THESE TERMS AND CONDITIONS OF SALE (these “Terms”) apply to all sales of goods processed, sold, and/or delivered (collectively, the “Goods”) through or by HOSPITALITY FOOD DISTRIBUTION LLC, a Florida limited liability company, doing business as “FOODSB2B” (“Seller”), to any purchaser of the Goods (each, a “Customer”) named in the Order (as defined below) or other similar document issued by Seller in connection with the sale.
1. ORDERS
Customer shall order the Goods in accordance with Seller’s then-current ordering procedures. Unless otherwise specified by Seller, Customer may submit orders via Seller’s website or mobile application (collectively, the “Website”), or otherwise in writing (including via e-mail and all forms of electronic communication, such as instant message, SMS text, WhatsApp, or other messaging applications), or through purchase order documentation issued by Seller (each, an “Order”).
Any Order placed with Seller—whether through the Website or through any other means, including phone, text message, WhatsApp, email, instant message, purchase order documentation, or other written or electronic communications—constitutes Customer’s agreement to and acceptance of these Terms.
2. OFFER AND ACCEPTANCE
Each Order constitutes a separate offer to purchase Goods. No Order shall be binding upon Seller until accepted. Seller’s written confirmation (including e-mail or any form of electronic communication), receipt of payment, commencement of work, or shipment of any portion of the Goods, whichever occurs first, constitutes acceptance of the Order.
All Orders incorporate these Terms whether or not separately referenced in the Order or any invoice. Placing an Order, or accepting delivery of, retaining, or using any portion of the Goods, constitutes acceptance of these Terms.
The Order and these Terms (collectively, this “Agreement”) constitute the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, and communications. Seller expressly rejects any of Customer’s general terms and conditions of purchase. Fulfillment of Customer’s Order does not constitute acceptance of any Customer terms.
If a written contract signed by both parties exists covering the sale of the Goods (“Master Agreement”), the Master Agreement shall prevail in the event of any inconsistency.
3. DELIVERY
Unless otherwise mutually agreed in writing, Seller shall deliver the Goods to the location specified by Customer in the Order (the “Delivery Point”) using Seller’s standard packaging and shipping methods.
Goods will be delivered within a reasonable time after receipt of Customer’s Order, subject to availability. Any delivery dates provided are estimates only. Seller shall not be liable for delays, loss, or damage in transit.
Seller will use commercially reasonable efforts to comply with Customer’s requested method of transportation but may use an alternate method—even if at a higher cost to Customer—if necessary to ensure product quality or safety. Seller will notify Customer of any such change.
4. INSPECTION
Seller is not the manufacturer of any Goods sold hereunder.
Customer, at its sole expense, may inspect the Goods at the Delivery Point within twelve (12) hours after delivery of fresh Goods, or within twenty-four (24) hours after delivery of frozen Goods (the “Inspection Period”).
During the Inspection Period, Customer may reject and return, or hold at its own risk and expense, any Goods that:
(a) do not conform to the Guarantee;
(b) do not conform to Customer specifications included in the Order; or
(c) violate applicable law.
Customer must provide documentation of any non-conformity requested by Seller. If Seller determines that the Goods are non-conforming, proper notice was given, and the non-conformity was not caused by Customer, Seller will either:
(i) replace the non-conforming Goods at no additional charge, or
(ii) reimburse Customer for amounts paid for the non-conforming Goods.
Customer bears all costs associated with unpacking, examining, storing, repacking, reshipping, or returning non-conforming Goods.
Failure to notify Seller of non-conformities within the Inspection Period:
(a) constitutes acceptance of the Goods;
(b) waives Customer’s rights and remedies; and
(c) relieves Seller of further obligations.
Except as provided above, all sales are final, and Customer has no right to return Goods.
5. PRICE; PAYMENT
Customer shall purchase the Goods at the prices (“Prices”) displayed on the Website at the time of the Order, or such other price as agreed in writing.
For Orders placed through the Website, payment must be made in full at checkout. For all other Orders, payment shall be made as specified by Seller in the Order.
Late Fees; Grace Period; When Payment Is Deemed Received. A grace period of six (6) calendar days after the invoice due date applies. If any amount remains unpaid after such grace period, the invoice will be considered overdue beginning on the seventh (7th) calendar day after the due date. A one-time late fee of twenty-five dollars ($25.00) will be assessed on the seventh (7th) day after the due date. In addition, if any amount remains unpaid after thirty (30) days from the invoice due date, a late fee equal to three percent (3%) of the original invoice amount will be assessed for each full month the invoice remains unpaid thereafter until the outstanding balance is paid in full. Late fees may be added to the next invoice or billed separately at Seller’s discretion. Customer shall reimburse Seller for all costs of collection, including attorneys’ fees, whether or not suit is filed.
For purposes of calculating due dates, grace periods, and late fees, payment is deemed received only when funds have cleared and are available in Seller’s bank account. The date a check is written, dated, mailed, postmarked, or otherwise initiated does not constitute receipt of payment.
Customer may not reduce any payment by deductions or discounts without Seller’s prior written consent.
Seller may suspend or cancel Orders, or modify payment terms, if Customer fails to pay when due. Seller may require prepayment at its sole discretion.
If Customer’s account becomes past due or if Seller reasonably believes Customer’s ability to pay has become impaired, Seller may place any pending or future Orders on hold or in “Pending Release” status. Orders in Pending Release status will not be processed, fulfilled, shipped, or delivered until Customer’s account has been brought current or Seller receives satisfactory assurance of payment. Seller shall not be liable for any delay, cancellation, or refusal to release such Orders resulting from Customer’s failure to maintain the account in good standing.
Payments must be made in U.S. Dollars and may be made by ACH, accepted credit cards, or bank transfer.
All Prices exclude sales taxes, use taxes, excise taxes, or other similar charges imposed by any governmental authority. Customer is responsible for all such charges except taxes imposed on Seller’s income or property.
As collateral for payment, Customer grants Seller a security interest in all Goods purchased, including all proceeds, constituting a purchase money security interest under Florida law.
6. SELLER GUARANTEE; WARRANTIES DISCLAIMER
UNLESS OTHERWISE SPECIFIED OR AGREED, SELLER GUARANTEES AND WARRANTS THAT, AT THE TIME OF DELIVERY TO THE DELIVERY POINT, ALL GOODS WILL BE OF GOOD QUALITY, NOT ADULTERATED OR MISBRANDED WITHIN THE MEANING OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, AND SAFE FOR HUMAN CONSUMPTION IF PROPERLY COOKED (THE “GUARANTEE”).
EXCEPT AS PROVIDED ABOVE, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY, INCLUDING:
(a) ANY WARRANTY OF MERCHANTABILITY;
(b) ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; or
(c) ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY.
Customer acknowledges that it has not relied on any representation or warranty not expressly contained in these Terms.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL SELLER OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, INCLUDING LOST PROFITS OR DIMINUTION IN VALUE, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE.
SELLER’S AGGREGATE LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE GOODS GIVING RISE TO THE CLAIM.
8. TERM AND TERMINATION
This Agreement commences upon Seller’s acceptance of the Order and continues through Customer’s acceptance of the Goods.
Seller may terminate this Agreement immediately upon written notice if Customer:
(a) fails to pay when due;
(b) breaches any of these Terms; or
(c) becomes insolvent or subject to bankruptcy or similar proceedings.
Upon termination or expiration, Seller will invoice Customer for all outstanding fees and expenses for Goods ordered or delivered through the termination date.
Customer may not cancel any Order without Seller’s prior written consent. If Customer attempts to cancel or refuses to accept conforming Goods, all amounts owed become immediately due and payable, including:
• the full Order amount,
• any cancellation charges, and
• any fees or expenses incurred, including costs of raw materials or production related to the Order.
9. RECALL
If Customer becomes aware of any credible claim or potential claim of defect or tampering, Customer must immediately notify Seller and conduct, at its own expense, sufficient analyses to determine the validity and cause.
10. USE OF CUSTOMER TRADEMARK/NAME; PUBLICITY
By accepting these Terms, Customer agrees that Seller may, in its sole discretion, issue publicity materials, press releases, or make presentations regarding the existence of this Agreement and may use Customer’s name, trade name, trademarks, service marks, trade dress, or logos (or those of Customer’s affiliates), including on the Website, to identify Customer as a customer.
11. CONFIDENTIAL INFORMATION
All non-public or proprietary information disclosed by Seller to Customer is confidential and may not be disclosed or used except to perform this Agreement. Seller may seek injunctive relief for any breach. This section does not apply to information that is public, known to Customer before disclosure, or lawfully obtained from a third party.
12. FORCE MAJEURE
Seller shall not be responsible to the Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when, and to the extent, such failure or delay is caused by or results from acts beyond Seller’s control, including the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the control of Seller.
13. MISCELLANEOUS
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of Seller. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Seller operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.
Customer shall at all times comply with all laws applicable to the operation of its business, this Agreement, Customer’s performance of its obligations hereunder, and Customer’s use of the Goods. Without limiting the generality of the foregoing, Customer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods, and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law.
Customer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Customer without the prior written consent of Seller. Any purported assignment or delegation in violation of this is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
This Agreement benefits solely the parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
This Agreement is governed by, and construed in accordance with the laws of the State of Florida without giving effect to any conflict of laws provisions thereof. All legal proceedings shall be instituted in the state or federal courts of the State of Florida, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. EACH PARTY IRREVOCABLY WAIVES THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM, OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY THE OTHER, WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS, OR OTHER THEORIES OF LIABILITY.
All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Order, or to such other address for either party as that party may designate by written notice. All notices must be delivered by a nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.