NFP PROCESSING TERMS & CONDITIONS
These Terms & Conditions (this “Terms”, “Conditions”, “Agreement”) are between NFP Holdings, LLC, A New York Limited Liability Company (“NFP”, “Us”, “Company”, or “NFP Processing”), and the individual or entity (“You” or “Purchaser”) that has placed a purchase order with NFP subject to these Terms and Conditions outlined below, which is also available on our website. This Agreement sets forth the terms and conditions that govern orders placed by You for Products under this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions of this Agreement and, in such event, “you” and “your” as used in this Agreement shall refer to such entity. If you do not have such authority, or if you or such entity do not agree to the terms and conditions of this Agreement, you may not use the services. For purposes of this Agreement, the term “Products” shall mean any and all items ordered by you from NFP subject to these Terms and Conditions.
PRICE. Prices charged by NFP for Products shall be NFP’s standard and customary prices on the invoice date, as adjusted by NFP at any time at its sole discretion. All prices are expressed and payable in US dollars. NFP reserves the right to adjust prices without notice. Adjusted prices shall be subject to any notification requirements set forth in any applicable agreement between the parties or as agreed in writing.
ACCEPTANCE. Any terms included in Purchaser’s order in addition to, or conflicting with, these terms, are hereby rejected unless accepted in writing by an authorized NFP representative. Purchaser shall be deemed to assent to these terms unless NFP receives a timely written protest enumerating specific terms to which Purchaser does not agree.
TITLE AND RISK OF LOSS. NFP shall retain the fullest right, title, and interest in Products to the extent permitted by law, including a security interest, until full payment has been received. The giving and accepting of drafts, notes and/or trade acceptances to evidence the payments due shall not constitute nor be construed as payment so as to transfer NFP’s interests until said drafts, notes and/or trade acceptances are paid in full. Risk of loss or damage to the Products shall pass to Purchaser upon acquiring the Products at the pick-up or delivery point.
PAYMENT TERMS. From the date of NFP’s invoice, all amounts payable for each order (including purchase price, transportation costs, etc.) shall be paid to NFP in accordance with the payment terms indicated on NFP’s invoice. NFP reserves the right to refuse to ship orders on unpaid accounts.
TRANSPORTATION COSTS. All costs and expenses, including freight, import duties and taxes, and all other related charges for the transportation of the Products shall be paid for by Purchaser, including all costs and expenses advanced and/or pre-paid by NFP.
RELATIONSHIP. The relationship between NFP and Purchaser shall be that of independent contractors and neither party, its agents and employees, shall under no circumstances be deemed the employees, distributors, franchisees, agents or representatives of the other party.
PRODUCT RETURNS. Products may not be returned without prior written notification to NFP and NFP’s subsequent written authorization. Such notices shall be sent to NFP no later than thirty (30) days after Purchaser came into possession of subject Products and shall indicate the basis of return and include appropriate documentation. Unauthorized attempts to return Products shall be subject to a restocking fee equal to twenty-five percent (25%) of the sales price of returned Products. If NFP authorizes the return of Products, the basis for any credit shall be limited to the amount paid by Purchaser for materially nonconforming Products. Purchaser shall comply with NFP’s instructions respecting return or disposal of nonconforming Products. If NFP authorizes or requests the return of Products, NFP shall bear shipping unless otherwise agreed. Notwithstanding anything to the contrary in this Agreement, NFP will not accept certain Product returns including, but not limited to: (1) Products that have been in Purchaser’s possession for more than thirty (30) days; (2) custom blends or Products manufactured under special order or otherwise labeled with language similar to “Special Order”, “Bonus”, “Sample”, “Test” or “Evaluation”; and (3) Products damaged or affected by Force Majeure. NFP reserves the right to destroy or otherwise dispose of returned Products, whether acceptable for credit or not.
LIMITED WARRANTY. Products sold by NFP are warranted to conform to the specifications set forth on applicable Product labels or specification sheets. If any Product fails to comply with the foregoing limited warranty, NFP shall, in its discretion, either (1) replace defective Product with conforming Product, (2) issue a credit, or (3) take such action as the parties may mutually agree. All claims for defective Product must be submitted in writing to NFP within thirty (30) days of actual receipt of Product together with appropriate documentation. A failure to submit a claim is a complete waiver of your claim. NFP shall have no liability with respect to: (i) any failure of Products or damages to them, due to user’s negligence, willful misconduct, abuse, improper storage, application or maintenance; (ii) Products damaged while in transit; (iii) damage to Products by chemical action, due to conditions of temperature or moisture outside of NFP’s control. All warranties and obligations of NFP shall terminate if Purchaser fails to perform its obligations or fails to pay any amounts payable under this Agreement. NFP’s price for the Products is based upon this warranty. Increases in warranty obligations may be subject to price increases.
THE PARTIES AGREE THAT ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, WHETHER WRITTEN, ORAL OR STATUTORY, ARE EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW.
DEFAULT. In the event that Purchaser becomes insolvent, commits an act of bankruptcy or defaults in the performance of this Agreement, the entire unpaid portion of amounts payable to NFP shall, without notice or demand, become immediately due and payable. Without notice or demand, NFP shall be entitled to sue for said amounts and reasonable legal fees, plus out-of-pocket expenses and interest; and/or to enter any place where Products are located and take immediate possession of and remove Products, with or without legal process; and/or resell Products, without notice or demand, and apply the net proceeds from such sale (after deduction from the sale price of all expenses of such sale including repossession, necessary Products repairs, storage, taxes, liens, collection and legal fees and all other expenses in connection therewith) to the balance due to NFP for the Products and to receive the deficiency between such net proceeds of sale and such balance. Purchaser hereby waives all trespass, damage and claims resulting from any such entry, repossession, removal, retention, alteration and sale.
CONFIDENTIAL INFORMATION. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. All nonpublic information furnished to Purchaser hereunder is for Purchaser’s confidential use in connection with this Agreement and shall not be made available to any third party without NFP’s prior written consent. Purchaser agrees that all information furnished or required to be furnished with an order whether orally or in writing, shall be kept confidential. Any specific rights to such information is subject to a separate agreement. Nonpublic Product data may not be used to procure from any source other than NFP or for manufacture of items described by such data. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
SET OFF. This Agreement is completely independent of all other contracts between the parties and all
payments due to NFP hereunder shall be paid when due and shall not be setoff or applied against any
money due or claimed to be due to Purchaser.
GENERAL INDEMNITY. Each party shall indemnify the other party, its parent and respective officers,
directors, employees and agents, from and against all claims, demands and causes of action asserted by
any entity to the extent of the indemnifying party’s negligence or willful misconduct relating to furnishing of
Products or services hereunder.
LIMITATION ON LIABILITY. TO THE EXTENT PERMISSIBLE BY LAW, NFP PROCESSING SHALL NOT BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE COST OF CORRECTING ANY NONCONFORMITIES IN THE PRODUCTS, OR IN THE ABSENCE OF SUCH NONCONFORMITIES, IN EXCESS OF THE AGGREGATE VALUE OF THE DEFECTIVE PRODUCTS DETERMINED BY THE PRICE PAID BY THE CLAIMANT AND EVIDENCED BY APPROPRIATE DOCUMENTATION. NOTWITHSTANDING ANY RESPONSIBILITIES OR LIABILITIES ASSUMED BY NFP PROCESSING HEREUNDER, NFP PROCESSING SHALL IN NO EVENT BE RESPONSIBLE IN CONTRACT OR IN TORT, OR OTHERWISE, FOR LOSS OR DAMAGE SUSTAINED AS A RESULT OF THE USE OF THE PRODUCT, LOSS OF PROFIT OR REVENUES, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSS OR DAMAGE, ARISING FROM ANY CAUSE WHATSOEVER.
ASSIGNMENT. Purchaser shall not assign or delegate this Agreement or any interest or claim hereunder, or any portion thereof, without NFP’s prior written consent. Such consent shall not be deemed to relieve Purchaser of its obligations hereunder. Any attempted or actual assignment or delegation in contravention hereof shall be void.
ENTIRE AGREEMENT. These terms and any conditions agreed to in writing by the Parties supersede all prior discussions and writings and embody the entire understanding between the parties relating to the subject matter hereof (“Agreement”). These terms shall be construed as to their fair meaning, under the reasonable person standard. No right or remedy conferred upon or reserved to NFP hereunder shall be exclusive of any other right or remedy herein or provided by law and shall be cumulative and in addition to every other right or remedy available to NFP.
WAIVER. Failure by NFP to enforce Purchaser’s performance of any provision hereof will not constitute a waiver of its right to subsequently enforce such provision.
FORCE MAJEURE. If NFP is rendered unable, wholly or in material part, by reason of Force Majeure to carry out any of its obligations hereunder, then such obligations shall be suspended as evidenced by written notice to Purchaser within a reasonable time after the occurrence of the cause relied upon. “Force Majeure” shall include, but not be limited to, acts of God, laws and regulations, strikes, lightning, fire, flood, washout, storm, communication lines failure, delays of Purchaser or Purchaser’s subcontractors, wars, police actions, embargos, and any other causes that are not reasonably within the control of NFP. If the delay is the result of Purchaser’s action or inaction, then in addition to an adjustment in time to perform, NFP Processing shall be reimbursed for costs incurred maintaining the schedule.
SEVERABILITY. If any portion of this Agreement is held invalid or unenforceable the remaining portions shall not be affected and shall remain in full force and effect.
CHOICE OF LAW AND VENUE. This Agreement shall be governed and construed in accordance with the laws of the State of New York without regard to its rules regarding conflicts of law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Parties submit to the jurisdiction and venue of the state and federal courts in New York.
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