Terms and Conditions for the Sale of Goods
The following terms and conditions (“T&Cs”) are applicable to all sales of products (the “Products”) produced or sold by Balanced Health Botanicals, LLC, a Colorado limited liability company (or an entity set forth in the Order controlled or owned by Balanced Health Botanicals, LLC, including, without limitation, CBDistillery, LLC; Bota Holdings LLC and Balanced Health Botanicals International Limited) (“Seller”) to you (“Buyer”) placed through whatever means.
1. Buyer’s Acceptance of Terms. By placing an order with Seller through whatever means, including but not limited to orders placed through distributors, wholesalers and/or third parties (an “Order”), Buyer accepts these T&Cs and these T&Cs prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or other documents containing any such terms. Fulfillment of Buyer’s Order by Seller does not constitute acceptance of any of Buyer’s terms and conditions in the Order or elsewhere and does not serve to modify or amend these T&Cs. If there is any inconsistency between these T&Cs and terms and conditions contained in any other document submitted by Buyer or exchanged by Seller (including purchase orders, acknowledgements, requests for proposal, invoices, etc.), these T&Cs shall control even if Buyer’s documents expressly limit acceptance to use of Buyer’s terms and conditions. These T&Cs and any basic Order terms (i.e., list of the Products, quantity, UPC or item number, requested delivery date; price, billing address and delivery location) constitute the entire agreement between the parties as to any particular purchase by Buyer of Products.
2. Orders. Buyer will provide written Orders to Seller from time to time. An Order is not considered accepted by Seller until the Products are shipped or until Seller sends an acknowledgement.
3. Price; Payment. Prices for the Products are based on the price list that Seller most recently provided to Buyer, which Seller may update at any time. Payment terms are as indicated on the invoice. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, and Buyer shall reimburse Seller for all expenses and costs incurred or expended by Seller in enforcing any of its rights hereunder and/or collecting any past due sums, whether or not suit is commenced. Buyer may not reduce any payment by any alleged discounts or other deductions without Seller’s prior written consent. Buyer is responsible for paying all applicable local, state, federal, use, sales and excise taxes in relation to the purchase of the Products as well as any state bottle deposits direct to the governing bodies who have jurisdiction over such deposits. In the event Seller is required to pay any such taxes or other charges, Buyer shall reimburse Seller therefor on demand.
4. Delivery; Title. All Products are delivered FOB (per Incoterms 2010) Seller’s warehouses in the United States, unless otherwise agreed. All delivery dates are approximate. Risk of loss and title for Products will pass to Buyer upon delivery to Buyer or its designee at the applicable FOB Seller Warehouse. Where permitted by law, Buyer hereby grants to Seller a security interest in Products sold until full payment is received. Buyer authorizes Seller to file a UCC financing statement to perfect this security interest at any time.
5. Inspection. Buyer shall carefully inspect all Products and shipping documents promptly upon delivery of Products. No claim for non- conformity, defect, shortage or damage will be valid or enforceable against Seller unless Buyer gives Seller written notice specifying in detail the issue within 24 hours from the date that Buyer receives the Products. Buyer shall supply such reasonable documentation as to any loss as Seller may request. Buyer shall be deemed to conclusively accept all Products not rejected in accordance with the preceding sentences. If any Products are non-conforming, Buyer has provided proper notice, and if the non-conformity was not caused by Buyer or due to misuse or handling after Seller delivered the Product to Buyer, Seller will, at Seller’s option, (i) replace the non- conforming Products at no additional charge to Buyer or (ii) reimburse Buyer for amounts Buyer paid for such non-conforming Products, and such refund or return shall be Seller’s sole obligation and Buyer’s exclusive remedy for any nonconformity of the Products. Buyer shall comply with Seller’s instructions for maintenance, services and use of the Products and shall keep proper records thereof.
6. Changes. Seller may at any time make any changes in the ingredients, formula, and manufacturing process of the Products as Seller deems appropriate without notice to Buyer. If Seller changes the ingredients, formula, manufacturing process or discontinues the manufacture or sale of any Products, Seller shall have no obligation to make any such changes to ingredients, formula, manufacturing process in any Products previously ordered by or shipped to Buyer or to fill any Order for any discontinued Products submitted to Seller after the date of such discontinuance. Seller may furnish stable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
7. Warranties; Disclaimer of Warranties. Seller represents and warrants that prior to the “best by” date on the Product packaging, the Products (i) will conform to the specifications, and (ii) be merchantable and fit for their intended purpose. THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES AND COMPRISE SELLER’S SOLE AND ENTIRE WARRANTY OBLIGATION TO BUYER IN CONNECTION WITH THE PRODUCTS. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
8. Limit of Liability. SELLER WILL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, CONTINGENT, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE OR USAGE, COST OF SUBSTITUTE PRODUCTS, ADDIT1ONAL COSTS INCURRED BY BUYER, OR CLAIMS OF THIRD PARTIES. SELLER’S TOTAL LIABILITY TO BUYER FOR DAMAGE OR LOSS ARISING OUT OF, OR IN ANY WAY RELATED TO, THE SALE OF PRODUCTS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND/OR GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY OR ANY OTHER CAUSE SHALL IN NO EVENT EXCEED THE PRICE OF PRODUCTS TO WHICH SUCH CLAIM RELATES.
9. Recall. If any government agency requires the recall of any Products or packaging or Seller reasonably determines that any Products or packaging should be recalled or should be withdrawn from distribution and sale, then Seller and Buyer shall coordinate the immediate cessation of sale and distribution and the recall or withdrawal, as determined by Seller to be necessary, of all such Products or packaging. If determined by Seller to be necessary or advisable, Buyer and Seller shall cooperate to recall or reacquire the applicable Products or packaging from any purchaser thereof. In no event shall Buyer be entitled to recover lost profits or other consequential damages as a result of any recall of the Products. If the problem at issue was caused by Buyer, then Buyer shall pay the costs and expenses associated with any such recall, and Buyer shall indemnify Seller for its reasonable costs and expenses associated with such recall. Buyer shall immediately notify Seller with full particulars and contact details of any customer and/or consumer complaint, claim or allegation of a defect in the Products which may affect their safety or result in liability (a “Product Complaint”). Seller shall be responsible for dealing with and responding to all Product Complaints and (where applicable) conduct all proceedings relating to or concerned with Product Complaints, but Buyer shall offer such assistance, information and cooperation as Seller may reasonably request. Buyer shall not settle or compromise a Product Complaint.
10. Reseller Provisions. To the extent Buyer is an approved reseller or distributor of Products without the prior written consent of Seller, Buyer will (a) follow Seller’s Reseller Policy as it may be amended by Seller from time to time, (b) not sell Products to any subdistributors or other resellers, (c) not sell outside the United States, and (d) not sell on any internet sites unless specifically approved in writing by Seller. Buyer’s right as a reseller is non-exclusive so Seller may appoint other resellers at any time. Buyer will comply will all state, local and federal laws at all times.
11. Intellectual Property. All trademarks, trade names, trade dress, endorsements, icons, designs and logos, as well as any other text or images that appear on packaging or collateral materials, and used in connection with the marketing, promotion and/or sale of Products (collectively, the “Trademarks”) are and shall remain the sole and exclusive property of Seller. If Buyer operates as a reseller of the Products, Seller grants to Buyer the non-exclusive, non-transferable and non-sublicensable right to use the Trademarks solely in connection with its promotion, marketing, and sale of the Products pursuant to this Agreement, and only in a manner (a) consistent with the maintenance of the Trademarks and (b) that preserves and protects such Trademarks under applicable state and federal law. Buyer shall promote, market, and sell the Products using only the Trademarks. When using Trademarks, Buyer shall comply with all of Seller’s reasonable requests regarding the appearance of the Trademarks on promotional or marketing materials, including but not limited to with respect to use of the ™ and ® designations.
12. Force Majeure. Except for payment obligations herein, neither party will be liable for performance delays or for non-performance, and any loss or damage that may result from such delays or non-performance, due to causes beyond its reasonable control, including, without limitation, any act of God, embargo or other governmental act, pandemic, epidemic, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, or delay in transportation.
13. Indemnification. Buyer agrees to defend, indemnify, and hold harmless Seller and its affiliates, or their respective officers, directors, employees, shareholders, agents, successors, or assigns from all liabilities, claims, and expenses, including attorneys’ fees, that arise from (i) Buyer’s breach of these T&Cs; (ii) the negligent or more culpable act or omission of Buyer or its employees or agents; and (iii) any failure by Buyer to comply with any applicable laws.
14. Governing Law; Venue; Attorneys’ Fees. These T&Cs shall be governed by, and any dispute arising hereunder shall be determined in accordance with, the laws of State of Colorado, without giving effect to conflict of laws principles. Buyer and Seller irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts sitting in or near Arapahoe Country, Colorado. In addition to other remedies, the prevailing party shall be entitled to recover such amount as the court may adjudge reasonable as attorneys’ fees and expenses in the enforcement action or any appeal.
15. Insurance. Buyer shall obtain and keep in force at its own cost and expense, comprehensive general liability insurance, including product liability, with a minimum combined single limit in the amount of not less than $2,000,000 in the aggregate for bodily harm or personal injury to, illness of, or death of persons and damage to property occurring as a result of the Products sold under these T&Cs. Such insurance shall name Seller as an additional insured.
16. Standards of Care. Buyer will follow all reasonable handling guidelines for products that are stored in glass and plastic containers including, but not limited to, (i) handling all Products with care and (ii) ensuring the Products stay upright and in cool and dry conditions away from direct sunlight.
17. Miscellaneous. Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations. There is no relationship of partnership, joint venture, employment, franchise or agency between the parties and Buyer will not have the power to bind Seller or incur obligations on Seller’s behalf without Seller’s prior written consent. If any provision of these T&Cs shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in these T&Cs. None of the provisions of these T&Cs shall be (a) deemed to have been waived unless such waiver shall be set forth in writing signed by Seller, or (b) subject to modification or waiver by course of performance, course of dealing, or usage of trade.