TERMS AND CONDITIONS OF sale
The following terms and conditions (the “Terms”) shall apply to all goods (Goods) sold by HB Specialty Foods (HB) to a customer (Customer). Unless HB and Customer have agreed to different terms and conditions in a separately written and signed agreement, these Terms specify the terms upon which HB will sell Goods to Customer, and supersede and take precedence over any contrary, inconsistent, or additional terms submitted in any prior or subsequent purchase order related to the Goods or any other document or writing originating from Customer.
HB’s acceptance of Customer’s purchase order is expressly conditioned on Customer’s acceptance of these Terms, which are in lieu of any additional or different terms contained in Customer’s purchase order or other document or communication pertaining to Customer’s purchase order, except in the event there is a written master purchase agreement between HB and Customer, in which case the terms of such master purchase agreement shall control over any directly contradictory terms contained herein. Customer’s assent to these Terms shall be conclusively presumed once Customer accepts all or any part of the Goods or makes a full or partial payment to HB for the Goods. None of the terms and conditions set forth herein may be added to, modified, superseded or otherwise altered, except by a written instrument signed by an authorized representative of HB. Failure of HB to object to any terms or conditions which may be contained in any document or form of Customer shall not be construed as a waiver or modification of these Terms, nor as an acceptance of any such terms and conditions of Customer.
2. PAYMENT TERMS.
Unless otherwise agreed in writing by HB, payment terms are net 10 days from the date of HB’s invoice. Customer’s failure to pay the balance of HB’s invoice in full within 10 days of the date of the invoice shall result in an interest charge of 1% per month, 12% per annum, accruing on the unpaid balance of the amount due under the invoice, which interest charge shall begin accruing on the 31st day after the date of the invoice. In the event HB waives or modifies interest charges on any invoice or amount due to HB by Customer, such waiver or modification will not operate to reduce or otherwise modify the interest or payment terms of a separate invoice. Any credit terms agreed to by the parties, or any payment terms that deviate from the payment terms set forth herein, must be in writing and signed by an authorized representative of HB.
3. LIMITED WARRANT.
HB warrants that, as of the time of delivery, the Goods will (the “Limited Warranty”): (a) conform to the description stated on the invoice, (b) substantially and materially conform to the Specifications, and (c) with respect to food related products, will not be adulterated or misbranded within the meaning of the United States Federal Food Drug & Cosmetic Act, as amended. The foregoing Limited Warranty shall be void and HB shall have no liability or responsibility for any claim arising from or related to the quality or condition of the Goods (a) if Customer has not examined, inspected, sampled and/or tested the Product, or caused the Goods to be examined, within as short a period as reasonably practicable upon receipt of the Goods (but in no event more than fourteen (14) days), or (b) if Customer’s representatives, agents, employees, or carriers do not store and handle the Goods properly and in accordance with the specifications. Any notice of non-conforming Goods or the failure of the Goods to comply with the Limited Warranty, or Customer’s rejection of the Goods due failure to comply with the Limited Warranty, must be made within as short a period as practicable upon receipt of the Goods (but in no event more than fourteen (14) days). Failure of Customer to notify HB of non-conformance or reject the Goods as set forth herein will relieve HB from any liability HB may have to Customer or its successors or assigns. THE FOREGOING LIMITED WARRANTY IS HB’S SOLE WARRANTY WITH RESPECT TO THE GOODS. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. HB’S LIABILITY FOR BREACH OF WARRANTY HEREUNDER IS LIMITED SOLELY TO THE REPLACEMENT OF THE DEFECTIVE GOODS, WHICH SHALL BE RETURNED TO HB’S PLANT, TRANSPORTATION CHARGES PREPAID BY CUSTOMER. This Limited Warranty may only be modified by an express written agreement signed and executed by HB.
4. LIMITATION OF LIABILITY.
HB’S LIABILITY TO CUSTOMER, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE CUSTOMER PAID FOR THE GOODS. UNDER NO CIRCUMSTANCES SHALL HB BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE GOODS IS CONSIDERATION FOR LIMITING HB’S LIABILITY.
5. DELIVERY; INSPECTION.
Delivery terms are either f.o.b. HB’s plant or as specified on the invoice. In either case, Customer shall assume all risk of loss or damage upon delivery by HB to the carrier at the point of shipment. Scheduled dates of delivery are estimates of approximate dates of delivery, not a guaranty of a particular date of delivery. HB shall not be liable for any damages caused by failure or delay in shipping the Goods described herein. Customer must examine, inspect, sample and test the Goods for compliance with these Terms within the time period specified in Paragraph 3 above.
Orders accepted by HB are subject to cancellation by Customer only upon the express written consent of HB. Upon such cancellation and consent, HB shall cease work and Customer shall pay HB for all work and raw materials that have been committed to and/or purchased by HB through the date of cancellation, in addition to a reasonable profit to HB.
In the case of default or breach by Customer due to failure or timely payment, HB may cancel any outstanding order from Customer and declare all obligations immediately due and payable, and shall in addition have all remedies afforded by the Uniform Commercial Code as enacted in the State of Idaho, and any other applicable law.
8. gOVERNING LAW; ARBITRATION.
The validity, interpretation and performance of this transaction shall be governed by the laws of the State of Idaho. Any dispute, controversy or claim arising out of or relating in any way to this Agreement shall be exclusively resolved by binding arbitration pursuant to the American Arbitration Association, under its Commercial Arbitration Rules.
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