FOODSB2B TERMS AND CONDITIONS OF SALE
THESE TERMS AND CONDITIONS OF SALE (these “Terms”) apply to all sales of goods processed, sold, and/or distributed (collectively, the “Goods”) through or by HOSPITALITY FOOD DISTRIBUTION LLC, a Florida limited liability company (“Hospitality Foods”) or any division, subsidiary, or affiliate of Hospitality Foods (each, an “Affiliate”) to any purchaser of the Goods (each, a “Customer”) named in the Order (as defined below) or other similar document issued by Hospitality Foods in connection with the sale.
1. ORDERS
Customer shall order the Goods in accordance with Hospitality Foods’s then-current ordering procedures. Unless otherwise specified by Hospitality Foods, Customer may submit orders via Hospitality Foods’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 or SMS text), or through purchase order documentation issued by Hospitality Foods (each, an “Order”).
2. OFFER AND ACCEPTANCE
Each Order constitutes a separate offer to purchase Goods. No Order shall be binding upon Hospitality Foods until accepted. Hospitality Foods’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. Hospitality Foods 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, Hospitality Foods shall deliver the Goods to the location specified by Customer in the Order (the “Delivery Point”) using Hospitality Foods’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. Hospitality Foods shall not be liable for delays, loss, or damage in transit.
Hospitality Foods 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. Hospitality Foods will notify Customer of any such change.
4. INSPECTION
Hospitality Foods 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 Hospitality Foods. If Hospitality Foods determines that the Goods are non-conforming, proper notice was given, and the non-conformity was not caused by Customer, Hospitality Foods 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 Hospitality Foods of non-conformities within the Inspection Period:
(a) constitutes acceptance of the Goods;
(b) waives Customer’s rights and remedies; and
(c) relieves Hospitality Foods 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 Hospitality Foods in the Order.
Interest on late payments accrues at 1.5% per month or the highest rate permitted by law. Customer shall reimburse Hospitality Foods for all costs of collection, including attorneys’ fees, whether or not suit is filed.
Customer may not reduce any payment by deductions or discounts without Hospitality Foods’s prior written consent.
Hospitality Foods may suspend or cancel Orders or modify payment terms if Customer fails to pay when due. Hospitality Foods may require prepayment at its sole discretion.
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 Hospitality Foods’s income or property.
As collateral for payment, Customer grants Hospitality Foods a security interest in all Goods purchased, including all proceeds, constituting a purchase money security interest under Florida law.
6. HOSPITALITY FOODS GUARANTEE; WARRANTIES DISCLAIMER
UNLESS OTHERWISE SPECIFIED OR AGREED, HOSPITALITY FOODS 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, HOSPITALITY FOODS 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 HOSPITALITY FOODS 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.
HOSPITALITY FOODS’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 Hospitality Foods’s acceptance of the Order and continues through Customer’s acceptance of the Goods.
Hospitality Foods 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, Hospitality Foods 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 Hospitality Foods’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 Hospitality Foods 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 Hospitality Foods 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 Hospitality Foods to Customer is confidential and may not be disclosed or used except to perform this Agreement. Hospitality Foods 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
Hospitality Foods shall not be liable for failure or delay caused by events beyond its reasonable control, including acts of God, natural disasters, epidemics, war, governmental actions, labor disruptions, power outages, lack of materials, transportation failures, or other force majeure events.
13. MISCELLANEOUS
These Terms may be modified only by a written agreement signed by an authorized representative of Hospitality Foods.
No waiver by Hospitality Foods is effective unless in writing. No failure to exercise rights constitutes a waiver.
Customer must comply with all applicable laws and maintain all necessary permits and certifications relating to the Goods.
Customer may not assign any rights or obligations under this Agreement without Hospitality Foods’s prior written consent.
The parties are independent contractors. Nothing herein creates a joint venture, partnership, agency, employment, or fiduciary relationship.
This Agreement benefits only the parties and confers no rights on third parties.
This Agreement is governed by Florida law. All legal actions must be brought in state or federal courts located in Florida. EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY.
All notices must be in writing and delivered by overnight courier or certified/registered mail to the address on the Order.
If any provision is deemed invalid or unenforceable, the remaining provisions remain in full force.