GENERAL TERMS AND CONDITIONS OF SALE
- Conclusion of Agreement
The Seller’s offers shall be without engagement and the Agreement shall become effective only upon the Seller’s confirmation in writing.
Any business done by the Seller’s agents or representatives must be confirmed in writing to the Buyer by the Seller’s management.
The parties shall be bound by the terms and conditions of the Seller’s confirmation in the absence of any protest lodged by the Buyer and received within eight days from the date of the Seller’s confirmation in writing.
The parties shall be bound by these Terms and Conditions, and these Terms and Conditions supersede all other terms and conditions, including any terms and conditions of the Buyer, unless the Seller expressly agrees with a deviation in writing.
The ordered goods shall be delivered, CPT, CFR, CIF or FOB (in accordance with the most recently published version of the Incoterms of the International Chamber of Commerce). Any delay in the collection and/or loading shall require the Buyer to collect the goods at the Seller’s factories and warehouses and/or at the place of loading.
If the Seller is unable, for any reason, to supply the goods from the plant mentioned in the Agreement, the Seller may, but is not required to, supply the goods from another plant, to the extent available, subject to the Buyer’s payment of all increased freight costs.
Unless stated otherwise in the Agreement, if the Agreement provides for deliveries over a period exceeding one month, the Seller shall not be required to deliver more than (approximately) equal quantities per month, relative to the total quantity of the Agreement.
The Buyer shall timely provide complete delivery instructions, enabling the Seller to perform its obligations. If no such instructions are given, the Seller will not be required to start the delivery. In the event of any actual or threatened refusal to pay, suspension of payment, liquidation, dissolution, composition or arrangement with creditors or bankruptcy of the Buyer or any other similar measure, the Seller shall be entitled to suspend or cancel, in whole or in part, further performance of the Agreement and all sums due will become payable immediately. Furthermore, the Seller shall be entitled to recover any unpaid goods that were already delivered to the Buyer.
- Delivery Time – Force Majeure
The time of delivery is an estimate only and shall not be of the essence of the Agreement. Such delivery time cannot give rise to any sanction of any kind in the event of non-compliance therewith, except if such delivery time was expressly stipulated to be imperative at the time of the order and was accepted as such in the confirmation of the order.
The Seller will not be in breach of the Agreement nor liable for any failure or delay in delivery in the event of Force Majeure or events beyond its control. Force Majeure, includes, but is not limited to, war, revolution, act of terrorism, riot, strike, lock-out, act of public authorities, administrative restriction, compliance with any law or governmental order, rule, regulation or direction, natural disaster, fire, explosion, machinery breakdown, delays of or non-compliance by a third party, any other such reasons which may render the (timely) receipt of raw material, fuels and supplies, as well as the normal production, shipment or transport of goods impossible, and, in general, any other reasons beyond the Seller’s control which may render the performance of the Agreement impossible, either in whole or in part.
In the event of Force Majeure, the performance of the Agreement will be suspended for a period corresponding to the duration of the Force Majeure. If the Force Majeure continues for more than six months, either party can, subject to a written notification to the other party, terminate the Agreement immediately without any liability to the other party and without any judicial intervention.
- Transfer of Ownership and Risk
The full legal, beneficial and equitable title to and property of the goods shall remain vested in the Seller, wherever such goods may be, until the payment in full has been received by the Seller for all the goods. To secure payment of amounts due by Buyer, Seller shall retain a security interest in all goods, and the Agreement shall be deemed a security agreement under the Uniform Commercial Code as adopted by the State of Minnesota. Buyer will execute all documents that the Seller deems necessary to perfect this security interest. The Seller shall have a security interest in, and a lien upon, goods until the Buyer has paid for them in full. If the Buyer defaults in any payment for goods, it will make such goods available to the Seller for repossession immediately upon receipt of notice. The goods are at the risk of the Buyer as from the time of delivery or, if the Buyer fails to accept the delivery, at the originally agreed delivery time. In addition, the goods shall be transported at the Buyer’s risk, even if the sale has been concluded carriage paid, CFR, CIF or FOB. The only purpose of any mention in the special terms and conditions which seems to contradict this provision, is to include the costs of transport and/or insurance in the price and does not affect the principle that the goods are transported at the risk of the Buyer.
- Acceptance – Protest
The goods shall be deemed to have been accepted as being in accordance with the Agreement upon their delivery, unless the Buyer notifies the Seller by registered letter of any defect or other failure of the goods to conform with the Warranty (defined in Article 13), within eight days of the delivery of the goods, failing which the Buyer shall not be entitled to reject the goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the goods had been delivered in accordance with the Agreement.
By way of derogation from the above provision, protests regarding the weight of the goods must be notified in writing within 24 hours as from the moment that the delivery is received by the carrier or the representative of the Buyer.
If the protest is well-founded, the Seller shall have the option to either replace the defective or non-conforming goods or retake the goods at its own cost, in whole or in part, and refund the price paid for the same, in which case the Buyer waives any claims for other repairs or damages, in any form whatsoever. These options shall constitute the sole and exclusive remedy for the Buyer.
Each party shall take a sample of the goods. If the goods are delivered by road transport, the sample shall be taken by the Seller upon the departure of the goods and by the Buyer upon their arrival. Should the characteristics of the samples taken by the Seller and the Buyer not match, a sample shall be taken in the presence of both parties in the Buyer’s silos to the extent that the contested goods can be specifically identified from other batches of goods at the Buyer’s silos. If the contested goods can no longer be specifically identified or should the Buyer refuse such sampling, the sample taken in the Seller’s silos shall be deemed to have been taken in the presence of both parties.
If the goods are delivered by ship, the sample shall be taken by the Seller or by an authorised inspection body in the Seller’s factories or warehouses and/or at the time of loading, including in the event of a CPT, CFR, CIF or FOB sale. This sample shall be deemed to have been taken in the presence of both parties.
In the event of a protest, the samples taken in accordance with the above provisions shall be submitted to an inspection body designated by mutual agreement, upon the request of one of the parties. Should no agreement be reached within 15 days from the date of the request, the inspection body chosen by the Seller shall be designated. A counter-analysis can be carried out at the request of one of the parties in a laboratory chosen by the parties.
The average result of both analyses shall be regarded as evidence. The costs of both analyses shall be borne by the unsuccessful party.
Should the counter-analysis be contested, the parties shall submit the dispute to court.
- Collection of Goods
Any goods not collected within 15 days of the date of notice that they are at the Buyer’s disposal, shall be invoiced even if they are not collected.
In the event of late collection, the Buyer shall pay the storage charges to the Seller on a fixed basis of 0.50% of the price of the goods stored per period of 15 days of delay, or the real storage charges should the goods be stored at the premises of a third party.
The Buyer can under no circumstances invoke the late collection of the goods to defer their payment as provided for in article 8.
Prices are quoted and invoiced in U.S. Dollars, and the Buyer shall pay all invoices in U.S. dollars without deduction, withholding or set-off. Unless stated differently in the Agreement, the prices are calculated excluding taxes and carriage costs. Any taxes and costs indicated in the Agreement to be added to the price are intended as an estimate only. The Buyer shall pay the taxes and costs applicable at the time of the delivery of the goods.
For all new orders from the Buyer, not yet confirmed by the Seller, the Seller has the right to increase the prices or reduce its supply commitments, over a period as necessary to take into account any increase in cost to the Seller due to (i) any change in law, regulation, tax, duty, levy or other payment imposed following the date of the Agreement by any government; or (ii) circumstances of Force Majeure and Hardship, including significant increases in prices or reductions in availability of raw materials, energy, services or other supplies required by the Seller. The Seller shall promptly notify the Buyer and explain any changes in the prices. The Seller reserves the right to terminate the Agreement, without liability, in the event of a change that will have a material adverse effect on the Seller and cannot be resolved by an increase in the price.
- Payment – Interests of Default – Penalty
Payments should be made on the due date of the related invoices.
Without prejudice to article 5, the Buyer shall be deemed to have accepted the invoice without reservation in the absence of any protest of the invoice within five days following receipt thereof. Any use or treatment of the goods, both in whole and in part, shall imply the waiver of any right to protest the invoice.
In the event of default of payment of an invoice on its due date, then, without limiting the Seller’s other available remedies, such invoice shall be increased ipso jure and without prior notice of default with a default interest equal to the interest rate determined by the European Central Bank’s base lending rate for its most recent main refinancing operation applicable at the time of exigibility of the invoice increased by 1.5% per month or the highest amount permitted under applicable law (whichever is less), even if such month has already started, calculated as from the due date until full payment.
In the event of late payment, the damages to Seller would be difficult to ascertain and so, the amounts due shall automatically be increased with fixed damages amounting to 10% of the outstanding payment without affecting the Seller’s right to claim additional damages for any losses actually incurred, which increase is not a penalty.
The Buyer can under no circumstances invoke its protest to defer its payments.
Without limiting the Seller’s other available rights and remedies, failure of the Buyer to pay on the due date shall give the Seller the right, but not the obligation, to suspend further deliveries, until all previous deliveries are paid or to terminate the Agreement and seek all available remedies from the Buyer.
- Non-fulfilment – Extension – Dissolution
Should the Buyer fail to fulfil its obligations, in whole or in part, the Seller shall, without limiting its other available rights and remedies, have the right to suspend the performance of the Agreement and any other ongoing agreements or to dissolve the same ipso jure, without prior notice of default, by registered letter or electronic registered mail, and without prejudice to its right to claim damages. The Buyer shall not be allowed to claim any damages and interests resulting from such suspension.
Notwithstanding the foregoing, the Seller may choose to carry out the order. The Buyer can never invoke the expiry of the term of delivery to demand the dissolution of the Agreement or the extension of the fixed term. Any change in the Buyer’s legal or commercial situation, including bankruptcy, composition or arrangement with its creditors, protest of a bill of exchange even non-accepted, liquidation, dissolution or any change in its legal form shall entitle the Seller to dissolve the ongoing agreements or to subject the performance thereof to the granting of guarantees by the Buyer, which shall be determined by the Seller.
- Taxes and Rates
Any taxes and duties, including freight rates, customs duties, VAT and other indirect taxes on the transfer of the goods, invoice taxes, licence taxes and any increase of such taxes and duties regarding the goods or the materials used for the manufacture thereof, shall be borne by the Buyer. All demurrage or detention charges shall be borne by the Buyer.
The Agreement shall be performed directly by the parties. Each assignment, in whole or in part, of the Agreement by the Buyer shall be subject to the prior written consent of the Seller and any attempted assignment without such permission shall be void and of no effect. The Agreement may be assigned by the Seller. The Agreement binds the parties and their successors and permitted assigns.
- Quality Standards and Crop Conditions
Seller warrants that the technical standards indicated by the Buyer shall be observed by the Seller to the extent that the Seller has explicitly accepted them in the confirmation of the order and that the weather conditions and/or genetic characteristics permit (the “Warranty”). Should this not be the case, the parties shall undertake to adapt such standards following an objective determination of the quality of the crop. Buyer’s exclusive remedies and Seller’s exclusive liabilities in respect of the Warranty are set forth in Article 5.
Regardless of the nature of the sale provided in the special terms and conditions, the Buyer must take out the appropriate insurance policies in order to insure the risk and dangers of the transport and storage at its own expense.
- Governing Law – Venue
The Agreement, these Terms and Conditions and any issues, disputes or claims arising out of or in relation them, shall be governed by and be construed in accordance with the laws of the state of Minnesota, United States, excluding conflict of law principles. Any dispute which the parties are unable to resolve amicably, shall be settled by the competent courts of Minneapolis, Minnesota (United States) and the parties hereby irrevocably consent to the exclusive jurisdiction and proper venue of such courts and waive any objections thereto based on any ground including improper venue or forum non-conveniens. Notwithstanding the foregoing, the Seller may enforce judgments or seek injunctive relief for an infringement or threatened infringement of intellectual property rights in any court of competent jurisdiction. The United Nations Convention for the International Sale of Goods is excluded.
EXCEPT WITH RESPECT TO THE EXPRESS WARRANTY MADE IN ARTICLE 13, ALL GOODS ARE MADE AVAILABLE TO BUYER “AS IS” AND WITHOUT WARRANTY AND SELLER MAKES NO WARRANTY WITH RESPECT TO THE GOODS, WHETHER EXPRESS OR IMPLIED OR STATUTORY OR BY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER BE LIABLE UNDER ANY LEGAL THEORY OR FORM OF ACTION (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, OR COST OF SUBSTITUTE GOODS) ARISING OUT OF OR RELATED TO THE GOODS OR THEIR DELIVERY, OR OTHERWISE RELATING TO THESE TERMS AND CONDITIONS OR THIS AGREEMENT, EVEN IF SELLER HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE GOODS OR OTHERWISE RELATING TO THESE TERMS AND CONDITIONS OR THIS AGREEMENT, EXCEED THE AMOUNTS PAID BY BUYER TO SELLER FOR THE GOODS UNDER THE ORDER UNDER WHICH THE LIABILITY AROSE.
BECAUSE SOME JURISDICTIONS LIMIT OR DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF WARRANTIES OR LIABILITY, SECTION 16 AND/OR SECTION 17 MAY NOT PARTIALLY OR ENTIRELY APPLY TO BUYER. TO THE EXTENT THAT ANY SUCH LIMITATION OR EXCLUSION OF LIABILITY OR WARRANTY IS CIRCUMSCRIBED, IT SHALL BE LIMITED TO THE LEAST EXTENT POSSIBLE UNDER APPLICABLE LAW. IN ANY EVENT, SECTION 16 AND SECTION 17 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees and agents, from and against any and all third party demands, claims, actions, causes of action, proceedings, suits, assessments, losses, damages, liabilities, judgments, fines, penalties, settlements, interest, cost and expenses (including reasonable attorneys’ fees) arising out of or in connection with an allegation based upon (i) Seller’s manufacture and/or sale of goods to buyer to the extent such manufacture and/or sale is based upon Buyer’s specifications; (ii) Buyer’s use or distribution of the goods, either standalone or as a component of another product; (iii) Buyer’s combination of the goods with other products or materials; and/or (iv) Buyer’s violation of applicable laws. Buyer shall defend Seller from such claims at Buyer’s expense and at Seller’s direction. Buyer shall notify Seller promptly of any incident involving goods resulting in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation of such incident and provide us with all related statements, reports and tests available to Buyer.
If any provision of these Terms and Conditions is invalid, illegal, or unenforceable, the remaining provisions shall be unimpaired. Seller’s exercise of any option, or failure to exercise any rights hereunder shall not constitute a waiver of its rights or of any subsequent breach by Buyer. The parties’ relationship is solely that of independent contractors. Any notices under this Agreement must be in writing and personally delivered or sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier. Notices to Seller shall be sent to firstname.lastname@example.org. Notices will be effective upon receipt.
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