STORZ & BICKEL AMERICA, INC. TERMS AND CONDITIONS OF SALE
§ 1 Scope
(a) This Sales Order Form, ("Sales Order") including these terms and conditions of sale, (“Terms and Conditions”), which are hereby incorporated by reference, (the "Agreement"), constitutes the entire agreement between Storz & Bickel America, Inc. (“Supplier” or “Our” or “We”) and the party identified as Buyer in the Sales Order herein, (the “Buyer”). These Terms and Conditions supersede all prior or contemporaneous agreements, negotiations, representations and warranties, and communications, whether written or oral.
(b) The Terms and Conditions shall apply in particular to all contracts concerning the sale and/or delivery of Supplier’s products. Unless otherwise agreed, the Terms and Conditions shall apply in the version that was applicable at the time of the Buyer’s order or, in any event, in the last version in written format provided to the Buyer and shall also apply as a framework agreement for similar future contracts without the necessity to refer to them in each individual case. Special Terms and Conditions apply to repairs; these are available at https://www.storz-bickel.com/legal.
(c) Our Terms and Conditions shall apply exclusively. Any deviating, opposing or supplementary terms and conditions of the Buyer shall not apply unless we explicitly agree to them, even if we make unconditional deliveries to the Buyer, despite having knowledge of such terms and conditions of the Buyer. Subsidiary agreements, amendments to this Agreement, supplements and special agreements require our express written consent by an authorized representative of each party. Fulfillment of Buyer's Sales Order does not constitute acceptance of any Buyer’s terms and conditions, nor does it entitle the Buyer to any recurring purchases. This is a one-time and final sale, with no right of return.
§ 2 Offer and contract conclusion
(a) Our offers are subject to change and are non-binding.
(b) Any order of Our products by the Buyer is considered a binding contract offer. Unless a specific term of acceptance has specifically been agreed upon, We are authorized to accept Sales Orders within three (3) weeks of receipt. We may accept or reject any order in Our sole discretion. No Sales Order is binding on Supplier unless accepted by Supplier in writing.
Supplier may, in Our sole discretion, without liability or penalty except as provided elsewhere in this Agreement, cancel any Sales Order in whole or in part, if Supplier discontinues its sale of ordered Products or reduces or allocates its remaining inventory of ordered Products elsewhere; or if Buyer violates its payment obligations or is in breach of this Agreement.
(c) Performance specifications for our products (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as depictions of the same (e.g. drawings and pictures) are only indicative as far as their applicability for the contractually intended purpose does not require an exact match. They do not constitute guaranteed quality features, but are descriptions or identification indicators of the delivery. Deviations customary in the trade and deviations due to statutory provisions or that represent technical improvements, and substitutions of structural components by equivalent parts are allowed, as far as they do not affect the intended purpose under the Agreement.
§ 3 Delivery and delay in delivery, partial delivery
(a) Unless a fixed-date transaction or other special binding delivery times and dates have been agreed to in written format, information provided by us with respect to times and target dates is always non-binding. Any delivery times and dates commence when we send our order confirmation. Any agreed to delivery date is fulfilled if our products leave our warehouse at the agreed to date or have been announced as ready for shipment. If we do not meet the agreed upon delivery date, delay in delivery shall only apply after expiry of a reasonable extension, granted by the Buyer in writing, of at least two weeks.
(b) If the failure to meet the delivery times and dates is a result of force majeure or other events that could not be foreseen at the time when the contract was concluded and that are not our responsibility, the agreed delivery times and dates - even within a delay period - shall be reasonably extended. This shall also apply if these circumstances occur with our suppliers, sub-suppliers or subcontractors. We will inform the Buyer as fast as possible when force majeure occurs and when it has been resolved. If the obstruction takes longer than three (3) months or if it has been determined that it will take longer than three (3) months, each party may withdraw from the contract. The right of each party to terminate the contract for an important reason in the event of long-lasting force majeure shall remain unaffected. Damages that are caused by force majeure are not to be replaced.
(c) We are authorized to make partial deliveries within the agreed delivery times and dates.
§ 4 Delivery, transfer of risk
(a) Unless otherwise agreed, our products are delivered EXW (pursuant to Incoterms 2020) from either our warehouse in Oakland, California or Tuttlingen, Germany, at Our option which is also the place of fulfillment for the delivery and any subsequent performance. Upon Buyer’s request and cost, our products will be shipped to a different destination (sale by dispatch). Unless otherwise agreed upon, we have the right to determine the type of shipping (in particular the transportation company, dispatch route, packaging).
(b) The risks of coincidental destruction and coincidental deterioration of the products are transferred to the Buyer no later than upon transfer to the Buyer. In the case of sale by dispatch, the risk of coincidental destruction and coincidental deterioration of the products and the risk of delay are transferred to the Buyer as soon as the delivery is consigned to the carrier, forwarding agent or other third party commissioned with the shipping. Except in cases of Supplier’s willful misconduct or gross negligence, Supplier shall not be liable to Buyer for delays in delivery or damage to the Goods while in transit, irrespective of whether Supplier or Buyer determined the mode of transportation.
(c) Except as provided under Section 7(b) herein, all sales of Products to Buyer under this Agreement are final and made on a one-way basis and Buyer has no other right to return Products purchased under this Agreement. Buyer is responsible for all credit risks regarding, and for collecting payment for, all Products that it resells. The inability of Buyer to collect the purchase price for any product does not affect Buyer’s obligation to pay Supplier for any Good.
§ 5 Prices and payment terms
(a) Unless otherwise agreed, the prices that were valid at the time when the contract was concluded for the scope of delivery specified in the order confirmations shall apply. Our prices are in the currency indicated in the Sales Order net ex stock (EXW pursuant to Incoterms 2020) plus statutory value added tax.
(b) In the case of sale by dispatch, the Buyer shall bear the transportation costs ex stock and the costs of any transportation insurance that the Buyer may be requesting. Supplier may charge Buyer our then-standard small order handling charge for any order requiring Supplier to ship Products in less than its standard box-lot quantities. Any customs duties, fees, sales or excise taxes, and other public dues are also the Buyer’s responsibility. Buyer shall provide Supplier with a valid sales tax exemption certificate stating Goods are purchased for resale purposes. Any Goods purchased for purposes other than resale shall be identified as such by Buyer.
(c) If the agreed prices are based on our catalog prices, changes to our catalog prices entitle us to an appropriate price change if more than 4 months have passed between the contract conclusion and the delivery.
(d) Payment shall be by wire transfer, certified check, or bank draft, in accordance with the Supplier’s instructions on the invoice or otherwise. Payment shall not be deemed to have been made unless and until the payment instrument has been paid by the bank on which drawn. The Buyer shall be responsible for payment of all bank charges. Unless agreed otherwise in individual cases as indicated in the applicable Sales Order, we always only deliver the products against prepayment. If purchase on account has been agreed to, our invoices are due strictly net within seven (7) business days from the invoice date. The Buyer shall perform its payment obligations under this Agreement without set-off, deduction, recoupment or withholding of any kind for amounts owed or payable by Supplier, whether relating to Supplier’s or Supplier’s Affiliates’ breach, bankruptcy, or otherwise and whether under this Agreement, any purchase order thereof, any other agreement between (i) the Buyer or any of its Affiliates and (ii) Supplier or any of its Affiliates, or otherwise.
(e) The Buyer shall notify Supplier of any dispute with an invoice within five (5) business days from the Buyer’s receipt of such invoice, or else shall be deemed to have waived its right to dispute the invoice. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, the Buyer shall continue performing its obligations under this Agreement during any such dispute.
(f) Buyer shall pay interest on all late payments, calculated daily and compounded monthly, at the lesser of the rate of one and a half percent (1.5%) per month or the highest rate permissible under applicable law, without any further reminder. The specification or charging of interest shall not be deemed an agreement to extend credit. In the event that the Buyer defaults on payments, the Buyer shall be liable for Supplier’s costs of collection, including reasonable attorney’s fees. For the avoidance of doubt, upon failure to pay for Products, Supplier may exercise any rights or remedies available to it under this Agreement, including but not limited to enforcing a lien or security interest on the Products sold to the Buyer, and all proceeds thereof, and any interest, costs, and expenses related thereto. We reserve the right to assert further claims.
(g) Should reasonable doubts arise after acceptance of orders as to the Buyer’s ability to pay or if invoices that are due are not paid or any granted payment term is exceeded, pursuant to the statutory provisions on refusal of performance, we are entitled to withdraw from the Agreement, if applicable after setting a deadline.
§ 6 Reservation of Ownership
(a) Until full payment of all claims against the Buyer at the current date or that we will be entitled to in the future, including all account balance claims from the business relationship, we reserve the right of ownership of the products.
(b) As long as the title has not been transferred to the Buyer, the Buyer is obligated to treat the products that are subject to the retention of title with due care.
(c) The Buyer may use products that are subject to retention of title and process them in the course of regular business and sell them as long as the Buyer is not in default of payment. However, the Buyer may not pledge or assign as security any products under retention of title. In the event of attachment of the products that are subject to retention of title by third parties or other interventions by third parties prior to transfer of ownership, the Buyer must inform the third party of our ownership and immediately notify us in writing.
(d) In the event of resale of any products subject to retention of title, the Buyer already now assigns as security all payment requests arising from the resale against Buyer’s clients to the full extent, and all payments received, and in the case of co-ownership of the Buyer of the products subject to the retention of title, the corresponding co-ownership share. The same applies to Buyer’s claims with respect to products under the retention of title that are the result of a different legal reason against Buyer's clients or third parties (in particular claims due to unlawful acts and claims for insurance payments) and including all balance claims from outstanding accounts. We hereby accept these assignments. The Buyer may collect these claims that are assigned to us on its account in its name as long as we do not revoke this authorization. This shall not affect our right to collect these claims ourselves. However, we will not assert the claims and will not revoke the aforementioned authorization to collect the claims as long as the Buyer properly fulfills its payment obligations. However, if the Buyer violates the Agreement, in particular if the Buyer defaults on the payment of a payment request, We shall be entitled to demand that the Buyer discloses the assigned claims and corresponding debtors, informs each respective debtor of the assignment, surrenders all documents to us and provides us with any information that we require for asserting the claim.
(e) If the realizable value of securities exceeds our claims by more than 10%, then at the request of the Buyer, we shall release securities of our choice.
(f) As collateral security for the payment of the purchase price of the Products, the Buyer hereby grants to Supplier a lien on and security interest in and to all of the right, title and interest of the Buyer to the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under applicable personal property security legislation.
§ 7 Representations and Warranties
(a) Unless longer periods are compulsory by applicable law, the warranty period for the products is twelve (12) months as of the delivery date.
(b) The products must be thoroughly inspected immediately upon delivery to the Buyer or a third party appointed by the Buyer. The products shall be deemed as accepted by the Buyer with respect to apparent defects or deviation from the Sales Order if We have not received a written notice of defects or deviation within five (5) business days after delivery With respect to hidden defects, the delivery items are deemed as accepted by the Buyer if the notice of defect has not been received by us within five (5) business days after the date when the defect was apparent, however no later than twelve (12) months after transfer of risk. Negotiations regarding a complaint do not constitute a waiver of the objection of a late, insufficient or unjustified notice of defect. Upon Our request, a rejected product shall be returned to us free of carriage charges. If the notice of defect is justified, we shall reimburse the costs of the lowest priced shipping method; this shall not apply if the costs are increased due to the delivery item being located at a different location to the location of intended use.
(c) In the event of timely and justified material defects we are obligated and entitled, at our choice, to subsequent improvement or substitute delivery. The Buyer must grant us sufficient time and opportunity to carry out any seemingly necessary improvements or substitute deliveries. We are not liable for any consequential results. Should the subsequent improvement or delivery fail, i.e. it is not possible, not reasonable, it is refused or due to an unreasonable delay of the subsequent improvement, the Buyer is entitled to withdraw from the contract or appropriately reduce the purchase price. Rights arising from material defects are only applicable if the products exhibit a material defect at the time of transfer of risk. Unless material defects are our fault, rights arising from material defects are not applicable in the case of inappropriate or improper use, faulty installation or putting into operation by the Buyer or third parties, wear and tear, incorrect or negligent treatment or use, disregard of the operating instructions and inappropriate operating supplies. In addition, wear parts such as in particular Batteries, Balloons, Cooling Units, Charging Cables and adapters, Filling Chamber (Volcano), Tube, Screens, Dosing Capsule, accessories included with the devices, e.g., herb mill, filling aid, brush and other parts that are particularly affected by wear and tear are excluded from the warranty.
(d) With respect to damages due to deficiency of products or consequential damages caused by a defect, including loss of use, we shall be liable only within the limits outlined in Section 8 herein.
(e) BUYER REPRESENTATIONS AND Buyer in carrying out its responsibilities under this Agreement, agrees to conduct its obligations under this Agreement in compliance with all applicable federal, state and local laws, rules, regulations, ordinances, and standards, including but not limited to the laws, rules, regulations, and requirements of the U.S. Food and Drug Administration (“FDA”), the Controlled Substances Act (21 USC 801 et seq.), and the Drug Paraphernalia Act (21 USC 863). If applicable, Buyer shall comply with any state or local requirements for marketing or retailing the Products within adult-use or medical dispensaries, pharmacies, or clinics, seeking local legal counsel if needed. Any obligation to withhold or collect and remit any Taxes and any penalties and interest determined or assessed by a governmental authority for the failure or late withholding, collection or remittance of such Taxes is the sole responsibility of Buyer. For avoidance of doubt, the Supplier shall not be responsible for any duties in connection with Taxes owed on the distribution or resale of the Goods, including any registration, reporting, or submission of sales or tobacco, vapor, or ENDS excise taxes.
(f) RESTRICTIONS ON RETAIL SALE AND PROMOTION OF PRODUCTS. Buyer shall adhere to all directions, instructions and Supplier policies. Buyer hereby warrants that it shall not distribute or resell the products outside of the United States, or in any state or territory in which sale of the products are prohibited by law. Buyer shall not distribute or resell the products on Amazon.com, Ebay.com, or to any other online or e-commerce customer that re-sells products online. Buyer shall not make any medicinal or disease-related claims, or claims of efficacy or safety, or therapeutic benefits nor any association between cannabis and the products in publicity or marketing materials related to the products. Buyer acknowledges that the Supplier’s device products are meant for use with dry herbs only, and are not intended for use with tobacco or nicotine products, or with controlled substances. Buyer shall not sell any parts or accessories to adapt the device products to be used with liquid solutions or other non-intended substances. Buyer shall not make any materially misleading or untrue statements in publicity or marketing materials concerning the products. Except as explicitly authorized in writing with Supplier, Buyer shall not modify, alter, replace, reverse engineer, or otherwise change the products it resells to Customers.
(g) EVENT REPORTING. Buyer hereby warrants that it shall promptly report any complaint or adverse event, claim, or significant product safety problems about any product to Supplier no later than within ten (10) days of Buyer’s receipt of information, along with contact information for the affected customer, and Buyer, if applicable. Buyer shall promptly report to Supplier any regulatory or governmental action related to the products within 24 hours of Buyer’s receipt of information.
(h) AUDIT AND INSPECTION RIGHTS. If necessary for the enforcement of these Terms and Conditions, Supplier or its representatives may request and inspect the books and records required to be kept by Buyer in order to verify compliance with these terms. Supplier shall bear all of its own costs in connection with such inspections.
§ 8 Liability
We are liable pursuant to the provisions of the German Product Liability Act, where applicable. In addition, in the case of a specifically expressed guarantee, we shall only be liable for intentional and grossly negligent violations of duty and injuries to life, body or health that we are solely and directly responsible for. In any other case, We disclaim any and all liability. In no event shall Supplier be liable for any consequential, indirect, incidental, special, exemplary, or punitive damages, lost profits or revenues or diminution in value, arising from or relating to the Products, whether or not the possibility of such damages has been disclosed in advance by the Buyer or could have been reasonably foreseen by Supplier, regardless of the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based. In no event shall Supplier’s aggregate liability arising out of or related to a Sales Order exceed the total of the amounts paid to the Supplier for the products sold hereunder in the last 12 months. The extent that Our liability is excluded or restricted also applies to the personal liability of our affiliates, parent companies, officers, employees, legal representatives and vicarious agents.
§ 9 Data protection information
We hereby inform the Buyer that we collect, process and use the Buyer’s personal data, which we have received in connection with our business relationship, as allowed by the California Consumer Privacy Act, to the extent necessary for fulfilling the purposes included in our Data Privacy Declaration at (https://b2b.storz-bickel.com/privacy).
§ 10 Applicable Law and Forum
(a) All matters arising out of or relating to these Terms and Conditions and the contractual relationship between us and the Buyer and the rights and obligations arising thereunder shall be governed by, and construed in accordance with, the laws of the State of California, USA, without giving effect to any choice or conflict of law provision or rule. Supplier and Buyer agree that the Courts of the state of California shall have jurisdiction to entertain any action arising out of this sale. Buyer and Supplier agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
(b) Supplier and Buyer desire to resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the interpretation, enforceability, performance, breach, termination, or validity hereof, including, without limitation, this Section (each, a “Dispute”) without litigation in accordance with this Section. The party raising any Dispute shall promptly notify the other party in writing and dispute resolution discussions will begin within ten (10) Business Days after receipt of that notice. If any Dispute cannot be resolved through friendly consultation, either party may proceed to arbitration and the Dispute will be settled in accordance with the then current Comprehensive Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services (“JAMS”), (the “Rules”). JAMS shall administer the arbitration and, if there is conflict between the Rules and this Section, this Section’s provisions govern. The arbitration shall be held in San Francisco, California. The ruling will be a final and binding judgment and the award may be entered in any court of competent jurisdiction in the United States. The parties hereby waive any rights they may have under any law to apply to any court for relief from the provisions of this clause or from any decision of the arbitrator. The parties shall maintain the confidential nature of the arbitration proceeding and the award. Nothing herein shall preclude any party from seeking injunctive relief in the event that the Party perceives that without such injunctive relief, serious harm may be done to the party.
§ 11 Indemnification
Buyer shall and does hereby agree to defend, indemnify, and hold harmless Supplier against any claims or actions that may be brought against Supplier arising out of or in connection with the acts or omissions of Buyer in connection with this Agreement, including without limitation, the resale of the Products in the United States, and Buyer's breach of any of the representations, warranties, and obligations contained in this Agreement, including compliance with applicable state and federal laws and any local or state restrictions on selling vapor accessories within adult-use or medical dispensaries,
pharmacies, or clinics. In fulfilling its defense obligations, Buyer may employ counsel of its choice with Supplier’s consent, at Buyer's expense. Buyer will reimburse Supplier for any costs Supplier incurs in enforcing Buyer's obligations of this paragraph.
§ 12 Intellectual Property
Supplier does not transfer any of its Intellectual Property Rights in the Products to Buyer or its Affiliates, and Buyer and its Affiliates may not use any of Supplier’s Intellectual Property Rights other than to sell the products and perform its obligations under the terms and conditions of this Agreement.
Buyer acknowledges and agrees that: (a) Supplier (or its licensors) will retain all Intellectual Property Rights used to create, embodied in, used in and otherwise relating to the Supplier’s Products and primary packaging; (b) any and all Supplier’s Intellectual Property Rights are the sole and exclusive property of Supplier or its licensors; (c) Buyer shall not acquire any ownership interest in any of Supplier’s Intellectual Property Rights under this Agreement; (d) any goodwill derived from the use by Buyer of Supplier’s Intellectual Property Rights inures to the benefit of Supplier or its licensors; (e) if Buyer acquires any Intellectual Property Rights in or relating to any product (including any Supplier’s products) under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto, by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Supplier or its licensors, as the case may be, without further action by either Party; (f) Buyer shall neither register, nor have registered, any of Supplier’sIntellectual Property Rights or any intellectual property which are confusingly similar to the Supplier’s Intellectual Property Rights, in the United States or elsewhere; (g) Buyer shall not reserve any internet domain names which include any of Supplier’s Intellectual Property Rights or other marks or proprietary names owned by Supplier or which are confusingly similar to those owned by Supplier; (g) Buyer shall not register any site at social networking websites, including, without limitation, Instagram, Myspace, YouTube,Facebook, Xing, X (formerly Twitter), TikTok, Snapchat and LinkedIn, by including any of the Supplier’s Intellectual Property Rights, other marks,proprietary names or domain names owned by Supplier or which are confusingly similar to those owned by Supplier; (h) Buyer shall use Supplier’s Intellectual Property Rights only in accordance with this Agreement and any instructions of Supplier, and for greater certainty, Buyer shall not use any of Supplier's Intellectual Property Rights in the formulation or manufacture of any products to be sold by Buyer under its own or a third party's label; (i) Buyer shall not concede any rights concerning Supplier’s Intellectual Property Rights to third persons, and shall be prohibited from doing business with any third parties that infringe upon the Supplier’s Intellectual Property Rights.
Supplier shall be entitled to seek injunctive relief, in addition to such other remedies as may be available pursuant to Applicable Law or this Agreement, for any violation of this Section 12. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Supplier would suffer irreparable harm.
§ 13 Minimum Advertised Prices Policy
(a) Supplier’s minimum advertised prices (“MAP”) and MAP Policy are listed on https://b2b.storz-bickel.com/en-us/legal/map and are hereby incorporated by reference, and may be amended by Supplier from time to time upon written notice to Buyers. Buyer may set its own resale prices and terms to the Customers for S&B Products, taking into consideration current market conditions. Notwithstanding the foregoing, Buyer’s or other resellers’ advertised prices shall not be lower than the MAP Price List, and incorporated by reference and attached hereto.
(b) In the event Supplier or Buyer identify online or resellers who purchased S&B products from Buyer but are not complying with the MAP pricing, Supplier may, at its sole discretion, request that Buyer repurchase the relevant products from that reseller, and Buyer shall thereafter promptly use on-going, commercially reasonable efforts to repurchase such products provided that Supplier agrees, in writing, to reimburse Buyer for reasonable out-of-pocket costs and expenses incurred by or on behalf of Buyer in connection with the repurchase of such products. Supplier may also require Buyer to cease providing products for a stipulated time period to customers who refuse to comply with MAP pricing and Buyer shall comply.
§ 14 Severability Clause
If any provision herein is found to be invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced with a valid and enforceable provision which comes closest to the intended purpose of the invalid and unenforceable provision. This also applies to any gaps or omissions in these Terms and Conditions.
RETURN POLICY BETWEEN BUYER AND STORZ & BICKEL
The Buyer must inspect the products identified in the Sales Order immediately upon delivery, and contact Supplier within five (5) business days by e-mail to info@storz-bickel.com that the Products: (a) are damaged, defective, or otherwise do not conform to the UPC/SKU listed in the applicable Sales Order; or (b) were delivered to Buyer as a result of Supplier's error. Supplier will replace or refund the applicable Products, using Supplier's standard packaging and shipping methods, and cover the cost of any shipping.