DETROIT DISPENSING SOLUTIONS LLC
STANDARD TERMS AND CONDITIONS OF SALE
These standard terms and conditions of sale (these “Terms”) will govern any and all sales of products (the “Products”) and/or services (the “Services”) by Detroit Dispensing Solutions LLC, a Michigan limited liability company, or any of its affiliates (collectively “DDS”) to the purchaser of DDS’s Products and/or Services (“Buyer”) and are incorporated into, and made a part of, any and all quotations, proposals, credit applications, purchase agreements, supply agreements, or other documents or agreements issued by DDS to Buyer or executed between the parties evidencing a sale of Products and/or Services (each, a “Sale Document”).
1. Acceptance of Sale Document. Buyer accepts these Terms by executing a Sale Document, by sending a purchase order to DDS in response to a Sale Document, by submitting instructions to DDS to ship Products or provide Services to Buyer, or by accepting or paying for Products or Services. Once accepted, the Sale Document and these Terms supersede all prior agreements, purchase orders, quotations, proposals, and other communications between the parties regarding the Products and/or Services covered by the Sale Document. Any previous agreement(s) between the parties will be of no further force or effect and will be deemed terminated. Any additional or different terms proposed by Buyer, whether in a purchase order, bill of lading, delivery document, or otherwise, are unacceptable to DDS, are expressly rejected by DDS, and will not become part of the Sale Document or these Terms. Neither DDS’s subsequent lack of objection to any such additional or different terms, nor the delivery of Products or Services to Buyer, will constitute an agreement by DDS to any such additional or different terms. Trade custom, trade usage, and past performance are superseded by the Sale Document and these Terms and will not be used to interpret the Sale Document or these Terms. These Terms may only be amended, modified, or waived by DDS in writing and only by the President of DDS. DDS does not authorize any other person or entity (including, without limitation, DDS’s agents or employees) to make, whether orally, in writing, or otherwise, any representations, warranties, covenants, or agreements that are contrary to these Terms. Notwithstanding the foregoing or anything in these Terms to the contrary, (a) except as otherwise expressly set forth in the Sale Document or consented to in writing by DDS, any quotation issued by DDS will immediately expire and be of no further force or effect if it is not accepted by Buyer within thirty (30) days after the issuance of such quotation; and (b) Buyer acknowledges and agrees that DDS may terminate any Sale Document at any time and for any reason or no reason without any liability to Buyer.
2. Payment Terms. Except as otherwise expressly set forth in the Sale Document, all sales of Products and/or Services require a fifty (50%) initial payment, with the remaining payment to be made by Buyer before the shipment of the Product or the provision of the Services. All payments by Buyer must be made without setoff, recoupment, or deduction of any kind. At the sole option of DDS, interest will accrue and be payable on amounts not paid by Buyer when due at the lower of: (a) one and one-half percent (1.5%) per month; or (b) the highest rate of interest permitted by applicable law. To secure the payment of all amounts due to DDS, Buyer hereby grants to DDS a security interest in, to, and under any and all Products, supplies, parts, accessories, tools, equipment, and materials that may be sold and/or furnished by DDS to Buyer, and in, to, and under any and all proceeds and products of the foregoing. Buyer authorizes DDS to file a UCC-1 financing statement in all relevant jurisdictions with respect to the foregoing security interest.
3. Returns. Buyer acknowledges and agrees that all sales of Products and/or Services are final. No Products may be returned without DDS’s prior written consent. If DDS consents in writing to any such return of Products, DDS may provide Buyer with a Return Material Authorization (“RMA”) number for such Products, which RMA number must appear on all packages returned to DDS and referred to in all related correspondence. Buyer will be responsible for paying any freight associated with the return of any Products and for paying a restocking charge equal to twenty-five percent (25%) of the invoice for the Products. Any Products otherwise properly returned but with freight due or without payment of the restocking charge will be refused. In no event will Buyer receive any refunds, reimbursements, or payments for any Services provided by DDS to Buyer or for any fees, costs, or expenses paid by DDS in connection with Buyer’s Products and/or Services.
4. Shipping. All Products are sold EXW DDS’s place of shipment at the location’s loading dock. Risk of loss transfers to Buyer when the Products are placed at DDS’s place of shipment at the location’s loading dock.
5. Intellectual Property. Any and all intellectual property associated with the Products and/or Services sold under the Sale Document is the result of the cumulative work of DDS and represents years of research and development. Except for the right to use the Products and/or Services in accordance with the purposes for which they were intended, no other right, license, or grant is made or implied to Buyer. Buyer agrees not to circumvent, analyze, or reverse engineer any Products. Buyer agrees not to register or apply to register (or aid any third party in registering) intellectual property rights (or any confusingly similar marks of DDS) or take any action that is inconsistent with DDS’s ownership of any intellectual property in any jurisdiction. DDS will own all intellectual property rights related to the Products, together with any improvements or modifications thereto, and Buyer agrees to, and does hereby, assign, all right, title, and interest in, to, and under such improvements and modifications to such intellectual property rights. Buyer agrees to assist DDS in every proper way to secure DDS’s rights in such modifications and improvements and any intellectual property rights relating thereto, including, without limitation, the disclosure to DDS of all pertinent information and data with respect thereto, and the execution of all applications, specifications, oaths, assignments, and all other instruments that DDS deems necessary in order to apply for and obtain such rights.
6. Confidential Information. All information furnished by DDS to Buyer (“Confidential Information”) must be kept confidential by Buyer, and Buyer agrees not to use any Confidential Information except for those purposes expressly authorized by these Terms and not to disclose any Confidential Information to any person or entity unless previously authorized by DDS in writing to do so; provided, however, that Buyer may disclose Confidential Information as necessary to its officers, employees, and agents for the purposes contemplated by these Terms; provided further that such officers, employees, and agents have assumed obligations of confidentiality no less stringent than those contained in this Section. Buyer will be responsible for any breach of this Section by any of Buyer’s officers, employees, or agents. The foregoing limitations on the use and disclosure of Confidential Information will not apply to information that: (a) at the time of disclosure or thereafter lawfully becomes a part of the public domain; (b) was otherwise in Buyer’s lawful possession before disclosure as shown by Buyer’s written records; or (c) is expressly released from confidential status by DDS in writing.
7. Products. Buyer agrees that it will: (a) comply with the guidelines, operating manual, and instructions of DDS and quality control and quality assurance programs regarding the Products; (b) not alter, modify, or change the Products (or any part thereof); (c) obtain any training or support necessary for the Products solely from DDS and not from any other person or entity; and (d) obtain components, parts, items, or accessories relating to the Products solely from DDS and not from any other person or entity.
8. Delays. Any delivery date provided by DDS for the Products and/or Services is an estimate only. DDS will not be liable for any delay, or for any loss or damage in transit, with respect to any Products or Services, and Buyer irrevocably waives any and all claims relating thereto.
9. Delivery. Packaging requirements will be determined by DDS in its sole discretion. All shipments will be directed to the location described in the Sale Document. If Buyer fails to specify a mode of shipment, DDS will select the mode that in its estimate provides the lowest reasonable transportation cost. Unless Buyer requests otherwise, DDS may choose to insure any shipments with the carrier and pass the costs of such insurance along to Buyer, however, DDS is under no obligation to insure any shipments. DDS otherwise recommends that Buyer obtain insurance for any and all shipments.
10. Specifications. Buyer agrees to provide DDS with any and all required specifications relating to the Products and/or Services described in a Sale Document. DDS’s obligations hereunder will not commence until Buyer has provided DDS with any such required information. If Buyer fails to provide such specifications, then DDS may terminate any affected Sale Document by providing written notice to Buyer.
11. Restrictions. Buyer agrees (a) not to cause or permit the modification, distribution, reverse engineering, de-compilation, disassembly, or other translation of any of the Products or integrated software sold to it pursuant to any Sale Document; (b) not to alter, change, or remove from such Products any identification or markings, including, without limitation, patent or copyright notices or trademarks; (c) not to move the Products out of the United States of America; (d) not to sell, lease, transfer, or otherwise dispose of the Products to any third party without the prior written consent of DDS; and (e) to comply with any and all applicable laws in connection with the installation, operation, maintenance, use, or possession of the Products and/or Services provided pursuant to a Sale Document.
12. Inspection and Acceptance. Buyer agrees to inspect the Products and/or Services within three (3) days following Buyer’s receipt thereof (the “Inspection Period”). The Products and/or Services will be deemed accepted at the end of the Inspection Period unless Buyer notifies DDS in writing of any Nonconforming Products and/or Services (defined below) and furnishes DDS with written evidence or other documentation reasonably required by DDS relating thereto. If Buyer notifies DDS of any Nonconforming Products and/or Services before the expiration of the Inspection Period in accordance with the terms of this Section, and DDS agrees that such Products are Nonconforming Products and/or Services, then DDS will, in its sole discretion, either: (a) replace the Nonconforming Products and/or Services with conforming Products and/or Services; or (b) credit or refund the purchase price for the Nonconforming Products and/or Services. At DDS’s request and direction, Buyer will return the Nonconforming Products and/or Services to DDS at Buyer’s sole cost and expense or dispose of the Nonconforming Products and/or Services at Buyer’s sole cost and expense in a manner approved by DDS. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s sole and exclusive remedies, and DDS’s sole liability, with respect to the delivery of Nonconforming Products and/or Services, and except as set forth in this Section, Buyer has no right to return any Products or Services to DDS without DDS’s prior written consent. As used in this Section, “Nonconforming Products and/or Services” means only that the Products and/or Services received are different from those identified in the Sale Document.
13. Safety Disclaimer. By accepting delivery and utilizing the Products and/or Services provided pursuant to any Sale Document, Buyer acknowledges and accepts all of the safety information provided by DDS and accepts DDS’s disclaimer of any and all liability for personal injuries associated with the use of such Products and/or Services. Buyer agrees not to hold DDS liable for any injuries that occur in the installation, operation, maintenance, use, or possession of the Products and/or Services provided pursuant to a Sale Document. Buyer acknowledges that the Products sold pursuant to a Sale Document may include, without limitation, prototypes and may not have undergone product safety testing. Buyer agrees to instruct all of its employees and other operators of such Products to exercise extreme caution when operating such Products and agrees to undertake no efforts at repair or modification of such Products without the prior written consent and direction of DDS.
14. Indemnification.
(a) DDS agrees to indemnify, defend, and hold Buyer harmless with respect to any claim, suit, action, or judgment of any kind that any Products and/or Services provided to Buyer under a Sale Document infringe upon any registered patent, copyright, or trademark in the United States (an “IP Action”); provided that DDS will be relieved of the foregoing obligations unless Buyer: (i) gives DDS prompt written notice of each such IP Action; (ii) tenders to DDS sole control of the defense or settlement of each such IP Action; and (iii) fully cooperates with DDS in defending or settling each such IP Action. If DDS receives notice of an allegation that any Products and/or Services infringe or misappropriate a third party’s intellectual property rights, or if Buyer’s use of the same is prohibited by permanent injunction of a court of competent jurisdiction as a result of such an infringement or misappropriation, DDS may, at its sole option and expense: (1) procure for Buyer the right to continue using such Products and/or Services as provided hereunder; (2) modify such Products and/or Services so that they are no longer infringing; (3) replace the Products and/or Services with other products and/or services of equal or superior functional capability; or (4) refund all amounts paid by Buyer for such Products and/or Services.
(b) THE RIGHTS GRANTED TO BUYER ABOVE WILL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND DDS’S SOLE OBLIGATION FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, DDS WILL HAVE NO LIABILITY TO THE EXTENT ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION IS BASED UPON OR ARISES OUT OF: (I) ANY PRODUCT AND/OR SERVICE MODIFIED WITHOUT THE APPROVAL OF DDS; (II) ANY BUYER OR THIRD-PARTY PRODUCT OR SERVICE; (III) THE USE OF PRODUCTS AND/OR SERVICES IN CONNECTION OR IN COMBINATION WITH EQUIPMENT, DEVICES, PRODUCTS, OR SERVICES NOT PROVIDED BY DDS; (IV) PRODUCTS AND/OR SERVICES DEVELOPED OR MODIFIED IN COMPLIANCE WITH BUYER’S WRITTEN DESIGN REQUIREMENTS OR SPECIFICATIONS; OR (V) THE USE OF PRODUCTS AND/OR SERVICES OTHER THAN AS PERMITTED UNDER THESE TERMS OR IN A MANNER FOR WHICH THEY WERE NOT INTENDED.
(c) Except as provided above, Buyer assumes all liability of any nature whatsoever arising out of the installation, operation, maintenance, use, or possession of the Products and/or Services provided under a Sale Document. Buyer agrees to indemnify, defend, and hold harmless DDS, its affiliates and subsidiaries, and DDS’s and its affiliates’ and subsidiaries’ officers, directors, members, managers, employees, consultants, advisors, representatives, agents, successors, and assigns from and against any and all claims, suits, actions, judgments, obligations, losses, liabilities, damages, fees, costs, and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or relating to (i) the installation, operation, maintenance, use, or possession of the Products and/or Services provided pursuant to any Sale Document; or (ii) Buyer’s breach of any of Buyer’s representations, warranties, covenants, or agreements contained in these Terms or any related Sale Document.
15. Warranties. DDS warrants that the Products produced by DDS will, for a period of one (1) year from DDS’s delivery of such Products to Buyer (the “Warranty Period”), be free from defects in materials and workmanship and will conform to DDS’s written specifications (but only if DDS created such specifications). This warranty does not cover defects or failure caused by (a) improper handling, storage, maintenance, or repair; (b) any modification, abuse, or abnormal use of such Products after delivery by DDS to Buyer; or (c) Buyer’s breach of any of its representations, warranties, covenants, or agreements contained in these Terms or in any related Sale Document. For any Products produced or manufactured by a third party and distributed by DDS, DDS will, as permitted by the third party, pass through any applicable warranties directly to Buyer as may be provided in a Sale Document and DDS will have no further obligations to Buyer with respect to such Products. THE FOREGOING LIMITED WARRANTIES WITH RESPECT TO THE PRODUCTS ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED BY DDS. DDS MAKES NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, OF ANY KIND WITH RESPECT TO ANY SERVICES PERFORMED BY DDS.
16. Warranty Claims. If, during the Warranty Period, Buyer believes that any Products warranted by DDS are defective, then Buyer may, with DDS’s prior written consent and during the Warranty Period, ship the allegedly defective Products back to DDS at Buyer’s sole cost and expense. If DDS agrees that the Products are defective, and if Buyer has not otherwise breached its obligations under these Terms or any related Sale Document, then Buyer’s sole and exclusive remedy against DDS, and DDS’s sole obligation, for any and all claims arising out of or relating to such defective Products (whether for breach of warranty, breach of contract, tort (including, without limitation, negligence and strict liability), or otherwise) will be limited to, at DDS’s sole option, repairing or replacing the defective Products or crediting or refunding the purchase price of such defective Products. Credits and refunds may be applied against Buyer’s open balances at DDS’s sole discretion. The foregoing remedies (repair, replacement, credit, or refund) are Buyer’s sole and exclusive remedies with respect to any and all warranty claims for defective Products (including, without limitation, any express warranties and under any implied warranties not negated by these Terms). Buyer acknowledges and agrees that warranty claims under this Section must be made within the Warranty Period or are forever waived.
17. LIMITATION OF LIABILITY. NOWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, IN NO EVENT WILL DDS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF BUYER GOODWILL, ATTORNEYS’ FEES, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, CLAIMS BY CLIENTS OR CUSTOMERS OF BUYER, OR DAMAGES FOR ECONOMIC LOSSES OR PROPERTY DAMAGE) ARISING FROM, CONNECTED WITH, OR RELATING TO THE PROVISION OF ANY PRODUCTS OR SERVICES TO BUYER, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, WHETHER OR NOT DDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER UNDER NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY, OR OTHER PRODUCT LIABILITY THEORIES. IN NO EVENT WILL DDS’S TOTAL LIABILITY EXCEED THE AMOUNT ACTUALLY PAID TO DDS PURSUANT TO THE SALE DOCUMENT UNDER WHICH THE CLAIM ARISES. ANY ACTION BY BUYER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PRODUCTS AND/OR SERVICES FURNISHED BY DDS MUST BE BROUGHT BY BUYER WITHIN ONE (1) YEAR FROM THE DATE THE CAUSE OF ACTION ACCRUES, OR THE APPLICABLE STATUTORY PERIOD, WHICHEVER IS SHORTER.
18. Entire Agreement. These Terms and any related Sale Document contain the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede any and all prior understandings, agreements, or representations by or between the parties, written or oral, that may have related to the subject matter hereof or thereof in any way.
19. Force Majeure. DDS will not be deemed to be in default or otherwise responsible for delays or failures in performance resulting from acts of God, acts of war or civil disturbance, epidemics, governmental actions or inactions, governmental shutdowns, executive orders, fires, earthquakes, unavailability of labor, materials, power, or communication, or other causes beyond DDS’s reasonable control.
20. Waiver. Any failure of DDS to enforce any of the provisions, rights, or remedies of any Sale Document or these Terms, to exercise any election or option provided therein or herein, or to require at any time the performance of any of the provisions thereof or hereof, will in no way be construed to be a waiver of such provisions, rights, or remedies, nor in any way be construed to affect the validity or enforceability of such Sale Document or these Terms, or any part thereof or hereof, or the right thereafter to enforce each and every such provision, right, or remedy.
21. Amendment. No amendment or modification of these Terms or any Sale Document will be of any force and effect unless in writing and signed by Buyer and the President of DDS. Notwithstanding the foregoing, Buyer acknowledges and agrees that DDS may change, modify, and/or amend these Terms from time to time by posting revised standard terms and conditions of sale to DDS’s website, and such revised standard terms and conditions of sale will apply to any and all existing and new Sale Documents.
22. Severability. Whenever possible, each provision of these Terms and of any Sale Document will be interpreted in such a way as to be effective and valid under applicable law. If a provision is prohibited by or invalid under applicable law, it will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions.
23. Assignment. These Terms and any related Sale Document will inure to the benefit of and be binding upon the parties and their respective successors and assigns; provided, however, that Buyer may not assign any of its rights, interests, or obligations under these Terms or any Sale Document without the prior written consent of DDS.
24. Notices. All notices, requests, consents, claims, demands, waivers, and other communications (other than routine communications having no legal effect) must be in writing and will be deemed to have been given (a) when delivered by hand; (b) when delivered if sent by a nationally recognized overnight courier; or (c) on the fifth day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses listed on the applicable Sale Document.
25. Relationship of the Parties. The relationship between DDS and Buyer is that of independent contractors. Nothing stated in these Terms will be construed as creating the relationship of employer and employee, franchisor and franchisee, principal and agent, partnership, or joint venture between the parties. Neither party, nor any party’s employees or agents, will have any express or implied right or authority to assume or create any obligations on behalf of the other party.
26. Choice of Law. All Sale Documents accepted by DDS will be deemed entered into within the State of Michigan and the validity, performance, and construction of such Sale Document and these Terms will be governed by the laws of said state, without regard to principles of conflicts of law.
27. Dispute Resolution. In the event of a dispute relating to these Terms or any related Sale Document, the parties to such dispute will meet in a good faith effort to resolve the dispute. If the parties to such dispute are unable to resolve such dispute within thirty (30) days of the first written notice of such dispute by one party to the other, such dispute must be settled by compulsory and binding arbitration before the American Arbitration Association in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The parties agree that such arbitration will be held in Southfield, Michigan by a single arbitrator mutually selected by the parties. The parties agree to abide by the decision of the arbitrator and agree that any such decision (and, if applicable, the allocation of fees and expenses) will be binding, non-reviewable, and non-appealable and may be entered as a final judgment in any court having jurisdiction. The costs and expenses of the arbitrator will be borne equally between the parties; provided that such arbitrator, as part of such arbitrator’s decision, will award costs to the prevailing party. The parties agree that binding arbitration will be the sole remedy as to all disputes arising out of these Terms or any related Sale Document. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of the parties, unless to protect or pursue a legal right. Notwithstanding the foregoing, DDS may seek injunctive or equitable relief from any court of competent jurisdiction.
28. Regulatory Compliance. These Terms and any related Sale Document are subject to strict requirements for ongoing regulatory compliance by DDS and Buyer, including, without limitation, requirements that DDS and Buyer take no action in violation of any state cannabis or Marijuana laws (together with all related rules and regulations thereunder, and any amendment or replacement act, rules, or regulations, the “Act”) or the guidance or instruction of any applicable state regulatory body (together with any successor or regulator with overlapping jurisdiction, the “Regulator”). DDS and Buyer acknowledge and understand that the Act and/or the requirements of the Regulator are subject to change and are evolving as the marketplace for state-compliant cannabis and Marijuana businesses continues to evolve. If necessary or desirable to comply with the requirements of the Act and/or the Regulator, DDS and Buyer hereby agree (and hereby agree to cause their respective affiliates and related parties and representatives to) to use their respective commercially reasonable efforts to take all actions reasonably requested to ensure compliance with the Act and/or the Regulator, including, without limitation, negotiating in good faith to amend, restate, amend and restate, supplement, or otherwise modify these Terms to reflect terms that most closely approximate DDS’s and Buyer’s original intentions but that are responsive to and compliant with the requirements of the Act and/or the Regulator. In furtherance of the foregoing, DDS and Buyer further agree to cooperate with the Regulator to promptly respond to any and all informational requests, supplemental disclosure requirements, or other correspondence from the Regulator and, to the extent permitted by the Regulator, to keep the parties fully and promptly informed as to any such requests, requirements, or correspondence.