Terms and Conditions
Zimbi General Terms and Conditions (“Terms”)
Effective Date: September 1, 2011
These General Terms and Conditions (“Terms”), as may be supplemented or amended from time to time, shall govern any purchase of Zimbi brand beverage drinks by you from Xymbiot, Inc, (“Zimbi”), except as otherwise provided by the terms of a separate written agreement between you and Zimbi. Products. The products (“Products”) covered by these Terms include the ZIMBI brand of beverages manufactured by Zimbi. Trademarks. You may use our trademarks for the sole purpose of marketing and selling the Products under such restrictions and conditions as we may impose.
New Products and Discontinuations We may offer new Products or discontinue any Products in our sole discretion.
Prices The Price List and minimum-order requirements are subject to change on thirty (30) days notice. Any such changes shall take effect only on orders placed after such thirty (30) day period. You agree to notify us if you intend to sell any of the Products at a price in excess of our then suggested retail prices.
Order Procedure, Payment and Shipping Terms Unless otherwise agreed in writing by us, the selling price to you for the Products shall be our pricing as published on our Price List at the time of order. To purchase Products you submit a purchase order to us in writing or on line, which purchase order shall set forth, at a minimum: identification of the Products ordered, quantity and requested delivery dates. Upon receipt of a purchase order, we will either accept it or reject it. Unless we other agree, payment for the Products shall be in payable in full in U.S. Dollars at time of shipment to you. Unless we otherwise agree, the shipments and risk of loss for Products are Ex Works at our facilities or manufacturing site. That means you are responsible for all shipping charges and takes full responsibility for the loading and shipment of the Products.
Title and risk of loss pass to you in accordance with the definition of Ex-Works (EXW) in Incoterms 2000. We shall have no liability to you for our failure to fill a purchase order presented by you which we have not accepted in writing.
Taxes Any tax, duty, custom or other fee of any nature imposed upon this transaction by any Federal, State or local governmental authority shall be paid by you in addition to the selling price of the Products.
Returns and Refunds All returns must be accompanied by a Return Merchandise Authorization number and are subject to a 25% restocking charge when accepted. Freight and liability for all returned product is your responsibility. Returned product without an RMA number will not be accepted.
Advertising and Promotion Any advertising and promotional materials not supplied by us shall be submitted to us for our written approval prior to the use of any such material. Except as otherwise provided in any promotional program we have offered to you, we are not responsible to reimburse or credit you for any promotional offers, special pricing, or advertising.
Licenses and Permits You agree that you shall obtain any and all licenses and permits which may be required under all applicable Federal, State or local law in order to perform the duties and obligations hereunder. You also agree to all applicable bottle bill and deposit laws within the Territory.
Compliance with Laws You agree to comply with the rules of fair competition and all other applicable Federal, State or local laws and regulations including the laws and regulations concerning your business and your sale and distribution of foods and beverages.
Expiration Date You agree to not sell any of the Products beyond the “use by” or “exp” date contained on the Products. Zimbi has adopted a buy-back program to repurchase limited amounts of Products (not to exceed 1% in value of your purchases) purchased by you that have reached their “use by” or “exp” date. Further information regarding the buy-back program is available from Zimbi. This program may be changed or discontinued by Zimbi at any time. Indemnity. You hereby agree to indemnify and hold us and our subsidiaries, parents, affiliates, officers, directors, shareholders, employees and agents harmless for all claims, suits, demands, actions and liability of any kind of nature arising out of or otherwise connected with (i) your violation of any local, state or federal applicable laws, government rules, regulations, orders, decrees and ordinances related to the distribution of nonalcoholic beverages including but not limited to any local, state, or federal bottle deposit laws and reporting regulations, and (ii) your breach of these Terms or any written agreement you have with us.
Force Majeure Neither party hereto shall be liable to the other for delay in any performance or for the failure to render any performance when such delay or failure is a direct result of any present or future statute, law, ordinance, regulation, order, failure to deliver on the part of its suppliers or carriers, judgment or decree, act of God, earthquake, epidemic, explosion, lockout, boycott, strike, labor unrest, riot, war, or similar catastrophic occurrence.
Governing Law These Terms and all matters relating hereto shall be governed by the laws of the state of Utah, but without reference to the choice of law provisions thereof.
Entire Agreement; Amendment These Terms and any written agreement signed by us contain the entire agreement and understanding of the parties hereto with respect to the matters herein set forth, and all prior negotiations and understandings relating to the subject matter are merged herein and are superseded and canceled. These Terms may be modified by us for any reason upon sixty (60) days written notice.
Warranty Our limited warranty and return policy is available below. If you have signed a Distributor Agreement with Zimbi, the following provisions shall also apply to you.
Becoming a Distributor To become a Zimbi distributor, you must sign our Distributor Agreement (“Agreement”). Territory. You may distribute and sell the Products only in the Territory provided in your Agreement. Without our prior written consent, you may not market, promote or sell Products outside of the Territory.
Sales Channel You may distribute and sell the Products only in the Sales Channel provided in your Agreement. Without our prior written consent, you may not market, promote or sell Products outside of the Sales Channel.
Independent Distributor You shall buy and sell the Products in your own name and for your own account as an independent contractor, and not an employee, agent, joint venturer or partner of Zimbi. You shall identify yourself as an independent distributor and may not, in any manner, accept any obligation, incur any liability, promise any performance or pledge any credit on behalf of, or for the account of, us. We shall each be responsible for our own expenses and charges incurred under as a result of your being a distributor.
Duration Except as otherwise provided in your Agreement, your appointment as a distributor and the provisions of these Terms shall continue until such time as either party gives thirty (30) days written notice of intent to terminate for any reason or no reason.
Procedure Upon Termination Upon termination of these Terms and your appointment as a distributor, we are entitled to restrict or cease deliveries of the Products to you. Also, you shall cease to have any rights, liabilities or obligations hereunder, with the exception of those obligations listed under the section entitled “Indemnity” which shall survive termination.
WARRANTY AND RETURN POLICY
ZIMBI WARRANTS THAT ALL PRODUCTS WHICH ARE SOLD HEREBY TO DISTRIBUTOR AND/OR RETAILER (HEREINAFTER BOTH REFERRED TO AS “BUYER”), AT THE TIME OF DELIVERY TO BUYER BY ZIMBI WILL (i) NOT BE ADULTERATED, MISLABELED, OR MISBRANDED, WITHIN THE MEANING OF THE FEDERAL FOOD, DRUG AND COSMETIC ACT, (ii) BE SAFE, AND FIT FOR THE PURPOSE INTENDED AND (iii) COMPLY WITH ALL APPLICABLE FEDERAL AND STATE LAWS AND REGULATIONS. ZIMBI MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED TO BUYER WITH RESPECT TO THE PRODUCTS.
PRODUCTS WHICH DO NOT CONFORM TO THEIR DESCRIPTION OR WHICH ARE DEFECTIVE IN MATERIAL OR WORKMANSHIP WILL, BY ZIMBI’S DECISION, BE REPLACED, OR, AT ZIMBI’S OPTION, CREDIT FOR THE ORIGINAL PURCHASE PRICE MAY BE ALLOWED PROVIDED THAT BUYER NOTIFIES ZIMBI IN WRITING OF SUCH DEFECT WITHIN THIRTY (30) DAYS OF DISCOVERY BUT NOT LATER THAN SIXTY (60) DAYS AFTER DELIVERY AND BUYER RETURNS SUCH PRODUCTS IN ACCORDANCE WITH ZIMBI’S INSTRUCTIONS. NO PRODUCTS MAY BE RETURNED BY BUYER WITHOUT ZIMBI’S PRIOR WRITTEN AUTHORIZATION.
THIS WARRANTY DOES NOT APPLY TO ANY PRODUCT WHICH HAS BEEN SUBJECTED TO MISUSE, ABUSE, NEGLIGENCE OR ACCIDENT BY BUYER OR THIRD PARTIES. ZIMBI MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THAT OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. FAILURE TO MAKE ANY CLAIM IN WRITING, OR WITHIN THE THIRTY (30) DAY PERIOD SET FORTH ABOVE, SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THE PRODUCTS AND AN ADMISSION BY BUYER THAT THE PRODUCTS FULLY COMPLY WITH ALL TERMS, CONDITIONS AND SPECIFICATIONS OF BUYER’S PURCHASE ORDER. ZIMBI SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES. TO MAKE A CLAIM UNDER THIS WARRANTY, BUYER MUST NOTIFY ZIMBI IN WRITING WITHIN THE THIRTY DAY PERIOD SET FORTH ABOVE. THE FOREGOING CONSTITUTES BUYER’S SOLE AND EXCLUSIVE REMEDY AND ZIMBI’S SOLE OBLIGATION WITH RESPECT TO PRODUCTS FURNISHED HEREUNDER.