Exhibit 10.1

SUPPLY AND DISTRIBUTION AGREEMENT

 

This Joint Development, Supply and Distribution Agreement (“Agreement”) is entered into as of November 14, 2019 (the “Effective Date”) by and between Ceed2Med, LLC, a Florida limited liability company, located at 121 Commerce Road, Boynton Beach, FL 33426 (“Ceed2Med”), and EXACTUS, INC., a Nevada corporation, located at 80 NE 4th Ave, Delray Beach, FL 33483 (“Exactus”).

 

WHEREAS, Exactus is a producer of Industrial Hemp Floral Biomass (“Flower”);

 

WHEREAS, Ceed2Med is in the business of distributing Flower and has substantial experience in selling, marketing and distribution of Flower; and

 

WHEREAS, Ceed2Med is desirous of purchasing Flower from the Exactus and the Exactus is desirous of selling the Flower to the Ceed2Med; and

 

WHEREAS, the parties desire to enter into this Supply Agreement to enumerate certain terms and conditions as set forth herein.

 

NOW THEREFORE, in consideration of the foregoing, the parties agree as follows:

 

1. Recitals. The Recitals are incorporated herein by reference.

 

 

2.1 Pricing. The initial price for Flower to be charged to Ceed2Med shall, at all times during the Term, be as set forth in Exhibit 1 (the “Purchase Price”).

 

2.2 Ceed2Med shall pay all Purchase Price within 30 days of receipt of the Flower from the Exactus; provided however that for that portion of the Purchase Price which is based upon 50% of the gross sales price invoiced by Ceed2Med upon re-sale, that balance shall be paid to Exactus within 30 days of the date of Ceed2Med’s re-sale as determined by the invoice date on Ceed2Med’s re-sale invoice.

 

2.3 If any payment to be made hereunder is not made on or before the date such payment is due, the Party which is liable for such payment shall also pay interest on such late payment, from the date such payment was due through the date such payment is made at a rate of interest per annum equal to 18% of the unpaid amount. Any overdue amount or delivery may be set off against any other required delivery or payment under this Agreement.

 

2.4 Each Party will be responsible for the payment of and will pay any applicable taxes, duties and levies levied on that Party from time to time in relation to this Agreement. Each Party will charge, collect and timely remit all taxes that it is required to collect and remit under Applicable Law in connection with this Agreement.

 

2.5 Minimum Quantity. Ceed2Med shall purchase a minimum of 10,000 lbs of 2019 Crop harvest of Flower, untrimmed dry industrial hemp flower in 150 lb humidity-controlled totes, FOB at Exactus One World Farms in Cave Junction, OR (“Minimum Order”).

 

2.6 Forecasts. Ceed2Med may provide Exactus with a non-binding, rolling 12 month forecast or blanket purchase order for the estimated quantities of Flower that Ceed2Med anticipates purchasing (“Forecast”) in order to ensure an uninterrupted supply to meet the demand schedule, attached hereto as Exhibit A (the “Demand Schedule”). Any Forecast provided by Ceed2Med shall be clearly labeled with the word “FORECAST” or any other similar terms that identify the document as a Forecast instead of a firm purchase commitment. Exactus agrees to work with Ceed2Med to meet the Demand Schedule and to accommodate fluctuations in the Forecast. The Forecasts shall represent reasonable estimates for planning purposes only and will not obligate Ceed2Med in any way. However, if at any time Ceed2Med is aware of a change or a short fall in the Forecast or the Demand Schedule, it will immediately notify the Exactus in writing of such deviation, and provide an updated Demand Schedule. The parties acknowledge that any such Forecast shall be considered as a non-binding purchase commitment unless otherwise specified in such Forecast or blanket purchase order. If Ceed2Med requests a quantity of a Flower in excess of the forecasted quantity reflected on the Demand Schedule (“Additional Amounts”), Exactus shall use commercially reasonable efforts to accommodate such request. If such Additional Amounts require additional fees, Exactus shall promptly advise the Ceed2Med of any and all anticipated additional fees (including labor overtime, material expedite fees and/or expedite shipping fees) for Ceed2Med’s consideration and written approval. Upon written approval by Ceed2Med, Exactus shall proceed to accommodate Ceed2Med’s request, and the approved additional fees shall be itemized as a separate line item on the Exactus’ invoice.

 

2.7 Purchase Orders. Exactus shall deliver Flower in accordance with the quantities, delivery dates, and delivery location specified in written and signed purchase orders delivered by Ceed2Med (“Purchase Orders”). Each Purchase Order will specify: (i) the name and quantity ordered; and (ii) the billing ship-to addresses; (iii) the unit or aggregate price; (iv) the required delivery dates; and (v) any special instructions, requirements, or any other required specifications (the “Specifications”). Exactus shall have no obligation to supply any quantities of Flower other than the Minimum Order, but may in Exactus’s sole discretion supply Flower to Ceed2Med in excess of the Minimum Order. Exactus shall use commercially reasonable efforts to deliver Flower to Ceed2Med based upon the delivery dates set forth in any Purchase Order. Ceed2Med shall have the right to cancel any unshipped portion of a Purchase Order, in whole or in part, at any time until shipment, in which event Ceed2Med shall be liable to Exactus for the actual amount of Exactus’s reasonable costs incurred in contemplation of performance of the canceled portion. No change in the Specifications shall be made by the other party except with prior written approval of the party providing the Specification. Any changes that affect form, fit or function of the Flower will be reflected in updated Purchase Orders. Exactus shall not ship any Flower that have had such changes made until new Purchase Orders have been issued.

 

2.8 Packing and Shipping: All Flower shall be delivered in bulk, shucked and bucked, untrimmed, in stackable pallet-sized totes, marked and otherwise prepared in accordance with good commercial practices and any specifications noted on the Purchase Order. Upon Ceed2Med’s written request which may be included in the Purchase Order, the Exactus will include a material safety data sheet (MSDS) and/or certificate of analysis with each shipment.

 

2.9 Risk of Loss: Risk of loss and damage to the Flower shall remain with the Exactus until delivery to Ceed2Med, FOB Ceed2Med’s designated location. The risk of loss shall pass to Ceed2Med upon delivery of the Flower to Ceed2Med at Ceed2Med’s designated location.

 

2.10 Failure to Purchase Minimum Order. If, without excuse either by law, an express agreement in writing by both parties, or expressly hereunder, Ceed2Med fails to purchase the Minimum Order from the Exactus and Exactus is ready, willing, and able to tender the Flower, then Ceed2Med shall nonetheless be liable for the entire contract amount.

 

2.11 Failure to Supply. Subject to Paragraph 3, if Exactus shall refuse or be unable, or reasonably anticipates being unable to deliver any part or all of a Purchase Order, Exactus shall verbally notify Ceed2Med of such refusal or inability at the earliest possible time and immediately confirm such notification in writing. Such notification shall not be deemed to operate as a release of Exactus from its obligations under a Purchase Order, Ceed2Med shall have the right to replace, modify and/or cancel any delayed open Purchase Orders free from liability to Exactus. If Exactus is able to supply some but not all of a Purchase Order, then Exactus shall supply such partial quantities, and shall Exactus use commercially reasonable efforts to source the remaining amounts of Flower from third parties to be delivered to Ceed2Med, provided such Flower conforms to the Ceed2Med’s Specifications. If Exactus is unable to provide any replacement Flower then Ceed2Med may, in its sole discretion, may source the supply of Flower from a third party but only to the extent of fulfilling the Purchase Order for which Exactus was unable to meet the Purchase Order requirements. In such event, this Agreement shall remain in full force and effect and the Exactus shall not be liable to the Ceed2Med for any additional costs, damages or fees of any kind in connection with the Ceed2Med seeking an alternative source of supply.

 

3. Quality Control.

 

3.1 Raw Materials. Exactus agrees to maintain all documentation/records regarding its procurement of all raw materials (“Materials”) for a period of 5 years. Exactus shall not amend, change or supplement any of the following without Ceed2Med’s prior written consent: (i) the Specifications; (ii) the Materials; or (iii) the process for manufacturing the Flower. Any change in any of the foregoing shall, in each case, comply with all applicable laws, regulations and agency requirements. In the event that Exactus desires to change any of the foregoing, Exactus agrees to immediately notify Ceed2Med of such change in writing, and if Ceed2Med agrees to such change, Exactus shall be responsible, at its sole expense, for ensuring that all Flower manufactured following such change strictly conform to the change in Specifications, Materials or the manufacturing process.

 

3.2 Inspection. All Flower shall be received subject to Ceed2Med’s right of inspection and rejection within 7 calendar days of receipt of the Flower. Defective Flower or Flower not in strict conformance with a Purchase Order or Exactus’s specifications, will be returned, at Exactus’s expense. Ceed2Med may, by written notice to Exactus, and without limiting any other remedies available to Ceed2Med under applicable law, demand replacement or correction of rejected Flower. If Exactus does not receive such written instructions within 45 days of Ceed2Med’s request therefore, Ceed2Med may, without liability or any financial obligation to Exactus, sell, transfer or otherwise legally dispose of the Flower, in any way that Ceed2Med deems appropriate. Payment for Flower on a Purchase Order prior to inspection shall not constitute acceptance thereof or a waiver of a breach of warranty and is without prejudice to any claim(s) of Ceed2Med. Exactus shall inspect all Flower prior to shipment to ensure conformance with all Specifications and requirements of a Purchase Order.

 

 

3.3 Performance & Savings Reviews. The parties shall conduct regular meetings in person at a mutually convenient location or via video conferencing means to discuss and review the following: (i) delivery, service and quality performance evaluation; (ii) continuous improvement goals and objectives; (iii) market conditions and forecasts; (iv) future budgeting; and (v) business growth opportunities.

 

3.4 Records. Exactus shall provide Ceed2Med with complete and accurate copies of any quality control documents maintained by Exactus for the Materials, upon Ceed2Med’s written request. This will include full product documentation including legal farming origin, ODA compliance tests, full panel COAs proving potency and no presence of chemicals, pesticides, heavy metals, bacteria, mold or toxins.

 

3.5 Exactus Audit Right. Ceed2Med is to keep, full, true and accurate books of account containing all particulars that may be necessary for the purpose of calculating payments to be made pursuant to Exactus. Such books of account shall be kept at or accessible from Ceed2Med’s principal place of business. Exactus shall have the right, at its own expense, to perform an audit of such books and records of Ceed2Med, but solely for the purpose of verifying the sales calculations described above. The auditable information attributable to any particular period may only be audited once for such period.

 

3.6 Ceed2Med Audit Right. Exactus will maintain and retain accurate records of production, shipment, testing, recalls, quarantines, regulatory holds, rejections, and quality records for Flower as well as other records required to be kept under applicable local, state and federal law or as may be requested by Ceed2Med (collectively, “Records”); provided, that, in no event will the retention period for any such Records be less than four (4) years. Exactus will permit Ceed2Med’s employees or representatives to have reasonable access to the Records for audit purposes. Such examination will be conducted during Exactus’s normal business hours (unless Product safety is at issue, in which case, such examination may be conducted at any time) and in such a manner as to reasonably minimize disruption to Exactus’s business. Exactus will cooperate in good faith with Ceed2Med during any audit or inspection. In addition to any on-site evaluation, Exactus will make copies of all Records available to Ceed2Med no later than 10 days after Ceed2Med’s request for the same.

 

3.7 Conduct of Audit. Upon reasonable notice, such audit shall be conducted during regular business hours in such a manner as to not unnecessarily interfere with normal business activities. Such audit shall not be performed more frequently than once per calendar year.

 

4. Force Majeure.

 

4.1 For the purposes of this Agreement, Force Majeure Event means any event arising after this Agreement has been executed that is unpredictable, beyond the Parties’ reasonable control and that objectively prevents one or both of the Parties from performing their respective obligations, including, but not limited to, war, insurrection, civil disturbance, interruption of transportation or communication services, major change to agricultural law or policy in the United States or in any State in which Flower is grown or through which Flower is transported to the Delivery Location, blockade, embargo, strike or other labor conflict, riot, epidemic, earthquake, storm, drought, fire, flood, or other exceptionally adverse weather conditions, explosion, lightning, or act of terrorism.

 

4.2 As soon as reasonably practicable after occurrence of a Force Majeure Event, a Party that is prevented, hindered, or delayed in or from performing any of its respective obligations under this Agreement by a Force Majeure Event (the “Affected Party”) shall notify the other Party in writing of such Force Majeure Event, the date on which such Force Majeure Event began, its likely or potential duration, and the effect of the Force Majeure Event on the ability of the Affected Party to perform any of its obligations under this Agreement. The Affected Party shall also at such time provide the other Party with documentation or any other available corroboration of such Force Majeure Event.

 

4.3 The Affected Party shall use all reasonable effort to mitigate the effect of the Force Majeure Event on the performance of its obligations under this Agreement. Provided that the Affected Party has complied with the provisions of this Section 3.3., the Affected Party shall not be in breach of this Agreement or otherwise liable for any failure or delay in the performance of such obligations. Such obligations shall be suspended during continuance of such Force Majeure Event, and no damages or penalties for delay in performance shall be due.

 

 

4.4 If an obligation is suspended by reason of Force Majeure for more than thirty (30) calendar days from the date that the Affected Party gives notice of such Force Majeure Event, the other Party may in its discretion terminate this Agreement and the Parties shall enter into good faith negotiations in an attempt to enter into a new agreement for the purchase and sale of Hemp.

 

5. Representations and Warranties.

 

Each Party hereby represents and warrants to the other Party that at the date of signing this Agreement the following representations and warranties are true and correct in all material respects:

 

5.1 Organization; Status; Formation and Organization Documents. Such Party is duly formed and organized and validly subsisting under the laws of its respective jurisdiction of incorporation and is qualified to do business in the Province of Ontario and has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.

 

5.2 No Conflicts. The execution and delivery of this Agreement, the performance by the Party of its obligations hereunder and the consummation of the transactions contemplated by this Agreement do not and will not conflict with, or result (with or without notice or the lapse of time) in a breach or violation of, or constitute a default under, any of the terms or provisions of indenture, mortgage, charter instrument, bylaw or other agreement or instrument to which it is a party or by which it may be bound, nor will any consents or authorizations of any party other than those hereto be required.

 

5.3 Enforceability. This Agreement has been duly executed and delivered by such Party and is a valid and binding obligation of such Party enforceable against it, in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency or other laws of general application affecting the enforcement of creditors’ rights and subject to the qualification that specific performance and injunction, being equitable remedies, may only be granted in the discretion of a court of competent jurisdiction.

 

5.4 Ceed2Med Covenants:

 

5.4.1 Ceed2Med represents that it has obtained all necessary licenses necessary to perform its obligations as required hereunder.

 

5.4.2 Ceed2Med agrees to enter into a Sublease on Exactus’s premises to operate Ceed2Med’s distribution operating on terms and conditions to be set forth in a Sublease agreement.

 

5.4.3 Ceed2Med agrees to perform all tasks as set forth below to the full satisfaction of Exactus, as determined by Exactus in its sole discretion:

 

5.4.3.1 Fully trim, grade, and sort Flower and byproducts of trimming process;

 

5.4.3.2 Test and document batched to full compliance;

 

5.4.3.3 Carry any and all legal responsibilities of the logistics, processing, sales and claims associated with the products;

 

5.4.3.4 Fraction and package the Flower and byproducts in sealed containers;

 

5.4.3.5 Store all Flower and byproducts in a controlled environment;

 

5.4.3.6 Provide full visibility of inventories and sales records;

 

5.4.3.7 Advertise, market and sell Flower and byproducts;

 

5.4.3.8 Compensate sales and marketing efforts; and

 

5.4.3.9 Carry all costs of shipping and fulfillment to its customers.

 

 

5.5 Exactus’s Representations and Warranties. Exactus represents and warrants to Ceed2Med as follows:

 

5.5.1 Exactus shall deliver to Ceed2Med good and merchantable title to the Flower.

 

5.5.2 Exactus represents that it has obtained all necessary licenses necessary to make the deliveries required hereunder. It is Exactus’s sole responsibility to obtain all necessary permits required to effectuate the terms and conditions of this Agreement.

 

5.5.3 The representations, warranties and indemnities contained herein will survive the termination of this Agreement.

 

6. Term; Termination.

 

The term of the contract is for one (1) year (the “Initial Term”). Without prejudice to the above, this Agreement can at any time be terminated (i) by either party in case of a material breach of this Agreement, upon written notice by the non-defaulting party to the breaching party providing specific description of any such breach and then providing the breaching party with a 30 period to cure; (ii) upon mutual agreement of the parties; (iii) automatically at the end of the Term, unless renewed by each party.

 

7. Confidential Information. The terms of this Agreement and any information or items marked confidential or identified as confidential by written notice to the receiving Party under or relating to this Agreement, including but not limited to information concerning the information related to either party such the business, formulas, pricing, financial information, research data, sales and marketing information, customer lists, Exactus lists, Ceed2Med’s Specifications, the Purchase Orders, the Forecast, the reports and any financial or manufacturing and technical information provided by the Exactus to the Ceed2Med shall be treated as confidential information (“Confidential Information”). The receiving Party hereby undertakes (i) to hold and keep in confidence any and all such Confidential Information and not to disclose the Confidential Information or any part thereof to any third party except to only such of their directors, officers, employees and advisers (collectively, “Representatives” and each a “Representative”) whose duties require them to possess or consider the Confidential Information and strictly on a “need to know” basis; and who shall prior to such disclosure agree to keep such information confidential and be bound by this Agreement; (ii) to use the same degree of precaution as it would use to protect its own confidential information of like importance but in no event less than reasonable care; (iii) not to use the Confidential Information, in whole or in part, for any purpose other than to complete the obligations under this Agreement; and (iv) not to use the Confidential Information in a manner directly or indirectly causing damages to the other party or use the Confidential Information to gain commercial benefit to itself. Provided, however, that Confidential Information shall not include information that (i) is already in, or subsequently comes into, the public domain other than through a violation of this Agreement, (ii) is received by the non-disclosing Party on a non-confidential basis from a source which is not prohibited from disclosing such information pursuant to any legal, contractual or fiduciary obligation to the disclosing Party, (iii) was already known by the receiving Party, as established by written documentation only, at the time of receipt from the disclosing Party, or (iv) is independently developed or (v) ordered to be disclosed by a competent court or a regulatory or public body. In such event, the receiving Party shall, where permitted under the relevant jurisdiction, immediately inform the disclosing Party so that the disclosing Party is given the opportunity to object to such disclosure in due time. Should any such objection by the disclosing Party be unsuccessful or should the disclosing Party decide not to object to any such disclosure, the receiving Party or its Representative so obligated or requested to disclose the Confidential Information may disclose only such Confidential Information to the extent required by the relevant court order or governmental or regulatory authority. Upon the expiration or early termination of this Agreement, each party shall return or destroy, and certify to such destruction of, all confidential information of the other Party. The covenants contained in this Section shall survive the termination of this Agreement regardless of the cause of the termination.

 

EXCLUSION OF CERTAIN DAMAGES. EXCEPT FOR ANY BREACH OF SECTION 7 (CONFIDENTIALITY) OR ANY OBLIGATIONS ARISING UNDER SECTION 8 (INDEMNITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY

 

 

8. Indemnification.

 

8.1 Ceed2Med agrees to indemnify, defend, and hold harmless Exactus, Exactus’s affiliates, and their respective owners, directors, officers, employees, agents, successors, and assignees (the “Company Indemnified Parties”) against any and all losses, liabilities, damages, costs and expenses, including reasonable legal fees and disbursements, and to reimburse any one or more of the Company Indemnified Parties for, all third-party claims and any other obligations and Damages, as defined below, directly or indirectly arising out of: (1) the activities of Ceed2Med or any of Ceed2Med’s owners, agents, personnel or employees including any breach or alleged breach by Ceed2Med, its affiliates or its (“Ceed2Med Indemnitors”) respective officers, directors, employees, or representatives of any representation, warranty and/or covenant of Ceed2Med Indemnitors under this Agreement; (2) the business Ceed2Med conducts under this Agreement including any activities arising from the Farm Related Services performed by Ceed2Med or Ceed2Med Indemnitors; (3) any action taken by Ceed2Med or any of Ceed2Med’s owners, agents, personnel or employees that: (i) violates any Applicable Law or fails to comply with good production practices and good manufacturing practices as may be described in Applicable Laws; or (ii) violates a Exactus rule, policy or procedure; (4) products Ceed2Med distributes in addition to the Flower, byproducts or residual materials purchased from Exactus; or (5) any negligence or willful misconduct by Ceed2Med, or the Ceed2Med Indemnitors. For purposes of this provision, Applicable Law shall mean i) any domestic or applicable foreign statute, law (including the common and civil law and equity), constitution, code, ordinance, rule, regulation, restriction, regulatory policy or guideline having the force of law, by-law (zoning or otherwise) or order, (ii) any consent, exemption, approval or licence of any Governmental Authority, and (iii) any policy, practice, guidance document or guideline of, or contract with, any Governmental Authority. “Governmental Authority” means (i) any court, judicial body, tribunal or arbitral body, (ii) any domestic or foreign government whether multinational, national, federal, provincial, territorial, state, municipal or local and any governmental agency, governmental authority, governmental tribunal or governmental commission of any kind whatever, including USDA, DEA, tribal, any state or local government, (iii) any subdivision or authority of any of the foregoing, (iv) any quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of the above, (v) any supranational or regional body such as the World Trade Organization, and (vi) any stock exchange.

 

8.2 For purposes of this indemnification, “claims” and Damages above include all obligations, damages (actual, consequential, or otherwise), and costs that any Indemnified Party reasonably incurs in defending any claim against it, including, without limitation, reasonable accountants’, arbitrators’, attorneys’, and expert witness fees, costs of investigation and proof of facts, court costs, travel and living expenses, and other expenses of litigation, arbitration, or alternative dispute resolution, whether or not litigation, arbitration, or alternative dispute resolution is commenced. Each Indemnified Party may defend any claim against it at indemnitee’s expense and agree to settlements or take any other reasonable remedial, corrective, or other actions. This indemnity continues in full force and effect after and notwithstanding this Agreement’s expiration or termination.

 

9. Purchase Option. During the Term of this Agreement, Exactus shall have the option to purchase the distribution operations of Ceed2Med, including but not limited to its Warehouse operations, trimming, packaging, manufacturing and any and all ancillary operations related thereto (the “Distribution Assets”) at a purchase price equal to the fair market value of the Distribution Assets as determined by an independent appraiser mutually selected by the Ceed2Med and Exactus and based upon a valuation as of the date coincident to Exactus’s written notice to Ceed2Med of its desire to exercise the purchase option hereunder.

 

10. Insurance. Each Party will (i) at all times during the Term and continuing for a period of two (2) years after the date of any expiration or termination of this Agreement, maintain in full force and effect, for the benefit of itself and the other Party, commercial general liability insurance which is sufficient to adequately protect against the risks associated with its ongoing business, including the risks which might possibly arise in connection with the transactions contemplated by this Agreement and in any event, will maintain product liability insurance in an amount not less than $5,000,000 dollars for each occurrence and in the aggregate (it being understood that either Party may self-insure a portion of such coverage as may be commercially reasonable and furnishes adequate protection as described above), and (ii) use its commercially reasonable efforts to cause its insurer of such policy to provide that policy cannot be terminated or canceled without giving the other Party thirty (30) days prior written notice. During the Term, each Party’s insurance policy will name the other Party as an additional insured. Upon request by the other Party from time to time but not more often than once annually, each Party shall furnish the other with a certificate of insurance evidencing that such insurance coverage is in force.

 

 

11. Miscellaneous.

 

11.1 Assignment and Relationship of the Parties. The Parties may not assign or subcontract this Agreement to a third party unless both parties have agreed to such assignment or subcontracting in a writing signed by an authorized representative. Ceed2Med may not subcontract any of its obligations under this Agreement without Exactus’s prior written approval. The parties are acting in performance of this Agreement as independent contractors. Neither Party shall have the power or authority to bind or obligate the other Party.

 

11.2 Entire Agreement; Severability. This Agreement and the Exhibits attached hereto and made a part hereof constitute the entire understanding of the Parties with respect to the subject matter hereof, superseding any and all previous understandings, contracts and agreements, written and oral This Agreement may only be waived, modified, or amended in a writing signed by the Parties. The terms of this Agreement shall prevail over the terms of any other documents or agreement between the parties, including without limitation, any pre-printed terms in Exactus’s invoices or the Purchase Orders or other product documentation. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the Parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions.

 

11.3 Notices. Unless otherwise specified herein, all notices under this Agreement shall be in writing, and shall be effective when sent by fax, electronic mail or Certified Mail, postage prepaid via a reputable courier company, to the Parties’ address as first written above. Each Party may change its address which will be notified in writing to the other Party.

 

11.4 No Waiver. Any waiver by either Party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any other breach of that or any other provision of this Agreement. Any waiver must be in writing. Failure by either Party to insist upon strict adherence to any provision of this Agreement on one or more occasions will not deprive such Party of the right to insist upon strict adherence to that or any other provision of this Agreement. No remedy herein provided shall be deemed exclusive of any other remedy allowed by law or in equity.

 

11.5 Applicable Law. For purposes of this Agreement, means all local, state, provincial and national regulations, rules, restrictions, laws, by-laws, codes, norms, regulatory policies, guidelines, orders, permits, and certification requirements and standards that apply or may apply to the Parties for their respective activities contemplated under this Agreement, which may include, but is not limited to, the United States Agricultural Improvement Act of 2018 and the Cannabis Act (Canada).

 

12. Intellectual Property. Solely for the duration of the Term of this Agreement, Exactus hereby grants a non-exclusive, non-sublicensable, non-transferable perpetual, no royalty license to use any and all trademarks, logos or other intellectual property in connection with Exactus’s Flower.

 

13. Exactus’s IP. All intellectual property rights arising from or in relation to the Flower, its manufacture or production, and any other property furnished to Ceed2Med by Exactus, shall be (i) the property of the Exactus, and (ii) can only be used within the scope of the license provided by Exactus to Ceed2Med under the terms of this Agreement.

 

14. Governing Law and Venue. This Agreement, the entire relationship between Ceed2Med and Exactus, and any litigation or other legal proceeding between the parties shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to its choice of law rules. Any lawsuits or other proceedings arising out of this Agreement shall be brought in the state or federal courts located in Palm Beach County, Florida.

 

15. Modification. Except as otherwise provided in this document, this Agreement may be modified, superseded, or voided only upon the written and signed agreement of the parties. Further, the physical destruction or loss of this document shall not be construed as a modification or termination of this Agreement.

 

16. Rules of Construction. The parties acknowledge that each party has read and negotiated the language used in this Agreement. The parties agree that, because all parties participated in negotiating and drafting this Agreement, no rule of construction shall apply to this Agreement which construes ambiguous language in favor of or against any party by reason of that party’s role in drafting this Agreement. Headings. The headings in this Agreement are included for ease of reference only and shall not control or affect the meaning or construction of the provisions of this Agreement.

 

17. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall constitute an original but all of which when taken together shall constitute but one Agreement. This Agreement shall become effective when it has been executed by both of the Parties. Delivery of an executed signature page of this Agreement by facsimile transmission or by electronic messaging system shall be effective as delivery of a manually executed counterpart hereof.

 

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized officers on the Effective Date.

 

 

EXACTUS:
EXACTUS, INC.
By:	/s/ Emiliano Aloi
	Emiliano Aloi, CEO

 

 

 

 

EXHIBIT 1

 

Flower Pricing

 

Flower pricing:

 

Ceed2Med will purchase the Flower at a price of $100 per lb PLUS 50% of the gross sales price invoiced by Ceed2Med in connection with its resale of Flower to the extent such gross sales price is in excess of $150 per lb.

 

Pricing on Residual Materials (stock, stem, shake, and/or trim):

 

Ceed2Med will purchase the Residual Material at a price equal to 50% of the gross sales price received by Ceed2Med in connection with its resale of Residual Material.

 

 

Exhibit 10.2

 

NON-EXCLUSIVE DISTRIBUTION AND PROFIT SHARING AGREEMENT

 

This Non-Exclusive Distribution and Profit Sharing Agreement (this “Agreement”) is made as of this 20th day of November, 2019 (the “Effective Date”) by and between CANNTAB THERAPEUTICS USA (FLORIDA), INC., a Florida corporation (to be incorporated), located at ____________ (“Company”), and EXACTUS, INC., a Nevada corporation, located at 80 NE 4th Ave, Delray Beach, FL 33483 (“Distributor”) with respect to the distribution of certain products offered for distribution by Company.

 

WHEREAS the Company has developed a proprietary process for the manufacturing of the Products as hereinafter set forth.

 

AND WHEREAS the Company has agreed to appoint the Distributor as a non-exclusive distributor of the Products in the Territories (as hereinafter defined);

 

AND WHEREAS the parties will also on the date hereof enter into a Supply Agreement whereby the Distributor will sell CBD Oil to the Company;

 

AND WHEREAS the Products are more particularly described in Exhibit A attached hereto; and

 

AND WHEREAS the Distributor has leased space (hereinafter called the “Joint Premises”) at the location described in Exhibit 2 attached hereto and shall sublease a portion of the Joint Premises to the Company.

 

1. Appointment.

 

A. (i)            Subject to this Agreement’s terms, Company hereby appoints Distributor, and Distributor accepts the appointment as a distributor, to market, promote, sell, and deliver the Products within the Territories (defined below) on a non-exclusive basis. Distributor acknowledges that the Company shall be authorized to sell Products directly within the Territories either under a private white labeling program or directly to customers of the Company, subject to Section 7 hereof.

 

(ii)           Distributors rights pursuant to this Agreement shall include all 50 states and all territories of the United States of America (each, a “Territory,” and collectively, the “Territories”). Provided that Distributor is in full compliance with this Agreement, the Company will not grant a third party the right to promote, sell or deliver the Products to customers within the Territories, except pursuant to Section 7 hereof.

 

(iv)           Distributor shall have the non-exclusive right to sell the Products online through Distributor’s company website. For the avoidance of doubt, although Distributor may sell the Products online in accordance with this subsection, Company also has the right to sell its Products online to customers located in the Territories provided such sales are effected pursuant to Section 7 hereof.

 

B. Distributor acknowledges and agrees that it has no right to distribute any products of Company other than the Products identified in Exhibit A. Company reserves all rights not expressly granted to Distributor in this Agreement, including, without limitation the right to sell private white label products in the Territories. Company’s sale to Distributor of any products other than the Products identified in Exhibit A and/or its sale of any products (including Products) to Distributor after the expiration or termination of this Agreement, regardless of the reason, (i) shall not constitute, be construed as, or give rise to any express or implied distribution agreement, course of conduct, or other relationship between Company and Distributor, (ii) shall not confer upon Distributor any rights of any nature whatsoever, including, without limitation, to purchase and/or sell or continue to purchase and/or sell any products, including Products, or use the trademarks, copyrights and patents associated with the Products or Company as set forth in Exhibit B (the “Intellectual Property”) other than with respect to products sold and delivered by Company to Distributor, and (iii) shall constitute a separate transaction for each shipment of products actually delivered by Company to Distributor. Company has the right as it deems best to withdraw and/or cease any such sales at any time.

 

 

 

2. Distributor’s Duties. Distributor shall perform its obligations in compliance with this Agreement and all required standards, procedures, and guidelines that Company may provide to Distributor from time to time during the term of this Agreement. Without limiting any of its other obligations under this Agreement, Distributor shall comply with the following:

 

A. Provide support and advice on promoting, selling or marketing existing Products and new product offerings of Company and distribute new and updated technical and sales literature to customers as provided by Company.

 

B. Use commercially reasonable efforts to promote, market and sell the products within the Territories

 

C. Permit Company and its representatives to inspect and audit Distributor’s operations relating to the Products.

 

D. Promote and sell Products only for approved applications and uses consistent with applicable law and Company’s requirements.

 

E. Provide monthly reporting to the Company in a form satisfactory to the Company in connection with reporting sales, collections and gross profits derived therefrom for purposes of paying the Company its share of profits in accordance with Section 7 (c) hereof.

 

F. Maintain in strict confidence all commercial information disclosed by Company to Distributor that Company marks or identifies as confidential (which obligation expressly survives expiration or termination of this Agreement).

 

G. Obtain on behalf of and for the benefit of the Company and the Distributor all licenses necessary in the Territories to carry on the manufacture and sale of the Products by the parties hereto.

 

H. Maintain all Products in appropriate condition and packaging and consistent with applicable law and the Company’s requirements.

 

3. Company’s Duties. During the term of this Agreement, Company agrees to:

 

A. Manufacture the Products with (i) the highest degree of quality, (ii) exercising best commercial practices; and (iii) in compliance with all state and federal laws. If requested by Distributor, the Company shall provide the Distributor with quality control manuals,

 

B. Provide the Products to Distributor at the Joint Premises in proper packaging to ensure the quality of the Product upon delivery to the Distributor.

 

C. Provide reasonable prior notice to Distributor regarding anticipated changes in Product availability, Product changes, price changes or any other matter that may affect the ability of the Distributor to adequately performs its services hereunder.

 

D. Provide literature and merchandising aids, including promotional materials to enable Distributor to distribute to potential customers.

 

E. Company shall make commercially reasonable efforts to restrict third parties with who Company conducts business from soliciting customers of the Distributor. In the event Company becomes aware of a third party with who Company conducts business that is soliciting or selling Products to customer of Distributor, Company agrees to take commercially reasonable measures to help prevent such solicitation and sales from continuing to take place.

 

 

 

F. Company shall make commercially reasonable efforts to ensure it is able to fulfill Distributor’s regular and forecasted order demand for Products in a reasonable and consistent manner. Should there be any interruptions of Product supply to Distributor, or reasonable basis to expect an interruption of Product Supply to Distributor, Company shall timely notify Distributor of the issue, and the management of both organizations will make reasonable efforts to coordinate a mutually agreeable action plan to remedy.

 

4. Product Prices. Product prices shall be as set forth in Company’s then-current price list, as amended by Company from time to time upon ninety (90) day written notice to Distributor. The current price list is attached as Exhibit 2. The Company and the Distributor will meet quarterly during the Term to establish pricing. The Company’s pricing shall include a 30% overhead charge on the Company’s direct manufacturing costs of labor and material.

 

5. Orders. All Product purchase orders shall be in writing and shall be subject to acceptance by Company, which will not be unreasonably withheld, delayed or conditioned. The Company will notify the Distributor in writing within 48 hours of receipt of Distributor’s purchase order specifying in detail the reason for not accepting the purchase order, otherwise the purchase order will be deemed accepted by the Company. In the event of a conflict between the terms included in a purchase order and the terms of this Agreement, the terms of this Agreement shall prevail. If there is a shortage in the available supply of any Products, as a result of which Company cannot fulfill all Distributor orders, Company may allocate the available supply of Products to the Distributor provided that the Distributor is provided with no less than 50% of the available supply.

 

6. Payment and Profit Sharing. The Company and the Distributor agree to profit sharing as set forth below in connection with sales of the Product by each party to third parties (“Profit Sharing”) as set forth below:

 

A. Profit Sharing in Connection with Distributor Sales. Distributor and the Company will share in the Gross Profits (as hereinafter defined) derived from the sales of the Distributor in connection with the Products on a 50/50 basis.

 

B. Profit Sharing in Connection with Company Sales. Distributor and the Company will share in the Gross Profits (as hereinafter defined) derived from the sales effected by the Company in connection with the Products on a 90/10 basis, whether such sales are to customers of the Company or arising from any private white labelling program of the Company to third parties.

 

C. Gross Profits Defined. For purposes of Section 7 A and B above, Gross Profits shall be defined as (1) the total gross receipts actually received by the Distributor or the Company on sales of the Products which are collected by the Distributor or the Company, as the case may be less (1) the price paid by the Distributor to the Company for the Products, (2) any sales taxes or surcharges (3) sales returns or mutually agreed upon sales allowances and (4) direct sales commissions. The Company and the Distributor will meet quarterly during the Term to establish direct compensation schedule.Currently and for the first quarter inside sales commissions are set to 5% for spot sales and 3% for long term contract sales. .

 

D. Capital Costs. Notwithstanding anything to the contrary herein, there will be no Profit Sharing on Gross Profits until such time as the any capital costs incurred by the Distributor or the Company, as the case may be, are fully recouped for leasehold improvements incurred by the Distributor at Distributor’s location for the benefit of the Joint Venture or equipment acquisition incurred by the Company at the Distributor’s location related to the manufacture of the Products of the Company for the benefit of the Joint Venture.

 

7. Title and Risk of Loss. Title to the Products shall pass to Distributor upon Distributor’s receipt of the Products at the Joint Premises. All risk of loss in the Products shall pass to Distributor when the Products are provided to the Distributor at the Shares Premises. Company will not bear the risk of loss after the Products thereafter. However, if any Products are established, to Company’s satisfaction, to have been damaged when delivered to Distributor, Company will either make an appropriate adjustment in the original sales price of such Products or replace the damaged Products, at Company’s election. Distributor has ten (10) days after delivery of the Products to notify Company of any apparent damaged Products.

 

 

 

8. Independent Contractors. Nothing in this Agreement shall create or be deemed to create a partnership or joint venture or the relationship of principal and agent between the parties.

 

9. Warranty. The Company warrants that all Product delivered hereunder shall have a minimum shelf life of 12 months, conform in all material respects to the applicable specifications, shall be free from defects in design, materials and workmanship and in full compliance with all applicable laws. The Warranty contained in this Section 9 shall be in lieu of all other warranties whatsoever whether with respect to fitness for a particular purpose, merchantability or pursuant to any applicable sale of goods act in the United States.

 

10. Intellectual Property.

 

A. Distributor acknowledges Company’s rights and title to and interest in the Trademarks, whether or not registered, patents and patent applications (“Patents”), copyrights (“Copyrights”), and trade secrets and know-how (“Know-How”) that Company may have at any time created, adopted, and used in connection with the Products (collectively, the “Intellectual Property”). Distributor shall not do, or cause or permit to be done, any acts or things contesting or in any way impairing or tending to impair any portion of Company’s rights and title to and interest in the Intellectual Property. The Company hereby grants to Distributor, at all times during the Term, a license to use Intellectual Property on a non-exclusive, royalty free basis.

 

B. Distributor shall not use any trademark, brand name, logo, or other production designation or symbol in connection with Products other than Trademarks. Distributor acknowledges that it has no right or interest in Intellectual Property (except as expressly permitted under this Agreement) and that Distributor’s use of Intellectual Property inures solely to Company’s benefit. Distributor may use the Intellectual Property only in accordance with Company’s policies and instructions, which Company may modify from time to time as it deems best.

 

C. In all advertising, promotions, and other activities relating to the Products, Distributor shall clearly indicate Company’s ownership of the Intellectual Property.

 

D. Upon the expiration or termination of this Agreement, Distributor shall cease and desist from any further use of the Trademarks or any confusingly similar name, mark, logo, or symbol and any Intellectual Property.

 

11. Promotion. Distributor shall be solely responsible for marketing and promoting Products to customers within the Territories. During this Agreement’s term, Company shall take the action it deems appropriate to promote the overall national, regional, or other branding, imaging, and positioning of the Products.

 

12. Term, Successor Distributorships, and Termination.

 

A. Term. This Agreement’s term commences on the Effective Date and expires two (2) years from that date (the “Initial Term”).

 

B. Upon the expiration of the Initial Term, Distributor may obtain two (2) consecutive renewal terms to operate as a distributor of Company (each, a “Renewal Term”). Each of the Renewal Terms will be for two (2) years in duration, and the first Renewal Term shall commence immediately upon the expiration of the Initial Term.

 

C. Termination. Company or Distributor may terminate this Agreement only as follows:

 

(i) By Either Party Without Cause. Both Company and Distributor may terminate this Agreement at any time without cause by providing written notice to the other party at least sixty (60) days prior to the expiry of the Initial Term of any Renewal Term.

 

 

 

(ii) By Either Party with Cause. Either may terminate this Agreement at any time, effective upon delivery of written notice to other party, if:

 

a) A breach of this Agreement that is not cured within 30 days by the breaching party after written notice specifying the details of the breach by the non-breaching party.

 

b) The Company fails to maintain any licenses or permits required to operate its business, as mandated by law.

 

c) Distributor or any of its owners makes or attempts to make an unauthorized assignment of this Agreement, the distributorship, or there is a change of control of the ownership interest in Distributor.

 

d) Either party makes an assignment for the benefit of creditors or admits in writing its insolvency or inability to pay its debts generally as they become due; the party consents to the appointment of a receiver, trustee, or liquidator of all or the substantial part of its property; the business is attached, seized, subjected to a writ or distress warrant, or levied upon, unless the attachment, seizure, writ, warrant, or levy is vacated within thirty (30) days; or any order appointing a receiver, trustee, or liquidator of such party or its business is not vacated within thirty (30) days following the order’s entry. Either party takes the benefit of or becomes subject to any law now or hereafter, in force for bankrupt or insolvent debtors.

 

D. Upon expiration or sooner termination of this Agreement, all of Distributor’s rights and interests hereunder, including any limited right to display the Trademarks or brand of the Products, shall terminate and expire immediately and Company shall be free to enter into a new distribution agreement with another party, with no right to the Distributor to receive any compensation.

 

E. Notwithstanding the foregoing, termination, the Company shall continue to supply Products to Distributor following the termination or expiration of this Agreement in connection with any purchase orders submitted by Distributor to Company which have been accepted by and not yet been fulfilled by the Company, and Distributor acknowledges and agrees that such action does not constitute a waiver of Company’s rights under this Agreement or a reinstatement, renewal, or continuation of this Agreement’s term.

 

F. Following termination or expiration (without a renewal term) of this Agreement, Distributor shall immediately return to Company all samples, advertising material and documents related to the Products. Company shall also have the option, exercisable upon written notice to Distributor within thirty (30) days after the date of termination or expiration of this Agreement, to repurchase some or all (at Company’s option) of the Products then owned by Distributor. The purchase price of all inventory (in full, unopened case-loads) will be at the previously invoiced price (less any freight and insurance charges). All purchase prices are F.O.B. Company’s premises.

 

13. Exclusion of Damages.

 

A. COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, OR ANY OTHER PECUNIARY LOSS) SUFFERED BY DISTRIBUTOR RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE USE OF OR INABILITY TO USE OR SELL THE PRODUCTS AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

 

 

B. EACH AND EVERY PROVISION OF THIS AGREEMENT PROVIDING FOR A LIMITATION OF LIABILITY OR WARRANTIES, DISCLAIMER, OR EXCLUSION OF DAMAGES IS EXPRESSLY INTENDED TO BE SEVERABLE AND INDEPENDENT FROM ANY OTHER PROVISION, SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK ALLOCATION BETWEEN THE PARTIES, AND SHALL BE SEPARATELY ENFORCED.

 

14. Representations and Warranties

 

. Each party represents and warrants to the other party that: (i) it has full power and authority to enter into this Agreement and to carry out its obligations hereunder, except as such may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors' rights generally and further subject to general principles of equity and public policy (ii) this Agreement constitutes a valid and binding obligation of each party hereto, enforceable against it in accordance with its terms; (iii) its execution, delivery and performance of this Agreement will not result in a breach of any material agreement by which such party may be bound, or will not result in the breach of any obligation of confidentiality or nondisclosure by which such party may be bound; and (iv) it is in compliance with and will comply with all applicable laws with respect to its rights and obligations under this Agreement..

 

15. Indemnification.

 

A. Distributor agrees to indemnify, defend, and hold harmless Company, Company’s affiliates, and their respective owners, directors, officers, employees, agents, successors, and assignees (the “Company Indemnified Parties”) against, and to reimburse any one or more of the Company Indemnified Parties for, all third-party claims and any other obligations and damages directly or indirectly arising out of: (1) the activities of Distributor or any of Distributor’s owners, agents, personnel or employees; (2) the business Distributor conducts under this Agreement; (3) any action taken by Distributor or any of Distributor’s owners, agents, personnel or employees that: (i) violates a federal, state or local law or regulation; or (ii) violates a Company rule, policy or procedure; (4) third party products Distributor distributes in addition to the Products; or (5) Distributor’s breach of this Agreement, unless (and then only to the extent that) the claims, obligations, or damages are determined to have been caused by the Company Indemnified Party’s negligence or willful misconduct in a final, unappealable ruling issued by a court or arbitrator with competent jurisdiction.

 

B. The Company agrees to indemnify, defend, and hold harmless Distributor, Distributor’s affiliates, and their respective owners, directors, officers, employees, agents, successors, and assignees (the “Distributor Indemnified Parties”) against, and to reimburse any one or more of the Distributor Indemnified Parties for, all third-party claims and any other obligations and damages directly or indirectly arising out of: (1) the activities of the Company or any of Company’s owners, agents, personnel or employees; (2) the business Company conducts under this Agreement, including but not limited to its manufacturing practices; (3) any action taken by Company or any of Company’s owners, agents, personnel or employees that: (i) violates a federal, state or local law or regulation; or (ii) violates a Company rule, policy or procedure; (4) third party claims against Distributor in connection with the Products; or (5) Company’s breach of this Agreement, unless (and then only to the extent that) the claims, obligations, or damages are determined to have been caused by the Distributor Indemnified Party’s negligence or willful misconduct in a final, unappealable ruling issued by a court or arbitrator with competent jurisdiction.

 

C. For purposes of this indemnification, “claims” set forth in A or B above include all obligations, damages and actual costs that any Indemnified Party reasonably incurs in defending any claim against it, including, without limitation, reasonable accountants’, arbitrators’, attorneys’, and expert witness fees, costs of investigation and proof of facts, court costs, travel and living expenses, and other expenses of litigation, arbitration, or alternative dispute resolution, whether or not litigation, arbitration, or alternative dispute resolution is commenced. Each Indemnified Party may defend any claim against it at indemnitee’s expense and agree to settlements or take any other reasonable remedial, corrective, or other actions. This indemnity continues in full force and effect after and notwithstanding this Agreement’s expiration or termination.

 

16. Insurance. During this Agreement’s term and for three (3) years after it expires or is terminated, Distributor agrees to maintain insurance policies of the nature and amounts as are customary in the industry, which shall name Company as an additional insured for all claims arising from Distributor’s operation (providing for a waiver of subrogation rights against Company and not less than sixty (60) days written notice of any modification or termination of coverage). Distributor shall send Company, at least thirty (30) days before the end of coverage period, evidence of such insurance for the upcoming coverage period in a form satisfactory to Company.

 

 

 

17. Non-Disparagement. Each party agrees that it will not, and it will cause its affiliates, officers, and employees to not, disparage or defame the other party, or its affiliates, officers, employees or sales representatives in any respect or make any disparaging comments concerning the business relationship between the parties or the matters referred to in this Agreement.

 

18. Non-Solicitation. Upon termination or expiration (without the grant of a successor distributorship) of this Agreement, each party agrees that, for two (2) years beginning on the effective date of termination or expiration or, in the case of any particular person restricted by this paragraph, beginning on the date that restricted person begins to comply with this paragraph, whichever is later, neither such party nor any of its affiliates, officers, or employees, (collectively, the “Restricted Persons”), will recruit or hire any person then employed, or who was employed within the immediately preceding twelve (12) months, by the other party without obtaining the other party’s prior written permission. If any Restricted Person refuses voluntarily to comply with these obligations, the two (2) year period for such Restricted Person will begin with the entry of a court order enforcing this provision. The two (2) year period will be tolled, if applicable, for the period during which a Restricted Person is in breach of this paragraph and will resume when such Restricted Person begins or resumes compliance.

 

If any covenant under this Section is deemed unenforceable by virtue of its scope in terms of area, business activity prohibited and/or length of time, but would be enforceable if modified, Company and Distributor agree that the covenant may be “blue penciled” and enforced to the fullest extent permissible under the laws and public policies applied in the jurisdiction whose law determines the covenant’s validity.

 

19. Assignment.

 

A. Distributor may not transfer this Agreement or its right to distribute the Products without Company’s prior written consent which will not be unreasonably withheld, delayed or conditioned. Any purported assignment or delegation by Distributor without Company’s written consent shall be void and of no effect.

 

20. No Agency. The relationship between Company and Distributor is that of vendor and vendee, and nothing in this Agreement shall be construed as constituting either party the employee, agent, franchisee, independent contractor, partner or co-venturer of the other party. Neither party shall have any authority to create or assume any obligation binding on the other party.

 

21. Governing Law. EXCEPT TO THE EXTENT GOVERNED BY THE UNITED STATES TRADEMARK ACT OF 1946 (LANHAM ACT, 15 U.S.C. SECTIONS 1051 ET SEQ.) OR OTHER FEDERAL LAW, THIS AGREEMENT AND ALL CLAIMS ARISING FROM THE RELATIONSHIP BETWEEN COMPANY AND DISTRIBUTOR WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEVADA, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES, EXCEPT THAT ANY NEW YORK LAW REGULATING DISTRIBUTORSHIPS OR SIMILAR COMMERCIAL RELATIONSHIPS WILL NOT APPLY UNLESS ITS JURISDICTIONAL REQUIREMENTS ARE MET INDEPENDENTLY WITHOUT REFERENCE TO THIS SECTION. THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS SHALL NOT BE APPLICABLE TO THIS AGREEMENT.

 

22. Consent to Jurisdiction. DISTRIBUTOR AGREES THAT ALL ACTIONS ARISING UNDER THIS AGREEMENT OR OTHERWISE AS A RESULT OF THE RELATIONSHIP BETWEEN COMPANY AND DISTRIBUTOR MUST BE COMMENCED IN THE STATE OR FEDERAL COURTS IN THE STATE OF FLORIDA IN PALM BEACH COUNTY, AND DISTRIBUTOR IRREVOCABLY SUBMITS TO THE JURISDICTION OF THOSE COURTS AND WAIVES ANY OBJECTION IT MIGHT HAVE TO EITHER THE JURISDICTION OF OR VENUE IN THOSE COURTS.

 

23. Waiver Jury Trial. EACH PARTY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER PARTY.

 

24. Force Majeure. Company will not be liable for any delay or failure to perform or other loss due to unforeseen circumstances or causes beyond its control, including, without limitation, acts of God, strikes, material and/or transportation shortages, natural casualties and disasters, governmental regulations, import restrictions and prohibitive import taxes, war, terrorist acts, fire, flood, and civil unrest. Any delay resulting from these causes will extend Company’s performance accordingly or excuse Company’s performance, in whole or in part, as may be reasonable.

 

 

 

25. Waivers. No waiver of any provision hereof or of any terms or conditions established by Company will be effective unless in writing and signed by the party against which enforcement of the waiver is sought. Company will not waive or impair any right, power, or option this Agreement reserves (including, without limitation, its right to demand strict compliance with every term, condition, and covenant or to declare any breach to be a default and to terminate this Agreement before the term expires) because of any custom or practice varying from this Agreement’s terms or Company’s failure, refusal, or neglect to exercise any right under this Agreement or to insist upon Distributor’s compliance with this Agreement, including, without limitation, any Performance Standard.

 

26. Product Recall. If any governmental agency or authority issues a recall or takes similar action in connection with the Products, or if Company determines that an event, incident, or circumstance has occurred which may require a recall or market withdrawal, Company may advise Distributor of the circumstances by telephone, facsimile, or other means. Company shall have the right to control the arrangement of any Product recall, and Distributor shall cooperate in the event of a Product recall with respect to the reshipment, storage, or disposal of recalled Products, the preparation and maintenance of relevant records and reports, and notification to any recipients or end users.

 

27. Interpretation. If any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. No provision of this Agreement shall be construed against any party on the grounds that such party or its counsel drafted that provision.

 

28. Severability. If any provision of this Agreement is held invalid for any reason by a court, government agency, body, or tribunal, the remaining provisions will be unaffected thereby and shall remain in full force and effect.

 

29. Notices. All written notices, reports, and payments permitted or required to be delivered by this Agreement will be deemed delivered to the address set forth in the preamble of this Agreement. Either party may change its notice address and/or contact person by giving the other fifteen (15) days’ prior notice by any of the means specified in clauses (a) through (d) above.

 

30. Counterparts. This Agreement may be executed in multiple counterparts, which may be delivered by an exchange of original signature pages or of facsimiles, email attachments or other similar means of electronic transmission, all of which taken together will constitute one single Agreement between the parties hereto.

 

31. Confidentiality of Agreement Terms. Each party agrees to treat as confidential and proprietary, and shall not, except as permitted by the terms of this Agreement, at any time for any reason whatsoever disclose to any third party or make use of, or permit to be made use of, any information relating to the business affairs or finances, trade secrets, pricing, customer lists or other confidential information of the other (the "Confidential Information"); provided, however, that such obligation shall not apply to information of a party that:

 

(i) becomes generally known to the public, either before or after the date of its disclosure to the receiving party, through no fault or omission on the part of the receiving party;

 

(ii) is lawfully disclosed to the receiving party, either before or after the date of its disclosure to the receiving party, by an independent third party rightfully in possession of such Confidential Information;

 

(iii) is lawfully in the possession of the receiving party at the time of its disclosure, as evidenced by the prior written records of such receiving party;

 

(iv) is required to be disclosed by the receiving party pursuant to any applicable law or court of administrative order, provided the receiving party provides the other party with advance notice of such disclosure and an opportunity for the other party to seek a protective order or such other appropriate remedy prior to such disclosure; or

 

(v) is making a disclosure as is required by the applicable rules of any stock exchange or applicable securities laws.

 

(a) All Confidential Information disclosed under this Agreement shall remain confidential for a period of five (5) years following the termination of this Agreement and in the case of trade secrets for such period of time as permitted by applicable law.

 

 

IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Non-Exclusive Distribution and Profit Sharing Agreement as of the date first above written.

 

COMPANY: CANNTAB THERAPEUTICS USA (FLORIDA), INC., a Florida corporation     By: /s/ Jeff Renwick Name: Jeff Renwick Title: CEO

DISTRIBUTOR: EXACTUS, INC., a Nevada corporation     By: /s/ Emiliano Aloi Name: Emiliano Aloi Title: CEO

 

The following products are encompassed within the defined term “Products” used in the Distribution Agreement:

 

Product List:

 

 

 

For purposes of this Exhibit A, “Invoiced Sales” means the gross invoiced price for the Products sold to Distributor by Company and does not include Distributor’s initial order of Products (as required under Section 6 of the Distribution Agreement), any freight charges and taxes; provided that Invoiced Sales shall be reduced by any applicable discounts, rebates, returns, credits, and other similar allowances. For purposes of the definition of “Invoiced Sales,” in order for a Product to be considered “sold,” Distributor must have paid Company the gross invoice price in full.

 

 

 

EXHIBIT B

 

NON-EXCLUSIVE DISTRIBUTION AGREEMENT

 

INTELLECTUAL PROPERTY

 

 

 

 

 

 

 

EXHIBIT C

NON-EXCLUSIVE DISTRIBUTION AGREEMENT

 

CURRENT PRICE LIST

 

 

 

h:\client\10910\10910-022\documents\non-exclusive distribution agreement\non-exclusive distribution agreement v2.docx

 

 

 

  Exhibit 10.3

 

SUPPLY AGREEMENT

 

This Supply Agreement ("Agreement") is entered into as of November 20th, 2019 (the "Effective Date") between Canntab Therapeutics USA (Florida), Inc., a Florida corporation (to be incorporated), located at ____________ ("Buyer"), and EXACTUS, INC., a Nevada corporation, located at 80 NE 4th Ave, Delray Beach, FL 33483 ("Supplier").

 

WHEREAS, Supplier is a producer of Hemp-derived cannabinoid ingredients ("Hemp Extracts");

 

WHEREAS, Buyer is in the business of manufacturing tablets using Hemp Extracts; and

 

WHEREAS, Buyer is desirous of purchasing Hemp Extracts from the Supplier and the Supplier is desirous of selling the Hemp Extracts to the Buyer;

 

NOW THEREFORE, in consideration of the foregoing, the parties agree as follows:

 

1. Recitals. The Recitals are incorporated herein by reference.

 

2. Scope. This Agreement sets forth the terms and conditions under which Supplier will supply Hemp Extracts to Buyer, in accordance with the specifications delivered by Buyer to Suppliers. Purchases under this Agreement shall be made with Purchase Orders (defined in Section 3F below) issued by Buyer to Supplier. Supplier shall be liable under this Agreement to produce the amounts set forth in all accepted Purchase Orders. All purchases made by Buyer through Purchase Orders shall be subject to this Agreement.

 

3. Purchase Terms.

 

A.               Pricing. The initial price for Hemp Extracts shall, at all times during the Term, be at Tier 1 pricing levels of Supplier with the initial pricing as set forth in Exhibit 1 which must be competitive with market prices for similar Hemp Extracts. Notwithstanding any other provision of this Agreement, in the event for any reason the Supplier is unable to meet the production requirements of Buyer, the Supplier agrees to source the required supply of Hemp Extracts from third parties to be delivered to Buyer at fair market prices. Alternatively, the Buyer will have the right to purchase oil from alternate suppliers. In such event that Supplier needs to source Hemp Extracts from third parties to meet the requirements of Buyer, such event shall not modify the exclusive nature of this Agreement.

 

B.              Exclusivity. Buyer agrees that, for the Initial Term or any Renewal Term(s) of this Agreement, Buyer will purchase the Hemp Extracts from Supplier provided that Supplier’s pricing for Hemp Extracts is competitive with other supplies of the same quality of Hemp Extracts and subject to the terms and conditions set forth herein. Nothing contained in this Agreement shall prohibit Supplier from selling any of its Hemp Extracts to any third parties.

 

C.                Forecasts. Buyer may provide Supplier with a non-binding, rolling 12 month forecast or blanket purchase order for the estimated quantities of Hemp Extracts that Buyer anticipates purchasing ("Forecast") in order to ensure an uninterrupted supply to meet demand. Any forecast or blanket purchase order provided by Buyer shall be clearly labeled with the word "forecast" or any other similar terms that identify the document as a forecast instead of a firm purchase commitment. Supplier agrees to work with Buyer to meet forecasted amounts and to accommodate fluctuations in the Forecast. The Forecasts shall represent reasonable estimates for planning purposes only and will not obligate Buyer in any way. However, if at any time Buyer is aware of a change or a short fall in the Forecast, it will immediately notify the Supplier in writing of such deviation. The parties acknowledge that any such forecast or blanket purchase order shall be considered as a non-binding purchase commitment unless otherwise specified within the terms and conditions of said blanket purchase order. If Buyer requests a quantity of a Hemp Extracts in excess of the forecasted quantity, Supplier shall use commercially reasonable efforts to accommodate such request. In the event Supplier's commercially reasonable efforts to accommodate Buyer's request would require additional fees, Supplier shall promptly advise the Buyer of any and all anticipated additional fees (including labor overtime, material expedite fees and/or expedite shipping fees) for Buyer's consideration and written approval. Upon written approval by Buyer, Supplier shall proceed to accommodate Buyer's request, and the approved additional fees shall be itemized as a separate line item on the Supplier's invoice.

 

 

 

 

E.              Purchase Orders. Supplier shall deliver Hemp Extracts in accordance with the quantities, delivery dates, and delivery location specified in written and signed purchase orders delivered by Buyer or its affiliates ("Purchase Orders"). Supplier shall use commercially reasonable efforts to deliver Hemp Extracts to Buyer based upon the delivery dates set forth in any Purchase Order. Buyer shall have the right to cancel any unshipped portion of a Purchase Order, in whole or in part, at any time until shipment, in which event Buyer shall be liable to Supplier for the actual amount of Supplier's reasonable costs incurred in contemplation of performance of the canceled portion, less any amount saved by Supplier as a result of such cancellation.

 

F.              Packing and Shipping: All Hemp Extracts shall be packaged, marked and otherwise prepared in accordance with good commercial practices and all applicable state and federal laws of the United States and Buyer's written instructions that are included on any Purchase Orders, if any. Upon Buyer's written request which shall be included in the Purchase Order, the Supplier will include a material safety data sheet (MSDS) and/or certificate of analysis with each shipment. In the event the Buyer’s manufacturing of its CBD tablets is not occurring at Supplier’s premises, then Supplier shall ship the Hemp Extracts by shipping agents designated by Buyer, FOB Buyer's designated location. Buyer shall pay all shipping costs in such event.

 

G.              Risk of loss: Risk of loss and damage to the Hemp Extracts shall remain with the Supplier until delivery to Buyer, FOB Buyer’s designated location. The risk of loss shall pass to Buyer upon delivery of the Hemp Extracts to Buyer at Buyer’s designated location.

 

 

A.              Performance & Savings Reviews. The parties shall conduct regular meetings in person at a mutually convenient location or via video conferencing means to discuss and review the following: (i) delivery, service and quality performance evaluation; (ii) continuous improvement goals and objectives; (iii) market conditions and forecasts; (iv) future budgeting; and (v) business growth opportunities. Buyer reserves the right to audit Supplier, at its sole expense, to ensure compliance to pricing and other provisions of this Agreement with at least 3 business days prior notice, at the Supplier's facility. During such audit, the Buyer shall at all times comply with the Suppliers' policies in relation to entrance and access to the manufacturing facility, including but not limited to health &safety and security requirements and policies of the Supplier.

 

B.              Notification Requirement. If, for any reason, with the exception of an event of force majeure, at any time, Supplier shall refuse or be unable, or should reasonably anticipate being unable to deliver any part or all of the Hemp Extracts in accordance with the terms hereof, Supplier shall verbally notify Buyer of such refusal or inability at the earliest possible time and immediately confirm such notification in writing. Such notification shall not be deemed to operate as a release of Supplier from its obligations under a Purchase Order, Buyer shall have the right to replace, modify and/or cancel any delayed open Purchase Orders free from liability to Supplier.

 

C.               Records. Supplier shall provide Buyer with complete and accurate copies of any quality control documents maintained by Supplier for Hemp Extracts, including any raw material procurement and/or testing documents, upon Buyer's written request.

 

D.               Supplier’s Representations and Warranties. Supplier represents and warrants to Buyer as follows:

 

 

 

 

 

The term of the contract is for two (2) years (the “Initial Term”). Without prejudice to the above, this Agreement can at any time be terminated (i) by either party in case of a material breach of this Agreement, upon written notice by the non-defaulting party to the breaching party providing specific description of any such breach and then providing the breaching party with a 30 period to cure; (ii) upon mutual agreement of the parties; (iii) automatically at the end of the Term, which Term will be renewed automatically for additional two year periods unless either party provides written notice to the other party of its intent to terminate this Agreement at least 60 days prior to the end of the Term.

 

 

A.           Specifications. "Specification(s)" means written specifications or designs provided by Buyer. Collectively, the Buyer's Specifications and Supplier's Specifications may be referred to as the "Specifications". The Hemp Extracts shall comply with all applicable laws and regulations and conform to the Specifications. No change in the Specifications shall be made by the other party except with prior written approval of the party providing the Specification. Any changes that affect form, fit or function of the Hemp Extracts will be reflected in updated Purchase Orders. Supplier shall not ship any Hemp Extracts that have had such changes made until new Purchase Orders have been issued.

 

B.          Raw Materials. Supplier agrees to maintain all documentation/records regarding its procurement of all raw materials ("Materials") for a period of 5 years. Supplier shall not amend, change or supplement any of the following without Buyer's prior written consent: (i) the Specifications; (ii) the Materials; or (iii) the process for manufacturing the Hemp Extracts. Any change in any of the foregoing shall, in each case, comply with all applicable laws, regulations and agency requirements. In the event that Supplier desires to change any of the foregoing, Supplier agrees to immediately notify Buyer of such change in writing, and if Buyer agrees to such change, Supplier shall be responsible, at its sole expense, for ensuring that all Hemp Extracts manufactured following such change strictly conform to the change in Specifications, Materials or the manufacturing process.

 

C.         Inspection. All Hemp Extracts shall be received subject to Buyer's right of inspection and rejection. Defective Hemp Extracts or Hemp Extracts not in strict conformance with a Purchase Order or Supplier's and Buyer’s specifications, will be held for receipt of instructions, at Supplier's risk, and if Supplier so directs, will be returned, at Supplier's expense. If Buyer does not receive such written instructions within 45 days of Buyer's request therefore, Buyer may, without liability or any financial obligation to Supplier, sell, transfer or otherwise legally dispose of the Hemp Extracts, in any way that Buyer deems appropriate. Buyer may, by written notice to Supplier, and without limiting any other remedies available to Buyer under applicable law, demand replacement or correction of rejected Hemp Extracts. Payment for Hemp Extracts on a Purchase Order prior to inspection shall not constitute acceptance thereof or a waiver of a breach of warranty and is without prejudice to any claim(s) of Buyer. Supplier shall inspect all Hemp Extracts prior to shipment to ensure conformance with all Specifications and requirements of a Purchase Order.

 

 

 

D.         Audit. Buyer reserves the right to audit Supplier's facilities, as Buyer deems necessary, subject to the following conditions: (a) Buyer shall be entitled to conduct only one audit per year unless: (i) otherwise agreed in writing; (ii) there is a significant or recurrent quality control issues with the Hemp Extracts as determined in Buyer’s sole discretion; (ii) and/or Buyer can demonstrate that Supplier has materially breached this Agreement; (b) Buyer audits shall be conducted only upon at least 3 business days' advance written notice of the audit is provided by Buyer and conducted within working hours ; (c) all information gathered and data reviewed or exposed to the officers/employees of the Buyer during any such audit shall be "Confidential Information" and shall be treated as such in accordance with the provisions of this Agreement; and (d) the scope of each such audit shall include the systems and processes related to the quality, production and delivery of the Hemp Extracts under this Agreement and all documentation, data, and other records relating thereto, including, without limitation, records and data relating to raw materials used to manufacture the Hemp Extracts. Supplier shall cooperate with Buyer in the performance of such audit. If Supplier does not cooperate with the Buyer or is not prepared to host the audit arranged by the Buyer, then Supplier shall reimburse Buyer for all costs incurred by Buyer associated with the audit including travel, lodging and other expenses that the Buyer had incurred at Supplier's facility. Observations and conclusions of an audit will be issued to, and promptly discussed with Supplier and Supplier shall take into consideration such representations, but shall not be obliged to implement them unless such representation is in relation to a breach of the Specifications, requirements, obligations or manufacturing qualities under this Agreement.

 

E.               Records Retention. Supplier agrees to maintain complete and accurate books and records regarding all matters hereunder including Supplier's specifications, raw material procurement and/or testing documents related to the Hemp Extracts, as well as Supplier's production and other compliance with its obligations under this Agreement. All such documents must be maintained for a minimum of 5 years beyond the termination or expiration of this Agreement. (the "Retention Period"); provided, however, that in the event of any dispute arising with respect to this Agreement, or in the event of any claim, demand or lawsuit by Buyer or any third party with respect to any Product produced by Supplier under this Agreement, the Retention Period shall last until the resolution of the dispute becomes final and non-appealable and all obligations of the Parties are fully satisfied.

 

7.           Warranties. Except for warranties related to providing the Hemp Extracts in conformance with the Specifications of the Buyer, the Supplier shall provide no other warranties, express or implied to Buyer.

 

 

 

8.            Confidential Information. The terms of this Agreement and any information or items marked confidential or identified as confidential by written notice to the receiving Party under or relating to this Agreement, including but not limited to information concerning the information related to either party such the business, formulas, pricing, financial information, research data, sales and marketing information, customer lists, supplier lists, Buyer's Specifications, the Purchase Orders, the Forecast, the reports and any financial or manufacturing and technical information provided by the Supplier to the Buyer shall be treated as confidential information ("Confidential Information"). The receiving Party hereby undertakes (i) to hold and keep in confidence any and all such Confidential Information and not to disclose the Confidential Information or any part thereof to any third party except to only such of their directors, officers, employees and advisers (collectively, "Representatives" and each a "Representative") whose duties require them to possess or consider the Confidential Information and strictly on a "need to know" basis; and who shall prior to such disclosure agree to keep such information confidential and be bound by this Agreement; (ii) to use the same degree of precaution as it would use to protect its own confidential information of like importance but in no event less than reasonable care; (iii) not to use the Confidential Information, in whole or in part, for any purpose other than to complete the obligations under this Agreement; and (iv) not to use the Confidential Information in a manner directly or indirectly causing damages to the other party or use the Confidential Information to gain commercial benefit to itself. Provided, however, that Confidential Information shall not include information that (i) is already in, or subsequently comes into, the public domain other than through a violation of this Agreement, (ii) is received by the non-disclosing Party on a non-confidential basis from a source which is not prohibited from disclosing such information pursuant to any legal, contractual or fiduciary obligation to the disclosing Party, (iii) was already known by the receiving Party, as established by written documentation only, at the time of receipt from the disclosing Party, or (iv) is independently developed or (v) ordered to be disclosed by a competent court or a regulatory or public body. In such event, the receiving Party shall, where permitted under the relevant jurisdiction, immediately inform the disclosing Party so that the disclosing Party is given the opportunity to object to such disclosure in due time. Should any such objection by the disclosing Party be unsuccessful or should the disclosing Party decide not to object to any such disclosure, the receiving Party or its Representative so obligated or requested to disclose the Confidential Information may disclose only such Confidential Information to the extent required by the relevant court order or governmental or regulatory authority. Upon the expiration or early termination of this Agreement, each party shall return or destroy, and certify to such destruction of, all confidential information of the other Party. The covenants contained in this Section shall survive the termination of this Agreement regardless of the cause of the termination.

 

9. Guaranty of Supply. In the event the Supplier is unable or otherwise fails or will fail, for any reason (including an event of force majeure) to supply the Hemp Extracts in accordance with the quantities and/or delivery dates specified by Buyer in a Purchase Order, the Supplier shall promptly inform Buyer verbally with a confirmation in writing. If Supplier is able to supply some but not all of Buyer's orders for the Hemp Extracts, then Supplier shall supply such partial quantities of the Hemp Extracts. Supplier will use commercially reasonable efforts to source Hemp Extracts from third parties to be delivered to Buyer, provided such Hemp Extracts conforms to the Buyer’s Specifications. Alternatively, Buyer may elect and shall have the sole right to obtain Hemp Extracts itself from another supplier. If Supplier is unable to provide any replacement Hemp Extracts or if Buyer elects to obtain Hemp Extracts from a different supplier but only to the extent of fulfilling the Purchase Order for which Supplier was unable to meet the Purchase Order requirements. In such event, this Agreement shall remain in full force and effect and the Supplier shall not be liable to the Buyer for any additional costs, damages or fees of any kind in connection with the Buyer seeking an alternative source of supply.

 

 

 

10. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL THE PARTIES BE OBLIGATED TO ONE ANOTHER FOR PUNITIVE DAMAGES.

 

11.       Miscellaneous.

 

A.           Assignment and Relationship of the Parties. The Parties may not assign or subcontract this Agreement to a third party unless both parties have agreed to such assignment or subcontracting in a writing signed by an authorized representative. Supplier may not subcontract any of its obligations under this Agreement without Buyer's prior written approval. The parties are acting in performance of this Agreement as independent contractors. Neither Party shall have the power or authority to bind or obligate the other Party.

 

B.           Entire Agreement; Severability. This Agreement and the Exhibits attached hereto and made a part hereof constitute the entire understanding of the Parties with respect to the subject matter hereof, superseding any and all previous understandings, contracts and agreements, written and oral This Agreement may only be waived, modified, or amended in a writing signed by the Parties. The terms of this Agreement shall prevail over the terms of any other documents or agreement between the parties, including without limitation, any pre-printed terms in Supplier's invoices or the Purchase Orders or other Product documentation. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the Parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions.

 

C.  Notices. Unless otherwise specified herein, all notices under this Agreement shall be in writing, and shall be effective when sent by fax, electronic mail or Certified Mail, postage prepaid via a reputable courier company, to the Parties' address as first written above. Each Party may change its address which will be notified in writing to the other Party.

 

D.  No Waiver. Any waiver by either Party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any other breach of that or any other provision of this Agreement. Any waiver must be in writing. Failure by either Party to insist upon strict adherence to any provision of this Agreement on one or more occasions will not deprive such Party of the right to insist upon strict adherence to that or any other provision of this Agreement. No remedy herein provided shall be deemed exclusive of any other remedy allowed by law or in equity.

 

12. Intellectual Property. During the Term, Supplier hereby grants a non-exclusive, non-sublicensable, non-transferable perpetual, no royalty license to use any and all trademarks, logos or other intellectual property in connection with the Supplier’s Hemp Extracts.

 

13. Supplier's IP. All intellectual property rights arising from or in relation to the Hemp Extracts, its manufacture or production, and any other property furnished to the Buyer by the Supplier, shall be (i) the property of the Supplier, and (ii) can only be used within the scope of the license provided by the Supplier to the Buyer under the terms of this Agreement.

 

14. Force Majeure. Neither party shall be liable or deemed to be in default for any delay, interruption, or failure in performance under this Agreement resulting from the following events: acts of God, acts of civil or military authority; acts of the public enemy; war; accidents, fires, explosions, power surges, earthquakes, floods, or unusually severe weather; strikes or labor disputes; delays in transportation or delivery outside the reasonable control of the affected party; epidemics; and any similar event beyond the affected party's reasonable control ("Force Majeure Event"), but only to the extent the work of the party to be performed is affected by said Force Majeure Event.

 

 

 

15. Governing Law and Venue. This Agreement, the entire relationship between Buyer and Supplier, and any litigation or other legal proceeding between the parties shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to its choice of law rules. Any lawsuits or other proceedings arising out of this Agreement shall be brought in the state or federal courts located in Palm Beach County, Florida.

 

16. Modification. Except as otherwise provided in this document, this Agreement may be modified, superseded, or voided only upon the written and signed agreement of the parties. Further, the physical destruction or loss of this document shall not be construed as a modification or termination of this Agreement.

 

17.              Rules of Construction. The parties acknowledge that each party has read and negotiated the language used in this Agreement. The parties agree that, because all parties participated in negotiating and drafting this Agreement, no rule of construction shall apply to this Agreement which construes ambiguous language in favor of or against any party by reason of that party's role in drafting this Agreement. Headings. The headings in this Agreement are included for ease of reference only and shall not control or affect the meaning or construction of the provisions of this Agreement.

           18. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall constitute an original but all of which when taken together shall constitute but one Agreement. This Agreement shall become effective when it has been executed by both of the Parties. Delivery of an executed signature page of this Agreement by facsimile transmission or by electronic messaging system shall be effective as delivery of a manually executed counterpart hereof.

 

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized officers on the Effective Date.

 

SUPPLIER:

EXACTUS, INC.

 

By: /s/ Emiliano Aloi                                                                  

Emiliano Aloi, CEO

 

 

BUYER:

Canntab Therapeutics USA, Inc.

 

By: /s/ Jeff Renwick                                                                  

Jeff Renwick, CEO

 

 

 

 

 

 

EXHIBIT 1

 

Hemp Extracts Specifications and Pricing

 

 

Ingredient	CBD Content	THC Content	Form	Unit	$/Unit
CBD Isolate	>99.5%	n/a	Crystalline powder	1Kg	$ 3,650.00
CBD FS Distillate	75%-85%	1%-2%	Oil	1L	$ 4,400.00
CBD THC-Free Distillate	>80%	n/a	Oil	1L	$ 5,500.00
CBD FS WS Emulsion	~10%	<0.3%	Emulsified powder	1Kg	$ 1,100.00