GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS
General Terms and Conditions for the Sale of Goods
Applicability.
These terms and conditions of sale (these “Terms“) are the only terms which govern the sale of the goods (“Goods“) by Ciatti Craft Beverages, LLC d/b/a John Fearless (“Seller“) to the buyer named on the reverse side of these Terms (“Buyer“). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
The accompanying order confirmation on the reverse side (the “Sales Confirmation“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Price.
Buyer shall purchase the Goods from Seller at the price(s) (the “Price“) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s purchase order. If the Price should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased price were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased price.
All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, duties, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
Payment Terms.
Buyer shall pay all invoiced amounts due to Seller as stated on the Sales Order. Buyer shall make all payments hereunder by wire transfer/check/credit card and in US dollars.
Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.
Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
Shipping Terms. Delivery shall be made FCA Seller’s designated shipping dock or in accordance with the terms on the face of the Sales Confirmation. In the event Buyer wishes to arrange for export shipment, Buyer shall inform Seller by so indicating on the order. In the absence of such indication, Seller shall arrange for (i) export shipment to Buyer’s country, and (ii) marine warehouse-to-warehouse insurance (including war risk, if available). Buyer shall pay Seller for all fees and expenses including, but not limited to, those covering preparation of consular documents, consular fees, ocean freight, storage, insurance and Seller’s then current fee for such services. Notwithstanding any extension of credit to Buyer, all such charges shall be promptly reimbursed by Buyer in U.S. Dollars upon submission of Seller’s invoices therefor.
Delivery.
The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. The delivery date provided by Seller for the Goods is only an estimate and is based upon prompt receipt of all necessary information from Buyer. Seller shall not be liable for any delivery delays, loss, or damage in transit.
Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Seller’s designated shipping dock (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods once such Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
Non-Delivery.
The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within five (5) days of the date when the Goods would in the ordinary course of events have been received.
Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Inspection and Rejection of Nonconforming Goods.
Buyer shall inspect the Goods within seven (7) days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 635 Nevada St. Benicia CA 94510. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
Merchandising Materials; License.
From time to time, Seller may provide Buyer with access to certain marketing-related materials for use in reselling the Goods, including signage, graphics, artwork, and other proprietary customer-facing materials (collectively, the “Merchandising Materials”). Seller hereby grants to Buyer a limited, terminable, non-exclusive right and license (the “Merchandising License”) to use the Merchandising Materials solely in connection with and for the specific purpose of marketing and selling the Goods, subject in all respects to the following:
The Merchandising Materials may not be altered, amended, defaced, manipulated, copied or appropriated for other purposes, without the express written consent of Seller;
The Merchandising Materials may not be used for the benefit of any products other than the Seller’s Goods; and
Use of the Merchandising Materials and/or the Merchandising License must comply in all respects with any directions or instructions that Seller may provide from time to time (including those set forth in any standards or guidelines issued by Seller), whether or not such directions or instructions are provided at the same time or in the same method as the Merchandising Materials.
Merchandising License Term. The term of the Merchandising License shall be until the earlier of (i) written notice of termination by Seller (for any reason whatsoever and in its sole and absolute discretion), or (ii) six (6) months after Buyer’s most recent purchase of Goods from Seller. Upon conclusion of the term hereunder, the Merchandising License shall automatically terminate, without any further action of the parties.
Ownership. Subject to the express rights and licenses granted hereunder, Buyer acknowledges and agrees as follows:
Any and all Seller’s intellectual property, including trade secrets, proprietary or confidential information, patents and inventions, designs, copyrights, and trademarks (collectively, the “Intellectual Property”), are the sole and exclusive property of Seller or its licensors;
Buyer will not acquire any ownership interest in any of the Intellectual Property;
Any goodwill derived from the use of the Intellectual Property inures to the benefit of Seller or its licensors, as the case may be;
If Buyer acquires any rights in or relating to any Goods purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either party; and
Buyer will use the rights granted under the Merchandising License solely in accordance with these Terms and the instructions of Seller.
Some or all of the used barrels sold to Buyer have marked upon them their provenance/origin. No implied or express right or license to any trademark, trade name, copyright, brand name, or other intellectual property rights of the prior owner of the barrels is granted to the Buyer under this purchase order or otherwise by us, by any third party, or by virtue of your purchase of the barrels. Any use by the Buyer of any of the foregoing rights is at your own risk and may subject you to liability for infringement of the intellectual property rights of the prior owner or owners of the barrels or of such rights. Should the Buyer desire to use all or any part of such brand owner’s trademark, trade name, copyright, brand name, or other intellectual property rights, you are advised to contact the Seller thereof directly to seek to obtain approval.
Negative Covenants. During and after the term of this Agreement, Buyer will not do any of the following:
Register or apply for registrations, anywhere in the world, for the Intellectual Property or any rights that are similar to, confusingly similar to, or otherwise incorporate the Intellectual Property;
Use any mark, anywhere, that is confusingly similar to the Intellectual Property, except as permitted under the Merchandising License;
Engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or Seller; or
Misappropriate any of the Intellectual Property for use as a domain name or internet search term, without prior written consent of Seller.
Reselling to Wholesaler Accounts. If Buyer distributes Seller’s Goods to any entity for resale, Buyer must require that its customer strictly adheres to these Terms. If Buyer does not enforce these Terms with its own resale customers, Seller, in its sole discretion, may cancel all pending and future orders and/or terminate its relationship with Buyer.
Disclaimer and Limitation of Liability.
Seller’s responsibility for defects relating to the Goods are limited to the procedures described in Section 8 ALL GOODS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT THE GOODS WILL MEET BUYER’S REQUIREMENTS; THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE GOODS WILL BE EFFECTIVE, ACCURATE OR RELIABLE; OR THE QUALITY OF ANY GOODS WILL MEET BUYER’S EXPECTATIONS.
SELLER DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR GOODS THAT ARE NOT AVAILABLE FOR USE. IN NO EVENT SHALL SELLER OR ITS PARENT, SUBSIDIARIES, AFFILIATED COMPANIES, AGENTS, SHAREHOLDERS, EMPLOYEES, OR OFFICERS (COLLECTIVELY, OUR “AFFILIATES”) HAVE ANY OBLIGATIONS OR LIABILITIES TO BUYER OR ANY OTHER PERSON FOR LOSS OF PROFITS, FOR LOSS OF BUSINESS OR USE, OR FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF WE OR OUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF, ARISING OUT OR IN CONNECTION WITH THE SALE, DELIVERY, USE, REPAIR OR PERFORMANCE OF THE GOODS. NO EMPLOYEE OR REPRESENTATIVE OF SELLER IS AUTHORIZED TO MODIFY THIS LIMITATION.
SELLER’S SOLE AND ENTIRE MAXIMUM LIABILITY (AND THE LIABILITY OF ANY OF THE PROVIDERS OF PRODUCTS), FOR ANY REASON, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY BUYER FOR THE GOODS IT HAS ORDERED.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO BUYER’S PURCHASE OF GOODS.
Indemnification. To the fullest extent permitted by law, Buyer agrees to indemnify, hold harmless, and defend Seller, its affiliates, parents, and subsidiaries, and their respective agents, officers, directors, employees, partners, consultants, independent contractors, successors and assigns against any and all loss, claim of loss, injury, costs and damages arising from (i) Buyer’s purchase, display, use, or sale of Goods, (ii) Buyer’s breach of the terms hereof, or (iii) Buyer’s or its representatives’ negligence or willful misconduct.
Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall obtain and maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. If Seller or its subcontractors, or the employees of either, are required to pay any such levies and/or fines, penalties, or assessments in the first instance, or as a result of Buyer’s failure to comply with any applicable laws or regulations governing the payment of such levies by Buyer, the amount of any payments so made, plus the expense of currency conversion, shall be promptly reimbursed in U.S. Dollars by Buyer upon submission of Seller’s invoices therefore.
Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due ; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) 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.
Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement 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.
Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, chemical compositions, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law; Venue. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of San Francisco and County of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. THE PROVISIONS OF THE UNITED NATION CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT BE APPLICABLE TO THIS AGREEMENT.
Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: 3, 6, 9, 10, 11, 12, 13, 17, 22, and 25.
