McLane Company Standard Terms and Conditions

These terms and conditions (the “Terms and Conditions”) govern all orders for products from, services rendered by, and purchases made from McLane Company, Inc. or any subsidiary or affiliated entity (collectively, “McLane”) in relation to the individual or entity set forth on a corresponding McLane invoice, together with all its subsidiaries and affiliated entities (individually and collectively, “Customer”). Customer and McLane may be referred to herein as a “Party” and collectively as the “Parties.”

CUSTOMER AGREES THAT ALL ORDERS FOR PRODUCTS, SERVICES RENDERED, AND PURCHASES MADE FROM MCLANE (INCLUDING ALL PAST ORDERS) ARE SUBJECT TO THESE TERMS AND CONDITIONS AND VERIFIES THAT THE INDIVIDUAL PLACING SUCH ORDERS IS AUTHORIZED TO SUBMIT SUCH ORDER(S) AND AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF CUSTOMER.

CUSTOMER UNDERSTANDS AND AGREES MCLANE MAY UPDATE OR MODIFY THESE TERMS AND CONDITIONS AT ANY TIME. BY CUSTOMER PLACING AN ORDER FROM MCLANE, CUSTOMER UNDERSTANDS AND AGREES THAT SUCH UPDATED TERMS AND CONDITIONS GOVERN ALL PAST SALES. CUSTOMER UNDERSTANDS AND AGREES THAT IT BEARS THE BURDEN TO READ AND UNDERSTAND THE POSTED TERMS AND CONDITIONS IN CONNECTION WITH EACH ORDER AND THAT MCLANE IS NOT OBLIGATED TO PROVIDE ANY SPECIFIC NOTICE TO CUSTOMER THAT SUCH TERMS AND CONDITIONS HAVE CHANGED.

1. Credit Evaluation. Customer agrees that McLane may obtain financial information from any lending institution, trade creditor, and/or credit reporting firms, at any time, on Customer and on any principals or owners of Customer. Further, Customer understands that McLane may be required to provide information to these sources in order to obtain necessary information that will allow for continuing credit availability. Customer warrants to McLane that all financial information furnished for the purpose of obtaining credit is true, correct, and complete in all material aspects. Customer authorizes McLane to investigate all references furnished pertaining to the credit and financial responsibility of Customer. In the event any principal makes a claim for damages as a result of any action McLane takes pursuant to this paragraph, Customer agrees to indemnify and hold McLane harmless from any and all costs and expenses, including attorney fees and expenses, incurred in connection with any such claim.
2. Invoicing and Payment.
   
   1. Customer agrees to pay for all products purchased and services rendered in accordance with the billing terms designated by McLane. Absent any written agreement to the contrary, all amounts due are payable to McLane, in full and in U.S. Dollars, within the earlier of seven (7) days from the date on each invoice, or the payment terms specified on the invoice (subject to the last sentence in this paragraph). Customer will pay McLane a flat rate of $40.00 as a service charge for all checks returned by Customer’s bank, unless prohibited by law. McLane may in its sole discretion, at any time, change Customer’s credit terms, require payment in cash before provision of products and/or services, and/or require anticipated payment of any or all amounts due, or to become due. Prior to approval of credit or upon the revocation of credit, all sales will be on a payment in advance basis (i.e., paid by wire transfer of immediately available funds acceptable to McLane).
   2. If Customer fails to timely pay in full any amount owed to McLane, Customer will lose the benefit of any discount allowance during the period in which any such unpaid amounts remain past due, and McLane will have the right to take any legally permitted actions that McLane in its reasonable discretion determines are necessary or appropriate to collect payment from Customer or to avoid incurring any future risk of nonpayment, including, without limitation, the right of suspending performance. Without limiting the foregoing, if Customer fails to timely pay amounts owed to McLane in full, McLane may in each instance charge a late fee equal to 1.5% of the unpaid balance. For any balances that remain unpaid 30 days after the due date, interest will accrue on such unpaid balance at the rate of 18% per annum (or the maximum rate permitted by law, if lower) until paid in full. Additionally, McLane may inactivate any account that becomes delinquent. If Customer’s account is inactivated as a result of delinquencies, McLane will assess a $200.00 reactivation fee to the account. All reactivation fees, as well as any delinquent amounts, must be paid in full prior to McLane resuming provision of any products and/or services to Customer. If Customer is in default of any of its obligations hereunder, McLane will be entitled to recover its costs and reasonable attorneys’ fees associated with collection, including but not limited to any costs or fees associated with bringing a legal claim.
   3. McLane is not obligated to continue making sales or providing services to Customer, whether on credit or otherwise. McLane accordingly may choose to discontinue or suspend further sales and services in its sole discretion and without providing any prior notice. McLane may cease to provide products and/or services, and such action by McLane will be without liability of any kind. If Customer or any affiliate or guarantor thereof fails to timely pay in full any amount owed to McLane, breaches or repudiates any of Customer’s other obligations to McLane, or becomes insolvent or subject to any insolvency proceedings, then McLane may, in its sole discretion and without limiting any other rights at law or in equity (in addition to any other remedies McLane may have under these Terms and Conditions): (1) refuse to deliver any products or provide any services; (2) as to products already put in the possession of a carrier or other bailee, stop delivery of such products by notifying such carrier or bailee not to deliver them, in which case the carrier or bailee will hold the products at McLane’s direction; (3) as to any products McLane delivered to Customer while Customer was insolvent or subject to any insolvency proceedings, reclaim such products at the expense of Customer; or (4) take any other reasonable action it deems necessary to minimize its credit risk on future product shipments and to collect any outstanding amount due.
   4. PACA Trust Rights. Customer acknowledges and agrees that some of the products sold by McLane to Customer are sold subject to and with reservation of McLane’s rights and remedies under the Perishable Agricultural Commodities Act of 1930, as amended, 7 U.S.C. §§ 499a-499 (“PACA”).The perishable agricultural commodities listed on each invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499e(c)). The seller of these commodities retains a trust claim over these commodities, all inventories of food or other products derived from these commodities, and any receivables or proceeds from the sale of these commodities until full payment is received.McLane will request information from time to time from Customer, with respect to food and other products, to comply with PACA. Customer will disclose such information in response to McLane’s request provided that such information is solely for the purposes of PACA compliance.
   5. Security Agreement. Customer grants to McLane a purchase money security interest in all goods and materials which have been or are hereafter acquired with credit granted by McLane (hereinafter called the “Collateral”). Customer shall execute any financing statements or other documents, give any notices and take any other actions requested by McLane to perfect, continue the perfection of, or protect the priority of the security interest granted under these Terms and Conditions and authorizes McLane to take such actions on Customer’s behalf at Customer’s expense. Customer agrees that, at McLane’s option, these Terms and Conditions or photocopy hereof may be filed by McLane as a financing statement in accordance with the Uniform Commercial Code. Customer’s execution hereof shall constitute the execution of a financing statement and the Customer’s power of attorney to McLane to complete, execute, and file a financing statement regarding the Collateral and take any other action necessary or advisable to perfect and/or achieve and/or maintain first priority of McLane’s security interest hereunder.
3. Reporting of Material Changes in Customer’s Business Operations. Customer will provide McLane with written notice of any material change to its business operations, including, but not limited to, the Customer’s opening, closing, sale, or transfer of assets associated with any establishment or unit owned or operated by Customer and any change in status of or failure to obtain or maintain any license, certification, or authorization required by a state or local authority for its business operations, at least 30 days prior to the anticipated effective date of such change. Upon receipt of such notice, McLane may take any action it deems necessary to ensure collection of any invoices to or other amounts owed by Customer, including, without limitation: (a) shortening or revoking payment terms for past or future sales; and (b) requiring additional credit enhancement, such as adequate collateral or assumption of obligations by creditworthy parties, in each case satisfactory to McLane in its sole discretion. Customer will provide all notices hereunder by certified mail to 4747 McLane Parkway, Temple, TX 76504, ATTN: Legal Department.
4. Taxes. Customer agrees to pay McLane amounts added to invoices for any taxes resulting from these Terms and Conditions or any activities governed hereby, including, but not limited to, taxes, assessments, or charges imposed or collected by governmental or political subdivisions. Customer will be responsible for any ad valorem, property, gross receipts, or other taxes assessable on goods on or after delivery to Customer. Wherever Customer provides McLane with a resale certificate, Customer represents and warrants that it will use any products there under for qualifying resale or other qualifying tax-exempt purposes. Except where the tax has been previously collected, Customer is responsible to accrue and pay all appropriate use taxes. Without applicable certificates, McLane will comply with relevant state laws and charge Customer sales tax without exception. Taxes charged on orders placed prior to the receipt and approval of a valid resale certificate will not be credited afterward by McLane.
5. Title and Risk of Loss. Title to all products and all risks of loss or damage shall pass to Customer as to each item of products upon signed receipt by either the Customer or common carrier. Customer agrees to notify McLane in writing as to any restrictions or limitation upon who may sign for McLane deliveries.
6. Customer Representations and Warranties. Customer represents, covenants, and warrants to McLane that (a) Customer is a duly organized and validly existing corporation in good standing under the laws of its jurisdiction of incorporation and is duly qualified and authorized to do business and is in good standing in all jurisdictions where it is required to be so qualified and where the failure to be so qualified would reasonably be expected to have a material adverse effect on Customer’s ability to perform its obligations under these Terms and Conditions; (b) Customer has the corporate power and authority to (1) own its property and assets and to transact the business in which it is engaged and presently proposes to engage and (2) execute, deliver, and perform these Terms and Conditions; (c) Customer has taken all necessary action to authorize the execution, delivery, and performance of, and has duly executed and delivered, these Terms and Conditions; (d) the execution, delivery, and performance by Customer of these Terms and Conditions does not and will not (1) contravene any applicable provision of any law, statute, rule, or regulation or any order, writ, injunction, or decree of any court or governmental instrumentality, (2) conflict with or result in any breach of any agreement to which Customer is a party, or (3) violate any provision of Customer’s articles of incorporation or bylaws or other organizational documents; (e) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery, and performance by Customer of these Terms and Conditions, other than those that have been duly obtained or made and are in full force and effect; and (f) these Terms and Conditions constitute a legal, valid, and binding obligation of Customer, and these Terms and Conditions are enforceable by and against Customer in accordance with their terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally and by equitable principles (regardless of whether enforcement is sought in law or equity).MCLANE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING ANY PRODUCTS SUPPLIED TO CUSTOMER, including the state, federal, or local legal and/or regulatory status of the supplied products, including, but not limited to, the advertising and/or labeling of such products, the safety of such products (for human consumption or otherwise), or any restrictions on the sale of such products (including any applicable age restrictions for tobacco products). ALL PRODUCTS ARE SOLD “AS IS,” “WHERE IS,” “WITH ALL FAULTS,” AND MCLANE HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
7. Indemnification. Customer covenants, warrants, and represents that it is solely responsible for the quality of the products and their fitness for their intended use from and after acceptance of the products by Customer. Customer will defend and fully indemnify and hold harmless McLane and its affiliates and their respective directors, officers, employees, agents, successors, and assigns from and against any losses arising out of or related to (a) the use, possession, handling, distribution, marketing, preparation, or sale of any of the products after acceptance of such products by Customer; (b) actions or omissions committed by McLane at the direction of Customer; and/or (c) Customer’s breach of any of its obligations under these Terms and Conditions or any violation of statute, regulation, or ordinance.
8. Limitations on Liability. IN NO EVENT WILL MCLANE BE LIABLE TO CUSTOMER UNDER THESE TERMS AND CONDITIONS OR UNDER ANY THEORY OF INTENTIONAL TORT, NEGLIGENCE, STRICT LIABILITY, STATUTORY LIABILITY, WARRANTY, OR OTHERWISE, FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES. FURTHER, IN NO EVENT WILL MCLANE BE LIABLE TO CUSTOMER FOR EXEMPLARY OR PUNITIVE DAMAGES.
9. Non-Discrimination. The Equal Credit Opportunity Act prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to enter into a binding contract), because all or part of the applicant’s income derived from any public assistance program, or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The Federal Trade Commission administers compliance with this law.
10. Waivers. The failure of McLane to insist on strict performance of any of these Terms and Conditions will not be deemed a waiver of the respective rights or remedies that McLane may have regarding that specific instance, neither will it be deemed a waiver of any preceding or subsequent breach or default of the same or any other term or condition. No waiver by McLane will be effective unless it is in writing.
11. Entire Agreement; Modifications; Order of Precedence. All previous discussions or negotiations regarding the subject matter contained herein are merged into these Terms and Conditions. Neither Party has relied upon any oral or written representations, express or implied warranties, or agreements that are not expressly contained in the body of these Terms and Conditions. Except for McLane’s right to update these Terms and Conditions as set forth above, these Terms and Conditions may not be altered, amended, modified, or rescinded in any way except by written instrument duly executed by the Parties. Notwithstanding the foregoing, in the event that Customer and McLane have duly executed a separate written agreement governing the same subject matter contained herein (product and/or service orders to, services rendered by, or purchases from McLane), in the event of a conflict or inconsistency between such other agreement and these Terms and Conditions, such other agreement shall control. For clarity, Customer’s use, if any, of the (i) McLane Xpress service, the www.mclanexpress.com website, and the products and services made available through the same, are exclusively governed by the McLane Xpress Terms of Use that Customer accepted at the time of registration for McLane Xpress, the current version of which can be found by clicking on the “Terms of Use” link on the McLane Xpress website (www.mclanexpress.com) and by clicking on the “McLane Xpress Terms of Use” link on the legal page of the McLane website (www.mclaneco.com/legal) or its successor link (all hyperlinks provided for convenience only); and (ii) the McLane “emerging brands” or “third party marketplace” program (or such other similar program in which a third party seller is the seller of record and McLane acts as agent for payment collection purposes) and the products and services made available through any such program, are exclusively governed by Customer’s Third Party Client Marketplace Agreement (or other similarly-titled written agreement governing such products and services).
12. Notices. Any written notice required by these Terms and Conditions may be given by personal delivery, first class mail, or overnight delivery service. Notices given by personal delivery will be effective on delivery, by overnight service on the next business day, or by first class mail five business days after mailing. The address of McLane is set forth above. The address for Customer is set forth on the associated invoice or purchase order.
13. Assignment; Survival. Customer may not assign its rights in these Terms and Conditions, or any sales governed hereby, to any third party, including any affiliates, without McLane’s prior written consent. Any attempt by Customer to assign, sell, delegate, or otherwise transfer rights or obligations governed by these Terms and Conditions will be deemed void and without effect. However, nothing in this paragraph will preclude McLane from assigning its obligations related to these Terms and Conditions or from employing common carriers, contract carriers, public warehousemen, or other similar parties to temporarily perform certain services. Except as otherwise expressly provided in these Terms and Conditions, all covenants, conditions, warranties, and representations and other provisions of these Terms and Conditions will be binding upon and will inure to the benefit of the Parties and their respective parent companies, divisions, legal representatives, successors, and permitted assigns.
14. Governing Law; Venue. All purchases will be deemed completed and performed in the state of Texas, and the internal substantive laws of the state of Texas (but not its conflicts of laws provisions), including, without limitation, Chapter 2 of the Texas Uniform Commercial Code (Texas Business & Commerce Code § 2.101 et seq. except as superseded by the terms of these Terms and Conditions), will govern and apply to all transactions hereunder. The Parties expressly exclude and disclaim the application of any provision of the United Nations Convention for the International Sale of Goods (CISG). If Customer or any person or entity claiming through it brings any legal action or any other proceeding, including arbitration or an action for declaratory relief, for the enforcement of any alleged obligations between Customer and McLane because of an alleged dispute, breach, default, or misrepresentation, or the interpretation thereof, the exclusive proper venue will be Dallas, Texas unless waived by McLane. Customer hereby consents to the jurisdiction of those courts and expressly waives any right to a trial by jury so that trial will be by and only to the court.
15. Severability. If any part of these Terms and Conditions is declared invalid or unenforceable by an arbitrator or a court of competent jurisdiction, the remainder of these Terms and Conditions will remain in full force and effect.
16. Force Majeure. Notwithstanding any other provision of these Terms and Conditions, McLane will be excused, without limitation, for any delays in performance or failure to perform any of its obligations if such delay or failure is to do, occasioned or caused by, any of the following (“force majeure event”): acts of God, the elements, epidemics, landslides, lightening, earthquakes, fires, storms (including, but not limited to, hurricane or hurricane warning), crevasses, floods, washouts; labor disputes, strikes, lockouts, or other industrial disturbances; acts of a public enemy, wars, blockages, insurrections, riots, arrests and restrains of the government, either federal or state, civil or military, or civil disturbances; shutdowns for purposes of necessary repairs, relocation, or construction of facilities; the necessity for testing (as required by governmental authority or as deemed necessary by the testing party for the safe operation thereof); the necessity of making repairs or alterations; accidents or breakdowns; inability to obtain necessary materials, supplies, or permits to perform or comply with any obligation or condition governed by these Terms and Conditions; failure of sources to supply; and any other cases whether of the kind herein enumerated or otherwise which are not reasonably in the control of McLane. Any delay or failure of performance due to one or more Force Majeure events shall, without limitation, not be deemed a breach of or failure to perform these Terms and Conditions or any part thereof and these Terms and Conditions shall remain in effect, except as expressly provided herein.
17. No Agency Relationship. These Terms and Conditions do not establish a general agency, employment relationship, partnership, or joint venture, and neither Party may obligate the other except as expressly provided.
18. Authority. The individual responsible for submitting order(s) for goods and services on behalf of the Customer is authorized to submit such order(s). Such individual certifies that it is fully authorized to accept these Terms and Conditions on behalf of the Customer represented, and such organization is bound hereby.