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TERMS AND CONDITIONS OF SALE

 

1. APPLICATION

These Terms and Conditions of Sale ("Terms and Conditions") apply to any and all purchasing activities between NATIONAL FOOD GROUP, INC., a Michigan corporation and its related companies, agents and/or representatives (collectively, the "Seller") and Purchaser and to any and all services performed, and Goods sold or provided by Seller to Purchaser.

Any terms or conditions of Purchaser which are contradictory or supplementary to, or which deviate from these Terms and Conditions, or any objection, agreement or other attempt by Purchaser purporting to add to or modify these Terms and Conditions, shall not apply or be binding upon Seller unless expressly approved in writing by Seller. To the extent Purchaser's Purchase Order or any accompanying terms and conditions have additional or conflicting terms, these Terms and Conditions shall control and supersede the Purchaser's conflicting terms and conditions, and all such Purchaser's terms and conditions are expressly objected to by Seller without further notification. Under no circumstances is the performance of services for Purchaser or sale or provision of Goods to Purchaser, or the receipt of payment from Purchaser, shall be construed as acceptance of the Purchaser's terms or conditions. Any reference to the Seller's Terms and Conditions shall be construed to be the reference to these Terms and Conditions.

 

2. DEFINITIONS

In addition to the terms defined elsewhere in these Terms and Conditions, the following terms shall have the following meanings:

  • "Agreement" means the contract or agreement between Purchaser and Seller regarding the sale of Goods or furnishing of services to Purchaser. The Agreement consists of the front portion of the Purchase Order issued by Purchaser (as modified by these Terms and Conditions), any written acceptance of the Purchase Order delivered to Purchaser by Seller, any confidentiality and/or nondisclosure agreement between Seller and Purchaser, and these Terms and Conditions. The Agreement also includes any terms and conditions contained in any other Seller proposals, quotations, or documents incorporated by reference in Purchase Order. To the extent of any inconsistency between these Terms and Conditions and any confidentiality and/or nondisclosure agreement between Seller and Purchaser, these Terms and Conditions shall control and supersede. Legal relationships between Seller and Purchaser are governed exclusively by the Agreement. The Agreement constitutes the entire Agreement between Seller and Purchaser with respect to this subject matter, and supersedes all prior understandings and agreements.
  • "Documentation" shall mean all information and documents received directly or indirectly from Purchaser, whether in paper of electronic form;
  • "Goods" mean the goods identified in Purchase Order.
  • "Quotation" shall mean any quotation issued by Seller to Purchaser.
  • "Purchase Order" is the Purchaser's purchase order for the Seller's Goods or services.
  • "Purchaser" shall mean the person or entity to which the Seller is rendering service and/or selling Goods, and such person's or entity's agents and/or representatives.

 

3. QUOTATIONS

  • Quotation, Accuracy. Any Quotation issued by Seller to Purchaser involves Seller's interpretation of the Goods and/or services as described by the Documentation provided to Seller by Purchaser, and Purchaser is responsible for correctness of all such Documentation. Purchaser acknowledges and agrees that it will use best efforts to prepare the Documentation, that it is required to review any and all Documentation prepared and/or provided to the Seller, and that it will immediately advise the Seller of any errors, discrepancies, incorrect statements, or omissions on any Documentation provided to Seller. SELLER MAKES NO REPRESENTATION AS TO THE ACCURACY OF ITS INTERPRETATION OF THE PURCHASER'S DOCUMENTATION.
  • Quotations not Binding. Quotations as to prices and other charges given by Seller to Purchaser are for informational purposes only and are subject to change without notice; no Quotation shall be binding upon Seller unless Seller in writing agrees to provide services and/or Goods at a specific price set forth in the Quotation. To the extent the Documentation does not adequately represent the scope of services to be performed by the Seller and/or the Goods to be provided by Seller, the final price for the Goods and services provided to Purchaser shall be adjusted accordingly. The price for the Goods and services as referenced in the Quotation is an estimate only, and the final price will depend on the actual services performed and/or Goods provided to Purchaser.
  • Quotation Not Transferable. A Quotation is for Purchaser's use only in evaluating the Seller's proposal and may not be used by Purchaser for any other purpose or disclosed by Purchaser, directly or indirectly, in whole or in part, to any third party without the express written consent of Seller.
  • Quotation Not Offer, Termination of Quotation. The Quotation is not an offer to provide Goods or services. Any Quotation will become void at 11:59 P.M. Eastern Time, thirty (30) days after the date the Quotation was issued. Any Purchase Order resulting from the Quotation must be placed within thirty (30) days of the Quotation in order for the prices set forth therein to remain firm.

 

4. PURCHASE ORDERS, ACCEPTANCE OF PURCHASE ORDERS

Any Purchase Order received by Seller from Purchaser is an offer to purchase the Goods and/or services identified in the Purchase Order and is subject to Seller's prior approval. Seller may accept the Purchase Order by issuing a written, signed acknowledgment or by commencing performance under the terms of the Agreement. All Purchase Orders are subject to and shall be governed exclusively by these Terms and Conditions. Purchaser acknowledges and agrees that it alone has selected the type and quantity of Goods being purchased from Seller.

 

5. PRICES

Stated prices apply only to the specific quantities and delivery schedule shown. Unless specifically referenced in the Purchase Order, prices do not include sales, use, excise, privilege or other taxes, shipping, packing or transportation costs or any insurance charges, and Purchaser shall pay all such taxes, fees, costs and charges. If the Purchase Order indicates that the purchase price includes any other governmental impositions, the purchase price is based upon the amount of those impositions as of the date of the Purchase Order, and in the event of any increase in those costs, the purchase price shall be increased equivalently.

 

6. CHANGE AND CANCELLATION

Following the acceptance of the Purchase Order by Seller:

  • The Agreement shall not be subject to cancellation, change, or reduction in amount, nor to any suspension by Purchaser of deliveries, without Seller's prior written consent.
  • Any request by Purchaser for changes to the Purchase Order shall be subject to the Seller's written agreement and shall entitle Seller to modify the price of the Goods and any other terms of the Agreement affected by such change, including without limitation delivery dates, transportation terms and packaging requirements. Purchaser shall pay any additional costs of Seller by reason of any change, interruption of production or other action or default of Purchaser. Any agreed upon changes shall be affected by a written change order.

 

7. PAYMENT TERMS AND SECURITY INTEREST

  • Purchaser will be invoiced upon Seller's acceptance of the Purchase Order. Unless otherwise stated on the Seller's invoice, full payment will be due upon delivery of the Goods and completion of the services, as applicable. Payment terms are subject to the Purchaser maintaining a credit status acceptable to the Seller. All payments and references to payments for Seller services are and shall be in US Dollars. No discounts may be taken without the written agreement of Seller. Each shipment shall be considered a separate and independent transaction and payment thereof shall be made accordingly.
  • Purchaser may not hold back or set-off any amounts owed to Seller in satisfaction of any claims asserted by Purchaser against Seller or any of Seller's affiliates.
  • Purchaser hereby grants Seller a purchase money security interest in the Goods wherever located, including all substitutions, replacements and proceeds thereof, including insurance proceeds, to secure Purchaser's obligation to pay the purchase price and any other charges owed to Seller by Purchaser, and agrees that the Agreement shall be effective as a security agreement between Seller and Purchaser as to the Goods. Purchaser further agrees that Seller may (but is not obligated to) take any actions it deems appropriate to evidence and perfect such security interest, including but not limited to requiring a separate security agreement and filing Uniform Commercial Code financing statements. Purchaser authorizes Seller to file such financing statements, and Purchaser shall execute a written security agreement in favor of Seller in the form prepared by Seller and presented to Purchaser. While subject to Seller's security interest, Purchaser will keep the Goods free and clear from any and all other liens, claims, taxes and encumbrances.
  • If Purchaser in good faith disputes any amount listed on the invoice, within ten (10) days from date of invoice Purchaser shall 1) pay the undisputed portion of the Invoice to the Seller, and 2) provide a detailed description of its question(s) or objection(s) to the remainder of the invoice. Acceptance by Seller of any payment in an amount less than the amount then due shall be deemed an acceptance on account only, and Purchaser shall be responsible to pay the balance of the amount then due. If Purchaser fails to raise a question or objection within ten (10) days from date of invoice, Purchaser agrees that the invoice is accurate and fully due and payable. If Purchaser timely raises a question or objection to the invoice, Purchaser shall pay the disputed amount or other amount agreed to by the parties in writing within ten (10) days of the resolution of the Purchaser's question(s) or objection(s) or a final decision of the court on the issue.
  • Purchaser shall be solely responsible for any and all extra charges assessed against Purchaser's Goods, including without limitation, storage charges, that result out of the Purchaser's or any third party's acts or omissions. Seller has no obligation to pay for such charges on Purchaser's behalf. If the Seller elects to pay for such extra charges, Purchaser shall immediately reimburse Seller for any and all such extra charges upon request.
  • If Purchaser does not pay any amounts due hereunder on time, Seller reserves the right to charge Purchase 1-1/2% per month (or the maximum rate permitted by law, if less) on the unpaid balance until paid. Payment of such interest shall not operate to release Purchaser from its obligation to make payments on the due date. Purchaser shall immediately reimburse Seller for the costs and expenses of collection (including, without limitation, costs and expenses of investigation, costs and expenses of legal actions or proceedings and reasonable attorneys' fees and expenses, whether or not legal action is actually commenced) of any overdue amount owed by Purchaser to Seller, and such collection costs shall also be subject to the interest charges.

 

8. DELIVERY OF GOODS, RISK OF LOSS, TRANSFER OF TITLE

  • The delivery date shall be set forth on the Purchase Order. All delivery dates are estimates. Seller's obligation to deliver Goods is conditional on the timely receipt by Seller of documents and information necessary for the sale of Goods and completion of the Purchase Order, any down payment, Purchaser's compliance with the Agreement, and Purchaser's maintaining credit satisfactory to Seller. Except as is otherwise specified in the Seller's quotation documents, all shipments shall be delivered F.O.B. Seller's facility, and all deliveries shall be via common carrier or some other reasonable means chosen by Seller. Partial deliveries shall be allowed.
  • Seller may suspend or delay performance or delivery at any time pending receipt of assurances, including full or partial prepayment or payment of any amounts owed, adequate to Seller in its discretion, of Purchaser's ability to pay. Failure to provide such assurances shall entitle Seller to cancel the Purchase Order without further liability or obligation to Purchaser. Seller may also require Purchaser to pay for shipments C.O.D. or C.I.A. in the event Seller does not receive adequate assurances of payment, in its sole discretion.
  • Risk of loss and damage shall pass to Purchaser at the F.O.B. point upon delivery of such Goods to the common carrier.
  • Title to the Goods shall pass to Purchaser after Seller receives full and final payment.
  • Nothing herein shall be construed as limiting Seller's right to stop the Goods in transit and repossess same if, for example and without limitation, (a) payment of the purchase price, as required under the Agreement, has not been made to Seller, (b) Purchaser is or is likely to become insolvent, make an assignment for the benefit of creditors or will be unable to meet its obligations as they become due, (c) a petition in bankruptcy or insolvency is or is likely to be filed by or against Purchaser, or (e) Seller reasonably believes that Purchaser will not be able to pay Seller the amounts due hereunder.

 

9. ACCEPTANCE AND REJECTION

  • In the event of any shortage, damage or discrepancy in or to a shipment of the Goods or other nonconformity, Purchaser shall timely notify Seller within ten (10) days of delivery of the Goods to Purchaser. After such period and in the absence of such notice to Seller, Purchaser shall be deemed to have accepted the Goods. All sales are final and Goods cannot be returned without Seller's prior written authorization determined in Seller's sole discretion.
  • Purchaser shall timely notify Seller within five (5) days of completion of Seller's services of any issues related to the services. After such period and in the absence of such notice to Seller, Purchaser shall be deemed to have accepted the services provided by Seller without any objections.

 

10. INSURANCE

  • During any period in which Seller has a security interest in the Goods, Purchaser shall keep the Goods insured against all risks of loss or damages from every cause whatsoever for not less than the replacement value thereof. The insurance shall be in form and amount, and from an insurer, suitable to Seller and shall name Seller as loss payee under physical damage coverage as its interest may appear and as additional insured under liability coverage. Each insurer shall agree, by endorsement upon the policy issued by it and furnished to Seller, that it will give Seller not less than thirty (30) days written notice before the policy shall be altered or canceled.
  • Unless requested to do so in writing and confirmed to Purchaser in writing, Seller is under no obligation to procure insurance on Purchaser's behalf; in all cases where Seller so agrees to procure insurance, Purchaser shall pay all premiums and costs in connection with the Seller's procuring the requested insurance.

 

11. STATUS OF THE PARTIES

With respect to all services performed and/or Goods provided by Seller to Purchaser, the Seller acts and shall be at all times an independent contractor of Purchaser, and nothing contained in these Terms and Conditions or otherwise shall be construed to create any joint venture, partnership, or other association between the parties other than that of independent contractor.

 

12. NO LIABILITY FOR THE SELECTION OR SERVICES OF THIRD PARTIES

Except where Purchaser requests in writing that the Seller engage specific third parties to perform the services for Purchaser, the Seller shall use reasonable care in its selection of third parties, or in selecting the means or methods of performing services and/or providing Goods to Purchaser. Any advice by the Seller that a particular third party has been or should be selected to render services shall not be construed to mean that the Seller warrants or represents that such a third party will render such services nor does Seller assume any responsibility or liability for any acts and/or omissions of such third parties and/or its agents. Purchaser agrees to assert and bring any and all claims in connection with the acts or omissions of a third party solely against such third party and/or its agents; except where a conflict of interest or business conflict exists, upon Purchaser's request, the Seller shall reasonably cooperate with Purchaser in connection with any such claim, and Purchaser shall pay or reimburse Seller for its actual charges or costs incurred in connection with such cooperation.

 

13. LIMITED WARRANTY

Subject to the other terms of these Terms and Conditions, Seller warrants that (a) at the time of delivery of the Goods to Purchaser, the Goods shall be of the quantity, type and description specified in the Purchase Order, and (b) upon completion of the services, the services have been performed as described in the Purchase Order. This limited warranty does not cover Seller's abuse, mishandling, misuse, or negligence, or accidents or damage caused by natural causes such as fire, storm, or flood or other causes beyond the reasonable control of Seller. THE EXCLUSIVE REMEDY UNDER THIS LIMITED WARRANTY SHALL BE THE REPLACEMENT OF THE NONCONFORMING GOODS WITH SAME OR SUBSTANTIALLY SIMILAR GOODS, COMPLETION OF THE AGREED UPON SERVICES, OR THE REFUND OF THE PURCHASE PRICE PAID FOR THE NONCONFORMING GOODS, AS MAY BE APPLICABLE, AT SELLER'S SOLE AND ABSOLUTE DISCRETION.

 

14. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY

EXCEPT FOR THE LIMITED WARRANTY UNDER SECTION 13, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES TO THE PURCHASER OF ANY KIND, EITHER EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, DURABILITY, RELIABILITY, SUITABILITY, CONDITION OR QUALITY, OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE), REGARDING OR RELATED TO THE GOODS AND SERVICES SOLD AND/OR PROVIDED BY SELLER OR ANY THIRD PARTY ON BEHALF OF SELLER TO PURCHASER, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY DISCLAIMED. EXCEPT FOR THE LIMITED WARRANTY UNDER SECTION 13, ANY AND ALL GOODS PROVIDED OR SOLD TO PURCHASER ARE SOLD OR PROVIDED ON AN "AS IS" "HOW IS" AND "WHERE IS" BASIS. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHALL NOT BE RELIED ON BY PURCHASER AND ARE NOT PART OF ANY AGREEMENT BETWEEN SELLER AND PURCHASER.

PURCHASER'S REMEDY UNDER SECTION 13 IS PURCHASER'S SOLE REMEDY. IN CONNECTION WITH ANY SERVICES OR GOODS PROVIDED AND/OR SOLD TO PURCHASER BY SELLER OR BY ANY THIRD PARTY RETAINED BY SELLER, ANY DELAY IN PERFORMING THE SERVICES OR PROVIDING THE GOODS, OR THE FAILURE TO PERFORM SERVICES OR PROVIDE GOODS, SELLER SHALL NOT HAVE ANY LIABILITY TO THE PURCHASER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, STATUTORY, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE, LOSS OF GOODWILL, EVEN IF IT HAS BEEN PUT ON NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

WITHOUT LIMITING OR EXPANDING THE PROVISIONS OF ANY OF THE SECTIONS OF THESE TERMS AND CONDITIONS AND SUBJECT TO THE FOLLOWING SENTENCE, IN NO EVENT SHALL SELLER'S LIABILITY FOR MONETARY DAMAGES EXCEED THE AMOUNT THE PURCHASER HAS ACTUALLY PAID TO THE SELLER FOR THE GOODS OR SERVICES WITH RESPECT TO WHICH SUCH LIABILITY AROSE.

Purchaser acknowledges and agrees that the provisions of these Terms and Conditions that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of and are fundamental to the parties' understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions of these Terms and Conditions and shall be enforced to the fullest extent permitted by law.

Without limiting the generality of the foregoing, THE PURCHASER AGREES THAT ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS OF DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID, EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCES THAT CAUSE ANY EXCLUSIVE REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.

The limitations contained in this Section apply regardless of the form of action, including actions in contract, tort (including negligence), and strict liability.

 

15. INDEMNIFICATION

Purchaser shall indemnify, defend and hold the Seller harmless from any and all claims, actions, liabilities, losses, expenses, penalties, fines, damages and costs including, without limitation, reasonable attorneys' fees, which the Seller may at any time incur, suffer or be required to pay that arise from or are in connection with (a) any breach by Purchaser of these Terms and Conditions, (b) any acts or omissions by Purchaser, (c) any acts or omissions of third parties engaged by the Seller pursuant to the express written instructions from Purchaser, and/or (d) any conduct of Purchaser and those under its direction or control.

 

16. FORCE MAJEURE

Seller shall not be liable for any delay, impairment or failure of performance and any such delay, impairment or failure of performance will be excused if it results in whole or in part from any cause beyond the Seller's control including, without limitation, fires, floods, explosions, accidents or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, terrorism, piracy, riots or embargo delays, government allocations or priorities, shortages of transportation, fuel, labor or materials, severe weather conditions, changes of law or regulation, or any other circumstance or cause beyond Seller's control. Such excuse from performance shall extend so long as the event continues to delay or impair the Seller's performance.

 

17. TERMINATION, DEFAULT AND REMEDIES

The Agreement may be terminated by Seller at any time if (a) the terms governing the Agreement are not strictly complied with by Purchaser, (b) Purchaser becomes insolvent, makes an assignment for the benefit of creditors or is unable to meet its obligations as they become due, (c) a petition in bankruptcy or insolvency is filed by or against Purchaser, (d) any amounts due to the Seller by Purchaser are unpaid, or (e) Seller reasonably believes that Purchaser will not be able to pay Seller the amounts due hereunder. Such termination shall not prejudice Seller's rights to any amounts due under this Agreement. In the event of the breach of this Agreement by Purchaser, in addition to any other rights or remedies available to it, Seller may suspend performance of the Agreement until Purchaser's breach has been cured. In the event of a breach of this Agreement by either party which is not cured within 30 days after written notice of default by the other party (other than the failure to pay money when due, in which case no notice of default shall be necessary), in addition to any other rights or remedies a party may have, the non-breaching party may terminate this Agreement by written notice to the other.

 

18. STATED REMEDIES ARE NON-EXCLUSIVE

The remedies stated in these Terms and Conditions are not exclusive of any other remedies provided for by law or at equity.

 

19. AMENDMENTS AND MODIFICATIONS

These Terms and Conditions may only be modified, altered or amended in writing signed by both Purchaser and Seller, and any attempt to unilaterally modify, alter or amend same shall be null and void.

 

20. NUMBER AND GENDER

Where appropriate, words that reflect the masculine, feminine, or neuter gender shall be construed to also reflect the other genders; and words that reflect either the singular or plural shall also be construed to reflect the other.

 

21. SECTION HEADINGS

The Section headings contained in these Terms and Conditions are for reference purposes only and shall not in any way affect the meaning or interpretation of these Terms and Conditions.

 

22. MULTIPLE COUNTERPARTS

Any Agreement entered into by Purchaser and Seller may be executed in multiple counterparts, each of which shall constitute an original agreement, but all of which shall constitute only one agreement. The signatures need not all be on a single copy of any Agreement between the parties, and may be facsimiles rather than originals, and shall be fully as effective as though all signatures were originals on the same copy.

 

23. SEVERABILITY

Any provision of these Terms and Conditions which is determined to be invalid or unenforceable shall not affect the remainder of these Terms and Conditions, which shall remain in full force and effect.

 

24. NO WAIVER

No waiver by Seller of any provision of these Terms and Conditions shall be effective unless it is written and signed by Seller. The Seller's decision to waive any provision herein or to waive any breach by Purchaser of any provision herein, either by conduct of otherwise, shall not constitute or be deemed to be a further or continuing waiver of such provision or a waiver of any preceding or succeeding breach of the same provision or to otherwise waive or invalidate any other provision herein.

 

25. NO THIRD-PARTY BENFICIARY

Seller does not intend to confer any benefits in providing the services for the Purchaser on any person, entity or any other third party other than Purchaser, even if such a third party is paying, directly or indirectly, for the Seller's services.

 

26. LIMITATIONS OF ACTIONS

Except as otherwise provided in these Terms and Conditions, all claims against Seller must be made in writing and received by Seller, within 60 days of the event giving rise to claim; the failure to give Seller such timely notice shall be a complete defense to any suit or action commenced by Purchaser with respect to such claim. All suits against Seller must be filed and properly served on the Seller within one (1) year of (a) the delivery of the Goods (or the applicable portion of the Goods) or (b) the completion of the services, and thereafter shall be forever barred.

 

27. GOVERNING LAW; JURISDICTION AND VENUE

The Agreement, these Terms and Conditions and the relationship between the parties shall be governed by the law of the State of Michigan, USA without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Michigan. The parties agree that State of Michigan shall be the exclusive jurisdiction for all disputes. The Oakland County Circuit Court or the Federal District Court for the Eastern District of Michigan is a convenient venue for both parties.

 

28. NOTICES

Any notice to Seller or Purchaser shall be in writing, and shall be deemed sufficient if personally delivered, sent to the party's last known mailing address, and/or to such other address as to which proper notice has been given, by commercially reputable courier service provided receipt is confirmed, or via facsimile or e-mail provided in either case that proper notice of the facsimile number(s) and e-mail address(es) has been given pursuant to this Section, and receipt is confirmed. Notice shall be deemed to have been given when personally delivered, one (1) business days after being delivered by commercially reputable courier service, one (1) business day after acknowledgment of receipt via facsimile transmission, or one (1) business day after having been sent by e-mail.

Rev. 1, 9/28/2011