True Fresh 6535 Caballero Blvd, Buena Park, CA 90620 P 949 ...€¦ · Web viewTrue Fresh 6535...

TRUE FRESH HPP, LLC

STANDARD TERMS AND CONDITIONS

OF DOING BUSINESS

Introduction

True Fresh HPP, LLC, a Delaware limited liability company (“True Fresh”) provides services to its customers (“Customer”) respecting the Customer’s products (“Products”) pursuant to these standard terms and conditions (“Terms and Conditions”) and pursuant to information contained in one or more Product Specification Agreements (“PSA”) respecting high pressure processing (“HPP”) services and/or fulfillment services contracts (“Fulfillment Contract”). True Fresh and Customer are collectively referred to herein as a “Party” or the “Parties.”

1. Incorporation By Reference

A. The Introduction and Parts I and III hereof are incorporated into every PSA.

B. The Introduction and Parts II and III hereof are incorporated into every Fulfillment Contract.

C. Pursuant to A. and B., above, these Terms and Conditions are incorporated by this reference, without modification or amendment, into any PSA and any Fulfillment Contract and govern the Parties’ rights and obligations. References herein to “Agreement” refers to these Terms and Conditions and any PSA and/or Fulfillment Contract. References herein to “PSA” and/or “Fulfillment Contract” include these Terms and Conditions as incorporated therein.

I.Provisions Applicable To PSAs

2. Performance of Services

A. Scope of Services. True Fresh shall apply HPP services to Customer’s Products as set forth in the Parties’ PSAs.

B. Specifications for Services. Customer shall specify in the PSA (a) the maximum and minimum pressure parameters, (b) the hold time in minutes and seconds, (c) the product temperature, and (d) HPP water temperature (all, collectively, “Parameters”) to be employed by True Fresh in providing HPP services to Customer’s Products. True Fresh will not review the appropriateness of the Parameters specified by Customer and all liability and responsibility for the appropriateness and effectiveness of the Parameters shall be borne by Customer. True Fresh’s sole responsibility with respect to its HPP services is to perform them in accordance with the Parameters specified by Customer. True Fresh will not, and is under no duty to, advise Customer respecting the appropriateness or effectiveness of Customer’s Parameters.

3. Forecast Volume. Customer agrees deliver Product to True Fresh at the weekly volumes indicated on each PSA.

True Fresh 6535 Caballero Blvd, Buena Park, CA 90620 P 949.258.9720 www.truefreshhpp.com1

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4. Requirements Contract. The Parties agree that during the Term of the PSA(s) defined below, True Fresh will perform all of Customer’s requirements for HPP services, and be Customer’s sole HPP provider, for HPP services performed within a four hundred (400) mile radius of True Fresh’s processing facility located at 16535 Cabellero Boulevard, Buena Park, CA 90620.

5. Term Defined. The Term of the PSA(s) begins on the date of the first PSA between the Parties and, unless earlier terminated as provided herein, ends one (1) year thereafter (“Initial Term”). Thereafter, the Initial Term shall automatically renew for subsequent one (1) year terms (“Renewed Term”) unless either party provides the other with written notice of its intent not to renew at least sixty (60) days prior to the end of the then current Term. The Initial Term and any Renewed Term shall be collectively referred to as the “Term.” Obligations concerning confidentiality, indemnity, intellectual property warranty and insurance survive the expiration or termination of the Term. Additional obligations arising hereunder survive expiration or termination when doing so preserves a right or remedy granted to a party herein. In the event a PSA’s performance period extends beyond the Term, these Terms and Conditions shall apply to the Parties’ performance of said PSA.

6. Termination.

A. True Fresh may terminate the Term and the obligation to provide further HPP services to Customer for all PSAs by giving written termination notice to Customer (i) if Customer fails to make any payment when due and such nonpayment is not cured within ten (10) calendar days of receipt of notice of nonpayment; (ii) if Customer fails in any material respect to perform any of its other obligations and does not fully cure such failure within fourteen (14) calendar days after receipt of written notice specifying the failure; or (iii) upon thirty (30) days’ written notice to Customer. Provided, however, that termination for Customer-caused Product adulteration or contamination may be exercised by True Fresh immediately and without any right to cure.

B. Customer may terminate the Term and the obligation to require any further services under all the PSAs by giving written termination notice if True Fresh fails in any material respect to perform its obligations and does not fully cure such failure within seven (7) days after receipt of written notice specifying the nature of the failure.

C. Each party shall be entitled to terminate the Term and all obligations respecting further services under all PSAs by written notice to the other party if the other party commits any act of bankruptcy or has a receiver or administrative receiver appointed over the whole or any part of its assets or if an order is made or resolution passed for the winding up of the other party or its business or the other party becomes subject to an administration order or enters into a voluntary arrangement with its creditors or the other party is the subject of any equivalent event or proceeding under the laws of any jurisdiction.

7. Shipment and Control of Product. At least seven (7) days prior to shipment of Product to True Fresh, Customer shall notify True Fresh in writing of the volume and type of Product to be shipped and processed. True Fresh will perform HPP services on the Product so received within two (2) business days of receipt. True Fresh will report all shortages, overages, damaged and noncompliant Product to the Customer. Upon completion of the HPP services on the Product, True Fresh will follow disposition instructions contained in the PSA. True Fresh reserves the right to charge Customer inventory and warehouse fees for Product not picked up on a timely basis.


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8. Warranty. True Fresh warrants that it shall perform HPP Services in accordance with the Parameters set forth in the applicable PSA. This warranty is void in cases of damage caused in transit or by the negligence, abuse or misuse by anyone other than True Fresh, any improper packaging, or if the Product is otherwise noncompliant with specifications in the PSA.

9. Disclaimer of All Other Warranties. True Fresh and Customer agree that the warranty in the preceding section is exclusive and in lieu of all other express or implied warranties, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. True Fresh hereby disclaims and excludes all other express or implied warranties and the same are waived by Customer. Any oral or written description of True Fresh’s HPP services is for the sole purpose of identifying the services and shall not be construed as an express warranty.

10. Limitation on Liability. True Fresh will provide Customer with a printout of True Fresh’s performance of the Customer’s Parameters. Customer shall have fourteen (14) days to give notice to True Fresh that its performance did not comply with the Parameters or said objection is waived. True Fresh’s sole liability for breach of warranty or other breach of its obligations arising under a PSA or otherwise however arising (“allegedly deficient services”) shall be, upon prompt written notice by Customer of any breach, at True Fresh’s discretion to either re-perform the allegedly deficient services or refund that portion of the fee paid relating to such allegedly deficient services. In no event shall True Fresh be liable for general, special, incidental, consequential, punitive or other damages or lost profits. True Fresh’s aggregate liability with respect to its performance under a PSA shall be limited to the monies paid by customer to True Fresh for the allegedly deficient services. No action against True Fresh arising out of this Agreement shall be brought more than six (6) months after the rendering of the services respecting which the action is based.

II.Provisions Applicable To Fulfillment Contract

11. Warranty. True Fresh warrants that it shall perform fulfillment services in a reasonable, workman like manner in accordance with the Fulfillment Contract and the Parties agree this is True Fresh’s sole responsibility under the Fulfillment Contract. True Fresh will not, and is under no duty to inspect the quality of the Product or advise Customer respecting the same.

12. Disclaimer of All Other Warranties. True Fresh and Customer agree that the warranty in the preceding section is exclusive and in lieu of all other express or implied warranties, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. True Fresh hereby disclaims and excludes all other express or implied warranties and the same are waived by Customer. Any oral or written description of True Fresh’s services is for the sole purpose of identifying the services and shall not be construed as an express warranty.

13. Limitation on Liability. True Fresh’s sole liability for breach of warranty or other breach of its obligations arising under the Fulfillment Contract or these Terms and Conditions shall be, upon prompt written notice by Customer of any breach, those specified in the Fulfillment Contract. In no event shall True Fresh be liable for general, special, incidental, consequential, punitive or other damages or lost profits. No action arising out of services provided under the Fulfillment Contract shall be brought against True Fresh more than six (6) months after rendering of said services. True Fresh’s aggregate


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liability with respect to its performance under a Fulfillment Contract shall be the amount specified in the Fulfillment Contract in the section entitled, “Mispick Allowances & Credits.”

III.Common Provisions

(Applicable to PSAs and Fulfillment Contracts)

The provisions contained in this portion of the Agreement are applicable to any PSA and any Fulfillment Contract between the Parties.

14. Inspection of Incoming Shipments. True Fresh is an FDA and USDA inspected facility and must conduct activities at all times within applicable regulatory standards. True Fresh reserves the right to reject any shipment of Customer’s Product the receipt of which would be contrary to FDA and USDA or other food facility good practices based on the cleanliness of the shipment or other relevant considerations.

15. Timely Performance. Customer shall timely perform all of its obligations set forth in the PSA including, but not limited to, supplying True Fresh with all specified Product on a timely basis.

16. Samples. True Fresh may require Customer to deliver Product samples to True Fresh at Customer’s expense prior to providing services in order to confirm the exterior dimensions of containers for purposes of efficient handling by True Fresh’s equipment. The ability of Customer’s product containers to withstand and perform under HPP processing Parameters and fulfillment services is Customer’s responsibility.

17. Taxes and Other Charges. Any retailer’s occupation tax, use tax, sales tax, excise tax, duty, customs agent or broker fees, inspection or testing fee, freight costs, insurance or any other tax, fee or charge of any nature whatsoever, imposed on, in connection with or measured by any transaction between True Fresh and Customer shall be paid by Customer in addition to the prices quoted or invoiced.

Terms of Payment. True Fresh will provide Customer with an itemized invoice for services due net ten (10) days from receipt of invoice. Prices are subject to change in True Fresh’s sole discretion. True Fresh may issue invoices at the end of each day services are provided. True Fresh may require Customer to pay for its services in advance, by cash-on-delivery, or by other secured form of payment acceptable to True Fresh based on credit decisions made in its sole unfettered discretion. If Customer does not pay True Fresh an amount when due or if Customer defaults in the performance of any contractual obligation, True Fresh may, without liability to Customer and without prejudice to True Fresh’s other lawful remedies, immediately (i) declare due and payable all of Customer’s obligations to True Fresh, (ii) change credit terms, and/or (iii) suspend performance under any Agreement until Customer pays all outstanding amounts. Customer agrees to reimburse True Fresh for all costs, including attorneys’ fees, incurred to collect any sums owed by Customer to True Fresh. Customer agrees to pay a late payment charge equal to the lesser of 1-1/2% per month or the highest rate permitted by applicable law on all amounts not paid in full when due.

18. Pure Food Guarantee and Indemnity.

A. As a material portion of the consideration received by True Fresh under each Agreement: Customer does hereby warrant and guarantee that, beginning on and after the date of delivery, every


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article included in each and every delivery of Products to True Fresh hereafter made by Customer, or on the order of Customer, is merchantable and good quality, free from defects, not adulterated or misbranded or mislabeled within the meaning of the Federal Food, Drug and Cosmetic Act (the “Act”), the Fair Packaging and Labeling Act or any other pure food and drug or health laws, safety or environmental laws, regulations or ordinances of any federal, state, local or other government authority which are applicable to such shipment or delivery, and that such Product, packaging and other materials will not constitute articles prohibited from introduction into interstate commerce under the provisions of the Act.

B. Any guaranty previously given by Customer to True Fresh which relates to the subject matter hereof is hereby revoked. This guaranty shall not be deemed to be modified or otherwise affected by any subsequent agreement entered into by Customer and True Fresh unless specific reference to this guaranty is made in such subsequent agreement. This guaranty shall continue in effect with respect to all articles delivered to True Fresh by Customer prior to the receipt by True Fresh of written notice of its revocation. Notice of the acceptance of this guaranty is hereby waived by Customer.

19. Indemnification.

A. Customer does hereby agree to protect, indemnify, defend and hold True Fresh and its employees, officers, directors, owners and other customers (collectively, “Indemnitees”) harmless from any and all losses, costs or expenses of any type suffered by the Indemnitees as well as any and all claims, charges, actions and proceedings brought against the article and/or the Indemnitees for or on account of any alleged adulteration, misbranding of or other law violations pertaining to Products hereof, including attorneys’ fees and reasonable expenses, if any, incurred by Indemnitees as a result thereof.

B. Customer does hereby agree to protect, indemnify, defend and hold the Indemnitees harmless from and against any and all claims, demands, actions and causes of action made or brought against the Indemnitees by any person for the recovery of loss or damages for the injury, illness and/or death of any person or animal or other loss or damages which are alleged to have been caused by the sale, transportation, handling, delivery, consumption or use by such person or animal of any article, including Products, shipped or delivered by Customer to True Fresh, including, without limitation, any judgment rendered against or settlement paid by or on behalf of the Indemnitees in any such action and the attorneys’ fees and other costs, if any, incurred by or on behalf of the Indemnitees in connection therewith. Said costs shall include, without limitation, all costs related to any recall of Customer’s Products.

C. Customer represents and warrants that neither the Products nor their delivery to True Fresh will infringe upon or violate any trade secrets, trademarks, patents, copyright or other legal rights of third parties. Customer agrees to protect, defend, indemnify and hold True Fresh harmless from and against any and all claims, liability, loss, costs, attorneys’ fees, expenses and damages due to or arising from any such alleged infringement or violation.

D. As a condition to indemnification, Indemnitees shall provide prompt notice to Customer of claims subject to indemnification. Customer shall defend such indemnified claims with qualified legal counsel of its selection. Customer shall not settle or compromise any indemnified claim without obtaining the prior written consent of Indemnitees.


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20. Product Quality And Integrity. Customer is solely responsible for ensuring that all of the Product shipped to True Fresh and subject to HPP services is consistent with the specifications set forth in the PSA or Fulfillment Contract. Customer is solely responsible for ensuring that all Product is manufactured and packaged in accordance with good manufacturing standards and shall be merchantable and fit for human consumption. Packaged Product shall be impermeable and otherwise packaged in accordance with the PSA or Fulfillment Contract. All leaking containers detected by True Fresh, whether detected before or after HPP processing or fulfillment services, will be considered noncompliant Product and will be destroyed unless return is requested by Customer. Any cost incurred in the event of non-conforming products will be billed back to the Customer at cost as determined by True Fresh. True Fresh will employ reasonable means to identify leaking containers and does not warrant that it will identify 100% of all leaking containers. True Fresh bears no responsibility for the accuracy of labeling applicable to Customer’s Products.

21. Conflicts. Conflicts between these Terms and Conditions and a PSA or Fulfillment Contract shall be governed by these Terms and Conditions.

22. Confidentiality. In the performance of or otherwise in connection this Agreement, one party (“Discloser”) may disclose to the other party (“Recipient”) certain confidential information (“Confidential Information”).

A. Confidential Information. Confidential Information means any data or information that is confidential or proprietary to the Discloser and not generally known to the public, whether in tangible or intangible form, in whatever medium provided, whether unmodified or modified by Recipient or its Representatives (as defined herein), whenever and however disclosed, including, but not limited to: 1(i) Product formulas, (ii) these Terms and Conditions, and (iii) employee and customer identity and product information. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information.

B. Non-Confidential Information. Confidential Information shall not include information which: a) was lawfully possessed, as evidenced by the Recipient’s records, by Recipient prior to receiving the Confidential Information from Discloser; (b) becomes rightfully known by Recipient from a third-party source not under an obligation to Discloser to maintain confidentiality; (c) is generally known by the public through no fault of or failure to act by Recipient consistent with its obligations under this Agreement; and (d) is or has been independently developed by employees, consultants or agents of Recipient without violation of the terms of this Agreement, as evidenced by Recipient’s records, and without reference or access to said Confidential Information.

C. Handling of Confidential Information. Recipient will treat Confidential Information as confidential and proprietary of the Discloser and during and after the Term of any Agreement will: (a) use the Confidential Information of the Discloser solely for its performance under an Agreement between the Parties; (b) take suitable precautions to maintain the confidentiality of the Confidential Information of Discloser, but in no event less stringent than measures taken to protect Recipient’s Confidential Information; (c) not disclose or otherwise furnish the Confidential Information to any third party other than employees or independent contractors of Recipient who have a need to know the Confidential Information to perform its obligations under the PSA or Fulfillment Agreement, provided such


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employees or independent contractors are obligated to maintain the confidentiality of the Confidential Information.

D. Compelled Disclosure of Confidential Information. Notwithstanding anything in the foregoing to the contrary, Recipient may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided Recipient promptly notifies, to the extent practicable, Discloser in writing of such demand for disclosure so that Discloser, at its expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information; provided that Recipient will disclose only that portion of the requested Confidential Information that, in the written opinion of its legal counsel, it is required to disclose. Recipient agrees that it shall not oppose and shall cooperate with efforts by, to the extent practicable, Discloser with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if the Discloser is unable to obtain or does not seek a protective order and Recipient is legally requested or required to disclose such Confidential Information, disclosure of such Confidential Information may be made without liability.

E. Return of Confidential Information. Recipient shall immediately return to Discloser, or alternatively, at Discloser’s option destroy, all tangible material embodying any Confidential Information provided hereunder and all notes, summaries, memoranda, drawings, manuals, records, excerpts or other information derived therefrom, and all other documents or materials (“Notes”) (and all copies of any of the foregoing, including “copies” that have been converted to computerized media in the form of image, data, word processing, or other types of files either manually or by image capture) based on or including any Confidential Information, in whatever form of storage or retrieval, upon the earlier of (i) the completion or termination of the dealings between the Parties contemplated hereunder; (ii) the termination of the Service Period; or (iii) at such time as the Discloser may so request; provided however that Recipient may retain such documents as is necessary to enable it to comply with document retention policies mandated by law. Any requested Confidential Information will be promptly returned to Discloser; any Confidential Information requested destroyed will be destroyed, and in both case Recipient will provide written certification stating that all such Confidential Information has been returned or destroyed.

F. Duration of Confidentiality Obligation. The obligation to maintain the confidentiality of an item of Confidential Information shall continue during the term of this Agreement and for three (3) years thereafter, except in the case of Confidential Information that is a trade secret, the duration of confidentiality shall continue until the Confidential Information ceases to be a trade secret.

23. Liability Insurance.

A. 1Customer shall maintain, at its cost, at the beginning of the Service Period and for at least two (2) years following the latest delivery of Products by True Fresh to or on the order of Customer the following insurance: Commercial General Liability of at least $5,000,000 for Bodily Injury, Property Damage and Advertising Injury per occurrence and $5,000,000 General Aggregate, including: Products Liability/Completed Operations limits of at least $5,000,000 for Bodily Injury and Property Damage per


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occurrence and $5,000,000 General Aggregate Coverage and the other provisions identified hereinbelow.

B. Said insurance shall be evidenced by a certificate of insurance or replacement certificate of insurance which includes (a) Additional Insured endorsement CG2015 07/04 or equivalent naming True Fresh, its directors, officers, and employees additionally insureds and providing that such insurance afforded by this policy includes products/completed operations coverage for the benefit of certificate holder, (b) that said insurance shall be primary insurance and that any insurance carried by True Fresh is excess and noncontributing with this insurance, (c) waiver of subrogation endorsement in favor of True Fresh, its directors, officers, and employees and (d) insurance on an occurrence basis; claims made or modified occurrence coverages are not acceptable.

C. Said insurance shall be carried with a California admitted insurance carrier with an A.M. Best rating of A, VIII or better.

D. Said insurance shall provide that the policy cannot be cancelled or reduced in coverages without thirty (30) days advance notice to True Fresh except when Customer has failed to pay premiums in which case True Fresh must receive at least ten (10) business days’ notice of cancellation.

E. Proof of all of the foregoing must be provided to True Fresh. The certificate of insurance alone will not be accepted. All of said proof must be provided to True Fresh prior to the commencement of the Parties doing business.

F. Failure of True Fresh to demand such certificate or other evidence of full compliance with the insurance requirements stated herein or failure of True Fresh to identify a deficiency from documentation that is provided shall not be construed as a waiver of Customer's obligation to maintain such insurance. By requiring insurance herein, True Fresh does not represent that coverage and limits will necessarily be adequate to protect Customer and such coverage and limits shall not be deemed as a limitation on Customer's liability under indemnities granted to True Fresh under these Terms and Condition or otherwise.

24. Recall Insurance.

A. Customer will maintain during the Service Period and for one (1) year thereafter Products recall insurance with the following provisions: (a) coverage of at least $2,500,000 per each insured event, (b) self-insured retention of no more than $100,000, (c) such other provisions as are reasonably approved by True Fresh. Said insurance shall be carried with a California admitted insurance carrier with an A.M. Best rating of A, VIII or better.

B. Proof of the foregoing must be provided to True Fresh.

C. Failure of True Fresh to demand evidence of full compliance with the recall insurance requirements stated herein or failure of True Fresh to identify a deficiency from documentation that is provided shall not be construed as a waiver of Customer’s obligation to maintain such insurance. By requiring recall insurance herein, True Fresh does not represent that coverage and limits will necessarily be adequate to protect Customer and such coverage and limits shall not be deemed as a limitation on


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Customer’s liability under indemnities granted to True Fresh under these Terms and Condition or otherwise.

25. Independent Contractor. The Parties agree that True Fresh will be providing services as an independent contractor and any employees of True Fresh involved in providing the services shall remain only employed with True Fresh and not Customer. Under no circumstances shall the contractual relationship between the Parties be deemed or construed as one of agency, joint venture, employment or otherwise. The PSA or Fulfillment Contract gives neither party any right to act as a representative or agent of the other party or any authority to incur or create any obligation in the name of or on behalf of the other party.

26. Force Majeure. Neither party shall be liable for delay or failure to perform under the PSA or Fulfillment Contract, other than the payment of money, that results from any occurrence or event that could not have been reasonably avoided including, without limitation, accident, action of the elements, act of God, civil unrest, enemy action, terrorism, epidemic, explosion, fire, flood, insurrection, strike, lockout or other labor trouble or shortage, natural catastrophe, riot, unavailability or shortage of material, equipment, utilities or transportation, war, act, demand or requirement of law or of the Government of the United States or any other competent governmental authority, or any other similar cause beyond such party’s control, if the party in default makes reasonable efforts to remove or overcome the effects of such occurrence or event. If a party believes that force majeure conditions relieve it of an obligation of performance, it shall promptly notify the other party in writing of such fact.

27. Notices. 1Any notice, demand, request, consent, or approval (hereinafter referred to in this paragraph as “communication”) required or permitted to be given by one party to another under the PSA or Fulfillment Contract or these Terms and Conditions or by law shall be written and shall be (a) delivered personally or (b) sent by prepaid, first class mail, addressed to the intended recipient at the address set forth below, or (c) transmitted by e-mail (with receipt confirmed) to the electronic internet address indicated below. Personal delivery under item “(a)” in the preceding sentence includes delivery by overnight services such as Federal Express and DHL. Said communication shall be deemed received (a) at the time of delivery thereof during normal business hours in the case of personal delivery or e-mail transmission, (b) seventy-two (72) hours after the postmark thereon in the case of service by mail, and (c) at 9:00 am on the next business day in the case of electronic delivery other than during normal business hours in the location of the recipient. For a communication to be effective for purposes hereof, it must be received both by both the party to whom it is directed and to the recipient listed for the delivery of a contemporaneous copy of the communication. The address for notices to be given hereunder may be changed by notice to all other parties hereto.

To Customer: To the chief executive officer or president or general manager or an LLC manager via e-mail to said person at the address previously utilized by the Parties and at the street address of the Customer’s principal place of business


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To True Fresh: Grant Lorsung1True Fresh HPP, LLC6535 Cabellero BoulevardBuena Park, CA [email protected]

With a contemporaneous copy to:

Chris Dedic2260 University DriveNewport Beach, CA 92660E-mail: [email protected]

George SalmasThe Food Lawyers1880 Century Park EastSuite 611Los Angeles, CA 90067E-mail: [email protected]

28. Miscellaneous.

A. Governing Law and Jurisdiction. The Agreement and these Terms and Conditions shall be construed according to California law without regard to its conflict of laws principles. Each party stipulates that any dispute shall be commenced exclusively in, and consents to the jurisdiction and venue of, either the Superior Court of the State of California located in Orange County, California or the United States District Court, Southern Division of the Central District of California.

B. Severability. A ruling by any court that one or more of the provisions contained in the Fulfillment Agreement or or PSA or these Terms and Conditions is invalid, illegal or unenforceable shall not affect any other provision so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Thereafter, the Fulfillment Contract or PSA and in either case these Terms and Conditions shall be construed as if the invalid, illegal, or unenforceable provision had been amended so as to make it valid and enforceable as originally contemplated to the greatest extent possible.

C. Headings. The section and subsection headings have been included for convenience only, are not part of the Parties’ agreement and shall not be taken as an interpretation of any provision.

D. Binding Effect . These Terms and Conditions are binding upon, shall inure to the benefit of the Parties and their respective successors, and permitted assigns. True Fresh and Customer specifically acknowledge and agree that the Fulfillment Contract or PSA and in either case these Terms and Conditions govern and apply to the Fulfillment Contract or PSA relationship between True Fresh and Customer and not to any other relationship between Customer and True Fresh or any subsidiary or affiliate of True Fresh. The Fulfillment Contract, PSA and these Terms and Conditions are not intended and shall not be construed to confer upon or to give any person, other than the Parties hereto, any rights


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or remedies.

E. Amendments, Modifications and Conflicts. These Terms and Conditions and the terms of this Agreement may be amended, waived, changed, modified or discharged (“modify”) only by written agreement among the Parties expressly stating an intention to modify. In the event of a conflict between the provision stated in the Fulfillment Contract or PSA and in either case these Terms and Conditions, these Terms and Conditions shall govern. No forms or correspondence originating from either party, including without limitation purchase orders or invoices, shall operate to vary the provisions of these Terms and Conditions or any Agreement.

F. Waiver. Failure to insist upon strict compliance with any of these Terms and Conditions or the Fulfillment Contract or PSA shall not be deemed a waiver in the future of that term, covenant or condition or of any other term, covenant or condition. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time.

G. Rights and Remedies Cumulative. The rights and remedies provided by these Terms and Conditions and the Fulfillment Contract or PSA are cumulative and the use of any one right or remedy by any party shall not preclude or waive said party’s right to utilize any or all other remedies. Said rights and remedies are in addition to any other rights the Parties may have under law, statute, ordinance, or otherwise, which are not specifically waived under the provisions hereof.

H. Attorneys’ Fees. In any action, suit or other proceeding based on, arising out of or in any way related to the Fulfillment Contract or PSA or these Terms and Conditions, the prevailing party shall be entitled to recover its attorneys’ fees and costs, including those incurred in any and all appeals.

I. Assignment. These Terms and Conditions shall be binding upon and be for the benefit of the Parties and their respective permitted successors and assigns. Neither party may assign its rights or delegate its duties under the Fulfillment Contract or PSA or these Terms and Conditions without the prior written consent of the other party, provided, that notwithstanding the foregoing, True Fresh may assign this Agreement without such consent to the purchaser of all or substantially all of True Fresh’s business and assets, and may otherwise assign this Agreement by operation of law to any successor of True Fresh due to merger or reorganization.

J. Entire Agreement. The Fulfillment Contract or the PSA and these Terms and Conditions constitute the entire agreement between the Parties respecting the Fulfillment relationship or HPP Services relationship, and there are no representations, warranties, covenants or obligations except as set forth herein and the in the Fulfillment Contract or PSA which supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, written or oral, of the Parties, relating to the Fulfillment services or HPP services.

End of Standard Terms and Conditions of Doing Business


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True Fresh 6535 Caballero Blvd, Buena Park, CA 90620 P 949 ...€¦ · Web viewTrue Fresh 6535...

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