General Conditions

Victory Foods USA INC. – General Terms and Conditions

1. Parties and scope. These general terms and conditions (“Terms”) apply to any offer, order, contract or other (business) relationship involving Victory Foods USA Inc., with offices at 530 7th Ave, Suite 902, NY 10018, USA (“Victory Foods”) and any of its contractors or customers (together “Customer”). The term “Goods” refers to any goods, products or services provided by or behalf of Victory Foods to any Customer. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfilment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. If a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the contract shall prevail to the extent they are inconsistent with these Terms. These Terms supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
2. Informative value of offers and acceptance of Orders. Victory Foods is only bound by any commitment or contract expressly accepted by any of its duly authorized directors, managers or other representatives. Any offer made by Victory Foods is non-binding and subject to change or annulment without prior notice. Any order issued by or on behalf of Customer constitutes an offer to purchase and is subject to Victory Foods’ acceptance in writing. Victory Foods reserves the right to accept or reject any order at its discretion. All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties or charges of any kind on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Victory Foods’ income, revenues, gross receipts, personal or real property or other assets.
3. Warranties with regard to goods sold. Victory Foods warrants that Goods will conform, during their shelf life as confirmed by Victory Foods, to the specifications that it has expressly provided to Customer or that were accepted in writing by Victory Foods. EXCEPT FOR THE PRODUCT WARRANTIES SET FORTH IN ARTICLE 3, VICTORY FOODS MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. Victory Foods shall not be liable for a breach of the warranty set forth in article 3 if: (i) Customer makes any further use of such Goods after giving notice in accordance with article 6 or (ii) the defect arises because Customer failed to follow Victory Foods’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods.
4. Transport and delivery. Delivery times are estimates provided for information purposes only. Any hard deadline, where applicable, must be confirmed in writing by Victory Foods and shall, if exceeded with respect to the delivery terms herein, only give the Customer the ability to cancel the relevant order (as a sole remedy) after having given Victory Foods a notice of default, including a cure period of at least five business days. Unless agreed otherwise in writing, all deliveries are made Ex Works (Incoterms 2020) from Victory Foods’ warehouse or place of business. All risks (loss, damage, theft, etc.) shall transfer to Customer upon delivery of Goods to the carrier. Ownership shall only be transferred upon Victory Foods’ receipt of full payment of the relevant Goods. As from delivery and as long as the Goods have not been paid in full to Victory Foods, Customer must insure those against all customary risks (fire, damages, theft, etc.) for a value equal to the payment due to Victory Foods. Victory Foods shall not be responsible for any loss, damage or delay occurring during transportation or handling following delivery. Unless agreed upon otherwise, Customer shall be responsible for all loading, shipping and handling charges, as well as for arranging appropriate transport of Goods. Whenever Victory Foods accepts to organize transport and handling on Customer’s behalf, it will be entitled to charge costs of the same to Customer. In such case, Goods in transport must be insured by Customer or, if Victory Foods handles transport insurance, Goods will be insured at Victory Foods’ standard insurance conditions and Customer will not be entitled to any other compensation than coverage effectively provided under such coverage. Victory Foods may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Customer’s purchase order. If Victory Foods’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Victory Foods shall not be deemed in breach of its obligations or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Warehousing costs. Victory Foods will take charge of all warehousing costs until the agreed upon delivery date. If the latter is exceeded for any reason attributable to Customer, the latter will be held to compensate Victory Foods for any related warehousing costs which parties agree to value at five percent (5%) of the price of relevant Goods for every day of delay. If delivery of Goods is delayed by more than forty-five (45) days or the shelf life of the Goods (whichever comes first), Victory Foods will be entitled at its discretion to dispose of such Goods or have these destroyed, at the charge and cost of Customer (which shall also pay the full price of the Goods, plus any other costs incurred by Victory Foods).
6. Complaints. Customer must thoroughly inspect the Goods immediately upon delivery in accordance with article 4 above. Any visible non-conformities must be communicated in writing to Victory Foods within five (5) business days following delivery and shall be inadmissible thereafter. Any hidden non-conformities must be brought to Victory Foods’ attention no later than one (1) month following delivery, but in no case later than five (5) business days following their discovery. Failure to notify Victory Foods within the specified periods shall constitute a waiver by Customer of all claims with respect to the Goods and to the inadmissibility of any late claims. Any use, processing or further sale or distribution of Goods will also be regarded as the unconditional acceptance thereof and will cause the inadmissibility of any claims regarding non-conformities. Any variation in color, taste, smell or texture of Goods that are considered commercially acceptable shall not be grounds for rejection of Goods.
7. Remedies. Customer’s full and exclusive remedy with regard to any non-conformities shall consist of the replacement of any affected Goods. Under no circumstances shall Victory Foods be responsible for any other remedy, including but not limited to, refunds, discounts or compensation. Customer acknowledges and agrees that the remedies set forth in article 7 are Customer’s exclusive remedies for non-conformities. Except as provided under article 7, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under these Terms to Victory Foods.
8. Force Majeure/acts of God. Victory Foods will not be responsible or liable for any delays, non-performance or breaches of its duties or commitments towards Customer to the extent that the same has been cause by Force Majeure, meaning events, occurrences, or circumstances that are beyond the reasonable control of Victory Foods, including but not limited to, Acts of God, war or invasion, natural disasters, extreme weather conditions, acts of terrorism, civil disturbances, government actions, embargoes, riots or civil unrest, pandemics, the unavailability or delayed availability of base products and/or ingredients or a material increase of prices of the same and any other events that cannot be anticipated or prevented by reasonable measures. Victory Foods shall give notice to Customer within seven (7) days of a Force Majeure event and shall use diligent effort to end the delay and ensure the effects of the Force Majeure event are minimized. If the delay remains uncured for a period of forty-five (45) consecutive days following the notice, Customer may cancel the order for Goods.
9. Limitation of liability. IN NO EVENT SHALL VICTORY FOODS BE LIABLE TO Customer OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT VICTORY FOODS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL VICTORY FOODS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER or the COVERAGE AS IT FOLLOWS FROM THE CIVIL LIABILITY INSURANCE POLICY OF VICTORY FOODS, WHICHEVER IS LESS. The limitation of liability set forth in ARTICLE 9 shall not apply to (i) liability resulting from VICTORY FOODS’ gross negligence or willful misconduct or (ii) death or bodily injury resulting from VICTORY FOODS’ acts or omissions.
10. Invoices and payment. Customer consents to accepting electronic invoices. All invoices are due and payable on the date included on the invoice. If no such date is provided, then the invoice is due and payable immediately upon receipt. To be admissible, any complaints or protest of invoices must be made in writing within ten (10) business days following receipt of the invoice. A complaint or protest will only be valid when reasons therefor are detailed and (to the extent possible) documented. Any admissible complaint or protest will not release Customer from its obligation to pay any undisputed part of the invoice or any other invoices. Any arrears in payment will, by operation of law and without any prior notice being due, entitle Victory Foods to charge the lesser of a 10% late payment interest or the maximum amount allowed by law per month, calculated daily and compounded monthly. Customer shall reimburse Victory Foods for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. Additionally, Victory Foods will be entitled to suspend its performance of any obligations towards Customer, even when unrelated. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Victory Foods, whether relating to Victory Foods’ breach, bankruptcy or otherwise. All of the foregoing does not limit or prejudice any other remedies and causes of action available to Victory Foods.
11. Intellectual Property Rights. Victory Foods reserves all of its intellectual and other proprietary rights. No such rights are transferred or granted to the Customer. Any consent by Victory Foods to the use of any of its rights must be explicit and must be made in writing, duly signed by one of its directors. Any such license granted by Victory Foods is strictly personal, non-transferable, royalty-bearing, without any warranty and may be terminated at Victory Foods’ discretion at any time.
12. Jurisdiction and competent courts. All matters arising out of or relating to these Terms are governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. The application of the UN Convention on the International Sale of Goods (CISG) is excluded. Any legal suit, action, or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in Manhattan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
13. Termination. In addition to any remedies that may be provided under these Terms, Victory Foods may terminate any order with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. Compliance with law. Customer shall comply with all applicable laws, regulations and ordinances, including any relevant labelling requirements. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Terms. Customer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Customer. Customer assumes all responsibility for shipments of Goods requiring any government import clearance. Victory Foods may terminate an order if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods.
15. Recall. Customer shall forward any health-related or safety-related complaints from customers concerning the Goods to Victory Foods in a timely manner.  Victory Foods shall notify Customer at least three business days prior to making any public health-related or safety-related statement concerning, or participating in any voluntary or involuntary recall of any of the Goods. If a recall, market withdrawal, field correction, corrective action, or similar action (“Recall”) is implemented by Victory Foods or required by any federal, state, local, or other regulatory or governmental authority with respect to any of the Goods, Victory Foods shall notify Customer and take all actions necessary to promptly execute the Recall, including working with or through Customer regarding the Recall. Each Recall will be conducted and directed by Victory Foods, and Customer will follow Victory Foods’ reasonable directions. The parties will each retain complete and accurate records as may be maintained in the ordinary course of business for all Goods, including sales and service records, for no less than the period of time required by applicable law, to facilitate any Recalls. If liable, Victory Foods shall only reimburse reasonable costs directly related to the Recall, limited to extra handling and notification costs. Victory Foods shall not be responsible for reimbursing Customer for costs and expenses in a Recall to the extent that the Recall was caused by Customer’s failure to handle and store the Goods in accordance with instructions on the label of the Goods or other instructions provided by Victory Foods or to the extent the Recall was caused by Customer’s negligence or wilful misconduct.
16. Waiver. No waiver by Victory Foods of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Victory Foods. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Victory Foods. Any purported assignment or delegation in violation of this article is null and void. No assignment or delegation relieves Customer of any of its obligations under these Terms.
18. Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision of these Terms is invalid, illegal, or unenforceable, such term or provision shall be interpreted so as to remain enforceable to the maximum extent permissible consistent with applicable law.
19. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration.
20. Amendment. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.