Terms & Conditions
GENERAL TERMS AND CONDITIONS
The following General Terms and Conditions apply to all sales made by International Food Products Corporation, hereinafter referred to as “Seller,” and no modifications thereto shall be of any force unless confirmed in writing by Seller. Where the terms hereof vary with any document provided by the Purchaser, the terms set forth herein shall be effective and controlling.
CONTRACT, ORDER ACCEPTANCE: All orders are subject to acceptance by Seller. Any such order shall be in the accordance with these General Terms and Condition. If the Seller starts to perform on an order or contract, this will imply the acceptance of the order or contract by the Purchaser and these General Terms and Conditions shall apply. Also, non-signature of an order or contract by Purchaser does not render null and void the terms of the order or contract. All contracts have end dates which the Seller is not obligated to extend beyond that date. However, if the Seller agrees to extension beyond the original end date, any and all carry charges or related expenses associated with the extension will be the responsibility of the Purchaser.
SHIPPING TERMS; CLAIMS: Ownership and risk of loss will transfer upon signature of Purchaser on the bills of lading. If product is shipped by a freight carrier arranged by Seller, any damages or risk of loss remains with the Seller until Purchaser signs bills of lading. Seller will file all claims for loss or damages associated with carriers Seller arranges. If Purchaser arranges the freight carrier, ownership, risk of loss and damages will transfer upon signature of bill of lading by Purchaser or their agent. Therefore, all shipping claims must be processed by the Purchaser with the shipping carrier. Seller is not responsible for product lost or damaged in transit. Claims for shortages in shipment not chargeable against the carrier will not be considered unless notice is given within five (5) days from date of receipt of the product. The Seller has the discretion to determine shipping location
TERMS: Purchaser agrees to pay for product in accordance with Seller’s standard payment terms as set forth on Seller’s invoice. Terms of payment are subject to revision by Seller at any time. Purchaser is not entitled to set-off amounts due or claimed due from Seller against any amounts Purchaser owes to Seller. If any additional specifications or shipping instructions are required, Purchaser shall furnish them in writing to Seller not less than thirty (30) days before contract date of shipment, from which Seller may decide in its sole discretion to accept such additions. In the absence of such written specifications or shipping instructions, Seller, at its option, may either ship the product to Purchaser or may retain the product in its possession for account of Purchaser, and in either case, may invoice the product to Purchaser and such invoice is due and payable on presentation; or Seller may at its option request Purchaser to take delivery within a specific time and if Purchaser does not there upon take delivery within a specific time, the neglect or refusal of Purchaser shall be a breach of the entire contract.
FREIGHT, TAXES AND OTHER CHARGES: Seller may, at its option, add to the price of the product sold hereunder the price of any customer charge or penalty, any increase in freight rates or any tax or governmental charge or increase paid by Seller on shipments covered by this contract (excluding any franchise or income tax or other tax or charge based on income), when such increase affects the cost of producing, selling or delivering the product or of procuring materials used therein, or becomes payable by Seller because of the production, sale or delivery of the product, such as Sales Tax, Use Tax, Retailer’s Occupational Tax, Gross receipts Tax, or Value Added Tax.
PRICE REVISION: Unless otherwise provided herein, Seller may revise the price, point of delivery, service allowance, if any, and terms of payment hereunder by providing Purchaser at least fifteen (15) days prior written notice of such change or changes.
SPECIAL ORDERS: Non-standard product not in stock with Seller that the Purchaser orders cannot be cancelled, and the non-standard product is not returnable. Shipping variances of +/- 10% may apply.
QUANTITIES: Purchaser will take delivery of the product during the delivery period reflected on the sales confirmation and, unless otherwise indicated on the sale confirmation, in approximately equal monthly installments. The quantity of product shipped to Purchaser by Seller in any month may be limited by Seller, in its sole discretion, to either (i) the average of the monthly quantities purchased by Purchaser for the preceding contract months, or (ii) the maximum estimated quantity covered hereunder divided by the number of months in the current period of this contract. Provided, however, that if different quantities apply to different time periods within this contract, Seller may limit shipments based upon the then current maximum estimated quantity for the applicable time period divided by the number of months in the current period. Any quantity not shipped as a result of such limitation, shall be deducted from the estimated quantity to be purchased by Purchaser hereunder. In no event shall Seller be bound to tender delivery of any quantities for which Purchaser has not given shipping instructions.
LIMITED WARRANTY: subject to the LIMITATION OF LIABILITY section below, Seller warrants that at the time of shipment, the product shall conform to Seller’s standard specifications for such product or to the specifications attached to this Contract, if so attached. SELLER MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCT.
LIMITATION OF LIABILITY: (a)Purchaser shall examine all product for any damage, defect, or shortage within five (5) days of receipt of the product. All claims for any cause whatsoever (whether based in contract, negligence, strict liability, or otherwise) shall be deemed waived unless made in writing and received by Seller within ten (10) days of Purchaser’s receipt of the Goods giving rise to such claim. Provided, however, that as to any claims that cannot be reasonably discovered within such ten (10) day period, Purchaser shall have thirty (30) days from the date of Purchaser’s receipt of the product giving rise to the claim to make such claim in writing to Seller, or ten (10) days from the date Purchaser learns of the facts giving rise to such claim, whichever occurs first. Failure by Purchaser to provide Seller with written notice of any claim within the applicable time period shall be deemed an absolute and unconditional waiver by Purchaser of such claim irrespective of whether the facts giving rise to such claim shall have then been discovered or of whether processing, further manufacture, other use or resale of the product shall have then taken place. In no event shall Seller be liable for transportation charges for the return of the product unless authorized in advance by Seller.
(b)Seller shall not be liable to Purchaser for, and Purchaser assumes all liability for, and agrees to indemnify and hold Seller harmless against all losses, claims, suits, damages, liabilities, costs and expenses (including attorney’s fees and expenses) resulting from or arising out of Purchaser’s distribution, possession, future manufacture, use or resale of the product, whether such product are used alone or in combination with other goods, except to the extent such losses, claims, suits, damages, liabilities, costs and expenses are a direct result of Seller’s negligence or willful misconduct. SELLER’S TOTAL LIABILITY TO BUYER ARISING OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE product GIVING RISE TO SUCH CAUSE OR, AT SELLER’S OPTION, THE REPAIR OR REPLACEMENT OF SUCH PRODUCT. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER.
(c) In no event shall Seller be liable to Purchaser for any technical or other advice provided to Purchaser with respect to processing, further manufacture, use or resale of the product, whether or not provided by Seller at Purchaser’s request.
EXCUSE OF PERFORMANCE: Either party may suspend or cancel deliveries hereunder to the extent events beyond such party’s reasonable control prevents, hinders, limits or makes it impracticable for such party to manufacture, transport, accept or use the goods or material upon which the manufacture of the product is dependent. Such events include, but are not limited to, war, riot, sabotage, acts of terrorism, explosion, accident, flood, fire, or other acts of God, lack of adequate fuel, power, raw materials, labor, containers or transportation facilities, compliance with governmental requests, laws, regulations, orders or actions, breakage or failure of machinery or apparatus, national defense requirements, pandemic, disease, illness or outbreak, or labor trouble, strike lockout or injunction (in no event shall either party be required to settle a labor dispute against its own best judgement). If Seller determines that any such event has occurred, Seller may suspend or cancel deliveries hereunder and/or may allocate its available supply of goods or materials (without being obligated to acquire additional supplies of goods or materials or by locating and contracting with other sellers of goods or new suppliers of raw materials) among itself and its purchasers in Seller’s sole discretion. Allocations, suspensions, or cancellations of deliveries under this section, shall be made without liability, and such allocations, suspensions, or cancellations shall otherwise not affect the remaining terms of this contract.
ECONOMIC HARDSHIP: In addition to the other rights and remedies of Seller set forth herein, if at any time during the term of this contract, Seller experiences any event that causes the continued manufacture or sale of the product to Buyer to be uneconomical, or otherwise creates an economic hardship for Seller, then Seller may, at its sole option, either (i) increase the price of the product to cover such economic hardship; or (ii) terminate this contract upon thirty (30) days prior written notice to Buyer. This Section shall be applied and construed separately from the excuse of performance provisions in this contract.
In the event Purchaser fails to pay for any shipment of product when such payment becomes due, Seller may terminate or suspend future deliveries of product hereunder. In the event Purchaser’s financial worthiness becomes unsatisfactory to Seller, in its sole opinion, Seller may: (a) elect to withhold future shipments of product until Purchaser’s financial credit worthiness has been established to Seller’s satisfaction; (b) require Buyer to make cash payments as to future shipments; (c) require other security for payment before future shipments of product are provided to Purchaser including but not limited to financial statements, a letter of credit by an entity approved by Seller, or a payment guarantee by a parent or affiliate of Purchaser; (d) demand return from Purchaser any product under the contract for which payment has not been made; and/or (e) cancel the Contract upon ten (10) days’ notice. The remedies contained in this Section are cumulative and shall be in addition to any other remedies available to Seller under applicable law.
ASSIGNMENT: This Contract shall be binding upon and inure to the benefit of the respective successors of the parties hereto, but it shall not be transferred or assigned by Purchaser without the prior written consent of the Seller. Seller shall have the right to assign the contract, and any of its rights and obligations there under, including the assignment of receivables, without Purchaser’s consent.
GOVERNING LAW: All matters arising out of or relating to our agreement to which these General Terms and Conditions apply, and the duties and obligations contemplated thereby, shall be governed by and construed in accordance with the laws of the State of Missouri without reference or regard to the conflicts of law rules thereof or of any other state. Each party hereby consents and submits to the exclusive jurisdiction of and agrees that the forum is convenient, and venue is proper in, the Circuit Court of St. Louis County, Missouri and the U. S. District Court, Eastern District of Missouri, Eastern Division, for any actions, suits or proceedings arising out of or related to our agreement.
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