CONSUMER TESTING SERVICES TERMS AND CONDITIONS

RECITALS

WHEREAS, Customer desires to engage Trichome, and Trichome desires to be engaged, to provide testing services relating to Samples provided by Customer pursuant to the Customer analysis request as documented on the Chain of Custody and/or online order submission. “Sample” means any cannabis flower, concentrate or infused product provided by the Customer and used by Trichome for testing under this Agreement.

NOW, THEREFORE, in consideration of the above recitals, the representations, warranties and covenants contained herein, and for other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the parties hereto agree as follows.

AGREEMENT

1. Testing Services.
1.1 Performance of Services. Trichome agrees to use commercially reasonable efforts to perform or cause to be performed for Customer the testing services described in the Price Quotes (“Testing Services”) in accordance with a defined volume, scope, period of time and pricing set forth herein and in current list pricing with regard to the Samples provided by Customer.
1.2 Testing Reports and Residual Samples. In respect of each Sample for which Trichome performs Testing Services, Trichome shall provide Customer with a Testing Report for such Sample. Upon completion of the performance of Testing Services on any Sample, Trichome shall, at its sole discretion and in compliance with applicable law: (a) destroy the remainder of such Sample; or (b) save the remainder of such Sample for future testing.

2. Payments.
2.1 Testing Services Fees. Customer shall pay Trichome fees for the Testing Services (the “Testing Services Fees”) in accordance with the Price Quote(s) set forth in the online ordering platform and/or current list pricing documentation provided by Trichome. The Testing Services Fees may be amended from time to time by Trichome in accordance with its general business practices.
2.2 Payment Terms. Payment for all fees charged and expenses incurred by Trichome in connection with performing the Testing Services and other payments are due prior to the receipt of the Testing Report.

3. Licenses to Trichome Intellectual Property.
3.1 No Implied License. Trichome and its licensors own and will retain all right, title and interest (including all intellectual property rights) in and to “Trichome” and/or the phrase “Verified by Trichome” and/or official “Trichome” logos (collectively, “Trichome Marks”). Customer does not acquire under this Agreement any right, title or interest in or to any of the foregoing, whether by implication, estoppel or otherwise, except for the limited license expressly granted under this Agreement.

4. Ownership.
4.1 Work Product. As used herein, the term “Work Product” means all materials, software, tools, data (including, without limitation, any and all data on any Testing Report), inventions, works of authorship and other innovations of any kind, including, without limitation, any improvements or modifications to any of the foregoing items, that Trichome, or personnel working for or through Trichome, may make, conceive, develop or reduce to practice, alone or jointly with others, in the course of performing the Testing Services or as a result of such Testing Services, whether or not eligible for patent, copyright, trademark, trade secret or other legal protection. Customer agrees that all Work Product shall be the sole and exclusive property of Trichome. Customer acknowledges that Trichome, in its sole discretion, shall have the right to license the Work Product or any portion thereof, and/or incorporate the Work Product or any portion thereof into products or services. Work Product does not include any Sample submitted to Trichome for testing.
4.2 Testing Reports. Upon Trichome’s receipt of all fees and other payments relating to any copy of a Testing Report and subject to Trichome’s ownership of all right, title and interest in the Work Product and Feedback (defined immediately below), Customer shall own such copy of such Testing Report.
4.3 Reservation of Rights. Except as otherwise expressly provided herein, nothing in this Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other intellectual property rights, and each party retains all right, title and interest in and to their respective technologies and other intellectual property rights.

5. Representations and Warranties; Disclaimers.
5.1 Trichome Representations and Warranties. Trichome represents and warrants to Customer that the Testing Services will be performed in a professional and workmanlike manner. In the event of a breach of this representation and warranty, Trichome agrees, as Trichome’s sole and exclusive obligation and Customer’s sole and exclusive remedy, to use commercially reasonable efforts to modify, replace or correct the Testing Services so that they comply with this Agreement, for which cost shall be the sole and exclusive responsibility of Trichome and not the Customer.
5.2 Customer Representations and Warranties. Customer represents and warrants to Trichome that: (a) Customer is twenty one (21) years of age or older; (b) Customer is obtaining Testing Services from Trichome for the purposes of Customer’s personal use only and not for any other use, including but not limited to the transfer, sale, or resale to any third party; (c) Customer shall not tamper with or otherwise modify any Testing Report; and (d) Customer shall not, and shall not permit any third party to, reproduce any Report or any information contained therein, except in its entirety, unless written consent has been granted by Trichome.
5.3 Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, CUSTOMER UNDERSTANDS AND AGREES THAT ITS USE OF ANY AND ALL TESTING REPORTS IS AT ITS SOLE RISK. CUSTOMER ACKNOWLEDGES AND AGREES THAT TRICHOME MAKES NO WARRANTY THAT THE TESTING SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, TRICHOME DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE SAMPLES, TESTING SERVICES, TESTING REPORTS AND INFORMATION AND DATA CONTAINED IN ANY REPORT(S). CUSTOMER ACKNOWLEDGES AND AGREES THAT EACH TESTING REPORT IS PROVIDED TO CUSTOMER FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE RELIED UPON TO DIAGNOSE, TREAT AND/OR PREVENT ANY HEALTH-RELATED SYMPTOMS, CONDITIONS AND/OR OTHER AILMENTS. IN CONNECTION WITH THE FOREGOING, (A) TRICHOME DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES RELATING TO HOW ANY SAMPLE MAY BE USED, AND (B) TRICHOME EXPRESSLY DISCLAIMS ANY AND ALL GUARANTEES, CLAIMS, REPRESENTATIONS, WARRANTIES OR JUDGMENTS AS TO THE SAFETY AND/OR EFFICACY OF SAMPLES TESTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT TEST RESULTS CONTAINED IN ANY TESTING REPORT ONLY RELATE TO THE APPLICABLE SAMPLE THAT WAS TESTED.

6. Indemnification.
6.1 Indemnification by Customer. Customer agrees to, and shall, indemnify, defend and hold harmless Trichome and its affiliates, and its and their respective officers, directors, shareholders, employees, agents, contractors, successors and assigns (collectively, the “Trichome Indemnitees”) from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorney’s fees and expenses) (collectively, “Losses”) arising from: (a) any breach by Customer of any of its representations and/or warranties provided in this Agreement; or (b) any violation of applicable laws, rules, or regulations by Customer. Trichome shall give Customer prompt written notice of any claim for indemnification, provided failure to do so shall not limit Customer’s indemnification obligations herein, except to the extent such failure materially prejudices Customer with respect thereto.
6.2 Indemnification by Trichome. Trichome agrees to, and shall, indemnify, defend and hold harmless Customer and its affiliates, and its and their respective officers, directors, shareholders, employees, agents, contractors, successors and assigns (collectively, the “Customer Indemnitees”) from and against any and all Losses arising from: (a) any breach by Trichome of any of its representations and/or warranties set forth above in Section 5.1 of this Agreement; and/or (b) the gross negligence, recklessness and/or willful misconduct of any Trichome employee(s), contractor(s), consultant(s), representative(s) and/or agent(s) arising in connection with this Agreement, or (c) any violation of applicable laws, rules, or regulations by Trichome. Customer shall give Trichome prompt written notice of any claim for indemnification, provided failure to do so shall not limit Trichome’s indemnification obligations herein, except to the extent such failure materially prejudices Trichome with respect thereto.

7. Limitations of Liability.
7.1 General Limitations. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (UNDER ANY THEORY, WHETHER IN CONTRACT, TORT, STATUTORY OR OTHERWISE) SHALL NOT EXCEED UNDER ANY CIRCUMSTANCES THE COMPENSATION PAID OR PAYABLE BY CUSTOMER TO TRICHOME UNDER THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7.2 Acknowledgment. Customer acknowledges that the limitations of liability contained in this Section 7 are a fundamental part of the basis of Trichome’s bargain hereunder, and Trichome would not enter into this Agreement absent such limitations.

8. Confidentiality.
8.1 Confidential Information. By virtue of this Agreement, Trichome may have access to information that is confidential to the Customer (“Confidential Information”). For purposes of this Agreement, “Confidential Information” of a party means information, ideas, materials or other subject matter of such party, whether disclosed orally, in writing or otherwise, that is provided under circumstances reasonably indicating that it is confidential or proprietary disclosed or otherwise provided by the Customer (“Disclosing Party”) to Trichome (“Receiving Party”). Confidential Information does not include that which (a) is already in the Receiving Party’s possession at the time of disclosure to the Receiving Party, (b) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party, (c) is obtained by the Receiving Party from an unrelated third party without a duty of confidentiality, or (d) is independently developed by the Receiving Party.
8.2 Restrictions on Use. The Receiving Party shall not use Confidential Information of the Disclosing Party for any purpose other than to perform its obligations and/or exercise its rights under this Agreement. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third parties except as otherwise permitted hereunder. The Receiving Party may disclose Confidential Information of the Disclosing Party only to those employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof. The Receiving Party shall maintain Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. Each party shall advise the other party in writing of any misappropriation or misuse of Confidential Information of the other party of which the notifying party becomes aware.
8.3 Exclusions. Notwithstanding the foregoing, this Agreement shall not prevent the Receiving Party from disclosing Confidential Information of the Disclosing Party to the extent required by a judicial order or other legal obligation, provided that, in such event, the Receiving Party shall promptly notify the Disclosing Party to allow intervention (and shall cooperate with the Disclosing Party) to contest or minimize the scope of the disclosure (including application for a protective order). Further, each party may disclose the terms and conditions of this Agreement: (a) as required by the applicable laws or contractual obligations, including, without limitation, requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities; (b) in confidence, to legal counsel; (c) in confidence, to accountants, banks, and financing sources and their advisors; and (d) in connection with the enforcement of this Agreement or any rights hereunder.

9. General.
9.1 Integration and Severability. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof and thereof shall be unaffected and remain in full force and effect.
9.2 Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of New Jersey without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New Jersey to the rights and duties of the parties. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in a state court in the County of Burlington, New Jersey, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
9.3 Modification and Waiver. No amendment or modification to this Agreement or any Price Quote shall be valid or binding upon the parties unless in writing and signed by an officer of each party. No failure or delay on the part of either party in the exercise of any right or privilege hereunder shall operate as a waiver thereof or of the exercise of any other right or privilege hereunder, nor shall any single or partial exercise of any such right or privilege preclude other or further exercise thereof or of any other right or privilege.
9.4 Non-Assignable. No right or obligation of Customer under this Agreement may be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without the express prior written consent of Trichome, and any attempt to assign, delegate or otherwise transfer any of Customer’s rights or obligations hereunder without such consent shall be void. Subject to the preceding sentence, this Agreement shall bind each party and its permitted successors and assigns. Trichome may assign any of its rights or obligations under this Agreement without the consent of Customer.
9.5 Remedies. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and, unless otherwise stated herein, shall not be deemed exclusive. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
9.6 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder must be in writing and delivered by recognized overnight courier service with tracking capabilities to the applicable party at address set forth at the set forth on the Price Quote.
9.7 Force Majeure. Both parties shall be excused from performance under this Agreement (except for any payment obligations) for any period to the extent that a party is prevented from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control and without its negligent or willful misconduct, including without limitation, acts of God, natural disasters, war or other hostilities, epidemics, pandemics, disease outbreak, or stay-at-home or similar governmental orders, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment.
9.8 Construction. The captions and section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
9.9 Counterparts. This Agreement and any Price Quote may be executed in several counterparts, all of which shall constitute one agreement.
9.10 No Third Party Beneficiaries. Nothing in this Agreement and any Price Quote is intended or shall be construed to give any person, other than the parties hereto, any legal or equitable right, remedy or claim under or in respect of this Agreement and/or any Price Quote or any provision contained herein or therein.
9.11 Relationship of Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties, and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.