SFT Foods, LLC dba Browndog Creamery

TERMS AND CONDITIONS OF SALE

 

1.Acceptance and Modification

This document constitutes an offer or counteroffer (an “Offer”) by SFT Foods, LLC or its applicable subsidiary or affiliate (“Seller”) to sell the products and/or services described herein (the “Products”) to buyer (“Buyer”), subject to and in accordance with these terms and conditions and attachments to this document (the “Terms and Conditions”).  This document is not an acceptance of any offer or counteroffer made or purchase order submitted by Buyer, and this Offer and any contract arising out of this Offer (collectively, the “Contract”) are each expressly conditioned upon Buyer’s assent to all of the Terms and Conditions.  Seller’s acceptance of any order is subject to Buyer’s assent to all of the Terms and Conditions set forth in Seller’s acknowledgement, and Buyer’s assent to these Terms and Conditions shall be presumed from Buyer’s receipt of Seller’s acknowledgement, or from Buyer’s acceptance of all or any part of the Products ordered.  Buyer acknowledges agreement with these Terms and Conditions by placement of an order to purchase Products from the Seller or its acceptance of all or any part of the Products called for in a purchase order.  Seller objects to any additional or different terms or conditions contained in any request for quotation, request for proposal, purchase order or other document or communication previously or hereafter provided by Buyer to Seller.  If a purchase order or other correspondence contains terms or conditions contrary to the Terms and Conditions contained in Seller’s quote or acknowledgement, Seller’s acceptance of any order shall not be construed as assent to any additional terms and conditions, nor will that constitute a waiver by Seller of any of the Terms and Conditions nor an acceptance of any such additional provisions.  No such additional or different terms or conditions will be of any force or effect, unless specifically agreed to by an executive officer of Seller in writing.  The Contract constitutes the entire understanding between the parties with respect to the subject matter of the contract and supersedes any prior discussions, negotiations, agreements and understandings.  Modifications to the Contract can be made only by a writing signed by an authorized representative of each party.

2.Termination

Neither the Contract nor any related order may be cancelled or altered by Buyer except upon terms and conditions acceptable to Seller, as evidenced in writing by Seller’s authorized representative.  In the event of such a cancellation by Buyer has been approved by Seller, Buyer shall pay to Seller: (i) the agreed unit prices for completed Products (or components or units of components thereof) under the Contract or any related order; (ii) all other costs incurred by Seller prior to cancellation directly connected with work under the Contract or any related order; (iii) all other costs incurred by Seller associated with the cancellation of the Contract or any related order, including, without limitation, cancellation charges under subcontracts, charges for packing, removal to storage and/or restocking; plus (iv) 15% of the sum of (i), (ii) and (iii).  Until Seller has received all of the foregoing cancellation charges, all cancelled Products shall remain the sole and exclusive property of Seller, regardless of the state of completion of such Products. 

3.Delivery

Unless otherwise provided in this document, all Products will be delivered F.O.B. shipping point.  In the event that scheduled delivery of Products is delayed by Buyer, Seller may store such Products for the account of and at the risk of Buyer.  Seller guarantees no delivery dates, as such dates are estimates only, and reserves the right to make delivery in installments in order to fill an order.  Delay in delivery of any installment shall not relieve Buyer of its obligations to accept remaining deliveries.  Seller shall not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including but not limited to any act of God, pandemic, virus, disease, act of Buyer, embargo or other governmental act, regulation or request, fire, explosion, flood, hurricane, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, equipment failure, inability to obtain necessary labor, equipment, materials or manufacturing facilities, or failure of usual sources of supply or usual modes of transportation.  In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay.  Buyer’s exclusive remedy for other delays and for Seller’s inability to deliver for any reason shall be rescission of the underlying order. 

4.Risk of Loss

Risk of loss or damage and any further cost and responsibility for claims, delivery, and, if applicable, placement and storage shall pass from Seller to Buyer, and delivery shall be deemed to be complete, upon delivery by Seller to a private or common carrier, or upon moving into storage, whichever occurs first.  Notwithstanding the foregoing provision, the Products sold shall remain the sole and exclusive property of Seller and shall remain personal property until full and final payment has been made. 

5.Security Agreement and Insurance

a.To secure payment of the price payable under the Contract and performance of all of Buyer’s obligations under the Contract, Buyer hereby: (i) grants to Seller a purchase money security interest in all Products; and (ii) authorizes Buyer to file such financing statements and other documents, and agrees to execute such other documents and to do such other acts, as Seller may reasonably deem necessary or advisable to protect its rights in such Products.  In the event Buyer breaches the terms or conditions of the Contract, including, but not limited to, any past due balances, together with interest, costs, and attorney fees are permitted herein, Seller shall have all the rights and remedies of a secured creditor under the Uniform Commercial Code. 

b.Until Seller has received full payment of the  price payable under the Contract, Buyer shall (i) maintain insurance covering all Products in such amounts and against such risks as is customary by companies engaged in the same or similar business and similarly located, naming Seller as insured or coinsured, and shall, upon Seller’s request, furnish evidence of such insurance satisfactory to Seller, and (ii) upon request by Seller, do all things necessary or desirable to adequately insure the Products against Loss or damage.

6.Payment

Unless other terms are specified in the attachments to this document, all invoices shall be paid within thirty (30) days after shipment.  If Buyer fails to pay any invoice when due or if, in the judgment of Seller, the financial condition of Buyer at any time prior to shipment does not justify the extension of credit, then Seller may require payment in advance or otherwise modify the payment terms upon notice to Buyer.  All delays occasioned by acts of Buyer shall be at the expense of Buyer.  Seller reserves the right to assess reasonable charges for its expenses resulting from such delays.  All shipments shall be separately invoiced and paid for without regard to subsequent deliveries.  Interest at the rate of one and one-half percent (1 ½%) per month or at the highest rate allowed by law, whichever is less, shall be charged to all overdue accounts.  Buyer will reimburse Seller for all costs and expenses (including attorneys’ fees and the costs of bringing any action) incurred in collecting any amounts past due.  If a dispute arises between the parties concerning Buyer’s alleged right to setoff or recoupment against Seller or its affiliates, the parties shall negotiate in good faith to resolve such dispute.  Notwithstanding the foregoing, Buyer acknowledges and agrees that payments owed to Seller for Products supplied under this Contract are not subject to any setoff or recoupment by Buyer unless and until Seller agrees in writing to such setoff or recoupment, and that Buyer shall not exercise its right to setoff or recoupment in connection with any disputed, contingent, or unliquidated claim. 

7.Prices

Unless otherwise quoted, prices shall be those in effect at the time of shipment.  Unless other terms are specified in the attachments to this document, all prices are quoted and payable in U.S. dollars.  The prices quoted do not include any taxes imposed on the sale of the Products.  Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, GST, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority (whether domestic or foreign, or federal, state or local) on or measured by the transactions between Seller and Buyer (other than income taxes imposed on Seller) shall be added to the price of Products, invoiced separately, and paid by Buyer in addition to the prices quoted or invoiced.  Buyer agrees to reimburse Seller for any such tax or provide Seller with acceptable tax exemption certificate.  

8.Warranty

a.Seller warrants for a period of only one (1) year that: (i) the Products delivered hereunder meet such specifications as may have been expressly agreed to herein; (ii) the sale of the Products delivered hereunder will not infringe the claims of any United States patent covering the Products themselves, but Seller does not warrant against infringement by reason the use thereof in combination with other products or in the operation of any process; and (iii) the Products shall be free from defects in material and workmanship.

b.SELLER MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER EXPRESS OR IMPLIED WARRANTY, EXCEPT AS PROVIDED IN THIS PARAGRAPH 8.  THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES.  SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM USAGE OF TRADE OR COURSE OF DEALING.

c.Buyer assumes all risk and liability resulting from use of the Products, whether used singly or in combinations with other products. 

d.The warranty set forth in this Paragraph 8 shall not apply in the event of defects or damages caused by:  (i) failure of Buyer to comply with any operational or maintenance guidelines or requirements; (ii) physical abuse of the goods or any component or acts of vandalism by any persons other than Seller, its employees, agents, or subcontractors; (iii) alterations, modifications, or additions made during the applicable warranty period by anyone other than Seller, its employees, agents or subcontractors; or (iv) accidents or damage resulting from fire, water, wind, hail, lightning, electrical surge or failure, earthquake, theft or similar causes not caused or contributed to by the sole negligence of Seller or its employees, agents, or subcontractors.

9.Patents, Trademarks and Copyrights

a.Seller, at its own expense, shall defend or settle any suits that may be instituted by an unrelated third party against Buyer to the extent such suits relate to infringement of any patent, trademark or copyright by Products manufactured by Seller pursuant to the Contract, if such infringement directly arises out of the use of such Products, or components thereof, in Buyer’s business for any of the purposes for which the same were sold by Seller under the Contract, and provided that Buyer shall (i) have made all payments then due under the Contract, (ii) give Seller immediate notice in writing of any such suit, (iii) transmit to Seller immediately upon receipt all processes and papers served upon Buyer, (iv) permit Seller through its counsel, either in the name of Buyer or in the name of Seller, to defend such suits, and (v) give all needed information, assistance and authority to enable Seller to do so. b.If Products sold to Buyer under the Contract are held in and of themselves, by final court decision from which no appeal can be taken, to infringe any patent and their use is enjoined, or in the event of a settlement or compromise approved in writing by Seller that precludes future use of Products sold to Buyer under the Contract, then Seller (i) shall pay any final and unappealable award of damages in such suit to the extent such damages are directly attributable to such infringement, and (ii) shall, at its own expense and at its sole option, (A) procure for Buyer the right to continue using such Products to the extent contemplated in the Contract, (B) modify such Products to render them noninfringing, (C) replace such Products with non infringing Products, or (D) refund the price paid by Buyer for such Products after Buyer’s return of such Products to Seller.  This Paragraph 9 states Seller’s sole obligation and Buyer’s exclusive remedy with respect to patent, trademark or copyright infringement, provided that Seller’s liability for patent, trademark and copyright infringement shall not exceed the price paid by Buyer under the Contract. c.Buyer shall not, without the prior written consent of Seller, in any manner publish the fact that Seller has furnished or contracted to furnish the Products, or use the name or trademarks of Seller, its products, or any of its associated companies in Buyer’s advertising or other publication of any type.    

10.Limitation of Remedies

a.Seller shall be given reasonable and prompt opportunity to examine any claim of defect by the Buyer. 

b.Buyer agrees that its sole and exclusive remedy against the Seller shall be limited to replacement of the Products or a refund of the purchase price at Seller’s option.  This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing to replace the defective Products. 

11.Limitation of Damages

a.THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER'S BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE PRODUCTS AT ISSUE IN THE CLAIM. 

b.IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS AND/OR MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY INCLUDING THIRD PARTY CLAIMS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

c.Notwithstanding anything to the contrary in the Contract, Seller shall not be responsible for, and shall incur no liability with respect to, any information supplied by Buyer or any of its subcontractors to Seller.

d.THE PARTIES ACKNOWLEDGE AND AGREE THAT THE limitation of damages PROVISIONS SET FORTH IN THIS PARAGRAPH 11 survive between Buyer and Seller even if the exclusive remedy set forth above is deemed to fail of its essential purpose.

12.Confidential Data

a.All sketches, recipes, models, formulas, materials, samples and other information submitted by Seller shall remain the property of Seller and shall be treated as confidential information of Seller unless Seller has indicated a contrary intent in writing.  Immediately upon termination of this Agreement, all sketches, recipes, models, formulas, materials, samples and other information, together with any and all copies thereof, shall be returned to Seller.  All sketches, recipes, models, specifications, drawings, designs, data, information, ideas, methods, patterns and/or inventions made, conceived, developed or acquired by Seller in connection with the Contract or any related order shall vest in and inure to Seller’s full benefit, notwithstanding any charges therefor that may have been or may be imposed by Seller, and shall not be disclosed to third parties without Seller’s prior written consent.  This obligation shall continue so long as any Purchase Order for Products related to or using such technical information or data is in effect and for a period of two years thereafter.  This obligation will not apply to information that is or becomes publicly known through no fault of Buyer.

b.Any property of Buyer placed in Seller’s custody for performance of the Contract is not covered by insurance, and no risk is assumed by Seller in the event of loss or damage to such property by fire, water, burglary, theft, civil disorder or any event beyond Seller’s control.

13.Inspection

Buyer or its authorized agents shall have the right to visit Seller’s workshops to inspect progress and production of the Products during normal business hours upon three (3) days’ prior written notice, provided that Buyer and such agents shall abide by any applicable rules that Seller may have in effect or hereafter put into effect at such workshops, including, without limitation, rules relating to workers, safety, use of cameras, security and confidentiality procedures or requirements, designated entrances, hours of work and the handling of equipment or materials.

14.Changes in the Products

Buyer may request in writing changes in the specifications and shipping instructions of Products.  As promptly as practicable after receipt of such request, Seller shall advise Buyer in an amendment letter what amendments to the Contract, if any, may be necessitated by such changes, including, without limitation, amendment of price, specifications and shipment schedule.  If such proposed amendments to the Contract are accepted in writing by Buyer, Seller shall make the requested changes with respect to such Products as may be affected thereby.  Seller may at any time make such changes in the Products as shall constitute an improvement in the judgment of Seller.  Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or nonavailability of materials from suppliers.  Any such changes in or substitutes of materials or components that were specifically identified in the specifications or Seller’s quotation require notice to and the consent of Buyer, which consent shall not be unreasonably withheld or delayed.

15.Export Packaging and Documents

Prices include Seller’s standard commercial export packaging, which will vary depending on whether shipment is made by air or ship.  Buyer shall bear any additional expenses required to satisfy Buyer’s specifications.  Packages will be marked in accordance with Buyer’s instructions, and Seller shall furnish complete packing lists and such other information that Buyer will have advised Seller may be necessary to enable Buyer’s agent to prepare documents required for export shipment.  For customs and duty purposes, Buyer shall supply Seller with all necessary information and assistance that is required for proper classification of the Products and each shipment to secure the most expeditious clearance of each shipment.  No shipping devices may be returned to Seller unless such return is accepted in advance by Seller in writing and unless all return freight is prepaid by Buyer.

16.Miscellaneous

a.Whenever possible, each provision of this Contract shall be interpreted in such a way as to be effective and valid under applicable law.  Any provision hereof that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction, and the parties shall substitute therefor an enforceable provision that achieves the same business purpose as the provision that is prohibited or unenforceable.

b.THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE INTERNAL LAWS OF THE STATE OF MICHIGAN AND, ADDITIONALLY, WITH RESPECT TO PRODUCTS DELIVERED OUTSIDE THE UNITED STATES, THE UNITED STATES OF AMERICA (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS).  THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. 

c.Seller and Buyer specifically agree that any action brought by Seller or Buyer to enforce any of the provisions of this Offer or the Contract shall be brought, heard and determined exclusively in either the Circuit Court for the County of Oakland, State of Michigan or, if subject matter jurisdiction exists, the U.S. District Court for the Eastern District of Michigan. The parties stipulate that the referenced venues are convenient.  Seller and Buyer acknowledge that all directions issued by the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions and countries. 

d.Seller’s failure to exercise a right or remedy or Seller’s acceptance of a partial or delinquent payment shall not be deemed to be a waiver of any of Seller’s rights or Buyer’s obligations under this Contract, and shall not constitute a waiver of Seller’s right to declare an immediate or a subsequent default. 

e.No assignment of this contract or of any right or obligation under this contract shall be made by Buyer without the prior written consent of Seller.  In the event of a proper assignment, the contract shall be binding upon and inure to the benefit of the Buyer’s successors and assigns.

f.In the event of Seller’s enforcement of any term or condition in the Contract, Buyer shall be liable to Seller for all costs, including attorneys’ fees, incurred by Seller in enforcing the Contract and in collecting any sums owed by Buyer to Seller.

g.In its relationship with Seller, Buyer is an independent contractor.  Nothing in this Contract shall be construed such that Buyer shall be considered an employee, agent or partner of Seller.  This Contract shall not confer any rights or remedies upon any third-party, other than the parties to this Contract and their respective successors and permitted assigns.

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