TERMS AND CONDITIONS
These Terms and Conditions (the “Terms and Conditions”) are part of each Order that Marcus Food Co. or any of its Affiliates issues or accepts as the buyer of goods. In these Terms and Conditions: “Buyer” means Marcus Food Co. or its Affiliate(s), as specified in the Order, and the term “Buyer” used herein includes its Affiliates; “Seller” means the seller or supplier of the goods named in the Order; “goods” mean the goods, products, ingredients, articles, or materials that Buyer is to purchase from Seller as described in the Order; “Order” means one or more related communications in writing between Buyer and Seller that describe the goods and set forth the quantity and price of the purchase and sale of such goods, and include purchase and sales orders, purchase and sales confirmations, and emails and other electronic communications; “Agreement” means the agreement formed pursuant to the Order, including these Terms and Conditions, the terms of Order and of any purchase or sales agreement in writing between Buyer and Seller; and “Affiliate” means at any time any corporation, limited liability company, partnership or other entity or individual that then controls, is controlled by, or is under common control with Buyer, or acting as a contractor, representative, or trader of or for Buyer or other Affiliate under any agreement.
AGREEMENT. If there is a conflict between a provision of any written agreement between Buyer and Seller and a provision of these Terms and Conditions, then the provision of the written agreement shall prevail; provided, however, these Terms and Conditions prevail over any standard terms and conditions of Seller not expressly incorporated into the Order or written agreement. By signing and returning a copy of the Order or by accepting the Order electronically or by shipping the goods, Seller (i) accepts Buyer’s offer, and (ii) if Buyer’s offer is in legal effect an acceptance of an earlier offer by Seller, assents to all terms of the Buyer’s offer that are additional to or different from the terms contained in Seller’s offer.
PRICE. The price to be paid by Buyer shall be as stated in an Order, and all prices are stated and payable in U.S. Dollars unless otherwise provided in an Order. Seller warrants that the prices charged Buyer are no higher than prices charged by Seller to other buyers for similar quantities of goods under similar conditions. If Seller shall establish, prior to shipment under any Order, lower prices or terms more favorable to a buyer than those stated on the Order, the lower prices or more favorable terms will apply to that Order.
TAXES AND FEES. Except as provided in an Order, Seller shall be required to pay any sales, use, franchise, excise, value added, or other taxes, fees, or assessments (whether federal, state, local, or imposed by the laws, regulations, orders, or policies of another nation or authority), or any third-party fees, assessments, or duties arising because of Buyer’s purchase or Seller’s sale of the goods (including, war risk insurance premiums, wharfage, dockage, handling, terminal charges, tariff and custom house classifications, demurrage charges, or other charges (collectively, “Transaction Fees”)). If Buyer agrees in an Order to pay any Transaction Fees, then the dollar amount of the Transaction Fees shall be separately itemized on Seller’s invoice.
PAYMENT TERMS. Invoices shall be paid according to discount terms, or if no discount is offered, according to due date terms indicated in the Order. If no discount or due date is indicated, payment shall be made within forty-five (45) days after receipt and acceptance of the goods under any Order. Discount and due date periods will be computed from the date the goods arrive at Buyer’s point of delivery specified in the Order. Buyer shall not be required to pay any late charge, interest, finance charge or similar charge in excess of an effective rate of 10% per annum. Buyer’s payment of the price does not indicate its acceptance of the goods.
PACKING AND CARTAGE. Unless otherwise provided by the terms of an Order:
(a) Buyer shall not be charged for packing, packaging, cartage, or pallet expenses. Such expenses shall be paid by Seller;
(b) Seller shall include with each shipment a document listing each item and quantity separately, as indicated on the Order;
(c) Seller shall not back order without prior approval of Buyer;
(d) Buyer reserves the right to reject a shipment and return goods at Seller’s expense if each container, and each package therein, are not adequate for reshipment and not marked to meet requirements of existing labeling laws, and existing weight and measure laws. Each container shall bear the name of Seller, unless the goods bear any of Buyer’s proprietary brands; and
(e) Palletized loads shall be delivered on Buyer’s approved pallets only.
DELIVERY. Unless Buyer agrees otherwise in writing: (a) if Buyer’s point of delivery identified in the Order and Seller’s facility from which the goods will be shipped are both located in the United States, Seller shall deliver the goods F.O.B. (Uniform Commercial Code term) to Buyer’s facility identified in the Order; and (b) in all other cases, Seller shall deliver the goods DDP (“delivered duty paid”) (Incoterms® 2020) at Buyer’s point of delivery identified in the Order. Shipments must equal amounts ordered unless otherwise agreed by Buyer. Partial shipments against an Order are not authorized except as may be specifically stated or indicated in the Order. Delivery time is of the essence of the Agreement.
INSPECTION. The Buyer reserves the right to inspect, test and approve goods and to reject any goods not conforming to the terms of the Agreement. Seller acknowledges that Buyer may act as a broker of the goods and may resell them to Buyer’s customers who will inspect such goods for nonconformity. To the extent goods are rejected as nonconforming under an Order, Seller will not replace quantities so rejected without a new Order from Buyer. Nonconforming goods will be held for disposition in accordance with Seller’s instructions at Seller’s risk and expense. Seller’s failure to provide written instructions within five (5) business days or such shorter period as may be commercially reasonable under the circumstances, after notice of nonconformity, shall entitle Buyer to charge Seller for storage and handling, or to dispose of the goods, without liability to the Seller. Payment for nonconforming goods shall not constitute an acceptance thereof or limit or impair Buyer’s right to any legal or equitable remedy. If Seller fails to promptly correct or replace nonconforming goods requested by Buyer, or if Seller breaches any other duty under the Agreement or applicable law, Buyer may cancel the Order for those goods and may cancel all or any part of the balance of the Agreement evidenced by the Order, and Seller shall promptly refund any payments made for the nonconforming goods.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS ABOUT THE GOODS. Seller represents and warrants to Buyer and agrees that (a) the goods that Seller furnishes shall be of good quality, safe for human consumption, merchantable and fit for the purposes for which Buyer intends them (as such terms are used and defined in the Uniform Commercial Code), and free from faults and defects; (b) the goods shall conform to any samples, specifications, standards, performance criteria or other requirements (collectively called “Specifications”) that are referred to in the Order, if any, or that Buyer has provided to Seller or otherwise specified or agreed to in writing, or, to the extent that any required Specifications are not referred to in the Order or provided by Buyer to Seller or otherwise specified or agreed to in writing, the Specifications provided by Seller to Buyer; (c) the goods, their handling, processing, packaging, labeling, branding and sale shall comply with all applicable federal, state, local and foreign laws, regulations, standards and orders, including without limitation, all laws related to product content, product safety, environmental protection, human health, labor practices, industry standards, and sales of food products in interstate commerce; and (d) Seller has implemented adequate quality, control, and security procedures that will assure that the goods will comply with the foregoing warranties, representations and agreements, and procedures that are reasonably calculated to prevent the sale of goods that are unsafe for human consumption. Seller’s warranties extend to future resale, use or consumption of the goods and survive inspection, tests, acceptance and payment and shall be considered to have been given not only to Buyer but also to Buyer’s customers and to end-users of the goods. Seller’s representations and warranties apply to any replacement goods that Seller furnishes under any Order or otherwise, and are assignable by Buyer. Buyer objects to and expressly rejects any disclaimer of warranties or limitations on liability made or attempted by Seller.
INDEMNITY. Seller agrees to indemnify and hold harmless Buyer and each Affiliate and Buyer’s and each such Affiliate’s directors, officers, employees, agents, shareholders, customers and other end-users of the goods (collectively, with Buyer, called “Indemnitees”) and defend any Indemnitee against any demands, actions, recalls, claims, judgments, awards, penalties, fines, losses, liabilities, damages and costs (including, without limitation, costs of litigation or arbitration and attorneys’ fees and other legal expenses, and expressly including lost profits and other consequential damages) brought against or incurred by any Indemnitee because of (a) Seller’s breach of any of its representations, warranties, and covenants in the Agreement, (b) any death, injury or damage to any person or property (including any Indemnitee’s property and employees) caused by the goods or arising out of their sale, resale, consumption, or distribution (c) any proceedings, investigations, or actions brought or commenced by any federal, state or local government authority or agency related to the goods, or their sale, resale, consumption, or distribution, or (d) any claim of infringement of a patent, copyright, trademark, trade name, or other proprietary right or claim of unfair trade or of unfair competition, arising out of the manufacture, processing, sale, resale, or use of the goods sold pursuant to the Agreement.
CHANGES. Buyer may at any time, by reasonable advance written notice to Seller, change the Agreement as to (a) Specifications, (b) time or place of delivery or performance, (c) method of packing or shipment, or (d) quantity of the goods. If this causes a change in Seller’s cost or time of performance, then an equitable adjustment shall be made in the price or time for delivery or performance, or both, if, but only if, Seller gives Buyer a written request for an adjustment within fifteen (15) days after Buyer notifies Seller of the change.
The Seller shall give reasonable advance written notice to the Buyer of any proposed change to (a) Specifications, (b) time or place of delivery or performance, (c) method of packing or shipment, or (d) quantity of the goods. The Seller shall not deliver goods with aforementioned changes without Buyer’s prior written authorization.
INSOLVENCY. Buyer may immediately cancel the Agreement and any Order without liability to Seller in the event of the happening of any of the following or any other comparable event: (a) insolvency of Seller; (b) filing of a voluntary petition in bankruptcy by Seller; (c) filing of an involuntary petition in bankruptcy against Seller; (d) appointment of a receiver or trustee for Seller, or (e) execution of an assignment for the benefit of creditors by Seller, provided that such petition, appointment or assignment is not vacated or nullified within five (5) days of such event.
CONFIDENTIALITY. Any nonpublic information disclosed by Buyer to Seller is confidential and Seller agrees not to use or disclose any such information without prior written consent of Buyer. Seller shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used by any third party (including any of Seller’s suppliers), the Specifications for the goods; the names of customers or other customer information of Buyer or any Affiliate, marketing or sales techniques; and the information contained in any Order, including the types of goods or quantities or prices thereof. If Seller breaches or threatens to breach this Paragraph of these Terms and Conditions, then Buyer’s remedies at law will be inadequate. Therefore, Buyer shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and Buyer’s rights and remedies shall be cumulative.
GOVERNMENT CONTRACTS. If Buyer will use or resell the goods in connection with a contract with the United States or other government, then all terms and conditions that the government contract or any law or regulation requires to be included in the Agreement formed pursuant to the Order (“Government Terms”) are incorporated in the Agreement by reference. If any provision of the Agreement is inconsistent with any Government Terms, then the Government Terms shall control.
INSURANCE. Seller shall maintain in effect, at Seller’s expense, commercial general liability insurance coverage that will protect Seller, Buyer and its customers from any and all claims and liabilities for property damage, personal injury, death or economic damage, to any person, that arises from the Seller’s goods, their use, resale, consumption, recall, or any activities connected with the goods in the amount of $5,000,000 per occurrence and in the aggregate. The above limits may be achieved by a combination of primary coverage and umbrella coverage. The insurance shall be issued by insurers having an A.M. Best financial rating of “A” or better.
BUYER’S RIGHTS. Without limiting other rights and remedies available to it, Buyer may, at its option, (a) return nonconforming goods to Seller, at Seller’s risk and expense, as long as Buyer would then have the right under applicable law to reject or to revoke acceptance of those goods, and require Seller either to refund the price or promptly to replace the goods at Seller’s risk and expense, (b) retain nonconforming goods and set off losses against any amount after consultation and agreement of Seller that Buyer or any Affiliate owes Seller, or (c) repair or replace nonconforming goods or obtain conforming services from a third party, and charge Seller with the expense. If at any time Buyer believes in good faith that it has grounds for insecurity as to Seller’s performance, then Seller shall provide adequate assurance of due performance within three (3) days after Buyer demands the assurance, which shall be considered to be a reasonable time. If at any time (x) Seller defaults in the performance of any of Seller’s obligations to Buyer under the Agreement or under any other agreement between Seller and Buyer and Seller fails to cure the default within a reasonable time after Buyer provides notice of the default to Seller, (y) Seller repudiates the Agreement, or (z) any warranty or representation that Seller shall have made to Buyer in or in connection with the Agreement, or in any application to Buyer for credit, is false or misleading in any material respect, then Buyer may terminate the Agreement, in whole or part, without liability to Seller, and Seller shall promptly pay to Buyer all damages that Buyer incurred as a result of the termination and as a result of the event or circumstance on the basis of which Buyer terminated.
UNFIT GOODS. If a governmental agency declares that any of the goods or any ingredient of, or any material included in, any of the goods or any packaging or supplies used in connection with the goods, or if Buyer at any time believes in good faith that any of the goods or any such ingredient, material, packaging or supplies (a) is or may be adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, as amended, or any other applicable federal, state, local or foreign law, rule or regulation, (b) is or may be a misbranded hazardous substance or a banned hazardous substance within the meaning of the Federal Hazardous Substances Act, as amended, (c) does not or may not conform with an applicable consumer product safety standard, or has been declared a banned hazardous product, under the Consumer Product Safety Act, as amended, or (d) is or may be otherwise unsafe, unmerchantable, or unfit for the intended use of the goods, then, without limiting other rights and remedies that are available to Buyer under the Agreement or applicable law: (i) Buyer or Seller, as the case may be, shall give the other party written notice of any such declaration and shall furnish to such party copies of the declaration and of all relevant notices, documents and correspondence; (ii) Seller shall stop including the ingredient or material in the goods; and (iii) Buyer may terminate the Agreement, without liability to Seller, by giving written notice to Seller, which shall be effective immediately or on any later date that the notice specifies.
TERMINATION. If Buyer or Seller terminate the Agreement under Paragraph 15 or 16, then (i) Buyer’s obligations under the Agreement shall terminate immediately, and Buyer shall not be obligated to pay Seller damages or other compensation by reason of the termination; (ii) Seller shall, unless Buyer directs otherwise, stop acquisition of products, ingredients, articles or materials for sale of goods under the Agreement and protect goods in Seller’s possession in which Buyer has or may acquire an interest for a reasonable period of time sufficient to allow Buyer to provide for the disposition of the goods if Buyer elects to do so, and (iii) if and to the extent that Buyer demands, Seller shall deliver to Buyer all goods that Buyer is purchasing from Seller under existing Orders under the Agreement. Buyer’s termination under Paragraph 15 or 16 shall terminate only Seller’s obligation and right to deliver goods under the Agreement (other than pursuant to Paragraph 15 or 16) and shall not terminate or impair Seller’s other obligations or Buyer’s rights under the Agreement. In addition to Buyer’s rights described in the Agreement, Buyer has all of the other rights and remedies that the law or equity gives to buyers. Buyer’s damages for any breach by Seller (whether or not Buyer terminates the Agreement), include, without limitation, any cost of “cover” or of completing the processing, packaging and shipment of the goods, and incidental, consequential, special and exemplary damages, including lost profits, suffered by Buyer.
Upon termination under Paragraph 15 or 16, Buyer shall have the further right (A) to recall (i.e. purchase or repurchase) any or all of the goods, and any products made with or produced by the goods, from its customers and end-users and any others having possession of the goods, and Seller shall reimburse Buyer for all reasonable costs that Buyer incurs in doing so and shall assist Buyer and any applicable governmental agency in all reasonable respects in the recall to the extent that Buyer requires Seller to do so; and (B) to return to Seller, at Seller’s expense, all such goods, packaging or supplies that Seller shall have previously delivered and to require Seller to refund the price to Buyer, whether or not Buyer would then have the right under applicable law to reject or to revoke acceptance of those goods, packaging or supplies. To the extent that Buyer requests, Seller shall reasonably assist Buyer in any or all aspects of a recall, including, without limitation, developing a recall strategy and preparing and furnishing reports, records and other information, and Seller shall pay to Buyer an amount equal to all damages that Buyer incurs by reason of the declaration by the governmental agency and/or such good faith belief by Buyer and any resulting recall or delay in performance or return of goods to Seller and/or any termination of the Agreement by Buyer.
EXPORT AND IMPORT REQUIREMENTS. Seller shall prepare, maintain and, to the extent that applicable law, regulation or customs authority requires it to do so, submit to the applicable customs authorities, all information and documentation that is necessary to comply with the applicable customs and export and import requirements of each country from which the goods will be exported and each country into which they will be imported, and Seller shall comply with all other applicable customs requirements. Whenever Buyer requests it to do so, Seller shall promptly furnish to Buyer copies of that information and documentation. Seller is solely responsible for complying with all technical compliance and country of origin requirements of each country into which the goods are to be imported. Seller assigns and transfers to Buyer all transferable customs duty and tax drawback or refund rights relating to the goods, including rights developed by substitution and rights that Seller acquires from its suppliers. Seller shall promptly inform Buyer of each such right and, upon Buyer’s request, shall promptly provide to Buyer all documents and information that are required for Buyer to obtain each such drawback and refund.
RECORDS. Seller shall maintain complete and accurate records of all transactions and activities of Seller that relate to Seller’s sales of goods under the Agreement and shall permit Buyer and its agents, upon reasonable prior notice, to enter Seller’s premises during Seller’s normal business hours to inspect those records that are reasonably asked for and are reasonably available, to the extent that Buyer believes in good faith that an inspection and/or audit is necessary to determine whether Seller is complying or has complied with its obligations under the Agreement.
DELEGATION. Seller may not delegate, subcontract, or assign any of its obligations under the Agreement without Buyer’s written consent. Buyer’s consent to Seller’s delegation, subcontracting or assignment of any obligation of Seller under the Agreement shall not relieve Seller of responsibility for performance of the obligation.
RELATIONSHIP OF PARTIES. The relationship between Seller and Buyer is and will be that of seller and buyer and not a joint venture, partnership, principal-agent, broker, sales representative or franchise relationship. Neither Seller nor any of Seller’s employees or agents shall be considered agents, employees, partners, or joint ventures of Buyer. Seller is an independent contractor, and Seller shall furnish or obtain, at Seller’s expense, all labor, materials, equipment, transportation, facilities, permits, licenses, bonds and other items that are necessary to perform its obligations under the Agreement.
NO IMPLIED WAIVER. The failure of either party at any time to require performance by the other party of any provision of the Agreement or any Order shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of the Agreement or any Order constitute a waiver of any succeeding breach of the same or any other provision.
NOTICES. Any notice or other communication that is required or permitted under the Agreement shall be in writing and shall be effective (a) when actually sent to the correct number or address by fax, email, or other electronic communication, (b) the next business day after delivery to a nationally-recognized overnight delivery service designated for next business day delivery with all charges prepaid, or (c) upon receipt if sent by certified mail, return receipt requested, postage prepaid, addressed to Buyer or Seller, as applicable, at its address specified in the Order or to another address that a party shall specify to the other by written notice, except that a notice or other communication may be given orally, including by telephone, if it is confirmed by written notice given the same day.
TERMINATION FOR CONVENIENCE. Buyer may terminate the Agreement evidenced by any Order at any time as to all or any part of goods not then sent for delivery for any reason. Buyer agrees to pay termination charges limited, however, to Seller’s actual costs incurred with respect to any undelivered Order prior to the time Buyer notifies Seller of termination, less any net recovery to Seller on disposition or other use of the goods not delivered to Buyer. Seller shall use its best efforts to mitigate its damages. Buyer shall not be liable in any event for any incidental, consequential, indirect or any other special damages of Seller, including lost profits.
REMEDIES. Should any claim or controversy arise between Buyer and Seller, Buyer may, at Buyer’s election, demand that any such controversy or claim be settled by arbitration pursuant to the Kansas Uniform Arbitration Act, K.S.A. 5-401 et seq., and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any proceeding, whether by arbitration or judicial litigation, shall take place in Wichita, Kansas, and shall be subject to the laws of the State of Kansas, including the Uniform Commercial Code. If Seller breaches any provision in the Agreement, including any Order, Seller agrees to reimburse Buyer for all damages suffered, including but not limited to incidental, consequential and other damages, as well as lost profits. The remedies in the Agreement, including any Order, shall be cumulative and in addition to any other remedies allowed to Buyer under applicable law or the Agreement. No waiver by Buyer of any breach or remedy shall be a waiver of any other breach or remedy. In the event Buyer shall prevail in any arbitration or litigation, Seller agrees to pay the Buyer’s reasonable attorneys’ fees, the arbitrator’s fees, and other costs.
SET OFF. Buyer has the right to set off any sums due to Seller against any sums due from Seller to Buyer.
RISK OF LOSS. Risk of loss or damage to the goods shall remain on Seller until those goods have been delivered to and accepted by Buyer.
GOVERNING LAW. The sale of goods in accordance with these Terms and Conditions and any Order shall be governed in all respects by the laws of the State of Kansas (without giving effect to principles of conflicts of laws).
JURISDICTION AND VENUE. Seller and Buyer agree that any action arising out of the sale of goods in accordance with the Agreement or any Order will be brought, heard and decided exclusively in the state or federal courts in Sedgwick County, Kansas.
SUCCESSORS. The terms of the Agreement, including any Order, shall inure to the benefit of and be binding on the permitted successors and assigns of the parties.
INTERPRETATION. Headings and titles are for the convenience of the parties only and shall not be considered in the construction or interpretation of this Agreement.
ENTIRE AGREEMENT AND AMENDMENT. Buyer has not made any promises or representations to Seller that are not in these Terms and Conditions, the Order, or any other writing that is or becomes a part of the Agreement. No change in, or waiver of, any provision of the Agreement shall be binding on Buyer, unless contained in a writing signed by Buyer