Terms & Conditions of Sale
Modification of Terms; Express Rejection of Other Terms. These terms and conditions (“Terms and Conditions”) shall control the sale of Pretzilla products (the “Goods”). “Pretzilla” shall mean Pretzilla, LLC. Pretzilla’s acceptance of any order is expressly subject to buyer’s assent to 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 Goods or services ordered. No addition to or modification of these Terms and Conditions shall be binding upon Pretzilla unless an officer of Pretzilla agrees to such terms in 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 Pretzilla shall not be construed as assent to such contrary or additional terms and conditions or constitute a waiver by Pretzilla of any of these Terms and Conditions. Unless alternate terms are contained in a contract or other writing signed by an officer of Pretzilla, these Terms and Conditions shall control. Any reference to buyer’s purchase order by Pretzilla shall not affect or limit the applicability of these Terms and Conditions.
Price. Unless otherwise confirmed by Pretzilla, (a) all prices, quotations, shipments and deliveries by Pretzilla are F.O.B. the applicable Pretzilla facility; (b) all base prices, together with related extras and deductions, are subject to change without notice; (c) all orders are accepted subject to Pretzilla’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.
Taxes. Any tax which Pretzilla 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 Goods 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 Goods or services. buyer shall promptly pay the amount thereof to Pretzilla upon demand but may, in lieu of such payment, furnish tax exemption certificates acceptable to the appropriate taxing authorities to Pretzilla.
Setoff; Deductions. In no event is buyer authorized to deduct any amounts from the amounts owed Pretzilla unless specifically authorized in writing by Pretzilla.
Credit. All orders are subject to the approval of Pretzilla’s finance department. Credit terms (including payment terms and credit limits) will be set according to Pretzilla’s 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 Pretzilla’s sole discretion. Pretzilla 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 Pretzilla’s credit guidelines. Pretzilla may require payment in full or other security in advance.
Default in Payment. If buyer fails to make payments on any contract between buyer and Pretzilla in accordance with Pretzilla’s terms, Pretzilla, 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.
Producing or Shipping Point. Unless otherwise specified by Pretzilla, Pretzilla reserves the right to produce and ship all or any part of the Goods specified in any order from any of its plants or facilities.
Delivery Terms and Risk of Loss. Delivery terms, unless otherwise expressly stated, shall be F.O.B. Pretzilla’s facilities. Delivery to carrier at point of origin shall constitute delivery to buyer and thereafter the shipment shall be at buyer’s risk. Title to the Goods transfers to buyer when Pretzilla delivers the Goods to the first carrier for transmission to buyer. Claims for loss or damage to products in transit should be made to the carrier and not to Pretzilla. As collateral security for the payment of the purchase price of the Goods, buyer hereby grants to Pretzilla a lien on and security interest in and to all of the right, title and interest of Pretzilla in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
Packaging. Pretzilla will use all reasonable means to comply with any packaging, loading or bracing requirements specified by buyer. Pretzilla may charge Buyer for compliance with buyer’s special requirements. If no packaging, loading or bracing requirements are specified by buyer, Pretzilla shall comply with industry standards for the method of transportation used for such Goods.
Specifications. Pretzilla shall have no obligation to ensure that any Goods or services purchased from Pretzilla meet buyer’s unique specifications and/or other requirements unless such specifications and/or other requirements are set forth in buyer’s purchase order and expressly accepted by Pretzilla.
Transportation. Pretzilla will use all reasonable efforts to comply with buyer’s requests as to method of transportation, but Pretzilla 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 Pretzilla to be unavailable or would compromise product quality or safety. In any such case, Pretzilla shall promptly notify buyer of any such change.
Damaged Goods. If any Goods arrive at buyer’s destination in a damaged condition or a shortage occurs, buyer shall immediately report the damage or shortage to the delivering carrier and to Pretzilla. Any loss or shortage caused by damage in transit will be for account of buyer.
Inspection and Claims. Immediately upon receipt of the Goods, buyer shall, at its sole cost and expense, inspect the Goods to ensure that it has received all quantities and the quality ordered. No later than three (3) days after buyer’s receipt of the Goods and before the use, disposition, processing, or any other change from the original condition of any part of the Goods (collectively, “Use” or, as a verb, “Used”), buyer shall notify Seller in writing if any Good is found to be deficient, defective or short and shall furnish such written evidence and other documentation as Pretzilla may reasonably request. Buyer’s failure to give timely, written notice to Pretzilla of any deficiency, defect or shortage within such three (3) day period shall constitute an unqualified acceptance of the Good and a waiver by buyer of all claims with respect thereto. If buyer has reason to believe any Good does not comply with the limited warranty set forth herein, buyer shall not Use the Good without the prior written approval of Pretzilla and shall promptly notify Pretzilla. At Pretzilla’s option, Pretzilla may reimburse buyer by means of a refund or credit for the purchase price of the Goods in question or replace the Goods. The foregoing remedy is buyer’s sole remedy for failure of the Goods to comply with the limited warranty set forth below.
Further Handling and Use. Pretzilla shall not be liable for, and buyer shall indemnify, defend and hold harmless Pretzilla, its subsidiaries, affiliates and each of their respective equity owners, shareholders, officers, directors, members, managers, employees, representatives and agents (“Indemnitees”) from and against any and all claims, losses, liabilities, costs and expenses, including attorneys’ fees, (collectively, “Claims”) arising out of or resulting from the handling, Use, combination with other ingredients, incorporation, manufacture, storage, processing, alteration, distribution, transportation, sale or marketing of the Goods, or any other action or inaction with regard to the Goods, in each case after the delivery thereof to buyer, including, without limitation, product liability claims, intellectual property claims, and other liability for injuries, death, losses or damages. Buyer’s obligation shall survive the termination, cancellation or expiration of all purchase orders delivered pursuant to these Terms and the cessation of business between Pretzilla and buyer.
Indemnification. Buyer shall defend, indemnify and hold Pretzilla harmless against any and all claims, losses, liabilities, damages, costs or expenses, including reasonable attorney’s fees and court costs, arising out of (a) buyer’s breach of any obligations, representation, warranty or agreement made hereunder, and (b) buyer’s negligent act or omission or willful misconduct.
Force Majeure. Pretzilla shall not be liable for any 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; 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 circumstance or cause beyond the reasonable control of Pretzilla. 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. Pretzilla warrants, at the time of delivery, only that: (i) the Goods, if delivered by Pretzilla in the United States are not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act of June 25, 1938 (the “1938 Act”), as amended, or the Fair Packaging and Labeling Act of 1966 (together with the 1938 Act, the “Federal Acts”), as amended, or within the meaning of any state food and drug law substantially similar to those Federal Acts (the “State Acts”), and that the Products are not articles which may not, under the provisions of Section 404 or 505 of the 1938 Act or the State Acts, be introduced into interstate commerce; and (ii) Pretzilla will deliver good title to the Goods and the Goods shall be delivered free of liens and encumbrances. The limited warranty in (i) above shall be void and Pretzilla shall have no liability or responsibility for any claims respecting the quality or condition of the Good (a) if buyer has not examined, inspected, sampled and tested the Good, or cause the Good to be examined as required herein, or (b) buyer’s agents or carriers do not store and handle the Goods properly in accordance with the product specifications or Pretzilla’s direction. Buyer, having the expertise and knowledge in the intended Use of the Goods and any Use or other product made therefrom, assumes all risk and liability for results obtained by the Use of the Goods, whether Used singly or in combination with other ingredients or in any process. EXCEPT AT SET FORTH IN THIS SECTION, PRETZILLA HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY DETERMINATION OF THE SUITABILITY OF THE PRODUCT FOR THE USE CONTEMPLATED BY BUYER IS BUYER’S SOLE RESPONSIBILITY.
Limitation of Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, PRETZILLA SHALL NOT BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION, DAMAGE TO GOODWILL OR REPUTATION, DEGRADATION IN VALUE OF BRANDS OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST EARNINGS, LOST PROFITS OR BUSINESS INTERRUPTION, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
Rescheduled Deliveries and Cancellation. Buyer may cancel or postpone scheduled deliveries under this agreement only with the prior written consent of Pretzilla, which consent may be withheld in Pretzilla’s sole discretion, and upon payment of reasonable cancellation fees.
Termination. Pretzilla shall have the right in its sole discretion, by notice given to buyer, to terminate all or part of any purchase order(s) in the event of (a) a voluntary or involuntary bankruptcy filing by or against buyer, (b) the appointment of any trustee or receiver for any substantial portion of buyer’s assets, (c) any assignment for the benefit of creditors, (d) buyer ceasing to carry on business in the ordinary course, (e) buyer’s breach of any provision contained herein, or (f) for convenience upon fourteen (14) days written notice. In the event of such cancellation, (and without prejudice to the termination remedy specified), buyer shall remain fully liable for its obligations under the relevant purchase order(s). If buyer notifies Pretzilla of buyer’s intention not to fulfill any obligation under a purchase order, buyer shall be liable to Pretzilla for all finished Goods, work in process, and unique or surplus raw materials and supplies produced or ordered in reliance on such purchase order. Any and all purchase orders for products shall be paid for at the contract price, regardless of the stage of completion. Except as specifically set forth herein, Pretzilla shall have no obligation to buyer in respect of all or part of any canceled purchase order.
Waiver. Waiver by Pretzilla 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 Pretzilla 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 written consent of Pretzilla. Any such actual or attempted assignment without Pretzilla’s prior written consent shall entitle Pretzilla to cancel such order upon written notice to buyer.
Choice of Law and Venue. All laws and regulations required to be incorporated in agreements of this character are incorporated herein by this reference. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of Goods by buyer. Buyer assumes all responsibility for shipments of Goods requiring any government clearance. All orders, sales, and these Terms and Conditions shall be governed by and construed according to the laws of the state of Wisconsin. Pretzilla shall be entitled to recover reasonable attorneys’ fees and expenses related to collection of any amounts owed in connection with products sold to buyer or enforcement of these Terms and Conditions, whether or not a suit is filed.
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 PRETZILLA FOODS, INC., WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS OR OTHER THEORIES OF LIABILITY.
Anti-Terrorism and Anti-Bribery Laws. Buyer represents and warrants that neither buyer nor any of its parents, affiliates, representatives, agents or employees: (i) is identified, either by name or an alias, pseudonym or nickname, on the lists of “Specially Designated Nationals” or “Blocked Persons” maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (texts currently available at http://www.treas.gov/offices/enforcement/ofac/); (ii) is directly or indirectly owned or controlled by the government of any country that is subject to a United States embargo; (iii) acts, and none of them will act, directly or indirectly on behalf of the government of any country
United Nations Convention on Contracts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any transaction between Pretzilla and buyer, and buyer expressly waives any rights or remedies under the Convention.
Complete Agreement. These terms and conditions, together with buyer’s purchase order and sales contract or agreement, if any, constitute the entire agreement between buyer and Pretzilla with respect to any order. No addition to or variations from such terms and conditions, whether contained in buyer’s purchase order, any shipping release or elsewhere, shall be binding upon Pretzilla unless expressly agreed to in writing by an officer of Pretzilla.