These Terms and Conditions (“Terms and Conditions”) are part of each order (“Order”) that Dot Foods, Inc. or any of its affiliates (collectively, “Dot”), accepts and delivers to its customers (“Buyers”) with any written agreement between the parties that references these Terms and Conditions.
1. AGREEMENT. By placing an Order, Buyer agrees to be bound by these Terms and Conditions, provided, however, that if there is ever a conflict between a provision of the written agreement and a provision of these Terms and Conditions, the provision of the written agreement shall prevail. In the event there is no written agreement, or the written agreement is silent on the following terms and conditions between Dot and Buyer, then the sale is conditional upon Buyer’s acceptance to all following Terms and Conditions. Further, Buyer warrants its employee or agent placing the Order has the authority to bind Buyer (or its affiliate) to said Terms and Conditions.
2. PRODUCT GUARANTY. The Buyer shall have the right to inspect the goods before accepting them. Dot is not the manufacturer of any goods sold hereunder. Dot warrants to the Buyer that it has good title to goods sold by it; that such goods will conform to the description contained or referenced on the face of its invoice; that it has not damaged or materially changed the condition of such goods while in its possession, custody or control; that is has not adulterated, misbranded, or made goods sold by it unsafe within the meaning of the Federal Food Drug and Cosmetic Act, as amended from time to time; and that, to its knowledge, as of the date of the shipment, goods sold by Dot are not prohibited by such Act from being introduced into interstate commerce, provided, however, that Dot shall not have any liability for misbranding in case of labels designed by or furnished by the Buyer. Dot hereby assigns and transfers to its Buyer any and all express or implied warranties made by the manufacturer of such goods to Dot. Except as stated herein, Dot makes no warranty of fitness for a particular purpose, merchantability or any other type of warranty, express or implied. Dot’s liability to Buyer, regardless of whether such liability arises under common law negligence, strict liability, statutory law or contractual obligation, shall extend only to bodily injury or property damage primarily caused by acts or omissions of Dot or its agents or its employees, or principally caused by its breach of this or other written contract. Dot shall not be liable for any consequential damages under any circumstances whatsoever, whether based on lost good will, lost profits, work stoppage, impairment of other goods, or otherwise, and whether arising out of breach of any express or implied warranty, breach of contract, negligence, strict liability, statutory provision, or otherwise except only to the extent applicable law renders this exclusion of consequential damages unenforceable in personal injury cases.
3. PERISHABLE AGRICULTURE COMMODITIES ACT NOTICE. “The perishable agricultural commodities listed on this invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 u.s.c. 499e(c)). the seller of these commodities retains a trust claim over these commodities, all inventories of food or other products derived from these commodities, and any receivables or proceeds from the sale of these commodities until full payment is received.
4. PRICING: All pricing and promotions are subject to change without notice. In the rare event that a product is listed at an incorrect price due to a website error, Dot will resolve the discrepancy, at our discretion, on all Orders placed for the product listed at the incorrect price. This resolution may involve coming to an agreed upon price with the Buyers or a cancellation of the Order, resulting in a full refund.
5. PAYMENT TERMS. The specific payment terms are stated on the invoice face. Service charges will begin accruing 30 days after due date on the amount due thereunder at the highest permissible contract rate allowed by governing law, not to exceed 1 ½% per month. In addition, the Buyer will be obligated to pay all reasonable attorney fees and expenses incurred by Dot in connection with the collection of the invoice amount and service charges.
6. DEEMED AGREEMENT. Unless the Buyer gives Dot written notice of objections to any of the terms or conditions contained in this document within 10 days after delivery of the goods sold or carried hereunder, said party will be deemed to have agreed to all of the provisions contained herein.
7. SET OFF. Dot or its affiliates have the right to set-off any sums due to Buyer under the Agreement against any sums due from Buyer to Dot or its affiliates for damages, refunds or otherwise, whether or not those sums are due to Dot or its affiliate under that Agreement.
8. MERGER. Dot salespeople are not authorized to make verbal warranties or promises about the quality or condition of the goods sold hereunder. Any such statements are mere puffery and are superseded and merged into the foregoing paragraph 2.
9. SEVERABILITY. If any part of this Agreement is invalid or unenforceable, all other provisions of the Agreement shall remain in full force and effect.
10. GOVERNING LAW. This transaction shall be governed by the case and statutory laws of the State of Illinois, where Dot’s principal place of business is located.
11. RELATIONSHIP OF PARTIES. The relationship between Dot and Buyer is and will be that of seller and buyer and not a joint venture, partnership, principal-agent, broker, sales representative or franchise relationship, unless expressly provided in another agreement between the parties. The parties expressly acknowledge that any broker engaged as part of the business relationship between Dot and Buyer is and shall always be an agent of either Party and shall have no responsibility to, or control over, such third-party broker.
12. REMEDIES; NO IMPLIED WAIVER. The remedies in the Agreement shall be cumulative and in addition to any other remedies allowed to Dot under applicable law. The failure of either party at any time to require performance by the other party of any provision of the Agreement shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of the Agreement constitute a waiver of any succeeding breach of the same or any other provision.
13. LIMITATION OF LIABILITY; TIME TO COMMENCE ACTION. Dot shall not be liable for any incidental, consequential, indirect or any other special damages of buyer, including but not limited to lost profits or buyer’s attorney fees. Any action related to discrepancies in amounts paid or deducted must be brought within 180 days of the date of such payment or deduction.
14. ASSIGNMENT. Buyer shall not assign its rights or delegate, subcontract or assign its duties under the Agreement without Dot’s prior written consent, which may be withheld for any reason. Dot’s consent to Buyer’s delegation, subcontracting or assignment of any obligation of Buyer under the Agreement shall not relieve Buyer of responsibility or liability for performance of the obligation.
15. SUCCESSORS. The terms of the Agreement shall inure to the benefit of and be binding on the successors and assigns of the parties.
16. CONSTRUCTION. The section headings contained in these Terms and Conditions are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms and Conditions. Unless the context otherwise requires, as used in these Terms and Conditions, all terms used in the singular shall be deemed to refer to the plural as well, and vice versa. Whenever the words “include,” “includes” or “including” are used in these Terms and Conditions, they shall be deemed to be followed by the words “without limitation.”