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Terms of Use


Last Updated: April 1, 2020

Welcome to olamspices.com. Olam provides website features and other services to you when you visit or shop at Olam Sites, use Olam Products for sale or services, or use software provided by Olam in connection with any of the foregoing. These Terms of Use govern your access to and use of all Olam Sites and purchase of Products. Olam reserves the right to make changes to its sites (including Olam Sites), policies, other service terms, and these Terms of Use at any time. If any of these conditions is deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.

DEFINITIONS

Olam: includes Olam West Coast, Inc., and any of its US subsidiaries or other US affiliates.

Product(s): Goods sold through Olam Sites

Materials: Olam logos and content and any communication on Olam Sites

Olam Sites: olamspices.com and its family of related websites under the same domain

USE   

You agree and promise that:

(i) You are at least 18 years of age;

(ii) The information that you provide on Olam Sites is accurate and complete;

[security]

(iii) You are solely responsible for the confidentiality and security of any information that you provide on Olam Sites (including, for example, usernames and passwords, etc.), and Olam is not responsible for any information lost or shared by you;

(v) Your use of Olam Sites will not involve downloading information or introducing bugs, viruses, spyware, malware or similar software, computer code or files to Olam Sites that is potentially harmful or invasive or intended to damage or hijack the operation of, to monitor the use of any hardware, software or equipment;

(vi) You will not use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather any information or reproduce or circumvent the navigational structure or presentation of Olam Sites without Olam Sites’ express prior written consent.

[intellectual property]

(vii) You will not reverse engineer, decompile or disassemble any portion of Olam Sites or the Products except where such restriction is expressly prohibited by applicable laws;

(viii) You will not violate Olam’s intellectual property rights, including for example using Olam Sites or Olam’s logos or brand to send any unsolicited or unauthorized information such as advertisements, promotional materials, email or postal mail or other form of solicitation without Olam’s consent;

(ix) You will not reproduce, modify, translate, create any other derivative works of, sell, lease, loan, distribute or otherwise exploit any portion of Olam Sites except as expressly authorized herein without Olam’s prior written consent;

[financial transactions]

(x) You are solely and exclusively responsible for the payment obligations that arise out of your use of the Products on Olam Sites, and that Olam is not a party to any agreement between you and any payment method provider (for example, credit/debit card companies, banks, etc.);

[laws]

(xi) You will not violate any applicable law, rule, or regulation or these Terms of Use.

PRIVACY

You acknowledge and understand that your use of Olam Sites is governed by Olam’s Privacy Policy, which can be reviewed here. You acknowledge that Olam has the exclusive right to monitor, evaluate, and analyze Olam Sites, and Products and Materials on Olam Sites, and any use of and access to Olam Sites;  Olam also has the right to modify or prohibit access to Olam Sites or any Products or Materials made available through Olam Sites, for any reason or for no reason, including due to violation of these Terms of Use. 

MERCHANDISE

Olam Sites may make available listings, descriptions and images of Products. Olam makes no representations as to the completeness, accuracy, reliability, validity or timeliness of such listings, descriptions, or images (including any features, specifications and prices contained on Olam Sites). Such information and the availability of any Product are subject to change at any time without notice. Furthermore, Olam makes no representations as to the accurate display of the attributes of the Products, including applicable colors, certain weights, measures or other descriptive features.

EXTERNAL SUPPLIERS

Olam Sites may operate a third-party marketplace, and some of the Products available on Olam Sites may be offered directly by third-party suppliers (“External Supplier(s)”) along with Products directly supplied by Olam. By purchasing a Product from an External Supplier, you acknowledge that all such orders will be fulfilled by the External Supplier and not Olam, including without limitation all processing, shipping, returns, warranties, recalls and customer service.

OLAM MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO SUCH PRODUCTS. REJECTED PRODUCTS UNDER THIS SECTION MUST BE RETURNED DIRECTLY TO THE EXTERNAL SUPPLIER AND CANNOT BE RETURNED TO OLAM.

ORDER

You represent and warrant that you have the right to use any credit card or other means of payment that you provide to Olam, and that all information that you provide related to means of payment is accurate and complete. By providing payment card information to Olam, you authorize Olam to store and use the card as a payment method for purchases made through your Olam Sites account. Olam reserves the right to cancel your order if you fail to comply with the terms of this section or for any other reason, including limitations on quantities available for purchase, inaccuracies, or errors in pricing information, problems identified by our credit card and fraud avoidance department. Furthermore, Olam reserves the right, at Olam’s sole discretion, to limit or prohibit sales of Products to any existing or prospective customer(s).

PRICING & PAYMENT

Olam cannot confirm the price of the Product until you order. By using Olam Sites, you acknowledge and understand that pricing or availability errors may occur on Olam Sites, and that your receipt of an order confirmation does not constitute Olam’s acceptance of an order or Olam’s confirmation of an offer to sell Product. Olam reserves the right to cancel any orders containing pricing or availability errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from Olam.

You are solely and exclusively responsible for the payment obligations that arise out of your purchase and/or use of the Products on Olam Sites, and that Olam is not a party to any agreement between you and any external payment method provider (for example, credit/debit card companies, banks, etc.). Olam reserves the right to charge you an interest rate of up to fifteen percent (15%) for any unpaid invoices.

Where payment by letter of credit is stipulated, payment must be made by confirmed irrevocable letter of credit established for the credit of the bank that we nominate, and be irrevocable, confirmed and without recourse and otherwise in the form satisfactory to us.

If Olam requires you to post security for payment, you shall post such security before the Products are loaded for shipment. In the event of your failure to comply with these Terms of Use, Olam has the right, in addition to any other rights or remedies provided by contract or law, to declare the entire balance of your account immediately due and payable or to foreclose any security interest that Olam may have in the Products.

SHIPPING AND DELIVERY

This section does not apply to orders of Products offered by External Suppliers which shall be shipped, delivered and otherwise fulfilled in accordance with the policies of such External Suppliers.

When supplied by Olam, Products may be picked up by you from one of Olam’s facilities, or may be shipped to an address designated by you, so long as such address is accurate and complete. If Olam is expected to deliver, Olam will use commercially reasonable efforts to deliver you the Products on a timely basis, but you agree that time is not of the essence. You will be responsible for any shipment or delivery fees. All purchases of physical items from Olam Sites are made pursuant to a shipment contract with a carrier. This means that the risk of loss and title for such items shall pass to you upon Olam’s delivery to the carrier.

You have fifteen (15) days from the date of delivery to inspect and reasonably reject the Products, after which, all sales will be deemed accepted and final. If you reject the Products in accordance with the foregoing, you will give Olam a reasonable opportunity to replace the rejected Products prior to requesting a refund. Rejected Products will be disposed of or returned at Olam’s sole discretion.

ANTI-BRIBERY, SANCTIONS AND EXPORT POLICY

By using Olam Sites, you agree, represent, and warrant that you are familiar with anti-bribery and corruption legislation (“Anti-Bribery Laws”) and that you are aware that Anti-Bribery Laws prohibit, under the threat of severe penalty, the payment or giving of anything of value, either directly or indirectly through other parties, to an official of a foreign government (including officers and managers of government-owned or controlled companies) for the purpose of influencing them in their official capacity.  You agree not to use any of the funds that you pay or goods that you receive for a purpose that violates the Anti-Bribery Laws.

You agree, represent and warrant that you will not use any Products received through Olam Sites if you are the subject of US sanctions or of sanctions consistent with US law imposed by the governments of the country where you are using Olam Sites. You must comply with all US or other export and re-export restrictions that may apply to the goods.

You acknowledge that goods licensed or sold on Olam Sites are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received, and you agree to comply with all applicable laws.

INTELLECTUAL PROPERTY

Olam Sites and, Materials, all copyrights, trademarks, trade dress, and other intellectual property rights there (collectively, the “IP”) are owned/controlled by or licensed to Olam, and are protected by U.S. and international intellectual property laws.  Subject to your compliance with these Terms of Use and Olam’s sole discretion, you may access, view, download, and print the Materials for your personal, non-commercial use only; provided, however, that you (1) retain all of Olam’s copyright, trademark, or other proprietary designations contained on all Materials; (2) do not modify or alter the Materials in any way; and (3) do not provide or make available the Materials to any third party in a commercial manner. No license, right, title, or interest in the Olam Sites or any Materials is transferred to you as a result of your access or use of the Olam Sites or the Materials.  Except as otherwise permitted above, you may not reproduce, publish, transmit, modify, create derivative works from, sell, or participate in any sale of or exploit in any way, in whole or in part, any of the Materials or Olam Sites.  Olam Sites and Materials may be used only as a personal shopping resource.  Any other use, including the reproduction, republication, transmission, modification, or performance, of Olam Sites and the Materials is strictly prohibited.  The compilation (meaning the collection, arrangement, and assembly) of Olam Sites and Materials is the exclusive property of Olam and is also protected by U.S. and international copyright laws.

Olam’s names and logos, and all other graphics, logos, page headers, button icons, scripts, and service names included in or made available through any of Olam Sites are trademarks or trade dress of Olam in the U.S. and other countries.

If you fail to comply with any of the terms or conditions of these Terms of Use, you must immediately cease using the Olam Sites.

WARRANTIES & LIMITATION OF LIABILITY  

ANY APPLICABLE WARRANTIES ARE CONTINGENT UPON YOU FULFILLING YOUR RESPONSIBILITY TO MAKE YOUR OWN EXAMINATIONS AND CONDUCTING YOUR OWN TESTS. YOU WARRANT THAT YOU WILL MITIGATE ANY LOSS OR DAMAGE THAT YOU MAY SUFFER UNDER THESE TERMS OR OTHERWISE RELATED TO THE PRODUCTS, AND THAT YOU WILL FOLLOW ANY OF OLAM’S INSTRUCTIONS REGARDING THE HANDLING, STORAGE, COOKING AND SERVICING OF THE PRODUCTS AND COMPLYING WITH ALL REGULATORY AND STATUTORY LAWS AND INDUSTRY PRACTICES FOR FOOD HANDLERS.

OLAM SITES, AND ALL CONTENT, MATERIALS, PRODUCTS, SERVICES, FUNCTIONALITY, AND OTHER ITEMS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU BY OLAM, ARE PROVIDED BY OLAM ON AN “AS IS” AND “AS AVAILABLE” BASIS.  TO THE FULLEST EXTENT PERMITTED BY LAW, NO OLAM ENTITY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OLAM SITES OR AS TO THE INFORMATION, MATERIALS, PRODUCTS, SERVICES, FUNCTIONALITY, OR OTHER ITEMS MADE AVAILABLE TO YOU BY OLAM, AND OLAM EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, THAT YOUR USE OF OLAM SITES IS AT YOUR SOLE RISK. OLAM SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE INDIRECTLY ARISING FROM THE PURCHASE OR USE OF SUCH PRODUCTS OR FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES ARISING UNDER THE AGREEMENT.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF OLAM SITES AND AGREE THAT ANY INFORMATION THAT YOU SEND OR RECEIVE DURING YOUR USE OF OLAM SITES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES.  YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO OLAM ENTITY IS RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM OLAM SITES. 

NOTWITHSTANDING ANY TO THE CONTRARY, SUPPLIER’S TOTAL LIABILITY FOR ANY LOSSES OR BREACH OF WARRANTIES HEREIN, OR FOR ANY CLAIM RELATED TO THE PRODUCTS, OR THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, INDEMNIFICATION OBLIGATIONS HEREIN, SHALL BE LIMITED TO YOUR PURCHASE PRICE OF THE PRODUCTS FOR THE ORDER RELATED TO THE CLAIM (THE “CAP”). THE FOLLOWING CLAIMS HOWEVER SHALL NOT BE SUBJECT TO THE CAP: (I) DEATH OR INJURY FROM A PARTY’S NEGLIGENCE, (II) FRAUD OR FRADULENT MISREPRESENTATIONS, AND (III) ANY MATTER FOR WHICH IT IS NOT PERMITTED BY LAW TO EXCLUDE OR LIMIT OR ATTEMPT TO EXCLUDE OR LIMIT, LIABILITY.

INDEMNITY

You agree to defend, indemnify, and hold Olam harmless from and against any and all liabilities, claims, damages, costs, and expenses, including attorneys’ fees and costs, arising from or related to: (i) your misuse of Olam Sites; (ii) your negligence or willful misconduct; or (iii) your violation of any applicable laws or regulations or any breach by you of these Terms of Use.  Olam reserves the right, at your expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in any case, you agree to cooperate with Olam if and as requested by Olam in the defense and settlement of such matter.

RECALLS

This section does not apply to orders of Products offered by External Suppliers which shall be subject to the recall policies such External Suppliers. You acknowledge and agree that Olam has no obligation or responsibility for recalls of Products supplied by External Suppliers.

Regarding Products supplied by Olam, you have the right to initiate and direct any recall, market withdrawal, stock recovery, product correction, or advisory safety communication (a “Recall Action”) regarding the Products or any product incorporating the Products.  In the event of a Recall Action of for defective Products, you and Olam will diligently and in good faith work together to determine the cause of the defect, and the manner, text, and timing of any publicity to be given such matters.  In case a Recall Action is caused solely by Products that were defective as supplied by Olam under these Terms of Use, your exclusive remedy shall be, at Olam’s option, to either replace the defective Products or refund the purchase price for the defective Products and pay the reasonable cost of: (i) preparing, printing and mailing a recall notice to inform distributors and customers of the nature of the Recall Action, (ii) freight to replace the defective Products, and (iii) reasonable labor costs and expenses to perform in-field replacement activities, if any, for defective Products. All press or other enquiries relating to a Recall Action shall be dealt with by the parties together in good faith and no public statement shall be made absent mutual written agreement of the parties.

DISPUTES

By using or accessing Olam Sites, you accept the terms of this Arbitration provision.  Please read it carefully as it provides that you and Olam will waive any right to file a lawsuit in court or participate in a class action for matters within the terms of the Arbitration provision.

ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND OLAM, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT OLAM AND YOU ARE EACH WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY.  YOU AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.  The arbitration will be administered by Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”) and as modified by this agreement to arbitrate.  The JAMS Rules, including instructions for bringing arbitration, are available on the JAMS website at http://www.jamsadr.com/rules-streamlined-arbitration. The Minimum Standards are available at http://www.jamsadr.com/consumer-arbitration

APPLICABLE LAW

These Terms of Use will be governed by and construed under the laws of the United States (including federal arbitration law) and the State of California, without regard to conflicts of law principles.

CONTACT ADDRESS

Olam West Coast, Inc.

205 East River Park Circle, Ste 310

Fresno, CA 93720

 

These Supply Terms and Conditions ("Terms") shall be binding upon Olam West Coast, Inc. dba Olam Spices and Vegetable Ingredients ("Seller") and the buyer ("Buyer") and they shall be applicable sales transactions between the Seller and Buyer, and together with invoices, specifications, order acknowledgements and policies (if/when applicable), shall form the Agreement between the Parties ("Agreement"). All deliveries of goods or products (the "Products") by Seller to Buyer shall be contingent upon Buyer's acceptance of these Terms. Based upon these Terms with Buyer, Seller has relied to its detriment that Buyer will fully perform hereunder by taking positions or making third party commitments with regard to the purchase of the Products to be delivered hereunder. Herein, Buyer and Seller are each referred to as "Party" and collectively referred to as "Parties."

 

1. Buyer agrees to purchase all Products subject to these Terms upon executing or otherwise accepting such Terms, even where Buyer elects to not attach these Terms in a response to Seller's estimate or quotation, which can be satisfied by e-mail or formal written signature. No additional terms or conditions, presented by either Party in any miscellaneous or prospective documents, shall supersede these Terms unless formally agreed to in writing by an authorized representative of the Seller. Seller's agents and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these Terms or the terms of the Order Acknowledgement (see below), and such oral representations, statements, warranties, conditions or agreements, if made, shall be null and void.

 

1. GENERAL.

1.1. Purchaser agrees to purchase all Products subject to these Terms upon executing or otherwise accepting these Terms, even where Purchaser elects to not attach these Terms in a reply to Seller and which can be satisfied by email or formal written signature. No additional terms, presented by either Party in any miscellaneous or prospective documents, shall supersede these Terms unless formally agreed to in writing by both Parties.

 

1.2. Order Acknowledgement: Once Purchaser has provided the aforementioned acceptance of these Terms, Seller will issue to Purchaser an Order Acknowledgement consisting of the: (i) product and specification, (ii) price,

(iii) payment terms, (iv) quantity, (v) incoterms of sale, (vi) shipment schedule, and (vii) additional notes. The Order

Acknowledgement provides the terms of the sale which, in conjunction with these Terms, constitute the legal and binding

agreement between the Parties.

 

1.3. Seller's agents and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these Terms or the terms of the Order Acknowledgement, and such oral representations, statements, warranties, conditions or agreements, if made, shall be null and void.

 

1.4. Except as otherwise set forth in this these Terms, all Products supplied by Seller to Purchaser pursuant to this these Terms shall conform in all respects to the product specifications set forth in the Specifications document (the "Specifications"), Purchaser may only vary the Specifications with the prior written approval of Seller. Any additional costs incurred by Seller in relation to the variation of the Specifications shall be borne solely by Purchaser.

 

1.5. Purchaser shall not re-sell any Product, except after such Product has been processed by Purchaser, unless either: (i) a distribution agreement is in place with Seller that covers the re-sale of the Product,

 

2. PAYMENT.

 

2.1. All payments by Purchaser to Seller shall be made in the manner and by the date specified in the Order Acknowledgement. Where payment by letter of credit is stipulated, payment must be: (i) made by confirmed irrevocable letter of credit established for the credit of the bank that Seller nominates, (ii) irrevocable, confirmed and without recourse, and (iii) in a form satisfactory to Seller.

2.2. If Seller requires Purchaser to post security for payment, Purchaser shall post such security before the

Products are loaded for shipment.

 

2.3. The Price of the Products is exclusive of all taxes (including sales taxes, goods and services taxes, value added taxes and customs duties) and any charge or levy of an export, which shall be borne by Purchaser.

 

2.4. Purchaser shall not withhold payment or make any deduction or set-off from any amount owing to Seller without

Seller's prior written consent.

 

2.5. Payment Terms; Extension of Credit: The applicable payment terms under these Terms shall be payable based on the Order Acknowledgement. When the payment terms call for a payment at a date in the future, it is the intent that the payment is made in readily available funds by the payment due date. Should Purchaser's financial strength become unsatisfactory to Seller, Seller may, in its discretion, withhold further shipments, require immediate cash payments for past and future shipments, or require other security satisfactory to Seller before further deliveries shall be made. If Purchaser fails to pay Seller in accordance with these Terms, Seller has the right, in addition to any other rights or remedies provided by law, and subject to any right Purchaser has by law, to correct its default, to declare the entire balance of Purchaser's account immediately due and payable or to foreclose any security interest that Seller may have in the Products delivered. If any unpaid balance is referred for collection to any attorney, Purchaser agrees to pay (in addition to all damages otherwise available to Seller), to the extent permitted by law, reasonable attorneys' fees, whether or not litigation is commenced or prosecuted to final judgment, plus any court costs or expenses incurred by Seller, and any finance charge accrued on any unpaid balance owed by Purchaser, all as calculated in accordance with this these Terms, until all amounts owed to Seller that are due under this these Terms invoice, or otherwise, are paid in full.

 

 

2.6. Finance Charges: Purchaser agrees to pay the unpaid balance of all overdue invoices, from the date the total amount of each invoice is due and payable at an ANNUAL PERCENTAGE RATE of EIGHTEEN PERCENT (18%), or the maximum lawful rate under applicable law as is now or hereafter construed by a court of competent jurisdiction, whichever is lower.

 

2.7. Electronic Transmissions: If Seller agrees in writing to electronically transmit to, or receive from, Purchaser any documents or information relating to these Terms (including, without limitation, invoices) (collectively “Documents"), the following provisions shall apply:

 

2.7.1. All Documents shall be transmitted and received in accordance with standards specified by Seller from time to time.

 

2.7.2. Purchaser must, at its own expense: (i) provide and maintain the resources necessary to effectively and reliably transmit and receive Documents, and (ii) implement security procedures, which are necessary to ensure that transmissions of Documents are protected against improper access.

 

2.7.3. Each Party shall maintain a record of data exchanged pursuant to this Section 2.7 for not less than twenty-four (24) months following the supply of Products to which the data relates and allow the other Party reasonable access to that record on request.

 

2.7.4. The Parties agree that the Documents shall be governed by the U.S. E-Sign Act and the California

Uniform Electronic Transactions Act.

2.7.5. Nothing in this Section 2.7 precludes the Parties from exchanging paper documents; provided, however, that where a Document is sent in both paper form and electronic form, the electronic form of the Document shall prevail.

 

 

3. DELIVERY AND SHIPMENT.

 

3.1. Purchaser shall issue delivery instructions sufficiently in advance to allow Seller to deliver the Products and/or to obtain delivery and shipment based on the trade terms as specified in the Order Acknowledgement (as interpreted in accordance with Incoterms 2010). If Purchaser fails to issue delivery instructions sufficiently in advance, Seller may invoice the Products on the Requested Delivery Date, on the Order Acknowledgement, and demand payment as if the Products were delivered on that date.

 

 

3.2. Where delay in delivery is due to the fault of Purchaser as a result of Purchaser's failure to produce a letter of credit and/or import license at least thirty (30) days (or such other period as may be stated in the Order Acknowledgement) before the contractual month of the shipment, or for any other reason whatsoever, Seller shall be entitled to cancel delivery of the Products without any liability to Purchaser or to continue delivery of the Products. Should Seller elect to continue with the delivery of the Products, Purchaser shall reimburse the following amounts to Seller: (i) interest calculated at the rate of ten percent (10%), per annum for the period between the Scheduled Ship Date on the Order Acknowledgement and the date of actual shipment, and (ii) any additional costs incurred by Seller as a result of the aforesaid delay including, but not limited to, costs associated with exchange risk, storage and insurance for the Products.

 

3.3. In the event Seller, due to the fault of Purchaser, is required to pay fees, demurrage, or costs with respect to the shipping of the Products sold herein, Purchaser hereby agrees to reimburse Seller of all such fees, demurrage, and other costs, including any subsequent undercharge claims, and to indemnify, defend, and hold Seller harmless from any claims for payment of any such fees, demurrage, or other costs.

 

3.5. In the event the Products set forth on any Order Acknowledgement are for export, the Purchaser shall be responsible for securing export, import and other licenses or authorizations as may be required.

 

4. TITLE OF PRODUCTS, SECURITY.

 

4.1. Notwithstanding any terms in these Terms or in Incoterms 2010 regarding the passing of title and risk, title to the Products shall remain vested in Seller and shall not pass to Purchaser until payment of the Price has been received in full by Seller. Full payment of the Price shall include, without limitation, the amount of any interest or other sum payable hereunder or in the Order Acknowledgement. Until title to the Products passes to Purchaser, the Products shall be subject to the following conditions: (i) Seller shall have the right to retake, sell or otherwise possess and/or dispose of all or any part of the Products, (ii) Seller, Seller's agents and Seller's employees shall have the right, at all times, and without prior notice, to enter any property upon which Seller reasonably believes the Products are stored in order to inspect or remove such Products.

 

 

4.2. Security Interest: Purchaser hereby grants Seller a security interest in each and every part of all Products supplied (and any proceeds thereof) for any amounts owing by Purchaser to Seller from time to time, and for the full performance by Purchaser of all of its obligations to Seller from time to time. To protect Seller's security interest, Purchaser authorizes Seller to prepare and file a financing statement (Form UCC-1), or register or otherwise perfect its security interest as permitted by law in any relevant jurisdiction at Seller's sole discretion. On Seller's request, Purchaser agrees to promptly provide to Seller all assistance and information (including, but not limited to, signing any documents) as requested by Seller to enable Seller to register or otherwise perfect its security interest with the priority it requires. Purchaser waives the right to receive from Seller a copy of any financing statement, financing change statement, or verification statement filed at any time in respect of the security interest granted under these Terms or any renewal or replacement Terms. Purchaser shall be entitled to a release or discharge of the security interest granted pursuant to these Terms or any renewal or replacement of these Terms upon Purchaser's full performance of these

Terms, any Order Acknowledgement, and any related agreement, including, without limitation, full payment, performance, and satisfaction of all amounts owing to Seller under these Terms or any related agreement or any renewal or replacement of these Terms. In the event of any breach of any provision of these Terms or any related agreement, Seller shall have the right to call all obligations hereunder immediately due and payable and shall have all of the rights and remedies afforded a secured party under the California Uniform Commercial Code and all other remedies allowed under applicable law.

 

5. LIMITED WARRANTY.

 

5.1. Seller warrants that the Products sold hereunder, as of the date of shipment, shall be fit for human consumption and not in violation of any State or Federal laws or regulations, and are not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, nor are they goods which may not, under the provisions of that Act, be introduced into interstate commerce. Seller further warrants that the Products sold and delivered hereunder will conform to the description set forth in the Specifications. SELLER MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS DESCRIBED HEREIN, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY

PARTICULAR PURPOSE. SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR

INDIRECTLY ARISING FROM PURCHASER'S PURCHASE OR USE OF SUCH PRODUCTS OR FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING THEREFROM. SELLER'S TOTAL LIABILITY TO PURCHASER FOR ANY BREACH OF THIS LIMITED WARRANTY, OR FOR ANY CLAIM THAT THE PRODUCTS DELIVERED HEREUNDER WERE DEFECTIVE OR NON-CONFORMING, SHALL BE LIMITED TO THE INVOICE PRICE OF ANY PRODUCTS SHOWN TO BE DEFECTIVE, NON-CONFORMING, OR IN VIOLATION OF THE LIMITED WARRANTY PROVIDED HEREIN.

 

 

6. CLAIMS.

 

6.1. ANY ACTION OR CLAIM FOR DAMAGES AS A RESULT OF THE RECEIPT OF DEFECTIVE OR OTHERWISE NON-CONFORMING PRODUCTS UNDER THESE TERMS MUST BE MADE BY PURCHASER

THROUGH WRITTEN NOTICE TO SELLER WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT OF

SHIPMENT OF THE PRODUCTS BY PURCHASER, DESCRIBING THE SPECIFIC DEFECT OR CLAIM ALLEGED. FAILURE TO PROVIDE SUCH WRITTEN NOTICE WITHIN THIS TIME PERIOD SHALL BE DEEMED A WAIVER AND RELEASE OF ANY SUCH CLAIM OR RIGHT OF RECOVERY BY PURCHASER WITH RESPECT TO ANY SUCH DEFECTIVE OR NON-CONFORMING PRODUCTS. Seller's liability for any and all damages, actions or claims arising under or in any way related to THESE TERMS, regardless of the nature of such claims, shall in no event exceed the purchase price of the particular shipment with respect to which a claim is made. In any case whatsoever, Seller shall not be liable for lost profits or for incidental, exemplary, punitive, special or consequential damages.

 

 

6.2. Mitigation: Purchaser agrees to mitigate any loss or damage that Purchaser may suffer under these Terms or otherwise related to the Products.

 

 

7. INDEMNIFICATION.

 

7.1. Purchaser shall be solely responsible for determining the adequacy of the Products sold hereunder for any and all uses to which Purchaser shall apply said Products. Purchaser agrees to indemnify, defend, and hold Seller harmless from and against any and all claims, suits, loss, damage, or other liability, which may arise in connection with Purchaser's use of the Products covered by this these Terms.

8. DISPUTE RESOLUTION.

 

8.1 Informal Negotiation and Mediation. If a dispute arises from or relates to these Terms, the Parties agree that upon the request of either Party they will try in good faith to resolve the dispute within thirty (30) days of that request, following which either Party may submit the matter to mediation under the Commercial Mediation Rules of the American Arbitration Association.

 

8.2 Arbitration. If the mediator determines that the dispute cannot reasonably be resolved by mediation, or if either Party, after good faith participation in the mediation, shall make written demand therefore, then the dispute shall be submitted to binding arbitration, conducted by a single neutral arbitrator, acceptable to both Parties, who shall be either a licensed attorney or retired judge. Such demand will set forth the nature of the matter to be resolved by arbitration. The arbitration will be governed by the provisions of the California Arbitration Act, California Code of Civil Procedure

§§1280 et seq. Arbitration will be conducted in Fresno County, California. The Parties shall have all discovery rights and obligations conferred by the California Code of Civil Procedure, including, but not limited to, the right to take

depositions without first obtaining leave from the arbitration. The arbitrator shall not have authority to award punitive damages or exemplary damages. If proper notice of any hearing has been given, the arbitrator will have full power to proceed to take evidence or to perform any other acts necessary to arbitrate the matter in the absence of any Party who fails to appear. The arbitrator shall render a written statement of decision setting forth all of the arbitrator's findings of

fact and conclusions of law. The prevailing Party shall be entitled, in addition to any judgment or award upon such action

or proceeding, to an award for all costs and expenses (including costs of all legal or administrative proceedings or hearings) incurred by such prevailing Party, including, without limitation, all attorneys' fees and related costs incurred by such Party in connection with such actions and proceedings and the enforcement of any such judgment or award and upon prevailing in any appeal relating thereto. All decisions of the arbitrator will be final, binding, and conclusive on all Parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having

jurisdiction thereof. For the purpose of obtaining such a judgment, the Parties consent to the jurisdiction of all federal and state courts in California, and agreed that venue will lie exclusively in Fresno County, California.

 

9. FORCE MAJEURE.

 

9.1 Seller shall not be liable for any failure or delay of delivery hereunder, where such failure or delay has been occasioned by fire, floods, earthquakes, embargo, acts of terrorism, strikes, wars, accidents, acts of God, crop failure or shortage, strikes or labor disturbances, voluntary or involuntary compliance with any valid or invalid law, or regulation of any governmental agency or authority, lack of transportation facilities, or other causes beyond Seller's control. In the case where shipment is delayed and the cause of such delay ceases, Seller shall ship and Purchaser shall accept delivery at the agreed price. This Section does not excuse Purchaser from any obligation to make a payment when due.

 

 

10. CONFIDENTIAL INFORMATION.

 

10.1 All information provided by Seller hereunder, including, but not limited to, the terms and conditions of these Terms and the Supply Contract, if one is executed by the Parties, must be held in confidence by Purchaser. This obligation shall survive the termination or expiration of this these Terms. Purchaser must ensure that its officers, employees, agents, contractors, and advisers comply with this Section and shall be held liable for any disclosure under these Terms. Purchaser must not disclose to any third party any proprietary information provided by Seller to Purchaser unless Purchaser can demonstrate by written evidence that: (i) the information is in the public domain (other than by reason of breach of any confidentiality obligation owed to Seller by Purchaser or any third party), or (ii) the disclosure (including its form and context) is first approved by Seller in writing.

11. NOTICES.

 

11.1. All notices required or permitted under these Terms or any applicable law shall be in writing, and be either personally served, sent with return receipt requested by certified mail with postage prepaid, sent by nationally recognized overnight courier service, or sent by telecopy or email with an original to be delivered by nationally recognized overnight courier service. Notice given in the foregoing manner shall be deemed sufficiently given for all purposes hereunder on the date the same was personally delivered, deposited with the United States Postal Service, delivered by a nationally recognized overnight courier service, or sent by telecopy or email, except that any notices of changes of address shall not be effective until actual receipt. If notice is received after 4:30 p.m. or on a Saturday, Sunday or legal holiday it shall be deemed received on the next business day. Notices shall be sent to Purchaser or Seller, at the address on the face hereof, or at their principal place of business, and, in any event, with copies to:

 

Olam West Coast, Inc. (d.b.a. Olam Spices and Vegetable Ingredients) 205

E. River Park Circle, Suite 310 - Fresno, California 93720.

Attn: VP Sales.

Attn: Director of Legal.

 

12. PURCHASER'S DEFAULT.

 

12.1. If Purchaser fails to make any payment when due, fails to perform any other of its obligations hereunder, or breaches any other agreement between the Parties, or if Purchaser makes any assignment for the benefit of its creditors, or if a petition under any State or Federal bankruptcy or insolvency law is filed by or against Purchaser, or if a receiver of Purchaser's property is appointed, then Purchaser shall be in default of these Terms, and Seller shall, in addition to any other remedy, have the right to immediately withhold further deliveries and the right to suspend or terminate these Terms immediately by written notice to Purchaser.

 

 

13. BIN RETURN. (APPLICABLE TO PRODUCTS WITH RETURNABLE PACKAGING)

 

13.1. Seller will charge a bin deposit, which is stated in the Quotation and will credit back to Purchaser the equivalent of eighty seven and one-half percent (87.5%) of the bin deposit for delivery locations within the U.S., Canada and Mexico (92% for delivery locations outside of U.S., Canada and Mexico) based on the condition of the returned bins/complete bin parts upon receipt of such, unless the bins are received by Seller in a unusable condition for the same purpose it was previously used as determined by Seller as its discretion. If Seller determines that the bins are in unusable condition, proper documentation will be sent to inform Purchaser that the bin charge/deposit will not be credited to the Purchaser. Purchaser agrees to Seller's Bin Return Policy, attached herein and incorporated into these Terms by reference.

13.2. Purchaser is responsible for all costs and expenses related to shipping, handling, drayage, dunnage and other related transportation costs regarding the return of the bins / complete bin parts to the delivery location designated by Seller.

 

13.3. Purchaser hereby agrees to return bins within Six (6) months from shipment date for delivery locations within the U.S., Canada and Mexico or Nine (9) months for shipments outside of the U.S., Canada and Mexico). Purchaser further agrees that if bins/ complete bin parts are not returned to Seller within the above time frame, Seller may be reimbursed by Purchaser the full amount related to the replacement value of the bins adjusted for the bin deposit already received from Purchaser.

 

 

 

15. Miscellaneous.

 

15.1. No Waiver: No waiver of any breach of these Terms and the terms in the Order Acknowledgement and the Supply Contract shall be deemed to apply to any succeeding breach of the provision or of any other provision of these Terms and the terms in the Order Acknowledgement. No failure to exercise or delay in exercising on the part of any of the parties hereto any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in these Terms and the terms in the Order Acknowledgement are cumulative and not exclusive of any rights or remedies otherwise available (whether at law or in equity) to the parties hereto.

 

 

15.2. Amendments: No provisions of these Terms, the Supply Contract, the Order Acknowledgement, or any related agreement may be modified in any manner whatsoever except by an agreement in writing signed by a duly authorized representative of both Parties.

 

 

15.3. Entire Agreement: These Terms constitute the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements (whether written, oral or otherwise) relating thereto.

 

 

15.4. Governing Law: THESE TERMS AND ALL DOCUMENTS PROVIDED FOR HEREIN, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES, SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION, AND EFFECT, BY THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT GIVING EFFECT TO ITS CHOICE OF LAW PRINCIPLES), SPECIFICALLY INCLUDING THE PROVISIONS OF THE CALIFORNIA UNIFORM COMMERCIAL CODE.

 

 

15.5. Assignment: Purchaser shall not assign these Terms in whole or in part (or any specific rights hereunder), to any other individual or entity without the prior written consent of Seller, which Seller may provide or withhold in its complete discretion.

 

 

15.6. Severability: In the event a court of competent jurisdiction determines that any provision of these Terms is void or unenforceable, such provision shall be deemed reformed so as to be valid or enforceable to the maximum extent possible and the remaining provisions shall remain in full force and effect.

 

 

15.7. Attorneys' Fees: In the event of any controversy, claim, or dispute between the Parties arising out of or relating to the Products, these Terms or any related agreement, or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, attorneys', paralegals', and other professionals' fees and costs.

 

15.8. No Additional Rights: Nothing in these Terms gives Purchaser any right, title, or interest in or to any of Seller's assets or rights other than the Products.

 

 

15.9. Headings and Construction: Headings at the beginning of each numbered Section and Subsection of these Terms are solely for the convenience of the Parties and are not a part of these Terms.

 

 

15.10. Time: Time is of the essence of these Terms and any related agreement between the Parties.

 

15.11. Authority: Purchaser represents and warrants that it has the full authority to purchase the Products and to carry out the obligations under these Terms. Purchaser hereby agrees that, for purposes of enforcing these Terms and any related agreement, Seller may rely on the authority of any agent or employee of Purchaser that signs invoices or documents on behalf of Purchaser.

 

15.12. Broker agreement: If Purchaser is associated to a broker, a separate Industrial Brokerage Agreement must be in place between the Broker and the Seller. All sales and agreements of sales of Products contracted, as stated on the front side of these Terms, are not guaranteed to be paid commission upon invoice of Products.

 

15.13. Recall: Purchaser has the exclusive right to initiate and direct any recall, market withdrawal, stock recovery, product correction, or advisory safety communication (a “Recall Action”) regarding the Products or any product incorporating the Products. In case a Recall Action is caused solely by defective Products supplied by the Seller, Purchaser may direct Seller to, and upon such direction from Purchaser with reasonable detail and with reasonable supporting documentation, Seller shall, conduct such Recall Action if Seller reasonably believes that the usage of the Product constitutes a health risk, Seller shall also have the right to request Purchaser to initiate a Recall Action that arises from a defect in the Product or other components of the Product solely supplied to the Purchaser by the Seller, by written notice to the Purchaser. The Parties shall immediately, diligently and in good faith work together to determine the cause of the defect, and the manner, text, and timing of any publicity to be given such matters. Seller shall fully cooperate and take all such steps as are reasonably requested to implement the Recall Action in a timely and complete manner. For Products produced and supplied by Seller to Purchaser, Purchaser's exclusive remedy, in the event of such a Recall Action of defective Products is for Seller, at its option, to either replace the defective Products or refund the purchase price for the defective Products and pay the reasonable cost of: (i) preparing, printing and mailing a recall notice to inform distributors and customers of the nature of the Recall Action, (ii) freight to replace the defective Products, and (iii) reasonable labor costs and expenses to perform in- field replacement activities, if any, for defective Products. All press or other enquiries relating to a Recall Action shall be dealt with by the Parties together in good faith and no public statement shall be made absent mutual agreement of both Parties.

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