BUSINESS TERMS AND CONDITIONS

November 1, 2022

TERMS AND CONDITIONS OF PURCHASE

1. Engagement: Except where otherwise expressly agreed by the parties in writing, Vendor acknowledges and agrees that: (i) these Terms and Conditions of Purchase (“T&Cs”)shall apply to any purchases of Deliverables by WBfrom the Vendor; (ii) these T&C are hereby incorporated into an Order issued by WB or into an applicable vendor agreement that references these T&C (an “Agreement”); (iii) by supplying the Deliverables, Vendor is bound by and subject to the T&C; and (iv) any any terms in any document issued by it that arein conflict with or otherwise not consistent with theseT&Cs shall be deemed void and not applicable to the purchase of Deliverables by WB. For purposes of these T&Cs: (a) “WB” shall mean Wonder Brands Inc.or WB Frozen US, LLCor any of its subsidiary companies; (b) “Vendor” shall mean the party identified on an Order who sells or provides Deliverables to WB; (c) “Deliverables” means any goods, materials and/or services provided to WB by the Vendor pursuant to an Order; and (d) “Order” means any purchase order or document ordering Deliverables from the Vendor.

2. Ownership: Title to, and risk of loss for any item provided to WB as part of the Deliverables shall transfer to WB once delivered to WB (and installed, if applicable), in accordance with these T&Cs, unless rejected by WB.

3. Fees:

(a) In consideration for the provision of the Deliverables, WB shall pay to the Vendor the fees set out in an Order as may be governed by an applicable Agreement (the “Fees”).

(b) Unless otherwise indicated within an applicable Agreement, the Fees shall be fixed and are inclusive of all applicable freight, duty and taxes. The Vendor shall not be entitled to any prepayment for the Deliverables and undisputed Fees shall be paid to the Vendor within thirty (30) days following receipt by WB of a correct and complete invoice. The Vendor shall not issue an invoice for any Deliverables which have not been accepted by WB.

(c) WB may deduct, set-off or apply all or part of any payment obligations owing by the Vendor to WB against any sums due to the Vendor from WB or its subsidiaries.

(d) Vendor shall issue an invoice to WB no later than ten (10) days after the fulfilment of an Order.

4. No Minimum Purchase: Unless otherwise expressly otherwise stated in an applicable Agreement, nothing obligates WB to purchase any minimum level of Deliverables from the Vendor.

5. Applicable Laws: The Vendor shall at all times comply with all Applicable Laws. For purposes of these T&Cs, “Applicable Laws” means any federal, provincial, state, territorial and municipal laws and all applicable regulations, by-laws, ordinances, codes, standards, rules, orders and practices, including any policies and guidelines issued by WB, which are in any way applicable to the Deliverables, including WB’s FoodSafety Program Schedule, and other health, safety and environmental rules and WB’s security, supervision and other standard procedures while on its premises. For Products that are food related products, including the contents, packaging, and labeling, Applicable Laws shall also include but not be limited to the Federal Food, Drug, and Cosmetic Act of 1938, the Canadian Food and Drugs Act and its Regulations, the Fair Packaging and Labeling Act, the Consumer Packaging and Labelling Act, and the Food Safety Modernization Act, as applicable. In addition, the Vendor shall obtain workers’ compensation and workplace safety clearances and certificates for all of its employees and agents engaged in the provision of Deliverables at no cost to WB and shall furnish copies of such certificates to WB upon request for review.

6. Delivery:

(a) Customer shall from time to time place Orders for the Deliverables. Each Order and each delivery, while governed by and subject to these T&C and an applicable Agreement, shall stand as separate transactions and shall have no consequences for other deliveries unless otherwise agreed to by the parties. An Order may be cancelled by WB prior to shipment of the Deliverables.

(b) The Vendor shall suitably pack, mark and ship such items in accordance with the specific instructions provided by WB (and Applicable Laws and industry standards) and the Vendor shall assure delivery in full, free of loss, damage and deterioration, to the delivery point specified by WB on the delivery date or within the period specified by WB. Vendor agrees that time, quantity and delivery is of the essence in performing Vendor’s obligations here under. The Vendor shall promptly notify WB of any circumstance known or suspected that may cause a delay in the delivery of the Deliverables. The Order number must appear on the container, the packing list, invoice and correspondence relating to such Order, as applicable.

(c) WB and its authorized representatives shall have the right, but not the obligation, to inspect the Deliverables at times and places designated by WB before, during or after delivery or performance. The Deliverables shall be subject to final inspection by WB or its authorized representatives and acceptance at the final destination specified. WB’s making of or failure to make an inspection, examination or test of, or payment for, or WB’s acceptance of, any Deliverables shall in no way relieve the Vendor from its obligation to conform to all of the requirements of these T&Cs and any applicable Agreement, and shall in no way impair WB’s right to reject or revoke acceptance of any nonconforming Deliverables, or to avail itself of any other remedies to which WB may be entitled, notwithstanding WB’s knowledge of any nonconformity, its substantiality or the ease of its discovery. WB reserves the right to review Vendor’s quality assurance and quality control procedures.

(d) Any aspect of the Deliverables not fully conforming to the terms of an Order, these T&Cs, an Agreement (where applicable), and any specifications, instructions, drawings or data submitted to the Vendor (or industry standards if no specifications are given) or violating any Applicable Law (collectively, “Nonconforming Deliverables”), may be refused or rejected by WB and returned or held at the Vendor’s expense and risk. Where there are Nonconforming Deliverables, Vendor shall, where requested by WB, promptly (and in any event, within seven days) replace the Nonconforming Deliverables with conforming Deliverables at no cost to WB and pay for any additional or incremental expenses associated with such replacement, such as expedited shipping that WB may require. WB may also elect, at its sole option, to replace Nonconforming Deliverables with conforming deliverables from any other source, and Vendor will reimburse WB for the difference between the cost of the replacement deliverables and the purchase price that was (or would have been) paid by WB in respect of the Nonconforming Deliverables, plus any additional or incremental costs and expenses associated with such replacement. In addition, WB may charge to the Vendor, and Vendor shall pay, all costs and expenses of inspecting, unpacking, examining, repacking, storing, and reshipping any rejected Nonconforming Deliverables and shall, at WB’s sole option, reimburse or apply a credit towards WB’s future payments, where WB has already paid for such Nonconforming Deliverables. The remedies hereinabove afforded WB shall not be exclusive, and WB may hold Vendor liable for any and all damages arising from any breach or default set forth herein.

(e) If Vendor is out of stock or has a shortage with respect to any Deliverables, Vendor shall notify WB immediately. Upon being notified that Vendor is out of stock or has a shortage with respect to any Deliverables, WB may, without notice to Vendor, order similar or substitute deliverables from another Vendor, and Vendor shall pay to WB within thirty (30) days after receiving a notice or invoice, any additional or incremental costs and expenses incurred by WB to obtain substitute deliverables, including without limitation price differences, shipping charges and tax differences. WB may, at its option, cancel any Order for Deliverables that are out of stock or that Vendor is unable to fulfill, without liability to Vendor for such cancellation.

7. Recall: If all or any part of the Deliverables is the subject of any order or requirement pursuant to any Applicable Laws requiring either WB or the Vendor to recall, replace, repair or otherwise take back all or any part of the Deliverables, or if WB or the Vendor reasonably determines that it is necessary to affect a voluntary recall (in either case, a “Recall”) prior to any such order or requirement, the Vendor shall be responsible for all costs, expenses and other losses (including lost profits) associated with or resulting from any such action, including, but not limited to, any transportation and/or destruction of the portion of the Deliverables subject to the Recall and all cost of the recalled Deliverables. The Vendor shall fully cooperate with WB in WB’s implementation of any Recall of Deliverables and shall provide all quality and production data reasonably requested by WB with respect to recalled Deliverables within 24 hours of WB’s request.

8. Representations and Warranties: The Vendor represents and warrants, as applicable, that:
(a) it shall provide, operate and manage the Deliverables in a professional, competent and commercially prudent manner by an adequate number of appropriately trained, skilled and qualified personnel;
(b) it has the necessary resources and qualifications, including knowledge, skill and experience to provide the Deliverables;
(c) if applicable, the Deliverables shall be in good working order, free of material defects and handled, stored, shipped and utilized in a competent manner and in accordance with safe and sanitary industry practices and standards;
(d) the Deliverables shall (i) be new and free from defects in design, manufacture, materials and workmanship; (ii) be of merchantable quality, in good operating condition, fit and suitable for the purpose intended by WB; and (iii) be free and clear of any security interests, claims, charges, encumbrances, or liabilities and that Vendor has good and marketable title to all Deliverables;
(e) it shall provide the Deliverables in accordance with all Applicable Laws and neither these T&Cs nor any applicable Agreement breach any other agreement to which the Vendor may be subject to;
(f) it shall obtain and maintain all licenses, permits, certifications and regulatory approvals necessary for the provision of the Deliverables;
(g) no part of the Deliverables will infringe or otherwise violate any patent, copyright, trade-mark, trade secret or other intellectual property or other proprietary rights of any person;
(h) the Deliverables will conform to specifications and descriptions as set forth in an Order and an Agreement, where applicable, and/or any other documentation published or made available to the Vendor in relation to the Deliverables; and
(i) in the event any information or reports are provided by the Vendor to WB as part of the Deliverables, such information or reports shall be complete and accurate in all material respects.

9. Independent Contractor and Employees: This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The parties hereto do not intend to create a partnership or joint venture between themselves. Neither WB nor the Vendor shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other party.

10. Audit, Inspection and Records: Vendor shall permit WB and its third-party representatives to audit or inspect any facility where any Deliverables are produced, held, stored or transported, without prior notice, at Vendor’s sole cost and expense. Vendor agrees to accept and allow such unannounced audits and inspections during normal business hours. From time to time, WB or its designee may collect or otherwise request that Vendor provide reasonable samples of the Deliverables to WB or its designee for laboratory testing, at Vendor’s sole cost and expense. For a period for two (2) years following provision of the Deliverables to WB, the Vendor shall maintain all books and records associated with an Order of such Deliverables and WB shall have the right to inspect or audit such books and records and in the event an audit or inspection shows that Vendor has overcharged WB, without prejudice to any additional remedy available to WB, Vendor shall promptly pay WB an amount equal to the overcharge plus interest at the lesser of eighteen percent (18%) per annum or the highest rate permitted by Applicable Laws.

11. Intellectual Property: (a) The Vendor acknowledges that all trade-marks, logos, trade names, business names or other proprietary designations, artwork, designs, copy, inventions, ideas, concepts, techniques and all other intellectual property associated with the Deliverables (collectively the “Intellectual Property”) are and shall remain the sole and exclusive property of WB, and, unless otherwise agreed upon by the Parties in writing, the Vendor does not acquire any interest in any Intellectual Property associated with the Deliverables.
(b) The Vendor agrees not to dispute, interfere with or contest, for any reason, directly or indirectly, the validity, ownership, goodwill, reputation or enforceability of any of the Intellectual Property nor directly or indirectly attempt to dilute the value of the goodwill attached to the Intellectual Property nor counsel, procure or assist anyone else to do any of the foregoing.
(c) The Vendor shall not, without the prior written consent of WB use any Intellectual Property, either directly or indirectly, for any purpose other than providing the Deliverables to WB as reasonably required.
(d) Any invention, discovery, concept, know-how, process, formula, recipe, specifications, design, or other discovery made, created, or developed by the Vendor which is in any way associated with the Deliverables (each a “Development”) shall be immediately disclosed by the Vendor to, and shall be the exclusive property of, WB. The Vendor shall do all things reasonably necessary to assign all right, title and interest in and to the Developments to WB and assist WB to obtain, in WB’s name, anywhere in the world the relevant patent, copyright or other proprietary rights to same. The Vendor waives all moral rights in connection with the Developments. The Vendor agrees to obtain assignments of intellectual property in any Development and waivers of moral rights from its employees and independent subcontractors necessary to transfer to WB (or waive in respect of moral rights) all rights, title and interests, of every kind and character that such individuals may have in the Developments.
(e) In the event of any alleged or actual infringement or contributory infringement (each an “Infringement”) of any patent, trademark, copyright or other proprietary interest by reason of the manufacture, delivery, license, use or sale of any Deliverables, the Vendor shall, at Vendor’s sole expense, obtain for WB a perpetual, royalty-free license with respect to the any Infringement, or shall replace or modify any Deliverables affected by an Infringement in a manner satisfactory to WB, so as to avoid the Infringement without any degradation in the performance of the Deliverables. The Vendor’s obligation shall apply even if WB furnishes a portion of the design or specifications for the affected Deliverables.

12. Indemnification and Limitation of Liability: The Vendor agrees to defend, indemnify, and hold harmless WB, its subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives from and against any and all claims, actions, demands, complaints, legal proceedings, losses, liabilities, damages, judgments, settlements, fines, penalties, reasonable legal fees and any other costs or expenses (including lost revenue, lost profits, special, incidental, indirect, consequential and punitive damages) arising out of or in connection with any alleged or actual act, omission or breach by the Vendor (except to the extent caused solely by a negligent act or omission by WB).

13. Insurance: The Vendor shall obtain and maintain the following insurance:
(a) Commercial General Liability Insurance with limits for bodily injury and property damage liability of not less than ten million dollars ($10,000,000) each occurrence, including personal injury, products/completed operations coverage, premises/operations liability, independent contractors liability, and broad form contractual liability specifically in support of, but not limited to, the indemnity provisions set forth herein.
(b) Commercial Crime (Employee Dishonesty) Insurance in the amount of not less than two million dollars ($2,000,000) per occurrence, including blanket coverage for theft of, or loss or damage to, any property and/or funds of others, including WB and its subsidiaries arising out of or in connection with fraudulent or dishonest acts committed by Vendor’s employees, the Vendor’s subcontractors and/or other representatives, acting alone or in collusion with others, including third party extension.
(c) Errors and Omissions Liability Insurance in the amount of two million dollars ($2,000,000) per claim covering all professional liability.
(d) Automobile Liability Insurance (if applicable) for all vehicles owned or operated by the Vendor used in the provision of the Deliverables in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury or property damage.
(e) Employer’s Liability Coverage should include worker’s compensation insurance as required under Applicable Laws and employer’s liability coverage in an amount no less than $2,000,000 in an amount not less than two million dollars ($2,000,000) per occurrence.
(f) All policies providing coverage shall (i) specify that it is primary coverage and not contributory with or in excess of any other insurance that may be maintained by WB or its affiliates (ii) waive all present and future rights of subrogation against WB and its affiliates; (iii) except for Workers’ Compensation, name WB and its directors, managers, officers, representatives, agents, and employees, including all affiliates and their respective directors, managers, officers, representatives, agents and employees, as additional insureds and (iv) contain provisions that no cancellation, non-renewal or material changes in the policy shall become effective, except on thirty (30) days’ prior written notice to WB. Upon request, the Vendor shall furnish to WB a Certificate of Insurance evidencing the coverage required hereunder.

14. Termination:
(a) Without cause: WB may terminate an applicable Agreement and/or any Orders, in whole or in part, at any time without cause upon providing thirty (30) days’ prior written notice to the Vendor.
(b) For cause: Either party may terminate an applicable Agreement and/or any Orders for cause in the event of a breach by the other party if such breach is not cured within ten (10) days following written notice to the breaching party advising of such breach.
(c) Immediate termination: Either party may immediately terminate an applicable Agreement and/or any Orders by giving written notice to the other party if: (i) the other party becomes insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction; (ii) the other party makes an assignment for the benefit of its creditors; or (iii) a receiver, trustee or similar agent is appointed with respect to any property or business of the other party.

15. Force Majeure: Neither party will hold the other party liable for failure to comply with any term of the T&C, an applicable Agreement or an Order where failure to comply has been caused by an event or conditions beyond the reasonable control of the affected party (each a “Force Majeure Event”). A Force Majeure Event may include an act of God, force of nature, fire or other casualty, expropriations, warlike activity, insurrection, civil commotion or other similar act, but expressly excluding labour unrest or strikes by Vendor’s employees, subcontractors and/or other representatives. In the event of the occurrence of a Force Majeure Event, the affected party shall notify the non-affected party promptly upon the occurrence of same and describe in reasonable detail the circumstances causing the Force Majeure Event. The affected party must immediately commence all reasonable efforts to mitigate the Force Majeure Event. Where Vendor is affected by a Force Majeure Event, Vendor shall use commercially reasonable efforts to remedy such Force Majeure Event as quickly as practicable to minimize any disruption to WB and WB may, for greater certainty, seek to have its needs met by others. If there is a Force Majeure Event affecting Vendor that continues for a period of more than 30 days, then WB may terminate an applicable Agreement and/or all Orders effective immediately upon notice to the other party without any penalty or liability.

16. Confidentiality:
(a) “Confidential Information” shall mean information received by one party (the “Receiving Party”) from the other party (the “Disclosing Party”) that is proprietary to the Disclosing Party, not generally known in the applicable industry, would reasonably be considered confidential to the Disclosing Party, would do the Disclosing Party harm if divulged or that is marked, disclosed as or advised as being “confidential” or “proprietary” by the Disclosing Party, including the terms of an Order, these T&Cs and an applicable Agreement.
(b) The Receiving Party shall keep strictly confidential all Confidential Information and prevent the unauthorized use or disclosure of all Confidential Information. The Receiving Party shall not use any Confidential Information for any purpose other than to provide the Deliverables. In no event will the Receiving Party use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care, to prevent the unauthorized use or disclosure of any Confidential Information.
(c) Exceptions: Notwithstanding the foregoing, the Receiving Party shall not be liable for use or disclosure of any Confidential Information that: (i) was already published or otherwise in the public domain through authorized disclosure at the time it is disclosed by the Disclosing Party to the Receiving Party; (ii) was already available or known to the Receiving Party (as established by the Receiving Party’s records) at the time it is disclosed to the Receiving Party by the Disclosing Party; (iii) is independently developed by the Receiving Party without reference to information disclosed by the Disclosing Party, provided such development can be adequately substantiated by the Receiving Party’s records; or (iv) is disclosed by the Receiving Party in response to an order of a court or other governmental authority provided that the Receiving Party provides the Disclosing Party prompt notice of any such order so that the Disclosing Party may seek a protective order or applicable relief.
(d) Need-To-Know Basis: Each Party shall only make available the Confidential Information to its employees and agents on a need-to-know basis and shall advise such employees and agents of the restrictions set forth herein with respect to the use of such Confidential Information. The Receiving Party shall be responsible for the unauthorized disclosure of any Confidential Information by its employees and agents.
(e) The Receiving Party acknowledges that a breach or threatened breach by the Receiving Party of any of the provisions in this Section would cause the Disclosing Party irreparable harm not compensable in damages alone and that in such instance the Disclosing Party may be entitled to seek and obtain, in a summary manner, interim, interlocutory and permanent injunctive relief without showing irreparable harm, specific performance and other equitable remedies.
(f) The Receiving Party shall immediately return or destroy all Confidential Information in its possession upon request of the Disclosing Party or upon termination or expiration or an Agreement, where applicable.

17. No Public Disclosure: Neither party shall make any public statement, announcement or disclosure to third parties concerning the existing of an Order, these T&Cs or an applicable Agreement or the terms thereunder, the business relationship between the parties or the transactions contemplated hereby without the prior written approval of the other party.

18. Dispute Resolution: If a dispute, controversy or claim (collectively, “Dispute”) is not resolved within thirty (30) days from delivery of a request to negotiate, WB shall be entitled, but not obligated, to refer the Dispute to mediation or binding arbitration, at its discretion. If WB issues a notice of mediation or arbitration, the Vendor hereby consents to the submission of the Dispute to the mediator or arbitrator.

19. Assignment and Subcontracting: The Vendor may not assign or transfer an Order, these T&Cs or an Agreement (where applicable), or any part thereof, to any third party, without the prior written consent of WB, which consent may be withheld at WB’s sole discretion. WB may assign or transfer an Order, these T&Cs or an Agreement (where applicable), or any part thereof, to any of its assigns, subsidiaries, successors or other entity provided WB gives prior written notice to the Vendor. The Vendor shall not subcontract all or part of the Deliverables to any third party unless it obtains the prior written consent of WB which such consent may be unreasonably withheld.

20. Notices: Any notice required pursuant to these T&Cs or an applicable Agreement must be in writing in English and delivered in person, sent by registered mail, return receipt requested, postage prepaid or sent by email, to the address and individual indicated on the Order. All such notices shall be effective on the date received. A copy of any notice sent to WB shall be sent by email to legalnotices@wonderbrands.com.

21. Governing Law and Jurisdiction: For an Order issued in the United States, the laws of the State of Delaware shall govern the Order and these T&Cs and an Agreement, where applicable, and each party hereby attorns to the exclusive jurisdiction of the courts of the Delaware Court of Chancery. For an Order issued in Canada, the laws of the Province of Ontario and the applicable laws of Canada shall govern the Order, these T&Cs, and an Agreement, where applicable, and each party hereby attorns to the exclusive jurisdiction of the courts of the Greater Toronto Area.

22. Conflicts: In the event of a conflict or inconsistency in any provisions in these T&Cs, an applicable Agreement, an Order, or any other document issued by either party, such conflict or inconsistency shall be resolved in the following order or priority: (a) an Agreement; (b) these T&Cs; (c) an Order; and (d) any document issued by WB. Any document issued by the Vendor shall not be binding upon WB unless WB provides express written agreement otherwise.

23. Severability: Any provision in an Order, these T&C or any applicable Agreement that is prohibited or unenforceable in any jurisdiction is, as to that jurisdiction, ineffective to the extent of such prohibition or unenforceability and is severed from the balance of such Order, these T&Cs or applicable Agreement, as applicable, all without affecting the remaining provisions or affecting the validity or enforceability of such provisions in any other jurisdiction.

24. Entire Agreement and Waiver: The Order, these T&Cs and an Agreement, where applicable, constitute the entire agreement between the Parties with respect to the provision of the Deliverables, and supersedes all other written or oral understandings or agreements between the Parties with respect to the provision of the Deliverables (including any understandings or agreements entered into by Vendor with any of WB’s predecessors or prior related companies such as WF Bakery Inc., Weston Foods (Canada) Inc., Weston Foods US, LLC, Weston Foods US Inc., Weston Foods US Holdings Inc., Weston Bakeries Limited, Maplehurst Bakeries Inc., Maplehurst Bakeries LLC, Boulangeries Weston Quebec Limitée and Boulangerie Gadoua Ltée). No variation or modification of these T&Cs or an applicable Agreement shall be valid unless an amendment in writing is signed by a duly authorized officer of each party.

[END OF TERMS AND CONDITIONS OF PURCHASE]

TERMS AND CONDITIONS OF SALE

1. Application of Conditions; Express Rejection of Other T&C: Except where otherwise expressly agreed by the Parties in writing, Customer acknowledges and agrees that: (i) these Terms and Conditions of Sale (“T&C”) shall apply to any purchases of Goods by the Customer from WB; (ii) these T&C are hereby incorporated into a PO issued to WB or into an applicable customer agreement that references these T&C (an “Agreement”); (iii) by issuing a PO to WB, Customer is bound by and subject to the T&C; and (iv) any terms in a PO or any other document issued by Customer that are in conflict with or otherwise not consistent with these T&C shall be deemed void and not applicable to the purchase of Goods by the Customer.

For the purposes of these T&C: (a) “WB” shall mean Wonder Brands Inc. or WB Frozen US, LLC, as applicable, or any of its subsidiary companies; (b) “Customer” shall mean the party identified on a PO or in an Agreement who purchases Goods from WB; (c) “Goods” means any product or products identified in a PO purchased by the Customer from WB; (d) “PO” means any purchase order issued by Customer for the provision of Goods by WB; and (e) the “Parties” mean WB and the Customer, collectively, and each, individually, is a “Party”.

2. Purchase Orders: In order to place orders for Goods, Customer shall from time to time issue a PO. Each PO is deemed to include these T&C and, once accepted, all POs shall exclusively govern the purchase of Goods together with an Agreement, where applicable. Unless otherwise agreed to by the Parties, each PO shall be accepted by WB (a) upon issuance of an Order Confirmation by WB to Customer; or (b) through the provision by WB of Goods as requested by such PO.

WB has no obligation whatsoever to accept any POs and may, at any time in its sole discretion, reject a PO. Each PO and each delivery, while governed by and subject to these T&C, shall stand as a separate transaction and shall have no consequences for other deliveries unless otherwise agreed to by the Parties. POs for Goods cannot be cancelled or modified by Customer after acceptance except with the express written consent of WB.

3. Price and Payment: Unless otherwise expressly agreed by the Parties in writing, prices of the Goods are set forth in the POs or an Agreement (where applicable) and shall be inclusive of loading, freight, carriage, and insurance. Unless otherwise expressly agreed by the Parties in writing, WB shall have the right to adjust prices at any time in its sole discretion, including without limitation, to reflect changes in the product component, packaging, manufacturing, labour and shipping costs associated with the manufacturing, packaging and delivery of the Goods, as applicable.

The prices for the Goods do not include any costs for duties or taxes, the amount of which shall be added to each invoice or separately invoiced by WB to Customer. Unless otherwise expressly agreed to by the Parties in writing, payment terms shall be as set forth on the invoice. All invoices issued by WB not paid when due shall owe interest at the greater of a rate of eighteen (18%) or the highest rate as permitted by applicable law. All invoices shall be paid to WB when due. ANY FAILURE TO PAY AN INVOICE TO WB WHEN DUE SHALL CONSTITUTE A MATERIAL BREACH OF THESE TERMS.

4. Set-off: In no event is Customer authorized to deduct any amounts from the amounts owed to WB unless specifically authorized in writing by WB.

5. Inspection and Acceptance: WB warrants that the Goods shall conform with the specifications or description referred to in an applicable Agreement and shall conform with WB’s Continuing Letter of Guarantee (a copy of which will be made available upon request). Further, WB warrants that any accepted PO shall be delivered in full.

Customer shall inspect the Goods upon delivery and shall provide WB with notice in writing (within seven (7) days of delivery of the Goods) where the Goods are non-conforming or where an accepted PO has not been delivered in full. If no such notice is provided to WB, it is presumed that the Goods have been accepted in full.

If the Goods fail to conform or where an accepted PO has not been delivered in full, and Customer provides WB with notice thereof within the stipulated timeframe, WB shall, at its own option and within a reasonable time, either (i) repair or replace the non-conforming Goods at no charge to Customer or (ii) reimburse Customer by means of a refund or credit for the purchase price of the non-conforming Goods. The foregoing remedy shall be Customer’s sole remedy for failure of the Goods to comply with the warranties granted hereunder.

In no event shall any Goods be returned, reworked, scrapped, resold, or donated by Customer without express written authorization of WB. The warranties granted in this Section 5 (“Inspection and Acceptance”) are exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractually or otherwise, including but not limited to any warranty of merchantability, suitability or fitness for any purpose.

6. Delisting: WB may, at any time in its sole discretion, elect to delist or otherwise no longer sell one or more of the Goods listed in a PO or an applicable Agreement.

7. Delivery: Unless otherwise expressly agreed by the Parties in writing, delivery terms and the delivery location shall be as set forth in an Order Confirmation issued by WB to Customer upon receipt of a PO.

8. Recall: In the event any Goods may be harmful to the public, are in violation of any applicable laws or are subject to any recall (a “Recall”), the Parties shall immediately take all actions necessary to recall, withdraw, correct or destroy, as appropriate, the affected Goods in accordance with WB’s directions and/or as ordered or recommended by governmental authorities.

Either Party shall, as promptly as possible, notify the other Party in writing of any situation or circumstance which could result in a Recall or seizure of Goods. Upon receipt of such notification, WB shall immediately suspend distribution of any such Goods until further notice from Customer.

The Parties shall cooperate fully in implementing any Recall of Goods, including without limitation, assisting WB in determining the scope and cause of the problem and the location of WB’s shipments of affected Goods, and providing assistance to WB in communicating and responding to government authorities. To the extent permitted by applicable laws, Customer shall not make any communications to a government authority or to the public without the prior approval of WB.

9. Confidentiality: For purposes of these T&C, “Confidential Information” means information received by one Party (the “Receiving Party”) from the other Party (the “Disclosing Party”) that is proprietary to the Disclosing Party, not generally known in the applicable industry, would reasonably be considered confidential to the Disclosing Party, would do the Disclosing Party harm if divulged or that is marked, disclosed as or advised as being “confidential” or “proprietary” by the Disclosing Party, and includes the terms of an applicable Agreement.

The Receiving Party shall not use any Confidential Information for any purpose other than to perform its obligations pursuant to these T&C and an applicable Agreement and shall keep all Confidential Information strictly confidential. In no event will the Receiving Party use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care, to prevent the unauthorized use or disclosure of any Confidential Information.

Each Party shall only make available the Confidential Information to its employees and agents on a need-to-know basis and shall advise such employees and agents of the restrictions set forth herein with respect to the use of such Confidential Information. The Receiving Party shall be responsible for the unauthorized disclosure of any Confidential Information by its employees and agents.

The Receiving Party shall not be liable for use or disclosure of any Confidential Information to the extent (i) such disclosure required by law, (ii) the Confidential Information becomes part of the public domain through no fault of the Receiving Party; or (iii) the Confidential Information was already available or known to the Receiving Party (as established by the Receiving Party’s records) at the time it is disclosed by the Disclosing Party to the Receiving Party.

If the Receiving Party is ordered by a court of competent jurisdiction to disclose Confidential Information to a third party, it shall provide the Disclosing Party as much advance notice as possible so as to permit the Disclosing Party to take appropriate steps, at the Disclosing Party’s expense, to prohibit, control or limit the proposed disclosure of the Confidential Information.

The Receiving Party acknowledges that a breach or threatened breach by the Receiving Party of any of the provisions in this Section 9 (“Confidentiality”) would cause the Disclosing Party irreparable harm not compensable in damages alone. The Receiving Party further acknowledges that it is essential to the effective enforcement of these T&C and an Agreement, where applicable, that in addition to any other remedies to which the Disclosing Party may be entitled, the Disclosing Party be entitled to seek and obtain, in a summary manner, interim, interlocutory and permanent injunctive relief without showing irreparable harm, specific performance and other equitable remedies.

The Receiving Party shall immediately return or destroy all Confidential Information in its possession upon request of the Disclosing Party or upon the termination or expiration of an Agreement, where applicable.

10. Force Majeure: Neither Party will hold the other Party liable for failure to comply with any term of these T&C or an Agreement, where applicable, where failure to comply has been caused by an event or conditions beyond the reasonable control of the affected Party (each a “Force Majeure Event”). A Force Majeure Event may include an act of God, force of nature, fire or other casualty, expropriations, war-like activity, insurrection, civil commotion or other similar act.

11. Term and Termination: These T&C shall commence on the date of Customer’s first issuance of a PO to WB and shall continue until terminated. These T&C may be terminated by either Party, at any time, upon thirty (30) days’ prior written notice to the other Party.

12. Intellectual Property: All trade-marks, trade names, patents, designs, logos, slogans, copyright, industrial designs, or other intellectual property rights used by WB in connection with the Goods are owned by WB or its licensors. Nothing contained in these T&C shall be deemed to convey to Customer any right, title, or interest in any intellectual property of WB or its licensors.

13. Limitation of Liability: EXCEPT FOR BREACHES OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS, REVENUE OR BUSINESS OPPORTUNITIES ARISING OUT OF OR IN CONNECTION WITH THESE T&C, AN AGREEMENT OR ANY PO, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR PREVENTED.

EXCEPT FOR BREACHES OF CONFIDENTIALITY, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO WB FOR THE GOODS SUBJECT TO THE APPLICABLE CLAIM DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE CLAIM.

14. Indemnification: Customer shall indemnify, defend and hold harmless WB and its affiliates, and its and their respective officers, directors, employees, contractors and agents (collectively, “WB Indemnified Parties”) from and against any and all damages, liabilities, claims, losses, actions, proceedings, costs, and expenses (including, without limitation, reasonable legal fees and expenses) arising out of or relating to: (i) Customer’s breach of these T&C, an Agreement, or a PO; (ii) Customer’s violation of applicable law; (iii) Customer’s negligence or willful misconduct; or (iv) any claims made by third parties relating to Customer’s use, handling, storage, or resale of the Goods.

15. Governing Law: These T&C, any Agreement and any PO shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to conflict of law principles. The Parties hereby submit to the exclusive jurisdiction of the courts of the Province of Ontario located in Toronto.

16. Entire Agreement: These T&C, together with any applicable Agreement and POs, constitute the entire agreement between the Parties with respect to the purchase and sale of Goods and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, and warranties, both written and oral, with respect to such subject matter.

17. Amendment and Waiver: No amendment to, or modification of, these T&C is effective unless it is in writing and signed by both Parties. No waiver of any provision of these T&C is effective unless expressly set forth in writing and signed by the Party granting the waiver. No failure or delay by either Party in exercising any right, remedy, power, or privilege under these T&C shall operate as a waiver thereof.

18. Assignment: Customer may not assign, transfer, delegate, or subcontract any of its rights or obligations under these T&C without the prior written consent of WB. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. WB may freely assign or transfer any of its rights or obligations under these T&C without restriction.

19. Relationship of the Parties: The relationship between the Parties is that of independent contractors. Nothing contained in these T&C, an Agreement, or any PO shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

20. Notices: All notices, requests, consents, claims, demands, waivers, and other communications under these T&C must be in writing and addressed to the Parties at the addresses set forth in the applicable Agreement or, if none, at the addresses provided in the applicable PO. Notices shall be deemed given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (with written confirmation of receipt); (iii) on the date sent by email with confirmation of transmission if sent during normal business hours on a business day (or on the next business day if sent after normal business hours or on a day that is not a business day); or (iv) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

21. Severability: If any provision of these T&C is determined to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect to the maximum extent permitted by law.

22. Cumulative Remedies: All rights and remedies provided in these T&C are cumulative and not exclusive, and the exercise by either Party of any right or remedy shall not preclude the exercise of any other rights or remedies available under these T&C or applicable law.

23. Survival: Provisions of these T&C which by their nature should apply beyond their terms will remain in force after any termination or expiration of these T&C, including but not limited to: Sections 3 (Price and Payment), 5 (Inspection and Acceptance), 9 (Confidentiality), 12 (Intellectual Property), 13 (Limitation of Liability), 14 (Indemnification), 15 (Governing Law), and 23 (Survival).

24. Counterparts: These T&C, an Agreement, or any PO may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. Execution and delivery of these T&C, an Agreement, or any PO by electronic means (including via PDF or electronic signature) shall be deemed effective for all purposes.

25. Language: The Parties confirm that it is their wish that these T&C, an Agreement, and all related documents be drawn up in English only. Les Parties aux présentes confirment leur volonté que la présente convention de même que tous les documents y afférents soient rédigés en langue anglaise seulement.

26. Headings: The headings in these T&C are for reference only and shall not affect the interpretation of these T&C.

SHIPPING TERMS AND CONDITIONS

The following terms and conditions shall apply to carriage of all goods that originate from Wonder Brands Inc. or WB Frozen US, LLC and/or any of its subsidiaries (“Shipper” or “WB”). Carrier agrees that no other terms and conditions shall control unless expressly agreed to by Shipper in writing.

1. Bill of Lading. A Bill of Lading shall be completed in the form attached hereto for each shipment (the “Shipment”) of goods that Carrier agrees to transport on behalf of Shipper (the “Goods”) to a designated recipient (the “Recipient”). Carrier shall have the right to inspect the Shipment prior to signing the Bill of Lading and to reject transport of any part of the Shipment that is improperly packaged for transport or that shows signs of damage. By signing the Bill of Lading, Carrier agrees that the Goods are presumed to be undamaged, and Carrier accepts liability for transporting the Goods as indicated herein.

2. Shipping Conditions and Special Considerations. All Shipments are to be considered by Carrier to be labeled “Fragile” and “Handle with Care” given the nature of the Goods. Carrier agrees to instruct its employees, agents, and third parties handling the Shipment to handle the Shipment with care. To the extent that other special considerations are required to safely transport the Shipment without damage to the Goods, including but not limited to refrigeration or “this side up,” Shipper shall provide instructions to Carrier on the Shipment boxes themselves or on the Bill of Lading, as reasonable to convey the information to Carrier. By signing the Bill of Lading, Carrier accepts any additional conditions and instructions provided by Shipper on the Bill of Lading or on the Shipment boxes.

3. Compensation. Shipper shall pay Carrier for transportation of the Shipment pursuant to the schedules of rates and charges as agreed to in writing in advance by the Parties. Payment shall be made within sixty (60) days of receipt of invoice from Carrier. Carrier must include any and all charges pertaining to a Shipment in a single invoice, and Shipper’s payment of that invoice shall be considered full satisfaction of Shipper’s obligations to Carrier for the services provided by Carrier for that Shipment.

4. Liability of Carrier. (a) General. Carrier shall be liable for any loss of or damage to the Goods that occurs during or arising out of or in connection with Carrier’s discharge of its duties and responsibilities transporting the Shipment. (b) Receipt by Recipient. Receipt and acceptance of the Shipment by the Recipient shall not relieve Carrier of liability for loss of or damage to the Goods. Carrier remains liable for losses or damages that occurred during or arising out of or in connection with Carrier’s discharge of its duties and responsibilities transporting the Shipment, even if those losses or damages are discovered after acceptance of the Shipment by the Recipient. (c) Presumption. A presumption exists that the Goods are undamaged and properly packaged for transportation by Shipper when they are accepted by Carrier. Carrier shall have the burden of proving that the Goods were damaged or improperly packaged for transportation by Shipper. (d) Third-Party Liability. Carrier shall remain liable to Shipper for any loss of or damage to the Goods that occurs during Carrier’s discharge of its duties and responsibilities transporting the Shipment, regardless of interference from or negligence by a third party. Nothing in this clause shall limit Carrier’s ability to recover from the third party in such instance. (e) Additional Carriers. If Carrier tenders the Shipment to a different carrier for any part of the transportation of the Shipment to the Recipient, Carrier remains liable for any loss of or damage to the Goods that occurs during the other carrier’s custody of the Shipment as though the Shipment were still in the custody of the original Carrier for purposes of Carrier’s liability to Shipper. Nothing in this clause shall limit Carrier’s ability to recover from the other carrier in such instance. (f) Shipper’s Negligence. Carrier shall not be liable to Shipper for damage to the Goods caused by the negligent acts or omissions of Shipper, its agents, or employees. Carrier shall have the burden of proving Shipper’s negligence. (g) Damages, Fees, and Costs. Carrier is liable for any and all damages and losses occurring during or arising out of or in connection with Carrier’s discharge of its duties and responsibilities transporting the Shipment that are available at law, including but not limited to direct, special, indirect, or consequential damages, lost profits, loss of income, or loss of use. Carrier shall be liable for all attorneys’ fees and costs that Shipper incurs in recovering damages from Carrier.

5. Indemnification. Carrier shall indemnify and hold harmless Shipper, its agents, and employees, from and against all third-party loss, damage, fines, expense, actions, and claims (collectively “Claims”) for bodily injury (including injury resulting in death) and for loss or damage to property (including loss or damage to the Goods) where such Claims arise, in whole or in part, from the acts or omissions of Carrier, its agents, or employees, or arise in connection with Carrier’s discharge of its duties and responsibilities transporting the Shipment.

6. Damage Claims. (a) Shipper agrees to file loss or damage claims with Carrier within sixty (60) days after discovery of the loss or damage by Shipper, or in the case of failure to make delivery, then within sixty (60) days after a reasonable time for delivery has elapsed. Carrier agrees to present payment or proof of declination of any loss/damage claim, or otherwise to resolve the claim, within sixty (60) days of receipt of Shipper’s claim. Carrier agrees that any applicable statute of limitations shall be tolled by any or all of the following: (a) Shipper’s failure to discover the loss or damage due to the possession or custody of the Goods by Carrier, the Recipient, or any other third party after Carrier accepts the Shipment; (b) the 60-day resolution period under which Carrier may either resolve or decline the claim discussed herein; and (c) Shipper’s reassurance that resolution of the claim is pending. (b) Shipper’s claim shall include a recitation of all damages then known that resulted during or arising out of or in connection with Carrier’s discharge of its duties and responsibilities transporting the Shipment. Failure of Shipper to identify all actual damages or losses in a claim shall not preclude later recovery by Shipper of those amounts if available by law.

7. Overcharge Claims. Shipper agrees to file overcharge claims with Carrier within sixty (60) days from the date of delivery of the Shipment.

8. Undeliverable Goods. (a) Where, through no fault of Carrier, the Shipment cannot be delivered, Carrier shall immediately notify Shipper using the contact information provided in the Bill of Lading that delivery cannot be made and shall request disposal instructions. (b) Pending disposal instructions, Carrier must store the Shipment as appropriate to preserve the Goods. If Shipper does not provide disposal instructions within three (3) business days of reasonable notice by Carrier, Carrier may charge Shipper a reasonable fee for storage of the Shipment. (c) If Shipper does not provide disposal instructions within twenty (20) days of reasonable notice by Carrier, Carrier may return the Shipment to Shipper at Shipper’s expense.

9. Weights. Carrier shall be responsible for ensuring the correct shipping weights of the Shipment on the Bill of Lading. If the weights shown on the Bill of Lading are inaccurate, Carrier shall retain proof of the same and shall notify Shipper of the weight difference in writing prior to sending an invoice to Shipper. Shipper shall not be liable for payment above the original shipping weight shown on the Bill of Lading unless Carrier provides adequate proof of the actual weight of the Shipment.

10. Insurance. During the term of the services Carrier agrees to carry and keep in full force and effect cargo liability insurance for the benefit of Shipper in an amount of not less than One Hundred Thousand Dollars ($100,000.00). Carrier also agrees to maintain Comprehensive General Liability and Automobile Liability insurance coverage for bodily injury and property damage in the form and limits prescribed by the Surface Transportation Board and state regulatory agencies, and Workers’ Compensation and Employer’s Liability insurance as required by statute in the jurisdictions applicable to Carrier’s performance hereunder.

11. Hazardous Materials. In the event that Shipper tenders or causes to be tendered hereunder materials designated as hazardous under applicable regulations of the U.S. Department of Transportation, Shipper agrees to notify Carrier and to classify, describe, package, mark, and label such materials in accordance with such regulations and otherwise to comply therewith.

12. Damaged or Refused Shipments; No Salvage. Carrier shall not dispose of damaged or rejected product without the prior written consent of Shipper. Carrier acknowledges and agrees that the Goods, which are food products, may not under any circumstance be salvaged.

13. Severability. In the event that any provision of these terms and conditions shall be construed as or declared to be invalid, unenforceable, or unconstitutional, then said provision shall be considered severed to the extent of such invalidation, unenforceability, or unconstitutionality. All remaining provisions of these terms and conditions shall remain in full force and effect.

14. Waiver. If either party fails to enforce, or waives the breach of any term or condition of these terms and conditions, such action or inaction shall not operate as a waiver of any other breach of such term or condition, nor of any other part of these terms and conditions, nor of any other rights, in law or equity, or of claims which each may have against the other arising out of, connected with, or related to these terms and conditions.

15. Independent Contractor. Carrier shall perform the transportation services hereunder as an independent contractor and shall have exclusive control and direction of the persons operating the equipment or otherwise engaged in such services. Carrier assumes full responsibility for the acts and omissions of such persons and shall have exclusive liability for the payment of local, state, and federal payroll taxes or contributions or taxes for unemployment insurance, workers’ compensation, old age pensions, or other social security and related protection with respect to the persons engaged in the performance of such transportation services and agrees to comply with all applicable rules and regulations pertaining thereto.

16. Compliance With Law. Carrier and Shipper shall comply with all federal, state, and local laws and regulations applicable to the relationships created under these terms and conditions including, but not limited to, the United States Occupational Safety and Health Administration regulations, the United States Environmental Protection Agency regulations, the United States Department of Transportation regulations, and Canada’s Motor Vehicle Transport Act.

17. Jurisdiction. If the business relationship takes place in Canada, the laws of the Province of Ontario and the applicable laws of Canada shall govern the Agreement and each Party hereby attorns to the exclusive jurisdiction of the courts in the Greater Toronto Area. If the business relationship takes place in the United States, the laws of the State of Delaware shall govern the Agreement and each Party hereby attorns to the exclusive jurisdiction of the courts of the Delaware Court of Chancery. Each of the parties hereto irrevocably waives any objection it may now or hereafter have to venue, convenience of forum, or choice of law and agrees not to bring any matter arising out of or relating to this Agreement in any other court and waives any and all rights to a trial by jury in any legal proceeding arising out of or related to this Agreement.

18. Entire Agreement. These terms and conditions shall control the services of Carrier and the relationship between Carrier and Shipper, solely and exclusively, with the exception of the specific shipment and payment information provided by the WB’s Bill of Lading or the pricing schedule agreed to by the Parties. Any other bill of lading, shipping documents, or terms and conditions of or provided by Carrier are expressly rejected and shall have no effect unless agreed to in writing by an authorized representative of Shipper.