Mushroom Madre, LLC (“Madre’s”), offers to sell/provide (each a “Sale”) goods and services (“Deliverables”) only on the terms and conditions herein, which, together with the Specifications as defined below, constitute the entire agreement between Madre’s and the customer/buyer (“Buyer”) unless Madre’s specifically agrees to other terms and conditions in writing.

1. CONTRACT; TERMS EXCLUSIVE. Madre’s offers to sell Deliverables shall be deemed accepted by Buyer’s purchase of Deliverables, Buyer’s submission of a request for proposal to purchase Deliverables, Buyer’s submission of a purchase order to purchase Deliverables, or any other act, communication, or instrument of Buyer in response to which Madre’s sells Deliverables to Buyer (each a “Purchase Order”). If Buyer’s Purchase Order or other correspondence contains terms or conditions contrary to or in addition to these terms and conditions, acceptance of any Purchase Order by Madre’s shall not be construed as assent to such contrary terms and conditions or constitute a waiver by Madre’s of any of these terms and conditions, and Madre’s expressly objects to any and all different or additional terms and conditions of Sale which Buyer may set forth on any Purchase Order, unless Madre’s specifically agrees to them in writing. THIS OFFER IS EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS. IF THIS FORM IS DEEMED AN ACCEPTANCE OF A PRIOR OFFER BY BUYER, MADRE’S ACCEPTANCE IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS.

2. DELIVERABLES BEING PURCHASED. The specific nature of the Deliverables, the quantity ordered, date(s) of delivery, price, and other specifications applicable to the Deliverables being purchased shall be as agreed upon by Madre’s and Buyer and are collectively referred to herein as “Specifications.” Specifications shall not include any general terms and conditions of purchase, even if referred to as part of Buyer’s Specifications. Madre’s shall have no obligation to ensure that any Deliverables purchased from Madre’s meet any unique specifications and/or other requirements unless set forth in Buyer’s Purchase Order and expressly accepted by Madre’s.

3. PRICE AND PAYMENT. The purchase price for the Deliverables shall be as set forth in the Purchase Order. Madre’s will sell and provide Products to Buyer at the price stated in the Order (“Price”). Unless Buyer agrees otherwise in writing in an Order, the purchase price(s) for Products includes handling, packing, transportation, and all other expenses, costs, and charges of Supplier to produce and deliver the Products during Madre’s normal weekly business hours and deliveries. Price shall include all amounts to be charged to Buyer unless additional costs or charges are set forth on the face of the Order. Unless otherwise agreed by Buyer and Madre’s in an accepted Order or otherwise in writing (including by email) and subject to any discounts, payment terms shall be “payment due upon receipt of product” (COD) via credit or debit card, Venmo, cash, or company check. Madre’s requires a valid credit or debit card to be on file if a credit or debit card is used for payment. Madre’s shall adjust any discrepancies between an Order and Madre’s invoice in good faith and in accordance with the provisions of these Terms and Conditions and the Order.

Madre’s invoices are to be itemized to include goods by item name, item quantity, delivery charges if applicable, sales tax if applicable, a credit or debit card service fee of four percent (4%) if applicable, and any other agreed charges. Separate invoices must be rendered for each shipment. Each invoice may cover no more than one Order. Invoices are to be delivered to Buyer at the time of delivery.

For online website orders, Deliverables held as a result of Buyer’s inability or refusal to accept delivery are at the risk and expense of Buyer, including, without limitation, all of Madre’s handling, reshipping, restocking, and storage charges. Interest at the rate of two percent (2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any Invoice not paid in full by Buyer by the due date thereof. Such interest shall be in addition to the purchase price. Madre’s may, without notice, change or withdraw extensions of credit at any time, in which event Madre’s may require cash payments and/or collateral security for account balances. Madre’s may also refuse to sell to Buyer until overdue accounts are paid in full. If Buyer fails to make any payment when due, in addition to all other sums payable hereunder, Buyer shall pay Madre’s the reasonable costs and expenses incurred by Madre’s in connection with any actions taken to enforce collection of such unpaid amounts and to protect Madre’s rights, whether by legal proceedings or otherwise, including, without limitation, reasonable attorneys’ fees, court costs, and other expenses. Madre’s election to not commence legal proceedings to enforce its rights of collection shall not be deemed a waiver by Madre’s of its rights to commence such proceedings in the future.

4. DELIVERY. Specified shipment/delivery dates are approximate. In the event Products require extra or special packaging due to the nature of the Deliverables, the manner in which they will be transported or otherwise, Buyer is responsible for the extra charges therefore. Madre’s shall not be liable for shipment/delivery delays. Madre’s reserves the right to deliver Deliverables in installments unless expressly agreed otherwise. Madre’s will invoice installment deliveries at the time of shipment unless otherwise agreed in writing. Delay in any installment delivery shall not relieve Buyer of its obligation to accept all remaining installment deliveries.

If any actual or potential circumstance is threatening to delay a scheduled delivery, Madre shall provide timely verbal and written notice containing the soonest possible Delivery Date.

5. SHIPPING. Madre’s agrees:
(i) to properly pack, mark, and deliver Products in accordance with the requirements of Buyer;
(ii) to route the shipments in accordance with Buyer’s instructions, if any;
(iii) to label or tag each package;
(iv) to include an itemized Invoice at the time of delivery.

6. RETURNS. Deliverables may be returned by Buyer only when authorized in writing by Madre’s. Deliverables must be returned properly packaged and shipped freight prepaid to Madre’s.

7. TAXES. Prices shall not include any taxes for which Buyer furnishes to Madre’s a valid exemption certificate.

8. FOOD PRODUCTS. The provisions of this Section 7 apply to all Orders for Products intended for human consumption or edible ingredients or raw or finished materials (“Food Products”) to be supplied by Madre’s:

(a) In addition to any warranties or similar requirements set forth in the Agreement, Madre’s shall abide by all laws related to the production, distribution, and/or sale of consumable goods.
(b) Madre’s agrees to maintain a food safety and quality assurance program.
(c) Madre’s agrees that all packaging and labeling shall be accurate and complete.

9. REPRESENTATIONS. Madre’s represents that the Products to be supplied pursuant to each Order are (i) fit and sufficient for the purpose intended; (ii) of good quality; (iii) in conformity with the specifications, samples, or other descriptions, if any, specified or furnished; (iv) produced using good manufacturing practices; and (v) suitable for human consumption.

10. RETAINED SECURITY INTEREST. Buyer hereby grants Madre’s a security interest in any Deliverables delivered to secure the payment of same until the entire purchase price has been paid. The rights and remedies of Madre’s, as a secured party with respect to Deliverables, shall be governed by the Uniform Commercial Code or equivalent state statute(s) where the Deliverables are located. Buyer authorizes Madre’s to execute and record on behalf of Buyer such financing statements and other instruments as Madre’s may deem necessary to perfect or protect its security interest.

11. CHANGES. At any time, Madre’s may make changes to the design or composition of Deliverables that, in its judgment, do not materially change the form, fit, function, or quality of the Deliverables. Changes in design or composition made at the request of Buyer shall be at Buyer’s risk and responsibility, at the expense of Buyer, and shall be paid for upon receipt of Madre’s Invoice. Madre’s reserves the right, in its absolute discretion, to add to or remove from the range of products supplied by Madre’s, including the Deliverables, and Madre’s may do so immediately on written notice to Buyer.

12. SETOFF; DEDUCTIONS. IN NO EVENT IS BUYER AUTHORIZED TO DEDUCT ANY AMOUNTS FROM THE AMOUNTS OWED TO MADRE’S.

13. QUANTITY. Madre’s shall have no obligation to provide any Deliverables in excess of the amount set forth in the Specifications unless previously agreed to in writing by Madre’s.

14. RECALLS. If Buyer is directed to assist in any suspension of supply or recall of Deliverables for any reason by Madre’s or any governmental authority, Buyer must cooperate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall. The cost and expense of such suspension or recall will be borne by

(a) Madre’s to the extent the costs and expenses are the result of Madre’s acts or omissions; and
(b) Buyer to the extent the costs and expenses are the result of acts or omissions of Buyer, its directors, officers, employees, or contractors.

15. PATENTS AND PROPRIETARY RIGHTS. Buyer represents and warrants to Madre’s that Buyer’s Specifications do not infringe upon any United States or foreign patent right, copyright, trademark, or other proprietary right of any third person whatsoever. Buyer shall indemnify and hold harmless Madre’s from and against each and every loss, liability, cost, damage, or expense (including reasonable attorney’s fees) (each a “Loss”) of whatever kind or nature, which arise directly or indirectly out of or in connection with any allegation, claim, or charge that Buyer’s Specifications or Madre’s use thereof constitutes an infringement of any patent or patent right, copyright, trademark, or other proprietary right or interest of any other party. Buyer shall, upon Madre’s request, assume and pay for the defense of Madre’s against any such allegation, claim, or charge. Buyer shall promptly notify Madre’s of any action or proceeding commenced against Buyer with respect thereto. Madre’s shall have the right to be represented in such matters by additional counsel of Madre’s choice, acting at Madre’s expense. In the event of any such allegation of infringement, Madre’s may also cancel any Purchase Orders from Buyer without obligation or liability to Madre’s. Madre’s shall retain exclusive ownership of all right, title, and interest in and to all of Madre’s intellectual property, and Madre’s sale of the Deliverables to Buyer does not grant or confer upon Buyer or any other person any express or implied license in or to any of Madre’s intellectual property.

16. PERMITS. Buyer represents and warrants to Madre’s that it has all necessary permits and licenses necessary to permit the lawful purchase and use of the Deliverables and to make any subsequent resale of the Deliverables.

17. LIMITED WARRANTY. Madre’s warrants that Deliverables (i) that consist of food products will not be adulterated or misbranded within the meaning of the Food Drug and Cosmetic Act, as amended and (ii) shall be free from faulty workmanship and defective materials, provided Madre’s shall not be responsible for any defect in quality attributable to Buyer’s Specifications, such as Buyer’s specifying the ingredients to be used in or the means or methods used by Madre’s in producing any Deliverables. If a “best by” date is indicated on the Deliverables, the foregoing warranty shall expire on the indicated “best by” date. If a “best by” date is not indicated, in the case of powdered or dehydrated products, the foregoing warranty shall be limited to a six-month (6-month) period commencing on the date of shipment, in each case provided that the Deliverables has been properly cared for by Buyer, and provided that the Buyer promptly notifies Madre’s in writing of any warranty claim hereunder within said warranty period. In the event any Deliverable fails to meet the foregoing warranty within said warranty period, Madre’s sole obligation shall be, in its sole discretion, to either correct the matter or replace the non-conforming Deliverables. Madre’s shall not be liable for any problems with any Deliverables resulting from any alterations to any Deliverables made by the Buyer or any other act or omission of the Buyer or any third party. The foregoing warranties provided by Madre’s are the only warranties provided by Madre’s with respect to Deliverables, and may be modified or amended only by a written instrument signed by an authorized officer of Madre’s. EXCEPT FOR THESE EXPRESS WARRANTIES, MADRE’S MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE OR DESIGN. Any sample or literature provided to Buyer is to illustrate the general type of goods and not an affirmation that the Deliverables will conform. No employee or representative of Madre’s has authority to bind Madre’s to any representation, affirmation, or warranty not specifically included herein.

18. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary contained herein, Madre’s aggregate liability in connection with the Sale or provision of any Deliverables, regardless of the form of action giving rise to such liability (whether in breach of warranty, contract, negligence, strict liability or any other theory in contract, tort or otherwise), shall not exceed the amount actually paid by Buyer to Madre’s for such Deliverables. IN NO EVENT SHALL MADRE’S BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF MADRE’S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. All remedies of Buyer shall be limited exclusively and in lieu of any and all other remedies to those contained in these terms and conditions.

19. ADVICE. Madre’s assumes no obligation or liability for any advice provided by Madre’s respecting the use of Deliverables or for any results occurring from Buyer’s application of such advice.

20. CONFIDENTIAL INFORMATION. The terms of any Purchase Orders from Buyer to Madre’s shall be kept confidential. Technical information contained in recipes, ingredients, plans, drawings, specifications, photographs, and other documents disclosed or furnished by Madre’s in respect of any Deliverables constitutes confidential and proprietary property of Madre’s. In the absence of express prior written permission of Madre’s, Buyer shall hold all such confidential and proprietary information in confidence, and Buyer shall not share such confidential information with anyone outside its organization, and Buyer may not sell or dispose of any portion thereof. Buyer shall not issue any publicity or advertising relating to Purchase Orders, Deliverables, or Buyer’s relationship with Madre’s without Madre’s prior written consent. In the event of any breach of confidentiality by Buyer, Madre’s shall be entitled to all remedies available at law and in equity, including the recovery of any special, consequential, or indirect damages, lost profits, and/or the imposition of injunctive relief.

21. DEFAULT; INDEMNIFICATION. If Buyer shall fail to pay all or any part of the sums due or to become due to Madre’s, fail to comply with these terms and conditions, fail to keep or perform any of Buyer’s obligations, become insolvent or become a party to any federal or state insolvency proceeding or receivership, or become a judgment debtor, at Madre’s option, any sum due or to become due to Madre’s may become immediately due and payable in full. Buyer shall indemnify and hold harmless Madre’s from and against each and every Loss incurred or suffered by Madre’s which are or are claimed to be in any manner, directly or indirectly, in whole or in part, caused, contributed to, or occasioned by reason of Buyer’s, its employees’, agents’, or representatives’ default or breach of any representation, warranty, obligation, or covenant of Buyer contained in any Purchase Order, or Buyer’s performance or failure to perform hereunder, or its negligence, whether active or passive, and without limiting Buyer’s liability, the foregoing shall include injury to or death of any person or persons and damage to or loss of property. Concurrently, or in the alternative, Madre’s may at its option, in addition and without prejudice to its other lawful rights and remedies (i) defer further shipments of Deliverables until each default has been corrected to Madre’s satisfaction, or (ii) elect not to make any further shipments of Deliverables, and/or (iii) exercise any other remedies available under applicable law. Waiver of any default shall not be a waiver of any other subsequent default. No course of conduct, nor any delay of Madre’s in exercising any rights, nor Madre’s acceptance of a payment from Buyer with knowledge of an existing default or breach, shall waive any rights of Madre’s or be deemed a modification of any Purchase Order.

22. RIGHT OF TERMINATION. Madre’s, at any time upon notice to Buyer, may terminate or reduce its obligations to deliver Deliverables. In such event, Buyer shall pay for all product shipped even if less than Purchase Order quantity. Buyer shall have no claim for damages, compensation, loss of profit, allowance, or otherwise by reason of, or directly or indirectly arising out of any action taken or notice given by Madre’s under or pursuant to the provisions hereof. Purchase Orders may be cancelled by Buyer only with the written acceptance of Madre’s and upon Buyer’s payment for any and all expenses and other losses and damages incurred by Madre’s as a result of such cancellation, including Madre’s out-of- pocket costs, overhead, and anticipated profit.

23. FINANCIAL RESPONSIBILITY. Buyer warrants that it has and will at all times maintain and, upon request by Madre’s, show that it has sufficient working capital and financial ability to perform and complete its obligations herein. Buyer warrants to Madre’s that it is not insolvent within the meaning of the Federal Bankruptcy Laws and the laws of the states in which it conducts its business. In addition to any and all other rights and remedies which Madre’s may have pursuant to the law of contracts or at common law, Madre’s reserves the right to terminate its obligations, without liability, in respect of any undelivered Deliverables if (i) Buyer shall become insolvent or bankrupt, (ii) Buyer shall make any general assignment for the benefit of its creditors, (iii) any trustee or receiver is appointed of any substantial part of Buyer’s assets, or (iv) Buyer shall be adjudicated as bankrupt.

24. FORCE MAJEURE. Madre’s shall not be liable for any failure or delay in delivery or otherwise performing its obligations hereunder with respect to any goods or services being purchased if such failure or delay is caused by a strike, lockout, labor dispute, accident, war, act of terrorism, act of God, fire, flood, or other casualty or cause beyond Madre’s reasonable control.

25. ENTIRE AGREEMENT. These terms and conditions, together with the applicable Specifications, constitutes the sole and entire agreement between Madre’s and Buyer with respect to the subject matter hereof, and all prior or contemporaneous understandings or agreements, oral or written, are merged herein. No subsequent changes or modifications of these terms and conditions are binding upon Madre’s unless accepted by Madre’s in writing. Buyer expressly waives all provisions contained in correspondence, forms, or other writings relating to the Sale of the Deliverables which negate, limit, extend, or conflict with the provisions hereof. In the event any term or provision hereof shall be deemed unenforceable, the remaining terms and conditions shall remain in effect to the fullest extent possible.

26. CONTROLLING LAW; JURISDICTION. These terms and conditions and the transaction to which these terms and conditions relate, shall be governed by and construed in accordance with the laws of the State of Arizona without effect given to its choice of law provisions. All disputes between Madre’s and Buyer relating hereto shall be resolved exclusively in the state or federal courts located in Mohave County, Arizona. Buyer consents to the personal jurisdiction of such courts.

27. ASSIGNMENT. Buyer may not assign or transfer any right or interest in or to these terms and conditions and/or the transaction to which these terms and conditions relate, to any third party whatsoever without the prior written consent of Madre’s.

28. NOTICES. Any and all notices required to be given hereunder shall be in writing and hand delivered (including by commercial courier), with an appropriate receipt thereof obtained, or sent by United States certified mail, return receipt requested, to the addresses of the respective parties set forth on the face hereof, or to such other address as either party may designate to the other by written notice for such purpose from time to time.

29. NON-WAIVER. Madre’s exercise or failure to exercise or enforce any right or remedy granted or provided by these terms and conditions or its acceptance of or payment for any Deliverables shall not be deemed as or construed to be a waiver of any right or remedy it may have for Buyer’s then existing or subsequent default or breach of any representation, warranty, obligation, or covenant applicable to a Purchase Order.

These Terms and Conditions may be revised from time to time by Madre’s. If revised, Madre’s will post the revised Terms and Conditions on Madre’s applicable website, and the revised version will be effective as of the date stated at the top of such Terms and Conditions. Buyer is directed to read the Terms and Conditions referenced in each subsequently issued Order that Buyer receives because by accepting such Order after a revised version of the Terms and Conditions has been posted and becomes effective, Buyer will be deemed to have accepted the revised version.