HV Randall Foods, LLC
Conditions of Sale
- Modification of Terms; Express Rejection of Other Terms. These terms and conditions shall control the sale of all Randall products and services. “Randall” means HV Randall Foods, LLC, or any of its affiliates or subsidiaries. Randall’s acceptance of any order is expressly subject to Buyer’s assent to each and all of the terms and conditions set forth herein. Buyer’s assent to these terms and conditions shall be conclusively presumed from Buyer’s failure to submit written objection, or from Buyer’s acceptance of all or any part of the products or services ordered. No addition to or modification of these terms and conditions shall be binding upon Randall unless an officer of Randall agrees to such terms in a signed writing. If Buyer’s purchase order or other correspondence contains terms or conditions contrary to or in addition to these terms and conditions, acceptance of any order by Randall shall not be construed as assent to such contrary or additional terms and conditions, or constitute a waiver by Randall of any of these terms and conditions. Unless alternate terms are contained in a contract or other writing signed by an officer of Randall, these terms and conditions shall control. Any reference to Buyer’s purchase order by Randall shall not affect or limit the applicability of the terms and conditions contained herein.
- Price. Unless otherwise confirmed in a signed writing by Randall, (a) all prices, quotations, shipments and deliveries by Randall are FOB Randall’s plant; (b) all base prices, together with related extras and deductions, are subject to change without notice; (c) all orders are accepted subject to Randall’s price in effect at the time of shipment; and (d) all transportation and other charges are for the account of Buyer, including any increase or decrease in such charges prior to shipment. Buyer will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Buyer shall reimburse Randall for any costs of collection on any past due sums, including court fees, out-of-pocket expenses, and attorneys’ fees, whether or not suit is commenced. Buyer may not reduce any payment by any alleged discounts or other deductions without Randall’s prior written consent.
- Taxes. Any tax that Randall may be required to pay or collect through assessment or otherwise under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, storage, processing, use, or consumption of any products or services described herein, including without limitation, taxes upon or measured by receipts from sales or services, shall be for the account of Buyer and may be added to the price of such products or services. Buyer shall promptly pay the amount thereof to Randall upon demand but may, in lieu of such payment, furnish tax exemption certificates acceptable to the appropriate taxing authorities to Randall.
- Setoff; Deductions. In no event is Buyer authorized to set off or deduct any amounts from the amounts owed Randall unless specifically authorized in writing by Randall.
- Credit. All orders are subject to the approval by Randall. Credit terms (including payment terms and credit limits) will be set according to Randall’s proprietary credit guidelines, which may be changed from time to time. Buyer’s credit terms and performance will be reviewed periodically per the guidelines and account credit terms are subject to change in Randall’s sole discretion. Randall may at any time refuse to make shipment or delivery if Buyer fails to fulfill the terms and conditions of payment or fails to provide security in compliance with Randall’s credit guidelines. Randall may require payment in full or other security in advance.
- Accelerated Payment. Notwithstanding any other payment terms extended to Buyer, if Buyer fails to make timely payment of any obligations or if Randall determines that there are reasonable grounds for insecurity concerning Buyer’s ability to make payment, Randall may require immediate payment of all sums owed by Buyer; or demand adequate assurance of due performance. Randall may, in addition to its other rights or remedies, treat Buyer’s failure to make immediate payment or provide adequate assurance of performance as a total breach of these terms and conditions of sale.
- Default in Payment. If Buyer fails to make payments on any contract or order between Buyer and Randall in accordance with Randall’s terms, Randall, in addition to any other remedies available to it, may, at its option (a) defer further shipment until such payments are made and satisfactory credit arrangements are re-established; or (b) cancel the unshipped balance of any order. Past-due payments shall be charged the maximum interest allowed by law.
- Product and Service Availability. Randall’s acknowledgment of receipt of a Buyer order is not a guarantee of the availability or supply of such products or services.
- Weights and Analysis. Randall’s weights, analysis, and condition, at origin, will govern.
- Packaging. Randall will use all reasonable means to comply with any packaging, loading, or bracing requirements specified by Buyer. Randall will charge for compliance with Buyer’s special requirements in accordance with Randall’s price list for extras in effect at the time of shipment. If no packaging, loading, or bracing requirements are specified by Buyer, Randall shall comply with industry standards for the method of transportation used for such products.
- Specifications. Randall shall have no obligation to ensure that any products or services purchased from Randall meet Buyer’s unique specifications or other requirements unless such specifications or other requirements are set forth in Buyer’s purchase order and expressly accepted in a signed writing by Randall. In the event Randall accepts Buyer’s unique specifications, Buyer represents and warrants to Randall that Buyer’s specification will not infringe upon any United States or foreign patent right, copyright, trademark or other proprietary right of any third person whatsoever. Buyer shall indemnify and hold harmless Randall from and against each and every loss, liability, cost, damage or expense (including reasonable attorney’s fees) (each, a “Loss”) of whatever kind or nature, which arise directly or indirectly out of or in connection with any allegation, claim or charge that Buyer’s specifications or Randall’s use thereof constitutes an infringement of any patent or patent right, copyright, trademark or other proprietary right or interest of any other party. Buyer shall, upon Randall’s request, assume and pay for the defense of Randall against any such allegation, claim, or charge. Buyer shall promptly notify Randall of any action or proceeding commenced against Buyer with respect thereto.
- Advice. Unless otherwise expressly agreed in a signed writing by Randall, Randall assumes no obligation or liability for any advice concerning the products or for any results occurring as a result of the application of such advice. Buyer shall have sole responsibility for selection and specification of the products or services appropriate for the end use of such products or services.
- Transportation. Randall will use commercially reasonable efforts to comply with Buyer’s requests as to method of transportation, but Randall reserves the right to use an alternate method of transportation, whether or not at a higher cost to Buyer, if the method specified by Buyer is deemed by Randall to be unavailable or would compromise product quality or safety. In any such case, Randall shall promptly notify Buyer of any such change.
- Inspection. Buyer, at Buyer’s expense, may inspect any product upon delivery within 24 hours after delivery of fresh products or within 72 hours after delivery of frozen products (the “Inspection Period”). Buyer may, within the Inspection Period, reject and either return to Randall or hold at Randall’s risk and expense any products that: (a) do not conform to the guarantee set forth in these terms and conditions; (b) do not conform to any Buyer specifications agreed to in a manner consistent with these terms and conditions; or (c) violate applicable law. Buyer shall supply any documentation as to the non-conformity as Randall may request. If any products are non-conforming, Buyer has provided proper notice, and if the non-conformity was not caused by Buyer or due to misuse or handling after title and/or risk of loss transferred to Buyer, Randall will, at Randall’s option, (i) replace the non-conforming products at no additional charge to Buyer, or (ii) reimburse Buyer for amounts Buyer paid for such non-conforming products. Buyer shall bear all expenses and risks of unpacking, examining, repacking, storing, holding and/or reshipping, and returning any non-conforming products. Failure to notify Randall of any non-conformities or other problems within the Inspection Period shall: (a) constitute acceptance of the products; (b) waive Buyer’s rights and remedies in connection with the products; and (c) relieve Randall of any further obligations in connection with the products.
- Recalls. If Buyer is directed to assist in any suspension of supply or recall of a product for any reason by Randall or any governmental authority, Buyer must cooperate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall. The cost and expense of such suspension or recall will be borne by (a) Randall to the extent the costs and expenses are the result of Randall’s acts or omissions; and (b) Buyer to the extent the costs and expenses are the result of acts or omissions of Buyer, its directors, officers, employees, or contractors.
- Returns. In no event shall any products be returned, reworked or scrapped by Buyer without the express written authorization of Randall.
- Force Majeure. Randall shall not be liable for any failure, delay in, or impairment of performance resulting in whole or in part from fire, floods, or other catastrophes; acts of God; severe weather conditions; strikes, lockouts, or labor disruption; pandemic (including COVID-19), epidemic, or quarantine; wars; riots; embargo delays; raw material market conditions; the inability to procure supplies or raw materials or shortages of transportation equipment, fuel or labor; or any other similar or dissimilar circumstance or cause beyond the reasonable control of Randall. Additionally, manufacture, shipment, and delivery are subject to any prohibition, restriction, priority allocation regulation, or condition imposed by or on behalf of the United States of America or any other governmental body with appropriate jurisdiction which may prevent or interfere with fulfillment of any order.
- Limited Warranty. Randall guarantees that, as of the date of shipment or delivery, products supplied by Randall (i) are not “adulterated” or “misbranded” as such terms are specially defined in the Federal Meat Inspection Act, as amended (the “Act”), and (ii) are not an article which is prohibited from introduction into interstate comers as described under Part 302 or Part 325 of the Act. THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS, IN NO EVENT, WHETHER ARISING OUT OF BEACH OF CONTRACT, WARRANTY OR TORT (INCLUDING NEGLIGENCE, FAILURE TO WARN OR STRICT LIABILITY OR THE OTHERWISE SHALL RANDAL LIABLE TO BUYER, OR TO CUSTOMS OFFICERS, EMPLOYEES OR REPRESENTATIVES, OR TO ANY THIRD PARTY FOR ANY LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION OR OTHER INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT BOTH LIMITED TO DAMAGE TO EQUIPMENT COST OF CAPITAL, COST OF SUBSTITUTED PRODUCTS OR DOWN TIME COSTS) BUYER ASSUMES ALL OTHER RISKS AND LIABILITIES FOR ANY LOSS DAMAGE OR INJURY TO PERSONS RESULTING FROM THE USE OR SEQUENT SALE OF PRODUCTS EITHER ALONE OR IN COMBINATION WITH OTHER PRODUCTS, BUYER EXPRESSLY AGREES THAT THE REMEDIES GRANTED TO IT HEREUNDER ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIM OR BUYER ARISING UNDER THIS CONTRACT.
- Buyer Indemnity. Buyer agrees to indemnify Randall from any and all liability that may arise from the delivery, use, storage, transportation, or resale of the goods and/ or services.
- Cancellation. Orders cannot be canceled or modified by Buyer after acceptance except by a signed writing by Randall.
- Waiver. Waiver by Randall of any breach of any of the terms and conditions set forth herein shall not be construed as a waiver of any other breach, and the failure of Randall to exercise any right arising from any default of Buyer hereunder shall not be deemed to be a waiver of such right, which may be exercised at any subsequent time.
- Assignment. Buyer shall not assign any order or any interest therein without the prior written consent of Randall. Any such actual or attempted assignment without Randall’s prior written consent shall entitle Randall to cancel such order upon written notice to Buyer. Randall may assign, delegate, or transfer its rights and obligations under these terms and conditions, in whole or in part. These Terms shall apply to and bind the successors and permitted assigns of the parties
- Choice of Law and Venue. All orders shall be governed by and interpreted in accordance with the laws of the State of Delaware, excluding its conflict of laws principles. Litigation of disputes arising under this order shall be brought only in federal courts in the State of Delaware or, to the extent federal court is unavailable, state court in the State of Delaware.
- Waiver of Jury Trial. THE PARTIES IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM, OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY THE OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, ANY PURCHASE FROM RANDALL, WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS, OR OTHER THEORIES OF LIABILITY.
- Complete Agreement. These terms and conditions together with Randall’s PO Conditional Acceptance, invoice and, to the extent applicable, sales contract or agreement, constitute the entire agreement between Buyer and Randall with respect to any order.