Dropship vendor terms and conditions

TERMS AND CONDITIONS FOR DROPSHIP VENDORS

The following terms and conditions (the “T&Cs”) are part of each purchase of goods by Epic Gardening, Inc. or one of its affiliates (as applicable, the “Company”) from a vendor (“Vendor”) pursuant to a dropship arrangement whereby orders made by the Company’s customers via the Company’s website-based store are fulfilled and shipped directly by Vendor from Vendor’s inventory. The Company and the Vendor are referred to as the “Parties”. The Company and Vendor may from time to time enter into additional written agreements on forms provided by the Company pertaining to the dropship relationship (“Additional Terms”), for example, a “Dropship Vendor Agreement”. These T&Cs and any Additional Terms are referred to collectively as the “Agreement”.

Acceptance by Vendor is limited to the terms of the Agreement. The Company objects to any different or additional terms in Vendor’s acceptance or any other document or form transmitted on behalf of Vendor, unless the Company’s written consent is first obtained. The Company’s objection to different or additional terms will not be waived by acceptance of any merchandise or by payment of any invoice.

The Agreement will exclusively govern and control each parties’ respective rights and obligations regarding the purchase and sale of goods supplied by Vendor. If any of the Additional Terms conflicts with any term in these T&Cs, the Additional Terms will control.

AGREEMENT

Purchase of Goods; Prices.
1. Pursuant to the terms, conditions and specifications described in the Additional Terms and these T&Cs, the Company will purchase from Vendor certain goods described in the Additional Terms or otherwise agreed to from time to time (the “Goods”), and Vendor will sell the Goods to the Company, at the prices described in the Additional Terms or otherwise agreed to from time to time in writing.
Order Placement; Tech Support.
1. The purchase of Goods by the Company from Vendor may be facilitated by certain technology integrations that allow two-way data feeds for order and inventory information, and allow orders placed by the Company’s customers on the Company’s online stores to be automatically submitted by the Company to Vendor (the “Order Interface Technology”).
2. Vendor will use commercially reasonable efforts to maintain an accurate inventory of Goods and will proactively communicate with the Company in the event of expected inventory issues. Orders placed for which there is no inventory will be refunded.
3. To the extent within each Party’s control, each Party will use commercially reasonably efforts to ensure the proper functioning of any applicable Order Interface Technology.
Fulfillment and Delivery.
1. Fulfillment and Delivery. Vendor will use its best efforts to Process orders within 48 hours of receipt, excluding weekends and holidays, unless otherwise agreed by the Parties (for example, if a different time frame is specified in the Additional Terms). “Process” includes packing, marking, and shipping Goods with a parcel carrier to the address provided by the Company (including via the Order Interface Technology) and providing the Company with tracking information.
2. Packaging and Labeling. Vendor will properly pack, mark, and ship Goods in accordance with applicable law and industry standards and will provide the Company with records and documentation relating to the shipment of the Goods if and as requested by the Company.
3. Returns and Refunds. Eligibility for returns and refunds will be governed by the Company’s then-in-effect return policy which can be found at shop.epicgardening.com/pages/return-and-refund-policy. Notwithstanding the foregoing, the Company may make determinations in its sole discretion whether a Good is eligible for a return and/or refund. Vendor will be responsible for refund costs and costs of return shipping, unless the Company’s policy places the burden of return shipping on the end-customer. Returns will be made directly to Vendor.
4. Customs / Export. Upon the Company’s request, Vendor will provide all applicable information related to customs or export/import rules and regulations compliance, including any Export Control Classification Numbers (ECCN) for the Goods.
Risk of Loss. Notwithstanding any agreement between the Company and Vendor relating to transfer of title or responsibility for shipping costs, Vendor will bear all risk of loss or damage regarding the Goods until the Goods are delivered in accordance with the terms of the Agreement.
Intellectual Property Rights.
1. Limited License – Company’s Use of Vendor’s Branding. If the Goods will display trademarks, trade names, logos, or other branding of Vendor, or any names, images or likenesses, and/or any of Vendor’s copyrighted material (collectively, the “Vendor’s Soft IP”), Vendor grants to the Company and its affiliates a worldwide, irrevocable, non-exclusive right and license to use the Vendor’s Soft IP in connection with the Company’s marketing, sale and other commercialization of the Goods.
2. Limited License – Vendor’s Use of the Company’s Branding. If the supply of the Goods requires Vendor to affix the Goods with the Company’s trademarks, trade names, logos, or other branding of the Company, or any names, images or likenesses at the direction of the Company, and/or any of the Company’s copyrighted material (collectively, the “Company’s Soft IP”), the Company grants to the Vendor and its affiliates a non-exclusive right and license to use the Company’s Soft IP solely for the purpose of fulfilling its obligations under the Agreement.
Termination. The Company makes no commitment to any specified duration of the arrangement contemplated by this Agreement. The Company may remove the Goods from its stores at any time, with or without notice. Any such removal will not alter or limit these T&Cs, except that, for the avoidance of doubt, following such removal, the Company will have no obligation to purchase or offer for sale the Goods.
Confidentiality.
1. Scope of Confidential Information. From time to time, the Company may disclose or make available to Vendor information about the Company’s business affairs, goods and services, forecasts, and materials comprising or relating to intellectual property rights, trade secrets, customers, third-party confidential information, and other sensitive or proprietary information (such information, whether oral or in written, electronic, or in other form or media, whether or not marked, designated, or otherwise identified as “confidential”, as well as the terms of the Agreement, are referred to as “Confidential Information”). Confidential Information excludes information that at the time of disclosure:
  1. is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of the Agreement by Vendor or any of its representatives;
  2. is or becomes available to Vendor on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
  3. was known by or in the possession of Vendor or its representatives before being disclosed by or on behalf of the Company, as established by documentary evidence;
  4. was or is independently developed by Vendor without reference to or use of, in whole or in part, any of the Company’s Confidential Information; or
  5. is required to be disclosed pursuant to applicable law.
2. Protection of Confidential Information. Vendor will, until three years from the latest receipt of Confidential Information:
  1. protect and safeguard the confidentiality of the Company’s Confidential Information with at least the same degree of care as Vendor would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
  2. not use the Company’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; and
  3. not disclose any such Confidential Information to any person or entity, except to Vendor’s representatives who need to know the Confidential Information to assist the Vendor, or act on its behalf, to perform its obligations under the Agreement.
3. Vendor will be responsible for any breach of this Section 7 caused by any of its personnel or representatives.
4. Data Privacy. Notwithstanding anything herein to the contrary, with respect to any Confidential Information that constitutes personal data, personal information, personally identifiable information or similar information under applicable privacy or data security laws (collectively, “Personal Information”), Vendor will not (i) sell or share Personal Information, (ii) retain, use or disclose Personal Information for any purpose other than the business purpose specified in this Agreement, (iii) retain, use, or disclose the Personal Information outside of the direct business relationship between Vendor and the Company, or (iv) combine the Personal Information that Vendor receives from, or on behalf of, the Company (or its customers) with Personal Information that it receives from, or on behalf of, another person or persons, or collects from its own interaction with consumers. For the avoidance of doubt, the foregoing prohibits Vendor from “selling” Personal Information, as defined in the California Consumer Privacy Act of 2018 (as amended, the “CCPA”), and from retaining, using, or disclosing Personal Information outside of the direct business relationship between Vendor and the Company or for a “commercial purpose” (as defined in the CCPA). The Company retains the right to take reasonable and appropriate steps to ensure that Vendor uses the Personal Information transferred in a manner consistent with the Company’s obligations under the CCPA. The Company retains the right to, upon notice, take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Information. Vendor hereby certifies that it understands the obligations under this Section 7.4 and will comply with them, and agrees to notify the Company if Vendor is no longer able to meet the obligations under this Section 7.4.
  1. Vendor will comply with applicable obligations under the CCPA, as amended, with respect to Personal Information received by or on behalf of the Company or that pertains to Personal Information of the Company’s customers.
  2. Vendor will use reasonable security measures appropriate to the nature of any Personal Information in its possession or control to protect the Personal Information from unauthorized access, destruction, use, modification, or disclosure.
  3. The Parties acknowledge and agree that Vendor’s access to Personal Information is not part of the consideration exchanged by the parties in respect of the Agreement.
  4. Vendor agrees to cooperate with the Company to further amend the Agreement as may be necessary to address compliance with applicable privacy or data security laws.
Certain Obligations of Vendor.
1. Customer Service and Support. The Company will be responsible for interacting with its customers with respect to the Goods, including all customer services or claims handling. Vendor will not interact directly with the Company’s customers. Unless otherwise agreed, Vendor will use commercially reasonable efforts to assist the Company with any questions or complaints from the Company’s customers, and will respond to the Company’s requests within 24 hours.
2. Compliance with Laws. Vendor will at all times comply with all laws, rules and regulations applicable to the subject matter of the Agreement and Vendor’s obligations under the Agreement, including Vendor’s manufacture, sale and delivery of the Goods (including, for the avoidance of doubt, any customs or export/import obligations or duties, and any geographical restrictions relating to where the Goods may be shipped or sold to).
3. Ingredients and Materials Disclosure. Upon request by the Company from time to time, Vendor will promptly provide to the Company, in such form and details as the Company requests, an accurate list of all ingredients and materials incorporated in the Goods, including amounts and/or proportions, as well as information as to the source of such ingredients and materials.
4. Duty to Notify. Vendor will promptly provide written notice to the Company of any of the following events or occurrences, or any facts or circumstances reasonably likely to give rise to any of the following events or occurrences:
  1. any failure by Vendor to perform any of its obligations under the Agreement;
  2. any delay in delivery of the Goods;
  3. any defects or quality problems relating to the Goods; or
  4. any change of majority ownership of Vendor;
Representations and Warranties.
1. Vendor’s Representations and Warranties. Vendor represents and warrants to the Company that:
  1. if Vendor is an entity, it is duly organized, validly existing and in good standing in the jurisdiction of its formation and has full power and authority to enter into the Agreement and perform its obligations hereunder;
  2. the Agreement will constitute the legal, valid, and binding obligation of Vendor; and
  3. Vendor owns or otherwise has all required rights (1) to use the Vendor’s Soft IP in connection with the Goods and (2) if applicable, to grant to the Company the license described in Section 5.1.
2. Company’s Representations and Warranties. The Company represents and warrants to Vendor that:
  1. the Company is duly organized, validly existing and in good standing in the jurisdiction of its formation and has full power and authority to enter into the Agreement and perform its obligations hereunder;
  2. the Agreement will constitute the legal, valid, and binding obligation of the Company; and
  3. the Company owns or otherwise has all required rights (1) to use the Company’s Soft IP in connection with the Goods and (2) if applicable, to grant to Vendor the licenses described in Section 5.2.
Recalls.
1. Recall Campaigns. If the Company, Vendor or any governmental authority determines that any Goods sold under this Agreement are defective and a recall campaign is necessary, either Party may implement such recall campaign. Without limiting the Company’s other rights under the Agreement, if a recall campaign is implemented, then at Company’s option and Vendor’s sole cost, Vendor shall promptly either repair or replace, or credit or refund the price for, all such returned Goods. The foregoing will apply even if any applicable product warranties of Vendor, or return/refund rights of the Company, have expired.
2. Liability. Vendor is liable for all of the Company’s costs associated with any recall campaign if such recall campaign is based on a reasonable determination that either:
  1. the Goods are defective or otherwise fail to any warranties under the Agreement or applicable law; or
  2. the basis for the recall arose from Vendor’s negligence or willful misconduct.
Indemnification.
1. Vendor will indemnify, defend, and hold harmless the Company and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees, and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, incurred by any Indemnified Party (collectively, “Losses”), arising out of or resulting from any claim of a third party alleging:
  1. material breach or non-fulfillment of any representation, warranty, or covenant under the Agreement by Vendor or Vendor’s personnel;
  2. any grossly negligent or more culpable act or omission of Vendor or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under the Agreement;
  3. any bodily injury, death of any person, or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Vendor or its personnel; or
  4. any failure by Vendor or its personnel to materially comply with any applicable laws.
2. Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in the Agreement, Vendor is not obligated to indemnify or defend any Indemnified Party against any claim (whether direct or indirect) to the extent such claim or corresponding Losses arise out of or result from an Indemnified Party’s or its personnel’s:
  1. gross negligence or more culpable act or omission (including recklessness or willful misconduct); or
  2. bad faith failure to materially comply with any of its obligations set forth in the Agreement.
3. Intellectual Property Indemnification.
  1. Vendor shall defend, or at the Company’s option cooperate in the defense of, hold harmless and indemnify, including reasonable legal fees, the Indemnified Parties from and against all Losses arising out of or resulting from any third-party claim alleging that any of the Goods infringes any intellectual property right. In addition, if such a claim is or is likely to be made, Vendor will, at its own expense, exercise the first of the following that is practicable:
    1. obtain for the Company the right to continue to use and sell the Goods consistent with the Agreement;
    2. replace the Goods with non-infringing ones that comply with the Agreement; or
    3. at the Company’s request, accept the cancellation and return (at Vendor’s expense) of infringing Goods without the Company having any cancellation liability and refund to the Company any amount paid for such infringing Goods.
  2. Vendor will immediately notify the Company if it becomes aware of a claim that the Goods infringe on the intellectual property rights of a third party.
4. Exceptions to Vendor’s Intellectual Property Indemnification. Notwithstanding anything to the contrary in the Agreement, Vendor is not obligated to indemnify or defend any Indemnified Party against any claim (whether direct or indirect) under Section 12.3 to the extent such claim or corresponding Losses arise out of or result from:
  1. the circumstances described in Sections 12.2(a) or 12.2(b);
  2. use of the Goods in combination with any products, materials or equipment supplied to the Company by a person other than Vendor or its authorized representatives, if the infringement would have been avoided by the use of the Goods not so combined; or
  3. any modifications or changes made to the Goods by or on behalf of any person or entity other than Vendor or its representatives, if the infringement would have been avoided without such modification or change.
Limitation of Liability. EXCEPT FOR LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, NEITHER THE COMPANY NOR ITS REPRESENTATIVES WILL BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO ANY BREACH OF THE AGREEMENT, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, 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.
Insurance Requirements.
1. Coverages. Without limiting Vendor’s other obligations and liabilities, including its obligations to indemnify the Company, Vendor will, at its own expense, maintain and carry in full force and effect at least a commercial general liability policy, written on an occurrence basis, with limits no less than $1,000,000 for each occurrence and $2,000,000 in the aggregate, including bodily injury and property damage and products and completed operations and advertising injury. Such policies will be in effect from the date of the first purchase of Goods by the Company from Vendor and will continue without interruption until at least two years following the date of the Company’s latest purchase from Vendor.
2. Certificates. Upon the Company’s request, Vendor will provide the Company with copies of certificates of insurance for all insurance coverage required by the Agreement, and Vendor will not do anything to invalidate such insurance.
General Contract Terms.
1. Governing Law; Venue. The Agreement and any action related thereto will be governed, controlled, and interpreted by and under the laws of the State of Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Any disputes under the Agreement may be brought in the state courts and the Federal courts for Broomfield County, Colorado, and the parties hereby consent to the personal jurisdiction and exclusive venue of such courts.
2. Setoff Permitted. The Company will at all times be permitted to set off or recoup any liability it owes to Vendor against any liability for which the Company determines in good faith Vendor is liable to the Company or its affiliates.
3. Binding on Successors. The Agreement will be binding on and will inure to the benefit of the parties hereto and their heirs, administrators, successors, and assigns.
4. Assignability. Neither Party will assign or transfer any rights or obligations under the Agreement without the prior written consent of the other Party and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void, except that a Party that is a legal entity may assign the Agreement without such consent by way of merger or acquisition (regardless of form), or to a buyer of all or substantially all of such Party’s assets. The terms of the Agreement will be binding upon assignees.
5. Notices. All notices or reports permitted or required under the Agreement will be in writing and will be delivered by personal delivery, electronic mail, or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, five days after deposit in the mail, or upon electronic transmission (provided that the sender does not receive any “bounce-back” or other indication of delivery failure).
6. Entire Agreement; Amendments. The Agreement constitutes the entire agreement between the parties relating to the subject matter covered herein and supersedes any and all previous discussions and agreements between the parties, whether written or oral, relating thereto. The Agreement may not be altered, amended, or modified except in a written document executed by authorized representatives of both parties.
7. Waiver. No waiver by either Party of strict compliance with all terms and conditions of the Agreement will constitute a waiver of any subsequent failure of the other Party to comply strictly with each and every term and condition hereof. No failure of either Party to exercise any right or remedy available to it at any time will be deemed a waiver of its rights to do so at any subsequent time.
8. Severability. In the event that any one or more of the provisions of the Agreement or any word, phrase, clause, sentence or other portion thereof will be deemed by a court of competent jurisdiction to be unenforceable or invalid for any reason, such provision or portion thereof will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. The validity and enforceability of the remaining provisions or portions hereof will continue unimpaired.
9. Counterparts. The Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.