Credit Application Terms and Conditions

Last Updated: Dec 28th, 2023

TERMS AND CONDITIONS

Customer hereby acknowledges and agrees that in executing the Credit Application, all sales made by Califia Farms, LLC to Customer, including, without limitation, based upon any credit extended by Califia Farms to Customer pursuant to or in connection with the Credit Application will be governed by Califia Farms’ standard terms and conditions of sale set forth below, as the same may be in effect from time to time.

These terms and conditions are incorporated into and made a part of the agreement or proposal (this “Agreement”) by Califia Farms, LLC, a Delaware limited liability company and any of its subsidiaries, unincorporated divisions or affiliates (“Califia Farms”), to sell to the named Customer the goods being provided to Customer (“Goods”) solely to Customer acting in a commercial or business capacity and not in a personal or household capacity. Customer may reject these terms and conditions by not ordering or receiving any Goods. Califia Farms hereby rejects any additional, different, or inconsistent terms, conditions or limitations contained in or incorporated by reference in any forms, purchase orders or other documents of Customer that already have been or hereafter may be presented to Califia Farms with respect to the subject matter herein.

ARTICLE I – TERMS AND CONDITIONS OF CREDIT APPLICATION

Section 1. CREDIT INFORMATION

Califia Farms and any of its managers, employees, officers or agents (collectively, “Califia Farms Parties”) are each hereby authorized to contact the bank and business references identified in the Credit Application and to obtain such additional information as they may require concerning Customer’s creditworthiness, and Customer hereby waives any and all claims against, and fully releases from liability, any and all Califia Farms Parties with respect to any such inquiry. Any representatives of any of the business or bank references identified in the Credit Application are authorized to disclose to the Califia Farms Parties any information pertaining to Customer’s credit history requested by any Califia Farms Parties, including, without limitation, information regarding Customer’s loans, accounts, purchases or other financial transactions involving the bank or business reference in the past, present and future, and Customer hereby waives any and all claims against, and fully releases from liability, any such representatives with respect to any such disclosure. At any time while the Credit Application is pending and throughout any period during which Califia Farms has extended business credit to Customer for which it has not yet been reimbursed, Califia Farms may obtain credit reports (including, without limitation, consumer credit reports) regarding Customer as well as its principal(s), proprietor(s) and/or guarantor(s) in connection with the extension or continuation of credit provided by Califia Farms to Customer pursuant to or in connection with the Credit Application. Customer hereby consents to the use of any such credit report consistent with the Federal Fair Credit Reporting Act as set forth in U.S.C. §§ 1681 et seq.

Section 2. CREDIT TERMS

Califia Farms may, in its sole and absolute discretion, agree to grant credit terms to Customer or reject Customer’s Credit Application. If Califia Farms exercises its option to reject the Credit Application and refuse to grant credit to Customer, no Califia Farms Party shall be liable for any damage, loss or cost whatsoever to Customer. Any credit terms are subject to Califia Farms’ continuing approval of Customer’s credit. If, in Califia Farms’ sole and absolute discretion and determination, Customer’s credit becomes unsatisfactory, Califia Farms may withdraw or modify its credit terms. Notwithstanding the foregoing, Califia Farms reserves the right to cancel or modify Customer’s credit terms at any time in Califia Farms’ sole and absolute discretion.

Section 3. DEDUCTIONS

Deductions from Califia Farms’ invoices must be agreed to in writing by both parties to avoid discrepancies and ‘credit holds’ that might disrupt business. Califia Farms will issue credit and/or debit memos as they are required. Customer shall email all back up and supporting documentation to ar@califiafarms.com.

Section 4. CUSTOMER’S FINANCIAL CONDITION

Customer will give Califia Farms at least fifteen (15) calendar days’ prior written notice of any development that may adversely affect Customer’s financial condition or creditworthiness, including, without limitation, (a) the institution by or against Customer of proceedings in bankruptcy or any other procedure for the settlement of debts, (b) Customer’s making an assignment for the benefit of its creditors, (c) Customer’s inability to pay Customer’s expenses as they accrue due to lack of sufficient funds, and (d) Customer’s dissolution or other event pursuant to which it ceases to do business. Customer agrees, upon request, to provide Califia Farms with its most recent financial statements and such other evidence of corporate and financial standing as Califia Farms may reasonably request from time to time to evaluate Customer’s creditworthiness. If, in the sole and absolute judgment of Califia Farms, the financial responsibility of Customer shall at any time become impaired, Califia Farms may, without notice to Customer, suspend credit, cancel any unfilled orders, and/or decline to make further deliveries under this Agreement except upon receipt, before shipment, of payment in full or satisfactory security for such payment.

ARTICLE II – TERMS AND CONDITIONS OF SALE

Section 1. CUSTOMER ORDERS

1.1 Placing Purchase Orders. The Office Hours of Califia Farms are M-F 8:00 a.m. to 5:00 p.m. PST (“Operating Hours”). Email is available 24/7. Orders for Goods (“Purchase Orders”) may be placed by email by contacting orders@califiafarms.com or by EDI. Customer should refer to the order guidelines separately provided to Customer (the “Order Guidelines”) for details or should notify Customer’s Califia Farms Sales Representative for any questions. Califia Farms recommends that Customers use Califia Farms Item Numbers when ordering to increase both speed and accuracy. Customers are responsible for making shipping decisions clear to Califia Farms when they place their Purchase Order(s). The minimum order quantity for Goods are as set forth in the Order Guidelines.
1.2 Acceptance of Purchase Orders. All Purchase Orders issued by Customer shall be subject to written acceptance by Califia Farms. Califia Farms, at its sole and absolute discretion, may refuse orders from a Customer with a past due balance or a balance in excess of its credit limit. Acceptance of any order is subject to final credit approval by Califia Farms and is expressly conditioned on Customer’s acceptance of these terms and conditions. Each shipment shall constitute a separate and independent transaction and Califia Farms may recover for each such shipment without reference to any other.

1.3 Cancellation; Modification. Califia Farms may cancel in whole or in part any Purchase Orders at any time. Customer may cancel a Purchase Order only if such cancellation is made within twenty-four (24) hours of placing the Purchase Order. Customer shall be responsible for all reasonable charges for expenses already incurred and commitments made by Califia Farms in connection with the placement of such order(s).

1.4 Right To Manufacture and Sell Competitive Goods. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not limit Califia Farms’ right to manufacture or sell, or preclude in any manner Califia Farms from manufacturing or selling, to any person or entity, or entering into any agreement with any other person or entity related to the manufacture or sale of the Goods and other goods or products that are similar to or competitive with the Goods.

Section 2. RETURNS & ADJUSTMENTS

No Good sold hereunder shall be returned to Califia Farms without prior written permission from Califia Farms. Approved returns of Goods shall be subject to a restocking charge equal to twenty five percent (25%) of the then current sale price FOB Califia Farms’ warehouse as indicated in the product return approval, with return freight charges for Customer’s account. Califia Farms does not guarantee Customer’s sales, and as such, Customer shall be responsible for inspecting the order upon arrival. If upon inspection Customer believes any Goods to be Nonconforming (as defined below), Customer must contact orders@califiafarms.com within two (2) calendar days following receipt of the Goods, stating with specificity all defects and nonconformities and furnishing such other written evidence or other documentation as may be reasonably required by Califia Farms. Any claims relating to delivered Goods will be waived by Customer unless made in writing to Califia Farms within such two (2) calendar-day period. Deductions from a Califia Farms invoice before a credit memo is issued could cause a disrupting credit hold. Califia Farms will review any claim in good faith and determine, in its sole and absolute discretion, whether such Goods are Nonconforming Goods. Upon confirmation by Califia Farms that the Goods are Nonconforming Goods, Customer shall be entitled to, at Califia Farms’ discretion, (a) credit for the Nonconforming Goods or (b) replacement of the Nonconforming Goods. A “Nonconforming Good” as used in this Agreement shall mean any Good that (a) does not conform to the SKU or other identifier provided in the applicable Purchase Order (b) does not materially conform with any specifications agreed to in writing between Califia Farms and Customer or (c) does not meet, or materially exceeds, the quantity of Goods ordered by Customer. THIS SECTION 1 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CALIFIA FARMS’ ENTIRE LIABILITY FOR ANY GOODS THAT CONSTITUTE NONCONFORMING GOODS.

Section 3. DELIVERY, TITLE AND RISK OF LOSS

If Califia Farms agrees to deliver the Goods to Customer (and provided that the order for Goods meets the minimum order requirement for delivery set forth in the Ordering Guidelines), the terms and provisions of Section 3.1 shall apply. If Customer is responsible for picking up the Goods from Califia Farms’ facility, the terms and provisions of Section 3.2 shall apply. For the avoidance of doubt, Section 3.3 shall apply regardless of whether Califia Farms or Customer arranges for delivery of the Goods.
3.1           Delivery by Califia Farms. Califia Farms shall select the method of shipment of, and the carrier for, the Goods and shall be responsible for arranging delivery of Goods to Customer’s delivery address specified in the Purchase Order (the “Delivery Point”). Califia Farms will use commercially reasonable efforts to select the most cost-efficient mode of transportation based on order quantities, lead time and shipping sailing schedules, but reserves the right to use any method or route of transportation, whether or not at a higher rate. Title to and risk of loss of the Good shall pass to Customer at the Delivery Point. Customer shall cooperate fully with Califia Farms’ efforts to deliver Good and shall be appropriately prepared to safely and promptly receive Good when delivered. If Customer is unable to receive the Goods when they are tendered, Customer will be liable to Califia Farms for any losses, damages, or additional expenses incurred or suffered by Califia Farms as a result of Customer’s inability to receive the Goods. Any delivery schedules are estimated and assume timely receipt of all necessary information and documentation from Customer, and Califia Farms assumes no responsibility for delays.
3.2           Pick-Up by Customer. Customer shall be responsible for arranging, hiring and paying for licensed carriers to pick up Goods from Califia Farms’ facility (the “Pick-Up Point”) promptly, in accordance with this Section 3.2 and any written guidelines or procedures provided to Customer by Califia. Customer shall be responsible for obtaining at its sole cost and expense any and all necessary licenses and permits for the Goods, including, without limitation, any licenses and permits for transportation. Customer shall contact an authorized representative of Califia Farms to schedule a pick-up appointment, which shall be available two (2) business days prior to the scheduled pick-up date. Customer agrees and acknowledges that securing an appointment does not guarantee that the Goods will be ready for loading at the scheduled time, as average wait times are two (2) hours within the scheduled appointment time. If Customer does not arrive to pick up the Goods within fifteen (15) minutes of the scheduled appointment time, all trucks will be loaded on a first-come, first-served basis, within Operating Hours. Failure to pick up Goods within thirty (30) days may result in storage fees charged to Customer. Unless otherwise agreed to by Califia Farms in writing, risk of loss will pass to Customer at the Pick-Up Point and title to the Goods shall pass on the later of payment of the Price for the Goods or at the Pick-Up Point. Califia Farms may assert any claims with a carrier in writing for all losses or damages or rework expenses regardless of whether Customer arranges carriage, designates the carrier or pays the freight. Califia Farms will not be responsible for any delays in shipping any Goods, failure to ship or losses or damage in transit caused by a freight carrier.
3.3           Other Delivery Terms. The delivery date is an estimate only and Califia Farms shall not be bound by such date. Califia Farms shall not be liable for any direct, incidental, or consequential loss or damage to Customer, or to any third parties, due to delay or not delivering in accordance with the estimated delivery date regardless of the cause. Late delivery or failure to supply shall in no event entitle Customer to vary or cancel this Agreement, or to claim damages in respect thereof. If Customer is in default of any term or condition of this Agreement, Califia Farms may, at its option, without waiving its right to terminate this Agreement and in addition to any other right or remedy at law or in equity, defer further shipments hereunder until such default is remedied or. Califia Farms may furthermore delay or refuse to ship Good to Customer if Customer delays delivery or is otherwise in breach of any provision of this Agreement. Upon Customer’s reasonable request, Califia Farms may, at its option, assist Customer in loading or unloading Good, but such assistance will be rendered at Customer’s sole risk. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS CALIFIA FARMS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, INJURIES, LIABILITIES, ACTIONS, CLAIMS OR PROCEEDINGS OF WHATEVER NATURE ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE LOADING, DELIVERY OR UNLOADING OF THE GOODS WHETHER OR NOT BASED ON CALIFIA FARMS’ ACTS OR OMISSIONS.

Section 4. PAYMENT

Customer will pay each invoice within thirty (30) days of the invoice date. Customer’s payment obligations shall not be conditioned on Customer’s receipt of payment from a third party. Pursuant to California Commercial Code §2401, §9609, Califia Farms retains a security interest in the Goods shipped or delivered until the purchase price is paid in full, and reserves the right to recover the Goods possessed with or without judicial process, at the option of Califia Farms. In the event of a default, Customer agrees to assemble the Goods purchased and make it available to Califia Farms at a place to be designated by Califia Farms that is reasonably convenient to both parties. If Customer defaults in payment, Customer will be liable for all collection costs incurred by Califia Farms including, but not limited to, attorneys’ and collection agency fees and expenses, and all related disbursements. If Customer does not pay when payment is due, past due amounts are subject to service charges of one percent (1%) per month or the maximum percentage rate permitted by law, whichever is less.

Section 5. PRICES

Prices are in United States Dollars and may change without notice. The purchase price of the Goods and Services does not include transportation taxes and sales, use, excise, import or any similar tax or other governmental charge arising pursuant to or in connection with the sale, purchase, processing, delivery, storage, use, consumption, performance or transportation of the Goods. Customer is responsible for payment of any transportation taxes, and any present or future sales, use, excise, import or any similar tax or other governmental charge applicable to the Agreement and to the sale and/or furnishing of the Goods.

Section 6. LEAD TIME

Customer agrees to submit Purchase Orders with at least fifteen (15) days’ lead time, subject to change at Califia Farms’ sole and absolute discretion. In order to be equitable to all customers, Califia Farms reserves the right to determine optimum order processing, including any special orders or requests and agreed additional charges.

Section 7. MISCELLANEOUS CHARGES

Certain fees, including, without limitation, slotting, fair share, reset, handling, uploading, lumper, storage administrative, samples and paperwork processing fees and reclamation (damage, spoil, shelf-worn, outdate, out of code, donated, etc.) and deductions from third parties will NOT be paid without written authorization from Califia Farms. Deduction back up should be sent with payment or emailed to: ar@califiafarms.com.

Section 8. BILLING ERRORS

Credits and Debits must be officially approved in writing by an authorized representative of Califia Farms in order to be valid. When such is authorized, the Customer’s account will be adjusted and a memo will be sent to the Customer’s accounts payable department.

Section 9. CREDIT LIMIT

Customer shall not exceed the credit limit as extended to Customer by Califia Farms without first making arrangements with Califia’s Credit Manager. For Customer’s account’s status, Customer should contact Califia Farms at ar@califiafarms.com. A Customer with a past due balance will not be shipped further Goods until the situation is corrected. Califia Farms reserves the right to charge a late fee for customer charges paid after their due date.

Section 10. DISCLAIMER OF WARRANTIES

CALIFIA FARMS HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY CONTRACT, AT LAW, IN EQUITY, BY STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE GOODS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, ANY WARRANTY AGAINST DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF GOOD TITLE, AND ANY WARRANTY AGAINST INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY PATENTS, TRADEMARKS, OR COPYRIGHTS.

Section 11. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT WILL CALIFIA FARMS BE LIABLE TO CUSTOMER FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, SALES OR REVENUES, COST OF REPLACEMENT GOODS, LOST BUSINESS OR BUSINESS INTERRUPTIONS, OR ATTORNEYS FEES OR COURT COSTS ARISING IN ANY MANNER PURSUANT TO OR IN CONNECTION WITH THE AGREEMENT OR THE GOODS (EVEN IF CALIFIA FARMS IS MADE AWARE OF THE POTENTIAL FOR SUCH DAMAGES). IN NO EVENT WILL CALIFIA FARMS’ TOTAL LIABILITY RELATED TO ANY GOOD EXCEED THE PURCHASE PRICE OF SUCH GOOD.

Section 12. LIMITATION OF ACTIONS; EXCLUSIVE REMEDY

Customer’s sole and exclusive remedy against Califia Farms for any claim arising out of any Good tendered to Customer is the repair or replacement of the Good, or alternatively, at Califia Farms’ sole election, a credit or refund of the purchase price of the Good. Returns of any Good for a refund may be subject to restocking fees. These remedies will only be available for one year following the date of invoice, and Customer must commence action for any alleged breach of the contract of sale, including any recoupment or set-off by Customer, within such one-year period, or the claim shall be permanently barred. No claim shall be allowable after any such Good has been processed in any manner, and claims on account of Nonconforming Good shall be deemed to be waived by the Customer unless made in writing within two (2) days from the date of receipt at destination. No action, regardless of form, arising out of the sale or delivery of Good hereunder, may be commenced by Customer more than one year after the occurrence of the event giving rise to such cause of action.

Section 13. INDEMNIFICATION

Customer will indemnify, defend and hold harmless Califia Farms, its members, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses (“Losses”), that may arise pursuant to or in connection with the Agreement or the Goods, regardless of whether such Losses are suffered directly by Customer or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not Califia Farms or any third-party is proportionately negligent with respect to such Losses and/or Claim. For the avoidance of doubt and without limitation, this indemnification obligation requires Customer to pay any judgments against Califia Farms or any other indemnified party resulting from any Claim, any court costs of Califia Farms or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by Califia Farms or any other indemnified party in Califia Farms’ defense of any Claim. Califia Farms will have the sole and exclusive right to conduct the defense of any Claim at Customer’s sole and exclusive cost and expense. Customer’s indemnification obligation does not depend on the truth or accuracy of any allegations made against Califia Farms, Customer or any third party.

Section 14. RECALL

If Califia Farms or a governmental authority institutes a recall of any of the Goods sold to Customer, at Califia Farms’ request, Customer shall, as applicable, withdraw all such Goods from sale and, at Califia Farms’ option, either return such Goods to Califia Farms or destroy the Goods and provide Califia Farms with written certification of such destruction. In no event shall Customer have a right to institute a recall of any of the Goods. If Customer returns all recalled Goods or destroys all recalled Goods and provides Califia Farms with written certification of such destruction within ten (10) days following Califia Farms’ withdrawal request, in either case, consistent with Califia Farms’ instructions, Califia Farms shall (a) repair or replace all such returned Goods or (b) replace such destroyed Goods, in either case, pursuant to the terms of Section 2; provided, however, that Customer shall not be entitled to any such repair or replacement if any defect in the Goods contributing to the reason for recall was caused or contributed to by Customer’s actions or omissions. THIS SECTION 14 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CALIFIA FARMS’ ENTIRE LIABILITY FOR ANY GOODS THAT ARE WITHDRAWN PURSUANT TO THIS SECTION 14.

Section 15. FORCE MAJEURE

Califia Farms will not be liable for its failure to perform under any purchase order or agreement entered into with Customer (including, without limitation, the failure to deliver any Goods) due to circumstances beyond its control, including, without limitation, pandemic, epidemic, fire, flood, earthquake, pestilence or similar catastrophe; war, act of terrorism, or strike; lack or failure of transportation facilities, shortage of suitable parts, materials or labor; any existing or future law, rule, regulation, decree, treaty, proclamation, or order of any governmental agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or the public enemy; or any other event or cause beyond Califia Farms reasonable control, including, without limitation, any delay caused by Customer (each, a “Force Majeure Event”). If any Force Majeure Event prevents Califia Farms performance of any of its obligations under the Agreement, Califia Farms will have the right to (a) change, terminate or cancel the Agreement, or (b) omit during the period of the Force Majeure Event all or any portion of the quantity of the Goods deliverable during that period, whereupon the total quantity deliverable under the Agreement will be reduced by the quantity omitted. If Califia Farms is unable to supply the total demands for any Goods to be delivered under the Agreement due to a Force Majeure Event, Califia Farms will have the right to allocate its available supply among its customers in whatever manner Califia Farms deems to be fair and equitable. In no event will Califia Farms be obligated to purchase materials from other than its regular sources of supply in order to enable it to supply Goods to Customer under the Agreement. No change, cancellation or proration by Califia Farms will be deemed to be a breach of any clause, provision, term, condition, or covenant of the Agreement.

Section 16. CONFIDENTIALITY

Customer acknowledges and agrees that from time to time during the Term, Customer may receive or otherwise become exposed to or familiar with Confidential Information disclosed by or on behalf of Califia Farms.
The term “Confidential Information” means any and all information or data disclosed by or on behalf of Califia Farms in connection with this Agreement (whether written, graphic, verbal, electronic, machine readable or other tangible or intangible form) or any commercial relationship between Califia Farms and Customer that is confidential, proprietary or otherwise non-publicly available, whether or not marked or designated as “confidential” or “proprietary,” and irrespective of whether such information is furnished before, on or after the effective date of this Agreement or such commercial relationship, including the terms and existence of this Agreement and each Purchase Order and information relating to Califia Farms’ members, customers, subscribers, suppliers, partners, employees, operations, business plans, marketing plans, pricing, product plans, processes, strategies, know-how, forecasts, sales or financial information. The term “Confidential Information” does not include information that Customer can conclusively establish (i) is or becomes generally known to the public other than as a result of disclosure by Customer or any of its affiliates and each of their respective officers, directors, partners, shareholders, attorneys, third-party advisors, agents, employees, contractors, subcontractors, successors, and permitted assigns (collectively, “Representatives”) in violation of this Agreement or wrongdoing by any third person, (ii) is or was independently developed by Customer or any of its Representatives without use of or reference to any Confidential Information disclosed under this Agreement, (iii) is or was received by it on a non-confidential basis from a source other than Califia Farms or any of its Representatives, or (iv) is or was rightfully in its possession prior to its disclosure under this Agreement, provided, that in the case of clauses (iii) and (iv), the source of such information was not known after due inquiry by Customer to be bound by a contractual, legal, fiduciary or other obligation of confidentiality in respect of such information.
Customer may use Confidential Information solely for the purpose of fulfilling its obligations under this Agreement, will keep such Confidential Information strictly confidential and will protect such Confidential Information from use by or disclosure to third Persons using the same degree of care used to protect its own Confidential Information, but in any case using no less than a reasonable degree of care. Customer may only disclose relevant aspects of such Confidential Information (i) to its Representatives who need to know such information for the purpose hereof and who agree in writing to treat such Confidential Information in accordance with the terms hereof or who are otherwise bound by confidentiality, non-use and other related obligations with respect to such Confidential Information that are no less stringent than those contained in this Section 15, (ii) with the prior written consent of Califia Farms, or (iii) to the extent required by applicable law, order of a governmental authority or other similar legal process or proceeding (in which case, to the extent legally permissible, Customer must promptly notify Califia Farms of the existence, terms and circumstances surrounding such requirement, give Califia Farms a reasonable opportunity to obtain a protective order or other appropriate remedy to resist or narrow such disclosure or waive compliance with the relevant provisions of this Agreement and cooperate with Califia Farms in respect of the foregoing, and in the absence of such order or other remedy, Customer may disclose only that portion of the Confidential Information that it is required to disclose and will exercise reasonable efforts to obtain assurances that confidential treatment will be accorded thereto).
Customer will be responsible for any breach of the confidentiality provisions of this Agreement by it or any of its Representatives and agrees (at its sole cost and expense) to take all reasonable measures (including but not limited to court proceedings) to restrain its Representatives from prohibited or unauthorized use or disclosure of Confidential Information disclosed to such Representatives under this Agreement.

Section 17. CUSTOMER RECORDS

Customer will maintain true and complete records in connection with the purchase and sale of Goods. Such records will be retained by the Customer for at least twenty-four (24) months following the termination or expiry of this Agreement. In order to determine whether Customer has complied with its obligations under this Agreement, Califia Farms will have the right, subject to appropriate provisions on confidentiality, to inspect Customer’s records during regular business hours provided such inspections do not unreasonably interfere with Customer’s business.

Section 18. MODIFICATION; WAIVER

We reserve the right to modify this Agreement or any of the goods or services offered pursuant to this Agreement at any time, including suspending or stopping the offering of credit services or discontinuing any goods or services. We will notify you of any material changes by revising the data at the top of this Agreement, and, in some cases, we may, in our sole discretion, provide you additional notice such as by sending you an email. It is your responsibility to review the current version of this Agreement before engaging in any services or purchases the Agreement covers. Except as set forth herein, any other modification of this Agreement, including without limitation, these terms and conditions is not valid or binding unless in writing and signed by Califia Farms. Any terms and conditions from any other source, including but not limited to Customer’s purchase order or acknowledgements, are deemed excluded. This Agreement, including without limitation, these terms and conditions shall control and take precedence over any other conflicting terms and conditions in any other document. An updated credit application is required every three (3) years. No waiver of any provision of this Agreement will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance. Except as otherwise set forth in this Agreement, no failure or delay of Califia Farms in exercising any right or power afforded it under this Agreement will operate as a waiver thereof, unless expressly waived in writing and signed by Califia Farms.

Section 19. ENTIRE AGREEMENT

Califia Farms’ QUOTATION, this Agreement (including, without limitation, these TERMS & CONDITIONS), CREDIT APPLICATION, order confirmation, INVOICE and any supplemental documents annexed hereto by Califia Farms, contains the complete and entire agreement between the parties as the subject matter hereof, and replaces and supersedes and prior or contemporaneous, representations, or agreements, whether oral or written, with respect to such subject matter. Any term contained in Customer’s own forms(s) that is inconsistent with, or in addition to, any set forth herein is expressly rejected.

Section 20. RELATIONSHIP OF THE PARTIES

The relationship between Califia Farms and Customer is that of a supplier and purchaser, respectively, and this Agreement does not create any employment, partnership, joint venture, franchise or agency relationship between the parties. Neither party will be considered, or will hold itself out as, an agent, representative, partner or joint venturer of the other party for any purpose. Neither party will be held liable or accountable for any obligations incurred by the other party, other than as specified in this Agreement, it being specifically understood that the respective business of each of the parties will be operated separate and apart from each other. Each party relies solely upon its own respective business expertise, not the business expertise of the other party, in operating its respective independent businesses.

Section 21. CHOICE OF LAW; CHOICE OF VENUE; WAIVER OF JURY TRIAL

The negotiation, execution, performance, termination, interpretation and construction of the Agreement will be governed by the law of the State of Delaware, and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods. If either Califia Farms or Customer brings a lawsuit or any other action arising out of the Agreement against the other party, such party must file its lawsuit or other action in a state or federal court located in Los Angeles County, California. Califia Farms and Customer expressly submit to the exclusive jurisdiction of those courts and consent to venue in those courts, and Califia Farms and Customer consent to extra-territorial service of process on Califia Farms and Customer. In the event of litigation pertaining to any matter covered by the Agreement, each of Califia Farms and Customer hereby agree to waive any right that it may have to a jury trial of any or all issues that may be raised in such litigation. Nothing contained in the Agreement will be construed to limit or waive any rights of Califia Farms under applicable United States federal, state, or local laws. Any provision of the Agreement held to be invalid, illegal or unenforceable will be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof. Each party knowingly, voluntarily, and intentionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action or counterclaim arising out of or relating to this Agreement. Each party represents that it has consulted or had the opportunity to consult legal counsel with respect to this waiver.