NGUYEN COFFEE SUPPLY - TERMS AND CONDITIONS
The company accepting these Terms and Conditions of having a wholesale account (“Purchaser”) acknowledges having reviewed, understood and approved these terms. Purchaser accepts all of the terms and conditions and agrees to be bound by all such terms and conditions by purchasing the Nguyen Coffee Supply products.
This Agreement sets forth the entire agreement between the parties and their respective heirs, legal representatives, successors and assigns regarding the sale by Nguyen Coffee Supply of the merchandise identified and supersedes all prior orders, agreements, negotiations and representations, oral or written, regarding such sale. No waiver, amendment, modification or assignment of this Agreement or any of the terms or conditions hereof shall be effective against Nguyen Coffee Supply unless approved in writing by an officer of Nguyen Coffee Supply. Any additional or inconsistent terms shall be deemed material alterations within the meaning of California Uniform Commercial Code section 2207(2)(b) and shall not become a part hereof unless approved in writing by an officer of Nguyen Coffee Supply.
2. NO WARRANTY OR GUARANTEE.
Nguyen Coffee Supply MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT ONLY THAT Nguyen Coffee Supply WARRANTS THAT THE MERCHANDISE TO BE SOLD BY Nguyen Coffee Supply TO PURCHASER SHALL SUBSTANTIALLY CONFORM TO THE DESCRIPTION SET FORTH ON THE FRONT SIDE HEREOF. Nguyen Coffee Supply DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
3. CERTAIN TERMS OF SALE.
All payments shall be due within 7 days from the Agreement date which shall be the date of shipment. Purchaser must notify Nguyen Coffee Supply of any full or partial nonacceptance of delivery or rejection of any delivery on the grounds of nonconformity within ten (10) days after receipt thereof by Purchaser or otherwise Purchaser shall be conclusively deemed to have unconditionally accepted such merchandise. Purchaser must notify Nguyen Coffee Supply of all billing errors in writing prior to the billing due date. Failure to give notice will be considered a waiver by Purchaser of all rights to challenge the correctness thereof. If Purchaser fails to pay any amount payable, Nguyen Coffee Supply may assess a late charge in the amount of one and one-half percent (1-1/2%) of the unpaid balance per month, but not to exceed the maximum amount permitted by law, payable on demand, in addition to any other remedies of Nguyen Coffee Supply. Purchaser shall pay all costs and expenses incurred by Nguyen Coffee Supply in collecting delinquent amounts (including late charges), including attorneys' fees and costs. Nguyen Coffee Supply may accept partial payment on any invoice, which shall not constitute a waiver of Nguyen Coffee Supply's right to collect the balance or an accord and satisfaction notwithstanding Nguyen Coffee Supply’s endorsement of Purchaser's check.
4. RETURN POLICY.
(a) Purchaser must receive prior written authorization to return, or receive credit for any merchandise returns, from Nguyen Coffee Supply within 30 days of the receipt of the product. NO UNAUTHORIZED RETURNS WILL BE CREDITED; any unauthorized returns and the freight charges therefor will be the sole responsibility of Purchaser; (b) no deduction for pending returns will be allowed without a written return authorization from Nguyen Coffee Supply; (c) Purchaser’s account must be current before Nguyen Coffee Supply will issue any return authorization; (d) the maximum allowable return is set forth in the Nguyen Coffee Supply Distributor Agreement, which will be provided to Purchaser on request and is subject to change without notice. Any failure by Purchaser to adhere to this policy shall be considered a default by Nguyen Coffee Supply and shall entitle Nguyen Coffee Supply, among other things, to cancel any open orders from Purchaser and/or to adjust or revoke Purchaser’s credit line with Nguyen Coffee Supply.
5. RISK OF LOSS; TAXES.
Title and risk of loss and damage to any merchandise covered by this Agreement shall pass to Purchaser immediately upon loading of the merchandise on the carrier’s trucks or other vehicles, except that risk of loss on “bill and hold” merchandise shall pass to Purchaser on such loading or invoicing by Nguyen Coffee Supply, whichever occurs first. Nguyen Coffee Supply shall have no obligation to insure any merchandise. Purchaser consents to any transportation arrangements made by Nguyen Coffee Supply. Any taxes, levies or other charges which may be imposed or levied on the sale of the merchandise by Nguyen Coffee Supply shall be paid by Purchaser.
6. DEFAULT; TERMINATION.
If Purchaser wrongfully rejects or revokes acceptance of merchandise or fails to perform in accordance with these terms and conditions or any other agreement, document or instrument), or if Purchaser dissolves, liquidates, merges, reorganizes or has a change in control, or if any guarantor of any of Purchaser’s obligations to Nguyen Coffee Supply should be in default to Nguyen Coffee Supply, or if Nguyen Coffee Supply, in its sole discretion, becomes dissatisfied with Purchaser’s creditworthiness for any reason, Purchaser shall be deemed to be in default hereunder. In such event Nguyen Coffee Supply may, in its sole discretion, elect to (i) accelerate the due date of payment for any merchandise which has been shipped to Purchaser but has not yet been paid in full; (ii) require payment in full for any merchandise which has been ordered by Purchaser (and approved by Nguyen Coffee Supply) in advance of shipment; (iii) terminate this Agreement and any other agreements between Nguyen Coffee Supply and Purchaser and decline to ship any additional merchandise to Purchaser, (iv) revoke or adjust Purchaser’s credit line (if any) with Nguyen Coffee Supply; (v) stop delivery of any merchandise in transit; and/or (vi) recover damages from Purchaser, in addition to any other remedies of Nguyen Coffee Supply. If Nguyen Coffee Supply elects option (iii) above, Nguyen Coffee Supply shall refund any advance payments made by Purchaser, net of any damages incurred by Nguyen Coffee Supply, and Purchaser shall return at its expense all merchandise previously delivered by Nguyen Coffee Supply; Nguyen Coffee Supply shall have the right to reclaim such merchandise, wherever located, and without notice, if Purchaser fails to return such merchandise promptly. Nguyen Coffee Supply shall not be required to resell any returned or undelivered merchandise. All remedies of Nguyen Coffee Supply set forth in this Agreement shall be cumulative and in addition to all other remedies available to Nguyen Coffee Supply under any other agreement, document or instrument or at law or in equity, all of which are hereby reserved. Any notice in relating to the Agreement or other applicable agreement shall be in writing to the other party at the address shown on the front side hereof. Purchaser’s damages on account of a default by Nguyen Coffee Supply shall be limited to the difference between the contract price as set forth on the front side hereof and the market price of the merchandise, less expenses saved by Purchaser as a result thereof. IN NO EVENT SHALL Nguyen Coffee Supply BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS.
7. FORCE MAJEURE.
Notwithstanding anything herein to the contrary, Nguyen Coffee Supply’s performance hereunder shall be suspended where prevented or hindered by causes beyond the control of Nguyen Coffee Supply, such as accidents, strikes or other labor disturbances, natural disaster, war, civil disturbance, computer network or Internet malfunction, sabotage, equipment failure or repair, failure of Nguyen Coffee Supply’s suppliers to deliver goods, plant shutdown, theft or acts of God. If Nguyen Coffee Supply’s performance is delayed for more than one month as a result of such event, Nguyen Coffee Supply shall have the right to terminate any remaining performance of Nguyen Coffee Supply under this Agreement. Nguyen Coffee Supply has advised Purchaser to carry its own insurance to protect itself against loss upon the occurrence of any such event.
8. GOVERNING LAW; ARBITRATION.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. Nguyen Coffee Supply and Purchaser agree that in the event of any dispute arising out of or otherwise relating to this Agreement, the matter shall be resolved by binding arbitration before the American Arbitration Association (the "Association") in New York. Each party shall pay one-half of the arbitration and filing fees prior to commencement of the arbitration. If any party fails to pay its share of such fees, it shall not be allowed to participate in the arbitration and the other party may pay the unpaid portion. The prevailing party shall be entitled to recover all such fees paid by it and its reasonable attorneys’ fees and costs.
In the event that Nguyen Coffee Supply consents in writing to waive any of the provisions hereof, that shall not constitute a waiver of such provision with respect to any other matter or event or a waiver of any other provision hereof. Purchaser shall indemnify and hold Nguyen Coffee Supply harmless from any claim or liability (including but not limited to reasonable attorneys’ fees) arising from any act or omission of Purchaser, except where due to Nguyen Coffee Supply’s gross negligence or willful misconduct. If Purchaser is an individual or sole proprietor, Purchaser acknowledges that this Agreement arises out of the conduct of a trade, business or profession by Purchaser. The section headings in this Agreement are for convenience only and are not to be deemed a part of this Agreement or used in the construction hereof. If any provision of this Agreement shall be found to be invalid or unenforceable, that shall not affect the remainder of this Agreement. All sales and other agreements between Purchaser and its customers are the exclusive responsibility of Purchaser and any commitment made by Purchaser to such customers with respect to the delivery, performance, suitability or other matters relating to the products are Purchasers sole responsibility.