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Terms & Conditions

ADDICTIVE BRANDS, INC.
TERMS AND CONDITIONS OF SALE

APPLICATION: Any party placing an order with Addictive Brands, Inc. (“Buyer”) including its subsidiaries and affiliates (collectively, “Addictive”, or “Company”) to purchase products or services provided by Addictive (“Products” or “Services”) acknowledges and accepts these Terms and Condition of Sale (“Standard Terms”) by placing the order. All sales are expressly conditioned on Buyer’s agreement to these Standard Terms. Addictive rejects any additional or different terms proposed by Buyer. No Buyer form nor course of performance, course of dealing, or usage of trade shall modify or waive any of these Standard Terms. 

In the event these Standard Terms conflict with any other writing between Company and Buyer, these Standard Terms will control unless the conflicting writing is executed by an authorized Company representative and it expressly states that that writing supersedes these Standard Terms.

PRODUCTS AND SERVICES:  Products and Services available for purchase from Company are listed on their websites and other marketing and promotional materials provided by Company.

PRICES: Pricing for Products and Services are available either through Company websites or relevant price lists provided by Company. Company reserves the right to modify its pricing at any time without prior notice. Prices on Company websites or price lists may not reflect the most up to date pricing. Sales Orders and Invoices will reflect pricing in effect at the time a relevant purchase order is accepted by Company.

ORDERS: The parties acknowledge that Buyer’s placing a Purchase Order with Company will serve as an offer to purchase Products from Company and Company’s issuing of a Sales Order will serve as Company’s acceptance of Buyer’s offer. Buyer agrees that each accepted Purchase Order will be governed exclusively by any terms in the Sales Order and these Standard Terms, and that the Sales Order and these Standard Terms constitute the entire agreement and understanding between Buyer and Company with respect to the sale of the Products and supersede any other terms and conditions (including but not limited to Buyer’s standard terms and conditions of purchase and/or Buyer’s supply policies and procedures, or any additional term proposed by Buyer, whether before or after acceptance of a Sales Order). Notwithstanding the previous sentence, if Buyer and Company have executed a separate agreement regarding the purchase of Products that by its language expressly supersedes these Standard Terms (the “Agreement”) and there is a conflict between the terms of the Agreement, these Standard Terms, or the terms in the Sales Order, the documents will control in this order of priority: the Agreement, the Sales Order, these Standard Terms. 

Unless expressly stated in a Sales Order, no charges notified by Buyer to Company (including, but not limited to, marketing charges, customer complaint charges and handling fees, administrative errors charges, wastage charges, transport charges, tray and cardboard charges, ethical trading charges, packaging charges, and product withdrawal and/or recall charges) shall apply to Company and Buyer shall be responsible for bearing any such costs.

PAYMENT: Buyer shall pay each invoice in full without deduction, set off, or counterclaim within thirty (30) days of receipt of the invoice. Buyer shall notify Company within ninety (90) days of receiving an invoice of any dispute, including a reasonably detailed description and documentation of the dispute. Failure to dispute an invoice within these ninety (90) days will be considered acceptance and Buyer waives its right to later dispute the invoice.

Company reserves the right to charge interest on overdue amounts at the lesser rate of 1.5% per month or the highest rate permitted by law, plus any costs incurred in the recovery of overdue amounts.

DELIVERY: All deliveries shall be made at Company’s facilities unless stated otherwise in a Sales Order. Title to and risk of loss of Products pass to Buyer when Products are loaded onto Buyer’s carrier at Company’s facilities. If delivery is made by vehicles owned or hired on behalf of Company, title and risk of loss pass to Buyer on delivery at Buyer’s address specified in the Sales Order. 

Company will not be liable for any late delivery, non-delivery or variation in quantities delivered, and in particular shall be entitled to adjust quantities delivered where, for whatever reason, insufficient stock is available to fulfill the relevant Sales Order. Company may ship and invoice a reasonable excess or shortage of quantities stated in Sales Orders based on production lot sizes and variability and inventory shortfalls.

Company may, where appropriate, deliver and invoice any Sales Order in multiple shipments.

Any failure by Buyer to unload and accept the Products delivered to the location specified in a Sales Order and/or failure to provide any instructions, documents, licenses, consents or authorization reasonably needed to enable the Products to be delivered on the due date will entitle Company, at Company’s sole discretion, to remove and store the Products at the expense and risk of Buyer and to charge Buyer the cost of haulage both to and from the delivery address requested and any other costs associated with such failure on the part of Buyer.

On delivery Buyer will, at its own risk, unload each shipment and check the number of cases and type of the Products delivered and sign the delivery note or other evidence of receipt acceptable to Company which shall be conclusive evidence as to the quantity and description of Products delivered.

NONCONFORMITY, DAMAGE, SHORTAGE OR LOSS IN TRANSIT: No claim for defective or damaged Products, shortages, or Products not otherwise in accordance with the Sales Order (“Claim”) shall be valid unless Buyer provides Company with notice via email to orders@addictivecoffee.com within four (4) business days of delivery for patent defects and within four (4) business days from Buyer’s actual or constructive knowledge of a latent defect which in no case shall exceed one hundred and eighty (180) days from delivery. All Claims must include a detailed description of the alleged defect or damage to the Products, the nature of the alleged shortage, or the circumstances that are allegedly not in accordance with the Sales Order along with documentary evidence supporting the Claim, including photographs where relevant. If no Claim is provided to Company within such four (4) business days or one hundred and eighty (180) days as appropriate, the shipment will be deemed conforming and Buyer waives its right to later make any Claims for the shipment at issue. In the event Buyer has indicated on the delivery note that the Products have been inspected, no claims for damages, patent defects, shortages, or similar claims will be accepted. 

If a Claim arises from a shipment delivered by a carrier that was arranged on behalf of Company, and Company in its sole discretion chooses to file a claim with the carrier, Buyer shall provide all cooperation and assistance Company reasonably requests to support Company’s claim.

STORAGE AND RESALE OF PRODUCTS: Buyer shall comply with all laws, regulations, codes of practice, and guidance of all governmental, regulatory, and other competent bodies relating to the sale and storage of the Products. Buyer warrants that the Products will: (a) be stored in reasonable conditions considering the product at issue and not in extreme temperatures or high humidity; (b) be stored in a dry environment; and (c) be stored in accordance with Good Manufacturing Practices, including, but not limited to, with respect to cleanliness, and pest control. In addition, Buyer shall store, transport, and offer the Products for sale strictly in accordance with any instructions of Company, including any instruction marked on the Products, regarding latest date for sale.

Buyer shall indemnify, defend, and hold Company harmless against all losses, costs, expenses (including legal costs and expenses), damages, claims, demands, proceedings and judgments whatsoever and howsoever caused as a result of any breach of this Section, Storage and Resale of Products. Company shall not be liable for any damage or loss that results, in whole or in part, from any act or omission of Buyer, or that occurs after the risk of Product loss passes to Buyer.

WARRANTY: LIMITATION OF LIABILITY: EXCEPT AS PROHIBITED BY LAW, COMPANY’S LIABILITY FOR DEFECTIVE, DAMAGED, OR NONCONFORMING PRODUCTS IS LIMITED TO REPLACING SUCH PRODUCTS OR, AT COMPANY’S ELECTION, REFUNDING THE PRICE PAID BY BUYER FOR SUCH PRODUCTS. Buyer will return the refunded Product to Company, dispose of it at Company’s direction, or make it available to Company for collection as directed by Company.

COMPANY’S TOTAL LIABILITY TO BUYER IN RESPECT OF ALL LOSSES ARISING UNDER OR IN CONNECTION WITH THESE STANDARD TERMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL NOT EXCEED THE PRICE OF THE PRODUCTS PAID BY BUYER IN RELATION TO WHICH SUCH LIABILITY HAS ARISEN, OR IN THE CASE OF SERVICES, THE TOTAL AMOUNT PAID BY BUYER TO COMPANY FOR SERVICES PROVIDED DURING THE YEAR PRECEDING THE LOSS.

IN NO EVENT SHALL COMPANY BE LIABLE TO BUYER, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION. STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA. REPORTS, DOCUMENTATION OR SECURITY OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH COMPANY’S PERFORMANCE UNDER THESE STANDARD TERMS. NO ACTION ARISING OUT OF OR IN CONNECTION WITH THESE STANDARD TERMS MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE EARLIER OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT OR THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION. 

EXCEPT AS EXPLICITLY STATED IN THESE STANDARD TERMS, ALL REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED.

INDEMNIFICATION: WITH REGARD TO CLAIMS BY THIRD PARTIES, EACH PARTY SHALL INDEMNIFY THE OTHER TO THE EXTENT THE MISCONDUCT OR NEGLIGENCE OF THE INDEMNIFYING PARTY CAUSES LIABILITY TO THE OTHER PARTY. 

FORCE MAJEURE: Company shall not be in breach of these Standard Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Standard Terms if such delay or failure arises as a result of the occurrence of an event beyond its reasonable control. In such circumstances, Company shall be entitled to a reasonable extension of the time for performing such obligations. If Company is of the opinion that supply and delivery of the goods outlined in the Sales Order is rendered impracticable, Company shall be entitled to terminate that Sales Order by written notice to Buyer.

INTELLECTUAL PROPERTY: Nothing herein grants to Buyer any rights to Company’s intellectual property whether trademark, trade secret, or otherwise. Any additional intellectual property rights or value created or developed in Company’s intellectual property as a result of the relationship between the parties shall be for the benefit of, and enure exclusively to, Company. 

CONFIDENTIALITY: Buyer shall keep in confidence and shall not, without securing the prior written consent of Company, originate any publicity (including any news release or public announcement) or disclose to any third party information relating to: Company’s purchasing systems or practices, including, without limitation, descriptions of purchased items, quantities purchased and prices paid; information disclosed by Company verbally or in writing or garnered by Buyer through observation of Company’s facilities; the nature of the services performed and deliverables and Products delivered under the Sales Order; and any proprietary or confidential data, designs, commercial strategies, business models, or other information supplied by, or on behalf of, Company.

SEVERABILITY: If any part, term or provision of these Standard Terms or Sales Order is held to be illegal, in conflict with any law or otherwise invalid by a court of competent jurisdiction, the remaining portion or portions shall be considered severable and not be affected by such determination, and the rights and obligations of the parties shall be construed and enforced as if the Standard Terms or Sales Order did not contain the particular part, term or provisions held to be illegal or invalid.

GOVERNING LAW: The Sales Orders and these Standard Terms shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of laws principles. The parties agree to submit to the jurisdiction of the state and federal courts located in San Francisco, California to resolve any disputes regarding the interpretation, enforcement, or subject matter of the Sales Orders and these Standard Terms. In the event of any litigation, arbitration, or other proceeding or dispute (other than mediation), the prevailing party shall be entitled, in addition to any other damages assessed, to its reasonable attorneys’ fees and all other reasonable costs and expenses incurred in connection with settling or resolving such dispute.