Last Updated: 2021-03-01

  1. APPLICATION OF TERMS. The following terms and conditions shall govern the sale by ProEx Food, LLC (“Company”) to its customer (“Customer”) as set forth on the invoice, quotation, written purchase order or other document for the purchase and sale of Company’s products (“Products”). Customer agrees to be bound by and accept these terms and conditions, and acknowledges that these terms and conditions be incorporated into any terms and conditions of any purchase order or similar document placed by Customer and are a condition to Company’s obligations. Any attempt to modify, supplement or amend these terms and conditions will be void unless agreed to in writing by Company. Notwithstanding the foregoing, in the event Customer has a written Purchase Agreement executed with Company, the terms of such Purchase Agreement shall supplement and modify (as applicable) these terms and conditions.

 

  1. ORDERS/QUOTES; PAYMENT TERMS. All written purchase orders sent to Company shall be binding on Customer upon receipt by Company. Orders can be rejected for any reason at any time by Company. Customer may not cancel or modify orders, except that orders for stocked Products may be cancelled prior to Company’s shipment of the Products, upon the payment of a 20% restocking fee and Company approval. Special or custom order Products may not be cancelled for any reason.  Any quotation provided by Company will be valid for the duration stated in the quotation, or if no duration is stated, such quotation will be valid for 30 days unless sooner revoked by Company. Customer shall pay invoices within 30 days from the date of the invoices unless Company has agreed to other terms in writing. Customer agrees to pay interest on all past due sums at the rate of 12% per annum.

 

  1. SHIPPING; PRICE; TAXES/DUTIES. All Products purchased by Customer will be shipped from Company’s facility at Customer’s cost, unless noted in the quotation. Additional charges may be included for the shipment of expedited or special order items. Prices for Products shall be as quoted by Company, and shall be subject to change by Company without notice to Customer. Prices do not include shipping and handling charges, sales, use, excise, export or similar taxes, customs charges or duties. Customer is responsible for all such taxes and charges unless noted in the quotation.

 

  1. RISK OF LOSS; DELIVERY; ACCEPTANCE. Risk of loss shall pass to Customer upon delivery to Customer from Company’s facility. “Delivery” shall mean the point at which the Product is placed with a carrier from Company’s facility. Company may deliver the Products ordered in installments in Company’s discretion. Customer shall be deemed to accept Products in their current condition unless Customer notifies Company in writing within 10 days of Delivery.

 

  1. MANUFACTURER’S WARRANTY. Company shall pass-thru to Customer the Manufacturer’s Warranty for all Products, to the extent one is provided or available. Customer agrees to look solely to the Manufacturer’s Warranty for any warranty claims. The Manufacturer’s Warranty shall be Customer’s sole and exclusive warranty and remedy. Notwithstanding the foregoing, Company may provide a 1-year repair and replacement warranty only if set forth in the applicable written purchase order or Purchase Agreement.

 

  1. DISCLAIMER OF WARRANTIES. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCT, EXCEPT FOR THE MANUFACTURER’S WARRANTY, WHICH IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Some states do not allow limitations on the term of an implied warranty, so the above limitation may not apply. No oral or written information or advice given by Company, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of the Manufacturer’s Warranty, and no such persons have authority to modify any aspect of the Manufacturer’s Warranty or create any other warranties.

 

  1. LIMITATION OF DAMAGES. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE SALE OR USE OF THE PRODUCT, WHETHER BASED UPON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND THE LIABILITY OF COMPANY IN CONNECTION WITH SUCH SALE OR USE OF ANY PRODUCT SHALL NOT EXCEED THE PRICE OF THE PRODUCT ON WHICH SUCH LIABILITY IS BASED. Such damages include, but are not limited to, the loss of profits, revenue, use of the Product, the cost of capital, substitute or replacement equipment, facilities or services, down time, any claims of third parties, including customers, and injury to property. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply.

 

  1. PRODUCT AVAILABILITY. Product availability may be limited and not be available for immediate delivery. Company reserves the right, without liability or notice, to revise or cease to make available any or all Products.

 

  1. FORCE MAJEURE. COMPANY SHALL NOT BE LIABLE IF IT IS UNABLE TO PERFORM ANY OF ITS OBLIGATIONS CONTAINED IN THESE TERMS AND CONDITIONS DUE TO, DIRECTLY OR INDIRECTLY, THE FAILURE OF COMPANY’S SUPPLIER TO DELIVER AS PROMISED; SABOTAGE; FAILURE OR DELAYS IN TRANSPORTATION, UTILITY SERVICE OR COMMUNICATION SYSTEMS; ANY LABOR OR INDUSTRIAL DISPUTE; SHORTAGES OF LABOR, FUEL OR SUPPLIES; WAR; EXPLOSION; ACT OF GOD OR TERRORISM; OR ANY OTHER EVENT BEYOND THE CONTROL OF COMPANY.

 

  1. GOVERNING LAW. The sale of Products shall be governed by the laws of the State of Wisconsin, USA.

 

  1. ENFORCEMENT; BREACH; REMEDIES; INDEMNITY. If Customer breaches any provision of these terms and conditions, Company shall be entitled, in addition to all other available remedies, to recover all consequential, incidental and collection costs, including but not limited to reasonable attorneys’ fees. Any failure by Company to strictly enforce these terms and conditions shall not be deemed a waiver by Company of any right hereunder. Company’s rights and remedies are cumulative and in addition to all other rights and remedies available in law or equity. Customer agrees to indemnify and hold harmless Company for any and all loss, liability, claims or damages related to Customer’s ownership or use of the Products.

 

  1. ASSIGNMENT CONSENT; SECURITY INTEREST; BACKGROUND CHECK. Customer may not assign its rights or obligations hereunder without the express written consent of Company. Company reserves a purchase money security interest in all Products and any proceeds thereof until any and all payments and charges are paid in full. Customer shall reasonably assist Company in perfecting such security interest and shall permit Company to complete any UCC filings regarding the same. Customer hereby grants Company to complete any credit or background check on Customer prior to the fulfillment of any order.