All American Chicken


1. TERMS AND CONDITIONS OF SALE. These Terms and Conditions of Sale (“Terms and Conditions”) are the terms and conditions of sale for all vending machines, vending machine parts and supplies, and other equipment and products (collectively, “Products”) sold by All American Chicken LLC, a New York limited liability company (“AAC”). Any AAC order form, quotation, order acknowledgement, or other order document (each an “Order Form”), electronic or otherwise, is an offer subject to and expressly conditioned upon these Terms and Conditions. Any provisions, conditions, or terms contained in a buyer’s purchase order that are in addition to or not consistent with the applicable Order Form and these Terms and Conditions are null and void and not binding on AAC. Placing an order with AAC or accepting any Products from AAC will constitute acceptance by the buyer (“Buyer”) of these Terms and Conditions.

2. PRICING AND PAYMENT. Amounts listed on an Order Form are due and payable on or before the date the order is placed or as otherwise provided on the Order Form. All other amounts are due and payable thirty (30) days from the date of AAC’s invoice. Payment not received when due will bear interest until paid at the rate of 1.5% per month or the maximum rate allowed by law. TIME FOR PAYMENT IS OF THE ESSENCE. Except as otherwise expressly provided in the applicable Order Form, prices quoted are for Products only and do not include any amount for freight, insurance, custom duties or excise, sales, use, service, value-added or similar taxes, all of which are the responsibility of Buyer. If Buyer believes it is exempt from any such amounts, Buyer must provide AAC with an exemption certificate acceptable to AAC with or prior to the applicable order. AAC reserves the right to change quoted prices if the quoted business assumptions change.

3. SECURITY INTEREST. Buyer grants to AAC a security interest and right of possession in and to the Products and all proceeds of the Products (including, without limitation, all accounts, general intangibles, chattel paper, instruments and investment property) to secure payment of the purchase price for the Products. Buyer will cooperate in whatever manner necessary to assist AAC in perfecting and recording such security interest.

4. DELIVERY. All shipments are made F.O.B. AAC’s shipping location, freight prepaid and charged back. Title and risk of loss or damage to Products will pass to Buyer at the F.O.B. point. Delivery dates are estimates only. For deliveries delayed due to causes beyond AAC’s control, delivery dates will be extended by a time period equal to the time lost.

5. CANCELLATION; RETURNS. Buyer may cancel a Product order only upon payment of a cancellation charge consisting of AAC’s incurred costs, committed costs and a reasonable contract profit. Except as otherwise provided in the applicable Order Form, Buyer may return Products within thirty (30) days after the date on the packing slip or invoice, less shipping and handling and applicable restocking fees. Before returning a Product, Buyer must contact AAC directly to obtain a return authorization number to include with the return. Returns without a valid return authorization number will not be accepted. Products must be returned in their original or equivalent packaging, and Buyer is responsible for risk of loss, as well as shipping and handling fees.

6. LIMITED WARRANTY. Products are warranted by AAC to be free from defects in material and workmanship, under normal use and operation, at the time of shipment to Buyer. AAC will repair or replace any Product sold under these Terms and Conditions with any defect warranted against, provided that AAC receives written notice of the defect from Buyer within seven (7) days after the date that Buyer received the Product. The foregoing is AAC’s sole and exclusive obligation and Buyer’s sole and exclusive remedy with respect to Products that fail to perform as warranted. AAC may in certain instances issue a return authorization number and instruct Buyer to return a defective Product or part thereof in exchange for a replacement at AAC’s cost and expense, and Buyer will comply with any such instructions. This warranty is extended by AAC to Buyer only, and is the complete warranty for Products sold by AAC. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS AND CONDITIONS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. This warranty will not be enlarged and no obligation or liability will arise out of AAC’s rendering of technical advice and/or assistance.

7. LIMITATION OF LIABILITY. AAC’s total liability arising out of or relating to these Terms and Conditions, whether for breach of contract, breach of warranty, negligence, strict liability in tort or otherwise, is limited to the price of the Products sold to Buyer under these Terms and Conditions with respect to which losses or damages are claimed. IN NO EVENT WILL ALL AMERICAN CHICKEN BE LIABLE TO BUYER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, ARISING OUT OF OR RELATING TO THE BREACH OF ANY OF ITS OBLIGATIONS UNDER THESE TERMS AND CONDITIONS, EVEN IF ALL AMERICAN CHICKEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The parties expressly agree that AAC’s pricing reflects the allocation of risk embodied in the foregoing limitation of liability.

8. INTELLECTUAL PROPERTY. Except as specifically provided in these Terms and Conditions, AAC retains title and all rights to any inventions, patents, trademarks, copyrights, trade secrets or other intellectual property relating to the Products, and these Terms and Conditions convey no license to Buyer under any intellectual property or other proprietary right of AAC.

9. CONFIDENTIAL INFORMATION. To the extent that protection of information or materials to be transferred pursuant to or in connection with these Terms and Conditions is covered by an existing confidentiality agreement, such existing agreement will apply. Otherwise, the following terms will apply: AAC may furnish to Buyer information or materials (collectively, “Materials”) identified as confidential or proprietary. Buyer may not disclose such Materials except to its employees who may require use of the Materials in the performance of their duties, and Buyer may use such Materials only as authorized by AAC. Buyer’s obligations with respect to such Materials will survive any termination or expiration of these Terms and Conditions and continue indefinitely or for the maximum time permitted by applicable law.

10. SOFTWARE. Where a Product consists of or includes software, such software (“Software”) is being licensed, not sold, to Buyer, and Buyer will be licensed to use the Software only as provided in the applicable end-user license agreement or other license terms included with the Product and/or Software. All rights in the Software not expressly granted in the applicable license terms are reserved to AAC and/or its licensors.

11. FORCE MAJEURE. AAC will not be liable to Buyer for any loss, damage or delay arising out of its failure to perform due to causes beyond its reasonable control, including without limitation acts of God or Buyer, acts of civil or military authority, fires, strikes or labor disruptions, floods, epidemics, quarantine restrictions, war, riots, terrorism, delays in transportation, transportation embargoes, and delays in the supply of raw materials or components from AAC’s suppliers.

12. INJUNCTIVE RELIEF. In the event that Buyer (a) violates any of its confidentiality obligations under these Terms and Conditions, (b) violates its license rights with respect to any Software, or (c) misappropriates any intellectual property or other proprietary right of AAC, AAC will be irreparably harmed, the damages sustained by AAC will be difficult or impossible to ascertain, and AAC will be entitled to obtain injunctive and other equitable relief without proof of actual damages or need to post bond.

13. ENTIRE AGREEMENT. These Terms and Conditions contain the entire agreement between the parties and supersede all proposals and other communications between the parties, oral or written, relating to the subject matter hereof. No agent, representative or dealer of AAC has any authority to bind AAC to any terms, stipulations, representations, warranties or commitments not included in these Terms and Conditions.

14. MODIFICATIONS; SEVERABILITY. No modifications to these Terms and Conditions will be effective unless agreed upon in writing by both parties. If any provision of these Terms and Conditions is deemed to be invalid or unenforceable, the remaining provisions will be valid and binding as if such provision were not included.

15. WAIVER. The failure of AAC to insist, in any one or more instances, upon the performance of any of the terms or conditions of these Terms and Conditions, or to exercise any right set forth in these Terms and Conditions, will not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such right.

16. ASSIGNMENT. No right, interest or obligation in these Terms and Conditions may be assigned or delegated by Buyer without the prior written consent of AAC, and any attempted assignment or delegation in violation of the foregoing will be void and of no effect.

17. APPLICABLE LAW; JURISDICTION. These Terms and Conditions shall be construed according to, and the rights and duties of the parties shall be governed by, the laws of the State of New York, without reference to choice-of-law rules. The parties hereby consent to the exclusive jurisdiction of the state and federal courts in Nassau County, New York, except that nothing shall prevent AAC from seeking injunctive relief in any other court of competent jurisdiction.