By executing Hazelnut Growers of Oregon/WestnutLLC’s (“HGO”) Credit Application and in consideration of HGO agreeing to sell you product on Credit, Customer acknowledges that Customer has read these terms and conditions (the “Terms”) and agrees that the Terms govern any and all transactions between HGO and Customer (collectively “Parties”) including, but not limited to, the sale of any and all products.
1. Exclusive Terms.
The Terms control to the exclusion of any additional or conflicting terms proposed by or received from Customer, unless expressly accepted in writing by HGO. The Uniform Commercial Code’s “battle of the forms” does not apply to the transactions between the Parties.
2. Individual Sales & Purchases.
Upon Customer’s request, HGO may, at its sole discretion, issue a written sales order setting forth additional terms (time, price, quantity, method of shipment and delivery date) upon which HGO agrees to sell a specific allotment of products to Customer (“HGO Sales Order”). HGO is not obligated to issue an HGO Sales Order to Customer nor is Customer obligated to accept an HGO Sales Order. However, an HGO Sales Order becomes binding on Customer when accepted by the Customer. Each HGO Sales Order is governed by, and incorporates, all of the Terms. To the extent any term in an HGO Sales Order is inconsistent with the Terms, the Terms control.By executing an HGO Sales Order, Customer agrees to purchase the types and quantities of products described in an order pursuant to the Terms and any specific terms contained in the order. At its election, Customer may take delivery of the total quantity of the products purchased in lots of minimum sizes or larger as described in the specific terms of the order. HGO is deemed to have satisfied all of its obligations to Customer when the entire quantity of products identified in an HGO Sales Order is made available to Customer for pick up at HGO’s dock at the facility set forth in the order (the “HGO Dock”).
3. Commercial Purpose.
Customer represents that the products purchased from HGO are not for personal, family or household use and that Customer is a merchant with respect to the products purchased from HGO.
4. Prices and Other Charges.
Products will be sold at prices quoted and accepted in the HGO Sales Order (the “Purchase Price”). The Purchase Price is valid only for the period of time specified in the applicable Sales Order. Thereafter, the Purchase Price is subject to change or termination at HGO’s sole discretion and without notice to Customer.Prices are based on delivery to Customer FOB at the HGO Dock, and do not include shipping. Prices quoted by HGO are exclusive of sales, use or excise taxes, and/or other charges required to be paid or collected by HGO by any government authority with respect to the sale or end use of any products sold to Customer. All such charges shall be billed to and paid by Customer in addition to the Purchase Price of the products.
5. Modifications to an HGO Sales Order.
A modification to an HGO Sales Order requested by Customer will be made only upon (i) HGO’s written acceptance of the request, and (ii) Customer’s acceptance of the corresponding adjustment of the Purchase Price on that order to reflect the cost to HGO of the modification, including without limitation the cost of additional Products, restocking fees, or additional handling.
6. Payments and Credit.
Time is of the essence regarding Customer’s payment for the products. Unless otherwise agreed in writing by HGO, Customer will pay HGO the full Purchase Price without set off for delivered products no later than thirty (30) days following delivery at the HGO Dock. Delinquent payments will accrue interest at a rate of 1.5% per month until paid. At HGO’s discretion, any sums received from Customer may first be applied to accrued but unpaid interest owed. Accrued interest is due immediately upon demand by HGO. Customer agrees to pay all costs of collection including attorney’s fees. HGO reserves the right to alter or suspend credit extended to Customer at any time without notice for any reason. Customer authorizes HGO to verify Customer’s credit worthiness at any time through contact with any credit information source or references. Upon termination of credit, Customer agrees to pay for all products in cash or equivalent on delivery. HGO also reserves the right to refuse to deliver an accepted order without receiving full in advance payment if HGO is not satisfied that Customer will make timely payment for the products.If Customer becomes insolvent or if any proceeding is brought by or against Customer under bankruptcy, insolvency, receivership, creditor protection or similar laws, or if Customer ceases to pay its debts as they become due, or is dissolved or goes into liquidation, or decides to take such action, or has its assets attached, then, in addition to its remedies under ORS 72.7020, HGO may immediately cancel all agreements with Customer and any HGO Sales Order then outstanding, whether or not accepted, and shall receive reimbursement for its cancellation charges and costs incurred to date.
Customer acknowledges HGO’s delivery of the product is dependent on harvest, which can fluctuate depending on the weather and other factors. Unless otherwise agreed in writing by HGO, there are no firm delivery dates for the products purchased pursuant to an HGO Sales Order. HGO will make commercially reasonable efforts to deliver the product to Customer after it has been harvested. HGO is deemed to have completed delivery when the entire quantity of products identified in an HGO Sales Order is made available to Customer for pick up at the HGO’s Dock. HGO’s weights and grades govern, unless official weights and grades are available,and Customer pays for the same to be determined. HGO shall not be liable for failure or delay in delivering products to Customer due to any cause beyond its control, including without limitation, acts of God, acts of war, acts of civil or military authority, fires, floods, sabotage, accidents, labor disputes, shortages, third party delays, laws, ordinances, rules and regulations (whether valid or invalid), or inability to obtain products from growers, transportation, or other necessary services.Packaging other than HGO’s standard for the type of product purchased shall be the sole responsibility of and chargeable to Customer. Any such additional costs incurred shall be included on HGO’s invoice to Customer.
Products received and accepted by Customer (or its agent) at the HGO Dock are accepted AS IS, WHERE IS, subject only to the exceptions in this Section and Section 9. Unless Customer notifies HGO in writing of any nonconformity, damage or shortage in the products prior to receiving and accepting the products at HGO Dock, Customer will be deemed to have accepted the products as delivered and without reservation and HGO will be deemed to have fulfilled the HGO Sales Order with conforming products.If prior to receipt and acceptance of the products by Customer (or its agent) at the HGO Dock, Customer notifies HGO in writing of any nonconformity, damage or shortage in the products with specificity and of its intention to reject the products, then HGO shall have the option to promptly inspect or re-inspect such products in place. Customer may not reject or return the products unless (i) HGO has had the opportunity to inspect or re-inspect the products; (ii) such nonconformity in the products are found by HGO to be so substantial as to impair the function of the products; and (iii) HGO agrees in writing to grant a credit for the rejected and returned products. Customer may not reject or return the products on account of nonconformity, damage or shortage in the products caused in whole or in part by actions or omissions of Customer, its agents or third persons.
9. Limited Warranty.
HGO warrants that the products will, as of the date of release to Customer at the HGO Dock (i) meet or exceed all quoted specifications in or attached to this Contract; (ii) comply with, and not be adulterated or misbranded within the meaning of,the Federal Food, Drug and Cosmetic Act,as amended, (“FDCA”), including, without limitation, the Food Additives Amendment as further amended, and also comply with, and not be adulterated or misbranded within the meaning of, any state’s food and drug law; (iii) not be articles that may not be introduced into interstate commerce pursuant to Sections 404 or 505 of the FDCA, the Federal Hazardous Substances Act, or otherwise, and Proposition 65 Standards if sold in California; and (iv) comply with all other applicable federal, state and local laws, rules and regulations (“HGO’s Warranty”). Except as specifically stated herein, HGO MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS AND TO THE FULL EXTENT ALLOWED BY LAW DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR OTHERWISE. Subject to the limitation of the amount of liability below, HGO’S SOLE OBLIGATION UNDER HGO’S WARRANTY SHALL BE TO REPLACE NONCONFORMING PRODUCTS WITH CONFORMING PRODUCTS AS SOON AS AVAILABLE.
10. Limitation of Liability
HGO’S LIABILITY ON ANY CLAIM OF ANY KIND (INCLUDING NEGLIGENCE) FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS CONTRACT, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE PRODUCTS PROVIDED HEREUNDER, SHALL NOT EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC PRODUCTS WHICH GIVES RISE TO THE CLAIM. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY OR TORT (INCLUDING NEGLIGENCE), SHALL HGO BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO (i) LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCTS, LOSS OR DAMAGE TO BUYER’S PROPERTY, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, DOWN-TIME COSTS, OR CLAIMS OF BUYER’S CUSTOMERS FOR SUCH DAMAGES; OR (ii) EITHER CRIMINAL OR CIVIL LIABILITY ARISING FROM OR RELATED TO USE OR APPLICATION OF THE PRODUCTS, INCLUDING WITHOUT LIMITATION LIABILITY UNDER ENVIRONMENTAL LAWS. For this purpose, “ENVIRONMENTAL LAWS” means any local, state, federal, tribal, national, international, foreign, or other laws, statutes,rules or regulations defining, restricting, limiting, prohibiting, regulating or otherwise affecting discharges, emissions, disposals or releases into the interior or exterior environment of any element, substance, compound, mixture, hazardous waste, hazardous substance, or any other solid, liquid, biological or gaseous materials.
11. Time Restriction On Claims.
ANY CLAIM AGAINST HGO MUST BE MADE WITHIN THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE PRODUCTS AT THE HGO DOCK, SUBJECT TO RESOLUTION OF ANY THEN OUTSTANDING CLAIMS. ANY CLAIM MADE OR ASSERTED AFTER THE AFOREMENTIONED 30 DAYS WILL BE DEEMED UNTIMELY AND IS BARRED.
12. Risk of Loss.
Unless otherwise agreed in writing by the Parties, all risk of loss or damage, and title, to the Products pass to the Customer upon receipt by the truck driver accepting delivery of the Products at the HGO Dock.
Customer agrees to pay to HGO as minimum damages for failing to timely and properly take delivery of products under an HGO Sales Order the difference between the Purchase Price and the highest market price at HGO’s facility for the same kind and grade of products on the day of such default. Customer is also liable to HGO for all damages available at law or in equity caused by or resulting from Customer’s default of the Terms or Customer’s obligations under an HGO Sales Order.Customer agrees to pay all costs incurred by HGO as a result of any breach by Customer, including reasonable attorneys’ fees, collection agency fees and its costs and expenses (whether in negotiation, mediation, arbitration, on appeal, or in any bankruptcy or similar action).
Customer will indemnify and agree to defend and hold HGO harmless for, from, and against any and all liability, penalties, fines, forfeitures, losses, damages, costs and expenses, claims for attorney’s fees, demands, causes of action, claims, judgments, or appeals arising from any bodily injury to or death of any person or persons or any damage to any property (collectively the “Claim”), to the extent the Claim arises or results from any negligent act; neglect; recklessness; fault;intentional or willful misconduct;omission; failure to comply with applicable laws, rules, or regulations; or breach of the Terms or an HGO Sales Order by Customer or any of Customers, employees, or agents.The indemnification provided herein shall be and remain in effect after the Parties’ relationship terminates. Customer further agrees to defend, indemnify and hold HGO harmless regarding a claim asserted against HGO by a third party to the extent that claim is based on, regarding, or related to the HGO product purchased by Customer or a transaction between Customer and HGO.
15. Liens and Security Interest.
HGO agrees that on the delivery date, the Products will be free of liens and encumbrances with the exception of those liens which HGO may assert for Products sold or services provided under this Contract.To secure the payment and performance of all of Customer’s obligations to HGO, Customer grants HGO a purchase money security interest in all products Customer purchases from HGO. To further secure the payment and performance of all of Customer’s obligations to HGO, Customer grants HGO a security interest in all of Customer’s tangible and intangible property including, but not limited to, equipment and accounts receivable. Customer, as the debtor, authorizes HGO to take any action, including the filing of a financing statements or further instruments that may be reasonably required by the HGO to perfect the security interests granted by this provision. Customer will assist HGO in taking any other necessary action to perfect and protect HGO’s security interest.
16. Governing Law/Venue.
Any dispute regarding the Terms or an HGO Sales Order shall be governed by and construed in accordance with the laws of the state of Oregon. The Parties agree that the sole and exclusive venue for any such dispute will be Multnomah County Circuit Court, and expressly agree to submit to personal jurisdiction of that court and waive any objections thereto. 17.Termination. Either party may terminate its relationship with the other party upon 3 days written notice. Notwithstanding such notice, the Terms (and the terms in an HGO Sales Order) survive and apply to any HGO Sales Order executed by Customer prior to the effective date of termination.
Either party may terminate its relationship with the other party upon 3 days written notice. Notwithstanding such notice, the Terms (and the terms in an HGO Sales Order) survive and apply to any HGO Sales Order executed by Customer prior to the effective date of termination.
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