Measur’d Terms and Conditions
The following terms and conditions (the “Measur’d Program Terms”) shall apply to all purchases from Gordon Food Service, Inc. (“GFS”) made by the limited participants (each, a “Customer”) who elect to participate in the Measur’d Program. Any defined terms used in these Measur’d Program Terms but not defined herein shall have the meaning given to them in the Measur’d Limited Participation Agreement entered into between GFS and Customer (the “Agreement”).
- Product Sourcing. GFS will purchase food and foodservice products (“Products”) from suppliers, manufacturers, brokers or importers, which may include affiliates or subsidiaries of GFS (“Suppliers”), inventory the Products, and make the Products available for ordering by Customer’s restaurants or other locations that GFS has accepted as a customer (each, a “Location”). If Customer opens or acquires a new Location, such new Location may participate in and benefit from the Measur’d Program Terms, unless GFS notifies Customer that such new Location may not be added. GFS will assign each Location to a GFS distribution center according to its territory of supply. Certain Products may not be sourced directly into all distribution centers and may be delivered to one distribution center from a Supplier and then transferred by GFS and brought into inventory at other distribution centers (“Inventory Transfer”) or cross-docked by GFS to other distribution centers for immediate or near-immediate distribution to the Locations (“Cross-Docking”).
- Inventory Requirements.
- GFS will use commercially reasonable methods to maintain a full line of Products for ordering by Customer. GFS will determine the supply needs of the Locations and maintain an inventory of Products at each distribution center reasonably calculated to meet those supply needs. If Customer directs GFS to maintain an inventory of a Product beyond the estimated supply needs and GFS agrees to accommodate such request, additional storage and handling charges will apply. If a Product is not available in GFS’s inventory, GFS will make the Product available as a special order (“Non-Stock Product”) to the extent it can be sourced as a special order from the Supplier. If Customer requests GFS to inventory and make available for ordering a Product that it does not normally maintain in inventory for most of GFS’s customers (each, a “Proprietary Product”), and if GFS agrees to accommodate such request, GFS will attempt to procure the Proprietary Product within three weeks of Customer’s written request. Any Supplier of a Proprietary Product must meet GFS’s procurement and quality assurance requirements and comply with all applicable laws, rules and regulations.
- GFS reserves the right to determine which Proprietary Products that GFS will inventory and make available for ordering. The number of Proprietary Products that GFS will inventory and make available for ordering is subject to distribution center capacity and other factors; GFS reserves the right to limit the number of Proprietary Products that it brings into inventory in its sole discretion. If GFS has any inventory of a Proprietary Product that it cannot sell to the Locations (such as inventory that is discontinued, becomes obsolete or unsalable, or as a result of termination of the Agreement), Customer shall purchase the remaining inventory F.O.B. GFS’s distribution centers at the current sell price plus $1.00 per case or direct GFS to dispose of the inventory and reimburse GFS for the current sell price plus $1.00 per case and GFS’s disposal costs. If such inventory is not purchased and removed from GFS’s distribution centers within 30 days or Customer has not directed GFS to dispose of the inventory within 30 days, GFS may dispose of the inventory in any reasonable fashion and Customer agrees to pay for the Proprietary Products inventory at the current sell price plus $1.00 per case and GFS’s disposal costs.
- In order for a Proprietary Product to be maintained in inventory at a distribution center, a Proprietary Product must have case sales movement of at least twenty-five cases per week (the “Level”). If a Proprietary Product does not meet the Level, GFS may discontinue stocking the Proprietary Product upon written notice to Customer. If GFS discontinues stocking a Proprietary Product, GFS will make commercially reasonable efforts to make the Proprietary Product available as a Non-Stock Product.
- Recalled Inventory. If a governmental authority or a Supplier declares a recall, or if GFS believes in good faith that any Product may be unfit, adulterated, misbranded or non-conforming under applicable law or regulatory standards (any such Products, “Recalled Inventory”), then GFS shall have the right to cancel any unshipped orders and direct the Customer to immediately cease using the Products. For Recalled Inventory that includes Proprietary Products, Customer shall be responsible for all related costs and expenses incurred by GFS related to managing the recall, withdrawal or disposal, to the extent not covered by the Supplier.
- Ordering and Substitutions. GFS will provide each Location with an order guide in either hard copy or electronic format that establishes the Products that are available for ordering. The Locations will be provided with an order cutoff time when orders must be placed for delivery on the scheduled delivery days. GFS will make reasonable efforts to notify the Location of any shortages or unavailable Product at the time of order. If approved by the Locations, GFS will substitute an equivalent Product if an equivalent is available. All orders with GFS must be placed electronically using GFS’s online ordering system.
- Purchasing Information. GFS may utilize one or more group purchasing organizations or other service providers in connection with the Measur’d Program (each, a “GPO”). Customer acknowledges and agrees that GFS, a GPO, or any third party utilized by GFS or a GPO may obtain and use information related to Customer’s aggregate (with other customers) or individual purchases and transactions with GFS and other Customer information (“Purchasing Information”). GFS retains all right, title, and interest in the Purchasing Information. Customer consents and authorizes GFS to collect, process, use, and share Purchasing Information for any lawful business purpose.
- Product Delivery, Claims and Returns.
- Delivery Services. GFS will provide delivery service to each Location. GFS, in its sole discretion may determine the maximum number of deliveries per week to each Location. GFS will establish specific delivery days and delivery time windows for each Location and certain deliveries may be made after operating hours by key access (“Key Drop”). Title to the Products shall pass form GFS to the receiving Location upon delivery of the Products at the Location.
- Customer Requirements. Each Customer’s participation under the Measur’d Program Terms is subject to the following requirements, which Customer and each Location will strictly comply with during their participation in the Measur’d Program:
- Each Location must purchase from GFS, at least 80% of the Location’s requirements, in the aggregate, for the Products.
- Each Location must purchase a minimum of $5,000 worth of Product per week from GFS.
- Each order must meet the minimum delivery amount of $1,000; GFS will not fulfill orders below such amount.
- Product Claims and Returns.
- GFS’s delivery driver must be notified of any shortage, visible damage or any other nonconformity of the Product(s) at the time of delivery and prior to GFS’s delivery driver leaving the Location; or, if made by Key Drop, within 24 hours after the delivery is made. Any claims for Products that have concealed or latent damage must be made to GFS in writing within 24 hours for fresh Products and seven (7) days for all other Products after the date of delivery.
- Except for fresh, frozen, or Non-Stock Products, all other Products that are unopened may be returned to GFS for credit within seven days of the delivery date, but only if the Product is in its original container and full case quantity. Such returned Products may be subject to a restocking fee as determined by GFS in its sole discretion.
- Any Product that is eligible to be returned will be credited to the Location’s account and GFS will retrieve the Product on the next delivery date or direct the Location to destroy the Product. A restocking fee will be applied to any returns made under Section 3.3(b), but shall not apply to any returns made under Section 3.3(a). Customer’s sole and exclusive remedy for any Products returned is replacement of the nonconforming Products or a credit equal to the sell price.
- Sell Price. GFS will provide the sell price of each Product on an order guide that will be made available to each Location. If the sell price of a Product changes, the new sell price will be updated on the order guide. If a Location requires a Product to be sold in less than full case quantities and such Product can be split into individual units, a split case fee will be included in the sell price. If Customer qualifies for certain agency billing programs that GFS has with Coca-Cola, Ecolab, Sealed Air and certain other Suppliers (“Agency Billing Programs”) or purchases goods for which prices are set by state/provincial or federal regulations (“Price Controlled Products”), the sell price will be that which is established under the applicable Agency Billing Program or regulation, as the case may be. A Product that is a special order will be subject to a special order handling fee. If delivery is required to be expedited by courier service (or by other third-party delivery service) the sell price of the special order Product shall also include an expedited delivery fee. Any Product that is subject to an Inventory Transfer or Cross-Docking will include an additional handling fee in the price of such Products. The prevailing fees associated with a special order Product and Products subject to an Inventory Transfer or Cross-Docking will be made available upon Customer’s request.
- Service Fees and Governmental Charges. The sell price of the Products does not include service fees, diesel fuel surcharges, taxes, or governmental charges. Any such fees will be charged as a separate line item charge on the invoice and the Locations are obligated to pay: (i) the delivery fee (if applicable); (ii) sales and use taxes, unless otherwise exempt; (iii) any governmental fees or charges related to the Products or services provided by GFS; and (iv) a diesel fuel surcharge based on the average cost of diesel fuel.
- Payment Terms.
- Account Application, Payment Terms, and Invoicing. Each legal entity (or person) responsible for payment of a Locations’ purchases (each, an “Operator”) will supply GFS with a fully completed GFS account application and information to support its request for credit including, but not limited to, its most recent audited financial statements at least seven days’ prior the effective date of such Location’s participation in the Measur’d Program. The terms of the account application are incorporated herein by reference and made a part of the Measur’d Program Terms. In the event of a conflict between the terms of the account application and the Measur’d Program Terms, the terms of the Measur’d Program Terms shall control. GFS will review and assign payment terms to each Operator based on GFS’s evaluation of creditworthiness. Notwithstanding anything to the contrary in the Measur’d Program Terms, GFS will have no obligation to service an Operator until the Operator has submitted the information referenced in this Section and GFS has completed its credit evaluation and account setup process. GFS will provide an invoice at the time of delivery and each invoice must be paid according to the payment terms assigned to the Operator.
- Non-Payment and Financial Changes. If an Operator fails to make a payment when due and such failure continues for seven (7) days after GFS provides notice of non-payment, or GFS becomes aware of circumstances that may materially affect the Operator’s ability to pay its financial obligations when due, GFS may upon providing notice to the Operator: (i) withhold delivery of Products to the Operator’s Locations until it is provided with written assurances satisfactory to GFS that payment will be issued; (ii) reduce the Operator’s payment terms; (iii) require pre-payment or immediate payment upon future delivery; or (iv) require a letter of credit, collateral or security for the credit extended to the Operator.
- Rebates. GFS may offer certain rebates, incentives and other benefits (the “Incentives”) to Customer or its Locations, as applicable. All monetary Incentives are paid according to GFS’s fiscal calendar and payment of the Incentives may be made up to 30 days after the payment period specified for each Incentive. All monetary Incentives are paid on the purchases of the Products, but exclude all purchases of Price Controlled Products, Products sold under an Agency Billing Program, and any of those ancillary fees or charges set forth in the Service Fees and Governmental Charges section. GFS may withhold all or any part of the Incentives to an Operator if the Operator has any past due or delinquent amounts owed to GFS. All requirements of the Measur’d Program must be met by the Operator in order to qualify for payment of an Incentive. The Incentives and pricing provided in the Measur’d Program are exclusive and may not be combined with any other programs, rebates, incentives or other offers that Customer or any Location may be eligible to receive from GFS, whether directly from GFS or through GFS’s, Customer’s, or any Location’s affiliation with any third-party program or group.
- Termination. GFS may terminate a Customer’s participation under the Measur’d Program Terms for convenience and without cause upon 10 days’ written notice to the Customer. GFS may immediately terminate a Customer that (a) fails to comply with the obligations required of Customers under the Measur’d Program; (b) fails to make timely payment for orders previously delivered; (c) has (i) filed or has filed against it a petition for bankruptcy under applicable law and, in the case of an involuntary bankruptcy petition, the same is not dismissed within 30 days of the filing date, (ii) an order entered against it for an appointment of a receiver, (iii) filed an assignment for the benefit of creditors; or (iv) has filed any other reorganization, liquidation or similar proceedings under bankruptcy or insolvency law; (d) has a change of ownership from a merger, reorganization, consolidation, transfer, sale, sale of substantially all assets, stock purchase, public offering or other change of ownership.
- Product Warranties.
- Assignment of Supplier Warranties. In the event a claim arises pertaining to any Product, GFS will assign to Customer any applicable warranties GFS receives from its Suppliers of the Product, to the extent the rights are assignable. GFS will reasonably cooperate with Customer in the enforcement of any such warranties at Customer’s expense. GFS reserves the right to file a claim under and directly enforce any such warranties and indemnities if GFS or any of its affiliates is named as a defendant or is otherwise liable in any suit or proceeding with regard to Products distributed by GFS.
- Waiver of Warranties. Customer acknowledges that GFS does not make and has not made any warranties with respect to the Products via any document, oral, written, or electronic communication, or sample. GFS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING AS A RESULT OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING.
- Indemnification and Limitation of Liability.
- Indemnification. Customer agrees to defend and indemnify GFS, its parent, subsidiaries and affiliated companies, and the officers, directors, members, employees, and successors and assigns of each of the foregoing, from any and all claims, arising out of or related to: (i) any breach of a warranty or representation made by Customer under the Measur’d Program Terms; (ii) any breach in the performance of Customer’s obligations under the Measur’d Program Terms; (iii) Customer’s negligence in the performance of its obligations under the Measur’d Program Terms (to the extent not caused by or contributed to by GFS’s negligence); (iv) adjustments made to pricing for the benefit of Customer or at Customer’s direction, or the payment of any Incentives, rebates, or commissions to Customer; and (v) any actions or omissions by Customer concerning or related to the Products, including negligent or reckless conduct, the improper storage, handling, or preparation of the Products, the making of additions or modifications to the Products, or use of the Products.
- Limitation of Liability. GFS is not liable for payment of any consequential, incidental, exemplary, enhanced, indirect, punitive, and special damages of any kind, including without limitation any loss of profits or diminution in value. The limitations on liability contained in the Measur’d Program Terms apply regardless of whether the form of the claim against GFS is based on statute, contract, negligence, strict liability, tort or any other principle of common law; or whether or not the party was advised of the possibility of such damages.
- Insurance. At all times during Customer’s participation under the Measur’d Program Terms, Customer and GFS shall each purchase and maintain Commercial General Liability insurance (“CGL Insurance”), from a reputable insurance company, in amounts reasonably adequate to cover their respective indemnification obligations. The CGL Insurance policy shall be written on ISO occurrence form CG 00 01 (or substitute form providing equivalent coverage) and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury, and liability assumed under an insured contract. When requested by a party, the other party shall provide the requesting party with a certificate or certificates evidencing continuous coverage as set forth in this Section 10.
- Confidentiality. GFS, Customer and each of its Locations and each of their respective employees, agents, contractors and representatives agree not to disclose and to keep confidential the Measur’d Program Terms and any information, data, or know-how concerning or related to the other party’s business or operations that may be disclosed on one or more occasions to them (“Confidential Information”). Confidential Information excludes, and the parties shall have no obligation of confidentiality with respect to: (i) information, data, or know-how that becomes generally available to the public other than by or through the receiving party; and (ii) information, data, or know-how made available to the receiving party from a source that, to the knowledge of the receiving party, was not under a duty of confidentiality to the disclosing party with respect to such information. Customer data used for research and aggregation purposes shall not be considered an improper use of Confidential Information by GFS. If a party is required to disclose Confidential Information by order of court or governmental agency, then the party shall notify the other party sufficiently in advance to permit the other party to seek a protective order relating to the disclosure. Notwithstanding, GFS shall have the right to provide aggregated sales data to third parties as long as such data does not identify Customer or any Location’s individual transactions.
- General Terms.
- Benefit; Assignment. GFS’s obligations under the Measur’d Program Terms are extended to the Customer only, and shall not inure to the benefit of or form the basis of a claim by any purchaser of the Products or other third party. The rights specified for the Customer shall inure to the benefit of the Customer only and shall not be extended to any subsidiary or affiliate of the Customer. Neither the Customer nor GFS will assign the Measur’d Program Terms without the other’s consent, which shall not be unreasonably withheld, delayed, or conditioned. However, GFS may assign the services to be provided herein to be performed by one or more of its subsidiaries.
- Compliance with Laws; Certifications. GFS shall comply with all federal, state, local laws and regulations that are applicable to the distribution services to be performed by GFS under the Measur’d Program Terms and the Agreement. Customer shall comply with all federal, state, local laws and regulations that are applicable to its obligations under the Measur’d Program Terms and the Agreement. GFS and Customer shall, at its own expense, obtain and maintain all certifications, authorizations, licenses, and permits (“Credentials”) required by law to provide the distribution services; except that GFS shall have no obligation to obtain Credentials that may require GFS or its employees, officers, directors, owners, or shareholders to disclose privileged, confidential or personally identifiable information. GFS’s failure to obtain any such Credentials shall not be a breach or violation of the Measur’d Program Terms.
- COVID-19 Protocols. GFS will comply with the applicable requirements under the Occupational Health and Safety Administration’s (“OSHA”) COVID-19 Vaccination, Testing, and Face Coverings; Emergency Temporary Standard at 29 CFR 1910.501, to the extent and as long as it is in effect and has the force of law. The Agreement, however, is not subject to (a) the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, dated as of September 9, 2021, including but not limited to any resulting administrative rulemaking, regulations, policies, or other guidance or publications (collectively, the “EO”), and (b) the requirements set forth in Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021) (the “CMS Rule” and, together with the EO, the “Vaccination Requirements”). Notwithstanding anything to the contrary in the Measur’d Program Terms or otherwise, GFS’ performance under the Measur’d Program is expressly conditioned on the foregoing, and the Vaccination Requirements and any other requirement that GFS vaccinate its employees are expressly rejected and do not serve to modify or amend the Measur’d Program Terms.
- Entire Agreement; Amendment. The Measur’d Program Terms (including the exhibits and any documents expressly incorporated herein by reference), together with the Agreement, is the final, complete, and exclusive expression of the Agreement between the Customer and GFS. GFS’s business and applicable laws change from time to time, and GFS reserves the right to amend the Measur’d Program Terms. If GFS changes the Measur’d Program Terms, GFS will post the revised version at https://measurd.biz/participantterms. Customer’s use of and participation in the Measur’d Program constitutes acceptance of any amendments or changes by GFS to the Measur’d Program Terms. Customer shall be bound by all such amendments or changes. All previous oral, written, or electronic communications between the Customer and GFS related to the subject matter of the Agreement are superseded by the Agreement.
- Remedies. The remedies provided in the Measur’d Program Terms are cumulative. The exercise of any right or remedy under the Measur’d Program Terms shall be without prejudice to the right to exercise any other right or remedy in the Measur’d Program Terms, by law, or in equity.
- Severability; Waiver. The invalidity of any part of the Measur’d Program Terms shall not invalidate any other part and, except for the invalid part, the rest of the Measur’d Program Terms shall remain effective. No waiver of performance shall be valid without consent of the party entitled to the performance. No waiver of a specific action shall be construed as a waiver of future performance.
- Notices. Any notice, request, demand or other communications (other than routine business communications) required or permitted under the Measur’d Program Terms shall be in writing and delivered to the receiving party at the address specified below, or at any addresses they designate by providing notice in accordance with this Section. Notice shall be made either by hand delivery, recognized overnight courier, mail (registered or certified, return receipt requested), or (if confirmed in writing using one of the foregoing methods) by facsimile or email. All such communications shall be effective when received.
Notices to Customer:Delivery or bill to address of record with GFS.
Notices to GFS:
Gordon Food Service, Inc.
Attn: Senior Director of Sales
1300 Gezon Parkway, S.W.
Wyoming, MI 49509
With a copy to:
Gordon Food Service, Inc.
Attn: General Counsel
1300 Gezon Parkway, S.W.
Wyoming, MI 49509
- Governing Law and Venue. The Measur’d Program Terms shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflicts of law rules. Any action related to the Measur’d Program Terms must be filed in Kent County, Michigan in a court of competent jurisdiction. The parties waive the right to transfer or change the venue of any action and waive trial by jury.
- Force Majeure. GFS is not liable for any loss, damage, or expense from any delay in delivery or failure of performance due to any cause beyond GFS’s control, including fire or other casualty; strike or labor difficulty; accident; war conditions; riot or civil commotion; terrorism; government regulation or restriction; shortages in transportation, power, labor or material; freight embargo; default of Supplier; disease, pandemic, epidemic, or quarantine; local, state, or national declaration of emergency; or events which render performance commercially impracticable or impossible. The parties acknowledge that, as at the date hereof, the parties are aware of, and have knowledge of, the pandemic and global health crisis commonly known as COVID-19 (“COVID”). Notwithstanding any such awareness or knowledge, the parties agree COVID and its effects could constitute force majeure events under this Section that could potentially excuse delay or non-performance under the Measur’d Program Terms. The parties also waive any argument that COVID and its effects cannot constitute force majeure events because of the parties’ awareness or knowledge of COVID and its effects or that COVID and its effects were allegedly foreseeable.
- Survival. The indemnification and confidentiality requirements set forth in the Measur’d Program Terms shall survive the expiration or termination of the Measur’d Program Terms.
- Independent Contractors. Nothing in the Measur’d Program Terms is intended or shall be construed as in any way creating or establishing the relationship of co-partners between the parties or in any way making a party the agent or representative of the other party for any purpose. Neither party shall represent itself as an agent or employee of the other party. An affiliate or subsidiary of GFS may provide some of the Products or services supplied under the Measur’d Program Terms. GFS is an independent contractor with respect to all services performed under the Measur’d Program Terms.