COMPANY

UNITED STATES

Sales terms and conditions

Sales of goods by Parker-Migliorini International, LLC (“PMI” or “Seller”) to a Buyer for delivery in the United States or any foreign country are governed by the following general terms and conditions of sale.

1.  ACCEPTANCE.  The terms and conditions set forth herein contain the sole, entire and exclusive agreement between the Seller and the Buyer governing this sales contract, superseding all prior discussions, proposals, negotiations, representations, and agreements, and any additional or conflicting terms, whether or not material, shall not, in any manner by implication, by waiver, or otherwise, govern the relationship between Seller and Buyer.  The Seller’s acceptance of the Buyer’s purchase order and/or issuance of a pro forma invoice evidencing the sales contract between the Buyer and the Seller is specifically conditioned upon the terms and conditions set forth herein.

2.  SHIPPING INSTRUCTIONS.  The Buyer shall furnish, or accept the Seller’s, complete shipping instructions and provide adequate credit as determined by the Seller’s Credit Department at the time of order and delivery to enable the Seller to perform its obligations.  The Seller shall not be obligated to make shipment or delivery in the absence thereof.  If the Buyer’s purchasing arrangement with the Seller necessitates more than one delivery, then each delivery shall be considered to be a separate sales contract for the purposes of the Buyer furnishing complete shipping instructions and providing adequate credit.

3.  ROUTING.  Unless otherwise provided by the Buyer and agreed to by the Seller, the routing of shipments to the port of discharge and carrier selection will be at the Seller’s option. 

4.  PRICE AND PAYMENT.  Unless otherwise stipulated in the pro forma invoice, the price is always in United States Dollars and must be paid in United States Dollars regardless of any fluctuations in the currency of other countries.  All remittances must be submitted according to invoice terms.  All sales are subject to approval of the Seller’s Credit Department.  The Buyer shall be responsible for the payment of any and all government sales, use, or other taxes upon or with respect to the sale, purchase, use, receipt or shipment of the goods.

5.  QUANTITY.  Ordered weight/box count is shipped at plus or minus 5% at the Seller’s option unless otherwise specified by the Seller in writing.

6.  DELIVERY.  Delivery dates are based on the Seller’s best judgment, are subject to production limitations and product availability, and hence are not guaranteed.  If the sales contract provides for multiple deliveries over a period exceeding one (1) month, then the Seller shall not be obligated to deliver in any thirty (30) day period more than approximately equal monthly quantities in relation to the total amount of the sales contract, and the Seller may make shipments of the total amount in such equal monthly quantities.

7.  TITLE/RISK OF LOSS.  Unless otherwise specified by the Seller in writing, title and risk of loss shall pass to the Buyer at the time the goods supplied by the Seller are placed in the possession of the Buyer or the Buyer’s agent or carrier, as per the Incoterms® set forth in the pro forma invoice.

8.  WARRANTY.  The Seller warrants that it has the right to convey good title to the goods.  The Seller further warrants that, as of the time and place of shipment hereafter made by the Seller, the goods shall not be adulterated or misbranded, as such terms are defined by the applicable regulations governing the processing and labeling of such goods in the country of origin.

9.  NO OTHER WARRANTIES.  EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH IN SECTION 8, THE SELLER DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. 

10.  LIMITATION ON DAMAGES.  IN NO EVENT SHALL THE SELLER BE LIABLE TO THE BUYER OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF WHATSOEVER NATURE (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, LOSS OF PROFITS, DAMAGE TO GOODWILL OR REPUTATION AND/OR DEGRADATION IN VALUE OF BRANDS, TRADEMARKS, TRADENAMES, SERVICE NAMES OR SERVICE MARKS), WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, FAILURE TO WARN OR STRICT LIABILITY), CONTRIBUTION, INDEMNITY, SUBROGATION, OR OTHERWISE.  THE BUYER ASSUMES ALL RISKS AND LIABILITIES FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE USE OR SUBSEQUENT SALE OF THE GOODS, EITHER ALONE OR IN COMBINATION WITH OTHER GOODS.

11.  EXCLUSIVE REMEDIES.  The Buyer’s exclusive remedy and the Seller’s exclusive liability for shipment of nonconforming goods, including for breach of warranty, is expressly limited, at the Seller’s option, to (i) replacement, within a reasonable period of time, of nonconforming goods at no additional charge to the Buyer, or (ii) refund of the purchase price.  All such nonconforming goods must be returned to the Seller, at the Seller’s direction and expense, or, at the Seller’s direction, disposed of by the Buyer in a manner mutually acceptable to the Buyer and the Seller with all reasonable costs of such disposition to be paid by the Seller. 

12.  CLAIMS.  Within forty-eight (48) hours of tender of delivery of the goods, the Buyer will provide immediate telephone or email  notification to the Seller of any alleged nonconformity of goods, including any off-condition product, shortage, or any other discrepancy or situation which may impair the value of the goods or justify payment of less than the invoiced amount.  This notification will be made to the Seller’s sales representative through whom the Buyer purchased the claimed goods.  If notice is not so made within forty-eight (48) hours of tender of delivery of the goods, then the Buyer accepts the goods as conforming in all ways and will submit to the Seller full payment therefore on or before the agreed upon date.  Within seven (7) days after initial notification of a claim, if any, the Buyer shall submit a detailed written confirmation of such claim and will attach all documents relevant thereto.  All correspondence must be submitted to the aforementioned sales representative either via email, or by mail addressed to the sales representative, PMI, LLC, 141 Pierpont Avenue, Salt Lake City, Utah 84101.  Any payment for less than the invoiced amount must be authorized in advance by the Seller’s General Manager.  The Seller’s acceptance of a partial payment from the Buyer shall not constitute final approval of the Buyer’s claim or constitute a waiver of any of the Buyer’s obligations or the Seller’s rights.

13.  INSTALLMENT CONTRACT.  In the event the sales contract is deemed or interpreted to be an installment contract, the failure of the Seller to ship or deliver an installment when due shall not substantially impair the value of the contract as a whole and will not constitute a breach of the contract as a whole.  In the event of any non-delivery of an installment by the Seller, the Buyer’s exclusive and sole remedy shall be limited to delivery of the goods as soon as the Seller can arrange reasonably to do so.

14.  FORCE MAJEURE.  The Seller shall not be liable to the Buyer for failure of, or delay in, performance when such failure or delay is caused by conditions beyond the Seller’s control, including but not limited to, war, strike, labor dispute, fire, flood, natural disaster, government intervention, embargo, terrorism, shortage of raw materials (including, without limitation, shortage resulting from inadequate livestock or poultry supply or from grade changes resulting from variations in livestock or poultry supply), breakdown, shortage or non-availability of transportation facilities or equipment, or acts of God.  If the Seller declares force majeure, then the sales contract shall remain in full force and effect for a period of sixty (60) days from said declaration.  After the expiration of said sixty (60) days, the Seller may cancel any unperformed potion of the sales contract by written notice to the Buyer.

15.  PMI GLOBAL TRADE COMPLIANCE POLICY.  The goods subject to this sales contract will be exported and shipped in accordance with the applicable laws and regulations governing the export and international trade of such goods, including U.S. Export Administration Regulations and all other applicable federal laws and regulations.  The Buyer hereby acknowledges that it has read, understood, and will comply with all applicable provisions of PMI’s Global Trade Compliance Policy, incorporated herein by reference, and set forth in full at www.pmifoods.com/compliance.

16.  DEFAULT.  A default of these terms and conditions (which shall also constitute a material breach of the sales contract) shall occur if the Buyer (1) fails to furnish shipping instructions within the time specified, (2) fails to order any shipment within the time specified, (3) fails to supply adequate credit within the time specified, (4) refuses to accept any shipment properly tendered, (5) fails to tender any payment when due, or (6) fails to perform in any other respect according to its obligations set out in these terms and conditions.  In the event of default, the Seller may treat such default as (a) a total breach of the entire sales contract, or (b) a breach only as to the individual shipment or installment.  In addition to any other rights or remedies which the Seller may have at law or in equity, the Seller may (i) cancel the sales contract, (ii) terminate the contract as to the portion thereof in default or as to any unshipped balance, or both, and/or (iii) resell, after ten (10) days’ notice to the Buyer, any of the goods which have been shipped and which the Buyer has wrongfully failed or refused to accept, and receive from the Buyer the difference between the contract price thereof and the price obtained on the resale if the latter be less than the former, as well as any incidental loss and expense.  All rights and remedies of the Seller shall be cumulative and not exclusive of any other rights or remedies which the Seller would otherwise have at law or in equity.

17.  ASSIGNMENT.  The rights and obligations under the sales contract, including these terms and conditions, are not assignable by the Buyer unless in writing and signed by both parties.

18.  TERMS AND CONDITIONS TO GOVERN.  These terms and conditions shall govern in any instance where they conflict with the provisions of forms used by the Buyer.  No prior or contemporaneous negotiations, correspondence, conversations, prior course of dealing or usage of trade shall be deemed in any way to affect the specific terms and conditions hereof.  These terms and conditions shall be binding on the Buyer even if the Seller’s pro forma invoice or the Buyer’s purchase order (as the case may be) is not signed by the Buyer. 

19.  LIFE OF CONTRACT RIGHTS.  The sales contract, including these terms and conditions, shall be binding upon and inure to the benefit of the Buyer and the Seller and their respective heirs, administrators, executors, successors, and permitted assigns.

20.  NO RIGHTS OF THIRD PARTIES.  The sales contract, including these terms and conditions, is made solely for the benefit of the Buyer and the Seller, and no provision of the sales contract shall confer upon third parties any right or remedy.

21.  ALTERATION OF TERMS/WAIVER.  Any waiver, modification or amendment to these terms and conditions shall be effective as against the Seller only if such waiver, modification or amendment is contained in a written instrument duly executed by or on behalf of the Seller.  The Seller reserves the right to add to, modify, supersede, alter or revoke these terms and conditions upon written notice to the Buyer.

22.  SEVERABILITY.  The provisions of the sales contract, including these terms and conditions, shall be deemed to be severable, and the invalidity or partial invalidity of any provision hereof shall not affect the validity or enforceability of the remaining provisions.

23.  GOVERNING LAW/LANGUAGE.  These terms and conditions are prepared in the English language, and the English language shall control all interpretations, disputes, and adjudications pertaining thereto.  These terms and conditions shall be governed by and construed in accordance with the laws of the State of Utah (excluding principles of conflicts of laws), as if the sales contract were executed in and to be wholly performed in Utah.  In construing these terms and conditions, neither the Buyer nor the Seller shall have any term or provision construed against the other party solely by reason of such party having drafted these terms and conditions.  The parties hereby expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions nor to the sales contract to which they pertain.  Jurisdiction over any action brought pursuant to these terms and conditions or the sales contract shall properly (but not exclusively) lie in the federal and state courts situated in Salt Lake County, Utah.

24.  LIMITATION ON ACTIONS.  No action arising out of the sales contract, including these terms and conditions, may be brought by the Buyer more than one (1) year after such cause of action has accrued.

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