AS-IS TERMS AND CONDITIONS
Unless otherwise agreed in a writing signed by you (“Buyer”) and Darigold, Inc. (“Seller”) these Darigold As-Is Terms and Conditions (“Terms”) apply to any purchase and sale of Seller’s Goods, along with the applicable Seller sales contract (together, the “Agreement”), whether in paper or electronic form. Buyer’s acceptance of all the provisions of the Agreement is deemed to be made by Buyer without any additions, deletions, or other modifications.
- SUPPLY OF GOODS.
Seller shall supply certain dairy products of the type, quantity and price specified in the Agreement (“Goods”). Buyer agrees that it shall have a contractual obligation to purchase the Goods in the stated quantities, at the stated intervals, delivery terms, and price in the Agreement. Failure to do so shall constitute a breach and shall subject Buyer to the remedies provided by these Terms and applicable law.
- PRICING / PAYMENT / RIGHTS OF SELLER.
- All prices are determined as of the order date. Buyer agrees to pay the price subject to these Terms.
- Unless otherwise agreed by the parties, Buyer shall be responsible for paying any sales, use or other taxes, duties, tariffs, assessments, fees, or other charges imposed by any governmental entity based upon Buyer’s purchase of any Goods from Seller even if such amounts were not set forth in Seller’s invoice.
- Any advance in applicable freight rates, fuel, energy, and transportation surcharges, pallets or totes, taxes, duties or other assessments or fees on the Agreement or the production, processing, sale, delivery, storage, shipment, transportation or use of the Goods sold hereunder, taking effect after the date of the Agreement but before the fulfilment of the Agreement may, at Seller’s option, be added to the pricing set forth in the Agreement.
- If compliance with new or revised statutes, rules, orders, or regulations directly increases or reduces Seller’s cost of Goods, Seller shall adjust prices to comply with any such governmental requirements and Buyer agrees to pay such adjusted price.
- All orders for Goods are subject to Seller’s then current order terms and lead time requirements.
- US accounts: 3 weeks prior to ship date, unless otherwise agreed
- International accounts: 45 days prior to month ship date, unless otherwise agreed
- Buyer acknowledges that it will pay all invoices in full within the agreed upon terms without deduction or setoff. Failure to pay in full within agreed upon terms will result in a late fee equal to 1.5% per month, or the highest rate permitted by law, if lower, assessed against all unpaid balances. If balances remain unpaid for 30 days, Seller reserves the right to discontinue all shipments regardless of prior orders without liability of any kind to the Seller. Seller shall have the right to set off against amounts due from Seller to Buyer, if any, on any and all amounts due from Buyer to Seller and/or any of Seller’s subsidiaries and divisions.
- In addition, to secure payment of Buyer’s invoices, Buyer hereby grants Seller a purchase money security interest in all Goods provided by Seller. Buyer hereby authorizes Seller to file financing statements on behalf of Buyer to perfect Seller’s security interest and agrees to reasonably assist Seller with same as requested.
- Unless otherwise agreed, for delivered orders, Seller will set and add freight to the Ex Works Seller’s facility price based on current market-based rates for the requested lanes. If Buyer requests expedited delivery, Buyer shall pay for such expedited freight.
- If, for any reason, Buyer fails to or is unable to take delivery of any or all of the goods, in addition to its other remedies Seller may, in its sole discretion, choose to (i) extend the delivery period for confirmed and/or contracted volumes and/or (ii) assess Buyer carrying charges, demurrage, detention and/or other charges or penalties as deemed appropriate or necessary by Seller.
- Seller will make commercially reasonable efforts to produce the Products quantities in a given Purchase Order; provided, however, Seller shall have a variation allowance plus or minus ten percent (10%) the actual requested order quantities per order (i.e., a 90% accuracy rate). Seller will notify Buyer in writing of the actual quantity of Products produced for any Purchase Order at the time of delivery.
- Any time quoted for delivery is an estimate only; provided, however, that Seller shall use commercially reasonable efforts to deliver all Products on or before the requested delivery date. No delay in the shipment or delivery of any Good relieves Buyer of its obligations under this Agreement, including accepting delivery of any remaining installment or other orders of Products.
- SELLER REMEDIES.
- Contracted Quantities. If Buyer fails to order and/or accept the stated monthly and/or annual quantities, Seller, in addition to other remedies as provided by law, shall be entitled to liquidated damages equal to the price that Buyer would have paid for the Goods had Buyer ordered Goods according to these Terms.
- Purchase Order Lead Time. If Seller does not receive Buyer purchase orders or shipping instructions within such timeframe, Seller may, in its sole discretion and without legal consequence to Seller: (i) reject Buyer’s purchase order or (ii) re-price the Goods associated with that purchase order at then prevailing market rates or (iii) cancel the applicable order.
- Additional Remedies. In addition to the remedies provided in this Sections 5, Buyer shall reimburse Seller for all costs associated with or arising from Buyer’s failure to order and/or accept contracted volumes or satisfy the Purchase Order Lead Time, including but not limited to storage, interest, and freight and handling costs or, in the alternative, charge Buyer a reasonable estimate of such costs as determined by Seller. Buyer shall have a duty to pay Seller such reimbursement amounts or fees in accordance with the payment provisions of these Terms, without offset or deduction. Buyer shall have no right to “make up the difference” in later months by ordering monthly quantities greater than the agreed upon monthly amounts. In the alternative, Seller may consent in writing to allow Buyer to remedy a previous monthly quantity shortfall by adding the previous monthly shortfall amount to a subsequent month, but the price for such Goods shall be based on prevailing market rates. If Buyer breaches its duty to accept agreed upon monthly quantities more than once during the course of this Agreement, Seller shall have the right to immediately cease performance and accelerate all remedies for the entire term.
- Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
- Credit Terms. Buyer shall be subject to Seller’s standard credit terms and policies. Seller may adjust Buyer’s credit limit upon thirty (30) days’ prior written notice. Each acceptance of Goods by Buyer will constitute Buyer’s representation and warranty that Buyer is solvent and is able to pay for the Goods in accordance with these Terms. As part of Seller’s ongoing credit and approval process, Buyer shall furnish Seller with statements accurately and fairly evidencing Buyer’s financial condition as Seller may, from time to time, reasonably request. Throughout the term of this Agreement, Buyer shall be in compliance with all obligations to Buyer’s creditors as and when such obligations are due and owing in the ordinary course of Buyer’s business. Buyer shall notify Seller, in writing, immediately of any and all events that have had or may have a material adverse effect on Buyer’s business or financial condition, including any change in management, sale, lease or exchange of a material portion of Buyer’s assets, a change in control of Buyer, or the breach of any loan covenants or other material obligations of Buyer to its creditors. If, at any time, Seller determines in its sole discretion that Buyer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Seller’s other rights under this Agreement, at law or in equity, Seller may without liability or penalty, take one or more of the following actions:
- on 30 days’ prior written notice, modify these payment terms for outstanding and future purchases, including requiring Buyer to pay for Goods on a cash in advance or cash on delivery basis;
- delay or withhold any further shipment of Goods to Buyer;
- stop delivery of any Goods in transit and cause such Goods in transit to be returned to Seller;
- on 30 days’ prior written notice, terminate this Agreement;
- accelerate the due date of all amounts owing by Buyer to Seller.
- PURCHASE ORDER ACCEPTANCE / REJECTION.
Any Buyer purchase order shall be deemed accepted by the Seller upon the first of the following to occur: (i) Seller accepts the purchase order in writing; or (ii) Seller starts performing on the purchase order. Seller has the right to reject Buyer’s purchase order if (a) it is non-compliant or inconsistent with these Terms, (b) it fails to meet purchase order lead time requirements; or (c) Buyer is in breach of the Agreement.ANY SELLER ACCEPTANCE OF A PURCHASE ORDER IS HEREBY EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT.
- TITLE / RISK OF LOSS.
Risk of loss and responsibility to obtain insurance for the Goods shall pass from Seller to Buyer according to the Incoterms (2020) stated in Section 4(a) above, regardless of which party retained the carrier. Title in the Goods shall remain with Seller until such time as the Goods have been paid for in full.
- NO WARRANTIES.
ALL GOODS ARE SOLD “AS IS” WITHOUT WARRANTY OF ANY KIND. SELLER DISCLAIMS ALL WARRANTIES OF QUALITY, WHETHER EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. BUYER AGREES THAT GOODS CATEGORIZED AS “ANIMAL FEED” MAY CONTAIN FOREIGN MATERIALS SUCH AS DIRT, METAL OR PLASTIC. BUYER ACKNOWLEDGES THAT IT HAS NOT BEEN INDUCED BY ANY STATEMENTS OR REPRESENTATIONS OF ANY PERSON WITH RESPECT TO THE QUALITY OR CONDITION OF THE PRODUCTS AND THAT NO SUCH STATEMENTS OR REPRESENTATIONS HAVE BEEN MADE. BUYER ACKNOWLEDGES THAT IT HAS RELIED SOLELY ON THE INVESTIGATIONS, EXAMINATIONS, AND INSPECTIONS BUYER HAS CHOSEN TO MAKE AND THAT SELLER HAS AFFORDED BUYER THE OPPORTUNITY FOR FULL AND COMPLETE INVESTIGATIONS, EXAMINATIONS, AND INSPECTIONS. TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER WAIVES ANY AND ALL CLAIMS AGAINST SELLER ARISING FROM THE CONDITION OR CONTENTS OF THE PRODUCTS. BUYER FURTHER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF. BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF PURCHASING AND USING THE GOODS AND ASSUMES ALL RISKS ASSOCIATED WITH AND RESULTING FROM SUCH PURCHASE UNDER THIS AGREEMENT.
- Indemnification. Buyer agrees to indemnify and hold harmless Seller and its parent companies, affiliates, agents, employees, officers, directors, successors, and assigns (each an “Indemnitee”), against any and all third-party claims, damages, fines, penalties, costs, liabilities or losses (including sums paid in settlement of claims, reasonable attorneys’ fees, consultant fees, expert fees and costs) (“Claim”) arising out of or relating to Buyer’s purchase of the Goods under this Agreement, except that no right of indemnity shall exist to the extent such Claim results from the gross negligence or intentional misconduct of Indemnitee.
- Procedure. Indemnitee shall, within ten (10) calendar days after receipt of notice of the commencement of any third-party Claim against Indemnitee for which indemnity may be sought, notify Indemnitor of such Claim; provided, however, that the failure to provide such notice shall not relieve Indemnitor of its indemnity obligations, unless Indemnitor is materially prejudiced by such delay. Indemnitor shall, upon Indemnitor’s request, be entitled, at its own expense, to assume the defense of any such Claim with reputable counsel reasonably acceptable to Indemnitee. Indemnitor shall be entitled to settle any such Claim, with Indemnitee’s written consent (which may be granted or withheld in Indemnitee’s reasonable discretion). Indemnitee, at Indemnitor’s cost, shall reasonably cooperate with Indemnitor in the defense of such Claim as Indemnitor may reasonably request. Upon the institution of any Claim alleging infringement against Buyer relating to Seller’s intellectual property, Seller may, at its option but without obligation to do so: (i) procure the right to continue using the Goods, (ii) replace the Goods with non-infringing Goods, or (iii) modify the Goods so they become non-infringing. This indemnity obligation shall survive the expiration, termination, or cancellation of this Agreement.
- LIMITATION OF LIABILITY.
- NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THIS PROVISION SHALL NOT APPLY TO CLAIMS FOR BREACH OF CONFIDENTIALITY.
- MAXIMUM LIABILITY FOR DAMAGES. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNT PAID TO SELLER IN RELATION TO THE APPLICABLE PURCHASE ORDER.
- ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
- THE PROVISIONS OF THIS SECTION 10 SHALL SURVIVE THE TERMINATION OR EXPIRATION OF ANY AGREEMENT BETWEEN THE PARTIES.
- There are no intended third party beneficiaries to this Agreement.
- FORCE MAJEURE.
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, if such failure or delay is caused by or results from acts beyond Seller’s control, including but not limited to: (a) acts of nature or acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) requirements of applicable law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any Governmental Authority (whether or not having the effect of law); (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) shortages of or delays in receiving raw materials; (j) pandemic, epidemic, or government order related thereto, or (k) shortage of adequate power or transportation facilities (each, a “Force Majeure Event”). Changes in market conditions, demand, and/or other events which adversely affect Buyer’s desire to take the Products at agreed upon times, prices and or quantities shall not constitute a Force Majeure Event. Buyer’s obligation to make payment shall not be subject to any Force Majeure Event. The provisions of this Section 11 shall not apply where the cause of the delay was reasonably foreseeable and was known or otherwise ongoing as of the date of execution of this Contract.
Confidential Information (“Confidential Information”) shall be limited to the terms of the Agreement and any information disclosed by Seller to Buyer. Confidential Information shall include but not be limited to Supplier’s sales documents, price lists, catalogues, brochures, technical documentation, specifications, and the composition of the Goods. For a period of five (5) years from the date of disclosure, the Buyer shall keep the Confidential Information in confidence and may disclose such Confidential Information to its employees, representatives and agents only on a need to know basis and must be subject to the confidentiality obligations herein. The Confidential Information shall not be shared with any other parties and shall not be misused in any other way by Buyer to the detriment of the Seller or in violation of applicable laws. Confidential Information shall not include (i) information already in the possession of the Buyer, not under a non-disclosure requirement and evidenced by Buyer’s prior written records, (ii) information disclosed to the Buyer by a third party entitled to make such disclosure, (iii) information which becomes public through no fault of the Buyer, (iv) information developed independently by the Buyer, and/or (v) information required to be disclosed by Buyer pursuant to a subpoena or court order or by law. To the extent not prohibited by law, Buyer shall provide reasonable prior notice to the Seller of the compelled disclosure such that Seller may seek an order preventing such disclosure. In the event Supplier and Buyer enter in a stand-alone confidentiality or non-disclosure agreement, such agreement shall prevail in relation to this Section 12.
Buyer may not assign this Agreement, in whole or in part, to a third party voluntarily or by operation of law without the prior written consent of the Seller. Each party is fully responsible for the conduct of its contractors, subcontractors, and agents.
- DISPUTE RESOLUTION.
If a dispute arises under this Agreement, the parties will attempt, in good faith, to settle it through negotiation. Only if the parties are unable to reach a settlement through negotiation after at least ten (10) days may either party file an action against the other party. This Agreement shall be governed by the laws of the State of Washington (including the Uniform Commercial Code), exclusive of its choice of law provisions. Any action for the interpretation or enforcement of this Agreement shall only be brought in a Federal or State Court located in King County, Washington. The parties to this Agreement hereby submit to the jurisdiction of the Courts in the State of Washington. The parties agree that the Carriage of Goods by Sea Act, the United Nations Convention on Contracts for the International Sale of Goods and the application of any other uniform civil or conflict of law rules created by intergovernmental or inter-state conventions, treaties, or multi-lateral pacts shall not apply to this Agreement. In the event a suit or action is filed in relation to this Agreement, the prevailing party shall be entitled to recover the reasonable costs and expenses of the suit or action, at trial or upon appeal, including reasonable attorneys’ fees. In the event an action is instituted in a Bankruptcy Court to enforce or interpret this Agreement, to seek relief from an automatic stay, to obtain adequate protection, to determine dischargeability of any debts, or to otherwise assert the interest of the creditor in a bankruptcy proceeding, the debtor shall pay the reasonable costs and expenses incurred by the creditor including reasonable attorneys’ fees. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE SUBJECT MATTER OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Buyer agrees not to publish or use any advertising, sales promotion, or publicity matter in which Seller’s name or logo is mentioned.
- COMPLIANCE WITH LAWS.
Buyer shall comply, and cause all of Buyer’s employees and agents to comply, at all times with all laws and regulations that are applicable to the Buyer’s activities in connection with this Agreement, including (without limitation) the United States Foreign Corrupt Practices Act and all applicable anti-slavery, anti-trust, anti-human trafficking, anti-corruption and anti-bribery laws. In addition, Buyer agrees to comply with all applicable Export Regulations, as defined below. For purposes of this Agreement, “Export Regulations” shall mean any and all export regulations that may be applicable to the Goods, including (but not limited to) the Export Control Reform Act of 2018 (ECRA) (Title XVII, Subtitle B of Pub. L. No. 115-232), the Export Administration Regulations (15 C.F.R. 768-799) for which ECRA is permanent statutory authority, the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations.
If any condition, term or covenant of this Agreement shall at any time be held to be void, invalid or unenforceable, such condition, covenant or term shall be construed as severable and shall attach only to such condition, covenant or term, and shall not in any way effect or render void, invalid or unenforceable any other condition, covenant or term of this Agreement, and shall be carried out as if such void, invalid or unenforceable term were not embodied herein.
Any notice required or permitted under this Agreement shall be deemed to have been properly given if a written notice shall have been delivered to the addressee by personal courier, a recognized overnight courier, or deposited, first class, postage prepaid, return receipt requested, in the United States mail addressed to the respective parties as set forth on the order confirmation and acknowledged by the recipient.Copies of all notices to Seller shall also be sent to the attention of the General Counsel. Notices sent by email shall also be sent by one of the above methods.
The failure of either party to enforce any provision herein shall not be construed to operate as a waiver of such provision(s) or any other provision in this Agreement or the right to enforce said provision(s). Any single or partial exercise of any such right shall not preclude any later exercise of any such right.
This Agreement shall not be subject to early termination without cause. Either party shall have the right to terminate the Agreement if the other party (a) materially breaches the terms set forth in the Agreement, (b) becomes bankrupt or (c) insolvent. Except in the case of bankruptcy or insolvency, the non-breaching party shall provide written notice to the allegedly breaching party specifically describing the facts constituting the material breach and shall allow the allegedly breaching party fifteen (15) business days to cure such breach before such termination shall be deemed rightful. Upon termination of the Agreement, Buyer shall remain liable to Seller for payment of all amounts owed to Seller and shall have no right to set off or otherwise withhold payments for Goods delivered. At Seller’s discretion, Seller may sell Goods subject to the termination to an alternative buyer. In such event, Buyer shall remain liable to Seller for any difference in sale price of the Goods.
- ENTIRE AGREEMENT.
These Terms and Conditions (as they may be amended and posted from time to time), along with any Order Confirmation acknowledged by Seller, constitute the final and complete agreement between the parties as to its subject matter and supersede all prior correspondence, memoranda, or agreements, between the parties. Except as otherwise provided herein, this Agreement may be modified only by a written instrument signed by an authorized representative of each party. In the event of a conflict between this Agreement and any purchase order, code of conduct, or other writing between the parties, this Agreement will prevail. Notwithstanding the foregoing, in no event may any preprinted terms or conditions found on any Buyer purchase order, invoice, or similar form be considered an amendment or modification to this Agreement. Any reference to any Buyer’s terms or other similar document from Buyer is made solely to facilitate identification of goods or services ordered and any additional or different terms stated therein are hereby rejected. Prior course of dealing or usage of trade will not be used to modify, vary, supplement, or explain this Agreement.
Effective Date: January 13, 2022