MORE THAN GOURMET, INC.
ORDER TERMS AND CONDITIONS
In the absence of a written agreement signed by Buyer (as defined below) and More Than Gourmet, Inc. (“Seller”), these terms and conditions (“Terms”) and those in Seller’s order acknowledgment (“Order Acknowledgment”, and together with the Terms, the “Contract”) govern the offer, sale and delivery of products or services (the “Products”) by Seller to buyer or its affiliates, principals, agents, franchisees, and distributors (the “Buyer”). By accepting Seller’s quotation or transmitting to Seller a purchase or confirmation order, delivery instruction, receipt, acknowledgement or similar document (oral, written or electronic) (each, an “Order”) or engaging Seller to perform any service, including tolling, distribution, or co-packing, Buyer evidences its agreement to be bound by this Contract.
- DELIVERY TERMS
- Order Placement. Each Order shall be placed at least one (1) business day before the requested delivery date; provided, however, that Seller shall not be deemed to have any obligation to deliver on any specific delivery date unless agreed to in writing by Seller. If an Order involves multiple deliveries at different times (“Volume Contract”), such Order shall indicate the specific volume of Product to be delivered and location for each delivery. Failure of Buyer to provide such Order does not relieve Buyer of its obligation to purchase 100% of the volume set forth in the Volume Contract.
- Producing or Shipping Point. Unless otherwise specified by Seller, Seller reserves the right to produce and ship all or any part of the Products in an Order from any of its facilities.
- Packaging. Any special packaging, loading, or bracing requirements shall be specified by Buyer in an Order. Seller will use commercially reasonable efforts to comply with such specifications and Seller’s costs for compliance with Buyer’s special requirements will be added as a line item on the Invoice (as defined below). If no special packaging, loading or bracing requirements are specified by Buyer, then Seller shall comply with industry standards for the method of transportation used for the Products.
- Product Delivery. Seller shall use diligent efforts to fill Orders within the delivery period requested by Buyer, subject to sufficient Product availability, requested delivery location, and other relevant factors. The inability of Seller to fill an Order within the delivery period requested by Buyer does not entitle Buyer to claim damages or release Buyer from its obligations under the Contract, including its obligation to place orders and take subsequent deliveries in the case of Volume Contracts.
- Seller’s Remedies. Buyer will take delivery of the Product during the delivery period reflected on the Order Acknowledgment. If Buyer is unable or refuses to accept delivery of Product, then Seller, at its discretion and in addition to any other rights or remedies available to Seller, may (i) impose fees in accordance with Section 2(e) herein on all Product which has not been timely accepted for delivery by Buyer within thirty (30) days after the specified delivery period, and/or (ii) cancel the Order. Buyer shall also pay any increased duties, fees, taxes or other charges or tariffs resulting from any delivery delay.
- Title and Risk of Loss. Title and risk of loss to Product shall transfer to Buyer at the shipping point when possession of such Product is taken by Buyer, whether directly or through the freight carrier (“Tender of Delivery”).
- PRICE, INVOICING AND PAYMENT
- Price. Unless otherwise stated in the Order Acknowledgment, (i) all prices, quotations, shipments and deliveries are F.O.B. shipping point, (ii) all base prices, together with related extras and deductions, are subject to change without notice; (c) all orders are accepted subject to Seller’s price in effect at the time of shipment; and (iv) all transportation and other charges are for the account of Buyer, including any increase or decrease in such charges prior to shipment. Price is exclusive of any sales, processing, excise, value added or other taxes, and when required by law, such taxes shall be added to the purchase price of the Product on the related Invoice and paid by Buyer
- Invoicing and Payment. Seller shall send an invoice (the “Invoice”) to Buyer promptly following Tender of Delivery. Subject to credit approval by Seller, which approval is subject to separate application and may be granted or withheld in Seller’s sole discretion, unless otherwise indicated on the invoice, Buyer shall pay Seller for Product purchased within fifteen (15) days of the date of the Invoice in United States dollars, by electronic payment to the Seller’s designated bank account, by wire transfer of immediately available funds to an account designated by Seller, or by check sent to Seller's address set forth in the invoice. If Buyer’s credit is not approved, payment shall be made by check or credit card prior to Tender of Delivery.
- Release of Claims. Claims regarding discounts, if any have been granted by Seller, or Product not made within twelve (12) months from the date of the Invoice shall be deemed waived and released by Buyer.
- Setoff. Buyer is not entitled to setoff amounts due or claimed due from Seller against any amounts Buyer owes to Seller.
- Late Fees. Any amounts which are not paid when due shall bear interest from the date payment was due until the date payment is received by Seller, at a rate of interest equal to the lower of (i) 1.5% per month or (ii) the highest rate of interest permitted under applicable law.
- Buyer’s Credit. Any credit granted to Buyer may be reduced or withdrawn at any time in the sole discretion of Seller notwithstanding any previously approved payment terms to the contrary. Seller reserves the right to withhold, suspend or stop in transit any shipment should any doubt arise as to Buyer’s credit or financial responsibility.
- SELLER’S WARRANTY
- Representations and Warranties. Seller represents and warrants that the Product comprising each shipment or other delivery hereafter made by Seller is hereby guaranteed, as of the date of such shipment or delivery, to satisfy Seller’s product specifications for the article, and not to be, on such date: (i) adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act (the “Act”); (ii) an article which may not, under the provisions of section 404 or 505 of the Act, be introduced into interstate commerce; and (iii) adulterated or misbranded within the meaning of food, drug and cosmetic laws of the state to which such article is shipped by Seller, the adulteration and misbranding provisions of which are substantially the same as those found in the Act; provided, however, that no guarantee concerning misbranding is given if an article is delivered under a label designed or furnished by Buyer.
- THE FOREGOING WARRANTY IS LIMITED AND IS IN LIEU OF ANY OTHER WARRANTY, AND SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, WHETHER AS TO MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
- Non-Conforming Products. In the event Buyer rejects Product as non-conforming to this warranty (“Non-conforming Product”), Buyer shall hold such Product until Seller removes the Product or provides Buyer with other reasonable instructions. Seller’s liability under this warranty is limited to either replacing the non-conforming Product or refunding to Buyer its purchase price paid for such Product. Buyer is prohibited from selling rejected Product in a secondary market without Seller’s prior written consent. Notwithstanding the foregoing, if Buyer fails to notify Seller in writing of its intent to reject any Non-conforming Product within five (5) business days of receipt of such Non-conforming Product, the delivery of such Non-conforming Product shall be deemed accepted by Buyer.
- Time Limitation on Claims. All claims of Buyer, other than for Non-conforming Product must be brought within one (1) year of delivery of the Product to Buyer regardless of their nature.
- Continuing Guaranty. Any continuing guaranty provided by Seller to Buyer remains subject to, and governed by, the terms of the Contract.
- Except to the extent caused by the negligence or willful misconduct of Buyer or other third parties, Seller shall indemnify and defend Buyer from (i) claims of third parties brought against Buyer for bodily injury or property damage caused by physical defects in the Product; and (ii) claims of governmental authorities incurred as a result of any breach of the guaranty set forth above.
- Any indemnification provided hereunder is on the condition that notice of any action, claim or proceeding within the scope of this indemnity shall be provided promptly to Seller. Furthermore, Seller’s obligation to defend is conditioned upon Seller selecting, managing and controlling counsel.
- LIMITATION ON LIABILITY
THE LIABILITY OF SELLER FOR ANY AND ALL CLAIMS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT AND THE USE THEREOF SHALL UNDER NO CIRCUMSTANCES EXCEED THE SUM OF BUYER’S PAYMENTS FOR THE PRODUCT THAT ARE THE SUBJECT OF THE CLAIM. UNDER NO CIRCUMSTANCES SHALL SELLER OR ITS AFFILIATES BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY KIND OF SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGE OR LOSS, COST OR EXPENSE, INCLUDING WITHOUT LIMITATION, DAMAGES BASED UPON LOST GOODWILL, LOST SALES OR PROFITS, WORK STOPPAGE, DOWNTIME, PRODUCTION FAILURE, IMPAIRMENT OF OTHER PRODUCTS OR INGREDIENTS, FOR ANY REASON OR UNDER ANY THEORY OF LIABILITY WHATSOEVER.
Seller agrees to maintain commercial general liability insurance including Product liability and contractual liability, on a claims made basis with minimum limits of liability of $2,000,000. Buyer will be added to Seller’s Product liability policy as an “additional insured vendor” per the terms of the broad form vendor’s endorsement currently in use.
If either party breaches any provision of the Contract, the other party shall have the right to terminate the Contract upon thirty (30) days’ prior written notice (ten (10) days’ prior written notice in the case of a payment default) whereupon the Contract shall terminate unless the breach complained of is corrected within such notice period. Nothing herein shall be deemed as limiting the rights and remedies Seller. If either party shall (a) become bankrupt or insolvent, (b) file for a petition therefor, (c) make an assignment for the benefit of creditors, or (d) have a receiver appointed for its assets, which appointment shall not be vacated within sixty (60) days after the filing, then the other party shall be entitled to terminate the Contract immediately upon written notice to such party.
- FORCE MAJEURE
A party shall not be liable for the inability of that party to commence or complete its obligations (excluding the obligation of payment) hereunder by the dates herein required resulting from delays caused by strikes, insurrection, acts of God, war, emergencies, shortages or unavailability of materials, weather, change in law or other similar causes (“Force Majeure”), which shall have been timely communicated to the other party. The occurrence of a Force Majeure shall extend the period for the performance of the obligation (excluding the obligation of payment), for the period equal to the period of any such delays; provided that such party shall continue to perform to the extent feasible in view of such Force Majeure; and provided further, that if such Force Majeure shall continue for a period of six (6) months, either party shall have the right to terminate this Contract upon written notice to the other. In the event of the occurrence of a Force Majeure event, Seller shall have the right, but not the obligation, to allocate Product among its Buyers.
- GOVERNING LAW, VENUE AND JURSIDICTION
This Contract shall be construed and enforced in accordance with the laws of the State of Ohio without regard to its conflict of laws principles. Exclusive jurisdiction over and venue for any disputes arising out of, or in connection with, this engagement letter will be in the state and federal courts located in Summit County, Ohio (the “Ohio Courts”). Each party hereby agrees to the jurisdiction of the Ohio Courts and waives any objection to such jurisdiction.
- WAIVER OF JURY TRIAL
BUYER AND SELLER IRREVOCABLY WAIVE 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 WITH RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH OR RELATED TO ANY ORDER OR ANY PORTION OF ANY AGREEMENT WHICH IS RELATED TO ANY ORDER, WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS OR OTHER THEORIES OF LIABILITY.
- Assignment. Except to the extent provided herein, Buyer shall not have any right to assign the Contract, or any rights or obligations hereunder, without the written consent of Seller; provided, however, that upon the sale of all or substantially all of the assets, business and goodwill of Buyer to another company, or upon the merger or consolidation of Buyer with another company, the Contract shall be binding upon both Buyer and the company purchasing such assets, business and goodwill, or surviving such merger or consolidation, as the case may be, in the same manner and to the same extent as though such other company were Buyer. Further, and notwithstanding anything herein to the contrary, Buyer consents to the assignment from time to time of any part of Seller’s rights to payment hereunder in respect of invoices addressed to Buyer or Buyer’s affiliates (a “Receivable”), and in connection with such assignments, and notwithstanding any confidentiality agreements to the contrary, Seller may disclose the terms of the contractual arrangements between Buyer and Seller solely for the purpose of assigning any Receivables and in order for assignee to collect such payments to which it may become entitled. Subject to the foregoing, the Contract shall inure to the benefit of, and be binding upon, the parties hereto and their legal representatives, successors, and permitted assigns.
- Independent Contractors. The parties will at all times be independent contractors. Neither party will have any right, power or authority to enter into any agreement for or on behalf of, or to assume or incur any obligation or liabilities, express or implied, on behalf of or in the name of, the other party.
- Attorneys’ Fees and Costs. In the event of any adversarial proceeding(s) between the parties arising out of any Order, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all reasonable expenses the prevailing party incurs in such proceeding(s), including reasonable attorneys’ fees and expenses and court costs. For purposes of this section, “prevailing party” means: (i) in the case of the party initiating the enforcement of its rights or remedies, that such party recovered substantially all of its claims, and (ii) in the case of the party defending against such enforcement, that it successfully defended substantially all of the claims brought against such part. If no party is a “prevailing party” within the meaning of this section, then no party will be entitled to recover its costs and expenses from any other party.
- Severability. If any provision of these Terms conflicts with the law under which these Terms are to be construed or is held invalid or unenforceable by a court of competent jurisdiction, that provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law.
- Waivers. Any term, condition or covenant of the Contract which may legally be waived, may be waived, or the time of performance thereof extended, at any time by the party hereto entitled to the benefit thereof, and any term, condition or covenant may be amended by the parties hereto at any time. Any such waiver, extension or amendment shall be evidenced by an instrument in writing executed by an officer authorized to execute waivers, extensions or amendments. Seller’s failure to strictly enforce any term or condition of this Contract or to exercise any right arising hereunder shall not constitute a waiver of Seller’s right to strictly enforce such terms or conditions or exercise such right thereafter.
- Survival. The provisions of these Terms and any Order that expressly or by their nature contemplate performance or observance after the Order terminates or expires will survive and continue in full force and effect. Without excluding any other provisions of these Terms and any Order, the terms of Sections 4-6 shall survive the termination or expiration of any Order.
- Notices. All notices must be in writing and will be deemed given (i) when hand delivered, (ii) one business day following the day sent by documented overnight delivery service to the party whom the notice is directed at its address indicated in the applicable Order or otherwise provided in writing, or (iii) when sent by electronic mail to the party whom notice is directed at the electronic mail address specified in the applicable Order or otherwise provided in writing.
- Entire Agreement. These Terms and the applicable Order collectively constitute the entire agreement of the parties. Notwithstanding the foregoing, in the event Buyer and Seller have an existing written agreement signed by an authorized signatory of Buyer and Seller encompassing the Product purchased in the Order, these Terms shall remain in full force and effect to the extent they do not conflict with the terms of such written agreement.