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Terms and Conditions

 

  1. Applicability.  
    • These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods, products or materials (“Goods”) by Cherry Central Cooperative, Inc. or any of its affiliates (“Seller”) to the purchaser (“Buyer”) named on accompanying purchase order, invoice, quotation, confirmation of sale or online order that incorporates these Terms (the “Sales Confirmation” and, with these Terms, this “Agreement”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, including, without limitation any Sales Confirmation, these Terms shall prevail to the extent they are inconsistent with such contract.
    • This Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its Sales Confirmation or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
  2. Delivery.  
    • The products will be delivered within a reasonable time after the receipt of the Sales Confirmation, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit.
    • Unless otherwise specifically provided on the Sales Confirmation, shipment of the Goods shall be FOB Seller’s designated warehouse. On international sales, unless otherwise specified on the Sales Confirmation, the terms of delivery shall be EXW Seller’s designated warehouse. Buyer is responsible for any and all carrier claims associated with FOB sales. Any deviations from delivery FOB Seller’s designated warehouse, and/or any freight and administration costs, will be added as a separate line item on the Sales Confirmation.
  3. Quantity. If Seller delivers to Buyer a quantity of Goods of up to 15% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
  4. Shipping Terms. Unless otherwise agreed in writing by the parties, delivery shall be made FOB Seller’s designated warehouse.
  5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon the carrier’s pickup of the Goods at Seller’s designated warehouse.
  6. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
  7. Inspection and Rejection of Nonconforming Goods.  
    • Buyer shall inspect the Goods within 14 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Sales Confirmation; or (ii) product’s label or packaging incorrectly identifies its contents.
    • If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s designated warehouse. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to Buyer’s designated warehouse.
    • Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 7(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
  8. Price.
    • Buyer shall purchase the Goods from Seller at the price (the “Price”) set forth in the Sales Confirmation.
    • All Prices are exclusive of 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 Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
  9. Payment Terms.  
    • Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice, unless otherwise specified in a Sales Confirmation. Buyer shall make all payments hereunder by wire transfer or check and in US dollars.
    • Buyer shall 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, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 30 days following written notice thereof. If Buyer’s credit becomes unsatisfactory to Seller, in Seller’s sole discretion, further withdrawals, shipments, or transfers shall, at Seller’s sole option, be made only for cash immediately payable upon delivery.
    • Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
    • Unless Seller has materially breached this Agreement, the fee of any broker or agent with respect to this Agreement shall only become due and payable when Seller has received full payment in accordance with this Agreement.
  10. Limited Warranty.  
    • Seller warrants to Buyer that such Goods will materially conform to Seller’s published specifications in effect as of the date of shipment under the corresponding Sales Confirmation and will be free from material defects.
    • EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, 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.
    • 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. Third Party Products are not covered by the warranty in Section 10(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT 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.
    • The Seller shall not be liable for a breach of the warranty set forth in Section 10(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 14 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
    • The Seller shall not be liable for a breach of the warranty set forth in Section 10(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
    • Subject to Section 10(d) and Section 10(e) above, with respect to any such Goods during the warranty period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part of the Goods) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
    • THE REMEDIES SET FORTH IN SECTION 10(F) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10(A).
  11. Limitation of Liability.  
    • IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
    • The limitation of liability set forth in Section 11(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
  12. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. 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 the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
  13. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Buyer may not terminate any Sales Confirmation without the express written consent of Seller.
  14. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  15. Confidential Information. Each party agrees to keep the terms of this Agreement strictly confidential and to only disclose such terms to agents and employees of the party on a need to know basis. Further, each party shall assure that no agent or employee to whom any provision of this Agreement is disclosed shall further disclose such provisions in any manner inconsistent with this Section 15. Notwithstanding the foregoing, the parties acknowledge that invoices and shipping documents may have to be disclosed to third parties in the ordinary course of business and agree that such disclosures are not prohibited by this Section 15.
    • For purposes of this Agreement, “Confidential information” means all information and materials disclosed by or on behalf of a party (each, a “Disclosing Party”), or otherwise received, observed or accessed by the other party (each, a “Receiving Party”), in connection with this Agreement and the negotiation thereof, whether in oral, written, visual or electronic form, whether prior to or after the order date reflected on this Agreement, and regardless of whether marked or identified as confidential at the time of disclosure, including (i) all business, accounting, marketing, customer, sales, business and pricing information concerning the Disclosing Party, its products, services, affiliates and suppliers; (ii) all trade secrets, know-how, inventions, and other creative, technical, product and service information concerning the Disclosing Party, its products, services, affiliates and suppliers, including formulas, product standards, manufacturing processes and techniques, equipment, and other processes; (iii) all observations made through inspection, evaluation, testing, or use of products, services, facilities, equipment or other property, methods or processes of the Disclosing Party; (iv) all documentation and information posted on secure websites and made available to the Receiving Party on a password protected or other access controlled basis; and (v) all other information that a reasonable person familiar with the industry of the Disclosing Party, its affiliates or suppliers would consider confidential and/or proprietary. Disclosing Party shall have no obligation to disclose any particular Confidential Information. Notwithstanding the foregoing, Confidential Information does not include any information or materials that (i) was in the Receiving Party’s possession prior to the date of disclosure by the Disclosing Party, as demonstrated by written records; (ii) is rightfully acquired by the Receiving Party from a third party that is legally entitled to make such disclosure, without restriction as to its use or disclosure; (iii) is independently developed by or on behalf of the Receiving Party without reference to or reliance on the Confidential Information of the Disclosing Party, as established by documented and competent evidence; or (iv) was or is placed in the public domain through no act or failure to act on the part of the Receiving Party, its representatives or affiliates.
    • From time to time, the Receiving Party may receive, observe, and/or have physical or electronic access to certain Confidential Information of the Disclosing Party. The Receiving Party shall protect such Confidential Information against unauthorized access, use or disclosure with at least the same degree of care used to protect its own Confidential Information of a similar nature, but with no less than reasonable care. The Receiving Party shall access and use the Confidential Information of the Disclosing Party solely for the purpose of preforming this Agreement (the “Permitted Purpose”). Except as expressly permitted herein, the Receiving Party shall not, nor shall it permit any third party to, access, use, or disclose the Confidential Information of the Disclosing Party for any other purpose, whether for the Receiving Party’s own benefit or for the benefit of any third party, without the prior written authorization of Disclosing Party in each instance. The Receiving Party may disclose Confidential Information only to those officers, employees, affiliates and agents of the Receiving Party (each, a “Representative”) who have a need to know the Confidential Information for the Permitted Purpose, and who are legally bound by confidentiality obligations at least as protective of the Disclosing Party’s Confidential Information as the provisions of this Agreement. Any unauthorized access to, use or disclosure of Confidential Information by a Representative or affiliate of the Receiving Party shall be deemed a direct breach of this Agreement by the Disclosing Party. Receiving Party may be required to execute additional confidentiality agreements as a condition to any inspection of Disclosing Party’s or its subcontractor’s facilities.
    • Upon the expiration or termination for any reason of this Agreement, and/or upon the Disclosing Party’s earlier written demand, the Receiving Party shall promptly return or destroy any Confidential Information of the Disclosing Party in its possession or control (including copies and summaries thereof), and upon request, confirm that it has purged its records and files of, and no longer has access to, any such Confidential Information. The Receiving Party’s obligations under this Agreement with respect to Confidential Information disclosed during the term hereof, and all rights and remedies of the Disclosing Party related thereto, shall survive the expiration or termination of this Agreement of any reason, and shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
    • Each party recognizes that any actual or threatened breach of the provisions of this Section 15 would cause irreparable harm to the other party, the extent of which would be difficult and impracticable to assess, and that money damages alone would not be an adequate remedy for such breach. Accordingly, in addition to all other remedies available under the circumstances, each party shall be entitled to seek immediate equitable and other provisional relief in any court of competent jurisdiction.
  16. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 90 days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
  17. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
  18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  19. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall 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.
  20. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.
  21. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan in each case located in the City of Grand Rapids, Michigan and County of Kent, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. In the event of any action or proceeding is undertaken to enforce the terms of any sales transaction or to protect Seller’s PACA Trust rights, Buyer agrees to pay all costs of such actions, including reasonable attorney’s fees.
  22. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  23. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  24. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
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