1. OFFER AND ACCEPTANCE: These Terms and Conditions (“Terms”) apply to all sales of goods and related services (the “Products”) by Second Bite Foods, Inc., d/b/a Stone Gate Foods to any customer (“Customer” of “Buyer”) with notice of these Terms, however gained, including the use of the Stone Gate Foods website, reference stated in a Bill of Lading, or reference found in an invoice. These Terms, together with those contained in any Sales Order Contract of Stone Gate Foods, constitute the entire agreement (“Agreement”) between the parties and shall prevail over any contradictory terms and conditions in any purchase order, acceptance acknowledgment, invoice, or other standard form used in the performance of this Agreement. Customer may use its standard business forms to administer purchases under the Agreement, but use of such forms is for Customer’s convenience only and does not alter the provisions of the Agreement.  Stone Gate Foods hereby expressly rejects any term or condition of any purchase order, confirmation, or other document of Customer (whether before or after the date hereof) that is different from or in addition to the provisions of this Agreement, unless specifically agreed to in a writing signed by Stone Gate Foods.  Customer’s acknowledgment of a Sales Order Contract or commencement of performance, including receipt or use of the Products, will constitute Customer’s acceptance of the terms and conditions of this Agreement.  No course of dealing or usage of trade or actual course of performance shall be relevant to explain or supplement any terms used herein.  No change in or modification to the Agreement shall be binding upon the parties, unless such alternative terms are part of a written agreement mutually negotiated and executed by the parties and that agreement expressly states that its terms will take precedence over these terms in the event of a conflict.
   
   
2. PAYMENT TERMS: The payment terms unless otherwise agreed to in writing by Stone Gate Foods is Net 21 days from invoice date. A 1.5% service charge will be applied to all unpaid invoices over thirty (30) days or the highest amount permitted by law, whichever is less. If any legal action is required by Stone Gate Foods to compel payment of any amount overdue, then buyer agrees to pay all costs of collection, including attorney’s fees and expenses, until full payment has been received.  Minnesota law allows Stone Gate Foods to collect a fee of $30.00 for all checks and notes of payment that are dishonored in any way.  If any litigation is brought between the parties regarding any sale between Stone Gate Foods and Buyer, the prevailing party shall be reimbursed by the losing party the prevailing party’s litigation costs, expenses, and attorney’s fees.
   
   
3. CUSTOMER PICKUP: All merchandise picked up at Stone Gate Foods in a customer owned, leased, or contract carrier vehicle is sold on a FOB origin basis. The driver of the customer vehicle is responsible for count and will assist in loading the vehicle. Any shortage, damage, or consequential loss is at the customer’s expense.  Buyer must notice Stone Gate Foods at least 48 hours in advance of any pickups.
   
   
4. SHIPMENT DAMAGES & SHORTAGES: Buyer must inspect all shipments immediately. Damages and shortages must be reported to the carrier upon shipment of goods.  All damages regarding shipment damages and shortages shall be noted on buyer’s freight bill and signed by the driver.  ALL CLAIMS REGARDING SHIPMENT DAMAGES AND SHORTAGES SHALL BE SUBMITTED TO STONE GATE FOODS WITHIN 48 HOURS OR ARE WAIVED BY BUYER.
   
   
5. CLAIMS: All claims of any nature excluding shipment damages and shortages which are not made known to Stone Gate Foods in writing within 30 days after the arrival of goods at the destination are waived. All claims for losses or damages which occur in transit shall be made to the freight carrier by the Customer and not deducted from the invoice. Customer will afford Stone Gate Foods’ representative reasonable opportunity to examine and test the material which is the basis of the claim.  No claim against Stone Gate Foods will be allowed or given credit for the merchandise returned without prior written authorization from Stone Gate Foods.  In the event the material received is damaged or an order received is short in quantity, in addition to the requirements of Section 4 above, the buyer shall immediately notify Stone Gate Foods’s customer service department.  A copy of the delivery carrier’s receipt, indicating the alleged damage or shortage and the disposition of the damaged material must accompany this notification.
   
   
6. CREDIT: Terms of sales are subject to approval of Stone Gate Foods’ credit department. See Section 1 above.  Stone Gate Foods reserves the right to receive adequate security from buyer in advance or COD payment before making or continuing shipments hereunder in the event that the buyer’s credit shall at any time be or become impaired.  Contact Stone Gate Foods’ credit department for a credit application and terms of credit.
   
   
7. TITLE, RISK OF LOSS: Title to material and risk of loss thereof shall pass to buyer upon delivery to the carrier at the shipping point.
   
   
8. PRODUCT WARRANTY: Stone Gate Foods, as the seller, warrants that products shipped to any Buyer will be free of defects in workmanship. The seller makes no warranty of any other kinds, expressed or implied. The Buyer shall assume all risks and liabilities for results obtained by the usage of Stone Gate Foods products either singly or in combination with other products.  Stone Gate Foods’ liability for loss or damage due to the seller’s products is limited to replacement of seller’s materials only.  No representative of Stone Gate Foods has the authority to make any guarantee or agreement except as stated herein.  THE FOREGOING WARRANTIES ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE.  STONE GATE FOODS EXPRESSLY DISCLAIMS WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRTY PARTY, AND WARRANTIES AS TO QUALITY OR CORRESPONDENCE WITH PRIOR DESCRIPTION OR SAMPLE.  THIS WARRANTY ONLY APPLIES TO THE ORIGINAL PURCHASER OR CUSTOMER OF THE PRODUCTS. 
   
   
9. LIMITATION OF LIABILITY: (a) STONE GATE FOODS SHALL NOT HAVE ANY LIAIBLITY TO CUSTOMER OR OTHER PERSON OR ENTITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OF ANY DESCRIPTION, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR LOST PROFITS, WITHER ARISING OUT OF WARRANTY (INCLUDING ANY IMPLIED WARRANTIES), BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT, OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER STONE GATE FOODS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (b) IN NO EVENT WILL STONE GATE FOODS’ AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE PRODUCTS EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT WITH RESPECT TO WHICH SUCH CLAIM IS MADE, SUBJECT IN ALL CASES TO AN AFFIRMATIVE OBLIGATION ON THE PART OF THE CLAIMING PARTY TO MITIGATE ITS DAMAGES. (c) NO ACTION MAY BE BROUGHT BY CUSTOMER AGAINST STONE GATE FOODS AFTER ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS PROVISION SHALL BE GROUNDS FOR DISMISSAL WITH PREJUDICE OF ANY SUITE OR CLAIM ASSERTED BY CUSTOMER AFTER SUCH TIME.
   
   
10. INDEMNIFICATION: Customer agrees to defend, indemnify and hold Stone Gate Foods (including its affiliates and joint venturers) and its (and their) employees, owners, agents, directors, and officers (each an “indemnitee”) harmless for claims, damage, loss and expenses (including reasonable attorneys’ fees), imposed upon, incurred by or asserted against the indemnitee that are caused by, are attributable to, result from or arise out of (a) Customer’s or its agents provided specifications, including, without limitation, any resulting violation of intellectual property or proprietary rights; (b) Customer’s or its agents’ willful misconduct or negligence; (c) Customer’s use, handling, storage, sale or resale of the Products; or (d) Customer’s noncompliance with any law.
    
    
11. PERFECT MATCH BILLING: Stone Gate Foods is committed to providing timely delivery of all products and services. Please ensure that all purchase orders have all current and correct pricing to secure perfect match billing. This should result in timely shipments and delivery of products and services.  Any purchase orders that have incorrect pricing will be subject to new product delivery dates from the date the pricing has been corrected and resolved.
    
    
12. FORCE MAJEURE: The consequence, direct or indirect, of labor troubles, fires, accidents, floods, war, shortage of transportation, failure or suspension or curtailment of production due to the shortage of supply of raw materials, or other economic factors, Government acts or requirements and any and all like or different causes beyond the control of the parties hereto shall excuse performance by either party to the extent by which performance is prevented. Thereby the buyer shall not be excused with regard to shipments already made or materials then in process of manufacture. Stone Gate Foods may, during any period of shortage due to any of said causes, allocate the available supply of material among its customers in such manner as may be deemed equitable in the sole judgment of Stone Gate Foods.
    
    
13. ASSIGNABILITY: Buyer may not assign this agreement without Stone Gate Foods’ prior written consent.
    
    
14. GOVERNING LAW AND VENUE: The sale(s) between Stone Gate Foods and buyer shall be governed by the laws of the State of Minnesota (including, without limitation, it’s UCC) without regard to its conflict of laws provisions. Scott County District Court, First Judicial District of Minnesota shall have the exclusive jurisdiction of any and all controversies arising out of these Sales Terms and Conditions or any controversy between the parties. The buyer agrees that no forum non convenes defense shall apply to any such action.
    
    
15. MEDIATION: The parties shall attempt in good faith to promptly resolve any dispute arising out of any sales transaction by negotiations between representatives who have authority to settle the controversy. If unsuccessful, the parties shall engage in non-binding third-party mediation, with fees and expenses of such mediation apportioned equally to each side. The party seeking relief under this Agreement shall compile a list of three (3) mediators and send it to the other party. Within five (5) business days, the other party shall either (i) select one of these three mediators, or (ii) send a new list of three mediators to the first party. If the parties cannot agree on a mediator, the mediation shall be conducted by two (2) mediators with one being chosen by each party. Any dispute not resolved by negotiation or mediation may then be submitted to Scott County District Court per Section 14 in accordance with these terms.
    
    
16. HEADINGS AND INTERPRETATION: The titles of the paragraphs of this order are for convenience only and shall not affect their interpretation. Both parties shall be considered the “drafter” for interpretation purposes with one party not holding any burden of proof over the other if any ambiguities are found to exist.
    
    
17. SEVERABILITY: Each and every provision of these Terms and Conditions are severable from any and all other provisions. In the event that any provision of these Terms and Conditions is held to be invalid, the other provisions shall continue in full force and effect, and the offending provision, to the extent practicable, shall be reformed so as to be achieve its intended purpose.
    
    

Effective: October 4, 2022