Customer Standard Terms and Conditions

All sales and shipment of products (collectively, the “Products”) ordered by a customer (“Customer”) from TYTUS Grills, LLC (or its affiliates or subsidiaries, collectively “Vendor”), whether by a Sales Order, Customer purchase order, or other order method shall be covered by and subject to these Customer Standard Terms and Conditions (collectively, the “Terms and Conditions”).  Vendor is not bound by any printed matter on Customer’s purchase order or other documentation that imposes terms or conditions that differ, add to or modify the terms set forth in these Terms and Conditions.  

1. Restrictions.  Customer shall not represent itself as an agent of Vendor for any purpose nor make any representation on the behalf of Vendor.  Furthermore, Customer shall not commit Vendor to any contracts or otherwise incur any liability on behalf of Vendor. 

2. Pricing, Taxes, Payment and Credit Terms.

1. Pricing.  Vendor will sell the Products to Customer at the prices agreed in writing between the parties.  Vendor’s prices do not include sales, use, excise or similar taxes. The amount of any present or future sales, use, excise or other similar tax that is attributable to Customer will be paid by Customer.  

2. Payment.  Unless Vendor otherwise agrees in writing, Customer agrees to pay for all Products in full prior to delivery of such Products via wire transfer.

3. Purchase Orders.  Vendor will ship only against a written Purchase Order, Sales Order, or other acceptable order documentation (collectively, a “Purchase Order”).  A Purchase Order shall be considered accepted upon written confirmation from Vendor of acceptance or upon shipment of Product by Vendor.  

4. Shipping.  Unless otherwise agreed by the parties, all prices are FOB (Named Port) as set forth on an accepted Purchase Order.  

5. Compliance With Laws.  Customer shall be responsible for obtaining all licenses and permits and for satisfying all laws, rules and regulations as may be required to import, distribute, sell, service, and properly dispose of the Products in accordance with the prevailing laws and regulations.  In addition, Customer shall comply with United States laws applicable to the sale of the Products, including but not limited to the Foreign Corrupt Practices Act (which prohibits certain payments to governmental officials and political parties) and U.S. regulations of international boycotts.  Non-compliance with any such law shall constitute a material breach of these Terms and Conditions.

6. Warranty.  VENDOR MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS HEREUNDER EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS OR AS MAY BE INCLUDED IN WRITING WITH A PRODUCT, AND ALL OTHER SUCH WARRANTIES ARE HEREBY EXPRESSLY WAIVED AND EXCLUDED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.  IN NO EVENT SHALL VENDOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. NOTHING IN THESE TERMS AND CONDITIONS SHALL LIMIT OR EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY OR FOR OTHER LIABILITIES WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED.

7. Intellectual Property.  The ownership and exclusive use of the intellectual property of Vendor (owned or licensed), including trademarks, logos, copyrights, patents, trade secrets, websites and related domain names and all derivatives thereof, shall remain vested in Vendor.  Customer shall have no rights or interest in any such intellectual property. Customer agrees that prior to using Vendor’s intellectual property in any manner, that it will obtain the prior written consent of Vendor and agrees to comply with Vendor’s guidelines for the use thereof.  These Terms and Conditions shall not be construed to convey any license or ownership rights in or to the intellectual property of Vendor. Customer understands that damages suffered by Vendor for any violation of this Section would be difficult to ascertain. Therefore, Customer agrees that Vendor shall be entitled to injunctive relief for any violation of this Section.

8. Confidentiality.  These Terms and Conditions and any information marked as confidential or, regardless of form (written/electronic/oral) or marking, is of the nature that a reasonable person would understand its owner would not want it disclosed to the public will be considered to be “Confidential Information.”  Further, without limiting the generality of the foregoing, Confidential Information will also include (a) any document or data transaction between the parties; (b) matters of a technical nature such as trade secret processes or devices, know-how, data, formulas, inventions (whether or not patentable or copyrighted), specifications and characteristics of products or services planned or being developed, and research subjects, methods and results; (c) matters of a business nature such as information about costs, profits, pricing, policies, markets, sales, suppliers, customers (e.g., names and addresses), product plans, and marketing concepts, plans or strategies; (d) matters relating to project initiatives and designs; and (e) other information of a similar nature not generally disclosed to the public.  Each party agrees not to disclose Confidential Information except to affiliates, employees or a third-party subject to a similar confidentiality agreement, which have a need to know such information in order to perform their responsibilities. Each party agrees to take at least the same precautions to protect Confidential Information as such party would utilize to ensure the protection, confidentiality and security of its own Confidential Information. Each party, at its own expense, will properly use security procedures that are reasonably sufficient to ensure that all transmissions of documents are authorized and to protect its business records and data from improper access.

9. Indemnity.  Each party will indemnify the other party against any damages, costs or expenses (including attorney’s fees) incurred by a party as the result of any claim against a party alleging personal injury, property damage or death to any third party resulting from the negligence of a party or any defect in a Product caused by such party.  An indemnifying party shall at its own expense, defend any claim against the other party which is based on any such allegation of product liability attributable to the indemnifying party so long as the party seeking indemnification: (a) notifies the other party immediately in writing of any notice or claim of such product liability; (b) permits the other party through its counsel to defend such claim; and (c) gives the indemnifying party all available information, assistance and authority to enable the indemnifying party to assume such defence.  The indemnifying party will have control of the defence of any such claim, including appeals from any judgment and any negotiations for settlement or compromise, and authority to enter into a binding settlement or compromise of any such claim. Notwithstanding the foregoing, a party will have no liability to the other party with respect to any claim of personal injury, property damage or death to any third party specifically caused by or resulting from the wilful act or negligence of the other party or its agents or others acting with the other party’s authority in the transportation, possession or use of the Products.  THIS SECTION STATES THE ENTIRE LIABILITY OF VENDOR FOR AND ARISING OUT OF ANY CLAIM OF PERSONAL INJURY, PROPERTY DAMAGE OR DEATH TO ANY THIRD PARTY WITH RESPECT TO PRODUCTS FURNISHED TO CUSTOMER UNDER THESE TERMS AND CONDITIONS. VENDOR WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING PRODUCTS OR ANY OTHER PERFORMANCE UNDER THESE TERMS AND CONDITIONS.  

10. No Other Agreements.  These Terms and Conditions supersede (a) all terms in Customer’s Purchase Orders and confirmation documents, and (b) all other oral or written communications between us regarding the matters covered in these Terms and Conditions.  No party is entering into these Terms and Conditions in reliance on any oral or written promises, representations or understandings other than those in these terms and Conditions.

11. Relationship of the Parties.  The relationship between Vendor and Customer is that of independent contractors and each party agrees that it has not and shall not hold itself out as nor shall either party be deemed to be, an agent of the other party.  These Terms and Conditions do not create any exclusive relationship between Customer and Vendor.  

12. Governing Law; Dispute Resolution.  These Terms and Conditions and any disputes arising hereunder shall be governed by and interpreted in accordance with the laws of the State of Minnesota, excluding any conflict of laws, rules or principles therein contained under which any other law would become applicable.  The parties stipulate to the exclusive jurisdiction and venue of the courts located in Minnesota to resolve any dispute relating to these Terms and Conditions, or arising hereunder, or by virtue of the relationship of the parties. The prevailing party in any proceeding brought to enforce the provisions of the Terms and Conditions or to seek a remedy for any breach (including an arbitration action or administrative proceeding) shall be entitled to receive reimbursement of its reasonable attorneys’ fees and costs, litigation expenses and other disbursements incurred in connection with such proceeding, including fees and expenses incurred in any appellate proceeding. 

13. Other Remedies.  The exercise of any remedy herein shall be without prejudice to any other right or remedy available to either party.

14. Severability.  If any provision of these Terms and Conditions is held invalid or unenforceable, it shall be so held to the minimum extent required by law and all other provisions shall remain valid and enforceable.

15. Survival.  The expiration or termination of these Terms and Conditions will not terminate vested rights of either party from any liabilities or obligations incurred under these Terms and Conditions prior to or which by their nature are intended to survive expiration or termination, including but not limited to provisions relating to confidentiality, indemnification, and intellectual property rights.

16. Waiver.  The failure of a party to exercise or enforce any right under these Terms and Conditions shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.

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