EPICUREAN’S TERMS AND CONDITIONS OF SALE
Last updated on November 17, 2011
We have recently become aware of class action suits and threats of suits against internet retailers alleging that certain Terms and Conditions violate the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). While we review the issues raised by this litigation, the following provisions shall not apply to any consumer residing in or visiting our web site from New Jersey:
Paragraph 11: The limitation of liability for damages arising from negligence or other tort claims does not apply to claims of personal injury or wrongful death;
Paragraph 16: The indemnification clause requiring Buyer to defend, indemnify and hold Epicurean harmless from claims arising from Buyer’s acts or omissions shall not apply to New Jersey customers, but Epicurean does not waive any other claim or defense that may arise out of the Buyer’s acts or omissions.”
1. APPLICABILITY These Terms and Conditions of Sale (“Terms”) shall govern any sale by EPICUREAN, its successors or assigns (“Epicurean”) to the buyer identified in Epicurean’s Pro Forma Invoice, Order Confirmation, Invoice, Sales Agreement or web cart linked at dev-epicureanusa.sites.thewpvalet.com (“Buyer”), also referred to as “Agreement”. All provisions on Buyer’s purchase order and all other documents submitted by Buyer are expressly rejected. Epicurean shall not be deemed to have waived these Terms if it fails to object to provisions submitted by Buyer. Buyer’s order for, its acceptance or use of Epicurean’s products, more specifically identified in the Agreement (referred to as “Product” or “Products”) constitutes its acceptance of these Terms. Any modification or addition to these Terms must be in writing and signed by an authorized representative of Epicurean. By placing an order for Products, Buyer accepts and is bound to these Terms.
2. PRICE AND PAYMENT Prices for each Product are stated in U.S. Dollars. Epicurean reserves the right to correct any inaccurate invoices or errors in previously communicated prices. Unless specified otherwise in writing by Epicurean, Buyer shall make payment in full, including payment of all costs, taxes and charges set forth in Section 13, prior to delivery pursuant to Section 3 or Section 4, as applicable. Unless Epicurean has agreed to credit terms in writing, payment shall be made in advance and by cash, cashier’s check, credit card, wire transfer or irrevocable letter of credit in a form acceptable to Epicurean. All payments due from Buyer shall be made without any set-off or deductions for any reason whatsoever.
3. DELIVERY AND RISK OF LOSS Unless specified otherwise in writing by Epicurean in its Pro Forma Invoice or Order Confirmation, delivery terms are FCA (Free Carrier) Incoterms® 2010, Epicurean’s premises at 257 B Main Street, Superior, Wisconsin 54880, USA. Buyer shall schedule and pay for carriage. Risk of loss of or damage to the Products shall pass to Buyer upon delivery. If shipment arrangements are made pursuant to Section 4 risk of loss of or damage to the Products shall pass to Buyer upon delivery to the carrier. If Epicurean assists in the process of loading the Products on the departing vehicle at Epicurean’s facility, Buyer shall defend, indemnify and hold Epicurean harmless from all losses, damages, claims, actions, liabilities, costs, expenses (including reasonable attorneys’ fees), judgment and adjudication whatsoever, whether threatened, pending or completed, whether groundless or otherwise, wherever brought, relating thereto. Epicurean shall notify Buyer when the Products are ready for delivery. If the Products are not collected by or on behalf of Buyer within fourteen (14) calendar days of the date of such notification, Buyer shall be liable for storage charges thereafter at such rate as shall be determined by Epicurean and for all costs and expenses, including reasonable attorneys’ fees, incurred by Epicurean as a consequence of the failure to take delivery.
4. EPICUREAN’S SHIPMENT ARRANGEMENTS If Epicurean agrees in writing to arrange for shipment of the Products at Buyer’s risk and expense, Buyer shall accept deliveries at Epicurean’s address and shall be liable for any additional costs suffered by Epicurean in the event of wrongful refusal or delay in accepting delivery, in failing to provide premises, services or information for Epicurean to effect safe delivery, or in the event of future deliveries being withheld through Buyer’s non-payment. If Epicurean has the Products delivered to Buyer’s premises, Buyer shall unload the Products. Any time or date specified for delivery is given in good faith as an estimate only and Epicurean shall not be liable for any direct or indirect loss, damage or expense howsoever arising from any delay in delivery. Epicurean may deliver by installments and may treat each delivery as a separate contract.
5. DELIVERY AND TITLE Title to the Products shall pass to Buyer at Epicurean’s premises, immediately upon delivery to the carrier, subject to Epicurean’s security interest in the Products as described below. Until full title to the Products has passed to Buyer, Buyer shall not: (a) pledge or encumber the Products or documents thereon or allow any lien to arise thereon; or (b) deal with, sell or dispose of the Products or any interest therein.
6. DEFAULT The occurrence of any one or more of the following events shall constitute an “Event of Default” by Buyer: a) Buyer is delinquent in its payment obligation to Epicurean; b) Buyer fails to perform or comply with any covenant or obligation set forth in the Agreement or these Terms, or any other agreement between Buyer and Epicurean now in force or hereafter entered into; c) a resolution is passed or a court order made resolving or ordering Buyer to be placed into liquidation or ordering that an administrator be appointed over all or any of its assets; d) Buyer becomes insolvent and/or makes an assignment for the benefit of creditors. “Insolvency” shall include, but shall not be limited to, the inability of Buyer to pay its debts as they become due, or the circumstance where the amount of the liabilities exceeds the book value of the assets; e) a receiver is appointed over all or any of the assets of Buyer; or f) Buyer has a petition in bankruptcy entered against or by it. Upon the occurrence of any Event of Default as set forth herein, Epicurean, at its option, may: (i) declare Buyer’s performance in breach and cancel and commence proceedings for all amounts due hereunder; (ii) repossess Products for which payment has not been made and enter Buyer’s premises to remove the Products; (iii) withhold performance, including, but not limited to, future shipments until all delinquent amounts and late interest, if any, are paid; (iv) charge interest on delinquent amounts at the maximum rate permitted by law; (v) charge storage or inventory carrying fees on Products; (vi) recover all costs of collection including, without limitation, reasonable attorneys’ fees; (vii) if Buyer is delinquent on a payment schedule, accelerate all remaining payments and declare the total outstanding balance immediately due and payable; or (viii) combine any of the above rights and remedies as may be permitted by applicable law. The above remedies are in addition to all other remedies available at law or in equity. Failure by Epicurean to exercise any remedy shall not constitute a waiver of other remedies or other rights to exercise any such remedy in the event of any subsequent Event of Default. Buyer shall grant to Epicurean a security interest in the Products and Buyer shall execute any documents necessary to permit and perfect such security interest. Epicurean shall possess all the rights of a secured party under the Uniform Commercial Code. Where Buyer is situated outside the USA Epicurean shall be entitled to all remedies set forth herein if any event occurs which is analogous to an Event of Default.
7. WARRANTY DISCLAIMER EPICUREAN SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO ITS PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR ANY OTHER MATTER. PRODUCTS ARE PROVIDED BY EPICUREAN “AS IS”.
8. INSPECTION Buyer shall inspect, or provide for inspection, at Epicurean’s facility only. Buyer’s inspection shall not interfere with Epicurean’s operations, and Buyer shall approve or reject before delivery. If Epicurean reasonably determines that rejection was improper, Buyer shall be responsible for all costs and expenses caused by the improper rejection, including but not limited to loss of profit.
9. EXCUSABLE DELAY OR NONPERFORMANCE Epicurean shall not be liable for any failure to meet its obligations due to any cause beyond its reasonable control including, but not limited to: government embargoes or any other government acts that interfere with performance; blockades; seizure or freeze of assets; delays or refusals to grant an export license or the suspension or revocation thereof; fires, floods, severe weather terms; quarantines or regional medical crisis; labor strikes or lockouts; riots, civil disobedience, armed conflict, terrorism or war, declared or not or impending threat of any of the foregoing; production delays and shortages or inability to obtain materials or components. The due date of any performance affected by such an event shall be extended by the period of time that Epicurean is actually delayed. If the inability to perform continues for longer than six (6) months, either party shall have the right to terminate the affected Agreement by providing written notice to the other party.
10. APPLICABLE LAW These Terms and the Agreement shall be governed by the laws of the State of Minnesota, U.S.A. without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto, shall not apply. Any suit must be brought in a state or federal court sitting in Minnesota, U.S.A., and Buyer irrevocably accepts the jurisdiction of such courts and consents to service of process by registered or certified mail at its address stated in the Agreement. THE PARTIES IRREVOCABLY AND KNOWINGLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THESE TERMS OR THE AGREEMENT OR REGARDING THE PRODUCTS. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
11. LIMITATION OF REMEDIES IN NO EVENT SHALL EPICUREAN BE LIABLE TO BUYER OR ANYONE CLAIMING THROUGH BUYER FOR, AND BUYER HEREBY EXPRESSLY WAIVES, ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, LOSS OF ANTICIPATED PROFIT OR OTHER ECONOMIC LOSS OR FOR ANY OTHER DAMAGES OR REMEDIES EVEN IF INFORMED OF THE POSSIBILITY OF SUCH. THE PARTIES EXPRESSLY AGREE THAT THE LIMITATIONS TO INCIDENTAL, CONSEQUENTIAL, SPECIAL, AND INDIRECT DAMAGES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SHALL SURVIVE THE DETERMINATION OF ANY COURT OF COMPETENT JURISDICTION THAT ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPORSE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS SHALL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, BY OPERATION OF LAW, OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL EPICUREAN’S LIABILITY HEREUNDER FOR ANY CAUSE EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCTS.
12. IMPORT/EXPORT Where applicable, Buyer is responsible for compliance with all import laws and regulations and shall retain documentation to support compliance with those laws and regulations. Epicurean shall not be liable to Buyer for any failure to provide Products as a result of government actions which impact Epicurean’s ability to perform, including: (a) the failure to provide or the cancellation of export or re-export licenses; (b) any subsequent interpretation of any applicable import, transfer or export law or regulation, after the date of any order or commitment, that has a material adverse effect on Epicurean’s performance; or (c) delays due to Buyer’s failure to follow applicable import laws and regulations. Buyer shall not sell, lease or transfer Products to restricted countries, restricted end-users or for restricted end-uses, and diversion contrary to U.S. law is prohibited. Buyer agrees to comply with the applicable provisions of the Foreign Corrupt Practices Act.
13. COSTS, TAXES AND CHARGES Buyer shall pay prior to delivery: (a) all delivery and shipment costs and all insurance charges relating to the same; (b) all customs duties, import deposits, assessments, sales, use, value added, excise, goods and services, federal, state, local or other taxes or charges; (c) any costs or fees associated with the method of payment; and, (d) any additional charges for any special routing, packing, labelling, handling, insurance or other request from Buyer.
14. RETURNS Buyer shall obtain prior written authorization and/or a Returned Material Authorization (RMA) number from Epicurean in order to return Products to Epicurean. Buyer shall pay all shipping and other costs and expenses in connection with any such return of Products, unless, as reasonably determined by Epicurean, it shipped Products in error. Epicurean only issues credits after inspection and approval of returned Products. Buyer incurs a twenty percent (20%) restocking fee for cancellation or reduction of orders within two (2) weeks of the designated delivery date. Epicurean may revise and discontinue Products at any time without notice. Epicurean will ship Products that have the functionality and performance of the Products ordered, but changes between what is delivered and described in a specification are possible.
15. NOTICES Notices shall be in writing and shall be sent to the company/person and address as identified in the Agreement. Notices shall be (a) delivered by hand; (b) sent by email; or, (c) sent by receipted courier service. Notices shall be effective: (i) when received, if delivered by hand or sent by receipted courier service; (ii) when sent, if sent by email if delivery by email sent no later than 4:00 PM (receiver’s time) on a business day; (iii) the next business day if sent by email on a non-business day or after 4:00 PM (receiver’s time) on a business day.
16. INDEMNIFICATION Buyer shall defend, indemnify and hold Epicurean harmless from any and all claims, demands, losses, damage, liability, cost, expense (including reasonable attorneys’ fees), suit, judgment, and adjudication whatsoever, whether threatened, pending or completed, whether groundless or otherwise, wherever brought, which Epicurean may incur or suffer as a result of or in relation to any claim of any kind arising out of any act or omission by Buyer or any of Buyer’s agents or employees which violates the Agreement or these Terms. Upon Epicurean’s tender of defense to Buyer, and Buyer’s refusal to defend Epicurean, Epicurean shall be authorized to obtain independent counsel of its own choice, and Buyer shall be required to reimburse Epicurean for all costs and expenses, including reasonable attorneys’ fees, relating to Epicurean’s defense. Epicurean shall have the right to pay, settle or compromise any claim, demand, and other damage item of the character set forth in this Section, and the voucher or other evidence of such payment shall be prima facie evidence of the proprietary nature thereof, and of Buyer’s liability therefore to Epicurean.
17. GENERAL PROVISIONS Assignment/Relationship. Buyer shall not assign or otherwise transfer any of its rights or obligations hereunder without Epicurean’s prior written consent. The parties are independent contractors. Waiver. Failure of Epicurean to enforce at any time any of the provisions of these Terms or the Agreement shall not be construed to be a continuing waiver of any provisions nor shall any such failure prejudice the right of Epicurean to take any action in the future to enforce any provisions there under. Severability. If any provision of these Terms or the Agreement is determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction, then the validity and enforceability of the remaining provisions shall not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there shall be added as part of these Terms or the Agreement one or more provisions as similar in terms as may be legal, valid and enforceable under applicable law. Survival. All rights, duties and obligations, which by nature should apply beyond the term hereof or of the Agreement shall remain in force after the acceptance and complete performance thereof. Entire Agreement. These Terms and the Agreement contain the entire agreement between Buyer and Epicurean with respect to the subject matter hereof and merge all prior or contemporaneous agreements and understandings (whether written, verbal or implied) of the parties with respect thereto.