These Online Sale Terms and Conditions shall establish the terms and conditions under which Banyan Food Service, (“Seller”) offers for sale to online customers, (“Customer”) the products sold by Seller on its website. ANY ACCEPTANCE OF THIS OFFER IS LIMITED TO ACCEPTANCE OF THE EXPRESS TERMS AND CONDITIONS CONTAINED HEREIN. ANY PREVIOUS OFFERS MADE BY CUSTOMER, WHETHER WRITTEN OR VERBAL, NOT ALREADY EXPRESSLY ACCEPTED BY SELLER IN WRITING ARE HEREBY OBJECTED TO AND REJECTED. IN NO EVENT SHALL THIS OFFER BE DEEMED AN ACCEPTANCE OF ANY PRIOR OFFER BY CUSTOMER. THE TERMS AND CONDITIONS BELOW SHALL SUPERSEDE ANY PROVISIONS, TERMS AND CONDITIONS CONTAINED ON ANY PURCHASE ORDER, CONFIRMATION, OR OTHER WRITING THE CUSTOMER MAY GIVE OR RECEIVE, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED EXCLUSIVELY BY THE PROVISIONS, TERMS AND CONDITIONS HEREOF.
Quotations and Prices; Other Charges. All prices stated on our website are in United States dollars. Customer shall place online orders to Seller to purchase goods from Seller hereunder. Unless otherwise expressly provided in writing by Seller, all prices quoted or referred to by Seller do not include any charges for packaging, freight, transportation, custom duties, tariffs, import, export or other taxes, insurance, or any other charges relating to the transportation and shipment to or use by Customer of the products sold hereunder. Such charges and/or taxes shall be the sole responsibility of and shall be borne exclusively by Customer. Wherever applicable, any such charges and/or taxes will be added to the invoice as a separate charge to be paid by Customer upon checkout. If Seller is required to pay any such charges and/or taxes, Customer agrees to reimburse Seller for any amounts so paid upon demand.
Payment Terms. The purchase price and applicable charges and taxes shall be payable in full by Customer upon placing an order online. All payments due to Seller hereunder shall be paid in United States dollars in accordance with these Terms and Conditions. Seller currently accepts payments made with the following major credit cards issued in the United States: Visa®, MasterCard®, Discover® and American Express®. Seller also accepts payments made by PayPal®.
Validating Customer’s Order. Information provided to Seller when an order is placed, such as billing/shipping address and phone number, will be used to verify Customer’s payment. Incorrect information will result in a delay in processing and may impact the final shipping date of the order. Orders in which sufficient information cannot be verified may be cancelled; however, Seller reserves the right to cancel any order at any time without giving any reason. Seller’s issuance of an order confirmation, whether electronic or other form, does not signify Seller’s acceptance of the order, nor does it constitute confirmation of Seller’s offer to sell. Seller reserves the right at any time after receipt of an order to accept or decline the order and/or to limit quantities on any order, without giving any reason. Seller reserves the right to limit or prohibit sales to resellers.
Shipment and Delivery. This offer is made with the understanding that it is subject to inventory availability. All shipping and handling expenses are the sole responsibility of Customer. Delivery dates are estimates only and are based on normal shipping conditions (shipping conditions and actual shipping dates may vary). Seller will endeavor to meet all estimated delivery dates indicated on the order confirmation; provided, however, that Seller reserves the right to change any and all such delivery dates subject to Seller’s availability schedule without notice and without liability to Customer. Method and route of shipment are at Seller’s discretion unless Customer chose shipment options other than Seller’s standard shipment with respect thereto. All shipments are made at Customer’s risk. Non-delivery by Seller as to any order shall not be deemed a breach of this Agreement. Any non-delivery shall not relieve Customer from its obligation to accept any subsequent or prior shipment. All shipments shall be packaged in accordance with Seller’s standard and customary packaging practices. Seller retains the right, at its option, to cancel these Terms and Conditions, and any order, in whole or in part, without any resulting liability to Customer or any third party. For additional details about shipping, please see our Shipping Policy, the terms and conditions of which are hereby made a part hereof by reference.
Title and Risk of Loss. Title to and risk of loss and damage for any shipment of goods shall pass to Customer immediately upon deposit of such shipment with a common carrier.
Acceptance; Return. Except as provided in this paragraph, Customer shall accept all goods shipped in accordance with these Terms and Conditions. In order to return a shipment, Customer must contact Seller within thirty (30) days after date of the shipment (each, a “Return Notice”). If no such notice is provided, then Customer shall be deemed to have accepted the shipment of the goods and to have waived any and all claims with respect thereto. No claim of any kind (whether as to delivered goods or for non-delivery of goods, including claims of improper or defective materials and whether arising in tort or contract) shall be greater in amount than the purchase price of the goods in respect of which such damages are claimed. Upon receipt of a Return Notice reasonably acceptable to Seller, at its sole discretion, Seller shall issue a Return Merchandise Authorization (RMA) number to Customer. In no case shall Customer return goods without first obtaining an RMA number. Returned goods must be delivered to Seller, in their original packaging and be accompanied by Customer’s RMA number. Customer must prepay shipping charges and insure the shipment or accept the risk if the goods are lost or damaged in shipment. Refunds or credits do not include original shipping and handling charges. For additional details about returns, please see our Return Policy, the terms and conditions of which are hereby made a part hereof by reference.
Cancelling an Order. Seller will accept cancellation of an order that has not yet shipped at Customer’s request and cancel or refund any charges that were posted for the order. Customer shall be responsible for round trip shipping costs on any order that has been shipped prior to cancellation, that is refused at time of delivery, or that is shipped in good faith but returned to Seller due to incorrect or incomplete shipping information provided by Customer.
No Warranties. SELLER HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ALL GOODS SOLD HEREUNDER.
Limitation of Liability. SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUES, PROFITS, OR BUSINESS OF CUSTOMER OR ITS CUSTOMERS, AGENTS, AND DISTRIBUTORS, RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH, ANY SALE, MANUFACTURE, DISTRIBUTION OR ANY USE OF ANY GOODS OR FOR ANY FAILURE OF SUPPLY OF ANY GOODS FOR ANY REASON, WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO ANY DAMAGES RELATED TO GOODS PURCHASED AND SOLD HEREUNDER.
Indemnification. Customer shall indemnify, defend, and hold Seller harmless from and against any and all loss, cost, liability, and expense (including, without limitation, reasonable attorneys’ fees and costs) incurred and/or paid by Seller resulting from or arising out of or in connection with (a) any representation or warranty made to any third party by Customer, its affiliates, agents, distributors, or employees which is not expressly authorized by Seller in writing and (b) any claims asserted or actions filed against Seller by a third party, including claims for personal injury or property damage, except if liability for such claims or actions arises from the willful misconduct of Seller.
Force Majeure. Except as otherwise expressly set forth herein, Seller shall not be liable for any delay or for any consequence of any delay in the delivery of any goods if such delay shall be due to acts of God, acts of terrorism, acts of a public enemy, changes in law, wars, floods, fires, storms, strikes, lockouts, delivery of nonconforming or defective material, supplies, or equipment, significant interruptions of transportation, freight embargoes or failures, exhaustion or unavailability on the open market or delays in delivery of material, supplies, equipment, or services necessary for the performance of any provision hereof, or the happening of any material and reasonably unforeseeable act, misfortune, or casualty by which performance hereunder is delayed or prevented; provided, however, that Seller will use all commercially reasonable efforts to remedy the situation, except that nothing contained herein shall require Seller to make settlement of any labor dispute on terms unacceptable to it. If any such delay occurs, then (unless the cause thereof shall frustrate or render impossible or illegal the performance under these Terms and Conditions or shall otherwise discharge the same), Seller’s period for performing its obligations shall be extended by such period (not limited to the length of the delay) as it may reasonably require to complete the performance of its obligation.
Severability. If any part of these Terms and Conditions shall be held unenforceable, the remainder hereof shall nevertheless remain in full force and effect and, to the extent permissible under applicable law, such unenforceable provision or provisions shall be deemed revised to the minimum extent possible to permit enforcement of such provision on terms as near as possible to such provision as originally drafted.
Relationship of the Parties. Seller and Customer are independent contractors under this agreement. Nothing contained in this agreement is intended nor is to be construed so as to constitute the parties as partners or joint venturers with respect to this agreement. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party to any other contract, agreement or undertaking with any third party.
Governing Law; Forum; Enforcement. These Terms and Conditions and any disputes between the parties arising in connection with this the agreement resulting from Customer’s acceptance hereof shall be governed by and interpreted in accordance with the laws of the State of Ohio as if the agreement was performed wholly within the State of Ohio and without regard to its conflict of law principles. All disputes arising out of this agreement shall be resolved by a court of competent jurisdiction in the State of Ohio and both parties hereby (i) submit to the exclusive jurisdiction of the courts of the State of Ohio and the Federal District Court for the District of Ohio, and (ii) irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any such dispute, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the dispute is brought in an inconvenient forum, that the venue of the dispute is improper, or that these Terms and Conditions or the transactions contemplated hereby may not be enforced in or by any of the above-named courts. Each party hereto agrees that service of process in any dispute arising out of or relating to this Agreement shall be properly served or delivered if delivered by express mail or by registered or certified mail, postage prepaid, to each party’s provided shipping address. Seller and Customer hereby waive and exclude the application of the U.N. Convention on Contracts for the International Sale of Goods in the interpretation and enforcement of this agreement. In the event Seller takes or maintains any action to enforce its rights hereunder and prevails thereafter, Customer shall reimburse Seller for its reasonable costs and expenses incurred, including, without limitation, reasonable attorneys’ fees and costs.
Compliance with Laws. Customer shall comply with all laws, rules, regulations, and other requirements of local, state, and federal governments in connection with its performance hereunder. Customer shall obtain and supply, at Customer’s sole cost and expense, any required export or import licenses and any other required permits, licenses, approvals, and similar items.
Entire Agreement; Modification; Waiver. These Terms and Conditions contain the entire agreement of the parties regarding the online purchase of goods by Customer and supersede all prior agreements, understandings, and negotiations regarding the same. Seller reserves its right to change these Terms and Conditions at any time and from time to time. Any waiver of strict compliance with the provisions of these Terms and Conditions shall not be deemed a waiver of Seller’s rights, privileges, claims, or remedies nor of Seller’s right to insist on strict compliance thereafter.
Customer Service. All inquiries regarding these Terms and Conditions and/or placing an order online should be directed to: email@example.com.