GLOBAL AQUACULTURE SUPPLY COMPANY, LLC
Terms and Conditions of Sale
1) Parties; Applicability. These Terms and Conditions of Sale (these “Terms”) are the only terms which govern the sale of the goods ("Goods") and services ("Services") by Global Aquaculture Supply Company, LLC, an Iowa limited
liability company (“Seller”) to the buyer named on the proposal or sales confirmation to which these Terms are attached or incorporated (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in
existence covering the sale of the Goods or Services covered hereby, the terms and conditions of said contract shall prevail to the extent inconsistent with these Terms. The proposal or sales confirmation to which these Terms are attached or
incorporated (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations,
representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms.
Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2) Delivery, Storage and Shipping of Goods; Title to and Risk of Loss of Goods. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, given Seller’s typical lead times. Seller may, in its sole
discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Goods shipped in accordance with the terms of the Sales Confirmation whether such
shipment is in whole or partial fulfillment of Buyer's purchase order. If Buyer has given Seller specific delivery instructions, Seller will use its reasonable efforts to comply with such instructions; provided, however, that Seller assumes no liability for
any failure to comply. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods F.O.B., freight prepaid and added, Seller’s facility (the "Delivery Point"). Buyer shall be responsible for all unloading costs and provide
equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. If for any reason Buyer fails to accept delivery of any of the Goods by the date fixed pursuant to Seller's notice that the Goods have been delivered: (i) risk of
loss to the Goods shall nevertheless pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and
expenses (including, without limitation, storage and insurance). In all events, title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer
hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all
accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the
Iowa Uniform Commercial Code.
3) Performance of Services. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only. Buyer shall: (i) cooperate with
Seller in all matters relating to the Services and provide such access to Buyer's premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond
promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services; (iii) provide such complete and accurate materials or information as Seller may
request to carry out the Services in a timely manner; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
4) Nonconformance. Buyer shall inspect the Goods within ten days of receipt (such period being the "Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming
Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Goods" means only the following: (i) the Goods shipped are different than identified in Buyer's
purchase order. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together
with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall return, at its expense and risk of loss, the Nonconforming Goods to the Delivery Point. If Seller exercises its option to replace
Nonconforming Goods, Seller shall, within a reasonable period of time after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges
and agrees that the remedies set forth in this Section ( 4) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided in this Section ( 4) , all sales of Goods to Buyer are made on a one-way basis and Buyer has no
right to return Goods purchased under this Agreement to Seller.
5) Price and Payment. Buyer shall purchase the Goods and Services from Seller at the price(s) set forth in Seller’s price list in effect at the time of shipment, unless otherwise specifically agreed to in writing by Seller (such price being
the “Price”). Prices are for single shipments of the quantities of Goods specified, unless otherwise authorized in writing by Seller. Buyer and Seller acknowledge that the Prices reflect, and are based upon, the terms and conditions of this
Agreement and the allocation of risk set forth herein. Buyer agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services. All Prices are exclusive of all sales,
use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer; for each of which Buyer shall be responsible. Unless otherwise provided in the
Agreement, Buyer shall pay all invoiced amounts due to Seller in US dollars via check or wire transfer and within 30 days from the date of Seller's invoice. Late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest
rate permissible by law, calculated daily and compounded monthly. In addition to the other remedies set forth herein, Seller shall be entitled to suspend the delivery of any Goods or performance of any Services if Buyer fails to pay any amounts
when due hereunder and such failure continues for five days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to
Seller's breach, bankruptcy, or otherwise
6) Limited Warranty; Limitations of Liability.
a) Seller warrants to Buyer that, upon delivery of the Goods to the Delivery Point, such Goods will be free from material defects in material and workmanship. Seller warrants to Buyer that it shall perform the Services using
personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its
obligations under this Agreement. EXCEPT FOR THE WARRANTIES SET FORTH IN THE FIRST AND SECOND SENTENCES OF THIS SECTION ( 6) (SUCH WARRANTIES BEING THE “EXPRESS WARRANTIES”), SELLER
MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, IN EACH CASE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF
TRADE OR OTHERWISE INCLUDING, WITHOUT LIMITATION, ANY (I) WARRANTY OF MERCHANTABILITY, (II) WARRANTY OF FITNESS FOR A PARTICULAR, SPECIFIC, OR GENERAL PURPOSE, (III) WARRANTY OF
TITLE, OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
b) Seller shall not be liable for a breach of the Express Warranties unless: (i) Buyer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Seller within the Inspection Period
(with respect to Goods) or within ten days after the earlier of the complete performance of the Services or the defect in such performance becoming reasonably discoverable by Buyer (with respect to Services); (ii) if applicable, Seller is
given a reasonable opportunity after receiving the notice of breach of the warranty to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to
take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods or Services are defective. Seller shall not be liable for a breach of the Express Warranties if: (x) Buyer makes any further use of such Goods after giving such
notice; (y) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (z) Buyer alters or repairs such Goods without the prior
written consent of Seller.
c) Subject to Section ( 6) ( b) above, with respect to any Goods not meeting the Express Warranties upon their delivery by Seller to the Delivery Point, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or
the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller. Subject to Section ( 6) ( b) above, with respect to
any Services not meeting the Express Warranties, Seller shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate. THE REMEDIES SET
FORTH IN THIS SECTION ( 6) ( c) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE EXPRESS WARRANTIES.
d) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE,
ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY
FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR
OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER. The limitations of liability set forth in this
Section ( 6) ( d) shall not apply to liability resulting from Seller's gross negligence or willful misconduct.
7) Buyer’s Indemnification of Seller; Costs of Enforcement. Seller has provided Goods and Services based solely upon information furnished by Buyer. Seller makes no representations or warranties to Buyer regarding any
infringement of intellectual property rights (or the absence thereof) by the Goods or Services, or by the products or services of Buyer into which the Goods or Services may be incorporated or for which the Goods and Services may be utilized
(Buyer’s “Products”). Buyer hereby agrees to indemnify, defend, and hold Seller and its members, managers, officers, agents, employees, consultants, and assigns harmless from and against any and all liabilities, damages, costs, or expenses
(including reasonable attorneys’ fees and costs), resulting, directly or indirectly, from: (i) Buyer’s use or misuse of the Goods, Services, or Products or the use of the Goods, Services or Products by Buyer or any other party; (ii) any claim or
allegation that the Goods, Services, or Products infringe upon the intellectual property rights of any third party; and (iii) Buyer’s, or any of Buyer’s agents’, employees’ or subcontractors’ grossly negligent or intentionally wrongful acts or omissions,
actions, or inaction. Additionally, and not in limitation of the foregoing, Buyer shall reimburse Seller for all costs (including, without limitation, reasonable attorneys' fees and costs) incurred in enforcing its rights hereunder, including in collecting any
8) Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due
under this Agreement and such failure continues for ten days after Buyer's receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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. Additionally, Seller may cancel an order or terminate this
Agreement with immediate effect and without liability in the event that Seller reasonably determines that Buyer’s intended use of the Goods, Services, or Products may result in death or injury to persons or property.
9) Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or
privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
10) Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and
to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including; provided that, if the event in question continues for a continuous period in excess of 90 days, Buyer
shall be entitled to give notice in writing to Seller to terminate this Agreement.
11) Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Iowa without giving effect to any choice or conflict of
law provision or rule (whether of the State of Iowa or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Iowa. Any legal suit, action or proceeding arising out of or relating
to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Iowa in each case located in (or, in the case of the federal courts, having jurisdiction over) the Sioux County, Iowa,
and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
12) Other Provisions. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. If any term or provision of this Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions
of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. These Terms may only be amended or modified in a writing stating specifically that it
amends these Terms and is signed by an authorized representative of each party.