TOFCO AS THE SELLER – TERMS AND CONDITIONS
The following terms and conditions apply to all goods and materials furnished under this Order Acknowledgement except to the extent expressly set forth by Tofco Ag, Inc. (“Seller”) on the face of the Order Acknowledgment. Moreover, these terms and conditions shall apply to any and all transactions between the Seller and Buyer unless modified by a written document duly executed by an authorized agent of Seller.
APPLICATION OF TERM AND CONDITIONS. Acceptance of any part of the goods or services under this Order Acknowledgement (the “Products”) by the buyer (“Buyer”) whether or not in conformity herewith, constitutes an acceptance of this Order Acknowledgement and of all terms and conditions hereof. Any additional or different terms or conditions submitted by Buyer are hereby objected to by Seller and shall not be binding upon Seller unless expressly agreed to in writing by Seller. If Buyer objects to any of these terms and conditions, said objection must be brought to the attention of Seller by Buyer in a written statement separate from any sales order or other printed form of Buyer. Said objections shall be deemed proposals for different terms and conditions and may be accepted only in writing by an authorized representative of Seller. The Buyer acknowledges that he is not relying on any warranties or representations not specified herein.
PRICE; PAYMENT; NO SETOFF. The price stated on the face of this Order Acknowledgement is net of all taxes and duties. Any changes in freight rates, wharfage, handling, terminal charges, surcharges (e.g., bunker, currency, congestion, etc.) or insurance premiums, as well as any new or additional duties or taxes or imposts of whatsoever kind and by whomsoever imposed, whether with retroactive effect or not, subsequent to the date of this Agreement, shall be for the Buyer’s account. Liability for payment for the Products shall arise on confirmation of the order (the “Order”) to which this Order Acknowledgement relates and payment is due at the time agreed upon or in the absence thereof, immediately on receipt of the Seller’s invoice, whether or not ownership in the Products has passed to Buyer. Sums unpaid after the due date shall bear interest from the due date until the day payment is received at the rate of twenty four (24%) percent per annum (or such lower maximum rate as imposed by law). No counterclaim of the Buyer of any nature may be set off against any payment due to the Seller hereunder.
DELIVERY. Seller will use its best efforts to complete delivery on or before any delivery dates requested by the Buyer or estimated by the Seller, but will not be liable for any delay in delivery or non-delivery by third parties. Origin weights will govern, and thus, the weight delivered will be subject to variation from the exact amount ordered, up to five (5%) percent plus or minus. Seller shall notify Buyer that the Products are ready for dispatch or, where applicable, the date on which the Products will be available for delivery, and Buyer shall accept immediate delivery, arrange to collect the Products or arrange suitable storage, as the case may be, failing which the Seller may in its absolute discretion, but without obligation so to do: either (a) effect delivery by whatever means it thinks most appropriate or arrange storage and insurance at the Buyer’s risk and expense, including demurrage charges, pending delivery; or (b) at any time resell or otherwise dispose of the Products without prejudice to any other rights the Seller may have against the Buyer for breach of contract or otherwise. Where the Agreement provides for delivery by installments, each installment shall constitute a separate contract and any failure or defect in any one or more installment delivered shall not entitle Buyer to repudiate the agreement nor to cancel any subsequent installments. Postponement of any shipment at the Buyer’s request, if granted by the Seller, shall require payment by the Buyer to the Seller of all storage and interest charges and all other costs to the Seller occasioned by the said postponement including without limitation the cost of the Seller having purchased any Products for such postponed shipment.
CONTINGENCIES BEYOND SELLER’S CONTROL. The Seller shall not be responsible for delay of shipment, part-shipment, or non-shipment resulting from contingencies beyond Seller’s reasonable control.
RISK OF LOSS; OWNERSHIP OF PRODUCT. Risk of loss to the Products shall pass to the Buyer when the Products are unloaded from the delivery vehicle at the Buyer’s prescribed premises except that if the Buyer collects or arranges collection of the Products from the Seller’s premises, then the risk shall pass to the Buyer when the Products are loaded onto the collection vehicle. Notwithstanding the foregoing, if Buyer requests postponement of delivery, risk shall pass to the Buyer at the time of such request. Ownership of the Products will pass to the Buyer only when payment in full for all Products to be delivered by the Seller to the Buyer under this Agreement, including any interest or other expenses payable in accordance herewith, has been received by the Seller.
TERMINATION; DEFAULT. Seller reserves the right to terminate this order or any part hereof at any time (a) for its convenience, in which case Seller will pay Buyer’s costs properly allocable to the termination and Buyer shall accept delivery of Product delivered by Seller prior to termination; and (b) for cause in the event of any default by Buyer in which case Buyer shall be liable to Seller for any and all damages sustained by reason of such default. Breach of any warranty contained herein, or failure to comply with any other term or condition hereof including, without limitation, failure to pay for Products within the time specified, shall constitute a default. Time is of the essence in connection with payments hereunder.
NO IMPLIED WARRANTIES. NO WARRANTIES ARE GIVEN BY THE SELLER HEREUNDER OTHER THAN THAT WARRANTY, IF ANY, PROVIDED TO THE SELLER BY ITS SUPPLIERS OR AS MAY BE SPECIFICALLY STATED IN THIS AGREEMENT. SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
INSPECTION AND ACCEPTANCE OF PRODUCT. Buyer shall upon delivery at final destination inspect the Products and shall promptly, but in any event within 72 hours of delivery, notify the Seller and the Carrier where relevant, of any apparent damage, defect, or shortage. Buyer shall make the Products available for inspection by the Seller and an independent inspector to verify any claim of damage, defect, or shortage, and shall keep the Products in a protective environment to prevent or retard any possible deterioration. Unless authorized to do so by Seller, Buyer shall not use, process, or resell the Products until such inspection is completed. Buyer’s failure to comply with the foregoing shall constitute an absolute waiver by the Buyer of any and all claims against the Seller with respect to said Products
LIMITATIONS OF SELLER’S LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SELLER SHALL NOT BE LIABLE FOR PENALTIES OF ANY DESCRIPTION.
COMPLIANCE WITH LAWS AND REGULATIONS. Buyer represents and warrants to Seller that it has complied, and will continue during the performance of this order to comply with the applicable provisions of federal, state and local laws and regulations from which liability may accrue to Seller for any violations hereof.
INDEMNIFICATION. Buyer assumes full responsibility for and agrees to indemnify, defend, and save Seller harmless from and against all claims, losses, damages, costs, and expenses, including legal fees, caused by, arising out of, or in any way resulting from Buyer’s activities in connection with this order, including, but not limited to (a) any act or omission of Buyer, its agents, employees, or subcontractors and (b) any breach of any warranty or covenant of Buyer contained in this order or incorporated here by law.
NO WAIVER. Seller’s failure at any time to insist upon strict performance of any provision of this Agreement or to take advantage of any right hereunder, shall not be construed as a waiver of such performance or right.
APPLICABLE LAW; CONSENT TO ARBITRATION. Any controversy or claim arising out of or relating to the subject matter of this agreement shall be governed by and interpreted in accordance with the law of the State of Illinois and, to the extent they are consistent with this agreement, the Feed Trade Rules of the National Grain and Feed Association. Any controversy or claim arising out of or relating to the subject matter of this agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Cook County, Illinois. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages. The arbitrator(s) shall not award incidental or consequential damages in any arbitration initiated under this section. Except for the interest charges provided for herein, in no event shall an award in an arbitration initiated under this clause exceed the purchase price stated on the face of the agreement.
INSURANCE. Buyer agrees to keep in full force for a period of at least two (2) years from the date of this order, General Liability Insurance, Insurance, including Products Liability, Completed Operations Liability, and Contractual Liability covering Buyer’s indemnification obligations under this order, with limits of at least $500,000 each person and $1,000,000 each occurrence for bodily injury, and $500,000 each occurrence for property damage, and Workmen’s Compensation and Employer’s Liability Insurance with limits as required by applicable state laws.
NO THIRD PARTY BENEFICIARIES. Nothing in this order is to be construed as creating a contract for the benefit of third parties.
CONSTRUCTION. Any term or provision of these conditions which is found to be contrary to the governing or otherwise applicable law shall not invalidate any other terms or provision hereof and any term or provision required to be included in a contract of sale of this type by the governing or otherwise applicable law shall be deemed to be incorporated herein.
NOTICE: FURNISH GOODS AND SERVICES AS SPECIFIED ONLY IF YOU AGREE TO THE TERMS AND CONDITIONS STATED ON ALL PAGES OF THIS ORDER ACKNOWLEDGEMENT. IF NOT, THIS ORDER IS REVOKED. YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS STATED ON THIS ORDER ACKNOWLEDGEMENT.
TOFCO AS THE BUYER – TERMS AND CONDITIONS
The following terms and conditions apply to all goods and materials ordered under this Purchase Order except to the extent expressly set forth by Tofco Ag, Inc. (“Buyer”) on the face of the Purchase Order. Moreover, these terms and conditions shall apply to any and all transactions between the Seller and Buyer unless modified by a written document duly executed by an authorized agent of Buyer.
APPLICATION OF TERMS AND CONDITIONS. Shipment of any part of the goods or services ordered under this Purchase Order (the “Products”) by the supplier or vendor (“Seller”) whether or not in conformity herewith, constitutes an acceptance of this Purchase Order and of all terms and conditions hereof. Any additional or different terms or conditions submitted by Seller are hereby objected to by Buyer and shall not be binding upon Buyer unless expressly agreed to in writing by Buyer. If Seller objects to any of these terms and conditions, said objection must be brought to the attention of Buyer by Seller in a written instrument separate from any sales order or printed form of Seller. Said objections shall be deemed proposals for different terms and conditions and may be accepted only in writing by an authorized representative of Buyer. No disclaimer or limitation of warranty is acceptable.
CONFIRMATION BY SELLER. Seller must confirm Buyer’s order within three (3) business days after the date shown hereon or the offer to purchase the Products shall, in Buyer’s sole discretion and upon written notice by Buyer, expire.
COMPLETE PRICE. Prices shown on this Purchase Order are complete and no additional charges of any type such as, but not limited to, shipping, packaging, labeling, taxes, storage, or insurance, shall be added without Buyer’s express written consent.
SHIPMENTS; RISK OF LOSS. All shipments of the Products ordered hereunder are Ex Works our place of business on the face of this Purchase Order, regardless of who pays freight, Seller shall bear the risk of loss until the goods ordered are delivered to Buyer in compliance with terms hereof.
INSPECTION; REJECTION; REVOCATION OF ACCEPTANCE. Buyer shall have a reasonable time after delivery, but not less than thirty (30) days to inspect the Products delivered. Buyer may reject (or revoke acceptance of) any or all of the Products which fail to strictly conform to specifications, or are otherwise defective, and may return the same to Seller without notice. All transportation, handling, railroad demurrage, insurance, and storage expenses in connection with such return shall be the sole responsibility of Seller.
BUYER’S REMEDIES. Each of Buyer’s rights and remedies specified in this Purchase Order shall be cumulative and additional to any other or further remedies provided in law or equity.
TERMINATION; DEFAULT. Buyer reserves the right to terminate this order, or any part hereof, at any time (a) for its sole convenience, in which case Buyer will pay Seller’s costs properly allocable to the termination and accept delivery of Product purchased or produced by Seller prior to termination or, at Buyer’s sole option, pay Seller’s reasonable profit anticipated thereon; and (b) for cause in the event of any default by Seller in which case Seller shall be liable to Buyer for any and all damages sustained by reason of such default. Breach of any warranty contained herein, or failure to comply with any other term or condition hereof including, without limitation, failure to deliver Products within the time specified shall constitute a default. Time is of the essence in connection with this Purchase Order.
LIMITATIONS OF BUYER’S LIABILITY. IN NO EVENT SHALL BUYER BE LIABLE FOR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. BUYER SHALL NOT BE LIABLE FOR PENALTIES OF ANY DESCRIPTION.
COMPLIANCE WITH LAWS AND REGULATIONS. Seller represents and warrants to Buyer that it has complied, and will continue during the performance of this order to comply, with the applicable provisions of federal, state, and local laws and regulations from which liability may accrue to Buyer for any violations thereof.
INDEMNIFICATION. Seller assumes full responsibility for and agrees to indemnify, defend, and save Buyer harmless from and against all claims, losses, damages, costs, and expenses, including legal fees, caused by, arising out of, or in any way resulting from Seller’s activities in connection with this order, including, but not limited to (a) patent, trademark, or copyright infringement; (b) violation of any business or trade secret of any third party; (c) violation of any federal, state, or local law; (d) any defect in the Products; (e) any act or omission of Seller, its agents, employees, or subcontractors; and (f) any breach of any warranty or covenant of Seller contained in this order or incorporated herein by law.
WARRANTIES. Seller warrants that the Products delivered to Buyer under this Purchase Order are in perfect condition, are in strict accordance with the specifications shown or referred to on this Purchase Order, or with any samples furnished by Seller, and are merchantable and fit for the use intended or stated by Buyer to Seller. Seller warrants that as of the date of their delivery, the Products are not adulterated or misbranded within the meaning if the Federal Food, Drug and Cosmetic Act, as amended, or within the meaning of any state food and drug law, and that such Products are not articles which may not, under the provisions of sections 404 and 405 of the Federal Food, Drug and Cosmetic Act, be introduced into interstate commerce.
CONTINGENCIES BEYOND BUYER’S CONTROL. Buyer reserves the right to suspend shipments or deliveries in the event Buyer is unable to accept delivery because of contingencies beyond Buyer’s reasonable control.
NO WAIVER. Buyer’s failure at any time to insist upon strict performance of any provision of this Purchase Order, or to take advantage of any right hereunder, shall not be construed as a waiver of such performance or right.
APPLICABLE LAW; CONSENT TO ARBITRATION. Any controversy or claim arising out of or relating to the subject matter of this agreement shall be governed by and interpreted in accordance with the law of the State of Illinois and, to the extent they are consistent with this agreement, the Feed Trade Rules of the National Grain and Feed Association. Any controversy or claim arising out of or relating to the subject matter of this Purchase Order, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Cook County, Illinois.
INSURANCE. Seller agrees to keep in full force for a period of at least two (2) years from the date of this order, General Liability Insurance, including Products Liability, Completed Operations Liability, and Contractual Liability covering Seller’s indemnification obligations under this order, with limits of at least $500,000 each person and $1,000,000 each occurrence for bodily injury, and $500,000 each occurrence for property damage, and Workmen’s Compensation and Employer’s Liability Insurance with limits as required by applicable state laws.
NO THIRD PARTY BENEFICIARIES. Nothing in this order is to be construed as creating a contract for the benefit of third parties.
CONSTRUCTION. Any term or provision of these conditions which is found to be contrary to the governing or otherwise applicable law shall not invalidate any other terms or provision hereof and any term or provision required to be included in a contract of sale of this type by the governing or otherwise applicable law shall be deemed to be incorporated herein.
NOTICE: FURNISH GOODS AND SERVICES AS SPECIFIED, IF YOU AGREE TO THE TERMS AND CONDITIONS STATED ON ALL PAGES OF THIS ORDER. IF NOT, THIS ORDER IS REVOKED. YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS STATED ON THIS ORDER.