iTi Tropicals, LLC Terms and Conditions of the Purchase & Sale of Goods

Last Updated: March 13th, 2025

The following General Terms & Conditions of the Purchase and Sale of Goods (the "Agreement") between iTi Tropicals, LLC (the "Seller") and you (the "Buyer") governs exclusively every sales transaction of goods by Seller and/or any of its affiliates to Buyer. Any goods, services or information provided by Seller in connection with the transaction of such goods is hereinafter collectively referred to as the "Goods"). Seller’s acceptance of any Buyer order (referred to herein as the “Order(s)”) for Goods received by Buyer and Seller’s performance of its obligations under such Order is conditioned on the acceptance by Buyer of this Agreement.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, BUYER’S SUBMISSION OF AN ORDER FOR ANY GOODS TO SELLER SHALL BE DEEMED BUYER’S ACCEPTANCE OF THIS AGREEMENT AND UNDERSTANDING OF ITS TERMS AND CONDITIONS THAT GOVERN EACH AND EVERY SALES ORDER MADE TO SELLER.

This Agreement constitutes the complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral. Notwithstanding the foregoing, should Seller and Buyer have a written contract that governs specifically the sale of certain Goods within an applicable Order then such a written contract shall govern with respect to the mutual agreements made therein so long as such written agreement covers the matters of such Order.

Seller reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time and in their sole discretion. Any changes or modifications will be effective to Orders thereafter received upon posting of the revisions on the site, https://www.ititropicals.com/terms-conditions, and Buyer waives any right it may have to receive specific notice of such changes or modifications. Buyer’s continued submission of Orders following the posting of changes or modifications will confirm Buyer’s acceptance of such changes or modifications.

Order Confirmation. Seller will provide written acceptance and confirmation of an Order within five (5) business days. Buyer may not make any changes to an Order after confirmation by Seller without the express written consent of Seller. Seller’s acceptance of an Order is conditional on Seller’s ability to obtain the necessary supply of Goods from its producers including as a result of Goods availability, minimum order quantities, lead times and delivery dates. Seller shall provide written notice to Buyer if it cannot fulfill the supply requested. Buyer is responsible for ensuring all information submitted on an Order is accurate including but not limited to the Goods requested, quantities, amounts, SKUs, artwork, etc. 

Cancelation. Buyer may not cancel or change any Order without written consent from Seller. Any changes to the purchase price of the Goods as a result of any modification shall be incurred by Buyer.  Delivery dates may change due to any modification requested by Buyer. Any damages incurred by Seller as a result of Buyer’s modification or cancellation shall be paid by Buyer.

Price and Taxes. The purchase price set forth in the Contract for a particular Goods is based on the International Commercial Terms published by the International Chamber of Commerce on January 1, 2011(“INCO Terms”) and upon the then applicable, duties, surcharges, taxes, fees, charges and levies of any kind, including U.S. import tax, U.S. customs (collectively “Taxes”) imposed by any country, government body, governmental authority, department agency, subdivision or bureau (collectively “Government”), whether import, export, discriminatory or otherwise, which Seller is aware at the time of the Contract, and which Seller believes affects a particular Goods. Should any increase in Taxes or new Taxes be subsequently imposed, increased or become effective, they shall automatically be added to and become part of the purchase price as set forth in the Contract and shall be paid by the Buyer to Seller upon request. The purchase price stated in the Contract is based upon the then present ocean and inland shipping, freight and insurance rates for all insurance (including war risk insurance) and charges as of the Contract, and any increase in those charges shall automatically be added to and become part of the purchase price as set forth in the Contract for each particular affected Goods. The purchase price stated in the Contract is based upon Seller’s then cost of raw materials. Increases in Seller’s cost of raw material after the date of the Contract shall automatically be added to and become part of the purchase price as set forth in the Contract and the Buyer shall promptly pay to Seller any such increases as an increased purchase price no later than fifteen (15) days after the request.

Payment Terms. Unless otherwise agreed between Seller and Buyer in writing, payment is due thirty (30) days from the date of the invoice. Any invoice remaining unpaid for more than thirty (30) days from due date shall accrue interest at a rate of the lesser of 2.0% per month or the highest rate allowed by law. Buyer shall pay all costs of collection on past due accounts including attorneys’ fees and Seller shall have the right to seek damages. Should Buyer fail to make timely payments to Seller, Seller may, at any time and in its sole discretion, suspend or cancel shipments under any accepted Order placed by Buyer, decline to accept any further Orders or shipments, or cancel any placed or accepted Orders until payment in full has been received from the Buyer.  Seller in its discretion may, from time to time, alter, suspend or revoke any credit terms extended to Buyer for any reason, and thereafter require cash payment or additional security for all or any part of the purchase price of Goods. Such alterations, suspension or revocation shall no affect Buyer's obligations to accept and pay for Goods pursuant to an existing Order. If Buyer becomes insolvent, is subject to a bankruptcy filing or if Seller determines that its financial condition has deteriorated, or that the Buyer has defaulted or is likely to default under the Order or this Agreement, Seller at Seller's option, may defer delivery of any Goods until such event, condition or default is cured as determined by Seller, or Seller may treat any such event or condition as a breach by Buyer of an Order of this Agreement, and thereupon Seller may resell the undelivered balance of the Goods and hold Buyer liable for any and all damages, expenses and losses associated with such breach, and Buyer shall be responsible for the payment of any and all expenses, including attorney’s fees, damages and losses incurred by Seller as a result.

Security Interest. To secure the complete and timely payment and performance of all Buyer’s obligations under this Agreement, including the complete and timely payment for the Goods sold under this Agreement, Seller hereby reserves, and Buyer hereby grants Seller a security interest in and to all Goods and proceeds thereof, including without limitation, insurance proceeds. Buyer hereby authorizes Seller to prepare, execute, issue, and file any appropriate UCC financing statements, amendments, and any other instruments or third party notices that Seller may reasonably require to perfect Seller’s security interest and shall perform all acts and deliver all instruments necessary to secure and protect Seller’s interest.  Seller shall have all the rights and remedies of a secured party under the Uniform Commercial Code, which remedies shall be cumulative and not exclusive.

Imported Goods. In addition, if the Goods are imported, performance on the part of Seller is subject to the actual receipt of said Goods by Seller. In the event Goods imported by Seller are not received by Seller, then upon agreement with the Buyer, Seller shall make reasonable efforts to obtain reasonable comparable substitute Goods for the Buyer and any increase in the cost of such substituted Goods incurred by Seller shall be added to the purchase price set forth in the applicable Order. In the event Seller is not able to obtain a substitution in a reasonable time, as determined by Seller, or if the Buyer does not agree to the substitution, any and all obligations of Seller, with respect to the undeliverable Goods, shall terminate and Seller shall have no further obligation or liability to Buyer, except to refund the purchase price for the undeliverable Goods, to the extent previously paid.

Delivery. The delivery of the Goods by Seller is subject to the Goods being released and passing inspection by the United States Food and Drug Administration and all other governments and all applicable governmental agencies, departments and bureau’s having jurisdiction over the Goods. In the event that Goods or any part thereof are detained at the port of entry or at origin by U.S. Customs or any other government, or governmental department, bureau or agency, or are not released for entry or export for any reason whatsoever within a reasonable time as determined by Seller, then Seller may cancel delivery and Seller shall have no liability to the Buyer for the delivery of the Goods or otherwise and Seller shall not be required to replace the Goods so detained or not released for entry or export, and the Order with respect to the detained and unreleased Goods, at Seller’s option, shall then become void and Seller shall be released from any and all responsibility, obligation and liability except to refund to the Buyer only the portion of the purchase price actually paid by Buyer to Seller that relates to such detained and unreleased Goods. If delivery of Goods is to be made in installments, a failure of delivery, or discrepancy of Goods in one installment shall not affect the remainder of the Order or future installments and shall not constitute a breach of the Order or this Agreement by Seller.  Further it shall not affect the Buyer’s obligation to accept delivery of subsequent installments of the Goods as agreed in the Order. In addition, the delivery by Seller of any excess or shortage of the Goods up to five percent (5%) of the Goods quantities as set forth in the Order or any installment shall not constitute a valid reason for rejecting the shipment or shipments of Goods. In the case of such excess or shortage, the purchase price shall be adjusted accordingly.

Time of Delivery. “Time of Delivery” shall mean with regard to Goods imported into the United States, the specific date that Seller has advised the Buyer by email or telefax that the Goods has passed U.S. Customs and is available on that date to the Buyer at an agreed upon place of delivery (or such place as specified in Buyer Instruction and Freight, below), and with regard to Goods exported to other countries, the specific date that Seller has advised the Buyer by email or telefax that the Goods has passed applicable customs and other applicable requirements of such other country and is available on that date to the Buyer at the agreed upon place of delivery (or such place as specified in Buyer Instruction and Freight below).

Risk of Loss. Title to and risk of loss of the Goods shall transfer to Buyer at the Time of Delivery, whether imported or exported into the United States, unless otherwise specified by Seller. Further the Buyer accepts full responsibility and liability for all changes in the condition of the Goods after the Time of Delivery. Seller shall not be liable to Buyer for any claims brought by Buyer or a third party that arises from any event, action or inaction after the Time of Delivery including without limitation if the Goods have been mishandled, improperly stored, processed, tampered with, or otherwise modified or changed from their condition at the Time of Delivery including without limitation changes or issues arising from additional ingredients being combined with the Goods.

Buyer Instruction and Freight. The Buyer is solely responsible for proper care, handling and transportation of the Goods at or any time after the Time of Delivery unless otherwise specified by Seller. All freight and any other shipping charges are the responsibility of Buyer. If Buyer fails to provide shipping instructions within the delivery period specified in an Order, Seller may at its option: cancel the Order, deliver the Goods to the Buyer at Buyer's place of business as stated in the Order, or sell the Goods in the open market, crediting or debiting Buyer with the difference between net price thus realized and purchased price set forth in the Order, Buyer shall be responsible for any difference in net price realized and the purchase price set forth in an Order. Should Buyer request Seller to arrange freight and logistics Buyer will pay such fees and expenses to Seller in addition to the purchase price of the Goods and such invoices shall be due upon receipt. All quoted freight costs are provided as an estimate and are subject to change without prior written notice to Buyer. If delivery by a particular carrier is not specified in the Order or the Buyer does not provide to Seller in a timely manner the information that Seller requires regarding the particular carrier selected by the Buyer, then Seller may select and ship the Goods by any carrier  in its sole discretion and delivery of the Goods to such carrier shall constitute delivery to the Buyer. Except in the case Seller acts with gross negligence, Buyer shall be responsible to pay or reimburse Seller for all additional charges incurred as a result of any delivery or delayed delivery. For the avoidance of doubt, Seller is not responsible or liable for any acts, errors or omissions of any shipper, carrier, receiver or other third party handling the Goods including any damage to Goods that may be caused during transit. Buyer shall be solely responsible for proper care, handling and transportation of all Goods.

Specifications. The specifications for each batch of Goods are set forth in the certificate of analysis (“COA”) from Seller’s producer of the Goods and as agreed upon by Seller and the Buyer (the “Specifications”). The Specifications are subject to a number of factors, including without limitation crop and weather conditions that may result in variations to the agreed Specifications. Accordingly, the Buyer agrees to accept reasonable variations in the Specifications of each batch of Goods and shall have no claim against Seller and Seller will have no liability to Buyer for any such variations to the Specifications of each batch of Goods purchased. Further, the nutritional information for the Goods is derived from an actual analysis of a limited sample of the Goods, which Seller obtains from time time-to-time. The nutritional information for a specific batch of the Goods may therefore not be identical to that as set forth in the COA and Buyer agrees to accept deviations from the nutritional information for each batch of Goods and shall have no claim against Seller and Seller will have no liability to Buyer for any such deviations to the nutritional information of each batch of Goods purchased.

Inspection. Buyer agrees to inspect the Goods within twenty (20) days from the Time of Delivery of the Goods and provide its acceptance of such Goods. Should no objection to the Goods be received by Seller in writing within the twenty (20) day period, the Goods shall be deemed accepted.  Should the Buyer determine the Goods to be nonconforming Buyer must provide in writing notice, by a nationally recognized reliable next business day courier to Seller with the attention “Quality Control”, of any nonconforming Goods to Seller within such twenty (20) day period including a detailed description, to the reasonable satisfaction of Seller, of all defects, nonconformities (including photographs), the manner in which it was stored, used and handled, including if the container the Goods were stored was opened after the Time of Delivery, damage or discrepancy and provide any other written evidence or documentation as reasonably requested by Seller. Should Buyer not provide its written notice within twenty (20) days from the Time of Delivery, Buyer shall be deemed to have accepted the Goods and waive its right to claim Nonconforming Goods. Nonconforming Goods shall mean any Goods that do not meet the Limited Warranty of Goods defined below (the “Nonconforming Goods”). 

Goods Returned. Buyer may not return Goods without the prior written consent from Seller. If consented to by Seller, any Goods returned are shipped at Buyer’s risk.

Proposition 65. The State of California has a regulation in place, referred to as Proposition 65, which is officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986. This Act generally requires businesses providing goods and services to California consumers to provide clear and reasonable warnings for exposures to any of the more than 900 chemicals listed by the State of California (and updated once a year) as causing cancer or reproductivity toxicity. These listed chemicals are at very low thresholds and include lead, cadmium and other contaminants that are naturally present in the environment and certain fruit. These warnings may be applicable even if a product is fully compliant with the federal food and safety requirements. The Goods comply with not being adulterated or misbranded under the US Food, Drug and Cosmetic Act, as amended. Additionally, the Goods conform to US Code of Federal Regulations 21 CFR 170.19, pesticide chemicals in processed foods, 40 CFR 180, Tolerances and Exemptions for Pesticide Chemical Residues in Food, and European reg. EC 396/2005, as amended, on Maximum Residue levels of pesticides in or on food. The Goods are made from pure fruits. However, because the consumer usage rates, additional ingredients and processing conditions pertaining to the Goods are provided to consumers, and consumer consumption levels affect the threshold levels of chemicals and are not known to Seller, Seller does not, and cannot, guarantee that the Goods(s) that Buyer provides to consumers using the Goods will not require a Proposition 65 warning or a warning under any similar law in any other State.

Limited Warranty. EXCEPT FOR AS EXPRESSLY SET FORTH HEREIN ALL GOODS ORDERED PURSUANT TO THIS AGREEMENT ARE SOLD “AS IS” TO BUYER BY SELLER, AND SELLER HAS NOT MADE, DOES NOT MAKE AND SHALL NOT BE DEEMED TO HAVE MADEANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING, BUT NOT LIMITED TO, THE CONDITION, DESIGN, OPERATION, WORKMANSHIP, MERCHANTABILIITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, OR THE ABSENCE OF ANY VIOLATION OR CONFLICT OF ANY LAW OR GOVERNMENTAL REGULATION. SELLER MAKES NO GUARANTEE AND DOES NOT WARRANT THE PERFORMANCE OF THE GOODS. FOR THE AVOIDANCE OF DOUBT THIS LIMITED WARRANTY DOES NOT APPLY TO GOODS THAT HAVE BEEN SUBJECTED TO, INCLUDING BUT NOT LIMITED TO, ANY MISUSE, NEGLECT, NEGLIGENCE, IMPROPER TESTING, IMPROPER STORAGE, IMPROPER HANDLING, ABNORMAL ENVIRONMENTAL CONDITIONS BY THE BUYER OR ANY THIRD PARTY OTHER THAN THE SELLER. THIS LIMITED WARRANTY IS, TO THE EXTENT PERMITTED BY LAW, IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY EXCLUDED. THERE IS NO WARRANTY WHATSOEVER ON ANY BRITE CANS SOLD UNDER THIS AGREEMENT.

Liability and Limitation of Liability. To the extent permitted by law Seller shall not be liable to Buyer or any third parties and Buyer waives its right or claim against Seller for any and all remedies, legal or equitable, for any and all damages, including direct, special, incidental, exemplary, punitive, indirect or consequential damages (even if the parties have been advised of the possibility of such damages), including, but not limited to, lost profits or savings, loss of use of services, cost of capital, cost of substitute services or facilities, or damages and expenses arising out of or relating to any breach of this Agreement or any accepted Order, non-delivery of Goods, provision of any Goods, or any third-party claim. Seller’s liability arising out of any breach of this Agreement shall be limited to the purchase price of the Goods actually paid by Buyer to Seller under an Order only if such Order is directly impacted by any such breach.

Indemnification. Buyer agrees to defend, indemnify and hold harmless Seller and all of its directors, officers, shareholders, owners, members, managers, agents, representatives, affiliates and employees from and against all claims, liabilities, losses, and damages brought by Buyer or any third party arising out of Buyer’s obligations under this Agreement or the business activities of Buyer, including but not limited to claims of personal injury, property damage, business interruption, consequential damages and attorney’s fees, whether such claims arise due to the Goods, Buyer’s use of such Goods in any manner or any use of the Buyer’s Goods by  third parties, Buyer’s marketing or sale of its products containing the Goods. Buyer agrees that it shall fully hold harmless, defend and indemnify Seller, including paying all of Seller’s reasonable attorney’s fees, for any claims that may be brought against Seller while Seller is carrying out its obligations hereunder, except to the extent that Seller has breached any of its material obligations defined herein.

Confidentiality. Buyer shall not disclose confidential or proprietary information relating to this Agreement, or to the subject matter thereof, including but not limited to the Goods, pricing, producers and any other information shared in connection with the subject matter hereof. Buyer shall not disclose to third parties or use any confidential or proprietary information of Seller without the express written consent of Seller.

Force Majeure. Except for payment of monies due and owing, Seller shall be excused for failure to perform under this Agreement where such failure results from circumstances beyond the Seller’s reasonable anticipation and control including, without limitation, supply disruptions, commercial inability to obtain supply of materials, delay or failure of transportation, acts of God or acts of a local or federal government, and Seller shall give written notice to Buyer of any such occurrence.

Insurance. Buyer represents and warrants that it holds commercially reasonable insurance for all circumstances relevant to the Goods, including, but not limited to the use, shipment and delivery of the Goods.  Seller shall be subrogated to all of Buyer’s rights arising in the event of any payment or other satisfaction for damaged, lost or destroyed Goods. Buyer shall execute and deliver all instruments and take all other actions necessary to secure such rights.

Assignability.  Buyer may not assign its rights and obligations under this Agreement.  Seller may assign this Agreement to any subsidiary or affiliate under common control, or to an acquirer or any party that succeeds to substantially all of a party’s assets with prior written notice to the other party.

Modification. This Agreement shall not be modified or amended except by a written instrument accepted and signed by Seller.

Waiver.  The failure of either party to enforce at any time any of the provisions of this Agreement will in no way be construed to be a waiver of any such provision, nor in any way affect the validity of this Agreement or any part of it or the right of either party after any such failure to enforce each and every such provision.

Compliance of Law. Buyer agrees to comply with all applicable federal, state, and local laws and regulations applicable in its performance under this Agreement, with regard to the manufacture of the Goods and the sale of Goods to third parties.

Conflict and Governance. In the event of any conflict between this Agreement and any Order, purchase order or otherwise, the terms of which are expressly rejected and this Agreement shall govern. Seller hereby rejects any and all other terms including any terms and conditions of Buyer contained on a purchase order submitted to Seller.

Applicable Law.  This Agreement, and any applicable Order and the rights of the parties shall be governed by and construed and enforced in accordance with the laws of the State of Minnesota. The venue for any action hereunder shall be in the state of Minnesota, County of Ramsey, so long as Seller’s corporate offices are located there. The parties consent to the jurisdiction of the courts of the State of Minnesota, County of Ramsey, and the U.S. District Court, District of Minnesota. In any action, suit or proceeding to enforce this Agreement, the Seller shall be entitled to recover from the other party its costs incurred in connection therewith, including, but not limited to, reasonable attorneys’ fees, court costs and expert witness fees.