1. ACCEPTANCE BY BUYER: Two Peaks Packaging (“Seller”) hereby offers to sell to the proposed purchaser (the “Buyer”) products listed on the face hereof (the
“Goods”) for the price(s) indicated, on the express condition that the Buyer agrees to accept and be bound by all the terms and conditions herein. Unless withdrawn or
modified by Seller this offer may be accepted by Buyer by any of the following: (a) written, telephonic, telegraphic, email or facsimile acceptance received by Seller
within 10 days (unless otherwise specified), or (b) shipment by Seller of and Buyer’s acceptance of or payment for, all or any of the Goods. A response by Buyer in
any of the foregoing manners shall constitute acceptance by Buyer of all terms and conditions hereof.
2. SALES AGREEMENT: The agreement between Seller and Buyer (the “Sales Agreement”) with respect to the Goods shall consist of the terms and conditions
contained herein together with any modifications or additions thereto mutually agreed to in writing by Seller and Buyer. The Sales Agreement, as modified or
supplemented as provided herein, shall constitute the entire agreement of Seller and Buyer with respect to the transaction contemplated hereby. No prior to
contemporaneous courses of dealing or written or verbal agreements, to the extent that they differ in any way from the written terms and conditions of the Sales
Agreement, shall be binding on the Seller or be construed to alter, repeal or invalidate the Sales Agreement. All terms and conditions contained in any purchase order
or other document purporting to set forth terms and conditions of sale which conflict in any respect with these terms and conditions are rejected, unless Seller has
agreed in writing to modify these terms and conditions and such writing identifies with specificity the conflicting terms and conditions to be included in the Sales
Agreement an demonstrates a clear and knowing waiver of those terms and conditions that conflict with the terms and conditions to be included.
3. PAYMENT AND CREDIT: Terms of payment (unless otherwise provided on the face hereof): All first orders are prepaid by customer, unless credit is granted
prior to first order. Full payment within 30 days of date of invoice. If, in the exclusive judgment of Seller, the financial condition of the Buyer at the time does not
justify the commencement or continuance of production or shipment on the terms specified herein, Seller may, in addition to all other remedies it may have at law or
in equity, make a written demand for full or partial payment in advance, suspend its performance until such payment is made, and cancel the Buyer’s order if such
payment is not received by Seller within ten (10) days after the mailing of demand by Seller. If Buyer and Seller agree that the payment of any part of the price of the
Goods is to be received by Seller before the commencement of production, Seller shall be under no obligation to commence production unless and until such payment
is received, and in any event may cancel this Sales Agreement if such payment is not received within 30 days of the date hereof. If Buyer and Seller agree that all or a
portion of the price of the Goods is to be paid to Seller before delivery of the Goods to the carrier, as provided in Section 5 below, whether by way of deposit,
prepayment, progress payment or otherwise, Buyer expressly acknowledges and agrees as follows: (a) notwithstanding such payment and identification of the Goods
that is to be sold to Buyer, title to the Goods will pass to Buyer only upon Seller’s actual receipt of the entire purchase price and all installments thereof
(notwithstanding receipt of the Goods by Buyer), and not before; (b) any and all such payments shall constitute loans to the Seller, which will be deemed discharged
by Seller upon delivery of the Goods to the carrier; (c) Buyer waives any and all rights it may have as a “buyer in the ordinary course” for purposes of the applicable
Uniform Commercial Code until delivery of the Goods to the carrier; and (d) to the extent that, notwithstanding the foregoing clauses (a), (b) and (c), the Buyer has an
interest in the Goods or in any deposit, prepayment, progress payment or other payment to Seller prior to the delivery of the Goods to the carrier, such interest shall be
subordinate in right to any inventory financier or other secured creditor of Seller. As to any amounts due Seller by Buyer hereunder, Buyer hereby grants to Seller a
purchase money security interest in the Goods (and all accessories, attachments or other goods sold to Buyer by Seller hereunder) manufactured or supplied by Seller.
The purpose of the security interest granted hereunder is to secure Buyer’s full payment on all obligations due and owing to Seller. Seller, in its discretion, may file a
UCC-1 Financing Statement or such other instruments, certificates and/or documents necessary to perfect Seller’s senior lien in the Goods; Buyer shall cooperate in
good faith to affect the same. Buyer shall execute and deliver such additional documents as the Seller may reasonably request to perfect its security interest and/or liens
evidencing such security interest. Unless otherwise agreed in writing by both Seller and Buyer, shipment terms are F.O.B. Seller’s selected manufacturing
facility. Remittance should be forwarded to Two Peaks Packaging at the address indicated on the billing invoice. If shipments are delayed by or at the request of the
Buyer, payment shall become due from the date when Seller is prepared to make shipment. Any Goods held for the Buyer because of such delay on delivery shall be at
the sole risk and expense of the Buyer. If more than one shipment is made, each may be invoiced separately. Invoiced payments past due are subject to late charges of
one and one-half percent (1-1/2%) per month of any unpaid invoice balance. Buyer shall not set off against or deduct from any amounts due hereunder all or any part of
any damages which it may have sustained or alleged to have sustained arising out of any breach of the Sales Agreement by Seller or any other claim Buyer may have
against Seller.
4. TAXES: All prices quoted herein do not include sales, use, value added, excise and other taxes or other governmental charges in respect of the production, sale,
distribution or delivery of any Goods or service related thereto. Buyer agrees to indemnify Seller against the imposition of, or increase in, any such taxes or charges
after the date hereof, which Seller may be required to pay.
5. SHIPMENTS AND DELIVERY: Risk of loss or damage to goods shall pass from Seller to Buyer upon delivery of the Goods to the carrier. Shipping dates are
approximate and based on prompt receipt of all necessary information by Seller. Seller will not be liable for any delay in the performance of the Sales Agreement
when such delay is, directly or indirectly, caused by or in any manner arises from fires, floods, terrorism, accidents, riots, war, government interference, embargoes,
strikes, shortage of labor, materials or supplies, inadequate transportation facilities or any other cause of causes (whether similar in nature to any of those specified
above) beyond Seller’s control. Refer to Two Peaks Packaging Acceptance of Goods Policy. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL OR INDIRECT DAMAGES OR ANY SORT RESULTING FROM OR ARISING IN CONNECTION WITH ANY FAILURE TO MEET
ANY DELIVERY SCHEDULE. Purchasers are expected to notify Two Peaks Packaging of any special shipping instructions, and or preferences. Any additional
shipping charges or fees will be the responsibility of the customer.
6. SAFETY REQUIREMENTS: Buyer shall notify Seller in writing of any safety devices for the Goods which are not specifically included in the description of the
Goods which may be required by federal, state, or local law, rule, or regulation. Notice by Buyer shall be in good time before the estimated date of delivery to permit
installation by Seller of the required safety devices on the Goods, if such safety devices are available and are approved by Seller as provided herein. Seller shall not be
responsible for the inclusion and/or installation of safety devices on the Goods to prevent personal injury or property damage or for the adequacy of safety devices
duly specified by the Buyer. Buyer agrees to indemnify and hold Seller harmless from and against all liability, loss, cost, damage, or expense attributable to any claim
against Seller for personal injury or property damage arising out of the installation, maintenance or operation of the Goods by Buyer or others, whatever the cause or
alleged cause of the personal injury or property damage may be.
7. WARRANTY: Seller warrants, to the original Buyer only, that every part of the Goods covered by this proposal manufactured by it will be of proper materials
and workmanship. In the Seller’s discharge of this warranty, the Buyer’s sole and exclusive remedy against the Seller shall be for the repair or replacement, but not
installation, of any such part which proves defective in material or workmanship within thirty (30) days from date of shipment of the Goods to Buyer provided Buyer
immediately gives Seller written notice of such alleged defects and, if requested, samples of the defective Goods to Seller’s place of business at the address indicated
on the invoice for the Goods, freight prepaid, for inspection. Seller shall not be responsible for repair or replacement of Goods unless such repair or replacement is
done by Seller and in accordance with written authority from Seller. To the extent any of the Goods incorporate component materials covered by third party
warranties, such component materials are not included in the foregoing warranty but are subject only to the warranties of their respective manufacturers. In no event
shall Seller’s warranty regarding freedom from defects extend to any Goods in any way caused or allowed to be installed, operated, or used in a negligent or improper
manner, or to be subject or exposed to conditions abuse or accident. Under no circumstances shall Seller be responsible or liable for any special, indirect, incidental, or
consequential damages arising in any way in connection with any Goods or the Sales Agreement.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. NO IMPLIED
WARRANTY OF MERCHANTABILITY, NO IMPLIED WARRANTY OF FITNESS FOR ANY PURPOSE, AND NO WARRANTY ARISING BY USAGE OF
TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE IS GIVEN BY SELLER OR SHALL ARISE BY OR IN CONNECTION WITH THE SALES
AGREEMENT AND/OR THE SELLER’S AND/OR BUYER’S CONDUCT IN RELATION THERETO OR TO EACH OTHER, AND IN NO EVENT SHALL
SELLER BE LIABLE ON ANY SUCH WARRANTY WITH RESPECT TO ANY GOODS. ANY MODEL, SAMPLE, DRAWING OR OTHER ARTIFACT OR
REPRESENTATION OF ANY KIND OF ANY GOODS SHOWN OR FURNISHED TO BUYER BY SELLER, IF ANY, WAS FOR ILLUSTRATIVE PURPOSES
EXCLUSIVELY AND NEITHER DID NOR DOES CONSTITUTE ANY REPRESENTATION OR WARRANTY OF SELLER THAT ANY GOODS WOULD OR
WILL CONFORM THERETO.
8. INSTALLATION AND SERVICE: Seller shall not be required to install, service, or provide any on-site engineering and/or site preparation for any of the Goods
except as may be agreed upon in writing by Seller and Buyer.
9. PATENTS: Buyer shall indemnify and hold harmless Seller against all liabilities or expenses arising from claims of infringement of patent, trademark or other
registered mark or design with respect to all Goods manufactured to Buyer’s specifications. Seller is not responsible for any uses to which any of the Goods may be put
as a part of any mechanism or any process subject to any patent or other registered mark held by others.
10. TRADEMARKS: Unless otherwise agreed, Seller reserves the right to have its name or trademark appear on each product sold hereunder, and to use such products
or illustrations of the same for display or advertising purposes.
11. DRAWINGS AND SPECIFICATIONS: Any drawings, prints or other information furnished by Seller in connection with the order are strictly confidential and
shall not be used for any purpose other than in connection with Seller’s products and Goods; all rights of Seller thereto are reserved and no drawing, print or other
information shall be copied or distributed in whole or in part without prior permission from Seller. All copyrights in drawings, prints, schematics, or other pictorial
representations vest in Seller and are Seller’s sole and exclusive property. No Goods may be manufactured by Buyer or for Buyer by third parties from Seller’s prints or
designs (whether furnished to Buyer by Seller) without the prior consent of Seller.
12. INSPECTION BY BUYER: CLAIMS FOR DAMAGES IN TRANSIT: Buyer shall carefully examine and check all deliveries of Goods made hereunder as they
are received and to report within seven days to Seller any alleged error, shortage or defect or non-conformity of any such Goods. Any failure by Buyer so to examine
and report shall constitute a waiver by Buyer of any claim or right of Buyer against Seller arising hereunder or by law with respect to any such error, shortage, defect or
non- conformity reasonably discoverable by such an examination and check. All claims by Buyer for damage or loss in transit shall be made by Buyer against
the carrier.
13. PERFORMANCE TESTING: Any tests conducted to prove the performance of the Goods shall comply with a test procedure agreed between Buyer and Seller.
Unless otherwise stated, the price(s) set forth on the face hereof do not include the cost of any tests. The results of any tests so conducted shall be accepted by Buyer as
final and binding as to the performance or other specifications of Goods so tested.
14. BUYER PROCESS: Seller shall not be obligated to make any modifications to the Goods if requested after the date hereof by Buyer for process or experimental
reasons discovered by Buyer, or due to the discovery of new technology by Buyer after the date hereof, or to meet specifications of Buyer not described to Seller on the
date hereof.
15. MODIFICATIONS AND CANCELLATIONS: Except as expressly provided herein, the terms and conditions (as to the performance of the Goods or otherwise)
of the Sales Agreement may not be modified, terminated, or repudiated, in whole or in part, except by a writing signed by Seller and Buyer. Seller may, at its sole
option, treat any attempted modification, termination, or repudiation to which it does not agree in writing as a breach of the entire Sales Agreement and recover from
Buyer all Seller’s damages, including without limitation special, indirect, consequential, and incidental damages, resulting there from or arising in connection therewith.
Seller may specify an increase in the price(s) as a condition of its agreement to any modification of the Sales Agreement requested by Buyer. Upon any breach by Buyer
or failure by Buyer to comply with any of the terms and conditions hereof, or if Buyer becomes unable to conduct its normal business operations (including inability to
meet its obligations as they mature) or becomes the subject of any proceedings under state or federal law for the benefit of creditors or relief of debtor or makes any
assignment for the benefit of creditors, Seller shall have the right immediately to cancel or terminate the Sales Agreement, in whole or in such part as Seller in its
sole judgment shall deem expedient, and recover from Buyer all damages, including without limitation special, indirect, consequential and incidental damages, suffered
by the Seller as a result of, or arising in connection with such termination. If the Sales Agreement, or any part thereof, is modified or terminated by written agreement of
the parties or otherwise as provided herein, unless otherwise agreed, buyer shall pay and be liable for modification or termination charges including (if applicable)
without limitation, the following: (a) the price of any and all Goods the manufacture of which by Seller is or was either completed or in process at the time of
such written agreement or termination, plus (b) any and all expenditures made or incurred by Seller (including, without limitation, any such expenditures or liabilities
for raw materials, components, labor, engineering and start-up expenses) in connection with the entire Sales Agreement (including, without limitation, the uncompleted
or modified portion of Buyer’s order in connection therewith), plus (c) a reasonable estimated profit.
16. SECURITY INTEREST: In order to provide collateral security for performance of all of the obligations of Buyer under this Sales Agreement, Buyer hereby grants
a purchase money security interest in the Goods and all replacements for, and all proceeds, supporting obligations and products of the foregoing (“Collateral”),
wherever located. Buyer grants Seller the right to file financing statements in the state of Buyer’s organization and in any other state or office that may be required to
perfect the security interest granted herein. Buyer further grants Seller the right to give notice to any party holding a security interest in like collateral advising of the
security interest granted herein. Seller shall have all the rights and remedies of a perfected secured party under the Uniform Commercial Code as adopted in the State of
Colorado.
17. REMEDIES NOT EXCLUSIVE: No remedy of Seller provided herein shall be exclusive of any other remedy of Seller provided herein or allowed by law.
18. ASSIGNMENT: No rights, benefits, or duties under the Sales Agreement, including the benefits of the warranty contained in Section 7 hereof, shall be assignable
by Buyer without the prior written consent of Seller.
19. GOVERNING LAW: The Sales Agreement shall in all respects be governed by, and construed in accordance with, the laws of the State of Colorado.
20. VENUE: The exclusive venue for any legal proceedings involving the interpretation of enforcement of the Sales Agreement or any other agreement between Buyer
and Seller shall be the circuit court for Jefferson County, CO. Buyer waives any right to remove any such proceeding to federal court and waives all claims of forum
non conformant.
21. COLLECTION COSTS AND ATTORNEY FEES: If Seller hires the services of any third party, including any collection agency or attorney, to collect any sums
Seller has failed to pay as required according to these terms and conditions, Buyer shall reimburse Seller for all costs and fees, including actual attorney fees charged by
every such third party in relation to such collection efforts, whether the same have been incurred before the initiation of legal proceedings, during such proceedings or
after the entry of a judgment or award.
