Cellg8 Terms and Conditions of Sale and Manufacturing Agreement rev. 08/2020
(a) This contract contains the entire agreement between the parties and will be added to any NDA
agreement in place. This agreement supersedes any prior or contemporaneous oral or written agreements or
communications between them relating to the subject matter hereof.
(b) This contract shall not be assigned, modified,
or cancelled without the prior written consent of Cellg8 (“Seller”), and any attempt to assign, modify or cancel it
without such consent shall be absolutely void.
(c) Buyer understands and agrees that these terms and conditions
shall apply to all orders placed at any time by buyer including any after the order with respect to which these terms and
conditions were first delivered to Buyer.
(d) All marketing materials provided by the Seller, including branding and
trademarks, may only be used to promote products manufactured by the Seller; this includes sample size product.
Invoices issued by the Seller or any sale do not constitute any transfer, in whole or in part, of any intellectual property.
Buyer agrees to not take any steps to reverse engineer any product, sample, or good supplied, provided, or
manufactured by Cellg8 or associates, Buyer agrees not to circumvent Cellg8 by purchasing similar products that
were custom made for Buyer or were developed for Buyer
(f) The buyer represents that all marketing, sales, web,
label or other literature provided to its customers, potential customers, or the public will adhere to all FDA and FTC
regulations, is responsible for all claims, makes no prohibited claims and does not infringe on copyright.
affirms that Buyer is not encumbered by any obligations that prevents Buyer from purchasing goods or services from
(h) Buyer understands that regulations vary by region and is responsible to ensure that the product is
compliant with all regulations
(i) If information is provided to Cellg8 from Buyer, Buyer represents that they are
unencumbered in any way from sharing said information and have copyright to all materials written and images and
will indemnify and hold Cellg8 harmless if contested by a third party
(j) The certificate of analysis is the full
representation of the product’s performance and composition; any other representations made are a best estimate but
are not guaranteed
(k)To the fullest extent permitted by law, neither Party shall, in any public forum, criticize, ridicule, or
disparage or make any negative statements about the other Party.
(l) ERRORS: Stenographic and clerical errors are
subject to correction.
2. CHANGES AND CANCELLATION: Orders accepted by the Seller are not subject to changes or cancellation by the
Buyer, except with the Seller’s written and signed consent. If the sale covers product that must be manufactured
especially for Buyer and such written and signed change or cancellation is made, Buyer shall take all completed goods
at full price and all goods in process at cost plus pro-rata profit and Buyer shall reimburse Seller for any loss on materials
purchased or on contract for completion of the order. This includes, but is not limited to, all blanket orders, even those
without firm release dates scheduled.
3. TITLE, RISK OF LOSS, PRICES: Terms of delivery are F.O.B. point of shipment (ICC INCOTERMS 1990). Risk of
loss and title shall pass to Buyer upon delivery of product to the carrier. Unless specifically otherwise set forth, prices do
not include the cost of freight or handling, or costs or charges for insurance or any production, sales, use, transfer,
transportation, excise or other tax, tariffs, or custom duties, and Buyer shall pay directly or be charged by Seller for all
such costs and/or charges in addition to the price(s) of the product supplied hereunder and Buyer shall be obligated to
pay such charges and costs on the same terms as apply to payment of the price(s) hereunder.
4. DELIVERIES: Seller is not responsible for delays in delivery or non-performance resulting from causes beyond
Seller’s reasonable control. Seller’s time for delivery shall be extended by the time required to eliminate such cause for
delay. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES
ARISING OUT OF A DELAY OR FAILURE TO DELIVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR
REVENUES. Unless otherwise specifically expressed, partial shipments shall be deemed acceptable. Unless otherwise
specifically expressed, no additional insurance, beyond carrier standard will be extended on shipments. Any quality
issues must be reported within 30 days after delivery for any consideration.
5. TERMS OF PAYMENT: Terms of payment will be specified on all invoices. Seller reserves the right to charge interest
on any unpaid balance at a rate of up to 1.5% per month (or the highest rate permitted by applicable laws, if lower) from
6. REMEDIES: If Buyer fails to pay when due any amount on any invoice issued in connection with an order, fails to
pay when due any amount owing to Seller under any other contract or instrument, is in breach of any of Buyer’s
obligations to Seller under this or any other contract, or if the financial or business condition or responsibility of the
Buyer shall become impaired or unsatisfactory to Seller, Seller reserves the right, at Seller’s option, to cancel the order
without liability to Buyer, suspend work on the order and/or future orders and/or cancel all Seller obligations to Buyer in
this or any other contract or instrument and/or withhold delivery of all or part of the product subject hereto, in all cases
without prejudice to any other legal or equitable remedy, until past due payments are made and satisfactory assurance
of payment received. Buyer agrees to pay Seller the cost of collection of overdue invoices and any costs arising with
from a dispute with Buyer, including, without limitation, attorneys’ fees. Seller retains a security interest in all goods
delivered under this order to secure payment of amounts due in respect thereof and ensure compliance with this
agreement. Seller shall, in addition to the rights and remedies herein set forth, be entitled to all rights and remedies
provided for in the Uniform Commercial Code and other applicable law as from time to time amended, and at equity.
7. RETURNS/REPAIRS: No return of product shall be accepted by Seller without a return authorization number (RA#),
which shall be issued at Seller’s sole discretion. Product returned without authorization may be subject to delay in
handling or returned to Buyer, at Buyer’s expense. Seller shall not be responsible for material returned unless returned
with a valid return authorization number. All items returned must be packaged with at least the equivalent of the original
packing method and material. Seller reserves the right to issue credit for defective materials where availability makes
replacement impractical. All product found not defective shall be returned to the Buyer, transportation charges collect.
Seller cannot accept billing for packing, inspection or labor charges in connection with any return.
8. GOVERNING LAWS:
(a) These Terms and Conditions of Sale shall be under the exclusive jurisdiction of Larimer
County Courts, Colorado and in accordance with the substantive laws of the State of Colorado, U.S.A. Buyer legal
action arising out of or related to this agreement must be commenced within six months from the date the right, claim,
demand, or cause of action shall first occur, or be barred forever and be for no more than half of the invoiced amount.
(b) If any provision or portion hereof is held by a court of competent jurisdiction to be invalid, void, or unenforceable,
the remaining provisions or portions of this Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS
AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, OR EXCLUSION OF DAMAGES, IS
INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE
ENFORCED AS SUCH.
Cellg8 EIN: 83-2149489