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."
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.
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.
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
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
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
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.
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.
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.
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.
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.
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
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
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
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
Mitigation: Purchaser agrees to mitigate any loss or damage that
Purchaser may suffer under these Terms or otherwise related to the Products.
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
8. DISPUTE RESOLUTION.
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
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.
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.
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.
11.1. 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
Olam West Coast, Inc. (d.b.a. Olam Spices and Vegetable
E. River Park Circle, Suite 310 - Fresno, California
Attn: VP Sales.
Attn: Director of Legal.
12. PURCHASER'S DEFAULT.
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
13. BIN RETURN. (APPLICABLE TO PRODUCTS WITH
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.
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
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.
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
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
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
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
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.
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.
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.
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.
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.