RETAIL PURCHASE ORDER TERMS & CONDITIONS
These Purchase Order Terms and Conditions (“Terms”), together with the terms of any applicable order form (each, a “Purchase Order”) executed by Earth Sphere, LLC, d/b/a Landseye (“Landseye”) and the customer named therein (the “Retailer”), govern the purchase and resale by Retailer of Landseye products identified in the Purchase Order (the “Products”) from Landseye. The Terms and the applicable Purchase Order (collectively, “Agreement”) supersede all prior agreements, proposals and discussions among the parties with respect to the purchase and sale of such Products. To the extent there is a conflict between these Terms and any Purchase Order or other document, these Terms shall prevail.
A. RETAILER OBLIGATIONS:
Retailer must provide a valid resellers permit to submit a Purchase Order and shall remain fully responsible for charging and remitting all sales and excise taxes on Retailer’s sale of the Products as required by applicable laws.
Retailer will make Products available only to qualified patients and/or adults ages twenty-one years and older and only at the Stores identified on a particular Purchase Order.
Retailer shall at all times remain in material compliance with all applicable laws and regulations relating to this Agreement and the Products, including obtaining and maintaining all requisite licenses and permits to resell the Products to consumers.
Retailer agrees to obtain and sell all Products prior to the expiration of their “durable life" (meaning the anticipated amount of time that an unopened Product, when stored under appropriate conditions, will retain its freshness, taste, value, or any other qualities identified by Landseye in marketing materials). Durable life dates for all medical cannabis Products shall be the earlier of the “best before” date printed on Product packaging, if applicable, or 120 days from the date of purchase from Landseye. All Product that is not sold before the durable life date shall be returned to Landseye or discarded pursuant to Landseye’s instructions, and no refunds or credits shall be issued to Retailer.
Retailer agrees to adhere to all reasonable storage instructions provided by Landseye, but in any event, to employ storage consistent with industry best practices and/or applicable law or regulation.
Retailer agrees to give prompt notice to Landseye of any consumer or safety complaints that may arise from or are related to this Agreement and/or the Products, and shall, in every reasonable manner, deal appropriately with such complaints after prompt and meaningful consultation with Landseye.
All display materials, fixtures, display cases, retail supplies or other related display products (the “Display Materials”) provided by Landseye to Retailer shall be the sole property of Landseye and shall be returned to Landseye upon request or upon the termination of this Agreement. Retailer agrees to only display the applicable Product associated with any Display Materials.
Retailer may advertise, market and promote the Products, provided such advertising, marketing and promotion must: (a) must at all times be truthful, accurate and not misleading; (b) conform to the brand standards and guidelines specified by Landseye from time to time; (c) comply with all applicable laws, rules, regulations and guidelines; (d) not diminish and tarnish the image and reputation of the Products, Landseye or the Marks (as defined below); or (e) use the name of the Products in any of Retailer’s publicity or advertising for its business in any way that would imply or mislead consumers about the ownership of the Products or Marks. In addition, Retailer shall only use the Marks in the form provided by Landseye in any advertising, marketing and promotion, and shall not manipulate, change or vary the Marks without the prior written consent of Landseye.
Landseye reserves the right to require that Retailer should immediately change or discontinue use of any Marks for any reason, in Landseye’s sole discretion.
During the term of this Agreement and for a period of two (2) years thereafter, Retailer shall, at its own expense, maintain and carry insurance with commercially reasonable liability limits, and in any event no less than the types and amounts required by law (e.g., WAC §314-55-082, as may be amended). Upon Landseye's request, Retailer shall provide Landseye with a certificate of insurance from Retailer's insurer evidencing the insurance coverage. Except where prohibited by law, Retailer shall require its insurer to waive all rights of subrogation against Landseye's insurers and Landseye.
B. INTELLECTUAL PROPERTY:
All trade names, trademarks, service marks, logos, designs, identifications, decals, artwork and other symbols and devices relating to Landseye or its products or services (collectively, “Marks”) shall remain the sole property of Landseye or its licensor(s).
Landseye hereby grants to Retailer a non-exclusive, limited, non-sublicenseable and non-transferable right to use the Marks solely for advertising, promoting, marketing, distributing, and selling the Products in accordance with Section A.8 above.
Except as expressly provided herein, Retailer is not licensed or otherwise authorized to use the Marks in any way, and no use of the Marks may be undertaken by Retailer without prior written consent by Landseye. Retailer agrees that it will not sell any products that infringe the Marks, and further agrees that it will not sell or display any product that attempts to “knock off,” imitate, or is otherwise similar enough to the Products or the Marks that there is likelihood of confusion in the consumer’s mind.
C. ORDERS, RETURNS, PRICES, PAYMENT:
After submission, all Purchase Orders are subject to acceptance and confirmation of inventory by Landseye, who may accept and fill orders in its sole discretion. Retailer may cancel a Purchase Order at any time prior to delivery.
Retailer must immediately inspect all Products received and give written notice of any defect or shortage to Landseye within two (2) days. Failure to inform Landseye will be considered acceptance of shipment by Retailer. Any alleged defective Products are subject to Landseye’s inspection and confirmation of defect in its discretion.
Other Product returns will be evaluated and approved by Landseye, in its discretion and on a case by case basis. Any approved returns will be given a credit to be used against future orders.
Title and risk of loss shall transfer to Retailer upon delivery of the Products.
Landseye shall have no obligation to replace or refund any non-defective items. Courtesy returns for non-defective items, if any, are subject to a restocking fee.
Prior to Landseye’s acceptance of a Purchase Order, Landseye reserves the exclusive right to change the prices or availability of the Products at any time, in its sole discretion.
All invoices are due according to approved payment terms in an applicable Purchase Order, which unless otherwise agreed, shall paid upon delivery of the Products.
D. INDEMNIFICATION; DISCLAIMER; LIMITATION OF LIABILITY:
Retailer agrees to indemnify, defend and hold harmless Landseye, its parent and related companies, and all of their respective directors, officers, employees, agents and representatives, with respect to any claim, loss, expense (including reasonable attorneys’ fees) or liability, arising out of or resulting from breach by Retailer of any representation, warranty or obligation under this Agreement or the negligence or willful misconduct of Retailer, its employees or agents, heirs, successors, and assigns; provided, however, such indemnification shall not include any claims arising from injury or damage to the extent caused by the willful misconduct or gross negligence of Landseye.
EXCEPT AS OTHERWISE SPECIFICALLY WARRANTED HEREIN, LANDSEYE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
RETAILER, ON BEHALF OF ITSELF AND ITS HEIRS, SUCCESSORS, AND ASSIGNS, HEREBY AGREES TO HOLD HARMLESS LANDSEYE, ITS OFFICERS, AGENTS AND REPRESENTATIVES, FROM ANY AND ALL CLAIMS, INJURIES, DAMAGES, LOSSES OR SUITS, ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR RETAILER’S SALE OF THE PRODUCTS.
IN NO EVENT SHALL LANDSEYE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY RETAILER OR COULD HAVE BEEN REASONABLY FORESEEN BY RETAILER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL LANDSEYE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO LANDSEYE FOR THE PRODUCTS SOLD HEREUNDER.
E. TERM AND TERMINATION:
This Agreement shall be effective as of the date of the first Purchase Order and shall continue for a period of (1) year from the most recent Purchase Order, unless earlier terminated as set forth below,.
Either party may terminate the Agreement without cause at any time upon thirty (30) days written notice to the other party. Landseye may terminate this Agreement immediately upon notice to Retailer (a) if there are no Purchase Orders outstanding; (b) in the event of a breach by Retailer of any representation, warranty or obligation under this Agreement or the negligence or willful misconduct of Retailer, its employees or agents; or (c) if Retailer becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due (each, a termination for “Cause”).
Upon expiration or termination of this Agreement for any reason, Retailer shall immediately cease any use or display of the Marks. Upon termination of this Agreement by Landseye without Cause, Retailer shall be entitled to thirty (30) days’ sell-off of any remaining Products currently in its possession or under an open Purchase Order. Upon termination of this Agreement by Retailer with or without cause, or by Landseye with Cause, Retailer shall immediately cease any sale or display of the Products, and all remaining payments owing hereunder shall become immediately due and payable.
Sections B (Intellectual Property), D (Indemnification; Disclaimer; Limitation of Liability), E (Term and Termination) and F (Miscellaneous) shall survive expiration or termination of this Agreement.
Landseye may amend the Terms at any time by reasonable notice, including without limitation by posting revised terms on its website at www.landseye.com/wartltc, which amended terms and conditions shall be binding upon Retailer.
Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employer/employee relationship. Retailer expressly acknowledges that it is an independent contractor of Landseye. Neither party shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.
Retailer may not assign, sublicense, or otherwise transfer this Agreement or its obligations or benefits or any part thereof hereunder without the prior written consent of Landseye, and any such assignment, sublicense or transfer in contravention of this provision shall be null and void. This Agreement shall inure to the benefit and be binding upon the parties hereto, and their respective successors and permitted assigns.
LANDSEYE DOES NOT OFFER MEDICAL ADVICE. ANY INFORMATION ACCESSED THROUGH LANDSEYE WEBSITE, SOCIAL MEDIA PAGES, OR INFORMATIONAL MATERIALS IS FOR INFORMATIONAL PURPOSES ONLY, IS NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND IS NOT INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, OR ADVERSE EFFECTS. RETAILER SHOULD ALWAYS ADVISE ITS CUSTOMERS TO CONSULT A QUALIFIED HEALTH CARE PROVIDER IF THEY HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION.
This Agreement shall be construed and interpreted and the rights of the parties determined in accordance with the local laws of the State of Washington, without regard to its conflict of law rules. Unless otherwise agreed upon in writing by the parties, any legal action or proceeding between Landseye and Retailer for any purpose concerning this Agreement or the parties’ obligations hereunder shall be subject to the exclusive jurisdiction of and venue in any competent court within the city of Seattle, King County, Washington and the parties hereby consent to the personal and exclusive jurisdiction and venue of such courts. To the fullest extent permitted by law, each party hereby waives any right to a trial by jury in connection with any action hereunder.
In the event that any provision of this Agreement or any obligation or grant of rights by either party is found to be invalid or unenforceable pursuant to a judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.
Any waiver or failure to enforce any provision of this Agreement on one occasion shall not constitute a waiver of any other provision or of such provision on any other occasion.
The prevailing party in a suit, action or proceeding between the parties relating to this Agreement will be entitled to recover its reasonable and documented attorneys’ fees and court costs, in addition to any other relief that such party may be awarded.
All notices pursuant to the Agreement shall be in writing, addressed as set forth below (or to such other address that may be designated by the receiving party in accordance with this Section):
Earth Sphere, LLC
8040 NE Day Rd W, Building 3 Unit 2
Bainbridge Island, WA 98110–6206
To Retailer: To the contact listed in an applicable Purchase Order.
- RETAILER ACKNOWLEDGES THAT BY SIGNING THE PURCHASE ORDER AND/OR ACCEPTING PRODUCTS FROM LANDSEYE, RETAILER AGREES TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PURCHASE ORDER. ADDITIONALLY, BY RETAILER’S SIGNATURE ON ANY AND ALL PURCHASE ORDERS RETAILER CERTIFYS THAT IT HAS READ THESE TERMS AND CONDITIONS, THAT RETAILER KNOWS AND UNDERSTANDS THE MEANING AND INTENT OF THIS DOCUMENT AND THAT RETAILER IS ENTERING INTO THIS AGREEMENT KNOWINGLY AND VOLUNTARILY.
©2017 Earth Sphere, LLC