Terms & Conditions
COMMODITIES CONTRACT GENERAL TERMS AND CONDITIONS
The following general terms and conditions are applicable to all contracts for the sale to or purchase by J.D. Heiskell Holdings, LLC or any of its subsidiaries (as to each, “Company”), with one or more of its customers, sellers, vendors or suppliers (as to each, “Customer”), unless modified in a writing signed by both Company and Customer. Certain Contracts will be for the purchase of commodities from Company (as to each such Contract, a “Commodities Sale Contract”) or the sale to Company of commodities (a “Commodities Purchase Contract”). Other terms and conditions will be applicable to a Contract: i.e., Commodities Contracts will be subject to the Commodities Purchase Terms or Commodities Sale Terms, as applicable.
Contracts for the sale or purchase of products and services other than commodities (“Vendor Contracts”) will be subject to the Vendor Contract Terms. In addition, Contracts may from time to time be subject to special terms and conditions which are set forth in a Special Terms Appendix.
1. FOR MERCHANT CUSTOMERS: Customer warrants that all purchases made under the terms of a Commodities Contract shall be for commercial purposes and that Customer is a merchant with respect to the types of goods which will be purchased.
2. OPEN ACCOUNT SALE, PAYMENTS AND INTEREST: All purchases on open account are due and payable in accordance with the invoice payment terms thereon, unless otherwise agreed to in writing. Amounts unpaid by Customer shall accrue interest at the rate of 1.5% per month or 18% per annum, compounded monthly. Except as otherwise directed all payments shall apply first to any accrued interest, then to the oldest unpaid invoices. Company may in its discretion offset any amounts owed by Customer to Company against any amounts owed to Customer from Company or any of its affiliates.
3. DEFAULT: If Customer’s account is not paid when due, or if Customer has not complied with any other term or condition of Customer’s Business Relationship Application (the “Application”), the terms of a Commodities Contract, or any other written agreement with Company, then Customer is immediately in default without further notice to Customer. Customer represents that it is not insolvent, as that term is defined in the Uniform Commercial Code. In the event that Customer’s financial condition is found to be or becomes unsatisfactory, Company shall have the right to terminate any Commodities Contract then in effect if Customer does not provide assurances or collateral satisfactory to Company to secure Customer’s performance on all open Commodities Contracts.
4. REMEDIES ON DEFAULT: If Customer is in default, then Company may, at its sole discretion and without further notice to Customer, exercise any one or more of the following actions and remedies: (a) temporarily or permanently suspend any further product shipments to or purchases from Customer, (b) temporarily or permanently suspend Customer’s credit, (c) temporarily or permanently conduct business with Customer only if Customer pays cash on delivery (“C.O.D.”) for purchases under Commodities Purchase Contracts or if Customer pays in advance for its obligations under any Commodities Contract, (d) temporarily or permanently close Customer’s account and terminate any further transactions with Customer, (e) exercise rights, if any, as a secured creditor pursuant to Commodities Contract and any rights created under any applicable law, (f) collect amounts owed to Company, including without limitation, initiating a lawsuit and seeking a pre-judgment writ of attachment or restraining order without the necessity of posting a bond, (g) take any other action or remedy because of Customer’s default, including, but without limitation, the remedies listed in this paragraph and set-off. Company is not obligated to (a) restore Customer’s account and credit, or (b) provide Customer with any other account or credit terms even if Customer pays the past due amounts in full and satisfies any other requirements of Company. Failure by Company to exercise a remedy does not waive any future default or constitute a course of dealing between the parties. All waivers and amendments must be in writing. If Company is the prevailing party in any dispute or litigation under any Commodities Contract, it shall be entitled to recover all costs of collection, including reasonable attorney’s fees.
5. REPUDIATION: If Company determines Customer has defaulted, breached or in any way repudiated a part or the whole of a Commodities Contract, Company will advise Customer. Customer shall immediately notify Company of its ability and/or intent to complete the Commodities Contract. If Company determines Customer has committed such default, breach or repudiation, Company may elect either to: (a) grant to Customer, upon mutual agreement in writing between the parties, an extension of the time for delivery or (b) cancel any or all remaining portions of the Commodities Contract and sell the commodity in a commercially reasonable manner and recover the difference between the contract price and the resale price together with any incidental damages.
6. VENUE, JURISDICTION AND DISPUTES: Company and Customer hereby agree that any Commodities Contract shall be interpreted under the laws of the state of the Contract Location specified in the confirmation for the applicable Commodities Contract and shall be resolved in a court of competent jurisdiction in such Contract Location. Customer agrees to submit to personal jurisdiction in such forum for any dispute under any Commodities Contract. Company has the right to seek National Feed and Grain Association (“NGFA”) arbitration of any dispute between Customer and Company; such proceedings will be governed by NGFA Arbitration Rules. Customer hereby knowingly and intentionally waives the right to a jury trial on any issue or dispute (whether sounding in tort, contract or otherwise) in any way arising out of, related to, or connected with the relationship to Company. Customer and Company are the only parties to any Commodities Contract, and there are no intended or incidental third party beneficiaries.
7. PERSONAL AND FINANCIAL INFORMATION: By providing its personal and/or financial information to Company, Customer consents to Company’s use of its personal and financial information and directs Company to share this personal information with Company’s affiliates, subsidiaries, business partners, and other third parties insofar as such usage and sharing is reasonably necessary in order to enable Company to conduct due diligence or provide its products and services to Customer.
8. INDEMNIFICATION: To the fullest extent permitted by law, Customer shall defend, protect, indemnify, and save harmless Company, its members, managers, directors, officers and employees (as to each, a “JDH Indemnified Party”) from losses and claims relating to any product purchased from or sold to Company under any Commodities Contract and arising from or in connection with (a) any misuse, disposal, and/or environmental release of any such product while title is held by Customer or the product is under Customer’s control; b) loss or damage to persons or property which occurs during the course of delivery to or by Customer or possession by Customer of such product; or (c) breach of Customer’s obligations under any Commodities Contract, except in each such case to the extent such loss or damage was caused solely by the gross negligence or willful misconduct of such JDH Indemnified Party.
9. ENTIRE AGREEMENT: Each Commodities Contract shall represent the final, complete and exclusive statement of agreement between the parties and may not be altered, modified, supplemented or waived, except in writing by both parties. Each Commodities Contract, and any amendments thereto agreed to mutually by Customer and Company, shall be binding upon and inure to the benefit of the parties thereto and their respective heirs, personal representatives and successors of the respective parties. A Commodities Contract may be assigned by Customer with the written permission of Company, but no assignment shall relieve Customer from its obligations thereunder. Company may assign its rights and/or liabilities under a Commodities Contract at any time but such assignment shall not relieve Company from its responsibilities thereunder.
10. SEVERABILITY: If any term or other provision of any Commodities Contract is determined to be invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of such Commodities Contract shall nevertheless remain in full force and effect.
11. ELECTRONIC COMMUNICATIONS: Company prefers to conduct its communication with Customers and guarantors of Customer obligations (“Guarantors”) through electronic communications. To assist in this process, Customers and Guarantors are also asked to sign the attached ESIGNATURE AUTHORIZATION. In addition, if Customer submits any purchase order, the Application or a Commodities Contract confirmation electronically, Customer shall be considered to have consented to conduct business with Company electronically according to the attached terms. “Electronically” includes but is not limited to a method using the internet, a mobile device application, a text message, an email, a facsimile transmission or an interactive voice response system.
Effective Date: 10/1/2022