These Terms and Conditions of Sale (the “Terms”) govern the sale of goods (the “Goods”) and/or services (the “Services”) by Farmer Bros. Co. (including any of its subsidiaries and affiliates, “FBC”) to the purchaser (including any of its subsidiaries and affiliates, “Operator”). FBC and Operator are collectively referenced in these Terms as the “Parties” and individually as a “Party”.
1. ACCEPTANCE; GOODS: Submission of an order by Operator will be considered an offer to purchase Goods or Services upon these Terms and will be binding only upon acceptance by FBC. FBC may refuse to accept any order in its sole discretion. FBC will be deemed to have accepted an order for Goods only by shipment of those Goods. Acceptance of an order by FBC is expressly limited to the terms set forth in these Terms. These Terms prevail over any of Operator’s general terms and conditions of purchase regardless of whether or when Operator submitted its purchase order or its terms. Fulfillment of Operator’s order does not constitute acceptance of any of Operator’s terms or conditions and does not modify or amend these Terms. If the terms stated in Operator’s order are inconsistent with these Terms, these Terms will constitute a counteroffer and Operator will be deemed to have accepted these Terms upon acceptance of the Goods or Services. No terms different from or in addition to these Terms will be binding unless accepted in writing by FBC, whether or not such terms materially alter those set forth herein. FBC reserves the right to make changes to the specifications for the Goods without prior notice to Operator. If Operator orders custom, special order or private label Goods (“Custom Goods”), Operator is responsible for (a) compliance with all laws governing labeling and packaging utilizing any material provided by Operator, (b) ensuring that such material does not infringe upon the rights of any third party and (c) the consequences of use and sales of such Goods. Operator will defend, indemnify and hold FBC harmless for all claims, costs and expenses arising out of any disputes involving the materials that Operator supplies.
2. PRICING; PAYMENT: Operator will purchase Goods or Services from FBC at the prices set forth in FBC’s published price list in force as of the date that FBC accepts Operator’s purchase order. Such prices exclude all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Operator. Operator will be responsible for the payment of all such charges, costs and taxes; provided, that, Operator will not be responsible for any taxes imposed on or as to FBC’s income, revenues, gross receipts, personnel or real or personal property or other assets. Unless otherwise specified in writing by FBC, payment terms are net 14 days after the invoice date. Operator will make all payments in U.S. dollars by check, money order or wire transfer. If Operator disputes any invoice in good faith, it must (a) notify FBC of the nature of such dispute before the due date and (b) pay any undisputed portion of such invoice within the payment terms stated above. FBC and Operator will act in good faith to resolve all invoice disputes. Operator will pay interest on all past due amounts at the lesser of 1.5% per month or the highest rate permissible under applicable law. Operator will not withhold payment of any amounts due and payable by reason of any set-off or any claim or dispute with FBC. Operator will be liable for all costs and expenses, including reasonable attorney’s fees, incurred by FBC in connection with the collection of amounts owed to FBC by Operator. Notwithstanding any other provision of these Terms, FBC reserves the right in its sole discretion to revoke any credit extended to Operator and to require payment for any order prior to shipment. Operator irrevocably and unconditionally guarantees the performance of each and every location owned or operated by Operator issuing orders and/or purchasing Goods or Services from FBC. Operator expressly waives any other diligence, protest or notice as well as any requirement that FBC exhaust any remedy or right against any location owned or operated by Operator.
3. DELIVERY: Unless otherwise agreed in writing, all sales are FOB FBC’s shipping point, and title and risk of loss or damage transfers to Operator at that point. Carriers are chosen by FBC with normal carrier freight prepaid by FBC and added to the invoice. FBC may assess an additional handling and delivery charge of $8.00 on each delivery of Goods costing less than $150.00 and of $5.00 on each delivery of Goods costing $150.00 or more to Operator. Shipments outside the continental United States will be sold FAS port of embarkation. Operator will provide full cargo insurance coverage for all shipments. FBC will have no obligation to insure any Goods shipped by it to Operator. If FBC permits Operator to pick up Goods at FBC’s facility, Operator agrees to deliver the Goods to the destination indicated on the order. In addition to any other remedies available to FBC, Operator will reimburse FBC for the full amount of any allowance granted to Operator for pick up if the Goods are not delivered to the location indicated on the order.
4. INSPECTION; ACCEPTANCE OF GOODS; ACCEPTANCE OF SERVICES: Operator will inspect the Goods within three days of receipt (“Inspection Period”). Operator will be deemed to have accepted the Goods unless it notifies FBC in writing during the Inspection Period and furnishes written evidence or other documentation as reasonably required by FBC that the Goods do not meet the warranties or criteria of these Terms or the applicable order, or bear labels that incorrectly identify the content of the Goods (“Unacceptable Goods”). If FBC delivers to Operator a quantity of Goods of up to 10% more or less than the quantity set forth in the purchase order or sales confirmation, Operator will not be entitled to object to or reject all or any portion of the Goods by reason of the surplus or shortfall and will pay the price set forth in the invoice adjusted pro rata for such Goods. If Operator timely notifies FBC of Unacceptable Goods, FBC will, in its sole discretion, (i) replace such Unacceptable Goods with conforming Goods, or (ii) credit or refund the price for such Unacceptable Goods, together with any reasonable shipping and handling expenses incurred by Operator in connection therewith. If requested by FBC, Operator will ship, at FBC’s expense and risk of loss, the Unacceptable Goods to FBC’s designated facility. If FBC exercises its option to replace Unacceptable Goods, FBC will, after receiving Operator’s shipment of Unacceptable Goods, ship the replacement Goods to Operator, at FBC’s expense and FBC’s risk of loss. Operator will be deemed to have accepted Services unless it notifies FBC in writing of any Services that materially fail to meet the warranties or criteria set forth in these Terms or the applicable order (“Unacceptable Services”) within five days of the completion of such Services. If Operator timely notifies FBC of Unacceptable Services, FBC will correct the deficiencies in the affected Service, at no additional cost to Operator. Operator acknowledges and agrees that the remedies set forth in this Section 4 are Operator’s exclusive remedies for the delivery of Unacceptable Goods or Unacceptable Services.
5. CANCELLATION; RETURNS; TERMINATION: Operator can only cancel orders or return Goods with FBC’s prior written authorization. FBC will not authorize the return of any other Goods after 30 days from the date such Goods were delivered to Operator. For Custom Goods, Operator will pay FBC for all completed Goods, work-in-process, raw materials and other non-cancelable commitments produced, obtained or contracted through the time of cancellation. Custom Goods and discontinued items will not be accepted for exchange or return. All returned Goods must reference the original invoice and purchase order. Returned Goods must be in original standard packaging and in unused, salable condition. If Operator breaches these Terms, including by failing to timely pay for any Goods or Services, or becomes insolvent, or experiences any act of bankruptcy, insolvency, receivership or winding up, then FBC may cancel or suspend delivery under any applicable order, without prejudice to any other rights FBC may have hereunder, at law or in equity.
6. FORCE MAJEURE: will not be liable for damages and no orders may be terminated by Operator for any delay or default by FBC in performing any obligation hereunder if that delay or default is due to any act of God, act of any governmental authority or statutory undertaking, industrial dispute, fire, explosion, accident, power failure, flood, terrorism, riot or war (declared or undeclared) or any other occurrence or cause to the extent beyond the reasonable control of FBC (a “Force Majeure Event”). In the event of a shortage of Goods, FBC reserves the right to allocate available Goods among customers in its own discretion.
7. WARRANTIES: FBC represents and warrants to Operator that, as of the time of delivery, the Goods sold by FBC to Operator will conform to the written specifications and any other representations for the Goods made by FBC on the packaging of the Goods. The foregoing warranties expire 90 days following delivery of the applicable Goods and are conditioned upon Operator giving FBC prompt written notice of any claim to be made under this warranty and, if requested by FBC shipping the non-conforming Goods prepaid to a location directed by FBC. No employee or agent of FBC is authorized to modify the foregoing warranty or to make additional warranties that are binding on FBC. FBC will not be liable for a breach of the warranty set forth in this Section 7 if: (i) Operator makes any further use of such Goods after giving such notice; (ii) the defect arises because Operator failed to follow FBC’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Operator alters or repairs such Goods without the prior written consent of FBC. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ANY OTHER WARRANTY, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED. BUYER’S REMEDY FOR BREACH OF THE ABOVE WARRANTY WILL BE LIMITED, AT FBC’S SOLE OPTION, TO REPLACEMENT OF, OR REFUND OF THE PURCHASE PRICE ALLOCABLE TO, THE GOODS GIVING RISE TO THE CLAIM. ALL SERVICES ARE PROVIDED “AS IS.” FBC MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND AND EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICES, THEIR SUITABILITY OR FITNESS FOR ANY PURPOSE AND THEIR MERCHANTABILITY.
8. THIRD PARTY PRODUCTS: Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods or Services. Third Party Products are not covered by the warranty in Section 7. If requested by Operator, FBC will make commercially reasonable efforts to assign any warranties relating to Third Party Product to Operator. For the avoidance of doubt, FBC MAKES NO REPRESENTATIONS OR WARRANTIES AS TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
9. CONFIDENTIAL INFORMATION: Operator will maintain all of the terms of these Terms and the applicable order, including all pricing information and specifications provided or disclosed to Operator, or to which the Operator gains access (collectively, “Confidential Information”), in strict confidence and use all due care in connection therewith that is necessary or appropriate to ensure compliance with the terms hereof All Confidential Information will remain the exclusive property of FBC notwithstanding any disclosure thereof, and Operator will restrict disclosure to only those of its employees who require such Confidential Information to perform their responsibilities in connection with these Terms and the applicable order. Operator will not disclose any of FBC’s Confidential Information to any third party without the prior written consent of FBC and will use FBC’s Confidential Information only for purposes of performing Operator’s obligations under these Terms and the applicable orders. Operator recognizes and agrees that the unauthorized use or disclosure of any Confidential Information by Operator could cause irreparable injury for which FBC would have no adequate remedy at law, and that an actual or contemplated breach of this Section 9 will entitle FBC to seek immediate injunctive relief prohibiting such breach.
10. LIMITATION OF LIABILITY: EXCEPT AS OTHERWISE EXPLICITLY SET FORTH HEREIN, IN NO EVENT WILL FBC BE LIABLE TO BUYER FOR (I) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, OR PROFITS, OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OR FROM THE MANUFACTURE, SALE, PURCHASE, OR USE OF THE GOODS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (II) DAMAGES THAT EXCEED THE AMOUNTS PAID OR OWED BY BUYER TO FBC FOR GOODS SOLD IN THE THREE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. Any action resulting from any breach on the part of FBC as to the Goods delivered to Operator must be commenced within one year after the cause of action accrued.
11. COMPLIANCE WITH LAWS: As to the purchase, sale and resale of Goods sold by FBC, Operator will comply with all applicable laws, regulations and ordinances. Operator will maintain in effect all of the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. Operator will comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Operator. Operator assumes all responsibility for shipments of Goods requiring any government import or export clearance. FBC may terminate any applicable order if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. FBC’s warranties for exported Goods may vary or may be null and void for Goods exported outside the United States. Operator takes full responsibility for ensuring that the Goods comply with the laws of the country of destination.
12. GOVERNING LAW; ARBITRATION: All orders for the purchase of Goods or Services will be governed by, and construed pursuant to, the laws of the State of Texas, USA without application of the conflict of law principles thereof. The Parties exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods if applicable. Notwithstanding any agreement between the Parties to the contrary, if any controversy or claim arises out of or relates to these Terms, Goods, Services or an order, the Parties will strive to amicably settle same, but if they cannot do so within 90 days after such dispute arises, any such controversy or claim will be settled solely by arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), including the Expedited Procedures and the Rules for Emergency Measures of Protection provided therein. The arbitration will take place in Dallas County, Texas before a single arbitrator, and will be conducted in English and pursuant to rules of the AAA, which will administer the arbitration and act as appointing authority. The expense of the arbitration will be paid as the arbitrator determines. The decision of the arbitrator will be final and binding upon the Parties, and application may be made to any court of competent jurisdiction for judicial acceptance of the award or order of enforcement and entry of a judgment thereon.
13. WAIVER; VALIDITY; SURVIVAL: The failure of either Party to insist upon the strict observance and performance of the terms and conditions set forth herein will not be deemed a waiver of other obligations hereunder, nor will it be considered a future or continuing waiver of the same terms and conditions. If any term or condition of these Terms, or any part hereof, not essential to the commercial purpose of these Terms or the applicable order is held to be illegal, invalid, or unenforceable, it is the intention of the Parties that the remaining terms will remain in full force and effect. To the extent legally permissible, any illegal, invalid, or unenforceable provision of these Terms or the applicable order will be replaced by a valid provision that will implement the commercial purpose of the illegal, invalid, or unenforceable provision. Sections 5, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 and such other sections that by their nature must survive termination in order to affect their intended purpose will survive termination of these Terms and the applicable order.
14. USE OF FBC MARKS: FBC owns certain proprietary and other property rights and interests in and to trademarks, service marks, logo types, insignias, trade dress designs and commercial symbols relating to FBC and its Goods (the “Marks”). Operator acknowledges that the Marks are the sole and exclusive property of FBC, with any goodwill arising from the use of the Marks inuring solely to the benefit of FBC. FBC may provide Operator with displays, signage and other advertising materials incorporating the Marks or approve Operator’s use of the Marks on Operator’s menus. Operator will use such materials solely in connection with the marketing and sale of FBC Goods and for no other purpose. Upon request from FBC, Operator will (a) provide a reasonable quantity of samples of any of Operator’s materials utilizing the Marks to FBC, and (b) make reasonable changes relating to the use of the Marks in such materials. If at any time Operator ceases dispensing FBC Goods, whether in connection with the termination of an Agreement between the Parties or otherwise, or resells FBC Goods in violation of Section 16 below, all rights granted to Operator to use the Marks will immediately terminate, and Operator will immediately (y) cease to use, in any manner whatsoever, any Marks (including in displays, signage, advertising materials, menus and other materials) and (z) upon request by FBC, immediately return to FBC all such materials owned by FBC and destroy all such materials owned by Operator incorporating such Marks.
15. MARKETING COMMUNICATIONS: FBC offers a variety of specialty coffees, teas, and chef grade culinary product lines, equipment, and content under several brands, including, without limitation, Boyds, Cains, Metropolitan, Public Domain, and Farmer Brothers. By accepting these Terms as set forth in Section 1 above, Operator agrees to receive promotional offers and information regarding FBC Goods, services, upcoming events and other marketing communications from FBC. With each such communication, Operator will be given the opportunity to opt-out of receiving future marketing notices. As an alternative to using the unsubscribe mechanism contained within marketing communications, Operator may also opt-out of receiving future marketing notices by contacting FBC at info@farmerbros.com. Even if Operator opt-outs, FBC reserves the right to contact Operator for non-marketing purposes.
16. RESALE OF GOODS: Operator understands and acknowledges that only authorized distributors, retailers and resellers which are specifically authorized by FBC may distribute, retail and resell FBC Goods. Operator may only be an authorized distributor, retail, or reseller by express written consent of FBC. In the event that Operator is selected by FBC to become an authorized distributor, retailer or reseller, Operator agrees that it will not distribute, retail or resell FBC Goods to any purchaser who it knows, or should know, intends to resell FBC Goods unless that purchaser is an authorized distributor, retailer or reseller of FBC Goods. If Operator is not certain whether a purchaser is an authorized distributor, retailer or reseller of FBC Goods, it agrees to not to distribute or sell FBC Goods to any such entity unless it has obtained written consent from FBC in advance of such distribution or sale.
17. ENTIRE AGREEMENT; ASSIGNMENT: The terms and conditions set forth herein, or as changed or modified by a written agreement signed by the Parties, will constitute the entire contract of sale between FBC and Operator and will supersede any additional or inconsistent terms and conditions of purchase contained in any orders or any other documents or correspondence of Operator. For the avoidance of doubt, these Terms do not apply to any equipment that FBC may loan to Operator in connection with the Goods. All such loaned equipment will be governed by FBC’s Equipment Usage Terms and Conditions, which will not be superseded by these Terms. Any amendment or modifications to the Terms will only be effective if contained in a written agreement signed by the Parties. FBC reserves the right to amend and modify these Terms, and will post any revised version of these Terms on its website at www.farmerbros.com, provided that no such modification or amendment will apply to any order which has already been submitted by Operator and accepted by FBC. Operator should regularly check www.farmerbros.com to review the most current version of these Terms. Neither Party may assign, delegate or otherwise transfer any order, in whole or in part, without the prior written consent of the other Party (not to be unreasonably withheld); provided, that FBC may assign an order to any party controlling, controlled by or under common control with FBC or to any person acquiring all or substantially all of the assets or outstanding capital stock of FBC. Any attempted assignment, delegation, or other transfer of this order in violation of this Section will be null and void. These Terms are for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. An electronic image of any document and any signature or acknowledgement thereto will be considered an original (to the same extent as any paper or hard copy), including under evidentiary standards applicable to a proceeding between the Parties.
18. EFFECTIVE DATE: These Terms are effective as to all orders accepted by FBC on and after March 1, 2018.