DESSERT HOLDINGS SELLER TERMS & CONDITIONS

Last Updated: June 29, 2023

In the absence of a written and executed master supply agreement between the parties, these Terms and Conditions of Sale (“Terms”), together with any documents incorporating these Terms by reference, any non-disclosure agreement, continuing guaranty, technical data sheet, or Food Safety Modernization Act disclosure from Seller, as defined herein, constitute the entire agreement The Original Cakerie Co., The Original Cakerie Ltd., and each of their subsidiaries, as applicable (“Seller”), and the buyer listed on the Purchase Order (“Customer” or “you”), for the sale of all goods (“Products”). 

1. PURCHASE ORDER; OFFER & ACCEPTANCE. The Customer shall issue to Seller a written purchase order (each a “Purchase Order”) for the Products. Each Purchase Order shall specify the quantity of Products requested, delivery date requested, shipping instructions, and Price, as defined below, and any other information required by Seller.  The Customer agrees to accept that quantity of the Products specified in the Order plus or minus (+/-) ten percent (10%). Upon receipt of a Purchase Order, Seller shall issue the Customer an order confirmation (the “Order Confirmation”).  By acknowledging receipt of the Order Confirmation, acknowledging these Terms, or paying for or accepting the Products, Customer agrees to be bound by these Terms. Customer acknowledges that these Terms apply to the Purchase Order(s) referenced on the Order Confirmation. All Purchase Orders are subject to published or otherwise communicated order lead times and minimum order quantities, if applicable. 
2. PRICES. Seller shall provide Customer a non-binding quote (the “Quote”) for the Products, which shall be valid for the time period noted on the Quote. The price for the Products (the “Price”) shall be set forth on the Purchase Order.  Notwithstanding the foregoing, Seller may, in its reasonable discretion, increase the Price for the Products after it accepts Customer’s Purchase Order if the cost to supply the Products increases significantly, whether due to: (A) a change in Applicable Law; (B) increases in costs to procure the Products or components thereof; (C) increases in transportation, storage, or handling costs; (D) or any other changes in the costs to supply the Products. A change in cost of a Product(s) shall be considered “significant” when the cost to supply a Product increases three percent (3%) between the date listed on the Purchase Order and the estimated delivery date. 
3. PAYMENT TERMS; INVOICE. Upon delivery of the Products in accordance with Section 4, Seller shall issue to Customer an invoice for the Products.  Unless otherwise agreed to by the parties in writing, all payments for the Products shall be due net twenty-one (21) days from receipt of Seller’s invoice and shall be paid to Seller by electronic funds transfer or as otherwise set forth on the invoice. If Seller determines that Customer’s financial condition or credit rating does not justify a sale on credit, Seller may require advance payment, a personal guarantee, and/or require cash on delivery. If Customer contends that any invoice is incorrect, Customer must so notify Seller within seven (7) business days after receipt of the invoice. If Customer does not so notify Seller, Customer forever waives the right to dispute the accuracy of the invoice. Any payment not made when due shall accrue a late charge of one and one-half percent (1-1/2%) per month. Customer shall reimburse Seller for any expenses, including attorneys’ fees, incurred in the collection of any delinquent account or enforcing its rights hereunder. 
4. DELIVERY AND RISK OF LOSS. Delivery will be FOB Seller’s facility, unless otherwise agreed upon between the Parties. Seller shall have no further responsibility for the Products, and all risk of damage to or loss or delay of the Products shall pass to Customer, upon their delivery. Seller shall have the right to determine the method of shipment and routing of the Products, unless otherwise specified by Customer. For International orders, all Products are sold EXW Seller’s facility (Incoterms® 2020), unless otherwise agreed upon between the Parties. All risk of loss shall pass to Customer when the Products are delivered to the first common carrier. Shipment of Products held by reason of Customer’s request or inability to receive Products will be at the risk and expense of the Customer. Customer assumes sole responsibility for ensuring that Product supplied by Seller conforms to all applicable laws and regulations of country of import. Unless otherwise specified by Seller in writing, Customer shall pay such delivery charges as Seller may establish from time to time, which will be itemized on Customer’s invoice. In the event transportation arranged by Seller results in damage to the Product or any other quality issue, the following shall occur: (A) Seller must be notified immediately; (B) damage or other issues must be documented on delivery paperwork and signed by the receiver and driver and issued to Seller; and (C) pictures of damage or other issues must be issued to Seller and hidden damage must be reported as above within forty-eight (48) hours and documented. Failure to comply with the foregoing requirement will result in claim rejection. Delivery in a manner directed by Customer shall be at Customer’s sole cost and expense. Seller shall not be liable for damages caused by delays in shipping or delivery for any reason whatsoever. Delay in the delivery of the Products shall not relieve Customer from the obligation to accept and pay for such Products. Orders not picked up within forty-eight (48) hours of scheduled pick up will be subject to fees, including but not limited to, administrative costs; restocking fees; and warehouse fees. Seller is not responsible for unavailability of Product once it has been restocked or reduced shelf life due to late pick up by Customer. In addition to all other remedies available under this agreement or Applicable Law, Seller shall be entitled to suspend the delivery of any Products if Customer fails to pay any amounts when due. 
5. TAXES AND TRANSPORTATION CHARGES. The Prices do not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Customer shall be liable for all such taxes, whether or not invoiced by Seller. Freight and insurance quotations are merely estimates based upon currently prevailing rates and, because Seller has no control over such quotations, any variations in the actual rates at the time of shipment shall be invoiced to Customer. Seller may add a charge for export packing to the Price, and Seller reserves the right to impose an additional reasonable charge for packing and/or packaging to comply with Customer’s specifications or instructions. 
6. PRODUCT RETURNS; PURCHASE ORDER CHANGES. Seller shall not accept Product returns. Seller may in its sole discretion, allow the Customer to amend or cancel a Purchase Order. Purchase Orders authorized by Seller to be cancelled may be subject to a restocking fee. 
7. REPRESENTATIONS AND WARRANTIES. Seller represents and warrants that all Products will (A) conform in all material respects to all applicable laws, rules and regulations (collectively, “Applicable Law”) and are not articles that cannot, under Applicable Law, be introduced into interstate commerce; and (B) conform to the Product’s specifications. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR CUSTOMER’S USE OR RESALE OF THE PRODUCTS AND ALL SUBSEQUENT USES AND RESALES OF THE PRODUCTS. Customer represents and warrants that it is solvent and able to pay its obligations in the ordinary course of business. If Customer’s financial condition is deemed unsatisfactory to Seller, Seller may (i) terminate any Purchase Order submitted by Customer, and no rights shall accrue to Customer as a result of termination; or (ii) require that Customer deposit a suitable security or advance payment to insure Customer’s performance under this agreement.  The provisions of this Section 7 shall survive the expiration or termination of the Purchase Order and these Terms. 
8. CONFIDENTIALITY.
   1. Definition of Confidential Information.  The term “Confidential Information” means all material or information relating to a party’s business operations and affairs (including trade secrets) that such party treats as confidential or which, under the circumstances, should be treated as confidential, whether or not received by a party prior to Customer’s submission of a Purchase Order or thereafter.  Customer acknowledges and agrees that the Seller IP, as defined below, is the Confidential Information of Seller.
   2. Use of Confidential Information.  Upon Seller’s acceptance of a Purchase Order and for three (3) years thereafter, neither party will:  (i) use any Confidential Information of the other party for any purpose other than in connection with fulfilling a Purchase Order or performing under these Terms, or (ii) disclose Confidential Information to any person, except to its personnel who are subject to nondisclosure obligations comparable in scope to this Section 8 and who have a need to know such Confidential Information in order to fulfill a Purchase Order or perform under these Terms.
   3. Disclosure of Confidential Information.  Notwithstanding Section 8.B, either party may use for any purpose or disclose any material or information that it can demonstrate: (i) is or becomes publicly known through no act or fault of such party; (ii) is developed independently by such party without reference to the other party’s Confidential Information; (iii) is known by such party when disclosed by the other party, and such party does not then have a duty to maintain its confidentiality; or (iv) is rightfully obtained by such party from a third party not obligated to preserve its confidentiality who did not receive the material or information directly or indirectly from the other party.  A party also may disclose the other party’s Confidential Information to the extent required by a court or other governmental authority, provided that the disclosing Party (a) gives the other party advance written notice of the disclosure, (b) uses reasonable efforts to resist disclosing the Confidential Information, and (c) cooperates with the other Party on request to obtain a protective order or otherwise limit the disclosure.
   4. Injunctive Relief.  Each party acknowledges and agrees that its breach or threatened breach of any provision of this Section 8 would cause the other party irreparable injury for which it would not have an adequate remedy at law.  In the event of a breach or threatened breach, the nonbreaching party will be entitled to injunctive relief in addition to all other remedies it may have at law or in equity in order to prevent or restrain any such breach by such breaching party or any representative.
   5. Survival.  The provisions of this Section 8 shall survive the expiration or termination of the Purchase Order and these Terms. 
9. INTELLECTUAL PROPERTY.  Unless otherwise agreed to in writing by the Parties, the Customer acknowledges and agrees that Seller is, and at all times shall remain, the sole and exclusive owner of all patents related to the Products, all Product specifications, all intellectual property associated with the Product, each of the brand names, trademarks and trade names, and all trade secrets, formulas, recipes, proprietary manufacturing processes, know how, trade dress, branding, logos, labels or labeling and designs used in connection with the Products (collectively, the “Seller IP”).  Customer shall not use any Seller IP without Seller’s prior written approval.  The provisions of this Section 9 shall survive the expiration or termination of the Purchase Order and these Terms. 
10. INDEMNITY. Customer will defend, indemnify, and hold harmless Seller from and against all damages, losses, claims, and expenses (including attorneys’ fees) incurred by Seller arising from or in connection with (i) any breach by Customer of any of its obligations under this agreement; (ii) any claim relating to any quality, safety or condition of or inherent defect introduced into the Products after the time of delivery to Customer; (iii) Customer’s use or application of the Products after the time of delivery to the Customer; (iv) any returns, cancellations, or changes of or to a Purchase Order authorized by Seller, including the profit on any part of the Purchase Order that is cancelled or returned; (v) Customer’s violation of Applicable Law; (vi) Customer’s negligence or willful misconduct in connection with the performance of the Purchase Order or these Terms; or (vii) Customer’s use or resale of the Products. The provisions of this Section 10 shall survive the expiration or termination of the Purchase Order and these Terms. 
11. REMEDIES AND LIMITATIONS ON WARRANTY. THE SOLE AND EXCLUSIVE LIABILITY OF SELLER AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER FOR BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, RECALL LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION IS LIMITED SOLELY TO REPLACEMENT OF DEFECTIVE PRODUCTS OR, AT SELLER’S OPTION, REFUND OF THE PURCHASE PRICE OF SUCH DEFECTIVE PRODUCTS UPON TIMELY RECEIPT OF NOTICE. UNDER NO CIRCUMSTANCES OR THEORY OF RECOVERY WILL SELLER BE RESPONSIBLE FOR LOSS OF USE, LOSS OF CUSTOMERS, LOST PROFITS, BUSINESS INTERRUPTION, COVER, PUNITIVE DAMAGES OR FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF CAUSE OR THEORY. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR RELATED TO THIS CONTRACT EXCEED THE LESSER OF $50,000 OR THE PURCHASE PRICE OF THE PRODUCTS IN THE THREE MONTHS PRECEDING THE CLAIM. CUSTOMER HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE CUSTOMER OF AN ADEQUATE REMEDY. The provisions of this Section 11 shall survive the expiration or termination of the Purchase Order and these Terms. 
12. FORCE MAJEURE. Seller shall be excused from performance under any Purchase Order while, and to the extent that, such performance is prevented by acts or events beyond its reasonable control including, but not limited to, acts of God, disasters, fires, earthquakes or severe weather events; epidemics or pandemics, and any associated quarantines or other travel or health restrictions; acts of war or terrorism, rioting or civil unrest; laws, regulations, embargos, orders, warnings or advisories, by any federal, state or local governmental authority; national, regional, or other declared states of emergency, by any federal, state or local governmental authority; strikes or industrial disputes (each a “Force Majeure Event”).  If Seller is unable to perform any of its obligations under any Purchase Order due to, or during the pendency of, a Force Majeure Event, it shall promptly advise the Customer of the nature of the Force Majeure Event and the anticipated length of its inability to perform. 
13. NOTICE. All notices or other communications required or permitted under these Terms must be in writing and shall be deemed duly given:  (A) when delivered by hand delivery to the other Party at the address for such party designated on the Purchase Order; (B) upon transmittal of an email transmission to the other party at the email address designated on the Purchase Order, with reasonable evidence of successful transmission; or (C) when delivered by a nationally recognized express delivery service, with fees paid for the highest priority delivery, to the mailing address designated for such party on the Purchase Order.  Either party may designate an alternative mailing address or email address for notice to itself at any time upon written notice to the other party delivered in accordance with this Section 13. The provisions of this Section 13 shall survive the expiration or termination of the Purchase Order and these Terms. 
14. MISCELLANEOUS. (A) Entire Agreement; Amendment; In the absence of a master supply agreement, these Terms supersede any and all prior oral and written quotes, communications, agreements and understandings of the parties with respect of the sale and delivery of the Products. In the event of an inconsistency or conflict between these Terms and the terms set forth in any Purchase Order submitted by Customer, in any invoice generated by Seller, or in any other document or another agreement between Customer and Seller, these Terms shall govern. These Terms may not be altered or superseded without written consent from Seller’s authorized representative. Seller hereby objects to the inclusion of any term or condition in any previous or subsequent document from Customer or any third party, whether in a Purchase Order or otherwise, that is different from or in addition to these Terms, and Seller’s sale or delivery of any Products, or any other act by Seller, shall not constitute any assent to any such term or condition. If any provision in these Terms is deemed illegal or unenforceable, the remaining provisions shall survive and remain in full force and effect.  (B) Independent Contractors. Seller and Customer are independent contractors, and neither may act as or be deemed the agent of the other. It is not the intent of the parties to form any agency, partnership, or joint venture, and it is understood that each party will exercise full power and authority, except as specifically provided otherwise in this agreement, to select the means, method, and manner of performing all obligations to be performed under this agreement. (C) Assignment. Customer may not assign or transfer any of its obligations under this agreement without Seller’s prior written consent. (D) Governing Law; Venue. These Terms shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to its conflict of laws provisions. With respect to any dispute, controversy or claim arising out of or relating to these Terms or any Purchase Order, Seller and Customer irrevocably consent to submit to the sole and exclusive jurisdiction of the State and Federal courts located in Ramsey County, Minnesota. Customer hereby irrevocably consents and submits to the personal jurisdiction of said courts for all such purposes. However, Seller retains the right to bring legal proceedings in any jurisdiction where Seller believes that infringement of these Terms is taking place or originating. (E) Waiver.  No delay or omission by Seller in the exercise of any right under these Terms will operate as a waiver of that or any other right.  No provision of these Terms may be waived except by an agreement in writing signed by the party granting such waiver.  A waiver of any provision of these Terms will not be construed as a subsequent waiver of that provision and/or a waiver of any other provision of these Terms.  (F) Survival.  The provisions of this Section 14 shall survive the expiration or termination of the Purchase Order and these Terms.