Terms and Conditions
Standard Terms and Conditions of Sale
As used herein, “Customer” refers to the party who submits or executes a Purchase Order. “TCG” means The Calico Group, Inc., the supplier.
TCG, and the Customer, agree that the following terms and conditions (the “Terms”) are the only terms that govern TCG’s sale to Customer of the goods (the “Products”) listed in the PO to which these Terms are attached or in connection with which they are issued, unless otherwise agreed in writing by TCG’s authorized representative:
1. Non-disclosure Agreement– In connection with the PO, Customer and TCG may disclose or make available to the other party its trade secrets or confidential or proprietary information, and each party agrees that any such information as disclosed or otherwise made available to it , designated or not, will not be used or disclosed by such party except as required for the party to exercise its rights or perform its obligations under the PO, and will be protected and safeguarded from disclosure or unauthorized use with at least a reasonable degree of care.
2. Customer Requirements/ Expectations– Customer requirements shall be stated on P.O. in agreement with the quoted requirements. If the P.O. requirements differ, TCG reserves the right to requote the price prior to executing the P.O.
3. Acceptable Quality Levels– Unless otherwise specified in the P.O., TCG’s supply of Products is subject to an AQL of 2.5 for significant or critical defects (the “AQLs”).
4. Delivery of Product– Product shall be packaged in accordance with the purchase order, specifications, customer’s documented instructions, or good industry practices to provide reasonable protection against damage during shipment. Quantities shall be delivered within +/-10% of the ordered quantity. Shipping exact quantities will cost additional 10%. In the event there is an overage, TCG will invoice the Customer accordingly and payment is due upon delivery. Each shipment is a separate sale. Customer will pay for the units shipped whether such shipment is in whole or partial fulfillment of a PO. Products will be delivered within a reasonable time after receipt of PO, subject to availability. TCG will not be liable or responsible to Customer or be deemed in default for any failure or delay in fulfilling or performing any provision herein when and to the extent resulting from circumstances beyond its reasonable control.
5. Product Acceptance/Rejection– Once delivered to the Customer, the Product may be inspected but shall be deemed accepted unless Customer sends written notice of rejection within 10 calendar days of delivery, which notice will specify quantity received, PO number, quantity sampled, quantity defective or non-conforming and a description of each nonconformity or defect. TCG reserves the right to verify and validate any such claim. If TCG validates the claim, it will provide a Return Merchandise Authorization (“RMA”) and either issue replacements at TCG expenses, or issue a credit for associated pricing, but not with respect to Product supplied by TCG with levels of defects within AQL’s. TCG’s liability is limited to replacing the Products or crediting the pricing for any nonconforming Products. TCG shall not be liable for any consequential damages under any circumstances.
6. LIMITED WARRANTY. Subject to the AQL, TCG warrants only that Products will comply in all material respects with specification on the PO upon delivery and for the specified shelf-life, measured from the date of delivery to Customer. Standard product shelf-life shall be limited to one (1) year. Shelf life for vape hardware not containing any form of battery shall be limited to six (6) months. Shelf life for vape hardware containing a battery shall be limited to three (3) months. TCG will provide storage and handling instructions (the “Instructions”) at the time of delivery of the Products; if Customer does not receive the Instructions, it must contact TCG for replacement Instructions. This limited warranty only applies to Products that are handled and stored according to the Instructions. TCG’S SOLE OBLIGATION FOR A REMEDY TO CUSTOMER FOR A BREACH OF THE LIMITED WARRANTY SHALL BE THE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS OR, AT THE SOLE OPTION OF TCG, RETURN OF THE PRODUCT AND REFUND OF THE PURCHASE PRICE. As industry practices and recommendations vary, TCG is not liable for issues related to filling and capping of vape cartridges and disposable pens; in all cases Customer is solely responsible for determining suitability for use, and in no event will TCG be liable in this respect. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, TCG MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF COMPLIANCE WITH LAW OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE HEREBY DISCLAIMED.
7. Adjustments for Industry-Wide Price Variance- All quotes submitted to the Customer are prepared with the information available at a given time, therefore prices are subject to adjustment and will be invoiced at TCG’s prices in effect at the time of shipment.
8. Order Changes– Once a PO is placed, any design or process changes requested by a customer shall be requested in writing and are subject to TCG approval. TCG shall notify customers of the price and performance impact of the requested change but will receive approval before implementation.
9. Production Documentation. TCG will collaborate with Customers in providing reasonably requested data and documentation, provided that Customer shall be responsible for any additional cost incurred to gather data or maintain documentation beyond reasonable industry practices.
10. Intellectual Property. Except if and to the extent otherwise agreed in a writing executed by TCG’s authorized representative, and as between TCG and Customer, TCG retains all proprietary and intellectual property rights in and to all designs, specifications and data related to Products, including to the creative solution prepared by TCG.
11. Billing and Payment. TCG will issue a deposit invoice immediately upon PO approval from Customer. Deposits as specified on the invoice are due prior to TCG placing orders with its suppliers. Invoice balance is due immediately upon delivery of product, unless otherwise specified within the Purchase Order. If hybrid shipping is utilized partial balance payment is due upon receipt of first delivery. All prices are exclusive of applicable federal, state, and local sales, use and excise taxes and surcharges, all of which are for Customer’s account. Customer shall not withhold payment of any amounts due and payable hereunder by reason of any setoff of any claim or dispute with TCG of any nature whatsoever. In addition to all other remedies available under these Terms or the PO, under any separate credit application or similar agreement, or at law, none of which are waived by TCG’s exercise of any rights hereunder: (a) if Customer fails to pay any invoiced amounts when due, TCG may suspend delivery of Products, declare all invoice amounts due and payable without notice to Customer, and/or charge a finance fee of 1½% (or the highest rate allowed by law) on past due payments, calculated daily and compounded monthly; (b) if at any time TCG determines that the credit or financial responsibility of Customer is impaired or otherwise unsatisfactory to TCG, or if Customer is in default under any of its obligations herein or in any other contract with TCG, TCG may require advance cash payment or satisfactory security to be given by Customer upon demand by TCG, or TCG may require any other credit terms that TCG, in its sole judgment, deems reasonable, and may withhold shipments or cease production of work in process until such advance payment or security is received or such other credit terms are satisfied and (c) as collateral security for the payment of pricing, Customer hereby grants TCG a perfected security interest in all products purchased by Customer from TCG (and all proceeds thereof) to secure any and all obligations of Customer to TCG, including but not limited to any obligation of payment, and hereby appoints TCG as its attorney-in-fact to make, execute and endorse any note, check, draft, money order, instrument, or other medium of payment and authorizes TCG to affix Customer’s name to any other document to enforce this security interest, as TCG authorized to file and record any financing statements in its discretion. Additionally, if TCG commences any action or actions, or otherwise seek to enforce this Agreement against Customer, Customer will reimburse TCG for all costs incurred in any such actions, including reasonable attorney fees, court costs and other collection expenses incurred by TCG, whether or not suit is filed.
12. Order Cancelation– In case of an early cancellation of an order by Customer, the Customer shall be liable for cancellation charges designated by TCG, which cancellation charge will include allocated reasonable cost of tooling incurred expenses, and inventory (work in process (WIP) or finished goods). Deposits made on cancelled orders are non-refundable and will be applied as a credit on account towards future orders.
13. Indemnity; LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, Customer shall defend and indemnify TCG, its employees, owners, executives and manufacturing partners against all liabilities or losses of any nature arising under all circumstances associated with this PO, including without limitation Customer’s failure to comply with applicable law or to maintain required licenses, permissions, authorizations, consents and/or permits, in each case in connection with its obligations hereunder and/or with respect to the operation of its business. UNDER NO CIRCUMSTANCES WILL TCG BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED OR ECONOMIC LOSSES OR DAMAGES UNDER OR ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT TCG WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY SUCH CLAIM MAY BE BASED. TCG’S AGGREGATE LIABILITY ARISING OUT OF ANY PO, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE SHALL NEVER BE GREATER THAN THE RELEVANT INVOICE AMOUNT TO BE PAID TO TCG (EXCLUSIVE OF EXPENSES AND COSTS AND ANY FEE THEREON) IN RESPECT OF THE RELEVANT PO. SHOULD THE REMEDIES AVAILABLE TO CUSTOMER HEREUNDER BE FOUND INADEQUATE OR TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE FOR ANY REASON WHATSOEVER, CUSTOMER AGREES THAT RETURN OF THE AMOUNT PAID BY CUSTOMER TO TCG UNDER THE APPLICABLE ORDER WILL PREVENT THE REMEDIES FROM FAILING OF THEIR ESSENTIAL PURPOSE AND SUCH PAYMENT WILL BE CONSIDERED BY CUSTOMER AS A FAIR AND ADEQUATE REMEDY. Any action for breach of this contract (other than for non-payment of purchase price) must be commenced within one year after the occurrence of the breach.
14. Dispute Resolution– All matters arising out of or relating to this Agreement and the terms and conditions, herein, shall be governed by and construed according to the laws and of the State of Nevada, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action arising out of or relating to this Agreement shall be brought exclusively in the state and Federal courts located in Clark County, Nevada. Each Party hereby irrevocably consents to the exclusive jurisdiction of such courts in any such suit, action or proceeding, and waives any objection to venue or inconvenient forum.
15. Entire Agreement. Except as otherwise specified herein or otherwise agreed in writing by TCG’s authorized representative, these Terms and the PO (the “Agreement”) together form the entire agreement between the parties with respect to supply of Products under the PO, superseding and replacing all prior or contemporaneous understandings, agreements, negotiations, representations, warranties and communications, both written and oral, and excluding any of Customer’s general terms of purchase, including as may be submitted to TCG at any time or in any manner. These Terms may only be amended or modified in a writing signed by an authorized representative the party to be bound. If any term of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will affect any other term of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of the Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. All notices and other communications hereunder will be sent in writing by personal delivery or nationally recognized overnight delivery to the address of the other party set forth on the Purchase Order, provided that TCG may use or consent to the use of electronic mail for routine communications and otherwise in its discretion. Customer may not assign any of its rights or delegate its obligations hereunder without the prior written consent of TCG. No assignment or delegation relieves Customer of any obligations hereunder. Any purported assignment or delegation in violation of this section is null and void. The relationship between the parties is that of independent contractors. Nothing herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party shall have authority to contract for or bind the other party in any manner whatsoever. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.