Terms and Conditions
1. CONTRACT. In the absence of a written agreement signed by Buyer and Foster Dairy Farms, a California corporation (“Seller“), these terms and conditions (“Terms“) and those in Seller’s sales confirmation (the “Confirmation” and, together with the Terms, the “Contract“) govern the offer, sale and delivery of products (the “Products“) by Seller to Buyer or its affiliates, principals, agents, franchisees, and distributors (collectively, “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 accepting delivery of any Products, Buyer evidences its agreement to be bound by this Contract. Additional terms and conditions on any Buyer document will have no effect (i.e., will not change or add to the Contract) whether or not Seller specifically objects to such terms and conditions.
2. DELIVERY TERMS. Seller shall use diligent efforts to fill Orders within the delivery period requested by Buyer. However, 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. Unless otherwise agreed by the parties in writing, shipment of Products is made FOB Buyer’s facility (“Buyer’s Facility“), with Seller bearing all risk of loss until Products are delivered to Buyer’s Facility when transported by Seller’s designated carrier. However, when Buyer specifies the carrier, the Shipment is made FOB Seller’s plant (“Seller’s Facility“) with Buyer taking title and bearing all risk of loss upon delivery of Products to the carrier specified by Buyer. Buyer shall notify Seller of any claimed shortages, quantity discrepancies or damages within forty-eight (48) hours of delivery or Buyer shall be deemed to have waived its right to such claims.
3. RETURNS. Seller does not accept return of Products except for Products delivered and in a condition deemed un-saleable and/or Products delivered not ordered, subject to notification by Buyer to Seller within forty-eight (48) hours of delivery. Buyer is liable to reimburse Seller’s costs in respect of deliveries refused by Buyer at Buyer’s Facility and returned to Seller’s Facility, unless the basis for return of such Products is authorized by the Contract.
4. PRICES AND INVOICES. Quoted prices are subject to change without notice and, unless specifically included in a Confirmation, do not include any taxes, handling, shipping, transportation, duties or other charges or fees. Seller shall invoice Buyer promptly after delivery. Unless otherwise indicated on the invoice, Buyer shall pay Seller for Products purchased within 20 days of the invoice date in United States dollars, by electronic payment to the Seller’s designated bank account or by wire transfer of immediately available funds to an account designated by Seller. In the event Buyer prefers to pay by check, such payment shall be sent to Seller’s address set forth in the invoice. Claims regarding discounts or invoices not made within six (6) months from the date of invoice shall be deemed waived and released by Buyer. Buyer is not entitled to set-off amounts due or claimed due from Seller against any amounts Buyer owes to Seller. Buyer agrees that any statement on a payment transmission or indicating that it is “payment in full” or other statements to that effect is a nullity unless acknowledged and accepted by Seller in writing and that cashing such check does not constitute acceptance. 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 1.5% per month.
5. BUYER’S CREDIT. Any credit granted to Buyer may in the sole discretion of Seller be reduced or withdrawn at any time, any previously approved payment terms to the contrary notwithstanding. 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.
6. FOOD GUARANTY. Seller guarantees that on the delivery date Products delivered under the Contract will satisfy applicable specifications and will not be: (i) adulterated or, as to Seller’s branded product, be misbranded within the meaning of Sections 303(c) of the Federal Food, Drug and Cosmetic Act (the “Act“), as amended, or within the meaning of any applicable federal or state law, in which the definitions of “adulteration” or “misbranding” are substantially the same as those contained in the Act, as the Act and such laws are in effect at the time of such shipment or delivery; and (2), not be an article which may not, under the provisions of Sections 404 and 405 of the Act, be introduced into interstate commerce. 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. In the event Buyer rejects Products as non-conforming to this warranty, Buyer shall hold such Products until Seller removes the Products or provides Buyer with other reasonable instructions. Seller’s liability under this warranty is limited to either replacing the non-conforming Products or refunding to Buyer its purchase price paid for such Products. Buyer is prohibited from selling rejected Products in a secondary market without Seller’s written consent.
7. INDEMNIFICATION. Seller shall indemnify and hold harmless Buyer against any and all third party claims of bodily injury or property damage resulting from the failure of the Products to conform with the provisions of the Guaranty set forth in Section 6 at the time the Products leave the possession and control of Seller. Seller will indemnify and hold harmless Buyer against claims of governmental authorities, including reasonable documented out-of-pocket expenses and legal fees and costs in connection therewith and incurred as a result of, the failure of the Products to conform with the provisions of the Guaranty set forth in Section 6 at the time the Products leave the possession and control of Seller. Any indemnification described herein is on the condition that notice of any action, claim or proceeding within the scope of this indemnity shall be provided promptly to Seller. Seller reserves the right to choose the counsel that will be selected to defend pursuant to this indemnity, and to manage and control the defense of any such action, claim or proceeding. Buyer shall use its best efforts to obtain, maintain and delivery to Seller as promptly as possible all Product or Product containers alleged to be defective or to have caused injury.
8. LIMITATION ON LIABILITY. EXCEPT AS OTHERWISE REQUIRED BY SECTION 7, THE LIABILITY OF SELLER FOR ANY AND ALL CLAIMS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND THE USE THEREOF SHALL UNDER NO CIRCUMSTANCES EXCEED THE SUM OF BUYER’S PAYMENTS FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE CLAIM. UNDER NO CIRCUMSTANCES SHALL SELLER OR ITS AFFILIATES BE LIABLE TO BUYER 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.
9. 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, fire, 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 the 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.
11. GOVERNING LAW AND JURISDICTION. The Contract has been entered into and shall be construed and enforced in accordance with the laws of the State of California without reference to the choice of law principles thereof. Venue and jurisdiction for any proceedings arising out of the Contract shall lay exclusively in the state courts of Stanislaus County, California, and in the federal courts of the Eastern District of California.
12. ASSIGNMENT. Buyer shall not have any right to assign the Contract, or any rights or obligations hereunder, without the written consent of Seller. 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 its affiliates (a “Receivable“). 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.
13. BUYER’S USE OF PRODUCTS. Buyer represents and warrants that it shall use and sell all Products ordered herein in accordance with applicable law, statute, ordinance, regulation, code or standard (“Laws and Standards“). Except as expressly stated in this Contract or in the Seller’s specifications, Seller makes no promise or representation that the Products shall confirm to any other Laws and Standards. Buyer shall be exclusively responsible for ensuring compliance with all Laws and Standards associated with its intended use of the Products.
14. ATTORNEYS FEES. If either party commences an action against the other to interpret or enforce the Contract or as a result of a breach by the other party of the Contract, the prevailing party shall be entitled to recover from the non-prevailing party reasonable attorneys’ fees, costs and expenses incurred by the prevailing party in connection with such action.
15. RELATIONSHIP OF PARTIES. The Contract shall not constitute or be construed as creating a partnership or joint venture between the parties.
16. WAIVER. 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.
17. FINAL AGREEMENT. This Contract represents the final agreement of the parties with respect to its subject matter and all prior oral or written undertakings, communications, or agreements are superseded and merged herein. No different or additional terms and conditions, including those contained in any Order or agreement previously executed by Seller or in any acceptance or similar document tendered by Buyer, shall in any way become binding on Seller or become part of the Contract and are hereby specifically rejected..