Terms and Conditions

Sales Order Acknowledgment

1. Acceptance – Notwithstanding any additional or inconsistent terms that may be included with Purchaser’s order, Seller’s acceptance of Purchaser’s order is conditioned upon Purchaser’s agreement to the terms and conditions contained herein, which shall constitute the entire and complete agreement between the parties. These terms and conditions may not be varied, except by a written agreement signed by Origination, LLC. (the “Seller”). Purchaser’s acceptance of any goods covered by this agreement, Purchaser’s written expression of acceptance, or Purchaser’s failure to specifically disagree with the terms and conditions hereof within five (5) days from the date hereof, shall constitute acceptance by Purchaser of all of the terms and conditions hereof.
   
   
2. Price – Prices on the goods covered by this acknowledgment are firm for thirty (30) days from the acknowledged ship date. Prices quoted are for quantities indicated only if manufactured in one run with continuous and uninterrupted delivery of completed orders unless specifications state otherwise. Goods produced from shorter quantity runs or goods produced from one run with shipment postponed at Purchaser’s direction shall be invoiced at increased prices applicable on such smaller quantities. Seller to have first right of refusal to meet lower competitive offer of like kind material, as provided below. Changes in freight will be to Purchaser’s account.
   
   
3. First Refusal – Purchaser agrees that Seller shall have a right to match any bona fide lower price quoted to Purchaser for like kind and quantity products. To facilitate Seller’s right to meet such bona fide lower price, Purchaser shall provide Seller with true copies of any written offer from Seller’s competitor reflecting such offer and Seller shall have 72 hours after receipt of such documentation to notify Purchaser that Seller will match said offer, in which case the price shown on the reverse hereof shall be amended to reflect such match, but all the other terms hereof shall continue to be in effect.
   
   
4. Taxes – Purchaser shall pay Seller the amount of any sales, use or other taxes now or hereafter imposed by any federal, state or local taxing authority upon or with respect to the sale, purchase or delivery of the goods.
   
   
5. Terms of Payment – Unless separately stated in writing and signed by Seller’s authorized agent, payment terms are net ten (10) days from the date of shipment. Seller will charge the lesser of one and one half (1½) percentage interest per month or the highest rate allowable by law to late payments over ten (10) days old. Seller reserves the right of declining to make deliveries except for cash whenever, for any reason, doubt as to Purchaser’s financial position develops, and Seller shall not, in such event, be liable for non-performance of the contract in whole or in part.
   
   
6. Packaging and Shipment – Unless stated to the contrary herein, all goods furnished hereunder will be shipped EXW point of shipment, and all costs, risk of loss and possession of such goods shall pass to the Purchaser upon the Seller’s delivery to the carrier at the point of shipment. Purchaser shall reimburse Seller for any demurrage or other expense Seller may incur by reason of any action or inaction by Purchaser or its agents. Title shall pass from Seller to Purchaser when Seller has received full payment for the goods. Goods will be packaged in accordance with the Seller’s standard procedures. All packaging and shipping costs shall be paid by Purchaser. Any special marking or packaging requirements must be specified by Purchaser and are subject to acceptance by the Seller and are subject to additional charges. Shipping dates are approximate. Seller shall not be liable for reasonable delays in delivery or shipment of goods, regardless of the cause for such delay. Unless otherwise expressly agreed in writing, the weight of any products sold to Purchaser in bags or other containers are subject to a variation in weight of plus or minus 1.5% of the stated weight.
   
   
7. Shipment Errors – All claims for shipment errors (except claims for alleged defects in quality or quantity) must be made in writing within five (5) days after receipt of shipment. Seller’s liability shall be limited to the invoiced value of the goods or to their replacement cost. If no such claim is received by the Seller within such time, the Purchaser shall be deemed to have accepted the goods described herein. Claims for loss or damage in transit must be made against the carrier.
   
   
8. Compliance with Trademark Laws – Where Purchaser provides bags or other containers or labels for goods purchased, Purchaser warrants that such bags or other containers or labels for such goods are not and will not be an infringement on any valid design, copyright, or trademark and the Purchaser further agrees, at its own expense, to defend any and all such actions and suits which may be brought against Seller charging such infringements, and to pay all attorneys’ fees, costs, and expenses of every nature incurred in such defense, and to fully satisfy any and all judgments or decrees for profits, damages, or costs therein and otherwise to indemnify and hold Seller harmless in case of such infringement.
   
   
9. Indemnification – Purchaser shall indemnify, defend and hold Seller harmless from and against all liability, cost and expense for claims and actions of any kind by any third party for losses, injury, alleged injury, death, property damage or alleged property damage arising out of or in any way connected with the use, possession or transfer of the goods manufactured and delivered hereunder.
   
   
10. Disclaimer of Warranties and Limitation of Remedies – Seller warrants to Purchaser that it has good title to the goods delivered hereunder and that such goods conform to Seller’s stated specifications.
    
    Such warranty shall not apply to any goods that have been altered, repaired, or modified. This warranty is granted for the exclusive benefit of the Purchaser and shall not accrue to the benefit of any end user or third party. THE SELLER MAKES NO WARRANTIES AS TO THE GOODS, EXCEPT AS DESCRIBED HEREIN, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. All claims for alleged defects in quality or quantity shall be deemed waived unless made in writing prior to thirty (30) days after receipt of goods by Purchaser. Defective goods shall be held by Purchaser at Purchaser’s expense for the Seller’s inspection. The Seller’s sole liability, and the Purchaser’s sole remedy, for a breach of warranty shall be, at the Seller’s election, to remedy defects by repair, replacement or refund of the price paid for any defective goods which are the subject of proper notice. Under no circumstances shall Purchaser cancel this agreement as a result of the delivery of defective goods; NOR SHALL THE SELLER BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS ARISING OUT OF ANY DEFECT, SHORTAGE, DELAY OR ANY BREACH OF WARRANTY; NOR SHALL THE SELLER’S LIABILITY UNDER ANY CIRCUMSTANCES, INCLUDING SELLER’S NEGLIGENCE, EXCEED THE PRICE OF THE DEFECTIVE GOODS.
    
    
11. Default – Purchaser shall be in default of this agreement if (a) Purchaser is in breach of any of the terms hereof, (b) any bankruptcy petition is filed against or by Purchaser in any court, and such proceeding is not dismissed within ninety (90) days after the date of filing, (c) Purchaser is insolvent or unable to pay its debts as they become due, or (d) any representation made by the Purchaser to Seller pursuant to this agreement is false or misleading. In the event that Purchaser is in default, Seller shall be entitled to all remedies available at law or in equity, including, but not limited to, the right to (a) withhold delivery of any undelivered goods, (b) recover expenses and lost profits on any delivered goods, (c) repossess any previously delivered goods, (d) resell withheld or repossessed goods and recover damages from Purchaser, (e) recover the contract price from Purchaser on any delivered goods, and (f) recover expenses, including reasonable attorney’s fees and incidental damages, on any delivered or undelivered goods.
    
    
12. Cancellation – Orders accepted by the Seller can only be canceled by providing written notice at least thirty (30) days prior to the acknowledged ship date. In the event an order is so canceled, Purchaser will be liable for all finished goods, all work in process, all raw materials purchased for the goods, or any other commitment made or costs incurred by the Seller for the specific purpose of complying with Purchaser’s order.
    
    
13. Changes – Purchaser may propose changes to the quantity required or the specifications of the goods subject to acceptance by the Seller. If the Seller accepts such changes and such changes cause an increase in the price of the goods or alter the time required to ship the goods, then an equitable adjustment in the price shall be made or a change in the shipment schedule for such goods shall be made, and Purchaser shall be bound by such price change or change in the shipment schedule.
    
    
14. Miscellaneous – This agreement constitutes the entire agreement between the parties relating to this transaction, and any course of prior dealings, promises or conditions in connection therewith, including any purchase orders relating hereto, or usage of trade not incorporated herein, shall not be binding upon either party. Seller will not be liable for any delay in performance or nonperformance caused by circumstances beyond its control, including, but not limited to, fires, floods, epidemics, accidents, wars, government actions, strikes, labor shortages, or inability to obtain materials, equipment or transportation. This agreement shall be governed and construed in all respects in accordance with the laws of the State of Minnesota without regard to its conflict of laws provisions. The exclusive venue for any proceeding between the parties relating to this agreement shall be in the federal or state courts sited in the Minneapolis, Minnesota metropolitan area. The parties submit to personal jurisdiction in said courts and waive any defenses regarding venue or forum non conveniens.  Any controversy or claim arising out of or relating to this agreement, or for the alleged breach, default, invalidity or illegality thereof shall, at the Seller’s option, be settled by final and binding arbitration held in Minneapolis, Minnesota in accordance with the rules of the American Arbitration Association, and judgment upon any award thereon may be entered in any court having jurisdiction thereof.
    
    
15. Costs and Attorneys’ Fees – In the event any action or suit is brought by either party by reason of any default or breach of this agreement by the other party, the prevailing party shall be entitled to recover from the other party all of its costs and expenses, including reasonable attorneys’ fees.
    
    
16. Purchaser’s Responsibilities – Purchaser shall be solely responsible for (i) registering or licensing products with appropriate governmental agencies and (ii) ensuring that the product complies with all applicable laws in the jurisdictions where the products are used or sold, including regulations pertaining to net weight of products sold to Purchaser in bags or other containers, labeling of bags or other containers and proper product descriptions, in the jurisdictions where such products will be used or sold. Purchaser shall indemnify and hold the Seller harmless for any claims, demands, liability, fines, penalties, costs and expenses (including reasonable attorney’s fees) arising out of or resulting from Purchaser’s failure to perform its responsibilities set forth in this paragraph.