This document (“Agreement”) sets forth the rights and obligations of the parties involved in any commercial transaction whereby products or services (“Merchandise”) are provided and/or invoiced by Nutrin Corporation, Nutrin Distribution Company, or Peanut Import and Distribution Company, hereunder referred to as the Seller. The Seller is equivalently referred to in this document as “Nutrin”, “Our”, or “We.”
1. Acceptance and Binding Terms
This Agreement includes the terms of any commercial transaction reduced to writing in the form of an order confirmation (“Confirmation”), which shall be governed exclusively by these terms and conditions of sale, which shall constitute the entire agreement (Agreement) and which shall apply to all documents and exhibits attached to said Confirmation, and all other terms Incorporated by reference herein. If no objection is made immediately, this Agreement constitutes the final, binding, complete and exclusive expression of the understanding between the parties, and may not be modified or rescinded except by a written instrument issued by Nutrin as set forth at the end of this Agreement. Nutrin hereby expressly objects to and rejects all other terms and conditions, including those which may appear in buyer’s confirmation, on buyers website, or in other writing, of whatever kind inconsistent with (or which, if not inconsistent with, could add additional terms to) the terms of this Agreement. If the parties have otherwise completed a signed, written contract, the parties agree that the terms of said contract shall supersede and take precedence over the terms and conditions in this Agreement, whenever the terms of said contract are not consistent with this Agreement. However, all other terms and conditions expressed in this Agreement not inconsistent with the terms of the written contract shall remain in force, and the combination of the written contract, together with the terms of this Agreement which are not inconsistent with the written contract, shall constitute the entire and only agreement between the parties. The following order of Precedence in the interpretation here of or resolution of such a conflict here under shall prevail (a) the Contract or Confirmation, (b) these terms and conditions of sale, and (c) the applicable trading rules of the American Peanut Shellers Association.
2. Payment Terms
The price of the Merchandise shall appear on the commercial invoice, and it shall be paid for in accordance with the terms which appear on the commercial invoice. If payments become past due, any amount past due will be subject to interest, and the parties agree that the interest rate will be set equal to the maximum lawful interest rate. If at any time, in Our opinión and at Our sole discretion, the buyer's credit or financial responsibility becomes unsatisfactory, We may require cash payment in advance of shipment, or cash on delivery of the Merchandise. For the purposes of this Agreement, authentic bankers draft, or authentic certified cheque, may at Our sole discretion be deemed an acceptable substitute for cash, it being understood that buyer authorizes Nutrin to contact the financial institution of the Buyer in order to verify the authenticity of the draft or cheque.
3. Buyers responsibility for price increases
In addition to the price set forth in the Confirmation, buyer shall be required to pay any and all of the following charges, as applicable (a) any federal, state, provincial or local government tax, public charge, duty, fee, penalty, assessment, levy, excise, tariff and any and all other increases assessed on or imposed upon this transaction or the Merchandise, (b) any charge arising from a lawful change in the customs duty or tax respecting the Merchandise, said change taking effect after the date of the Confirmation, (c) any fuel surcharge we may incur in the transportation of the Merchandise (d) any applicable increase in the freight charges, regardless of whether the Merchandise is transported by truck, rail, steamship or aircraft, (e) any similar charge we may be obligated to pay with respect to the production, storage, withdrawal, purchase, sale, transportation, exportation or importation of the Merchandise. For the avoidance of doubt, any and all risks of importing Merchandise into the destination country are for the buyer's account.
4. Force Majeure
Nutrin shall not be liable for delay in performance or failure to perform when such delay or failure is due to unforeseen cause beyond Our reasonable control and without Our fault or negligence, including but not limited to acts of God or the Public Enemy, governmental action of whatever variety, fire, , floods, earthquakes, epidemics, quarantine restrictions, labor difficulties, riots, insurrections, freight embargoes, processing plant breakdown, truck or railcar shortages and/or unusually severe weather.
Not later than the date the Merchandise shipped from Our warehouse, We shall make available to the buyer a Certificate of Analysis showing that We have tested, or had tested by a third party, the Merchandise for quality and wholesomeness, and the results of those tests. We will make available, at buyers written request, the documentation showing that all food-safety related tests shown on the Certificate of Analysis were performed by an independent laboratory of good repute. Such certificates shall be considered final and binding on the parties.
6. Risk of Loss / Quantity
Unless otherwise specified by Nutrin, the Merchandise shall be delivered on an ex-works basis, at a point specified by Us, and buyer agrees that the passage of title and risk of loss shall occur when the Merchandise leave Our premises or the premises of Our designated warehouse regardless of the means by which the Merchandise is transported. Accordingly, in the event of loss or damage to the Merchandise while in transit, buyer will file its own claim with the carrier or the insurance company. For sales made on a delivered basis, no allowance for shortage or damage shall be made unless buyer provides Us with written acknowledgement from the carrier that the loss occurred in transit. Nutrin’s weights are to govern any dispute or settlement thereof.
7. Warranties Express or Implied
Nutrin warrants that, upon shipment of the Merchandise, it (a) meets our specifications as set forth or referred to in this Agreement, and (b) is not adulterated or misbranded within the meeting of the Food Drug and Cosmetics Act of the United States, as amended. Except As specifically provided in this Agreement, Nutrin disclaims all warranties, whether express, implied, or statutory as to any Merchandise delivered or services rendered in connection with this Agreement, including the warranties of merchantability and fitness for a particular purpose. It is expressly understood that the Merchandise covered by this Agreement is to be further processed, sterilized, repackaged and labeled by the buyer as necessary to make the finished product meet standards suitable and safe for sale to consumers.
8. Exclusive Remedies
Should Nutrin repudiate this Agreement or fail to make delivery hereunder, buyer shall have as its exclusive remedy, damages measured by the difference between the contract price and the lowest market price of the Merchandise between the time when buyer learned of our breach or repudiation and the time at which replacement Merchandise are purchased by buyer or judgment against Nutrin is obtained. Notwithstanding the foregoing, nothing in this Agreement shall restrict or limit buyers general obligation at law to mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this clause. Any claims by buyer in connection with the quality of the Merchandise shall be filed in writing by letter directed to Nutrin’s office at the address shown on the commercial invoice at the earlier of 20 calendar days from arrival of the Merchandise at the delivery point specified in this Agreement, or within 10 days after learning of a defect in the Merchandise, but in any event not later than 20 calendar days from arrival of the Merchandise at the delivery point specified in this Agreement. After this period, buyer shall be barred from any and all claims or rights based upon the quality of the Merchandise. The letter shall clearly state the nature of the quality defect detected and give evidence of the same. Failure to assert any such claim within the applicable 20 calendar day period shall constitute a waiver of, and a renunciation to any right to, any such claim. Nutrin shall not be liable to buyer except as expressly provided for in this Agreement. Under no circumstances shall Nutrin be liable, directly or indirectly, in contract tort, liability or otherwise, for any punitive, incidental, indirect, special, exemplary or consequential damages arising out of or related to this Agreement, however it may have been caused, including but not limited to any losses in the nature of loss or anticipated loss of profit, loss or anticipated loss of use or delay of production, loss or anticipated of loss of business opportunity, loss of reputation, and business interruption losses.
9. Buyer Default / Seller’s Remedies
The occurrence of any of the following events shall constitute a default by buyer and a breach of this Agreement between the parties (a) failure by buyer to perform any of its obligations specified in this Agreement, including but not limited to the obligation to accept, and pay for, any installment of Merchandise delivered or to be delivered (b) buyer generally not being able to pay its debts as they become due, buyer admitting in writing its inability to pay its debts, by you're making an assignment for the benefit of creditors, the commencement of any case, proceeding, or other action, whether by buyer or any other person or entity, seeking to have an order for Relief entered on its behalf or against it as debtor or to adjudicate it bankrupt or insolvent, we're seeking reorganization, Arrangements, adjustment, liquidation, dissolution or composition of it or irin’s failure to cancel other contractsts debt under any law relating to bankruptcy, insolvency, reorganization, or relief of deckers or seeking appointment of a receiver, trustee, custodian, or other similar official for it or for all or any substantial part of its property, or buyer taking any of the actions set forth in this subparagraph, © buyers Financial condition is found to be or becomes unsatisfactory in Nutrin’s opinión, (d) The issuance of execution process against any property of fire or any kind of nation, left, for, or which or, and (e) default by buyer under any other contractual undertaking between the parties. In the event of a default Nutrin make cancel this Agreement and all other contracts covering purchase by buyer of Nutrins products, whether or not by armee Otherwise be in default they're under, and May, ifbuyer defaults as to the payment of any amounts owing under this Agreement, declare all amounts showing under this Agreement and any other Agreement between the parties, including, without limitation subsequently maturing installments, immediately due and payable to Nutrin on account of any such cancellation, nor shall Nutrin’s failure to cancel other contracts with buyer or to accelerate subsequently maturing installments be construed as a waiver of any subsequent default of buyer. Under no circumstances shall Nutrin be required to Tender of all or any portion of the Merchandise in order to qualify buyers event of default as a breach of this Agreement.
10. Governing Law / Forum
This Agreement will be construed in all respects according to the laws of the State of Delaware, without regard to its conflict of laws rules. Exclusive jurisdiction for litigation of any dispute, controversy, or claim arising out of or in connection with this Agreement or breach thereof, shall be resolved exclusively in federals or state courts with competent jurisdiction located in the state of Delaware. The prevailing party shall be entitled to recover reasonable legal fees and other costs and expenses incurred in resolving any such dispute. Any action on behalf of buyer for breach of this Agreement must be initiated within one year after the cause of action has first been documented or first occurred.
Except as otherwise specified in this Agreement, this Agreement shall be subject to the relevant trade rules of the American Peanut Shellers Association that are in effect at the date of issuance of the Confirmation.
12. No Right to Change
No agent, broker, employee or representative is authorized to act on behalf of, or sign for, Nutrin, nor to change or alter this Agreement in any way, unless duly authorized to do so by a duly notarized and authenticated Resolution issued by the Board of Directors of Nutrin expressly and specifically authorizing such changes.
13. Final Dispositions
Nutrin’s failure to insist on full performance of any item or condition of this Agreement or our waiver of any breach hereunder shall not be considered waiver of that term or condition in the future or any other terms conditions or rights we have under this Agreement. Buyer shall not assign this Agreement or any right or interest herein to any third party, nor may buyer delegate any of its duty or any of its obligations contained in this Agreement to any third party without the express written consent of Nutrin. The invalidity or unenforceability of any particular provisions of this Agreement shall not affect its remaining provisions, and this Agreement shall be construed in all respects as if such an invalid or unenforceable provision had been omitted, however, in any such event, we shall have the option to cancel any unshipped portion of the Merchandise sold under the terms of this Agreement without liability.
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