Terms and Conditions

Agreement – These Terms and Conditions of Sale (these “Terms”) shall exclusively govern the sale, purchase, and receipt of all Products sold or provided by The Hawthorne Gardening Company and all its current and future subsidiaries (“Hawthorne”) to a buyer or recipient of such Products (“Customer”). “Products” include all goods and/or services offered for sale, sold, and/or provided by Hawthorne, including, without limitation, goods manufactured by or for Hawthorne under a brand owned or licensed to Hawthorne (“Signature Line Products”), goods manufactured by a third party and offered for sale in one or more territories exclusively through Hawthorne (“Exclusive Products”), and goods manufactured by a third party and offered for sale through Hawthorne on a non-exclusive basis (“Non-Exclusive Products”), and any ancillary personal services, technical services or advice provided by Hawthorne, with or without compensation, in connection with any goods offered for sale by Hawthorne (“Product Services”).

 

These Terms shall become binding as the sole and exclusive agreement by and between Customer and Hawthorne upon: (i) Hawthorne’s approval of a Customer Agreement (which incorporate these Terms by reference) signed by Customer, (ii) Customer’s issuance of a request or order for Products to Hawthorne, (iii) the delivery of the Products to Customer, or (iv) Customer’s payment to Hawthorne in satisfaction of any invoice issued by Hawthorne. These Terms supersede and replace any other prior agreement and terms or conditions stipulated or referred by Customer in any document and are the sole terms and conditions regarding the purchase and sale of Products between Customer and Hawthorne. No other agreements regarding the sale, purchase, or receipt of Products between Customer and Hawthorne exist absent an amendment to these Terms that (i) expressly and specifically references these Terms and (ii) is signed by an authorized representative of Hawthorne. Any terms and conditions included in Customer’s communications, forms, purchase orders, or other documents shall not amend, supplement, or in any way modify or be considered an exception to these Terms even if Hawthorne fails to object to such terms and conditions which are hereby expressly rejected by Hawthorne. Trade custom, trade usage and past performance are superseded by these terms and conditions and shall not be used to interpret these terms and conditions.

 

Notwithstanding the foregoing, any additional terms and conditions included in a Customer Agreement (which incorporate these Terms by reference) signed by Customer (including any Personal Guaranty thereunder) shall be in addition to and unaffected by these Terms. Trade programs, policies, and end-user product warranties shall not be deemed an agreement between the parties absent an amendment to these Terms that (i) expressly and specifically references these Terms and (ii) is signed by an authorized representative of Hawthorne, and shall apply according to the provisions thereof; provided, that, in the event of any conflict in such provisions and these Terms, these Terms shall prevail to the extent necessary to resolve such conflict.

 

Hawthorne may amend or supplement these Terms at any time and from time to time upon Notice to Customer. “Notice” includes, without limitation, email notification to any Customer email address provided to Hawthorne by Customer, written notice by mail to any Customer address provided to Hawthorne by Customer, posting to any Hawthorne website (without the requirement of individualized notice), inclusion of a URL on Hawthorne’s invoice or sales confirmation, or other notification issued by Hawthorne. The effective date of such amendment or supplement shall be the date indicated in the revision of these Terms, which shall not be earlier than the date of the Notice and shall only apply to the sale, purchase, and receipt of Products after such effective date. No oral or written arrangement, promise, or statement made by any personnel of Hawthorne shall be binding on Hawthorne.

 

SUPPLY TERMS

No Obligation to Supply – Hawthorne may refuse any order at any time for any or no reason without liability to Customer. Customer acknowledges that Hawthorne is not obligated to sell to or supply Customer absent, subject to these Terms, a confirmed purchase order.

 

Non-Exclusivity – Nothing herein is intended nor shall be construed as creating any exclusive arrangement with Customer. Hawthorne is not restricted from selling the Products to others in any way.

 

Direct Selling Policy to the General Public – Hawthorne reserves the right to sell to any person in any territory at any time, including direct to end-consumers in any channel of trade.

 

Product Offering – Hawthorne reserves the right to change, modify, improve, add, or discontinue Products at any time with or without notice.

 

Pricing – Products are sold at and Customer shall pay then-current prices in effect at the time the Products are shipped, which may be different than current catalog pricing. Customer should review the sales order acknowledgment for then-current pricing. Prices, discounts, and terms of sale are subject to change without notice.

 

Taxes – The prices of the Products exclude all taxes, costs, fees, levies, or other amounts imposed by any third party and shall be the responsibility of Customer.

 

Minimum Annual Purchases – In order to maintain a wholesale account status Customer’s Product purchases must meet or exceed $10,000 annually. If Customer does not order the minimum purchase requirement, Hawthorne may close Customer’s account.

 

 

Information Accuracy – Hawthorne has exercised care in providing proper information in connection with its Products, i.e., catalog information, but accuracy is not guaranteed. Customer is responsible for verifying all information in connection with the purchase of the Products, including that the description of the Product is accurate, prior to submitting a purchase order to Hawthorne and upon receiving the sales order acknowledgment or other confirmation provided by Hawthorne. Hawthorne may correct typographical, incomplete, or clerical errors and/or omissions for purposes of fulfilling Customer’s order, but does so without liability to Customer.

 

Industry Exclusive Logo – Product information may include an industry exclusive logo indicating that the Exclusive Product, the brand of the Exclusive Product or the distribution rights to the Exclusive Product are exclusively held by Hawthorne. Customer acknowledges that similar products that are competitive to the Exclusive Products may exist under other brand names.

 

Lead Times and Unavailability – All orders are subject to Hawthorne’s standard lead times. The requested delivery period will be observed as possible and subject to availability and Customer acknowledges that such periods are estimates only. Hawthorne may make partial shipments and invoice Customer for such shipments which shall be paid by Customer as indicated on Hawthorne’s invoice.

 

PRODUCT TERMS

Sale and Use Restrictions – Customer may only (i) promote and resell the Products in the course of a retail business operated from (a) offline store locations leased or owned solely by Customer and/or (b) websites with top level domains solely owned and operated by Customer to consumer, commercial, or other end user purchasers (an “Authorized Dealer”), (ii) promote and resell the Products for installation or application by the Customer in the course of providing a bona fide professional service to a third party for a fee (“Authorized Installer”), (iii) use the Products for their intended purpose in its own commercial operations other than cannabis operations, unless such cannabis operations are (a)(1) located in Canada, or (2) located in the United States and limited to the production of hemp as set forth in 7 U.S.C. 1639o and the related federal implementing regulations, as they may be further restricted by applicable state laws and regulations and (b) in compliance with all applicable laws, rules and regulations, and possess and maintain in good standing all required licenses that authorize such cannabis operation to grow, harvest, process, dry, trim, cure, store, and/or package cannabis (“Commercial Producer”), and/or (iv) promote and resell the Products in the course of a wholesale business solely owned and operated by Customer to end user purchasers for use in such purchaser’s own commercial operations if, and only if, and so long as, Customer is approved and authorized as a wholesaler by Hawthorne in writing (an “Authorized Wholesaler”). Cooperative or group buying with persons or businesses that are not under common ownership is strictly prohibited. Customer may not sell or provide Products sold or provided by Hawthorne to any party Customer knows or reasonably should know intends to further distribute or resell the Products.

 

Use of Hawthorne’s Intellectual Property and Information – Customer may not use Hawthorne’s name, Product names, Product images, Product descriptions, Hawthorne’s trademarks, or other content provide by Hawthorne without Hawthorne’s express written consent. Use in all forms, including print, TV, radio, and digital must be pre-approved by Hawthorne in writing. Any approval provided by Hawthorne is (i) revocable at any time by Hawthorne, and (ii) shall be valid for the period of time indicated in Hawthorne’s written approval, but in no event shall such use exceed one (1) year from the date of approval. As between Hawthorne and Customer, all right, title, and interest in all intellectual property rights contained in or arising from the Products, Hawthorne’s name, Product names, Product images, Product descriptions, Hawthorne’s trademarks, or other content provide by Hawthorne belongs solely to Hawthorne or its licensor and Customer obtains no ownership or license of such rights.

 

Confidentiality – All non-public documents, communications, pricing, trade programs, and other information relevant to Hawthorne’s supply of the Products are confidential information of Hawthorne. Customer shall have the obligations with respect to such confidential information as provided in the Customer Agreement, or if such Customer Agreement does not contain any applicable obligations restricting use and disclosure of Hawthorne’s confidential information, Customer hereby agrees not to disclose such confidential information to any party unless compelled by law or authority of a competent court.

 

Auctions and Discount Websites – Customer may only sell or offer for sale the Products through its own websites and shall not sell or offer for sale any Signature Line Products on any auction or discount community websites or market places without express written permission from Hawthorne.

 

Complimentary Products – Customer may be provided Products free of charge or at a reduced cost which are intended to be used for retail displays, sales representatives’ samples, or testing, and not for resale. If Customer resells such Products Hawthorne may invoice Customer for such Products and Customer shall pay such invoice.

 

Factory Seconds – Hawthorne may offer Customer Products that have cosmetic defects or which are contained in damaged packaging. While these Products may meet Hawthorne’s quality standards, these Products cannot be offered as “first quality” Products. These Products are labeled/ marked as “factory seconds” and are offered by Hawthorne at a discount, generally 20%. Customer may not offer or sell Products labeled/marked as factory seconds as first quality. Customer acknowledges that a violation of this restriction will negatively affect Hawthorne’s brands and reputation of selling top quality products. In addition to any other remedies available to Hawthorne, if Hawthorne determines a Customer is selling factory seconds as first quality by removing the factory seconds labels/marks, Customer shall return all such Products to Hawthorne upon Hawthorne’s request at Customer’s cost.

 

Recalls and Product Notices; Restricted Products – Customer shall cooperate with Hawthorne or any third party manufacturer in connection with any product notices, recalls, or other action deemed necessary by Hawthorne, any third party manufacturer, or governmental authority, including, without limitation, disseminating information and bulletins regarding product issues, collecting and remitting products or information subject to such action, or other action reasonably requested of Customer. Customer shall not ship, offer, or sell any Product where such shipment, offer, or sale is prohibited by law or restricted by Hawthorne or any third party manufacturer.

 

Product Handling – Customer shall not adulterate, repackage, dilute, tamper, or otherwise alter any Product, Product packaging, or other characteristic of the Products and shall observe all SDS, regulations, safe handling, shipping, installation, environmental operating conditions, and storage instructions provided by Hawthorne or otherwise applicable to the Products.

 

Disclaimer – AS BETWEEN HAWTHORNE AND CUSTOMER AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, HAWTHORNE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO CUSTOMER WITH RESPECT TO THE PRODUCTS OR TO THE QUALITY, SUITABILITY, OR ADEQUACY OF THE PRODUCTS FOR ANY PURPOSE OR USE, AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS TO THE EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

 

Product Services - If Product Services are offered or given to Customer, such assistance or advice is given only as an accommodation to Customer. Hawthorne shall not be liable for the content of such assistance or advice or Customer’s use of such services nor shall any statement made by any of Hawthorne’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied, of any kind. Customer is responsible for determining its own needs for the operation of its business and the suitability of any Products. Quotes or designs provided by Hawthorne as part of Product Services are as-is, where-is, without any warranty of any kind and Customer acknowledges that such assistance, advice, or information may be incomplete and not guaranteed to be accurate.

 

Limitation of Liability – HAWTHORNE SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE, DIMINUTION IN VALUE, RECALL OR REWORK, ARISING FROM OR RELATING TO THESE TERMS, INCLUDING NON-PERFORMANCE, OR THE PRODUCTS, EVEN IF HAWTHORNE HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. HAWTHORNE’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES NOT OTHERWISE EXCLUDED IN THE PRECEDING SENTENCE AND ARISING FROM OR RELATING TO THESE TERMS, INCLUDING NON-PERFORMANCE, THE PRODUCTS, OR THE MANUFACTURER, SALE, DELIVERY, RESALE, USE OR HANDLING OF ANY PRODUCTS, WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHER THEORY OF LAW, SHALL NOT EXCEED THE LESSER OF (I) THE AMOUNT PAID BY CUSTOMER TO HAWTHORNE FOR THE PRODUCTS GIVING RISE TO THE CLAIM, OR (II) THE AGGREGATE AMOUNT PAID BY CUSTOMER TO HAWTHORNE FOR ALL PRODUCTS DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.

 

Force Majeure – Hawthorne shall not be liable to Customer for the non-performance of any obligation arising from any act of God, flood, fire, explosion, breakdown of plant, earthquake, strike, lockout, labor dispute, casualty or accident, or war, revolution, civil commotion, acts of public enemies, blockage or embargo, or any injunction, law, order, proclamation, regulation, ordinance, demand or requirement of any government or of any subdivision, authority or representative or any such government, inability to procure or use materials, labor, equipment, transportation, or energy sufficient to meet manufacturing needs without the necessity of allocation, or any other cause whatsoever, whether similar or dissimilar to those above enumerated, beyond the reasonable control of Hawthorne or its suppliers.

 

DELIVERY TERMS

Delivery Terms – Risk of loss shall transfer from Hawthorne to Customer at the time the Products are tendered at the place of delivery identified in the sales confirmation provided by Hawthorne, or if none, the purchase order submitted by Customer. Title shall transfer from Hawthorne to Customer at the same point as the transfer of risk of loss.

 

Standard Freight Program – Unless an order is eligible for Hawthorne’s pre-paid freight program, freight will be charged and payable by Customer on all orders. Freight charges will be prepaid by Hawthorne and added to Customer’s invoice. Orders will generally be shipped from Hawthorne’s distribution center that is closest to the Customer’s ship to location. Exceptions may apply as determined by Hawthorne.

 

Pre-Paid Freight Program – Freight is prepaid by Hawthorne on orders equal to or greater than $2,500 and shipped to a destination within Canada. Certain bulky and heavy products will be excluded from Hawthorne’s prepaid freight program. This will include but is not limited to soil, Hydroton®, peat, perlite, and other growing media.

 

Additional Freight Charges – Hawthorne may charge fees, as determined by Hawthorne, which will be payable by Customer for: (i) additional freight/fees on specific Products (i.e., growing media); (ii) $15.00 hazardous material charges for the shipment of hazardous materials as identified by the Safety Data Sheet DOT section (i.e., hydrogen peroxide); and (iii) fuel surcharges. The foregoing charges may be invoiced by Hawthorne before or after delivery of the Products, including by separate invoice. Customer shall pay all such invoices upon demand or as indicated on Hawthorne’s invoice.

 

C.O.D. Shipment Fees – Accounts with C.O.D. terms will be charged the fees assessed by the carrier associated with the C.O.D. shipments.

 

Drop Shipment Fees – A $3.00 per box drop charge will be assessed on all UPS drop ship orders within the US, Puerto Rico and Canada. Minimum drop ship order size is $15.00. Hawthorne reserves the right to approve drop ship order sizes and destinations. If incorrect or incomplete addresses provided by Customer results in additional fees charged by UPS, Customer will be charged back these fees at a flat rate of $20.00.

 

Miscellaneous Shipping Fees – Any fees assessed by parcel or LTL carriers such as residential delivery, limited access, lift gate, signature required, redelivery, inside delivery, etc., will be the responsibility of Customer.

 

Freight Damage and Shortages – At the time of delivery, Customer is responsible for identifying any damage to the Products or shortages and noting such damage or shortage on the delivery receipt. In the event time does not permit Customer to inspect the shipment at the time of delivery, Customer must note on the delivery receipt “subject to inspection and count” or “STIC” before signing for the order. If the delivery receipt is signed as complete / undamaged and at a later point damage or shortages are found, Customer shall bear all risk and cost of damage or shortage. Claims for damage or shortages must be reported to Hawthorne within one (1) business day. Claims reported after one (1) business day shall be deemed waived by Customer. Customer shall contact Hawthorne’s RMA department at 888.582.2RMA (762) with shipment and purchase order information to report a claim.

 

Hawthorne’s Pallets Have Hawthorne-branded Tape Rings – All Hawthorne LTL pallets are wrapped with three rings of tape, one at the top, middle, and bottom. When receiving Hawthorne’s shipment, if the rings of tape or shrink wrap are not intact, Customer is advised to inspect the whole pallet at the time of delivery.

 

Customs – For international shipments, Customer is responsible for all customs clearance, including, without limitation, securing a freight forwarder/customs broker, product classification, taxes, duties, and required export/import documents.

 

Will Call – Customers may will-call orders at Hawthorne’s distribution centers with a two (2) hour notice. Business hours are 9:00 am to 5:00 pm, local time. Will-call orders not picked up within two (2) business days of order placement will be returned to stock and Customer will be invoiced for a 20% restocking fee. Customer’s representatives must sign a liability waiver when picking up will-call orders. Customer shall indemnify, defend, and hold Hawthorne harmless for and against any claims for damage to personal property or personal injury arising from Customer’s pick up of will-call orders.

 

FINANCIAL TERMS

Credit Line – Customer may qualify for an unsecured line of credit upon Hawthorne’s (i) acceptance of a Account Application and Customer Agreement and (ii) review of Customer’s financial statements and other information requested by Hawthorne, which Customer shall submit to Hawthorne for the purpose of Hawthorne’s evaluation of Customer’s credit worthiness and the extension of credit. This information will be kept strictly confidential and used only to determine a Customer’s credit worthiness. Absent a credit line extended by Hawthorne, payment terms are cash-in-advance. Strict compliance with the approved payment terms is a condition of any credit line extended by Hawthorne.

 

Payment Terms – Customer shall pay all invoices in accordance with the terms provided in such invoice.

 

Application of Payments – Payments received shall be first applied to finance charges accrued, then to costs or expenses incurred by Hawthorne that are the responsibility of Customer, then to invoices, each in descending order of due date.

 

Acceptable Forms of Payment – Customers located in the United States and Canada may pay in the form of a company check, personal check, credit card (Visa, Master Card, and American Express), ACH, or wire transfer. Customers located outside the United States and Canada must pay via wire transfer. For all checks, the name of the Customer must be preprinted on the check. No temporary checks will be accepted. All credit cards will be charged prior to order shipment. A completed credit card authorization form must be on file in order to use a credit card. For customers paying by credit card, the “Ship to Address” must match the “Bill to Address” with the exception of drop shipments. Electronic checks are made by providing a routing number, account number, and check number. Hawthorne does not accept payment in the form of cash, money orders, traveler’s checks, cashier’s checks, or temporary checks.

 

Change of Payment Method; Rejected Payments – If an order is purchased under a line of credit provided by Hawthorne, any credit card payment for such order will be subject to a 2% service fee. If an ACH payment fails for non-sufficient funds, any ACH discount will be forfeited. A $40.00 service fee will be assessed for any rejection or return for non-sufficient funds to be drawn by ACH or checks. In the event of any form of payment being declined, Hawthorne may charge another form of payment listed on the Customer’s account or used by Customer in connection with any prior payment.

 

Change in Terms – Hawthorne shall have the right to at any time and from time to time and with or without notice for any reason (i) place Customer on “Stop Ship” or “C.O.D.”, (ii) change payment terms and the amount of any credit line granted by Hawthorne, (iii) require a particular form and timing for payment for certain orders, including cash in advance by wire transfer for international orders, and (iv) require a non-refundable deposit for any order.

 

Past Due Accounts; Collections – A 1.5% per month finance charge, or the highest rate allowed by law, shall be assessed for all invoices over thirty

(30) days past due. Customer shall have a fifteen (15) day grace period after the expiration of the thirty (30) day time period to make full payment. If the grace period expires (e.g. 45 days after the invoice due date elapses) without receipt of payment, finance charges will accrue as of the 31st day after the invoice due date. Accounts with balances aged over ninety (90) days may be turned over for collection by a third party collection agency. All costs expenses of collection of unpaid invoices, any default of Customer, or other obligation owed to Hawthorne, including attorney’s fees incurred by Hawthorne before trial, at trial, and on any appeal and including any fees incurred in any bankruptcy proceeding, shall be the responsibility and added to the balance due and owing.

 

Releasing Orders - Orders placed under accounts with past due balances will be held until the account becomes current even if the account is under the established credit limit. Payments must be received by Hawthorne in order for held orders to be released. Verbal assurances the check has been sent are not sufficient for orders to be released. In this situation, payment may be made via check by email/fax, wire transfer or credit card to expedite the shipment.

 

Disputed Amounts – In the event Customer disputes a charge on an invoice, full payment must be made on the undisputed amount. Customer may not withhold the entire payment amount because of disputed amounts. Any invoice paid short must include memo detailing the specific reason and justification for the short payment. Hawthorne and Customer will work in good faith to resolve any disputes within thirty (30) days. Disputes not resolved in thirty (30) days and remaining unpaid shall be deemed to be past due and owing.

 

Further Assurances – If Hawthorne believes Customer will not fulfill its obligations under any purchase order or these Terms, Hawthorne may suspend performance until Customer provides Hawthorne with adequate assurances or additional security of performance acceptable to Hawthorne.

 

Security Interest – Products delivered by Hawthorne but not paid in full remain the collateral of Hawthorne until full payment has been received from Customer. Customer grants Hawthorne a security interest in such Products and consents to Hawthorne causing the filing of financing statement and notifications to other creditors in connection with perfecting such security interest under applicable law. Hawthorne reserves the right to remove or repossess Products from Customer’s locations if Customer fails to remit timely payment to Hawthorne.

 

WARRANTY TERMS

Manufacturer Product Warranty – Hawthorne shall pass through to Customer all product warranties, if any, for the Exclusive Products and Non-Exclusive Products provided by the third party manufacturer that are capable of transfer and which Hawthorne has the right to make a claim (each a “Manufacturer Product Warranty”); provided, however, Hawthorne is not responsible for any such Manufacturer Product Warranty, costs of shipping or return, any service or remedies under such Manufacturer Product Warranty, if any, or any warranty claim not honored by the third party manufacturer. Customer is advised to consult the manufacturer’s literature or packaging for specific information and coverage of any Manufacturer Product Warranty, which will vary by product type, and is the sole and exclusive remedy of Customer with respect to defective Exclusive Products and Non-Exclusive Products. Exclusive Products and Non-Exclusive Products that are defective and not covered by a Manufacturer Product Warranty are not returnable to Hawthorne for credit or refund. If Hawthorne elects to do so, Customer’s warranty claim under any Manufacturer Product Warranty may be satisfied by Hawthorne on the third party manufacturer’s behalf by the repair or replacement of the warranted Product or issuance of a non-refundable credit memo to be applied to any current or future invoices due and owing to Hawthorne; provided, that, upon Hawthorne’s request and as a condition of such remedy, Customer shall obtain and assign, in a form acceptable to Hawthorne, all rights to such warranty claim to Hawthorne. If the third party manufacturer ceases operations, the Manufacturer Product Warranty shall be null and void. If for any reason Hawthorne discontinues distribution of an Exclusive Product or Non-Exclusive Product, all warranty claims under the applicable Manufacturer Product Warranty shall be tendered by Customer directly to the third party manufacturer.