- Terms of Sale – Sales made by E. Frank Hopkins, Co., Inc. (“Hopkins”) on Customer’s account with Hopkins are subject to these Terms and Conditions (“Terms”) which shall take precedence over any inconsistent or additional terms in Customer’s purchase order or other purchase documents. Notice is hereby given pursuant to Section 2-207 of the Pa. Uniform Commercial Code of Hopkins’ objection to any terms and conditions in addition to or different from these Terms which may be contained in any writing issued by Customer. These Terms are the final, complete and exclusive statement of all the terms and conditions of Customer’s account with Hopkins and the sale of goods by Hopkins to Customer.
- Service Charges and Attorneys Fees. Customer agrees to pay to Hopkins service charges in the amount of two (2%) percent per month on any past due account balances. In the event Hopkins places the account for collection, Customer agrees to pay all of Hopkins’ costs of collection and collection fees, including, but not limited to, attorneys’ fees in the amount of twenty-five (25%) percent of the outstanding indebtedness and court costs.
- Shipping/Title and Risk of Loss. Shipment dates are approximate and are subject to the availability of goods, carrier schedules and other related factors. Unless otherwise agreed by Hopkins and Customer, all shipments are F.O.B. destination. Title to goods passes to Customer, and Hopkins’ responsibility for safe delivery ceases, when goods are accepted by Customer. HOPKINS SHALL NOT BE RESPONSIBLE FOR ANY DIRECT, INDIRECT OR CONSEQUENTIAL LOSS FROM SHIPMENT, TRANSPORTATION OR ANY OTHER DELAY IN DELIVERY OF GOODS.
- Acceptance. Customer must report claims for defects, shortages or other discrepancies in writing immediately upon discovery, but in no event later than two (2) days after delivery, or the goods which are sold by Hopkins to Customer shall be deemed irrevocably accepted and such claims shall be deemed waived. Hopkins’ liability shall be limited to delivery of undelivered goods, replacing the specific defective/non-conforming goods the goods within a reasonable time or issuing a credit for the specific non-delivered/defective/non-conforming goods using the pro rata price for such specific goods quoted for such order. If the Company delivers to Customer a quantity of goods of up to 10% more or less than the quantity accepted by the Company, Customer shall not be entitled to object to or reject the goods or any of them by reason of the surplus or shortfall and shall pay for such goods or receive a credit, as appropriate, at the pro rata price quoted for such order.
- Quality. Hopkins warrants to the Customer that any goods supplied by the Company shall comply with all relevant US food safety standards, hygiene, labeling and storage requirements pursuant to any applicable US legislation from time to time in force. Hopkins further warrants that (subject to the other provisions of these conditions), as of delivery, the goods shall be of satisfactory quality and fit for human consumption. Hopkins shall not be liable for a breach of any of the warranties above unless: 1) Customer gives written notice of the defect in the goods to the Hopkins within two (2) days of the time when the Customer discovers or ought to have discovered the defect in the goods; and, 2) Hopkins was given a reasonable opportunity after receiving the notice to examine the goods. HOPKINS SHALL NOT BE LIABLE FOR A BREACH OF THE WARRANTIES IN THIS SECTION IF THE DEFECT IN THE GOODS ARISES BECAUSE CUSTOMER HAS FAILED TO FOLLOW HOPKINS’ ORAL OR WRITTEN INSTRUCTIONS AS TO OR IS NEGLIGENT IN THE STORAGE, PACKAGING AND GOOD TRADE PRACTICES. If Hopkins is satisfied that the goods do not conform with the warranty of quality, above, Hopkins shall, at its option, replace such goods or refund the price of such goods at the pro-rata price for the specific non-conforming goods for such order and Hopkins shall have no further liability for a breach of any express or implied warranties.
- Held Orders. If for any reason Customer fails to accept delivery of any of the goods when they are ready for delivery, or Hopkins is unable to deliver the goods on time because Customer has not provided appropriate instructions, documents, licenses or authorizations: 1) risk of the goods shall pass to Customer (including for loss or damage caused by Hopkins’ negligence); 2) the goods shall be deemed to have been delivered; and, 3) Hopkins’ may store the goods until delivery, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- Pricing. Hopkins will ship at prices quoted in writing. Unless otherwise noted, prices are exclusive of sales, use, excise or similar taxes.
- Security Interest. Hopkins retains a purchase money security interest under the Pa. Uniform Commercial Code in the goods sold until payment in full has been made for all amounts outstanding. Hopkins shall have the right to perfect its security interest by filing financing statements naming Customer as debtor and Hopkins as secured party.
- No Right of Set Off. Customer shall have no right to set off amounts due with respect to one transaction for claims under any other transaction with Hopkins.
- Cancellation. Purchase orders may not be cancelled for any reason without the express written consent of Hopkins.
- Limitation of Damages. IN NO EVENT WILL HOPKINS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR OTHER ECONOMIC LOSS IN CONNECTION WITH OR ARISING OUT OF CUSTOMER’S PURCHASE, NON-DELIVERY OR LATE DELIVERY, USE OR SALE OF GOODS SOLD BY HOPKINS TO CUSTOMER. CUSTOMER’S EXCLUSIVE REMEDY SHALL BE DELIVERY OF UNDELIVERED GOODS, REPLACEMENT OF SPECIFIC DEFECTIVE/NON-CONFORMING GOODS OR A REFUND OF THE PRO RATA PRICE, AS PER THE ORDER’S INVOICE, FOR SUCH PARTICULAR UNDELIVERED, DEFECTIVE/NON-CONFORMING GOODS.
- Indemnity. Customer agrees to indemnify and hold harmless Hopkins: (1) from and against any and all liability for any and all claims for injury, loss, accident or damage to person or property, including death; and (2) from any and all claims, losses, expenses, damages or other costs which Hopkins might incur, as a result of Customer’s negligent or improper storage, handling, preparation or serving of the goods purchased by Customer from Hopkins. Customer further agrees that it will defend Hopkins, at Customer’s sole expense, against any and all lawsuits, actions, claims, demands or the like which may be filed or made against Hopkins arising out of Customers storage, handling, preparation or serving of any goods sold by Hopkins to Customer, and Customer shall reimburse Hopkins for any legal fees or costs incurred by Hopkins to defend such actions.
- Force Majeure. Hopkins shall not be liable for failure to perform or delay in performance due to fire, flood, strike or other labor difficulty, act of God, act of any governmental authority, act of Customer, embargo, delays in transportation, or due to any other cause beyond Hopkins’ reasonable control. In the event of delay in performance due to any such cause, the date of delivery or time for completion will be extended by a period of time equal to the time lost by such delay.
- Default. The occurrence of any of the following shall, at the option of Hopkins and without notice or demand on Customer, constitute an event of default by Customer: (a) failure of Customer to make any payment to Hopkins when due; (b) failure of Customer to observe or perform any of Customer’s other obligations under these Terms; (c) if any statement of Customer contained in Hopkins’ Application for Credit and Credit Agreement (“Agreement”) shall be false; (d) death of Customer or any guarantor; or (e) if Customer shall become insolvent, make an assignment for the benefit of creditors institute or have instituted against Customer bankruptcy, insolvency, reorganization, arrangement, debt adjustment or liquidation proceedings. If Customer fails to comply with these Terms, or Customer’s credit becomes unsatisfactory in Hopkins’ sole discretion, Hopkins reserves the right to terminate Customer’s account and/or terminate or restrict any order.
- Rights Cumulative. Hopkins retains all rights and remedies provided under law and equity. Hopkins’ rights and remedies are cumulative and not alternative. Waiver of any default shall not constitute waiver of any subsequent default. Any forbearance by Hopkins to enforce any provision of these Terms shall not constitute a waiver or relinquishment by Hopkins of any of its rights or remedies hereunder.
- Assignment. Customer’s account with Hopkins and any purchase orders issued by Customer to Hopkins may not be assigned by Customer without the written consent of Hopkins.
- Binding. The terms of the Agreement and these Terms shall be binding upon the Customer’s heirs, executors, administrators, personal representatives, successors or assigns.
- Invalid Provisions. If any provision of the Agreement and these Terms is found by any court of competent jurisdiction to be prohibited or unenforceable, such provision shall be ineffective only to the extent of such invalidity or unenforceability, and such prohibition or unenforceability shall not invalidate any other provision.
- Choice of Law/Forum. The Agreement and these Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Any and all disputes, differences, disagreements, controversies or claims arising out of or relating to or in respect to this Agreement, or any breach thereof, or the scope or arbitrability of this arbitration provision shall be settled by arbitration in Philadelphia, Pennsylvania. At the sole discretion of the party filing the action for arbitration, the arbitration shall be administered by: (i) ADR Options Incorporated pursuant to its Rule of Procedure for Arbitration; (ii) JAMS pursuant to its ADR Clauses, Rules and Procedures; or, (iii) the American Arbitration Association in accordance with its commercial rules then existing, Judgment on the award rendered may be entered in any Court having jurisdiction thereof. The award of the Arbitrator shall be final and conclusively binding upon the parties hereto, and their successors and assigns.
- Notice. Any notice required under the Agreement and these Terms shall be in writing and sent by certified mail return receipt requested or a nationally recognized overnight courier service to the address set forth in Application/Credit Agreement.
- Miscellaneous. The Agreement and these Terms constitute the entire agreement between Hopkins and Customer with regard to the subject matter hereof and there are no prior agreements, understandings, restrictions, warranties or representations between Hopkins and Customer other than as set forth herein. The parties further agree that there shall be no amendment, modification, termination or other waiver of the Agreement and these Terms unless in writing signed by both Hopkins and Customer.
