To place an order for the Goods, Buyer shall submit to PMAD a written purchase order (each, a “Purchase Order”) specifying the number of units of each Good that Buyer wishes to purchase and the requested date of pick-up. PMAD reserves the right to accept or reject and Purchase Order, or any portion thereof. PMAD’s acceptance of a Purchase Order shall be deemed to have occurred upon PMAD rendering to Buyer an invoice with respect to such Purchase Order (each, an “Invoice”), which Invoice shall specify, among other things, the number of units of each Good ordered pursuant to such Purchase Order, the per unit price for each such Good, the corresponding total amount due to PMAD with respect to such Purchase Order and the estimated date when PMAD anticipates being able to fulfill such Purchase Order. Each Invoice shall be binding on Buyer unless Buyer delivers to PMAD a written objection to such Invoice within ten (10) business days after Buyer’s receipt thereof.

PMAD’s sales are made pursuant to PMAD’s Terms and Conditions. If PMAD receives a Purchase Order or other document from a Buyer that modifies the terms of the Purchase Order, limits acceptance to its terms, or states that PMAD’s acknowledgement, shipping of Goods, commencing work, or other act or failure to act constitutes acceptance of any offer on the terms of the purchase order or other document, any responding document sent by PMAD which expresses acceptance or confirms the Purchase Order is expressly conditioned on Buyer’s assent to the terms set forth herein and in such Quote or Purchase Order, and in such responding document. Such assent shall be deemed given when Buyer accepts shipment of any of the material described. PMAD hereby objects to any additional or inconsistent terms added, or any other modifications made, by Buyer to any Purchase Order, and such additional, inconsistent, or modified terms shall be deemed material alterations within the meaning of the Uniform Commercial Code Section 2207(2)(b) and shall not become a part of any Purchase Order or these Terms and Conditions, or binding on PMAD, unless approved in writing by an officer, manager, or member of PMAD in a confirmatory Purchase Order which supersedes or supplements the applicable Purchase Order. Any objection by Buyer to any of the terms on the face of any Purchase Order or these Terms and Conditions must be made in writing prior to Buyer’s execution of such Purchase Order.

Buyer may cancel, in whole or in part, a Purchase Order pursuant to these Terms and Conditions at any time prior to its acceptance by PMAD, or at any time prior to (i) PMAD undertaking any meaningful steps in the manufacturing process, such as purchasing, provisioning, or applying any custom ingredients, or (ii) purchasing, or committing to purchase, additional inventory or raw materials to fulfill a Purchase Order (in any event under (i) or (ii), the “Advanced Materials”), provided, further, that Buyer will only be responsible for payment for the Advanced Materials and a twenty percent (20%) convenience charge in such event. Additionally, Buyer may cancel a Purchase Order for in whole or in part, if PMAD becomes bankrupt or insolvent, or if PMAD’s business is placed in the hands of a receiver, assignee, or trustee, whether by voluntary act of PMAD or otherwise, or undergoes any proceeding analogous to the foregoing, but in each case, only to the extent that PMAD is rendered unable to fulfill its obligations under these Terms and Conditions. Recognizing that Buyer is purchasing custom Goods hereunder, which may not be resold by PMAD, Buyer may not cancel a Purchase Order for any other reason except as expressly set forth herein, and hereby waives any right under law or equity to otherwise cancel any Purchase Order.

The specifications for the Goods shall be as mutually agreed between PMAD and Buyer in the Purchase Order. Based upon the specific goods and specifications, Buyer will provide certain materials to PMAD, including, without limitation (collectively, the “Buyer Materials” or “Buyer-Supplied Materials”).

The price to Buyer for each unit of the Goods ordered hereunder shall be as set forth on the price list provided by PMAD. Buyer acknowledges that prices remain subject to periodic adjustments based on, among other things, fluctuations in the actual costs to PMAD to manufacture the Goods. Accordingly, PMAD reserves the right to modify the prices from time to time during the Term in order to reflect such adjustments.

PMAD shall notify Buyer promptly upon actual fulfillment of the same. Thereafter, PMAD shall make such Goods available for retrieval and pick-up by Buyer on an Ex Works basis, meaning that PMAD shall cause such Goods to be fully and properly packaged and prepared for retrieval and pick-up by Buyer from PMAD’s facility in San Diego, California. Buyer shall cause the retrieval and pick-up of the same within five (5) business days after Buyer’s receipt of notification of fulfillment thereof. Buyer shall be responsible, at its sole cost and expense, for making all arrangements for retrieval and pick-up of such Goods from PMAD’s facility in San Diego, California and for shipment and delivery of the same to their intended destination(s). Accordingly, PMAD shall bear the risk of loss with respect to the Goods ordered until such time as Buyer has caused such Goods to be retrieved and picked-up from PMAD’s facility in San Diego, California, at which time all risk of loss relating to such Goods shall immediately pass to Buyer.

Buyer shall be solely responsible for paying all costs, charges, taxes, insurance and other amounts in connection with retrieval and pick-up of the Goods from PMAD’s facility and shipment and delivery of the same to their intended destination(s), including any freight and delivery charges, freight insurance, value added tax, surtax, excise tax, ad valorem tax, transfer tax, sales tax, use tax, levy, assessment, tariff, imposition, toll, and customs and other duty.

Buyer shall pay to PMAD, in immediately available funds, the total amount due with respect to each Invoice prior to or concurrently with the earlier of (i) Buyer’s retrieval and pick-up of the Goods to which such Invoice applies, and (ii) fifteen (15) days following the date of the applicable Invoice (the “Invoice Due Date”). PMAD shall not be required to release any Goods ordered hereunder to Buyer with respect to which PMAD has not received payment in full, in immediately available funds, of the total amount due therefor pursuant to the applicable Invoice. All amounts which remain unpaid following the Invoice Due Date will accrue interest at the per annum rate of eighteen percent (18%), prorated daily.

Buyer shall not, and acknowledges that it will have no right, under these Terms and Conditions, any Purchase Order, any other agreement, document or Law to, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to PMAD or any of its Affiliates, whether under these Terms and Conditions or otherwise, against any other amount owed (or to become due and owing) to it by PMAD or PMAD’s Affiliates, whether relating to PMAD’s or its Affiliate’s breach or non-performance of these Terms and Conditions, any Purchase Order, any other agreement between (a) Buyer or any of its Affiliates and (b) PMAD or any of its Affiliates, or otherwise.

To secure Buyer’s prompt and complete payment and performance of any and all present and future indebtedness, obligations and liabilities of Buyer to PMAD, Buyer hereby grants PMAD a first-priority security interest, with priority over all other liens, claims and encumbrances, in all inventory of goods purchased by Buyer from PMAD, 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. Buyer acknowledges that the security interest granted under this Section 10 is a purchase-money security interest under California law. PMAD may file a financing statement for such security interest and Buyer shall execute such statements or other documentation necessary to perfect PMAD’s security interest in such Goods. Buyer also authorizes PMAD to execute, on Buyer’s behalf, such statements or other documentation necessary to perfect PMAD’s security interest in such Goods. PMAD shall be entitled to all applicable rights and remedies of a secured party under applicable Law.

PMAD will supply those raw components of the Goods that are not Buyer-Supplied Materials for use in the Goods. At Buyer’s request, PMAD shall also provide additives for use in the Goods as PMAD may agree to from time to time. Buyer understands the production process includes a variable for Goods waste, provided that, PMAD shall reimburse, or credit to the account of, Buyer for all Shrinkage in excess of five percent (5%). “Shrinkage” means the is an uncorrectable negative difference between physical and the book net quantity of Goods.

Buyer will be solely responsible for providing to PMAD the content, including text, graphics and design, of all packaging in a digital file format, and will ensure that those elements of the packaging (i) conform to all applicable federal, national, state, provincial and local laws and regulations in the jurisdictions in which Buyer intends to sell or utilize Goods, (ii) do not infringe the proprietary rights of any third party, and (ii) provide to the end-users of Good adequate information for the safe use of Goods. PMAD will print (or have printed) such boxes, lids and labels, and will apply them to the Goods as instructed by Buyer.

With respect to all Buyer-Supplied Materials, Buyer must, upon notice from PMAD, comply with any vendor requirements customarily imposed by PMAD on its own vendors, from time to time. Further, ingredients supplied by Buyer must be delivered in full, sealed containers properly labeled with the remaining shelf-life and accompanied by a certificate of analysis reasonably satisfactory to PMAD. Following delivery, PMAD will inspect outer containers of Buyer-Supplied Materials for visually apparent damage, and will promptly notify Buyer of any such damage, as well as any deficiency in Buyer-Supplied Materials that is visually apparent at the time that PMAD prepares to put Buyer-Supplied Materials to use. PMAD will have no other responsibility to inspect or test Buyer-Supplied Materials at any time on or after delivery to PMAD or use thereof. Buyer will assure that sufficient quantities of Buyer-Supplied Materials are available to PMAD to avoid any possible disruption in production, labeling and packaging of Goods pursuant to these Terms and Conditions. In no event will PMAD be responsible for any delay or failure in delivery of Goods hereunder due to any shortage of Buyer-Supplied Materials. Any Buyer-Supplied Materials delivered to PMAD in excess of what is so required, that are deficient in any respect, or that become obsolete or stale may be tendered to Buyer by PMAD at any time; instructions for immediate shipment or other disposition of such Buyer-Supplied Materials, for Buyer’s account, will be provided by Buyer within seventy-two (72) hours of such tender. PMAD shall have no liability for Buyer-Supplied Materials. While Buyer-Supplied Materials are in PMAD’s custody, PMAD will maintain casualty insurance on them, in an amount equivalent to the reasonable value thereof established by Buyer, upon notice to PMAD, from time to time. PMAD’s liability for loss of or damage to such Buyer-Supplied Materials will be limited to the proceeds of such insurance.

Goods will be produced, labeled, packaged and stored in accordance with the specifications for each Good set forth in the applicable Purchase Order or as otherwise accepted by PMAD in writing (the “Specifications” or “specifications”). Buyer understands PMAD’s machinery has a weight tolerance of plus or minus five percent (5%) which weight tolerance is deemed an acceptable variance from the Specifications. Packaged Goods will be produced, labeled, packaged and stored in accordance with the Specifications. Buyer understands PMAD’s packaging machine has a weight tolerance of plus or minus five percent (5%) per package which weight tolerance is deemed an acceptable variance from the Specification.

PMAD warrants to Buyer that, at the time of retrieval and pick-up by Buyer, the Goods shall be free of substantive defects in materials and workmanship and shall substantially conform in all material respects to the Specifications for the Goods, provided, however, the foregoing will not apply to any of the Buyer Materials, or any defect caused by any Buyer Materials.

Buyer shall have a period of three (3) business days after retrieval and pick-up of the Goods to inspect such Goods and to notify PMAD of any alleged breach of the foregoing warranties. Any such notification shall be in writing and shall provide a detailed description and explanation of the alleged breach. If Buyer fails to notify PMAD of any alleged breach of the foregoing warranties within such three (3) business day period, then Buyer will be deemed to have accepted such Goods and irrevocably waived its right to reject the same.

With respect to any actual breach of the foregoing warranties (that is, any Good that is defective in materials or workmanship or that does not conform to applicable specifications at the time of retrieval and pick-up by Buyer), upon receipt by PMAD of Buyer’s written notification of such breach, PMAD shall remedy such breach at its own expense, provided that PMAD’s sole responsibility and Buyer’s sole remedy with respect to any such breach will be for PMAD to either (i) use commercially reasonable efforts to promptly repair or replace such defective or non-conforming Goods, or (ii) refund payments made by Buyer that are directly attributable to such defective or non-conforming Goods, in any case, at PMAD’s sole discretion. The Good warranty set forth herein does not apply to any Goods that (i) have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by PMAD, (ii) have been altered by Persons other than PMAD or its authorized representatives; or (iii) have been used with any third-party products that has not been approved in writing by PMAD.

PMAD DOES NOT MAKE ANY, AND HEREBY DISCLAIMS ALL, WARRANTIES OF ANY AND EVERY KIND, EXPRESS AND/OR IMPLIED, RELATING TO THE SERVICES AND THE WORK GOOD, INCLUDING ANY WARRANTY OF OR AS TO MERCHANTABILITY, FUNCTIONALITY, PERFORMANCE, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY PMAD, OR ANY OTHER PERSON ON PMAD’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS AND CONDITIONS.

EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, PMAD ASSUMES NO LIABILITY WHATSOEVER FOR ANY: (A) HARM TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE OTHER THAN PMAD’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) DAMAGE TO, OR LOSS RELATING TO, BUYER’S BUSINESS RESULTING FROM ANY CAUSE WHATSOEVER, OR (C) LOST PROFITS, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF THESE TERMS AND CONDITIONS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, EQUITY, OR OTHERWISE, EVEN IF PMAD OR BUYER HAS BEEN ADVISED OF, OR ADVISED THE OTHER OF, THE POSSIBILITY OF SUCH DAMAGES.

Buyer acknowledges that PMAD has set its prices and entered into these Terms and Conditions in reliance on the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties. As a result, the maximum amount of PMAD’s liability to Buyer arising out of or in connection with these Terms and Conditions shall be limited to the total amount that Buyer has actually paid to PMAD under the applicable Purchase Order.

The Parties agree that the limitations and exclusions of liability and disclaimers set forth above shall survive the Parties’ execution and delivery of these Terms and Conditions and any termination of these Terms and Conditions and shall apply even if found to have failed of their essential purpose.

PMAD shall indemnify, defend, protect and hold harmless Buyer and each of its members, managers shareholders, directors, officers, employees, attorneys, advisors, insurers, agents, representatives, successors and assigns, from and against each and every claim, action, demand, right, lien, covenant, agreement, contract, representation, warranty, indemnity, obligation, debt, cause of action, liability, lawsuit, litigation, loss, damage (including consequential damages and penalties), fee, cost and expense (including costs and expenses of counsel), of every and whatever type, kind, nature, description or character, whether sounding in law, equity, contract, tort, statute or otherwise, and whether or not presently or later known, unknown, existing, asserted, suspected, unsuspected, liquidated, unliquidated, fixed, contingent, matured, unmatured, anticipated or unanticipated (each, a “Claim”) that is caused by, relates to or otherwise arises out of or in connection with a material breach by PMAD of any of its representations, warranties, covenants or agreements set forth in this Agreement, but in each case excluding any direct Claim or Claim by right of Buyer (or its successors or assigns), and excluding any Claim arising from or in connection with Buyer’s indemnification obligations below, or Buyer’s gross negligence, willful misconduct, fraud, deceit, violation of law, or other misfeasance.

Buyer shall indemnify, defend, protect, and hold harmless PMAD, its Affiliates, and each of their respective members, managers, shareholders, directors, officers, employees, attorneys, advisors, insurers, agents, representatives, successors and assigns, from and against each and every Claim that is caused by, relates to or otherwise arises out of or in connection with: (i) any breach by Buyer of any of Buyer’s representations, warranties, covenants or agreements; (ii) Buyer-Supplied Materials; (iii) Buyer’s business, operations or affairs, including, without limitation, the handling, storage, marketing, delivery, shipment, sale, distribution or other disposition of the Goods, or the use of the Goods by Buyer customers or any other party, or any products liability or consumer protection claims, actions or proceedings in connection with any of the foregoing; or (iv) compliance (or failure to comply) with any order, ruling, regulation, statute, guidance, or other notice promulgated by any federal, state, local or foreign government authority or agency, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority, including, without limitation, the actual or alleged sale of Goods in any territory in which such Goods are unlawful, and compliance with all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained, or required to be obtained in connection with the handling, storage, marketing, delivery, shipment, sale, distribution or other disposition of the Goods.

Each Party (the “Receiving Party”) shall hold in strict confidence all Confidential Information (as defined below) of the other Party (the “Disclosing Party”), and shall not: (i) transfer, disclose, disseminate, divulge, furnish or make accessible to anyone any such Confidential Information or cause or enable anyone to do the same; (ii) use any such Confidential Information in any manner whatsoever (including for any purpose that is contrary to the interests or reasonably likely to be detrimental to the Disclosing Party), other than in furtherance of the business arrangement contemplated by this Agreement, in which case the Receiving Party shall require that its employees, independent contractors and other agents and representatives who or which work on or have access to the Confidential Information of the Disclosing Party maintain such Confidential Information with the same care and security as they would their own Confidential Information; or (iii) undertake any act or omission with respect to any such Confidential Information that is inconsistent with the confidential and proprietary nature thereof or that would reduce the value to the Disclosing Party of any such Confidential Information. The Receiving Party shall protect all Confidential Information of the Disclosing Party with not less than the same degree of care as the Receiving Party normally uses in protecting the Receiving Party’s own confidential or proprietary information, but at least with reasonable care. “Confidential Information” means all information that would logically be considered confidential or proprietary, or both, that the Receiving Party receives from the Disclosing Party, or any of its agents or representatives, or to which the Receiving Party otherwise has access, in whatever form transmitted, relating to the Disclosing Party’s operations, business, affairs or property, including research and development, business plans, financial information, trade secrets, systems and other proprietary information, even if the information is not marked confidential. “Confidential Information” shall specifically include all terms and conditions of this Agreement. Information shall not, however, be considered Confidential Information if it (i) becomes publicly known through no act or omission of the Receiving Party; (ii) is lawfully received from third parties subject to no restriction of confidentiality; (iii) can be shown by the Receiving Party to have been independently developed by the Receiving Party without the use of any Confidential Information; or (iv) is authorized to be disclosed, copied or used in a writing signed by the Disclosing Party.

Buyer will not and may not: (i) sell or offer to sell any of the Goods or any other products incorporating any of the Goods in any territory in which such Goods are unlawful; (ii) ship or otherwise deliver Goods or any other products incorporating any of the Goods to any facility in a location that is in any territory in which such Goods are unlawful; or (iii) sell, offer to sell, ship or deliver Goods or any other products incorporating any of the Goods in any territory in which such Goods are unlawful.

Buyer shall be responsible for all credit risks with respect to, and for collecting payment for, all products (including Products) sold to its customers or other third parties, whether or not Buyer has made full payment to PMAD for such products. The inability of Buyer to collect the purchase price for any product shall not affect Buyer’s obligation to pay PMAD for any Goods.

Prior to the acceptance of an Order, the Quote and these Terms and Conditions shall constitute the entire agreement between the Parties and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, between the Parties relating to the transactions contemplated hereby or the subject matter herein.

The parties expressly do not intend for the 1980 United Nations Convention on Contracts for the International Sale of Goods (the “CISG” or “Convention”) to apply to these Terms and Conditions, and opt out of the Convention, including, without limitation, any applicable provision of the Convention which relates to choice of law and venue provisions. California law, without regard to conflict or choice of law principles, shall govern the construction and interpretation of these Terms and Conditions and all claims, controversies and other disputes and proceedings concerning or arising out of these Terms and Conditions. The Parties agree that all actions or proceedings arising directly or indirectly from these Terms and Conditions shall be arbitrated or litigated before arbitrators or in courts having a situs within Los Angeles County, California; hereby consent to the jurisdiction of any local, state or federal court in which such an action or proceeding is commenced that is located in Los Angeles County, California; agree not to disturb such choice of forum (including waiving any argument that venue in any such forum is not convenient); agree that any litigation initiated by either Party in connection with these Terms and Conditions may be venued in either the state or federal courts located in Los Angeles County, California; agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law; and waive the personal service of any and all process upon them and consent that all such service of process may be made by certified or registered mail, return receipt requested, addressed to the respective Parties at the address set forth on the signature page(s) to these Terms and Conditions.

If any provision of these Terms and Conditions as applied to either Party or to any circumstance shall be found by a court of competent jurisdiction to be void, invalid or unenforceable, the same shall in no way affect any other provision of these Terms and Conditions, the application of any such provision in any other circumstance, or the validity or enforceability of these Terms and Conditions, and any provision that is found to be void, invalid or unenforceable shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law.

PMAD shall not be liable or responsible to Client, nor be deemed to have defaulted under or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions, if such failure or delay is caused by or results from acts beyond PMAD’s control, including: (i) acts of nature; (ii) flood, fire, earthquake or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) requirements of Law; (v) actions, embargoes or blockades in effect on or after the date of these Terms and Conditions; (vi) action by any Governmental Authority (whether or not having the effect of Law); (vii) national or regional emergency; (viii) strikes, labor stoppages or slowdowns or other industrial disturbances; (ix) shortages of or delays in receiving raw materials; or (x) shortage of adequate power or transportation facilities (each, a “Force Majeure Event”).

All these Terms and Conditions shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.

Notwithstanding anything to the contrary in these Terms and Conditions, the representations, warranties, covenants, duties and other obligations of the Parties set forth in these Terms and Conditions shall survive any termination of the Agreement and shall continue in full force and effect indefinitely thereafter, regardless of the reason for such termination.