- TERMS OF SALE. These Terms and Conditions of Sale (the “Terms and Conditions”) govern all sales of sugar or other commodities (collectively, the “Product”) whatsoever sold by Peachtree Commodities, LLC (“Seller”) to any Buyer (the “Buyer”). Any terms, conditions or provisions of any purchase order which are inconsistent with the terms and provisions herein are rejected and shall not be binding upon Seller unless said additional terms and conditions are accepted in writing by Seller; provided that any conflict between these Terms and Conditions and provisions of the written contract shall be governed by the contract. No waiver, alteration or modification of the provisions herein shall be binding on the Seller unless agreed to in writing by a duly authorized officer of Seller. The contract for sale of all Product (the “Contract” or “Agreement”) is comprised exclusively of the written contract for purchase, and/or the purchase order, and these Terms and Conditions.
- PRICE. All Products will be invoiced at the price indicated (i) in a mutually-executed contract for Product; (ii) indicated in a confirmed purchase order for Product; or (iii) in accordance with Seller’s current price schedule in effect at the time of order. Prices are exclusive of taxes. All sales, use, excise, and other applicable taxes shall be charged to Buyers and remitted by Buyer to Seller. If Buyer claims exemption from any tax, Buyer shall provide written evidence of exemption and indemnify and hold Seller harmless with respect to any such tax, interest and penalties thereon. All prices are subject to change without notice. If Buyer terminates an order for Product, Seller shall retain any deposit in addition to any other claims that it may have for damages for termination.
- 3. PAYMENT. Unless otherwise agreed by Seller in writing at the time an order is placed, payment for all Product is due prior to shipment. Any credit terms are subject to prior written approval of Seller’s credit department. Payments shall be due and payable in Atlanta, Georgia, U.S.A. in U.S. Dollars. Shipments, deliveries and performance of work shall at all times be subject to the approval of Seller’s credit department. Seller may withhold or delay subsequent Products, or terminate outstanding orders as a result of late payment by Buyer. Buyer shall reimburse Seller for all damages incurred by Seller by reason of such deferment or cancellation. Unless otherwise provided-for in the Contract, ALL INVOICES ARE DUE WITHIN THIRTY (30) DAYS OF THE DATE OF THE INVOICE. Invoices paid more than thirty (30) days after the date of invoicing shall be subject to interest at 1.5% per month. Additionally, invoices not paid within sixty (60) days of the invoice date shall be subject to a 5% late fee in addition to interest accruing thereon.
- SALES TAX. The addition of sales tax to all taxable transactions is expressly provided for. In the event of any audit, any transactions deemed taxable on which sales tax was not originally billed, creates a responsibility on the part of Seller to notify Buyer of such audit determination and an obligation on the part of Buyer to reimburse Seller for sales taxes due. The sales price does not include any sales, use, excise, property or similar taxes which Seller may be required to pay in connection with fulfilling Buyer’s order. The amount of any applicable present or future tax shall be paid by Buyer as an additional charge or, in lieu thereof, the Buyer shall provide the Seller with a tax exemption certificate acceptable to the applicable taxing authority.
- LIENS. In the event any terms are offered by Seller with respect to payment for the Product, Buyer shall not allow or suffer any liens, claims or encumbrances to be placed against the Product. Seller may require Buyer to submit satisfactory evidence of payment in release of all such claims. Buyer shall indemnify and hold harmless Seller from and against all costs whatsoever related to removal of any such liens, claims or encumbrances which may be incurred by Seller.
- LIMITED WARRANTY. Peachtree Commodities, LLC provides a limited warranty on all Product. This warranty applies only to the original Buyer. Seller guarantees that on the delivery date the Product delivered will conform to the quality specifications set forth in the contract for purchase/purchase order. In the event Buyer rejects Product as non-conforming to this warranty, Buyer shall hold such Product until Seller removes the Product or provides Buyer with other reasonable instructions. Seller’s liability under this warranty is limited to either replacing the non-conforming Product or refunding to Buyer the purchase price paid for such Product. Buyer is prohibited from selling rejected Product in a secondary market without Seller’s written consent.
|THE FOREGOING WARRANTY IS LIMITED AND IS IN LIEU OF ANY OTHER WARRANTY, AND SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, WHETHER AS TO MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. NEITHER SELLER NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES FOR ANY REASON OR UNDER ANY THEORY OF LIABILITY WHATSOEVER. Seller does not make any other warranties in respect to this Product, either expressed or implied. If any Product replacement is required because of accident, negligence, misuse, theft, vandalism or other peril; or because of conditions outside of Seller’s specifications, including, but not limited to handling not performed by Seller or by any cause other than normal use, the warranty provided herein shall not apply. PEACHTREE COMMODITIES, LLC SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FOR LOSS, DAMAGE OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM BUYER’S USE OF OR INABILITY TO USE THE PRODUCT, OR FOR PERSONAL INJURY OR LOSS OR DESTRUCTION OF OTHER PROPERTY, OR FROM ANY OTHER CAUSE.Seller does not warrant or provide advice as to the suitability of any Product for Buyer’s application or use. Buyer is solely responsible for determining whether any Product meets Buyer’s needs and for compliance with all applicable laws, ordinances, regulations, rules and standards relating to the use of the Products. Seller is not responsible for any failure of the Product resulting from: (i) any improper use or storage of the Product; (ii) abuse, neglect or improper storage or handling of the Product; or (iii) any use of the Product after the warranty period. This warranty shall be void in the event any purchased Product is not paid for in full within sixty (60) days of delivery of the Product to the customer/Buyer. THE FOREGOING CONSTITUTES THE EXCLUSIVE REMEDY OF BUYER AND THE EXCLUSIVE LIABILITY OF SELLER. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, ORAL OR WRITTEN, EXPRESSED OR IMPLIED. ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS SPECIFICALLY EXCLUDED AND DISCLAIMED AND SHALL NOT APPLY UNDER ANY CIRCUMSTANCES. THE SALE OF SELLER PRODUCTS UNDER ANY OTHER WARRANTY OR GUARANTY IS NOT AUTHORIZED.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, WHETHER ALLEGED AS A RESULT OF BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, WILL SELLER BE RESPONSIBLE TO BUYER OR TO ANY THIRD PARTY, FOR ANY SPECIAL, DIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, CLAIMS OF ANY THIRD PARTY FOR PERSONAL INJURY, REGARDLESS OF FAULT OR CAUSE. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY AMOUNT IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT(S).
- MODIFICATION OF PRODUCT. Any modifications to the Product or any part thereof whatsoever performed or suffered by any party other than Seller, including without limitation by Buyer or any third party on behalf of Buyer, shall void the warranty set forth herein. Buyer shall indemnify and hold harmless the Seller from and against any and all claims for loss, damage or liability related to any modified Product.
- TITLE: Title and risk of loss to Product shall transfer to Buyer upon Seller’s Tender of Delivery. “Tender of Delivery” occurs when possession of Product is taken by Buyer or the freight carrier (which shall be considered to be Buyer’s agent even if freight is arranged by Seller) at the Load Port. The date of the bill of lading shall be considered the date of Tender of Delivery. Buyer has fifteen (15) days following Tender of Delivery within which to inspect the Product and reject same by written notice given to Seller.
- INSURANCE. Seller shall not be required to insure the Product against any liability or contingency. Buyer shall provide all insurance required by Buyer to insure against risks associated with the Product and its transport, including without limitation marine cargo insurance, at Buyer’s sole discretion.
- INDEMNIFICATION. Buyer shall protect, hold harmless and indemnify Seller from and against any and all demands, costs, liens, suits, judgments, penalties and liabilities of every kind arising directly or indirectly, out of or wholly or partially caused by Buyer in connection with or caused by Buyer’s use of the Product, excepting only for liability arising solely from Seller’ sole negligence.
- RESALE. Buyer shall use, store and transport the equipment in a careful manner and in conformity with all applicable laws, ordinances, regulations and requirements and shall take reasonable and proper care thereof except for warranty items referenced herein, if any; and, Seller shall have no liability therefor.
- GOVERNING LAW AND JURISDICTION. These terms and conditions have been entered into and shall be construed and enforced in accordance with the laws of the State of Georgia without reference to the choice of law principles thereof. Venue and jurisdiction for any proceedings arising out of these terms and conditions shall lay exclusively in the state and federal courts of Dekalb County, Georgia and the United States District Court for the Northern District of Georgia.
- ARBITRATION. Provisions herein to the contrary notwithstanding, any dispute or disagreement arising out of or relating to these terms and conditions shall be submitted to binding arbitration by a single arbitrator and shall be conducted pursuant to the provisions of the Federal Arbitration Act, 9 U.S.C. §1, et.seq. in an expeditious manner. The arbitration shall be confidential. Such arbitration shall take place at the American Arbitration Association (“AAA”) office in Atlanta, Georgia or at such other site as may be agreed upon by the parties. The arbitration proceeding shall be conduct in the English language. The award of the arbitrator shall be final and binding on the parties. The arbitrator shall have no authority to add to or to subtract from or modify the Terms and Conditions but shall have the authority to interpret these Terms and Conditions and to assess and award damages to either party. The arbitrator’s initial fee and other common expenses of the arbitration shall be borne equally by the parties, provided that the substantially prevailing party shall be entitled to recover any and all reasonable attorney’s fees and all costs incurred in the arbitration at the discretion of the arbitrator. Judgment upon the award rendered by arbitration may be entered in any court having jurisdiction thereof. Except as specifically provided for herein, the arbitration shall proceed in accordance with the laws of the State of Georgia.
- ATTORNEY’S FEES. If either party commences an action against the other to interpret or enforce this Contract or as a result of a breach by the other party of the Contract, the prevailing party shall be entitled to recover from the non-prevailing party reasonable attorneys’ fees, costs and expenses incurred by the prevailing party in connection with such action.
- RELATIONSHIP OF PARTIES. Neither the sale of any Product by Seller to any Buyer, the acceptance or fulfillment of any purchase order for Product by Seller, nor the existence of this Contract shall constitute or be construed as creating a partnership or joint venture between the Buyer and Seller or any other party.
- NON-CIRCUMVENTION AND NON-DISCLOSURE: The parties accept and agree to the provisions of the International Chamber of Commerce, Geneva, Switzerland for non-circumvention and non-disclosure with regards to all and every one of the parties involved in this transaction and contract, additions, renewals, and third party assignments, with full reciprocation for a period of (3) three years from the date of execution of this contract.
- TIME. Both parties agree that time is of the essence in relation to this contract and shall promptly and efficiently attend to their respective undertakings and responsibilities.
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