Effective as of September 29, 2023
All sales of products (Products) by The Vollrath Company, L.L.C. including its divisions: Stoelting, ACS Fab, and Carlson Products (Vollrath), to the customer named in the quotation, purchase order, or purchase order acknowledgement (Purchaser) are subject to these Terms and Conditions of Quotation and Sale (the Terms or Agreement).
VOLLRATH HAS MADE A PROPOSAL TO SELL PRODUCTS TO PURCHASER. THESE TERMS, ANY VOLLRATH QUOTATION AND ANY VOLLRATH ORDER ACKNOWLEDGMENT CONSTITUTE THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN VOLLRATH AND PURCHASER PERTAINING TO THE PRODUCTS IDENTIFIED IN ANY PURCHASE ORDER WHEREBY PURCHASER ACCEPTS VOLLRATH’S PROPOSAL TO SELL. PURCHASER’S ACCEPTANCE OF VOLLRATH’S PROPOSAL IS LIMITED TO THESE TERMS AND EXCLUDES ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SUPPLIED BY PURCHASER. VOLLRATH HEREBY OBJECTS TO AND REJECTS ANY SUCH ADDITIONAL OR DIFFERENT TERMS. SHOULD PURCHASER USE ITS REGULAR PURCHASE ORDER FORMS IN ACCEPTING THIS PROPOSAL OR IN ORDERING PRODUCTS COVERED BY THIS PROPOSAL, VOLLRATH’S ACCEPTANCE OF THE ORDER IS EXPRESSLY CONDITIONED UPON PURCHASER’S ASSENT TO THESE TERMS. THIS AGREEMENT PREVAILS OVER ANY OF PURCHASER’S GENERAL TERMS AND CONDITIONS OF PURCHASE, REGARDLESS OF WHETHER OR WHEN PURCHASER HAS SUBMITTED ITS PURCHASE ORDER. VOLLRATH’S FULFILLMENT OF PURCHASER’S ORDER DOES NOT CONSTITUTE VOLLRATH’S ACCEPTANCE OF ANY OF PURCHASER’S TERMS AND CONDITIONS AND DOES NOT SERVE TO MODIFY OR AMEND THIS AGREEMENT. Additional or different terms applicable to a particular sale of Products must be expressly set forth in a written agreement between the parties which is executed by an authorized officer of Vollrath. In the event of a conflict between any such written agreement and these Terms, the written agreement will take precedence over these Terms if that intention is set forth in the written agreement.
All orders, whether or not submitted pursuant to a quotation, are subject to acceptance by Vollrath. Vollrath reserves the right to accept or reject all orders including, but not limited to, purchase orders entered pursuant to an expired quotation. Unless stated otherwise in a quotation, prices quoted are valid for a period of 30 calendar days after which Vollrath has the right to adjust quoted prices upon written notice to Purchaser. Further, Vollrath may, upon written notice to Purchaser, assess a surcharge on any Products and/or without prior notice, choose to pass along any price increase in Vollrath’s cost of the subject Products and/or any service or surcharge imposed on Vollrath by its suppliers. Any outstanding quotation may be amended or terminated by written notice from Vollrath to Purchaser. Any typographical or clerical errors or discrepancies in a quotation or marketing information such as catalogs, brochures, websites, and drawings available to Purchaser are subject to correction in Vollrath’s sole discretion. Any quotation prepared for Purchaser is based on various business factors and considerations and, without Vollrath’s prior written consent, is not valid for any party other than Purchaser.
All shipments are subject to Vollrath’s prior written approval of Purchaser’s credit. Where Vollrath has extended credit to Purchaser, Vollrath reserves the right, at any time, to modify the amount of credit or terms of payment or to revoke Purchaser’s credit.
To secure Purchaser’s obligations to pay for any Product, Purchaser hereby grants to Vollrath a security interest in the Product(s), 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 applicable Uniform Commercial Code. Purchaser authorizes Vollrath to file such financing statements relating to Vollrath’s security interest in the Product as Vollrath deems appropriate. Purchaser agrees to take any action reasonably requested by Vollrath in connection with the granting of the security interest.
Purchaser represents to Vollrath that Purchaser is solvent and capable of timely fulfilling its payment and other obligations. If, in Vollrath’s sole judgment, the financial responsibility of Purchaser is or becomes unsatisfactory, Vollrath may demand in writing that Purchaser provide Vollrath with adequate assurance of due performance under any agreements to purchase Products from Vollrath, including these Terms (Outstanding Contracts). Purchaser’s failure to provide Vollrath with adequate assurance of due performance within 10 days of receipt of Vollrath’s demand is a repudiation by Purchaser of all Outstanding Contracts. “Adequate assurance of due performance” includes providing a letter of credit or comparable security for all obligations of Purchaser that then exist or that will arise in the future under all Outstanding Contract.
Unless otherwise agreed in writing, prices do not include any sales, use, value-added or other taxes, import duties, license fees or like charges (Taxes). Purchaser is responsible for all such Taxes and shall indemnify Vollrath from any such Taxes together with any interest, fines or penalties thereon. When required to comply with any law or regulation, Vollrath will add such Taxes to the sales price when invoicing Purchaser and Purchaser shall pay the same unless Purchaser has provided Vollrath with a valid tax exemption certificate or similar document satisfactory in form to Vollrath.
Vollrath may cancel any purchase order or terminate any agreement relating to the purchase of Products upon reasonable prior written notice to Purchaser. Once Vollrath has acknowledged acceptance of a purchase order or has begun taking actions with respect to a purchase order, Purchaser does not have the right to cancel that purchase order. If, however, Vollrath agrees in writing to permit a requested cancellation, Purchaser shall immediately pay to Vollrath a cancellation charge in an amount equal to all costs incurred and committed to by Vollrath for the order or in connection with the cancellation or modification, together with a reasonable allowance for Vollrath’s prorated expenses and anticipated profits.
Title and risk of loss pass to Purchaser upon Vollrath’s delivery of Product in accordance with the applicable delivery terms. Purchaser shall fully insure the Products against all risks from the time of such delivery. Purchaser is responsible for filing any claims for loss or damage with the carrier.
Purchaser shall inspect Products within five business days after delivery (Inspection Period). Purchaser must notify Vollrath in writing within the Inspection Period of any shortages, or other errors in the order, including any non-conforming Products and afford Vollrath a reasonable opportunity to inspect such Products and cure any nonconformity. Purchaser’s failure to provide the required written notice to Vollrath within the Inspection Period constitutes Purchaser’s unqualified acceptance of the Products and is a waiver of all claims. Products may only be returned in accordance with Section 23 of these Terms.
Vollrath is not liable for any loss, damage or expense of any nature incurred by Purchaser as a result of any delay or failure to manufacture, ship, or deliver any Products to Purchaser if the delay or failure is caused, in whole or in part, by the occurrence of any contingency beyond the reasonable control of Vollrath or its suppliers. Such events may include floods, storms or other acts of God, acts of Purchaser, acts of any governmental authority or agent, fire, accident, strike, slowdown, war, act of terrorism, riot, epidemic, pandemic, quarantine, outbreaks of infectious disease or other public health crises, inability to obtain raw materials at a reasonable cost, failure or delay in transportation, shortage of labor, fuel, materials or manufacturing facilities or any other cause or circumstance that is beyond the reasonable control of Vollrath. In the event of any such delay, the time for performance will extend for such time as reasonably necessary to enable Vollrath to perform.
VOLLRATH WARRANTS THAT THE PRODUCTS WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP AND WILL MATERIALLY CONFORM TO ANY SPECIFICATIONS OR DESCRIPTIONS THAT ARE MUTUALLY AGREED UPON IN WRITING. THE WARRANTY PERIOD FOR ALL PRODUCTS LISTED ON THE TABLE LOCATED AT https://www.vollrathfoodservice.com/vollrath-resources/warranty-info
IS THE PERIOD SHOWN IN THE TABLE FOR EACH PRODUCT. THE TABLE IS INCORPORATED HEREIN AND CONSTITUTES PART OF THE AGREEMENT. THE WARRANTY PERIODS FOR OTHER PRODUCTS ARE AS FOLLOWS:
IN ALL CASES, THE WARRANTY PERIOD BEGINS ON THE DATE OF PURCHASE AS SHOWN IN THE SALE DOCUMENTATION. TO BE VALID, A WARRANTY CLAIM MUST BE ASSERTED DURING THE APPLICABLE WARRANTY PERIOD. VOLLRATH’S LIMITED WARRANTY APPLIES ONLY TO THE ORIGINAL COMMERCIAL END USER LOCATED IN THE UNITED STATES OR CANADA AND IS NOT TRANSFERABLE WITHOUT VOLLRATH’S WRITTEN CONSENT.
THE LIMITED WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE. VOLLRATH PROVIDES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO MODIFICATION OR WAIVER OF THESE WARRANTIES IS BINDING ON VOLLRATH UNLESS CONTAINED IN A WRITING SIGNED BY AN OFFICER OF VOLLRATH. THE WARRANTY AND WARRANTY PERIOD SET FORTH ABOVE ARE NOT, IN ANY WAY, ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY RESULTS FROM VOLLRATH RENDERING TECHNICAL ADVICE OR SERVICE TO PURCHASER IN CONNECTION WITH PURCHASER’S ORDER OF PRODUCTS.
SPECIFICALLY EXCLUDED FROM THE LIMITED WARRANTIES SET FORTH IN SECTION 14 ABOVE ARE THE FOLLOWING FOR WHICH VOLLRATH HAS NO LIABILITY WHATSOEVER: (a) Products purchased for any use other than standard commercial foodservice; (b) damage resulting from: (i) shipping, accident, neglect, or improper installation, setup or use; (ii) failure to follow operating instructions and/or scheduled maintenance procedures; (iii) modification of Products in any manner from original model, (iv) substitution of parts other than factory authorized parts, (v) unauthorized removal or unauthorized addition of any parts; or (vi) normal wear and tear; and (c) naturally occurring cosmetic variations in materials such as stone and wood used in the fabrication of custom equipment.
If Vollrath determines in good faith that the Product is non-conforming or defective and if Purchaser has timely filed a warranty claim as provided in Section 14, Vollrath’s sole obligation to Purchaser and Purchaser’s SOLE AND EXCLUSIVE REMEDY is for Vollrath to repair or replace the Product. Repair or replacement is F.O.B. Purchaser’s original destination or, for any Purchaser outside of the U.S., Ex Works (as defined in Incoterms 2000) Vollrath’s loading dock. Vollrath may condition repair, replacement or credit upon Purchaser’s return of the Products to Vollrath, F.O.B. Vollrath’s loading dock or, for any Purchaser outside of the U.S., DDP (as defined in Incoterms 2000) Vollrath’s loading dock. Vollrath will pay the cost of shipping the repaired or replaced Product. Failure to promptly return the Product will result in Purchaser being charged for it. Any Product repaired or replaced under Vollrath’s limited warranty is warranted only for the balance of the warranty period on the part that was repaired or replaced.
UNDER NO CIRCUMSTANCES WILL VOLLRATH BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, LOSS OF USE, OR LABOR COSTS, ARISING OUT OF THE SALE, USE OR INSTALLATION OF THE PRODUCTS, OR FROM ANY OTHER CAUSE WHATSOEVER. THIS LIMITATION APPLIES REGARDLESS OF (a) ANY ADVICE OR REPRESENTATIONS NOT IN WRITING THAT MAY HAVE BEEN RENDERED BY VOLLRATH CONCERNING THE SALE, USE OR INSTALLATION OF THE PRODUCTS, (b) WHETHER SUCH DAMAGES WERE FORESEEABLE, (c) WHETHER OR NOT VOLLRATH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (d) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL VOLLRATH’S LIABILITY ARISING OUT OF OR RELATED TO ANY PRODUCT(S) SOLD UNDER THIS AGREEMENT EXCEED THE COST OF THE PRICE OF THE PRODUCT(S) GIVING RISE TO THE CLAIM.
Purchaser is solely responsible for determining if a Product is fit for a particular purpose and suitable for Purchaser's method of application. Accordingly, and due to the nature and manner of use of Vollrath's Products, Vollrath is not responsible for the results or consequences of use, misuse or application of its Products. All physical properties, statements and recommendations are either based on the tests or experience that Vollrath believes to be reliable, but they are not guaranteed. Purchaser agrees to not use the Products as a finished medical device without Vollrath’s prior written approval signed by an authorized representative. Purchaser expressly warrants that it will not introduce the Products in clinical trials or similar testing without Vollrath’s prior written approval, signed by an authorized representative.
Purchaser shall indemnify, defend, and hold harmless Vollrath and its affiliates, and its officers, directors, employees, members, affiliates, agents, successors and permitted assigns and customers, against any and all claims, liability, damages, lawsuits, and costs (including reasonable costs and attorneys’ fees), whether for personal injury, property damage or other, brought by or incurred by Purchaser, Purchaser's employees, or any other person, arising out of (i) improper selection, improper application or other use or misuse of Products purchased by Purchaser from Vollrath, (ii) the design, manufacture, integration or usage of a Product which alone or as a component in an assembly, is alleged or proved to have caused injury or damage, (iii) Purchaser's failure to comply with all applicable foreign, U.S. federal, state or local laws, ordinances, rules, orders and regulations, including without limitation U.S. export control laws and any regulations and/or orders thereof or failure to provide Vollrath adequate information related thereto, (iv) the acts or omissions of Purchaser, its agents and employees and others under its direction or control, and (v) any other breach of Purchaser's obligations hereunder. These indemnity obligations apply except to the extent such liabilities are attributable solely to the willful or reckless conduct of Vollrath.
To obtain warranty service, Purchaser must follow the procedure set forth in the warranty documentation referenced in Clause #14 above which is incorporated herein and constitutes part of this Agreement.
Out of warranty repair services provided by Vollrath will be performed in a manner consistent with customary practice in Vollrath’s industry. If, within thirty 30 calendar days after completion of any repair services, a failure to conform to this standard is established to Vollrath’s good faith satisfaction, Vollrath, if promptly notified in writing, will, in its discretion, either perform the repair services again without charge, or refund the price charged for the repair services. Vollrath’s re-performance or refund is Purchaser’s exclusive remedy and Vollrath’s sole liability with respect to any claimed deficiency in out of warranty repair services. Vollrath provides no warranty on any repair services performed by unauthorized personnel or unauthorized service agencies.
Products may not be returned except with Vollrath’s prior written return authorization which may be requested by contacting Vollrath at (800) 628-0830. Products returned without prior written authorization WILL BE REFUSED. Requests for returns of Product (other than Product that does not conform with Vollrath’s warranty) must be made within 90 DAYS of VOLLRATH’S INVOICE DATE. WHEN REQUESTING A RETURN AUTHORIZATION, PURCHASER MUST PROVIDE PURCHASE ORDER NUMBER or VOLLRATH INVOICE NUMBER. NO RETURN AUTHORIZATION WILL BE ISSUED UNLESS PURCHASE ORDER NUMBER OR VOLLRATH INVOICE NUMBER IS PROVIDED.
All material, equipment, facilities and special tooling (including tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment and manufacturing aids and replacements thereof) manufactured or purchased by Vollrath which is used in the manufacture of Products will be Vollrath’s property. Any material, tooling or equipment funded by Purchaser and furnished to Vollrath for Purchaser will be held by Vollrath at Purchaser’s sole risk and expense and will remain the property of Purchaser with title to and right of possession remaining in Purchaser.
All sketches, models, drawings, renderings, virtual or augmented reality files, samples, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other such information or intellectual property disclosed or otherwise provided to Purchaser by Vollrath and all rights therein (Intellectual Property) are the property of Vollrath and shall be kept confidential by Purchaser in accordance with these Terms. Purchaser has no claim to, nor ownership interest in, any Intellectual Property, and such information, in whatever form and any copies thereof, must be promptly returned to Vollrath upon Vollrath’s request. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property, other than the limited right to use Products purchased from Vollrath.
Purchaser shall not use, directly or indirectly, in whole or in part, Vollrath’s name, or any other trademark or trade name that is now or may hereafter be owned by Vollrath (collectively, the Trademarks), as part of Purchaser’s corporate or business name, or in any way in connection with Purchaser’s business, except in a manner and to the extent authorized herein or otherwise approved by Vollrath in writing. Purchaser is entitled to use the Trademarks only in connection with the promotion or sale of the Products pursuant to the terms of the Agreement. Purchaser shall reproduce the Trademarks exactly as specified by Vollrath. Purchaser may not use the Trademarks in combination with any other trademarks or names. Purchaser agrees that it will not register or attempt to register any Trademark or any colorable imitation thereof (including any non-English language variation thereof), or use the Trademarks for any products or for any purposes other than those set forth in the Agreement. Purchaser shall not, at any time during or after termination of the Agreement, use in its business any other trademark that is similar to or in any way resembles the Trademarks so as to be likely to cause deception or confusion with the Trademarks. Purchaser shall provide reasonable cooperation to Vollrath with respect to any efforts of Vollrath to protect, defend, or enforce its rights to the Trademarks.
Vollrath, at its own expense, will defend and hold Purchaser harmless from and against all damages, costs and expenses arising from any valid claim of infringement of any patent, trademark, registered design or other intellectual property rights caused by the Products originally manufactured by Vollrath, provided Purchaser (a) has not modified such Products, (b) gives Vollrath immediate notice in writing of a claim or institution or threat of suit, and (c) permits Vollrath to defend or settle the same, and gives all information, assistance and authority to enable Vollrath to do so.
All information, including Intellectual Property, furnished by Vollrath or any other person acting on behalf of Vollrath and all information learned about Vollrath or its operations through performance of any order or the Terms is confidential and Purchaser shall not, without Vollrath’s express written consent, disclose any such information to any other person, or use such information for any purpose other than performing any order or the Terms. This Section 28 does not apply to information that is (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) legally made available to Purchaser by or through a third party having no direct or indirect confidentiality obligation to Vollrath with respect to such information.
Vollrath’s Products are designed to meet existing specifications and are provided with standard guards and safety features in line with sound design practice. Due to differing local interpretation and enforcement of OSHA and the standards issued thereunder, it is impossible for Vollrath to certify that Products will comply with all applicable provisions. It is Purchaser’s responsibility to request an inspection of the Product prior to shipping. Upon receipt of an inspection request, Vollrath will make all necessary arrangements for same. If, after Purchaser’s inspection and prior to delivery of Product manufactured by Vollrath, Purchaser’s safety department determines additional guards or safety devices are required, Purchaser shall provide information to Vollrath regarding Purchaser’s needs. Vollrath will then provide Purchaser with a quotation reflecting the cost of any additional work desired by Purchaser.
Purchaser agrees to comply with all federal, state, local and foreign rules, regulations, ordinances and laws applicable to the purchase and Purchaser’s use of the Products. In no event will Purchaser use, transfer, release, import, export or re-export Products in violation of such laws or regulations.