Purchase Order Terms And Conditions
Updated June 12, 2024

1. General.  This Purchase Order, consisting of the Purchase Order and any attachments thereto and these Purchase Order Terms and Conditions (this “Purchase fOrder”), shall govern the sale and purchase of the goods described in this Purchase Order (“Goods”) by Louisiana Pepper Exchange, L.L.C., as seller (“Supplier”), to the entity identified as buyer on this Purchase Order (“Buyer”, and together with Supplier, the “Parties”, and each, a “Party”).  ANY ACCEPTANCE OF THIS PURCHASE ORDER BY BUYER IS LIMITED TO ACCEPTANCE OF THE EXPRESS TERMS OF THE OFFER IN THIS PURCHASE ORDER. TERMS AND CONDITIONS ON ANY BUYER QUOTE, PROPOSAL, ACKNOWLEDGEMENT, OR OTHER BUYER DOCUMENT INCONSISTENT WITH OR IN ADDITION TO THE TERMS AND CONDITIONS OF THIS PURCHASE ORDER ARE HEREBY SUPERSEDED BY THIS PURCHASE ORDER AND OBJECTED TO AND REJECTED BY SELLER AND ARE NOT BINDING UPON SELLER UNLESS SPECIFICALLY APPROVED IN A SIGNED WRITING BY SELLER’S AUTHORIZED REPRESENTATIVE.  NO SUCH QUOTE, PROPOSAL, ACKNOWLEDGEMENT, OR OTHER DOCUMENT CONTAINING ADDITIONAL TERMS AND CONDITIONS OPERATES AS A REJECTION OF THIS PURCHASE ORDER.  

2. Definitions. Capitalized terms have the meanings set out or referred to in this Section.

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

“Business Day” means any day except Saturday, Sunday, or any other day on which commercial banks located in New Orleans, Louisiana are authorized or required by Law to be closed for business.

“Buyer” has the meaning set forth in Section 1.

“Buyer Indemnified Parties” has the meaning set forth in Section 9.2.

“Confidential Information” has the meaning set forth in Section 11.

“Control” (and with correlative meanings, the terms “Controlled by” and “under common Control with”) means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

“Defective” means not conforming to the Warranty under Section 8.1.

“Defective Goods” means goods delivered by Supplier to Buyer pursuant to this Purchase Order that are Defective.

“Force Majeure Event” has the meaning set forth in Section 12.1.

“Goods” has the meaning set forth in Section 1.

“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award, or determination entered by or with any Governmental Authority.

 “Inspection Period” has the meaning set forth in Section 4.6.

 “Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.

“Losses” means any and all damages, judgments, liabilities, fines, penalties, losses, claims, actions, demands, lawsuits, costs, and expenses including, without limitation, reasonable attorneys’ fees.

“Nonconforming Goods” means any goods received by Buyer from Supplier pursuant to this Purchase Order that: (a) do not conform to the Specifications; or (b) materially exceed the quantity of Goods ordered by Buyer pursuant to this Purchase Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of this Purchase Order.

“Notice” has the meaning set forth in Section 12.5.

“Party” has the meaning set forth in Section 1.

“Payment Failure” has the meaning set forth in Section 6.1(b).

“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.

“Price” has the meaning set forth in Section 5.1.

“Reimbursement Payment” has the meaning set forth in Section 6.2.

“Representatives” means a Party’s Affiliates and each of their respective personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.

“Requested Delivery Date” means the requested delivery date for Goods ordered hereunder that is set forth in this Purchase Order, which must be a Business Day no less than 21 days following the date of this Purchase Order to Supplier.

“Supplier” has the meaning set forth in Section 1.

“Supplier’s Facility” means that certain manufacturing and production facility of Supplier which is located at 1755 Tchoupitoulas Street, New Orleans, LA 70130, or such other facility(ies) of Supplier or its designee set forth on the Purchase Order.

“Supplier Indemnified Party” has the meaning set forth in Section 9.1.

“Specifications” means the specifications for the Goods set forth in, referenced in, or attached to this Purchase Order.

“Taxes” means any and all present and future sales, income, stamp, and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any Governmental Authority, together with any interest or penalties imposed thereon.

“Third-Party Product” has the meaning set forth in Section 8.5.

“Warranty” has the meaning set forth in Section 8.1.

“Warranty Period” has the meaning set forth in Section 8.1.

3. Purchase Order.

3.1 Acceptance. Supplier may accept this Purchase Order by the occurrence of one or both of the following: (a) Supplier and Buyer exchange electronic correspondence regarding this Purchase Order indicating that Supplier has accepted this Purchase Order, or (b) Supplier signs this Purchase Order and returns a copy of the executed Purchase Order to Buyer.  This Purchase Order shall be subject to the terms and conditions contained herein, which are hereby incorporated by reference into this Purchase Order and shall control and govern the sale and purchase of the Goods.  

3.2 Rejection and Cancellation of Purchase Order. Supplier may reject this Purchase Order or cancel this Purchase Order, which it may do without liability or penalty, and without constituting a waiver of any of Supplier’s rights or remedies under the Purchase Order, by providing written notice to Buyer specifying the applicable date of rejection or cancellation: (a) pursuant to Supplier’s rights under Sections 6.1(a)-(f); (b) pursuant to Supplier’s rights under Section 5.3(b) or Section 5.3(c); or (c) pursuant to Supplier’s rights under the last sentence of Section 5.5.

4. Shipment, Delivery, Acceptance, and Inspection of Goods.

4.1 Shipment. Supplier may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Buyer shall pay for the Goods shipped in accordance with the payment terms specified in Section 5.1, whether such shipment is in whole or partial fulfillment of this Purchase Order.  Supplier shall properly pack and mark Goods and provide Buyer with documentation showing the Purchase Order number, Supplier’s identification number for the subject Goods, if any, the quantity of pieces in shipment, the number of cartons or containers in shipment, Supplier’s name, and if applicable, the bill of lading number and the country of origin.

4.2 Delivery. Supplier shall deliver the Goods F.O.B. Supplier’s Facility.

4.3 Late Delivery.  Any Requested Delivery Date is an estimate only; provided, however, that Supplier shall use commercially reasonable efforts to deliver all Goods on or before the Requested Delivery Date. If Supplier has delayed shipment of all or any Goods for more than sixty (60) days after the Requested Delivery Date (the “Maximum Delay Period”),  and if such delay is not directly related to any action or inaction of Buyer or otherwise excused or permitted in accordance with the terms and conditions of this Purchase Order, Buyer may, as its sole remedy therefor, cancel the portion of this Purchase Order covering the delayed Goods by giving Supplier written Notice within seven (7) days following expiration of the Maximum Delay Period.  Subject to Buyer’s rights under this Section 4.3, no delay in the shipment or delivery of any Good relieves Buyer of its obligations under this Purchase Order, including accepting delivery of any remaining installment of Goods.

4.4 Transfer of Title and Risk of Loss.  Title and risk of loss to Goods shipped under this Purchase Order pass to Buyer F.O.B. upon Supplier’s tender of the Goods to the carrier or Buyer at Supplier’s Facility.

4.5 Inspection. Buyer shall inspect Goods received under this Purchase Order within five (5) days of receipt of such Goods at the applicable Delivery Location (the (“Inspection Period”) and either accept or, only if any such Goods are Nonconforming Goods, reject such Goods. Buyer will be deemed to have accepted Goods unless it provides Supplier with written Notice of any Nonconforming Goods on or before expiration of the Inspection Period, stating with specificity all defects and nonconformities, and furnishing such other written evidence or other documentation as may be reasonably required by Supplier (including the subject Goods, or a representative sample thereof, which Buyer contends are Nonconforming Goods). All defects and nonconformities that are not so specified will be deemed waived by Buyer, such Goods shall be deemed to have been accepted by Buyer, and no attempted revocation of acceptance will be effective. If Buyer timely notifies Supplier of any Nonconforming Goods, Supplier shall determine, in its reasonable discretion, whether the Goods are Nonconforming Goods. If Supplier determines that such Goods are Nonconforming Goods, Supplier shall, in its sole discretion, either: (a) replace such Nonconforming Goods with conforming Goods; or (b) refund to Buyer such amount paid by Buyer to Supplier for such Nonconforming Goods returned by Buyer to Supplier.  Buyer shall ship, at Buyer’s expense and risk of loss, all Nonconforming Goods to Supplier’s Facility or to such other location as Supplier may instruct Buyer in writing. If Supplier exercises its option to replace Nonconforming Goods, Supplier shall deliver the replacement Goods to Buyer at Supplier’s Facility.  THE REMEDIES SET FORTH IN THIS SECTION 4.5 ARE BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO NONCONFORMING GOODS, SUBJECT TO BUYER’S RIGHTS UNDER SECTION 8.3 WITH RESPECT TO ANY SUCH GOODS FOR WHICH BUYER HAS ACCEPTED DELIVERY UNDER THIS SECTION 4.5.

4.6 Limited Right of Return. Except as provided under Section 4.5, Section 8.3 and Section 8.6, Buyer has no right to return Goods shipped to Buyer pursuant to this Purchase Order.

5. Price and Payment.

5.1 Price and Payment Terms. Buyer shall purchase the Goods from Supplier at the prices set forth in this Purchase Order (“Prices”).  Buyer shall pay to Supplier all invoiced amounts within the term period defined in this Purchase Order, from the date of such invoice.

5.2 Taxes. All Prices are exclusive of, and Buyer is solely responsible for and shall pay, and shall indemnify and hold Supplier harmless from, all Taxes, with respect to, or measured by, the manufacture, supply, sale, shipment, use or Price of the Goods (including interest and penalties thereon); provided, however, that Buyer shall not be responsible for any Taxes imposed on, or with respect to, Supplier’s income, revenues, gross receipts, personnel or real or personal property or other assets.

5.3 Buyer’s Unsatisfactory Credit Status. Buyer shall furnish Supplier with statements accurately and fairly evidencing Buyer’s financial condition as Supplier may, from time to time, reasonably request. Buyer shall notify Supplier, in writing, immediately of any and all events that have had or may have a material adverse effect on Buyer’s business or financial condition, including any change in management, sale, lease or exchange of a material portion of Buyer’s assets, a change in Control of Buyer, or the breach of any loan covenants or other material obligations of Buyer to its creditors. If, at any time, Supplier determines in its sole discretion that Buyer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Supplier’s other rights under this Purchase Order, at law or in equity, Supplier may without liability or penalty, take one or more of the following actions: (a) modify the payment terms specified in Section 5.1, including requiring Buyer to pay for Goods on a cash in advance or cash on delivery basis; (b) reject this Purchase Order; (c) cancel this Purchase Order; (d) delay or withhold any further shipment of Goods to Buyer; (e) stop delivery of any Goods in transit and cause such Goods in transit to be returned to Supplier; (f) on five (5) days’ prior written Notice, terminate this Purchase Order; and (g) accelerate the due date of all amounts owing by Buyer to Supplier.  No action taken by Supplier under this Section 5.3 (nor any failure of Supplier to act under this Section 5.3) constitutes a waiver by Supplier of any of its rights and remedies under this Purchase Order, including its right to enforce Buyer’s obligation to make payments as required hereunder.

5.4 Invoice Disputes. Buyer shall notify Supplier in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the date of such invoice. Buyer will be deemed to have accepted all invoices for which Supplier does not receive timely notification of dispute, and shall pay all undisputed amounts due under such invoices within the period set forth in Section 5.1. The Parties shall seek to resolve any such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 12. Notwithstanding anything to the contrary, Buyer shall continue performing its obligations under this Purchase Order during any such dispute, including Buyer’s obligation to pay all due and undisputed invoice amounts in accordance with the terms of this Purchase Order.

5.5 Late Payments. Except for invoiced payments that Buyer has successfully disputed, Buyer shall pay interest on all late payments at the highest rate permissible under applicable Law. Buyer shall also reimburse Supplier for all costs incurred by Supplier in collecting any late payments, including attorneys’ fees and other costs and expenses. In addition to all other remedies available under this Purchase Order or at Law (which Supplier does not waive by the exercise of any rights under this Purchase Order), if Buyer fails to pay any amounts when due under this Purchase Order, Supplier may (a) suspend the delivery of any Goods, (b) reject or cancel this Purchase Order, or (c) terminate this Agreement pursuant to the terms of Section 6.1(b).

5.6 No Set-off Right. Buyer shall not, and acknowledges that it will have no right, under this Purchase Order, any other purchase order, agreement, document or Law to, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Supplier or any of its Affiliates, whether under this Purchase Order or otherwise, against any other amount owed (or to become due and owing) to it by Supplier or Supplier’s Affiliates, whether relating to Supplier’s or its Affiliates’ breach or non-performance of this Purchase Order, any other purchase order, or any other agreement between (a) Buyer or any of its Affiliates and (b) Supplier or any of its Affiliates, or otherwise.

5.7 Security Interest. To secure Buyer’s prompt and complete payment and performance of any and all present and future indebtedness of Buyer to Supplier, Buyer hereby grants Supplier a first-priority security interest, with priority over all other liens, claims, and encumbrances, in all inventory of goods purchased under this Purchase Order, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Supplier may file a financing statement for such security interest and Buyer shall execute such statements or other documentation necessary to perfect Supplier’s security interest in such Goods. Buyer also authorizes Supplier to execute, on Buyer’s behalf, such statements or other documentation necessary to perfect Supplier’s security interest in such Goods. Supplier shall be entitled to all applicable rights and remedies of a secured party under applicable Law.

6. Termination. 

6.1 Supplier’s Right to Terminate. Supplier may terminate this Purchase Order, by providing written Notice to Buyer: (a) upon not less than thirty (30) days’ advance written notice to Buyer; (b) if Buyer fails to pay any amount when due under this Purchase Order (“Payment Failure”); (c) if Buyer is in breach of any representation, warranty or covenant of Buyer under this Purchase Order (other than committing a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Buyer within a commercially reasonable period of time (in no case exceeding thirty (30) days) after Buyer’s receipt of written Notice of such breach; (d) pursuant to and in accordance with Section 5.3(f); or (e) if Buyer (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.  Any termination under this Section 6.1 will be effective on Buyer’s receipt of Supplier’s written Notice of termination or such later date (if any) set forth in such Notice.

6.2 Buyer’s Right to Terminate. Buyer may terminate this Purchase Order, by providing written Notice to Supplier: (a) pursuant to and in accordance with Section 4.3; or (b) if Supplier (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Any termination under this Section 6.2 will be effective on Supplier’s receipt of Buyer’s written Notice of termination.

7. Compliance with Laws. Buyer shall at all times comply with all Laws applicable to this Purchase Order, Buyer’s performance of its obligations hereunder and/or Buyer’s use or sale of the Goods. 

8. Warranties.

8.1 Limited Warranty. Subject to the provisions of Sections 8.2 through 8.6, Supplier warrants to Buyer (the “Warranty”) that: (a) for a period of 21 days from the date of shipment of a Good (the “Warranty Period”), each Good will materially conform to the Specifications and will be free from significant defects in material and workmanship; and (b) Buyer will receive good and valid title to all Goods, free and clear of all encumbrances and liens of any kind, except for the security interest of Supplier pursuant to Section 5.7.

8.2 Warranty Limitations. The Warranty does not apply to any Good that: (a) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Supplier; (b) has been reconstructed, repaired or altered by Persons other than Supplier or its Representative; or (c) has been used with any third-party products, hardware or product that has not been previously approved in writing by Supplier.

8.3 Buyer’s Exclusive Remedy for Defective Goods. Notwithstanding any other provision of this Purchase Order (except for Section 8.6), this Section 8.3 contains Buyer’s exclusive remedy for Defective Goods. Buyer’s remedy under this Section 8.3 is conditioned upon Buyer’s compliance with its obligations under Section 8.3(a) and Section 8.3(b) below. During the Warranty Period, with respect to any allegedly Defective Goods: (a) Buyer shall notify Supplier, in writing, of any alleged claim or defect within five (5) Business Days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period); and (b) Buyer shall ship, at its expense and risk of loss, such allegedly Defective Goods to Supplier’s Facility for inspection and testing by Supplier.  If Supplier’s inspection and testing reveal, to Supplier’s reasonable satisfaction, that such Goods are Defective and any such defect has not been caused or contributed to by any of the factors described under Section 8.2 above, subject to Section 8.3(a) and Section 8.3(b), Supplier shall in its sole discretion, repair or replace such Defective Goods, and Supplier shall deliver to Buyer, at Buyer’s expense and risk of loss, the repaired or replaced Goods at Supplier’s Facility.  Buyer has no right to return for repair, replacement, credit or refund any Good except as set forth in this Section 8.3 (or if otherwise applicable, Section 4.6 or Section 8.6). In no event shall Buyer reconstruct, repair, alter or replace any Good, in whole or in part, either itself or by or through any third party.  SUBJECT TO SECTION 8.6, THIS SECTION 8.3 SETS FORTH BUYER’S SOLE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8.1.

8.4 DISCLAIMER OF OTHER WARRANTIES.  EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8.1 OF THIS PURCHASE ORDER, THERE ARE NO WARRANTIES OF ANY KIND BEING MADE OR GIVEN BY SELLER WITH RESPECT TO THE GOODS.  THE WARRANTY OF SELLER SET FORTH HEREIN IS EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ANY AND ALL OTHER WARRANTIES AND REMEDIES, WHICH BUYER MAY HAVE AGAINST SELLER ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT IN THE GOODS.  THE PARTIES SPECIFICALLY STATE, ACKNOWLEDGE, AND AGREE THAT THERE IS: (I) NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE; AND (II) NO IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.  FURTHER, BUYER DOES HEREBY WAIVE, AND RELIEVE AND RELEASE SELLER FROM, ANY AND ALL ANY CLAIMS OR CAUSES OF ACTION FOR REDHIBITION PURSUANT TO LOUISIANA CIVIL CODE ARTICLES 2520, ET SEQ. OR FOR DIMINUTION OF THE PURCHASE PRICE PURSUANT TO LOUISIANA CIVIL CODE ARTICLES 2451 ET SEQ.

8.5 Third-Party Products. Buyer acknowledges that the Goods purchased by Buyer under this Purchase Order may contain, be contained in, incorporated into, attached to or packaged together with products manufactured by a third party (“Third-Party Products”). Third-Party Products are not covered by the warranty in Section 8.1. For the avoidance of doubt, Supplier makes no representations or warranties with respect to any Third-Party Products.

8.6 Withdrawal of Goods. If Supplier determines that any Goods sold to Buyer may be Defective, at Supplier’s request, Buyer shall withdraw all similar Goods from sale and, at Supplier’s option, either return such Goods to Supplier (pursuant to the terms of Section 8.3(b)) or destroy the Goods and provide Supplier with written certification of such destruction. If Buyer returns all withdrawn Goods or destroys all withdrawn Goods and provides Supplier with written certification of such destruction within thirty (30) days following Supplier’s withdrawal request, in either case consistent with Supplier’s instructions, unless any such defect has not been caused or contributed to by any of the factors described under Section 8.2, Supplier shall (a) repair or replace all such returned Goods or (b) replace such destroyed Goods, in either case pursuant to the terms of Section 8.3. THIS SECTION 8.6 SETS FORTH BUYER’S SOLE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY GOODS THAT ARE WITHDRAWN PURSUANT TO THIS SECTION 8.6.

9. Indemnification. 

9.1 Buyer will indemnify, defend, and hold Supplier, and its shareholders, officers, directors, administrators, managers, members, personnel, affiliates, advisors, agents, successors and assigns (each, a “Supplier Indemnified Party”) harmless for, from and against Losses, including third party claims, actions, demands and lawsuits, that arise out of, are associated with or otherwise relate to (a) a breach by Buyer or any of its Representatives of any agreement, obligation, covenant, representation or warranty under this Purchase Order, (b) damage to Persons or property arising out of, related to or otherwise associated with the Goods or the performance of Supplier of this Purchase Order, or Losses of, by or on behalf of any customer, vendor, supplier or other Person associated with Buyer, or (d) the gross negligence, willful misconduct or fraud of Buyer or any of its Representatives. 

9.2 Supplier will indemnify, defend, and hold Buyer, and its shareholders, officers, directors, administrators, managers, members, personnel, affiliates, advisors, agents, successors and assigns (each, a “Buyer Indemnified Party”) harmless for, from and against any and all Losses, including third party claims, that arise out of, are associated with or otherwise relate to (a) a breach by Supplier or any of its Representatives of any agreement, obligation, covenant, representation or warranty set forth in this Purchase Order, or (b) the gross negligence, willful misconduct or fraud of Supplier or any of its Representatives. 

10. Limitation of Liability. Notwithstanding any other provisions of this Purchase Order and to the fullest extent allowed by law, (a) Supplier shall not be liable for any special, indirect, incidental, punitive, or consequential losses, damages, costs, or expenses whatsoever arising out of, in connection with, or related to this Purchase Order; and (b) in no event shall Supplier’s aggregate liability arising out of or related to this Purchase Order, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid by Buyer to Supplier pursuant to this Purchase Order.  Without limiting the generality of the foregoing, Buyer assumes all risk and liability for the results obtained by the use of any Goods in the practice of any process, whether in terms of operating costs, general effectiveness, success or failure, and regardless of any oral or written statements made by Supplier, by way of technical advice or otherwise, related to the use of the Goods.

11. Confidentiality. Buyer acknowledges and agrees that it may receive certain information which Supplier considers proprietary and confidential, including information concerning manufacturing and processing methods, business and technology plans, distribution strategies, sales, costs, pricing, marketing, customers, suppliers and research and development (collectively, “Confidential Information”). For purposes hereof, information that is already in the public domain or known by Buyer at the time of disclosure by Supplier, or subsequently becomes available to the public or known by Buyer without any breach of this Section 11, shall not be considered to be Confidential Information. Buyer agrees that all Confidential Information shall be kept strictly confidential and shall not, without Supplier’s prior written consent, be disclosed by Buyer in any manner whatsoever, except as required to comply with applicable Law, or with a court or administrative order, subpoena, civil investigative demand or other legal process. The confidentiality obligations set forth in this Section 11 shall survive any termination or expiration of this Purchase Order.

12. Miscellaneous.

12.1 In the event Supplier is prevented from performing any of its obligations under this Purchase Order by circumstances beyond its reasonable control, including without limitation, fire, explosion, flood, hurricane, tornado, global pandemic, drought, blackout, closure of borders, riots, sabotage, embargo, terrorism, war or other hostilities, domestic or foreign governmental acts or changes in Law, accident, equipment failure, inability in obtaining facilities or supplies, or labor dispute including a strike or lockout, or similar events (each a “Force Majeure Event”), Supplier’s obligations shall be temporarily suspended, without liability to Buyer, to the extent of such inability to perform during the pendency of the Force Majeure Event.  Supplier shall give written Notice to Buyer of the occurrence of such Force Majeure Event as soon as commercially practicable.

12.2 Upon Supplier’s request, Buyer will, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further actions, as may be reasonable or necessary to give full effect to this Purchase Order or the performance by the Parties of its respective obligations hereof.

12.3 This Purchase Order, including any attachments thereto and these terms and conditions, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, letters of intent, agreements, representations, and warranties, both written and oral, regarding such subject matter.

12.4 Subject to the limitations and other provisions of this Purchase Order, (i) the representations and warranties of the Parties contained herein will survive the expiration or earlier termination of this Purchase Order in accordance with its terms, and (ii) any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, including without limitation, Sections 4, 5, 6, 8, 9, 10, 11, and this Section 12, will survive the expiration or earlier termination of this Purchase Order.

12.5 All notices, requests, consents, claims, demands, waivers, and other communications under this Purchase Order (each, a “Notice”) must be in writing and addressed in the case of Supplier at its address set forth below and in the case of Buyer at its address set forth in this Purchase Order (or to such other address that the receiving Party may designate in writing from time to time in accordance with this Section 12.5). Unless otherwise agreed herein, all Notices shall be given or made (and shall be deemed to have been duly given or made upon receipt) by hand delivery, by registered or certified mail (postage prepaid, return receipt requested), by recognized overnight courier, such as FedEx or UPS, or by e-mail, and shall be addressed to the Parties as follows (or at such other address for a Party as shall be specified by like notice). Except as otherwise provided in this Purchase Order, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section 12.5.

Notice to Supplier: Louisiana Pepper Exchange, L.L.C.

Copy to: Jones Walker LLP

1755 Tchoupitoulas Street c/o Asher J. Friend, Partner

Suite A 201 St. Charles Ave., Suite 5100

New Orleans, LA  70130 New Orleans, LA 70170

Phone: (225) 281-1909 Phone: (504) 582-8362

E-mail: chris@lapepperexchange.com E-mail: afriend@joneswalker.com

Attn: Chris White, CEO

12.6 For purposes of this Purchase Order, (a) the words “include,” “includes”, and “including” are deemed to be followed by the words “without limitation”, (b) the word “or” is not exclusive, (c) the words “herein,” “hereof,” “hereby,” “hereto”, and “hereunder” refer to this Purchase Order as a whole, (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa, and (e) words denoting any gender include all genders. The Parties agree that no rule of construction to the effect that ambiguities are to be resolved against the drafting Party will apply to the interpretation of this Purchase Order. 

12.7 The headings in this Purchase Order are for reference only and do not affect the interpretation of this Purchase Order.

12.8 If any term or provision of this Purchase Order shall at any time or to any extent be invalid, illegal, or unenforceable in any respect as written, the Parties intend for any court construing this Purchase Order to modify or limit such provision temporally, spatially, or otherwise so as to render it valid and enforceable to the fullest extent allowed by Law.  Any such provision that is not susceptible of such reformation shall be ignored so as to not affect any other term or provision of this Purchase Order, and the remainder of this Purchase Order shall not be affected thereby.

12.9 Except as otherwise specified herein, no amendment to or modification of this Purchase Order is effective unless it is in writing and signed by an authorized representative of each Party.

12.10 No waiver under this Purchase Order is effective unless it is in writing, identified as a waiver to this Purchase Order and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. No failure or delay in exercising any right, remedy, or privilege or in enforcing any condition under this Purchase Order, nor any act, omission, or course of dealing between the Parties constitutes a waiver or estoppel of any right, remedy, privilege, or condition arising from this Purchase Order.

12.11 Except as otherwise specified herein, all rights and remedies provided in this Purchase Order are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at Law, in equity, in any other agreement between the Parties, or otherwise.

12.12 This Purchase Order shall not be assigned, in whole or in part, by either Party without the written consent of the other Party; provided, that for purposes of this Section 12.12, an “assignment” by Buyer shall include a Change of Control of Buyer or any of its controlling Affiliates. Notwithstanding the foregoing, this Purchase Order may be assigned by Supplier without limitation or the necessity of procurement of consent from Buyer to any direct or indirect subsidiary or Affiliate of Supplier or to a successor to the general business of Supplier operated in connection with its performance of this Purchase Order, whether in connection with a Change of Control of Supplier or otherwise, whether in whole or in part; provided, that Supplier or such other Person shall be obligated to continue to perform the obligations of Supplier pursuant to this Purchase Order.

12.13 This Purchase Order is binding on and inures to the benefit of the Parties to this Purchase Order and their respective permitted successors and permitted assigns.  Subject to the following sentence of this Section 12.13, this Purchase Order benefits solely the Parties to this Purchase Order and their respective permitted successors and assigns and nothing in this Purchase Order, express, or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Purchase Order. The Parties hereby designate the Supplier Indemnified Parties and the Buyer Indemnified Parties as third-party beneficiaries with the right to enforce Section 9 of this Purchase Order, as applicable.

12.14 This Purchase Order and all matters arising out of or relating to this Purchase Order, are governed by, and construed in accordance with, the Laws of the State of Louisiana, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of Louisiana. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Purchase Order.

12.15 Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Purchase Order, including contract, equity, tort, fraud, and statutory claims, in any forum other than in the United States District Court for the Eastern District of Louisiana or, if such court does not have jurisdiction, the courts of the State of Louisiana, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in United States District Court for the Eastern District of Louisiana or, if such court does not have jurisdiction, the courts of the State of Louisiana. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.  Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Purchase Order. 

12.16 The Parties are independent contractors and nothing in this Purchase Order will be deemed or construed as creating a joint venture, employment, partnership, agency relationship, business opportunity, or franchise between Buyer and Supplier. The relationship created hereby between the Parties is solely that of a purchaser of goods, on the one hand, and a manufacturer and seller, on the other hand. 

12.17 Notwithstanding anything to the contrary in this Purchase Order, Supplier shall have the right (but not the obligation, and such right shall not limit or affect any other right or remedy it may have hereunder or otherwise), to satisfy any amounts owed or potentially owed to Supplier or any Supplier Indemnified Party under this Purchase Order (including, without limitation pursuant to Section 9) or any other agreement or instrument between the Parties, by setting off such amounts against any amounts due or payable to Buyer or any Buyer Indemnified Party under this Purchase Order or any other agreement or instrument between the Parties.

12.18 Each Party shall bear all of its own expenses with respect to the preparation and negotiation of this Purchase Order, except that in any claim, action, dispute or other adverse proceeding between the Parties arising out of or relating to this Purchase Order, the substantially prevailing Party in such action shall be awarded, in addition to any damages, injunctions or other relief, its costs and expenses, including reasonable attorneys’ fees, and if each Party prevails in a portion of any such dispute, the adjudicator of such dispute shall equitably allocate attorneys’ fees, costs and related expenses based upon the extent to which each such Party prevailed in the dispute.

12.19 This Purchase Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Purchase Order delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Purchase Order.