PURCHASE & SALE TERMS AND CONDITIONS
These Purchase & Sale Terms and Conditions (“Agreement”) shall 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). If Agreement are not acceptable, Customer must immediately notify UNFI in a signed writing. The Agreement, having been delivered (either physically, by electronic data interchange, or through a UNFI website), shall 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.
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 shall be published on UNFI’s website https://www.unfi.com/unfi-customer-terms.html and Customer’s continued purchasing from UNFI shall 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 shall 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 shall comply with all of UNFI’s ordering and delivery processes and procedures and the Products shall 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 a $1,500 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 shall charge Customer a pick-up fee of up to $50 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 shall 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 shall charge for the expense to replace the pallet. UNFI shall not be charged or required to pay “lumper fees” or other fees associated with handling Product after delivery at Customer’s dock. There shall be a freight charge of $70 per pallet for any less than full truckload orders of Products under the Agreement. No order below the then current UNFI minimum order amount shall be processed by UNFI unless otherwise agreed and Customer hereby agrees to pay a surcharge. Each order of natural wellness Products shall be subject to a delivery upcharge of 5% of the bottom of invoice price. Freight and fuel surcharges per delivery shall 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. 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 stated by UNFI, Payment terms for Products falling into the “Natural”, “Specialty”, and “Fresh” categories as defined by UNFI and Products covered under the Perishable Agricultural Commodities Act (“PACA”) are net 7 days from date of invoice and for Products falling into the category of “Conventional” as defined by UNFI are net 3 days from the date of statement. Customer shall pay the full amount due as shown on each statement or invoice, as applicable, without offset or deduction, by electronic funds transfer (ACH) which shall 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 as a result of a failure by Customer to pay amounts when due or if Customer’s acts or omissions cause UNFI to believe in good faith that Customer shall fail to make payments in accordance with this Agreement. Customer agrees to pay a late payment fee of 1.5% on all outstanding amounts as of the date payment is due, plus interest calculated at 21% per annum, or the highest allowable interest rate by law, whichever is lower, of the total unpaid amount payable monthly, as well as all costs of collection, including attorneys’ fees and expenses. UNFI’s acceptance of any partial or late payment due hereunder will not establish a waiver of any rights of UNFI to the balance of any amount owed or to receive full and prompt payments thereafter. The termination of this Agreement shall not affect the obligation of Customer to pay all moneys owed to UNFI at the time of termination.
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 shall 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 shall apply. All merchandise claims relating to Products must be submitted to UNFI’s Claims Department within 5 days of receipt of merchandise. A credit memo shall be issued upon approval by UNFI and shall 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 the estimated incremental expense for selecting units that are less than full case quantities as shipped by suppliers. That amounts received from suppliers/vendors does not reduce the cost to Customer.
4. TERM & TERMINATION. The term of this Agreement shall commence on the date Customer first orders any Products and/or Services from UNFI and/or obtains a line of credit with UNFI and shall continue until terminated (the “Term”) by either party upon 7 days’ prior written notice, provided however, if Customer fails to pay its obligations to UNFI when due, UNFI may terminate this Agreement immediately without prior notice to Customer. To the extent UNFI provides Customer with any trade credit in connection with this Agreement, this Agreement shall 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 shall be, at UNFI’s option, a default under any other agreement between UNFI and any default by Customer under any other agreement shall be, at UNFI’s option, a default under this Agreement. Upon termination of this Agreement, Customer shall purchase any Products in UNFI’s inventory that are (a) Products purchased 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 serve or supply a customer’s store at any location. Customer further acknowledges that in the event of termination of this Agreement, UNFI will have no obligation to continue to sell or supply Products or Services of any kind to Customer.
6. UNFI IP. Nothing herein shall 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) shall comply with all applicable international, federal, state, and local laws, rules, regulations, and ordinances, including, PACA. 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 acknowledges that its business is highly competitive and a high risk and UNFI has not given and cannot give any guaranty of the profitability or success. UNFI SHALL NOT BE RESONSIBLE, 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 THE AGGREGATE AMOUNT PAID BY CUSTOMER DURING THE 120-DAYS PRIOR TO THE EVENT GIVING RISE TO THE APPLICABLE CAUSE OF ACTION; AND/OR (D) MATTERS OR EVENTS BEYOND ITS REASONABLE CONTROL. Customer shall 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. UNFI’s rights and remedies shall be deemed non-exclusive and shall include without limitation all rights, remedies, and defenses available to it in any given instance at law or equity. This section shall survive termination 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 shall be maintained as confidential, and shall 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 shall 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 shall be joint and several.
B. Notice. All notices under this Agreement shall be in writing and shall be sent by (i) United States certified mail, return receipt requested, or (ii) delivery on the next business day with a nationally recognized express courier, or (iii) email if a confirmation notice is also sent by one of the other methods of delivery. Notices shall be deemed given as of the date such notice is received at 15 Park Row West, Providence, RI 02903 (Attn: Legal Dept.) 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).
C. Force Majeure. UNFI shall not be liable for any delay or failure in the performance of this Agreement or for any damages suffered by Customer by reason of same, if such delay or failure is, directly or indirectly, caused by, or arises from, fires, abnormal weather, earthquake, floods, accidents, casualty, explosion, riot, terrorist activity, cyber breach, hijack, robbery, civil unrest, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials or supplies, transportation delays, epidemics or diseases, pandemics, or any other cause(s) beyond UNFI’s reasonable control. All orders and shipments are subject to UNFI’s ability to obtain the necessary Products, and are subject to government restrictions that may be in effect from time to time.
D. Assignment. This Agreement shall 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 or otherwise transferred by Customer without the prior written consent of UNFI.
E. Beneficiaries. There shall be no 3rd party beneficiaries to the Agreement other than UNFI’s affiliates, whom shall have standing to enforce rights under the Agreement.
F. Amendment & Agreement. The Agreement may not be modified, supplemented, or superseded by any Customer document, except with prior written approval from UNFI. 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 written Supply Agreement, Distribution Agreement, and/or Supply and Distribution Agreement (each, a “Customer Agreement”) is entered into by and between Customer and UNFI the terms and conditions of the Customer Agreement shall govern and control during its term.
G. Waivers. No failure by any party to take any action or assert any right hereunder shall be deemed to be a waiver of such right and shall 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 shall 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 shall be stricken, and the remainder of the Agreement shall remain in effect.
I. Dispute Resolution. Before initiating legal proceedings over any dispute/claim arising from this Agreement (“Dispute”), senior management from both Parties shall meet (virtually or in person) in good faith to resolve it within 30 calendar days of a written request specifying the nature of the Dispute. If the Parties do not meet, or fail to resolve the Dispute, they shall 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 suit or proceeding as set forth below.
J. Jurisdiction, Law & Waiver. This Agreement shall be deemed to have been delivered and accepted by the parties in the State of Delaware and is governed and interpreted in accordance with the laws of the State of Delaware, without regard to the conflicts of laws or principles thereof. If a Dispute is not resolved pursuant to a mutually agreed written settlement following mediation, the Parties may choose to either submit the Dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and this subsection, or any Party may bring a suit or proceeding exclusively in a state or federal court located in the State of Delaware. The parties hereby irrevocably waive (i) any objections against and expressly agree to submit to the jurisdiction and venue of any such Delaware court for all purposes connected herewith; (ii) any rights to seek punitive or exemplary damages in any legal proceeding and no arbitrator may award such damages; and (iii) ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. An arbitrator’s decision may be enforced in a court of competent jurisdiction.
K. Survival. Any obligations which either expressly or by their nature are to continue after the termination or expiration of the Agreement shall survive and remain in full force and effect.