These Terms and Conditions of Sale (“Terms”) govern all sales of goods (“Goods”) by New Star Foodservice (“Seller”) to the purchaser (“Buyer”).
- ACCEPTANCE; EXCLUSIVE TERMS; ENTIRE AGREEMENT
(a) Offer and Acceptance. Seller’s quotations are offers to sell subject solely to these Terms, and Buyer’s acceptance is expressly limited and subject to these Terms.
(b) Rejection of Additional Terms. Seller expressly rejects any additional, inconsistent, or different terms in any document issued by Buyer, and Seller’s performance does not constitute acceptance of any such terms.
(c) Entire Agreement. These Terms, together with Seller’s written quotation or order acknowledgment, constitute the entire agreement and supersede all prior communications.
(d) Seller Modifications to Terms. Seller may modify these Terms from time to time by posting updated terms or providing them to Buyer; modifications apply to orders accepted by Seller after the effective date of such modifications.
- ORDERS; PRICING; MINIMUMS; ALLOCATION; DISCONTINUANCE
(a) Order Acceptance. All orders are subject to written acceptance by Seller.
(b) Pricing; Changes; Discontinuance; Allocation. Seller reserves the right to modify pricing, discontinue products, or allocate available inventory in its sole discretion. Seller may, without liability, allocate, delay, substitute reasonable equivalents, or cancel affected orders upon product discontinuance or allocation events, with notice to Buyer.
(c) Currency. All prices are stated in U.S. Dollars.
(d) Minimum Order Value. Minimum order value is $100.00 USD unless otherwise agreed in writing.
(e) Exclusions. Pricing does not include freight, insurance, duties, or taxes unless expressly stated.
(f) Suspension or Termination for Cause. In addition to any other rights, Seller may suspend performance, withhold shipments, modify schedules, or terminate any order, in whole or part, immediately upon notice if: (i) Buyer breaches these Terms or any order (including, without limitation, failing to make any payments as and when due and owing); (ii) Buyer engages in unauthorized resale or brand misuse; or (iii) a force majeure or supply disruption requires suspension or termination.
- PAYMENT TERMS; CREDIT; SECURITY INTEREST; SETOFF
(a) Terms Subject to Credit Approval. Standard payment terms are net thirty (30) days from invoice date, subject to credit approval.
(b) Insecurity Remedies. Seller may modify credit terms, require advance payment, suspend shipment, or cancel orders upon reasonable insecurity regarding Buyer’s financial condition.
(c) Interest on Late Payments. Past-due amounts accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law.
(d) No Setoff. Buyer shall not deduct or offset any amounts without Seller’s prior written consent. This restriction applies to any claims Buyer may allege, whether related or unrelated.
(e) Security Interest. Buyer grants Seller a purchase-money security interest in the Goods until paid in full and authorizes Seller to file UCC financing statements to perfect such interest.
(f) Collection Costs. Buyer shall pay Seller’s reasonable attorneys’ fees and collection costs incurred in enforcing payment obligations.
- SHIPPING; TITLE; RISK OF LOSS; STORAGE
(a) Shipping Terms. Unless otherwise agreed in writing, all shipments are EXW (Incoterms® 2020), Seller’s facility, Georgetown, Texas. Title and risk of loss pass to Buyer upon tender of Goods at Seller’s facility.
(b) Schedules; Estimates. Delivery dates are estimates only and are not guaranteed.
(c) Carrier Claims. Buyer is responsible for filing freight claims directly with the carrier.
(d) Storage; Risk Transfer on Storage. If shipment is delayed at Buyer’s request or due to Buyer’s inability to receive Goods, Seller may store the Goods at Buyer’s expense, and risk of loss transfers upon readiness for shipment.
(e) Free Freight. Free freight applies only to qualifying orders over $2,500 USD shipped to one location within the continental United States and excludes expedited shipping, special routing, and international shipments.
- INSPECTION; ACCEPTANCE; CLAIMS; LIMITATIONS
(a) Inspection Period. Buyer shall inspect Goods within five (5) business days of receipt.
(b) Notice of Claims. Claims for shortage, damage, or nonconformity must be submitted in writing within five (5) business days of receipt.
(c) Irrevocable Acceptance. Failure to provide timely written notice constitutes irrevocable acceptance.
(d) Limitation Period. No action arising out of the sale of Goods may be brought more than one (1) year after the date of shipment.
(e) Condition of Returned Goods. Claims must include reasonable supporting documentation and an opportunity for Seller to inspect Goods in situ prior to return or disposition.
- RETURNS
(a) RMA Required. Returns require prior written Return Merchandise Authorization (“RMA”).
(b) Return Conditions and Window. Authorized returns must be in saleable condition, in original packaging, and returned within ninety (90) days of shipment.
(c) Non-Returnable Items. Custom, made-to-order, discontinued, clearance, or special-buy items are non-returnable.
(d) Restocking; Freight. Approved returns may be subject to a restocking fee of up to fifteen percent (15%), and Buyer shall prepay return freight.
- CUSTOM AND MADE-TO-ORDER GOODS
(a) Non-Cancelable; Non-Returnable. Orders for custom or made-to-order Goods are non-cancelable and non-returnable once production has commenced.
- TAXES; FEES
(a) Buyer Taxes. Buyer is responsible for all sales, use, excise, VAT, import duties, or similar taxes imposed on the sale or shipment of Goods, excluding taxes based solely on Seller’s net income.
(b) Withholding; Gross-Up. Payments shall be made free and clear of any withholding; if withholding is required by law, amounts payable shall be increased so Seller receives the full amount it would have received absent such withholding.
(c) Governmental Fees. Buyer shall pay all governmental fees, permits, brokerage, and customs charges associated with delivery and importation.
- LIMITED WARRANTY; EXCLUSIONS; PROCEDURES
(a) Limited Warranty. Seller warrants that the Goods will materially conform to Seller’s written specifications and be free from defects in materials and workmanship for twelve (12) months from shipment.
(b) Disclaimers. Except as expressly provided above, Seller disclaims all other warranties, express or implied, including the implied warranties of merchantability and fitness for a particular purpose. Buyer is solely responsible for determining suitability of Goods for its intended use.
(c) Remedies. Seller’s sole obligation and Buyer’s exclusive remedy shall be, at Seller’s option, repair, replacement, or refund of the purchase price of nonconforming Goods.
(d) Exclusions and Limitations. The warranty does not cover: (i) normal wear and tear; (ii) damage from misuse, improper storage or handling, unauthorized repairs or modifications, or use not in accordance with Seller instructions; (iii) Goods sold as clearance, discontinued, or special-buy; (iv) designs, specifications, or materials supplied by Buyer; or (v) consumables. Warranty claims require proof of purchase, timely notice within the inspection period for visible defects and within the warranty period for latent defects, and compliance with Seller’s RMA process. Any replacement or repair does not extend the original warranty period.
- LIMITATION OF LIABILITY
(a) Cap. Seller’s total cumulative liability arising out of or relating to the sale of Goods shall not exceed the purchase price of the Goods giving rise to the claim.
(b) Exclusion of Damages. In no event shall Seller be liable for indirect, incidental, consequential, special, exemplary, or punitive damages, including lost profits, loss of goodwill, business interruption, or recall expenses.
(c) Basis of Bargain. The limitations in this Section are a fundamental allocation of risk and apply to the maximum extent permitted by law.
- PRODUCT RECALLS
(a) Seller-Caused Recall. If a recall is required solely due to a defect in Seller’s manufacture, Seller’s obligation shall be limited to replacement of affected Goods or refund of the purchase price.
(b) Buyer-Caused Recall. Buyer shall bear all recall costs arising from Buyer’s storage practices, repackaging, relabeling, distribution methods, marketing claims, or regulatory noncompliance.
(c) Public Statements. Buyer shall not issue public statements regarding recalls without Seller’s prior written consent unless required by law.
(d) Cooperation; Traceability. Buyer shall maintain records to enable traceability and shall promptly cooperate with Seller on any field action.
- RESTRICTION ON RESALE; ONLINE MARKETPLACES; BRAND PROTECTION
(a) Authorized Channels Only. Buyer shall resell the Goods solely through Buyer’s own physical locations and/or Buyer-owned and operated websites, unless otherwise expressly authorized in writing by Seller.
(b) Prohibition on Third-Party Marketplaces. Buyer shall not advertise, offer for sale, or sell the Goods on or through any third-party marketplace, platform, or fulfillment program without Seller’s prior written consent, including (without limitation), Amazon (including FBA), Walmart Marketplace, eBay, Etsy, Overstock, Wayfair, Faire, or similar marketplaces (whether online, drop-shipping platforms, or otherwise).
(c) No Indirect Sales. Buyer shall not sell or transfer the Goods to any person or entity that Buyer knows or reasonably should know intends to resell the Goods on a prohibited third-party marketplace.
(d) Remedies; Injunction. Any unauthorized resale is a material breach of these Terms, and Seller may (in addition to all other remedies available to it at law or in equity) immediately suspend shipments, terminate purchasing privileges, withhold rebates, discounts, or cooperative marketing funds, and seek injunctive relief without the requirement of posting bond.
(e) Brand Protection Measures. Buyer shall not alter packaging, labeling, UPC codes, or remove traceability identifiers, and shall cooperate with Seller in enforcing brand protection and distribution controls.
- INDEMNIFICATION
(a) Buyer Indemnity. Buyer shall indemnify, defend, and hold harmless Seller and its affiliates, and each of their respective directors, officers, employees, agents, successors, and assigns (collectively, the “Seller Indemnitees”), from and against any and all claims, demands, suits, actions, proceedings, liabilities, losses, damages, judgments, fines, penalties, settlements, costs, and expenses of every kind and nature (including all reasonable attorneys’ fees, experts’ fees, court costs, and other litigation or dispute-resolution expenses, whether incurred before, during, or after any litigation, at trial or on appeal, or in connection with enforcing this indemnity) arising out of, relating to, or resulting from: (a) Buyer specifications; (b) improper storage or handling by Buyer or its contractors; (c) relabeling or repackaging by Buyer or its contractors; (d) marketing representations made by Buyer or on Buyer’s behalf; (e) Buyer’s regulatory noncompliance; or (f) Buyer’s resale activities (including distribution and commercialization by Buyer or its downstream customers). This indemnification expressly includes any and all third-party claims, demands, or actions related to the foregoing.
(b) Scope; Procedures. Indemnity includes attorneys’ fees and costs, and applies to claims by any third party. Seller may control defense with counsel of its choice at Buyer’s expense where Seller reasonably determines its interests are not adequately protected.
- AUDIT; COMPLIANCE VERIFICATION
(a) Records and Audit. Buyer shall maintain complete and accurate records reasonably sufficient to demonstrate compliance with these Terms, including resale channels, locations, and traceability. Upon reasonable advance notice, Seller may audit such records and Buyer’s relevant facilities during normal business hours.
(b) Remedies for Noncompliance. If an audit reveals material noncompliance, Buyer shall promptly cure, reimburse Seller’s reasonable audit costs, and Seller may exercise any contractual remedies.
- FORCE MAJEURE; ALLOCATION
(a) Excused Performance. Seller shall not be liable for delay or failure in performance caused by events beyond its reasonable control, including acts of God, labor disputes, supply shortages, transportation disruptions, pandemics, governmental actions, or raw material shortages.
(b) Allocation Rights. Seller may allocate available inventory among customers in its discretion during such events Seller’s allocation and any discontinuance or substitution shall not constitute a breach.
- EXPORT CONTROL; SANCTIONS
(a) Compliance. Buyer shall comply with all applicable export control and sanctions laws, and Goods may not be exported or re-exported in violation of applicable law.
(b) End-Use; Screening. Buyer shall not sell to prohibited end-users or for prohibited end-uses and shall perform customary screening.
- CONFIDENTIALITY
(a) Protection of Information. Buyer shall maintain the confidentiality of Seller’s pricing, product specifications, and non-public business information.
- GOVERNING LAW; VENUE
(a) Governing Law. These Terms shall be governed by the laws of the State of Texas, without regard to conflict-of-law principles.
(b) Venue; Jurisdiction. Any legal action shall be brought exclusively in the state or federal courts located in Williamson County, Texas, and Buyer consents to personal jurisdiction therein.
- TERMINATION; SUSPENSION; RESERVATION OF RIGHTS
(a) Seller Remedies. Seller may suspend or terminate any order or these Terms, in whole or in part, immediately upon notice for any breach, failure to pay, insolvency or bankruptcy event, unauthorized resale, or for any other cause stated herein.
(b) Cumulative Rights. Rights and remedies are cumulative and in addition to those available at law or equity; no election of one remedy precludes another.
(c) Reservation for Allocation and Discontinuance. Seller expressly reserves rights to allocate inventory, discontinue Goods, and substitute reasonable alternatives as provided herein without liability.
- ASSIGNMENT
Buyer may not assign its rights or obligations without Seller’s prior written consent, which may be withheld in Seller’s sole and absolute discretion. Any attempted assignment by Buyer in violation of the foregoing is void.
- SEVERABILITY
If any provision of these Terms is found unenforceable, the remaining provisions shall remain in full force and effect.
- GENERAL; SURVIVAL; WAIVERS
(a) Waiver; Injunctive Relief. No failure or delay in exercising any right operates as a waiver. Seller may seek injunctive relief for actual or threatened breaches of Sections 12, 13, 14, 16, and 17 without posting bond.
(b) Notices. Notices shall be in writing and effective upon receipt at the addresses on the applicable order acknowledgment or as updated in writing.
(c) Survival. Sections 3(c), 3(e), 3(f), 4(d), 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 21, and 22, together with payment obligations, disclaimers, limitations of liability, indemnities, confidentiality, audit rights, and governing law/venue provisions, survive expiration or termination.
- DEFINITIONS; INTERPRETATION
(a) Capitalization. Capitalized terms have the meanings set forth herein.
(b) Conflicts. In the event of conflict between these Terms and an order, these Terms control unless Seller expressly agrees in a signed writing.
(c) Headings. Headings are for convenience only and do not affect interpretation.