RETAIL SALES ORDER TERMS & CONDITIONS
These Sales Order Terms and Conditions (“Terms”), together with the terms of any applicable order form (each, a “Sales Order”) executed by Sturdivant Ventures, LLC, d/b/a Landseye (the “Landseye”) and the customer named therein (the “Licensed Retailer”), govern the purchase and resale by Licensed Retailer of Landseye products identified in the Sales Order (the “Products”) from Landseye. The Terms and the applicable Sales 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 Sales Order or other document, these Terms shall prevail.
Licensed Retailer acknowledges and agrees that use of Landseye trademarks are strictly for the purpose of identifying the source of the Products, consistent with the reputation and quality associated with the respective mark, and is in no way intended to constitute commercial promotion. Any reference herein to marketing, advertising, selling or retailing is intended solely to facilitate access to information concerning high quality, compliant cannabis products for qualified patients and adult users.
A. LICENSED RETAILER:
Licensed Retailer represents and warrants that it operates a licensed commercial cannabis business for the retail sale of cannabis to qualified patients and caregivers (“Patients”) and adults at least 21 years of age (together with Patients, “Customers”) operating under the laws of the State of California pursuant to the Medicinal and Adult-Use Cannabis Regulation and Safety Act and related regulations and amendments as may be promulgated from time to time by both the State and local jurisdiction in which Licensed Retailer operates.
Licensed Retailer further represents and warrants that each Customer has valid government-issued identification, and has either (a) a valid approval or recommendation, in writing, from a physician licensed in the State of California to use medical cannabis for his or her documented medical condition(s) (“Recommendation”), which has been verified by Licensed Retailer with the recommending physician; or (b) a valid written authorization to serve as the primary caregiver for an authorized medical cannabis patient; or (c) is an adult at least 21 years of age.
Licensed Retailer further represents and warrants that it shall at all times collect the required taxes on the sale of the Products to Customers and remit them as required under applicable local, state, and federal laws.
Licensed Retailer represents, warrants and covenants that it maintains, and will continue to maintain, true and accurate records of its Product purchases from Landseye, Product sales to Customers, and taxes due on such sales and purchases to the State of California and local jurisdiction in which Licensed Retailer operates as well as any such other records that must be kept pursuant to the recordkeeping requirements as may be established from time to time by the State of California, including but not limited to 16 C.C.R. §5025 et seq., 16 C.C.R. §5037 et seq. and local law, regulation or ordinance (collectively, “Records”).
Licensed Retailer acknowledges and agrees to keep the Records pertaining to Landseye’s Products including, but not limited to pricing for product sales, confidential, but may be required by law, court order, or otherwise to reveal any or all of such information to third parties, including governmental authorities (“Third Party Request”). In such event as Licensed Retailer is in receipt of such a Third Party Request, Licensed Retailer acknowledges and agrees to notify Landseye within twenty-four hours (24) of receipt of such a request at the address in Section G.9 below.
Licensed Retailer shall and at its own expense: (a) maintain facilities as required by the State of California to perform its duties under this Agreement; (b) obtain and maintain required certifications, credentials, licenses, and permits necessary to conduct business in accordance with this Agreement; and (c) take commercially reasonable steps to adhere to Landseye’s instructions as to the proper storing, maintaining, handling and transporting of the Products in a clean and healthy manner, in accordance with: (i) Landseye’s instructions as may be given from time to time and (ii) in accordance with local and state rules and regulations. Licensed Retailer warrants to Landseye that for a period of twelve months Licensed Retailer shall not engage in any unfair, misleading, or deceptive practices respecting Landseye, Landseye’s Trademarks or the Products, including any product disparagement during the Term of this Agreement. Licensed Retailer’s warranties are cumulative and in addition to any other warranty provided by law or equity.
B. LICENSED RETAILER OBLIGATIONS:
Licensed Retailer must provide a valid seller’s permit number and resale certificate to submit a Sales Order and shall remain fully responsible for charging and remitting all taxes due on Licensed Retailer’s sale of the Products as required by applicable state and local laws. Licensed Retailer shall remain fully responsible for and agrees to remit to Landseye the cannabis excise tax due to the State of California on the date of delivery of the Products shown on the relevant manifest under the applicable Sales Order.
Licensed Retailer will make Products available only to Customers and only at the licensed retail location (“Store”) identified on a particular Sales Order.
Licensed Retailer shall at all times remain in material compliance with all applicable laws and regulations relating to this Agreement and the Products.
All Product that is not sold shall be discarded pursuant to the applicable state and/or local regulation concerning the destruction and disposal of cannabis products including but not limited to 16 C.C.R. §5053, 5054, and 5055, and no refunds or credits shall be issued to Licensed Retailer.
Licensed Retailer agrees to adhere to all reasonable storage instructions for the Products as may be provided from time to time by Landseye, but in any event, Licensed Retailer agrees to employ storage consistent with industry best practices and/or applicable law or regulation.
Licensed Retailer agrees to give notice to Landseye no later than forty-eight (48) hours from receipt of any consumer or safety complaints that may arise from or are related to this Agreement and/or the Products, including but not limited to cause for a recall, 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 Licensed Retailer shall be the sole property of Landseye and shall be returned to Landseye upon request or upon the termination of this Agreement. Licensed Retailer agrees to only display the applicable Product associated with any Display Materials.
Licensed 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 Licensed 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, Licensed 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 Licensed Retailer should immediately change or discontinue use of any Marks for any reason, in Landseye’s sole discretion.
Licensed Retailer acknowledges and agrees that it must comply with all consumer protection and disclosure laws, including but not limited to providing a Customers adequate warnings on the licensed premises regarding Landseye Products and other products in Licensed Retailer’s inventory consistent with the California Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65” or the “Act”). Licensed Retailer further acknowledges and agrees to display the applicable Proposition 65 warning on its premises as required by the Act.
During the term of this Agreement and for a period of two (2) years thereafter, Licensed Retailer shall, at its own expense, maintain and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) with limits no less than $1,000,000 for each occurrence and $2,000,000 in the aggregate with financially sound and reputable insurers. Upon Landseye’s request, Licensed Retailer shall provide Landseye with a certificate of insurance and policy endorsements for all insurance coverage required by this Section B.11, and shall not do anything to invalidate such insurance. Licensed Retailer agrees to provide Landseye with thirty (30) days' advance written notice in the event of a cancellation or material change in Licensed Retailer’s insurance policy. Except where prohibited by law, Licensed Retailer shall require its insurer to waive all rights of subrogation against Landseye’s insurers and Landseye. Except where prohibited by law, Licensed Retailer shall require its insurer to waive all rights of subrogation against the other party’s insurers and the applicable indemnified parties.
C. INTELLECTUAL PROPERTY:
All trade names, trademarks, service marks, logos, designs, identifications, decals, artwork and other symbols and devices relating to Landseye (including, without limitation, the Marley Natural™, Headlight™, Final Frontier™, and Dutchy™ brands) or its products or services (collectively, “Marks”) shall remain the sole property of Landseye or its licensor(s).
Landseye hereby grants to Licensed 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 B.8 above.
Except as expressly provided herein, Licensed Retailer is not licensed or otherwise authorized to use the Marks in any way, and no use of the Marks may be undertaken by Licensed Retailer without prior written consent by Landseye. Licensed 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.
D. ORDERS, RETURNS, PRICES, PAYMENT:
After submission, all Sales Orders are subject to acceptance and confirmation of inventory by Landseye, who may accept and fill orders in its sole discretion. Licensed Retailer may cancel a Sales Order no later than forty-eight (48) hours prior to delivery.
Licensed Retailer must immediately inspect all Products received and give written notice of any defect or shortage to Landseye upon delivery. Failure to inform Landseye will be considered acceptance of the Products by Licensed Retailer. Any alleged defective Products are subject to Landseye’s inspection and confirmation of defect in its discretion.
All sales are final. Product returns, other than for defect, as detailed herein, will not be accepted.
Title and risk of loss shall transfer to Licensed Retailer upon delivery of the Products.
Landseye shall have no obligation to replace or refund any non-defective items.
Prior to Landseye’s acceptance of a Sales 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 Sales Order, which unless otherwise agreed, shall be cash on delivery.
The excise tax owed shall be due upon delivery of the Products (“Excise Tax Payment Date”) consistent with the payment terms in the applicable Sales Order, which unless otherwise agreed, shall be cash on delivery. In the event that Member Retailer fails to remit the payment due on the Excise Tax Payment Date, the Licensed Retailer shall be assessed a fifty-percent (50%) penalty if such tax payments are not provided to Landseye.
All past due invoices are subject to a 1.5% monthly finance charge or the highest rate allowed by applicable law. All Sales Orders will be placed on hold until any past due balance is paid in full by Licensed Retailer.
E. INDEMNIFICATION; DISCLAIMER; LIMITATION OF LIABILITY:
Licensed 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 Licensed Retailer of any representation, warranty or obligation under this Agreement or the negligence or willful misconduct of Licensed Retailer, its employees or agents, heirs, successors, and assigns, including but not limited to (i) any claim, loss, expense or liability, arising out of or resulting from Licensed Retailer’s failure to pay taxes owed on the Products to the relevant jurisdiction and/or State agency, or (ii) any claim, loss, expense or liability, arising out of or resulting from Licensed Retailer’s failure to display the applicable Proposition 65 warning; 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.
Any use and/or sale of the products and services offered by Landseye is done so at individual Customers’ own risk and requires such Customer to consult with his or her physician as necessary. 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.
LICENSED 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 LICENSED RETAILER’S MEMBERSHIP IN LANDSEYE.
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 LICENSED RETAILER OR COULD HAVE BEEN REASONABLY FORESEEN BY LICENSED 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.
THE LIMITATIONS STATED ABOVE EXTEND TO ALL DISPUTES LICENSED RETAILER MIGHT HAVE AGAINST LANDSEYE, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, PAST OR PRESENT. SPECIFICALLY, LICENSED RETAILER HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH STATES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
LICENSED RETAILER EXPRESSLY WAIVES AND RELINQUISHES ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO THE RELEASES PROVIDED HEREIN.
F. TERM AND TERMINATION:
This Agreement shall be effective as of the date of the first Sales Order and unless earlier terminated as set forth below shall continue until the later of: (a) one (1) year from the most recent Sales Order, or (b) for so long as the Licensed Retailer is a member of Landseye.
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 Licensed Retailer (a) if there are no Sales Orders outstanding; (b) in the event of a breach by Licensed Retailer of any representation, warranty or obligation under this Agreement or the negligence or willful misconduct of Licensed Retailer, its employees or agents; or (c) if Licensed 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, Licensed Retailer shall immediately cease any use or display of the Marks. Upon termination of this Agreement by Landseye without Cause, Licensed Retailer shall be entitled to thirty (30) days’ sell-off of any remaining Products currently in its possession or under an open Sales Order. Upon termination of this Agreement by Licensed Retailer with or without cause, or by Landseye with Cause, Licensed Retailer shall immediately cease any sale or display of the Products, and all remaining payments owing hereunder shall become immediately due and payable.
Sections C (Intellectual Property), E (Indemnification; Disclaimer; Limitation of Liability), F (Term and Termination) and G (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/cartltc, which amended terms and conditions shall be binding upon Licensed Retailer.
Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employer/employee relationship. Licensed Retailer expressly acknowledges that it is an independent contractor of Landseye and a member 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.
Licensed 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’S 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. LICENSED RETAILER SHOULD ALWAYS ADVISE ITS MEMBERS 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 California, 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 Licensed 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 counties of Los Angeles or San Francisco, California 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):
Sturdivant Ventures, LLC
975 Corporate Center Parkway, Suite 120
Santa Rosa, California 95407
To Licensed Retailer: To the contact listed in an applicable Sales Order.
- LICENSED RETAILER ACKNOWLEDGES THAT BY SIGNING THE SALES ORDER AND/OR ACCEPTING PRODUCTS FROM LANDSEYE, LICENSED RETAILER AGREES TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE SALES ORDER. ADDITIONALLY, BY LICENSED RETAILER’S SIGNATURE ON ANY AND ALL SALES ORDERS LICENSED RETAILER CERTIFIES THAT IT HAS READ THESE TERMS AND CONDITIONS, THAT LICENSED RETAILER KNOWS AND UNDERSTANDS THE MEANING AND INTENT OF THIS DOCUMENT AND THAT LICENSED RETAILER IS ENTERING INTO THIS AGREEMENT KNOWINGLY AND VOLUNTARILY.
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©2018 Sturdivant Ventures, LLC