Terms and Conditions

THE CUPPO OF COFFEE AND TEA - TERMS AND CONDITIONS

The company accepting these Terms and Conditions of having a wholesale account (“Purchaser”) acknowledges having reviewed, understood and approved these terms. Purchaser accepts all of the terms and conditions and agrees to be bound by all such terms and conditions by purchasing the The Cuppo of Coffee and Tea products.

1. AGREEMENT. This Agreement sets forth the entire agreement between the parties and their respective heirs, legal representatives, successors and assigns regarding the sale by The Cuppo of Coffee and Tea of the merchandise identified and supersedes all prior orders, agreements, negotiations and representations, oral or written, regarding such sale. No waiver, amendment, modification or assignment of this Agreement or any of the terms or conditions hereof shall be effective against The Cuppo of Coffee and Tea unless approved in writing by an officer of The Cuppo of Coffee and Tea. Any additional or inconsistent terms shall be deemed material alterations within the meaning of California Uniform Commercial Code section 2207(2)(b) and shall not become a part hereof unless approved in writing by an officer of The Cuppo of Coffee and Tea.

2. NO WARRANTY OR GUARANTEE. The Cuppo of Coffee and Tea MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT ONLY THAT The Cuppo of Coffee and Tea WARRANTS THAT THE MERCHANDISE TO BE SOLD BY The Cuppo of Coffee and Tea TO PURCHASER SHALL SUBSTANTIALLY CONFORM TO THE DESCRIPTION SET FORTH ON THE FRONT SIDE HEREOF. The Cuppo of Coffee and Tea DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.

3. CERTAIN TERMS OF SALE. All payments shall be due within 7 days from the Agreement date which shall be the date of shipment. Purchaser must notify The Cuppo of Coffee and Tea of any full or partial nonacceptance of delivery or rejection of any delivery on the grounds of nonconformity within ten (10) days after receipt thereof by Purchaser or otherwise Purchaser shall be conclusively deemed to have unconditionally accepted such merchandise. Purchaser must notify The Cuppo of Coffee and Tea of all billing errors in writing prior to the billing due date. Failure to give notice will be considered a waiver by Purchaser of all rights to challenge the correctness thereof. If Purchaser fails to pay any amount payable, The Cuppo of Coffee and Tea may assess a late charge in the amount of one and one-half percent (1-1/2%) of the unpaid balance per month, but not to exceed the maximum amount permitted by law, payable on demand, in addition to any other remedies of The Cuppo of Coffee and Tea. Purchaser shall pay all costs and expenses incurred by The Cuppo of Coffee and Tea in collecting delinquent amounts (including late charges), including attorneys' fees and costs. The Cuppo of Coffee and Tea may accept partial payment on any invoice, which shall not constitute a waiver of The Cuppo of Coffee and Tea's right to collect the balance or an accord and satisfaction notwithstanding The Cuppo of Coffee and Tea’s endorsement of Purchaser's check.

4. RETURN POLICY. (a) Purchaser must receive prior written authorization to return, or receive credit for any merchandise returns, from The Cuppo of Coffee and Tea within 30 days of the receipt of the product. NO UNAUTHORIZED RETURNS WILL BE CREDITED; any unauthorized returns and the freight charges therefor will be the sole responsibility of Purchaser; (b) no deduction for pending returns will be allowed without a written return authorization from The Cuppo of Coffee and Tea; (c) Purchaser’s account must be current before The Cuppo of Coffee and Tea will issue any return authorization; (d) the maximum allowable return is set forth in the The Cuppo of Coffee and Tea Distributor Agreement, which will be provided to Purchaser on request and is subject to change without notice. Any failure by Purchaser to adhere to this policy shall be considered a default by The Cuppo of Coffee and Tea and shall entitle The Cuppo of Coffee and Tea, among other things, to cancel any open orders from Purchaser and/or to adjust or revoke Purchaser’s credit line with The Cuppo of Coffee and Tea.

5. RISK OF LOSS; TAXES. Title and risk of loss and damage to any merchandise covered by this Agreement shall pass to Purchaser immediately upon loading of the merchandise on the carrier’s trucks or other vehicles, except that risk of loss on “bill and hold” merchandise shall pass to Purchaser on such loading or invoicing by The Cuppo of Coffee and Tea, whichever occurs first. The Cuppo of Coffee and Tea shall have no obligation to insure any merchandise. Purchaser consents to any transportation arrangements made by The Cuppo of Coffee and Tea. Any taxes, levies or other charges which may be imposed or levied on the sale of the merchandise by The Cuppo of Coffee and Tea shall be paid by Purchaser.

6. DEFAULT; TERMINATION. If Purchaser wrongfully rejects or revokes acceptance of merchandise or fails to perform in accordance with these terms and conditions or any other agreement, document or instrument), or if Purchaser dissolves, liquidates, merges, reorganizes or has a change in control, or if any guarantor of any of Purchaser’s obligations to The Cuppo of Coffee and Tea should be in default to The Cuppo of Coffee and Tea, or if The Cuppo of Coffee and Tea, in its sole discretion, becomes dissatisfied with Purchaser’s creditworthiness for any reason, Purchaser shall be deemed to be in default hereunder. In such event The Cuppo of Coffee and Tea may, in its sole discretion, elect to (i) accelerate the due date of payment for any merchandise which has been shipped to Purchaser but has not yet been paid in full; (ii) require payment in full for any merchandise which has been ordered by Purchaser (and approved by The Cuppo of Coffee and Tea) in advance of shipment; (iii) terminate this Agreement and any other agreements between The Cuppo of Coffee and Tea and Purchaser and decline to ship any additional merchandise to Purchaser, (iv) revoke or adjust Purchaser’s credit line (if any) with The Cuppo of Coffee and Tea; (v) stop delivery of any merchandise in transit; and/or (vi) recover damages from Purchaser, in addition to any other remedies of The Cuppo of Coffee and Tea. If The Cuppo of Coffee and Tea elects option (iii) above, The Cuppo of Coffee and Tea shall refund any advance payments made by Purchaser, net of any damages incurred by The Cuppo of Coffee and Tea, and Purchaser shall return at its expense all merchandise previously delivered by The Cuppo of Coffee and Tea; The Cuppo of Coffee and Tea shall have the right to reclaim such merchandise, wherever located, and without notice, if Purchaser fails to return such merchandise promptly. The Cuppo of Coffee and Tea shall not be required to resell any returned or undelivered merchandise. All remedies of The Cuppo of Coffee and Tea set forth in this Agreement shall be cumulative and in addition to all other remedies available to The Cuppo of Coffee and Tea under any other agreement, document or instrument or at law or in equity, all of which are hereby reserved. Any notice in relating to the Agreement or other applicable agreement shall be in writing to the other party at the address shown on the front side hereof. Purchaser’s damages on account of a default by The Cuppo of Coffee and Tea shall be limited to the difference between the contract price as set forth on the front side hereof and the market price of the merchandise, less expenses saved by Purchaser as a result thereof. IN NO EVENT SHALL The Cuppo of Coffee and Tea BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS.

7. FORCE MAJEURE. Notwithstanding anything herein to the contrary, The Cuppo of Coffee and Tea’s performance hereunder shall be suspended where prevented or hindered by causes beyond the control of The Cuppo of Coffee and Tea, such as accidents, strikes or other labor disturbances, natural disaster, war, civil disturbance, computer network or Internet malfunction, sabotage, equipment failure or repair, failure of The Cuppo of Coffee and Tea’s suppliers to deliver goods, plant shutdown, theft or acts of God. If The Cuppo of Coffee and Tea’s performance is delayed for more than one month as a result of such event, The Cuppo of Coffee and Tea shall have the right to terminate any remaining performance of The Cuppo of Coffee and Tea under this Agreement. The Cuppo of Coffee and Tea has advised Purchaser to carry its own insurance to protect itself against loss upon the occurrence of any such event.

8. GOVERNING LAW; ARBITRATION. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. The Cuppo of Coffee and Tea and Purchaser agree that in the event of any dispute arising out of or otherwise relating to this Agreement, the matter shall be resolved by binding arbitration before the American Arbitration Association (the "Association") in New York. Each party shall pay one-half of the arbitration and filing fees prior to commencement of the arbitration. If any party fails to pay its share of such fees, it shall not be allowed to participate in the arbitration and the other party may pay the unpaid portion. The prevailing party shall be entitled to recover all such fees paid by it and its reasonable attorneys’ fees and costs.

9. MISCELLANEOUS. In the event that The Cuppo of Coffee and Tea consents in writing to waive any of the provisions hereof, that shall not constitute a waiver of such provision with respect to any other matter or event or a waiver of any other provision hereof. Purchaser shall indemnify and hold The Cuppo of Coffee and Tea harmless from any claim or liability (including but not limited to reasonable attorneys’ fees) arising from any act or omission of Purchaser, except where due to The Cuppo of Coffee and Tea’s gross negligence or willful misconduct. If Purchaser is an individual or sole proprietor, Purchaser acknowledges that this Agreement arises out of the conduct of a trade, business or profession by Purchaser. The section headings in this Agreement are for convenience only and are not to be deemed a part of this Agreement or used in the construction hereof. If any provision of this Agreement shall be found to be invalid or unenforceable, that shall not affect the remainder of this Agreement. All sales and other agreements between Purchaser and its customers are the exclusive responsibility of Purchaser and any commitment made by Purchaser to such customers with respect to the delivery, performance, suitability or other matters relating to the products are Purchasers sole responsibility.