TERMS AND CONDITIONS OF SALE
These terms and conditions of sale (the “Terms”) are applicable to any purchase order (an “Order”) for Ordered Products issued by the Customer and accepted by Resource Label Group or its affiliated companies (“RLG”):
Upon acceptance of an Order placed by Customer, RLG will supply the products and services specified in the Order (the “Ordered Products”) to Customer in accordance with the description, technical specifications, artwork and design specified by the Customer in the Order (the “Specifications”) and pursuant to these Terms. RLG’s acceptance of such Order submitted by Customer is limited to these Terms. RLG rejects any terms additional to or different from these Terms, including but not limited to terms contained in Customer’s standard terms and conditions of purchase, unless otherwise accepted by RLG in writing, including in RLG’s Order confirmation or in a separate written agreement negotiated and signed by Customer and RLG.
2. FREIGHT AND SHIPPING
RLG will ship Ordered Products via the carrier specified by Customer in the Order. If no carrier has been specified, RLG will select a carrier for the Customer. Customer acknowledges that the carrier is not an agent of RLG. RLG will seek to ship Ordered Products in a single shipment unless Customer requests products be shipped in installments, in which event Customer agrees to accept and be invoiced for the incremental shipping costs. All Ordered Products will be packed by RLG in accordance with standard commercial practices and will be shipped FOB RLG’s Plant. Risk of loss and/or damage and title to the Ordered Products will transfer to the Customer upon delivery to the carrier. Unless otherwise specified, the price quoted is exclusive of initial setup costs (prepress, artwork, dies, plates, etc.), freight and any applicable sales, excise, VAT or other taxes, which will be separately identified in the invoice. Express or priority shipping (including air freight) or delivery service will be provided at current rates upon Customer’s request.
3. PAYMENT TERMS
Subject to credit approval, payment shall be net cash thirty (30) days from the invoice date. RLG shall issue an invoice upon shipment of the Ordered Product.
4. OVER-RUNS AND UNDER-RUNS
Over-runs and under-runs not to exceed 10% on quantities ordered shall constitute acceptable delivery. RLG will bill for actual quantity delivered within this tolerance. If Customer requires guaranteed minimum quantities, additional costs may be charged.
RLG warrants for a period of twelve (12) months that the Ordered Products sold hereunder will conform to the Specifications, will be free of defects in material and workmanship, and will be of RLG’s standard quality. RLG’s liability under this warranty shall be limited to its option to either (a) repair or replace the Ordered Products or (b) return the purchase price paid by the Customer. Such obligation shall be conditioned upon receipt by RLG of notice of any alleged nonconformance to the Specifications within thirty (30) days after delivery to Customer. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. RLG SHALL HAVE NO RESPONSIBILITY FOR ANY PARTICULAR APPLICATION MADE OF ANY PRODUCT OR CUSTOMER’S FAILURE TO STORE, HANDLE, APPLY OR INSTALL THE ORDERED PRODUCTS IN ACCORDANCE WITH RLG’S WRITTEN INSTRUCTIONS. UNDER NO CIRCUMSTANCES SHALL RLG BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES BASED UPON LOST GOODWILL, LOST SALES OR PROFITS, WORK STOPPAGE, PRODUCT FAILURE, IMPAIRMENT OF OTHER GOODS, OR OTHERWISE, AND WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE. EXCEPT FOR LIABILITY ARISING OUT OF RLG’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL RLG’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE ORDERED PRODUCTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE ORDERED PRODUCTS IN THE 12 MONTHS PRECEDING THE CLAIM OR $250,000, WHICHEVER IS LESS.
The Ordered Products will be made to Customer’s Specifications. Accordingly, RLG does not permit non-warranty sales returns of Ordered Products.
7. CANCELLATIONS OR MODIFICATIONS OF ORDERS
After acceptance of an Order by RLG, no cancellation of the Order, change to Ordered Products, or change to the obligations of RLG hereunder shall be effective without the prior written consent of RLG. Should Customer cancel or suspend an Order, any work already in progress will be delivered and invoiced in accordance with the earlier instruction of the Customer. Customer shall make the payment required by such invoice in accordance with these Terms. In the event Customer wishes to cancel or reduce the quantity of any Order, RLG reserves the right, as a condition to consenting to such modification, to charge Customer for costs incurred by RLG in its reasonable discretion. These costs may include, without limitation, special ordered materials, plates, dies, and other specialty items. If Customer seeks to reduce the quantity of Ordered Product, RLG reserves the right to requote the Order.
8. CUSTOMER MATERIALS
Customer shall furnish and approve all artwork, designs, trade or service marks, logos and other written content on the Ordered Products (the “Customer Materials”). Customer represents and warrants that it has all requisite right, title and interest in the Customer Materials and that the Customer Materials (i) do not infringe any copyright, patent, trademark or other intellectual property rights of any third party; (ii) are not libelous and do not violate the rights of any person; (iii) do not require the consent or approval of any third party; and (iv) comply with applicable law. Customer will release and indemnify RLG against any third party claim (including costs, expenses and attorney fees) that the Ordered Products (a) breach any trademark, copyright or other intellectual property right of any person, (b) violate any requirement of law or the rights of any person, or (c) do not contain any word, device or design as may be required by applicable law.
9. CONFIDENTIAL INFORMATION
All proprietary information, specifications, designs, drawings, products, processes, know-how and other information (“Confidential Information”) submitted by one party to the other party shall be received by the receiving party in trust and confidence and, to the extent such information is the property of the disclosing party when disclosed to the receiving party, will remain the property of the disclosing party. Confidential Information shall not include information which (i) was in the possession of the receiving party at the time it was first disclosed by the disclosing party, (ii) was in the public domain at the time it was disclosed to the receiving party, (iii) enters the public domain through sources independent of the receiving party and through no breach of this provision by the receiving party, (iv) is made available by the disclosing party to a third party on an unrestricted, non-confidential basis (v) was lawfully obtained by the receiving party from a third party not known by the receiving party to be under an obligation of confidentiality to the disclosing party, or (vi) was at any time developed by the receiving party independently of any disclosure by the disclosing party. Confidential Information may be used to the extent necessary to perform the Order and the receiving party shall not disclose Confidential Information to any third party, except to its employees and agents as necessary to provide the work hereunder. In no event shall the receiving party acquire any right, title, license, or interest in and to any Confidential Information of the disclosing party.
The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
11. COMPLIANCE WITH LAW
Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
12. CUSTOMERS IN CANNABIS INDUSTRY
If Customer is engaged in the Cannabis Industry, Customer represents and warrants to RLG that (a) Customer is in compliance in all material respects with all applicable laws of each state, province or jurisdiction in which it owns assets or carries on business, (b) is duly licensed, registered and qualified to do business and is in good standing in each such jurisdiction; and all such licenses, registrations and qualifications are valid and in full force and effect, and (c) without limiting the foregoing clauses (a) and (b), the operations of Customer are and have been conducted in all material respects in compliance with the provisions of the Controlled Substances Act of the United States, 21 U.S.C. § 801 et seq. that do not conflict with state or local laws governing the sale, transport, manufacture, cultivation, and commercial activity of marijuana. The parties agree that any invalidity of the Order or these Terms for public policy reasons and/or their violation of any applicable United States law, civil, criminal or otherwise related to the Customer’s activities in the Cannabis Industry shall not be a valid defense to any dispute or claim arising out of the Order or these Terms and each party expressly waives the right to present any such defense. For purposes of these Terms, “Cannabis Industry” means the cultivation, harvesting, production, processing, marketing, distribution, sale, transfer of cannabis, marijuana or related substances or products containing cannabis, marijuana or related substances.
13. RESOLUTION OF DISPUTES
These Terms shall be governed by and interpreted in accordance with the laws of the State of Delaware.
14. FORCE MAJEURE
Neither party shall be liable for any failure to perform or delay in performance of the Order or these Terms to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, governmental action, order or regulation, strikes, lockouts, labor stoppage or slowdown, pandemics, epidemics, cyber or hostile network attacks, supply chain disruptions, inability to obtain raw or finished materials, shortage of adequate power or transportation facilities, embargoes or blockades, or any cause beyond such party’s commercially reasonable control.
Except as otherwise provided, the Order and these Terms shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
If any term or provision hereof is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision hereof or invalidate or render unenforceable such term or provision in any other jurisdiction.