Terms and Conditions

TERMS AND CONDITIONS OF PURCHASE

Effective 2013

1.  Acceptance.  This Purchase Order (“Order”) constitutes an offer by Agrarian Marketing Corporation (“Buyer”) to Seller and becomes a binding contract on the terms set forth herein when it is accepted by Seller, either by acknowledgment or by the commencement of performance hereof.  Any acceptance of this Order is limited to acceptance of its express terms and conditions (including these Terms and Conditions of Purchase) and any proposal for additional or different terms is hereby objected to and rejected.  No revisions of this Order shall be valid unless in writing and signed by an authorized representative of Buyer; and no conditions stated by Seller in accepting or acknowledging this Order shall be binding upon Buyer if in conflict with, inconsistent with, or in addition to the terms and conditions contained herein, unless expressly accepted in writing by Buyer.  In the event of a conflict between the terms of this Order and Seller’s acceptance or acknowledgment, the terms of this Order shall govern.

2.  Quantities.  Quantities must equal the exact quantities ordered unless otherwise agreed in writing.  Overshipment will be returned and charged to Seller.

3.  Inspection; Rejection.  All goods ordered will be subject to final inspection, testing and approval at destination by Buyer.  Payment for the goods delivered shall not constitute acceptance thereof.  Buyer reserves the right to reject and hold, at Seller’s risk and expense and subject to Seller’s prompt advice as to disposal, all goods that are contaminated, defective or fail to conform to specifications, samples or descriptions given under the terms of this Order (“Specifications”), or at Buyer’s discretion, to return any such goods freight collect.  Buyer may charge Seller all storage and handling expenses, including, but not limited to, those of unpacking, examining, re-packing, storage and shipping such goods.  No goods returned as contaminated, defective or non-conforming shall be replaced without an order.  If any goods fabricated by Seller from material furnished by Buyer are rejected by Buyer, Seller shall at Buyer’s option, either replace such goods and materials at Seller’s own expense or pay Buyer the replacement cost of the material used therein.

4.  Packaging.  All goods shall be packaged by Seller in suitable containers for protection in shipment and storage, and such goods and/or packages will be properly and adequately marked and labeled.  Seller shall be responsible for damages to goods caused by improper boxing, crating or packing.  Prices set forth in this Order include all charges for Seller’s packaging, crating, storage, and for transportation to the F.O.B. point.

5.  Shipping & Delivery.  All shipments made by Seller to Buyer shall be F.O.B. Buyer’s designated manufacturing facility as may be set forth in the Order and all risk of loss or damage shall remain with Seller until such goods are delivered to the required F.O.B. point.  All goods must be shipped at the most advantageous rates unless otherwise authorized by Buyer in writing.  If Seller must ship by a more expensive way than specified in this Order in order to comply with Buyer’s required delivery date, any increased transportation costs resulting therefrom shall be paid by the Seller unless the necessity for such rerouting or expedited handling has been caused by Buyer. Time is of the essence of this Order. Seller shall not, however, make material commitments or production arrangements in advance of reasonable flow time needed to meet Buyer’s delivery schedule. If delivery of goods is not completed by the time promised, Buyer reserves the right without liability, and in addition to its other rights and remedies, to terminate this Order by notice effective when received by Seller as to goods not yet shipped or services not yet rendered and to purchase substitute goods elsewhere and charge Seller with any loss incurred.  Buyer also reserves its right, at its sole discretion and in addition to its other rights and remedies, to require the specific performance of Seller’s obligations pursuant to this Order.

6.  Price.  The prices specified in this Order are complete, and no additional charges of any type shall be added without Buyer’s prior written consent.  Seller will give the Buyer the benefit of any price decline to the specified shipping date or to the actual date of shipment, whichever is later.

7.  Warranty.  Seller expressly warrants that all goods or services furnished by Seller pursuant to this Order shall: (a) conform to all applicable Specifications; (b) be new and free from defects in design, material, workmanship, warning and instruction; (c) conform to any statements made on the containers, labels or advertisements for such goods or services, and (d) satisfy all relevant governmental and industry standards.  Seller further warrants that all goods and services furnished hereunder will be merchantable and will be safe and appropriate for the purpose for which goods or services of that kind are normally used.  If Seller knows or has reason to know the particular purpose for which Buyer intends to use the goods or services, then Seller also warrants that such goods or services will be fit for such particular purpose.  Inspection, tests and acceptance or use of the goods or services furnished hereunder shall not affect the Seller’s obligations under this warranty, and such warranty shall survive inspection, tests, acceptance and use.  Seller’s warranty shall run to Buyer, and Buyer’s successors, assigns, customers, and to all users of the products sold by Buyer.  Seller further warrants that all goods furnished under this Order are free and clear of all liens, security interests, and encumbrances whatsoever, and that at the time of sale, Seller had good and marketable title to the same.  

8.  Remedies.  In addition to Buyer’s other remedies under these terms and conditions, Seller agrees to promptly correct or replace contaminated, defective and/or non-conforming goods or services not conforming to the foregoing warranty, without expense to Buyer, when notified of such non-conformity by Buyer, provided Buyer elects to provide Seller with the opportunity to do so.  Such election, however, shall not in any manner waive, limit, or modify any other rights or remedies which Buyer, or Buyer’s successors, assigns, customers, and/or product users may have against Seller at law or equity.  If Seller fails to correct or replace the contaminated, defective or non-conforming goods or services promptly, Buyer, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the costs incurred by Buyer in doing so, as well as for all other consequential, incidental, or special damages incurred.  Seller recognizes that Buyer’s production requirements may require immediate repairs or reworking of defective goods or the purchase of substitute goods without notice to Seller.  In such event, Seller shall reimburse Buyer for the costs, delays and other damages that Buyer has incurred.

9.  Indemnification.  Seller shall defend (at Seller’s expense), indemnify and hold harmless Buyer and Buyer’s successors, assigns, agents and customers from and against all damages, claims, liabilities, and expenses (including, but not limited to, reasonable attorney’s fees) arising out of or resulting in any way, directly or indirectly, from any contamination, defect or non-conformity in the goods or services purchased hereunder, including, but not limited to, defects in design, material, workmanship or from failure of Seller to comply with safety inspection, labeling, instructional, or warning requirements imposed by law, governmental agencies, or industry standards, or from any act or omission of Seller, its agents, employees, or subcontractors.  This defense, indemnification, and hold harmless obligation shall be in addition to the warranty obligations of Seller.

10.  Patent & Lien Protection.  Seller represents and warrants that the sale and/or use of any or all goods delivered hereunder will not infringe any United States or foreign patents, trademarks, copyrights or other intellectual property rights of any party. Seller further agrees to indemnify, defend and hold harmless Buyer against any and all claims of patent, trademark or copyright infringement or of unfair competition arising out of the sale, cataloging, marketing, packaging, or advertising of goods sold by Seller, as well as to indemnify, defend and hold harmless Buyer against all liens, security interests, and/or encumbrances whatsoever asserted against such goods.

11.  Insurance.  In the event that Seller is required to enter premises owned, leased, occupied by or under the control of Buyer during delivery or installation of goods or during the performance of services otherwise required to be furnished by Seller, Seller agrees that Seller will defend, indemnify and hold harmless Buyer, its owners, officers, employees, agents and customers from any loss, cost, damage, expense or liability (including, but not limited to, reasonable attorney’s fees) by reason of property damage or personal injury arising out of or as a result of the performance of such services and/or delivery and/or installation, whether arising out of the actions of Seller or of its employees, subcontractors or sub-subcontractors or otherwise.  Seller must maintain comprehensive general liability insurance, including, but not limited to, public liability and property damage, contractual liability and products liability insurance, in reasonable amounts covering the obligations set forth in this Order, and will maintain proper workmen’s compensation insurance covering all employees engaged in the performance of such services and/or delivery and/or installation.  At Buyer’s request, Seller shall supply certificates of insurance evidencing such coverage.

12.  Assignment/Subcontracting.  Seller may not assign this Order, or subcontract any part of this Order, without the prior written consent of Buyer.

13.  Termination for Convenience.   Buyer reserves the right to terminate this Order, or any part hereof, for its sole convenience upon written notice to Seller.  Upon receipt of such notice, Seller shall, unless otherwise specified in such notice, immediately stop all work hereunder and give immediate (within twenty-four hours) written notice to and cause all of its suppliers or subcontractors to cease all related work.  Seller shall be paid the price specified herein for goods completed, shipped and acceptable to Buyer, or for services provided and acceptable to Buyer, prior to Seller’s receipt of such notice, plus reasonable direct costs actually resulting from such termination.  Seller shall not be paid for any work done after receipt of such notice nor for any costs incurred by Seller’s suppliers or subcontractors after their receipt of the termination notice or for work which Seller could reasonably have avoided.  Seller shall not unreasonably anticipate the requirements of this Order.  Within the time limit established by Buyer at the time of such notification, Seller will submit all its claims resulting from such termination.  Buyer will have the right to check such claims, from time to time, by inspecting and auditing the records, facilities, work or materials of Seller relating to this Order.

14.  Termination for Cause.  Buyer also may terminate this Order or any part hereof for cause in the event of any default by the Seller or if the Seller fails to comply with any of the terms and conditions of this Order.  Late deliveries, deliveries of goods that are defective, contaminated or which do not conform to this Order and failure to provide Buyer, upon request, with adequate assurances of future performance shall also be among the causes which allow Buyer to terminate this Order for cause.  In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the default that gave rise to the termination.  If it should be determined that Buyer has improperly terminated this contract for cause, such termination shall be deemed a termination for convenience.  Buyer’s right to terminate shall be in addition to any other rights or remedies which Buyer may have in law or equity.

15.  Cancellation for Insolvency.  In the event of the institution of any proceedings against Seller, voluntary or involuntary, in bankruptcy or insolvency, or under any provisions of the United States Bankruptcy Code, or for the appointment of a receiver or trustee or an assignee for the benefit of creditors of Seller, Buyer shall be entitled to cancel this contract forthwith, without liability or loss of anticipated profits.

16.  Confidentiality.  Seller shall consider all Specifications, descriptions of or formulas for goods or services, prices and all other documents prepared by Seller or Buyer for or in connection with this Order to be confidential and the property of Buyer and shall hold and use the same for the sole benefit of Buyer.  No information concerning this Order shall be disclosed by Seller to, or used for the benefit of, any other party.  No goods first manufactured by Seller for Buyer pursuant to the Order shall be sold by Seller to any other party without written permission in advance from Buyer.  The provisions of this paragraph shall survive the termination of this Order.  In the event of any inconsistency between the provisions of this paragraph and the provisions of any confidentiality agreement between Buyer and Seller, the more restrictive provisions shall control.

17.  Payment/Setoff.  Payment for goods or services ordered hereunder shall not constitute an acceptance thereof, but all goods and services shall be received subject to Buyer’s inspection and rejection.  Payment shall be made as stated in this Order, less customary cash discount, unless otherwise specifically arranged for and stated on this Order; or in the event that any good or service has not been received, the Buyer reserves the right to withhold payment until such good or service has been received and checked and does not waive the right to deduct the cash discount.  Buyer’s count will be accepted as final on all shipments not accompanied by packing lists.  Payment of this Order will be subject to deduction of any valid claim against Seller arising from this or any other transaction.  All claims for money due or to become due from Buyer shall be subject to deduction or setoff by Buyer by reason of any counterclaim arising out of this or any other transaction with Seller.  Such setoff shall be in addition to any other rights or remedies available to Buyer at law or equity.

18.  Force Majeure.  Buyer may delay delivery or acceptance occasioned by causes beyond its control.  Seller shall hold such goods at the direction of the Buyer and shall deliver them when the cause affecting the delay has been removed.  Buyer shall be responsible only for Seller’s direct additional costs in holding the goods or delaying performance of this Agreement at Buyer’s request.  Seller shall also be excused if delivery is delayed by the occurrence of unforeseen and unforeseeable events that are beyond Seller’s control, provided Seller notifies Buyer of such events as soon as they occur, and gives Buyer its best estimate of revised delivery dates.  However, Buyer reserves the right to reject Seller’s revised delivery dates and to cancel this Order without any liability.  If Seller’s production is only partially restricted or delayed, it shall use its best efforts to accommodate the requirements of Buyer, including giving this Order preference and priority over those of other customers that were placed after this Order.

19.  Changes.  Buyer shall have the right at any time to make changes in specifications, materials, packaging, time and place of delivery, and method of transportation.  If any such changes cause an increase or decrease in the cost, or the time required for performance, an equitable adjustment shall be made and this Order shall be modified in writing accordingly.  Seller agrees to accept such changes subject to this paragraph.

20.  Waiver.  No waiver of a breach of any provision of this order shall constitute a waiver of any other breach or waiver of such provision.  Buyer’s delay or failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Buyer’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.

21.  Entire Agreement/Severability.  In accepting this Order or making any deliveries hereunder, Seller agrees to all of the terms and conditions stated on this Order.  This Order and any written documents that may be attached hereto and/or incorpo­rated by specific reference constitute the entire agreement between the parties and supersede all previous communicates between them, either oral or written.  No stipulations, representations or agreements by Buyer or any of its owners, officers, agents or employees shall be binding upon the Buyer unless reduced to writing, and attached to and incorporated in this Order by reference as above provided, and no local, general or trade custom shall alter or vary the terms hereof.  If any provision hereof is determined invalid under applicable law, such invalidity shall be limited to such provision without invali­dating the remainder of this Order or other terms or conditions thereof.

22.  Limitation of Buyer’s Liability.  Any legal action against Buyer based on Buyer’s alleged breach of its obligations hereunder must be commenced within one (1) year after the cause of action has accrued.  In no event shall Buyer be liable for anticipated profits or for any special, incidental or consequential damages relating to such breach.  Buyer’s liability for any such breach shall in no case exceed the price allocable to the goods or services or unit thereof which gives rise to the claim, less material, labor and production cost savings of Seller.  Buyer shall not be liable for penalties of any description.

23.  Choice of Law; Forum.  Any questions, disputes or litigation arising either directly or indirectly from this Order, including, but not limited to, disputes concerning the validity, interpretation, enforcement or effect of this Order or interpretation concerning the rights and obligations of the parties hereunder, shall be governed (whether in law or in equity) by the laws of the State of Indiana, without regard to principles of conflicts of law, and the federal courts in the Northern District of Indiana or the state courts in Elkhart County, Indiana shall be the exclusive jurisdiction within which to resolve all such questions, disputes, controversies, or litigation.


ADDITIONAL TERMS AND CONDITIONS OF INVOICE

Effective 2013

NOTICE TO BUYER -- TERMS AND CONDITIONS OF SALE. This transaction is subject to the Terms and Conditions of Sale Including Limitations of Warranty (hereafter “Terms and Conditions”) stated below.  Acceptance by Agrarian Marketing Corporation (“AMC”) of Buyer’s order is expressly conditioned upon, and all products and services furnished by AMC are subject to, these Terms and Conditions.  Buyer's exception to these Terms and Conditions must be in writing, received by AMC within five (5) days of Buyer's receipt of this Invoice.  Otherwise, Buyer shall be considered to have consented to these Terms and Conditions.  Any provisions of Buyer's order or other communication in conflict with these Terms and Conditions are expressly rejected.  Stenographic and clerical errors are subject to correction.  No additions or modifications shall be valid unless confirmed in writing by AMC.  AMC IS NOT BOUND TO FURNISH ITS PRODUCTS OR SERVICES EXCEPT IN ACCORDANCE WITH THE TERMS OF THIS INVOICE.

PRICE/DELIVERY/DELAY.  Prices for products shall be those in effect on the date of this Invoice unless otherwise agreed to in writing by AMC.   Prices are good only for quantities indicated and do not include any Federal, State or local taxes or any duty, including import and/or export duties.  Unless otherwise provided on the applicable AMC price list or unless otherwise agreed by AMC in writing: (a) price and delivery terms shall be F.O.B. shipping point; (b) AMC will select the route and manner of shipment, reserve the right to make delivery in installments when necessary, to invoice each installment separately and to expect payment for each installment within AMC's selling terms; and (c)  all risks of loss or damage shall pass to Buyer at the place and time such products are placed into the possession of the carrier or shipper, in accordance with the previously referenced F.O.B. shipping point term. If Buyer fails to accept delivery according to the agreed upon delivery schedule, AMC may cancel the then remaining balance of the order.  Such cancellation, if elected by AMC, shall be in addition to, and not in lieu of, any other rights or remedies which AMC may have at law or equity. If shipment or any other act or condition affecting payment for the products or any part of them shall be delayed on account of Buyer, payment shall be due as if shipment had been made.  A reasonable storage charge may be made and such storage shall be at the risk of Buyer.  AMC shall not be liable for any direct, indirect, consequential, special, or incidental losses or damages resulting from its delay in shipment.

PAYMENT/CREDIT/SECURITY.  Payment shall be due within ten (10) days of  the date of this Invoice unless otherwise provided by AMC in this Invoice.  AMC shall be entitled to charge interest for payments not made in accordance with the stated or agreed upon terms of payment at lesser of 18% per year or the highest rate permitted by law on the date(s) such payment(s) were due.  Whenever AMC in good faith deems itself insecure, it may, without prejudice or waiving any other rights or remedies it may have at law or equity, modify or revoke its extension of credit to Buyer and take any other steps permitted by law and necessary or desirable to secure AMC with respect to Buyer's payment of products and services furnished or to be furnished.  Buyer will pay AMC's actual costs of collection, including but not limited to court costs, additional litigation expenses, and reasonable attorney's fees, incurred for collection of any delinquency.  Buyer shall have no right of offset against amounts owed to AMC.

ACCEPTANCE.  Products furnished or services performed by AMC in all events will be deemed to have been accepted within fifteen (15) days after receipt of Buyer, unless rightfully rejected within such period by written notice to AMC, by Certified Mail, Return Receipt requested, setting forth all of the defects upon which the rejection is claimed.  Claims for factory damage or shortages shall not be considered unless made in writing within ten (10) days after receipt of the products or services and accompanied by reference to our bill of lading and invoice numbers.  Buyer's claims for damage or shortage in transit must be filed by Buyer against carrier.  Defective product must be returned for inspection and disposition.

LIMITED WARRANTY/REMEDY.  AMC warrants that the products will be of the kind and quantity specified on the face of this Invoice and shall be free from defects in title as of the date of shipment.  This warranty is extended to Buyer for a period of twelve (12) months from AMC’s invoice date.   EXCEPT FOR WARRANTIES, IF ANY, MADE BY AMC ON THE LABEL OF A PRODUCT, AMC MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES, AND SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  In order for AMC to be liable to Buyer for the breach of any warranty made by AMC on any Product label (such breach rendering that Product a “Defective Product”), Buyer must give AMC written notice of such breach within ten (10) days after its discovery of such breach and, at AMC’s option, return the Defective Product to AMC. Any such warranty shall not extend to any defect or problem caused by the negligence or acts of Buyer or others, failure to properly use, store or maintain the product or unreasonable use.  Notwithstanding any other provision of this Invoice to the contrary, AMC’s liability for the breach of any warranty is expressly limited to, at AMC’s option, either (i) the return of the purchase price paid by Buyer for such product, or (ii) replacement of such product.  IN NO EVENT SHALL AMC BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF TIME, INCONVENIENCE, LOST PROFITS OR ECONOMIC LOSS, EVEN IF AMC KNEW ABOUT THE POSSIBILITY OF SUCH DAMAGES.

INDEMNIFICATION. Buyer shall defend, indemnify and hold AMC harmless from and against any and all claims, liabilities, loss, costs, damage or expense (including reasonable attorneys’ fees) of any kind or nature whatsoever relating to the products and services provided by AMC hereunder, including without limitation, claims made for property damage or personal injury (including death), whether such claims are premised on contract or on tort (including, without limitation, strict liability) and shall include, but not be limited to any such claims arising from failure to follow instruction manuals, labels and/or product warnings, as well as other improper use of the products.  This indemnity provision shall not apply where such damage or injury is attributable solely to the negligence of AMC, its employees or agents.  Buyer also agrees that it will not, and it will not attempt to, analyze, disassemble or reverse engineer any of the products or attempt to determine the ingredients, components or derivation of any of the products.

FORCE MAJEURE.  AMC will not be liable for any delay in the performance of its obligations under this Invoice or with respect to products related hereto or for any damages suffered by the Buyer by reason of such delay, when such delay is directly or indirectly caused by or in any manner arises from:  fires; floods; accidents; acts of God; governmental interference; labor difficulties; shortages of labor, fuel or materials; transportation delays; any existing or future laws, acts, regulations, orders or rules of the Federal or any State government affecting the conduct of AMC's business; or any other cause or causes (whether or not similar in nature to any of those specified above) beyond AMC's control.  AMC shall not be liable for express mailing, telephone, telecopy, telegraph, traveling expenses or similar charges occasioned by non-delivery of products covered by this provision.

LIMITATION OF LITIGATION/ATTORNEY FEES.  Any controversy or claim of Buyer arising out of or related to this Invoice must have accrued within the applicable warranty period, and then be commenced within one (1) year after the cause of action has accrued.  AMC shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys' fees and other litigations expenses, from the Buyer relating to any lawsuit arising from the transactions relating to this Invoice in which AMC prevails.

MISCELLANEOUS.  Except as otherwise agreed in writing, this Invoice constitutes the entire agreement between AMC and Buyer, superseding all prior quotations, orders and understandings, oral or written.  All such previous communications are hereby abrogated and withdrawn, and no stipulations, representations or agreements by AMC, or its officers, agents, or employees shall be binding upon AMC unless reduced to writing and attached to and incorporated by reference herein, and no local, general, or trade custom shall alter or vary the terms hereof.  Any questions concerning the validity, interpretation or effect of this Agreement, or interpretations and enforcement of the rights and obligations of the parties hereunder, shall be governed by the laws of the State of Indiana, and the State Courts of Indiana shall be the exclusive jurisdiction within which to resolve all such questions, disputes, controversies, or litigation.  The failure of AMC, upon knowledge of any default or violation by Buyer of any of these Terms and Conditions, to enforce its rights or remedies shall not be construed as a waiver of such default or violation, or of any provision hereof, or of any of its rights or remedies.  If any provision hereof is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of the other Terms and Conditions hereof.