Equipment Usage Terms & Conditions
These Equipment Usage Terms and Conditions (the “Equipment Terms”) are incorporated by reference into any agreement (collectively, the “Agreement”) by which Farmer Bros. Co. (including any of its subsidiaries and affiliates, “FBC”) provides Equipment (defined below) at the location(s) of a party purchasing products (including any of its subsidiaries and affiliates, “Operator”) from FBC. FBC and Operator are collectively referenced in these Equipment Terms as the “Parties” and individually as a “Party”.
1. EQUIPMENT DESCRIPTION AND LOCATION: FBC may agree to allow Operator to use certain Equipment owned by FBC (“Equipment”). FBC will determine the appropriate model(s) and quantity of Equipment to assign to Operator. Operator will not remove, reposition or relocate any Equipment from the location(s) where it is installed by FBC without FBC’s prior written consent.
2. EQUIPMENT OWNERSHIP: FBC will retain title to and ownership of the Equipment at all times. Operator will not (a) remove or obscure labeling on the Equipment indicating that it is the property of FBC or (b) sell, assign, transfer, pledge, hypothecate or otherwise dispose of, encumber or permit a lien to be placed on any of the Equipment. Upon termination of the Agreement, Operator will provide FBC reasonable access to Operator’s location(s) during normal business hours so FBC may remove the Equipment.
3. USE OF EQUIPMENT: Operator will only use the Equipment to dispense, brew, sell or store products purchased from FBC (the “Products”), and will not use the Equipment to dispense, brew, sell or store any products other than such Products.
4. CARE AND OPERATION: Operator will maintain and use the Equipment in a careful and proper manner pursuant to the written instructions of the Equipment manufacturer and FBC, and will not make any modifications to the Equipment without FBC’s prior written consent. Any modifications to the Equipment of any kind will immediately become the property of FBC subject to the Agreement. Operator will comply with all laws, ordinances and regulations relating to the possession, use and maintenance of the Equipment. FBC will not be responsible for any damages, claims, injury or liability (collectively, “Damages”) relating to the operation of the Equipment while it is in the possession of Operator (except for Damages caused by the negligence of FBC, its employees, agents or contractors). Operator will be responsible for all Damages caused by its negligent use of the Equipment and for the loss, theft or destruction of the Equipment.
5. INSTALLATION AND SERVICE: FBC will conduct a basic installation of the Equipment, consisting of connecting the Equipment to an established water line with a shut-off valve, adding a water filtration system and filter, and calibrating the Equipment for optimum performance, on Operator’s premises at no charge. Operator must ensure that the plumbing and electrical service are in good working order and compliant with all applicable building codes, landlord requirements and other requirements. At Operator’s request, FBC will arrange for a licensed contractor to perform electrical or plumbing services required in connection with the basic installation with all such costs to be paid by Operator. FBC will service the Equipment at no additional cost to Operator to the extent FBC sees fit in its sole discretion, except that FBC (a) may charge a $200 per visit fee if service calls exceed two (2) calls per month and (b) will install replacement filters for the water filtration system included in the Equipment every 90 to 120 days at FBC’s current list price for the filter to be paid by Operator (collectively, with the basic installation described above, the “Services.”). Operator will afford reasonable access to the Equipment during normal business hours so FBC may service the Equipment. FBC will not be responsible for any delays in repairing or replacing Equipment. Any Services provided by FBC to Operator will be subject to FBC’s Terms and Conditions of Sale (the “Sale Terms”), a current copy of which can be found at www.farmerbros.com.
6. INSPECTION: FBC or its representatives may at all reasonable times during normal business hours enter the premises where the Equipment is located to inspect the condition and operation of the Equipment.
7. ACCEPTANCE OF EQUIPMENT: Operator will immediately inspect each piece of Equipment delivered by FBC and give notice to FBC if any Equipment is damaged or different from the type of Equipment described in its Agreement with FBC. If Operator gives no such notice within 14 days after delivery of any piece of Equipment, it will be conclusively presumed that such Equipment was delivered in good condition. THE EQUIPMENT AND ALL SERVICES ARE PROVIDED “AS IS.” FBC MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, AND EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE EQUIPMENT AND THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OR FITNESS FOR ANY PURPOSE AND THE MERCHANTABILITY OF THE EQUIPMENT AND SERVICES. No employee or agent of FBC is authorized to modify the foregoing warranty or to make additional warranties that are binding on FBC.
8. RISK OF LOSS OR DAMAGE: Operator assumes all risk of loss or damage to the Equipment from any cause, including but not limited to fire, theft, water damage, accidental overturning, dropping or negligence and agrees to return the Equipment to FBC in the same condition as when received, normal wear and tear excepted. In the event of loss or damage to the Equipment due to any cause other than ordinary wear and tear, Operator will place the Equipment in good repair or pay FBC the value of the Equipment. Operator will, to the full extent permitted by law, release, indemnify, defend and hold harmless FBC from any loss, damage, liability, cost, fine or expense, including reasonable attorneys’ fees, incurred in connection with the Services, or Operator’s use, possession or operation of the Equipment.
9. LIMITATION OF LIABILITY: Notwithstanding any provisions in the Agreement or any other agreement between the Parties to the contrary, the total liability of FBC to Operator, whether in contract, tort (including negligence and strict liability) or otherwise is limited to repair or replacement of the Equipment. IN NO EVENT WILL FBC BE LIABLE IN ANY ACTION, INCLUDING WITHOUT LIMITATION, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE EQUIPMENT OR SERVICES, LOSS OF USE, PROFITS, REVENUE, OR DATA, OR BUSINESS INTERRUPTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION, POSSESSION, SERVICE OR OPERATION OF THE EQUIPMENT, EVEN IF FBC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) DAMAGES THAT EXCEED THE AMOUNTS PAID OR OWED BY OPERATOR TO FBC FOR PRODUCTS SOLD AND SERVICES PROVIDED BY FBC TO OPERATOR IN THE THREE MONTHS BEFORE THE ACT GIVING RISE TO THE LIABILITY. ANY ACTION RESULTING FROM OR RELATING TO ANY BREACH OF THE AGREEMENT BY FBC OR THE EQUIPMENT MUST BE COMMENCED BY OPERATOR WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
10. OPERATOR’S REMEDIES: The remedies reserved to FBC in the Agreement will be cumulative and in addition to any other remedies in law or in equity.
11. REMOVAL OF EQUIPMENT: Operator understands that FBC assigns Equipment based on Operator’s expected volume of Product purchases from FBC. If Operator fails to purchase the expected volumes or to purchase exclusively from FBC, FBC may remove some or all of the Equipment assigned to Operator. If (a) any covenant in the Agreement is breached by Operator, (b) any of Operator’s property is subjected to levy or seizure by any creditor or government agency, (c) bankruptcy or insolvency proceedings are commenced by or against Operator, or (d) Operator discontinues its business, Operator will be deemed to have breached this Agreement and FBC may, without notice or demand, remove and recover possession of the Equipment. If Operator directly or indirectly prevents FBC from retaking possession of Equipment, Operator will pay all costs of retaking the Equipment, including reasonable attorneys’ fees, to FBC.
12. USE OF FBC MARKS: FBC owns certain proprietary and other property rights and interests in and to trademarks, service marks, logo types, insignias, trade dress designs and commercial symbols relating to FBC and its products (the “Marks”). Operator acknowledges that the Marks are the sole and exclusive property of FBC, with any goodwill arising from the use of the Marks to inure solely to the benefit of FBC. FBC may provide Operator with displays, signage and other advertising materials incorporating the Marks or approve Operator’s use of the Marks on Operator’s menus. Operator will use such materials solely in connection with the marketing and sale of FBC products and for no other purpose. Upon request from FBC, Operator will (a) provide a reasonable quantity of samples of any of Operator’s materials utilizing the Marks to FBC, and (b) make reasonable changes relating to the use of the Marks in such materials. If at any time Operator ceases dispensing FBC products, whether in connection with the termination of an Agreement between the Parties or otherwise, all rights granted to Operator to use the Marks will immediately terminate, and Operator will immediately (y) cease to use, in any manner whatsoever, any Marks (including in displays, signage, advertising materials, menus and other materials) and, (z) upon request, return to FBC all such materials owned by FBC and destroy all such materials owned by Operator incorporating such Marks.
13. CONFIDENTIALITY: Operator agrees to maintain in strict confidence, and will not disclose to any third party without the prior written consent of FBC, all of the terms and the existence of the Agreement. Operator recognizes and agrees that the unauthorized use or disclosure of any of the terms or the existence of the Agreement by Operator could cause irreparable injury for which FBC would have no adequate remedy at law, and that an actual or contemplated breach of this Section 13 will entitle FBC to seek immediate injunctive relief prohibiting such breach.
14. GOVERNING LAW; ARBITRATION: The Agreement will be governed by, and construed pursuant to, the laws of the State of Texas, USA without application of the conflict of law principles thereof. Notwithstanding any other provisions of the Agreement to the contrary, if any controversy or claim arises out of or relates to the Agreement or the Equipment or Services, the Parties will strive to amicably settle same but if they cannot do so within 90 days after such dispute arises, any such controversy or claim will be settled solely by arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), including the Expedited Procedures and the Rules for Emergency Measures of Protection provided therein. The arbitration will take place in Dallas County, Texas before a single arbitrator, and will be conducted in English and pursuant to rules of the AAA, which will administer the arbitration and act as appointing authority. The expense of the arbitration will be paid as the arbitrator determines. The decision of the arbitrator will be final and binding on the Parties, and application may be made to any court of competent jurisdiction for judicial acceptance of the award or order of enforcement and entry of a judgment thereon.
15. WAIVER; VALIDITY; SURVIVAL: The failure of either Party to insist upon the strict observance and performance of the terms and conditions set forth herein will not be deemed a waiver of other obligations hereunder, nor will it be considered a future or continuing waiver of the same terms and conditions. If any term or condition of the Agreement, or any part thereof, not essential to the commercial purpose of the Agreement is held to be illegal, invalid, or unenforceable, the Parties intend that the remaining terms and conditions will remain in full force and effect. To the extent legally permissible, any illegal, invalid, or unenforceable provision of the Agreement will be replaced by a valid provision that will implement the commercial purpose of the illegal, invalid, or unenforceable provision. Sections 3, 6, 9, 11, 12, 13, 14, 15 and 16 hereto and such other sections that by their nature must survive termination to affect their intended purpose will survive termination of the Agreement.
16. ENTIRE AGREEMENT; ASSIGNMENT: The terms and conditions of the Agreement, including these Equipment Terms as amended or modified by a written agreement signed by the Parties, will constitute the entire contract between the Parties as to the subject matter herein and will supersede any additional or inconsistent terms and conditions contained in any proposals, invoices, orders or any other documents or correspondence of Operator. For the avoidance of doubt, the Agreement does not apply to any Products (other than the Equipment) that FBC sells to Operator. All sales of such Products will be governed by FBC’s standard Sale Terms, which will not be superseded by this Agreement. Any amendment or modification of these Equipment Terms will only be effective if contained in a written agreement signed by the Parties. FBC reserves the right to amend and modify these Equipment Terms, and will post any revised version of these Equipment Terms on its website at www.farmerbros.com, provided that no such modification or amendment will apply to any Equipment already assigned to Operator or any Services which FBC agreed to provide to Operator before the date of such amendment or modification. Operator should regularly check www.farmerbros.com to review the most current version of these Equipment Terms. Neither Party may assign, delegate or otherwise transfer the Agreement, in whole or in part, without the prior written consent of the other Party (not to be unreasonably withheld); provided, that FBC may assign this Agreement to any party controlling, controlled by or under common control with FBC or to any person acquiring all or substantially all of the assets or outstanding capital stock of FBC. Any attempted assignment, delegation, or other transfer of the Agreement in violation of this Section will be null and void. An electronic image of the Agreement and any signature or acknowledgement thereto will be considered an original (to the same extent as any paper or hard copy), including under evidentiary standards applicable to a proceeding between the Parties.
17. EFFECTIVE DATE: These Terms are effective as of March 1, 2018.