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.
- ORDERS.
Customer shall order the Goods in accordance with Hospitality Food’s then-current ordering procedures. Unless otherwise specified by Hospitality Foods, Customer may submit orders to Hospitality Foods via its website or mobile application (collectively, the “Website”), or otherwise in writing (including via e-mail and all forms of electronic communication (e.g. instant message, SMS text, etc.)), or through purchase order documentation issued by Hospitality Foods (each, an “Order”).
- 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 and all forms of electronic communication (e.g., fax, instant message, SMS text, etc.), receipt of payment, commencement of work, or shipment of all or any portion of Goods in connection with an Order, whichever occurs first, shall constitute acceptance of the Order. All Orders incorporate these Terms whether or not these Terms are separately referenced in the Order or any invoice. Placing an Order or accepting delivery of, retaining, or using all or any portion of the Goods sold by Hospitality Foods shall constitute acceptance of these Terms.
The accompanying Order and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its Order or such terms. Hospitality Foods expressly rejects Customer’s general terms and conditions of purchase, and fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions or serve to modify or amend these Terms. Acceptance of the Order by Customer is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Order. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods (“Master Agreement”), then the Master Agreement shall prevail to the extent of any inconsistency with these Terms.
- DELIVERY.
Unless otherwise mutually agreed in writing by the parties, Hospitality Foods shall deliver the Goods to the location specified by Customer in writing in the Order (the “Delivery Point”), using Hospitality Foods’s standard methods for packaging and shipping such Goods.
The Goods shall be delivered within a reasonable time after the receipt of Customer’s Order, subject to availability of the Goods. Any delivery dates provided by Hospitality Foods are estimates only and are subject to shipping variations and requirements. Hospitality Foods shall not be liable for any delays, loss, or damage in transit. Hospitality Foods will use commercially reasonable efforts to comply with Customer’s requests as to method of transportation, but Hospitality Foods reserves the right to use an alternate method of transportation, whether or not at a higher cost to Customer, if the method specified by Customer is deemed by Hospitality Foods to be unavailable or would compromise product quality or safety. In any such case, Hospitality Foods shall notify Customer of any such change.
- INSPECTION.
Hospitality Foods is not the manufacturer of any Goods sold hereunder. Customer, at Customer’s 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”). Customer may, within the Inspection Period, either reject and return to Hospitality Foods, or hold at Customer’s risk and expense, any Goods that: (a) do not conform to the Guarantee (as defined herein); (b) do not conform to any Customer specifications submitted to Hospitality Foods in writing in the Order; or (c) violate applicable law. Customer shall supply any documentation as to the non-conformity of such Goods as Hospitality Foods may request. If it is determined by Hospitality Foods that (a) such Goods are non-conforming, (b) Customer has provided proper notice, and (c) the non-conformity was not caused by Customer or due to misuse or handling after Hospitality Foods delivered the Product to Customer, Hospitality Foods will, in Hospitality Foods’s sole discretion, either (i) replace the non-conforming Goods at no additional charge to Customer, or (ii) reimburse Customer for amounts Customer paid for such non-conforming Goods. Customer shall bear all expenses and risks of unpacking, examining, repacking, storing, holding and/or reshipping, and returning any non-conforming Goods. Failure to notify Hospitality Foods of any non-conformities within the Inspection Period shall: (a) constitute acceptance of the Goods; (b) waive Customer’s rights and remedies in connection with the Goods; and (c) relieve Hospitality Foods of any further obligations in connection with the Goods. Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s exclusive remedies for non-conforming goods. Except as provided under this Section, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to Hospitality Foods.
- PRICE; PAYMENT.
Customer shall purchase the Goods from Hospitality Foods at the prices (the “Prices”) set forth on the Website at the date of such Order, or such other price as Hospitality Foods may agree in writing. For Orders placed through the Website, payment shall be made in full at checkout. For all other Orders, payment shall be made as specified by Hospitality Foods in the Order.
Customer will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Customer shall reimburse Hospitality Foods for any costs of collection on any past due sums, including court fees, out-of-pocket expenses, and attorneys’ fees, whether or not suit is commenced. Customer may not reduce any payment by any alleged discounts or other deductions without Hospitality Foods’s prior written consent. Hospitality Foods reserves the right to suspend, reduce, or cancel any Order, or change payment terms, if Customer fails to make any payment when due. Hospitality Foods reserves the right to require pre-payment in its sole discretion. All payments hereunder shall be in U.S. Dollars and made by AHA, accepted credit cards, or bank transfer.
All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Hospitality Foods’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Hospitality Foods a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code.
- 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”). UNLESS OTHERWISE STATED HEREIN, HOSPITALITY FOODS MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY HOSPITALITY FOODS, OR ANY OTHER INDIVIDUAL OR ENTITY ON HOSPITALITY FOODS’S BEHALF.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALL HOSPITALITY FOODS OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (a) WHETHER SUCH DAMAGES WERE FORESEEABLE, (b) WHETHER HOSPITALITY FOODS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (c) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. HOSPITALITY FOODS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO HOSPITALITY FOODS PURSUANT TO THIS AGREEMENT.
- TERM AND TERMINATION.
The Agreement shall commence upon Hospitality Foods’s acceptance of the Order and shall continue through Customer’s acceptance of such Goods, as may be further specified in the Order. In addition to any remedies that may be provided under these Terms, Hospitality Foods may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Upon expiration or termination of the Agreement, Hospitality Foods shall invoice the Customer for all outstanding fees and expenses incurred for Goods ordered or delivered under this Agreement through and including the date of any such termination or expiration.
In no event shall Customer have the right or ability to cancel any Order, either in whole or in part, without Hospitality Foods’s prior written consent, which may be withheld in Hospitality Foods’s sole and absolute discretion. Should Customer attempt to cancel any Order and/or refuse to accept any conforming Goods, then Customer shall be in default of its obligations under these Terms and any and all amounts owed in connection with such Order and/or Goods shall become immediately due and payable, including, but not limited to, the entire amount of the Order plus any cancellation charge incurred by Hospitality Foods and any expenses or fees incidental to such cancellation, including the cost of any raw or production materials purchased in furtherance of such order.
- RECALL.
Upon learning or receiving notice of a credible claim or potential claim of defect in, or tampering with, any Goods, Customer shall promptly notify Hospitality Foods and shall immediately conduct, at its expense, sufficient analyses of such Goods to reliably determine the accuracy of such claim and the cause of any such defect or tampering.
- USE OF CUSTOMER TRADEMARK/NAME; PUBLICITY.
By accepting these Terms, Customer agrees that Hospitality Foods may, in its sole discretion, issue any press release or other publicity materials, or make any presentation with respect to the existence of this Agreement or the terms and conditions hereof. Further, as part of such publicity, Hospitality Foods may publicize or use any name, trade name, service marks, trademarks, trade dress or logos of the Customer (or any of its affiliates) or identify the Customer (or any of its affiliates) as a customer on its Website.
- CONFIDENTIAL INFORMATION.
All non-public, confidential, or proprietary information of Hospitality Foods, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Hospitality Foods to Customer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Hospitality Foods in writing. Upon Hospitality Foods’s request, Customer shall promptly return all documents and other materials received from Hospitality Foods. Hospitality Foods shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
- FORCE MAJEURE.
Hospitality Foods shall not be liable or 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 Hospitality Food’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 Hospitality Foods.
- 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 Hospitality Foods. No waiver by Hospitality Foods of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Hospitality Foods. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Hospitality Foods operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Hospitality Foods precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Hospitality Foods.
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 Hospitality Foods. 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 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.