We sell wholesale only – to the foodservice industry, with an active business license and resale or exemption certificate – documentation is required when your order is placed and, we may require, in our absolute discretion, additional supporting documentation.
These Gelato Fino Desserts, Inc. (“Gelato Fino Desserts”) Customer Terms and Conditions (“Terms and Conditions”) and any Addendum (as defined below) (collectively, each Addendum and these Terms and Conditions, the “Customer Agreement”) will govern the terms of Gelato Fino Desserts’ sale of its products (“Products”) to the undersigned customer (“Customer”). In the event of any conflict between a Customer’s purchase order and any of the terms and conditions set forth in the Customer Agreement, the terms and conditions set forth in the Customer Agreement shall prevail.
2. PRECEDENCE OF DOCUMENTS.
The documents comprising the Customer Agreement are intended to create a complete and comprehensive agreement. To the extent that there may be conflicting provisions contained in any of separate documents, these Terms and Conditions shall govern.
Prices shall be Gelato Fino Dessert’s current pricing, unless otherwise agreed by Gelato Fino in writing. All prices are subject to change without notice. Gelato Fino will endeavor to provide Customer with notice of any price changes; however, due to the nature of the underlying commodities that make up the Products and the volatility of their pricing, notice may not be available.
4. ORDERS, DELIVERY AND PRODUCT ALLOCATION.
All orders received by Gelato Fino Desserts may be confirmed in writing after receipt, which confirmation may include pricing and an estimated delivery date. All orders may be subject to minimum quantities and delivery fees as may be determined by Gelato Fino Desserts from time to time. Gelato Fino Desserts shall promptly notify Customer if it is likely that Gelato Fino Desserts will not be able to timely deliver the full quantity of any Product ordered by Customer. If Gelato Fino Desserts does so notify Customer, then Customer shall have the option of revising or canceling any such Purchase Order without penalty to Customer.
5. PRODUCT AND QUANTITY MODIFICATIONS.
Customer shall have the right, prior to shipment of the Products, to make changes in specifications and/or delivery dates for any standard (“off- the-shelf”) products included in any Purchase Order upon one (1) business day’s prior written notice of the scheduled delivery date; provided, however, Customer shall not have the right to make changes in specifications and/or delivery dates for any non-standard products that are produced solely for Customer. Should any such changes cause an increase or decrease in the cost of, or the time required for performance of the Purchase Order, Gelato Fino Desserts shall promptly notify Customer in writing. Customer shall have the option to accept or reject any such adjustments. If Customer accepts such adjustments, the parties shall execute an amendment to the Purchase Order to evidence such adjustments. If Customer rejects such adjustments, then the terms of the original Purchase Order shall remain in effect unchanged.
6. FREIGHT AND RECEIVING.
In all instances, Gelato Fino Desserts reserves the final right to make the sole determination on the selection of transportation terms. If Gelato Fino Desserts delivers the Product to Customer, title to and risk of loss for all Products shall pass at such time as Gelato Fino Desserts delivers the Product to Customer’s designated delivery location.
7. ACCEPTANCE OF PRODUCTS, RETURNS.
Customer shall inspect each Product at the time of delivery and as a result of such inspection, Customer may reject any Product which is defective, differs from specifications, is shipped contrary to instruction, is not in approved containers, or is not delivered within one week of specified shipping dates. Thereafter, Customer may request to return the Product in writing, which return shall be subject to Gelato Fino Desserts’ approval and Customer’s receipt of a written return authorization. Returns may be subject to a re-stocking fee. Nonstandard items (those not “off-the-shelf”) are not returnable.
Gelato Fino Desserts will deliver to Customer an Invoice for all charges associated with Customer’s purchase of Products. Subject to the terms and conditions in this Customer Agreement and except as may be otherwise agreed to by Gelato Fino Desserts in writing, Customer shall pay Gelato Fino Desserts all amounts contained in each such Invoice before or simultaneous with delivery of the Product(s) (COD). In addition to any other remedy that may be available to Gelato Fino Desserts, whether at law or at equity, Customer shall pay Gelato Fino a fee for any dishonored check, including, without limitation, those returned for insufficient funds, equal to the lesser of (i) 10% of the amount of the check or (ii) the maximum amount permitted by law to reimburse Gelato Fino Desserts for all costs and administrative expenses incurred.
10. CREDIT REVIEW.
By executing this Customer Agreement, Customer hereby authorizes Gelato Fino Desserts to conduct an investigation and credit check on Customer with any one or more of the major credit reporting agencies. Customer shall reasonably cooperate with Gelato Fino Desserts to obtain credit information. Acceptance of the Customer Agreement by Gelato Fino Desserts may be subject to a satisfactory completion of a credit review. Gelato Fino Desserts reserves the right to withhold delivery of Products under the Customer Agreement pending Gelato Fino Desserts’ initial satisfactory credit review and approval thereof, which may be conditioned upon terms specified by Gelato Fino Desserts in writing (an “Addendum”), including, but not limited to, security for payments due hereunder in the form of a cash deposit or other means. Gelato Fino Desserts reserves the right to modify its requirements, if any, with respect to any security or other assurance provided by Customer for payments due hereunder in light of Customer’s actual purchase volume when compared to projected purchase volumes upon which any security or assurance requirement was based, if applicable, or if Gelato Fino Desserts determines, in its sole judgment, that Customer lacks, or may in the future lack, the financial resources to meet its obligations to Gelato Fino Desserts.
12. GELATO FINO DESSERTS WARRANTIES.
Gelato Fino Desserts represents and warrants that all Products intended for consumption (i) will be merchantable and otherwise free from impurities and defects; (ii) will include packaging that is in material compliance with all reasonable safety standards; (iii) will not pose a health or safety hazard when used for their intended purpose; (iv) will not be adulterated or misbranded within the meaning of applicable laws; (v) will materially comply with applicable laws; and (viii) will be consistent with its original quality at all times during its designated shelf life (assuming proper storage and handling after delivery). In the event of any breach of this warranty, Customers sole and exclusive remedy shall be replacement of the non-conforming Product with the same or a similar conforming Product and Customer waives any other rights or remedies that may be available to Customer for a breach of any such warranty. Customer acknowledges and agrees that the warranties in this Section 12 are personal to Customer and may not be transferred or assigned to any other person or entity, including, without limitation, Customers’ customers or clients.
13. FORCE MAJEURE; WAIVER; INDEPENDENT.
CONTRACTOR. Except for Customer’s payment obligations to Gelato Fino Desserts, neither Gelato Fino Desserts nor Customer will be liable for any failure to perform due to wars, strikes, fires, labor difficulties, freight embargoes, acts of God or other causes beyond their reasonable control. Neither Customer’s nor Gelato Fino Desserts’ failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or waiver of any breach hereunder shall not thereafter be deemed a waiver by the other party of any other terms, conditions, rights or privileges. It is understood and agreed that Gelato Fino Desserts is an independent contractor and is not to be considered an employee or agent of Customer for any purpose.
14. ASSIGNMENT; SUCCESSORS.
This Customer Agreement may not be assigned by Customer without the prior written consent of Gelato Fino Desserts. For purposes of these Terms and Conditions, any transfer of Customer or these Terms and Conditions by a merger, sale of stock or operation of law shall constitute an assignment and require the prior written consent of Gelato Fino Desserts. Gelato Fino Desserts may assign this Agreement to any affiliate, in connection with a consolidation, reorganization, or reincorporation of Gelato Fino Desserts or to any successor of Gelato Fino Desserts, whether by way of a merger, sale of assets or stock, change of control, or otherwise. The terms and provisions hereof shall inure to the benefit of, and be binding upon, Customer and Gelato Fino Desserts and their respective successors and
This Customer Agreement may not be modified or amended without the written consent of both Gelato Fino Desserts and Customer.
Notices, consents and demands required or permitted to be given under the Customer Agreement shall be in writing and shall be effective when received or refused, whether by hand delivery or nationally recognized overnight courier (with evidence of receipt or refusal), to the parties’ respective address indicated on the first page of this Customer Agreement, or to such other address as the parties shall designate by written notice to each other.
17. CONFIDENTIALITY; RESTRICTION ON USE OF CONFIDENTIAL INFORMATION.
In the course of their relationship, the parties hereto may disclose to each other confidential, proprietary and non-public information or which the disclosing party deems confidential, including, without limitation, pricing and sales information and customer names and information (“Confidential Information”). The receiving party shall not disclose the Confidential Information to any person, firm or corporation (including, without limitation, affiliated corporations and separate business units) except as provided herein. Each party hereto represents that it exercises reasonable care and adequate measures to protect its own Confidential Information. The receiving party shall use the same degree of care to avoid publication or dissemination of the disclosing party’s Confidential Information, with such measures to include, at a minimum, a requirement that all Confidential Information shall be retained in a secure place with access limited to only such of the receiving party’s employees or agents (including consultants, accountants and attorneys) who need to know such information for purposes of this Customer Agreement and each of the foregoing persons shall be informed of the existence and terms of this confidentiality provision. The receiving party hereby acknowledges and agrees that it shall be liable to the disclosing party for any breach by such employees or agents. The receiving party shall not use any Confidential Information in connection with its own marketing or product pricing or other internal purposes except to the extent necessary to fulfill its obligations under this Customer Agreement. The receiving party shall not solicit or market any product to any customer based upon Confidential Information provided to it by the disclosing party (whether by customer list, customer registration or otherwise). The receiving party agrees not to copy or reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of any Confidential Information. At the conclusion of the parties’ relationship or upon demand by the disclosing party, all Confidential information, including marketing documents, notes, diagrams, and memoranda, which is in written or graphic form and any copies thereof, shall be returned to the disclosing party. The term “Confidential Information” shall not include, and neither party here to shall have any obligation under this Section 17 with respect to, any information which: (i) prior to disclosure hereunder is within its legitimate possession; (ii) is or becomes publicly known through no wrongful act of the receiving party: (iii) is rightfully received from a third party who has the right to disclose such Confidential Information, without restriction and without breach of this Customer Agreement, or (iv) is approved for release by written authorization of the disclosing party. The receiving party acknowledges that disclosure or improper use of the Confidential Information would cause immediate and irreparable harm to the disclosing party. Without limiting the following, the parties agree that in the event the receiving party breaches this Section 17, the disclosing party will be entitled to an injunction and other equitable relief, including but not limited to specific performance, in addition to any other remedies available to it. If a subpoena or other legal process in any way concerning the Confidential Information is served upon the receiving party, the receiving party shall immediately notify the disclosing party in writing upon receipt of such subpoena or other legal process and shall cooperate with the disclosing party in any lawful effort to contest the legal validity of such subpoena or other legal process or protect the confidentiality
of the Confidential Information. The provisions of this Section 17 shall survive the expiration or earlier termination of this Customer Agreement for so long as the parties conduct business and for a period of five (5) years thereafter. Notwithstanding anything contained on this Customer Agreement to the contrary, this Section 17 shall not in any way limit Customer’s obligations with respect to any Gelato Fino Desserts Trade Secrets (as defined in the Uniform Trade Secrets Act, Chapter 688, Florida Statutes).
18. COUNTERPARTS, SEVERABILITY; CAPTIONS.
This Customer Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any term or provision of this Customer Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or enforceable the remaining terms and provisions of the Customer Agreement or affecting the validity or enforceability of any of the terms or provisions of the Customer Agreement in any other jurisdiction. If any provision of the Customer Agreement is found to be so broad as to be unenforceable, the provision shall be interpreted to be only so broad as to be enforceable. Unless otherwise provided herein, all sections of the Customer Agreement which, by their nature, are intended to survive the termination or expiration. The captions in this Customer Agreement are not part of its provisions, are merely for reference and have no force or effect. If any caption is inconsistent with any provision of this Customer Agreement, such provision shall govern.
Notwithstanding any other term in the Customer Agreement to the contrary, these Terms and Conditions shall remain in effect as long as Customer purchases Product from Gelato Fino Desserts. All provisions of this Agreement that are expressly stated to survive termination of this Customer Agreement or by their nature customarily survive termination shall survive any termination of the Customer Agreement.
20. GIFT AND GRATUITY POLICY.
Gelato Fino Desserts has a strict policy which forbids and prohibits the solicitation, offering or acceptance of any gifts, gratuities or any form of “pay-off” or facilitation fee as a condition of doing business with Gelato Fino Desserts as a form of gratitude, or as an attempt to gain favor or accept merchandise or services at a lesser degree that what was agreed. If Customer violates such policy by offering or accepting any form of gift or gratuity to any associate, employee, agent or affiliate of Gelato Fino Desserts will be subject to, among other things, loss of existing and future business and monetary damages, regardless of whether the gift or gratuity was accepted. In addition, if Customer violates such policy, then Customer may be reported to the appropriate governmental authorities.
21. ENTIRE AGREEMENT; GOVERNING LAW AND VENUE.
This Customer Agreement contains the entire understanding and agreement of the parties and supersedes all prior understandings and agreements of the parties, whether written or oral, with respect to the subject matter hereof. This Customer Agreement shall be construed in accordance with and governed by the laws of the State of Florida, regardless of conflict of law principals. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of Florida located in Broward County or in the United States District Court for the Southern District of Florida for the purposes of any suit, action or other proceeding arising out of this Customer Agreement or the subject matter hereof brought by any party hereto; and (b) hereby waive and agree not to assert as a defense or otherwise, in any such suit action or proceeding, 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 suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Customer Agreement or the subject matter hereof may not be enforced by such court.
22. PREVAILING PARTIES.
The parties hereto agree that the prevailing party in any action to enforce any breach of any covenant or term in the Customer Agreement shall be reimbursed by the other party for all expenses and reasonable attorneys’ fees incurred by that party to enforce the Customer Agreement.
23. LIMITATION OF LIABILITY.
GELATO FINO DESSERTS SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, ANY DAMAGES CLAIMED FOR LOSS OF INCOME, REVENUE, OR PROFITS OR FOR LOSS OF GOODWILL) ARISING FROM OR RELATED IN ANY MANNER TO THIS CUSTOMER AGREEMENT OR GELATO FINO DESSERTS’ PROVISION OF PRODUCTS TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING AS A RESULT OF A CLAIM FOR BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER CAUSE OF
24. LIMIT ON DIRECT DAMAGES.
IN NO EVENT SHALL GELATO FINO DESSERTS’ TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR DIRECT DAMAGES UNDER THIS CUSTOMER AGREEMENT EXCEED THE FEES RECEIVED BY GELATO FINO DESSERTS UNDER THIS CUSTOMER AGREEMENT DURING THE THREE (3) MONTHS] IMMEDIATELY PRIOR TO THE CLAIM OR CAUSE OF ACTION ARISING.
25. DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY STATED IN SECTION 12 OF THESE TERMS AND CONDITIONS, GELATO FINO DESSERTS MAKES NO, AND EXPRESSLY DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, TO CUSTOMER, ITS CUSTOMERS OR TO ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE OR OTHERWISE, IN RESPECT OF THE PRODUCTS PROVIDED UNDER THIS AGREEMENT.
Customer represents and warrants that Customer is acquiring the Products solely for resale to its customers, for no other purpose and not for direct consumption. Customer acknowledges that Gelato Fino Desserts’ invoices are charged exclusive of any taxes or fees and Customer, upon the execution of this Customer Agreement, shall provide Gelato Fino Desserts with properly executed certificate of exemption(s) for all foreign, federal, state, county, and local taxes and fees (if any) and shall be responsible for the collection of all applicable end-user taxes and fees and the remittance of such taxes and fees to the relevant governmental authority. Customer shall indemnify and defend Gelato Fino Desserts from and against any and all actions, suits, proceedings, administrative charges, liens, liabilities, claims, assessments, fees, interest, and penalties arising out of or in connection with Customer’s failure to collect and/or remit, in a timely manner, any and all taxes or fees Customer is obligated to so collect and remit.
Customer agrees that Gelato Fino Desserts may refer to Customer by trade name and trademark, and may briefly describe Customer’s business in Gelato Fino Desserts’ marketing materials and website. Customer hereby grants Gelato Fino Desserts a limited license to use any Customer trade names and trademarks solely in connection with the rights granted to Gelato Fino Desserts pursuant to this Section 27. All goodwill associated with Customer’s trade name and trademarks will inure solely to Customer. Customer may display the Gelato Fino Desserts logo, or any other Gelato Fino Desserts trademark or service mark or logo, on Customer’s web sites or marketing literature, provided that Customer abides by any guidelines as Gelato Fino Desserts may provide Customer. All goodwill associated with Gelato Fino Desserts’ trade name, trademarks, slogans and logos will inure solely to Gelato Fino Desserts.
Gelato Fino Desserts, Inc.
1627 NW 38th Avenue
Lauderhill, Florida 33311
Phone: (954) 583-5111
Gelato Fino Desserts (“us”, “we”, or “our”) carefully listens to customer feedback and monitors market trends. To capitalize on this, we manufacture special order items, defined as non-inventory items manufactured exclusively for a specific customer (“Special Orders”). As market trends change frequently, so does our listing of inventory and Special Order items; always contact us to verify the correct classification before ordering.
If an item is Special Order, we will, upon request, provide a written quote specifying product quantity, price and lead-time. Adequate lead-time may be required to manufacture a Special Order due to non-standard raw materials or special production methodologies. We may ask you to sign a form agreeing to our Special Order Policy and/or require full payment prior to accepting your Special Order.
Our Standard Terms and Conditions of Sale (www.gelatofino.com/customers) apply to all Special Orders. Additionally, once a Special Order is placed:
- You cannot cancel, change or return it, either in its entirety or any part thereof, without our written consent;
- You must purchase all quantities manufactured, including partial and overrun, as exact quantities vary with each and every run. While we make every effort to produce the quantities ordered, it is not always possible and/or practical for us to do so; and,
- You must accept delivery when complete. Should you refuse delivery, you agree to pay the entire value of the Special Order, in full, when invoiced.