1. Unless excluded or modified (section 41 -02-33), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section, the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. 2. Goods to be merchantable must be at least such as: a. Pass without objection in the trade under the contract description; b. In the case of fungible goods, are of fair average quality within the description; c. Are fit for the ordinary purposes for which such goods are used; d. Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; e. Are adequately contained, packaged, and labeled as the agreement may require; and f. Conform to the promises or affirmations of fact made on the container or label if any. 3. Unless excluded or modified (section 41 -02-33), other implied warranties may arise from course of dealing or usage of trade.
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