Retail Terms & Conditions

The following outlines the terms and conditions of a retail sales agreement (the “Agreement”) for the sale of Products (as defined in Exhibit A) by CV Sciences, Inc., or its affiliated companies (“Seller”) to any retail customer (“Customer”).

1.                Purchase and Sale. Upon the terms and subject to the conditions contained herein, Customer may purchase such Products from Seller pursuant to purchase orders delivered by Customer to Seller from time to time (“Purchase Orders”). The parties acknowledge and agree that this Agreement constitutes an offer by Seller to Customer which expressly limits Customer’s acceptance to the terms and conditions of this Agreement, and is conditioned on Customer’s execution of this Agreement and Seller’s acceptance of Customer’s Purchase Orders. 

2.                Prices and Payment.

2.1             Prices.  Product prices and minimum order quantities of Products shall be determined by Seller in its discretion and communicated to Customer in writing.

2.2             Purchase Orders. Purchase Orders received fewer than fifteen (15) business days prior to the requested delivery date shall be filled at Seller’s discretion and subject to express shipping charges (to be paid by Customer). All orders are processed subject to availability. Unless expressly agreed in writing by the parties, the terms and conditions of this Agreement shall apply to any Purchase Order, and shall be deemed incorporated into and a part of any Purchase Order. Seller shall have no obligation under any Purchase Order until Customer is notified of Seller’s acceptance of such Purchase Order. Any pre-printed or written terms or conditions on the face or reverse side of Customer’s Purchase Orders which include different or additional terms are of no force or effect and not part of this Agreement. Any changes to a previously accepted Purchase Order, unless requested or required by Seller, as of the date changed, will be treated as a new Purchase Order.

2.3             Payment. Customer shall make full payment in good funds for Products ordered at the time of submission of the Purchase Order based on the applicable price at the time of such submission. Seller may withhold fulfillment of Customer’s Purchase Orders until payments are received in full.

3.                Shipping. Customer shall be responsible for all shipping and handling expenses, including (if applicable), customs clearance, import/export fees, freight risks, risks of loss, and insurance, and Customer may be required to act as the importer of record for international shipments.  Customer shall be responsible for any damage to Products occurring after the Products leave Seller’s premises/facilities, including, but not limited to, damages caused by or arising out of negligence, theft, or mishandling.

4.                Returns.

4.1             Finished Products. Within ten (10) days of Customer’s receipt of the Finished Products, Customer may return (i) Finished Products that do not conform to Seller’s product specifications or (ii), Finished Products which are defective, provided that notice of condition is given within five (5) days of receiving the Finished Products.  The failure to comply with the foregoing time requirements shall be deemed a waiver of Customer’s claim for incorrect or defective shipments. In the event of the existence of one or more material defects in any Finished Product upon delivery to Customer, Seller shall, at its sole option and cost, either (a) take such measures as are required to cure the defect(s) designated in the notice, or (b) replace such defective Finished Product(s). Seller may, at its sole option, require the return or destruction of the defective Finished Products. Customer shall afford to Seller the opportunity to verify that such defects existed prior to shipment and were not, for purposes of example and not limitation, the result of improper transport, handling, storage, product rotation or misuse by Customer. Seller does not allow for product returns and associated credits unless approved by an authorized individual of the Seller.

4.2             Bulk Oil Products. All sales of Bulk Oil Products are final, and Seller shall not accept returns under any circumstances. Bulk oil shall not be marketed, labeled or sold as a finished product

5.                Exhibits All exhibits and schedules attached to this Agreement are incorporated in and made a part of this Agreement.

EXHIBIT A

TERMS AND CONDITIONS OF SALE

THESE TERMS AND CONDITIONS OF SALE (“Terms and Conditions”) govern the sale of products of CV Sciences, Inc. and its affiliated companies (collectively, “Seller”) to Customer (“Customer”) under the Sales Agreement (the “Agreement”) to which these Terms and Conditions are attached.

1.                DEFINITIONS. As used in these Terms and Conditions, the following terms shall have the meanings set forth below in this Section:

1.1             “Finished Products” shall mean finished hemp oil products that are (a) marketed, distributed and/or sold by Seller, whether under Seller’s name and trademark, under other names and trademarks owned by Seller or under certain private labels and trademarks owned by Seller, or (b) marketed, distributed, sold and/or branded under names, trademarks and/or private labels that are not owned by Seller (i.e., “white label” products). 

1.2             “Bulk Oil Products” shall mean raw, bulk hemp oil products that are not Finished Products. 

1.3             “Products” shall mean, collectively, the Finished Products and the Bulk Oil Products.

1.4             “Customer’s Customers” shall mean those customers solicited by Customer and to whom Customer sells or offers to sell products manufactured with or which incorporate Products sold to Customer pursuant to this Agreement.

1.5             “Sales Agreement” shall mean the Agreement and all addenda and exhibits, including these Terms and Conditions, which comprise an essential part of the parties’ contract of sale and are fully incorporated therein.

2.                TRADEMARKS. Customer may use in connection with efforts to sell its products – which products contain the Products – those trade names, trademarks and trademark designs of Seller as are used to identify Products (collectively referred to herein as the “Tradenames” and the “Marks”, respectively). The form and manner of any such use shall in each instance be subject to the prior written consent of Seller in its sole discretion. Without limiting the generality of the foregoing, Customer shall not use the Tradenames or Marks as part of Customer’s trade or business name or in any other way which Seller considers misleading or objectionable in its sole discretion. Customer acknowledges that Seller is the owner of the Tradenames and Marks, and that Customer’s right to use them is derived solely from the Sales Agreement and is limited to the conduct of business by Customer in compliance with the Sales Agreement. Nothing contained herein shall operate to deprive Seller of its full right, title and interest in and to the Tradenames and Marks or be construed as a limitation upon the right of Seller or its related companies to use or license the Tradenames and Marks or to use or license the Tradenames and Marks on products other than the Products. 

3.                RELATIONSHIP OF THE PARTIES.

3.1             Customer and Seller are buyer and seller and not partners, joint venturers, agents or employees of one another. Neither Customer nor any of its employees, agents, representatives or any other person or entity under Customer’s direction and control (“Customer Representatives”) is authorized to assume or create any obligation or responsibility on behalf of or in the name of Seller, including, but not limited to, obligations based on warranties or guarantees. Neither Customer nor any Customer Representative shall misrepresent its status or authority.

3.2             Seller shall have no liability for any sales, excise, gross receipts, income, property or other taxes, whether levied upon Customer or its assets or upon Seller, in connection with the business conducted or sales made by Customer. 

3.3             Customer acknowledges and agrees (a) that it has not and will not pay any fee to Seller in connection with the Sales Agreement, or in connection with any prior agreement, and that no franchise or fiduciary relationship exists between the parties, (b) that it shall have no right, express or implied, to act on behalf of Seller or to use the Tradenames or Marks for any purpose except as specifically provided herein, and (c) Customer has not been required by Seller to make any investment to purchase Products.

3.4             Customer agrees to use its reasonable commercial efforts to enhance the goodwill which Seller has created in the Tradenames, Marks and Products by selling and delivering products in compliance with all of the terms and conditions of the Agreement and these Terms and Conditions and in a manner which will further enhance the goodwill of, and customer demand for, Products.

4.                COMPLIANCE WITH LAWS AND GOOD BUSINESS PRACTICES. 

4.1             Customer shall obtain Seller’s express written approval of all advertising and promotion materials used by Customer bearing the Tradenames and Marks. All advertising and promotion materials used by Customer must comply with Seller’s standards and specifications, and other reasonable requirements to protect the value, goodwill and integrity of the Tradenames and Marks. All such materials must be factually accurate, conform to applicable laws and regulations and shall conform to the highest standards of ethical advertising. In all dealings with its customers and the public in which the Seller’s Tradenames or Marks are used, Customer shall adhere to the highest standards of honesty, integrity, fair dealing and ethical conduct. Customer agrees to refrain from any business or advertising practice which may be injurious to the business of Seller and the goodwill associated with the Tradenames, Marks or Products.  Customer acknowledges and agrees that the Tradenames and Marks are unique in nature, and that there can be no adequate remedy at law for any breach of Customer’s obligations under this Agreement.  As such, Customer acknowledges and agrees that Seller will be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement by Customer. Such remedy shall not be deemed to be exclusive remedies for a breach of this Agreement by Customer, but shall be in addition to all other remedies available at law or equity.

4.2             Seller may provide Customer with Products on a “white label” basis (i.e., without the use or impression of any Tradenames and/or Marks of Seller). Seller shall ensure all packaging, labeling, advertisements, brochures and other materials concerning the Products (collectively, “Advertisements”) are factually accurate, conform to applicable laws and regulations and conform to the highest standards of ethical advertising. Particularly, and without limitation, Customer, its agents, representatives, employees, distributors and/or sales representatives shall (a) ensure all Advertisements are truthful and not misleading, (b) before disseminating and Advertisement, ensure adequate substantiation exists for all objective claims, (c) not make any misrepresentation or omission that is likely to mislead consumers, and (d) ensure all Advertisements  conform to all requirements of the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) related to advertising of dietary supplements. Seller shall have no liability for any representations or warranties made by Customer, its agents, representatives, employees, distributors and sales representatives, including, without limitation, representations or warranties made on product labels, in advertising, brochures or any other materials concerning the Finished Products. 

4.3             Customer shall notify Seller in writing within five (5) days of the commencement of any legal action, suit or proceeding, or of the issuance of any correspondence, order, writ, injunction, award or decree of any court, agency or other governmental instrumentality, which provides notice of any violation or potential violation by Customer of any law, ordinance or regulation relating to health, safety or sanitation including, but not limited to, the federal Food, Drug, and Cosmetic Act or related federal regulations or similar state or foreign laws.

5.                CONFIDENTIAL INFORMATION. Customer agrees to treat as confidential and proprietary information, and to take all necessary precautions to protect the confidentiality and secrecy of, all price information, operational methods, customer data and other information and data from time to time furnished by Seller to Customer in connection with the Sales Agreement (“Confidential Information”). Customer acknowledges and agrees that Seller would be irreparably harmed by any violation or threatened violation of this section and, therefore, Seller shall be entitled to an injunction prohibiting Customer from such violation or threatened violation. The provisions of this section shall survive the expiration or termination of the Sales Agreement for any reason whatsoever. 

6.                MINIMUM ADVERTISED PRICING. Customer shall comply in all respects with Seller’s Minimum Advertised Pricing Policy, a copy of which is attached to the Agreement as Exhibit B.

7.                FORCE MAJEURE. Seller shall not be liable for any failure to perform its obligations under the Sales Agreement due to events beyond its reasonable control, including, but not limited to, labor strikes or lockouts, riots, wars, power failures, boycott, embargo, governmental controls or regulations, government action or inaction, processing problems, shortages of raw materials, fires, weather or acts of nature. Seller shall use commercially reasonable efforts to remedy any resulting disruption in its operations as quickly as possible.

8.                MISCELLANEOUS.

8.1             Severability. In case any one or more of the provisions of the Sales Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, any other provision in the Sales Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Such invalid, illegal or unenforceable provisions shall be given effect to the maximum extent permitted by law.

8.2             Entire Agreement. The Sales Agreement, including these Terms and Conditions, constitutes the entire agreement between the parties and includes all promises and representations, whether expressed or implied, made by Seller, Customer or any other individuals or entities on behalf of either party. No stipulation, agreement or understanding of the parties shall be valid or enforceable unless referenced or contained in the Sales Agreement, or in a written amendment to the Sales Agreement signed by authorized representatives of both parties. The Sales Agreement supersedes and replaces any prior agreements, written or oral, and any previous custom or course of dealing, performance or conduct of or between the parties regarding the subject matter contained herein. Without limiting the generality of the foregoing, no additional or different terms set forth in Customer’s Purchase Orders, acknowledgements or other forms or correspondence, regardless of whether signed by a representative of Seller, shall amend, modify or supersede any provision of the Sales Agreement.

8.3             No Waiver; Remedies Cumulative. No delay or omission by either party hereto in exercising any right or power hereunder will impair such right or power or be construed to be a waiver thereof. A waiver by either party hereto of any of the covenants to be performed by the other or any breach thereof will not be construed to be a waiver of any succeeding breach thereof or of any other covenant herein contained. Except as otherwise specifically provided in the Sales Agreement, all remedies provided for in the Sales Agreement will be cumulative and in addition to and not in lieu of any other rights or remedies available to either party hereunder, at law, in equity or otherwise.

8.4             Applicable Law. The Sales Agreement, and all claims and controversies arising hereunder, including claims for breach of contract and related causes of action, shall be governed by the laws of the State of California, without reference to its choice of law principles.

8.5             No Representations. No representation, promise, inducement or statement of intention other than those set forth in the Sales Agreement has been made by Seller or Customer and neither party shall be bound by or liable for any other alleged representation, promise, inducement or statement of intention.

8.6             Notices. Any notices required or permitted by the Sales Agreement, or given in connection with the Sales Agreement, shall be in writing and shall be sent as follows: Notice shall be delivered personally, sent by nationally recognized expedited delivery service or mailed by certified or registered mail, return receipt requested, in each instance addressed to the address following the execution by the parties. 

8.7             Counterparts; Facsimile Signatures. The Sales Agreement may be executed in one or more counterparts for the convenience of the parties hereto, all of which together will constitute one and the same instrument. A facsimile signature shall have the same force and effect as an original signature.

8.8             Headings; Construction. The headings contained herein and in the Sales Agreement are for convenience of reference only and shall not be deemed to limit or affect the subject matter contained herein. These Terms and Conditions and the Sales Agreement shall not be construed in favor or against any party on account of its participation in such preparation. The singular form shall include the plural, and vice versa, when the context so requires.

8.9             Dispute Resolution. Any controversy or claim arising out of or relating to the Sales Agreement shall be settled by binding arbitration by one arbitrator. The arbitration proceedings will be conducted in San Diego, California and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator shall award to the prevailing party, if any, all of its reasonable costs and expenses of the arbitration including attorneys’ fees. The award shall be in writing, shall be signed by the arbitrator, and shall include a statement regarding the reasons for the disposition of any claim. Except as may be required by law, neither party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. 

8.10           Interpretation. The Sales Agreement shall not be interpreted against a party by virtue of such party’s participation in the drafting of the Sales Agreement or any provisions herein.