Consumers General Terms and Conditions of Chef’s Cabinet Corporation
BEFORE ORDERING ANY PRODUCTS FROM CHEF’S CABINET CORPORATION PLEASE REVIEW CAREFULLY THE PRODUCT USE AND SAFETY INSTRUCTIONS AVAILABLE THROUGH CHEF’S CABINET CORPORATION’S WEBSITE AT ExoticWhip.com/safety . BY ORDERING ANY PRODUCTS FROM CHEF’S CABINET CORPORATION YOU AGREE TO FULLY COMPLY WITH THOSE INSTRUCTIONS.
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING CUSTOMER’S RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO CUSTOMER. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY PLACING AN ORDER FOR PRODUCTS FROM CHEF’S CABINET CORPORATION, CUSTOMER AFFIRMS TO BE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND CUSTOMER ACCEPTS AND IS BOUND BY THESE TERMS AND CONDITIONS.
CUSTOMER MAY NOT ORDER OR OBTAIN PRODUCTS FROM THIS WEBSITE IF CUSTOMER (A) DOES NOT AGREE TO THESE TERMS, (B) IS NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH CHEF’S CABINET CORPORATION, OR (C) IS PROHIBITED FROM ACCESSING OR USING THE CHEF’S CABINET CORPORATION WEBSITE OR ANY OF THE WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
shall mean the agreement between the Customer and Chef’s Cabinet Corporation for the delivery of Products.
shall mean any natural person of legal age or business entity with whom Chef’s Cabinet Corporation and its employees deal in the course of its business, including representative(s), agent(s), successor(s) and including visitors of the Chef’s Cabinet Corporation website.
- Chef’s Cabinet Corporation:
shall mean Chef’s Cabinet Corporation, a Delaware corporation.
- Party or Parties:
shall mean Chef’s Cabinet Corporation and Customer, individually or collectively.
shall mean the Chef’s Cabinet Corporation products provided pursuant to the Agreement, including but not limited to cylinder N2O dispensers for the food, beverage, and catering industry, and MagicWhip, ExoticWhip and Fast-Gas branded products.
- Terms and Conditions:
shall mean these U.S. General Terms and Conditions of Chef’s Cabinet Corporation .
- These Terms and Conditions apply to all offers of Chef’s Cabinet Corporation and exclusively govern the relationship between Chef’s Cabinet Corporation and Customers, and any Agreement or other agreements between Chef’s Cabinet Corporation and Customers, and any subsequent amendment to any agreement or the Agreement, including any agreements for Products that are provided to a Customer free of charge, are intended solely for advertising purposes, or are samples. These Terms and Conditions shall be applicable even if Chef’s Cabinet Corporation uses third parties to deliver Products.
- No other terms and conditions shall be binding upon Chef’s Cabinet Corporation unless accepted by it in writing. Chef’s Cabinet Corporation expressly rejects any general terms and conditions used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and do not bind Chef’s Cabinet Corporation.
- Chef’s Cabinet Corporation reserves the right to amend these Terms and Conditions at any time. New or amended general terms and conditions shall be applicable upon thirty (30) days notice to Customer.
- In case of inconsistencies between the terms of an Agreement and those contained in these Terms and Conditions, those in the Agreement shall control.
- The provisions of these Terms and Conditions will not impair any rights that Chef’s Cabinet Corporation may otherwise have under any applicable law.
- Offers and Acceptance
- All offers of Chef’s Cabinet Corporation are non-binding and may be revoked at any time, unless Chef’s Cabinet Corporation stated otherwise in writing. Any amendments made by Chef’s Cabinet Corporation in writing shall entail a new offer, automatically revoking the previous offer. Any amendments by Customer of a Chef’s Cabinet Corporation offer will be deemed a new offer by Customer, which Chef’s Cabinet Corporation may accept or reject in its sole discretion.
- Offers will only be deemed accepted by Chef’s Cabinet Corporation if it does so in writing. All information, data or undertakings provided verbally or in documentation, price lists or other material related to Products, whether in electronic or any other form, are binding only to the extent that they are by reference expressly included and confirmed in writing in the Agreement with Chef’s Cabinet Corporation.
- Customer understands and accepts that all samples, drawings, models, figures, dimensions, weights, statements by Chef’s Cabinet Corporation or any other specifications for Products are estimates only, and for demonstrative purposes, and although Chef’s Cabinet Corporation will use best efforts to ensure their accuracy, it cannot guarantee the absence of anomalies.
- All information and documentation provided by Chef’s Cabinet Corporation with an offer, whether such offer is accepted by Customer or not, shall remain the sole and exclusive property of Chef’s Cabinet Corporation.
- Prices and Taxes
- Configurations and prices of Products are subject to change at any time, and Chef’s Cabinet Corporation shall at all times be entitled to modify price lists, brochures, printed matter, quotations and other documents. Customer agrees to any such changes of prices or configurations if it does not object in writing to Chef’s Cabinet Corporation within seven (7) business days of when Customer receives an invoice incorporating said changes. However, Customer will not be entitled to make written objections for modifications to configurations and prices made by Chef’s Cabinet Corporation as a result of circumstances that were unforeseeable at the time the Agreement was entered into, including but not limited to a newly enacted right or obligation under the law, or a material increase in the price of raw materials.
- All prices are exclusive of, and Customer shall pay all, local taxes, including sales and/or usage taxes.
- All prices are exclusive of, and Customer shall pay, all costs and expenses for the packaging, packing, loading, transport, dispatch, unloading and/or insurance, which shall be charged to Customer at actual cost and/or customary rates, unless otherwise agreed in writing.
- All Agreements for the delivery of Products to Customer shall be treated as separate agreements.
- Customer agrees to pay, without the right to set-off any amount, all invoiced amounts upon receipt of the invoice, unless agreed upon otherwise.
- Where payment is not made within the terms set forth in this article, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, if lower, with effect from the first day following expiration of the payment term referred to in this article; part of a month shall be considered a full month.
- Payments made by Customer shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the Agreement which have remained outstanding for the longest period of time, even when Customer specifies that the payment relates to another claim.
- Customer shall not be entitled to refuse to discharge or to suspend the discharge of its payment obligations on account of alleged disturbance of, defect or error in the Products or on any other account whatsoever.
- Customer shall be liable for amounts which Chef’s Cabinet Corporation incurs to collect payment, including without limitation, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.
- Delivery, Risk of Loss, and Title
- Chef’s Cabinet Corporation shall deliver the Products in accordance with the Agreement. Delivery times and dates are merely estimates, as well as lead times or any other deadlines, and Chef’s Cabinet Corporation cannot be held liable for any damages as a result of delay in delivery of the Products. Unless otherwise agreed in writing, failure to meet delivery times or delivery dates stated shall never be considered fatal, and if the time for delivery is exceeded, Customer shall notify Chef’s Cabinet Corporation of such in writing. Customer shall not be entitled to cancel or terminate the Agreement, or to claim any damages.
- Chef’s Cabinet Corporation is entitled to engage the services of third parties for the execution of an Agreement. Chef’s Cabinet Corporation will arrange for shipment of the Products to Customer. Please check the individual product page for specific delivery options. Customer will pay all shipping and handling charges specified during the ordering process.
- The risk of loss or damage of Products shall pass to Customer at the moment of delivery Ex Works, even if Chef’s Cabinet Corporation has not yet transferred ownership thereof. Any damage to the Products shall be for the account of the Customer.
- Chef’s Cabinet Corporation shall have the right to change Products and/or to discontinue Products from time to time and shall not be liable for any loss of damage of whatever kind or nature suffered or incurred by Customer as a result thereof.
- Inspection, Acceptance of Products
- Claims in connection to shortages or errors in shipping must be reported in writing to Chef’s Cabinet Corporation within two (2) days of receipt of such shipment. If Customer fails to report timely, Chef’s Cabinet Corporation will have no obligation to correct such shipments, unless Customer bears all the expenses thereof.
- Immediately upon receipt of the Products, Customer shall inspect it for defects and non-conformance with the Agreement and will notify Chef’s Cabinet Corporation in writing within seven (7) days of receipt of a Product, of any defects or non-conformance. After such seven (7) day period, Customer shall be deemed to have irrevocably accepted the Products, if not already previously accepted. After acceptance, Customer shall have not right to reject the Products for any reason or to revoke acceptance. Customer hereby agrees that a seven (7) day period is a reasonable amount of time for inspection and revocation.
- In the case of any alleged shortage, errors, defects or non-conformance with the Agreement, Customer shall allow Chef’s Cabinet Corporation to inspect the goods subject to the alleged defect.
- Notwithstanding the above, Chef’s Cabinet Corporation will have no obligation to replace or repair any Products if the Products have been handled, processed or stored improperly by the Customer, or if the Products have already been used or processed and/or if the Customer has not fully met its obligations under these Terms and Conditions.
- THE SOLE AND EXCLUSIVE REMEDY FOR ALLEGEDLY DEFECTIVE PRODUCTS IS THE REPLACEMENT OF SUCH PRODUCTS OR PARTS OF SUCH PRODUCTS, AT NO COSTS FOR CUSTOMER.
- Intellectual Property Ownership and Right of Use
- All intellectual property rights, e.g., patents, copyrights, trademarks, designs, models, know-how and all proprietary and/or commercial rights and trade secret rights, tools, documentations, etc., in relation to the Products, including modifications thereto, delivered and/or used by Chef’s Cabinet Corporation, are owned by Chef’s Cabinet Corporation or its licensor(s). No transfer or other grant of rights is given to Customer, unless explicitly stated in writing. This applies even if Products have been specifically designed, developed or complied for the Customer.
- Customer will have a personal non-exclusive and non-transferable license to use the Products and other material according to these Terms and Conditions and the Agreement, solely for Customer’s personal use in accordance with all applicable laws.
- Limited Warranty
- All Products are for food or beverage use only, and provided the Products are used for these purposes only, Chef’s Cabinet Corporation warrants that the Products materially meet the written specifications provided by Chef’s Cabinet Corporation and will be materially free from defects in material and workmanship for a period of twelve (12) months as of the invoice date.
- Chef’s Cabinet Corporation’s limited warranty applies only, if Products are used use in compliance with Chef’s Cabinet Corporation’s manual and does not cover regular wear and tear, or faults or damages arising from faulty, careless, or improper use or treatment, faulty use, improper storage or unloading and unauthorized unpacking of Products, and improper or defective environmental circumstances.
- The rights of the Customer with respect to this warranty clause are subject to Customer’s compliance with the Products’ manual and any other written instructions or other directions given by Chef’s Cabinet Corporation in relation to the Products.
- To the maximum extent permitted by applicable law, CHEF’S CABINET CORPORATION , its licensors, third party suppliers, and affiliates hereby disclaim all warranties, conditions, claims or representations with respect to the Chef’s Cabinet Corporation Products whether express, implied or statutory or otherwise, including, but not limited to implied warranties or conditions of merchantability, quality, non-infringement, compatibility or of fitness for a particular purpose, unless explicitly made and provided by CHEF’S CABINET CORPORATION in writing to Customer. No advice or information, whether oral or written, obtained from CHEF’S CABINET CORPORATION or elsewhere will create any warranty or condition not expressly stated in these terms and conditions.
- Liability and Limitation of Damages
- 10.1.In no event shall CHEF’S CABINET CORPORATION, its affiliates or its licensors be liable, however caused and whether arising under contract, warranty, tort (including negligence), product liability or any other form of liability, for any indirect, incidental, special, punitive or consequential damages, or any loss of income, business, sales, profits (whether actual or anticipated) or interruption of business.
- 10.2.Notwithstanding anything else in this agreement to the contrary, CHEF’S CABINET CORPORATION ’s aggregate liability for all claims of any kind shall not exceed THE AMOUNT paid by Customer for the Products IN CONNECTION TO WHICH THE DAMAGES HAVE occurred.
- 10.3.10.3 The limitations on CHEF’S CABINET CORPORATION ’S liability above shall apply whether or not CHEF’S CABINET CORPORATION, its employees, licensors or its affiliates have been advised of the possibility of such losses or damages arising.
If any provision of these Terms and Conditions, the Agreement or any other agreement between the Parties, is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.
- Force Majeure
Chef’s Cabinet Corporation will not be liable for any delay in performing or failure to perform any of its obligations under these Terms and Conditions or the Agreement caused by events beyond its reasonable control, including, but not limited to war, acts of terrorism, riots, vandalism, strikes, lockouts, labor disputes, natural disasters, governmental actions, pandemics, including Covid19, fire, amendments in laws or regulations, unavailability of raw materials, the occurrence of hazardous substances, or other similar circumstances. Chef’s Cabinet Corporation will notify Customer promptly in writing of the reasons for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage. Chef’s Cabinet Corporation shall have the right to suspend its obligations under the Agreement during the duration of the force majeure event. If the duration of such force majeure event exceeds thirty (30) days, Chef’s Cabinet Corporation will have the right to terminate the Agreement in accordance with Section 10.4 above.
Customer is not permitted to assign, delegate or otherwise transfer the Agreement or any rights hereunder. Any such attempted assignment, delegation or transfer will be null and void. Chef’s Cabinet Corporation is permitted at its sole discretion to assign the Agreement or any rights or obligations hereunder to any third party, without giving prior notice.
- Entire Agreement
The Agreement and these Terms and Conditions contain the entire agreement between Chef’s Cabinet Corporation and Customer regarding Customer’s purchase of the Products, and supersedes and replaces any previous communications, representations or agreements, or Customer’s additional or inconsistent terms, whether oral or written.
- No Waiver
The failure to exercise, or delay in exercising, a right, power or remedy provided by the Agreement or these Terms and Conditions or by law shall not constitute a waiver of that right, power or remedy. If Chef’s Cabinet Corporation waives a breach of any provision of these Terms and Conditions or the Agreement, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision.
- No Beneficiaries
Any agreement between the Parties is for the sole benefit of the Parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the Parties thereto, any legal or equitable rights thereunder.
- Governing Law and Binding Arbitration
Unless stated otherwise in writing, any and all agreements between the Parties shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding conflict of law principles, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods.
CUSTOMER AND CHEF’S CABINET CORPORATION ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT CUSTOMER WOULD HAVE IF CUSTOMER WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND CHEF’S CABINET CORPORATION ARISING FROM OR RELATING IN ANY WAY TO THE PURCHASE OF PRODUCTS FROM CHEF’S CABINET CORPORATION, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified by this Article 18 (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
Customer may elect to pursue a claim in small-claims court rather than arbitration if Customer provides Chef’s Cabinet Corporation with written notice of its intention do so within (sixty) 60 days of purchase of a Product. The arbitration or small-claims court proceeding will be limited solely to Customer’s individual dispute or controversy.
Customer agrees to an arbitration on an individual basis. In any dispute, NEITHER CUSTOMER NOR CHEF’S CABINET CORPORATION WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
ANY CAUSE OF ACTION AGAINST CHEF’S CABINET CORPORATION, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.