Terms and Conditions

Terms and Conditions for the Sale of Goods and THE PERFORMANCE OF SERVICES BY FRUIT GROWERS SUPPLY COMPANY

  1. Applicability.
    • These Terms and Conditions for the Sale of Goods and the Performance of Services (these “Terms and Conditions“) govern the sale of goods (“Goods“) and the performance of services (“Services“) by Fruit Growers Supply Company, and are applicable to, and deemed incorporated into, any credit application, quotation, sales order, customer purchase order, purchase and supply agreement, services agreement or similar document (each, an “Order”), whether or not expressly incorporated into such document, between Fruit Growers and a buyer of such Goods or Services (a “Buyer”). These Terms and Conditions and any related Order constitute the full and complete understanding and agreement of the parties relating to the subject matter hereof and thereof and supersede all prior orcontemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Fruit Growers’ fulfillment of an Order is expressly limited to, and expressly made conditional on, Buyer’s acceptance of these Terms and Conditions. Buyer’s acceptance of the Goods or Services shall be deemed an acceptance of these Terms and Conditions and shall supersede, nullify and void any other terms, conditions, representations, understandings, in oral or written form. Fruit Growers objects to any different or additional terms. In addition to the foregoing, these Terms and Conditions and each Order shall prevail over any additional or different provisions in any purchase order, acceptance notice, or other similar document issued by Buyer, regardless whether or when Buyer has submitted its purchase order or such terms, and such provisions shall be without legal effect and are hereby expressly rejected. 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 and Conditions. Notwithstanding anything herein to the contrary, if a written contract signed by Buyer and an authorized representative of Fruit Growers is in in effect covering the sale of the Goods and/or Services, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms and Conditions.
    • Notwithstanding anything to the contrary contained herein, Fruit Growers may, from time to time change the Goods or Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Goods or Services, or the fees or any performance dates set forth in the Order.
  2. Delivery of Goods and Performance of Services.
    • The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Fruit Growers shall not be liable for any delays, loss, or damage in transit.
    • Fruit Growers shall deliver the Goods to the location specified in each Order (the “Delivery Point“) using Fruit Growers’ standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods upon delivery 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, and will unload and release all transportation equipment promptly so Fruit Growers incurs no demurrage or other expense.
    • Fruit Growers 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 Goods 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 upon delivery at the Delivery Point, or if Fruit Growers is unable to deliver the Goods at the Delivery Point 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) Fruit Growers, 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).
    • With respect to the performance of any Services, Buyer shall (i) cooperate with Fruit Growers in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing such Services; (ii) respond promptly to any Fruit Growers request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Fruit Growers to perform such Services in accordance with the requirements of the applicable Order; (iii) provide such customer materials or information as Fruit Growers may request to carry out such Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to such Services before the date on which such Services are to start.
  3. Non-Delivery.
    • The quantity of any installment of Goods as recorded by Fruit Growers on dispatch from Fruit Growers’ place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
    • Fruit Growers shall not be liable for any non-delivery of Goods (even if caused by Fruit Growers’ negligence) unless Buyer gives written notice to Fruit Growers of the non-delivery within two (2) days of the date when the Goods would in the ordinary course of events have been received.
    • Any liability of Fruit Growers for non-delivery of 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.
    • Buyer acknowledges and agrees that the remedies set forth in this Section 3 are Buyer’s exclusive remedies for any non-delivery of Goods.
  4. Quantity. If Fruit Growers delivers to Buyer a quantity of Goods of up to 10% more or less than the quantity set forth in an Order, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in such Order adjusted pro rata.
  5. Shipping Terms. Delivery of Goods shall be made FOB shipping point unless otherwise set forth in an Order.
  6. Title and Risk of Loss. Title and risk of loss passes to Buyer upon the time and place of shipment. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Fruit Growers 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.
  7. Buyer’s Acts or Omissions. If Fruit Growers’ performance of its obligations under any Order is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Fruit Growers shall not be deemed in breach of its obligations under such Order or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
  8. Inspection and Rejection of Nonconforming Goods.
    • Buyer shall inspect the Goods upon receipt. Buyer will be deemed to have accepted the Goods unless it notifies Fruit Growers in writing of any Nonconforming Goods upon delivery 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 Fruit Growers of any Nonconforming Goods, Fruit Growers shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price (as defined below) 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 Fruit Growers’ facility. If Fruit Growers exercises its option to replace Nonconforming Goods, Fruit Growers 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 from Fruit Growers.
  9. Price.
    • Buyer shall purchase Goods and Services from Fruit Growers at the prices (the “Prices“) set forth in the applicable Order.
    • 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 and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Fruit Growers’  income, revenues, gross receipts, personal or real property, or other assets.
  10. Payment Terms.
    • Unless specified otherwise in an Order, Buyer shall pay all invoiced amounts on receipt of the Fruit Growers invoice, in US dollars.
    • Buyer shall pay interest on all late payments at the lesser of the rate of 0.833 % per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Fruit Growers for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms and Conditions or at law (which Fruit Growers does not waive by the exercise of any rights hereunder), Fruit Growers shall be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit 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 Fruit Growers, whether relating to Fruit Growers’ breach, bankruptcy or otherwise.
  11. Limited Warranty.
    • Fruit Growers warrants to Buyer that the Goods will materially conform to the specifications provided and/or accepted by Fruit Growers and will be commercially satisfactory in materials and workmanship.
    • Fruit Growers warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
    • EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 11(A) AND 11(B), FRUIT GROWERS MAKES NO REPRESENTATION OR WARRANTY WITH REGARD TO ANY GOODS PROVIDED TO, OR SERVICES PERFORMED FOR, BUYER BY OR ON BEHALF OF FRUIT GROWERS, INCLUDING (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWIS .
    • Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, Goods sold by Fruit Growers. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, FRUIT GROWERS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
    • Fruit Growers shall not be liable for a breach of the warranties set forth in Section 11(a) or Section 11(b) unless: (i) with respect to the sale of corrugated boxes, Buyer gives written notice of the defective Goods, reasonably described, to Fruit Growers within five (5) days of the time when Buyer discovers or ought to have discovered the defect, but in no event more than 90 days from delivery; (ii) with respect to all other Goods and Services, Buyer gives written notice of the defective Goods, reasonably described, to Fruit Growers within five (5) days of delivery of the Goods or provision of the Services; (iii) if applicable, Fruit Growers is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 11(a) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Fruit Growers’ place of business at Fruit Growers’  cost for the examination to take place there; and (iv) Fruit Growers reasonably verifies Buyer’s claim that the Goods or Services are defective.
    • Fruit Growers shall not be liable for a breach of the warranty set forth in Section 11(a) or Section 11(b) if: (i) Buyer makes any further use of the Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Fruit Growers’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or with respect to the Services; or (iii) Buyer alters or repairs the Goods without the prior written consent of Fruit Growers.
    • Subject to Section 11(e) and Section 11(f), with respect to any defective Goods subject to a claim under the warranty set forth in Section 11(a), Fruit Growers shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate, provided, however, that if Fruit Growers so requests, Buyer shall, at Fruit Growers’ expense, return such Goods to Seller.
    • Subject to Section 11(e) and Section 11(f), with respect to any Services subject to a claim under the warranty set forth in Section 11(b), Fruit Growers shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
    • THE REMEDIES SET FORTH IN SECTIONS 11(G) AND 11(H) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND FRUIT GROWERS’ ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 11(A) AND SECTION 11(B),  
  12. Limitation of Liability.
    • IN NO EVENT SHALL FRUIT GROWERS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT FRUIT GROWERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL FRUIT GROWERS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ITS SALE OF GOODS OR PERFORMANCE OF SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID FOR THE GOODS OR SERVICES GIVING RISE TO THE CLAIM.
    • The limitation of liability set forth in Section 12(b) shall not apply to liability resulting from Fruit Growers’ gross negligence or willful misconduct.
  13. Buyer Acknowledgment. BUYER ACKNOWLEDGES THAT WITH REGARD TO AGRICULTURAL OR OTHER PRODUCTS THAT BUYER MAY MANUFACTURE, PRODUCE, PACK, SHIP AND/OR MARKET FOR ITSELF OR OTHERS, FRUIT GROWERS DOES NOT HAVE ANY INVOLVEMENT IN OR CONTROL THE TIMING OF THE MANUFACTURE, PRODUCTION, PLANTING, HARVESTING, PACKING, SHIPPING, MARKETING AND/OR QUALITY OF SUCH AGRICULTURAL OR OTHER PRODUCTS THAT BUYER CHOOSES TO MANUFACTURE, PRODUCE, PLANT, HARVEST, PACK, SHIP AND/OR MARKET. BUYER FURTHER ACKNOWLEDGES THAT THE AGRICULTURAL OR OTHER PRODUCTS MAY HAVE BEEN SUBJECTED TO ENVIRONMENTAL AND OTHER CONDITIONS BEYOND FRUIT GROWER’S KNOWLEDGE AND/OR CONTROL.
  14. Indemnification. Buyer acknowledges that Buyer, and not Fruit Growers, shall be responsible for specifying the printed information that will appear on any boxes or other supplies purchased by Buyer, and that Fruit Growers will have no involvement in or control of the production, planting, harvesting, packing, shipping, marketing, and/or quality of any products that will be placed in any boxes, or of any pesticides, chemicals, or other materials or environmental conditions to which such products will be exposed. Buyer shall defend, indemnify, and hold harmless Fruit Growers, and its members, officers, directors, employees, representatives, and agents, from and against any and all claims, demands, liabilities, losses, damages, costs, and expenses (including, without limitation, court costs and attorneys’ fees) that they, or any of them, may incur or suffer by virtue of (i) any information that may appear (or fail to appear) on any boxes or other containers; (ii) the nature, condition, quality, or any other aspects of any products that may be placed in boxes or other containers; (iii) any violations of applicable laws or regulations that may arise due to information that may appear (or fail to appear) on boxes or other containers and/or the nature, condition, quality, or any other aspects of any products that may be placed in boxes or other containers; (iv) any failure to place any appropriate warnings on boxes or other containers (including, without limitation, any such warnings relating to hand or access holes); (v) accident, injury or death from the use of hand or access holes in lifting, carrying or moving a container or containers by any party; or (vi) allegations of infringement of copyright, trademark or trade dress resulting from the use of any words, designs, or art and any claim concerning machine readability of Universal Product Code symbols that Fruit Growers is requested to  incorporate in or imprint or place on any Goods sold to Buyer notwithstanding that Fruit Growers may be consulted as to, or may perform, art or design work or other special services in connection therewith.
  15. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under each Order. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under each Order or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Fruit Growers may terminate any Order if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods or Services.
  16. Termination. In addition to any remedies that may be provided under these Terms and Conditions, Fruit Growers may terminate any Order with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under such Order or any other pending Order; (b) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (c) 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.
  17. Waiver. No waiver by Fruit Growers of any of the provisions of any Order is effective unless explicitly set forth in writing and signed by Fruit Growers. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from any Order operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege under any Order precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  18. Confidential Information. All non-public, confidential or proprietary information of Fruit Growers, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Fruit Growers 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 any Order is confidential, solely for the use of performing such Order and may not be disclosed or copied unless authorized in advance by Fruit Growers in writing. Upon Fruit Growers’ request, Buyer shall promptly return all documents and other materials received from Fruit Growers. Fruit Growers shall be entitled to injunctive relief for any violation of this Section 18. This Section 18 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.
  19. Force Majeure. Fruit Growers shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached any Order, for any failure or delay in fulfilling or performing any term of such Order when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Fruit Growers 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.
  20. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under any Order without the prior written consent of Fruit Growers. Any purported assignment or delegation in violation of this Section 20 is null and void. No assignment or delegation relieves Buyer of any of its obligations under such Order.
  21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained herein 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.
  22. No Third-Party Beneficiaries. These Terms and Conditions are 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 and Conditions, except for the rights of indemnified parties under Section 14.
  23. Governing Law. All matters arising out of or relating to the sale of Goods or performance of Services are 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 or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
  24. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to the sale of Goods or performance of Services 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 Los Angeles and County of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
  25. Severability. If any term or provision of an Order (including of these Terms and Conditions) are invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of such Order (including of these Terms and Conditions) or invalidate or render unenforceable such term or provision in any other jurisdiction.
  26. No Membership Rights. Nothing contained in any Order (including in these Terms and Conditions) shall be construed to extend membership in Fruit Growers or membership benefits arising from such membership to Buyer.
  27. Equipment. If in connection with the sale of Goods or the provision of Services Fruit Growers leases or loans any equipment to Buyer pursuant to a lease, bailment agreement or otherwise, Buyer hereby grants to Fruit Growers a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under such equipment, wherever located, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, and authorizes Fruit Growers to file a UCC-1 financing statement in connection therewith.
  28. Survival. Provisions of each Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of such Order including, but not limited to, the following provisions: Indemnification, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
  29. Amendment and Modification. These Terms and Conditions may only be amended or modified in a writing stating specifically that it amends these Terms and Conditions and is signed by an authorized representative of each party.