WHOLESALE FOOD EQUIPMENT’S TERMS AND CONDITIONS APPLICABLE TO ALL SALES AND QUOTES.
BY MAKING A PURCHASE OR ACCETING A QUOTE, CUSTOMER HEREBY ACCEPTS THESE TERMS AND CONDITIONS, TOGETHER WITH THESE TERMS AND CONDITIONS, AND ANY OTHER DOCUMENTS INCORPORATED HEREIN AND THEREIN BY REFERENCE CONSTITUTE THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND WHOLESALE FOOD EQUIPMENT.
1. In order to secure Customer's performance, Customer hereby grants Wholesale Food Equipment a Security interest ("Security Interest") in all appliances, equipment, fixtures, furnishings, furniture, machinery, tools, inventory, supplies, and all other goods and property sold by Wholesale Food Equipment to Customer, and all accessions, accessories, additions, parts and replacements (“Goods”). Customer authorizes Wholesale Food Equipment without need for Customer's signature, to file any financing statements, amendments, addendums, continuation statements and other applicable filings required to perfect or continue the perfection of the Security Interest. Upon request by Wholesale Food Equipment, Customer shall procure landlord and mortgagee waivers pertaining to the Goods.
2. Upon payment in full, including all taxes, as applicable, Wholesale Food Equipment shall assign to Customer any assignable interest Wholesale Food Equipment may have in any manufacturer warranty or guaranty, WHICH ARE AND SHALL BE CUSTOMER'S SOLE REMEDY APPLICABLE TO THE GOODS. FURTHER, WHOLESALE FOOD EQUIPMENT MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED HEREBY TO THE FULLEST EXTENT ALLOWED BY LAW. WHOLESALE FOOD EQUIPMENT SHALL NOT FOR ANY REASON BE LIABLE FOR ANY INDIRECT LOSSES, DAMAGES, FINES, PENALTIES, LOST PROFITS, SPECIAL DAMAGES, AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS FOR FOOD SPOILAGE OR BUSINESS INTERRUPTION. TO THE FULLEST EXTENT ALLOWED BY LAW, YOU HEREBY RELEASE AND INDEMNIFY WHOLESALE FOOD EQUIPMENT FROM ANY AND ALL SUCH DAMAGES, CLAIMS AND/OR LOSSES, REGARDLESS OF WHETHER THE SAME COULD HAVE BEEN FORESEEN.
3. TO THE FULLEST EXTENT ALLOWED BY LAW, IN ALL CASES, WHOLESALE FOOD EQUIPMENT’S DAMAGES FOR ANY AND ALL CLAIMS ARISING HEREUNDER, OR RELATING HERETO, SHALL NOT EXCEED THE PURCHASE PRICE FOR THE SUBJECT GOODS PAID FOR BY CUSTOMER TO WHOLESALE FOOD EQUIPMENT. CUSTOMER HEREBY AGREES THAT ANY SUCH CLAIM MUST BE ASSERTED WITHIN 30 DAYS OF THE DELIVERY OF THE SUBJECT GOODS, BARRING WHICH CUSTOMER HEREBY AGREES TO WAIVE THE RIGHT TO ASSERT ANY SUCH CLAIM, WHETHER FOUNDED IN CONTRACT LAW, TORT, OR ANY OTHER THEORY OF LIABILITY.
4. THE PARTIES EXPRESSLY HEREBY AGREE THAT THE UNIFORM COMMERCIAL CODE REGARDING THE SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT AND THE GOODS SOLD HEREUNDER; AND INSTEAD, THIS AGREEMENT SHALL GOVERN THE PARTIES OBLIGATIONS.
5. CUSTOMER ACKNOWLEDGES THAT IT HAS INDEPENDENT LEGAL COUNSEL AND HAS HAD THE OPPORTUNITY TO REVIEW THIS AGREEMENT WITH SAID COUNSEL.
6. Customer is responsible for any costs incurred as a result of any non-warranty repairs, alterations, or replacements of any of the Goods made after delivery of the goods and without the approval of the manufacturer or Wholesale Food Equipment.
7. Goods may only be returned by Customer to Wholesale Food Equipment upon Wholesale Food Equipment’s prior written consent and Customer is responsible for any loss of or damage to any of the Goods, which occurs during the return.
8. Customer bears the entire risk of loss of and damage to the Goods from the date of delivery to Customer.
9. Any of the following events shall constitute an event of default (“Default”): (a) Failure by Customer to pay when due any amount owing to Wholesale Food Equipment; (b) Failure by Customer to fully and timely perform its obligations; (c) Filing for relief under bankruptcy laws by Customer or a third party; and (d) The existence of any lien, security interest or encumbrance with respect to the Goods, other than one filed by Wholesale Food Equipment due to Customer’s failure to pay all sums as and when due..
10. If a Default shall have occurred, Wholesale Food Equipment shall have the right to exercise any one or more of the following remedies: (a) To declare any and all money owed by Customer to Wholesale Food Equipment to be immediately due and payable, without presentment, demand, or protest of any kind, all of which are hereby expressly waived by Customer; (b) To stop deliveries of Goods or items to Customer; and (c) To pursue any other rights and remedies permitted by law or in equity.
11. All rights and remedies of Wholesale Food Equipment are cumulative and may be exercised concurrently or separately. The exercise of any one right or remedy shall not be deemed to be an exclusive election of such right or remedy or to preclude the exercise of any other rights or remedies. No failure on the part of Wholesale Food Equipment to exercise, and no delay in exercising, any right of remedy hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise by Wholesale Food Equipment of any right or remedy hereunder preclude any other or future exercise thereof or the exercise of any other right or remedy.
12. Customer shall pay Wholesale Food Equipment all costs and expenses, including but not limited to attorney’s fees as prescribed below, incurred by Wholesale Food Equipment in enforcing this Agreement. If Customer fails to pay when due any amounts owing to Wholesale Food Equipment, Customer shall incur (i) a service charge of five percent (5%) of the delinquent amount, (ii) accrued interest from the due date until the date of payment at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is lower, and (iii) and attorney’s fees in the amount of twenty percent (20%) of the delinquent amount or five hundred dollars ($500.00) whichever greater. The exercise of these rights shall not preclude the exercise by Wholesale Food Equipment of any other rights or remedies.
13. Delivery estimates are based on manufacturer’s production and shipping schedules available to Wholesale Food Equipment at the time of this Agreement. Delivery dates are approximate and dependent, in part, upon Wholesale Food Equipment’s timely receipt of: (1) the Customer’s executed Proposal form, (2) the required deposit; (3) any other information reasonably necessary for placing of Customer’s order; and (4) Customer’s performance of all acts necessary prior to Customer’s ability to take possession of the Goods. Wholesale Food Equipment shall not be liable for loss due to delays or cancellations from causes beyond Wholesale Food Equipment’s control.
14. This Agreement, comprised of the Quote, these Terms and Conditions, and all other documents incorporated by the terms of the Quote and these Terms and Conditions, constitutes the entire understanding between Customer and Wholesale Food Equipment, and such understanding may not be amended, modified, or waived except in writing executed by Customer and Wholesale Food Equipment.
15. This Agreement is assignable by Wholesale Food Equipment. This Agreement is not assignable by Customer without the prior written consent of Wholesale Food Equipment. This Agreement shall be binding upon and inure to the benefit of Customer and Wholesale Food Equipment, and their respective successors and permitted assigns.
16. If any provision of this Agreement is deemed null and void, the remaining provisions shall remain in full force and effect.
17. This Agreement shall be construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule. Venue shall be in the state or federal court, as applicable, having jurisdiction over claims arising in Middletown, New York or such other venue as determined by Wholesale Food Equipment to best enforce its rights under this Agreement. To the extent legally possible, Customer expressly waives any objections to Wholesale Food Equipment’s choice of venue and waives any arguments based on the inconvenience of the selected venue. THE PARTIES HERETO HEREBY AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY.