INVOICE TERMS AND CONDITIONS
1. ACCEPTANCE; BINDING CONTRACT. Acceptance of the Items is deemed to be Customer’s acceptance of the terms and conditions in this invoice (“Invoice”), and this Invoice is deemed to be a binding contract between Dutch Bros and Customer concerning the Items. Dutch Bros., LLC, DB Franchising USA, LLC, or Boersma Bros. LLC as the case may be, (each referred to as “Dutch Bros”) rejects all terms and conditions in Customer’s purchase orders or other documents that are in addition to or conflict with the terms and conditions in this Invoice. Except as set forth in this Invoice, no other terms or conditions shall be binding upon Dutch Bros unless accepted by Dutch Bros in writing. The “Item(s)” mean, as applicable, those services, deliverables, goods, articles, equipment, materials, supplies, drawings, software, data, and other property, benefits, or rights, set forth on the face of this Invoice.
2. TITLE; RISK OF LOSS; SHIPMENTS. Title and risk of loss to the Items shall pass to Customer FOB Dutch Bros’ shipping location. If Customer defaults on payment, becomes insolvent, or if a petition in bankruptcy or insolvency is filed by or against Customer under any state or federal law, Dutch Bros may postpone or cancel shipment of the Items.
3. PAYMENT TERMS. Unless otherwise stated by Dutch Bros in writing, payment terms for the Items are cash on delivery. All payments must be made in U.S. Dollars. If the Items are goods, Dutch Bros retains a security interest in the Items until full payment is received by Dutch Bros. Customer shall also pay all taxes and duties, except Dutch Bros’ income taxes, that are increased or levied, now or in the future, in connection with Customer’s purchase of the Items. A delinquency charge equal to the lesser of 1 ½ % per month or the maximum amount allowable by law shall be added to amounts not paid within terms. Customer is not entitled to any setoffs from its payment obligation. Customer is not guaranteed open account terms, and Dutch Bros reserves the right to defer shipments, postpone performance, accelerate the due date, require cash payments or other security, rescind credit terms, reduce credit lines, or take other appropriate actions, if the account is not kept current, or if Dutch Bros, in Dutch Bros’s discretion, doubts Customer’s financial responsibility. Customer agrees to pay reasonable attorney fees of Dutch Bros and all other collection costs Dutch Bros incurs in collecting any late payments. If Dutch Bros has given Customer written approval for an EFT payment option, Dutch Bros may rescind the EFT payment option after no less than 5 days’ notice if Customer fails to comply with all the terms associated with that option.
4. WARRANTIES. If the Items are goods, Dutch Bros warrants to Customer that upon delivery the Items shall be conveyed with good title free of lawful recorded liens and encumbrances and shall meet any express warranties given to Customer in writing in this Invoice. If the Items are services; Dutch Bros warrants that the Items shall be performed in accordance with generally recognized industry standards for similar services.
5. PRICE CHANGES. Dutch Bros may increase prices, change transportation terms, change payment terms, and change notice provisions, by giving Customer prior notice. These changes shall be deemed accepted unless Customer objects in writing before the effective date.
6. EXCLUSION OF OTHER WARRANTIES. THE WARRANTIES IN SECTION 4 OF THESE INVOICE TERMS ARE DUTCH BROS’ SOLE WARRANTIES RESPECTING THE ITEMS AND ARE MADE EXPRESSLY IN LIEU OF AND EXCLUDE ANY IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES PROVIDED BY STATUTE, USAGE OF TRADE, USAGE OF PERFORMANCE, OR COMMON LAW. THE ITEMS ARE SOLD TO CUSTOMER “AS IS”AND WITH ALL FAULTS.
7. LIMITATION OF LIABILITY. DUTCH BROS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR SIMILAR TYPES OF DAMAGES. DUTCH BROS’ ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR CLAIMS (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORT) IS LIMITED TO DUTCH BROS HAVING THE OPTION IN ITS SOLE DISCRETION OF REPLACEMENT, REPERFORMANCE, OR REPAYMENT OF THE PURCHASE PRICE PAID FOR THE ITEMS WHICH ARE THE SUBJECT OF THE CLAIM. IN NO EVENT SHALL DUTCH BROS’ HAVE ANY LIABILITY UNDER THIS AGREEMENT IN EXCESS OF THE PURCHASE PRICE OF THE ITEMS BY CUSTOMER THAT ARE THE SUBJECT OF THE CLAIM.
8. NOTICE OF CLAIMS. CUSTOMER SHALL INFORM DUTCH BROS IN WRITING OF ANY CLAIM WHICH CUSTOMER HAS WITHIN 60 DAYS AFTER CUSTOMER LEARNS, OR SHOULD REASONABLY HAVE LEARNED, OF THE CLAIM, OR CUSTOMER IS DEEMED TO HAVE WAIVED THE CLAIM.
9. INTELLECTUAL PROPERTY. Unless otherwise agreed in writing by Dutch Bros, Customer has no license and may not resell any Items bearing any registered or unregistered copyrighted material, trademarks, trade names, service marks and logos owned by Dutch Bros or its affiliated entities.
10. INDEMNIFICATION. Customer shall indemnify, defend, and hold harmless Dutch Bros, its parent, and affiliated entities, and their respective shareholders, members, directors, officers, employees, agents, and insurers (each an "Indemnitee") from and against any and all claims, losses, demands, suits, actions, liabilities, damages, judgments and expenses including without limitation, settlement payments, court costs and attorneys' fees (“Liability”) arising out of or in connection with: (a) any breach of Customer’s representations, warranties or covenants herein; (b) any willful misconduct or negligent acts or omissions by Customer, its employees, permitted contractors or agents; or (c) any claim by a third party that any misuse or modification of the Items that occur after delivery to Customer violated, infringed, or misappropriated a third party patent, copyright, trade mark, service mark, privacy right, trade secret, or other intellectual property right.
11. EXCUSED PERFORMANCE. Dutch Bros’ performance is excused in the event it is prevented by any fire, flood, earthquake, explosion, pandemic, act of God, explosion, casualty of war, labor dispute, inability to obtain delivery of supplies, electrical power or other utilities on terms Dutch Bros considers reasonable, terrorism, any governmental law, order, regulation or ordinance, or any other act or condition beyond the reasonable control of Dutch Bros.
12. INDEPENDENT CONTRACTORS. Dutch Bros and Customer are independent contractors. Neither is an agent, representative or employee of the other entity. Neither Dutch Bros or Customer shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or otherwise bind the other entity.
13. SEVERABILITY. DUTCH BROS' RIGHTS UNDER THIS INVOICE INCLUDING, WITHOUT LIMITATION, SECTIONS 6 – 8, SHALL BE INTERPRETED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. If any provision of this Invoice is held to be invalid, void, or unenforceable, all other provisions will remain valid and be enforced and construed as if such invalid provision were never a part of this Invoice, and the provision that is held to be invalid, void, or unenforceable shall be modified only to the extent needed to make it enforceable.
14. ASSIGNMENT. Customer will not delegate any duties, nor assign any rights or claims under this Invoice, or for breach thereof, without the prior written consent of Dutch Bros, and any such attempted delegation or assignment will be void.
15. WAIVERS. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege of Dutch Bros arising from this Invoice will operate or be construed as a waiver thereof.
16. GOVERNING LAW; VENUE; LEGAL FEES. This Invoice will be construed under and governed by the laws of the State of Oregon. Venue for any action filed to enforce or interpret the terms of this Invoice will be exclusively limited to State or Federal courts located in the State of Oregon
17. ENTIRE AGREEMENT. The terms set forth in this Invoice constitute the sole and entire agreement between Customer and Dutch Bros as to the subject matter of the Invoice and may only be amended or modified in a writing stating specifically that it amends these Invoice terms and is signed by an authorized representative of each party.