OLEO TERMS OF SERVICE
These Terms of Service shall be binding between a customer (the “Customer) who has placed an order for goods or services with OLEO, INC. Custom formulated “Powered by Oleo” products are developed depending on a Customer’s business needs and applications. Please read carefully the following Terms and Conditions. Payment of Company’s custom formulation retainer constitutes confirmation that you have read and agree to the following:
1. GENERAL AGREEMENT. These terms and conditions and the documents of OLEO, a Washington State Corporation, (the “Company” or “Oleo”), if any, to which these terms and conditions are attached, affixed or incorporated by reference constitute the complete and exclusive agreement to formulate, blend, or otherwise supply Oleo products and technologies (the “Agreement”) between the Company and the Customer who has placed an order for goods or services with the Company (such person, firm, or entity placing such order being hereinafter referred to as the “Customer”). This Agreement supersede all prior or contemporaneous oral or written agreements with respect thereto. This Agreement may be updated periodically at the discretion of Company, with written notice to Customer. All purchases made by Customer or any agent or representative thereof and all sales by the Company are expressly limited to and conditioned upon acceptance of this Agreement. Any modification or attempted modification of this Agreement by Customer and/or any terms additional to or different from this Agreement whether contained in Customer’s purchase order, any other purchase orders or acknowledgement requests or other writings provided by Customer relating to any written or oral communication of an offer by the Company are hereby objected to and rejected by the Company unless conspicuously and expressly consented to in writing and signed by both the Company and the Customer. In the event that these Terms and Conditions are deemed to be an acceptance of a prior offer by the Customer, such acceptance is limited to the express terms and conditions contained herein. Customer acknowledges and agrees that Customer has not been induced to enter into this Agreement by any oral or written representation, guaranty or warranty made by or on behalf of the Company other than as set forth herein. Any purchase order or other writing submitted by the Customer in connection with any transaction between Customer and the Company shall be solely for the internal use of the Customer and none of the terms or conditions of any Customer issued purchase order or other writing shall be deemed to govern or control any aspect of the relationship between the parties and will not be binding on Company unless the Customer and Company agree, in a separate writing, to such terms or conditions regardless of whether the subject matter of any of the same are not covered by the provisions hereof.
2. BUDGETARY QUOTES. Budgetary quotes, if any, shall be for planning purposes only and are subject to change depending on market fluctuation and availability unless otherwise expressly stated in writing in such quote. Typographical and clerical errors in this quote are subject to correction by Oleo.
3. BRANDING. Oleo custom formulations and white label products may be eligible to bear the ‘Powered by Oleo’ mark on their packaging. This mark will be provided to Customer in a timely manner along with sizing requirements, which are considered binding as part of this agreement. Oleo retains the right to review all packaging and marketing materials prior to determining whether or not they are eligible to bear its mark and to verify that brand guidelines are being met, as outlined here. Each custom formulated or white label product must also include ‘OleoCBD’ or ‘OleoTHC’ (whichever is relevant) on each ingredient list. Final goods will not be shipped to Customer until Company has confirmed that branding guidelines are implemented correctly. Any product desiring to bear the ‘Powered by Oleo’ mark shall require formulation approval by Company.
4. FORMULATION PROCEDURE. In the process of creating custom formulations Company will provide up to three rounds of sample revision with the base retainer fee. Between each round of revisions Company will make best efforts to input Customer feedback and improve the sample accordingly. If Customer requires more than three revisions each additional round of revision will be subject to an additional cost of $250. Once Customer is satisfied with their formulation it will be ‘locked in’ and Oleo will provide an ingredient list and nutrition facts for use on product packaging.
5. FORMULATION RIGHTS. Any ‘locked in’ formulation shall be made available exclusively to the Customer with whom that formulation was created. Formulations are confidential between Company and Customer. Customer agrees to source ingredients for said formulation(s) exclusively from Company as part of this agreement. The formulation(s) developed by Company are owned by Company and made available for use by Customer. Company warrants that it will not provide exact copies of said formulation(s) to any other Oleo customer or manufacture said formulation(s) itself so long as Customer is actively manufacturing. Should Customer not re-order ingredients required to manufacture formulation(s) for a period of one (1) year then Customer shall forfeit the exclusive right to the formulation(s) and Company shall retain the right to re-sell, re-brand, or otherwise utilize the formulation(s) in any way.
6. NATURE OF TRANSACTION. The parties agree that this transaction is a Commercial Transaction constituting the sale of goods and is subject to and shall be governed by the provisions of Commercial Code as it has been adopted and amended by the State of Washington and modified by these Conditions of Sale.
7. QUANTITY. Variations in quantity of five (5%) percent over or under the quantity agreed upon by the Customer and the Company shall constitute acceptable delivery and performance. Within this range, Company shall bill and the Customer shall pay for the quantity delivered.
8. PAYMENT. A 50% down payment shall be due prior to blending of ingredients for creation of custom formulated or white label products. Full payment must be made prior to shipment of all orders. If conducting a custom formulation, we require a non-refundable retainer to begin this service. All outstanding invoices must be paid prior to placement of additional orders.
9. SHIPMENT. Company will clearly communicate any exceptions of shipping costs, but will never finalize payment until orders are prepared for shipment. Customer will be invoiced for all shipping costs associated with shipment, Company may invoice Customer for shipping costs after product has been sent to improve distribution speed. Oleo products will be shipped to the address on file for the Customer or an Oleo approved address as directed by the Customer upon request.
10. REPORTING. Oleo may, at its discretion, request sales and distribution reporting from any client making use of a custom formulated or white label product. This may include, but is not limited to, the following: number of units sold per store/state/region, number of units in inventory at various locations and the variants of those units, sales per channel. This information shall be provided within 30 days of written request by Company and may be given in Excel or Text file format. All information furnished in this manner shall be bound by confidentiality between Customer and Company.
11. RISK OF LOSS. Title and all risk of loss or damage to goods will pass to Customer at time of shipping. Customer may request to insure products while in transport, cost of insurance during shipping shall be invoiced separately.
12. TITLE/INFRINGEMENT. The Company warrants that it will deliver good title to all goods sold to Customer free and clear of all liens and encumbrances. To the extent that any goods sold to Customer are manufactured by the Company, the Company warrants that the same shall not violate or infringe any patent, trademark or other intellectual property rights of any third party. If suit is brought against Customer alleging that the Company’s manufacture of any of the goods infringes any U.S. Patent, then Customer will provide the Company immediate written notice and permit the Company to manage and defend all aspects of such suit. Conversely, for all goods made to Customer’s specifications, Customer warrants to the Company that the same shall not violate or infringe any patent, trademark or other intellectual property rights of any third party. Customer assumes all responsibility for and Company shall not be liable for use of any goods either alone or in combination with any other products or in the operation of any process and/or for the use of any design, trademark, trade name or other part thereof appearing on or with respect to the goods at Customer’s request.
13. TRANSFERABILITY. Custom formulated and white label products are for use only by original Customer and are not to be transferred or sold for additional white labeling or branding by third parties unless agreed upon in writing by Company.
14. PRICE. Prices are in US Dollars and Company of Washington State, U.S.A. The price set forth in any quotation is based upon the specifications detailed therein. Any changes to such specifications that require additional production time or other additional costs will be charged in addition to the price set forth therein. All prices are F.O.B. shipping point unless specified to the contrary it being understood and agreed that the Company may ship goods from more than one location. Where, for the convenience of the Customer, Company arranges for shipment and incurs freight charges, such freight charges shall be billed to and paid for by the Customer. In the event any freight company, or agent or trustee thereof, later asserts freight charges to be properly due in addition to those originally billed, the Customer shall reimburse Company to the extent of such additional charges. Customer shall also pay any sales, use, or other taxes now or hereafter imposed by any federal, state, or local taxing authority upon or with respect to the sale, other than taxes imposed on net income or personal property taxes. In the event such taxes are not included in the invoice from Company, but it is determined that Company is subject to such taxes by a taxing authority, Company may pay such taxes and the Customer will reimburse Company the amount thereof. In no event shall the Customer be responsible for any taxes incurred based solely on the income of the Company. If Purchaser claims an exemption from any tax, a valid and proper tax exemption certificate must accompany order.
15. CREDIT. The Company’s duty to sell and deliver the goods to the Customer and Customer’s right to purchase the goods from the Company hereunder shall at all times remains subject to the continuing approval of Customer’s creditworthiness by the Company in its sole discretion. The Company reserves the right to sell goods to the Customer on prepaid, C.O.D., standby letter of credit or other secured or collaterally assured basis acceptable to the Company in its sole discretion. Without limiting the Company’s rights and remedies hereunder, if Customer fails to pay any amount when due or if the Company requires assurances or further assurance of Customer’s creditworthiness, the Company may terminate any order, demand different credit terms or impose different requirements for assurance of payment.
16. INDEMNIFICATION. Subject to the Company’s limitation of liability set forth below, each party shall at all times indemnify, defend, and save the other party, its affiliates and their employees, officers, directors, and agents harmless from any and all damages, losses, claims, attorney’s fees, economic loss and any other harmful consequences that arise in connection with the goods sold and/or which result, directly or indirectly from any breach by such party of such party’s obligations to the other party.
17. FORCE MAJEURE. Company shall not be liable for delays or non-performance occasioned by causes beyond its control, including, without limitation, acts of God, strikes, lockouts, fires, inability to obtain materials, breakdowns, delays of carriers or suppliers, and governmental acts and regulation. Nothing contained herein shall be construed to require Company to settle any strike or other dispute.
18. LIMITATIONS OF WARRANTIES. The Company warrants that all goods sold hereunder shall conform to the specifications agreed in writing between the Company and the Customer. The Company makes no other representation or warranty of any kind with respect to the sale of the goods, express or implied, including, without limitation, any warranty of merchantability, fitness for a particular purpose, or any other matters with respect to the subject matter of this agreement and all implied warranties of merchantability and fitness for a particular purpose are hereby disclaimed.
19. LIMITATION OF LIABILITY. Notwithstanding anything contained in this agreement to the contrary, in no event shall company’s liability, whether based in contract or tort, include any special, incidental, consequential or punitive damages with respect to any damages which allegedly arise out of the performance or breach of this agreement. The Company’s liability shall in no event exceed an amount equal to the amount paid by Customer to Company for the goods which were the subject of the Company’s breach.
20. LIMITATION OF ACTIONS/CLAIMS. No action, regardless of form, arising out of the transactions under this Agreement may be brought more than one year after the cause of action has accrued. All claims for alleged defects shall be deemed waived unless made in writing, along with samples demonstrating the complaint, within (30) days after Customer’s receipt of goods.
21. CONFIDENTIALITY. Company will maintain in confidence all information furnished to Company by Customer provided that such information is identified, in writing, as confidential. Except to the extent required by law or court or administrative order or as necessary to enable Company to perform its obligations hereunder, Company will not make use of or disclose any of such information to any other person.
22. NON-WAIVER. No waiver by Company of a breach of any provision hereof shall be deemed a waiver of any subsequent similar or other breach by Customer of Customers obligations hereunder.
23. GOVERNING LAW. This agreement is made and entered into in the State of Washington for goods, materials and services to be provided and sold by Company and purchased by Customer in the State of Washington. This agreement shall be governed by and construed in accordance with the laws of Washington, without regard to its principles of conflicts of laws. Customer consents to the exclusive jurisdiction of the courts of Washington and agrees that any legal action or proceeding arising under, or relating to, this agreement shall be brought in any state or federal court located in the State of Washington.
24. ASSIGNMENT. Neither party shall assign this agreement or its rights hereunder without the prior written consent of the other party, except to its subsidiaries and/or affiliates or the surviving entity of a merger or consolidation involving such party. Upon any assignment made in compliance with this paragraph, this agreement shall inure and be binding upon the successors and assigns of the assigning party and any such successors and assigns shall agree in writing to be bound by the terms and conditions hereof.
25. COMPLIANCE WITH LAWS. Each party hereto agrees to comply with all federal, applicable state, applicable local, or applicable foreign laws, statutes, rules, regulations and other similar or dissimilar requirements of any governmental or quasi-governmental entity or authority in connection with the handling, storage, sale, delivery, application, use or disposition of all goods.
26. COMPLETE AGREEMENT. The terms and conditions set forth herein supersede all other proposals, oral or written, and all previous negotiations, conversations, or discussions between the parties to this agreement. Customer understands and agrees that no agent, employee, or representative of company has authority to bind company to any affirmation, representation or warranty concerning the subject matter of this agreement which is not set forth herein, and that any affirmation, representation or warranty which is not set forth herein shall not constitute a warranty.