Terms of Sale
SUPPLY TERMS AND CONDITIONS
These Supply Terms and Conditions ("Terms") shall be binding upon Olam West Coast, Inc. dba Olam Spices and Vegetable Ingredients ("Seller") and the buyer ("Buyer") and they shall be applicable sales transactions between the Seller and Buyer, and together with invoices, specifications, order acknowledgements and policies (if/when applicable), shall form the Agreement between the Parties ("Agreement"). All deliveries of goods or products (the "Products") by Seller to Buyer shall be contingent upon Buyer's acceptance of these Terms. Based upon these Terms with Buyer, Seller has relied to its detriment that Buyer will fully perform hereunder by taking positions or making third party commitments with regard to the purchase of the Products to be delivered hereunder. Herein, Buyer and Seller are each referred to as "Party" and collectively referred to as "Parties."
1. Buyer agrees to purchase all Products subject to these Terms upon executing or otherwise accepting such Terms, even where Buyer elects to not attach these Terms in a response to Seller's estimate or quotation, which can be satisfied by e-mail or formal written signature. No additional terms or conditions, presented by either Party in any miscellaneous or prospective documents, shall supersede these Terms unless formally agreed to in writing by an authorized representative of the Seller. Seller's agents and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these Terms or the terms of the Order Acknowledgement (see below), and such oral representations, statements, warranties, conditions or agreements, if made, shall be null and void.
1.1. Purchaser agrees to purchase all Products subject to these Terms upon executing or otherwise accepting these Terms, even where Purchaser elects to not attach these Terms in a reply to Seller and which can be satisfied by email or formal written signature. No additional terms, presented by either Party in any miscellaneous or prospective documents, shall supersede these Terms unless formally agreed to in writing by both Parties.
1.2. Order Acknowledgement: Once Purchaser has provided the aforementioned acceptance of these Terms, Seller will issue to Purchaser an Order Acknowledgement consisting of the: (i) product and specification, (ii) price,
(iii) payment terms, (iv) quantity, (v) incoterms of sale, (vi) shipment schedule, and (vii) additional notes. The Order
Acknowledgement provides the terms of the sale which, in conjunction with these Terms, constitute the legal and binding
agreement between the Parties.
1.3. Seller's agents and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these Terms or the terms of the Order Acknowledgement, and such oral representations, statements, warranties, conditions or agreements, if made, shall be null and void.
1.4. Except as otherwise set forth in this these Terms, all Products supplied by Seller to Purchaser pursuant to this these Terms shall conform in all respects to the product specifications set forth in the Specifications document (the "Specifications"), Purchaser may only vary the Specifications with the prior written approval of Seller. Any additional costs incurred by Seller in relation to the variation of the Specifications shall be borne solely by Purchaser.
1.5. Purchaser shall not re-sell any Product, except after such Product has been processed by Purchaser, unless either: (i) a distribution agreement is in place with Seller that covers the re-sale of the Product,
2.1. All payments by Purchaser to Seller shall be made in the manner and by the date specified in the Order Acknowledgement. Where payment by letter of credit is stipulated, payment must be: (i) made by confirmed irrevocable letter of credit established for the credit of the bank that Seller nominates, (ii) irrevocable, confirmed and without recourse, and (iii) in a form satisfactory to Seller.
2.2. If Seller requires Purchaser to post security for payment, Purchaser shall post such security before the
Products are loaded for shipment.
2.3. The Price of the Products is exclusive of all taxes (including sales taxes, goods and services taxes, value added taxes and customs duties) and any charge or levy of an export, which shall be borne by Purchaser.
2.4. Purchaser shall not withhold payment or make any deduction or set-off from any amount owing to Seller without
Seller's prior written consent.
2.5. Payment Terms; Extension of Credit: The applicable payment terms under these Terms shall be payable based on the Order Acknowledgement. When the payment terms call for a payment at a date in the future, it is the intent that the payment is made in readily available funds by the payment due date. Should Purchaser's financial strength become unsatisfactory to Seller, Seller may, in its discretion, withhold further shipments, require immediate cash payments for past and future shipments, or require other security satisfactory to Seller before further deliveries shall be made. If Purchaser fails to pay Seller in accordance with these Terms, Seller has the right, in addition to any other rights or remedies provided by law, and subject to any right Purchaser has by law, to correct its default, to declare the entire balance of Purchaser's account immediately due and payable or to foreclose any security interest that Seller may have in the Products delivered. If any unpaid balance is referred for collection to any attorney, Purchaser agrees to pay (in addition to all damages otherwise available to Seller), to the extent permitted by law, reasonable attorneys' fees, whether or not litigation is commenced or prosecuted to final judgment, plus any court costs or expenses incurred by Seller, and any finance charge accrued on any unpaid balance owed by Purchaser, all as calculated in accordance with this these Terms, until all amounts owed to Seller that are due under this these Terms invoice, or otherwise, are paid in full.
2.6. Finance Charges: Purchaser agrees to pay the unpaid balance of all overdue invoices, from the date the total amount of each invoice is due and payable at an ANNUAL PERCENTAGE RATE of EIGHTEEN PERCENT (18%), or the maximum lawful rate under applicable law as is now or hereafter construed by a court of competent jurisdiction, whichever is lower.
2.7. Electronic Transmissions: If Seller agrees in writing to electronically transmit to, or receive from, Purchaser any documents or information relating to these Terms (including, without limitation, invoices) (collectively “Documents"), the following provisions shall apply:
2.7.1. All Documents shall be transmitted and received in accordance with standards specified by Seller from time to time.
2.7.2. Purchaser must, at its own expense: (i) provide and maintain the resources necessary to effectively and reliably transmit and receive Documents, and (ii) implement security procedures, which are necessary to ensure that transmissions of Documents are protected against improper access.
2.7.3. Each Party shall maintain a record of data exchanged pursuant to this Section 2.7 for not less than twenty-four (24) months following the supply of Products to which the data relates and allow the other Party reasonable access to that record on request.
2.7.4. The Parties agree that the Documents shall be governed by the U.S. E-Sign Act and the California
Uniform Electronic Transactions Act.
2.7.5. Nothing in this Section 2.7 precludes the Parties from exchanging paper documents; provided, however, that where a Document is sent in both paper form and electronic form, the electronic form of the Document shall prevail.
3. DELIVERY AND SHIPMENT.
3.1. Purchaser shall issue delivery instructions sufficiently in advance to allow Seller to deliver the Products and/or to obtain delivery and shipment based on the trade terms as specified in the Order Acknowledgement (as interpreted in accordance with Incoterms 2010). If Purchaser fails to issue delivery instructions sufficiently in advance, Seller may invoice the Products on the Requested Delivery Date, on the Order Acknowledgement, and demand payment as if the Products were delivered on that date.
3.2. Where delay in delivery is due to the fault of Purchaser as a result of Purchaser's failure to produce a letter of credit and/or import license at least thirty (30) days (or such other period as may be stated in the Order Acknowledgement) before the contractual month of the shipment, or for any other reason whatsoever, Seller shall be entitled to cancel delivery of the Products without any liability to Purchaser or to continue delivery of the Products. Should Seller elect to continue with the delivery of the Products, Purchaser shall reimburse the following amounts to Seller: (i) interest calculated at the rate of ten percent (10%), per annum for the period between the Scheduled Ship Date on the Order Acknowledgement and the date of actual shipment, and (ii) any additional costs incurred by Seller as a result of the aforesaid delay including, but not limited to, costs associated with exchange risk, storage and insurance for the Products.
3.3. In the event Seller, due to the fault of Purchaser, is required to pay fees, demurrage, or costs with respect to the shipping of the Products sold herein, Purchaser hereby agrees to reimburse Seller of all such fees, demurrage, and other costs, including any subsequent undercharge claims, and to indemnify, defend, and hold Seller harmless from any claims for payment of any such fees, demurrage, or other costs.
3.5. In the event the Products set forth on any Order Acknowledgement are for export, the Purchaser shall be responsible for securing export, import and other licenses or authorizations as may be required.
4. TITLE OF PRODUCTS, SECURITY.
4.1. Notwithstanding any terms in these Terms or in Incoterms 2010 regarding the passing of title and risk, title to the Products shall remain vested in Seller and shall not pass to Purchaser until payment of the Price has been received in full by Seller. Full payment of the Price shall include, without limitation, the amount of any interest or other sum payable hereunder or in the Order Acknowledgement. Until title to the Products passes to Purchaser, the Products shall be subject to the following conditions: (i) Seller shall have the right to retake, sell or otherwise possess and/or dispose of all or any part of the Products, (ii) Seller, Seller's agents and Seller's employees shall have the right, at all times, and without prior notice, to enter any property upon which Seller reasonably believes the Products are stored in order to inspect or remove such Products.
4.2. Security Interest: Purchaser hereby grants Seller a security interest in each and every part of all Products supplied (and any proceeds thereof) for any amounts owing by Purchaser to Seller from time to time, and for the full performance by Purchaser of all of its obligations to Seller from time to time. To protect Seller's security interest, Purchaser authorizes Seller to prepare and file a financing statement (Form UCC-1), or register or otherwise perfect its security interest as permitted by law in any relevant jurisdiction at Seller's sole discretion. On Seller's request, Purchaser agrees to promptly provide to Seller all assistance and information (including, but not limited to, signing any documents) as requested by Seller to enable Seller to register or otherwise perfect its security interest with the priority it requires. Purchaser waives the right to receive from Seller a copy of any financing statement, financing change statement, or verification statement filed at any time in respect of the security interest granted under these Terms or any renewal or replacement Terms. Purchaser shall be entitled to a release or discharge of the security interest granted pursuant to these Terms or any renewal or replacement of these Terms upon Purchaser's full performance of these
Terms, any Order Acknowledgement, and any related agreement, including, without limitation, full payment, performance, and satisfaction of all amounts owing to Seller under these Terms or any related agreement or any renewal or replacement of these Terms. In the event of any breach of any provision of these Terms or any related agreement, Seller shall have the right to call all obligations hereunder immediately due and payable and shall have all of the rights and remedies afforded a secured party under the California Uniform Commercial Code and all other remedies allowed under applicable law.
5. LIMITED WARRANTY.
5.1. Seller warrants that the Products sold hereunder, as of the date of shipment, shall be fit for human consumption and not in violation of any State or Federal laws or regulations, and are not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, nor are they goods which may not, under the provisions of that Act, be introduced into interstate commerce. Seller further warrants that the Products sold and delivered hereunder will conform to the description set forth in the Specifications. SELLER MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS DESCRIBED HEREIN, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE. SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR
INDIRECTLY ARISING FROM PURCHASER'S PURCHASE OR USE OF SUCH PRODUCTS OR FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING THEREFROM. SELLER'S TOTAL LIABILITY TO PURCHASER FOR ANY BREACH OF THIS LIMITED WARRANTY, OR FOR ANY CLAIM THAT THE PRODUCTS DELIVERED HEREUNDER WERE DEFECTIVE OR NON-CONFORMING, SHALL BE LIMITED TO THE INVOICE PRICE OF ANY PRODUCTS SHOWN TO BE DEFECTIVE, NON-CONFORMING, OR IN VIOLATION OF THE LIMITED WARRANTY PROVIDED HEREIN.
6.1. ANY ACTION OR CLAIM FOR DAMAGES AS A RESULT OF THE RECEIPT OF DEFECTIVE OR OTHERWISE NON-CONFORMING PRODUCTS UNDER THESE TERMS MUST BE MADE BY PURCHASER
THROUGH WRITTEN NOTICE TO SELLER WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT OF
SHIPMENT OF THE PRODUCTS BY PURCHASER, DESCRIBING THE SPECIFIC DEFECT OR CLAIM ALLEGED. FAILURE TO PROVIDE SUCH WRITTEN NOTICE WITHIN THIS TIME PERIOD SHALL BE DEEMED A WAIVER AND RELEASE OF ANY SUCH CLAIM OR RIGHT OF RECOVERY BY PURCHASER WITH RESPECT TO ANY SUCH DEFECTIVE OR NON-CONFORMING PRODUCTS. Seller's liability for any and all damages, actions or claims arising under or in any way related to THESE TERMS, regardless of the nature of such claims, shall in no event exceed the purchase price of the particular shipment with respect to which a claim is made. In any case whatsoever, Seller shall not be liable for lost profits or for incidental, exemplary, punitive, special or consequential damages.
6.2. Mitigation: Purchaser agrees to mitigate any loss or damage that Purchaser may suffer under these Terms or otherwise related to the Products.
7.1. Purchaser shall be solely responsible for determining the adequacy of the Products sold hereunder for any and all uses to which Purchaser shall apply said Products. Purchaser agrees to indemnify, defend, and hold Seller harmless from and against any and all claims, suits, loss, damage, or other liability, which may arise in connection with Purchaser's use of the Products covered by this these Terms.
8. DISPUTE RESOLUTION.
8.1 Informal Negotiation and Mediation. If a dispute arises from or relates to these Terms, the Parties agree that upon the request of either Party they will try in good faith to resolve the dispute within thirty (30) days of that request, following which either Party may submit the matter to mediation under the Commercial Mediation Rules of the American Arbitration Association.
8.2 Arbitration. If the mediator determines that the dispute cannot reasonably be resolved by mediation, or if either Party, after good faith participation in the mediation, shall make written demand therefore, then the dispute shall be submitted to binding arbitration, conducted by a single neutral arbitrator, acceptable to both Parties, who shall be either a licensed attorney or retired judge. Such demand will set forth the nature of the matter to be resolved by arbitration. The arbitration will be governed by the provisions of the California Arbitration Act, California Code of Civil Procedure
§§1280 et seq. Arbitration will be conducted in Fresno County, California. The Parties shall have all discovery rights and obligations conferred by the California Code of Civil Procedure, including, but not limited to, the right to take
depositions without first obtaining leave from the arbitration. The arbitrator shall not have authority to award punitive damages or exemplary damages. If proper notice of any hearing has been given, the arbitrator will have full power to proceed to take evidence or to perform any other acts necessary to arbitrate the matter in the absence of any Party who fails to appear. The arbitrator shall render a written statement of decision setting forth all of the arbitrator's findings of
fact and conclusions of law. The prevailing Party shall be entitled, in addition to any judgment or award upon such action
or proceeding, to an award for all costs and expenses (including costs of all legal or administrative proceedings or hearings) incurred by such prevailing Party, including, without limitation, all attorneys' fees and related costs incurred by such Party in connection with such actions and proceedings and the enforcement of any such judgment or award and upon prevailing in any appeal relating thereto. All decisions of the arbitrator will be final, binding, and conclusive on all Parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having
jurisdiction thereof. For the purpose of obtaining such a judgment, the Parties consent to the jurisdiction of all federal and state courts in California, and agreed that venue will lie exclusively in Fresno County, California.
9. FORCE MAJEURE.
9.1 Seller shall not be liable for any failure or delay of delivery hereunder, where such failure or delay has been occasioned by fire, floods, earthquakes, embargo, acts of terrorism, strikes, wars, accidents, acts of God, crop failure or shortage, strikes or labor disturbances, voluntary or involuntary compliance with any valid or invalid law, or regulation of any governmental agency or authority, lack of transportation facilities, or other causes beyond Seller's control. In the case where shipment is delayed and the cause of such delay ceases, Seller shall ship and Purchaser shall accept delivery at the agreed price. This Section does not excuse Purchaser from any obligation to make a payment when due.
10. CONFIDENTIAL INFORMATION.
10.1 All information provided by Seller hereunder, including, but not limited to, the terms and conditions of these Terms and the Supply Contract, if one is executed by the Parties, must be held in confidence by Purchaser. This obligation shall survive the termination or expiration of this these Terms. Purchaser must ensure that its officers, employees, agents, contractors, and advisers comply with this Section and shall be held liable for any disclosure under these Terms. Purchaser must not disclose to any third party any proprietary information provided by Seller to Purchaser unless Purchaser can demonstrate by written evidence that: (i) the information is in the public domain (other than by reason of breach of any confidentiality obligation owed to Seller by Purchaser or any third party), or (ii) the disclosure (including its form and context) is first approved by Seller in writing.
11.1. All notices required or permitted under these Terms or any applicable law shall be in writing, and be either personally served, sent with return receipt requested by certified mail with postage prepaid, sent by nationally recognized overnight courier service, or sent by telecopy or email with an original to be delivered by nationally recognized overnight courier service. Notice given in the foregoing manner shall be deemed sufficiently given for all purposes hereunder on the date the same was personally delivered, deposited with the United States Postal Service, delivered by a nationally recognized overnight courier service, or sent by telecopy or email, except that any notices of changes of address shall not be effective until actual receipt. If notice is received after 4:30 p.m. or on a Saturday, Sunday or legal holiday it shall be deemed received on the next business day. Notices shall be sent to Purchaser or Seller, at the address on the face hereof, or at their principal place of business, and, in any event, with copies to:
Olam West Coast, Inc. (d.b.a. Olam Spices and Vegetable Ingredients) 205
E. River Park Circle, Suite 310 - Fresno, California 93720.
Attn: VP Sales.
Attn: Director of Legal.
12. PURCHASER'S DEFAULT.
12.1. If Purchaser fails to make any payment when due, fails to perform any other of its obligations hereunder, or breaches any other agreement between the Parties, or if Purchaser makes any assignment for the benefit of its creditors, or if a petition under any State or Federal bankruptcy or insolvency law is filed by or against Purchaser, or if a receiver of Purchaser's property is appointed, then Purchaser shall be in default of these Terms, and Seller shall, in addition to any other remedy, have the right to immediately withhold further deliveries and the right to suspend or terminate these Terms immediately by written notice to Purchaser.
13. BIN RETURN. (APPLICABLE TO PRODUCTS WITH RETURNABLE PACKAGING)
13.1. Seller will charge a bin deposit, which is stated in the Quotation and will credit back to Purchaser the equivalent of eighty seven and one-half percent (87.5%) of the bin deposit for delivery locations within the U.S., Canada and Mexico (92% for delivery locations outside of U.S., Canada and Mexico) based on the condition of the returned bins/complete bin parts upon receipt of such, unless the bins are received by Seller in a unusable condition for the same purpose it was previously used as determined by Seller as its discretion. If Seller determines that the bins are in unusable condition, proper documentation will be sent to inform Purchaser that the bin charge/deposit will not be credited to the Purchaser. Purchaser agrees to Seller's Bin Return Policy, attached herein and incorporated into these Terms by reference.
13.2. Purchaser is responsible for all costs and expenses related to shipping, handling, drayage, dunnage and other related transportation costs regarding the return of the bins / complete bin parts to the delivery location designated by Seller.
13.3. Purchaser hereby agrees to return bins within Six (6) months from shipment date for delivery locations within the U.S., Canada and Mexico or Nine (9) months for shipments outside of the U.S., Canada and Mexico). Purchaser further agrees that if bins/ complete bin parts are not returned to Seller within the above time frame, Seller may be reimbursed by Purchaser the full amount related to the replacement value of the bins adjusted for the bin deposit already received from Purchaser.
15.1. No Waiver: No waiver of any breach of these Terms and the terms in the Order Acknowledgement and the Supply Contract shall be deemed to apply to any succeeding breach of the provision or of any other provision of these Terms and the terms in the Order Acknowledgement. No failure to exercise or delay in exercising on the part of any of the parties hereto any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in these Terms and the terms in the Order Acknowledgement are cumulative and not exclusive of any rights or remedies otherwise available (whether at law or in equity) to the parties hereto.
15.2. Amendments: No provisions of these Terms, the Supply Contract, the Order Acknowledgement, or any related agreement may be modified in any manner whatsoever except by an agreement in writing signed by a duly authorized representative of both Parties.
15.3. Entire Agreement: These Terms constitute the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements (whether written, oral or otherwise) relating thereto.
15.4. Governing Law: THESE TERMS AND ALL DOCUMENTS PROVIDED FOR HEREIN, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES, SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION, AND EFFECT, BY THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT GIVING EFFECT TO ITS CHOICE OF LAW PRINCIPLES), SPECIFICALLY INCLUDING THE PROVISIONS OF THE CALIFORNIA UNIFORM COMMERCIAL CODE.
15.5. Assignment: Purchaser shall not assign these Terms in whole or in part (or any specific rights hereunder), to any other individual or entity without the prior written consent of Seller, which Seller may provide or withhold in its complete discretion.
15.6. Severability: In the event a court of competent jurisdiction determines that any provision of these Terms is void or unenforceable, such provision shall be deemed reformed so as to be valid or enforceable to the maximum extent possible and the remaining provisions shall remain in full force and effect.
15.7. Attorneys' Fees: In the event of any controversy, claim, or dispute between the Parties arising out of or relating to the Products, these Terms or any related agreement, or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, attorneys', paralegals', and other professionals' fees and costs.
15.8. No Additional Rights: Nothing in these Terms gives Purchaser any right, title, or interest in or to any of Seller's assets or rights other than the Products.
15.9. Headings and Construction: Headings at the beginning of each numbered Section and Subsection of these Terms are solely for the convenience of the Parties and are not a part of these Terms.
15.10. Time: Time is of the essence of these Terms and any related agreement between the Parties.
15.11. Authority: Purchaser represents and warrants that it has the full authority to purchase the Products and to carry out the obligations under these Terms. Purchaser hereby agrees that, for purposes of enforcing these Terms and any related agreement, Seller may rely on the authority of any agent or employee of Purchaser that signs invoices or documents on behalf of Purchaser.
15.12. Broker agreement: If Purchaser is associated to a broker, a separate Industrial Brokerage Agreement must be in place between the Broker and the Seller. All sales and agreements of sales of Products contracted, as stated on the front side of these Terms, are not guaranteed to be paid commission upon invoice of Products.
15.13. Recall: Purchaser has the exclusive right to initiate and direct any recall, market withdrawal, stock recovery, product correction, or advisory safety communication (a “Recall Action”) regarding the Products or any product incorporating the Products. In case a Recall Action is caused solely by defective Products supplied by the Seller, Purchaser may direct Seller to, and upon such direction from Purchaser with reasonable detail and with reasonable supporting documentation, Seller shall, conduct such Recall Action if Seller reasonably believes that the usage of the Product constitutes a health risk, Seller shall also have the right to request Purchaser to initiate a Recall Action that arises from a defect in the Product or other components of the Product solely supplied to the Purchaser by the Seller, by written notice to the Purchaser. The Parties shall immediately, diligently and in good faith work together to determine the cause of the defect, and the manner, text, and timing of any publicity to be given such matters. Seller shall fully cooperate and take all such steps as are reasonably requested to implement the Recall Action in a timely and complete manner. For Products produced and supplied by Seller to Purchaser, Purchaser's exclusive remedy, in the event of such a Recall Action of defective Products is for Seller, at its option, to either replace the defective Products or refund the purchase price for the defective Products and pay the reasonable cost of: (i) preparing, printing and mailing a recall notice to inform distributors and customers of the nature of the Recall Action, (ii) freight to replace the defective Products, and (iii) reasonable labor costs and expenses to perform in- field replacement activities, if any, for defective Products. All press or other enquiries relating to a Recall Action shall be dealt with by the Parties together in good faith and no public statement shall be made absent mutual agreement of both Parties.