(Version 10.13.2015)

Martin’s Famous Pastry Shoppe, Inc. (“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.

1. 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 between Seller and Buyer regarding the sale of goods by Seller to Buyer (each such contract, a “Contract”). Any offer or acceptance by Seller is made subject to these terms and conditions and no additional or different terms and conditions offered by Buyer will become a part of a Contract unless such terms and 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 offer made by Buyer, Seller’s acceptance of Buyer’s 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.
2. Payment. 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. 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.
3. Delivery. The goods sold pursuant to a Contract will be delivered F.O.B. Seller’s facility. Risk of loss and title to the goods will pass to Buyer upon delivery of the goods to Buyer.
4. 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.
5. 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.
6. Warranties. Seller warrants, as of the time of delivery to Buyer, that its bread and roll products (a) shall comply with Seller’s specifications, (b) shall not be adulterated or misbranded within the meaning of the United States Federal Food, Drug, and Cosmetic Act (the “Act”), (c) shall not be articles that cannot be introduced into interstate commerce under Sections 404 and 505 of the Act, and (d) shall 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.
7. Limitation on Liability. Seller shall 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.
8. Overcoded and Sale Goods. Buyer will not sell or distribute Seller’s goods that are overcoded or stale.
9. Proprietary Rights. If Buyer purchases goods from Seller that are designated by Seller for retail sale by Buyer, Buyer will have a non-exclusive, non-transferable, non-sublicenseable, revocable license to use Seller’s trademarks and logos that appear on the packaging provided by Seller in connection with the distribution and resale of such goods in accordance with these terms and conditions, provided that this license is limited to the use of the packaging provided by Seller without modification in any way. Buyer will not otherwise 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 shall remain the property of Seller and any and all rights therein shall inure to the benefit of Seller.
10. Force Majeure. Seller shall 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.
11. Waiver. Waiver by Seller of any breach of these terms and conditions shall not be construed as a waiver of any other breach and failure to exercise any right hereunder shall not be deemed a waiver of such right which may be exercised at any subsequent time.
12. Severability. The unenforceability of any provision in these terms and conditions shall not affect the validity or enforceability of any remaining provision(s).
13. 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 6 above, all orders are non-returnable.
14. 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 otherwise in connection with any Contract.
15. Assignment. Buyer will not assign or delegate its rights or duties under a Contract without Seller’s prior written consent, which consent shall 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.
16. Governing Law. 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.
17. Survival. Paragraph nos. 2 and 7 through 17 of these terms and conditions will survive any termination, cancellation, or default of any Contract.