Terms and Conditions of Sale
By signing for or by accepting delivery of products (“Products”) from Heartland Coca-Cola Bottling Company, LLC (“Bottler”), Customer hereby accepts the following terms and conditions of sale (“Terms”) and agrees that they supersede any other terms from Customer and apply to every sale of Products, unless otherwise agreed to in writing by an authorized officer of Bottler. No amendments to the Terms may be made except in writing and signed by an authorized officer of Bottler.
Credit terms are as stated by the Bottler’s local credit department. Credit terms and privileges may be terminated at any time without notice. Bottler’s invoice is the billing document; no further billing statement will be provided to Customer.
Customer agrees it will not transship Products (transship means to distribute Bottler’s Products, directly or indirectly, outside the Bottler’s territory). Transshipment will be grounds for termination of any marketing program and further sales to Customer. Customer shall reimburse Bottler for any transshipping charges incurred by Bottler as a result of Customer’s transshipment.
Quantities and Set-Off.
Bottler reserves the right to limit quantities sold to Customer. Unless otherwise agreed to by Bottler, Customer agrees that it shall not make sales of Products other than at retail to final consumers. Bottler may withhold funding and/or discounts and terminate further sales if Customer makes any non-retail sales. Bottler reserves the right to withhold any amounts due to Customer to set off against present or future amounts owing by Customer to Bottler.
Nothing herein shall require Bottler to sell Products to Customer. These Terms may be changed by Bottler with or without cause either with the next delivery or upon written notice given prior to the next delivery of Products to Customer at Customer’s address shown on Customer’s most recent invoice.
All sales and deliveries of all Products by Bottler to Customer shall be governed by and subject to these Terms, and each of the following: (a) Bottler’s pricing and promotion letter; (b) any marketing or other beverage agreement entered into in writing between the parties; (c) Bottler’s Credit Application and its terms and conditions; and (d) Bottler’s Equipment Placement Agreement (a copy of its terms and conditions is provided below).
Invoices, including pricing, provided to Customer and signed by Customer shall be presumed correct unless Bottler receives a written objection within sixty (60) days from the date of delivery. Any disputes with regard to any invoice, marketing program or other aspect of the parties’ relationship must be raised by Customer within sixty (60) days from the date of invoice, the end of the program period or other applicable event. Bottler will deal only with Customer in the settlement of disputes and will not deal with Customer’s agents or any other third party, including without limitation, third party auditing firms.
Limitation of Liability.
IN NO EVENT SHALL BOTTLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE OR PROFITS, OR FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY NATURE WHATSOEVER, ARISING FROM OR IN CONNECTION WITH THE DELIVERY OR PRODUCTS, WHETHER BASED ON NONCONFORMITY OF GOODS, DELAY IN SHIPMENT, FAILURE OF ANY AGREED UPON OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, OR ANY OTHER ALLEGED ACT OR OMISSION BY BOTTLER (INCLUDING NEGLIGENCE) AND WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE. NOTWITSTANDING THE FOREGOING, BOTTLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE TERMS OR OTHER AGREEMENTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNTS CUSTOMER PAID TO BOTTLER FOR THE PRODUCTS SOLD HEREUNDER AND REJECTED BY CUSTOMER WITHIN A REASONABLE PERIOD OF TIME FOLLOWING THE DELIVERY OF PRODUCTS.
At Bottler’s election, any dispute arising out of or relating to these Terms or any other aspect of the parties’ relationship, including the breach, termination or validity thereof, shall be finally resolved by arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect as of the date the matter is referred to arbitration.
Equipment Placement Agreement.
In consideration of the mutual promises set forth below, Heartland Coca-Cola Bottling Company, LLC (“Heartland”) and Customer agree to the following terms and conditions of this Equipment Placement Agreement (“EPA”):
1. Installation and Operation. Heartland may deliver and install the “Equipment” (which term encompasses all equipment provided by Heartland at any time, including, without limitation, vending machines, coolers, fountain equipment and/or any replacement parts, replacements, additions or accessories) at the business location(s) owned and operated by Customer (the “Property”) during the Term (as defined hereto) of this Agreement. Customer shall use the Equipment only at the Property where Equipment is actually delivered, unless otherwise permitted by Heartland. This Agreement, in addition to any additional documents and/or records by and/or between the parties describing the Equipment and the location(s) where such Equipment is placed, shall be maintained by Heartland and shall constitute the official book of record pertaining to the Equipment. Customer, at its expense, shall provide all necessary service connections. Customer hereby guarantees that: (i) no logo, trademark, advertisement, or other indication of Heartland’s ownership of the Equipment shall be obstructed, defaced, or removed, and no other logo, trademark, or advertisement shall be attached to the Equipment; (ii) in the event the Equipment contains an illuminated sign, Customer shall keep such sign illuminated at all times; (iii) the Equipment shall not be obstructed, moved, or removed without the prior written consent of Heartland; (iv) the Equipment shall not be sold, reassigned, loaned, leased, or rented to any other party except as authorized by Heartland, in which case, Customer shall remain fully responsible for the Equipment as per the terms of this Agreement; (v) no racks, merchandise, or any other objects shall be placed on top of or attached to the Equipment unless expressly authorized by Heartland; and (vi) Customer will not attach the Equipment, or allow the Equipment to be attached, in such a manner as to become part of the realty as a fixture or otherwise, and that the Equipment will be maintained so that it may be easily removed without damage to buildings or realty.
a. If Heartland is providing full service vending under this Agreement, Customer agrees to permit Heartland to place the Equipment on Customer’s premises. Heartland shall stock the Equipment and shall collect all proceeds from the sale of its products. If applicable, Heartland shall pay Customer a commission on sales through the Equipment. The initial commission and vend price shall be mutually agreed between the parties, but may be changed by Heartland in its sole discretion.
b. Heartland hereby loans the Equipment to Customer; however, during the Term of this Agreement, Heartland reserves the right, upon prior notice to Customer, to lease or rent the Equipment to the Customer and, upon commencement of the lease or rental program, Customer agrees to pay a monthly rental/lease amount. Heartland may change the rental/lease rate charged under this Agreement by sending notice of such change to Customer at its present address. Customer may terminate this Agreement as set forth herein if it objects to such change.
c. Customer agrees that, if the Equipment is a fountain beverage dispenser, then the Equipment will be used for the purpose of dispensing only the fountain beverage products of The Coca-Cola Company (“Company”), such as Coca-Cola® classic (or Coke®), diet Coke® and Sprite®, and/or other product(s) mutually agreed upon; provided that no product of PepsiCo, Inc. or of an affiliate thereof may be dispensed. Customer further agrees not to dispense any product whose pungency could affect the normal taste or quality of the Company’s fountain beverage products.
d. Customer agrees that, if the Equipment includes a credit/debit card reader, then Customer shall check the Equipment at a minimum once per month for any magnetic swipe skimmers or any other evidence of tampering with the Equipment’s credit/debit card reader. Furthermore, Customer shall review all training materials provided by Bottler at least on an annual basis and shall immediately notify Bottler in the event of any suspicious observations in the Equipment and the accompanying credit/debit card reader.
e. If Customer uses the Equipment to serve or provide competitive products, Heartland may charge Customer a “fair share” fee to compensate Heartland for such use of the Equipment.
f. Notwithstanding the Customer’s right to use the Equipment and the logos/trademarks placed thereon, Customer shall not have any further rights to use the logos/trademarks or other intellectual property of Heartland or The Coca-Cola Company pursuant to this Agreement.
g. Customer will not use extension cords or other electrical connections to the Equipment not otherwise approved by Heartland.
2. Ownership. Heartland is, and at all times shall remain, the exclusive owner of the Equipment. Customer shall protect Heartland’s title and keep the Equipment free from all claims, liens, and encumbrances. Customer’s obligation under this paragraph remains until such time as Heartland or Heartland’s designee picks up the Equipment. Heartland agrees to supply and deliver all of the products stored in, or sold through, the Equipment, and Customer agrees to purchase from Heartland and store in, or sell through, the Equipment only products supplied by Heartland or by The Coca-Cola Company, subject to the exception that Customer may purchase Bag-In-Box products from a distributor authorized by Heartland or The Coca-Cola Company, and may serve other products in accordance with the limitations set forth in Section 1.c. of this Agreement. Customer authorizes Heartland to execute and file any additional instruments in all jurisdictions where it deems it necessary to perfect and maintain Heartland’s interest in the Equipment.
3. Inspection and Notification. Heartland shall have the right, during Customer’s regular business hours, to inspect the Equipment at Customer’s premises or wherever the Equipment may be located and to review all records that relate to the Equipment. Customer shall promptly notify Heartland of all details arising out of any alleged encumbrances thereon or any accident allegedly resulting from the use or operation thereof. Heartland shall have the right to periodically (a) inspect and review Customer’s use and the condition of the Equipment and (b) review Customer’s product purchase volume, product sales, and product placement to determine Customer’s compliance with the terms and requirements of this Agreement and other applicable agreements between Heartland and Customer. In the event Customer is found to have improperly used the Equipment or breached this Agreement or any other agreement between Heartland and Customer pertaining to the Equipment or the purchase, sale, or placement of Heartland products, Heartland shall have the right to remove and take back the Equipment and/or rescind any consideration or benefit granted to Customer in this Agreement and/or other agreements between Heartland and Customer, including but not limited to pricing on products, benefit levels, and/or Equipment placement or uses.
4. Service and Repair. Customer shall, at its expense, take good care of the Equipment and pay for all utilities necessary for the operation of the Equipment. Heartland agrees to provide reasonable service and repair for the Equipment during the Term hereof. Customer shall allow Heartland to enter its premises for the purpose of inspection or performance of such service and repair, or necessary replacement or return or removal of the Equipment. In the event additional service and repair is required or requested arising from Customer’s misuse or abuse of the Equipment, Heartland will bill Customer its standard rate per service call. All service and repair calls must be exclusively handled or authorized by Heartland. Customer’s sole recourse against Heartland with respect to service and repair provided by Heartland or its agents to the Equipment is that Heartland will correct any defective workmanship at no additional charge to Customer, provided that Heartland is given prompt notification of any defective workmanship. Heartland shall not be otherwise liable for negligent acts or omissions committed in regard to service or repair of the Equipment, and assumes no responsibility for incidental, consequential, or special damages occasioned by such negligent acts or omissions.
5. Disclaimer of Warranties. Customer acknowledges that Heartland is not the manufacturer of the Equipment. Heartland MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AS TO THE FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, CONSTRUCTION, CONDITION, SPECIFICATIONS, OR PERFORMANCE OF THE EQUIPMENT. Customer accepts no warranties and expressly waives any implied warranties as to the fitness for a particular purpose, merchantability, design, construction, condition, specification, or performance of the Equipment.
6. Liability and Costs. Customer hereby assumes liability for any and all damage to (normal wear and tear excepted), or loss of, the Equipment from the time the Equipment is delivered to Customer until returned to/or removed and accepted by Heartland. Customer assumes responsibility to report any damage to, or loss of, Equipment to Heartland immediately. To the extent any payment may be due from Heartland to Customer under this Agreement or otherwise, Heartland may deduct from such payment the cost of repair or replacement of the Equipment due to damages for which Customer is responsible hereunder. Customer shall pay all taxes, licenses, charges, or other fees which may be imposed on the sales of products through the Equipment, upon the Equipment itself, or in connection with this Agreement by any taxing authority. In the event of a default by Customer under this Agreement, including non-payment of lease/rental charges, Customer shall be liable for reasonable attorneys’ fees and other costs incurred by Heartland in enforcing its rights hereunder by litigation or otherwise.
7. Exculpation. Heartland shall not be liable to Customer for any claims based on or arising out of injury to person or property in any way relating to the installation, use, or operation of the Equipment, except such claims as might arise solely out of Heartland’s gross negligence or willful misconduct. In no event and under no circumstances shall Heartland be liable to Customer for any claims based upon or arising out of lost profits or prospective profits, loss of product, or consequential, special or incidental damages in any way relating to the installation, use, or operation of the Equipment. Furthermore, in no event shall Heartland’s aggregate liability to Customer for direct damages to property or person resulting from the use or installation of Equipment exceed Twenty-Five Thousand Dollars.
8. Indemnity. Customer shall indemnify and hold Heartland and Heartland’s officers, agents, employees, directors, shareholders, affiliates, successors, and assigns (hereinafter the “Indemnified Parties”) harmless from all losses, damages, claims, suits, proceedings, damages and liabilities of whatever nature, and all costs and expenses, including Indemnified Parties’ reasonable attorneys’ fees resulting from any and all claims, demands, or rights of action that may be asserted at any time against Heartland which are caused by or result from Customer’s negligent actions, inactions, or Customer’s willful misconduct, in the possession, use or operation of the Equipment or due to Customer’s breach of any provision of this Agreement. Customer represents and warrants that plumbing, electric service, structural support on the property are proper and adequate for the installation of the Equipment, and represents and warrants that it will not use extension cords or other electrical connections not otherwise approved by Heartland. Customer shall indemnify and hold harmless Heartland from any damages arising out of Customer’s defective plumbing, electric service, or structural support. The provisions of this section will survive termination and expiration of this Agreement.
9. Term and Termination. This Agreement shall be effective upon the earlier of (a) the latest date of the signatures of the parties; or (b) the date of Heartland’s commencement of performance under this Agreement, and this Agreement shall continue until terminated by either party (“Term”). Either party may terminate this Agreement for any or no cause upon 10 days’ written notice to the other. Heartland may terminate this Agreement upon the occurrence of any of the following events of default: (a) Customer fails to make any payment of rent within 5 days after rent is due; (b) the Equipment is moved from the location(s) at which it is provided without Heartland’s prior consent of such relocation/removal; (c) Customer transfers, lends, subleases, or encumbers the Equipment or attempts to do so; (d) the Equipment is levied, seized, or attached, whether by operation of law or otherwise; (e) Customer fails to perform or comply with any one or more terms, conditions, or provisions of this Agreement other than the payment of rent, and such failure continues for a period of 10 days after notification by Heartland; or (f) Customer is adjudicated insolvent by any court or tribunal or files voluntary petition in bankruptcy or enters into an arrangement with its creditors. In the event of default, Heartland shall have the immediate right to exercise any one or more of the following remedies: (a) to terminate this Agreement; (b) to declare the entire amount of rent immediately due and payable, without notice to or demand of Customer; (c) to take possession of any or all of the Equipment without demand or notice wherever the same may be located, without any court order or other process of law; or (d) to pursue any other remedy at law or in equity. If the Equipment is not made accessible by Customer, then Customer shall pay all costs and expenses relating to the removal of the Equipment. If this Agreement is terminated with respect to any piece of Equipment for any reason prior to 36 months from the date hereof, then Customer shall pay Heartland the actual cost of removal (including standard shipping and handling charges) and remanufacturing of that Equipment, as well as the unamortized portion of the costs of (i) installation, (ii) non-serialized parts (e.g., pumps, racks and regulators) and other ancillary equipment. All rights and remedies provided herein may be exercised exclusively, concurrently, or cumulatively with any other right or remedy hereunder, or as otherwise provided by law.
10. Casters (If applicable). If Customer requests, at any time during the Term of this Agreement, that Heartland provide the Equipment equipped with casters, the following provisions shall apply:
a. Customer represents and warrants that the Equipment is required by a governmental authority pursuant to applicable health, safety, sanitary or other applicable codes or ordinances, or the Customer desires the Equipment, to be equipped with casters to permit the efficient and thorough cleaning of the Equipment and surrounding areas.
b. Customer recognizes and acknowledges that the casters provided on the Equipment are not designed or intended to allow for the movement of the Equipment beyond the minimal distances required for cleaning of the immediate area, and are not designed for movement from room to room or other similar distances. Customer agrees that it shall not, and shall not permit its employees, agents, or subcontractors to use the casters to move the Equipment beyond the short distances necessary to adequately clean and maintain the Equipment and immediately surrounding areas. Customer agrees not to otherwise move or displace the Equipment from the area in which it was placed by Heartland. Any violation of this section by Customer shall constitute a breach of this Agreement.
11. Unreturned Pallets and Shells Fees (If applicable)
By the end of each Quarter, Customer will return to Heartland at least ninety percent (90%) of Heartland’s pallets and shells that are delivered to Customer during that Quarter. If Customer fails to do so, then within thirty (30) days from the end of that Quarter Customer will pay Heartland Twelve Dollars ($12.00) for each wooden pallet or Fifty Dollars ($50.00) for each plastic pallet not returned by Customer that is below the ninety percent (90%) requirement and Two Dollars and Seventy-Five Cents ($2.75) for each shell not returned by Customer that is below the ninety percent (90%). For example, if Customer fails to return the 90% requirement by 10 pallets, Customer will be charged $120.00 (10 pallets x $12.00). In the event, Customer fails to pay the above fees for unreturned pallets and/or shells, then Heartland shall withhold such fees from future payments payable to Customer.
12. Miscellaneous. This Agreement shall not be transferred, subleased, or assigned, in whole or in part, by Customer without the prior written consent of Heartland, except that Heartland may assign this Agreement to any affiliate, any U.S. Coca-Cola bottler, or The Coca-Cola Company. This constitutes the entire agreement between the parties and shall replace any prior agreements entered into between the parties and may be amended only in a writing signed by both parties; provided, however, that if Heartland or The Coca-Cola Company and Customer have entered into a beverage/marketing agreement, to the extent that any of the terms of this Agreement conflict with the terms set forth in the beverage/marketing agreement, the terms of the beverage/marketing agreement will control; provided further that removal of any equipment will not affect the terms of the beverage/marketing agreement. No modification or waiver shall be enforceable unless in writing and signed by the party against whom enforcement is sought. Heartland shall be entitled to recover from Customer its reasonable attorneys’ fees incurred in enforcing this Agreement. Any notices permitted or required by this Agreement will be in writing and mailed by certified mail or hand delivered, addressed to the respective addresses of the parties. The parties hereby waive trial by jury in any matter concerning this Agreement or the Equipment.