Terms and Conditions 02/24/15 10:24:22 AM
1.ACCEPTANCE. These standard selling terms and conditions, together with the sales confirmation on the reverse side hereof (the “Confirmation”), constitute the entire agreement of sale between Buyer and Seller for the commodities and quantities identified on the Confirmation (this “Contract”). The Confirmation is accepted by Buyer promptly mailing or sending to Seller its written acceptance within twenty-four (24) hours of the date on the Confirmation or by commencement of performance by Buyer. Acceptance is limited to these Standard Selling Terms & Conditions together with the terms of the Confirmation. No waiver or modification or addition to such terms shall be valid unless in writing and signed by both parties.
2.WARRANTIES; LIMITATION OF REMEDIES. Each party represents, warrants and covenants that it has the requisite corporate or organizational authority to enter into this Contract and that by so doing such party is not in breach or conflict with any obligations to which it is bound. The quality of the commodity delivered shall be determined at the place and time of delivery. Seller’s weights and grades shall govern. All commodities delivered by Seller to Buyer hereunder shall be of merchantable quality suitable for livestock feed, shall not be adulterated or misbranded within the meaning of the federal Food, Drug and Cosmetic Act, and shall comply or conform with the additional specifications or quality standards, if any, expressly set forth on the Confirmation. Seller warrants and represents that the commodities delivered under this Contract shall be free and clear of all liens and encumbrances and that good and clear title to the commodities are being conveyed to Buyer. SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Buyer’s exclusive remedies for any negligence, breach of warranty, breach of contract, or other liability of the Seller arising out of or in any way connected with the sale of the commodities under this Contract shall be (a) the replacement (or at Seller’s option the return for credit) of defective commodities delivered to Buyer, or (b) if Seller has failed to deliver commodities to Buyer in accordance with the terms of this Contract, Buyer’s good faith purchase without unreasonable delay of substitute commodities. In the event Buyer exercises its right to cover under subpart (b) of the preceding sentence, Buyer may recover from Seller as damages the difference, if any, between the cost of cover and the Contract price for such commodities.
3.FORCE MAJEURE. Neither party shall be liable for defaults or delays due to acts of God or the public enemy, acts or demands of any government or any governmental agency, strikes, lockouts, fires, floods, accidents, or other unforeseeable causes beyond its control and not due to its fault or negligence. Each party shall notify the other in writing of the cause of such delay within five (5) days after the beginning thereof.
4.LIMITATION OF DAMAGES. Notwithstanding any provision in this Contract to the contrary, THE PARTIES AGREE THAT NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES, WHETHER ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNIFICATION, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO DEATH OR DESTRUCTION OF PROPERTY OR LOSSES OF USE, PROFITS, BUSINESS OR REPUTATION.
5.LIMITATION OF LIABILITY. Notwithstanding any provision in this Contract to the contrary, Seller’s liability to Buyer under this Contract or otherwise shall not exceed the purchase price in this contract for the commoditIES giving rise to such liability. The limitation of liability AND limitation of remedies provisions in this Contract, including the foregoing limitation of liability, shall apply to all claims of Buyer against Seller, whether arising in contract, warranty, tort (including negligence), strict liability, indemnification, proportionate fault, or otherwise.
6.DEFAULT & CANCELLATION. Each party reserves the right, by written notice of default to the other party, to cancel the order shown on the reverse side without liability to the party giving notice, in the event of the happening of any of the following: i) insolvency of the other party, ii) the filing of a voluntary petition in bankruptcy by the other party, iii) the filing of an involuntary petition to have the other party declared bankrupt, iv) the appointment of a receiver or trustee for the other party, or v) the execution by the other party of an assignment for the benefit of creditors.
7.ARBITRATION, CONTROLLING LAWS AND POLICIES. (a) The parties to this Contract agree that the sole remedy for resolution of any and all disagreements or disputes arising under the Contract shall be through arbitration proceedings before the National Grain and Feed Association (NGFA) under NGFA Arbitration Rules. If Buyer is not a member of the NGFA, Seller shall designate a similar arbitration service, but the NGFA rules shall still apply. The decisions and award determined through the arbitration shall be final and binding upon Buyer and Seller. Buyer consents to exclusive jurisdiction in the Iowa District Court of Polk County, or the appropriate Federal District Court in Iowa, to enforce any arbitration award. All commodity transactions shall be governed by, and construed in accordance with, the terms and conditions of this Contract, the laws of the State of Iowa, and the NGFA Feed Trade Rules to the extent that Iowa law or the terms and conditions of this Contract have not altered the terms of such Rules or are silent as to a matter dealt with by a pertinent Rule. Buyer consents and agrees that any claim, demand, arbitration or suit of any kind against Seller must be brought within one (1) year of the time in which such cause of action accrued.
8.ASSIGNMENT. Neither this Contract nor any rights or obligations herein may be assigned by Buyer nor may Buyer delegate the performance of any of its duties hereunder without, in either case, Seller’s prior written consent which shall not be unreasonably withheld.
9.NOTICES. Unless otherwise required by either party, all notices required or permitted to be made under this Contract shall be made in writing and shall be sent to the name and address indicated in the Confirmation.
10.ATTORNEYS FEES. If either party brings an arbitration or other proceeding to enforce this Contract, or because of an alleged dispute, breach, default or misrepresentation relating to this Contract, the successful or prevailing party in such dispute shall be entitled to recover reasonable attorney’s fees and other costs incurred in such action or proceeding. Such relief shall be in a