Terms & Conditions
SOUTHWEST FOODSERVICE EXCELLENCE, LLC
Standard Terms and Conditions
for the Purchase of Products and/or Services
NOTICE: The purchase of any Products or Services by SFE is expressly limited to and governed by these Terms and Conditions. These Terms and Conditions are incorporated into and made a material part of any purchase order issued by Seller. Any acceptance is expressly limited to acceptance of these Terms and Conditions. No Seller terms or conditions shall modify these Terms and Conditions, nor shall any action operate as a modification or waiver of these Terms and Conditions. Seller accepts and assents to these Terms and Conditions. Seller acknowledges that these Terms and Conditions apply to all purchases by SFE.
1. Definitions
“SFE” means Southwest Foodservice Excellence, LLC and/or any of its affiliates.
“Contract” means any purchase order, terms and conditions, or any other document issued by Seller. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.
“Products” means the equipment, parts, materials, supplies, and other goods SFE has requested and Seller has agreed to supply to SFE under the Contract.
“Seller” means the entity providing Products to or performing Services for SFE under the Contract.
“Services” means the services SFE has requested and Seller has agreed to perform for SFE under the Contract.
“Terms and Conditions” means these General Terms and Conditions for the Purchase of Products and/or Services.
2. Prices
All pricing is final. SFE does not acknowledge any written confirmation with pricing changes until mutually agreed upon between the parties. SFE will not be obligated to pay for any invoice that does not match the price set forth in the Contract. Seller warrants that the prices and terms on which it supplies Products and Services to SFE are no less favorable than those offered to other customers and agrees to immediately reduce the price if it charges any customer a lower price.
3. Purchase Order Changes
(a) SFE reserves the right to modify a purchase order with respect to quantities, delivery schedules and/or specifications as desired by SFE by issuing a change order to Seller. Seller shall not make any changes to purchase orders or affecting the Products or Services without the prior written consent of SFE, which may be withheld in its sole discretion; (b) If Seller’s costs are reduced because of changes, Seller shall reduce the purchase order price to reflect all such quantifiable cost savings; (c) If Seller’s costs are increased because of changes, SFE will consider Seller’s request for a reasonable adjustment to the pricing, provided, however, that if Seller does not notify SFE of a cost impact within ten (10) days of the issuance of the revision, then Seller shall be deemed to waive any claim for a price increase due to the revision; and provided further, that if Seller does provide notice of a cost impact and the parties cannot agree upon a reasonable price adjustment within ten (10) days of such notice, the revision will not become effective, Seller shall not be entitled to any additional compensation or price changes, and SFE may terminate the Contract without liability. Written or verbal acceptance of a revision and/or the provision of Products or Services to SFE after receipt of a revision constitutes Seller’s assent to such revision.
4. Payment Terms
Seller shall invoice SFE on completed delivery of the Goods or Services. Unless otherwise agreed to in writing, SFE’s payment terms are forty-five (45) days following the date SFE receives an accurate and complete invoice.
5. Delivery Charges; Taxes
All delivery and handling charges are included in the price. Seller shall pack and deliver Products in accordance with sound commercial practices and Seller’s specifications. Unless otherwise noted on the purchase order, all purchases are for resale and no sales or use tax shall be charged. Seller is responsible for obtaining from SFE any required certification. Any sales or use tax or any other tax charged by Seller shall be set forth on a separate line item on the invoice.
6. Delivery; Title; Risk of Loss
Time is of the essence with respect to the Products and/or Services. SFE may terminate any Contract where delivery or performance is late or incomplete. Title to, and risk of loss for all Products sold to the SFE shall pass to the SFE only after unloading Products at the delivery location selected by SFE.
7. Delay/Force Majeure
SFE will not be liable or held responsible for any delays or losses that arise directly or indirectly from Acts of God, severe weather conditions, labor disputes, governmental actions, war, riots, or other circumstances or causes beyond the reasonable control of SFE. If Seller suffers a delay due to a force majeure event, SFE may terminate any order where such delay exceeds or is reasonably likely to exceed fourteen (14) days.
8. Returned or Rejected Products
SFE shall inspect all Products and Services within a reasonable time and shall be deemed to accept such Products or Services unless it gives Seller written notice of any defect or non-conformity within a reasonable time after inspection. Failure to give notice of any defect or non-conformity shall not affect any warranty or operate as acceptance of any Product or Service with a latent defect.
9. Warranty/Limitation of Liability
(a) In addition to all warranties provided under the Uniform Commercial Code and/or other applicable laws, Seller warrants that all Products and Services furnished shall conform to all applicable specifications, be new, merchantable and of good workmanship and quality, free of all defects, liens and encumbrances and fit for the ordinary purposes for which the Products or Services are used. Seller also warrants that the Products and Services shall comply with all applicable laws, codes, regulations and standards, shall not infringe the intellectual property rights of any third party and with respect to Services, will be conducted with due skill and care; (b) In addition to all rights and remedies available under the Uniform Commercial Code and/or other applicable laws, if Seller breaches any warranty, SFE may, at its election and in addition to any rights or remedies it may have: (i) return such items to Seller at Seller’s risk and expense; (ii) require Seller, at its expense to promptly replace or correct such items; (iii) effect cover by purchase or manufacture of similar items or repair such items at Seller’s expense; and/or (iv) accept or retain non-conforming items and equitably reduce their price. Additionally, Seller shall reimburse SFE for any and all direct and indirect costs, expenses and penalties arising out of or related to Seller’s breach. Such remedies are not exclusive, and SFE hereby reserves all of its rights and remedies under applicable law.
10. Indemnification; Insurance
(a) Seller shall defend, indemnify and hold SFE, its shareholders, officers, directors, employees, agents and representatives harmless from and against any claims, demands, causes of action, judgements, proceedings, awards, damages, losses, fines, penalties, costs, expenses and liabilities caused by, arising out of or relating to the Products, Services, or any act or omission of Seller, its shareholders, officers, directors, employees, agents or representatives, including, without limitation, losses arising from or related to personal injury, death, property damage, economic loss, or intellectual property infringement; (b) SFE shall have no duty to indemnify Seller for any reason not expressly undertaken in these Terms and Conditions, and in no event will SFE indemnify Seller for Seller’s acts, omissions, or negligence; (c) Seller shall maintain commercial general liability insurance, including products liability and completed operations coverage, in amounts not less than $1 million per occurrence and $3 million aggregate. Seller shall name SFE as an additional insured under such policy, waive subrogation against SFE, and provide SFE with a certificate of insurance evidencing the same upon request. These insurance requirements do not in any way limit Seller’s indemnification obligations.
11. General Terms
Any provision contained herein determined to be unenforceable, illegal or invalid shall be automatically voided and shall not affect the remaining provisions herein. Seller shall not assign, delegate, or subcontract its performance without the prior written consent of SFE, which SFE may withhold in its sole discretion. SFE hereby reserves all additional rights and remedies provided by law or equity. These Terms and Conditions will remain in force after any termination or expiration of the Contract. The relationship between SFE and Seller is solely that of independent contractors, and nothing shall be construed to create an employment, joint venture, partnership, or agency relationship between SFE and Seller. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address that may be designated by the receiving party in writing.
12. Cancellation
(a) SFE may immediately cancel any purchase order, without liability in the event of any of the following: (i) insolvency of the Seller; (ii) filing of a voluntary petition in bankruptcy by Seller; (iii) filing of any involuntary petition in bankruptcy against the Seller; (iv) appointment of a receiver or trustee for Seller; or (v) Seller making an assignment for the benefit of creditors; (b) SFE reserves the right to cancel all or any part of the purchase order, without liability to Seller, if Seller: (i) repudiates or breaches any of the terms of the purchase order or these Terms and Conditions; or (ii) fails to perform Services or deliver Products as specified by SFE; (c) SFE may also terminate all or any part of the purchase order for its own convenience, in which case Seller shall be entitled to, but only to, an equitable amount not in excess of its verified direct costs reasonably and necessarily expended as appropriate (less salvage value and any other amounts recoverable by Seller). The payment required by the foregoing sentence shall constitute SFE’s sole and exclusive liability and obligation with respect to cancellation of any order.
13. Compliance with Law
Seller shall comply, and ensure that its permitted subcontractors comply, with all applicable statutes, regulations, rules, and ordinances governing the manufacture, sale, supply, or transfer of Products and Services, including but not limited to all National School Lunch Program guidelines and Buy American Provision.
14. Choice of Law
Any dispute between Seller and SFE shall be governed by and construed with the internal laws of the State of Arizona without regard to its conflicts of laws provisions that may cause the law of another jurisdiction to govern. Any lawsuit or other action relating to the Contract or any Products or Services delivered by Seller to SFE shall be commenced in the state or federal courts situated in Maricopa County, Arizona and the parties irrevocably submit to the exclusive jurisdiction of, and consent to venue in, such courts. The SFE and Seller agree to waive any right to a jury trial of any and all issues raised in litigation.
These Terms and Conditions are accepted and agreed to as of the Effective Date of the Contract by and between SFE and Seller.