Customer Terms and Conditions
- Order Process; Acceptance; Additional or Conflicting Terms; Cancellation.
(a) All sales of e-liquid products and any other products sold by Beard Management, Inc. d/b/a Beard Vape Co. (“Seller”) (individually, “Product” and collectively, “Products“) to the purchaser or (the “Buyer”) shall be subject to and governed by these terms and conditions (the “Terms”), any other terms and conditions that may be contained on Seller’s website (the “Website”), and any terms or conditions contained in any Seller purchase order confirmation (the Terms, the Website and any terms or conditions contained in any Seller purchase order confirmation being collectively the “Contract”). In the event of a conflict between these Terms and any other provisions of the Contract, these Terms shall prevail. BY VISITING THE WEBSITE AND/OR PURCHASING ANY PRODUCTS FROM SELLER, BUYER AGREES TO BE BOUND BY THE CONTRACT, SO PLEASE READ THE CONTRACT CAREFULLY. If Buyer does not agree to all the terms and conditions contained in the Contract, Buyer may not access the Website or purchase any Products. Seller reserves the right to update, change or replace any part of these Terms and any other terms and conditions that may be contained on Website by posting updates and/ or changes to the Website. It is Buyer’s responsibility to check the Website periodically for changes. Buyer’s continued use of or access to the Website following the posting of any changes constitutes acceptance of those changes.
(b) All orders submitted to Seller for Products, whether through the Website, purchase order or otherwise, are subject to final acceptance by Seller and no orders are binding upon Seller until so accepted. Seller’s acceptance may be in writing, including without limitation via email or an order confirmation generated from the Website, or by delivery of the Products to Buyer. Buyer is solely responsible for proper selection of the Products. Seller may change an order at any time without recourse to correct any mathematical, clerical or other errors.
(c) Every sale of Products shall be exclusively governed by the Contract. In no event shall Buyer’s terms apply to, nor shall Buyer’s proposed additional or different terms modify, the Contract. Seller hereby objects to and rejects any additional or different terms or conditions proposed by Buyer or contained in any order or other correspondence from Buyer, regardless of any knowledge Seller may have of such terms, and such terms shall not bind Seller. The Contract supersedes any commercial documents issued by Seller. No other terms or changes, modifications, amendments or waivers of any terms in the Contract shall apply to Seller unless in writing and signed by an authorized officer of Seller.
(d) Seller may, in its sole discretion, limit, prohibit or cancel any Product orders, whether or not the order has been confirmed by Seller and Buyer has paid for the order; provided, if Buyer’s credit card has already been charged for the purchase or Buyer has otherwise already paid for the order and the order is canceled, Seller shall promptly issue a credit to Buyer’s credit card or other account in the amount of the charge. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that Seller makes a change to or cancels an order, Seller may attempt to notify Buyer by contacting the e-mail and/or billing address/phone number provided at the time the order was made.
(e) Without limiting Seller’s other rights and remedies available under the Contract and/ or applicable law, Seller may suspend or terminate performance and delivery, if (i) Buyer becomes insolvent or files for bankruptcy or has a bankruptcy proceeding filed against it; (ii) Buyer makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or part of Buyer’s property; or (iii) Buyer fails to perform or observe any of its obligations to Seller under the Contract, including without limitation payment of any purchase price, fees or charges as and when due.
(f) Buyer may not cancel or change the Contract except with the written consent of Seller.
(a) Prices for Products are subject to change without notice. Seller reserves the right, at any time and from time to time, to modify or discontinue Products (or any part or content thereof) without notice. Seller shall not be liable to Buyer or to any third-party for any modification, price change, suspension or discontinuance of any Products.
(b) The prices listed for Products on the Website or otherwise provided do not include any sales, use, personal property, excise, transfer or other tax, duties or assessment related to the Products or their purchase and sale which may be imposed by any governmental authority (including without limitation nicotine tax), all of which shall be the sole obligation of, and paid by, Buyer. In the event that Seller pays any such tax or assessment, Buyer shall reimburse Seller in accordance with the terms of Section 3(a).
(a) The Contract for each order will set forth when payment is due. Time is of the essence with regard to payment. The date of payment will be the date Seller receives payment in full. If at any time, in its sole judgment, Seller has any doubt as to Buyer’s financial responsibility, Seller may decline to make further shipments, except upon receipt of a deposit or other satisfactory security or cash before shipment.
(b) If Buyer fails to make any payments when due, then (i) interest shall accrue from the date the payment was due until payment is received in full at the lower of 1.5% per month or the maximum amount allowed by applicable law, (ii) Buyer shall pay Seller’s reasonable attorneys’ fees and other costs of collection of any past due amounts, and (iii) Seller may, at its sole discretion, take any of the following actions: (1) suspend or cancel delivery of the Products; (2) immediately terminate the Contract for default; (3) require Buyer to satisfy all obligations to Seller; and (4) take any other actions or pursue any other remedies under the Contract, at law, or in equity. Failure by Seller to exercise any of its rights or remedies shall not be construed as a waiver of any such rights or remedies.
- No Set Off.
Buyer shall not have the right to set off any obligation of Seller to Buyer against any obligation of Buyer to Seller.
Unless otherwise stated in Seller’s order confirmation, all deliveries of Products shall be made FOB Seller’s fulfillment center in Austin, Texas. Buyer shall be solely responsible for the costs and expenses of any transportation, packaging, insurance, duties, and tariffs associated with the Products. Seller may make partial deliveries. Any such partial delivery shall not give the Buyer any right to reject the Products delivered or to claim damages and the Buyer shall be obliged to accept and pay for the quantity of Products delivered. Notwithstanding any requested dates by Buyer, the delivery dates in Seller’s order confirmation shall control. Any shipping, delivery or performance schedule, quotation, forecast or commitment is only an estimate and Seller will not be liable for any delay or failure to deliver all or any part of any order for any reason. Seller shall not be responsible for any damage to the Products caused by a carrier and Buyer’s sole recourse for such damage shall be against the carrier. If, for any reason, the Buyer fails to pick up any of the Products when they are ready for delivery, or the Seller is unable to deliver the Products on time because the Buyer has not provided appropriate instructions, documents, licenses or authorizations, then Seller may store the Products until actual delivery, whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance costs).
- Security Agreement.
Buyer grants Seller a continuing purchase money security interest in all Products sold or delivered to it (collectively, the “Collateral”) to secure the full payment of the purchase price of the Products and all other obligations of Buyer. Buyer authorizes Seller to file all financing statements, continuation statements and other documents necessary or desirable to establish, perfect, maintain, preserve and enforce Seller’s security interest in the Collateral.
7.Buyer’s Obligations and Warranties.
(a) Buyer shall make all payments for Products and any other amounts due under the Contract strictly in accordance with the Contract.
(b) Buyer represents and warrants that (i) it has the necessary authority to enter into and perform the Contract in accordance with its terms; and (ii) all information provided to Seller is true and accurate. Buyer acknowledges that, in connection with to the provision of the Products under the Contract, Seller is relying on the information provided to Seller by Buyer.
- Disclaimer of Warranties.
(a) SUBJECT TO THE BALANCE OF THIS SECTION 8, including without limitation BUYER’S COMPLIANCE WITH SUBSECTION (b) BELOW, ALL PRODUCTS PURCHASED PURSUANT TO THE CONTRACT ARE PROVIDED BY SELLER ON AN “AS IS” AND “AS AVAILABLE” BASIS. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE E-LIQUID OR OTHER PRODUCTS PURCHASED UNDER THE CONTRACT, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, OR ANY OTHER EXPRESS OR IMPLIED WARRANTY WHATSOEVER. THE PARTIES AGREE THAT SELLER’S LIABILITY TO BUYER (WHETHER UNDER BREACH OF WARRANTY (INCLUDING, WITHOUT LIMITATION, THE LIMITED WARRANTY), BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY OR THEORIES, WHETHER NOW EXISTING OR HEREAFTER RECOGNIZED) SHALL BE LIMITED, AT SELLER’S OPTION, TO REPLACEMENT OF THE ALLEGEDLY DEFECTIVE PRODUCT (OR PORTION THEREOF) AT THE SELLER’S FULFILLMENT FACILITY LOCATED IN AUSTIN, TEXAS, OR THE RETURN TO BUYER OF THE PRICE PAID FOR SUCH ALLEGEDLY DEFECTIVE ORDERED PRODUCT (OR PORTION THEREOF), WHICH SHALL BE BUYER’S EXCLUSIVE REMEDIES, AND BUYER EXPRESSLY WAIVES ANY RIGHT IT MIGHT HAVE TO ANY OTHER MEASURE OF DAMAGES, STATUTORY OR OTHERWISE. IN ANY EVENT, SELLER’S MAXIMUM AGGREGATE LIABILITY UNDER THE CONTRACT OR WITH RESPECT TO THE PRODUCTS OR THEIR USE, WHETHER IN WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT BUYER PAID TO SELLER FOR THE PARTICULAR PRODUCTS AT ISSUE. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER, OR PARTIES CLAIMING BY, THROUGH OR UNDER BUYER, FOR ANY COMPENSATORY, ECONOMIC, SPECIAL, PUNITIVE, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES (INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION LOST PROFITS), OR ANY OTHER PECUNIARY LOSS, REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED THAT SUCH DAMAGES MAY BE INCURRED, ARISING OUT OF ANY ELEMENT OR ASPECT OF THE SALE, USE OR INABILITY TO USE THE PRODUCT, INCLUDING WITHOUT LIMITATION DAMAGES OR EXPENSES OF WHATSOEVER KIND OR NATURE ARISING OUT OF ANY PRODUCT LIABILITY OR ANY OTHER LEGAL ACTION. All warranty disclaimers contained herein are intended to comply with applicable law and shall be enforced to the fullest extent possible under applicable law. The Limited Warranty is made only to Buyer and shall not be assigned or inure to the benefit of any customer, assignee or successor-in-interest of Buyer. Any action for breach of the Contract or for breach of any warranty, express or implied, of Seller, must be commenced within one (1) year from the date of the delivery of the Product; provided any action for a breach of the Limited Warranty must be commenced in accordance with Section 8(b) hereof. Without limiting the generality of the foregoing, in no event shall Seller be liable to Buyer, or parties claiming by, through or under Buyer, if any Product is: (i) used with containers that leach impurities or other contaminants into the Product; (ii) used in any manner that exceeds Seller’s specifications or limitations or contrary to any instructions or information provided by Seller concerning the use of the Products; (iii) combined with other chemicals or substances by the Buyer after they are delivered by the Seller; (iv) impurities are introduced into the Products by the Buyer or by any other person or by any other means after they are delivered by the Seller; or (v) sold to any third party, or included in any manufacturing process.
(b) Following delivery of any Products, Buyer shall within ten (10) business days (the “Inspection Period”) (i) inspect the Products for non-conformity or any other claims of any kind or nature (collectively, “Product Claims”), and (ii) communicate any such Product Claims in respect of the delivered Products to Seller. All Product Claims shall be made in writing by Buyer and received by Seller prior to the expiration of the Inspection Period, or Buyer shall be deemed to have irrevocably (x) accepted the delivered Products, and (y) waived any such Product Claims and any associated remedies at law, in equity or otherwise in respect of the same.
(c) Any Product descriptions, diagrams, illustrations and similar depictions, whether included on the Website, in catalogues, prospectuses, or otherwise, are descriptions, illustrations or approximations only, and do not constitute any specifications, representations, warranties, or guarantees, implicitly or explicitly, and any variance between any Product and its description, diagram, illustration or similar depiction included in the Website, a catalogue, prospectus, or otherwise, shall not give rise to, or be evidence of, any claim for damages or other relief.
(d) No sales representative, employee or any other person or entity is authorized to offer any different or additional warranties or remedies, expand or modify the Limited Warranty, or to change the disclaimer of warranties or limited remedies set forth above or elsewhere in the Contract, without the signature of an authorized officer of Seller.
- Buyer Representation and Indemnity.
(a) Buyer will comply with all applicable laws and regulations regarding the transfer, handling, packaging, sale, use or other disposition of Products. Without limiting the generality of the foregoing, Buyer will comply with any and all export control laws or regulations of the United States or any other applicable export or import control laws or regulations, including, but not limited to, the International Trade in Arms Regulations (ITAR), the Export Administration Regulations (EAR), the Atomic Energy Act (AEA), any Nuclear Regulatory Commission (NRC) regulations, and any Office of Foreign Asset Control (OFAC) prohibitions as those laws or regulations relate to Buyer or the Products. Buyer will obtain any necessary licensing required under any export or import control law or regulation and Buyer will not require performance hereunder prior to providing proof of any required license. Buyer will not require the performance of the Contract in such a manner that would violate any export control law or regulation of the United States or any other applicable export control law or regulation. Buyer will refrain from providing, or offering to provide, anything of value to anyone in furtherance of the Contract that would violate the United States Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. §§ 78dd-1 et seq. Buyer has reviewed, understands and, if necessary, sought legal counsel regarding its obligations under the FCPA. None of Buyer’s officers, employees, consultants or subcontractors retained for or engaged in the activities described in the Contract is an official or employee of a non-U.S. governmental agency or instrumentality, an official of a political party, or a candidate for political office. No governmental official, and no official of any governmental agency or instrumentality is or will become associated with, or will own or presently owns an interest, whether direct or indirect, in Buyer or has or will have any legal or beneficial interest in the Contract or the payments to be made hereunder. Should Buyer or any of its officers, employees, consultants or subcontractors retained for or engaged in the activities described in the Contract violate the FCPA or any other laws or regulations of the United States or other country, such violation shall be a material breach of the Contract and entitle Seller to terminate same.
(b) Buyer agrees that any product intended for human use made with Products sold under the Contract shall be packaged for end use with all required warnings and all required labels. Further, to the fullest extent permitted or not prohibited by law, Buyer agrees to indemnify, defend and hold Seller, its members, affiliated and subsidiary companies, and such entities’ respective officers, directors, shareholders, agents and employees, and such individuals’ and entities’ successors and assigns (individually or collectively, the “Seller Parties”), harmless from and against any and all losses, costs, damages, fines, fees, claims, liabilities, lawsuits, arbitrations, penalties, expenses, settlement costs, and obligations of every kind and description (including, without limitation, reasonable attorneys’ fees), contingent or otherwise (individually or collectively, the “Claims”), which are paid, incurred, suffered by or asserted, either directly or indirectly, against the Seller Parties, which arise out of or relate, directly or indirectly, to (i) Buyer’s breach of the Contract, (ii) any allegation or claim of violation by Buyer or by any subsequent purchaser and/or user of Products sold under the Contract, or any purchaser and/or user (or anyone claiming by, through or under Buyer or any subsequent purchaser and/or user) of any product incorporating Products sold under the Contract, of any applicable law or regulation (including, without limitation, in connection with the sale, use or other disposition of the Products sold under the Contract), (iii) the negligence, intentional act or strict liability of Buyer, its agents and employees (including, without limitation, claims alleging economic loss, bodily injury or death, or injury to or destruction of tangible property, including the loss of use resulting there from), and/or (iv) any and all claims of every kind and description arising out of or relating to the subsequent use, sale or other disposition of the Products sold under the Contract, including without limitation product liability claims At Seller’s request, Buyer shall defend Seller, at Buyer’s expense, against any such Claims made against Seller.
- Force Majeure.
Seller shall not be liable, and performance shall be deemed extended, for delays or failure to perform directly or indirectly resulting from events and causes beyond its commercially reasonable control, including, but not limited to, accidents, acts of God, acts and omissions of any governmental authority, declared or undeclared wars, terrorism, explosions, strikes or other labor disputes, fires and natural calamities, including floods, hurricanes, earthquakes, storms and epidemics, changes in the law, and delays in obtaining (or the inability to obtain) labor, materials or services through usual sources at normal prices. If Products, or labor, materials or services for producing Products, are not available through Seller’s usual sources at normal prices, as determined in Seller’s sole discretion, then Seller may (a) allocate its supplies among its customers, including those not under contract, in any reasonable manner without liability to Buyer, or (b) terminate unilaterally and without recourse by Buyer, any affected Product orders.
- Confidential Information.
In connection with the offer for sale and the sale of Products to Buyer, Seller may disclose to Buyer, or the Buyer may otherwise be exposed to, confidential business information and certain trade secrets of the Seller, including without limitation prices of Products, technical data, and methods of business operations (collectively, “Confidential Information”). Buyer shall maintain the confidentiality of the Confidential Information and not to disclose, or permit to be disclosed, any of the Confidential Information to third parties and not to disclose, use or permit to be disclosed any Confidential Information for any purpose unrelated to the sale of the Product pursuant to the Contract.
- Intellectual Property.
(a) Buyer agrees and confirms that it has no, and Seller’s sale of the Products shall not be construed as granting to Buyer any, license or intellectual property or similar right applicable to or in the Products, or any estimates, drawings, illustrations, calculations, installation instructions or other document Seller provides to Buyer even if developed jointly by Buyer and Seller. Seller retains ownership and control over all intellectual property, including without limitation patents, trademarks, and copyrights applicable to or arising out of the Products, whether developed by Seller or jointly, as well as the exclusive right to manufacture the Products. Buyer shall not name or designate any Seller product information or Products in any patent application. Buyer may not alter or remove, and shall abide by, any patent, trademark, copyright, trade secrets, proprietary or other notices contained on or in the Products.
(b) All text, graphics, button icons, images, audio clips, and software (collectively, “Content”), belongs exclusively to Seller, or its affiliates. The collection, arrangement, and assembly of all Content on the Website (the “Compilation”) belongs exclusively to Seller or its affiliates. All software used on the Website (the “Software”) is the property of Seller, its affiliates or its software suppliers. The Content, the Compilation and the Software are all protected by U.S. and international copyright laws. BEARD VAPE CO (& design), THE ONE, and other logos, slogans, trade names or words are registered trademarks, trademarks or service marks of Seller, its affiliates, suppliers, or third parties. The use of any of Seller’s trademarks or service marks without Seller’s express written consent is strictly prohibited. Buyer may not use Seller’s trademarks or service marks in connection with any product or service in any way that is likely to cause confusion. Buyer may not use Seller’s trademarks or service marks in any manner that disparages or discredits Seller or its affiliates. Buyer may not use any of Seller’s trademarks or service marks in meta tags without Seller’s prior written consent.
- Risk of Loss.
The risk of loss and title for all Products purchased by Buyer pass to Buyer upon Seller’s delivery of the items to the carrier. Buyer may not return any Products to Seller without Seller’s prior written consent.
- Independent Contractor.
Seller and Buyer acknowledge and agree that each is an independent contractor engaged in the operation of its own respective business, and that neither party shall be considered to be the agent, master or servant of the other party to the Contract. Further, nothing in the Contract is intended or shall be deemed to constitute a partnership, agency, employer‑employee, joint-employment or joint venture relationship between Seller and Buyer.
- No Waiver; Severability.
Any failure by Seller to exercise any of its rights under the Contract shall not be construed as a waiver of such rights. In the event that any provision or portion of the Contract shall be determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining portion of such provision and the remaining provisions of this Agreement shall be unaffected thereby, and shall remain in full force and effect.
Without limiting Seller’s other rights and remedies available under the Contract, applicable law, or in equity, Seller may terminate the Contract without recourse by Buyer, or suspend performance and delivery under the Contract without recourse by Buyer, if: (a) there is a change in the control or management of Buyer; (b) Buyer ceases to conduct its operation in the normal course of business; (c) Buyer becomes insolvent or files for bankruptcy or has a bankruptcy proceeding filed against it; (d) Buyer makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or part of Buyer’s property; or (e) Buyer fails to perform or observe any of its obligations to Seller under the Contract or under other existing or future contracts between Seller and Buyer or otherwise, including payment of any purchase price, fees or charges as and when due.
- Choice of Law; Venue.
The Contract conclusively shall be deemed to have been made and entered into in the State of Texas U.S.A., and shall be governed by and construed in accordance with the laws of such jurisdiction, exclusive of conflicts of law principles. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The parties agree that any court in Austin, Texas and the United States District Court for the Western District of Texas, in each case located in Travis County, Texas, shall constitute the sole and exclusive judicial forum(s) and venue and, therefore, shall have sole and exclusive jurisdiction over the adjudication and resolution of any and all disputes or controversies arising out of or relating to the Contract, including without limitation the purchase and sale of Products. Buyer and Seller hereby irrevocably consent and submit to the exercise of personal jurisdiction over them by such courts.
- Attorneys Fees and Costs.
If either Seller or Buyer brings a legal action to enforce its rights hereunder under the Contract, the prevailing party shall be entitled to recover its costs, expenses, and reasonable attorney’s fees incurred as a result of such action or the appeal of any such action.
- Waiver of Jury Trial.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE BUYER AND SELLER, BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE TRANSACTIONS GOVERNED BY THE CONTRACT.
- Waiver of Class Action Rights.
BUYER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO JOIN CLAIMS WITH THOSE OR OTHERS IN THE METHOD OF A CLASS ACTION SUIT OR ANY OTHER SIMILAR PROCEDURAL DEVICE. ANY CLAIMS WHICH MAY HAVE ARISEN AS A RESULT OF, IN RELATION TO, OR IN CONNECTION WITH THE CONTRACT, MUST BE ASSERTED ON A STRICTLY INDIVIDUAL BASIS.
- Non-Assignment; Entire Agreement.
Buyer may not assign all or any portion of its rights or obligations under the Contract without Seller’s prior written consent, and any attempted assignment without that consent shall be void. The Contract contains the entire agreement of the parties relating to the subject matter and supersedes all previous and contemporaneous agreements, understandings, usages of trade and courses of dealing, whether written or oral.