The attached purchase order (“Purchase Order”) and these General Terms and Conditions of Purchase (collectively the “Terms and Conditions”) constitutes the entire contract between the vendor or seller named on the face thereof (“SELLER”) and Rise Baking Company, LLC and its subsidiaries and affiliated operating companies (“RISE”), covering the goods and/or services described therein. The SELLER and RISE agree that each of RISE’s production and or distribution facilities shall be treated as a separate and distinct contracting party (each a “BUYER”) that is permitted to issue separate Purchase Orders under these Terms and Conditions, each of which are separately enforceable contracts and separately assignable under the terms of Section 21 herein. SELLER’s acceptance must be limited to the Terms and Conditions stated herein, without any modification, addition or alteration. Any terms or conditions contained in SELLER’s quotations, acknowledgments, invoices or any other documents that are different from or in addition to the Terms and Conditions herein are hereby rejected by RISE and BUYER. SELLER’s commencement of work on such goods or services, or shipment of any of the goods, constitutes SELLER’s acceptance of all of the Terms and Conditions herein. If the Purchase Order shall be deemed an acceptance of any prior quotation or offer of SELLER, such acceptance is expressly conditional on SELLER’s agreement to any additional or different Terms and Conditions contained herein. BUYER shall have no obligation to place Purchase Orders with SELLER, which decision shall be in BUYER’s sole discretion.

1. Controlling Terms. By commencing performance pursuant to this Purchase Order, filling this Purchase Order, and/or accepting any performance by BUYER pursuant to this Purchase Order, SELLER is deemed to have agreed to these Terms and Conditions. No other terms or conditions shall be binding on BUYER unless agreed to in writing and signed by a person authorized to bind the BUYER (“Authorized Person”). Any additional or different terms contained in any acknowledgment of this Purchase Order, or otherwise communicated by SELLER in accepting this Purchase Order, shall be deemed a material alteration of this Purchase Order is hereby rejected and will not be binding on BUYER. In the event of a conflict between these Terms and Conditions and any other document, these Terms and Conditions shall prevail and govern.

2. Changes. BUYER reserves the right at any time prior to delivery and upon notice to SELLER to: terminate and cancel this Purchase Order; make changes in specifications, drawings and other data to this Purchase Order; make additions to or deletions from the quantities ordered; and/or change the methods of shipment or packing, place of delivery, and time of delivery. Any difference in price resulting from such changes shall be equitably adjusted in writing and agreed upon by BUYER and SELLER. Any claim by SELLER for adjustment because of such changes shall be deemed waived unless asserted in writing within ten (10) days of SELLER’s receipt of notice of the change.

3. Purchase Order & Item Number. SELLER shall mark all invoices, bills of lading, and packing lists to show legibly the complete BUYER’s Purchase Order and item numbers(s) to which they relate. Such invoices, bills of lading and packing lists must also clearly state the quantity and description of the goods shipped.

4. Packaging. The packing of all goods (including pallets) to be delivered to BUYER pursuant to this Purchase Order shall comply with all packing
requirements of the carrier and BUYER, including, without limitation: where applicable, pallets must be GMA standard #1 quality, 4 way entry (40’ x 48’) and made of heat-treated hardwood that meets the IPPC Standard and stamped accordingly. Chemically-treated pallets are not acceptable. Double runners or stringers are not acceptable. Pallets must be rated with sufficient strength to support the delivered Product in this Purchase Order in a suspended racking system. BUYER does not participate in any pallet exchange programs.

5. Payment Terms. Unless otherwise agreed to in writing and signed by an Authorized Person, BUYER shall have no obligation to pay any invoice for
Products provided by SELLER pursuant to this Purchase Order until forty-five (45) days following the delivery of such Products by SELLER.

6. Presumptions. SELLER shall be conclusively presumed to have waived SELLER’s right to receive payment for Products covered by any Purchase Order if SELLER has not submitted an invoice for such Products within one hundred eighty (180) days of the date of the Purchase Order. SELLER’s submission of an invoice shall give rise to a presumption that the charges are the full amount SELLER is due for the Products listed on or referred to in the invoice. BUYER’s payment of any such invoice shall constitute full and complete satisfaction of any and all actual and potential fees for the Products covered by such invoice. Supplier may submit supplemental invoices only if accompanied by a photocopy of the original invoice and documentation acceptable to BUYER that establishes the validity of SELLER’s claim for underpayment. SELLER waives any claim for underpayment if a supplemental invoice and supporting documentation have not been furnished within ninety (90) days after the date of submission of the original invoice.

7. Tool and Die Requirements. If applicable, SELLER shall arrange for the manufacture of any molds, tooling and die making and fixtures (the “Molds”), which may be required under this Agreement, with a company approved by RISE, and in accordance with RISE’s specifications and drawings, all of which shall remain the sole proprietary information and property of RISE (“RISE IP”). In the event a unique mold or die is designed and developed by RISE for its specific use under this Agreement, all ownership interest in such design and the resulting molds and dies will remain the property of RISE and promptly delivered to RISE upon termination of this Agreement. Any such molds, dies and fixtures shall be produced at SELLER’s expense, and related costs shall be approved by RISE and amortized over a period of time as agreed to by the Parties hereto to be paid by RISE upon a mutually agreed upon schedule. Additionally, SELLER agrees to promptly execute and obtain any and all documentation that RISE determines is reasonably necessary to assign, transfer and convey to RISE the right, title and interests described above in the RISE IP, including but not limited to releases and assignments and inventor declarations from BUYER, its employees and agents as requested. Lastly, SELLER shall be responsible for scheduling any and all maintenance and repairs required for the Molds with such costs, including supporting documentation, approved in advance and billed through to RISE on separate invoice.

8. Prices; Setoff. Except as otherwise stated herein, the prices for this Order may not be changed. No surcharges resulting from the imposition now or in the future of any sales or use taxes, charges for boxing, packing, loading or cartage, fuel, or any other item, may be charged unless stated hereon or otherwise agreed to in writing and signed by an Authorized Person. BUYER may withhold payment to SELLER of any amount due to SELLER pursuant to this or any Purchase Order in order to offset any amounts to which BUYER is entitled to from SELLER pursuant to this or any Purchase Order.

9. Delivery. Except as otherwise stated in the Purchase Order, sales of Products are on a delivered basis, and SELLER’s delivery of goods will occur and risk of loss will pass only when and to the extent (a) the conforming Products have been received by BUYER, and (b) an Authorized Person has signed the bill of lading or other shipping document acknowledging such receipt. If the Purchase Order designates an FOB sale with delivery to an ocean port or carrier for ocean shipment, the terms of sale and delivery will be FOB Vessel Incoterms 2000. SELLER will be responsible for making all claims with the carrier for all losses or damages.

10. Shipping/Arrival Date. TIME IS OF THE ESSENCE IN THE DELIVERY OF THE PURCHASED PRODUCTS. The shipping and/or arrival date specified in any
Purchase Order is critical and order delivery or work completion will be made within the time specified therein (unless the delivery date noted by BUYER in its Purchase Order disregards SELLER’s specified lead time requirements). If SELLER’s Products do not arrive on or before the stated delivery date in the Purchase Order, then BUYER reserves the right, upon notice to SELLER, to cancel its order and purchase the Products from a vendor of BUYER’s choice and charge SELLER with all loss or damage occasioned thereby or, at BUYER’s option, to return to SELLER at the invoice price all items not timely delivered which are regularly carried in SELLER’s stock. Acceptance or approval of late shipments or services by an Authorized Person shall not constitute a waiver of any of BUYER’s rights to collect for damages. SELLER shall report to BUYER any delays in a schedule immediately as they become known to SELLER. If it becomes necessary for SELLER to ship by a more expensive mode than specified on the Order in order to meet a specified delivery schedule, SELLER shall pay any resulting premium transportation cost unless SELLER can establish to BUYER’s satisfaction that the necessity for the change in routing is occasioned by force majeure events as set forth in Article 14.

11. Inspection and Acceptance. BUYER shall have the right to inspect and test the goods at any time during manufacture and prior to shipment, and all goods are subject to final inspection within a reasonable time after their arrival at the ultimate destination (but in no case longer than thirty (30) days after receipt by BUYER), and shall not be deemed accepted until such inspection is complete. In the event BUYER receives goods whose defects or nonconformity is not apparent upon examination, resulting in deterioration of BUYER’s finished product, BUYER reserves the right to require the replacement, as well as payment of any resulting damages. The making or failure to make any inspections of, or payment for or acceptance of the goods, shall not impair BUYER’s right to reject or revoke its acceptance of nonconforming goods, to return nonconforming goods at SELLER’s risk and expense, or to avail itself of any other remedies to which BUYER may be entitled, notwithstanding BUYER’s knowledge of the nonconformity, its substantiality or the ease of its discovery.

12. Warranties. SELLER represents and warrants that:
(a) the Products delivered pursuant to any Purchase Order have been manufactured in accordance with the United States Fair Labor Standards Act of 1938, as amended, and with all regulations adopted pursuant to said Act;
(b) the Products do not infringe any patent, design, copyright, trademark or other intellectual property, either directly or contributorily;
(c) the Products comply with all applicable federal, state, local and provincial laws and regulations;
(d) all food articles, food ingredients and food packaging shipped and/or delivered to BUYER under any Purchase Order, as of the date of such shipment and/or delivery, are not adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, as amended, and all rules and regulations promulgated thereunder, and are not an article which may not, under the provisions of Section 404 or 505 of said Act, be introduced into Interstate Commerce, and are not an article adulterated or misbranded under any applicable provisions of any similar state or local law, rule or regulation including, but not limited to California’s Prop 65;
(e) the Products shipped and/or delivered to BUYER under any Purchase Order, as of the date of such shipment and/or delivery are not adulterated,
misbranded or packaged in misbranded packages within the meaning of the United States Insecticide, Fungicide and Rodenticide Act, and the United States Hazardous Substances Labeling Act, and all rules and regulations promulgated thereunder, and any similar state or local laws;
(f) all Products delivered pursuant to any Purchase Order comply at the actual time of delivery to BUYER with the Federal Occupational Safety and Health Act and with the Federal Consumer Product Safety Act, and all applicable provisions thereunder;
(g) SELLER’s facilities that manufacture, process, pack or hold food for consumption in the United States are registered according to Section 415 of the Federal Food, Drug and Cosmetic Act, as amended by the Bioterrorism Act;
(h) the Products delivered pursuant to any Purchase Order are free and clear of all liens, encumbrances and security interests, are free from defects in material and workmanship, are of merchantable quality, and that they otherwise conform to specification furnished by BUYER; and
(i) the Products delivered pursuant to any Purchase Order are fit for the particular purposes for which BUYER is to apply them.
The inspection, testing, acceptance or use of the Products delivered pursuant to any Purchase Order by BUYER shall not affect SELLER’s obligations under this Section 12.

13. Confidentiality. Each party agrees to keep the terms of this Agreement strictly confidential and to only disclose such terms to agents and employees of the party on a “need to know” basis. Further, each Party shall assure that no agent or employee to whom any provision of this Agreement is disclosed shall further disclose such provisions in any manner inconsistent with this Section 13. Notwithstanding the foregoing, the Parties acknowledge that invoices and shipping documents may have to be disclosed to third parties in the ordinary course of business and agree that such disclosures are not prohibited by this Section 13. (a) For purposes of this Purchase Order, “Confidential Information” means all information and materials disclosed by or on behalf of a Party (the “Disclosing Party”), or otherwise received, observed or accessed by the other party (the “Receiving Party”), in connection with this Purchase Order and the negotiation thereof, whether in oral, written, visual or electronic form, whether prior to or after the order date reflected on this Purchase Order, and regardless of whether marked or identified as “confidential” at the time of disclosure, including: (a) all business, accounting, marketing, customer, sales, business and pricing information concerning the Disclosing Party, its products, services, affiliates and suppliers; (b) all trade secrets, know-how, inventions, and other creative, technical, product and service information concerning the Disclosing Party, its products, services, affiliates and suppliers, including recipes, formulas, product standards, manufacturing processes and techniques, ingredient sources, equipment and temperature settings, mixing times, baking times and other processes; (c) all observations made through inspection, evaluation, testing, or use of products, services, facilities, equipment or other property, methods or processes of the Disclosing Party; (d) all documentation and information posted on secure websites and made available to Receiving Party on a password protected or other access controlled basis; and (e) all other information that a reasonable person familiar with the industry of the Disclosing Party, its affiliates or suppliers would consider confidential or proprietary. A Disclosing Party shall have no obligation to disclose any particular Confidential Information. Notwithstanding the foregoing, Confidential Information does not include any information or materials that: (i) was in the Receiving Party’s possession prior to the date of disclosure by the Disclosing Party, as demonstrated by written records; (ii) is rightfully acquired by the Receiving Party from a third party that is legally entitled to make such disclosure, without restriction as to its use or disclosure; (iii) is independently developed by or on behalf of the Receiving Party without reference to or reliance on the Confidential Information of the Disclosing Party, as established by documented and competent evidence; or (iv) was or is placed in the public domain through no act or failure to act on the part of the Receiving Party, its representatives or Affiliates.
(b) From time to time, the Receiving Party may receive, observe, and/or have physical or electronic access to certain Confidential Information of the Disclosing Party. The Receiving Party shall protect such Confidential Information against unauthorized access, use or disclosure with at least the same degree of care used to protect its own Confidential Information of a similar nature, but with no less than reasonable care. The Receiving Party shall access and use the Confidential Information of the Disclosing Party solely for the purpose of performing this Agreement (“Permitted Purpose”). Except as expressly permitted herein, the Receiving Party shall not, nor shall it permit any third party to, access, use, or disclose the Confidential Information of the Disclosing Party for any other purpose, whether for the Receiving Party’s own benefit or the benefit of any third party, without the prior written authorization of Disclosing Party in each instance. The Receiving Party may disclose Confidential Information only to those officers, employees, affiliates and agents of the Receiving Party (each a “Representative”) who have a need to know the Confidential Information for the Permitted Purpose, and who are legally bound by confidentiality obligations at least as protective of the Disclosing Party’s Confidential Information as the provisions of this Agreement. Any unauthorized access to, use or disclosure of Confidential Information by a Representative or affiliate of the Receiving Party shall be deemed a direct breach of this Agreement by the Disclosing Party. Receiving Party may be required to execute additional confidentiality agreements as a condition to any inspection of Disclosing Party’s or its subcontractors’ facilities.
(c) Upon the expiration or termination for any reason of this Agreement, and/or upon the Disclosing Party’s earlier written demand, the Receiving Party shall, at the written election of the Disclosing Party, promptly return or destroy any Confidential Information of the Disclosing Party in its possession or control (including copies and summaries thereof), and upon request, confirm that it has purged its records and files of, and no longer has access to, any such Confidential Information. The Receiving Party’s obligations under this Agreement with respect to Confidential Information disclosed during the term hereof, and all rights and remedies of the Disclosing Party related thereto, shall survive the expiration or termination of this Agreement for any reason, and shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
(d) Each Party recognizes that any actual or threatened breach of the provisions of this Article 13 would cause irreparable harm to the other Party, the extent of which would be difficult and impracticable to assess, and that money damages alone would not be an adequate remedy for such breach. Accordingly, in addition to all other remedies available under the circumstances, each Party shall be entitled to seek immediate equitable and other provisional relief in any court of competent jurisdiction.

14. Insurance. SELLER shall maintain Commercial General Liability Insurance, including Products & Completed Operations Liability, Broad Form Property Damage, Operating Liability, and Contractual Liability, with a combined single limit of not less than $2,000,000 per occurrence. Additionally, in the event SELLER is required to perform any part of this Purchase Order at BUYER’s premises, SELLER shall maintain workers compensation coverage in statutory limits, employers’ liability insurance with a limit of not less than $1,000,000, and automobile liability insurance with a combined single limit of not less than $2,000,000 per occurrence. If SELLER is proving goods, and /or raw materials, SELLER shall maintain product recall and contamination coverage in limits not less than $2,000,000 each accident/defect. Such insurance will be with a company acceptable to RISE, shall (other than the workers compensation coverage and employers liability insurance) add RISE and its Affiliates as additional insureds and SELLER shall provide a thirty (30) day prior written notice of cancellation, intent to cancel or material change in the policy to RISE. With respect to SELLER’s negligence, this coverage shall be primary and non-contributory with any insurance coverage RISE may have.

15. Force Majeure. Neither SELLER, RISE or any BUYER shall be liable for delay or default in the fulfillment of their obligations under this Purchase Order due to matters beyond the reasonable control of the party charged with performance, including acts of God, fire, flood, accident, riot, strikes, war, terrorism, embargo or government interference. During any such delay or default by SELLER, BUYER may elect to purchase the described goods or services elsewhere and, at BUYER’s sole option, apply such purchases to reduce the quantity of goods or services deliverable under any applicable Purchase Order. BUYER shall have the option of terminating any outstanding Purchase Orders in the event of a Force Majeure pursuant to Article 2 above.

16. Product Recalls. BUYER shall have the right at any time, in its sole and absolute discretion, to order any of the Products recalled, and the SELLER agrees to cooperate fully with BUYER in effecting such recall of the Products. The SELLER shall maintain all of its production and shipment records to facilitate the recall of the Products. If the Products recalled are found not to be in accordance with SELLER’s warranties contained herein, the SELLER shall bear all costs and expenses incurred in effecting the recall of the Products (including, without limitation, all transportation costs, customer claims, storage costs, testing and inspection costs, and reasonable legal fees and costs); otherwise all such costs and expenses shall be borne by BUYER.

17. Indemnity. SELLER shall indemnify, defend and hold harmless RISE and the BUYERS, its officers, directors, employees, agents, customers, successors and assigns from and against any and all claims, demands, causes of action, liabilities, damages, losses, fines, penalties, costs and expenses (including but not limited to court costs and reasonable attorney’s fees) and judgments made or incurred by or found against any of them of any nature and from any cause whatsoever to the extent resulting from, arising out of, or in connection with:
(a) Any actual or alleged infringement of any patent, trademark, trade name, copyright or other proprietary right relating to any Products;
(b) Any breach or default by SELLER of any terms of this Purchase Order;
(c) Any actual or alleged death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, claimed to result in whole or in part from any actual or alleged defect in the Products, whether latent or patent;
(d) Any actual or alleged violation of any law, statute or ordinance or any administrative order, rule or regulation relating to the Products, or to the Products’ manufacture, shipment, labeling, use or sale, or any failure to provide a Material Safety Data Sheet (“MSDS”) or certification; or
(e) Any negligent or intentional act or omission of SELLER or its employees, agents or representatives in connection with any sale to or service for RISE or the BUYERS.
SELLER shall have no obligation to indemnify, defend and hold harmless BUYER to the extent of BUYER’s negligent or intentional acts or omissions.


18. Imported Products.
(a) SELLER Requirements. SELLER will provide to BUYER’s customs compliance department a pre-alert containing all information and documentation needed to affect Customs entry into each country into which the goods are to be imported, except information within the exclusive possession of BUYER. Where BUYER has provided Seller with information on the tariff classification, rate of duty, value of the imported articles, commodity description or any other related statements, such information shall appear accurately on the commercial invoice. SELLER will provide such documentation and other assistance as BUYER may request to allow BUYER to claim drawback of duties and taxes on purchased goods or articles manufactured from purchased goods. Seller shall accurately indicate the country of origin of the goods sold hereunder on the Customs/ Commercial Invoice and other applicable documentation. When requested by BUYER, SELLER shall execute such documents as may be necessary to allow BUYER to claim duty preference under any and all applicable programs. SELLER warrants that all sales hereunder are made in circumstances that will not give rise to the imposition of anti-dumping duties, countervailing duties, or similar levies under United States law or the law of any other country into which the goods may be exported. SELLER warrants that all transfers of goods and data received from BUYER will be conducted in compliance with applicable requirements of the United States and other Governments with jurisdiction over any goods or technical data supplied by BUYER in connection with this Purchase Order.
(b) Supply Chain Security. SELLER warrants that it has reviewed its supply chain security procedures and that these procedures and their implementation are in accordance with the criteria set forth by the Customs-Trade Partnership Against Terrorism (“C-TPAT”) program of the U.S. Bureau of Customs and Border Protection. Specifically, SELLER warrants that it is applying C-TPAT prescribed inspectional methods prior to loading of the transport conveyance; is maintaining secure control over its loaded and empty transport conveyances; is controlling and applying certified high security seals for securing transport conveyance doors; and, is ensuring that its suppliers and/or business partners are observing the criteria set forth by C-TPAT. SELLER further warrants and represents that it has developed and implemented, or will develop and implement, procedures for periodically reviewing and if necessary, improving its supply chain security procedures. Specifically, SELLER agrees to conduct an annual security audit at each of its facilities and to take all necessary corrective actions to ensure conformity with C-TPAT standards. SELLER agrees to share with BUYER the results of such annual audits and agrees to prepare and submit to BUYER a report on the corrective actions taken in response thereto. In the event SELLER fails to take an appropriate corrective action, BUYER may, but is not required to, terminate this Purchase Order. If SELLER is enrolled in any supply chain security accredited programs, such as C-TPAT or other similar programs that may exist in the country of SELLER, then SELLER shall provide BUYER with documentary evidence of such enrollment.

19. Governing Law. This Purchase Order shall be governed and construed in accordance with the laws of the State of Georgia, without regard to the
conflicts of law provisions thereof. SELLER and BUYER irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the State and Federal courts located in Fulton County, Georgia for any actions, suits or proceedings arising out of or relating to this Purchase Order and the transactions contemplated hereby, and agree to waive the defense of an inconvenient forum.

20. Equal Opportunity. SELLER acknowledges that RISE and BUYERs are subject to various federal laws, executive orders and regulations regarding equal opportunity and affirmative action which may also be applicable to SELLER and that all applicable equal opportunity and affirmative action clauses shall be incorporated herein as required by federal laws, executive orders and regulations, including but not limited to 41 C.F.R. Sections 60-1.4, 60-250.5 and 60-741.5.

21. Assignments. Neither party may assign or transfer this Agreement, in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party; provided, however, upon written notice to the other party a party may assign this Agreement in its entirety (or may assign separate facility Purchase Orders) to a successor in interest upon its merger, consolidation, acquisition, or sale or other transfer of all or substantially all of its business or assets or upon the acquisition, sale or other transfer of an individual BUYER production facility.

22. Remedies. In the event of SELLER’s breach of this contract or of any warranties, BUYER may take any or all of the following actions without prejudice to and in addition to any other rights or remedies available to BUYER by law: (1) require SELLER to repair or replace such Products and upon SELLER’s failure or refusal to do so, repair or replace the same at SELLER’s expense; (2) reject any shipment or delivery containing defective or non-conforming Products and return for credit or replacement at BUYER’s option, said return to be made at SELLER’s cost and risk; (3) cancel any outstanding deliveries hereunder and treat such breach by SELLER as SELLER’s repudiation of this contract. In the event of BUYER’s breach hereunder, SELLER’s exclusive remedy shall be SELLER’s recovery of the Products or the purchase price payable for Products shipped prior to such breach. Waiver of any breach by BUYER shall not constitute BUYER’s waiver of any other breach of the same or any other provision. Acceptance of any items or payments therefore shall not waive any breach.

23. General. SELLER may not assign this Purchase Order or any of its rights or obligations hereunder. SELLER agrees to perform any further act and deliver any additional documents that may be reasonably requested by BUYER in connection with this Purchase Order including, without limitation, furnishing drawings, records, results of analysis or other similar documentation. Should any part, term, or provision of this Purchase Order be declared illegal or in conflict with any law, rule, or regulation, the validity of the remaining portion, terms, or provisions shall not be affected thereby. No remedy conferred upon a party hereunder is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity. No delay or omission in exercising any right, remedy or power hereunder or existing at law or in equity shall be construed as a waiver thereof. Section titles and captions are used for convenience only and are not to be used in attempting to construe any part of this Purchase Order.