WOODLAND FOODS. LTD - TERMS AND CONDITIONS
1. Entire Agreement. Acceptance of orders, whether oral or written, is based on the express condition that Buyer agrees to all of the terms and conditions contained herein. Acceptance of delivery by Buyer will constitute Buyer’s assent to these terms and conditions. These terms and conditions and those on the attached page (or face side hereof) represent the complete agreement of the parties (this “Agreement”). No terms or conditions in any way adding to, modifying or otherwise changing the provisions stated herein shall be binding upon Woodland Foods, Ltd (“Seller”) unless made in writing and signed and approved by an officer of Seller. No modification of any of these terms will be effected by Seller’s shipment of products following receipt of Buyer’s purchase order, shipping request or similar forms containing printed terms and conditions conflicting or inconsistent with the terms herein.
2. Prices. All prices are FOB Seller’s plant and are subject to adjustment, without notice to Seller’s prices in effect at the time of shipment. Prices exclude pallet charges. Any increase in transportation rates or any changes in routing resulting in an increase in transportation costs shall be paid and borne by Buyer.
3. Buyer’s Full Quantity Commitment. Buyer commits to take delivery of and pay for the full product quantity set forth on the attached page or face side hereof (unless such products are nonconforming). While such full product quantity may be delivered in installments as agreed upon by Seller and Buyer, Buyer’s commitment to pay for the full quantity of conforming products remains absolute.
4. Payment. All accounts shall be paid net in United States Dollars to the address specified on the invoice within fifteen (15) days after the products are invoiced. A service charge of the lesser of 1% per month or the maximum permissible rate under law will be added to all past due accounts. Buyer agrees to pay all reasonable costs of collection should Buyer’s indebtedness have to be collected by outside resources. Deductions from invoice total are permitted only through a credit invoice produced by Seller. Buyer shall not have the right to set off against any amounts payable to Seller.
5. Force Majeure. Seller shall not be liable for delays in shipment or default in delivery for any reason of force majeure or for any cause beyond Seller’s reasonable control including, but not limited to, (a) government action, war, terrorism, epidemic disease, riots, embargoes or martial laws, (b) Seller’s inability to obtain necessary materials, products and/or ingredients from its usual sources of supply, (c) shortage of labor, raw material, production or transportation facilities or other delays in transit or (d) fire, flood or other casualty.
6. Title/Risk of Loss. Delivery of products to carrier shall be deemed delivery to Buyer, and thereupon title to such products, and risk of loss or damage, shall be Buyer’s. Any claim by Buyer against Seller for shortage or damage occurring prior to such delivery must be made in writing within ten (10) days after receipt of shipment. For refund to be provided to Buyer by carrier for products damaged in transit, Buyer must provide an affidavit with description of damages signed by driver.
7. Return of Products. ALL PRIVATE-LABEL, PROCESSED PRODUCTS, SPECIAL ORDER AND INDIVIDUAL CONTRACT PRODUCTS CANNOT BE RETURNED BY BUYER (UNLESS SUCH PRODUCTS ARE NONCONFORMING). ORDERS HEREUNDER CANNOT BE CANCELED BY BUYER UNDER ANY CIRCUMSTANCES. BUYER AGREES AND ACKNOWLEDGES THAT THE FOREGOING PROVISION IS AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT IN THE ABSENCE OF SUCH PROVISION. ALL OTHER PRODUCTS MAY BE RETURNED SUBJECT TO THE FOLLOWING: Seller must be notified of the return within 3 days following receipt and the product returned within 10 days in the original package (if possible) for full refund to be granted. Product returned within 11-30 days following receipt will be subject to a 25% restocking fee. Product returned within 31-45 days following receipt will be subject to a 50% restocking fee. No return will be accepted after 45 days following receipt.
8. Warranty and Disclaimer. Seller warrants that any products sold hereunder, except those products that carry the warranty of a supplier, will conform to the specifications set forth on the attached page or face side hereof.
THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS, OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Remedies. Seller shall not be liable for incidental or consequential losses, damages or expenses, directly or indirectly arising from the sale, handling or use of the products, or from any other cause with respect to the products or this Agreement, whether such claim is based upon breach of contract, breach of warranty, negligence, strict liability in tort, negligence or any other legal theory. Seller’s liability hereunder, in any case, is expressly limited, at Seller’s election, to replacement (in the form originally shipped) of products not complying with this Agreement, or to the repayment of, or crediting Buyer with, an amount equal to the purchase price of such products. Any claim by Buyer with reference to the products sold hereunder for any cause shall be deemed waived by Buyer unless such claim is submitted to Seller in writing within ten (10) days following delivery.
10. Waiver. Waiver by Seller of any breach of these terms and conditions shall not be construed as a waiver of any other breach, and failure to exercise any right arising from any default hereunder shall not be deemed a waiver of such right which may be exercised at any subsequent time.
11. Severability. In the event that any one or more of these terms or conditions is held invalid, illegal or unenforceable such provision or provisions shall be severed and the remaining terms and conditions shall remain binding and effective.
12. Controlling Law. This Agreement shall be deemed to have been executed and delivered in Waukegan, Illinois, USA. Except as otherwise provided herein, this Agreement and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by the internal laws of the State of Illinois, USA, including the Uniform Commercial Code as enacted in that jurisdiction, without giving effect to the principles of conflicts of law thereof. In the event Buyer’s place of business is in a country that has ratified the United Nations Convention on Contracts for the International Sale of Products (“Convention”) the parties agree to exclude application of the Convention from consideration in connection with this Agreement.
13. Legal Proceedings. The jurisdiction and venue of any legal proceedings for the resolution of disputes arising under or in connection with this Agreement shall be in the federal or state courts of Cook County or Lake County, Illinois, U.S.A.
14. Attorneys Fees, Etc. If any action at law or in equity, including but not limited to an action for collection, is brought by Seller to enforce the provisions of this Agreement. Seller shall be entitled to recover reasonable attorneys’ fees and all other actual and necessary costs and expenses of litigation from Buyer, which amounts shall be in addition to any other relief which may be awarded.
15. Private Label Goods Buyer hereby warrants to Seller that (i) Buyer holds good and sufficient rights in and to all trademarks, trade dress, logos or other indicia of source (“Trademarks”) that Buyer has directed be placed on the goods or the packaging for the goods (the “Private Label Goods”), (ii) with respect to any design, invention or physical specification for the Private Label Goods provided by Buyer, that Buyer holds good and sufficient rights in and to the use of such design, invention and/or physical specification so that Seller may lawfully fulfill Buyer’s Private Label Goods order; (iii) Buyer is not subject to any law, rule, or contract that prohibits or inhibits its placement of Buyer’s order for Private Label Goods with Seller; (iv) there is no adverse claim, by any third party, to the design, invention or physical specification of the Private Label Goods, or to the Trademarks, or any of them, and (v) Seller’s manufacture and sale of Private Label Goods as requested by Buyer does not violate any rights of any third parties. Buyer hereby indemnifies Seller, its officers, employees, sales representatives, subsidiaries, parents, related companies, and agents (“Indemnified Parties”) from and against all costs and expenses (inducing without limitation, reasonable attorneys fees and costs) of any and all claims, suits, losses, damages, obligations, and judgments arising out of any breach of any of Buyer’s warranties, covenants or obligations herein and/or any assertion or allegation that the Private Label Goods infringe any rights of third parties.