The following terms and conditions apply to all sales unless specifically agreed to in writing by Top Raw'Man Ingredients LLC and/or The Scoopie LLC.
Definitions: Seller: Top Raw'Man Ingredients LLC and/or The Scoopie LLC
Buyer: Any party who enters into a contract with Seller by which Seller agrees to produce and/or distribute goods for Buyer.
Price: The price is as stated in Seller’s quotation, unless Seller otherwise agrees in writing. Any change in the quantity quoted and the quantity shipped or released may affect the price. The price does not include sales, use, excise or other taxes or customer duties, costs of pallets, shrink-wrap or other nonstandard packaging or insurance. Buyer shall pay such taxes and costs directly or reimburse Seller. Seller reserves the right to deliver 10% over or 10% under the quantity ordered by the Buyer.
Shipment: Unless otherwise expressly stated herein, the goods shall be shipped FOB Seller’s facility. Title and risk of loss shall pass to Buyer upon delivery to the carrier. Unless otherwise directed by Buyer before the date of shipment, Seller may select any reasonable method of shipment. Delivery dates are approximate and not guaranteed.
Force Majeure: Neither party shall be liable for its failure to perform due to any occurrence beyond its reasonable control, including acts of God, fire, floods, war, terror, sabotage, accidents, labor disputes or shortages, power interruption, governmental laws, ordinances and regulations, allocations and price restrictions, inability to obtain material, equipment or transportation, or any other similar occurrence; provided, however, Buyer’s payment for Products produced and shipped shall not be suspended by any event of force majeure. The party whose performance is prevented by any such occurrence shall promptly give written notice to the other party of the cessation of performance. The party affected by such occurrence shall use commercially reasonable efforts to minimize the effects of the force majeure event. Under no circumstances shall Seller have any liability for penalties or other consequential damages of any kind resulting in whole or part from Seller’s delay in delivering or failure to deliver any products to Buyer as agreed.
Payment: Unless otherwise agreed, payment terms shall be net 30 days. Late payments shall be subject to an interest charge of the highest interest rate permissible by law, plus collection and attorney’s fees. Buyer shall make no set-off deduction without Seller’s written consent.
Warranty: Seller warrants that products supplied to Buyer hereunder will conform to Seller’s specifications and will be free from defects in workmanship for a period of thirty (30) days from the date of shipment of the products. Buyer shall notify Seller within five (5) days of Buyer’s receipt of products, in writing, of any product defect, which notification shall describe the defect in sufficient detail to permit Seller to isolate the defect. There is no implied warranty of merchantability or of fitness for particular purpose and there are no warranties of any nature except as set forth in paragraph 6 herein. Seller shall have the right to inspect the goods claimed to be defective and shall have the right to determine the cause of such alleged defect. All goods replaced or repaired by Seller under its warranty shall be replaced or repaired F.O.B. Seller’s facility. Buyer’s exclusive remedy and Seller’s sole liability under this warranty will be, at its sole option and expense, to correct or replace the nonconforming or defective product or refund the purchase price to the Buyer. Defects that do not impair service shall not be a cause for rejection or recovery under any warranty. Buyer assumes full responsibility for the use and application of the product. Buyer accepts Seller’s design and material selection and specifications in placing this order unless other specifications are agreed to in writing by both parties prior to the manufacture of goods by Seller.
Liability: The remedies set forth in these terms and conditions are exclusive, and Seller’s liability under this contract shall in no event extend to indirect, punitive, incidental or consequential damages which Buyer may suffer or incur in connection with the contract between Buyer and Seller, including, but not limited to loss of profits, damages or losses resulting from Buyer’s inability to fulfill contracts with third parties or loss of damages or losses resulting from Buyer’s inability to fulfill contracts with third parties or loss of goodwill. Seller’s liability under the contract between Buyer and Seller under any theory of law shall in no event exceed the purchase price of the goods in question.
Cancellations and Return of Goods: No purchase order issued by the Buyer that has been confirmed by the Seller may be cancelled or the manufacture of goods there under suspended after the date of the sales confirmation without the sole and express written consent of Seller. Upon cancellation or suspension at the request of the Buyer, and acceptance by the Seller, Buyer shall reimburse the Seller promptly for all expenditures incurred by Seller, including, but not limited to, material used, labor, and a proportionate share of direct manufacturing, selling, general and administrative expenses, and profits which would have been earned under the purchase order. No Goods shall be returned to (whether due to cancellation of a purchase order or for any other reason not the fault of the company) without prior written authorization from the Seller.
Indemnity: Buyer shall indemnify and hold Seller harmless from and against all claims and causes of action for damages and expenses of every kind and character including costs of suit and reasonable attorney’s fees asserted against Seller, its agents, and employees arising out of or in any manner connected with the product or use of the product listed on the face hereof. The obligation to indemnify under this shall survive the termination or expiration of the accepted order.
Assignment: Without the express written consent of the other party, neither party may assign any of its rights or obligations in connection with the sale of the goods.
Changes, Modification, Waiver: No change in specifications, drawings or delivery for the goods may be made without the prior written consent of Seller. These terms may be modified only in writing signed by an authorized representative of the Seller. Seller’s waiver of Buyer’s default under any term or condition shall not constitute a waiver of any further defaults. Seller reserves the right to a Buyer’s cost adjustment when the initial production of Buyer’s product constitutes a production alteration versus the original quotation as represented by a Buyer/Seller confirmation.
Notice: Any notice to be provided to Seller hereunder must be in writing and transmitted by U.S. First Class Mail, addressed to: Top Raw'Man Ingredients LLC and/or The Scoopie LLC - 16969 Scenic Knoll Conroe, TX 77385, and Attention: Controller, and by facsimile: 512-699-7073.
Storage Fees: If Buyer does not take delivery by the date which Buyer requested, then Seller may impose a charge equal to 1.5% of the purchase price for each month after such date until Buyer takes delivery. Other additional fees may be charged, including but not limited to, storage and other related fees.
Governing Law: The contract between Seller and Buyer shall be governed by the laws of the State of Texas. Buyer and Seller consent to the jurisdiction of the Courts of the State of Texas with venue in Montgomery County, and any litigation involving the contract shall be commenced only in Montgomery County District Court, State of Texas.
Entire Agreement: The contract between Buyer and Seller, including these terms and conditions, constitutes the entire agreement between the parties with respect to its subject matter, and any prior contemporaneous communications or agreements other than any pre-existing blanket sales agreement are hereby superseded. The contract may not be terminated or modified by any party unless in writing, signed by both Seller and Buyer. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.