These Terms & Conditions of Sale govern the sale of goods and/or services (a “Product” or collectively, the “Products”) by Biofac Crop Care, Inc. (“BCC”) to the Customer indicated in this invoice and are an integral part of the Invoice (collectively, the “Invoice”). IF CUSTOMER DOES NOT ACCEPT THE PRODUCTS ON THESE TERMS, THE PRODUCTS MUST BE RETURNED IMMEDIATELY.
DELIVERY; PAYMENT; CREDIT
- We will deliver Products to you (and title and risk of loss shall pass) as set forth in the applicable Invoice. Our prices are exclusive of shipping and sales, use and other taxes. You promise to pay us all amounts due under each Invoice, these Terms & Conditions and each Related Document. We will apply your payments and credits to fees and costs, finance charges, and other amounts you owe in our discretion, subject to applicable law.
- We may in our sole discretion assign you a maximum credit amount (“Credit Limit”). You agree to sign any other documents or consent forms necessary for us to obtain credit reports or financial information about you. Except as otherwise required by law, we may reduce the Credit Limit and/or withdraw credit at any time in our sole discretion without prior notice for any reason including if you do not make payment when due, approach or exceed any Credit Limit, or if we in good faith determine that we are insecure or that you may not be able to perform your obligations. In that event, we may refuse to sell or deliver additional Products or suspend our performance until you deliver to us adequate financial assurance (“Financial Assurance”), which may include advance cash payment, a security agreement granting us a lien on your assets, an unconditional guaranty from a person or entity we determine in our sole discretion to be creditworthy, or a letter of credit from a nationally recognized financial institution. The Invoice, Financial Assurance documents, and any other documents we require are collectively referred to as the “Related Documents.” We may delay or stop deliveries or performance until you have executed any Related Document(s) that we request.
- BCC will apply payments and credits to fees and costs, finance charges, and other amounts Customer owes in BCC’s discretion, subject to applicable law. If Customer fails to pay BCC amounts due under this Invoice within 30 days after the Net Due Date specified in the Invoice, BCC may without notice, set off and recoup any amounts BCC or its related persons (regardless of whether such amounts are matured, liquidated or arising in connection with any other obligations). Customer will reimburse BCC for reasonable costs and expenses BCC incurs to collect this Invoice (including reasonable attorneys’ fees, court costs and other costs of collection, whether incurred before, during or after litigation or bankruptcy proceedings, and collection agency fees). BCC’s rights and remedies are cumulative and non-exclusive.
CUSTOMER OBLIGATIONS
Customer represents and agrees that (a) it will load, handle, store, sell, transport, use and/or dispose of Products in compliance with all applicable federal, state, local and other laws and regulations, and in compliance with any applicable product specification sheet or similar document; (b) all transactions under this Invoice and Related Documents are for business and commercial purposes (not for personal, family or household purposes); (c) the individual entering into these Terms & Conditions and each Related Document has full authority to do so on your behalf and to provide information to us, and these Terms & Conditions and each Related Document is a legal, valid, binding and enforceable obligation against you; (d) it is familiar with the characteristics, qualities and uses of any Products covered by this Invoice and it is not relying on BCC to select the Product suitable for any particular purpose or to achieve a particular result; (e) it is not relying on any representation, statement or promise from us except as expressly stated herein and the Related Documents; (f) it assumes all risk and liability for the use of Products, whether alone or in combination with other materials; and (g) it carries and will maintain insurance appropriate for its business. Customer is responsible for all financial and other obligations to us under this Invoice and each Related Document. Customer will pay all taxes, excises, fees, or charges with respect to the purchase and sale of the Products
LIMITED WARRANTY; LIMITATION OF REMEDIES
We only warrant that when delivered, (a) goods we manufacture will conform in material respects to our applicable product specification sheet, subject to industry recognized tolerances, and (b) services (which may include recommendations or advice) we provide will conform in material respects to generally accepted practices for the industry. HOWEVER, YOU ARE RESPONSIBLE FOR DECIDING IN YOUR OWN DISCRETION WHETHER TO ACCEPT AND/OR IMPLEMENT OUR RECOMMENDATIONS OR ADVICE, AND YOU ACCEPT ALL RISK AND LIABILITY FROM ACCEPTING, REJECTING, AND/OR IMPLEMENTING ANY RECOMMENDATION OR ADVICE WE PROVIDE EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, ALL GOODS AND SERVICES ARE SOLD “AS IS, WHERE IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND; AND WE DISCLAIM ALL OTHER EXPRESS AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SAFETY OR INFRINGEMENT, ANY WARRANTY THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE, AND ANY WARRANTY REGARDING THE USE OR RESULTS FROM USING OUR GOODS OR SERVICES. BCC provides no representation or warranty whatsoever about goods manufactured or services provided by others and the Customer agrees to look solely to the manufacturer or service provider for anay remedy or liability in relation to such goods or services. BCC does not represent or warrant the existence or scope of any other manufacturer’s or service provider’s warranty. BCC may measure, sample and test Product at the loading location to determine the quantity and quality of Product delivered and unless there is obvious error the results will be treated as conclusive and binding as to the quantity and quality of Product loaded. If goods BCC manufactures or services BCC provides do not conform to this limited warranty, Customer’s exclusive remedy is to receive a refund of the purchase price, or to receive a replacement of the nonconforming goods or services, whichever BCC selects in its sole discretion. THIS IS CUSTOMER’S SOLE REMEDY AND APPLIES EVEN IF IT FAILS OF ITS ESSENTIAL PURPOSE. BCC’s limited warranty is subject to the following conditions: (i) Customer must submit a warranty claim to us in writing within 30 days after the date you knew or could reasonably have determined that the applicable goods or services did not conform to the limited warranty, (ii) Customer must preserve and make available to BCC for inspection all physical and documentary evidence supporting Customer’s warranty claim, (iii) Customer must have paid for the goods or services in full, and (iv) Customer must have complied with Section 1(a) above. When freight is arranged by Customer, title and risk of los pass upon completion of loading the truck, trailer or other vehicle provided by Customer if loading occurs at a location not on a BCC premises, or upon customer leaving BCC’s gate if loading occurs on BCC’s premises. For truck deliveries, title and risk of loss pass at the FOB point at BCC’s terminal, warehouse or other facility.
LIMITATION OF LIABILITY
Neither BCC and its related persons nor Customer will be liable for (a) special, indirect, incidental, consequential, punitive or exemplary damages; (b) compensation, reimbursement or damages to cover or to obtain substitute performance, for business interruption, or because of any loss of anticipated business, sales or profit or prospective profits, or crop or property loss or damage; or (c) expenditures, investments, leases, property improvements or other matters related to business or goodwill. TO THE GREATEST EXTENT PERMITTED BY LAW, OUR AND OUR RELATED PERSONS’ AGGREGATE LIABILITY ARISING OUT OF THIS INVOICE AND EACH RELATED DOCUMENT FOR GOODS OR SERVICES SHALL NOT EXCEED THE PURCHASE PRICE YOU PAID FOR THE SPECIFIC GOOD OR SERVICE GIVING RISE TO THE CLAIM. THIS SECTION: (1) REFLECTS AN ALLOCATION OF RISK BETWEEN YOU AND US; AND (2) APPLIES EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES DESCRIBED IN CLAUSES (a), (b) AND (c) OF THIS SECTION 4, AND REGARDLESS OF WHETHER THE CLAIM OR DAMAGES ARE BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. IF THIS LIMITATION OF LIABILITY IS UNENFORCEABLE OR FAILS OF ITS ESSENTIAL PURPOSE, OUR SOLE LIABILITY FOR SUCH DAMAGES SHALL NOT EXCEED $25,000 (USD). BCC’s “related persons” are its affiliates (which are entities controlled by us, under common control with us, or controlling us), and BCC’s and its affiliates’ shareholders, officers, directors, employees, agents and representatives; but in all events exclude Customer (regardless of Customer’s relationship to BCC). Customer agrees that the limitations of this Section apply to any other person or entity that acquires, uses or is involved with Products purchased by the Customer.
IDEMNITY
Customer agrees to defend, protect, indemnify and hold harmless BCC and its related persons from any loss, liability, damage, penalty, or expense (including attorneys’ fees, settlement payments and costs to pursue insurance benefits) BCC or its related persons incur directly or indirectly relating to or resulting from any claim, allegation, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise, that BCC, Customer or any third party assert in any way directly or indirectly related to, resulting from or caused by your breach or failure to comply with these Terms & Conditions.
ENTIRE AGREEMENT
This Invoice (and the Related Documents) prevails over any terms or conditions in any of Customer’s documentation including, without limitation, Customer’s purchase order, general terms and conditions or any other document Customer issues in connection with any purchase of Products, regardless whether or when submitted. BCC’s fulfillment of Customer’s order does not constitute BCC’s acceptance or Customer’s terms and conditions (all of which are hereby rejected) and does not modify or amend this Invoice. If Customer is approved by BCC to purchase Products on credit, the terms and conditions of the credit sale control in the event of any conflict with these Terms & Conditions.
JURY WAIVER; GOVERNING LAW
This Invoice will be governed by Texas law without regard to its conflict of laws provisions. TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, YOU AND WE WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS INVOICE AND ANY RELATED AGREEMENT, AND THE OBLIGATIONS AND TRANSACTIONS ARISING UNDER OR CONNECTED TO THEM. YOU AND WE EACH REPRESENT TO THE OTHER THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
MISCELLANEOUS
The invoice is binding upon and will enure to the benefit of the Customer and BCC and their respective successors and permitted assigns. A waiver by BCC of any provision of this Invoice shall not prejudice or constitute a waiver of BCC’s right otherwise to demand strict compliance with that provision or any other provision of this Invoice. Time is of the essence of this Invoice.