Terms and Conditions
Food Ingredients USA, Inc. Food Ingredients USA, Inc. (“FI-USA”) shall not be responsible for any delay or non-delivery of any products or merchandise (“Products”) sold by FI-USA to a customer caused by any events beyond the control of FI-USA, including, but not limited to, floods, strikes, riots, embargos, fire, thefts, war, weather conditions, loss at sea and force majeure. In addition, if the Products are imported, performance on the part of FI-USA is subject to the actual receipt of said Products by FI-USA. In the event Products imported by FI-USA are not received by FI-USA, then upon agreement with the customer, FI-USA shall make reasonable efforts to obtain reasonable comparable substitute Products for the customer and any increase in the cost of such substituted Products incurred by FI-USA shall be added to the purchase price set forth in the applicable purchase order contract, or FI-USA invoice, previously agreed to by FI-USA (collectively a “Contract”). In the event FI-USA is not able to obtain a substitution in a reasonable time, as determined by FI-USA, or if the customer does not agree to the substitution, any and all obligations of FI-USA, with respect to the undeliverable Products, shall terminate and FI-USA shall have no further obligation or liability to customer, except to refund purchase price for the undeliverable Products, to the extent previously paid. FI-USA shall not be liable for any claims by the customer or anyone else for any event or condition that occurs because of any event, action or inaction after the Time of Delivery (as defined below) including without limitation if the Products have been processed, tampered with, or otherwise modified or changed from their condition at the Time of Delivery. “Time of Delivery” shall mean with regard to Products imported into the United States, the specific date that FI-USA has advised the customer by email or telefax that the Product has passed U.S. Customs and is available on that date to the customer at an agreed upon place of delivery (or such place as specified in Paragraphs 12 and 14, below), and with regard to Products exported to other countries, the specific date that FI-USA has advised the customer by email or telefax that the Product has passed applicable customs and other applicable requirements of such other country and is available on that date to the customer at the agreed upon place of delivery (or such place as specified in Paragraphs 12 and 14, below). A customer must make any and all claims regarding the quality, defects, condition and specifications of Products within 20 days after the Time of Delivery. Any and all such claims must be submitted in writing and sent to FI-USA by a nationally recognized reliable next business day courier to FI-USA, attention “Quality Control” and received by FI-USA within such 20 day period, and the claim must include a detailed description of the factual evidence regarding the deficient product quality, condition, specifications or other defect and explain in detail to the reasonable satisfaction of FI-USA the manner in which the product was stored, used and handled (including whether the container was opened) after the Time of Delivery . No claims will be processed or accepted after the expiration of the 20 day period. Under no circumstances shall FI-USA be liable for any special, consequential, or incidental damages, whether statutory or otherwise, or for a customer’s loss of profit or opportunity to be realized by resale of a Product in raw or converted state, use or otherwise. FI-USA’s liability for damages shall further be limited to the purchase price of the particular Product paid by the customer. The delivery of the Products by FI-USA is subject to the Products being released and passing inspection by the United States Food and Drug Administration and all other governments and all applicable governmental agencies, departments and bureau’s having jurisdiction over the Products. In the event that Products or any part thereof are detained at the port of entry or at origin by U.S. Customs or any other government, or governmental department, bureau or agency, or are not released for entry or export for any reason whatsoever within a reasonable time as determined by FI-USA, then FI-USA may cancel delivery and FI-USA shall have no liability to the customer for the delivery of the Products or otherwise and FI-USA shall not be required to replace the Products so detained or not released for entry or export, and the Contract with respect to the detained and unreleased Products, at FI-USA’s option, shall then become void and FI-USA shall be released from any and all responsibility, obligation and liability except to refund to the customer the portion of the purchase price, if previously paid, that relates to such detained and unreleased Products. The customer accepts full responsibility for all changes in the condition of the Products after the Time of Delivery. The specifications of each batch of Product are set forth in the certificate of analysis from FI-USA’s producer of the Product and based on the specifications agreed upon by FI-USA and the customer, and are subject to a number of factors, including crop and weather conditions. Accordingly, the customer agrees to accept reasonable variations in the specifications of each batch compared to the agreed upon specifications. The nutritional information for a Product is derived from an actual analysis of a limited sample of the Product, which FI-USA obtains from time time-to-time. The nutritional information for a specific batch of the Product may therefore not be identical to that as set forth in the analysis. The purchase price set forth in the Contract for a particular Product is based on the International Commercial Terms published by the International Chamber of Commerce on January 1, 2011 (“INCO Terms”) upon the then applicable, duties, surcharges, taxes, fees, charges and levies of any kind, including U.S. import tax, U.S. customs (collectively “Taxes”) imposed by any country, government body, governmental authority, department agency, subdivision or bureau (collectively “Government”), whether import, export, discriminatory or otherwise, which FI-USA is aware at the time of the Contract, and which FI-USA believes affects a particular Product. Should any increase in Taxes or new Taxes be subsequently imposed, increased or become effective, they shall automatically be added to and become part of the purchase price as set forth in the Contract and shall be paid by the customer to FI-USA upon request. The purchase price stated in the Contract is based upon the then present ocean and inland shipping, freight and insurance rates for all insurance (including war risk insurance) and charges as of the Contract, and any increase in those changes shall automatically be added to and become part of the purchase price as set forth in the Contract for each particular affected Product. The purchase price stated in the Contract is based upon FI-USA’s then cost of raw materials. Increases in FI-USA’s cost of raw material after the date of the Contract shall automatically be added to and become part of the purchase price as set forth in the Contract and the customer shall promptly pay to FI-USA any such increases as an increased purchase price no later than fifteen (15) days after the request. The terms of delivery, such “FOB”, “CIF”, etc., shall be specified in the Contract. The meaning of these terms (including the payment of shipping charges and expenses and the risk of loss and damage) shall be as set forth in the INCO Terms. All such applicable charges based on the delivery method set forth in the Contract shall be charged to the account of the customer and paid by the customer no more than fifteen (15) days after written (including email request) from FI-USA. Title and risk of loss to Products imported into the United States shall be deemed to pass to customer at the Time of Delivery. Customer shall be solely responsible for proper care; handling and transportation of Products at and after such notification risk of loss to Products imported into the United States shall be deemed to pass to customer at the Time of Delivery. Customer shall be solely responsible for proper care, handling and transportation of Products at and after such notification, unless INCO Terms specify otherwise based on the method of delivery agreed upon by the parties in the Contract. FI-USA may in its discretion from time to time alter, suspend or revoke any credit terms extended to a customer for any reason and thereupon require cash payment or additional security for all or any part of the purchase price without affecting customer’s obligations to accept and pay for Products pursuant to the Contract. If customer becomes insolvent, is subject to a bankruptcy filing or if FI-USA determines that its financial condition has deteriorated, or if FI-USA determines that the customer has defaulted or is likely to default under the Contract, FI-USA at FI-USA’s option, may defer delivery of any Product orders until such event, condition or default is cured as determined by FI-USA, or FI-USA may treat any such event or condition as a breach by customer of the Contract, and thereupon FI-USA may resell the undelivered balance of the Products under the Contract and hold customer liable for any and all damages, expenses and losses associated with such breach of the Contract, and customer shall be responsible for the payment of any and all expenses (including attorney’s fees), damages and losses incurred by FI-USA, including FI-USA’s costs of collection, and attorney’s fees incurred in the collection process and any proceeding to enforce or investigate a breach of the Contract. Should the customer fail to provide shipping instructions within the delivery period specified in the Contract, FI-USA may at its option: cancel the Contract, deliver the Products to the customer at customer’s place of business as stated in the Contract, or sell the Products in the open market, crediting or debiting customer with the difference between net price thus realized and price set forth in the Contract. If delivery by a particular carrier is not specified in the Contract or the customer does not provide to FI-USA in a timely manner the information that FI-USA requires regarding the particular carrier selected by the customer, then FI-USA may select and ship the Product by any carrier reasonably selected by FI-USA and delivery of the Products to such carrier shall constitute delivery to the customer and all costs, expenses and risk of loss and damages shall be based on the method of delivery set forth by the parties in the Contract in accordance with INCO Terms. The Contract shall be construed according to and governed by the laws of the State of New York. If any term, provision of condition or any part of the Contract is held invalid or inapplicable, the remaining terms and conditions of the Contract shall not be affected thereby. No promises, terms, conditions, obligations or representations and NO WARRANTIES, EXPRESS OR IMPLIED INCLUDING WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, shall apply unless explicitly stated in the Contract. The written waiver of any right by FI-USA shall not constitute a waiver of any subsequent obligation of the customer. Any controversy or claim relating to the Contract or breach thereof, including a broker’s or agent’s claim for commission, shall at the election of FI-USA be settled by arbitration in Buffalo, New York in accordance with the American Arbitration Association and its rules, and judgment may be entered upon award. In the case of arbitration, each party to the Contract shall be deemed to have consented that any papers, notice or process necessary or proper for the institution or continuation of an arbitration proceeding or for the confirmation of an award and entry of judgment on an award made thereunder, including appeals in connection therewith, may be served upon such party (a) by reliable next business day delivery service to such party’s last known address or (b) by personal service, within or without the State wherein the proceeding is to be held, or within or without the limits of the jurisdiction of the Court having jurisdiction (whether such party be within or without the United States of America) or (c) where a party to a controversy is not located in the United States of America, by reliable next business day delivery service or personal service as provided in (a) and (b) hereof, upon a customer’s agent or broker through whom the Contract is made, or who is specified in the Contract.