Vendor terms and conditions


The following terms and conditions (the “T&Cs”) are part of each purchase order (each, a “PO”) relating to the purchase of goods by Epic Gardening, Inc. or one of its affiliates (as applicable, the “Company”), and are binding upon the vendor associated with the PO (“Vendor”).  The Company and the Vendor are referred to as the “Parties”.  The PO and these T&Cs 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 PO and these T&Cs will exclusively govern and control each parties’ respective rights and obligations regarding the purchase and sale of the goods identified in the PO.  If any term in a PO conflicts with any term in these T&Cs, the PO will control.


  1. Purchase of Goods; Payment.
    1. Pursuant to the terms, conditions and specifications described in the PO and these T&Cs, the Company will purchase the good identified in the PO (the “Goods”), and Vendor will manufacture (if applicable) and sell such goods to the Company, at the prices described in the PO.
  2. Shipment and Delivery.
    1. Shipment and Delivery.  Time, quantity and delivery to the destination are of the essence under the Agreement.  If Vendor does not comply with its delivery obligations, without limiting the Company’s rights under the Agreement or applicable law, the Company may, at Vendor’s sole cost and expense, (a) approve a revised delivery date, or (b) require expedited shipping.  Unless otherwise expressly agreed to by the Parties in writing, Vendor may not make partial shipments of Goods to the Company.
    2. Packaging and Labeling.  Vendor will properly pack, mark, and ship Goods as instructed by the Company and otherwise 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. Inspection and Rejection.
      1. If the Company determines, in its sole discretion, that Goods delivered under the Agreement do not conform with the specifications in the PO or are otherwise defective, the Company may, at its option:
        1. reject (or return, if such Goods have been returned to the Company by a customer) such Goods for a refund plus any inspection, testing, handling or transportation charges paid for by the Company;
        2. require prompt correction or replacement of such Goods on the Company’s written instruction, whether or not the Goods are still in the possession of the Company or have already been sold to the Company’s customers; or
        3. in any case, retain such Goods.
    4. Customs / Export.
      1. 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.
  3. Title and Risk of Loss.
    1. Title.  Title to the Goods passes to the Company upon the earliest to occur of (a) delivery of the Goods to the Company, (b) payment of any portion of the price for such Goods by the Company, or (c) the Company’s acceptance of the Goods.  Title will transfer to the Company even if Vendor has not been paid for such Goods, provided that the Company will not be relieved of its obligation to pay for the Goods in accordance with the terms of the Agreement.
    2. Risk of Loss.  Notwithstanding any agreement between the Company and Vendor relating to transfer of title or responsibility for shipping costs, risk of loss to Goods shipped under any PO passes to the Company upon receipt by the Company, and Vendor will bear all risk of loss or damage regarding the Goods until the Company’s receipt of such Goods in accordance with the terms of the Agreement.
  4. 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 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 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.
    3. Terms Specific to Manufacturing Arrangements.  This Section 4.3 applies only to Vendors that are providing manufacturing services using the Company’s proprietary designs (other than the Company’s Soft IP), technology, or know-how (all intellectual property rights associated with the foregoing are referred to in this Agreement as “Company Technology”).
      1. The Company grants to Vendor and its affiliates a non-exclusive right and license to use Company Technology solely for the purposes of fulfilling its obligations under the Agreement.  Vendor will not, at any time, use any Company Technology for any other purpose, including manufacturing or selling goods that are similar to the Goods.
  5. Termination of POs.  The Company may cancel any individual PO with or without cause effective immediately, upon notice to Vendor.  Upon receipt of notice, Vendor will cease all work and purchases associated with the Goods.  If at the time Vendor receives such notice it had made meaningful progress towards the completion of the Goods, the Company will owe Vendor a payment proportional to its progress.  Upon request by the Company, Vendor will delivery to the Company any partially or completed Goods.  The cancellation of any or all POs will not alter or limit these T&Cs.
  6. 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, 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”) under the Agreement.  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 the later of (i) three years from the latest receipt of Confidential Information or (ii) three years from the most recent PO between Vendor and the Company:
      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 6 caused by any of its personnel or representatives.
  7. Certain Obligations of Vendor.
    1. 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 (if applicable), sale and delivery of the Goods (including, for the avoidance of doubt, any customs or export/import obligations or duties).
    2. 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.
    3. 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;
  8. 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 4.1.
    2. The 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 and Company Technology in connection with the Goods and (2) if applicable, to grant to Vendor the licenses described in Sections 4.2 and 4.3.
  9. Product Warranties.
    1. Warranty.  Vendor warrants to the Company that for a period of one-year from the date the Goods are received by the Company (the “Warranty Period”):
      1. the Goods will be free from defects in design (except to the extent based on the Company’s designs or specifications), material, and workmanship;
      2. the Goods will be fit and safe for their intended purpose; and
      3. the Goods will conform to any and all specifications set forth in the PO.
    2. Remedies.  During the Warranty Period, if the Goods do not comply with the warranties in the Agreement, in addition to (and not in lieu of) other remedies available at law or in the Agreement, Vendor will, at the Company’s election:
      1. repair or replace such Goods; or
      2. credit or refund the price of such Goods plus any inspection, test, and transportation charges paid by the Company.
  10. Recalls.
    1. Recall Campaigns.  If the Company, Vendor or any governmental authority determines that any Goods sold to the Company are defective and a recall campaign is necessary, either Party may implement such recall campaign.  The Company must return such defective Goods to Vendor or destroy such Goods, as determined by Vendor, at Vendor’s sole cost and risk.  Without limiting the Company’s other rights under the Agreement, if a recall campaign is implemented, at Company’s option and Vendor’s sole cost, the 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 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 fail to conform to either the warranties under the Agreement or applicable law; or
      2. the basis for the recall arose from Vendor’s negligence or willful misconduct.
  11. 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 or the Company’s receipt or use thereof 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. modify the Goods so they are non-infringing and in compliance with the Agreement;
        3. replace the Goods with non-infringing ones that comply with the Agreement; or
        4. 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 11.3 to the extent such claim or corresponding Losses arise out of or result from:
      1. the circumstances described in Sections 11.2(a) or 11.2(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.
  13. 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 Vendor’s first PO with the Company and continue without interruption until at least two years following the date of Vendor’s latest PO with the Company.
    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.
  14. 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.