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Terms of Sale

TAZA CHOCOLATE
GENERAL TERMS AND CONDITIONS ("GENERAL TERMS")  OF SALE

These General Terms shall be deemed to be included in each sale order  ("Order") that refers to them covering the sale by Whitmore Family Enterprises, LLC (d/b/a Taza Chocolate (“TAZA”)) of chocolate, cocoa beans and/or food products or other products ("Product"), shall constitute an integral part of the transaction ("Transaction") evidenced by the Order, and shall be incorporated by reference therein. Furthermore, the parties expressly agree that the General Terms cannot be contradicted, supplemented or explained by evidence of course of performance, course of dealing or usage of trade. In the case of any discrepancy between these General Terms and the terms set forth in the Order, the terms set forth in the Order shall be controlling. Buyer's partial performance of a Transaction (e.g., acceptance of or payment for partial deliveries of Product) shall signify Buyer's acceptance of the terms set forth the Order.  Acceptance of any Order by Buyer is limited to acceptance of the express General Terms herein.  Any general terms and conditions of Buyer are hereby expressly rejected by TAZA and excluded.  Notwithstanding any language contained in any document of Buyer stating the language of such document, or any other document referenced therein supersedes any other language, if the Buyer chooses to accept an Order, Buyer specifically acknowledges and agrees these General Terms control.  Any proposal, confirmation, or any other writing of whatever kind inconsistent with or in addition to the terms of the Order and these General Terms shall not be binding upon TAZA.  TAZA’s acceptance of  payment for Products will not constitute acknowledgement or acceptance of the Buyer’s conditions of purchase. 

  1. Unless specifically provided otherwise in the Order, TAZA may deliver the quantity of Product in an Order in one shipment or in several shipments during the delivery period set forth in the Order.
  1. Buyer may not refuse to accept any conforming lot or portion of the Product on the grounds of claimed non-delivery or nonconformity of any other lot or portion of the Product in a Transaction. 
  1. Buyer must pay the amount of TAZA's Order in full by the date specified on that Order or pay interest at the lesser of 1.5% per month or the maximum lawful rate from the specified due date through the date of payment. Buyer may not take any discounts unless specified in the Order and may not set-off or deduct any part of an invoice based on any monies claimed to be owed to Buyer by TAZA.  Buyer shall pay, on demand by TAZA, all costs and expenses incurred by TAZA in attempting to collect amounts due to it by Buyer including, without limitation, court costs and reasonable attorneys’  fees. 
  1. Whenever TAZA has reason to question Buyer's intent or ability to perform, TAZA may demand that Buyer give TAZA commercially reasonable assurance of its intent and ability to perform. If TAZA makes such a demand but Buyer does not give TAZA satisfactory assurance upon receiving TAZA's demand thereof, then TAZA may treat Buyer's failure as an anticipatory repudiation of the Transaction by Buyer, in which case TAZA may (a) terminate the Transaction and any other open Transactions with Buyer and, whether or not TAZA so terminates, (b) pursue such remedies as may be available to TAZA under applicable law, including recovery of resale or market damages in connection with all such Transactions. Notwithstanding the foregoing, at any time and from time to time TAZA in its sole discretion and in addition to all other remedies provided in these General Terms or by law may limit or cancel the credit of Buyer as to time and amount and as a consequence may demand that payment be made in cash or otherwise or that satisfactory financial guarantees be given before delivery.
  1. TAZA may not be, and Buyer acknowledges that TAZA may not be, the manufacturer of the Product and, except as is expressly stated on the Order, TAZA makes no warranty expressed or implied with respect to the Product, including without limitation that the merchandise is fit for a particular purpose. The suitability of goods for any purpose particular to Buyer is for Buyer, in Buyer's sole judgment, to determine.
  1. Buyer's sole remedy for any claim against TAZA arising out of a Transaction shall be limited to direct damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES IN TORT, FOR CONTRACT OR OTHERWISE. 
  1. If performance by TAZA under the Transaction is delayed or prevented by any cause of whatever kind or nature which is beyond the control of TAZA (Force Majeure), such as, but not limited to, fires, floods, earthquakes, unusually severe weather, or other acts of God; epidemics or quarantine restrictions; labor disputes or disturbances; wars, riots or insurrections; embargoes or governmental actions; shortages of transportation, fuel or labor; or plant breakdowns, then TAZA shall be relieved of its obligation to perform for the period of inability which is so caused and shall not be liable for any costs resulting from any of the causes preventing or delaying performance provided that TAZA has exercised due diligence to remove or overcome such causes as soon as reasonably possible. If the period of delay or prevention does not affect the entire quantity under the Transaction then TAZA may, at its option and upon notice to Buyer, proportionately reduce the quantity it is required to sell and deliver under the Transaction for the period that performance by TAZA is delayed or prevented. TAZA may terminate a Transaction upon notice to the Buyer if the period of delay or prevention continues for a period of ten (10) days or more. 
  1. Any controversy arising under or in relation to the Transaction shall be governed and controlled by the laws of the Commonwealth of Massachusetts.  Buyer consents to the personal jurisdiction and venue of the Supreme Court of the Commonwealth of Massachusetts, County of Middlesex and of the United States District Court for Boston, Massachusetts and further consents that any process, notice of motion or other application to the court or a judge thereof may be served outside the State of Commonwealth of Massachusetts by registered or certified mail or by personal service provided that a reasonable time for appearance is allowed. 
  1. Any and all payments made by the Buyer to TAZA, may be applied by TAZA to satisfy any of Buyer's outstanding financial obligations towards TAZA.
  1. Any and all responsibilities associated with landing and clearing product supplied by TAZA, including but not limited to obtaining import permits, licenses, paying local taxes, duties and any other fees, shall remain Buyer's sole responsibility. Under no circumstances Buyer's inability to procure proper permits and licenses, or inability to pay any fees, duties and taxes, may excuse Buyer's lack of compliance with the terms of this contract. Buyer's failure to obtain an import license shall not constitute a case of Force Majeure. 
  1. Any tax which TAZA may be required to pay or collect through assessment or otherwise under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, storage, processing, use or consumption of any goods or services described herein, including without limitation, taxes upon or measured by receipts from sales or services, shall be for the account of Buyer and may be added to the price of such goods or services. Buyer shall promptly pay the amount thereof to TAZA upon demand but may, in lieu of such payment, furnish tax exemption certificates acceptable to the appropriate taxing authorities to TAZA. 
  1. If any goods arrive at Buyer's destination in a damaged condition or a shortage occurs, Buyer shall immediately report the damage or shortage to the delivering carrier and to TAZA. Any loss or shortage caused by damage in transit will be for account of Buyer.
  1. Buyer shall not assign any order or any interest therein without the written consent of TAZA. Any such actual or attempted assignment without TAZA's prior written consent shall entitle TAZA to cancel such order upon written notice to Buyer.
  1. If any goods arrive at Buyer's destination in a damaged condition or a shortage occurs, Buyer shall immediately report the damage or shortage to the delivering carrier and to TAZA. Any loss or shortage caused by damage in transit will be for account of Buyer. 
  1. Buyer agrees that if any purchases are made from TAZA on a "Cost and Freight" basis, Buyer will provide, at its sole expense, if applicable, all Marine Insurance for the Products purchased in an amount (expressed in the currency set forth in the contract) at least equal to the total price for the Products as set forth in the contract, plus ten percent (10%). Such insurance shall be purchased from an underwriter or insurance company of good repute in the industry.
  1. Buyer may not assign all or part of its rights and obligations under the Transaction except with the written consent of and subject to any conditions imposed by TAZA, which consent may be withheld by TAZA in its sole discretion.
  1. A party's failure to insist upon compliance with any provision of these General Terms or the Transaction, or to enforce any right or seek any remedy, shall not affect or constitute a waiver of such party's right to insist upon strict compliance with any provision of the General Terms or a Transaction, or to enforce any other right or to seek any other remedy. A waiver by a party of a breach of any provision of these General Terms or a Transaction by the other party shall not be deemed to be waiver of future compliance with such provision. 
  1. These General Terms (a) will bind and inure to the benefit of each of TAZA and Buyer and inure to their respective administrators, executors, legal representatives, and permitted successors and assigns; (b) together with and as incorporated into the Order, constitute the entire agreement between TAZA and Buyer with respect to the Transaction; (c) together with and as incorporated into the Order, may not be amended or modified nor any provision hereof waived, except in a writing signed by TAZA and Buyer and (d) together with and as incorporated into an Order may not be amended or modified by a course of conduct between TAZA and Buyer.
  1. The Transaction shall be governed exclusively by the Uniform Commercial Code, as adopted by the Commonwealth of Massachusetts, where not in conflict with any other terms set forth in these General Terms or the Order. Where such a conflict shall exist, the terms of these General Terms or the Order shall be controlling. In no event shall the U. N. Convention on Contracts for the International Sale of Goods apply to the Transaction.
  1. Notwithstanding that these General Terms and any Order may be translated into another language, the English language version of these General Terms and any Order shall always prevail.
  1. Buyer agrees that to the extent applicable, the cargo shall not be exported or re-exported (a) to any countries included in prohibited countries listed by the U.S. Export Administration Regulations ("EAR") or as otherwise prohibited under the EAR, including to any person or entity on the Bureau of Industry and Security Denied Parties List, Entity List or Unverified List (available at haps://www.bis.doc.goviinclex.php/policy-guidanceilists-of-parties-of-concern) in each case as in effect at the time of export or re-export, unless any required export or other licenses have been obtained or the transaction meets all eligibility criteria for a BIS license exception; or (b) to any person or entity located in a country or territory subject to U.S. sanctions (currently Cuba, North Korea, Iran, Sudan, Syria and the Crimea region of Ukraine) or to a person or entity on the Office of Foreign Assets Control listing of Specially Designated Nationals and Blocked Persons (available at http://sdnsearch.ofac.treas.gov/), in each case as in effect at the time of export or reexport, unless any required OFAC specific license has been obtained or the transaction meets all eligibility criteria for an OFAC general license.
  1. Suppliers and customers of TAZA acknowledge that the goods sold or otherwise transferred hereunder may be subject to U.S. export and import control laws applicable to the purchase, sale, use, export, import or other transfer of the goods. These laws include without limitation the legal provisions administered by the U.S. Department of Treasury's Office of Foreign Assets Control (OFAC), and the Foreign Corrupt Practices Act (FCPA) which is administered by the US Department of Justice and US Securities and Exchange Commission. Suppliers and customers of TAZA  represent, certify, warrant, and guarantee that they are familiar with the requirements and restrictions of OFAC and FCPA, and that they will comply with such laws at all times. Suppliers and customers of TAZA will defend, indemnify and hold harmless TAZA from and against any and all claims, demands, liabilities, losses, damages, fines, assessments, judgments, penalties, costs or expenses (including reasonable attorneys' fees) which relate in any way to an OFAC or FCPA violation they commit. 
  1. Neither Buyer nor any of its affiliates in the course of purchasing Product from TAZA under any Order shall (i) use any funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to any political activity or to influence official action, (ii) make any direct or indirect unlawful payment to any foreign or domestic government official or employee (whether full-time or contract), (iii) make or receive any bribe, payoff, influence payment, kickback or other improper payment, or (iv) make any other similar type payments or gifts or give anything of value to any government official or employee that could be deemed a bribe or unlawful. TAZA shall have the right to request and review all relevant records of Seller to ensure compliance with the terms of this provision. Seller acknowledges and agrees that TAZA retains the right to decline future business opportunities or to end existing business relationships, including the transactions represented in any Order, if Buyer does not comply with TAZA the requirements of this Section, or with laws applicable to Buyer’s business operations.

644445.1

 

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