AUTHORIZED RETAILER TERMS & CONDITIONS

Scarecrow, Inc. (“Scarecrow” or “SVF”) has implemented these Scarecrow Authorized Retailer Purchase Terms & Conditions (“Terms”), which apply to retailers of Scarecrow products (“Products”) in the United States of America. By purchasing Products from SVF for retail sale, you (hereinafter “Retailer,” “you,” or “your”) agree to adhere to the following terms.  Please read these terms carefully. Until such status is otherwise revoked by SVF at its sole and absolute discretion, Retailer shall be considered an “Authorized Retailer” hereunder.

1. MINIMUMS - Vary based on Store Type which is determined by SVF upon AOSA review.

• All merchandise per order must be shipped to the same address

• No drop shipments to consumers or individual store locations

2. PAYMENT TERMS  – SVF reserves the right to sell (or not sell) products to any company or any retailer and can rescind discounts or deny shipment on any Purchase Order at any time at its discretion without explanation or liability.

1. PREPAY - All First & Second-year domestic orders, including shipping charges and, ALL Exports

2. NET 30 - In the third year, customer may request Net 30 Terms  

3. HALLOWEEN DATING - Orders of $1,500.00 or more with approved credit •DEPOSIT OF 1/3 OF INVOICE before merchandise will be allocated•Dating available June through September only (other months revert to Net 30)•All balances due on or before November 10th of the same year

4. PAYMENT METHODS 

1. Check

2. Credit Card  - Please pay online at www.plastiq.com

3. Wire Transfer - Bank info: 

CHASE BANK New York, Routing No. 322271627

Scarecrow Inc., Account No. 777920997

431 Leoni Drive #1 Grover Beach CA 93433

3. DEFAULT OF PAYMENT - SVF reserves the right to terminate credit terms and/or any discounts without notice for any reason, especially due to late or non-payment of any deposit or invoice.

1. Any Invoice unpaid as of 12/01 of any year is subject but not limited to interest accrual of 1-1/2% per month beginning on that date for 60 days.

2. On the 90th day past due, all discounts on unpaid invoices are REVOKED and line items revert to "Full Wholesale Price" as published in the Price List as of the date the order was placed. Customer has 30 days to pay all invoices at the higher rate in order to prevent referral to Collection Agency.

3. On the 120th day past due, SVF adds a "collection fee" of $150.00 and sends the Invoice to Collection Agency. The Collection Agency adds their fee on top of Scarecrow’s prices, interest, fees and charges, an amount determined by Collection Agency, and that amount will be payable directly to the Collection Agency to clear your credit. Credit Terms will be permanently revoked by SVF.

4. DELIVERY – SVF uses our own shipper exclusively. No deliveries will be charged to a customer’s shipper account. Shipping dates cannot be guaranteed but all orders will be shipped as close to customers requested delivery dates as possible. We cannot notify every customer by telephone before every order ships. All merchandise will be shipped insured at customer’s expense unless it is a palletized delivery. Customer will be responsible for freight, insurance and handling charges (cost may vary depending on order size) applied to all shipments including backorders, palletizing fees for large orders (again, cost may vary), wire transfer fees, foreign order processing fees and other incidentals as listed on Invoices. Are imbursement equal to what the SVF shipper charges will be invoiced for each change of address to forward a shipment if SVF office is notified after it ships.

5. STORAGE, CLAIMS & RETURNS - Store and display all merchandise out of direct sunlight in a cool, dry area. SVF merchandise is thoroughly inspected before it leaves our warehouse. Products cannot be returned because of lack of sale, improper use or storage, or any loss of damage after delivery to customer by any cause, including without limitation: fire, water, leakage, theft, negligence or breakage. Claims on damaged orders due to carrier’s negligence will be filed with carrier and require customer's cooperation.

6. CANCELLATION, CHANGES, ADDITIONS, DELETIONS - Merchandise is manufactured for customers PER ORDER on a first come, first served basis. This order represents a reservation of merchandise by the customer. If any order is changed or cancelled, it may cause a customer account to enter into default, forfeiture of merchandise or discounts.

FURTHER:

1. Purchase Orders and Products. (“Purchase Orders”) made by Retailer shall be handled pursuant to Scarecrow’s then-current product order, shipment, and return procedures LISTED ABOVE which may be amended by Scarecrow at any time in its sole and absolute discretion. A completed order form, purchase order,telephone or online order of any kind constitutes an AGREEMENT between SCARECROW INC., A California Corporation, and customer to enter into a contract pursuant to the terms and conditions specified herein.  The person signing this form is agent of Customer and both Customer and signatory are liable for full payment of all invoices and subsequent reorders under the Customer and/or Owner Name. Scarecrow reserves the right to reject any Purchase Order, in whole or in part, for any reason. Scarecrow reserves the right, at any time in its sole and absolute discretion and without any obligation, liability or advance notice to Retailer, to discontinue the sale of or limit the production of any Product, to terminate or limit deliveries of any Product, to alter the design or composition of any Product, and to add new and additional products to or delete existing Products from its product lines.

2. Manner of Sale.  Retailer shall sell the Products only as set forth herein.  Otherwise, the Products may not be eligible for certain services and benefits, including, wherever permitted by law, coverage under Scarecrow’s Product warranties or guarantees.

1. Authorized Customers.  Retailer shall sell Products solely to End Users of the Products.  An“End User” is any purchaser of the Product(s) who is the ultimate consumer of the Product and who does not intend to resell the Product to a third party.  Retailer shall not sell to anyone a quantity of the Products greater than that generally purchased by an individual for personal use.  Retailer shall not sell or transfer any of the Products to any person or entity for resale without the prior written consent of Scarecrow.  This includes sales to B2B accounts, wholesalers, freight forwarders/drop shippers for other retailers, or any other person or entity Retailer knows or has reason to know intends to resell the Products.  

2. Geographic Location of Sales.  Retailer shall not sell, ship, or invoice Products to customers outside of the United States of America without the prior written consent of Scarecrow.

3. Online Sales.  Retailer shall not market or offer for sale the Products on or through any publicly accessible website, including, without limitation, any third-party marketplace website such as Amazon, eBay, Jet, Rakuten, Walmart Marketplace, or Sears Marketplace, without the prior written consent of Scarecrow, which is granted solely through execution by Scarecrow of the Scarecrow, Inc. Authorized Online Seller Agreement.  Execution by Scarecrow of the Scarecrow, Inc. Authorized Online Seller Agreement constitutes the only means of providing consent to sell the Products online on publicly accessible websites.  No Scarecrow employee or agent can authorize online sales through oral statements, other written agreement, or by any other means.  These Terms supersede any prior agreement between Scarecrow and Retailer regarding the sale of the Products online.  Any authorization previously granted to Retailer by Scarecrow to sell the Products online is hereby revoked.

4. Sales Practices and Inventory. Retailer shall support Scarecrow’s sales programs and use best efforts to advertise, promote, market and sell the Products to its authorized customers and, as applicable, meet or exceed minimum sales commitments.  Retailer shall conduct its business in a reasonable and ethical manner at all times, whether engaged in the sale of Scarecrow Products or other products, and shall not engage in any deceptive, misleading or unethical practices or advertising at any time, nor make any warranties or representations concerning the Products except as expressed or authorized by Scarecrow.  Retailer shall comply with any and all applicable laws, rules, regulations, and policies related to the advertising, sale and marketing of the Products.  Further, Retailer shall carry an inventory of the Products adequate to meet the needs of, and to furnish prompt and efficient delivery of Products to its customers.

5. Product Packaging and Display. Retailer will not separate any component of product from its packaging and offer that packaging for sale.  Retailer shall sell Products in their original packaging.  Relabeling, repackaging (including the separation of bundled products or the bundling of products), and other alterations are not permitted. Tampering with, defacing, or otherwise altering any serial number, UPC code, or other identifying information on Products or their packaging is prohibited.  Retailer shall not remove, translate, or modify the contents of any label or literature on or accompanying the Products. Retailer shall not advertise, market, display, or demonstrate non-Scarecrow products together with the Products in a manner that would create the impression that the non-Scarecrow products are made by, endorsed by, or associated with Scarecrow.

6. Customer Service. Retailer and Retailer’s sales personnel shall be familiar with the special features of all Products marketed for sale and must obtain sufficient Product knowledge to advise End Users on the selection and safe use of the Products, as well as any applicable warranty, guarantee, or return policy.  Retailer shall be available to respond to customer questions and concerns both before and after sale of the Products and should endeavor to respond to customer inquiries promptly. Retailer and Retailer’s agents must represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of Scarecrow. Retailer agrees to cooperate fully with SVF in any investigation or evaluation of such matters.

7. Intellectual Property. Retailer acknowledges and agrees that Scarecrow is the owner of all proprietary rights in and to the SCARECROW® brand, name, logo, trademark, service mark, trade dress, copyright, and other intellectual property related to the Products (the “Scarecrow IP”).  Retailer is granted a limited, non-exclusive, non-transferable, revocable license to use the Scarecrow IP solely for purposes of marketing and selling the Products as set forth herein.  This license will cease immediately upon termination of Retailer’s status as an Authorized Retailer.  Scarecrow reserves the right to review and approve, in its sole discretion, Retailer’s use or intended use of the Scarecrow IP at any time, without limitation.  All goodwill arising from Retailer’s use of the Scarecrow IP shall inure solely to the benefit of Scarecrow.

3. Product Care and Quality Controls.  Retailer shall care for the Products as set forth herein:

1. Product Storage and Handling. Retailer shall exercise due care in storing, handling and displaying all Products shall fully comply with any and all instructions provided by SVF regarding any aspect of the Products, including, but not limited to, storage handling, and shipping.

2. Product Inspection.  Promptly upon receipt of the Products, or within 5 days, Retailer shall inspect the Products for damage, defect, or other non conformance (collectively, “Defects”).  If any Defect is identified, Retailer must not offer the Product for sale, and must promptly report the Defect to Scarecrow at [email protected]

3. Recalls and Consumer Safety.  To ensure the safety and well-being of the End Users of the Products, Retailer shall cooperate with Scarecrow with respect to any Product recall or other consumer safety information dissemination effort.  Should Retailer learn of any incident that could reflect or indicate a safety concern associated with any Product, Retailer shall promptly report the incident or other information learned to Scarecrow at [email protected].      

4. Warranty. SCARECROW INC. MAKES NO REPRESENTATION OR WARRANTY TO RETAILER OF ANY NATURE OR KIND REGARDING THE PRODUCTS.  SVF DISCLAIMS ALL OTHER WARRANTIES TO RETAILER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARISING BY OPERATION OF LAW, COURSE OF DEALING, CUSTOM OF TRADE OR OTHERWISE.  SVF’S SOLE OBLIGATION AND LIABILITY TO RETAILER IN RESPECT OF ITS WARRANTY AS SET FORTH IN THE STATEMENT OF WARRANTY SHALL BE, AT ITS OPTION, TO REPAIR OR REPLACE THE RELEVANT PRODUCT AT ITS COST.

5. Termination.  In addition to all other available remedies, if Retailer breaches any of the Terms,Scarecrow reserves the right to terminate the Terms immediately in addition to all other available remedies.Upon termination, Retailer will immediately lose its status as an Authorized Retailer and shall immediately cease(i)selling the Products; (ii) acting in any manner that may reasonably give the impression that Retailer is an Authorized Retailer of Scarecrow Products or has any affiliation whatsoever with Scarecrow; and (iii) using all Scarecrow IP.

6. Indemnification.  Except as otherwise provided herein, each Party shall, and hereby does, indemnify,defend, save and hold harmless, the other Party, and its directors, officers, employees, shareholders, partners,counsel, auditors, accountants, agents, advisors and all other representatives and each of the heirs, executors,successors and assigns of any of the foregoing, from and against any and all losses, liabilities, obligations,actions, causes of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, covenants,contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims,and demands whatsoever, in law, admiralty, or equity, known or unknown of any kind to the extent they are caused by, arise from, or are incurred in connection with (a) any breach of, or failure to perform, any term,covenant or condition in the Terms by the indemnifying Party, or (b) the negligence or willful misconduct of the indemnifying Party or its officers, employees, agents or contractors.

7. Limitation of Liability.  SCARECROW SHALL NOT BE LIABLE TO RETAILER UNDER ANY CIRCUMSTANCES FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF SALES, OR LOSS OF PROFITS.  SCARECROW’S AGGREGATE LIABILITY FOR ANY DAMAGE OR THAT OF ANY THIRD PARTY CAUSED BY ITS PRODUCTS OR OTHERWISE BY IT ACTS OR OMISSIONS, SHALL NOT EXCEED, IN RESPECT OF ANY CLAIM ARISING OUT OF A SINGLE EVENT OR A SERIES OF CONNECTED EVENTS, THE AGGREGATE AMOUNT PAYABLE BY RETAILER TO SCARECROW DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSATION OF ANY DAMAGES.  THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY HOWEVER THE LOSS OR DAMAGE IS CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, BREACH OF CONTRACT, DELAY OF PERFORMANCE, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE,WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.

8. Availability of Injunctive Relief. Notwithstanding anything to the contrary herein, if there is a breach or threatened breach of Sections 2 (Manner of Sale), 3 (Product Care and Quality Controls), 5 (Intellectual Property), or 6 (Termination) of the Terms, it is agreed and understood that Scarecrow will have no adequate remedy in money or other damages at law. Accordingly, Scarecrow shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in the Terms of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of the Terms. No failure, refusal, neglect, delay, waiver, forbearance, or omission by Scarecrow to exercise any right(s) herein or to insist upon full compliance by Retailer with Retailer’s obligations herein shall constitute a waiver of any provision herein or otherwise limit Scarecrow’s right to fully enforce any or all provisions and parts thereof.

9. Audit.  Scarecrow reserves the right to audit and/or monitor Retailer’s activities for compliance with the Terms, including, but not limited to, inspection of Retailer’s facilities and records concerning the Products.

10. Miscellaneous.

1. Modifications.  Scarecrow reserves the right to update, amend, or modify the Terms upon written or electronic notice to Retailer.  Unless otherwise provided, such amendments will take effect immediately and Retailer’s continued use, advertising, offering for sale, or sale of the Products, use of the Scarecrow IP, or use of any other information or materials provided by Scarecrow to Retailer under the Terms following notice of the amendments will be deemed Retailer’s acceptance of the amendments.

2. Waiver.  No waiver of any breach of any provision of the Terms shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, nor shall it constitute a course of dealing and no waiver shall be effective unless made in writing.

3.  Retailer Contact Information.  Retailer agrees to maintain accurate and up-to-date company information and to promptly notify Scarecrow of any change to its telephone number, mailing address, or email address.

4. Force Majeure.  Scarecrow shall not be deemed to be in breach hereof or liable to Retailer in any manner on account of any delay in delivery or other performance caused in whole or in part by, or otherwise materially related to, the occurrence of any contingency beyond Scarecrow’s control, including without limitation, fire, flood, terrorist threats or acts, riot or other civil unrest, war, invasion, hostilities, strikes or other labor disputes, embargoes or transportation delays, shortage of labor, inability to secure fuel, energy, materials, supplies or power at reasonable prices from regular sources or on account of shortages thereof, delays or failures of any of Scarecrow’s suppliers to deliver, acts of God or of a public enemy, the effect of any existing or future laws, acts or regulation of any applicable federal, state or local government, or any other commercial impracticability.

5. Severability.  If any provision of the Terms is held contrary to law, the remaining provisions shall remain valid. 

6. Survival. The following provisions shall survive the termination of the Terms: Section 5(Intellectual Property); Section 7 (Indemnification); Section 11(f) (Survival); Section 11(g) (Governing Law and Venue); and Section 11(h) (Waiver of Jury Trial).

7. Governing Law and Venue. The Terms and any dispute arising under them shall be governed by, construed, and enforced in accordance with the laws of the State of California, without regard to its choice of law rules. In the event of a dispute over the terms or performance under the Terms, Retailer expressly submits to personal jurisdiction and venue in the federal or state courts in San Luis Obispo County, California.

8. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TERMS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE PARTIES ACTIONS IN THE NEGOTIATIONS, ADMINISTRATION, OR ENFORCEMENT HEREOF OR THEREOF. THE PARTIES ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.

11. MAP Policy. Scarecrow has a Scarecrow, Inc. United States Minimum Advertised Price Policy (“MAP Policy”) that applies to all authorized retailers of Scarecrow Products located in the United States of America.This Section is intended to inform you of the MAP Policy, it does not constitute consideration for this agreement between you and Scarecrow, and does not separately constitute an agreement between you and Scarecrow regarding the price you will charge your customers for the Products. Scarecrow does not seek,nor will it accept from Retailer any assurance of compliance with the MAP Policy.

12. IMAGE & MEDIA RELEASE All images, slide shows, videos, social media posts are the exclusive property of Scarecrow Inc. Permission granted for use in retail stores & online only if company has an established SVF Authorized Account with SVF or through an authorized distributor. Discs, drives, individual images and videos whether acquired from SVF directly or online should not be sold to any third party. Do not show SVF fang images or videos in conjunction with any product not manufactured by SVF or in any way that Scarecrow deems "creating brand confusion." Photographic images may be cropped for use in printed or online media. Do not alter any video by cropping or editing in any way. Videos are intended for use in brick-and-mortar (physical)store locations for looping to your customers. To use a video on a website, please link or embed Scarecrow's original videos located on YouTube at: scarecrowvampirefangs. Permission to use videos and/or images can be revoked at any time by Scarecrow Inc. or its authorized distributor's discretion without explanation or liability and you will be required to remove all images and video from the Internet and/or your physical store. The use of Scarecrow Images & videos in retail stores, websites & advertising permitted,with limitations, only if an account is in good standing either directly or through an authorized distributor.