KIVA SALES & SERVICE INC.

TERMS & CONDITIONS

1. These KSS Retailer Terms (“Terms”) are a binding legal agreement between the purchaser (“Purchaser”) of cannabis products (“Products”) from Kiva Sales & Service Inc. (“KSS”) and KSS. By accepting an order of Products from KSS, Purchaser agrees to this binding legal agreement between Purchaser and KSS (the “Parties”). If you, the Purchaser, do not agree to these Terms, you must not place an order with KSS or accept an order from KSS.


2. These Terms are the sole agreement between Purchaser and KSS, and the Parties hereby reject any additional terms contained in any invoices or purchase orders provided by any of the Parties that are inconsistent with these Terms, provided, however, that notwithstanding the foregoing, any agreements signed by authorized representatives of both Parties, including without limitation any nondisclosure agreements or marketing agreements, shall govern in the event of any direct conflict between such agreements and these Terms. In the event of any modification to these Terms, KSS will notify Purchaser in writing. Purchaser’s continued purchase of Products from KSS shall be deemed an acceptance of the modified terms.


3. Purchaser may submit purchase orders through KSS’s online ordering system or through KSS personnel. KSS cannot guarantee the availability of any Products for which an order is submitted and reserves the right to reject any order at any time in its sole discretion. While KSS agrees to use commercially reasonable efforts to meet the shipping and delivery dates provided online, we shall not be responsible for any delays in shipments for any reason.


4. Purchaser will be billed at the prices stated at the time of order acceptance, and Purchaser is responsible for all sales, use, excise, and related taxes and shipping and handling charges. Subject to the provisions of Sections 4, 5, and 6, payment for goods received is due upon terms reflected on shipping manifest. Alternate terms can be requested but must approved by KSS’s Director of AR, Credit, and Collections. A letter of terms will be sent to the named contact stating the new terms, if approved. Until such time as the new terms are approved in writing, all payments will be due upon the invoice date. Only the Director of AR, Credit, and Collections, the Vice President of Accounting, the Chief Financial Officer, or Chief Executive Officer of KSS has the authority to approve, issue, or extend credit. If Purchaser exceeds its credit limit with KSS due to past due invoices that remain unpaid, Purchaser acknowledges and agrees that KSS may refuse to ship new orders of Products. At KSS’s option at any given time, KSS reserves the right to require payment in advance or COD, posting of a letter of credit, additional deposits, or otherwise to modify credit or payment terms.


5. All amounts due to KSS are payable in accordance with the payment terms granted by KSS pursuant to these Terms. If any amount due to KSS is not paid in accordance with such payment terms, a delinquency charge shall be added to the sum due, the payment delinquency charge shall equal the amount invoiced multiplied by one and a half percent (1.5%) per each month overdue (or, if lower, the maximum amount allowed by law). Purchaser agrees to accept partial shipments in satisfaction of a single purchase order. When partial shipments are made, pro-rata payments shall become due in accordance with the designated terms for each shipment. If KSS accepts partial payment in an amount less than the full amount of any invoice, such acceptance shall neither constitute a waiver of KSS's right to collect the balance nor an accord and satisfaction, notwithstanding KSS's endorsement of a check or other instrument. In the event of Purchaser's bankruptcy or insolvency, KSS shall be entitled to cancel any order then outstanding without waiving any claims in law or equity. If Purchaser fails to comply with these Terms, KSS reserves the right to withdraw credit or suspend or cancel performance under any or all purchase orders or agreements, and all Purchaser’s obligations to KSS shall become immediately due and payable.


6. Purchaser shall have no right to withhold or offset any amount due to KSS under these Terms because of a claim that the Purchaser may have against KSS. Purchaser may not use any credit offered by the brand or manufacturer to offset any amount owed to KSS unless and until KSS receives all proper written authorization of such credit from the brand or manufacturer and approves the submission of such credit. In the event Purchaser’s account is turned over to an attorney or a collection agency due to delinquency, Purchaser shall pay all reasonable attorney’s fees, court costs, and other expenses incurred by KSS or the collection agency. Purchaser shall pay KSS a service charge in the amount of $25.00 for each check returned by Purchaser’s bank. In the event that more than two checks are returned by Purchaser’s bank or banks within five years, KSS may refuse to accept checks from Purchaser and may require payment by another method acceptable to KSS.


7. Purchaser agrees that all amounts are due and payable in full immediately upon any change in ownership of Purchaser, a judgment against Purchaser or filing of a lien against Purchaser, appointment of a receiver to oversee Purchaser’s business, purchaser filing for bankruptcy or being forced into bankruptcy proceedings, or the insolvency of Purchaser. Purchaser shall notify KSS by certified mail of any changes of ownership or upon entering into a contractual agreement to sell all or a portion of the Company of Purchaser.


8. Purchaser shall inspect the Products upon delivery. Upon receipt of goods and signature on the shipping manifest, the Purchaser shall have accepted the Products, and the Purchaser thereby acknowledges that all merchandise ordered and listed on the shipping manifest has been ordered and received. Without limiting the foregoing, KSS WILL NOT ACCEPT CLAIMS OF BREAKAGE, SHORTAGE, NON-CONFORMITY, OR DAMAGE ACKNOWLEDGED AFTER RECEIPT OF GOODS. Upon Purchaser having accepted the Products, KSS WILL NOT ACCEPT RETURNS FOR ANY REASON.


9. The sale of any Products to Purchaser in no way conveys to Purchaser, either expressly or by implication, any intellectual property license whatsoever.


10. KSS warrants that the Products, upon delivery to Purchaser, comply in all material respects with California laws relating to product quality, labeling, identity, quantity, or packaging. EXCEPT FOR THE FOREGOING SENTENCE, TO THE MAXIMUM EXTENT ALLOWED BY CALIFORNIA LAW, KSS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.


11. KSS WILL NOT BE LIABLE TO PURCHASER UNDER ANY THEORY OF LIABILITY OR ANY FORM OF ACTION (INCLUDING WITHOUT LIMITATION NEGLIGENCE OR STRICT LIABILITY) FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, OR SAVINGS, OR THE LOSS OF USE OF ANY PRODUCT OR ANYTHING PROVIDED FROM ONE PARTY TO THE OTHER, EVEN IF KSS HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF.


12. An order pursuant to these Terms shall not be rescheduled or cancelled by Purchaser (in whole or in part) except with the prior written consent of KSS. KSS reserves the right to cancel any orders placed by Purchaser, or to refuse or delay shipment thereof, if Purchaser: (a) fails to make any payment as provided in these Terms or under the terms of payment set forth in any invoice or otherwise agreed to by KSS and Purchaser, (b) fails to meet reasonable credit or financial requirements established by KSS, including any limitations on allowable credit, or (c) otherwise fails to comply with these Terms.


13. In the event that Purchaser owes a balance to KSS and an affiliate of KSS, including without limitation Kiva Brands, Inc., owes any amounts to Purchaser, such affiliate may pay the amounts it owes Purchaser, up to the amount owed by Purchaser to KSS, directly to KSS. All amounts so paid shall be credited by KSS to Purchaser’s account, and Purchaser agrees that such amounts shall correspondingly reduce the amounts owed by such affiliate to Purchaser.


14. These Terms shall be governed by and construed according to the laws of the State of California, without regard to conflict of laws provisions. No modifications to these terms and conditions herein shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdictions, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of such provision in any other jurisdiction. No waiver of any breach of any provision of these Terms shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof. A Party’s failure to enforce the terms of this Agreement shall not waive any of such Party’s rights hereunder, as no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. These Terms constitute the entire agreement between Purchaser and KSS with respect to the Products purchased and supersede all prior or contemporaneous negotiations, understandings, and agreements.


15. The Parties hereby acknowledge that they are aware of and fully understand that commercial cannabis activity is still unlawful under federal law. In the event of arrest, seizure, or a prosecution action pursuant to such federal law associated with the Parties’ activities under this Agreement ("Federal Action"), the Parties hereby agree that (a) in the event the Federal Action relates to actions that are breach of state or local law by only one Party, such breaching Party shall hold the other harmless and, otherwise, (b) each Party shall be individually responsible for its own attorneys’ fees associated with defending such actions. The Parties also hereby agree to waive illegality with respect to commercial cannabis which is otherwise conducted in accordance with applicable state and local law as a defense to any contract enforcement action.


16. If a dispute arises between or among any of the Parties regarding the performance, interpretation, validity, or alleged breach of this Agreement or any alleged liability arising from acts or omissions related to this Agreement (each, a “Dispute”), the Parties shall settle the Dispute through binding arbitration (the “Arbitration”) under the Comprehensive Arbitration Rules and Procedures (the “Rules”) of Judicial Arbitration and Mediation Services, Inc. (“JAMS”). A single disinterested third-party arbitrator with familiarity with the cannabis industry shall be selected by JAMS in accordance with its then current Rules. The Arbitration shall be initiated by a Party by delivering written notice of intent to arbitrate to the other Parties (the “Dispute Notice”) in accordance with the terms of this Agreement. Within thirty (30) days after delivery of the Dispute Notice, unless the Parties mutually agree otherwise, the Arbitration shall be initiated and administered by and in accordance with the then current Rules. The Arbitration shall be held in San Francisco, California unless the Parties mutually agree to have such proceeding in some other location, with the exact time and location shall be decided by the arbitrator(s) selected in accordance with the then current Rules. The arbitrator shall apply California substantive law. The arbitrator selected shall have the power to enforce the rights, remedies, duties, liabilities, and obligations of discovery by the imposition of the same terms, conditions, and penalties as can be imposed in like circumstances in a civil action by a court of competent jurisdiction of the State of California. The arbitrator shall have the power to grant all legal and equitable remedies provided by California law and award compensatory damages provided by California law, except that punitive damages shall not be awarded. In the event a Party prevails on substantially all of its claims and defenses, as applicable, the arbitrator will award reasonable attorneys’ fees and arbitration costs to the prevailing Party. The arbitrator exceeds his or her powers by voiding or refusing to enforce any agreement between the Parties based solely on the cannabis-related nature of the Agreement; provided that such arbitrator does not exceed his or her powers by voiding or refusing to enforce any agreement between the Parties based on violations of any applicable state and local law regulating cannabis. The arbitrator shall prepare in writing and provide to the parties an award including factual findings and the legal reasons on which the award is based. The arbitration award may be enforced through an action thereon brought in the Superior Court for the State of California in San Francisco County.


17. Each Party waives any right to bring a class action or class arbitration in connection with these Terms or the products sold by KSS to Purchaser.


SALES-BASED DIRECT DEBIT TERMS & CONDITIONS

If the payment terms stated on an invoice contain the language “Consignment” or “Sales-Based”, the following terms (“Sales-Based Direct Debit Terms”) apply in addition to the Terms set out above. Such invoices are referred to herein as “Sales-Based Invoices”. In the event of a direct conflict between the Terms set out above and these Sales-Based Direct Debit Terms, these Sales-Based Direct Debit Terms shall govern.


18. Purchaser shall pay KSS the price for each unit of Product set out in any Sales-Based Invoices upon the soonest of (a) the first Payment Date following Purchaser’s sale of such unit of Product, (b) the first Payment Date following the passing of the expiration date or best by date of such Product, (c) the first Payment Date following the passing of 365 days after Purchaser has received such Product from KSS, (d) the insolvency or bankruptcy of Purchaser, or the appointing of a receiver to manage Purchaser’s business, or (e) the first Payment Date following Purchaser’s transfer of such unit of Product to another party. KSS may debit Purchaser’s Deposit Account on each Payment Date in the amounts set forth below.

19. The “Payment Date” means Wednesday of each week, unless a different frequency is explicitly set out in the payment terms stated on the Sales-Based Invoice (e.g., “Sales-Based Direct Debit: Debits Every Other Wednesday”.


20. Purchaser shall grant KSS read-only access to all of Purchaser’s sales tracking systems relating to any Products sold pursuant to Sales-Based Invoices, including without limitation Headset or any analogous system, so that KSS may verify the amounts of any sales of Products listed on Sales-Based Invoices. Purchaser shall ensure KSS retains the access set forth above for as long as Purchaser has not fully paid for such Products.


21. Approximately two days before each Payment Date, KSS shall send Purchaser a notice of the amount to be debited from Purchaser’s Deposit Account (as defined below) (such notice, the "Debit Notice") for any Products for which KSS knows that payment is due (as set out in Section 17) and for which KSS has not yet been paid. If KSS does not have access to Purchaser’s sales and inventory tracking systems for more than one (1) business day after KSS provides written notice such access is unavailable, which such notice may be delivered by email to an email address regularly used by Purchaser in connection with communications to KSS, then, without prejudice to KSS’s rights to collect the full amount owed with respect to sales in such week, KSS may send weekly Debit Notices for 110% of the amount of the previous week’s (or other applicable period’s) Debit Notice, and any amount by which such Debit Notice exceeds the amount actually due with respect to Purchaser’s sales shall be applied to any amounts that are currently owed by Purchaser to KSS or come to be owed by Purchaser to KSS.


22. All of the payments received by Purchaser for the sale of the Products shall be deposited in the account with respect to which Purchaser has filled out an ACH Authorization Agreement on the form provided by KSS (such account, the “Deposit Account”). Purchaser shall maintain sufficient funds in the Deposit Account to satisfy each Debit Notice in its entirety. KSS shall have the right to debit (or ACH) any of the Deposit Account for the amount of each Debit Notice when due. In the event KSS makes any error with respect to a debit, then KSS shall promptly return any portion of the funds that was improperly debited or, in the event of an errant under-debit, initiate another debit to make up the difference.


23. Without limiting any of KSS’s rights at law or equity, in the event any ACH payment fails for reasons other than KSS’s negligence or material breach of this Agreement, then Purchaser shall owe a returned payment fee of 3% of the failed payment. In the event any amount owed by Purchaser hereunder is not paid within ten days of the day it is due, then such amount owed will increase by the lesser of (a) 2% monthly from the day it was due (including partial months pro-rated based on the number of elapsed days) or (b) the highest amount allowed by law. Additionally, without limiting the foregoing or any of KSS’s rights at law or equity, in the event any amount owed by Purchaser hereunder is not paid when due or Purchaser fails to provide the access set out in Section 19 for more than 24 hours, then KSS may take one or more of the following actions, upon written notice to Purchaser:

1. Suspend or limit sales to Purchaser;
2. Require that a percentage of the amount due pursuant to a Sales-Based Invoice be paid up front, which such amount would be applied pro rata (based on price) to each Product on the Sales-Based Invoice;
3. Impose a surcharge on future purchases pursuant to Sales-Based Invoices; and
4. Change the payment due date all Sales-Based Invoices to a date that is no less than 30 days after the notice date.


24. In the event KSS owes Purchaser any shelving, slotting, marketing, per-unit, or similar fees related to the Products, such fees shall be due only when the Products are sold by Purchaser to its retail customers and shall be deducted from the amounts Purchaser pays KSS hereunder in connection with such sales. In no event shall KSS need to make cash payments of such fees or otherwise come out of pocket for such fees.


25. Purchaser shall keep true, complete, and accurate records of its sale and possession of Products and shall give representatives of KSS access to such records during business hours. Additionally, Purchaser shall permit KSS to inspect and review and audit Purchaser’s records pertaining to the sales of the Products. The cost of any such audit shall be borne by KSS unless the audit reveals a discrepancy of at least 5% in the amount owed KSS, in which case Purchaser shall bear the cost of the audit.


26. At any time that (a) Purchaser has not fully paid for the amounts due pursuant to a Sales-Based Invoice and (b) the parties have not performed an Inventory Audit within the last three months, KSS can request that Purchaser provide KSS a list of all the Products in Purchaser’s inventory (an “Inventory Audit”). In the event that there is a shortfall between Purchaser’s inventory and the number of Products purchased pursuant to Sales-Based Invoices for which Purchaser has not yet paid KSS (for example, due to shrink or expired product), then KSS may debit the amount of the shortfall on any future Payment Date.


27. Purchaser shall conduct all of its business relating to the processing of the Products in Purchaser's name and at Purchaser's cost and expense. Nothing herein shall authorize or empower Purchaser to assume or create any obligation or responsibility whatsoever, express or implied, on behalf or in the name of KSS, or to bind KSS in any manner, or to make any representation, warranty, or commitment on behalf of KSS, the relationship between the Parties being limited solely to the sale of the Products herein specified.