegation. The Buyer may not assign any of its rights under this
Contract or delegate any performance under this agreement, except with the prior written consent of the Seller. Any purported assignment of rights or delegation of performance in violation of this section is void.
12. Recovery of Expenses. In any adversarial proceedings between the parties
arising out of this Contract or the transactions it contemplates, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the prevailing party incurs, including legal fees and expenses.
13. Entire Agreement. This Contract constitutes the entire agreement between the
parties with respect to the subject matter of this agreement and supersedes all other agreements, whether written or oral, between the parties.
14. Amendments. No amendment to this Contract will be effective unless it is in
writing and signed by both parties.
15. Counterparts; Electronic Signatures. This Contract may be signed in one or
more counterparts, which together will form a single Contract. This Contract may be signed electronically. Each party is signing this Contract on the date stated below that Party’s signature.
Personal Guaranty of Contract for Sale of Goods
A. Concurrently herewith, Buyer and Seller, have entered into a Contract for the Sale of Goods (the “Contract”) pursuant to which Seller has agreed to sell and Buyer has agreed to purchase Goods.
B. Guarantor desires to execute this Guaranty to induce Seller to enter into the
Contract. Guarantor acknowledges that it expects to derive financial or other benefit from the purchase of the Goods under the Contract for Sale of Goods, and further acknowledges that Seller would not execute the Contract if Guarantor did not execute this Guaranty.
THEREFORE, Guarantor and Seller hereby agree as follows:
1. Guarantor unconditionally and irrevocably guarantees the prompt payment by Buyer of all sums payable by Buyer and the prompt performance by Buyer of each and every one of the terms, conditions and covenants of the Contract and any amendments thereto that are to be kept and performed by Buyer.
2. Guarantor’s obligations hereunder are primary and direct to Seller, joint and several and are independent of Buyer’s obligations.
3. The provisions of the Contract may be altered or modified by agreement between
Buyer and Seller at any time, without the consent of and without notice to Guarantor. This Guaranty shall guarantee the performance of the Contract as so altered or modified in accordance with the terms of the Contract and this Guaranty, whether or not any alteration or modification is detrimental to Guarantor and whether or not Guarantor receives notice of such alteration or modification.
4. This Guaranty shall not be affected by Seller’s waiver, failure or delay in enforcing
any of its rights.
5. Notwithstanding anything elsewhere herein to the contrary, if Buyer defaults under the Contract, Seller may proceed immediately against Guarantor or Buyer, or both, or Seller can enforce against Guarantor or Buyer, or both, any rights that it has under the Contract, and/or pursuant to applicable laws. If the Contract terminates and Seller has any rights it can enforce against Buyer after termination, Seller can enforce those rights against Guarantor without giving previous notice to Buyer or Guarantor, or without making any demand on either of them.
6. Guarantor hereby waives any suretyship defenses they might have under the law of any state. Guarantor waives all rights and remedies accorded by applicable law, including, without limitation, any right to require Seller to (1) proceed against Buyer; (2) proceed against or exhaust any security that Seller holds from Buyer; or (3) pursue any other remedy in Seller’s power. Guarantor waives any defense based on any incapacity, lack of authority, death or disability of Buyer or the failure of Guarantor to file or enforce a claim KLONE Contract for Sale of Goods 5
against the estate (in administration, bankruptcy or other proceeding) of Buyer, and waives any other defense based on the termination of Buyer’s liability from any cause. Guarantor waives all notices, presentments, demands for performance, notices of nonperformance, notices of nonpayment, protests, notices of protest, notices of dishonor, and notices of acceptance of this Guaranty, and waive all notices of the existence, creation, or, incurring of modified, altered, new or additional obligations.
7. Guarantor hereby expressly waives and releases any and all rights of subrogation, reimbursement, indemnity or contribution which Guarantor may now or hereafter have against (i) Buyer, any other guarantor or any person who now or hereafter has direct or contingent liability (whether by contract, at law or in equity) for all or any portion of the obligations guaranteed hereby, or (ii) any property which now or hereafter serves as collateral security for the obligations guaranteed hereby.
8. Guarantor understands and agrees that if Buyer becomes insolvent or is adjudicated bankrupt, whether by voluntary or involuntary petition, or if any bankruptcy action involving Buyer is commenced or filed, or if a petition for reorganization, arrangement or similar relief is filed against Buyer, or if a receiver of any part of Buyer’s property or assets is appointed by any court, Guarantor shall pay to Seller the amount of all accrued, unpaid and accruing payments due under the Contract, to the date when the trustee or administrator accepts the Contract and commences paying same; provided, however, at such time as the trustee or
administrator rejects the Contract, Guarantor shall pay to Seller all accrued, unpaid and accruing payments due under the Contract, and other consideration owed to Seller under the Contract.
9. Nothing shall discharge or satisfy the liability of Guarantor under this Guaranty
except the full performance of the Buyer under the Contract. Guarantor agrees that if any payment or payments or any part thereof made by Buyer to Seller under the Contract are subsequently invalidated, declared to be fraudulent or preferential, or otherwise set aside, and are required to be repaid by Seller to a trustee, receiver, or any other party under any bankruptcy act, state or federal, common law or equitable cause, then to the extent of such repayment, the obligation or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such payment or payments or part thereof had not been made; and such payment or payments to Seller shall be fully guaranteed by this Guaranty even though this Guaranty may have been canceled or surrendered by Seller.
10. Any operation of any present or future debtor’s relief act or similar act or law, or
decision of any court, shall in no way affect the obligations of Guarantor or Buyer to perform any of the terms, covenants or conditions of the Contract or of this Guaranty.
11. The liability of Guarantor hereunder is not contingent or conditioned upon the
genuineness, validity, regularity or enforceability of the documents relating to the Contract and the obligations guaranteed thereunder or the pursuit by Seller of any remedies it may now have or hereafter acquire. Guarantor shall have no authority to revoke this Guaranty, but if any such revocation shall be deemed to have occurred by operation of law or otherwise, the provisions of this Guaranty shall continue to apply notwithstanding such revocation.
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12. Guarantor assumes the responsibility for being and keeping informed of the financial condition of Buyer and of all circumstances bearing upon the risk of nonpayment of the obligations guaranteed hereby. Absent a written notice requesting information by Guarantor, Seller shall have no duty to advise Guarantor of information including information regarding any such circumstances. Accordingly, Guarantor waives any duty on the part of Seller to disclose to Guarantor any facts Seller may now or hereafter know about Buyer, regardless of whether (i) Seller has reason to believe that any such facts materially increase the risk beyond that which Guarantor intends to assume, (ii) Seller has reason to
believe that such facts are unknown to Guarantor, or (iii) Seller has a reasonable
opportunity to communicate such facts to Guarantor.
13. Guarantor represents, warrants, covenants and agrees as follows:
(a) The execution, delivery and performance of this Guaranty by Guarantor does not
and will not: (i) require any authorization which has not been obtained, (ii) contravene any applicable laws or other requirements or any agreement or restriction binding on or affecting Guarantor or its or their properties, or (iii) except as expressly contemplated herein, result in or require the creation or imposition of any lien, claim or encumbrance upon or with respect to any property now or in the future owned by Guarantor. This Guaranty, when executed and delivered by Guarantor, will constitute the legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms;
(b) No actions or other proceedings are pending or, to the best knowledge of Guarantor, threatened against or affecting Guarantor or any of its properties which, if determined adversely, could materially impair the financial condition, operations, properties or prospects of Guarantor or the ability of Guarantor to perform their obligations under this Guaranty.
(c) Guarantor is not involved in any bankruptcy, reorganization, insolvency,
readjustment of debt, dissolution or liquidation proceedings, and to the best knowledge of Guarantor, no such proceedings are contemplated or threatened;
(d) This Guaranty is absolute, unconditional and restricted; and Seller has no duty to notify Guarantor, including without limit, any duty to provide notice of (i) any default by Buyer, (ii) any failure by Buyer to make any payment due under the Contract, (iii) any updates related to information received by Seller or (iv) any alteration or modification of the Contract; and Guarantor’s obligation is not created each month but is a single obligation, the amount of which is reasonably ascertainable; and
(e) Guarantor represents, warrants, acknowledges and agrees that each and every
waiver set forth herein is made with full knowledge of its importance and consequences.
14. The amount of Guarantor’s liability and all rights, powers and remedies of Seller
hereunder and under any other agreement now or at any time hereafter in force between Seller and Guarantor, including any other Guaranty executed by Guarantor relating to any indebtedness or obligation of Buyer to Seller, shall be cumulative and not alternative, and such rights, powers and remedies shall be in addition to all rights, powers and remedies given to Seller by law.
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15. The term “Seller” whenever used refers to and means the Seller in the foregoing
Contract, specifically named, and also any assignee of said Seller whether by outright assignment or by assignment for security, and also any successor to the interest of said Seller or of any assignee in such Contract or any part thereof, whether by assignment or otherwise.
16. Any notice, request or other communication to be given by any party hereunder shall be in writing and shall be sent by electronic mail, to the following e-mail addresses:
Seller: 132 Enterprises, LLC d/b/a KLONE
17. This Guaranty constitutes the entire agreement between Guarantor and Seller with respect to the subject matter hereof. No provision of this Guaranty or right of Seller hereunder may be either modified or waived in whole or in part, nor can Guarantor be released from Guarantor’s obligations hereunder, except by a writing duly executed by Seller and Guarantor.
18. Guarantor hereby expressly and unconditionally waives, in connection with any suit, action or proceeding brought in connection with this Guaranty, the right to a trial by jury. Nothing herein contained shall prevent or prohibit Seller from instituting or maintaining a separate action against Guarantor with respect to any asserted claim.
19. This Guaranty and all rights, obligations and liabilities arising hereunder shall be
governed by and construed in accordance with the laws of the State of Colorado, without regard to conflicts of law principles.
20. It is understood and agreed that this Guaranty is unconditional and continuing, and a guaranty of payment and performance and not of collection.
21. If any provision or portion of this Guaranty is declared or found by a court of
competent jurisdiction to be unenforceable or null and void, such provision or portion thereof shall be deemed stricken and severed from this Guaranty, Guarantor shall nonetheless still be liable under this Guaranty, and this Guaranty shall continue in full force and effect, with respect to all guaranteed obligations, notwithstanding any such unenforceability or invalidity.
22. If any party to this Guaranty commences litigation for the interpretation, enforcement, termination, cancellation or rescission of this Guaranty, or for damages for the breach of this Guaranty, the prevailing party in such action shall be entitled to its reasonable attorneys’ fees and court and other costs incurred, to be paid by the losing party as fixed by the courtor in a separate action brought for that purpose.
23. This Guaranty may be executed in two or more separate counterparts, each of which shall be deemed an original, and all of which when taken together shall constitute one and the same instrument.
KLONE Contract for Sale of Goods 8 IN WITNESS WHEREOF, Guarantor has executed this Personal Guaranty as of the day and year written below its signature.