(Version 5.10.2018)
Martin’s Famous Pastry Shoppe, Inc.., a Pennsylvania corporation (“Seller”), rejects all of Buyer’s terms and conditions that are not expressly incorporated into the terms and conditions set forth below or otherwise made in writing and signed and approved by an authorized agent of Seller.
- Acceptance of Terms and Conditions. The acceptance of the terms and conditions contained in this document is an essential prerequisite to any and all contracts or agreements now or hereafter entered into between Seller and Buyer regarding the sale of goods by Seller to Buyer (each such contract or agreement, a “Contract”). Any order by Buyer, and any offer or acceptance by Seller, is made subject to these terms and conditions and no additional or different terms or conditions offered by Buyer will become a part of any Contract unless such terms or conditions have been expressly approved in writing by an authorized agent of Seller. If this document is an offer, acceptance of this offer is expressly limited to these terms and conditions, and Seller reserves the right to withdraw this offer at any time before its acceptance by Buyer. If this document has been issued by Seller in response to an order or offer made by Buyer, Seller’s acceptance of Buyer’s order or offer is expressly conditioned on Buyer’s assent to these terms and conditions. If these terms and conditions are not acceptable, Buyer must notify Seller in writing at once. Buyer’s action in (a) acknowledging these terms and conditions, (b) accepting delivery of goods, (c) paying for goods, or (d) failing to disaffirm these terms and conditions within five business days of receipt, will constitute an unqualified acceptance by Buyer of these terms and conditions.
- Restrictions on Resale. Buyer will not directly or indirectly market, offer, sell, or distribute any Seller products to any person or entity for retail sale. Buyer will not market, offer, sell, or distribute any Seller products to any person or entity that is located, or that Buyer knows or reasonably should know intends to market, sell, or distribute Seller products, outside the jurisdiction agreed to by the parties. Buyer will not sell or distribute Seller products that are overcoded or stale.
- No Exclusivity. The business arrangement between Seller and Buyer is not exclusive and nothing in these terms and conditions will prevent either party from entering into similar business arrangements with other persons or entities.
- Fees and Charges. Each Contract is made subject to Seller’s Schedule of Fees and Charges that is in effect at the time the parties enter into the Contract. Seller will provide to Buyer a copy of the then current Schedule of Fees and Charges upon request.
- Payment. Buyer will pay all amounts due Seller by ACH or wire transfer of immediately available funds in S. Dollars. If Buyer has been approved for an open account, payment for each invoice issued by Seller to Buyer will be due 21 days from the date of the invoice (or, if earlier, 21 days from the date of delivery). A late fee equal to the lesser of 1.5% per month or the maximum amount permitted under law will be assessed on all past due invoices.
- Delivery; Title. Unless otherwise stated in writing by an authorized agent of Seller, (a) the goods sold pursuant to a Contract will be delivered F.O.B. Seller’s facility and (b) risk of loss and title to the goods will pass to Buyer upon delivery of the goods to Buyer.
- Product Shortages. Seller will use its commercially reasonable efforts to fill Buyer’s orders for Seller’s products; provided that, if Seller suffers product shortages for any reason, Seller will have the right to allocate deliveries among its customers as Seller deems advisable in its sole discretion.
- Taxes. Quoted prices do not include any applicable taxes. Buyer will pay to Seller any sales, use, excise, gross receipts, value added, or similar taxes applicable to the sale of the goods under a Contract.
- Warranties. Seller warrants, as of the time of delivery to Buyer, that its bread and roll products (a) will comply with Seller’s specifications, (b) will not be adulterated or misbranded within the meaning of the United States Federal Food, Drug, and Cosmetic Act (the “Act”), (c) will not be articles that cannot be introduced into interstate commerce under Sections 404 and 505 of the Act, and (d) will otherwise comply with applicable United States federal laws regarding food sold for consumption within the United States of America. Except as set forth in the immediately preceding sentence, (x) Seller does not make any representations or warranties, whether express or implied, regarding any of its goods or packaging and (y) Seller expressly disclaims any and all representations and warranties of any kind whatsoever, including, without limitation, all implied warranties regarding non-infringement, merchantability, and fitness for a particular purpose. Without limiting the generality of the foregoing, Seller expressly disclaims all representations and warranties, whether express or implied, regarding the conformity of its goods and packaging with the laws, regulations, and other requirements in effect within any jurisdiction other than the United States of America.
- Limitation on Liability. Seller will not be liable for any special, consequential, incidental, indirect, punitive, or exemplary damages of any kind, whether based on strict liability, negligence, breach of warranty (express or implied), breach of contract, tort, or otherwise. Seller’s total liability for defect, delay, error, omission, breach of warranty, and any damages arising out of or in connection with an order by Buyer will not in any event exceed the purchase price payable by Buyer to Seller for the goods subject to that order.
- Proprietary Rights. Buyer will not use any Seller related names, trademarks, service marks, trade dress, logos, or combinations or derivatives of the same (collectively, “Seller Marks”) without Seller’s prior written approval of each use. Buyer acknowledges Seller’s exclusive right, title, and interest in and to all Seller Marks. Any Seller Marks used by Buyer will remain the property of Seller and any and all rights therein will inure to the benefit of Seller. Buyer will not adopt or use any word or mark that is similar to or likely to cause confusion with any Seller Marks.
- Force Majeure. Seller will not be liable for delays, shortages, or defaults in delivery for any cause beyond Supplier’s reasonable control, including, but not limited to, such things as government action, war, riots, civil commotion, embargos, or imposition of martial law, shortages of labor, raw materials, production, or transportation resources, delays in transit, lockouts, strikes, slowdowns, or other labor difficulties involving employees of Seller or others, or fire, flood, or other casualty.
- Waiver. Waiver by Seller of any breach of these terms and conditions will not be construed as a waiver of any other breach and failure to exercise any right hereunder will not be deemed a waiver of such right which may be exercised at any subsequent time.
- Severability. The unenforceability of any provision in these terms and conditions will not affect the validity or enforceability of any remaining provisions.
- Cancellation and Modification. No order that is accepted by Seller may be cancelled or modified except with the prior mutual written consent of both parties. Except in the case of a breach of a warranty set forth in paragraph 8 above, all orders are non-returnable.
- Enforcement. Buyer will reimburse Seller all costs and expenses, including attorneys’ fees, reasonably incurred by Seller to construe or enforce any obligation of Buyer under these terms and conditions or any Contract.
- Assignment. Buyer will not assign or delegate its rights or duties under any Contract without Seller’s prior written consent, which consent will not be unreasonably withheld, conditioned or delayed. Seller may assign its rights and/or duties under any Contract to one or more wholesalers or distributors of Seller.
- Governing Law; Venue. These terms and conditions and any Contract between the parties hereto will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to the conflict or choice of law provisions of that or any other jurisdiction. Any controversy arising out of or related to these terms and conditions or any Contract will be determined exclusively by the state or federal courts with jurisdiction over Franklin County, Pennsylvania and both parties hereby submit and consent to the jurisdiction of said courts.
- Survival. Paragraph nos. 1, 2, 4, 5, 8, and 10-19 of these terms and conditions will survive any default, termination, or consummation of any Contract.