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1. Applicability. These terms and conditions of sale (these “Terms”) govern the sale of the products (“Products”) by Joe’s Garage Coffee, LLC, a Delaware limited liability company (“JGC”) to the customer (the “Customer”) named in the accompanying quotation of sale (the “Sales Confirmation”) and approved specifications. The Sales Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Agreement prevails over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend the Agreement. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
2. Prices. JGC agrees to manufacture and sell to the Customer products under Customer’s private label(s) (“Products”), at an agreed upon price as further described in the Sales Confirmation and approved specifications, and the Customer agrees to pay for the same accordingly. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that Customer shall not be responsible for any taxes imposed on, or with respect to, JGC’s income, revenues, gross receipts, personnel or real or personal property or other assets.
3. Materials. Customer agrees to pay for custom printed private label materials and setup fees as further described in the Sales Confirmation, including but not limited to, printing plates, tooling, proofs, setup, etc. for any custom printed private label items. JGC will carry actual materials in order to package said private label products for Customer for as long as Customer remains current and compliant with this Agreement.
4. Minimum Performance Requirements. Customer shall be subject to satisfaction of the minimum performance requirements set forth in the Sales Confirmation
5. Delivery and Payment Terms. Customer agrees to pay JGC for all purchase orders, and all custom printed private label materials and setup fees, upfront and in full upon delivery. Products will be considered delivered when made available for pickup at JGC’s facility in Kent, WA, and upon notification of such delivery from JGC to Customer. Past due amounts shall bear interest at the rate of 1.5% per month. Orders not picked up by Customer within 10 days of delivery will incur a storage fee of $10 per pallet space per day.
6. Shipping. At the request of the Customer, JGC can arrange for freight and shipping for Customer’s account, and at Customer’s expense and risk, FOB JGC’s warehouse in Kent, WA.
7. Cancellation. All purchase orders shall not be cancelable after 24 hours of being placed by the Customer. Customer agrees to reimburse JGC for costs, including overhead and lost margin, incurred in association with any cancelled purchase order.
8. Purchase and Removal of Materials. If Customer or JGC wishes to discontinue the Agreement, or if any particular private label(s) is cancelled, the Customer agrees to purchase all of the custom printed private label materials, and any finished goods still held or under noncancelable order by JGC, and not already paid for by the Customer. Within 30 days of notification from JGC to Customer, Customer agrees to remove or dispose of any Customer owned materials still held by JGC, at Customer’s expense and risk, that have not been used by JGC for a period of 12 months.
9. Limited Warranty. Subject to Sections 9(a) and 9(b), below, JGC warrants to Customer that the Products will comply with the specifications provided therefor and are merchantable, subject to commercially acceptable deviations. JGC DISCLAIMS ANY OTHER WARRANTY FOR THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE.
   • (a). DISCLAIMER—CUSTOMER PROVIDED MATERIALS. The foregoing warranty does not apply to the extent that any Product defect, condition, or failure is directly or indirectly caused by or results from CustomerProvided Materials (defined below) or the interaction of Customer-Provided Materials with the Product. “Customer-Provided Materials” means (i) ingredients, packaging, or other materials provided by Customer for inclusion in a Product, or (ii) specifications provided by Customer for a Product, including Product formulations and specifications regarding packaging or the manner of packing or stacking of Product. Customer (a) is solely liable for any defect, condition, or failure that is directly or indirectly caused by or results from Customer-Provided Materials, (b) shall indemnify, defend and hold JGC, its agents, employees and affiliates harmless from any claims, legal actions, losses or liabilities based on or arising from Customer-Provided Materials, and (c) is solely responsible for the testing and performance of Customer-Provided Materials and the interaction of CustomerProvided Materials with the Product.
   • (b). NOTICE REGARDING COMPATIBILITY WITH KEURIG® AND NESPRESSO® COFFEEMAKERS. JGC manufactures “kcup”-style and “nespresso”-style coffee pods in sizes and shapes intended to be compatible for use with Keurig® and Nespresso® coffeemakers respectively. JGC has tested its products with multiple models and concluded that JGC’s “kcup”-style and “nespresso”-style coffee pods were compatible with and worked in the Keurig® and Nespresso® coffeemakers without readily noticeable problems. However, due to other technological features built by Keurig, Nestle, and other manufacturers into their coffeemakers (whether such features exist as of the date of the date of this Agreement or in the future), which appear designed to thwart their use with nonKeurig® and non-Nespresso® pods, JGC cannot warrant that Products purchased from JGC will work in Keurig, Nestle, or any other manufacturer’s coffeemaking machines. ANY SUCH WARRANTY IS DISCLAIMED AND EXCLUDED. CUSTOMER IS SOLELY RESPONSIBLE TO TEST FOR AND VERIFY THAT ANY PRODUCTS ORDERED FROM JGC WILL WORK IN KEURIG, NESTLE OR ANY OTHER MANUFACTURER’S COFFEEMAKING MACHINES AND ACCEPTS ALL RISKS THAT THEY WILL NOT.
10. Intellectual Property. Customer represents and warrants that all rights and interests in the private label/brand/ branding provided by Customer to JGC (“Customer’s Branding”) is owned exclusively by the Customer, and does not infringe the trademark, copyright, or industrial design of any person or party. Customer shall indemnify, defend and hold JGC, its agents, employees and affiliates (each, a “JGC Party”) harmless from any claims, legal actions, losses or liabilities based on or arising from Customer’s Branding made by third parties against a JGC Party, including but not limited to trademark or copyright infringement and sustainability claims. Customer agrees to cover the cost of defending any such claims, including reasonable attorneys’ fees.
11. Non-solicitation. Customer agrees that, during the term of this Agreement and for two (2) years thereafter, Customer shall not solicit for employment any employee of Supplier. For purposes of this Section 10, the term “employee of Supplier” shall include any then current employee of Supplier or any person who has left the employee of Supplier within the then previous six (6) months. Notwithstanding the foregoing, this Section 10 shall not prohibit (i) general publication, advertisement or solicitation of a job opening that is not specifically directed at such person, to which a Supplier employee responds on his or her own initiative or (ii) solicitation and hiring of any such person who has been terminated by Supplier.
12. Confidentiality.
• (a). Scope of Confidential Information. From time to time during the term of this Agreement, Supplier may disclose or make available to Customer information about its business affairs, goods and services, customers, forecasts, confidential information and materials comprising or relating to Supplier’s intellectual property rights, trade secrets, third-party confidential information, and other sensitive or proprietary information. Such information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated as or otherwise identified as “confidential”, is collectively referred to as “Confidential Information” hereunder. Without limiting the foregoing, “Confidential Information” specifically includes the identities of JGC’s customers and suppliers and other information learned or obtained by visiting JGC’s facilities or by discussing JGC’s business, operations or assets with the managers, employees, advisors and agents of JGC. Notwithstanding the foregoing, Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 11 by the Customer or any of its representatives; (ii) is or becomes available to the Customer on a non-confidential basis from a third- party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Customer prior to being disclosed by or on behalf of the Supplier; (iv) was or is independently developed by the Customer without reference to or use of, in whole or in part, any of the Supplier’s Confidential Information; or (v) is required to be disclosed pursuant to applicable law.
• (b). Protection and Non-Use of Confidential Information. Customer shall: (i) protect and safeguard the confidentiality of the Supplier’s Confidential Information with at least the same degree of care as the Customer would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Supplier’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person, except to the Customer’s attorneys or other third-party advisors who need to know the Confidential Information to assist the Customer, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. Without limiting the foregoing, Customer specifically will not use or knowingly allow anyone else to use any Confidential Information to compete, directly or indirectly, against JGC or JGC’s affiliates, including but not limited to (i) the solicitation of JGC’s customers, suppliers, or employees, (ii) the development of methods or practices of doing business competitive with JGC, or (iii) the development or offering of goods and services, including private-label manufacturing or packaging services, competitive with JGC.
13. Personal Guaranty. The undersigned personal guarantor (the “Personal Guarantor”) is the owner and/or principal of the Customer and thereby is benefited by the extension of credit terms by JGC under this Agreement. The undersigned Personal Guarantor personally guaranties payment of and promises to pay all late and unpaid principal, interest and fees due from Customer to JGC for purchase orders submitted by Customer and accepted by JGC. Owner further agrees to the jurisdiction and venue of the federal or state courts seated in Seattle, WA for any actions based on or arising from this guaranty.
14. Force Majeure. JGC shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond JGC’s reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the reasonable control of JGC. JGC shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. JGC shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. JGC shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
15. Termination. In addition to any remedies that may be provided under these Terms, JGC may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Customer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
16. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Washington.
17. Submission to Jurisdiction. All legal actions based on or arising under this Agreement or relating to the Products shall be brought exclusively in the federal or state courts seated in Seattle, WA, to the jurisdiction of which all parties irrevocably submit. The prevailing party shall be entitled to its reasonable attorneys’ fees.
18. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY PURCHASE ORDERS, EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND (D) IT HAS DECIDED TO ENTER INTO THIS AGREEMENT IN CONSIDERATION OF, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
19. Notices. All notices hereunder shall be in writing and shall be deemed to have been given (i) when delivered personally to the recipient by hand; (ii) on the day of transmission if sent by electronic mail (“e-mail”) to the email address given on the signature page hereto (with confirmation of transmission); (iii) when received or rejected by the addressee, if sent by registered or certified mail, postage prepaid, return receipt requested; or (iv) one business day following the day sent by overnight courier. Such notices shall be sent to the other party hereto at its address shown on the signature page hereto or at such other address as such party may designate by ten days’ advance written notice to the other party hereto.
20. Waiver. No waiver by JGC of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by JGC. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
21. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.