General Terms and Conditions
Applicability: The terms and conditions of this Agreement shall govern the purchase of goods (“Goods”) and/or Services (“Services”) by a state specific subsidiary of C3 Industries, Inc. (“QPS”) from the vendor (“Vendor”); in each case as described in Schedule A attached hereto, or in the absence of such description, as outlined in any related purchase order and/or statement of work (each a “Purchase Order”). This Agreement and any related Purchase Order comprise the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement prevail over any of Vendor’s general terms and conditions of sale regardless whether or when Vendor has submitted its sales confirmation or such terms. This Agreement expressly limits Vendor’s acceptance to the terms of this Agreement. Execution of this Agreement and/or fulfillment of a Purchase Order constitutes acceptance of the terms and conditions of this Agreement. In the event of a conflict between this Agreement and any Purchase Order, this Agreement shall control. For purposes of clarity, as used herein, “QPS” shall mean the subsidiary of C3 Industries, Inc. who actually purchases and receives Goods from the Vendor.
Quantity of Goods: Vendor shall deliver the Goods in the quantities and on the date(s) specified in a Purchase Order (or if no Purchase Order as specified in this Agreement), or as otherwise agreed in writing by the parties (the “Delivery Date”).
Delivery: Vendor shall deliver all Goods to the address specified in a Purchase Order or, if no Purchase Order exists, the address specified by QPS (the “Delivery Point”) during QPS’s normal business hours or as otherwise instructed by QPS. Vendor shall pack all goods for shipment according to QPS’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. QPS has the right to return any Goods delivered to location other than the Delivery Point at Vendor’s sole cost and expense.
Product Recall: If any governmental entity issues a recall or takes similar action in connection with the Goods (including temporarily requiring quarantine of certain products, an administrative hold or such similar actions), or if Vendor determines that an event, incident or circumstance has occurred which may require a recall or market withdrawal (a “Product Recall”), Vendor shall use best efforts to advise QPS of the circumstances by telephone or electronic mail within twenty- four (24) hours of Vendor’s awareness of a Product Recall, and within two (2) days, advise QPS of the circumstances by email. QPS shall have the right to control the arrangement of any Product Recall, and Vendor shall use best efforts to cooperate in the event of a Product Recall with respect to the reshipment, storage or disposal of the affected Goods, the preparation and maintenance of relevant records and reports, and notification to any recipients or end users. Vendor shall pay all actual expenses incurred by QPS in relation to a threatened or actual Product Recall or administrative or other product hold or quarantine, including the costs of destroying the affected Goods (and prompt reimbursement for the cost of the Goods, if already paid by QPS), and any incidental, special, consequential or other damages threatened against or suffered by QPS or any of its affiliated companies. QPS, may promptly refer to Vendor all customer or consumer complaints involving the health, safety, quality, composition or packaging of affected Goods, and notify Vendor of any governmental, customer or consumer inquiries regarding affected Goods about which QPS has direct knowledge.
Goods: For a period of one (1) year after delivery of goods to QPS, Vendor represents and warrants to QPS that all Goods will (i) be free from any latent and/or patent defects in workmanship, material, quality, manufacture and design, (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by QPS (if applicable), and in all cases with QPS’s intake checklist requirements which shall be provided upon request, (iii) be fit for their intended purpose and operate as intended, (iv) be merchantable and safe for use by consumers or other end users, (v) strictly comply with all state and/or federal requirements including, without limitation, regulations on weights, compliance testing, packaging and labeling requirements and any other cannabis laws governing the handling, production, manufacture, cultivation, processing, sale or any other aspect of production or delivery of the Goods; (vi) be free and clear of all liens, security interests or other encumbrances; and (vii) not infringe or misappropriate any third party’s patent or other intellectual property rights. The warranties under this clause (b) shall survive any delivery, inspection, acceptance or payment of or for the Goods by QPS and the termination of this Agreement.
Inspection: QPS, in its sole and unfettered discretion, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods within thirty (30) days of receipt if it determines the Goods are nonconforming or defective in any respect (including specifically, and without limitation, due to quality of the goods, non-compliance with applicable law, failure of R&D or compliance testing, or any other reasons referred to herein or in QPS’s intake checklists, as amended from time to time). Notwithstanding anything to the contrary in this Agreement or any related Purchase Order, if QPS rejects any portion of the Goods, QPS has the right, effective upon written notice to Vendor, to: (a) rescind this Agreement in its entirety, (b) accept the Goods at a reasonably reduced price, or (c) reject the Goods and require replacement of the rejected Goods, or (d) return the Goods and receive a prompt refund for any money already paid to Vendor, if applicable (which refund shall be payable within seven (7) days of QPS’s demand, with time being of the essence). If QPS requires replacement of the Goods, Vendor shall, at its expense, within ten (10) business days replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Vendor fails to timely deliver replacement Goods, QPS shall be entitled to recover all costs, expenses, and fees incurred with the same, and may pursue any remedies available at law or in equity. Any inspection or other action by QPS under this Section shall not reduce or otherwise affect Vendor’s obligations under the Agreement, and QPS shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
Price: The price of the Goods is the price stated in the related Purchase Order (the “Price”). If no price is included in a Purchase Order, the Price shall be the price set out in Vendor’s published price list in force as of the Effective Date unless otherwise agreed by both parties in writing. Unless otherwise specified in a Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of QPS.
Payment Terms: Vendor shall issue an invoice to QPS on or any time after the completion of delivery and only in accordance with this Agreement. QPS shall pay all properly invoiced amounts due to Vendor within thirty (30) days after QPS’s receipt of such invoice, except for any amounts disputed by QPS in good faith, and in all cases subject to the terms of this Agreement. Without prejudice to any other right or remedy it may have, QPS reserves the right to set off at any time any amount owing to it by Vendor against any amount payable by QPS to Vendor under this Agreement. I The parties shall seek to resolve all such disputes expeditiously and in good faith. Vendor shall continue performing its obligations under this Agreement notwithstanding any such dispute.
Indemnity: Vendor shall defend, indemnify and hold harmless QPS and QPS’s parent company or companies, subsidiaries, affiliates, successors or assigns and respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, arbitration, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (a) the Goods purchased from Vendor, (b) Vendor’s negligence, willful misconduct or breach of any of the warranties, failure to comply with any applicable law or regulation, and/or breach or violation of any other term or condition of this Agreement or any related Purchase Order, (c) any third party claim that QPS’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Vendor shall not enter into any settlement without QPS’s prior written consent and/or (d) any third-party claim regarding a Product Recall of Goods.
Insurance: During the term of this Agreement and for a period of twelve (12) months thereafter, Vendor shall, at its own expense, maintain and carry insurance in full force and effect, in each case with financially sound and reputable insurers, including, without limitation: (a) a commercial general liability policy (including product liability) in a sum no less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000) aggregate; (b) worker’s compensation coverage (c) an auto liability policy with at least One Million Dollars ($1,000,000) combined single limits for any hired, non-owned and owned automobiles used by the Vendor; and (d) umbrella liability in the amount of Two Million Dollars ($2,000,000) per occurrence/in the aggregate. Upon execution of this Agreement, Vendor shall name QPS as an additional insured on its general liability insurance/product liability policy as it pertains to the work done, service provided or product delivered to QPS and shall provide a 30- day notice of cancellation or non-renewal of coverage to QPS. Vendor shall provide a certificate of each insurance policy listed above to QPS prior to commencement of work. Such insurance must be primary as to any other valid and collectible insurance. Nothing construed in this section shall be deemed to place any limitations on damages recoverable by QPS in the event of a breach of this Agreement or any term hereof by Vendor.
Legal Compliance: Vendor shall comply with all applicable municipal, state and/or federal laws, regulations and ordinances; provided that, that the requirements under this Section do not include federal laws restricting the possession, sale, cultivation, manufacture or distribution of cannabis or cannabis-related products. Vendor shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Vendor shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Vendor. Vendor assumes all responsibility for shipments of Goods requiring any government import clearance. QPS may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
Other Terms: No waiver by QPS of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by QPS. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. In the event of a breach by Vendor, QPS shall be entitled to recover all Losses, costs fees, expenses, and damages from Vendor, including its actual attorney fees incurred in connection with enforcing the terms hereof, regardless of whether litigation is initiated. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and/or Services covered hereby, the terms and conditions of this Agreement shall prevail to the extent they are inconsistent with such contract. All notices permitted or required hereunder shall be provided via email to a designated representative of each party. This Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by an authorized representative of each party; provided that, QPS may amend any applicable Purchase Order in writing and, if such amendment causes an increase or decrease in price or delivery of Goods and/or Services, QPS shall equitably adjust payment for such Goods and/or Services, as applicable. Vendor acknowledges that time is of the essence with respect to Vendor’s obligations hereunder and the timely delivery of the Goods and/or Services, including all performance dates, timetables, project milestones and other requirements in this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile transmission or electronic mail. This Agreement shall be governed by the law of the state in which the Goods are produced. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.