STANDARD TERMS AND CONDITIONS OF SALE
Unless the parties otherwise agree in writing, the sale of products (the “Transaction”) by George’s, Inc. and/or its subsidiaries and affiliates (collectively “Seller”) to any individual, corporation, partnership and limited liability company or other legal entity (collectively the “Buyer”) are subject to and governed by, to the following terms and conditions (“Standard Terms”).
- Terms. Seller’s agreement to sell the Products to Buyer is conditioned upon the Standard Terms stated herein which shall, together with those terms stated in Seller’s Sales Order Confirmation, constitute the contract for the sale and purchase of the Products (the “Contract”). In the event of a conflict between a Standard Term stated herein and one stated on the Sales Order Confirmation, the latter shall control. Additional or inconsistent terms or conditions set forth in any Purchase order, offer or proposal from Buyer are rejected and shall not be binding upon Seller.
- Orders. Buyer’s failure to cancel the Transaction in writing within 48 hours of receipt of the Sales Order Confirmation shall be deemed contractual assent to the Standard Terms. No order or Transaction may thereafter be modified, changed or cancelled without Seller’s prior written approval.
- Pricing. The Products are sold at the price stated on the Sales Order Confirmation. When pricing is based on a market index, Buyer assumes the risk associated with the methodology, accuracy and volatility of the index. Quoted freight charges for shipments arranged by Seller at Buyer’s request are only binding for shipments completed within 30 days of the date of the Sales Order Confirmation. Invoices for shipments made after that date may include surcharges determined in Seller’s sole discretion related to transportation cost increases between the date of the Sales Order Confirmation and the date of delivery.
- Quantity. Volumes stated in the Sales Order Confirmation shall be treated as the maximum quantity of Products to be sold under the Contract. Seller shall use its best efforts to fill the order quantity in full but in no circumstance will Seller be assessed fees, penalties or charges related to Product fill rates.
- Delivery. Unless stated otherwise in the Sales Order Confirmation, delivery will be FOB Origin (Incoterms 2010) Seller’s shipping point and shipment will be arranged only at the request and at the expense of Buyer. Times given for shipment and/or delivery are approximate only and not essential to the Contract.
- Title and Risk of Loss. Title to and all risk of loss of Products shall pass from Seller to Buyer at the Seller’s shipping point when the Products are released to Buyer or the carrier, whichever occurs first.
- Payment Terms. Payment of each invoice shall be made by Buyer within 7 days of receipt of the Products. Buyer shall pay each invoiced amount in full, without any discount, deduction, setoff or abatement of any kind, and payment shall not be withheld on account of any claim of Buyer against Seller. Seller reserves the right to suspend deliveries where payment for any Product has not been made by the due date. Interest on unpaid invoices shall accrue from the due date at the greater of: (a) 1% per month; or (b) the maximum rate permitted by law.
- Warranties: Buyer’s Remedies. Seller warrants solely to and for the benefit of Buyer that, as of the time of delivery, the Products: (a) shall conform to the description given by Seller (or, to the extent Seller has established a standard specification for such Product, shall conform to Seller’s specification); (b) comply in all material respects with applicable provisions of the Poultry Products Inspection Act, the Federal Meat Inspection Act and/or U.S. Food, Drug and Cosmetic Act, as amended (the “Food Laws”) and equivalent state and local laws; and (c) are not adulterated or misbranded within the meaning of the Food Laws. The foregoing warranties shall not apply to the extent any Product has been (i) modified by Buyer or any third party without Seller’s consent, (ii) misused, (iii) sold or transferred by Buyer to a third party, (iii) damaged from negligent storage or handling of any Product by Buyer, its carriers, distributors, customers or any other third party. If Seller determines that a Product breached any of the above warranties, Seller shall have the option, in its absolute discretion, of refunding the purchase price paid by Buyer, or of replacing the Product or such portion thereof as failed to comply with Seller’s warranties. Such remedies will be Buyer’s sole and exclusive remedies for any breach of Seller’s warranties in relation to any Product. THE ABOVE ARE THE ONLY REPRESENTATIONS AND WARRANTIES GIVEN BY SELLER AND ARE IN PLACE OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE EXTENT PERMITTED UNDER LAW.
- Inspection and Cargo Claims. Buyer shall inspect all Products immediately upon delivery and provide prompt written notice to Seller of box count discrepancies or any claimed damage or loss to Product or packaging in transit including unacceptable temperatures (“Cargo Claims”). Seller must be given an opportunity to inspect any Products for Cargo Claims are made before the Products are returned, cooked, processed, or disposed of by Buyer. Refund requests related to Cargo Claims will be considered by Seller only if presented in writing, with adequate supporting documentation, within twelve (12) hours of Buyer’s receipt of the Products unless the shipment arrives during a weekend in which case Buyer shall have until 12:00 pm on the following Monday to provide notice.
- Short Weights. As to fresh Products sold in combo bins or totes, claims for discrepancies between the actual weight of the Products received and the weight shown on the bill of lading or invoice accompanying such delivery, including differences related to water content, must be substantiated by weights (taken within 8 hours after delivery to Buyer or by 11:00 am on the following Monday for weekend deliveries) of three (or five if the claim is greater than 5%) randomly selected combos or totes.
- DISCLAIMER; LIMIT OF SELLER’S LIABILITY. SELLER’S AGGREGATE LIABILITY TO BUYER (OR OTHERS CLAIMING THROUGH BUYER) ARISING FROM, RELATING TO, OR IN CONNECTION WITH SALES OF ANY PRODUCT TO BUYER WILL NOT EXCEED THE PURCHASE PRICE PAID TO SELLER UNDER THE CONTRACT FOR THE PRODUCTS AT ISSUE. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF GOODS, PRODUCTION DOWNTIME OR CLAIMS MADE BY BUYER OR THIRD PARTIES FOR, AMONG OTHER THINGS, PENALTIES, FINES OR OTHER SIMILAR DAMAGES.
- Time Limit on Claims. No claim, action, suit or proceeding of any kind shall be brought against Seller based on or arising out of an alleged breach of these Terms more than one year following delivery of the Products.
- Taxes. All U.S. federal, state, foreign and local taxes and similar governmental charges (other than general property taxes and income taxes measured by the net income of Seller), now or hereafter imposed directly or indirectly on Seller or required to be collected directly or indirectly by Seller for the manufacture, production, sale, delivery, consumption or use of Products (including, but not by way of limitation, sales, use, purchase, value added, gross income, excise, privilege and license taxes or fees and import and export duties) shall be charged to and remitted by Buyer to Seller.
- Delays; Events Beyond Seller’s Control. Seller shall not in any event be liable for any nonperformance or delay directly or indirectly caused by any factor outside Seller’s control including, but not limited to, war, civic disturbances or riot, industrial dispute or action, action of central or local government, unavailability of materials, governmental restriction on export or import, failure of or shortages of transport, equipment, fuel or power, failure of supplier, carrier or subcontractor to deliver on time, storm or other bad weather, fire, flood, natural disaster, pandemic, epidemic or other health emergency or other act of God. Seller shall give prompt notice of such factor beyond its control to Buyer. If such factor beyond Seller’s control continues to exist beyond ten (10) days after the date fixed for Seller’s performance hereunder, or if the effects of such factor are not capable of being overcome within 10 days, Seller may cancel this Contract without liability upon notice to Buyer unless other arrangements agreeable to both Parties have been negotiated.
- Seller’s Right to Terminate. If Buyer commits any breach of any of the conditions of this Contract, or if Buyer becomes insolvent or generally fails to pay, or admits in writing its inability to pay, debts as they become due or if Buyer applies for, consents to, or acquiesces in the appointment of, a trustee, receiver or other custodian of Buyer or any of it property, or makes a general assignment for the benefit of creditors, or in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for Buyer, or for a substantial part of its property, or if any bankruptcy, reorganization, debt arrangement, or other case or proceeding is commenced in respect of Buyer, then Seller may, without prejudice to any other rights which may have accrued or which may accrue to it, terminate this Contract by notice in writing, defer shipment until the situation is remedied or reclaim Products sold pursuant to invoices not yet paid in full by the Buyer.
- Severability. If any provision of these Terms is determined to be unlawful, invalid or unenforceable, the validity of any other terms or provisions hereof shall not be affected and shall continue to be valid and enforceable to the extent permitted by applicable law.
- Governing Law. These Terms and the Contract of which they form a part shall be governed by and construed in accordance with the laws of the State of Arkansas, without regard to its conflict of laws principles. Seller and Buyer agree to submit to the exclusive jurisdiction of the courts of the State of Arkansas or any federal court with its situs in the State of Arkansas in the event of any dispute relating to the subject matter hereof.