TERMS, CONDITIONS & SECURITY AGREEMENT
1. Purpose and parties. This document is your Customer Account application with Guest Supply, a Sysco Company (“Guest Supply” a subsidiary of Sysco Corporation and their respective operating subsidiaries and affiliates), and if your application is approved, your Customer Account Agreement with Guest Supply (as the same may be renewed, extended, amended or restated from time to time, the "Agreement"). "Guest Supply" means, separately and collectively, Guest Supply, LLC and any of their respective operating subsidiaries and affiliates. You may obtain a complete list of these companies from the Guest Supply credit department. The term Guest Supply in context therefore means one or more Guest Supply companies that provide goods, services, credit, or financial accommodations, to the Customer from time to time. “Customer” means applicant. This application is not binding upon Guest Supply unless approved by Guest Supply in writing. Even if approved, Guest Supply in its sole discretion may terminate Customer's credit privileges under this Agreement at any time without prior notice to Customer, except as otherwise provided by law.
2. Scope of agreement. This Agreement applies to all of Customer's purchases of goods and services from Guest Supply. This agreement consists of these terms and conditions and any distribution agreements, invoices or other Guest Supply documents approved by Guest Supply in writing to evidence Customer's obligations to Guest Supply, all of which are incorporated in this Agreement by reference. Except as to quantity of goods ordered, Customer agrees that Guest Supply is not subject to any terms and conditions set forth in any purchase order, confirmation or other communication from Customer that would supplement or vary this Credit Agreement. If Customer owns a franchise issued by a franchisor or is a member of a group purchasing organization and is purchasing under an agreement (the "Master Agreement") between Guest Supply and such franchisor or group purchasing organization (as applicable, the "Master Organization"), Customer agrees to abide by all obligations and limitations imposed upon participating purchasers under the Master Agreement. Customer further agrees that Guest Supply shall not be responsible for, and Customer hereby releases Guest Supply from, all loss, damage or liability arising out of Guest Supply's compliance with the Master Agreement or any directive or suggestion of the Master Organization including, without limitation, a directive or suggestion by the Master Organization requiring or suggesting that Guest Supply cease further sales to Customer pursuant to the Master Agreement or further sales of the Master Organization's proprietary product.
3. Payment and performance. Payment is due at the physical location of the Guest Supply company that provided this credit application, or at such other address as Guest Supply may designate in writing from time to time. If Customer does not pay or perform on time, all amounts owed, less any unearned charges, become immediately due and payable in full. Subject to any legal limits, Customer agrees to pay: (a) interest of the lesser of (i) 1.5% per month and (ii) the highest non-usurious rate permitted by applicable law on past due amounts from date due until paid; which rate shall apply to post judgment interest also; (b) all costs of collection (e.g., attorneys' fees and expenses); and (c) a $25 fee for each returned item (whether check or ACH) that is dishonored for any reason, or such greater amount allowed by law. In each instance, all charges and fees, and Guest Supply's rights and remedies, are subject to and automatically constrained by applicable law. Guest Supply reserves the right to apply customer credits and payments against open debits and invoices as needed.
4. Governing law; forum for disputes. The parties choose the laws of the state where the Guest Supply operating servicing Customer is located to govern all aspects of this credit application and agreement and all transactions and disputes by and between the parties, without regard to any conflicts of law provisions. The parties agree to designate the federal and state courts in the county where the Guest Supply operating servicing Customer is located as the exclusive place of venue and jurisdiction for any dispute between them; and Customer waives any right Customer may have to transfer or change venue regarding Customer's obligations to Guest Supply under this credit application.
5. Special orders. If Customer ceases doing business with Guest Supply for any reason, Customer must immediately purchase from Guest Supply any remaining proprietary or special-order items in Guest Supply's inventory obtained or held for Customer.
6. Fuel surcharge. A fuel surcharge may be applied to every invoice and will appear as a separate line item. Guest Supply's fuel surcharge is adjusted quarterly, based on the U.S. Department of Energy's national average market cost of diesel fuel and a portion of the fuel cost per delivery.
7. Return Policy. Customer agrees to Guest Supply’s Return Policy Terms, including pre-authorization by Guest Supply, and not to return merchandise after thirty (30) days of receipt. Merchandise returned due to an incorrect, excess or item no longer required is subject to a restocking fee. Drop ship orders are subject to the return policy of our suppliers. All Furniture, Fixture & Equipment (FF&E) and custom-made products are non-returnable and non-refundable. Please contact our Customer Service team with any questions or to initiate a merchandise return.
8. Prompt notice of any nonconforming items. Customer agrees that Guest Supply is not responsible for any product nonconformity as to quantity, quality or price, unless noted on the original delivery receipt at the time of delivery, or unless Guest Supply is specifically notified in writing of the nonconformity within 48 hours of receipt by certified mail return receipt requested.
9. Credit approvals; no assignments. Guest Supply may establish a credit limit for Customer's account. Customer agrees that Guest Supply. in its sole discretion, may increase, decrease or terminate credit at any time. Customer may not assign any rights or benefits under this Agreement without Guest Supply's prior written consent, which consent may be withheld in Guest Supply's sole discretion. If Customer is a corporation or other entity, a transfer or assignment of a majority of the equity interest in Customer is considered an assignment within the meaning of this provision.
10. Payment Terms. Guest Supply in its sole discretion may establish or determine payment terms with Customer or any related customer. Guest Supply reserves the right to modify payment terms for Customer or any related customer if, in Guest Supply's sole discretion, Guest Supply becomes aware of circumstances that may materially and adversely impact such entity's ability to meet its financial obligations when due. These rights to modify payment terms are not deemed to be a modification of the Terms and Conditions of this Agreement for credit and are in addition to the rights described in any of Guest Supply's credit, return and collection policies that may have been provided to Customer.
11. Credit reports and credit information. Guest Supply is relying upon the information provided by Customer as inducement to extend credit to Customer. Customer understands this and certifies to Guest Supply that all information Customer has provided, or provides in the future, is true, complete, and not misleading, in each and every respect. Customer authorizes Guest Supply to investigate Customer's credit and business affairs. Upon Customer's request, Guest Supply will inform Customer if a consumer report was requested and the name and address of any reporting agency that furnished any such consumer report. Customer agrees to notify Guest Supply in writing by certified mail return receipt requested of any material changes in Customer's financial condition or business affairs, including, without limitation, any changes in financial information or condition, ownership, addresses, business locations, telephone, contact information, and other matters.
12. Security Agreement. In the event this application is approved, as collateral security for the prompt and complete payment and performance of all of Customer's present or future indebtedness, obligations and liabilities to Guest Supply (the "Obligations"), Customer hereby grants to Guest Supply a continuing security interest in, and mortgage to, to the following (the "Collateral"): all (i) goods, including, without limitation, all goods now or hereafter delivered on credit to Customer pursuant to this Agreement, and more fully described on invoices issued to Customer by Guest Supply, (ii) inventory, (iii) equipment; (iv) instruments, (v) chattel paper, (vi) documents, (vii) accounts, (viii) accounts receivable, (ix) general intangibles, (x) deposit accounts, (xi) investment property, (xii) payment intangibles in which Customer now has or hereafter acquires any right or interest, and the proceeds, insurance proceeds and products thereof, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto, (xiii) intellectual property, (xiv) rebates, and (xv) fixtures.
13. Financing Statements. Customer hereby irrevocably authorizes Guest Supply at any time, and from time to time, to file in any filing office in any Uniform Commercial Code ("UCC") jurisdiction any initial financing statements describing the Collateral as all assets of Customer or language of similar effect and any continuation statements or amendments thereto. Customer also ratifies its authorization for Guest Supply to have filed in any UCC jurisdiction, any like initial financing statements, or continuation statements, or amendments, if filed before the date of this Agreement.
14. Events of default. Each of the following constitutes an "Event of Default": (a) not paying or performing all or any part of the Obligations when due; (b) any representation or warranty made or deemed made by Customer, or any guarantor of the Obligations (each a "Guarantor" and together with Customer, the "Obligated Parties"), in this Agreement or in any related document shall be false, misleading, or erroneous in any material respect when made or deemed to have been made; (c) any Obligated Party shall suspend or discontinue its business operations, or shall generally fail to pay its debts as they mature, or shall file a petition commencing a voluntary case concerning any Obligated Party under any chapter of the United States Bankruptcy Code; or any involuntary case shall be commenced against any Obligated Party under the United States Bankruptcy Code; or any Obligated Party shall become insolvent (howsoever such insolvency may be evidenced); (d) Any Obligated Party, shall fail to pay when due any principal of or interest on any debt (other than the Obligations), or the maturity of any such debt shall have been accelerated, or any event shall have occurred that permits any holder of such debt to accelerate the maturity thereof; (e) this Agreement or any related documents shall cease to be in full force and effect or enforceability thereof shall be contested by any Obligated Party or any Obligated Party shall deny that it has any further liability under this Agreement or any related documents, or any lien created by this Agreement shall for any reason cease to be a valid, first priority perfected lien upon any of the collateral purported to be covered thereby; or (f) the death or incapacity of any Guarantor. Upon an Event of Default, Guest Supply may without notice terminate Customer's credit privileges under this Credit Agreement or declare the Obligations or any part thereof to be immediately due and payable, or both, and the same shall thereupon become immediately due and payable, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by Customer; provided, however, that upon the occurrence of an Event of Default under clause (c) above, the Customer's credit privileges shall automatically terminate, and the Obligations shall become immediately due and payable, in each case without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by Customer. In addition to the foregoing, if any Event of Default shall occur and be continuing, Guest Supply may exercise all rights and remedies available to it in law or in equity, including, all the remedies of a secured party under the UCC, under this Agreement, or otherwise. Reasonable notification of the time and place of any public sale of the Collateral, or reasonable notification of the time after which any private sale or other intended disposition of the Collateral is to be made, shall be sent to Customer at the address provided in this application and to any other person entitled to notice under the UCC; provided that, if any of the Collateral threatens to decline speedily in value or is of the type customarily sold on a recognized market, Guest Supply may sell or otherwise dispose of the Collateral without notification, advertisement, or other notice of any kind. It is agreed that notice sent or given not less than five (5) business days prior to the taking of the action to which the notice relates is reasonable notification.
15. Severability. Each and every provision of the Agreement is severable from any and all other provisions of this Agreement. In the event that any provision of this Agreement is held to be invalid, the other provisions shall continue in full force and effect, and the offending provision, to the extent practicable, shall be reformed so as to achieve its intended purpose.
16. Other provisions. This Agreement is binding upon Guest Supply and Customer and their respective heirs, successors, assigns, representatives, and survivors and shall inure to the benefit of Guest Supply, its successors and assigns. I (We) certify that this request is for the extension of credit for business purposes only and is not intended for the extension of credit for personal, family or household purposes. Any modification to this agreement must be in writing and signed by Guest Supply's credit manager.
17. Ownership Changes. Applicant shall notify Guest Supply in writing prior to any change of ownership of Applicant or sale of Applicant's business or part thereof. Applicant shall at the request of Guest Supply assign to Guest Supply all proceeds of a proposed sale of its business or part thereof up to the amount owing by Applicant to Guest Supply as at the date of closing of such sale.
18. Notice to Guest Supply. Any notices that Customer provides to Guest Supply regarding this Agreement must be in writing and directed to the attention of Guest Supply's credit department manager at the company and address specified below:
- Guest Supply, a Sysco Company
- 300 Davidson Avenue
- Somerset, NJ 08873
Notice for non-trade customers only. This notice is for applicants who have not requested trade credit from Guest Supply. If this application is not fully approved or if any other adverse action is taken, the applicant has the right to request a statement of specific reasons for such action within 60 days of Guest Supply's notification of such adverse action. Guest Supply must then provide the statement within 30 days of applicant's request. An applicant's request for a statement of specific reasons should be directed to: Guest Supply Credit Department, 300 Davidson Avenue, Somerset, NJ 08873. The Federal Equal Credit Opportunity Act prohibits creditors from discrimination against credit applicants on the basis of race, color, religion, national origin, sex, marital status, or age (provided that the applicant has the capacity to enter into a binding contract); because all or part of the applicant's income derives from any public assistance programs; or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with this law concerning the creditor is the Federal Trade Commission, Equal Credit Opportunity, Washington, D.C. 20580.
ACCEPTANCE OF THIS APPLICATION DOES NOT INDICATE AN OFFER OF TERMS. THE PERSON EXECUTING THIS AGREEMENT HAS AUTHORITY TO BIND THE CUSTOMER AND IS AUTHORIZED BY THE CUSTOMER TO ENTER INTO THE CREDIT APPLICATION TERMS AND CONDITIONS.