Customer Terms & Conditions
- ACCEPTANCE OF TERMS: These terms and conditions of sale (“Terms and Conditions”) govern the sale of products (“Products”) by Total Sweeteners, Inc., d/b/a Batory Foods (“Seller”) to you (“Buyer”) (each of which may be referred to as a “party” or collectively as the “parties”). Such sale of Products is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions. Notwithstanding anything herein to the contrary, if a written document (“Other Form”) signed by both parties or submitted by Buyer is in existence covering the sale of the Products covered hereby, these Terms and Conditions shall prevail to the extent they are inconsistent with the Other Form.
- ENTIRE AGREEMENT: For the avoidance of doubt, any accompanying documents of sale provided by Seller [quotation/confirmation of sale/invoice] (“Sales Confirmation”), together with these Terms and Conditions (collectively, the “Agreement”), comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral. These Terms and Conditions prevail over any of Buyer’s general terms and conditions of purchase, regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms and Conditions.
- NET WEIGHTS: The Products to be sold under this Agreement are sold on the basis of net weights when packed, or if shipped in bulk, net weights when loaded.
- TAXES: In addition to the price for Products being sold to Buyer by Seller, Buyer will pay Seller the amount of any excise, sales, use, or similar tax relating to the Products and any freight (unless there is an express freight allowance), stop-over charge, lot loading charge, demurrage charge or the like relating to the transportation or storage of the Products, which Seller is legally obligated to pay, within ten (10) days after the date of an invoice for the charge. Buyer will pay any sales, use, consumption, VAT, excise, duties or other taxes (including taxes measured by receipts from this transaction) imposed by any taxing authority and required to be paid or collected by Seller or Buyer as a result of the Products provided to Buyer under this Agreement; provided, that Buyer will not be liable for any tax levied upon or measured by the net income of Seller. Any amount identified as a sales or other tax in any invoice issued by Seller is provided as an estimate only, and such designation shall not limit Buyer’s obligations under this paragraph.
- SHIPMENT: Where the basis of shipment is F.O.B. shipper, delivery of Products by Seller to the carrier at point of shipment shall constitute delivery to Buyer, subject to the lien of Seller for the unpaid purchase price. Buyer shall furnish Seller complete shipping instructions (and when required, the necessary containers) at least ten (10) days before the time of shipment.
- INSTALLMENTS: If there is more than one installment of Products shipped or stipulated to be shipped, this Agreement shall be construed to be severable as to each installment, except where such construction would be in direct conflict any breach or default of Buyer as to any installment.
- FORCE MAJEURE: Neither party shall be held liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any obligation under this Agreement, and such party’s performance shall be excused to the extent and for the time period that such performance is prevented or delayed, when such failure or delay is caused directly or indirectly by, or results from, causes beyond the reasonable control of the affected party, including but not limited to fire, explosion, flooding, embargo, war, acts of war (whether war is declared or not), public health crisis (including epidemic or pandemic), insurrection, riot, civil commotion, strike or other labor disturbance, lack of availability of labor or material, loss of communications, loss of facilities, natural catastrophes, acts of God, or acts, omissions or delays in acting by any governmental authority, including changes in laws or regulations (any of the foregoing, a “Force Majeure Event”). Such party shall give notice and full particulars of the Force Majeure Event in writing to the other party within a reasonable time after occurrence of the event or cause relied upon.
For the avoidance of doubt, Force Majeure shall not include (a) financial distress or the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder.
- INSPECTION AND APPROVAL: All Products received shall be deemed accepted by Buyer unless rejection is made in writing within three (3) days of delivery, with such rejection of the defective Products only and specifying the reason for the rejection. Buyer’s failure to advise Seller of such defect, damage or claim within the applicable time-period will release Seller from any liability for damages therefor. Buyer shall segregate and store the rejected Products in a safe place pending investigation by Seller and any shipping instructions for properly rejected Products. Payment of any invoice shall constitute acceptance of purchased Products.
- LIMITED WARRANTY/LIMITATION OF LIABILITY: Seller warrants that Products sold herein will be consistent with any samples or specifications delivered to Buyer prior to the execution of this Agreement and representative of the brand or grade specified therein to be sold. Seller’s sole obligation under this warranty shall be limited to replacement of any non-conforming Product within a commercially reasonable time or, if same are not available, return of the purchase price (“Limited Warranty”). This Limited Warranty is void if Buyer does not properly handle the storage and handling of the product or causes the defect by their use or misuse of the product. Buyer waives any claim herein unless: (1) within ten (10) days after discovery of the allegedly non-conforming Product, but in no event later than thirty (30) days after receipt of the Product at destination, Buyer sends Seller at its main office written notice of Buyer’s warranty claim by nationally recognized overnight courier or by registered U.S. mail specifying the nature of the claim; and (2) within said thirty (30) days sends by registered U.S. mail or nationally recognized overnight courier prepaid to Seller’s office a five (5) pound sample of the Product alleged to be non-conforming, identifying the batch number with samples certified as being taken from an unopened package by a public weigher or sampler reasonably acceptable to Seller; provided that compliance by Buyer with the above enumerated steps shall not constitute an admission by Seller of the merits or amount of Buyer’s warranty claim.
DISCLAIMER OF WARRANTY:
EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER STATES THAT NO WARRANTIES, EXPRESS OR IMPLIED, CONTAINED IN THE UNIFORM COMMERCIAL CODE OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) SHALL APPLY TO THE PRODUCTS SOLD HEREUNDER AND BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THE FIRST SENTENCE OF THIS SECTION, IT IS PURCHASING PRODUCTS, “AS IS” AND “WHERE IS.” SELLER IS NOT RESPONSIBLE FOR ANY MISUSE, RECONFIGURATION OR ALTERNATION OF THE PRODUCT BY BUYER OR OTHERS.
LIMITATION OF LIABILITY:
IN NO EVENT SHALL SELLER BE LIABLE, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT OR OTHER GROUNDS, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, LIQUIDATED, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY TYPE OR FOR LOSS OF PROFIT, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF FINANCIAL ADVANTAGE, WHETHER OR NOT SUCH LOSSES WERE IN THE CONTEMPLATION OF THE PARTIES.
- LATE PAYMENT: The time within which the Buyer is to make the payments is an essential term of this invoice. A service charge of one and a half percent (1.50%) per month (18% per annum) will be charged as of the first day of the thirty (30) day period following billing on all balances which are not paid by the end of such thirty (30) day period. All court costs and reasonable attorneys’ fees incurred by Seller in enforcing this Agreement shall be paid promptly by Buyer, in addition to all of the Buyer’s other obligations hereunder.
- INDEMNIFICATION: Buyer shall indemnity, defend and hold harmless Seller, its employees and agents (“Indemnified Parties”) from and against any claim, liability, loss or costs, including reasonable attorneys’ fees (collectively “Claims”), to or brought or asserted against any Indemnified Parties by Buyer or any customer of Buyer or any other third parties with respect to products sold or distributed by Buyer, except to the extent such Claims are a result of a breach of Seller’s Limited Warranty contained herein.
- CONFIDENTIALITY: Buyer shall maintain the confidentiality of, and not disclose, non-public pricing and other proprietary terms applicable to the purchase of Products under this Agreement.
- ASSIGNMENT/BINDING ON SUCCESSORS: Buyer may not assign or encumber any of its rights or duties hereunder without the prior written consent of Seller. Subject to the limitations on assignment stated herein, this Agreement shall inure to the benefit of and be binding upon the parties hereto, their successors and assigns.
- GOVERNING LAW: This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Illinois, without regard to its choice of law principles thereunder.
- JURY WAIVER: The parties knowingly and irrevocably agree to waive the right to a trial by jury in the litigation of any dispute arising from or relating to the subject matter of this Agreement.
- NOTICES: All notices, request, 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 the Agreement 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 Agreement, 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: No amendments to this Agreement shall be effective unless evidenced in writing and signed by Buyer and Seller.
- SEVERABILITY: The invalidity, in whole or in part, of any of the sections or paragraphs of this Agreement shall not affect the remainder of such section or paragraphs or any other section or paragraphs of this Agreement, which shall continue in full force and effect.