KATE FARMS, INC. STANDARD SUPPLY TERMS AND CONDITIONS

1. ACCEPTANCE. These Standard Supply Terms and Conditions (“Standard Terms”) together with the purchase order (the “Order”) describing the services or ordered items (“Products”) to which these Standard Terms are referenced constitute an offer by Kate Farms, Inc. (“Kate Farms”). These Standard Terms shall be deemed accepted by you (“Seller”) upon the shipment of the Products. 

2. CANCELLATION OR CHANGE. Kate Farms may cancel or change all or part of the Order if such cancellation or change is in writing and is received by Kate Farms at least fifteen (15) days prior to shipment; provided, however, that, for any blanket Order(s), the parties may cancel or change all or part of a blanket Order upon written mutual agreement of the parties. 

3. SHIPMENT AND DELIVERY. Seller shall ship all items under the Order FCA Kate Farms’ designated loading dock (Incoterms 2020). 

4. INSPECTION. All Products will be subject to final inspection and acceptance at Kate Farms’ facility within a reasonable time after delivery. In addition, Kate Farms shall be entitled to inspect the Products and the production thereof, including any quality assurance system, at the premises of Seller or its subcontractors. 

5. PRODUCT REJECTION. Kate Farms may reject the Products if the tender or delivery fails in any respect to conform to these terms and conditions or the specifications set forth on any Order hereunder. Upon rejection, Seller will, at Kate Farms’ election: (x) repair such product to correct the defect; (y) replace the defective product with a product that conforms to these terms and conditions and specifications; or (z) accept return of the product and issue a refund equal to the purchase price of the defective product (together with any of Kate Farms’ incidental expenses, including costs to remove, package and return the defective Product).  

6. TITLE AND RISK OF LOSS. Title to and all risk of loss of or damage to each ordered item shall be governed by the shipping terms under Section 3.  

7. INVOICING AND PAYMENT. Unless otherwise specified on the face of the Order, all prices include all applicable foreign, federal, state, and local taxes, sales or use taxes, value-added taxes, and similar taxes and are inclusive of all amounts to be paid by Seller under the delivery terms set forth in Section 3. Kate Farms shall pay any undisputed invoices within sixty (60) days after receipt or completion of the Products. All prices shall be expressed in, and payments hereunder shall be made in United States dollars. 

8. WARRANTIES. Seller represents, covenants and warrants to Kate Farms that (a) the ordered Products shall (i) have been manufactured, labeled, distributed and delivered consistent with industry standards and in accordance with all applicable laws, regulations and local ordinances (including laws applicable to (x) production of the Products, including laws of the United States Food and Drug Administration (the “FDCA”), United States Public Health Service Act, (y) any relevant consumer goods certifications in the U.S. and other countries identified by Kate Farms, and (z) minimum wage and hour laws, laws relating to child labor, immigration, and protection of human health and safety and the environment); (ii) be merchantable and free of any defects in design, material workpersonship, and conform to their specifications at the time of delivery and for the Products’ applicable shelf-life or if there is no applicable shelf-life for twelve (12) months thereafter; (iii) be new, not refurbished or reconditioned, unless specifically preapproved in writing by Kate Farms; (iv) be free of any liens and encumbrances; (vii) be manufactured in accordance with current good manufacturing practices pursuant to 21 CFR 117 to the extent applicable; and (vii) not be adulterated or misbranded under applicable law, including the laws of the FDCA; (b) the Products (and any use thereof) will not infringe or misappropriate any intellectual property right of a third party; and (c) (i) the Seller has authority to accept the Order and does not need, or has obtained, the consent of any required third party to fill the Order or provide services under the Order; (ii) the Seller is not restricted in any way by a third party from fulfilling the Order; and (iii) by Kate Farms paying Seller pursuant to the terms of the Order, the Order shall be paid in full and Kate Farms shall not be requested or required to make any payments to any third party. To the extent any services are provided hereunder, Seller further represents, covenants and warrants that (i) qualified personnel shall perform any services ordered hereunder in a professional and workpersonlike manner, in accordance with the highest industry standards and all applicable law; and (ii) it has all necessary permits, licenses, franchises, approvals, exemptions, authorizations, registrations, certifications, and clearances. EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. 

9. AUDIT. Seller shall permit representatives of government entities to conduct inspections in compliance with all applicable state, federal, and foreign government laws and regulations. Seller agrees to cooperate fully with such inspections and audits and shall ensure that all such books, records, returns, and information are accurate and complete. 

10. INDEMNIFICATION. Seller shall defend, indemnify, defend, and hold harmless Kate Farms and its affiliates, and its and their respective officers, directors, employees, attorneys, and agents from and against any and all losses, damages, deficiencies, awards, assessments, judgments, fines, penalties, costs, injuries, settlements, liabilities, and expenses (including consequential damages and reasonable legal, accounting, expert, consulting and investigative fees, costs and expenses) incurred in connection with any claim, demand, suit, or proceeding arising from or related to (a) property damage, personal injury, or death arising out of or occurring in connection with the Products purchased from Seller; (b) Seller’s failure to comply with applicable law or regulation; (c) allegations that the Products purchased from Seller infringe or misappropriates a third party’s intellectual property rights; (d) negligence, recklessness, or intentional misconduct by Supplier; (e) any recall, market withdrawal, stock recovery, product correction, and/or advisory safety communication regarding Kate Farms’ products that is attributable to the Products purchased from Supplier or the actions or omissions Supplier; or (f) due to Seller’s breach of the Order.

11. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR TO ANY PARTY CLAIMING THROUGH OR UNDER SUCH OTHER PARTY, FOR ANY LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THESE TERMS AND CONDITIONS WILL NOT, IN ANY EVENT AND REGARDLESS OF HOW A CLAIM AROSE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT DUE TO SELLER UNDER ALL ORDERS ISSUED BY KATE FARMS TO SELLER AT THE TIME SUCH ALLEGED CLAIMS, DAMAGES, LOSSES, AND EXPENSES WERE INCURRED. THE FOREGOING SHALL NOT LIMIT OR APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 OR A PARTY’S LIABILITY FOR BREACH OF SECTION 15 (CONFIDENTIALITY) OR SECTION 17 (COMPLIANCE WITH LAW). 

12. ASSIGNMENT. The rights and obligations under the Order may not be transferred or assigned by a party to a third party without the prior written consent of the other party; provided, however, that Kate Farms may transfer or assign its rights and obligations under the Order, without consent, to a successor to all or substantially all of its business or assets or a majority of its voting stock relating to the Order whether by sale, merger, operation of law, or otherwise. Notwithstanding the foregoing, the Order shall be binding on any successor or assign. 

13. APPLICABLE LAW AND JURISDICTION. The Order, and all disputes arising hereunder or related hereto, shall be governed by the laws of California, without giving effect to any conflict of law principles.  Any lawsuit arising out of or related to the Order must be brought in the United States District Court for the Central District of California, Western Division located in Los Angeles County, California (the “Court”). Kate Farms and Seller hereby irrevocably consents and submits to the exclusive jurisdiction and venue of Court for purposes of any proceeding arising out of or related to the Order.  

14. ENTIRE ORDER. Except as otherwise expressly agreed in a separate agreement relating to the Products, the Order constitutes the entire agreement between Kate Farms and Seller with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Kate Farms and Seller, whether written or oral, relating to the subject matter hereof. No amendment or modification of the Order shall be binding upon Kate Farms unless set forth in a written instrument signed by Kate Farms’ duly authorized representative. The rights and remedies afforded to Kate Farms pursuant to any provision of the Order are in addition to any other rights or remedies afforded by any other provision of the Order, by law, or otherwise.  Any terms or conditions contained in an invoice, confirmation, or other similar document from Seller that are inconsistent with or otherwise conflict with the terms of the Order shall be without legal effect and are hereby expressly rejected. In the event of any conflict between any Order and these Standard Terms, these Standard Terms shall control. Notwithstanding the foregoing, if the Order is issued under a written agreement between Kate Farms and Seller governing the purchase of the Products, the terms and conditions of such agreement shall supersede those contained herein.  

15. CONFIDENTIALITY. Unless expressly agreed to in writing, all information disclosed by a party to the other party that a reasonable person would understand to be confidential or proprietary shall be maintained in confidence by the receiving party. The receiving party shall not disclose such information to any third person without the disclosing party’s prior written consent, and shall not use such information for any purpose other than the performance of its obligations or enforcing its rights under the Order. The receiving party shall promptly return or destroy any such information upon disclosing party’s request. Seller shall not use the name, logo, or other service marks or trademarks of either of Kate Farms or its affiliates or subsidiaries without prior consent of Kate Farms.

16. GENERAL. Any notice or communication permitted or required hereunder will be in writing. If any provision of these Standard Terms (other than Section 11 (Limitation of Liability) is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. A party’s failure to insist upon strict performance of any provision of the Order, or to exercise any right provided for herein, shall not be deemed to be a waiver for the future of such provision or right, and no waiver of any provision or right shall affect a party’s right to enforce any other provision or right herein. The parties hereby acknowledge and agree that the 1980 United Nations Convention on Contracts for the International Sale of Goods does not apply to the Order.

17. COMPLIANCE WITH LAW. Seller shall comply with all shipping and applicable foreign, federal, state, and local laws, statutes, rules, regulations, and ordinances in performing its obligations pursuant to the Order. Seller shall issue all other documents reasonably requested by Kate Farms, regarding export and import of the Products. Seller shall comply with all relevant export and import laws of all countries involved in the sale of Products under an Order. Seller assumes all responsibility for shipments of Products requiring any government import clearance. Kate Farms may terminate an Order without liability to Seller if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Products. Seller represents and warrants that it has complied and will comply with applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act 2010, the laws of the United States, and the laws of the country where Supplier is located, in connection with the purchase of the Product(s).

18. FORCE MAJEURE. Neither party shall be liable to the other party for failure or delay in performance of any of its obligations under these Standard Terms for the time and to the extent such failure or delay is caused by earthquake, riot, civil commotion, war, terrorist acts, or flood that is beyond the control of the respective party and could not be avoided through the use of commercially reasonable efforts. 

Last Updated: March 16, 2023