Terms & Conditions
GENERAL TERMS AND CONDITIONS
FOR SALE OF PRODUCTS
These General Terms and Conditions for Sale of Products apply to and form an integral part of all requests for proposal, quotations, purchase orders and order confirmations. Sanz Branz, LLC d/b/a Gatherer’s Gourmet Granola (the “Seller”) expressly rejects the applicability of
any other general terms and conditions or stipulations of Buyer.
1. Controlling Document. The acceptance of Buyer’s order is expressly made conditional on Buyer’s assent to the terms and conditions set forth herein and Seller agrees to furnish goods (the “Products”) only upon these terms and conditions. This document together with the annexed Purchase Order, Pro Forma Invoice or Order Confirmation constitutes the entire agreement between the parties and shall supersede all prior understandings of the parties, whether oral or in writing, with respect to its subject matter, including without limitation any conflicting terms contained in Buyer’s purchase order or any other document or instrument submitted by Buyer. No provisions of this agreement may be modified, amended or waived except in a writing signed by Seller. No course of dealing or usage of trade shall be relevant to explain or supplement any term. Acceptance of this agreement shall be deemed effective upon shipment of Product.
2. Price and Taxes. Buyer shall pay Seller the price set forth on the face hereof, or in the event no price is set forth on the face hereof, the standard price for Products published by Seller on the date of shipment or any price expressly quoted by Seller in writing to Buyer. Pricing does not include applicable federal, state, local, use, excise or other taxes, customs duties or any fee imposed by a governmental agency, or any special packaging, labeling or delivery. If exception from such taxes is claimed, Buyer shall provide a certificate of exception at the time of order.
In the event that Seller is required to prepay such taxes, Buyer will reimburse Seller for this cost. Seller reserves the right to change the prices and specifications of its Products at any time unless otherwise agreed to in writing.
3. Delivery; Inspection; Rejection; Returns. Shipping or delivery dates indicated by Buyer or Seller are estimates only, and Seller shall not be liable for delay. Unless otherwise agreed in writing by the parties, delivery shall be Ex-Works Schenectady New York, U.S.A., with packaging and carriers as designated by Seller unless otherwise specified in writing between the parties. Buyer shall inspect Products upon delivery and shall give Seller written notice specifying the alleged non-conformance or shortage (collectively, “Non-Conformance”) within five (5) days following delivery to Buyer. Buyer’s failure to provide such notice shall be deemed an acceptance of the Product as of the date of delivery. Any resale, commingling, alteration or incorporation of the Product by Buyer shall be deemed acceptance of the Product as of the date of delivery. Buyer may not return Product without Seller’s written authorization. If a return is authorized, Buyer shall
return all Non-Conforming Product within ten (10) days after receipt of authorization, and shall ship the Product point of destination F.O.B. Returns of any conforming Product are subject to a restocking charge of 10% computed at original invoice value. All Product sought to be returned must be within the lot expiry period and received not later than ninety (90) days after originally
delivered to Buyer. There shall be no credit for unauthorized returns. Product for which delivery is
suspended pending payment by Buyer, as well as Product of which delivery is wrongfully ejected or not accepted by Buyer, shall be held and stored by Seller at Buyer’s risk and expense.
4. Terms of Payment. Payment for Product shall be due as of the payment date stated on the invoice. With regard to payment of price for the Product, time is of the essence. Any overdue payment may be subject to a late payment charge of 1.5% per month (18% per year) or the highest amount permitted by applicable law. Unless otherwise agreed in writing, each shipment shall be considered an independent transaction, for which separate payment shall be made. Seller may cancel any order of Buyer in the event that Buyer shall become the subject of a voluntary or involuntary bankruptcy proceeding. Seller shall have a security interest in the Product and replacement Product delivered hereunder and the proceeds from the sale and
disposition thereof until Buyer has paid for such Product in full. Buyer shall, upon Seller’s request, execute all documents (such as a UCC-1) necessary to perfect such security interest. Seller has the right, upon demand, to repossess Product delivered hereunder if Buyer fails to make timely payments. All payment shall be made without any deduction and free of any set-off or counterclaim.
5. Warranty. The Products will meet their published specifications when used in accordance with their applicable instructions and stored correctly. The liability of Seller is limited, at Seller’s sole option, to replacement of the Product or application of an appropriate credit adjustment, not to exceed the sales price to Buyer, provided that (a) Seller is promptly notified in writing by Buyer of the alleged Non-Conformance (in accordance with Section 3 hereof), setting forth the alleged Non-Conformance, date of purchase, date of delivery and invoice number; (b) Buyer shall hold such Product without further sale or disposition until Seller advises Buyer of the proper disposition of the Product; and (c) the Non-Conforming Product is returned to or inspected by Seller, and Seller is satisfied that such Non- Conformance exists and was caused by Seller. Buyer shall have no right to cover by procuring substitute goods at Seller’s cost. SELLER MAKES NO OTHER WARRANTY, EXPRESSED OR IMPLIED. SELLER EXPRESSLY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AT NO TIME SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY KIND OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGE, LOSS OR EXPENSE. Buyer’s sole and exclusive remedy for breach of the foregoing warranty shall be replacement of the Product that failed to conform to the warranty. No action may be taken against Seller for breach of this agreement more than one (1) year
after the accrual of the cause of action.
6. Indemnification. Buyer shall indemnify and hold Seller harmless from and against any third-party claims, including related damage, losses, costs (including reasonable attorneys’ fees), expenses, claims, demands and liabilities, arising out of Buyer’s negligence or intentionally tortious conduct with respect to the use or sale of the Products.
7. Intellectual Property. All specifications, designs, data, information, methods, patterns, and ideas made, conceived, developed or acquired by Seller incident to its performance
of this agreement and all patent, trade-secret, know how, trademark, copyright or other proprietary rights therein shall be the exclusive property of Seller and no part of the purchase price hereunder shall be deemed applicable to the foregoing unless otherwise agreed in writing by Seller. Unless otherwise expressly agreed in writing, Buyer may use Seller’s trademarks, logos and designations (“Seller’s Trademarks”) solely for the purpose of promoting the Products in Buyer’s retail establishments. All such promotional materials shall be subject to Seller’s prior
written approval, which shall not be unreasonably withheld, conditioned or delayed.
8. Force Majeure. Seller shall be relieved of the performance of its obligations hereunder for the duration and to the extent that it is prevented in the performance of its obligations by reasons of Force Majeure. Force Majeure shall mean circumstances or events which have not been
foreseen at the time of entering into this transaction, which are not the fault of Seller and which prevent the performance of Seller’s obligations hereunder and which are not reasonably capable of being remedied, including without limitation, Acts of God, acts of war or terrorism, acts of government, acts of Buyer, inability to obtain necessary labor, materials or manufacturing facilities, blockades, revolutions, industrial disputes and commercial practicality.
9. Equal Employment Opportunity (applicable to U.S. Buyers). Seller represents that it does not discriminate against any employee or applicant for employment on the grounds of race, color, religion, sex, sexual orientation or national origin.
10. No Assignment. This agreement shall not be assigned to any third party without the other party’s written consent. Subject to the foregoing, this agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
11. Governing Law and Jurisdiction. This agreement shall be governed by and construed in accordance with the internal laws of the State of New York, U.S.A., without regard to conflicts-of-laws rules. The parties expressly opt out of the U.N. Convention on the International Sale of Goods. The parties to this agreement irrevocably consent to the jurisdiction of the state and federal courts located in the State of New York.