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Order Terms and Conditions
Last updated: February 26, 2021
Please read these terms and conditions carefully before using Our Service.
1. Terms and Conditions.
The following are the general terms and conditions regarding purchase and sale transactions (Orders) that take place between Cascade Fruit Marketing Inc, dba foodguys (Seller) and the Company (Purchaser), collectively known as Parties. Through the act of issuing a Purchase Order to, or accepting an Order Acknowledgment from, the Seller, for the Product defined within those documents, the Purchaser and Seller agrees to the following:
2. Product Warranty and Non-Conforming Products.
A. Products are subject to Seller’s limited warranty in effect from time to time (the “Product Warranty”). The Seller warrants that all products sold will meet the specifications agreed upon at the time of the transaction. This warranty is good for the entirety of the products accepted shelf-life/best buy date, on the condition that the Purchaser can establish the Products were stored within the required parameters. The Seller is not liable for defects, perceived or real if not outlined in the specification at the time of the transaction, or for subjective qualities that are not numerically definable with the specification. All Products claimed to be defective must be made available to Seller for inspection and, if appropriate, for replacement, at the Purchaser’s cost. Seller reserves the right to offer an allowance in lieu of returns. Seller’s liability under its warranty shall be limited to the replacement of any Products, agreed by the Seller, to be defective. The warranty does not apply to any defect caused by abuse, misuse, neglect, tampering, accident or damage by the Purchaser or agent of the Purchaser. Without limiting the foregoing, the warranty hereunder specifically excludes and does not apply to the following: (i) Products damaged or abused in shipments arranged by the Purchaser or Agent of the Purchaser, (ii) defects and failures due to operational failures, either intentional or otherwise, or in an otherwise improper manner including use not intended by the specifications or instructions; (iii) Products which have been in any way tampered with, modified or altered. The warranty is limited to the cost of the Purchased item ONLY.
B. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 2 OF THIS AGREEMENT, SELLER MAKES NO EXPRESS WARRANTIES AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS THOSE TERMS ARE DEFINED IN THE UNIFORM COMMERCIAL CODE OF THE STATE OF OREGON (USA).
C. SELLER’S SOLE LIABILITY FOR ANY PRODUCT SOLD TO PURCHASER IS LIMITED TO THE REPLACEMENT OF SUCH PRODUCT, OR A REFUND OF THE PURCHASE PRICE ACTUALLY RECEIVED BY SELLER FOR SUCH PRODUCT, AT SELLER’S SOLE DISCRETION. SELLER WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, NATURE OR DESCRIPTION WHATSOEVER, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
D. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CLAIM ARISING OUT OF OR RELATED TO (A) ANY ACT OR OMISSION OF ANY THIRD PARTY (INCLUDING WITHOUT LIMITATION ANY FAILURE TO DELIVER THE PRODUCTS), OR (B) ANY PRODUCTS DELIVERED TO A THIRD PARTY (INCLUDING WITHOUT LIMITATION IN CONNECTION WITH ANY RECALL OF THE PRODUCTS OR NONCOMPLIANCE WITH ANY LAW GOVERNING FOOD LABELING, FOOD SAFETY OR ANY OTHER FOOD-RELATED LAWS), AND PURCHASER HEREBY AGREES THAT IT SHALL LOOK SOLELY TO THE APPLICABLE THIRD PARTY FOR ANY CLAIM ARISING OUT OF OR RELATED TO ANY OF THE FOREGOING.
3. Purchaser's Obligations.
In addition to the terms set forth in this Agreement, Purchaser shall: (a) inspect all Products within 48 hours of receipt and notify the Seller immediately of any perceived Product defect. (b) not use the Product without fully inspecting the Product in accordance with GMP (c) list all visibly damaged product upon the BOL at receipt and take pictures documenting the damage in place upon receipt and provide this documentation to the Seller the same day (d) not engage in any unfair practices or make any false or misleading statements or representations about Seller, the Products (e) assume and pay all costs incurred in its performance of its duties under this Agreement; (f) comply with Seller’s terms of sale; (g) notify Seller promptly of any suspected infringement or passing off or any pending or threatened litigation or other proceeding concerning the Products or any intellectual or proprietary property rights which may come to its attention; (h) conduct its activities under this Agreement in strict compliance with all and not violate or conflict with any applicable constitution, law, statute, ordinance, regulation, code, rule, injunction, judgment, order, decree, determination, ruling, permit, license, authorizations, requirements or other restriction of any arbitrator, tribunal, court or other federal, state, municipal or local governmental agency, authority or any department, agency, or political subdivision thereof (“Governmental Laws and Regulations”); and (i) give Seller written notice of any product liability claim made or suit filed with respect to any Product, any investigations or directives regarding the Products issued by any federal, state, or local consumer safety agency, and any notices sent by Purchaser to, or received by Purchaser from, any consumer safety agency regarding the Products immediately upon Purchaser’s receipt or promulgation of the claim, suit, investigation, directive, or notice.
4. Confidential Information; Other Property; Competition.
Purchaser acknowledges that Purchaser will have access to and receive certain proprietary and confidential information and/or trade secrets of Seller (collectively “Confidential Information”).
A. Except in the course of Purchaser’s performance hereunder, Purchaser will not, directly or indirectly, use, divulge, disseminate, disclose or communicate to any person or entity any of the Confidential Information in any manner whatsoever. Notwithstanding anything to the contrary contained in this Agreement, Confidential Information does not include information in the public domain, information received by Purchaser from a person or entity not, directly or indirectly, under an obligation of confidentiality to Seller, or information that later becomes public, unless such information is made public by Purchaser in breach of this Agreement or by any other person or entity directly or indirectly under an obligation of confidentiality to Seller.
B. All Confidential Information and other property in Purchaser’s possession or control, whether prepared by Purchaser or otherwise, shall be and remain the exclusive property of Seller and shall be returned by Purchaser upon the effective date of the termination of the Term or upon the request of Seller, and Purchaser shall provide a signed certification to Seller confirming Purchaser’s return of all such Confidential Information.
C. Purchaser agrees that it is impossible to measure in money the damages which will be sustained by Seller if Purchaser breaches or defaults in the full and timely performance of this Section 8 Accordingly, Purchaser agrees that if Purchaser breaches or defaults in the full and timely performance of this Section 8 then, in addition to any and all other rights and remedies available to Seller pursuant to this Agreement, at law, in equity or otherwise, Seller shall be entitled to seek the immediate entry of injunctive relief without notice to Purchaser and without the requirement of posting any bond or other security therefor.
D. During the Term of this Agreement, Purchaser covenants and agrees that that it will not, directly or indirectly, sell, distribute or offer to sell any goods comparable or competitive with the Products.
The Parties shall defend, indemnify and hold Parties harmless of, from and against any and all claims, suits, liability, loss, damages, costs and expenses, including reasonable attorneys’ fees, costs and expenses incurred by either Party arising out of or relating to (a) the other Party’s acts, omissions or negligence, or breach of or violation of any term, condition, representation, warranty, covenant, duty or obligation contained in this Agreement; and (b) any claim that any name or logo related to the Products infringes or violates the rights of any person or entity.
Payment terms are set forth on the Order Acknowledgment. Seller may, at its sole discretion, impose a late charge equal to the lesser of 1.5% per month or the highest applicable rate allowed by law on all amounts not paid when due. Seller shall be entitled to all amounts incurred in collection of any amounts due from the Purchaser and/or to enforce this Agreement, including without limitation, attorneys’ fees, court costs and expenses.
7. Shipping and Ownership/Possession.
The Incoterm listed on the Order Acknowledgement will define the responsibilities of the Seller and Purchaser as it relates to Products in transit. Seller will attempt to make Products available in accordance with the Order; however, delivery dates are approximate and do not constitute a contractual obligation on the part of Seller. Seller shall not be responsible for delays nor shall the Purchaser refuse to accept deliveries because of such delays.
8. Foreign Corrupt Practices Act.
A. Purchaser shall at all times: (i) conduct its activities under this Agreement in strict compliance with all applicable United States and foreign statutes, laws, ordinances, rules, regulations, licenses, permits, authorizations and registration; (ii) pay all fees and other charges required by such laws, rules, regulations and orders; and (iii) have in full force and effect all licenses, permits, authorizations, registrations and qualifications from all governmental departments and agencies, anywhere in the world, to the extent necessary to perform its obligations hereunder.
B. Purchaser expressly acknowledges and agrees that certain laws of the United States, including the Foreign Corrupt Practices Act, impose penalties on United States persons, firms and entities that participate directly or indirectly in making payments to any foreign government official, foreign political party or candidate for foreign political office (“Government Official”). Accordingly, and without limiting the generality of subsection a above, Purchaser hereby represents, warrants and covenants that, in the performance of its obligations under this Agreement, Purchaser will not offer or promise to make any payment, in currency or property, (i) to any Government Official or (ii) to any third person, firm or entity that in turn will make a payment to any Government Official.
Purchaser may not assign this Agreement without the prior written consent of Seller.
10. Force Majeure
The term “Force Majeure Event” as used in this Agreement shall mean natural calamity (acts of God including, without limitation, crop failures, flood, earthquake, storm, epidemic, natural disasters), war or armed conflict (including, without limitation, hostile actions, blockade, riot or disturbance), government order or regulation (including, but not limited to, adverse change in either federal, state, or local regulation), labor dispute (including, but not limited to walk-out, strike, closing of factory) or occurrence or other conditions which are beyond the reasonable control of the party obligated to perform, but shall exclude payment obligations. In the event that either party experiences a Force Majeure Event and ceases to perform its obligations under the Agreement due to such event, such party shall: (i) immediately notify the other party in writing of such Force Majeure Event and its expected duration; and (ii) take all reasonable steps to recommence performance of its obligations under this Agreement as soon as possible. Should a transaction fall under a Force Majeure condition, the Seller shall have no obligation to the Purchaser to provide alternate or replacement Product.
11. Conflicts Between Agreements.
The parties agree that the terms and conditions of this Agreement shall prevail, notwithstanding contrary or additional terms, in any purchase order, sales acknowledgment, confirmation or any other document issued by either party effecting the purchase and/or sale of Products.
Any and all notices or other communications required or desired to be given in connection with this Agreement will be given in writing and will be deemed effective upon personal delivery, on the third day after deposit if sent by an internationally recognized overnight delivery service which maintains records of the time, place and receipt of delivery, and in each case if addressed as follows:
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