PURCHASE & SALE TERMS AND CONDITIONS
These Purchase & Sale Terms and Conditions (“Agreement”) will govern the purchase and sale of any products (“Products”) and/or services (“Services”) from United Natural Foods, Inc., or any of its affiliates (collectively; “UNFI”) and any entity (“Customer”) that purchases Products and/or Services from UNFI for its stores and/or warehouses that that it owns and/or operates during the Term (defined below). The Agreement, having been delivered (either physically, by electronic data interchange, or through a UNFI website), will also be deemed to be incorporated into a purchase order, invoice, statement, credit application, and any other document pertaining to the purchase and sale of the Products and Services.
UNFI may, without prior notice, amend the Agreement at any time and from time-to-time in its sole and absolute discretion. The amended Agreement will be published on UNFI’s website www.unfi.com/unfi-customer-terms.html and Customer’s continued purchasing from UNFI will operate as Customer’s agreement to be bound by them. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO CHECK FOR ANY CHANGE IN THE AGREEMENT PRIOR TO PURCHASING FROM UNFI.
The parties agree as follows:
1. PRODUCTS & SERVICES. UNFI will sell to Customer, in accordance with the price and fee schedules in effect at the time of Customer’s order, the Products that UNFI is authorized to sell/distribute should such Products be available at the UNFI distribution center that UNFI determines will service Customer. In cases of product shortages, UNFI reserves the right to allocate product at its discretion. UNFI may also provide to Customer field advisory, warehousing, buying, marketing, merchandising, shopping, accounting, design, engineering, bulletin services, and other services as UNFI may offer from time-to-time and such services will be provided according to UNFI’s then current fee and charge schedules. All Products, prices, fees, charges, freight, terms, and conditions are subject to change at any time without notice.
2. ORDERING & DELIVERY. Customer will comply with all of UNFI’s ordering and delivery processes and procedures and the Products will be delivered to Customer on a F.O.B. UNFI’s loading dock basis. Unless otherwise agreed, for direct store deliveries of Products, UNFI requires up to a $5,000 minimum order per Customer location, per delivery and for pick up by Customer at a UNFI distribution center, UNFI requires a $750 minimum order and UNFI will charge Customer a pick-up fee per pickup. UNFI reserves the right to adjust the foregoing minimum order amounts from time-to-time upon written notice to Customer. Once submitted, orders cannot be cancelled without UNFI’s written consent. Orders will be considered complete upon shipment of a reasonable quantity over or under the amount specified in the order when it is impracticable to produce the exact quantity ordered. Unless otherwise agreed, all deliveries are “drop and go”. If a driver is detained longer than a negotiated time, a delivery detention charge may apply. Customer may be required to sign the billing manifest upon delivery or pick-up. All deliveries require available, reusable pallets for “one-for-one” pallet exchange, otherwise UNFI will charge for the expense to replace the pallet. UNFI will not be charged or required to pay “lumper fees” or other fees associated with handling Product after delivery at Customer’s dock. There will be a freight charge per pallet for any less than full truckload orders of Products under the Agreement. No order below the then current UNFI minimum order amount will be processed by UNFI unless otherwise agreed and Customer hereby agrees to pay a surcharge. Each order of natural wellness Products will be subject to a delivery upcharge of 5% of the bottom of invoice price. Freight and fuel surcharges per delivery will be added to the bottom of the invoice/statement to Customer in accordance with UNFI’s standard fuel and freight surcharge policies then in effect. UNFI does not have any obligation to ship/sell Products or Services to Customer, including without limitation, in the event Customer commences any proceeding under any bankruptcy, reorganization or similar law or a similar proceeding is filed against Customer and Customer fails to provide adequate assurances to UNFI. To the extent UNFI provides Customer with any trade credit in connection with the purchase of Products hereunder, the Agreement are a contract to extend financial accommodations for the benefit of Customer pursuant to the U.S. Bankruptcy Code and any successor statute.
3. PAYMENT; SECURITY; ACCOUNTS; CREDITS & SUPPLIER INCENTIVES.
A. Payment. Unless otherwise agreed, payment for Products in the “Natural”, “Specialty”, and “Fresh” categories as defined by UNFI will be due an average of 7 days from the date of invoice during UNFI’s billing cycle (Monday – Sunday) and payment for Products in the category of “Conventional” as defined by UNFI will be due 3 days from the date of statement. If Customer is receiving services from a third-party vendor through UNFI, any amount due for those services may be added to Customer’s invoice/statement. Customer will pay the full amount due as shown on each statement/invoice without offset or deduction, by ACH or wire which will be initiated by UNFI. UNFI reserves the right to adjust payment terms, condition delivery of goods or services on Customer’s prepayment by wire transfer of funds, suspend shipment of orders, and/or terminate this Agreement immediately without notice as a result of a failure by Customer to pay amounts when due or if UNFI believes in good faith that Customer will fail to make payments when due. For all past due amounts Customer agrees to pay: (i) a late fee of 1.5%, (ii) interest, calculated at 21% per annum or the highest rate allowed by law, whichever is lower, compounded monthly, and (iii) and all costs, fees, and expenses of collection (including reasonable attorney’s fees and court costs). UNFI’s acceptance of any partial or late payment due hereunder will not establish a waiver of any right to the full amount owed or to receive full and prompt payments thereafter. The termination of this Agreement will not affect Customer’s obligation to pay all amounts owing to UNFI.
B. Security. Customer grants UNFI a purchase money security interest in all Products sold by UNFI to Customer until full payment is received. Customer will cooperate in the execution of any UCC filings related thereto.
C. Accounts. Customer will provide UNFI with financial information reasonably requested by UNFI. Customer agrees to pay a fee of $25.00 or the highest amount permitted by law per occurrence for any returned items (checks or ACH) that are dishonored for any reason. UNFI reserves the right to impose an inactivity fee of $25.00 per month against any credit balance presumed abandoned by Customer if there is no activity for 1 year.
D. Credits. UNFI’s standard policies for credit requests, claims and consumer returns for Products will apply. All merchandise claims relating to Products must be submitted to UNFI’s Claims Department within 48 hours of receipt of merchandise. A credit memo will be issued upon approval by UNFI and will be applied to the next invoice/statement.
E. Supplier Incentives. Customer is not entitled to any supplier/vendor incentives, allowances, and/or compensation/recovery (including for value added services provided to suppliers) received by UNFI which are not intended specifically for Customer. UNFI reserves the right to apply cash equalization if a supplier’s cash discount is less than 2% or to cover estimated incremental expenses for selecting units that are less than full case quantities as shipped by suppliers. Amounts received from suppliers/vendors does not reduce the cost to Customer.
4. TERM & TERMINATION. The term of this Agreement will commence on the date Customer first orders any Products and/or Services from UNFI and/or obtains a line of credit with UNFI, whichever is earlier, and will continue until terminated (the “Term”) by either party upon 7 days’ prior written notice. To the extent UNFI provides Customer with any trade credit in connection with this Agreement, this Agreement will be considered a contract to extend financial accommodations for the benefit of Customer pursuant to Section 365(c) of the U.S. Bankruptcy Code and any successor statute. Any default by Customer under this Agreement will be, at UNFI’s option, a default under any other agreement between UNFI and any default by Customer under any other agreement will be, at UNFI’s option, a default under this Agreement. Upon termination of this Agreement, Customer will purchase any Products in UNFI’s inventory that are (a) Products purchased or manufactured by UNFI exclusively for Customer, and/or where Customer purchases 70% or more of such Products from any UNFI distribution center that services Customer.
5. RIGHTS RESERVED BY UNFI. Customer acknowledges UNFI’s right to choose and select its customers and retailers and to enter into agreements with other parties at UNFI sole discretion, including but not limited to UNFI’s right to not service or supply any Customer location. Customer further acknowledges that UNFI will have no obligation to continue to sell or supply Products or Services of any kind to Customer during the Term and thereafter.
6. UNFI IP. Nothing herein will grant to Customer any ownership, interest, right, or title, in or to any UNFI-owned intellectual property, including without limitation, trade names, trademarks, copyrights, designs, logos, brands, formulas, trade dress, and trade secrets (“UNFI IP”); provided however; it may be agreed to by UNFI outside of the Agreement that Customer may identify and advertise itself as an independent retailer using any UNFI IP. In such case, UNFI grants to Customer a non-exclusive, revokable, non-sublicensable, non-assignable license to the agreed UNFI IP within the USA for the sole purpose of operating stores, subject to any other terms and conditions.
7. REPRESENTATIONS & WARRANTIES. The parties represent and warrant to the other party that it (A) is free of any other contractual obligations to enter into this Agreement to purchase the Products and (B) will comply with all applicable international, federal, state, and local laws, rules, regulations, and ordinances. EXCEPT AS SET FORTH HEREIN, UNFI DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES (WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE), INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATIONS & INDEMNITY. Customer’s business is highly competitive and UNFI has not given any guaranty of profitability. UNFI WILL NOT BE RESPONSIBLE, FOR: (A) FOR THE DEBTS, INVESTMENTS, LIABILITIES, OR OTHER OBLIGATIONS INCURRED BY CUSTOMER (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING ANY LOSS OF PROFITS, SALES OR GOODWILL; (C) DAMAGES IN EXCESS OF $250,000; AND/OR (D) MATTERS OR EVENTS BEYOND ITS REASONABLE CONTROL. UNFI’s rights and remedies will be deemed non-exclusive and will include without limitation all rights, remedies, and defenses available to it in any given instance at law or equity. Customer will defend, indemnify, and hold UNFI harmless against any and all claims, demands, actions, liabilities, damages, costs, losses, and expenses including, without limitation, reasonable attorneys’ fees incurred in connection with or otherwise arising from the performance or non-performance of Customer’s obligations hereunder and/or any of Customer acts and omissions. This section will survive termination or expiration of the Agreement.
9. CONFIDENTIALITY. Any and all aspects of UNFI’s business, including without limitation all non-public information directly or indirectly related to it, that Customer becomes exposed to during the course of the parties business relationship will be maintained as confidential, and will not be further disclosed by Customer, or used by Customer (whether directly or indirectly, in a competitive manner or otherwise) except for UNFI authorized purposes. This section will survive termination of this Agreement.
10. MISCELLANEOUS.
A. Relationship of the Parties. The relationship between Customer and UNFI pursuant to this Agreement is that of arm’s length independent buyer and independent seller and not that of partners, joint venturers, principal and agent, fiduciary and beneficiary, franchisor and franchisee, employer and employee, or of special trust and confidence. If Customer is comprised of more than one person and/or entity, the obligations of Customer under this Agreement will be joint and several.
B. Notice. All notices under this Agreement will be in writing and will be sent by (i) USPS certified mail (CMRRR), (ii) delivery on the next business day with a national overnight courier, or (iii) email if a physical notice is also sent by one of the other methods of delivery. Notices will be deemed given as of the date such notice is received at 15 Park Row West, Providence, RI 02903 (Attn: Legal) for UNFI and the mailing address set forth on Customer’s credit application or as otherwise provided by Customer. Addresses may be changed at any time by giving prior written notice as provided herein (email acceptable). Email notices to UNFI must be sent to legal.notices@unfi.com.
C. Force Majeure. UNFI is not liable for any loss, delay or failure to perform or for any damages suffered by Customer by reason of same to the extent such loss, delay or failure to perform is, directly or indirectly, caused by, or arises from, acts of God, fire, abnormal weather, flood, casualty, explosion, riot, war, terrorist activity, security breach, accidents, civil unrest, governmental restrictions or orders, interference or embargoes, national emergency, earthquake, robbery, hijack, disruption of the transportation system, transportation delays, fuel shortages, inability to obtain Products, Product shortages, strikes, picketing, labor disputes and difficulties, shortage of labor, shortage of power or supplies, epidemics or diseases, pandemic and/or any other cause(s) beyond UNFI’s reasonable control (“Force Majeure”). No event will constitute Force Majeure or otherwise excuse Customer’s obligation to make payments hereunder or under any other agreement between Customer and an UNFI Entity. All orders and shipments are subject to UNFI’s ability to obtain the necessary Products.
D. Assignment. This Agreement will be binding upon and inure to the benefit of Customer and UNFI and their respective heirs, successors, and assigns; provided that neither this Agreement, nor any right, title, interest, or obligation may be assigned by Customer without the prior written consent of UNFI. UNFI may assign this Agreement, or any portion thereof, to any entity without consent.
E. Beneficiaries. There will be no 3rd party beneficiaries to the Agreement other than UNFI’s affiliates, whom will have standing to enforce rights under the Agreement.
F. Amendment & Agreement. The Agreement may not be modified, supplemented, or superseded by any Customer document. The Agreement and any attached addenda, contain the entire agreement of Customer and UNFI with respect to the subject matter hereof and supersede all previous proposals, negotiations, representations, commitments, writings, agreements, and all other communications between UNFI and Customer relating to the subject matter hereof. Each party acknowledges that it has not been induced to enter into the Agreement by any representations or statements, oral or written, not expressly contained herein. The parties acknowledge that each has read and understood the Agreement and had the opportunity to consult with an independent attorney in connection herewith. The headings are for convenience only and are not intended to limit or define the scope or effect of any provision of the Agreement. If a subsequent written agreement for the purchase and sale of Products and/or Services (each, a “Customer Agreement”) is entered into or by and between Customer and UNFI, the terms and conditions of the Customer Agreement will govern and control during its term.
G. Waivers. No failure by any party to take any action or assert any right hereunder will be deemed to be a waiver of such right and will not prevent such party from enforcing such right in the future. The waiver by a party of any of its rights or a breach in a particular instance will not be construed as a waiver of such rights or breach or of the same or different rights or breach in subsequent instances. Failure of UNFI to object to terms and conditions contained in any acknowledgement, confirmation or other document provided by Customer will not be construed as an acceptance of any terms and conditions contained therein nor a waiver of the Agreement.
H. Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of the other provisions. If any provision of the Agreement is or becomes invalid, illegal, or unenforceable under the applicable laws or regulations, either such provision will be deemed amended to conform to applicable laws or regulations or, if it cannot be so amended, it will be stricken, and the remainder of the Agreement will remain in effect.
I. Dispute Resolution. Before initiating legal proceedings over any dispute/claim arising hereunder (“Dispute”), senior management from both parties will meet (virtually or in person) in good faith to resolve it within 30 days of a written request specifying the nature of the Dispute. If the parties do not meet, or fail to resolve the Dispute, they will promptly engage in good faith mediation, with the mediator to be selected jointly by the parties. If a party refuses to meet or select a mediator, the other party may bring a proceeding as set forth herein.
J. Law & Arbitration. This Agreement is deemed to have been delivered and accepted by the parties in the State of Delaware and is governed and interpreted in accordance with Delaware law, without regard to the conflicts of laws or principles thereof. If a Dispute is not resolved following mediation, a party may only submit the Dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and this section, and such proceeding shall be brought exclusively in the State of Delaware. An arbitrator’s decision may be enforced in a court of competent jurisdiction. The parties hereby irrevocably waive (A) any objections against and expressly agree to submit to the jurisdiction and venue of any such Delaware court for all purposes connected herewith; (B) any rights to seek punitive or exemplary damages in any legal proceeding and no arbitrator may award such damages.
K. Survival. Any obligations which either expressly or by their nature are to continue after the termination or expiration of the Agreement will survive and remain in full force and effect.