These Terms and Conditions (the “Terms and Conditions”) are part of each Order (As Defined Below) that Marcus Food Co. or any of its Affiliates issues or accepts as the seller of goods. In these Terms and Conditions: “Seller” means Marcus Food Co. or its Affiliate(s), as specified in the Order, and the term “Seller” used herein includes its Affiliates; “Buyer” means the buyer 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 and the terms of any written purchase agreement 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 Seller, or acting as a contractor, representative, or trader of or for Seller or other Affiliate under any agreement.

AGREEMENT. If there is ever a conflict between a provision of any written agreement 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 conditions of Buyer not expressly incorporated into the Order or written agreement. By sending an Order to Seller, accepting an Order initiated by Seller, or by taking delivery of the goods pursuant to an Order, Buyer (i) accepts Seller’s offer, and (ii) if Seller’s offer is in legal effect an acceptance of an earlier offer by Buyer, assents to all terms of the Seller’s offer that are additional to or different from the terms contained in Buyer’s offer. The Specific Terms of the Order shall be deemed to be correct, unless buyer notifies the appropriate representative of Seller of any errors or omissions promptly upon the Buyer’s receipt of the order.


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.


TAXES AND FEES. Except as otherwise provided in an Order, Buyer shall be responsible and liable for paying 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.


PAYMENT TERMS. Invoices shall be paid according to the due date terms indicated in the Order. If no due date is indicated, payment shall be made within fifteen (15) days after the date the goods have been shipped from the Seller’s or other supplier’s facility.  If not paid when due, Buyer agrees to pay a service fee equal to the lesser of 18% per annum (1 1/2% per month) of the purchase price or the highest interest rate allowed by law.  Buyer agrees to pay all of Seller’s costs of collection of any amount owing by Buyer under the Agreement, with or without suit or arbitration, including actual out-of-pocket expenses incurred by Seller and its agents, including attorney’s fees for litigation or bankruptcy and collection agency fees.


SHIPPING. Unless otherwise agreed to in writing, all transportation, shipping, delivery, packing, packaging, cartage, and pallet charges shall be invoiced to and paid by Buyer. Risk of loss or damage shall pass to Buyer upon delivery of the goods to the common carrier for shipment.


DELIVERY. Unless Buyer agrees otherwise in writing, Seller shall deliver the goods F.O.B. (Uniform Commercial Code term) at Seller’s or other supplier’s shipment facility identified in the Order. The agreed date for delivery or shipment is an estimate only.  Seller will reasonably endeavor to deliver the goods on or before the agreed date, but delivery by that date is not assured.  Partial shipments against an Order are authorized. In the event of any delays in the release or delivery of goods at the request of, or as a result of acts or omissions of Buyer, Buyer will be responsible for payment of any additional storage or shipping costs incurred by the Seller.


INSPECTION. Buyer may reject products sold hereunder only for non-conformity with a material provision of the Agreement. Buyer agrees to inspect all shipments of goods upon arrival and to notify Seller in writing of any failures to conform to the Agreement. Buyer must give Seller written notice (i) within (2) days in the case of fresh Goods or (ii) within five (5) days in the case of frozen goods after receipt of the nonconforming goods, while the full case count is intact and prior to use or resale of the goods. Seller may, at its option, cancel the sale of the rejected goods or replace the same. Failure to reject goods within the time provided constitutes Buyer’s acceptance.


QUALITY ASSURANCE. The parties acknowledge that Seller is a food trader not engaged in the manufacture or production of goods and does not have a quality assurance program with respect to the goods.  Seller hereby assigns to Buyer all representations, warranties (express and implied), and covenants that Seller receives under its purchase agreements with the producers, manufacturers, and suppliers of the goods sold or delivered to Buyer.  Buyer assumes all liability for loss, damage, or injury to persons or property, resulting from the use or subsequent sale of the goods, either alone or in combination with other goods.  SELLER DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, BOTH EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.


CHANGES. Buyer may at any time, by reasonable advance written notice to Seller, change the Agreement as to (a) specifications, standards, performance criteria, or other requirements for, the goods, (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 thirty (30) 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, standards, performance criteria, or other requirements for, the goods, (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.

DELEGATION. Seller may delegate, subcontract, or assign any of its obligations under the Agreement without Buyer’s written consent.


REPRESENTATIONS, WARRANTIES AND AGREEMENTS ABOUT BUYER. Buyer represents and warrants to Seller that: (a) the Agreement is the valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, (b) Buyer is and at the time of each delivery of the goods will be solvent, (c) Buyer has not offered or given, and shall not offer or give, any gratuity or thing of value to any employee of Seller or any Affiliate, and (d) all representations and warranties of Buyer in any application for credit of Buyer or any affiliate of Buyer are true, correct, and complete in all material respects. These representations and warranties are in addition to any other warranties stated in the Agreement or available to Seller under applicable law.


INSOLVENCY. Seller may immediately cancel the Agreement and any Order without liability to Buyer in the event of the happening of any of the following or any other comparable event: (a) insolvency of Buyer; (b) filing of a voluntary petition in bankruptcy by Buyer; (c) filing of an involuntary petition in bankruptcy against Buyer; (d) appointment of a receiver or trustee for Buyer, (e) execution of an assignment for the benefit of creditors by Buyer, provided that such petition, appointment or assignment is not vacated or nullified within five (5) days of such event; (f) any of the foregoing events happen with respect to any guarantor of the obligations under the Agreement of Buyer; or (g) any guarantor of the obligations under the Agreement of Buyer shall terminate or give notice of termination of the guaranty (whether or not such termination is effective).


CONFIDENTIALITY. Any nonpublic information disclosed by Seller to Buyer is confidential and Buyer agrees not to use or disclose any such information without prior written consent of Seller. Buyer 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 Buyer’s suppliers), the specifications, standards, performance criteria, or other requirements 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 Buyer breaches or threatens to breach this Paragraph of these Terms and Conditions, then Seller’s remedies at law will be inadequate. Therefore, Seller 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 Seller’s rights and remedies shall be cumulative.


SECURITY INTERESTS. Seller retains and Buyer hereby grants to Seller a security interest in the goods (and any proceeds thereof) until the full purchase price has been paid. Buyer agrees to cooperate with Seller to perfect such security interest, as permitted by the law in any relevant jurisdiction, and to do all things, provide all assistance and information, and execute all relevant documents, on request, as may be required to ensure Seller obtains and maintains a perfected, first priority security interest in the goods. Buyer’s failure to pay any amount when due shall give Seller the right to possession and removal of the goods at any time. Seller’s taking of possession shall be without prejudice to any other remedies Seller may have under the Agreement or applicable laws.


DELEGATION. Seller may 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 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, all labor, materials, equipment, transportation, facilities, permits, licenses, bonds and other items that are necessary to perform its obligations under the Agreement, the costs of which may be added to the cost of goods sold as itemized in an Order.


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.


REMEDIES. Should any claim or controversy arise between Buyer and Seller, Seller may, at Seller’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 Buyer breaches any provision in the Agreement, including any Order, Buyer agrees to reimburse Seller 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 Seller under applicable law or the Agreement.  No waiver by Seller of any breach or remedy shall be a waiver of any other breach or remedy.  In the event Seller shall prevail in any arbitration or litigation, Buyer agrees to pay the Seller’s reasonable attorneys’ fees, the arbitrator’s fees, and other costs.


SET OFF. Seller has the right to set off any sums due to Buyer against any sums due from Buyer to Seller.


LIMITATION OF DAMAGES. In no event shall Seller be liable to Buyer or any third party for any indirect, consequential, incidental, special, or punitive damages, including but not limited to, loss of business, lost profits, damages to good will or reputation, degradation in value of brands or trade names, whether arising out of breach of contract, warranty, tort (including negligence, failure to warn or restrict liability) or otherwise. A sale of goods in several delivery installments is intended to be a separate and independent contract for each installment, and no breach by Seller as to a particular installment shall affect the Agreement for any other installment; but, if Buyer shall fail to make any payment, or to fulfill the terms of the Agreement with Seller, Seller may defer further deliveries or, at its option, cancel the Agreement and any outstanding Orders or any other contracts with Buyer.  Seller’s liability, whether for breach of the Agreement, in tort, or other occasion, is limited to three times the price of the goods under the Order with respect to which the breach, tort, or occasion has occurred, or $10,000, whichever is less.


ASSIGNMENT. Buyer shall not assign its rights or delegate its duties under the Agreement without Seller’s prior written consent. Seller’s consent to Buyer’s assignment or delegation under the Agreement shall not relieve Buyer of responsibility for performance of its obligations under the Agreement.


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.


FORCE MAJEURE. Neither party shall be liable for damages for any delay or failure to perform resulting from any cause beyond the reasonable control of a party, including, without limitation, acts of God, war, labor strike, boycott, shortages of goods, of services, of labor, or of ingredients, terrorist acts, natural disasters, inclement weather, unavailability or interruption of utility services or internet, epidemic or pandemic, power curtailment or outage, national emergency, or implementation or enforcement of any law, order, regulation, moratorium, rejection by,  or other action of any regulatory or other governing authority or agency (individually and collectively, a “force majeure”). Seller shall have the option of canceling the Agreement as to any portion of an Order affected by any force majeure.  No force majeure shall excuse Buyer from its payment obligations hereunder.


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. Seller has not made any promises or representations to Buyer 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 Seller, unless contained in a writing signed by Seller