Green Thumb Industries Inc. Vendor Terms and Conditions of Purchase
Acceptance.Green Thumb Industries Inc. (“GTI”) or any of its affiliated or subsidiary entities identified on a purchase order (“Order(s)”), is referred to herein as “Buyer”. The company selling goods (“Goods”) and/or providing services (“Services”) to Buyer is referred to herein as “Seller”. Whether construed as an offer, acceptance or confirmation, these terms and conditions of purchase include all documents and exhibits attached hereto and all other terms incorporated by reference herein (“Purchase Terms”, and together with any Orders, the “Agreement”). These Purchase Terms may not be added to, modified, superseded or otherwise altered except by a signed writing executed by an officer of Buyer. THE RECEIPT BY BUYER OF GOODS AND/OR SERVICES FROM SELLER IS CONTINGENT ON THE ACCEPTANCE OF THESE PURCHASE TERMS, AND BUYER HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY SELLER. Seller’s commencement of work on Goods and/or the performance of Services will be considered an acceptance of these Purchase Terms. In the event of a conflict between terms, the following order of precedence will apply: (a) any writing signed by an officer of Buyer, (b) any terms on Buyer’s commercial documents, and (c) these Purchase Terms.
Payment Terms. All prices are firm and not subject to change. No additional charges may be added without Buyer’s written consent, including labor, materials, overhead, taxes (excise, VAT, sales and use, payroll, FICA, or unemployment) and any other costs associated with the manufacture, sale and delivery of the Goods and/or Services. When calculating volume discounts or rebates, purchases made by GTI, or any of its affiliated or subsidiary entities, will count towards Buyer’s aggregate purchases. Unless otherwise agreed, Buyer shall pay for all Goods and/or Services within 60 days after receipt of an undisputed invoice. If Seller breaches any provision of the Agreement, Buyer may withhold from any payments due or to become due to Seller an amount sufficient to protect Buyer from all claims, losses, damages and expenses.
Changes. Buyer may cancel any Order, in whole or in part, by providing Seller with written notice for (a) Goods that have not been custom made for Buyer, and/or (b) Services that have not been completed, provided that Buyer shall compensate Seller for Services actually performed before cancellation. Buyer may, at any time, make changes to: (i) specifications, drawings and data incorporated in an Order where the Goods are to be specially manufactured for Buyer; (ii) methods of shipment or packing; (iii) place of delivery; (iv) time of delivery; and (v) specifications regarding Services. If any such change causes an increase or decrease in the cost of or the time required for performance of an Order, an equitable adjustment shall be made in the purchase price or delivery schedule, or both. Any claim by Seller for adjustment under this paragraph shall be deemed waived unless Buyer is notified in writing within ten (10) days from receipt by Seller of the change. Price increases or extensions of time for delivery or performance shall not be binding on Buyer unless approved in writing by an officer of Buyer.
Delivery. Time is of the essence. If delivery of Goods and/or rendering of Services is not completed by the time specified and such delay is not solely the fault of Buyer, Buyer reserves the right, without liability, in addition to its other rights and remedies, to (a) cancel the affected Order upon notice, (b) reduce the purchase price by one percent (1%) for each business day such failure continues, (c) purchase substitute Goods and/or Services elsewhere and charge Seller for any additional costs incurred over those set forth in an Order, or (d) require expedited delivery and that Seller incur all associated costs. Any provisions herein for delivery of Goods or the rendering of Services by installments shall not be construed as making the obligations of Seller severable. Unless designated otherwise: (i) For domestic Orders: all deliveries are F.O.B. Destination to the location designated on an Order and (ii) For international Orders: all deliveries are Delivered Duty Paid as defined by Incoterms from time to time. For both domestic and international Orders, title and risk of loss shall transfer to Buyer only once the Goods have been received and accepted by Buyer at the applicable destination according to the Order. Shipments sent C.O.D. without Buyer’s written consent will not be accepted and will be at Seller’s risk.
Inspection.All Goods and/or Services will be received by Buyer subject to its right of inspection and rejection. Buyer may inspect and test the Goods and/or Services at any time, including during manufacturing, construction or preparation. After delivery, Buyer will have a reasonable period of time to inspect the Goods and/or Services and notify Seller of any non-conformance with the Agreement. Buyer may reject Goods and/or Services or require Seller, at Seller’s cost, to correct defects in Goods and/or Services that do not conform to the Agreement or any other instructions furnished Buyer. Buyer may reject non-conforming Goods and/or Services even if such Goods and/or Services had been previously received, accepted and/or paid for. Goods and/or Services so rejected may be returned or held by Buyer at Seller’s risk and expense, and in either event, cost of transportation, shipping, unpacking, examining, repacking, reshipping and like expenses shall be charged to Seller.
Packaging and Shipping. All material purchased must be packed to ensure its safe delivery and reduce any potential damage during shipping in accordance with good commercial practice and Buyer’s packaging specifications. The Seller shall mark on all pallets, handling and loading instructions, shipping information, part number, purchase order number and Buyer’s item number, quantity in box, shipment date, and names and addresses of the Seller. An itemized packing list must accompany each shipment. Each packing slip shall include the Order number, quantity, item description, Buyer part number, order date, shipping date and delivery address, but should not include pricing information. Unless otherwise agreed, Seller is responsible for all freight, insurance, packing, crating, handling, shipping and all other charges, expenses and costs incidental to delivering the Goods and/ Services. No additional charges may be made unless agreed to in writing by Buyer in advance. Seller shall not store or ship Goods together with any odorous or toxic substances.
Seller warrants that all Goods furnished (i) will be free from defects in material and workmanship; (ii) will conform to accepted samples or to Buyer’s specifications or to both if there are both; (iii) will be merchantable; (iv) and if ordered for a stated purpose, will be fit for such purpose. Seller also warrants that, to the extent the Goods are not manufactured pursuant to detailed specifications furnished by Buyer, they will be set free from defects in design. This warranty will survive acceptance of the Goods.
Seller warrants that all Services furnished (i) will be performed in a timely, competent and professional manner in accordance with industry standards, (ii) will be performed by employees and agents having proper skill, training and background to suitably perform the Services and, where applicable, possess the requisite certification, licensure or other authorization necessary to perform the Services, and (iii) will conform to any applicable specifications or statements of work.
If the Goods and/or Services do not conform with the warranties in this section, Seller shall, at Buyer’s sole option, promptly repair or replace the non-conforming Goods and/or reperform the non-conforming Services. Alternatively, upon Buyer’s request, Seller shall grant Buyer a full refund in the amount of the purchase price of the Goods and/or Services. Seller will be responsible for any costs incurred by Buyer in connection with the non-conformity, including the costs of examining, sorting, packing, shipping, and recalling the Goods. If Seller does not promptly remedy the non-conformity, Buyer may do so, and Seller shall reimburse Buyer for all costs incurred by Buyer.
Seller warrants and represents to Buyer that: (i) Seller is the owner of or has the right to use and distribute all materials and methodologies used in connection with providing Goods and/or Services to Buyer; (ii) Seller will comply with all applicable laws and regulations in performing its obligations; (iii) the Goods and/or Services shall not infringe upon the Intellectual Property (defined below) of a third party; and (iv) the Goods and/or Services shall be provided, manufactured, shipped, stored, and otherwise handled in strict compliance with all applicable laws, codes, ordinances, regulations, executive orders, and industry standards.
Quality System Seller shall maintain quality systems sufficient to assure consistent product quality and adherence to all specifications and product attributes provided by Buyer. If provided, Seller will comply with all requirements in Buyer’s quality manuals and participate in all of Buyer’s performance evaluations. Seller may not change specifications and/or product attributes without prior written approval from Buyer.
Seller shall provide a Certificate of Analysis (“COA”) on all food and cosmetic raw ingredients. All other Goods shall include a Certificate of Conformance (“COC”). Each COC shall include a statement certifying that all products are manufactured and supplied in conformance with all applicable mutually agreed upon requirements, drawings, and specifications. All chemicals shall include a Material Safety Data Sheet.
Safety Equipment, Documentation.If selling machines and/or systems (“Equipment”), Seller shall deliver to Buyer a risk assessment of such Equipment as well as detailed documentation including manuals, training videos, maintenance protocols, and any other applicable information to operate and maintain such Equipment. Seller acknowledges that Buyer is relying on Seller’s expertise.
Indemnification. Seller shall indemnify and hold harmless Buyer, Buyer’s successors, assigns, employees, agents, customers and users of Buyer’s products, from and against all claims, losses, penalties, damages (including incidental and consequential damages) or expenses (including reasonable attorney’s fees) arising out of or related to (a) any infringement or claim of infringement of any letters patent or trade secrets or other intellectual property rights by reason of the use or sale of any Goods purchased hereunder, or performance of Services rendered hereunder, excepting unpatented staple articles of commerce and goods manufactured in accordance with Buyer’s design, (b) any act or omission by Seller (or its employees or agents), (c) any defects in Seller’s Goods, (d) any breach by Seller of any of the warranties, representations or other obligations contained herein (e) any death, bodily injury and/or property damage claimed to result, in whole or part, from the Goods and/or Services, or (f) any deficiencies in the rendering of Services or failure to comply with Buyer’s specifications regarding Services. Buyer shall notify Seller of any claims requiring indemnification. Buyer may elect to participate in the defense of any action and, at Seller’s cost, select its own legal counsel. Seller may not agree to settle any indemnifiable claims without written approval from Buyer.
Limitation of Liability.BUYER SHALL NOT BE LIABLE, AND SELLER WAIVES ALL CLAIMS AGAINST BUYER, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITVE OR CONSEQUENTIAL DAMAGES, DOWNTIME, LOST PROFITS OR COMMERCIAL LOSSES. BUYER’S LIABILITY IN CONNECTION WITH THE GOODS AND/OR SERVICES SHALL NOT EXCEED THE PURCHASE PRICE OF THE SPECIFIC GOODS AND/OR SERVICES GIVING RISE TO A CLAIM FOR RELIEF.
Confidential Information. Seller shall maintain the confidentiality of all of Buyer’s confidential, proprietary or non-public information received under the Agreement (“Confidential Information”). Confidential Information includes, without limitation, Buyer’s: (a) business plans, (b) business strategies, (c) marketing plans, (d) industry and competitive information, (e) technology, product and proposed product information, (f) pricing and cost arrangements, (g) agreements with its distributors, customers, suppliers, licensors and licensees, (h) customer base, (i) employees, (j) financial information, and (k) relationship with Seller under the Agreement. All Confidential Information will remain the property of Buyer. Seller shall hold all Confidential Information in strict confidence. All Confidential Information must be promptly returned to Buyer or destroyed at the end of the relationship between Buyer and Seller or upon Buyer’s written demand. Confidential Information does not include (i) information that is or becomes generally available to the public through no breach of these confidentiality obligations by Seller, (ii) information Seller can show, through documentary evidence, was already in Seller’s possession prior to disclosure by Buyer, or (iii) is made available to Seller by a third party owing no duties of confidentiality to Buyer. If Seller is required to disclose Buyer’s Confidential Information through a valid court order, government agency inquiry, or other operation of law, Seller must promptly inform Buyer and cooperate with Buyer to limit such disclosure to only the Confidential Information directly responsive to such inquiry.
Assignment.Seller shall not assign this Agreement or any rights, nor delegate any duties to any third party. Any attempt to do so will be void. This Agreement shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Liens. Upon payment for Goods and/or Services under this Agreement, Seller hereby waives and releases all liens, claims, or rights to lien, under the applicable statutes of the state where the Goods are delivered and/or the Services are performed. If any of Seller’s subcontractors refuses to furnish a satisfactory lien waiver, Seller shall indemnify Buyer for all costs associated therewith.
Insurance.Seller shall maintain at its own expense insurance coverage including, without limitation, (a) commercial general liability insurance covering claims for damages because of bodily injury (including death), personal injury, advertising injury, and property damage arising out of Seller’s acts or omissions in an amount not less than $1,000,000 per occurrence and $2,000,000 in the aggregate; (b) if applicable, product liability insurance of not less than $5,000,000 per occurrence and in the aggregate, (c) commercial automobile liability insurance covering owned, hired, and non-owned vehicles in an amount not less than $1,000,000 combined single limit, (d) an umbrella or excess policy in excess of the liability policies in an amount not less than $5,000,000 per occurrence and in the aggregate, (e) Workers’ Compensation insurance in full compliance with the laws of any applicable jurisdiction at not less than statutory limits, and (f) if applicable, errors and omissions insurance covering professional services of the type performed by Seller and including coverage for contractual liabilities. The policies shall be specifically endorsed to list Buyer as an additional insured. All policies must be placed with insurers with an A.M. Best rating of no less than A-7. Upon request, Seller shall provide Buyer with a certificate evidencing the insurance coverage required. Maintenance of such insurance coverage shall not relieve Seller of any responsibility under this Agreement for damages in excess of insurance coverage limits or otherwise.
Intellectual Property Rights.The specifications and all other information provided by Buyer to Seller or developed by Seller for Buyer will be the exclusive property of Buyer. Seller shall not use any such specifications or information for the benefit of itself or any third party, including marketing, selling or commercially exploiting products containing or using such specifications or information. Seller acknowledges that Buyer owns all rights in Buyer’s names, trademarks, and service marks. Seller has no right and will not use such names or marks in any manner. Seller hereby grants Buyer all right, title and interest to all patent rights, trademarks, service marks, copyright rights and trade secrets (“Intellectual Property”) and other information created by Seller, or any employee, supplier or agent of Seller specifically for Buyer during the performance of this Agreement. Such materials are “works made for hire” under applicable copyright laws (“Work Product”), and Buyer will be considered the author of such works. To the extent any such works are not considered “works for hire”, Seller hereby assigns such rights to Buyer and will cooperate in the execution of documents necessary to transfer, register and/or enforce such rights. Seller further waives any rights under the U.S. Copyright Act, 17 U.S.C. § 101, et seq., to terminate this transfer, as well as any moral rights that may exist in the work. With respect to any Intellectual Property and/or Work Product that is owned by Buyer and necessary to produce the Goods and/or provide the Services, Buyer grants to Seller and its authorized suppliers a worldwide, nonexclusive, transferable, perpetual, royalty free, irrevocable license to use the Intellectual Property and/or the Work Product to use, make, have made, sell, offer to sell, export and otherwise distribute, service and support the Goods and/or Services only to or for Buyer.
Spare Parts.Seller shall supply spare parts for a period of five (5) years after the delivery of the Goods or for a longer period if required by law. Seller will give Buyer a last time buy option at the end of such five (5) year period and recommend other parts that are compatible with the Goods. Seller will notify Buyer 90 days in advance prior to Seller’s withdrawal of any Goods.
Tooling.Buyer may provide patterns, dies, fixtures, molds, jigs or other tools or directly or indirectly pay for tools for use in making Goods (“Tooling”). Unless approved in writing by Buyer, Seller shall not (a) remove or relocate any Tooling; (b) use the Tooling for any other products or any other customer other than for those Goods provided to Buyer under this Agreement; (c) make any changes to Tooling; or (d) reverse engineer any Tooling. Unless otherwise agreed upon, Tooling shall remain Buyer’s property, be segregated from Seller’s property, and be individually marked as Buyer’s property. Seller shall maintain Tooling in good condition and repair or replace it at Seller’s cost if lost, damaged, destroyed, or otherwise rendered unfit for use. Upon Buyer’s request, Seller shall transfer possession of the Tooling to Buyer free and clear of liens and encumbrances and at the time and place designated by Buyer.
Compliance.Seller shall comply with all federal, state and local laws, ordinances, regulations and orders that are applicable to the operation of their business. Without limiting the generality of the foregoing Seller shall, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct their business relating to the exercise of their rights and the performance of their obligations under this Agreement. Furthermore, Seller shall comply with the principles set forth in Buyer’s Code of Business Conduct, available at:https://s23.q4cdn.com/166212319/files/doc_downloads/2019/Code-of-Business-Conduct.pdf.
Audit.Seller shall maintain complete and accurate records, books of account, reports and other data necessary for the proper administration of this Agreement, including any rebate programs or special pricing for Buyer. Buyer may audit Seller’s books and records. If any audit reveals an irregularity in the computation of prices or other costs, an appropriate adjustment shall be made by Seller. If such error or irregularity caused the prices to be computed in Seller’s favor, Seller shall pay all expenses incurred by Buyer with respect to such audit. Seller shall permit Buyer, or a third-party designee, to have reasonable access to its facilities for the purpose of performing production and quality audits. Buyer will conduct any such audit only during normal working hours.
Relationship of Parties. The parties are not partners, joint venturers or agents for one another, and nothing in an Order or the course of dealing between the parties may be deemed to create such a relationship between the parties.
Force Majeure.If performance under the Agreement by either party is prevented, restricted or interfered with by any act of God, fire or other casualty, embargo, power supply issue, war or violence, act of terrorism, epidemic, pandemic, or any law, order, proclamation, ordinance, demand or requirement of any governmental agency or similar event beyond such party’s reasonable control (each, an “Force Majeure Event”), such party shall promptly give the other party written notice of the Force Majeure Event. Delays caused by labor disputes, changes in cost or availability of raw materials based on market conditions, or scheduled downtime for maintenance is not a Force Majeure Event. No later than 48 hours after the Force Majeure Event, Seller will describe the Force Majeure Event and provide Buyer assurance of when the delay will be cured. During the delay, Buyer may, at its option: (a) cancel any Orders and purchase Goods and/or Services from third parties without liability; (b) require Seller to deliver all finished Goods, work in process, tooling, and materials produced or acquired for the Order; or (c) have Seller provide Goods and/or Services from other sources at the price in the affected Order.
Waiver.A failure to insist upon strict compliance with this Agreement will not constitute a waiver of Seller’s default or otherwise affect any of Buyer’s legal rights or remedies.
Choice of Law/Venue.All matters arising out of or relating to the Agreement will be governed by the laws of the state where the Goods are delivered and/or the Services are performed (“State of Performance”), without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Performance. Buyer and Seller hereby waive their right to remove any disputes under the Agreement to federal court.
SeverabilityIf any provision of the Agreement is held to be illegal, invalid, or unenforceable under any present or future law and if the rights or obligations of Buyer and/or Seller will not be materially and adversely affected by its removal (“Severable Provision”), such Severable Provision shall be removed, and the Agreement shall be construed and enforced as if the Severable Provision had never comprised a part hereof. The remaining provisions of the Agreement shall remain in full force and effect and shall not be affected by the Severable Provision. In lieu of such Severable Provision, there shall be added automatically as a part of the Agreement a legal, valid, and enforceable provision as similar in terms to such Severable Provision as may be possible and reasonably acceptable to Buyer and Seller.
Integration and Modification.This Agreement constitutes the entire agreement between Buyer and Seller with respect to the Goods and/or Services, and supersedes any prior agreements, understandings, representations and quotations. No modification hereof will be of any effect unless in writing and signed by an officer of the party to be bound thereby.
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