Belgioioso Cheese, Inc.
Terms and Conditions of Sale

1. Acceptance. These Terms and Conditions of Sale (also referred to as the “Agreement”) and BelGioioso Cheese, Inc.’s confirmation of your order shall apply to all goods that BelGioioso Cheese, Inc. (the “Seller”) sells to you (the “Buyer”).  The terms and conditions set forth in this Agreement shall be binding upon the Buyer upon its submission of its purchase order to Seller.  If any document Buyer submits to Seller including, without limitation, any purchase order, contains terms and conditions that are additional to or different from the terms and conditions contained in this Agreement, Seller hereby objects to and rejects such additional or different terms and conditions.  Seller’s acceptance of Buyer’s purchase order(s) is expressly conditioned upon Buyer’s assent to the terms and conditions set forth in this Agreement.  Buyer shall be deemed to have assented to the terms and conditions set forth in this Agreement prior to Seller’s delivery of any goods or other performance of the terms set forth in the Buyer’s purchase order(s).  The only provisions of Buyer’s purchase order that shall be applicable will be the product identification and quantity; Seller rejects all other terms, pre-printed or otherwise.  Buyer may also be deemed to have assented to the terms and conditions set forth in this Agreement by course of dealing, usage of trade, or course of performance.  Seller makes all offers to sell and accepts all purchase orders subject to the availability of requested quantities of products.  No modification, amendment, waiver, or other change of any of the terms and conditions of this Agreement, or of any of Seller’s rights or remedies hereunder, shall be binding on Seller unless the Seller expressly accepts in writing such changes.  Seller’s fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement.
   
   
2. Price.  All prices are subject to change without notice.  Seller typically reviews and sets its prices on a monthly basis.  Seller shall communicate any price changes (up or down) to Buyer prior to such price change.  Buyer shall pay to Seller all fees, duties, licenses, and all sales, use, privilege, occupation, excise or other taxes (federal, state, local or foreign) which Seller is required to pay or collect in connection with furnishing goods to Buyer.  If Buyer claims exemption from any such taxes, Buyer shall provide a certificate evidencing such exemption and shall indemnify, defend and hold Seller harmless from and against any claim that Seller must pay or collect such taxes, and Buyer shall pay any interest or penalties and the legal and other costs of defending against any such claim.
   
   
3. Quantity.  The minimum total order quantity the Buyer shall submit to the Seller is three hundred pounds (300lbs.).  The minimum order quantity for an individual item on any particular order is one case layer.
   
   
4. Order Changes.  All orders are subject to a fourteen (14) day lead-time from the date of the order to the date of shipment.  Buyer may submit order changes, but such order changes are subject to the availability of finished goods and Seller reserves the right to decline any and all order changes for any reason.  Seller may add any additional products that that Seller cannot add to an existing order to a future order.  In the event there is a backorder for a shorted product, Seller will not automatically process the order for the shorted product and Buyer shall be responsible for submitting a new purchase order to Seller for such product, which Seller may add to a future order.  Under no circumstance may a Buyer cancel and order once Seller has produced the finished goods for such order.  In the event that Buyer improperly cancels an order, Buyer shall be in breach of this Agreement and, in addition to any other remedies hereunder, all amounts Buyer owes to Seller, including the amount due for the improperly canceled order, shall be immediately due and payable to Seller.
   
   
5. Payment.  Invoices are due and payable in full within ten (10) days of the date of invoice.  There shall be no discounts.  In the event Buyer does not make payment within said ten (10) days, (i) Seller shall add a late charge of two percent (2%) per month to the unpaid balance until paid in full; (ii) Seller shall have the right o to hold any of Buyer’s orders that Seller has yet to fulfill; and (iii) Seller shall have the right to refuse any new order from Buyer.  Buyer shall pay all costs of collection relating to unpaid invoices, including all attorneys’ fees and costs incurred by Seller.  Seller shall have and retain a purchase money security interest in all goods sold to Buyer and in all accounts, contract rights and all other proceeds from the sale or other disposition of such goods, to secure payment of the purchase price for all such goods.  Buyer shall execute all documents necessary to grant such purchase money security interest to Seller.  If at any time Seller determines, in its sole judgment, that the financial condition of Buyer does not justify the terms of payment set forth herein, Seller may require full or partial payment in advance, or shall have the right to terminate Buyer’s order and/or this Agreement. 
   
   
6. Promotion Allowance. In the event Buyer participates in any Seller promotion, including, but not limited to rebates, discounts, allowances or marketing programs, whereby Buyer is entitled to a rebate, payment or discount deduction (a “Promotion Allowance”), Buyer shall submit a request to Seller for such Promotion Allowance within six (6) months of it submitting the applicable purchase order to Seller (the “Promotion Deadline”).  In the event Buyer fails to submit a request for a Promotion Allowance by the Promotion Deadline, Buyer shall forfeit any and all rights it had to the Promotion Allowance and Seller shall have no further obligation to provide, in any way, the Promotion Allowance to Buyer.   
   
   
7. Delivery.

• • (a) Unless otherwise agreed to in writing by the parties, Seller shall deliver the goods to the delivery point that Buyer sets forth in its purchase order (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such goods. Buyer shall take delivery of the goods within seven (7) days of the date upon which the carrier or the Seller delivers the goods to the Delivery Point (the “Delivery Deadline”).
  • (b) Unless otherwise agreed to in writing, if the Delivery Point is the Buyer’s facility or a forward warehouse, Seller shall be responsible for and pay all freight charges associated with such shipment of goods and, if the Delivery Point is the Seller’s facility, Buyer shall be responsible for and pay all freight charges associated with such shipment of goods.
  • (c) Seller shall deliver the goods within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished goods. Seller shall not be liable for any delays, loss or damage in transit.
  • (d) Seller may, in its sole discretion, without liability or penalty, make partial shipments of goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
  • (e) If for any reason Buyer fails to accept delivery of any of the goods by the Delivery Deadline or if Seller is unable to deliver the goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) if it has not done so already, risk of loss to the goods shall pass to Buyer; (ii) the goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
  • (f) If the Delivery Point is Buyer’s facility or a forward warehouse and Seller is responsible for and pays all freight charges associated with such shipment, Buyer’s claims for shortages or claims for other errors in delivery must be written on the bill of lading and acknowledged by the commercial carrier at the time of Buyer’s receipt of the goods. If the Delivery Point is Seller’s facility and Buyer is responsible for and pays all freight charges associated with such shipment, Buyer must make claims for loss or damage to products in transit by common carrier to the carrier and not to Seller.  IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DAMAGES OR CLAIMS FOR LOSS OF USE OR FOR ANY OTHER DIRECT OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY DELAY IN DELIVERY REGARDLESS OF THE REASON(S).

8. Title and Risk of Loss. Title and risk of loss passes to Buyer upon the carrier’s or Seller’s delivery of the goods at the Delivery Point. As collateral security for the payment of the purchase price of the goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Wisconsin Uniform Commercial Code.
   
   
9. Inspection.  Buyer shall inspect and/or test any goods sold hereunder immediately upon receipt.  The failure of Buyer to give Seller written notice of any defect, rejection or claim within five (5) days after the receipt of the goods shall be construed as an unqualified acceptance of such goods, any course of dealing between the parties to the contrary notwithstanding.  In the event that Buyer improperly rejects or does not accept goods that it has ordered pursuant to this Agreement, Buyer shall be in breach of this Agreement and, in addition to any other remedies hereunder, all amounts Buyer owes to Seller, including the amount due for the improperly rejected goods, shall be immediately due and payable to Seller.
   
   
10. Force Majeure.  Seller shall not be liable for any failure to perform hereunder if such failure is caused directly or indirectly, in whole or in part, by fires, floods and other acts of God; war, terrorism, or other hostilities; strikes or other labor disputes; work stoppages; accidents and casualties; inability to procure supplies, fuel and raw materials; delays in transportation; restrictions or regulations imposed by any governmental authority; quarantine or embargo; disease, illness, pandemic, outbreak or plague including, without limitation, hoof-and-mouth disease; or any other cause beyond the Seller’s control, whether of the kind enumerated or otherwise.
    
    
11. Proper Use, Storage and Transportation. Buyer is solely responsible for determining the suitability of the goods for their intended use.  Buyer recognizes that the goods are perishable items and Buyer is responsible for proper transportation, storage and use of the goods, including proper sanitation and temperature parameters. If any defect arises due to Buyer’s failure to ensure proper storage, transportation and use of the goods, Seller will have no warranty obligation or liability related to the same.  Any alleged defect of the goods will require Buyer to agree to appropriate lab testing to determine the applicable failure.  Buyer may not reject an entire pallet or truckload due to issues with some goods within the pallet or truckload, the Buyer may reject only individual packed units of the particular product, and only if Seller agrees with such rejection.
    
    
12. Warranties.  Seller warrants that (i) it has manufactured its goods in accordance with Good Manufacturing Practices; (ii) such goods substantially conform to all laws applicable to Seller’s manufacture of the goods, and (iii) such goods substantially conform to any specifications of the goods that Buyer and Seller have agreed upon.  Such warranties shall be valid until the expiration of the “best by date” set forth on the good.  This warranty is void if the Buyer has damaged or misused the goods. EXCEPT FOR THE FOREGOING WARRANTY, SELLER AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED WITH REGARD TO ANY GOOD OR PRODUCT PROVIDED HEREUNDER. SELLER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.  SELLER IS NOT RESPONSIBLE FOR WARRANTY CLAIMS RESULTING FROM THE ACTIONS OR OMISSION OF BUYER, ANY COMMON CARRIER OR ANY OTHER THIRD PARTY.
    
    
13. Limitations of Remedies. The liability of Seller, arising from any goods sold hereunder, or in any way connected with a contract for sale of goods, shall be limited solely and exclusively at Seller’s option to either: (i) replacement of any good alleged to be in violation of the above warranty or otherwise defective; or (ii) if Seller, in its sole discretion, determines replacement is not possible or practical, refund the amount paid by Buyer for the goods which are alleged to be defective. At Seller’s discretion, Seller shall make such refund only after the defect is determined to be Seller’s fault and further Seller may condition remedy on the defective good being returned to Seller or destroyed.
    
    NEITHER SELLER NOR ANY OF ITS AFFILIATES, CONTRACTORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INTERRUPTION OF BUSINESS, LOST PROFIT OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHICH ARE ALLEGED TO ARISE FROM BUYER’S USE OF OR OTHERWISE RELATED TO ANY GOODS OR PRODUCTS SUPPLIED PURSUANT TO THIS AGREEMENT OR SELLER’S PERFORMANCE HEREUNDER, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE TYPE OR NATURE OF THE CLAIM, INCLUDING BUT NOT LIMITED TO ANY CLAIMS ARISING IN TORT (INCLUDING ANY ALLEGED NEGLIGENCE, FAILURE TO WARN, FAILURE TO PROVIDE PROPER INSTRUCTION OR STRICT LIABILITY), CONTRACT OR EQUITY. As a material consideration for Seller entering into this Agreement, Buyer agrees that if Seller has any liability whatsoever, notwithstanding the foregoing limitations, such liability shall not exceed the charge for goods directly connected with such liability. The amounts paid by Buyer and received by Seller for the goods reflect the foregoing allocation of risk. Such maximum liability shall apply in all instances, except for claims requiring a recall of the goods caused solely by Seller’s actions.
    
    
14. Indemnification.  Buyer agrees to protect, defend and indemnify Seller and its officers, directors, employees and agents (“Seller’s Protected Group”) from and against any and all causes of action, suits, losses, liabilities, claims, demands, judgments, penalties, fines, proceedings, damages (including consequential and economic), costs and expenses (including actual attorneys’ fees), whether based upon contract, tort, statutory violation, strict liability or otherwise, and whether based upon bodily injury, property damage (including intellectual property) or otherwise relating to or arising out of or in any manner connected with: (i) Buyer’s breach of this Agreement; (ii) any defects in the goods attributable to Buyer’s acts or omissions; (iii) any recall claim and/or product liability claim attributable to Buyer’s acts or omissions; or (iv) any other act or omission of Buyer.  The foregoing shall be collectively referred to as “Claims”.  Buyer’s duty of indemnity hereunder shall extend to the acts or omissions of Buyer, its officers, directors, employees, agents and representatives that caused, in whole or in part, any such Claims. Buyer shall, at is own expense, if requested by Seller’s Protected Group, defend any and all Claims which are the subject of this duty of indemnity and Buyer shall pay all attorneys’ fees, costs and other expenses arising therefrom whether defended by Buyer of Seller.  Seller agrees to provide Buyer with prompt notice following receipt of notice by Seller’s Protected Group of any Claims.  This indemnification provision shall survive the termination of this Agreement.  Seller shall have the sole right to institute any recall of any goods that Seller manufactures.
    
    
15. Miscellaneous.  This Agreement shall be governed by and interpreted in accordance with the laws of the State of Wisconsin, without regard to its choice of law provisions. The parties agree that any litigation arising out of, or relating to this Agreement shall be brought in state or federal court in Green Bay, Brown County, Wisconsin.  The parties agree to the exclusive jurisdiction and venue of these courts. No delay or failure by either party in exercising any right under this Agreement, nor any partial or single exercise of such right, shall constitute a waiver of that right or any other right. Seller’s rights and remedies shall be cumulative and Seller, in its sole discretion, may exercise any and all rights and remedies stated in this Agreement, and/or otherwise available at law or in equity. All of the provisions of this Agreement are separate and severable.  If any provision is held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions of this Agreement. Buyer shall not assign or transfer its rights or obligations under this Agreement without Seller’s prior written consent.  In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to reimbursement of its reasonable attorneys’ fees and costs.  The terms and conditions of this Agreement will survive any termination.  This Agreement states the entire agreement between Buyer and Seller concerning the subject matter hereof and supersedes all prior proposals or agreements whether oral or written.  With regard to any purchase that is ongoing, this Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by an authorized representative of each party. Upon reasonable notice to Buyer, Seller reserves the right to amend the terms and conditions set forth in this Agreement at any time and such new terms and conditions shall apply to any transactions between the Buyer and Seller after Buyer has made such amendment.