Gamer Procurement Standard Terms & Conditions

THIS STANDARD TERMS AND CONDITIONS AGREEMENT (these “Standard Terms and Conditions”), effective as of June 1, 2024 (“Effective Date”) is by and between the “Supplier” identified on the Purchase Order to which these Terms and Conditions are attached or referenced therein, and Gamer Packaging, Inc., a Minnesota corporation, whose principal office is located at 330 2^nd Ave South, #895, Minneapolis, MN 55401 (“Gamer”).

A.        Gamer is engaged in the business of procuring and reselling packaging goods to its customers (“Customers”) throughout the world.

B.        From time to time Gamer will issue Purchase Orders for packaging goods (“Products”) and related services.

C.        Gamer and Supplier desire to enter into these Standard Terms and Conditions for the purpose of, among other things, agreeing upon the general terms and conditions governing the relationship between Gamer and Supplier for transactions between them.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Gamer and Supplier agree as follows:

1. Controlling Terms
   1. These Standard Terms and Conditions are incorporated by reference into all Purchase Orders that shall be entered into between Gamer and Supplier, or issued by Gamer to Supplier, on or after the Effective Date. The parties agree that, unless otherwise defined herein, all terms used herein shall have the meanings ascribed to them in the Purchase Order. The terms “herein,” “hereto,” “hereof,” and “hereunder” shall mean these Standard Terms and Conditions and the Purchase Order. Unless otherwise directed by Gamer, all contacts with respect to each Purchase Order must be made through the Purchasing Agent whose name appears on the Purchase Order. Any work performed or other action taken under any Purchase Order, in accordance with instructions of any individual other than said Purchasing Agent, shall be at Supplier’s risk and without recourse to claim for reimbursement.

2. Acceptance Limited – Additional or Different Terms Deemed a Counteroffer
   • Acceptance of each Purchase Order must be made in accordance with its exact terms. If additional or different terms are proposed in the acceptance (whether contained in any proposal, estimate, quotation, acknowledgement, invoice, packing slip, bill of lading, or other document used by Supplier) such acceptance shall be deemed a rejection of the Purchase Order and construed as a counteroffer. No binding agreement shall come into existence without the written consent of Gamer’s Purchasing Agent to such counteroffer. Any attempt to vary any of the terms of the Purchase Order shall be deemed a material alteration. Any proposed terms in Supplier’s acceptance of Gamer’s Purchase Order, which add to, vary from, or conflict, with the terms of the Purchase Order or the terms and conditions contained herein are herby objected to. Supplier will be deemed to have assented to all terms and conditions contained herein if any part of the Products covered by the Purchase Order are shipped or any part of the services rendered.

3. Product Orders
   1. Gamer will request Products to be manufactured and supplied (“Orders”) from Supplier by delivery of a Purchase Order (“PO”) to Supplier, and Supplier shall acknowledge receipt of each PO promptly and shall use commercially reasonable efforts to accept such POs.
      1. In the event that Gamer submits a PO to Supplier and does not receive a response within a period of ten (10) business days from the date of submission, such lack of response shall be deemed as tacit approval and acceptance by Supplier of such PO. This tacit approval shall be binding on Supplier, and Gamer may proceed with the PO as if it had been expressly approved by Supplier.
   2. Supplier shall fill such Orders within the agreed-upon time frame, and ship to Gamer’s specified location(s) or make Products available on the date indicated on each Order pursuant to the terms and conditions herein. Supplier shall produce only the volume of Products as is reasonably necessary to meet the Orders placed by Gamer based upon the PO issued by Gamer hereunder in accordance with the terms herein. Notwithstanding the foregoing, Supplier shall be entitled to produce and deliver Products with the allowed variation of two- and one-half percent (±2.5%) of the quantities ordered by Gamer.
   3. Supplier shall provide a Certificate of Conformance (“CoC”) with each shipment of each Order. A Certificate of Conformance is an official document that confirms a Product meets agreed-upon standards and provides essential information about the Product’s specs, performance, and quality. Supplier shall adhere to transportation and secondary packing requirements as agreed upon by the Parties or in accordance with industry standards for similar goods. The Supplier bears responsibility for ensuring that the secondary packing requirements conform to intermodal transit standards, thereby facilitating undamaged delivery of Products. Gamer shall inspect the Products upon receipt and notify Supplier of any damages, defects, or non-conformities within a reasonable period.
   4. Within five (5) business days after Supplier’s receipt of any request to change an Order by Gamer, Supplier shall notify Gamer as to whether Supplier can meet the requirements of such changed Order. Supplier shall provide notification as rapidly as possible. Supplier shall use commercially reasonable efforts to accommodate any and all changes requested by Gamer to any previously placed Orders. If Supplier can meet requested changes and there is an additional cost for such performance, Supplier shall provide Gamer with an estimate of such cost and Gamer will determine whether to accept the additional cost or to cancel the change order. In the event Gamer changes an Order making certain Products obsolete, then Gamer will purchase from Supplier the obsolete Products at the then-current fees for the obsolete Products, provided that Gamer will not be obligated to purchase Products in excess of the quantities ordered by Gamer.
   5. During transport of Products after a sale has been completed but before delivery has occurred, the Supplier bears the risk of loss. In the event that Products are lost or destroyed in transit, the Supplier has the responsibility to provide substitute Products to fulfill the terms of the sale.
   6. Supplier expressly represents and warrants that it has a risk mitigation process to ensure the on-time delivery of all Products. Time is of the essence. In the event Supplier fails to deliver an Order within two (2) business days of the delivery date specified in the applicable PO (“Delivery Date”), Supplier shall: (i) promptly notify Gamer, (ii) use commercially reasonable efforts to mitigate any damages to Gamer, and (iii) reimburse Gamer for any claims caused by late delivery at a rate of $1,500 per hour.
   7. Supplier shall provide pending PO reports. Unless otherwise agreed, Supplier agrees to store Gamer inventory for up to one (1) month from the date of production at no charge. At the expiration of this period, Supplier may invoice Gamer for such inventory at the then-current price, and Gamer will take delivery of such inventory within twenty (20) days of the invoice.
   8. Any estimates, forecasts, or projections of Gamer’s future volume or quantity requirements for the Products are estimated volume projections only. Volume projections are provided by Gamer solely for Supplier’s informational purposes and do not constitute a commitment by Gamer to purchase the specified quantities. Gamer’s actual Order requirements will be specified in the applicable PO. Supplier acknowledges that volume projections, like any other forward-looking projections, are based on a number of economic and business factors, variables, and assumptions, some or all of which may change over time, and may or may not be accurate at the time they were made or later on. Gamer makes no representation, warranty, guaranty, or commitment of any kind or nature, express or implied, regarding any volume projection.
   9. When requested by Gamer, services (“Services”) related to manufacturing, sourcing, storage and shipping the Products, technical assistance and the construction of samples and testing “Deliverables” will collectively refer to all Products and Services delivered by Supplier to Gamer hereunder.

4. Pricing and Payment
   1. As of the date of confirmation respective of each PO submitted by Gamer, the fees for Products, including all services, expenses, freight, applicable sales, use and all other charges and taxes required to be paid by Supplier, and all other costs of Supplier required for Supplier’s provision of Products (the “Fees”) shall be firm. Any increase in Fees shall be subject to Gamer’s written approval.
   2. Supplier shall deliver a written invoice to Gamer for Products upon each shipment pursuant to an Order. Suppliers invoices will identify the Products shipped, the quantity and pricing for such Products, and any other information reasonably requested by Gamer. Supplier shall invoice Gamer, and Gamer will pay Supplier in U.S. Dollars, all undisputed invoiced amounts after the Supplier’s provision of applicable Products.

5. Representations & Warranties
   1. Supplier shall comply fully with all applicable requirements of U.S. immigration law and related laws, including (but not limited to) verification of the employment eligibility of each of Supplier’s employees (“Employees”) who work in the United States. Supplier shall take all steps necessary to obtain and maintain appropriate immigration classification or status for such Employees. Supplier shall ensure that its Employees comply fully with the terms and conditions of any immigration classification or status. Supplier shall ensure that any subcontractor Supplier uses to perform services hereunder likewise complies fully with the requirements of U.S. immigration law and related laws, to the same extent as this section requires of Supplier. Supplier shall indemnify and hold Gamer and Gamer’s directors, officers, shareholders, trustees, partners, members, beneficial owners, agents, employees, attorneys, successors, assigns, and Customers (collectively, the “Gamer Indemnitees”) harmless from and against any and all damages, liens, fines, penalties, liabilities, losses, costs, and expenses (including without limitation, reasonable attorneys’ fees) directly or indirectly incurred by any Gamer Indemnitee as a result of any breach by Supplier, Supplier’s subcontractor, or any personnel of Supplier or Supplier’s subcontractor of the obligations set forth above.
   2. Supplier shall abide by the requirements of 41 C.F.R. §60-741.5(a) and 41 C.F.R. §60-300.5(a), prohibiting discrimination against qualified individuals on the basis of disability and protected veterans, respectively. Supplier shall also abide by the requirements of Executive Order 11246 and 41 C.F.R. §60-1.4(a), ensuring equal employment opportunities regardless of race, color, religion, sex, or national origin.
   3. Supplier warrants that all samples, prototypes or Product representations provided to Gamer shall conform to the specifications and quality standards agreed upon by the Parties.
      1. Supplier shall send to Gamer (via one or more email addresses designated by Gamer) a confirmation email regarding any request for samples or specification. Upon receipt of such, Gamer will use commercially reasonable efforts to approve or request modifications to such sample or specification within a reasonable amount of time. If Gamer requests any modifications to the sample or specification, Supplier shall promptly make such modifications and resubmit such sample or specification via the process outlined above. All approvals of samples or specification will be in writing (which writing may be via email).
   4. The Supplier expressly represents and warrants that all services performed hereunder will be executed in a professional, skillful, and craftsman like manner. Under no circumstances will workmanship be less than standards for industry practices for the kind of services performed.
   5. Supplier expressly represents and warrants that in addition to all warranties provided by law and included hereunder, Products will
      1. conform to Gamer specifications (“Specifications”), drawings, samples, and/or other descriptions furnished by Gamer or agreed to by Supplier
      2. are made from good material and workmanship which shall meet or exceed industry standards for like goods, and
      3. are free from defects in materials and workmanship.
   6. The Supplier expressly represents and warrants that if Products expire or the Product’s performance is reduced over time, then all such Products must retain 85% of the remaining shelf-life, at the time of sale to Gamer.
   7. In addition to Supplier’s indemnification obligations hereunder, in the event of any breach of this warranty, Supplier shall: (i) deliver to Gamer (at Supplier’s sole cost and expense) replacement Products in which all defects have been corrected; or (ii) immediately perform all necessary inspections and testing based on circumstances of the breach. If Supplier fails to perform the inspections and testing or fails to provide replacement Products within thirty (30) days following notice of such, Gamer may recover from Supplier all amounts paid to Supplier for the non-conforming or defective Product.
   8. These representations and warranties will survive any inspection, acceptance, or payment by Gamer and will be for the benefit of Gamer, its successors, Customers, and assigns. Supplier shall provide all Products to Gamer free of any liens or encumbrances.

6. Intellectual Property Rights
   1. Each Party shall retain all rights, title, and interest in its respective intellectual property. Nothing in this Agreement shall be construed to grant any license or rights to use the other Party’s intellectual property.
   2. Excluding any graphics and artwork provided by Gamer, Supplier represents and warrants to Gamer and Gamer’s customers that (i) the Products do not and will not infringe or violate any patent, copyright, trademark, service mark, trade secret, non-disclosure obligation, or other intellectual property or proprietary right of any other party, (ii) Supplier’s past and current use of the Products does not infringe upon or violate any such right, and (iii) Gamer’s resale of the Products will not infringe upon or violate any such right. Supplier further represents and warrants that Supplier has no knowledge of any actual or threatened claims or any licenses or other charges or encumbrances of any kind or nature (i) upon the Products or (ii) that could affect in any way the transactions contemplated hereunder.
   3. Supplier agrees not to publish, release, or publicize in any medium, whether print or electronic, or otherwise disclose any information pertaining to Gamer’s or Customer’s intellectual property. Furthermore, Supplier acknowledges that any disclosure of information under this Agreement does not grant Supplier any right or license to utilize any of Gamer’s or Customer’s Confidential Information, trademarks, copyrights, patents, or other intellectual property owned or controlled by Gamer or Customers, whether presently or in the future. Additionally, Supplier shall refrain from using Gamer’s or Customer’s name, trademarks, trade names, or trade dress for any purpose without prior express written permission from Gamer. Violation of these provisions may result in legal action and remedies as stipulated by law.

7. Indemnification
   1. Supplier agrees to indemnify, defend, and hold harmless Gamer Indemnitees from and against any direct damages, liens, fines, penalties, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) arising out of or relating to any third party causes of action, suits, or claims (collectively “Claims”) arising out of and directly caused by: (i) any actual or alleged infringement or violation of any patent, trademark, copyright, or other intellectual property or proprietary right or any unfair competition relating to the Products; (ii) the Product determined to be non-conforming with the Specifications; or (iii) any breach by Supplier of any term or condition of a PO or these Standard Terms and Conditions. Gamer reserves the right to participate in any such claim brought against Gamer at Supplier’s expense. Gamer agrees to provide Supplier with prompt notice of any such claim (provided Gamer has received written notice thereof) and shall reasonably cooperate with Supplier in the defense of such claim or action.
   2. Supplier shall be responsible for all costs and expenses associated with any recall of Product directly caused by Supplier’s breach of its obligations hereunder. If the recall of a Customer product also arises from a defect inherent to Customer’s product, of which Supplier’s Products indirectly caused by Supplier’s breach of its obligations hereunder, Supplier and Gamer will negotiate in good faith an appropriate allocation of the recall costs between Supplier and Gamer.

8. Force Majeure
   • In the event of a Force Majeure event, defined as an occurrence beyond the reasonable control of the Parties including, but not limited to, acts of God, war, terrorism, fire, flood, pandemic, epidemic, government action, or any other similar event beyond the controls of the Parties (“Force Majeure Event”), the affected Party shall promptly notify the other Party in writing of such event and its expected duration. The affected Party shall be excused from performance of its obligations hereunder to the extent such performance is prevented or delayed by the Force Majeure Event. The affected Party shall use reasonable efforts to mitigate the effects of the Force Majeure Event.

9. Nonperformance Cease and Desist
   1. If the Supplier (i) becomes insolvent, (ii) files for bankruptcy protection, (iii) sells counterfeit products under the Manufacturer’s brand, (iv) becomes a direct competitor to Gamer, or (v) fails to meet the quality, schedule, or quantity specified by any confirmed Purchase Order (“PO”) submitted by Gamer, not due to any act by Gamer, such failure shall constitute a material breach of this Agreement. In the event of such a material breach, Gamer may (i) terminate this Agreement for cause, without liability, (ii) cancel any undelivered POs or portions of any undelivered PO, and (iii) claim damages. Upon termination, all rights and obligations under this Agreement shall cease, except for those provisions that expressly survive termination, including but not limited to sections 5, 6, 7, 10, 11, and 13.

10. Confidentiality
    1. Supplier and Gamer anticipate that each party will provide Confidential Information to the other for the purpose of the sale and distribution of Products manufactured by Supplier by Gamer to Customers (the “Purpose”).  Each Party shall be a “Disclosing Party” of its Confidential Information and a “Receiving Party” of a Disclosing Party’s Confidential Information.  The obligations of both Parties with respect to such Confidential Information shall be set forth as follows:
       1. Confidential Information shall mean any and all nonpublic technical and non-technical information disclosed orally, in writing/ electronically, or visually by the Disclosing Party to the Receiving Party, including but not limited to information relating to a PO, Products, Specifications, costs, existing and prospective Customers, processes, equipment, development efforts, design details and engineering, procurement requirements, purchasing, manufacturing, employees, business and contractual relationships, business forecasts, sales and merchandising, services, prospective products and services, projections, marketing plans, and packaging.
       2. Confidential Information shall not include any information which, in the form disclosed by the Disclosing Party, is:
          1. information which at the time of disclosure is published or is otherwise in the public domain;
          2. information which after disclosure becomes part of the public domain otherwise than through a breach hereunder by the Receiving Party;
          3. information which was known to the Receiving Party prior to receipt from the Disclosing Party, provided such prior knowledge can be substantiated by documentary evidence;
          4. information disclosed to the Receiving Party by a third party having the right to do so; or
          5. information which can be substantiated by documentary evidence as having been independently developed by the Receiving Party without use of the Confidential Information.
       3. The legal rights relating to the ownership of intellectual, industrial, or artistic work, including patents (inventions), designs (graphics), trademarks (names or marks used to identify goods), and copyrights (rights of authorship) disclosed by the Disclosing Party is the exclusive property of the Disclosing Party.
       4. The Receiving Party hereby agrees to protect and keep in strictest confidence and not use for itself or disclose to any third party, other than Gamer to Customers, any Confidential Information disclosed by the Disclosing Party during the course of their dealings with each other, except as hereinafter provided.
          1. Confidential Information may be disclosed only to such employees of the Receiving Party who reasonably require access to such information for the Purpose or by Gamer to Customers.
          2. Confidential Information may be disclosed by a Receiving Party in response to a valid order by a court or other governmental body, or if it is otherwise required to be disclosed by law, or is necessary to establish the rights of either party under this Agreement, provided that in the event the Receiving Party is so required to disclose the Confidential Information, it shall promptly provide notice of such request or requirement so that Disclosing Party may seek an appropriate protective order or take other action as it deems appropriate.
       5. Supplier agrees not to directly solicit sales from Customers introduced by Gamer.
       6. At the request of the Disclosing Party, the Receiving Party shall return or destroy all copies of materials containing Confidential Information upon request by the Disclosing Party. The Receiving Party may maintain a copy of the Disclosing Party’s Confidential Information in its Legal Department files for archival purposes, and the return or destruction requirement shall not apply to electronically archived records; provided that with respect to copies maintained for such purposes or in electronically archived records, the confidentiality and non-use provisions of this Confidentiality section shall continue to apply to such Confidential Information.

11. Damages
    • In addition to all warranties set forth herein and provided by law and equity, Supplier agrees that Supplier shall promptly replace without charge, or refund the full price of, Product that does not conform to the warranties set forth by the Warranties section.  In the event that one or part of the warranties are not fulfilled, Supplier shall provide at its own expense all the technical, labor, and financial means to correct the deficiency, at no additional expense to Gamer.  If Gamer incurs any costs as a result of Product not conforming to the warranties, then Supplier shall reimburse Gamer for such reasonable and ordinary costs, which may include, without limitation, cost of freight, costs of recovery and disposal of non-conforming Products, manufacturing and production downtime, labor and administrative costs, and documented charges received from Customers arising from the breach of warranty. In the event of urgent necessity where damages would be inadequate, Gamer may seek injunctive relief to compel or restrain Supplier, as well as such other relief as may be granted by a court of competent jurisdiction.

12. Assignment & Non-Waiver
    1. Gamer may, at its discretion, transfer or assign its warranty and indemnification rights to its Customers. However, Supplier may only transfer or assign any of its liabilities, rights, or obligations hereunder under mutually agreed upon conditions in writing between Gamer and Supplier. Any such assignment or transfer by Supplier shall not relieve Supplier of its obligations hereunder unless expressly agreed to in writing by Gamer.
    2. No failure or delay by either party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. Any waiver of any provision must be in writing and signed by the waiving party. A waiver of any provision on one occasion shall not be construed as a waiver of any other provision or of the same provision on any other occasion.
13. Governing Law and Dispute Resolution
    1. All of the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of Minnesota, except that Minnesota’s choice of law and conflicts of law rules shall not apply.
    2. Any dispute, controversy, or claim arising out of or relating to a PO, including the breach, termination, or validity thereof, shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator appointed in accordance with the said rules. The place of arbitration shall be Minneapolis, Minnesota, USA. The language of the arbitration shall be English. The decision of the arbitrator shall be final and binding upon both Parties. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.