TERMS AND CONDITIONS OF SALE
Terms of Sale
The sale of goods by Herradura is subject to the terms and conditions contained herein. “Herradura” shall mean Herradura Foods LLC. The terms and conditions contained herein take precedence over any terms and conditions which are proposed by a buyer of goods (“Buyer”) whether contained on a purchase order or otherwise. The terms and conditions contained herein, together with any quotation delivered by Herradura to Buyer (the “Quotation”), is the entire contract between the Buyer and Herradura and shall supersede any and all other agreements and understandings between the parties with respect to the subject matter hereof. Herradura hereby rejects any and all terms or conditions proposed by Buyer, whether or not contained in any of Buyer’s business forms (including any purchase order).
Unless otherwise confirmed by Herradura, (a) all prices, quotations, shipments and deliveries by Herradura are F.O.B. Herradura’s factory; (b) all base prices, together with related extras and deductions, are subject to change without notice; (c) all orders are accepted subject to Herradura’s price in effect at the time of shipment; and (d) all transportation and other charges are for the account of Buyer, including any increase or decrease in such charges prior to shipment.
Terms of Payment
Credit terms (including payment terms and credit limits) will be set according to Herradura’s credit guidelines, which may be changed from time to time. Buyer’s credit terms and performance will be reviewed periodically per the guidelines and account credit terms are subject to change in Herradura’s sole discretion. Herradura may at any time refuse to make shipment or delivery if Buyer fails to fulfill the terms and conditions of payment or fails to provide security in compliance with Herradura’s credit guidelines. Herradura may require payment in full or other security in advance. If Buyer fails to make payments on any contract between Buyer and Herradura in accordance with Herradura’s terms, Herradura, in addition to any other remedies available to it, may, at its option defer further shipment until such payments are made and satisfactory credit arrangements are re-established. Past due payments shall be charged the maximum interest allowed by law.
Cancellation or Modification of Orders
Orders shall not be subject to cancellation or modification by Buyer in whole or in part (a) without Herradura’s written consent and (b) payment of a reasonable cancellation charge for applicable costs of purchased materials and engineering costs incurred or for which Herradura is obligated prior to cancellation or modification. Notwithstanding the foregoing, Buyer may not cancel or modify the order under any circumstances, if special or custom products are ordered from Herradura.
Herradura will use all reasonable efforts to comply with Buyer’s requests as to method of transportation, but Herradura reserves the right to use an alternate method of transportation, whether or not at a higher cost to Buyer, if the method specified by Buyer is deemed by Herradura to be unavailable or would compromise product quality or safety. In any such case, Herradura shall promptly notify Buyer of any such change.
If any goods arrive at Buyer’s destination in a damaged condition or a shortage occurs, Buyer shall immediately report the damage or shortage to the delivering carrier and to Herradura. Any loss or shortage caused by damage in transit will be for account of Buyer.
Unless otherwise expressly agreed by Herradura, claims respecting the condition of goods, compliance with specifications or any other matter affecting goods shipped to Buyer must be made promptly and in no event later than thirty (30) days after receipt of the goods by Buyer. In no event shall any goods be returned, reworked or scrapped by Buyer without the express written authorization of Herradura.
Limited Warranty/Exclusive Remedy
Herradura warrants that the products are free from defect in material and workmanship at the time of shipment. Buyer is solely responsible for determining the appropriateness of any products purchased. If, after inspection of the products by Herradura, the products are defective then Herradura will, at its option, repair or replace the defective good or refund an appropriate portion of the purchase price for the defective good. Herradura shall have no obligation with respect to any defect in any of its products unless it is notified within ninety (90) days after shipment of the products stating the full particulars of the claim. Herradura shall have the right to inspect the products alleged to be defective on Buyer’s premises or, at Herradura’s request, at Herradura’s designated facility. The remedy of repair, replace or refund provided for herein is the sole and exclusive remedy of Buyer for a defective good. THE FOREGOING WILL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND HERRADURA WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER. THIS LIMITATION APPLIES TO ALL PRODUCTS DURING AND AFTER THE WARRANTY PERIOD. IN NO EVENT WILL HERRADURA BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, EVEN IF HERRADURA HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. To the extent the limitation or exclusion of liabilities or damages contained herein is not permitted under applicable law, this limited warranty will apply to the maximum extent allowed by applicable law.
Disclaimer of other Warranties
THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ALL OTHER OBLIGATIONS OR LIABILITIES OF HERRADURA, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED BY HERRADURA.
Limitation of Warranty
Herradura assumes no warranty liability with respect to defects in any products caused by: (a) improper use of the products; (b) changes to the products by anyone other than Herradura or its authorized agent; or (c) negligent or other improper use, handling and/or storage of the products. Herradura does not make any warranty and assumes no warranty liability for products that are not manufactured by Herradura. No agent, distributor or representative is authorized to make any warranty repair on behalf of Herradura or to assume for Herradura any other liability in connection with any Herradura’s products.
Buyer Intellectual Property
If words, symbols or designs are provided to Herradura by Buyer for printing on a particular good then the Buyer represents that the words, symbols and designs are either in the public domain or are the property of Buyer and do not infringe on the trademarks, copyrights or other intellectual property rights of others.
Herradura shall not be liable for failure to perform or delays in performance caused by acts of God; war (declared or undeclared), riot or act of terrorism; fire, explosions or floods; strikes, work stoppages, slow-downs, or other labor difficulties; shortage of vehicles, fuel, power, material or labor; embargo or delay in transportation; accidents; compliance with any order or request by a government agency or official thereof; or any other event or contingency beyond its reasonable control. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable Herradura to perform. Herradura, may, during any period of shortage due to any of the above contingencies, allocate its available supply of Goods among itself and its customers in such manner as Herradura, in its reasonable judgment, deems fair and equitable.
In addition to any remedies that may be provided under these terms, Herradura may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Waiver by Herradura of any breach of any of the terms and conditions set forth herein shall not be construed as a waiver of any other breach, and the failure of Herradura to exercise any right arising from any default of Buyer hereunder shall not be deemed to be a waiver of such right, which may be exercised at any subsequent time.
All non-public, confidential or proprietary information of Herradura, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Herradura to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Herradura in writing. Upon Herradura’s request, Buyer shall promptly return all documents and other materials received from Herradura. Herradura shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Herradura on a non-confidential basis from a third party.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Herradura. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Limitation of Actions
Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of this agreement by Herradura shall be barred unless commenced by Buyer within one year from the date of shipment.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Arkansas without giving effect to any choice or conflict of law provision or rule (whether of the State of Arkansas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Arkansas.
Relationship of the Parties
Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Third Party Beneficiary
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
If any provision of this agreement shall be held to be unlawful or unenforceable, the remaining portions of this agreement shall remain in full force and effect. No other agreement or understanding shall modify this agreement in any way or shall be binding upon Herradura unless contained in a writing signed by Herradura’s authorized representative.