PURE PRAIRIE POULTRY, INC.
TERMS AND CONDITIONS OF SALE

1. Orders.

Any orders submitted by Customer are subject to acceptance by Pure Prairie Poultry, Inc. (“PPP”), and no order by Customer shall be binding upon PPP until accepted. The terms set forth herein shall govern the sale by PPP and the purchase by Customer of products and services, and, except as to quantity and specifications, the terms of any purchase order delivered by Customer shall not apply. Price shall be established by PPP’s price quote to Customer.

2. Payments.

All invoices shall be due and payable in full in accordance with the terms set forth on PPP’s invoice, 14 days net zero from day of ship, unless other term arrangements have been agreed upon in writing by Customer and PPP. If any payment is not received within terms, (i) Customer shall pay interest at a rate of 1.5% per month on any past due indebtedness, or the maximum amount permitted by law, if less, and (ii) PPP shall have the right to require payment in advance for subsequent deliveries or services, even though part of an accepted order. Customer shall deliver to PPP such financial information as PPP may request from time to time. Should Customer at any time not satisfy PPP’s credit requirements, PPP shall have the right to request adequate assurances of payment prior to manufacture and at any time thereafter and/or to require payment in advance.

3. Delivery; Title; Freight.

Deliveries of products by PPP shall be made F.O.B. PPP’s facility of manufacture. Title and risk of loss shall pass to Customer upon delivery. Customer shall be responsible for all freight charges, and any applicable customs, duties, or other taxes or charges.

4. Warranty; Limitation of Liability and Remedies.

(a) PPP’s sole and exclusive warranty hereunder is that products delivered shall conform to any specifications agreed to in writing by PPP and Customer. PPP’s sole and exclusive warranty for services delivered hereunder is that they will be provided in a good and workmanlike manner and in accord with industry practices.
(b) THE WARRANTIES GIVEN IN PARAGRAPH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. PPP EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE AND EXPRESSLY DISCLAIMS ANY WARRANTY OF ANY SPECIFIC SHELF LIFE.
(c) Any claim made by Customer against PPP with respect to any products or services supplied by PPP shall be in writing, within 48 hours of receipt, setting forth in detail the amount of the claim. Notice of said claim shall be delivered to PPP promptly after such claim is known, together with (1) copies of all relevant documents and (2) if applicable, a number of samples of the products on which the alleged failure claim is based, sufficient to permit PPP to make a competent analysis. Customer shall provide PPP all reasonable access to the products and Customer’s facilities in order to permit PPP to investigate the claim.

5. Regulatory Requirements.

Should any applicable governmental regulation establish requirements more stringent, exacting or demanding than the specifications contained in Customer’s order or the industry standard as of the date of such order, such specifications shall be amended and/or supplemented to be in accord with such more stringent, exacting or demanding requirements, and PPP shall have the right to increase the price to Customer to reflect increased costs related thereto. In the event PPP is unable to meet such requirements, it shall have the right to terminate any outstanding supply obligation that may be affected thereby.

6. Force Majeure.

Pure Prairie Poultry shall be excused if it is unable to perform as a result of any act of God, nor remain liable for any delay or impairment of performance resulting from any fire, floods or other natural catastrophes, severe weather impacts, disruption of labor; including strikes, wars, riots, embargo delays, raw material market conditions, the inability to procure supplies or raw materials; or shortages of or failure of transportation equipment, fuel or labor; or any other circumstance or cause beyond the reasonable control of Pure Prairie Poultry. Additionally, manufacture, shipment and delivery are subject to any prohibition, restriction, priority allocation regulation or condition imposed by or on behalf of the United States of America or any other governmental body with appropriate jurisdiction which may prevent or interfere with fulfillment of any order or other such events outside the control of such party, provided it furnishes timely notice to the other party.

7. Nonconforming Deliveries.

Customer shall notify PPP within 24 hours of any nonconforming deliveries and provide PPP the opportunity to supply replacement conforming products.

8. Default; Effect of Default.

The material breach of any obligation pursuant to these terms and condition shall constitute an event of default. If either party commits an event of default, the other party may thirty (30) days after notice and failure to cure (or such longer period if such failure cannot be reasonable cured within thirty (30) days, provided the defaulting party diligently attempts to cure) terminate this agreement upon notice to the other party. In the event of termination, the Customer shall immediately purchase any inventories of product, work-in-process, and all custom packaging produced by, or ordered by PPP for Customer prior to the effective date of termination.

9. Disputes.

Any dispute, claim or controversy, other than a failure by Customer to pay for products or services delivered and not subject to any claim of defect (a “Credit Claim”) or a matter for which extraordinary relief may be available, arising out of or relating to this Agreement or breach, termination, enforcement, interpretation or validity thereof, shall be determined by a court within the State of MN, in accordance with the laws of the State of MN. The parties agree that in the case of any Credit Claim, or any dispute in which extraordinary relief may be available, the courts within the State of Minnesota shall have exclusive jurisdiction over such matters. Customer agrees to submit to the jurisdiction of the courts, state and federal, as provided herein, and to waive any right to challenge or change venue. This agreement and all issues arising hereunder shall be governed by the substantive laws of Minnesota, including the Uniform Commercial Code . The terms hereof shall be construed in accordance with their plain meaning, and not against either party as the drafting party.

Both parties irrevocably waive their respective rights to a jury trial of any action, claim, counterclaim or cross complaint in any action or other proceeding brought by the other party with respect to any matter arising out of, or in any way connected with, any purchases from Pure Prairie Poultry, including any contractual, statutory, tortious, or other theories of liability.

10. Attorneys’ Fees.

In the event of the bringing of any proceeding, by a party hereto against the other party in whose favor the final judgment decision shall be entered shall be entitled to have and recover from the other party or parties all costs and expenses of suit, including reasonable attorneys’ fees.

11. Limitation of Liability.

In no event shall Pure Prairie Poultry’s liability arising in connection with or under this contract, tort, misrepresentation, fraud, warranty, negligence, strict liability or any other theory of law exceed the purchase price of the goods and services provided by Pure Prairie Poultry.

12. Limitation of Damages.

IN NO CASE SHALL PPP BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR FOR ANY INTERRUPTION OF BUSINESS OR LOSS OF PROFITS, EVEN IF PPP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

13. Other Provision.

This agreement or any of the obligations hereunder may not be assigned by Customer without the prior written consent of PPP. The terms hereof may only be modified in writing signed or accepted by the party to be charged. No waiver of any term or any breach of any obligation hereunder shall be deemed to be a waiver of any other term or subsequent breach. Any term held by a court of competent jurisdiction to be invalid or unenforceable shall be limited as necessary to render it valid and enforceable, without any effect on the remaining terms and conditions. Notices given hereunder shall be in writing addressed to Customer at its business address and to PPP at its offices at 901 N. Main St., Charles City, IA 50616 (attn. Chief Financial Officer,) or as otherwise designated by a party in accordance with this provision and shall be deemed given upon receipt by personal or overnight delivery, or certified US mail, postage prepaid. Upon termination of the supply relationship between the parties, Customer agrees to purchase at the price in effect at the time, the existing inventory of products produced for Customer and work-in-process and materials including packaging purchased by PPP to produce such products not otherwise usable by PPP, at PPP’s cost.

Except as otherwise provided herein: Any contrary or additional term set forth in customer’s purchase order or other documents are hereby Objected to and REJECTED.

14. Deductions.

In no event is the Customer, or any agent thereof, authorized to deduct any amounts from the amount owed Pure Prairie Poultry unless specifically authorized in writing by Pure Prairie Poultry, Inc.