Main Office
1258 Penn Avenue
Wyomissing, PA 19610
Toll Free 1-877-696-6455
Phone: 610-378-9999
Fax: 610-378-4975
info@berkshiredairy.com

Wisconsin Office
Toll Free 1-877-696-6455 ext. 7767
610-378-9999 Phone
262-626-8718 Fax
Paul Dean

Terms and Conditions of Sale

1. General Terms.
These Terms and Conditions of Sale (hereinafter “Terms”) apply to all products, food, commodities, and goods (hereinafter, “Product”) sold by Berkshire Dairy and Food Products, LLC (hereinafter, “Company”) to a customer (“Customer”). Unless Customer and Company have agreed to different terms and conditions in a separately-signed written agreement, these Terms specify the terms upon which Company will sell Product to Customer, and supersede and take precedence over any contrary, inconsistent, or additional terms submitted in any prior or subsequent purchase order related to the Product or any other document originating from Customer. As purchase orders are placed by Customer, and accepted by Company in a written confirmation (“Confirmation”), Company will sell Product to Customer, and Customer agrees to pay for the Product, at the prices stated in Company’s Confirmation. These Terms do not obligate Company to accept any additional or future orders. The parties agree that the parties may have relationships and/or arrangements with third parties for purchase and sale of Products. In the event of any inconsistency between these Terms and any of Customer’s documents, these Terms shall control. For the avoidance of doubt, Company will not be bound by any additional or different terms or conditions contained in any purchase order or other documents or records referencing any order or transaction (and this shall constitute Company’s objection to any such terms and conditions under Section 2-207(2)(c) of the UCC). Any such additional or different terms or conditions shall be deemed mere surplusage and shall not alter these Terms.

2. Delivery/Risk of Loss; Payment and Insurance to be Provided by Customer
a. Unless otherwise agreed to in writing by Company and Customer, or as set forth in Company’s Confirmation, “Delivery” of Product shall be EXW (Incoterms® 2010) Company’s designated facility (“Distribution Point”) (for both shipments of Product within the United States or those which will be exported outside the United States). Title to and risk of loss of Product shall pass to Customer upon Delivery to Customer. All Delivery dates are approximate only. Customer shall be responsible for any required legalization of documentation. Any additional amounts payable to the shipping carrier, including, but not limited to, charges for demurrage, detention, redelivery, unloading, sorting, stop-off, excess freight, switching or other accessorial charges, will be Customer’s responsibility and Customer shall reimburse Company for such amounts upon receipt of proper documentation. Customer undertakes to take Delivery of the Product on the date and at the quantity and price set forth in each Confirmation. In the event that Customer fails to comply with the foregoing, Company may terminate any outstanding purchase orders and/or any business arrangement or relationship between the parties, without liability, and Company may sell the Product to one or more third parties and charge the Customer for any shortfall below the price set forth in the applicable Confirmation. Company shall have no liability for any loss or damage arising as a result of Customer’s breach of its obligations in these Terms. Customer shall be deemed to have full knowledge of the nature of the Product and Company shall not be liable for any loss or damage arising from the storage, handling, mixing, processing or use of the Product, any failure by the Customer to obtain any permissions, consents, or licenses which may be necessary for the use of, or possession of the Product or the results of the Product following Delivery or from willful damage, negligence or abnormal working conditions.
b. Company will ensure that the Product supplied to Customer conforms to the specifications agreed to by the parties in writing (the “Specifications”).
c. Unless otherwise set forth in Company’s Confirmation, payment terms are net 20 days from the date of invoice. Amounts not paid when due shall incur a monthly charge of 1½% on the overdue balance. Upon default of payment for any outstanding invoices, Company shall reserve the option to deduct the total outstanding invoice and any associated fees from any current letter of credit, to the extent that Customer has provided Company with same.
d. Any credit terms agreed to by the parties other than Company’s standard invoice terms set forth above, if any, shall be set forth in a separate agreement signed by both parties.
e. In any lawsuit filed by a party in connection herewith, the prevailing party (as determined by a court of competent jurisdiction) shall be entitled to recover attorneys’ fees and costs of the lawsuit in connection with any such lawsuit and any appeals therefrom.
f. Customer shall provide to Company all financial information reasonably requested by Company for the purpose of establishing credit. Company reserves the right to request additional financial information and/or security and/or to modify and adjust the manner and terms of payment to fairly address the current financial exposure to Company for the Product sold hereunder.
g. Company reserves the right to limit Customer’s orders based on historical purchases or market fluctuations in order to fairly address the current financial exposure to Company for Product sold hereunder. Whenever Company reasonably deems itself insecure, Company may hold or cancel any outstanding sales or deliveries of Product to Customer, withhold or revoke any extension of credit, require prepayment via certified funds or reduce any unpaid debt by right of offset, if applicable.
h. Customer shall be responsible for all costs and expenses related to insurance covering the Product commencing at the time of Delivery to Customer or Customer’s carrier at the Distribution Point, including but not limited to any required insurance coverage while the Product is in transport, including water transport, and Customer acknowledges that Company shall have no obligation to provide any insurance covering the Product as of and after the time of Delivery to Customer or Customer’s carrier at the Distribution Point.

3. Orders, Price, Payment. No Product shall be sold or shipped without a purchase order and a corresponding Confirmation issued by Company. Purchase orders shall be placed via a method acceptable to Company and during normal business hours for Company. Purchase orders received by Company’s customer service department after normal business hours will be considered received as of the next business day.

4. Limited Warranties. Company makes the following limited warranties to Customer concerning the Product:
a. At the time of Delivery, Product will substantially and materially conform to the Specifications.
b. At the time of Delivery, Product will not be adulterated or misbranded within the meaning of the United States Federal Food Drug & Cosmetic Act, as amended.
c. The limited warranties shall be void and the Company shall have no liability or responsibility for any claim respecting the quality or condition of the Product (i) if Customer has not examined, inspected, sampled and tested the Product, or caused the Product to be examined, within as short a period as practicable upon receipt of the Product (“Receipt Date”), or (ii) if Customer’s agents or carriers do not store and handle the Product properly in accordance with the Specifications. Any notice of non-conforming Product, rejection of such non-conforming Product or notice of claim respecting the quality or condition of the Product must be within as short a period as is practicable after the Receipt Date and in any event before the expiration of the express warranty period applicable to the Product as set forth in the Specifications. The above limited warranties do not extend to any general consumer or to any person other than Customer.
d. Customer shall follow Company’s instructions for return of any non-conforming Products. No return of Product will be accepted without a return authorization issued by Company. Company shall specify method of transportation and destination of returned Product. Pending Company’s analysis of the non-conforming Product, Company reserves the right to deny credit for returned Product.

5. Inspection and Claims.
a. Customer shall examine, inspect, sample and test Product for compliance with these Terms within the time period specified in Section 4(c) above.
b. If Customer has reason to believe any Product does not comply with the limited warranties, Customer shall not use or resell such Product without prior written approval of Company.

6. EXCLUSION OF WARRANTIES.
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE OF THESE TERMS. THE LIMITED WARRANTIES IN SECTION 4 ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. COMPANY EXCLUDES ANY WARRANTIES OTHER THAN THOSE SET FORTH ABOVE IN SECTION 4, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

7. Remedies and Limitation of Remedies.
In the event of Company’s breach of a limited warranty, repudiation, or other uncured material breach of these Terms by Company, upon timely submission of a valid claim, Company shall (a) pay for commercially reasonable expenses of return or disposal of nonconforming Product in accordance with Company’s instructions; and (b) at Company’s option, either (i) replace non-conforming Product with conforming Product, paying commercially reasonable costs of shipping and insurance, or (ii) reimburse Customer for the purchase price of the nonconforming Product, plus any commercially reasonable shipping charges incurred by Customer upon purchase, less any proceeds of Customer’s sale of nonconforming Product if authorized by Company. Customer agrees that these remedies meet their essential purpose and waives any claim to the contrary. Customer acknowledges that Product prices are set based on the Company’s and Customer’s allocation of risks set forth in these Terms. The foregoing remedies are exclusive. All other remedies are excluded. In no event shall Company be liable for any consequential damages, lost profits, incidental damages, damages for personal injury, death, property damage, loss of production, punitive damages, or any other damages, claims or expenses, whether any of the foregoing arise out of breach of contract, tort, negligence, strict liability, claims of Customer’s customers, or otherwise (each of which are excluded to the fullest extent permitted by law).


8. Covenants of Customer.
Customer hereby agrees that: (a) it will comply with all applicable federal, state and local laws and regulations, and ordinances, and all lawful orders, rules, and regulations thereunder; and (b) its use and/or resale of the Products will not infringe any United States patent, trademark, or copyright or other intellectual property right, or violate any trade secret held by any third party.

9. Other Terms.
a. Customer shall defend, indemnify and hold Company and its affiliates, and its and their shareholders, partners, members, directors, managers, officers, employees, agents and representatives harmless from any and all liabilities, claims, damages, demands, lawsuits, proceedings and costs (including attorneys’ fees) arising out of, pertaining to, relating to, or connected with, directly or indirectly, (i) Customer’s breach of these Terms, (ii) Customer’s or its agents’ or representatives’ negligence or willful misconduct, (iii) Customer’s handling, possession, marketing, or distribution of Product or use of Product as an ingredient or component of any other item, including by way of example only and not limitation for death, personal injury, property damage, or otherwise, to the extent based on, arising out of, or in any way related to Customer’s, or any of its officers’, directors’, employees’, agents’, contractors’, successors’, assigns’, or customers’, possession, use or control of the Products in its manufacturing, production, labeling, marketing or distribution processes and the subsequent marketing and/or sale of products which used or contained the Products into the retail or wholesale marketing and/or distribution channels, to the extent the same was not caused by Company’s breach of its representation and warranties regarding the compliance of the Product(s) with all applicable United States rules, regulations and laws, (iv) claims or demands that the Products or associated materials, including any trademarks or trade dress, infringe on any patents, copyrights, trade dress, trademarks or other intellectual property rights of any third party, (v) claims related to or arising from any formula or labeling supplied by or obtained at the direction of Customer, including any nutrition facts labeling, or (vi) any documentation requirements, testing, Product quality matters that are not specifically set forth in these Terms.
b. No employee, agent, or representative of Company has any authority to bind Company to any term, affirmation, representation, or warranty concerning Product not set forth herein, and unless a term, affirmation, representation or warranty is specifically included in these Terms, it shall not be enforceable.
c. Customer shall not disclose to third parties (other than its employees who need to know such information for purposes of the transactions contemplated hereunder) or use any non-public and proprietary information regarding Company or its affiliates which Customer receives from Company or otherwise learns as a result of the transactions contemplated hereunder, whether in visual, oral, written or electronic format. Customer shall return all such information to Company upon request of Company.
d. Every provision of these Terms is intended to be severable. In the event that any provision of these Terms shall be held invalid, the same shall not affect in any respect whatsoever the validity of the remaining provisions of these Terms; provided that if any such provision may be made enforceable by limitation thereof, then such provision shall be deemed to be so limited and shall be enforceable to the maximum extent permitted by applicable law.
e. These Terms shall be construed, interpreted and enforced in accordance within the laws of the State of New York, without reference to conflict of law provisions.
f. These Terms may not be amended or waived except by a written document, signed by authorized representatives of each party, which makes specific reference to these Terms.
g. Headings are for descriptive purposes only, and do not form a substantive part of the Terms. Acceptance or acquiescence in a course of performance hereunder shall not be deemed to waive any rights hereunder, nor shall it be relevant to determine the meaning of the Terms, even though a party has knowledge of the nature of the performance and an opportunity for objection.
h. It is understood that Company does not agree to sell Product to Customer exclusively and Customer is not required to purchase Product exclusively from Company.
i. Nothing herein shall be construed to grant either party any right, interest, or license in or under any patent, trademark, copyright, trade secret, or other proprietary right or material owned or licensed by the other party. Neither party shall directly or indirectly question, attack, contest, or in any other manner impugn the validity of the ownership or license of such trademarks, trade names, trade dress or designs of the other party (“Owner”) nor shall such party willingly become an adverse party to litigation contesting the validity of Owner’s ownership and other rights in and to such trademarks, trade names, trade dress and/or designs. Neither party shall directly or indirectly use or take any action to register the trademarks, trade names, trade dress and/or designs of the other party in any jurisdiction. Each party also acknowledges that the goodwill associated with the use of any such Owner’s trademarks, trade names, trade dress or designs inures to the benefit of the Owner.
j. In the event Company sells Product to Customer under this Agreement as a domestic transaction, and Customer later exports Product, Customer shall assume all responsibilities as the “U.S. Principal Party in Interest.” Customer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and the jurisdictions in which Customer is established or from which Products may be supplied, will apply to their receipt and use. In no event shall Customer use, transfer, release, divert, transship, import, or export/re-export Products in violation of such applicable laws, regulations, orders or requirements. Customer represents and warrants that it is not referenced on the “specially-designated nationals” list maintained by the United States Office of Foreign Assets Control (“OFAC”) of the United States Treasury, and is not otherwise restricted from participating in an export of goods from the United States. If Customer violates any United States export laws or regulations, including but not limited to the Export Administration Regulations and/or the United States economic sanctions administered by OFAC, Company may, immediately and without notice, terminate any purchase order submitted by Customer, and/or any business arrangement or relationship with Customer. If the Product is to be exported outside of the United States, Customer will be responsible for obtaining and maintaining, if applicable, all international regulatory approvals and ensuring that the Product Specifications and all assays, analysis and other testing conducted complies with all applicable international laws and regulations.
k. In the event the transactions under these Terms are “routed transactions” as such term is defined in 15 C.F.R. 30.1, then Customer shall be responsible for filing, or causing to be filed, all Electronic Export Information (“EEI”) to the United States Automated Export System (“AES”) in accordance with the requirements for such transactions set forth in 15 C.F.R. 30. Company shall provide Customer or its agent the documents and information set forth in 15 C.F.R. 30.3(e) and Customer shall provide, or arrange to provide, Company with written documentation verifying that the information provided by Company was accurately reported on the EEI, including but not limited to verification of the Internal Transaction Number (“ITN”). Alternatively, upon the request of Company, Customer shall provide Company with written authorization in the form supplied by Company, granting Company the authority to file all EEI through AES in accordance with the requirements for such transactions set forth in 15 C.F.R. Part 30. So long as Customer provides Company with such authorization as referenced above, Company agrees to file the proper EEI through the AES. Company shall timely provide the ITN to Customer’s authorized representatives in order for Customer to finalize the export of Products.
l. Customer represents and warrants that, in all actions it or its directors, officers, employees or agents take, on behalf of itself and its directors, officers, employees and agents, neither it nor any of its directors, officers, employees or agents will violate any requirements or restrictions of the United States Foreign Corrupt Practices Act, 15 U.S.C. 78dd-1 et. seq. or any other applicable anti-corruption laws in each of the jurisdictions in which Customer operates. Specifically, Customer represents and warrants that it will prevent its directors, officers, and employees from offering anything of value to any government official or any official of any state-owned enterprise, whether foreign or domestic, with the corrupt purpose of influencing that official for Customer’s business advantage. Company reserves the right to unilaterally report to any government’s law enforcement authorities any information that it deems, in its sole discretion, necessary or appropriate to disclose whether that information comes from the financial records maintained under this section or another source.
m. If either party hereto is prevented from complying either totally or in part, with any of these Terms (other than the payment terms) by reason of fire, flood, storm, strike, lock-out or other labor trouble, riot, war, rebellion, epidemic, quarantine restrictions, disease, including hoof-and-mouth disease, accident, an act of God, production or manufacturing problem, industry-wide raw material shortage, government support program, and/or any other cause or casualty beyond the reasonable control of the party prevented from complying, then upon written notice to the other party that based on such cause the requirements of these Terms, or such of its provisions as may be affected, to the extent affected, will be suspended during the period of such disability; provided, however, that any party prevented from complying shall make all reasonable efforts to remove such disability as soon as practicable. Failure to make such reasonable efforts shall constitute grounds for the termination of any outstanding purchase order and/or any business arrangement or relationship between the parties. During any such period, the party not prevented from complying as aforesaid may seek to obtain replacement purchases or sales, as applicable (which would otherwise be met hereunder), by or through others without incurring any liability whatsoever hereunder.