Terms and Conditions of Sale
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF SALE OF PRODUCT. Your signature, initial, and/or payment of any Request, including, but not limited to, Sales Orders, Invoices, and Quotes, will affirm that you have read and agree to all the Terms and Conditions of Sale of Product.
TERMS AND CONDITIONS OF SALE (“Agreement”) with Eclipse Liquids, LLC (“Seller”)
Unless otherwise agreed upon in writing, the following terms and conditions shall apply:
- Sale of Products. Seller’s acceptance of Buyer’s order for the products sold by Seller (“Products”) are subject to the terms and conditions of any separate written contract of any kind (a “Contract”), signed by Seller, or if none, subject to and expressly conditioned upon Buyer’s assent to the terms and conditions of sale set forth on this Agreement, which in such case constitutes the entire understanding between the parties relating thereto, and none of Buyer’s terms and conditions in acknowledging this invoice or in issuing any purchase orders, releases, shipping instructions or otherwise shall apply. BY REQUESTING A QUOTE FROM SELLER OR PRESENTING AN ORDER TO SELLER AND ABSENT A SEPARATE SIGNED AGREEMENT, BUYER CONFIRMS THAT THIS AGREEMENT SHALL GOVERN ALL PURCHASES OF GOODS BY BUYER FROM SELLER, AND NO CHANGES, ADDITIONS OR DIFFERENT TERMS (CONTAINED IN A PURCHASE ORDER RECEIVED BY SELLER OR OTHERWISE), OR ANY WAIVER OF ANY OF THE PROVISIONS HEREOF, WILL CHANGE THIS AGREEMENT UNLESS SPECIFICALLY ACKNOWLEDGED IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. NO SELLER EMPLOYEE OR AGENT HAS THE AUTHORITY TO MODIFY THIS CONTRACT VERBALLY. Buyer may not assign this Agreement in whole or in part without Seller’s written consent. Seller may assign this Agreement to an affiliate or to a transferee of substantially all of Seller’s assets related to this Agreement without Buyer’s written consent.
- Delivery.The Products are shipped at Seller’s place of business. Lead times for Products will be as outlined on Seller’s Shipping Policy (the “Delivery Date”). Title and risk of loss for all Products ordered under this Agreement will pass to Buyer at the time of delivery of the Products to a common carrier for shipment at the Seller’s place of business, or upon delivery directly to Buyer, as applicable. In the event Buyer requests Seller organize and/or pay for delivery of the product through a common carrier on behalf of Buyer, such actions shall not change nor affect the above two sentences. In the event the Product is not picked up by Buyer within 5 days from the Delivery Date, Seller shall have the right, but not the obligation, to cancel this Agreement. Seller may deliver Products before the Delivery Date.
- Delay.If the delivery of Products is likely to fall behind the Delivery Date, Seller will promptly notify Buyer and provide an alternative Delivery Date. If the alternative Delivery Date is more than 45 days after the initial Delivery Date, Buyer, at its option may cancel this Agreement with respect to the delayed Products, however, no delay in delivery of Products relieves Buyer of its obligations under this Agreement, including, without limitation, accepting delivery of any remaining installments of Products. In no event shall Seller be liable to Buyer for any damages which Buyer incurs as a result of a shipment being late. If Seller fails to deliver any Products to Buyer by the applicable initial or alternative Delivery Date, then Buyer may elect, as Buyer’s sole remedy for such failure to deliver Products, to (i) waive such failure to deliver and receive such Products as Seller may make them available for delivery, or (ii)cancel this Agreement, or portion thereof, and receive a credit for any amounts prepaid to Seller that correspond directly to such delayed Products. Buyer stipulates and agrees that the remedies set forth in this Section will be Buyer’s sole remedies in the event that any Products are not delivered in accordance with this Agreement, and hereby waives all other rights and remedies that may be available to Buyer, at law, equity, under this Agreement, or otherwise, as results of such failure to deliver Products.
- Labeling. Unless otherwise specified in this Agreement, pre-printed packages/labels will be produced and shipped to Seller at Buyer’s expense. All labels, including but not limited to design, design art, content, wording, and trademarks, are the sole responsibility of Buyer, including without limitation compliance with all applicable laws. Buyer hereby grants Seller a non-exclusive, royalty free license to use the labels provided by Buyer. Seller may, if specified, print labels on behalf of Buyer for an additional fee. Seller has the right of final approval of all packaging and designs.
- Price and Payment. Prices are those listed online or provided to Buyer, from the Seller, in the form of a custom quote (Quote). Unless otherwise agreed upon by both Buyer and Seller, and in writing, all shipping costs, shipping insurance, taxes, VAT, import/export fees and additional fees shall be the sole responsibility of the Buyer. Notwithstanding the foregoing, prices and terms of payment are subject to change without notice and will be those in effect on the date of delivery. The Products shall be made available to Buyer for delivery after Seller’s receipt of the full purchase price. Seller may recover for each delivery as a separate transaction, without reference to any other delivery. In the event that any payment due hereunder is not made when due, the payment shall accrue interest from the date due until paid in full, at the lesser of 12% per annum, or the maximum amount allowable by Applicable Law. The payment of such interest shall not limit Seller from exercising any other rights it may have as a consequence of the lateness of any payment. Buyer shall also reimburse Seller for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. All Products are payable in U.S. currency at the address designated in writing by Seller.
- Payment Obligation. If Seller determines, in its sole discretion, that Buyer’s financial condition or creditworthiness is inadequate or unsatisfactory then, in addition to Seller’s other rights, Seller may, without liability or penalty, take any of the following actions: (a) accelerate all amounts owed by Buyer to Seller under this Agreement;(b) delay any further shipment of Products to Buyer; or (c) any combination of the above. No actions taken by Seller under this Section (nor any failure of Seller to act under this Section) constitute a waiver by Seller of any of its rights to enforce Buyer’s obligations including, but not limited to, the obligation of Buyer to make payments as required under this Agreement.
- Claims. Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products within 5 days and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Products” means only the following: (a) the Products shipped are different than identified in related Sales Order or the Products do not conform to the specifications. Claims may submitted to firstname.lastname@example.org. For clarity, variations of ±15% of the concentration of CBD in any Product will not make the Product a Nonconforming Product. If Buyer timely notifies Seller of any Nonconforming Products, Seller will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products. The remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under this Section all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products to Seller.
- No Warranties. Seller makes no representations or warranties, express or implied, either in fact or by operation of law, by statute or otherwise, including, but not limited to, any warranty of merchantability, fitness for a particular purpose of any Product, non-infringement, quality, performance or otherwise. Without limiting the foregoing, Seller hereby expressly disclaims all representations and warranties that the Products comply with Applicable Laws, including, but not limited to, laws relating to the sale, distribution, marketing, labeling, advertising, or promotion of the Products, including, but not limited to, the Federal Food, Drug, and Cosmetic Act. Buyer acknowledges that the characteristics of the Products are not fully known and/or understood, and that the use, handling or storage of the Products may involve risks or dangers that are not presently known or fully appreciated. Any warranties made by Seller shall be enforceable by Buyer, but not by any Customer of Buyer or any other third party whatsoever.
Buyer Obligations; Compliance with Laws. Buyer shall at all times handle, warehouse, store, market, sell, distribute, dispose of and otherwise use the Products in accordance with customary industry practice and in compliance with all Applicable Laws, Product labeling and specifications. Buyer will maintain, all applicable licenses, registrations and permits necessary to purchase and assume delivery of the Products, as contemplated under this Agreement and to use, distribute, market, and sell the Products and Buyer will not sell, distribute, market, label, advertise, or promote any Product in violation of Applicable Laws or any other federal, state or international laws. “Applicable Laws” means all laws, rules, regulations, ordinances and other requirements of any governmental authority or instrumentality within the United States that are applicable to either Party or this Agreement. Notwithstanding the foregoing, in respect to the Food Drug and Cosmetics Act, the Parties agree to apply any Applicable Laws as if the Products were considered a dietary supplement until such time as laws, rules and regulations are enacted that specifically apply to hemp derivatives.
Regulatory Matters. All regulatory matters regarding the Products shall be the sole responsibility of, and shall remain under the control of, Buyer. Seller takes no responsibility and makes no representation or warranty, and Buyer shall assume all responsibility for ensuring, that the Products comply with Applicable Laws, including, but not limited to, laws relating to the sale, distribution, marketing, labeling, advertising, or promotion of the Products, including, but not limited to, the Federal Food, Drug, and Cosmetic Act. Notwithstanding the foregoing, Buyer shall promptly provide Seller with copies of all communications received from any regulatory agency or governmental authority directly or indirectly concerning the Products. Buyer shall submit copies to Seller of all communications and filings made by Buyer to any regulatory agency or governmental authority within 5 business days after submission of such communications and filings. Buyer acknowledges and understands that the current regulatory state of affairs with respect to the Product and related Applicable Laws at the state, federal and international level is novel, unprecedented, disorganized and subject to change.
Recalls. Buyer shall have the sole authority and responsibility to respond to any regulatory agencies, to respond to Product complaints and medical complaints and to handle all recalls and market withdrawals of the Products in accordance with Applicable Law, at Buyer’s sole cost and expense. Each Party shall promptly notify the other Party in writing of any decision, order, request or directive of a court or other governmental authority to recall or withdraw a Product. Buyer shall be solely responsible for determining whether to issue a recall or withdrawal (but shall comply with all Applicable Laws in making such determination) and for the cost and expense of any such recall or withdrawal of the Products, provided however, that Buyer shall give good faith consideration to all comments made by Seller relating to the manufacturing of the Products and shall notify Seller, in writing, if it declines to address any such comments, stating the reason therefor.
Limitation of Liability and Indemnification.Buyer will indemnify, defend and hold harmless Seller, its Affiliates, and their respective directors, officers, employees, representatives and agents (collectively, the “Seller Indemnitees”) from and against all losses, damages, liabilities, settlements, penalties, fines, costs and expenses (including attorneys’ fees and expenses and experts’ fees), (collectively, “Losses”) to the extent such Losses arise out of or result from any claim, lawsuit or other action or threat by a third party arising out of Buyer’s (a) breach of this Agreement, (b) negligence or willful misconduct, (c) violation of Applicable Law, or (d) use, distribution, marketing, or sale of the Products, including, without limitation, product liability except, in each case ((a) – (d)), to the extent that such Losses arise from the Seller Indemnitees’ breach of this Agreement, negligence, willful misconduct or violation of Applicable Law. IN THE EVENT OF ANY BREACH OF THIS AGREEMENT, BUYER’S REMEDY IS LIMITED SOLELY TO THE REPLACEMENT OF THE PRODUCT, OR, A REFUND OF THE PURCHASE PRICE ATTRIBUTABLE TO THE PRODUCT AS PROVIDED FOR IN THIS AGREEMENT. IN NO EVENT WHATSOEVER SHALL SELLER BE LIABLE TO BUYER OR TO ANY THIRD PERSON WHATSOEVER WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY EQUITY, COMMON LAW, TORT, AGREEMENT, ESTOPPEL, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHER THEORY, FOR ANY (I) INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES, OR (II) DAMAGES RELATING TO DIMINUTION OR DEPRECIATION IN VALUE, DELAY OR IDLE TIME FOR LABOR AND EQUIPMENT, OR LOSS OF SALES, AGREEMENTS, BUSINESS, PROFITS, REVENUES, PRODUCTION, SAVINGS, DATA, OPPORTUNITY, USE, REPUTATION, OR GOODWILL, EVEN IF THE REMEDIES PROVIDED FOR IN THE AGREEMENT FAIL FOR THEIR ESSENTIAL PURPOSE AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES OR THE FOREGOING DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
Force Majeure.Seller shall not be liable to Buyer for any failure to perform as required by this Agreement if the failure to perform is due to circumstances reasonably beyond a Seller’s control including acts of God, civil disorders or commotions, acts of aggression, fire, explosions, floods, accident, drought, war, riots, sabotage, embargo, utility failures, material shortages (including raw materials used in the production of Products), labor disputes and/or disturbances, strikes, governmental regulations (including changes in Applicable Law), acts or omissions of any governmental authority, a national health emergency, new or significant worsening of any health pandemic, appropriations of property, failure of supplies, delays of common carriers or shortage of production capacity (a “Force Majeure Event”).
Governing Law.This Agreement is governed exclusively by the laws of the State of California without regard to any principles regarding conflicts of law. Any action commenced regarding this Agreement or Products must be brought in the state or federal courts of Orange County, California.
- Severability. Should any provision of the Agreement be or become illegal or unenforceable, such provision will be considered separate and severable and the remaining provisions will remain in force and be binding upon Parties as though such provision had never been included. The failure of Seller to enforce any provision of this Agreement shall not be construed to be a waiver of such provision.