General Terms and Conditions For the Purchase of Goods and Services

General Terms and Conditions for the Purchase of Goods and Services

(a) These terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase of the Invoice Goods and/or Consignment Goods (as such terms are defined below, and collectively, the “Goods”) and services (“Services”) as set forth in the accompanying purchase order (the “Purchase Order”) agreed to between Outcast Distribution, LLC (“Buyer”) and the seller named on the Purchase Order (“Seller”).

(b) The Purchase Order and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller’s general terms and conditions regardless of whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller’s acceptance to the terms of this Agreement. Fulfillment of or other performance under this Purchase Order constitutes acceptance of these Terms.

2. Delivery of Goods and Performance of Services; Payment Terms.

(a) Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.

(b) Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Seller shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s risk of loss and expense.

(c) Seller shall provide the Services to Buyer as described and in accordance with the dates or schedule set forth on the Purchase Order and in accordance with the terms and conditions set forth in these Terms.

(d) Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.

(e) The term “Consignment Goods” shall mean those Goods supplied by Seller to Buyer on consignment to be paid when such Goods are sold. Consignment Goods that are not sold prior to their expiration dates shall be returned to Seller at Seller’s expense.

(f) The term “Invoice Goods” shall mean those Goods supplied by Seller to Buyer to be paid within 60 days of Buyer receiving the Invoice Goods and corresponding invoice; provided, however, that any outstanding or late payments with respect to such Invoice Goods shall not accrue interest.

(g) From time to time, Buyer may submit to Seller a Purchase Order for Invoice Goods and/or Consignment Goods. Purchase Orders will include part numbers that designate the Goods as either an Invoice Good or a Consignment Good.

3. Quantity. If Seller delivers more or less than ten percent (10%) the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.

4. Shipping Terms. Delivery shall be made FOB Delivery Point. The Purchase Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the Purchase Order.

5. Title and Risk of Loss. For Consignment Goods, title shall remain with Seller until sold by Buyer, at which point title shall pass to the customer. For Invoice Goods, title shall pass to Buyer upon delivery of the Goods at the Delivery Point and acceptance by Buyer. Risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point and acceptance by Buyer.

6. Inspection and Rejection of Nonconforming Goods; Recalls.

(a) Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) accept the Goods at a reasonably reduced price; or (b) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 16. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.

(b) If Buyer, Seller, or any governmental authority determines that any Goods present a safety hazard, defect, require a regulatory alteration, or other condition requiring a recall, market withdrawal, or corrective action (collectively, a “Recall”), Seller shall promptly notify Buyer and, at Seller’s sole expense, take all necessary actions to execute the Recall in accordance with applicable Law. Buyer shall not be responsible for any costs or expenses associated with any Recall, except to the extent caused by Buyer’s gross negligence or willful misconduct. Seller shall provide Buyer with prompt instructions for the return, correction, or disposal of affected Goods, and shall be responsible for all costs of notices, replacement, shipping, transportation, storage, and disposal. Buyer may notify its customers of the Recall and the remedy to be provided by Seller.

7. Price. The price of the Goods and Services is the price stated in the Purchase Order (the “Price”). If no price is included in the Purchase Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties, fees, and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.

8. Seller’s Obligations Regarding Goods and Services. Seller shall:

(a) before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;

(b) comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures and general health and safety practices and procedures;

(c) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve. During the term of this Agreement and for a period of two (2) years thereafter, upon Buyer’s written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services;

(d) obtain Buyer’s written consent, which may be given or withheld in Buyer’s sole discretion, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller’s employees, to provide any Services to Buyer (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Buyer’s approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier;

(e) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Buyer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer;

(f) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;

(g) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer;

(h) keep and maintain any Buyer equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Buyer’s written instructions or authorization;

(i) promptly reimburse Buyer for all reasonable costs and expenses, including attorneys’ fees and costs of counsel selected by Buyer, incurred in responding to any subpoena, court order, or other legal process relating to the Goods, regardless of whether such process is directed to Buyer or its affiliates;

(j) ensure that all Goods, including their packaging, labeling, and advertising, comply with all applicable federal, state, and local laws and regulations throughout the United States, including but not limited to the Federal Food, Drug and Cosmetic Act (as amended, “FDCA”), the California Safe Drinking Water and Toxic Enforcement Act of 1986, all relevant dietary ingredient regulations, and all relevant Federal Trade Commission (“FTC”) laws and regulations, as well as any rules, declarations, interpretations, and orders issued thereunder (collectively “Laws”);

(k) perform, at no cost to Buyer, any necessary corrective action necessary to address compliance issues and bear sole liability for any deficiencies related to the Goods’ labeling and packaging;

(l) not advertise or authorize the advertisement of Goods with claims that violate the FDCA, require FDA approval, or would be considered false or misleading under FTC or similar state standards;

(m) promptly refund to Buyer the full purchase price paid for any Goods that become subject to a regulatory embargo, seizure, destruction order, or similar governmental action, together with all costs incurred by Buyer in connection with such regulatory action, including but not limited to shipping, transportation, storage, and disposal costs; and

(n) ensure that all Goods are manufactured, processed, packed, and held in accordance with current Good Manufacturing Practices as required by all Laws.

9. Change Orders. Buyer may at any time, by written instructions issued to Seller (each a “Change Order”), order changes to the Services. Seller shall within ten (10) days of receipt of a Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller’s compensation or the performance deadlines under this Agreement.

10. Warranties.

(a) Seller warrants to Buyer that for a period of twelve (12) months from the Delivery Date, all Goods will:

(i) be free from any defects in workmanship, material and design;

(ii) conform to applicable specifications, designs, samples and other requirements specified by Buyer;

(iii) be fit for human consumption and their intended purpose, and operate as intended;

(iv) be merchantable;

(v) be free and clear of all liens, security interests, or other encumbrances;

(vi) not infringe or misappropriate any third party’s patent, trademark, or other intellectual property rights;

(vii) be manufactured, packaged, labeled, and tested in accordance with all applicable Laws;

(viii) be free from contamination, adulteration, misbranding, or mislabeling; and

(ix) be manufactured, stored, and transported in accordance with industry standards and internal quality controls.

These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer.

(b) Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.

(c) Seller acknowledges and agrees that Buyer is not involved in, and shall have no responsibility for, the manufacturing, formulation, labeling, packaging, or testing of the Goods. Seller further acknowledges that Buyer is entitled to rely exclusively on the accuracy, sufficiency, and compliance of the labeling, representations, and documentation provided by Seller with respect to the Goods. No action or inaction by Buyer with respect to the Goods, including but not limited to any review or acceptance of labeling or documentation, shall be construed as participation in or responsibility for the manufacturing, labeling, or testing of the Goods.

(d) The warranties set forth in this Section 10 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) correct or re-perform the applicable Services.

11. General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s and its affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods and Services purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer’s prior written consent.

12. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.

13. Limitation of Liability. Nothing in this Agreement shall exclude or limit (a) Seller’s liability under Sections 10, 11, and 12 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.

14. Insurance. During the term of this Agreement and for a period of two (2) years thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability and insurance covering consigned goods) in commercially reasonable amounts with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Buyer as an additional insured. Seller shall provide Buyer with ten (10) days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer.

15. Compliance with Law. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.

16. Termination. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the seller’s delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller 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, then the Buyer may terminate this Agreement upon written notice to Seller. If Buyer terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer prior to the termination.

17. Waiver. No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. 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.

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

19. Force Majeure. No party shall be liable or responsible to the other party, or 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 such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 19, the other party may thereafter terminate this Agreement upon written notice.

20. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller’s prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer’s assets.

21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.