1. DEFINITIONS: “DreamPak” means DreamPak, LLC. “Customer” means the person or entity requesting a quotation, submitting a Purchase Order to DreamPak or entering into any business relationship with DreamPak, (together with DreamPak, each a “Party” and collectively the “Parties”). “Product” means the goods and or services ordered by Customer from DreamPak. “Purchase Order” or “PO” means the purchase order used by Customer to place an order for Products with DreamPak. “Quotation” is the document that DreamPak provides to Customer with Product price and specified conditions.   “Specification” is the document that sets out Product requirements and that has been reviewed and approved by DreamPak.

2. QUOTATION: DreamPak will send Customer a Quotation, which Customer must sign and return prior to DreamPak accepting a PO for Products. Any amendment to Customer requirements may result in a change to the Quotation or Specifications. DreamPak is not responsible for any Customer requirements which are not expressly stated in the Quotation or Specification.

3. PURCHASE ORDERS: Customer shall submit a PO to DreamPak, which specifies the product name, order quantity, payment amount and requested completion date. The PO is deemed to be accepted by DreamPak only if and when DreamPak sends a PO acceptance to Customer. Once DreamPak sends a PO acceptance to Customer, POs are non-cancellable and non-refundable. Customer may not make modifications to POs unless DreamPak agrees in writing. DreamPak has the right to refuse any change in formulation or Specification after a PO is accepted. Notwithstanding PO acceptance, Customer understands that the prices of Products in the PO are not guaranteed and are subject to change based on any changes in formulations, Specifications, or the price of materials.

4. QUALITY; WARRANTIES: DreamPak warrants that each article comprising each shipment or other delivery of the Product for Customer’s use is, as of the date of shipment or delivery, not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act (the Act) or any state law which is substantially the same as the Act, and is not an article which may not, under the provisions of sections 404, 505 or 512 of the Act, be introduced into interstate commerce. The forgoing warranties shall not apply to adulteration or misbranding arising out of labels designed or furnished by Customer. Additional quality requirements such as Certificate of Analysis requirements must be agreed upon in writing.  EXCEPT FOR THE FOREGOING WARRANTY, DREAMPAK OFFERS NO WARRANTY FOR THE PRODUCTS AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty.  Prior to using or permitting use of the Products, Customer shall determine the suitability of the Products for the intended use and Customer shall assume all risk and liability whatsoever in connection therewith.

5. FORMULA OWNERSHIP; REGULATORY COMPLIANCE: All Product formulas and related intellectual property rights are proprietary and owned exclusively by DreamPak unless otherwise stated in writing signed by DreamPak. To the extent Customer provides its own formula(s) to DreamPak to incorporate into the Product (“Customer Formulas”), such Customer Formulas (and only such formulas) shall be owned by Customer, and Customer shall be solely responsible for (i) shelf-life claims with respect to any such Customer Formula and (ii) the regulatory and legal compliance of any Customer Formula (including any FDA filings or registrations made or required to be made in connection therewith), and the warranties set forth in Section 4 above shall not apply to any Customer Formula. Customer must provide accurate documentation for any ingredient, bulk, or blend provided to DreamPak for any Product.

6. LEAD TIMES: DreamPak will use its commercially reasonable efforts to ensure that Customer’s requested product release dates are satisfied, however, Customer acknowledges and agrees that lead times and ship dates are not guaranteed and that failure by DreamPak to meet any requested product release date does not constitute a breach or cause for damages of any kind. Time for delivery shall not be of the essence. DreamPak requests that all necessary documentation and artwork are shared with DreamPak at the same time as the PO, or ahead of time if possible. Any delays in acquiring the necessary information from Customer may result in a revision to the anticipated ready date of the Products.

7. ADDITIONAL SERVICES: Customer understands that certain additional services will incur additional fees. Customer also understands that Customer label claims may incur additional fees.

8. PAYMENT TERMS: Payment is due and payable with Customer’s issuance of PO unless payment terms are modified subject to credit approval and written consent from DreamPak. If Customer does not pay DreamPak any amount due under this Contract or any other agreement when such amount is due, or if Customer defaults in the performance of this Contract, DreamPak may, without liability to Customer and without prejudice to DreamPak’s other lawful remedies (a) terminate DreamPak’s obligations under this Contract or under any Purchase Order; (b) declare immediately due and payable all Customer’s obligations to DreamPak; (c) change credit terms with respect to any further work; (d) suspend or discontinue any further work; and/or (e) repossess the Products. Customer agrees to reimburse DreamPak for all costs and fees including, but not limited to attorneys’ fees and repossession fees, incurred by DreamPak in collecting any sums owed by Customer to DreamPak.  Customer agrees to pay a late payment charge of 1.5% per month, or the maximum amount allowable by law, whichever is less, on all amounts not paid in full when due, payable on DreamPak’s demand.  Customer shall not take any deductions or discounts, or set off any amounts due hereunder against claims, unless authorized in advance in writing by DreamPak.

9. SECURITY INTEREST: As collateral security for the payment of the purchase price of the Products, Customer hereby grants to DreamPak a lien on, and security interest in, the Products and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, until paid in full. Customer agrees to take commercially reasonable actions requested by DreamPak to evidence or perfect the security interest granted in this section. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code in effect in the applicable state.

10. PRODUCTION QUANTITIES: DreamPak will use its commercially reasonable efforts to ensure that Customer receives the ordered quantity, however, Customer will accept Products within 10% of the quantity stated in the applicable PO.

11. SHIPPING: All shipping will be F.O.B. DreamPak’s New Berlin, WI, facilities unless otherwise specified in writing. Customer is responsible for arranging pickup and transport of the Products. Products must be picked up from DreamPak’s facilities within one week of the Products release date or Customer will incur storage fees. DreamPak reserves the right to reject any carrier due to food safety regulations. The bill of lading will be included with the shipment. Any special requirements for the bill of lading must be in writing.

12. TITLE AND RISK OF LOSS: Risk of loss and title to the Products transfers to Customer upon release of the Products from DreamPak’s facilities.  

13. INSPECTION OF PRODUCTS: Customer must inspect the Products immediately on receipt or collection. If Customer identifies any damages, defects or shortages that occurred before the Products were released from DreamPak’s facilities, Customer must inform DreamPak in writing within 24 hours of Customer’s receipt of Products. Such notification shall be accompanied by inspection reports and/or other documents and evidence necessary to support Customer’s claims.  All damages, defects and shortages not reported to DreamPak within 24 hours days of receipt as required by this section shall be deemed waived and Customer shall be deemed to have accepted such products as is. If Products are rejected because of damage or defect, DreamPak shall investigate and take appropriate action.

14. GENERAL: This document, including the provisions on the face hereof and in the accompanying Quotation (the “Contract”), constitutes an offer by DreamPak to provide Products to the Customer. If this document is deemed an acceptance of a prior offer by Customer, such acceptance is limited to the express terms contained herein.  Customer’s acceptance of this offer is limited to the terms, covenants and conditions contained in this offer.  DreamPak hereby objects to and rejects any additional, different or varying terms proposed by Customer, unless DreamPak expressly assents to such terms in writing.  Such proposal of additional, different or varying terms by Customer shall not operate as a rejection of DreamPak’s offer unless, and solely to the extent, such variances are in the terms of the description, quantity, price, or place or date of delivery of the Products, and DreamPak’s offer shall be deemed accepted without such additional, different or varying terms. THIS CONTRACT (INCLUDING ALL ITEMS EXPRESSLY INCORPORATED BY REFERENCE) CONSTITUTES THE FINAL EXPRESSION OF THE TERMS BETWEEN DREAMPAK AND CUSTOMER REGARDING THE PRODUCTS AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS.  ANY TERMS, CONDITIONS, NEGOTIATIONS OR UNDERSTANDINGS WHICH ARE NOT CONTAINED IN THIS CONTRACT SHALL HAVE NO FORCE OR EFFECT UNLESS MADE IN WRITING AND SIGNED BY DREAMPAK AND CUSTOMER.  DreamPak’s sales representatives are without authority to change, modify or alter the terms of this Contract.

Customer shall be deemed to have made an unqualified acceptance of this offer and the terms and conditions herein on the earliest of the following to occur:  (a) DreamPak’s receipt of a copy of this Contract or a Quotation signed by Customer; (b) Customer’s submission of a PO to DreamPak; (c) Customer’s payment of any amounts due for Products; (d) Customer’s delivery to DreamPak of any material to be furnished by Customer; (e) DreamPak’s delivery of the Products; or (f) any other event constituting acceptance under applicable law.

15. Compliance With Laws: Customer agrees to comply with all laws and regulations applicable to the purchase, transport, use, storage, sale, lease and/or disposal of the Products including, without limitation, to the extent applicable, all rules and regulations of the U.S. Department of Agriculture and the U.S. Food & Drug Administration, and the U.S. Export Administration Act and all regulations thereunder.

16. CONFIDENTIAL INFORMATION: Customer acknowledges that all trade secrets, designs, specifications and other Confidential Information (as defined below) which may be disclosed to it by DreamPak shall at all times, both during and after expiration or termination of this Contract for any reason, remain DreamPak’s exclusive property and that Customer shall not acquire any proprietary interest whatsoever therein. “Confidential Information” means all knowledge and information disclosed by DreamPak to Customer orally or in writing, or acquired by Customer through observation, regarding DreamPak’s products, technology, inventions, formulas, know-how, forecasts, sales methods, customer lists, customer usages and requirements, financial information, business plans, strategies and future business relationships, disclosed with the exception of such information that: (a) was already part of the public domain at the time of the disclosure by DreamPak; (b) becomes part of the public domain through no fault of Customer (but only after and only to the extent that it is published or otherwise becomes part of the public domain); (c) was in Customer’s possession prior to the disclosure by DreamPak and was not acquired, directly or indirectly, from DreamPak or from a third party who was under a continuing obligation of confidence to DreamPak; or (d) is received (after the disclosure by DreamPak) by Customer from a third party who did not require Customer to hold it in confidence and did not acquire it directly or indirectly from DreamPak under a continuing obligation of confidence.  Except as necessary to perform its duties under this Contract, Customer shall not use or disclose any of such Confidential Information, but shall use at least the same degree of care given its own trades secrets and confidential information, but in no case less than a reasonable degree of care.  Upon expiration or termination of this Contract for any reason, Customer shall, within 15 days, surrender to DreamPak all specifications, samples, documents, other tangible objects and all copies thereof relating to trade secrets and other Confidential Information and all of DreamPak’s property. Customer shall be permitted to destroy rather than return all analyses, extracts, and summaries prepared by Customer which contain Confidential Information, and such destruction shall be certified in writing to DreamPak by an authorized officer of Customer who has supervised such destruction.  Nothing in this Contract shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides DreamPak with broader protection than that provided herein.

17. LIMITATION OF LIABILITY: TO THE EXTENT PERMITTED BY LAW, DreamPak’s liability on any claim of any kind, including, without limitation, negligence, with respect to PRODUCTS or services shall in no case exceed the purchase price of the good or service or part thereof which gives rise to the claim. This limitation applies EVEN IF dreampak has BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH POTENTIAL LOSS OR DAMAGE. In no event shall DreamPak be liable for any special, incidental, consequential, punitive or exemplary damages or similar damages (including without limitation, lost profits or economic damages) or for damages in the nature of penalties. dreampak AND customer EXPRESSLY AGREE THAT THE PRICE FOR THE PRODUCTS WAS DETERMINED IN CONSIDERATION OF THE LIMITATION ON DAMAGES SET FORTH HEREIN AND that SUCH LIMITATION HAS BEEN SPECIFICALLY BARGAINED FOR AND CONSTITUTES AN AGREED ALLOCATION OF RISK WHICH SHALL SURVIVE THE DETERMINATION OF ANY COURT OF COMPETENT JURISDICTION THAT ANY REMEDY HEREIN FAILS in ITS ESSENTIAL PURPOSE.

18. FORCE MAJEURE: DreamPak shall not be liable for any failure to perform or any delays in performance due to causes beyond its reasonable control including without limitation acts of God, acts of Customer, failure of suppliers, acts of military or civil authorities, fire or other casualty, natural disasters, strikes, lockouts, weather, epidemic, disease, pandemics, supply chain disruptions, war (whether or not declared), acts of terrorism, riot, delays in transportation or car shortages, inability to obtain necessary labor, materials, components, equipment, services, energy or utilities through DreamPak’s usual and regular sources at usual and regular prices or failure or inability of the manufacturer of the goods to perform. In any such event, DreamPak may, with notice to Customer, at any time and from time to time without further liability to Customer (a) postpone its performance, (b) make partial performance or cancel all or any portion of this contract or (c) allocate available quantities among its customers in any manner which DreamPak deems reasonable. Cancellation of any part of this contract shall not affect DreamPak’s right to payment for performance of any other part hereof.

19. INDEMNIFICATION & WAIVER: Customer shall defend, indemnify and hold DreamPak and its affiliates and their respective officers, directors, employees and agents harmless from and against any and all cost, loss or damage suffered, incurred or sustained by any of them or to which any of them becomes subject at any time arising in whole or in part out of (a) failure of Customer, its agents, employees or customers to follow specifications, instructions, warnings or recommendations furnished by DreamPak, (b) failure of Customer, its agents, employees or customers to comply with all applicable laws and regulations, including, but not limited to any applicable federal, state and local laws and regulations governing hazardous materials or safety, all as they may be amended or supplemented from time to time, or to make any required filings with any regulatory agency, (c) misuse of the Products by Customer, its agents, employees or customers including use of Products with any substance that causes injury to person or property, (d) misrepresentation by Customer, its agents, employees or customers, (e) the sole or contributing negligence of Customer, its agents, employees or customers, (f) alleged infringement of any patent, trademark or copyright as a result of DreamPak’s performance in accordance with Customer’s designs, plans, specifications or directions, (g) any and all lawsuits, liabilities, damages, injuries, claims, demands and expenses (including attorneys’ fees and legal expenses) of whatever kind and nature arising on account of the manufacture, use, storage, maintenance or repair of any of Products regardless of by whomever manufactured, used, operated, maintained or stored and/or arising as a result of claims based upon strict liability imposed upon Customer except for claims directly resulting from DreamPak’s gross negligence, and (h) any and all lawsuits, liabilities, damages, injuries, claims, demands and expenses (including attorneys’ fees and legal expenses) of whatever kind and nature arising on account of any Customer Formulas and Customer Labels. Customer hereby waives and releases DreamPak from all rights of contribution or indemnity to which Customer may otherwise be entitled. As used in this paragraph, the term “Customer” shall mean the Customer, its officers, directors, employees, parent, subsidiaries, divisions, affiliates, successors and assigns. This Indemnity shall continue in full force and effect notwithstanding the termination of any order or contract.

20. CUSTOMER OBLIGATIONS. Customer is solely responsible for all label designs and artwork for the Products (“Customer Labels”). Customer shall ensure that the Customer Labels conform to applicable regulations and that all product claims appearing on the Customer Labels are permissible and/or adequately substantiated. Customer is responsible for receiving and investigating all Product complaints, provided that, Customer shall notify DreamPak promptly of any Product complaint. Customer is responsible for initiating and coordinating any mandatory or voluntary recall of Products manufactured by DreamPak.

21. MISCELLANEOUS: This Contract binds and benefits the Parties hereto and their respective successors and permitted assigns. This Contract is non-assignable by Customer without DreamPak’s prior written consent except in cases of a sale of substantially all of the assets of Customer. Any change in the control of Customer will be deemed an assignment under this Purchase Order. The Parties are and will remain independent contractors with respect to each other. If a court of competent jurisdiction determines that any provision of these terms is invalid, such determination will in no way affect the validity or enforceability of any other provision hereof.  The failure of either Party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Contract shall not be construed as a waiver or relinquishment or any right granted hereunder or the future performance of such term, covenant or condition.  Neither the expiration nor termination of these terms will affect the provisions of these terms that expressly provide that they operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

22. ENTIRE AGREEMENT: This Contract between the Parties related to the subject matter hereof constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous representations, proposals, discussions, and communications, whether oral or in writing. Neither DreamPak’s lack of objection to any terms contained in Customer’s purchase order or other documents, nor fulfilment of the Products, will constitute agreement by DreamPak to any terms proposed by Customer. DreamPak may update this Contract from time to time.  If we update this Contract, we will adopt an appropriate procedure for providing notice that there have been changes to this Agreement. 

23. GOVERNING LAW & JURISDICTION: These terms shall be governed by and shall be construed in accordance with the laws of the State of Wisconsin, USA, without regard to its conflicts of law principles and without regard to the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). The Parties expressly waive the CISG.  Customer (i) agrees that any litigation arising out of these terms may be brought only in the state or federal courts whose jurisdiction includes Wisconsin, (ii) consents to the jurisdiction of such courts, and (iii) waives any argument that any such court is an inconvenient forum. The Parties agree that they irrevocably waive and agree to cause their respective subsidiaries to waive the right to trial by jury in any action to enforce or interpret the provisions of this agreement.   If DreamPak pursues any legal action to enforce any of its rights, DreamPak shall be entitled to recover from Customer all reasonable attorneys’ fees and all other costs and expenses incurred by DreamPak in connection with such action.