Application. These Terms and Conditions apply to the sale by E&C’s Snacks LLC (“E&C’s”), to a customer (“Customer”), of cookies, snacks, and other products (“Products”). These Terms and Conditions are the entire contract for the sale of Products by E&C’s to Customers, and any proposed changes, additions, or rejection of any of these Terms and Conditions by a Customer are hereby expressly objected to and rejected by E&C’s, unless agreed to in writing and signed by E&C’s. By placing an order with E&C’s, or accepting delivery of Products, or paying part or all of the purchase price for Products, a Customer accepts and agrees to be bound by all of these Terms and Conditions. These Terms and Conditions are binding on E&C’s and a Customer and on their successors and permitted assigns. These Terms and Conditions may be modified at any time by E&C’s in its sole discretion.
Ordering. A Customer should place orders using E&C’s standard purchase order form, or another form approved by E&C’s. Purchase orders should include name of product, quantity, estimated delivery date, and other relevant terms. E&C’s standard prices shall apply to all orders, unless a different price is agreed to by E&C’s in writing. Prices on future orders are subject to change at any time. No order will be effective until confirmed or approved by E&C’s. E&C’s may reject any order at any time in its sole discretion. No order may be canceled, rescheduled, or modified without E&C’s prior written authorization. Orders are not assignable by a Customer.
Shipment and Delivery. Shipment or delivery dates contained in a price quotation or approved purchase order are only estimates, and the time of delivery is subject to change without notice. E&C’s will ship Products F.O.B., E&C’s location in Minnetonka, Minnesota, or F.O.B. from its supplier’s location. Shipment will be by a common carrier of E&C’s choice, unless a Customer requests and E&C’s agree on a different means of shipment. Title to the Products will pass and a Customer will assume all risk of loss upon E&C’s delivery of the Products to the carrier. A Customer is responsible for all costs of shipment and insurance during shipment, and for resolving all claims for loss or damage during shipment with the carrier or the insurer. A Customer may not return unsold Products without E&C’s prior written consent.
Payment Terms. E&C’s will ordinarily invoice Customer for an order on the date of shipment. Customer will be responsible for all applicable sales taxes, duties, levies, tariffs, customs, and other similar charges, whether or not included in E&C’s invoices. Unless credit has been extended by E&C’s in its discretion, payment in full of invoices is due within 30 days from date of shipment. All payments must be in U.S. dollars. If Customer fails to make timely payment of any amount it owes to E&C’s, then E&C’s may charge interest on the past due amount at the greater of 12% per annum or the maximum interest rate allowed under applicable law, and in addition E&C’s may defer further shipments until such payment is made or may, at its option, cancel all or any part of any unshipped portion of an order, all without any liability of any type to Customer or any third parties. Customer also agrees to pay the reasonable attorneys’ fees and costs incurred by E&C’s to collect any payments owed by Customer to E&C’s.
Limited Warranty. E&C’s manufactures in accordance to manufacturing specifications, FDA and GMP guidelines. E&C’S MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED.
Restrictions on Resale. Customer may not resell the Products, except where prior authorization was granted and as mutually agreed upon by the customer and E&C’s. Customer may not alter the packaging of the Products or any E&C’s sales material and other intellectual assets.
Export and Other Restrictions. Certain products may be subject to restrictions or regulation on export or resale. A Customer agrees to comply with all such applicable restrictions and regulations.
Intellectual Property Rights. A Customer acknowledges that the copyrights, trademarks, trade secrets, and other intellectual property associated with the Products, including but not limited to the Heavenly Hunks ® trademark (the “Intellectual Property”), are the sole and exclusive property of E&C’s. A Customer may not use any of the Intellectual Property except as part of its resale of Products to its customers in the ordinary course of its business, and in a manner that does not harm or diminish the value of the Intellectual Property. A Customer may not assign or transfer any of its rights to use the Intellectual Property.
Indemnity. A Customer agrees to indemnify E&C’s, and E&C’s members, managers, officers, employees, and agents against any loss, cost, damage, or expense, including reasonable attorneys’ fees, resulting from any negligence, intentional misconduct, or breach of these Terms and Conditions by the Customer or its employees or representatives in connection with the Customer’s purchase, resale, and/or use of the Products.
Force Majeure. E&C’s will not be liable for any delay in or impairment of performance resulting in whole or in part from catastrophic events, labor disruptions, shortages, inability to procure product, supplies or raw materials, severe weather, war, acts of terrorism, civil unrest, epidemics, governmental lockdowns, acts of God, or any other circumstances or other cause beyond the control of E&C’s.
Choice of Law, Venue and Waiver. All transactions between E&C’s and a Customer will be interpreted in accordance with the laws of the State of Minnesota. The Customer and E&C’s agree that Minnesota District Court in Hennepin County, Minnesota, will have exclusive jurisdiction and be the exclusive venue for any litigation between the parties. The Customer and E&C’s waive the right to trial by jury in any litigation. The reasonable fees and expenses of the prevailing party in any litigation will be paid by the non-prevailing party.