Offer and Acceptance
These Terms and Conditions of Sale constitute an offer made by Fancy Foods, Inc. (“Fancy Foods”) to Customer (“Offer”). Acceptance of this Offer is limited to acceptance of the express terms and conditions contained herein. Any previous offers made by Customer, whether written or verbal, not already expressly accepted by Fancy Foods in writing are hereby objected to and rejected. In no event shall this Offer be deemed an acceptance of any prior offer by Customer. The terms and conditions set forth herein shall supersede any terms, conditions, and provisions set forth in any request for quotation, purchase order, confirmation or other writing Customer may have given or give to Fancy Foods, and the rights of the parties with respect to the purchase and sale of products covered hereby shall be governed exclusively by the terms, conditions, and provisions hereof. No contrary, additional, or different provisions, terms, or conditions shall be binding on Fancy Foods unless accepted by Fancy Foods in a writing which makes specific reference to this Offer and acknowledges such modifications or revisions. Once this Offer is accepted by Customer by the placement of an order, an order may be canceled by Customer only with Fancy Foods’ written consent and upon terms that will indemnify Fancy Foods against any and all loss, including but not limited to re-stocking charges. Unless Customer notifies Fancy Foods in writing that the Customer objects to and rejects this Offer within a commercially reasonable time after Customer becomes aware, or should have become aware, of Fancy Foods’ commencement to provide the products or shipment of such products, then such commencement to provide the products or shipment of such products shall constitute Customer’s acceptance of this Offer. This Offer is subject to Fancy Foods’ credit approval of Customer.
All invoices submitted by Fancy Foods to Customer shall be payable net within the number of days specified by Fancy Foods upon its credit approval of Customer. All payments due to Fancy Foods hereunder shall be paid in United States dollars to Fancy Foods, or to such entity or person as is designated by Fancy Foods, in accordance with the remittance instructions contained in the invoice. Notwithstanding any other terms and conditions in this Offer, in the event that any payment due from Customer to Fancy Foods pursuant to this Offer is not received and cleared by Fancy Foods as provided for hereunder, then in addition to all other rights and remedies available to Fancy Foods under law and hereunder, Fancy Foods shall be entitled to a payment by Customer of accrued interest on any unpaid balance from its due date until payment is made at the rate of one and one half percent (1.5%) per month. Customer understands and agrees that its obligation to make payments to Fancy Foods shall be absolute and unconditional under any and all circumstances, whether or not Fancy Foods violates any of its obligations described herein or otherwise, and such payments shall not be subject to any defense, set-off, or counterclaim for any reason whatsoever.
Perishable Agricultural Commodities Act
Customer understands and agrees that any perishable agricultural commodities purchased under this Offer and listed on the invoice from Fancy Foods are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499e(c)). Fancy Foods retains a trust claim over such commodities, all inventories of food or other products derived from such commodities, and any receivables or proceeds from the sale of such commodities until full payment is received.
Customer understands and expressly agrees that full payment of the perishable agricultural commodities purchased under this Offer is due to Fancy Foods within the number of days specified by Fancy Foods upon its credit approval of Customer and not within the payment periods as set forth in 7 C.F.R. §§46.2(z) and (aa)(1)-(10).
Shipment and Delivery
This Offer is made with the understanding that it is subject to inventory availability. All shipping and handling expenses are the sole responsibility of Customer, and Customer shall reimburse Fancy Foods for any such charges and expenses incurred by Fancy Foods on Customer’s behalf. Delivery dates are estimates only and are based on normal shipping conditions (shipping conditions and actual ship dates may vary). Unless otherwise requested by Customer in writing and accepted by Fancy Foods, all products shall be delivered F.O.B. Fancy Foods’ Bronx, New York location. Fancy Foods will endeavor to meet all scheduled dates (including delivery dates) requested by Customer when ordering and accepted by Fancy Foods; provided, however, that Fancy Foods reserves the right to change any and all such scheduled dates subject to Fancy Foods’ availability schedule without notice and without liability to Customer. If shipment of products is delayed at the request of Customer, then Fancy Foods shall be entitled to place the products in storage for the account of Customer, and all expenses incurred by Fancy Foods in connection with the storage, handling, preservation, or insurance of the products shall be paid by Customer upon presentation of Fancy Foods’ invoice. Method and route of shipment are at Fancy Foods’ discretion unless Customer supplies explicit written instructions with respect thereto, in which case Fancy Foods shall attempt, but shall not be obligated, to comply with such instructions. Unless otherwise agreed between Customer and Fancy Foods, all shipments are insured at Customer’s expense and made at Customer’s risk. Non-delivery by Fancy Foods as to any product shall not be deemed a breach of this Agreement. Any non-delivery shall not relieve Customer from its obligation to accept or be responsible for any subsequent or prior shipment. All shipments shall be packaged in accordance with Fancy Foods’ standard and customary packaging practices unless otherwise requested by Customer in writing and accepted by Fancy Foods. Fancy Foods retains the right, at its option, to cancel any order from Customer, in whole or in part, without any resulting liability to Customer or any third party. Any delivery not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered products.
Except as otherwise expressly set forth herein, Fancy Foods shall not be liable for any delay or for any consequence of any delay in the delivery of any products if such delay shall be due to any cause beyond its reasonable control, including, but not limited to, acts of God, acts of terrorism, acts of a public enemy, changes in law, wars, floods, fires, storms, strikes, lockouts, delivery of nonconforming or defective material, supplies or equipment, significant interruptions of transportation, freight embargoes or failures, exhaustion or unavailability on the open market or delays in delivery of material, supplies, equipment, or services necessary for the performance of any provision hereof, or the happening of any material and reasonably unforeseeable act, misfortune, or casualty by which performance hereunder is delayed or prevented. If any such delay occurs, then (unless the cause thereof shall frustrate or render impossible or illegal the performance of this contract or shall otherwise discharge the same), the parties’ period for performing their respective obligations shall be extended by such period (not limited to the length of the delay) as Fancy Foods may reasonably require to complete the performance of its obligation.
Limitation of Liability
FANCY FOODS SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUES, PROFITS, USE, CUSTOMERS, AGENTS OR DISTRIBUTORS) RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH ANY SALE, MANUFACTURE, DISTRIBUTION, OR ANY USE OF ANY PRODUCTS OR FOR ANY FAILURE OF SUPPLY OF ANY PRODUCTS FOR ANY REASON, WHETHER OR NOT FANCY FOODS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT BE CONSTRUED TO APPLY ONLY TO DAMAGES OCCURRING AS A RESULT OF A BREACH OF PRODUCT WARRANTY, BUT SHALL APPLY TO ANY DAMAGES RELATED TO PRODUCTS PURCHASED AND SOLD HEREUNDER.
Except as provided in this paragraph, Customer shall accept all products shipped in accordance with the terms and conditions of this Offer. In order to reject a shipment, Customer must give written notice (each, a “Rejection Notice”) to Fancy Foods within five (5) business days after receipt of the shipment, together with a reasonably detailed written statement of its reasons for rejection. If no such notice is received, then Customer shall be deemed to have accepted the shipment of the products and to have waived any and all claims with respect thereto. No claim of any kind (whether as to delivered products or for non-delivery of products, including claims of improper or defective products and whether arising in tort or contract) shall be greater in amount than the purchase price of the products in respect of which such damages are claimed.
In no case shall Customer return products without first obtaining a Return Authorization (“RA”). Upon receipt of a Rejection Notice, Fancy Foods shall issue a RA to Customer. RA’s are valid for 10 days from date of issuance. Returned products must be delivered to Fancy Foods, in their original packaging and be accompanied by Customer’s RA. Customer must prepay shipping charges and insure the shipment or accept the risk if the products are lost or damaged in shipment. Refunds or credits do not include original shipping and handling charges.
Governing Law; Forum; Enforcement
This Agreement and any disputes between the parties arising in connection herewith shall be governed by and interpreted in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State, without regard to (and without application of) its laws, rules, and principles regarding conflicts of laws. Customer hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any U.S. Federal or New York State court sitting in New York, New York, as well as any U.S. Federal or New Jersey State court, in any action or proceeding arising out of or relating to this Offer. Nothing in this Offer shall affect any right that Fancy Foods may otherwise have to bring any action or proceeding relating to this Offer against Customer or its properties in the courts of any jurisdiction, including, without limitation, the courts of New York and New Jersey, as Fancy Foods shall elect in its sole and absolute discretion. Customer hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Offer in any court referred to in the foregoing sentence. Customer hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. In the event Fancy Foods takes or maintains any legal action to enforce its rights hereunder, Customer shall reimburse Fancy Foods for its reasonable costs and expenses incurred, including, without limitation, court costs and reasonable fees and disbursements of counsel.
Prices; Quotations; Other Charges
All prices are in United States dollars. Price quotations automatically expire at the close of business on the date issued and are subject to termination by notice, if not accepted within that period. Unless otherwise expressly agreed by Fancy Foods, the prices quoted shall not include any charges for freight, transportation, insurance, or any other charges relating to the sale, transportation, and shipment to, or use by, Customer of the products sold hereunder. Such charges shall be the sole responsibility of, and shall be borne exclusively by, Customer. Wherever applicable, any such charges will be added to the invoice as a separate charge to be paid by Customer. If Fancy Foods is required to pay any such charges, Customer agrees to reimburse Fancy Foods for any amounts so paid upon demand.
Title and Risk of Loss; Security Interest
Title to and risk of loss and damage for any shipment of products shall pass to Customer immediately upon the earlier to occur of deposit with a common or contract carrier or delivery of such shipment to Customer or its designated agent. Customer hereby agrees that this Offer grants to Fancy Foods an irrevocable and continuing security interest in any and all products shipped to Customer until the entire balance of the price of such products and all other monies then due from Customer to Fancy Foods are paid in full. Fancy Foods may execute, on behalf of Customer, all instruments, including financing statements and certificates necessary to perfect and/or file a security interest under the laws of any state and under the Uniform Commercial Code (“UCC”) without notice to Customer. Upon breach by Customer of any of the terms and conditions of this Offer or under any of the invoices which may be issued pursuant hereto, Fancy Foods shall have all of the rights and remedies of a secured creditor under the UCC, including without limitation, the right to foreclose the security interest on the delivered products or proceeds thereof by any judicial procedure or take possession of the products, including the proceeds thereof from any sale. If Customer defaults on any payment or makes an assignment for the benefit of creditors, or if a proceeding in insolvency or bankruptcy is initiated by or against Customer, whether voluntary or involuntary, Fancy Foods shall have the right to withhold shipments, in whole or in part, and to recall products in transit, retake same, and remove and/or repossess products which may be stored for Customer’s account, without the necessity of taking any other proceedings, and to take such other action as may be necessary to protect its security interest, including any other remedies Fancy Foods may have by operation of law or otherwise.
The foregoing rights and remedies shall be in addition to, and not in lieu of, any other rights or remedies which Fancy Foods may have hereunder, by operation of law or otherwise.
Limited Warranty and Disclaimer
FANCY FOODS WARRANTS THAT THE PRODUCTS SUPPLIED HEREUNDER SHALL MATERIALLY CONFORM AT TIME OF DELIVERY TO THE DESCRIPTION OF THE PRODUCTS PROVIDED BY FANCY FOODS, IF ANY, SUBJECT TO INDUSTRY’S STANDARD TOLERANCES FOR VARIATIONS.
FANCY FOODS’ SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR A BREACH OF WARRANTY WITH RESPECT TO ANY PRODUCT SHALL BE THE REFUND OF THE PURCHASE PRICE OF THE NONCONFORMING PRODUCT. FURTHERMORE, ANY SUCH WARRANTY SHALL BE NULL AND VOID AND SHALL NOT APPLY TO ANY PRODUCT WHICH IS (i) ALTERED, MODIFIED, DAMAGED, ABUSED, OR MISUSED (WHETHER INTENTIONALLY OR ACCIDENTALLY) OR (ii) NOTWITHSTANDING SUCH NONCONFORMITY, IS USED OR OTHERWISE ACCEPTED BY CUSTOMER OR CUSTOMER WAIVES ITS CLAIM FOR REJECTION UNDER THE PROVISIONS OF THIS AGREEMENT. THE FOREGOING WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, AND FANCY FOODS DISCLAIMS ALL OTHER WARRANTIES, NOT REQUIRED BY APPLICABLE LAW, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE AND/OR A PARTICULAR PURPOSE.
Customer shall indemnify and reimburse Fancy Foods for, and hold Fancy Foods harmless from and against, and will compensate and reimburse Fancy Foods for, any and all damages, costs, expenses, losses, claims, demands, liabilities, awards, judgments, decline in value, lost opportunities, assessments, settlements, fines, penalties, charges and/or obligations (including, without limitation, charges, deficiencies, assessments, dues, fines, penalties, interest, amounts paid in settlement, and reasonable fees and disbursements of counsel) (collectively, “Damages”) arising from, relating to, or in any way sustained or incurred, directly or indirectly, (and regardless of whether or not such Damages relate to any third party claim), by Fancy Foods due to: (i) any breach by Customer of any of its representations, warranties, covenants, and agreements set forth herein; (ii) any negligent act or omission of Customer, or any of its directors, officers, employees, affiliates, agents, or representatives, with respect to any products purchased hereunder; (iii) Customer’s use, handling, storage, or re-sale of any product purchased hereunder; or (iv) any fraud or willful misconduct on the part of Customer; provided, however, that Customer shall not be liable for any such Damages to the extent arising from Fancy Foods’ gross negligence or willful misconduct.
Subcontracting and Assignability
Customer may not assign or subcontract this Offer or any of its rights or obligations hereunder without Fancy Foods prior written consent and any purported assignment in violation of this provision will be void. This Offer shall be binding upon and inure to the benefit of, and shall be enforceable by, the parties hereto and their permitted successors and assigns.
If any part of this Offer shall be held unenforceable, the remainder of this Offer shall nevertheless remain in full force and effect and, to the extent permissible under applicable law, such unenforceable provision or provisions shall be deemed revised to the minimum extent possible to permit enforcement of such provision on terms as near as possible to such provision as originally drafted.
Relationship of the Parties
Fancy Foods and Customer are independent contractors under this Offer. Nothing contained in this Offer is intended nor is to be construed so as to constitute the parties as partners or joint venturers with respect to the agreement hereunder. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party to any other contract, agreement, or undertaking with any third party.
Compliance with Laws
Customer shall comply with all applicable laws, rules, regulations, orders, and other requirements (whether federal, state, local, national, international, or otherwise) of all governmental, quasi-governmental, official, and similar bodies, persons, and entities in connection with its performance hereunder.
Fancy Foods’ remedies herein are cumulative and in addition to any other or further remedies available to it at law or equity.
Fancy Foods’ failure to enforce any right provided herein or to which it is entitled at law or equity will not constitute a waiver of that right or of any other rights to which it is entitled.
Entire Agreement; Modification; Waiver
These Terms and Conditions of Sale contain the entire agreement of the parties regarding the subject matter hereof and supersede all prior quotes, orders, purchase orders, bills of lading, invoices, proposals, letters of intent, agreements, understandings, and negotiations regarding the same. No modification of this Offer or any order placed hereunder shall be effective without Fancy Foods’ written consent. Except as otherwise provided herein, in no event shall this Offer be deemed amendable or amended except by a writing specifically referencing this Offer and signed by Fancy Foods and Customer. Any waiver by Fancy Foods of strict compliance with any provision of this Offer shall not be deemed a waiver of any of Fancy Foods’ rights, privileges, claims, or remedies hereunder (with respect to such provision or any other provision hereof), nor of Fancy Foods’ right to insist on strict compliance with respect to such provision thereafter.
Certificates of Compliance and Special Document Requests
If Customer requires a certificate of compliance for any purpose, including a certificate of compliance with governmental regulations, or special documentation of any kind, Customer must specify this and provide an example of the required certificate of compliance or special documentation at the time Customer places an order. Fancy Foods reserves the right to charge a reasonable fee for the provision of such certificate of compliance or special documentation.