Terms of Sale

CIRANDA INC.
GENERAL TERMS AND CONDITIONS OF SALE

Effective January 1, 2024 

In the absence of a written and executed master supply agreement between the parties, these General Terms and Conditions of Sale (“Terms”), together with any documents incorporating these Terms by reference, any confidentiality or non-disclosure agreement, and any special terms and conditions set forth in any invoice, credit application, customer setup form, Order Confirmation, as defined below, written sales order, Volume Agreement, as defined below, technical data sheet, or Food Safety Modernization Act disclosure from Ciranda Inc., constitute the entire agreement between Ciranda Inc. (“Ciranda” or “Vendor”) and buyer (“Customer” or “you”) for the sale of all goods (“Products”).  

1. ORDERS; OFFER & ACCEPTANCE. Vendor requires that a written purchase order (each, an “Order”) be received at its Hudson, Wisconsin office or via email to a designated Ciranda email contact to process any request for Products. Any special requests (including, but not limited to, labeling or testing), which Ciranda may grant or decline in its sole discretion, must be provided to Vendor in writing at least seven (7) business days in advance of the scheduled ship date specified in the Order Confirmation, as defined below, and may result in longer than normal Order lead times and additional fees, as specified in Section 6 and on Vendor’s fee schedule (the “Fee Schedule”), a copy of which Customer may obtain from a Vender representative. Customer must provide written acknowledgment of receipt of Vendor’s standard order confirmation (“Order Confirmation”) within two (2) business days of receipt thereof. Notwithstanding the foregoing, if Vendor does not receive such written acknowledgement from Customer within two (2) business days, Customer is deemed to have acknowledged receipt of the Order Confirmation, and Vendor will begin to process the Order. By acknowledging receipt of the Order Confirmation (either expressly or by omission), signing Vendor’s Volume Agreement, as defined below, acknowledging these Terms (either implicitly or expressly by acknowledgement or signature), or remitting payment for or accepting the Products, Customer agrees to be bound by these Terms.  

2. ENTIRE AGREEMENT. In the absence of a written and executed Supply Agreement between the parties, these Terms supersede any and all prior oral and/or written quotations, 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 Order submitted by Customer, including as a part of a blanket purchase order, in any invoice or Order Confirmation generated by Vendor, or in any other document or agreement between Customer and Vendor, these Terms shall govern; provided, however, any additional or conflicting terms set forth in (A) the Volume Agreement, as defined below, shall govern over these Terms; and (B) any additional or conflicting terms set forth in any Vendor continuing guarantee (“Continuing Guarantee”) shall govern over these terms.  For clarity, such additional or conflicting terms set forth in the Volume Agreement and/or any Continuing Guarantee shall govern only with respect to the subject matter thereof, and all other provisions of these Terms shall remain in full force and effect. These Terms may not be altered or superseded without written consent from Vendor’s authorized representative. Vendor hereby objects to the inclusion of any term or condition in any previous or subsequent document from Customer or any third party, whether in an Order or otherwise, that is different from or additional to these Terms, and Vendor’s sale or delivery of any Products, or any other act by Vendor, shall not constitute any assent to any such different or additional 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. 

3. REPRESENTATIONS AND WARRANTIES. Vendor represents and warrants that all Products will (A) conform in all material respects to all applicable laws, rules and regulations (collectively, “Law”) and are not articles that cannot, by Law, be introduced into interstate commerce; and (B) conform to the Product’s technical data sheet. VENDOR 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, REPACKAGING OR RESALE OF THE PRODUCTS AND ALL SUBSEQUENT USES, REPACKAGING OR RESALES OF THE PRODUCTS.   

4. REMEDIES AND LIMITATIONS ON WARRANTY. THE SOLE AND EXCLUSIVE LIABILITY OF VENDOR 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 VENDOR’S OPTION, REFUND OF THE PURCHASE PRICE OF SUCH PRODUCTS, UPON TIMELY RECEIPT OF NOTICE IN ACCORDANCE WITH SECTION 10 OF THESE TERMS. UNDER NO CIRCUMSTANCES OR THEORY OF RECOVERY WILL VENDOR 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 VENDOR’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR RELATED TO THESE TERMS EXCEED 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. 

5. VOLUME AGREEMENT; QUANTITY; PRICES. Vendor shall specify the quantity and price for the Products (“Price”) in a written Volume Agreement (the “Volume Agreement”), Order Confirmation or other writing (including e-mail communication). Unless otherwise specified in the Volume Agreement, the quantity of Products specified in the Volume Agreement represents a binding commitment from Customer to purchase that quantity of Products specified therein prior to the expiration of the Volume Agreement. Failure of the Volume Agreement to specify dates by which Customer must submit Orders for the Products during the term of the Volume Agreement does not, under any circumstances, alleviate Customer’s responsibility to purchase the total quantity of Product specified therein.  Any prices quoted by Vendor in an Order Confirmation, Volume Agreement or other writing shall be valid for five (5) business days from the date quoted. Typographical and other errors in stated prices are subject to correction by Vendor. If a significant cost increase of the Product(s) occurs during Vendor’s fulfillment of any Order due to: (A) any change in Law including, but not limited to, increased tariffs; or (B) freight and/or shipping cost increases incurred after the date of the Volume Agreement, the Price for the Products, as specified in the Volume Agreement and any other Volume Agreement requirements shall be equitably adjusted upon written agreement of the parties. All prices set forth in blanket purchase orders are subject to change and shall be considered a quote on behalf of Vendor. 

6. TESTING; FEES; SPECIAL REQUIREMENTS. All Orders will include a certificate of analysis (“COA”), packing slip and invoice. The COA will contain parameters reported by Vendor’s supplier. Customer shall be responsible for any fees and expenses related to any specific Product tests or other requests by Customer that are in addition to the parameters specified in the COA, which fees are set forth on the Fee Schedule.  Additionally, any changes or rushes to any Order must be authorized by Vendor and will be subject to additional fees set forth on the Fee Schedule.  If Customer is responsible for picking-up an Order, as specified in the Order Confirmation, and Customer does not pick up the Order within five (5) business days of a scheduled pick-up, such Order will be deemed to be cancelled and subject to a restocking fee and all related warehousing and administrative costs and expenses incurred by Vendor, as set forth on the Fee Schedule. Vendor is not responsible for unavailability of Product once it has been restocked or reduced shelf life due to late pick up by Customer. If Vendor is responsible for delivering the Products, Customer must take possession of and unload all Product shipping containers (including, but not limited to: flexi tanks, 20’, 40’ standard or reefer) at the time the container of Products becomes available to Customer but, in any event, within two (2) hours for live unloads and within four (4) calendar days for drop unloads. Customer’s failure to comply with this Section 6 may result in additional fees, which will be borne by the Customer.  For the avoidance of doubt, Vender may, in its sole discretion, impose certain additional fees, which may or may not be set forth on the Fee Schedule or in these Terms, depending on the circumstances of an Order. 

7. TAXES AND TRANSPORTATION CHARGES. Vendor’s 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 Vendor. Unless otherwise specified by Vendor in writing, Customer shall pay such delivery charges as Vendor may establish from time to time, which will be included on Customer’s invoice. Freight and insurance quotations are merely estimates based upon currently prevailing rates and, because Vendor has no control over such quotations, any variations in the actual rates at the time of shipment shall be charged to the Customer’s account. Vendor may add a charge for export packing to the Price, and Vendor reserves the right to impose an additional reasonable charge for packing and/or packaging to comply with Customer’s specifications or instructions.  

8. PAYMENT TERMS. Unless otherwise specified by Vendor in writing, payment terms are as noted in the Order Confirmation without exception. Customer represents and warrants that it is solvent and able to pay its obligations in accordance with these Terms, the Order Confirmation and/or the Volume Agreement. If Vendor determines that Customer’s financial condition or credit rating does not justify a sale on credit, Vendor may require advance payment, a personal guarantee and/or may ship Cash on Delivery (C.O.D.). If Customer contends that any invoice is incorrect, Customer must so notify Vendor within seven (7) business days after receipt of the invoice. If Customer does not so notify Vendor, 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. Payment must be made to Vendor’s office in Hudson, Wisconsin or as otherwise agreed to by the parties. Customer shall reimburse Vendor for any expenses, including reasonable attorneys’ fees, incurred in the collection of any delinquent account or enforcing its rights hereunder. 

9. FORECASTS. No more than thirty (30) days prior to each calendar quarter, and on a calendar quarterly basis thereafter, Ciranda may request a non-binding rolling forecast from Customer of planned purchases of the Product for the next two (2) calendar quarters. Such forecasts shall be for Vendor’s planning purposes. The provisions of this Section 9 do not alleviate Customer’s obligation to purchase that quantity of Products specified in a Volume Agreement. 

10. DELIVERY AND RISK OF LOSS. Delivery will be FCA Vendor’s warehouse or other point of origin (Incoterms® 2020). Vendor 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 to the FCA point. Vendor shall have the right to determine the method of shipment and routing of the Products, unless otherwise specified by Customer and agreed to by Vendor. Customer assumes sole responsibility for ensuring that the Products supplied by Vendor conform to all applicable laws and regulations of the country of import. For all direct shipments of Product directly from Vendor’s supplier to the Customer’s location, delivery will be DDP Customer’s location (Incoterm® 2020), and Vendor will be responsible for delivery of the Products to the Customer’s predetermined location. Vendor shall not be liable for damages caused by delays in shipping or delivery for any reason whatsoever. Delivery in a manner directed by Customer shall be at Customer’s sole cost and expense.  Delay in the delivery of the Products shall not relieve Customer from the obligation to accept and pay for such Products. In addition to all other remedies available under these Terms or by Law, Vendor shall be entitled to suspend the delivery of any Products if Customer fails to pay any amounts when due.  

11. NON-CONFORMING PRODUCTS.  Within forty-eight (48) hours following receipt of the Products, the Company may report to Vendor any actual or alleged patent non-conformities in the Products, where such non-conformities originated before the Products left the custody and control of Vendor. Within five (5) days following receipt of the Products, the Company may report to Vendor any actual or alleged latent or hidden non-conformities in the Products, where such non-conformities originated before the Products left the custody and control of Vendor.  In each case, Customer must provide documentation reasonably sufficient to Vendor describing such alleged defects or non-conformities in the Products. Customer shall permit Vendor to inspect all Products Customer alleges are defective or non-conforming. If Vendor agrees that Products are defective or non-conforming, Vendor may, in its sole discretion, replace such Products or refund to Customer the Price thereof. If Customer fails to comply with the foregoing, Vendor may, in its sole discretion, reject any claim related any Product defect or non-conformity.  

12. VARIATIONS. Customer agrees to accept a shipment quantity of the Products that is plus or minus a quantity equal to ten percent (10%) of the quantity requested by Customer in the Order. Customer will be invoiced for the quantity that is actually shipped within these guidelines and Customer agrees to pay the invoice pursuant to the terms and conditions set forth herein. 

13. FORCE MAJEURE. Vendor’s fulfillment of any Order or Volume Agreement is contingent upon the availability of materials from Vendor’s suppliers. Vendor shall not be liable for any delays in delivery, or for non-delivery or nonperformance, in whole or in part, caused by the occurrence of any contingency beyond the control of either Vendor or suppliers of Vendor including, but not limited to: fires; destruction of facilities used to manufacturer, process, hold, pack, or distribute the Products; strike; lockout; labor disturbances; pandemic; epidemic; flood; accident; delay in transportation; war; insurrection; terrorism; act of God; riot; blockage; embargo; raw materials shortages; laws, regulations and requirements of the United States, or the country in which, or through which, delivery is to be made or any state or territory thereof, or of any governmental subdivision of any thereof; restraining orders for decrees of any court or judge; or any other cause similar or dissimilar to those herein before enumerated. Should any of the foregoing occur, at Vendor’s sole option and upon notice to Customer, Vendor shall be relieved of further performance under these Terms and the Volume Agreement or Vendor’s performance may be extended for a time equivalent to the delay. 

14. NO RETURNS; CANCELLATION, DEFERRAL, OR TERMINATION. Vendor shall not accept Product returns under any circumstances, except as set forth in Section 4 and Section 11. Customer may not cancel, defer, or terminate any Order or Volume Agreement without the prior written consent of Vendor, which Vendor may grant or withhold in its sole discretion.  For the avoidance of doubt, Customer may not, under any circumstances, cancel, defer, or terminate any Order or Volume Agreement for Products after such Products have been shipped by Vendor’s supplier to Vendor. Orders authorized by Vendor to be cancelled or deferred shall be subject to the restocking fee set forth on the Fee Schedule and any additional pass-through or other costs. To request termination or deferral of a Volume Agreement, Customer shall provide at least sixty (60) days’ written notice to Vendor. If Vendor agrees to accept Customer’s request to terminate the Volume Agreement, Vendor may, in its sole discretion, invoice Customer for (i) the Price of finished and completed Orders of the Products delivered to Customer; and/or (ii) any unpurchased Product subject to the Volume Agreement, or a portion thereof, including all floor stock and inventory. 

15. CONFIDENTIALITY.  

1. For purposes of these Terms and any interaction between Vendor and Customer related thereto, “Confidential Information” will include all information supplied by one party or its affiliates or representatives (“Discloser”) to the other party or its affiliates or representatives (“Recipient”). Confidential Information includes, but is not limited to, (i) all information identified as “Confidential,” “Proprietary,” or similar legend by the Discloser when given to the Recipient; (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary; and (iii) patent applications, inventions, formulae, processes, trade secrets, customer lists, business plans, projections, research, finances, marketing, and information pertaining to any of the foregoing. Additionally, all identifying information Vendor may provide to Customer regarding Vendor’s supplier of the Products including, but not limited to, the supplier’s name and address, is deemed the Confidential Information of Vendor. 

2. Recipient will (i) treat as strictly confidential all Confidential Information made available to Recipient, and (ii) protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, affiliate, or third party who has a need to know the same to perform the requirements of these Terms and/or the Volume Agreement, and who is bound by confidentiality and non-use obligations at least as protective as the requirements of this Section 15.  

3. The term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure. 

16. USE OF VENDOR IP. Customer shall not use Vendor’s trade name, trademarks, or logos (collectively, the “Vendor IP”) in any public announcement (including, but not limited to, in any press release) or in any repackaging of the Products without Vendor’s prior written approval.  

17. NO CIRCUMVENTION. Customer shall not, under any circumstances, attempt to communicate with any supplier of Vendor regarding the Products or any documentation or information related thereto including, but not limited to, any information regarding the manufacturing of the Products, Product specifications or technical data sheets, or supplier audit history. Rather, Customer shall submit all such requests for supplier information or documentation to Vendor, and Vendor will communicate all such reasonable requests to the supplier.  

18. INDEMNITY. Customer acknowledges the Product supplied under these Terms is intended for further manufacturing. Customer further acknowledges that the finished uses and application of the Product supplied are unknown to Vendor. Customer will defend, indemnify, and hold harmless Vendor from and against all damages, losses, claims, and expenses (including attorneys’ fees) incurred by Vendor arising from or in connection with (A) any breach by Customer of any of its obligations under these Terms and any Volume Agreement; (B) any claim relating to any quality, safety or condition of or inherent defect introduced into the Products after the time of delivery to Customer; (C) Customer’s use, application, or resale of the Products after the time of delivery to the Customer; (D) any returns or cancellations authorized by Vendor, including the profit on any part of the order that is cancelled or returned; (E) Customer’s violation of Laws; (F) Customer’s unauthorized use of any Vendor IP; or (G) Customer’s negligence or willful misconduct in connection with the performance of these Terms and any Volume Agreement.   

19. MISCELLANEOUS. Vendor 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 these Terms, to select the means, method and manner of performing all obligations to be performed under these Terms. Customer may not assign or transfer any of its obligations under these Terms without Vendor’s prior written consent. These Terms between the parties shall be governed by and construed in accordance with the laws of the State of Wisconsin, 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 the relationship between the parties, Vendor and Customer irrevocably consent to submit to the sole and exclusive jurisdiction of the State and Federal courts of the Western District of Wisconsin, St. Croix County. Customer hereby irrevocably consents and submits to the personal jurisdiction of said courts for all such purposes. However, Vendor retains the right to bring legal proceedings in any jurisdiction where Vendor believes that infringement of these Terms or the Volume Agreement is taking place or originating. Vendor’s failure at any time to require performance of any provision of these Terms or the Volume Agreement or to exercise any right provided for herein or therein will not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by Vendor of any breach of any provision of these Terms or of any right provided for herein will be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms. The provisions of these Terms that, by their nature, would be expected to survive termination or expiration of these Terms shall so survive any such termination or expiration including, but not limited to, Sections 4, 15, 16, 17, 18, and 19.