Sales Terms and Condtions 06/15/16 5:47:42 AM
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CONTINUATION OF GRAIN PURCHASE CONTRACT CONFIRMATION TERMS & CONDITIONS
These Terms and Conditions apply to the Grain Purchase Contract set forth on the reverse side of the document and together represent (the “Agreement”). As used herein “Seller” means the seller indicated on the Agreement, “Buyer” means the buyer indicated on the Agreement and “Agreement” means these Terms and Conditions and represent the complete Agreement between the parties. Seller acknowledges that they are a person who deals in grains and has the knowledge or skill particular to the commodity, practice, or goods involved with this transaction and, as such, shall be considered a merchant. Failure to advise the Buyer within 10 days of any discrepancies, objections to, or disagreement with this Agreement shall be construed as an acceptance of this Agreement entered into with Buyer.
Grade & Quality Specifications: The quality of agricultural commodity delivered under this Agreement shall be determined at the time of delivery, with the weights, grades, and other quality criteria determined at Buyer’s destination to govern, unless specified differently in the Grain Purchase Contract. Seller is obligated to deliver the grade and quality specified in this Agreement. Buyer reserves the right to reject individual shipments not complying with the Agreement terms. If the Buyer elects to accept deliveries not meeting the Agreement grade and/or quality, the scale of discounts and premiums at the time of delivery shall apply, unless otherwise specified in writing. Refusal of the Buyer to accept delivery of agricultural commodities not meeting the Agreement terms shall not release Seller from this Agreement. Acceptance of any delivery of commodities by Buyer after breach of the Terms & Conditions of this Agreement by Seller shall not waive any rights or remedies accruing to Buyer as a result of such prior breach.
Merchantable Quality: All commodities delivered under this Agreement shall be of merchantable quality, unadulterated, and unrestricted from movement in interstate commerce within the meaning of the Federal Food, Drug and Cosmetics Act, the U.S. Grain Standards Act, and all other local, state and federal laws. If any commodity applied to this Agreement is adulterated, un-merchantable, or misbranded under and applicable laws, or the commodity or its shipment is in violation of any provision contained in this Agreement, Seller shall be in breach of this Agreement and shall indemnify Buyer from all costs, damages and losses.
Payment to Seller/Right of Offset/Liquidation: Payments due Seller under this Agreement with be paid after delivery and acceptance of the contracted commodity at the final cash price determined according to this Agreement and per Buyer’s ordinary payment terms or as otherwise expressly agreed upon in writing by both parties. In addition to any allowable deductions or offsets (whether arising from this Agreement or from other debts or claims owed to Buyer by Seller), any payments to Seller for commodity delivered under this Agreement shall be subject to prior deductions for applicable discounts or other charges owed to Buyer. Seller warrants and represents that commodity delivered under this Agreement shall be free and clear of all liens and encumbrances and that free and clear title to the agricultural commodity is being conveyed to the Buyer. The Seller expressly agrees that Buyer has the right to issue multiple party checks for payment of the agricultural commodity she the Buyer have any reason to believe that any third party has or may assert a lien or encumbrance against the agricultural commodity delivered under this Agreement. The parties agree that Buyer shall have the right to cause liquidation, termination or acceleration of the Agreement because of (a) the insolvency or financial condition of the Seller, (b) the commencement of a case under Title 11 of the United States Code, (c) the appointment or taking possession by a trustee in a case under Title 11 of the United States Code or by a receiver or custodian before such commencement, (d) any and all other defaults of the terms and conditions specified herein either directly or by reference thereof. Buyer retains the right to require (a) payment or retainage of monies owed on this Agreement, or (b) other adequate assurance of Seller’s performance, if, in Buyer’s sole discretion, Buyer has reason to believe Seller’s assurance to perform on Agreement is inadequate.
Seller’s Delivery Warranty/Location/Freight: Seller’s obligation to deliver the agricultural commodity described in this Agreement during the Delivery Period is absolute and Seller warrants it shall deliver the quality and quantity set forth in this Agreement regardless of any other similar delivery commitments Seller has or may have with Buyer or any other parties. Unless otherwise provided herein, this Agreement shall be considered a delivered contract and title and risk of loss shall remain with Seller until physical delivery to Buyer’s designated delivery location, acceptance and application to the Agreement by Buyer. As such, the Seller is responsible for the safe transportation of grain designated under this Agreement and shall indemnify, defend, and hold harmless Buyer, its officers, directors, employees and agents from and against any and all claims, actions, lawsuits, liabilities, costs, expenses, and/or judgements related to damage to any property whatsoever or harm to any person whomsoever to the extent caused by Seller’s negligence, willful misconduct and/or violation of any local, state or federal law in course of transporting said grain to Buyer’s designated delivery location. The specified delivery location or price basing point set forth in this Agreement between the parties shall be deemed the delivery location, except that Buyer shall have the right, but not the obligation, to designate any reasonable alternative delivery points. If Buyer designates an alternative delivery location, then Buyer’s schedule of transportation costs at the time of delivery shall apply. If Seller requests an alternate delivery location and Buyer consents, then any increased transportation costs are Seller’s sole responsibility.
Delivery/Delivery Period/Default: Failure to deliver the specified quantity and quality of grain during the Delivery Period set forth in the Grain Purchase Contract will result in cancellation charges to the Seller, which charges will be the difference between the Agreement price and the replacement cost at the time of cancellation, plus any cancellation expenses in effect. In the event of default by the Seller of any of its obligations in this Agreement, Seller shall be liable to Buyer for all costs incurred including but not limited to attorney fees in enforcing the contract and/or collecting and damages found owing to Buyer. Seller shall also be liable for the payment of interest at the rate of 18% per annum from the date of default on any damages or sums found owing to Buyer. In no event shall Buyer be liable for any special or consequential damages claimed suffered by Seller. Every effort will be made by Buyer to accept the commodity covered by this Agreement. However, if it is impossible due to conditions beyond the Buyer’s control, Seller’s obligations shall not be cancelled. In addition, the Buyer has the right, without penalty, to delay the time for accepting delivery and making payment under this Agreement if such delay is caused by government regulation or action, labor strikes, riots, insurrection, freight embargoes, transportation delays or other causes not within Buyer’s control. In the event of a delay, Buyer shall accept delivery and make payment under this Agreement as soon as practicable after the cause for delay has ceased. Any extension of the Delivery Period under this Agreement shall be at the Buyer’s sole discretion.
Indemnification – Each party shall indemnify, defend and hold harmless the other, its members, directors, officers, employees, agents and representatives from and against any and all losses, costs, damages, expenses, obligations, injuries, liabilities, insurance deductibles and excesses, claims, proceedings, actions, causes of action, demands deficiencies, lawsuits, judgements or awards, fines, penalties and interest, including reasonable attorneys’ fees, to the extent caused by the indemnifying party’s breach of any term of the Agreement or the indemnifying party’s negligence of willful misconduct.
Force Majeure – A party’s failure to perform, or delay in performing, any obligation hereunder, other than a payment obligation, shall be excused to the extent caused by any event beyond the reasonable control or anticipation of such party, provided such party promptly notifies the other of such cause and takes the appropriate reasonable measures to mitigate the effects of such cause on the performance of the affected obligations.
Miscellaneous – The terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and permitted assigns. Neither party may assign or otherwise transfer its rights, duties or obligations under this Agreement to any other person or entity without the prior written consent of the other party. Notices or other communications required hereunder shall be in writing and shall be considered delivered when delivered by hand, delivered by UPS, FedEx, or DHL, or sent by facsimile or email with delivery confirmed, addressed to such party to the address, fax number or email address set forth in the Agreement. Either party may furnish in writing, to the other party, notice of a change in the address, fax number and/or email address to which notices are to be given. If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, unenforceable or void, either in whole or in part, this Agreement shall continue in full force and effect without said provision. This Agreement constitutes the entire understanding and Agreement between parties with respect to the subject matter hereof, and supersedes all prior written or oral understandings, representations, and agreements. No amendment of modification to this Agreement shall be binding unless in writing and signed by a duly authorized officer of both parties. The failure of either party at any time to require performance of any provision of the Agreement or to exercise any right provided for in the Agreement shall not be deemed a waiver of such provision or right unless made in writing and executed by the party waiving such performance or right. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties, and no party shall make any representation to the contrary. This Agreement and its interpretation shall be governed by the laws of the state of Ohio, except with respect to its choice of law provisions. This contract shall also be governed by the Feed Trade Rules of the National Grain and Feed Association, to the extent such rules do not otherwise conflict with the terms of this Agreement. The Agreement may be executed in counterparts, including counterparts provided by facsimile or e-mail signature, each of which shall be deemed an original but together shall constitute but one and the same instrument. These terms and conditions may be posted at Buyer’s website www.threeriversenergyllc.com and shall along with Grain Purchase Contract terms include in a purchase order or exchanged via email constitute the Agreement with respect to the purchase of grain described above.
Dispute Resolution – Any dispute or controversy between the parties arising out of or relating to this Agreement will be arbitrated in accordance to this Agreement will be arbitrated in accordance with proceedings under the National Grain and Feed Association Arbitration Rules. The arbitration will be the exclusive dispute resolution method under this Agreement. The decision determined buy arbitration will be exclusive dispute resolution method under this Agreement. The decision determined by arbitration shall be final and binding upon both parties but shall not preclude the Buyer’s election of remedies. All costs and expensed, including reasonable attorney’s and expert’s fees of the Buyer and Seller incurred in any dispute under this Agreement which is settled by arbitration will be borne by the party determined by the arbitration to be liable’ provided, however that if the arbitration has allocated liability between the parties, the parties will share the total costs in proportion to their respective amounts of liability so determined. Except where clearly prevented by the issued in dispute, both parties agree to continue to perform their respective obligations under this Agreement until the dispute is resolved.
Assignment to FC Stone – Seller hereby irrevocably acknowledges and agrees that Buyer has assigned all of its right, title and interest in this Contract to FC Stone Merchant Services, LLC (“FC Stone”). Seller agrees that in the event Seller receives a notice from FC Stone that FC Stone has exercised its rights to exercise exclusive control over this Contract that Seller will solely follow the instructions of FC Stone with respect to the performance of this Contract. Seller and Buyer acknowledge and agree that FC Stone is an express third party beneficiary of this Contract entitled to rely upon and enforce this Contract to the same extent as Buyer. In the event of any conflict between this provision and any other term and condition of this Contract this provision shall govern.