General Terms & Conditions
THIS CONTRACT IS MADE SOLELY UPON, AND IS CONTINGENT UPON, BUYER’S ACCEPTANCE OF SELLER’S STANDARD TERMS AND CONDITIONS AS SET FORTH BELOW OR ON THE REVERSE SIDE HEREOF. NO DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS IN THE BUYER’S PURCHASE DOCUMENTS WILL BE ACCEPTED.
1.Price Changes. The price and terms herein specified may be adjusted by Seller at any time by written notice from the Seller dispatched at least fifteen (15) days prior to the effective date of such price adjustment. Buyer shall be deemed to have consented to such adjustment unless Buyer gives its written rejection of any price increase before the effective date thereof. Any such rejection by Buyer shall operate to release Seller from all further liability to deliver and to permit Buyer to purchase elsewhere until such time as the parties shall have agreed in writing upon an adjusted price or Seller shall have consented in writing to re-establishment of the last prevailing contract price. Such adjusted price shall be paid for all Product shipped hereunder on and after the effective date thereof unless subsequently further adjusted by Seller. An agreement to maintain firm pricing for a product or limit price increases to a maximum amount or percentage shall preclude Seller during the applicable period from increasing price for such product in any manner which has the effect of increasing Seller’s margin in excess of costs, but shall not preclude Seller from introducing, upon like prior notice, a mechanism which adjusts prices hereunder to reflect Seller’s actual changes in costs of raw materials, energy, manufacture or transportation.
2.Delivery-Risk of Loss-Storage. Unless otherwise specified herein, deliveries shall be made in approximately equal monthly quantities, except that Seller reserves the right to limit monthly deliveries to the pro rated estimated or minimum quantity provided for in this contract. Any time or date stated for delivery is an estimate only and the Seller shall not be liable for failure to deliver at the specified time or on the specified date, nor shall such failure on the part of the Seller be deemed to be a breach of the contract or any of its terms and conditions or part thereof. Unless otherwise specified herein, delivery of Product to a carrier for shipping to the Buyer shall constitute delivery to the Buyer; and all risk of loss or damage in transit shall be borne by the Buyer. The buyer undertakes to strictly comply with conditions of storage and preservation of products as stipulated in the Seller’s technical sheets following the recommendations of the International Dairy Food Association applicable at the time when the order was placed.
3.Title to the Products. Delivery of the Products to the Buyer is made on the express condition that the property of the same not pass to the Buyer until the total purchase price for the Products shall have been paid to the Seller. If such Products shall become constituents of any other goods, then the proceeds of such goods shall be the property of the Seller.
4.Resale Prohibition. Buyer hereby represents and warrants that it is entering into this Contract solely for the purchase of Product for use in further manufacturing, and Buyer understands and agrees that it will not resell any Product to any third party other than to its own corporate affiliates for use by them in further manufacturing.
5.Shipment Default by Buyer. Each shipment shall constitute a separate and independent transaction and Seller may recover for each such shipment without reference to any other. If Buyer is in default with respect to any terms or conditions of this contract, then, in addition to any other legal remedy available to Seller, Seller may, at its option, defer further shipments hereunder until such default be remedied (in which event Seller may elect to extend the contract period for a time equal to that for which shipments were so deferred), or, Seller may decline further performance of this contract.
6.Weight. In case of a dispute concerning the weight of Product delivered in bulk carload or tank car shipments, shipper’s weight, certified to by a weighmaster, shall govern absent manifest error.
7.Suitability for Buyer’s Purposes. Determination of the suitability of the Product supplied hereunder for the uses and applications contemplated by Buyer and others shall be the sole responsibility of Buyer. All warranties by Seller pertaining to the Product are expressed in this paragraph. Seller warrants that the Product delivered hereunder meets Sellers’ standard quality on the date of production, or such other specifications attached hereto. SELLER MAKES NO OTHER EXPRESS WARRANTIES; THERE ARE NO IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER ASSUMES ALL RISK AND LIABILITY FOR ALL LOSS, DAMAGE OR INJURY TO PERSON OR PROPERTY, INCLUDING WITHOUT LIMITATION POLLUTION, ENVIRONMENTAL DAMAGE AND RESTORATION LIABILITY, RESULTING FROM (i) THE USE OF SAID PRODUCT IN MANUFACTURING PROCESSES OR IN COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE (ii) THE HANDLING AND DIS-POSAL OF THE PRODUCT.
8.Limitation of Seller’s Liability. No claim of any kind, whether as to Product delivered or for non-delivery of Product, and whether arising in tort, contract or otherwise shall be greater in amount than the purchase price of the Product in respect of which such damages are claimed; and the failure to give written notice of claim within thirty (30) days from date of delivery, or the date fixed for delivery, as the case may be, shall constitute a waiver by Buyer of all claims in respect of such Product. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION BUYER’S MANUFACTURING COSTS, LOST PROFITS OR GOOD WILL, REGARDLESS OF THE FORM OR BASIS OF ANY ACTION.
9.Taxes. Buyer shall reimburse Seller for all taxes (including increases in existing taxes and the application of new taxes) excises or other charges which Seller may be required to pay to any governmental authority (national, state, provincial or local) upon, or measured by, the sale, production, transportation or use of any Product sold hereunder. Seller may at its option add to the price of Product sold hereunder the amount of any increase in transportation charges for shipments to Buyer, provided that such transportation charges are payable by Seller hereunder.
10. Credit. Credit terms are subject to change at any time by Seller in its sole discretion. The representations and agreements of Buyer in any application for credit from Seller are incorporated herein by this reference. Unless otherwise agreed by Buyer in such credit application, interest on all sums past due from Buyer hereunder shall accrue and be payable by Buyer at the rate of 1 month LIBOR, plus 2%, but in no event shall such interest be greater than the maximum lawful rate. If, in the judgment of Seller, the Buyer’s ability to pay shall at any time become impaired, then, in addition to any other remedy available to Seller, Seller may decline to make further deliveries under this contract except upon receipt, before shipment, of payment in cash or security for such payment satisfactory to Sell.
11.Force Majeure; Product Allocation. Neither party shall be liable for its failure to perform hereunder if said performance is made impracticable due to any circumstances beyond the reasonable control of the party affected, including but not limited to, acts of God, acts of terrorism, fires, floods, wars, sabotage, accidents, labor disputes or shortages, plant shutdown, equipment failure, voluntary or involuntary compliance with any law, order, rule or regulation of government agency or authority, or inability to obtain raw materials (including power and fuel), equipment or transportation. The affected party may omit purchases or deliveries during the period of continuance of such circumstances and the contract quantity shall be reduced by the quantities so omitted. During any period when Seller shall be unable to supply the total demands for any Product provided for in this contract, whether caused by the circumstances specified above or otherwise, Seller may allocate any available Product among all buyers including its own divisions and departments, on such basis as it may deem fair and practical.
12.Entire Agreement. This contract constitutes the entire agreement between the parties concerning the subject matter hereof and there are no understandings, representations or warranties of any kind, express or implied, not expressly set forth herein. No modification of this contract shall be of any force or effect unless such modification is in writing and signed by the party to be bound thereby; and no modification shall be effected by the acknowledgment or acceptance of purchase order forms containing terms or conditions at variance with those set forth herein.
13.Successors; Assignment. This agreement shall be binding upon and inure to the benefit of the respective successors and assigns of each of the parties hereto, but shall not be assigned by Buyer without the prior written consent of Seller.
14. No Continuing Waiver. Seller’s waiver of any breach, or failure to enforce any of the terms or conditions of this contract, at any time, shall not in any way affect, limit or waive Seller’s right thereafter to enforce and compel strict compliance with every term and condition hereof. The acceptance by the Seller of any payment after the specified due date shall not constitute a waiver of the Buyer’s obligation to make further payments on the specified dates.
15.Governing Law. The Parties will resolve amicably every possible dispute linked to the Contract. Failing this, any dispute relative to the execution, the application or the interpretation of this Contract shall be resolved in accordance with the laws of the place of Jurisdiction of the seller and any litigation shall be submitted to the jurisdiction of the said place.
THIS CONTRACT IS MADE SOLELY UPON, AND IS CONTINGENT UPON, BUYER’S ACCEPTANCE OF SELLER’S STANDARD TERMS AND CONDITIONS AS SET FORTH BELOW OR ON THE REVERSE SIDE HEREOF. NO DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS IN THE BUYER’S PURCHASE DOCUMENTS WILL BE ACCEPTED.
[End of Standard Terms and Conditions]