Foodservice Terms and Conditions of Sale and Delivery
General. The sale of the products (the “Products”) by VIENNA BEEF, LTD. or any of its affiliates (collectively, the “Company”) to any person or entity (the “Buyer”) are subject to these terms and conditions of sale and delivery (the “Vienna Terms and Conditions”). Any acceptance of the Vienna Terms and Conditions by the Buyer shall be limited to acceptance of the express terms hereof and any proposal for additional or different terms or any attempt by the Buyer to vary in any degree any of the Vienna Terms and Conditions in the Buyer’s acceptance is hereby objected to and rejected. No addition or alteration to the Vienna Terms and Conditions shall be valid and enforceable unless specifically agreed to in writing by the Company. The Company shall only be deemed to have accepted Buyer’s order for Products by delivering the Products to the Buyer. The Company may cancel Buyer’s order for Products at any time prior to such delivery. No terms or conditions appearing in the Buyer’s order form that are in variance or conflict with the Vienna Terms and Conditions shall be binding upon the Company, and any such terms or conditions in variance or conflict with the Vienna Terms and Conditions shall be deemed waived by the Buyer. If there are material variances or conflicts between the Vienna Terms and Conditions and the terms and conditions contained in the Buyer’s order form, the Company’s sale agreement, acknowledgement or invoice (together with the Vienna Terms and Conditions being collectively referred to as the “Sales Documents”) shall be deemed a counter-offer to the Buyer’s order form, and, further, deemed accepted by the Buyer if the Buyer does not object in writing to the Vienna Terms and Conditions within twenty-four (24) hours after receipt of the Products delivered pursuant to the Vienna Terms and Conditions.
Price; Payment; Default in Payment. The price and payment terms for the Products and all trade pricing and discounts granted to the Buyer, if any, are identified in the Sales Documents and supersede all prior pricing, discount and payment terms. All of the Company’s prices and discounts are subject to change without notice. Orders which are not paid when due shall bear interest at the lesser of (a) fifteen percent (15%) per annum; or (b) the highest rate of interest permitted by applicable law. If Buyer fails to make payments on any order from the Company in accordance with the Sales Documents, the Company, in addition to any other remedies available to it, may (i) defer further shipments until such payments are made and satisfactory credit arrangements are reestablished or (ii) cancel the unshipped balance of any order(s).
Security Interest and Default. Until the Company receives full payment of the purchase price for the Products, Buyer grants to the Company, and the Company shall retain, a security interest in the Products. So long as the Company retains a security interest in the Products, the Buyer shall keep the Products in good condition and free from any other liens or encumbrances. In the event of any breach or default by the Buyer under the Sales Documents, the Company may avail itself of all of the remedies afforded to it by the Uniform Commercial Code and any other applicable law and for the enforcement of the security interest granted by the Buyer to the Company hereunder.
Taxes. In addition to the purchase price of the Products, the Buyer shall pay to the Company the amount of all governmental taxes, excises and other charges imposed under any existing or future law upon or with respect to the sale, purchase, delivery, storage, possession, use, consumption or transportation of the Products. Buyer may, however, in lieu of payment of any such tax, issue to the Company tax exemption certificates acceptable to the appropriate taxing authorities or represent to the Company in writing that no taxes are owed by the Company or the Buyer in connection with the sale, purchase, delivery, storage, possession, use, consumption or transportation of the Products.
Bankruptcy of Buyer. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against the Buyer, the inability of the Buyer to pay its debts as they become due, or in event of the appointment of a receiver or, with or without the Buyer’s consent, in the event of an assignment for the benefit of creditors, then the Company shall be entitled, in its sole discretion and in addition to any other rights and remedies available at law, to cancel the unshipped balance of any order without any liability.
Delivery. All dates quoted by the Company for delivery of the Products are estimates only and are not guaranteed. The Company may make partial deliveries of the Products. Deliveries made by the Company within a reasonable time after the dates quoted for delivery shall constitute good deliveries. No right of cancellation shall accrue to Buyer based on any such delivery. The Company shall have no liability for any delay in shipment or delivery. The Company reserves the right of carrier selection. All Products are shipped by the Company to the Buyer F.O.B. Destination. Unless otherwise specified in the Sales Documents, the Buyer shall pay all freight and handling costs with respect to the shipment of Products. The Buyer shall bear all risk of loss with respect to the Products so accepted by the Buyer upon their delivery.
Permissible Variations. Products shipped by the Company shall be subject to the Company’s standard variations, and the Company reserves the right to ship overages or underages of weight, length, size and/or quantity in accordance with the Company’s standard practices.
Inspection and Rejection. The Buyer hereby acknowledges that the Products are perishable goods. To prevent the loss of the Products, the Buyer agrees to inspect fully all Products delivered to it at the time of delivery. In the event that such inspection reveals any damage, shortage, error or deficiency in the Products, the Buyer shall refuse to accept such Products and shall notify the Company and the carrier in writing immediately of any such damage, shortage, error or deficiency. If the Buyer fails to notify the carrier or the Company in writing of any such damage, shortage, error or deficiency at the time of delivery, the Buyer shall be deemed to have irrevocably accepted the Products delivered. Such acceptance shall constitute a waiver of any and all claims the Buyer may otherwise have had against the Company with respect to such Products. The Company shall not be obligated to accept Products for return after such Products are accepted by the Buyer.
Product Warranty; Limitation of Liability. The Company represents and warrants to the Buyer that the Products comply, in all material respects, with all federal and state regulations applicable to the sale of such Products (the “Warranty”). THE WARRANTY SHALL NOT APPLY TO PRODUCTS THAT HAVE BEEN SUBJECTED TO ALTERATION, MISBRANDING, MISLABELING, MISUSE, MISHANDLING, ABUSE, NEGLECT, OR ACCIDENTAL DAMAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY SHALL HAVE NO LIABILITY FOR ANY PRODUCT THAT IS SOLD PAST ITS SHELF LIFE. THE COMPANY MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND TO THE BUYER, WHETHER EXPRESS OR IMPLED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. THE LIABILITY OF THE COMPANY TO THE BUYER HEREUNDER SHALL BE LIMITED TO, AT THE COMPANY’S OPTION, EITHER THE REPLACEMENT OF ANY PRODUCTS FAILING TO MEET THE WARRANTY OR A REFUND OF THE PURCHASE PRICE ACTUALLY PAID BY BUYER IN RESPECT OF ANY PRODUCT FAILING TO MEET THE WARRANTY. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR LOSS OF BUSINESS OR PROFIT OR ANY OTHER ECONOMIC LOSS, OR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES. ANY CLAIM FOR DAMAGES, OTHER THAN FOR REPLACEMENT OF THE PRODUCTS, IS EXPRESSLY WAIVED BY THE BUYER.
Claims. Claims by the Buyer hereunder (including, without limitation, respecting the condition of goods, compliance with specifications, for discounts, rebates, refunds or credits in connection with the purchase or sale of the Products or any other matter affecting Products shipped to the Buyer) must be made promptly and, unless otherwise agreed to in writing by the Company, in no event later than one (1) year after any such claim has accrued.
Breach; Remedies; Action for Breach. Buyer agrees to save and keep the Company free and harmless from and indemnify the Company for any loss, damage or expense, including attorney’s fees, that the Company suffers as a result of the Buyer’s breach or failure to comply with any provision, agreement, covenant, representation or warranty made by the Buyer in or pursuant to the Sales Documents, as well as from any failure of Buyer to store, prepare or use the Products other than in a normal and customary manner and in compliance with applicable law. The failure of the Company at any time to require performance by Buyer or any provision in the Sales Documents shall in no way constitute a waiver of that provision or affect the full right of the Company to require such performance by the Buyer at any time after such failure, nor shall any waiver by the Company of a breach by the Buyer of any provision in the Sales Documents constitute a waiver of any succeeding breach by the Buyer of the same or any other provision.
Setoffs and Counterclaims. All claims for monies due or to become due Buyer from the Company shall be subject to deduction by the Company for any amounts due the Company from Buyer.
Force Majeure. The Company shall not be liable for delays or deemed in default for failure to deliver or otherwise perform hereunder as a result of, directly or indirectly, causes that are beyond the Company’s reasonable control, which causes may include, without limitation, acts of God or nature, acts of any governmental authority, wars, terrorism, strikes or other labor disputes, fires, flood, crop failures or crop or material shortage and natural calamities. The Company shall have the right to cancel or terminate all or any part of any purchase order in the event of any such cause without any resulting liability.
Intellectual Property. The Buyer acknowledges and agrees not to contest the Company’s exclusive ownership of any of the Company’s trade names, services marks and trademarks and all logos and derivations of such items, and all names and marks licensed to the Company (collectively, the “Marks”). In addition, the Buyer acknowledges that it lacks and will not acquire any right to use the Marks, except for a non-exclusive license to use the Marks in connection with the resale of the Products. The Buyer shall not register any Mark or use any Mark in its legal or trade name. The Buyer agrees to (a) aid the Company in the prevention of any unauthorized use of any of the Marks; and (b) notify the Company upon its discovery of any unauthorized use of any of the Marks.
Confidentiality and Publicity. Buyer shall consider all information furnished by the Company to be confidential and shall not disclose any such information to any person, firm or corporation, other than to Buyer’s employees who are under a legal obligation to keep such information confidential or as required by applicable law, unless authorized to do so by the Company in writing. Unless otherwise agreed to in writing, no commercial, financial or technical information disclosed in any manner or at any time by Buyer to the Company shall be deemed secret or confidential and Buyer shall have no rights against the Company with respect thereto except such rights as may exist under applicable laws.
Modifications. The Company may make reasonable changes of any kind to the Products (including, but not limited to, discontinuing products) and their packaging without notice to the Buyer and to deliver any revised Products or packaging to the Buyer. In addition, the Company may increase the costs of the Products due to the increased costs to the Company for its raw materials or services from its service providers.
Amendment; Corrections. No amendment, addition to or other modification of the terms and conditions of the Sales Documents shall be binding on the Company unless specifically agreed to by the Company in writing. All stenographic and clerical errors contained in the Sales Documents may be corrected by the Company without the consent of the Buyer.
Assignment. Buyer may not assign any of its rights or duties under the Sales Documents or any portion hereof.
Governing Law; Consent to Jurisdiction. The Sales Documents shall be governed by and construed and enforced in accordance with the substantive laws of the State of Illinois. The Company and the Buyer (a) each agrees that any claim or cause of action arising hereunder or otherwise relating to the purchase of the Products shall be heard exclusively in a court located in Cook County, Illinois; and (b) each waives (i) personal service of any and all process upon it, and consents that all services of process be made by registered mail, and service so made shall be deemed to be completed when received; (ii) any objection based on forum non conveniens; (iii) any objection to venue of any action instituted pursuant to the terms of this Sales Agreement; and (iv) its right to a trial by jury. Nothing contained in the Sales Documents shall affect the right of the Company and the Buyer to serve legal process in any other manner permitted by law.
Severability. If any provision of the Sales Documents shall be prohibited by or be invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of the Sales Documents.
Entire Agreement. The Sales Documents constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and cancels all prior discussions, agreements and understandings with respect to the subject matter hereof between the parties, written, oral or implied.
Amendment. The Company reserves and retains the right to restate, modify and amend these Vienna Terms and Conditions at any time and the Buyer agrees to be bound by the Vienna Terms and Conditions as so restated, modified or amended.