American International Foods, Inc. Terms and Conditions of Sale
1. Contract. Each sale of products (“Products”) of American International Foods, Inc., a Michigan corporation (“AIFI”), and the acceptance of any purchase order submitted by a purchaser of Products (“Customer”) is expressly made conditional on Customer’s assent to these Terms and Conditions of Sale, modified only by the express terms of a Contract Booking Confirmation signed by an authorized agent of AIFI, (“Agreement”), which, together, will constitute the full and complete contractual agreement between AIFI and Customer with regard to the specific Products that are the subject of the Contract Booking Confirmation. Any additional, different, or conflicting terms and conditions set forth in any documents issued by a Customer at any time; including without limitation any purchase orders and any specifications are hereby objected to by AIFI, shall be wholly inapplicable to any sale of Products and shall not be binding in any way on AIFI. No waiver or amendment to the terms and conditions of this Agreement shall be binding on AIFI unless made in a writing expressly stating that it is such a waiver or amendment and signed by AIFI. All sales of Products are final. A contract for the supply of Products by AIFI to the Customer is formed when AIFI has received a copy of a fully executed Contract Booking Confirmation. The Customer is not entitled to cancel the order once AIFI has the fully executed Contract Booking Confirmation.
2. Payment. AIFI may, but is not obligated to, sell Products to a Customer on credit. In the event that AIFI sells Products on credit, then any terms provided in the Contract Booking Confirmation will govern. to the extent AIFI sells Products on credit without providing specific terms, the following credit terms will apply: (a) payment in full shall be due and payable thirty (30) days from the date of invoice; (b) in the event Customer fails to pay AIFI the purchase price within thirty (30) days of the date of invoice, Customer shall pay AIFI interest on such delinquent payment at one and one-half percent (1.5%) per month, compounded monthly, or the highest rate permitted by law (whichever is less). Customer shall pay all collection expenses, including but not limited to attorney’s fees and court costs, incurred by AIFI in the collection of amounts owed by Customer. If Customer’s financial responsibility shall become unsatisfactory to Seller at any time and for any reason, Seller shall have the right, in addition to whatever other rights Seller may have at law or equity, to require payment in cash or to obtain satisfactory security or other assurances of performance from Customer before making any further deliveries. In case any payment is not made when due, Seller shall have the right, in addition to its other remedies, to any one or more of the following remedies, to: seek specific performance of this Agreement, suspend any further deliveries, alter payment terms, or terminate this Agreement. Approval of credit for one or more deliveries shall not be deemed a waiver of this provision.
3. Shipping Terms. All Products are shipped F.O.B. AIFI’s applicable distribution facility. All transportation expenses shall be paid by Customer. Customer shall be responsible for making all in-transit damage claims to the carrier. The risk of loss, theft, destruction, or damage to the Products passes to Customer upon AIFI’s tender of the Products to the carrier.
4. Taxes. The purchase price does not include sales, use, excise, or similar taxes. Consequently, in addition to the purchase price for Products, the amount of any present or future sales, use, excise, or other tax applicable to the sale or use of the Products sold hereunder shall be paid by Customer, or in lieu thereof, Customer shall provide AIFI with a tax-exemption certificate acceptable to the taxing authorities. Customer shall indemnify, defend, and hold AIFI harmless from all such taxes.
5. No Damages for Delay. Although AIFI will attempt to meet shipment and delivery schedules, AIFI will not be liable to Customer for any damages resulting from late shipment or delivery, including but not limited to direct, indirect, economic, incidental, or consequential damages, including without limitation lost profits or income, loss of use, downtime, cover, and employee or independent contractor wages, payments, and benefits.
6. Rejection and Revocation. Products shall be deemed to be accepted and Customer’s right to reject or cancel such Products because of defect shall expire on the seventh (7th) day following the date of receipt by Customer of the Products. Customer’s retention of Products in its possession after said date without rejecting them, shall constitute irrevocable acceptance of the Products by Customer. If Customer rejects or attempts to revoke its acceptance of any Products delivered pursuant to this Agreement, Customer must notify AIFI by following the procedures set forth in this section (inclusive of subparts). The failure to follow such procedures shall constitute a waiver of that defect or nonconformity.
(a) It is the Customer’s responsibility to inspect all Products immediately upon receipt and AIFI will accept the return of defective Products provided that these procedures are followed on or before the seventh (7th) day following the date of receipt by Customer of the Products.
(b) The Customer must contact Customer Service at (616) 974-9093 (or such other number as may be provided to Customer from time to time) to notify AIFI of the defect in the Products. Customer Service will inform the Customer what needs to be provided to AIFI (the “Necessary Information”) and by what means of communication (via email, fax, or as may otherwise be requested by AIFI).
(c) The Customer must provide the Necessary Information timely, completely, accurately, and legibly to AIFI. The failure to provide Necessary Information will result in delayed processing and potentially loss of Customer’s claim.
(d) An authorized member of AIFI management will review the Necessary Information and either approve or decline it. If it is DECLINED, the Customer will be promptly notified. If it is APPROVED, the Customer will be notified and issued instructions for further processing.
(g) AIFI, in its sole discretion, will decide if the Products are to be destroyed by the Customer or returned to AIFI. If AIFI does not approve return of the Products, Customer will be solely responsible for proper disposition of the Products in a manner that complies with all applicable laws and is not likely to damage or otherwise impair the health, property, or welfare of the public or any person. If Products are to be returned, AIFI shall be responsible for the cost of the return freight. All returns for any other reason will be at the Customer’s responsibility. The Customer shall at all times provide tracking information to Customer Service so that the progress of delivery of the returned Products may be tracked. All returns shall be sent to the warehouse designated by AIFI at its election. To determine warehouse return address, contact Customer Service at (616) 974-9093.
(h) Upon receipt of the returned Products, they will be inspected to confirm that the condition is as specified by the Customer. IF PRODUCTS ARE DETERMINED TO BE IN A CONDITION OTHER THAN SPECIFIED BY THE CUSTOMER, THE CUSTOMER WILL BE NOTIFIED IN WRITING (BY FAX OR BY EMAIL) OF THE DISCREPANCY AND THAT AIFI REJECTS THE CLAIM. THESE PRODUCTS WILL NOT BE RETURNED TO THE CUSTOMER UNLESS THE CUSTOMER ARRANGES FOR SHIPMENT AT CUSTOMER’S SOLE RISK AND EXPENSE WITHIN FIVE (5) DAYS OF THE DATE OF NOTIFICATION TO THE CUSTOMER THAT ITS CLAIM HAS BEEN REJECTED. UNDER NO CIRCUMSTANCES WILL CREDIT BE GIVEN FOR PRODUCTS RETURNED IN A DIFFERENT CONDITION THAN WHAT IS REPRESENTED IN THE NECESSARY INFORMATION PROVIDED BY THE CUSTOMER. Once all Products are determined to be in a defective condition, a credit memo will be issued to the Customer. If the Customer does not return all of the items requested by AIFI or does not provide all of the Necessary Information within the time allotted by AIFI, the matter will be considered closed and all claims regarding units that are not timely returned or not timely identified and supported with Necessary Information will be deemed accepted by the Customer and all claims relating to such Products will be deemed waived by the Customer.
7. Other Returns. Prior authorization must be obtained from AIFI for the return of any Products, which authorization AIFI may withhold at its discretion. If a return is authorized, transportation charges must be prepaid by the Customer. Returned Products must be received undamaged. Risk of loss with respect to returned Products shall remain with Customer until receipt by AIFI. RETURNS WILL ONLY BE ACCEPTED AT THE DISTRIBUTION CENTER WITH A VALID RETURN AUTHORIZATION COMPLETED ACCORDING TO THIS POLICY.
8. Security Interest. AIFI retains and Customer consents (and to the extent necessary, grants) a purchase money security interest in the Products to secure all obligations owed by Customer to AIFI. Customer authorizes AIFI to file Uniform Commercial Code financing statements and to take such other actions as AIFI determines to be appropriate to perfect its security interest, including, but not limited to, notification communication to other secured creditors of the Customer. Failure to make any payment as provided herein or any other amounts due AIFI from Customer, or any other credit concerns of AIFI, shall entitle AIFI to cease and stop shipments without notice to Customer, and Customer consents that AIFI, its successors and assigns, shall be and are hereby authorized to retake possession and custody of any shipments already made and/or received by Customer and upon written notice to Customer, cancel the balance and/or unexecuted portion of this Agreement and hold Customer liable for any and all damages incurred as a result of or in any manner growing out of the default or failure to so pay on the part of Customer.
9. Warranty Disclaimer. AIFI disclaims all warranties in connection with the Products, express or implied, as to any matter whatsoever, including without limitation description, quality, design, performance, specifications, condition, merchantability, and fitness for any particular purpose. AIFI MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.
10. Remedies of Customer. The Customer’s exclusive and sole remedy on account of, or in respect of, the furnishing of Products that do not conform to this Agreement will be to (a) secure the replacement of the Products; or (b) secure the refund or credit of the purchase price for the Products, all at the option of AIFI. IN NO EVENT WILL AIFI BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, INTEREST, LOST GOODWILL, INCREASED EXPENSES OF OPERATION, OR CLAIMS OF THIRD PARTIES, WHETHER BASED ON CONTRACT, WARRANTY, TORT OR OTHERWISE.
11. Remedies of AIFI. In the event of Customer’s default under these Terms and Conditions of Sale or in the performance of any purchase order or Agreement, AIFI shall have all rights and remedies available at law or in equity. Customer agrees to pay AIFI all costs and expenses, including attorney’s fees, incurred by AIFI in exercising any of its rights and remedies.
12. Force Majeure. AIFI shall not be liable for any actions or failure to act due to causes beyond its reasonable control, or due to acts of God, acts of Customer, delays by a vendor or supplier of AIFI, acts of civil or military authority, priorities, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, car shortages, and inability due to causes beyond its reasonable control to obtain necessary labor, materials, or facilities.
13. Entire Agreement. All agreements and understandings of any kind heretofore made between AIFI and Customer are embodied herein, and no changes shall be made hereto unless the same shall be in writing and duly signed by an authorized representative of both AIFI and Customer. No terms or provisions contained in any purchase order submitted by Customer shall apply.
14. No Implied Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement will in no way affect the right to require such performance at any time thereafter, nor will the waiver of either party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision.
15. Severability. In the event any provision of these Terms and Conditions of Sale is held or determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions hereof shall remain in full force and effect.
16. Arbitration. AIFI may, at its discretion, require that any claim or controversy arising out of or relating to any purchase order, or the breach of non-performance of any provision hereof, be resolved solely by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in effect at the time such claim or controversy arises. Customer and AIFI agree that any arbitration shall be administered and conducted in Grand Rapids, Michigan. The determination of the arbitrator will be binding on the parties and will not be appealable, and judgment on the award rendered may be entered in any court having jurisdiction on the matter.
17. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the internal laws of the State of Michigan without reference to its conflict of laws provisions. Customer hereby submits to the exclusive jurisdiction of courts of competent jurisdiction in Kent County, Michigan with respect to any claim or controversy arising out of or relating to this Agreement, or the breach of non-performance of any provision hereof.