Wholesale Terms & Conditions
1. Sale of Products. Subject to these Terms and Conditions, Company agrees to sell to Buyer the products described in the Purchase Order (“Products”), for the purchase price stated therein (“Purchase Price”). The Purchase Order is attached hereto and incorporated by reference. The Purchase Order may also take the form of an electronically-accepted Square Estimate. Buyer may not cancel or change the Purchase Order except with the prior written consent of Company and upon terms that will indemnify Company against any loss. If Buyer cancels or changes the Purchase Order without Company’s prior written consent or otherwise fails to timely pay for any Products, then Company may immediately terminate its obligations under the Purchase Order and these Terms and Conditions and recover the Products or value thereof. If Buyer wishes to reduce the dollar value of a Purchase Order by more than 10%, Company may choose to cancel the Purchase Order and refund any portion of a Buyer deposit that (a) has not already been deployed by Company to fill Buyer’s Purchase Order or (b) is recoverable by Company from third parties using commercially reasonable efforts, less a 10% service charge on any returned deposit.
2. Payment and Delivery Terms. Payment of the Purchase Price must be made to Company within 30 days after the date of the Purchase Order, and unless otherwise agreed to by Company and Buyer, Company will not ship any Products until payment has been received. All payments shall be made in good funds, in negotiable United States currency, by credit card via Square, by electronic bank transfer (wire or ACH), or by cashier’s check delivered to Company’s business address or at such other location as Company may, from time to time, designate in writing and with advanced notice to Buyer. The Purchase Price is F.O.B. (Free On Board) Origin, freight prepaid and added, with the destination, except as otherwise expressly agreed by Company and Buyer in writing, being Buyer’s “Ship to” address on the Purchase Order (“Point of Delivery”). Payments shall be payable without reduction or setoff for any costs or expenses, including, but not limited to, sales, use or any other tax, whether incurred by Buyer or any other party. If any withholding is required by law the Buyer shall immediately notify Company of the specific withholding requirement and (i) make such withholding; and (ii) account for the amount withheld to the relevant authority; and (iii) provide to Company the relevant tax deduction certificate in Company’s name; or (iv) pay to Company such amount, as will after deduction of any withholding, be equal to the amount that would have been received if no deduction had been made. If Buyer’s form of payment is rejected by the bank upon which it is drawn, Buyer shall be responsible for payment of the amount owed, plus a $25 non-sufficient funds fee. Any unpaid balance owed shall collect interest at 1.5% per month or the highest interest rate allowed by law. Buyer shall pay all costs of collection, including Company’s reasonable attorneys’ fees. Buyer shall not have any right of set-off with regard to any amounts owed to Company, regardless of any dispute that may arise between the parties.
3. Variation in Product Concentration; Material Nonconformance with Specifications; Notice. The cannabidiol (CBD) concentration (measured as a percentage of mass) shall be within plus or minus 15.0% of the stated numeric CBD concentration for the Product agreed to in the Purchase Order, and the Product will be accepted by Buyer despite any such variance (“Concentration Variance”). For clarity: should the Product have stated CBD concentration of 60.0%, the acceptable range of concentration shall be 51.0%-69.0% (where 15.0% of 60.0% = 9.0%). Additionally, the Product will substantially conform with all material specifications agreed to in writing by Buyer and Company. Buyer must give Company written notice within 20 days after shipment date of Product items received by Buyer that fall outside of the Concentration Variance or otherwise do not conform with material specifications to be eligible for a credit, refund, or reimbursement. Failure to give such timely notice will preclude Buyer from later seeking or claiming a credit, refund, or reimbursement for such Product items which Buyer may allege it received that fall outside of this acceptable margin for error. In the event that Buyer gives timely notice, Company will have the opportunity to retest the Product to demonstrate that the Product is within the acceptable margin for error prior to granting a credit, refund, or reimbursement. A credit, refund, or reimbursement will only be given if the Product falling outside the acceptable margin for error, following re-testing, is returned to Company by Buyer.
4. Confidentiality. Buyer agrees to keep confidential the information that is disclosed to it by Company pursuant to the Purchase Order and these Terms and Conditions or in performing the work contemplated hereby. Confidential Information shall include, but is not limited to, all nonpublic written documentation, oral disclosures or disclosures made by visual observation of Company’s proprietary information and property, technical or business information disclosed or otherwise made available. No disclosure of any Confidential Information to any third party is allowed under this Agreement except and only if written permission is granted by Company. Buyer shall restrict disclosure of Confidential Information solely to its attorneys, principals, and employees with an actual and present need to know in order for the disclosing party to fulfill its obligations under this Agreement or if such disclosure is required by law. Buyer shall use a reasonable degree of care to prevent the unauthorized use or disclosure of Confidential Information. This provision shall survive the termination of this Agreement. Nothing contained in this Agreement shall be construed to grant Buyer any right, title or interest in or to any of Confidential Information of Company. Buyer shall not copy or otherwise reproduce, in whole or in part, any of Company’s Confidential Information without the prior written authorization of Company, except as may be reasonably necessary to fulfill the purposes of this Agreement. All Confidential Information will remain the property of Company. Buyer agrees that its breach would leave Company without an adequate remedy at law and that Company will be entitled to seek an injunction against such breach, in addition to other remedies available to such party. Notwithstanding anything to the contrary, it shall not be a breach of this Section for a party to disclose the existence or terms of this Agreement in order to enforce the terms thereof. Upon completion or termination of the Purchase Order and these Terms and Conditions, all Confidential Information is to be returned to Company’s possession or control.
5. Intellectual Property. To the extent provided or created by Company, Company retains for itself all of its intellectual property rights in any Products, including but not limited to, all technology, manufacturing methods and processes, product formulations, flavor formulas or profiles, recipes for the manufacture and/or compounding of Products, Product specifications, applications, raw ingredient and packaging sources and suppliers, testing methods and results, batch production reports, master manufacturing records, research and developmental activities, business and marketing plans, customer names, contacts, lists, requirements, material sources, business relationships or contracts with third parties (collectively, the “Proprietary Information”). Buyer agrees and confirms that it has no, and Company’s sale of the Products shall not be construed as granting to Buyer any, license or intellectual property or similar right applicable to or in the Products or any Proprietary Information. Buyer shall not, and shall not attempt to, modify the Products or the Proprietary Information, reverse engineer their formulations, formulas, recipes or profiles, and/or create derivative works from the Products or the Proprietary Information. Neither Buyer nor any third parties shall have any rights in the Products or the Proprietary Information, unless otherwise expressly agreed by Company. However, Company acknowledges that Buyer shall have the right to commercially exploit the Products in any manner it chooses, including, without limitation, in magazine articles, advertisements, and tradeshow demonstrations, to utilize the Products as an ingredient within or in the production of Buyer’s own goods and products, and to sell or distribute the Products without payment of any royalty or fee (other than as expressly agreed in the Purchase Order and these Terms and Conditions) to any person or entity and without acknowledgement of Company as the creator of the Products.
6. Buyer Representations and Warranties. Buyer warrants that it will promptly pay the Purchase Price and any other amounts due to Company under the Purchase Order, these Terms and Conditions, or otherwise. Buyer warrants that it has the necessary authority to enter into the Purchase Order and these Terms and Conditions. Buyer warrants that all information provided to Company is true and accurate and acknowledges that Company is relying upon such information in relation to the provision of the Products. Buyer warrants that any manufacturing or packaging supplies or containers, such as bottles and boxes, provided to Company by Buyer from any source, shall be of good quality and free of any materials or chemicals which would alter or contaminate in any way Company’s Products and shall not infringe upon, violate, or misappropriate the intellectual property rights of any person. Buyer hereby acknowledges Company’s reliance on Buyer’s representations as to the safety and quality of any supplies provided by Buyer for Company’s use in fulfilling any contract for the production or sale of Products to Buyer. Buyer acknowledges and warrants that any product intended for human use made with or derived from the Products shall be packaged by Buyer for end use with all required warning labels. Buyer warrants that it has obtained all necessary consents, approvals, authorizations, permits, and licenses from any third parties necessary for Buyer to perform its obligations under this Agreement and that Buyer will perform its obligations under this Agreement in compliance with all applicable federal, state, and local laws, regulations, and ordinances.
Buyer will comply with all applicable laws and regulations regarding the transfer, handling, packaging, sale, use or other disposition of the Products and any containers filled under or containing Products sold under the Purchase Order and these Terms and Conditions. Among other things, Buyer will comply with any and all export control laws or regulations of the United States or any other applicable export control laws or regulations, including, but not limited to, the Export Administration Regulations (EAR) and any Office of Foreign Asset Control (OFAC) prohibitions as those laws or regulations relate to the goods and services that are the subject of this contract. Buyer will obtain any necessary licensing required to perform its obligations arising from this contract under any export control law or regulation and Buyer will not require performance hereunder prior to providing proof of any required license. Buyer will not require the performance of this contract in such a manner that would violate any export control law or regulation of the United States or any other applicable export control law or regulation. Buyer will refrain from providing, or offering to provide, anything of value to anyone in furtherance of this contract that would violate the United States Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. §§ 78dd-1 et seq.
7. No Warranty. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS ARE SOLD AS IS WITH ALL FAULTS. COMPANY REPRESENTS AND WARRANTS THAT: (A) ALL PRODUCTS WILL BE “INDUSTRIAL HEMP” OR DERIVED FROM “INDUSTRIAL HEMP” AS SUCH TERM IS DEFINED IN N.C. GEN. STAT. § 106-568.51(7); AND (B) THE PRODUCTS WILL SUBSTANTIALLY CONFORM IN ALL MATERIAL RESPECTS TO THE SAMPLE PRODUCT THAT IS USED TO GENERATE THE CERTIFICATE OF ANALYSIS PROVIDED BY COMPANY TO BUYER IN CONNECTION WITH THE PRODUCTS AT THE TIME OF SALE (COLLECTIVELY, THE “LIMITED WARRANTY”). EXCEPT FOR THE LIMITED WARRANTY, COMPANY MAKES NO WARRANTIES EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR PERFORMANCE OF GOODS OR PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. BUYER’S RIGHT TO INSPECT AND REJECT PRODUCTS IS LIMITED TO PRODUCTS THAT DO NOT ADHERE TO LOCAL, STATE, AND FEDERAL REGULATIONS, AND ANY INSPECTION SHALL OCCUR AT BUYER’S OWN EXPENSE. NO SALES REPRESENTATIVE, EMPLOYEE, OR ANY OTHER PERSON OR ENTITY IS AUTHORIZED TO OFFER ANY DIFFERENT OR ADDITIONAL WARRANTIES OR REMEDIES, OR TO CHANGE THESE TERMS AND CONDITIONS, WITHOUT THE SIGNATURE OF AN AUTHORIZED OFFICER OF COMPANY.
8. Limitation of Liability. THE PARTIES AGREE THAT NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD-PARTY FOR (A) DAMAGES THAT CONSTITUTE LOSS OF INTEREST, PROFIT, OR REVENUE, LOSS OF BUSINESS, OR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, MULTIPLE, TREBLE, OR INDIRECT DAMAGES, EVEN IF, IN EACH CASE, THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH, (B) DIRECT DAMAGES INCURRED BY THE PARTIES OR BY A THIRD-PARTY, IN THE AGGREGATE FOR ALL CLAIMS, IN EXCESS OF THE AMOUNTS ACTUALLY PAID BY BUYER TO COMPANY FOR THE PRODUCTS, OR (C) LOSS OR DAMAGE WHICH IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, INTENTIONAL ACT OR STRICT LIABILITY OF THE PARTIES, THEIR RESPECTIVE AGENTS, OR THEIR RESPECTIVE EMPLOYEES. THE PARTIES AGREE THAT THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS ASSERTED OR ALLEGED BETWEEN THE PARTIES FOR VIOLATIONS OF THEIR RESPECTIVE OBLIGATIONS OWING UNDER SECTIONS 4 AND 5 OF THIS AGREEMENT. FURTHER, THE PARTIES AGREE THAT THE LIMITATION OF LIABILITY DESCRIBED IN THIS SECTION SHALL NOT APPLY TO INDEMNIFICATION CLAIMS ARISING UNDER SECTION 9 OF THIS AGREEMENT. COMPANY MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES WITH REGARD TO BUYER’S EXPECTED BUSINESS VOLUME OR PROFIT.
9. Indemnification. Company agrees to and shall indemnify, defend and hold Buyer, its affiliates, subsidiaries, officers, agents, owners, employees, successors and assigns (the “Buyer Indemnitees”) harmless from and against any and all costs, claims (including, without limitation, product liability), damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or relating to claims by third parties for: (a) Company’s own activities; (b) Company’s performance, material nonperformance or material breach of these Terms and Conditions; (c) bodily injury (including death) or damage to personal property caused by Company or its agents or employees; (d) the gross negligence or willful misconduct of Company, its officers, directors, owners, shareholders, members, managers, employees, agents, or contractors; (e) the recall of any Product or any finished goods containing or derived from a Product due to a failure of the Product; or (f) any claim of infringement by the Products.
Buyer agrees to and shall indemnify, defend and hold Company, its affiliates, subsidiaries, officers, agents, owners, employees, successors and assigns (the “Company Indemnitees”) harmless from and against any and all costs, claims (including, without limitation, product liability), damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or relating to claims by third parties for: (a) Buyer’s own activities; (b) Buyer’s performance, material nonperformance or material breach of these Terms and Conditions; (c) bodily injury (including death) or damage to personal property caused by Buyer or its agents or employees; (d) the negligence or willful misconduct of Buyer, its officers, directors, owners, shareholders, members, managers, employees, agents, or contractors; (e) any representations or claims made to third parties by Buyer or its affiliates, subsidiaries, or agents, or their respective agents, employees, or distributees, with respect to the Products or any goods containing or derived from the Products, whether contained in Buyer advertising, on the labels or other packaging, or otherwise; (f) final expiration date of finished goods containing or derived from the Products or sales of any finished goods containing or derived from the Products after any guaranteed freshness date; (g) damaging, diluting, adulterating, or tampering with the Products by anyone other than Company, its employees, agents, contractors, or licensees; (h) the labeling of a Product or any finished goods containing or derived from a Product; (i) the recall or failure of any Product or any finished goods containing or derived from a Product due to an ingredient supplied by Buyer or its vendor(s); or (j) any claim of infringement by any finished goods containing or derived from the Products if not stemming from the Products themselves, any logos, trademarks, service marks, or artwork used by Buyer in connection with the Products, or any intellectual property rights or trade secrets of a third party. Buyer shall provide: (i) prompt notification of any potential suit or claim; and (ii) reasonable assistance, at Buyer’s expense, in the defense and settlement of any suit or claim(s), coming to its attention. If a conflict of interest exists vis-à-vis the interests of Company and Buyer, or if Buyer fails to diligently defend Company, Company shall be entitled to defend the suit or claim with counsel of its own choosing at the expense of Buyer, for the account of, and at the risk of, Buyer. In addition, Company can participate in the defense or settlement of any suit or claim(s) at Buyer’s sole cost and expense for reasonable out-of-pocket expenses.
The parties agree that in addition to any rights and remedies provided herein, the Buyer Indemnitees and the Company Indemnitees shall have all rights and remedies as provided under North Carolina law, including, without limitation, the right to injunctive relief and/or specific performance (without the need to show irreparable harm or to post a bond or other security). All such remedies shall be cumulative and not exclusive.
10. Arbitration. ANY DISPUTE ARISING OUT OF THIS AGREEMENT SHALL BE RESOLVED AND DETERMINED BY CONFIDENTIAL, INDIVIDUAL, BINDING ARBITRATION UNDER THE CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
THE ARBITRATION PROCEEDINGS SHALL BE HELD IN WAKE COUNTY, NORTH CAROLINA. ALL QUESTIONS OF LAW SHALL BE DECIDED IN ACCORDANCE WITH THE LAWS OF NORTH CAROLINA. TO THE EXTENT POSSIBLE, THE PARTIES SHALL USE THE SIMPLIFIED RULES OF ARBITRATION AS SET FORTH BY THE AMERICAN ARBITRATION ASSOCIATION.
BY AGREEING TO THIS ARBITRATION PROVISION, TO THE FULLEST EXTENT PERMITTED BY LAW BUYER: (I) EXPRESSLY WAIVES ANY RIGHT TO ARBITRATE A DISPUTE AS A CLASS ACTION; AND (II) EXPRESSLY WAIVES THE RIGHT TO A JURY TRIAL.
Further, unless Buyer and Company agree otherwise, the arbitrator may not consolidate more than one Buyer’s claims and may not otherwise preside over any form of a representative or class proceeding. In the event that any provision of this agreement to arbitrate is held invalid or unenforceable, all other terms within the agreement to arbitrate shall remain in full force and effect.
11. Force Majeure. If Company is delayed, hindered, or prevented, for reasons other than its own negligence or willful misconduct, from the performance of any act, or compliance with a covenant or obligation required hereunder, by reason of Act of God, fire, storm, rain, snow, other weather events, strike, lock-out, labor trouble, unexpected inability to procure material or supplies, work stoppages, discontinuance of work, casualties, labor disputes, lack of energy, restrictive governmental law or regulation, change of regulatory structure that makes Company’s activities reasonably impracticable, law enforcement interference, riot, insurrection, war or any other reason of a like nature which is beyond the reasonable control of Company, then performance or compliance shall be extended for a reasonable period, but not longer than necessary to enable Company to overcome such force majeure condition. If a force majeure condition causes, in the sole discretion of Company, a substantial or significant delay in Company’s ability to perform its services, or if a force majeure condition renders the services to be performed by Company impracticable, impossible, or unreasonably expensive to perform, as determined by Company in its sole discretion, then Company may give notice to Buyer and immediately terminate the parties’ agreement without further liability.
12. Security Agreement. Buyer grants Company a continuing purchase money security interest in all Products sold or delivered to it (collectively, the “Collateral”) to secure the full payment of the Purchase Price of the Products and all other obligations of Buyer to Company. Buyer authorizes Company to file all financing statements, continuation statements, and other documents necessary or desirable to establish, perfect, maintain, preserve, and enforce Company’s security interest in the Collateral.
13. Severability. If any term of these Terms and Conditions is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
14. Non-Exclusivity. Buyer acknowledges and agrees that this is not an exclusive agreement or a requirements contract and Company is free to produce and sell its Products, or any other goods and products, to others.
15. Assignment. Neither party shall assign its rights, interests, or obligations hereunder without the prior written consent of the other party. These Terms and Conditions are made only to benefit the parties hereto; there are no third-party beneficiaries.
16. Entire Agreement. Except for any document referenced herein, these Terms and Conditions and any Purchase Order attached hereto contain the entire agreement and understanding between the parties hereto with regard to the subject matter covered herein. All prior negotiations, understandings, terms, and conditions are merged into these Terms and Conditions. To the extent any terms contained within a Purchase Order attached hereto are different from or conflict with these Terms and Conditions, these Terms and Conditions shall apply and control. These Terms and Conditions may only be modified or waived in a writing signed by the parties.
17. Consent to Electronic Signatures. By electronically accepting, signing and submitting this document below, Buyer consents to the Purchase Order and these Terms and Conditions, and the parties agree that such action shall be Buyer’s electronic signature. Furthermore, the Parties agree that electronic signatures, electronic records, and electronic documents shall be given full force and effect, as if they were original, hand-executed documents. The parties agree that the Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transaction Act shall apply to the Purchase Order and these Terms and Conditions.