Terms & Conditions of Sale (“T&Cs”) of Creamy Creation LLC.
General Terms and Conditions – Creamy Creation LLC
1. Scope of Application
a) All orders placed with Creamy Creation LLC (“CC”) by a counterparty (“Purchaser”), offers made by CC to a Purchaser for the sale and delivery of goods and/or related services, the relationship between the parties in respect thereto, and/or any agreement for the sale of goods and/or related services by CC to Purchaser (“Agreement”) are governed by and shall be subject exclusively to these General Terms and Conditions (the “Terms”).
b) The written Agreement between the parties consists of these Terms and CC’s written acceptance of and/or invoice for any offer to purchase from Purchaser. The Agreement supersedes all prior understandings, written or verbal.
c) No conflict between these Terms and any orders or other documents is intended; however, in the event of a conflict, these Terms shall control. The applicability of any terms and/or conditions of the Purchaser is hereby expressly rejected.
d) Neither the Agreement nor these Terms shall be modified except upon a mutually acknowledged writing.
Orders placed by Purchaser are non-binding until formally accepted in writing by CC (email shall suffice). Orders are subject to modification by CC. Once accepted by CC, orders are deemed to be irrevocable. CC will use commercially reasonable efforts to fulfill all orders it accepts.
a) All statements of CC concerning quantities, measurements, weights and other indications related to goods are made with the greatest possible care. The parties acknowledge that the products shall conform with agreed upon applicable specifications, but the goods may not conform exactly to any samples provided to Purchaser in advance.
b) Purchaser shall verify that the goods ordered and the accompanying documentation, packaging, labeling and/or other information meet the governmental requirements necessary in the country of destination and shall inform CC with respect thereto in writing.
a) Prices are quoted in accordance with applicable Incoterms and may not include VAT, import and export duties, excise duties and other taxes or levies imposed or charged in relation to goods and their transportation costs. Unless expressly agreed otherwise, all such taxes, levies and/or duties shall be Purchaser’s responsibility.
b) Unless otherwise agreed, CC’s current price list at the time of delivery shall apply to an order. CC reserves the right to adjust the prices, or change the price list in its sole discretion. CC shall notify Purchaser of any price adjustments in writing as soon as possible before the effective date of such adjustment or change. In the event Purchase does not agree to the proposed price adjustment or change to the price list, CC shall have the right to terminate the order with immediate effect and without liability of any kind to Purchaser.
5. Delivery and Acceptance
a) CC has the right to engage and delegate rights and/or obligations to third parties with respect to performance by CC of its obligations under the Agreement and these Terms.
b) Unless the parties expressly agree on a different method of delivery, deliveries are Free Carrier (FCA) per the most recent Incoterms. CC reserves the right to deliver in batches or partial orders. For the purpose of these Terms, each batch or partial delivery is deemed to be a separate delivery. The goods must be accepted in full by or on behalf of Purchaser at the time of delivery unless the goods exhibit visible damage or non-conformance with applicable requirements. Purchaser is responsible for the provision of sufficient loading and unloading facilities for fast unloading.
c) If Purchaser fails to accept the goods, it will be held in default without notice of default being required. In the case of non-acceptance of goods by Purchaser, the risk of loss shall pass to Purchaser when CC offers the goods for delivery. Any costs associated with such non-acceptance will be the responsibility of Purchaser.
6. Packaging Materials
a) The packaging materials, if not intended for once-only use, including but not limited to pallets, crates, containers and other transport resources, remain the property of CC even if Purchaser has paid a deposit for them.
b) Purchaser must return the packaging materials, sorted and cleaned, as soon as possible, but at latest, by the next CC delivery to Purchaser.
7. Transfer of Risk and Ownership
a) Risk of loss or damage shall transfer to Purchaser upon delivery of the goods in accordance with these Terms.
b) Title of the goods will remain with CC until Purchaser pays the purchase price in full.
c) For as long as title of the delivered goods is reserved by CC, Purchaser does not have the right to dispose of them other than in the ordinary course of business, or to establish any liens on them.
8. Intellectual Property Rights
All intellectual property rights in and/or related to delivered goods and/or rendered services and/or any know-how related thereto are owned by and shall remain the property of CC and are not transferred to Purchaser under the Agreement or these Terms or any contract with CC, even if the goods, services and/or related know-how have been designed, developed or compiled specifically for Purchaser.
Each party agrees to keep confidential and/or proprietary information received or obtained by it from the other party confidential, and not to use it for any purposes other than executing the transaction regarding the subject matter hereof.
10. Force Majeure
CC will not be liable for any delay or failure in performing its obligations under the Agreement or these Terms because of circumstances beyond its reasonable control (“Force Majeure Events”), such as, without limitation, acts of god, war, riot, flood, industrial or labor disputes, acts of state or government action, animal diseases, and/or failure or delay on the part of subcontractors, suppliers or carriers. Force Majeure Events will extend CC’s time for performing by the length of the Force Majeure Events.
11. Sale and Delivery to Third Parties
Purchaser’s sale, delivery or other form of provision of the goods to third parties shall be in accordance with all applicable legal and regulatory requirements, including packaging and labeling requirements.
To the fullest extent permissible under applicable law, Purchaser agrees to defend, indemnify and hold harmless CC (and its affiliates, parents, owners, members, shareholders, officers, employees and agents) (together with CC, the “Indemnitees”) from any and all direct or indirect claims, damages and liabilities arising from any of the following: (a) breach of the Agreement or these Terms by Purchaser; (b) personal injury or property damage caused by or in connection with Purchaser’s use of the goods; and (c) infringement of patents, trademarks and/or copyrights caused by or in connection with Purchaser’s use of the goods. Notwithstanding the foregoing or any other provision of these Terms, however, Purchaser shall only be responsible to indemnify the Indemnitees to the extent of Purchaser’s own negligence, breach or willful misconduct, and in no event will Purchaser be responsible to indemnify the Indemnitees for their own negligence, breach or willful misconduct.
13. Defective Products and Claims
a) Purchaser’s exclusive remedy and CC’s sole liability in connection with all goods supplied will be replacement of damaged or defective goods, at CC’s discretion. In order for CC to replace goods, the defect must be confirmed in writing by CC.
b) Purchaser agrees to inspect and count the goods upon delivery, and advise CC as soon possible, but in any event no later than ten (10) days after delivery, of any damage to or shortages of goods. If Purchaser fails to do so, Purchaser will be responsible for any damage or shortages. Any complaints shall contain an accurate description of the failure. The complaints shall not relieve Purchaser from its payment obligations.
c) Claims concerning hidden or latent defects shall be made within ten (10) days after Purchaser could have reasonably discovered them, but in no event later than two (2) months after delivery. If the goods have an expiry date and the defect results in a shorter shelf life of the goods than the indicated expiry date, a claim may be made until the expiry date has elapsed.
d) All rights of Purchaser to submit a claim shall be null and void if: (i) the goods have been transported, handled, used, processed or stored by or for Purchaser incorrectly or contrary to the instructions given by or on behalf of CC; (ii) the goods have been processed by or on behalf of Purchaser; or (iii) Purchaser acts contrary to the provisions of Article 11 (Sale and Delivery to Third Parties) herein.
a) CC shall not be liable to Purchaser under any circumstances for lost profits, loss of business, loss of goodwill, loss of use, increased cost of working, damage resulting from late delivery or any special, indirect, consequential or punitive damages or losses, whether in contract or tort, even if it has been advised about the possibility of those damages.
b) In all cases where CC is required to pay compensation for damages, such compensation shall not exceed the lower of the amount paid by Purchaser for the goods or USD 1,000,000.
15. Product Recall
CC may notify and require Purchaser to remove from the market any of CC’s goods deemed by CC to be defective, or in which a defect threatens to manifest itself, within a reasonable period of time stipulated by CC (product recall). Purchaser shall promptly comply with this obligation and such instructions.
16. Payment and Security
a) Payment shall be made by Purchaser, without any discount, at the agreed time or, if no time has been agreed, net thirty (30) days from the invoice date in U.S. dollars. CC reserves the right at all times to demand full or partial advance payment and/or otherwise require security for payment in the form of a bank or group guarantee.
b) Purchaser grants CC a purchase money security interest in the goods purchased and any proceeds therefrom until all trade accounts are paid in full. CC may perfect its security interest. The goods shall remain personal property even if attached to realty or other property, until the purchase price is fully paid.
c) If Purchaser fails to remit any due payment, all outstanding amounts shall become immediately due and payable, and Purchaser shall be deemed to be in default with regard to all payments with immediate effect, without notice of default being required. Purchaser shall pay all costs related to or resulting from CC’s collection of any payments after default, including without limitation reasonable attorneys’ fees and litigation costs.
d) Purchaser relinquishes all rights or claims to set off amounts owed by CC against amounts owed by Purchaser under this Agreement.
CC shall be entitled to suspend its performance, or to terminate its relationship with Purchaser, and/or to terminate this Agreement by written notice to Purchaser, in full or in part and with immediate effect, if:
i. Purchaser fails to comply with one or more of its obligations under the Agreement or these Terms or to meet them on time or in full, or in case it is established that full compliance will be impossible;
ii. Purchaser is declared bankrupt or its bankruptcy or (provisional) suspension of payment is obliged for or granted, if its business is liquidated or discontinued or it otherwise proves to be insolvent; and/or
iii. In the opinion of CC, major changes are made to the direct or indirect ownership or control ratios of the business of Purchaser.
a) Any failure or delay on the part of either party in exercising any right or remedy hereunder shall not be a waiver of such right or remedy or any other provision of the Agreement or these Terms.
b) Any provision of the Agreement or these Terms that contemplates performance or observance subsequent to termination or expiration of the Agreement shall survive termination or expiration of the Agreement and continue in full force and effect.
c) The parties each warrant that agreeing to the Agreement and these Terms will not breach any other agreement.
d) Each party is acting as an independent contractor and/or as arms-length parties. Nothing in the Agreement or these Terms shall be construed as any other arrangement. Neither party has the authority to enter into any agreement, or bind or make any warranty or representation on behalf of the other party except as and to the extent provided by the Agreement and these Terms.
e) Each party and counsel for each party has reviewed these Terms, and the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of these Terms.
f) In the event that one or more of the provisions of these Terms is determined to be illegal, unlawful, void or unenforceable, the remainder of the Terms shall not be affected thereby and each remaining provision or portion thereof shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law. The unenforceability of any provision of these Terms in any competent jurisdiction shall not affect the enforceability of any other provision(s) or of such provision in any other competent jurisdiction.
19. Applicable Law and Jurisdiction
The Agreement and these Terms, as well as any disputes arising therefrom, will be governed by New York law without regard to its rules regarding conflicts or choice of laws. Any disputes and claims that the parties cannot amicably resolve shall be litigated only in competent courts in Bergen County, New Jersey. Purchaser irrevocably consents to personal jurisdiction of such courts for purposes of any such litigation.