Crosby Hops Customer Portal Terms and Conditions of Use

Last Updated: March 24, 2020

1. Portal Use Constitutes Agreement to These Terms and Conditions. By accessing and using the Crosby Hop Farm, LLC ("CHF" or "we" or "us") Customer Portal available at https://portal.crosbyhops.com/ ("Portal"), you are agreeing to be bound by these Customer Portal Terms and Conditions of Use ("Terms") and to comply with all applicable laws, rules, and regulations. Different or additional provisions of any purchase order or similar document you submit is objected to and not binding on CHF. Without limiting the foregoing, you assume all risks and responsibilities related to legal compliance associated with use of the product purchased. If you do not agree with these Terms, you are prohibited from using or accessing the Portal. The materials contained in this Portal are protected by applicable copyright and trademark law.

2. CHF's Right to Modify Terms. We reserve the right to modify, amend, change, and otherwise alter these Terms at any time. Any such modification or amendment will be effective when posted to the Portal, and your continued use of the Portal after such modified or amended Terms are posted to the Portal constitutes your agreement to them.

3. Customer Account. This Portal is provided for your use to purchase and/or arrange delivery of hops and select hop products. Use of this Portal for any other purpose is expressly prohibited. By registering an account with us through the Portal, you represent that all information you provide is accurate and that you will keep all account information up-to-date. You are solely responsible for the security of your computer system, access credentials, mobile devices, and all activity transacted with your account – even if you did not initiate such activities. We will not be liable for any loss or damage arising from unauthorized access to or use of your account or credentials, and you agree to indemnify, defend, and hold CHF and its agents and affiliates harmless for any improper or illegal use of your account, including, without limitation, any charges and taxes incurred. If you believe your account has been compromised, you must immediately notify us at orders@crosbyhops.com. We reserve the right to terminate without notice the account of any person or entity we have reason to believe may be using the Portal either fraudulently, in bad faith, for an unauthorized purpose, or in violation of these Terms.

4. Order Placement and Acceptance; Returns. When placing an order through the Portal, you are offering to purchase whatever products you select. We reserve the right to accept or reject any order in our own discretion; we will promptly inform you if the product you have ordered is unavailable and we may offer you alternative product of equal quality and value. If we accept your order, you will receive a confirmation email at the email address associated with your Portal account. You have the option of cancelling your order at any time before shipment. We must receive payment before we are obligated to ship your order, unless you have established terms of credit with us. Items ordered from the spot list will be fulfilled based on the crop year reflected in the portal for each line item ordered.

Given the perishable nature of hops and hop products, we may be unable to re-sell product returned to us. For that reason, no product may be returned to CHF without CHF's prior consent, which may be withheld in our sole and absolute discretion. If we agree to a return, we may charge you a 20 percent re-stocking fee, all items must be returned unused and undamaged, and you will be required to pay all return shipping and handling fees. Without limiting the foregoing, you will bear all risk of loss or damage during such return shipment.

5. Payment and Payment Information. All orders placed, and all deliveries arranged, through the Portal must be paid by credit card at the time you place your order, unless you have previously established credit terms in a Hop Purchase Agreement or have received an authorized letter of credit terms from CHF, in which case payment will be governed by those terms. By placing an order through the Portal, you are giving permission to CHF to reuse your payment information for future purchases or other obligations. On credit card transactions over $10,000, you agree to pay a 3% service fee. You agree to provide only true, accurate, current, and complete information when ordering products or requesting delivery through the Portal. Without limiting the foregoing, you represent and warrant that you will only provide your payment information, or payment information you are authorized to provide. We have the right to cancel, suspend, or terminate your account if we believe that you have provided inaccurate, out-of-date, fraudulent, or incomplete information to us (including without limitation payment information), or for any other reason that we, in our sole discretion, deem appropriate. Finally, you agree that your placement of an electronic order on the Portal is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.

6. Selection and Assignment of Hop Varieties. The selection of products available through the Portal will generally be those varieties of hops and hop products that are available for you to purchase. Spot hops and hop products may be displayed for assorted varieties that are not subject to an existing Hop Purchase Agreement between you and CHF. If you have an existing Hop Purchase Agreement in place with CHF, the Portal will display those items that have not yet been shipped to you under the terms of those agreements. All contracted hops and hop products will ship on a FIFO (first-in first-out) basis. For example, hops harvested in a later year will not be available to you as long as you have not accepted delivery of all hops of that same variety from previous harvests. Please contact your CHF sales representative if you have any questions.

7. Price and Packaging. The agreed-to price will be established by the price displayed on the Portal at the time you place your order or request delivery. Displayed prices do not include interest, storage, and foreign currency translation. Prices are EXW (Incoterms) Woodburn, OR, unless otherwise specified in the Portal or under an established Hop Purchase Agreement. Unless otherwise specified in the Portal or an established Hop Purchase Agreement, prices for hops do NOT include, and you agree to pay, all applicable shipping, freight, insurance, excise taxes, value added taxes, sales taxes, duties, and all other taxes, duties, levies, consular or other fees imposed by governmental, customs, or port authorities in respect of sale or delivery. If insurance, shipping costs, freight, taxes, duties, or fees at delivery or time of shipment differ from those in effect when your order or delivery is processed, you will be responsible for and pay any increase; we will credit your account for any decrease.

Prices, availability, and other purchase terms are subject to change without notice. We take reasonable steps to accurately describe the items available in the Portal, and to depict the most up-to-date packaging. But we do not warrant that product or packaging descriptions are always accurate, complete, reliable, current, or error-free; as a result, the product and product packaging you receive may differ from such descriptions. If a product described in the Portal is not as described when you receive it, or the packaging in the Portal does not match the product you receive, you must comply with the terms of Section 10 to determine if you are eligible for a refund or replacement.

8. Order of Precedence. The terms of our written Hop Purchase Agreement with you (if any) will override any contradictory provisions included in these Terms. If you have a Hop Purchase Agreement already in place, you agree to fulfill your obligations under that agreement according to its terms and conditions, together with these Terms.

9. Shipment Times. Products ordered through the Portal will generally be shipped upon completion of order processing and receipt of payment. Requested deliveries on contract purchases generally will be shipped once processing and handling have occurred, and otherwise according to the terms of your Hop Purchase Agreement. We will use reasonable efforts to meet the estimated shipping and delivery dates we provide, but we are not responsible for any delays in shipments.

10. Claims Related to Quantity or Quality; Returns. Any claims related to either the quantity or quality of the product received, or any part thereof, must be raised by written notice to CHF within 15 calendar days of when you receive the product at issue; otherwise, such claims are waived. Each shipment is understood to be severable as to each unit of product so that no claim that one or more units does not conform to these Terms permits you to reject the entire shipment. YOUR EXCLUSIVE REMEDY FOR ANY DEFECTIVE OR NONCONFORMING PRODUCT IS REPLACEMENT OR REFUND WITHIN 90 DAYS OF YOUR TIMELY NOTICE TO CHF.

IN NO EVENT WILL WE BE LIABLE FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, FOR LOST PROFITS, OR FOR ANY OTHER INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED. REGARDLESS OF THE THEORY OF LIABILITY, OUR LIABILITY WITH RESPECT TO PRODUCT WILL NOT EXCEED THE PURCHASE PRICE FOR THE PRODUCT AT ISSUE.

11. CHF's Performance; Force Majeure. You acknowledge that the production of agricultural crops is subject to the uncertainties of nature, including but not limited to unpredictable variations in temperature, moisture, pests, and disease. These variations to some extent are beyond our control and can adversely impact the quality and volume of the harvested crop. Recognizing this uncertainty, we reserve the right to pro-rate the contracted quantities of hops, on a percentage basis, to each of our customers in the event of a shortage of hops due to such uncertainties of nature. In such event, the total contract price and payment terms will be adjusted accordingly.

Furthermore, we will not be liable for loss, damage, or delay caused by governmental acts, orders, rules, or regulations, strikes, labor shortages, matters arising out of or incidental to war; embargo; transportation delays or difficulties; epidemic or pandemic; flood, fire, or acts of God; or any other causes of like or unlike nature beyond our control. Shipments delayed due to such causes may at our option be made as soon as normal conditions permit – or cancelled in their entirety. Delivery by CHF of five percent more or less than the quantity stated under these Terms will constitute full performance.

12. Collection, Use, and Disclosure of Personal Information. We collect personal information about you (“Personal Information”) when you use our Portal, such as when you provide it in connection with a request for a product, service, or information. We may use the Personal Information you provide as set forth in our Privacy Policy available here: https://crosbyhops.com/online-privacy-policy.

As noted in our Privacy Policy, we may contract with third parties to provide certain services such as email and hosting services, credit card processing, shipping, data management, surveys and marketing, promotional services, or to assist in preventing or deterring fraud. We may share Personal Information with these third parties solely as appropriate for them to perform their functions, but they may not use such information for any other purpose.

13. Limited Warranties.

By accessing the Portal, you represent and warrant that you (a) have the legal authority to bind the organization you represent to these Terms and otherwise have the right to enter into the transactions you initiate, (b) are buying the products for your own use – not for resale or export, and (c) are not prohibited from accessing or using the Portal, or any products offered through the portal, under any applicable law, rule, or regulation.

We warrant and represent to you that any product purchased through the Portal will conform in all material respects to its description in the Portal. EXCEPT AS SET FORTH ABOVE AND SUBJECT TO APPLICABLE LAW, WE MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES WHATSOEVER WITH REPECT TO THE PRODUCT PURCHASED THROUGH THE PORTAL, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. YOU ASSUME ALL RISKS RELATED TO THE USE OF THE GOODS TO CREATE ANY DERIVATIVE PRODUCT. WITHOUT LIMITING THE FOREGOING, WE ALSO DISCLAIM ALL WARRANTIES WITH REGARD TO THE PORTAL, WHICH IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS; WE MAKE NO WARRANTY THAT THE PORTAL WILL BE ERROR-FREE OR AVAILABLE AT ALL TIMES. Your exclusive remedy for our breach of this limited warranty is, in our discretion, a refund or replacement of the purchased product. This warranty expires 90 days after your discovery of, or when you should have discovered, any defect or nonconformance with the product at issue.

14. Assignability. You may not assign any rights or delegate any duties under these Terms without CHF's prior written approval, which may be withheld in CHF's sole and absolute discretion.

15. Choice of Law; Dispute Resolution. These Terms will be governed and interpreted under the laws of the State of Oregon, USA. Any claim, dispute, or controversy arising out of or related to these Terms that cannot be promptly and amicably resolved by the parties will be resolved by confidential and binding arbitration administered by the Arbitration Service of Portland, in Portland, Oregon (USA), in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The language of the arbitration will be English. The prevailing party in the arbitration will be entitled to recover its reasonable attorney fees.

16. Miscellaneous. These Terms are for your sole benefit and nothing in these Terms, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. If any provision of these Terms is found unenforceable, such unenforceable provision will be removed and the remaining terms will be enforced. Our failure to enforce any of our rights hereunder will not constitute a waiver of our right to make such enforcement in the future, subject to applicable law. The official language of these Terms is English; any foreign-language translation is for convenience only. These Terms (including any other policies referenced in these Terms), together with any applicable Hop Purchase Agreement and/or approved addendums to the Hop Purchase Agreement, constitute the entire agreement between you and CHF and supersede any prior agreements.

17. Notices. We may provide notices hereunder to you by: (i) email; (ii) regular mail; or (iii) posting them on the Portal. You are responsible for regularly checking the Portal for notices and ensuring that you have provided us with your current email and mailing addresses. You must provide notices to CHF by email to orders@crosbyhops.com.

18. Electronic Signature. By clicking on the button labeled “SUBMIT”, “DOWNLOAD”, “I ACCEPT”, “YES”, or other such similar links as may be designated by CHF, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms and the provisions and records contained in any hyperlinks included herein. Pursuant to any applicable statutes, regulations, rules, ordinances, or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PORTAL OR OTHER SERVICES OFFERED BY CHF. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.