CEDAR-CREST SPECIALTIES, INC.
Terms and Conditions of Sale
- Controlling Provisions
Generally: This document, including the provisions on the face hereof (the “Contract”), constitutes an offer by CEDAR-CREST SPECIALTIES, INC. (“Seller”) to provide the products described herein (the “Products”) to the buyer to which this offer is addressed (“Buyer”). If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained herein. Buyer’s acceptance of this offer is limited to the terms, covenants and conditions contained in this offer. Seller hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless Seller expressly assents to such terms in writing. Such proposal of additional, different or varying terms by Buyer shall not operate as a rejection of Seller’s offer unless such variances are in the terms of the description, quantity, price, or place or date of delivery of the Products, and Seller’s offer shall be deemed accepted without such additional, different or varying terms. THIS CONTRACT (INCLUDING ALL ITEMS EXPRESSLY INCORPORATED BY REFERENCE) CONSTITUTES THE FINAL EXPRESSION OF THE TERMS BETWEEN SELLER AND BUYER REGARDING THE PRODUCTS AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS. ANY TERMS, CONDITIONS, NEGOTIATIONS OR UNDERSTANDINGS WHICH ARE NOT CONTAINED IN THIS CONTRACT SHALL HAVE NO FORCE OR EFFECT UNLESS MADE IN WRITING AND SIGNED BY SELLER AND BUYER. Seller’s sales representatives are without authority to change, modify or alter the terms of this Contract.
Acceptance: Buyer shall be deemed to have made an unqualified acceptance of this offer and the terms and conditions herein on the earliest of the following to occur: (a) Seller’s receipt of a copy of this Contract signed by Buyer; (b) Buyer’s payment of any amounts due under this Contract; (c) Buyer’s delivery to Seller of any material to be furnished by Buyer; (d) Seller’s delivery of the Products; (e) failure by Buyer to notify Seller to the contrary within ten days of receipt of this Contract; or (f) any other event constituting acceptance under applicable law.
Quotations: Written quotations are void unless accepted within 30 days from date of issue. Other Seller publications are maintained as sources of general information and are not quotations or offers to sell.
Governing Law: This Contract shall be governed by and construed according to the internal laws of the State of Wisconsin, including, without limitation, the Uniform Commercial Code as adopted in Wisconsin. This Contract and sales hereunder shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any claim allegedly arising from or related to the terms of this Contract or the relationship of the parties shall be negotiated by Buyer and Seller in good faith. If agreement has not been reached within 30 days of notification of claim to a party, either party may submit the dispute to a Court situated in the State of Wisconsin. Both parties hereby irrevocably admit themselves to and consent to the exclusive jurisdiction of said Court. Seller shall have all of the rights and remedies provided by law, including, without limitation, the rights of a secured party under Chapter 409, Wisconsin Statutes or any successor statute or similar statute in the jurisdiction where Buyer is located or stores the Products.
Severability; Waiver: The invalidity of any provision or clause of this Contract shall not affect the validity of any other provision or clause hereof. Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in this Contract. The failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Contract shall not be construed as a waiver or relinquishment or any right granted hereunder or the future performance of such term, covenant or condition.
Compliance With Laws: Buyer agrees to comply with all laws and regulations applicable to the purchase, transport, use, storage, sale, lease and/or disposal of the Products including, without limitation, to the extent applicable, all rules and regulations of the U.S. Department of Agriculture and the U.S. Food & Drug Administration, and the U.S. Export Administration Act and all regulations thereunder.
Generally: Seller shall deliver the Products F.O.B. Buyer’s facility as agreed by the parties (the “Facility”). All risk of loss, damage or delay shall pass from Seller to Buyer upon Seller’s delivery of the Products to the Facility. Partial shipments shall be permitted.
Delivery Dates: All delivery dates are approximate. Delivery dates given by Seller are based on prompt receipt of all necessary information regarding the order. Seller will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by Seller to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery or performance hereunder shall not be of the essence.
Delivery Delays: Any delay in delivery due to causes beyond Seller’s reasonable control, or due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay. In the event of delay in delivery requested by Buyer or caused by Buyer’s (a) failure to supply adequate instructions; (b) failure to arrange for pickup; (c) failure to supply or approve necessary data in a timely manner; (d) requested changes; or (e) failure to provide documents required for Seller to effect delivery, Seller will store all Products at Buyer’s risk and expense. Buyer shall pay all storage costs and expenses upon Seller’s demand.
Claims: Claims for shortages, damages or other errors must be made in writing to Seller within three (3) days after Seller’s delivery. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. If Buyer or its customers have Products claims, contact Customer Service at Seller’s main number.
Orders: Unless otherwise agreed by the parties in writing, Buyer shall ensure that its orders are received by Seller not less than 20 working days before the requested delivery dates. Buyer’s orders or mutually agreed change orders shall be subject to all provisions of this Contract, whether or not the order or change order so states
Quantity: If Seller delivers to Buyer a quantity of Products of up to 10% more or less than the quantity ordered, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products the price applicable to such order adjusted pro rata.
- Prices; Taxes
Prices: Unless prices are stated on the face hereof, prices shall be the higher of Seller’s most recent quote to Buyer, prevailing market price, Seller’s list price, or the last price charged by Seller to buyer for the Products. Unless otherwise stated on the face hereof, prices are in U.S. Dollars, F.O.B. the Facility. Seller reserves the right to increase prices effective on notice to Buyer.
Taxes: Buyer shall be responsible for and pay or reimburse Seller on demand for all taxes, fees and costs including, but not limited to any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, value added tax, duty, customs agent or broker fees, inspection or testing fee, freight costs, insurance, consular fees or any other tax, fee or charge of any nature whatsoever, including interest, imposed on, in connection with or measured by any transaction between Seller and the Buyer, in addition to the prices quoted or invoiced.
- Terms of Payment
Generally: Unless otherwise stated on the face hereof or agreed by the parties in writing, payment terms are 100% of invoice amount due 15 days after Seller’s delivery.
Seller’s Rights: Notwithstanding the foregoing, terms of payment on all orders are subject to the approval of Seller’s credit department. If Buyer does not pay Seller any amount due under this Contract or any other agreement when such amount is due or if Buyer defaults in the performance of this Contract, Seller may, without liability to Buyer and without prejudice to Seller’s other lawful remedies (a) terminate Seller’s obligations under this Contract; (b) declare immediately due and payable all Buyer’s obligations to Seller; (c) change credit terms with respect to any further work; (d) suspend or discontinue any further work; and/or (e) repossess the Products. Buyer agrees to reimburse Seller for all costs and fees including but not limited to attorneys’ fees and repossession fees, incurred by Seller in collecting any sums owed by Buyer to Seller. Buyer agrees to pay a late payment charge of 1.5% per month, or the maximum amount allowable by law, on all amounts not paid in full when due, payable on Seller’s demand. Buyer shall not take any deductions or discounts, or set off any amounts due hereunder against claims, unless authorized in advance in writing by an executive officer of Seller.
- Cancellations, Changes and Returns
Cancellations: All undelivered Products may be cancelled by Buyer only upon written approval of an authorized representative of Seller. For private label Products, in the event of any cancellation of an order by Buyer, Buyer shall pay to Seller its reasonable costs and expenses.
Changes: Buyer may not alter or modify its order or any part thereof without Seller’s prior, written consent. Seller reserves the right to change the price, terms of payment and delivery dates for any Products affected by any alterations or modification to which it consents.
Returns: Private label Products may not be returned. No branded Products may be returned to Seller without its prior, written authorization and branded Products may be returned only on the terms or conditions specified in such authorization. For purposes of this Contract, “Branded Products” means Cedar-Crest branded Products or Products branded with another Seller brand name and “private label Products” means products that are manufactured by Seller but sold under Buyer’s own brand name or another third party name.
Termination: In addition to any remedies that may be provided under this Contract, Seller may terminate this Contract with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Contract; (ii) has not otherwise performed or complied with any of this Contract, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Limitation on Damages:
IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, COMPENSATORY, CONSEQUENTIAL, INDIRECT, SPECIAL OR OTHER DAMAGES ARISING IN RELATION TO THIS CONTRACT AND/OR THE PRODUCTS. SELLER’S AGGREGATE LIABILITY WITH RESPECT TO THIS CONTRACT SHALL BE LIMITED TO THE MONIES PAID TO SELLER FOR THE PRODUCTS IN QUESTION.
- DISCLAIMER OF WARRANTIES
SELLER OFFERS NO WARRANTY FOR THE PRODUCTS AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express or implied warranty. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and Buyer shall assume all risk and liability whatsoever in connection therewith.
Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Products. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Buyer shall assume all risk and liability whatsoever in connection therewith.
- Patent Infringement and Defects in Buyer’s Specifications
For private label Products, orders manufactured to Buyer’s specifications, designs or descriptions are executed only with the understanding that Buyer will indemnify and hold harmless Seller from any and all damages sustained by Seller, including, but not limited to, reasonable attorneys’ fees, resulting from any action or threatened action against Seller for (a) infringement of the patents or proprietary right of any other person, or (b) injury to person or property, including death, relating to defects in Buyer’s specifications, designs or descriptions.
Buyer hereby releases and agrees to indemnify, defend and hold harmless Seller and its affiliated companies and its and their shareholders, directors, officers, agents, employees, affiliates, successors, assigns and third-party suppliers (“Seller’s Indemnified Parties”) from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, loss, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, actual attorneys’ fees and costs (“Damages”) incurred by or against Seller or any of Seller’s Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (i) failure by any party other than Seller to properly handle or store Products, or (ii) misrepresentations, breach of the warranties, representations, covenants or agreements contained in this Contract or violation of any law by Buyer or any of Buyer’s shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns (“Buyer’s Parties”), or (iii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer’s Parties, or (iv) losses, damages or injuries caused by Buyer’s products, Buyer’s specifications or instructions provided to Seller, or due to improper application or use of the Products or otherwise. Prior to settling any such claim, Buyer will give Seller an opportunity to participate in the defense and/or settlement of such claim. Buyer shall not settle any claim without Seller’s written consent. In the event of any recall affecting the Products, Seller shall have the right to control the recall process and Buyer shall fully cooperate with Seller in connection with the recall.
- Confidential Information; Trademarks and Trade Names
Confidential Information: Buyer acknowledges that all trade secrets, designs, specifications and other Confidential Information (as defined below) which may be disclosed to it by Seller shall at all times, both during and after expiration or termination of this Contract for any reason, remain Seller’s exclusive property and that Buyer shall not acquire any proprietary interest whatsoever therein. “Confidential Information” means all knowledge and information disclosed by Seller to Buyer orally or in writing, or acquired by Buyer through observation, regarding Seller’s products, technology, inventions, formulas, know-how, forecasts, sales methods, customer lists, customer usages and requirements, financial information, business plans, strategies and future business relationships, disclosed with the exception of such information which: (a) was already part of the public domain at the time of the disclosure by Seller; (b) becomes part of the public domain through no fault of Buyer (but only after and only to the extent that it is published or otherwise becomes part of the public domain); (c) was in Buyer’s possession prior to the disclosure by Seller and was not acquired, directly or indirectly, from Seller or from a third party who was under a continuing obligation of confidence to Seller; or (d) is received (after the disclosure by Seller) by Buyer from a third party who did not require Buyer to hold it in confidence and did not acquire it directly or indirectly from Seller under a continuing obligation of confidence. Except as necessary to perform its duties under this Contract, Buyer shall not use or disclose any of such Confidential Information, but shall use at least the same of care given its own trades secrets and confidential information. Upon expiration or termination of this Contract for any reason, Buyer shall, within 15 days, surrender to Seller all specifications, samples, documents, other tangible objects and all copies thereof relating to trade secrets and other Confidential Information and all of Seller’s property. Buyer shall be permitted to destroy rather than return all analyses, extracts, and summaries prepared by Buyer which contain Confidential Information, and such destruction shall be certified in writing to Seller by an authorized officer of Buyer who has supervised such destruction. Nothing in this Contract shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides Seller with broader protection than that provided herein.
Trademarks and Trade Names: Buyer may use Seller’s trade names and trademarks only for the duration of this Contract and solely for display or advertising purposes in connection with the solicitation of orders and sales for the Products. Buyer shall not at any time do or permit any act to be done which may in any way impair the rights of Seller in its trade names and trademarks. All use of trade names and trademarks shall be in accord with Seller’s instructions and this or any future authorization may be withdrawn or modified at any time. Buyer will not combine any such trade name, trademarks or other designation of Seller with its own or any other trade name, trademark or other designation, registered or unregistered. Buyer will, when requested to do so by Seller and in any event when this Contract is terminated, cease all use of any Seller trade names, trademarks, and other designations or any simulations thereof, and shall take such steps and execute such documents as Seller requests to cause Seller to own all “Intellectual Property Rights” and to terminate any rights Buyer may have to use any Intellectual Property Rights. Buyer will not register or assert any right of ownership in any of Seller’s trade names, trademarks and other designations, or any simulations thereof. Buyer shall not contest the right of Seller to its exclusive use of any trade name or trademark used or claimed by Seller. Buyer shall take all steps which Seller may from time to time consider to be necessary to perfect or protect Seller’s Intellectual Property Rights. All of Seller’s Intellectual Property Rights, together with all associated goodwill, are and shall remain Seller’s sole property. Seller expressly reserves all rights in any trade name, trademark, service mark, logo type or other commercial symbols which Seller, adopts or uses from time to time in its promotional materials or otherwise. Buyer shall inform Seller promptly of any potential or actual infringement of any of Seller’s Intellectual Property Rights and shall provide all assistance and information required by Seller in connection with any such infringement. For purposes of this section 10, “Intellectual Property Rights” include, but are not limited to, any copyright, patent, registered design, unregistered design, logo, know-how, trademark, trade name, trade dress or other designation and any similar rights or applications for rights in any of the foregoing in any part of the world owned or used by Seller or any of its associated companies.
Buyer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Contract. Subject to the foregoing, these terms and conditions shall inure to the benefit of, and be binding upon, the parties’ successors and assigns.
- Independent Contractor
The relationship between the parties is that of independent contractors and neither Buyer nor any of its employees or agents shall be considered an employee or agent of Seller. Neither Buyer nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on Seller’s behalf.
- Force Majeure
Seller shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, epidemic or pandemic, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, national or regional emergency, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Seller’s available supply or any other cause beyond Seller’s control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Seller may, at its option and without liability, cancel all or any portion of the contract to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereunder.
The provisions of sections 1, 4, 8, 9, 10, 14 and the limitations in sections 6 and 7, and any other provision the performance or effectiveness of which naturally survives, shall survive expiration or termination of this Contract for any reason.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- Amendment and Modification
This Contract may only be amended or modified in a writing stating specifically that it amends this Contract and is signed by an authorized representative of each party.