The following terms and conditions of sale apply to all sales covered by this invoice.
Supplier. "Supplier," as used herein, shall mean Triumph Foods LLC ("Triumph"), with respect to products which are designated on the face hereof, as produced by "Triumph" or "TF"; shall mean Seaboard Foods LLC ("Seaboard"), with respect to products which are designated on the face hereof as being produced by "Seaboard" or "SF"; and shall mean Seaboard Triumph Foods, LLC ("Seaboard Triumph"), with respect to products which are designated on the face hereof as being produced by Seaboard Triumph or "ST." If the Supplier hereunder is Triumph or Seaboard Triumph, then notwithstanding that the invoice amount hereunder shall be remitted to Seaboard, such invoice is owing to, and the amounts collected thereon will be paid by Seaboard to, Triumph or Seaboard Triumph, as the case may be, in the amount determined pursuant to the terms of an agreement between Seaboard and Triumph, or an agreement between Seaboard and Seaboard Triumph Foods. The balance of the invoice shall be owing to and retained by Seaboard. For sales in which the Supplier is Triumph or Seaboard Triumph, Seaboard is acting as agent on behalf of Triumph or Seaboard Triumph, as the case may be, with respect to such sale.
Claims. Before or upon tender of goods, Customer will provide immediate telephone notification to Seaboard of any alleged non‑conformity, including any off‑condition product, shortage or any other discrepancy or situation which would impair the value of the goods or justify payment of less than the amount billed. This notification will be made to the Seaboard Foods Claims Department at 1‑800‑262‑7907. If notice is not made, then Customer accepts the goods as conforming in all ways to the contract of sale, and will submit to Seaboard full payment on or before the agreed‑upon date.
WARRANTIES AND DISCLAIMER. SUPPLIER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND CUSTOMER ACCEPTS SUCH DISCLAIMER. BUYER RECOGNIZES AND AGREES THAT NO WARRANTIES SHALL RESULT FROM ANY ORAL COMMUNICATIONS BETWEEN THE SELLING AGENT AND BUYER. BUYER AGREES NOT TO RELY UPON ANY STATEMENT MADE BY THE SELLING AGENT WITH RESPECT TO THE DESCRIPTION OF THE GOODS OR OTHERWISE.
Payment Terms. Terms are subject to the approval of Seaboard's Credit Department prior to shipment, and the Customer agrees, with respect to their obligation for payment, that (i) if, in Seaboard's sole judgment, Customer's financial condition or other conditions do not justify shipment on normal credit terms, Seaboard may require full or partial payment in advance; (ii) after the goods are shipped, Customer will pay to Seaboard the amount of the invoice in accordance with the terms of payment stated thereon; (iii) Customer will pay Seaboard the late payment charge of one and one‑half percent (1‑1/2%) per month, or the highest rate permitted by law, whichever is lowest, on amounts unpaid after the due date; (iv) after the invoice is issued, if, in Seaboard's sole judgment, Customer's financial condition in any way becomes impaired or jeopardized, the invoice shall become due and payable at once; and (v) except where expressly prohibited by law, Customer will, in the event of default, pay Seaboard's costs of collecting the amount due, including court costs and reasonable attorney fees.
Purchase Order. The Customer's purchase order number set forth on this invoice is utilized solely for the Customer's convenience and internal business records. The use of this purchase order number does not include any acceptance by Supplier of the terms and conditions contained in the Customer's purchase order form (which terms and conditions are specifically rejected), and is in no way indicative of the actual sales agreement made between Supplier and the Customer. Supplier's acceptance of Customer order is expressly limited to, and expressly made conditional on, Customer's acceptance of these Terms and Conditions. Supplier objects to and rejects any provision additional to or different from the Terms and Conditions that may appear in Customer's purchase order, acknowledgment, confirmation, writing, or in any other prior or later communication from Customer to Supplier, unless such provision is expressly agreed to by Supplier in a writing signed by Supplier.
Conflicts. Should conflicts arise between this Agreement and the rules or terms of FOSFA 24, ITF, INCOTERMS, or any other institution, treaty or contract, the terms of this Agreement shall govern. The United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods shall not apply to this Agreement.
Limitation of Liability; Exclusive Remedy. Except as expressly provided herein, in no event shall Supplier or Customer be liable to the other for any incidental, special, consequential or punitive damages, or noncompliance with government regulations. Customer's exclusive remedy, whether in tort, contract or otherwise, shall be the replacement of the products at no additional charge to Customer or, at Supplier's sole election, money damages which shall not exceed the price for the products in respect to which such claim is made.
Arbitration. For any shipments delivered to any location outside of the United States of America or if the amount in Dispute (as defined below) is less than U.S. $500,000, it is agreed that any dispute, controversy or claim between any of the parties hereto or claim by a party against another party arising out of or in relation to the products covered by this invoice or the purchase thereof (hereinafter "Dispute") shall be finally determined by arbitration in accordance with the rules then in force of the American Arbitration Association. Notwithstanding the foregoing, nothing contained herein shall preclude any such party hereto from seeking or obtaining (i) injunctive relief; or (ii) equitable or other judicial relief to enforce the provisions hereof or to preserve the status quo pending resolution of the Dispute hereunder. The arbitration proceedings shall take place in the greater Kansas City, Kansas metropolitan area or such other location as the parties in dispute hereafter may agree upon. There shall be one arbitrator, as shall be agreed upon by the parties in dispute, or as appointed by the American Arbitration Association whereby the dispute involves less than U.S. $250,000. In the absence of such agreement and when the dispute involves U.S. $250,000 or more, each party in dispute shall select one arbitrator and the arbitrators so selected shall select a third arbitrator. In the event the arbitrators cannot agree upon the selection of a third arbitrator, such third arbitrator shall be appointed by the American Arbitration Association at the request of any of the parties in dispute.
In deciding any Dispute, the arbitrators shall follow those legal authorities which a court would use in deciding such Dispute, and the arbitrators shall have the power to award damages, make such other rulings and grant such other relief as may be required. The decision rendered by the arbitrator or arbitrators shall be accompanied by a written opinion in support thereof, which opinion shall be in the English language. Such decision shall be final and binding upon the parties in dispute without right of appeal. Judgment upon any such decision may be entered into in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the decision and an order of enforcement.
The parties hereto agree that the costs and expenses of the arbitrators and the arbitration shall be paid by the disputing parties in inverse proportion to the allocation by the arbitrators of the amounts disputed or, if no amounts are in dispute, by the party against whom the dispute is finally settled.
The disputing parties shall use their reasonable best efforts to limit the total time period of any arbitration to a maximum of six months. The arbitrators shall use their reasonable best efforts to decide any dispute hereunder within the six‑month time period.
Governing Law. This Agreement and its execution, performance, interpretation, construction and enforcement shall be governed by the law of the State of Kansas, without regard to its conflicts of law rules.