Terms & Conditions

TERMS AND CONDITIONS -Bespoke Fragrance

 

1. Applicability.  These General Terms and Conditions of Sale (these “Terms”) are the only terms which governs the sale of the goods and services (“Goods” and “Services”) by Pasithea’s Garden (“Seller”) and buyer of the Goods and Services (“Buyer”). Seller provides Goods and Services to you subject to the following terms and conditions. This agreement (“Agreement”) comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Agreement may only be amended or modified in a writing which specifically states that it amends the Agreement and is signed by an authorized representative of each party.

 

1. Delivery.  The Goods and/or Services will be delivered within a reasonable time after the receipt of Buyer’s purchase order (“Order”), subject to the availability of Goods. Seller shall not be liable for any delays, loss or damage in transit.

 

1. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods or Services to a location agreed upon between the parties (“Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods and/or Services.
    

2. If Buyer opts to purchase a Service, Seller may provide an initial consultation meeting (“Initial Meeting”) with Buyer to create [NUMBER] sample sized fragrances of which one will be used to create the final fragrance product. Buyer is entitled to two revisions to the fragrance free of charge, however, any subsequent amendments to the fragrance will be charged at the standard rate of [AMOUNT] per modification. 

 

1. If for any reason, Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

 

1. Non-Delivery. The quantity of any installment of Goods as recorded by Seller on dispatch to the Delivery Point is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
    

2. Price. Buyer shall purchase the Goods and/or Services from the Seller at the price[s] (the “Price[s]”) set forth in the Order. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
    

3. Payment Terms. Buyer shall pay all invoiced amounts immediately upon request from Seller. Buyer shall make all payments hereunder in US dollars. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorney’s fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of Goods or Services if Buyer fails to pay any amounts when due hereunder and such failure continues for 7 days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. All payments shall be made via [PAYMENT VENDOR], a secure encrypted connection so that Buyer’s credit/debit card details remain secure and confidential. Seller shall not be held liable for any data breaches that occur by third party payment vendors. 

 

1. Limited Warranty.    

 

1. Seller warrants title to material and that all materials sold hereunder shall conform to Buyer’s attached specifications. EXCEPT FOR THE WARRANTY SET FORTH IN THE FOREGOING SENTENCE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.   

 

1. The Seller shall not be liable for a breach of the warranty set forth in Section 6(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; (iii) Buyer alters or repairs such Goods without the prior written consent of Seller; or (iv) after delivery by the Seller per Section 2, the Goods have been subject to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or used with any hardware, software, or other product that has not been previously approved in writing by Seller.
    

2. Subject to Section 6(b) above, with respect to any such Goods or Services that do not conform to the warranty set forth in Section 6(a), Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller. THE REMEDIES SET FORTH IN THIS SECTION 6(c) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 6(a).

 

1. Limitation of Liability.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER. 

 

1. Compliance with Law.  Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
    

2. Termination; Cross-Default.  In addition to any remedies that may be provided under these Terms, Seller may (a) terminate this Agreement with immediate effect upon written notice to Buyer, and/or (b) at its election, may take possession of the Goods or immediately stop providing such Services,  if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If Buyer defaults under the Agreement and any other agreement between Buyer and Seller and such default has not been cured within any applicable grace or cure period, such default shall be a default of the Agreement and each of the Seller Agreements. 

 

1. Hazards.  Buyer acknowledges that there are hazards associated with the Goods and/or Services that it understands the health and safety risks associated with such hazards through the storage and use of the Goods.  Buyer shall indemnify, defend and hold Seller harmless from and against any liability incurred by Seller because such warnings were not made.  Buyer assumes full responsibility and risk and releases Seller from liability for loss, damages or injury to persons or to property of Buyer or others arising out of the storage or use of the Goods after delivery.
    

2. Waiver.  No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

1. Confidential Information.  All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section 12. This Section 12 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
    

2. Personal Data and Security Policy. Seller will use Buyer’s personal data in accordance with all applicable state and federal rules, laws, and regulations. Where required by law, Buyer’s personal data may be made available to third parties. Personal data collected at the time of the Order of Goods and Services will only be used to process the Order and to communicate with the Buyer regarding Seller products and services. Buyer’s submittal of persona data is Buyer’s consent to use such data as set forth in this section 13. 

 

1. Non-Circumvention. Buyer shall not, directly or indirectly, except in collaboration with or with the prior express written consent of Seller: (a) enter into any transaction with any parties introduced to Buyer by Seller (the “Introduced Party”) similar to, in competition with, or which otherwise could have the effect of preventing Seller from receiving the full benefit of, the transactions contemplated by this Agreement; (b) solicit the Introduced Party to enter into any such transaction; or (c) induce, solicit, procure, or otherwise encourage its officers, agents or any third party, or respond to any solicitation from any of the same, to enter into any such transaction.
    

2. Force Majeure.  Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent, in Seller’s determination, such failure or delay is caused by or results from acts beyond Seller’s control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, explosions or other restrictions from the government related therewith temporarily in place and restricting performance; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; (i) inability or delay in obtaining supplies of adequate or suitable materials; (j) unavailability of equipment from vendor; and (k) other similar events beyond the control of Seller. Within 3 days after Seller determines that a Force Majeure Event has occurred or begins to occur, Seller shall give notice to Buyer of the Force Majeure Event, stating the period of time the occurrence is expected to continue. Seller shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. Seller shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If a Force Majeure Event only partially reduces Seller’s ability to deliver Goods, Seller may prorate its available supply among Buyer and Seller’s other customers in its discretion.  Seller is not obligated but, at Buyer’s request or authorization, may use commercially reasonable efforts to obtain the Goods from another source or take other action to perform this Agreement, provided Buyer reimburses Seller for any additional costs and expenses incurred by Seller in connection therewith. Buyer acknowledges Seller may not be able to perform its obligation under this Agreement, and is excused from performance of this Agreement, if a Force Majeure Event is ongoing.  

 

1. No Third-Party Beneficiaries.  This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

 

1. Governing Law.  All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.

 

1. Submission to Jurisdiction.  Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Austin and County of Travis, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

 

1. Notices.  All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 18.

 

1. Severability.  If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

1. Survival.  Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information Governing Law, Limited Warranty, Limitation of Liability, Submission to Jurisdiction and Survival.

 

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