Terms & Conditions
VENDOR CONTRACT GENERAL TERMS AND CONDITIONS
The following general terms and conditions are applicable to all contracts (other than contracts for the sale or purchase of commodities or rail cars) by J.D. Heiskell Holdings, LLC or any of its subsidiaries (as to each, “Company”), with one or more of its sellers, vendors or suppliers (as to each, “Vendor”), unless modified in a writing signed by both Company and Vendor. In addition, such vendor contracts (the “Contracts”) may from time to time be subject to special terms and conditions which are set forth in a Special Terms Addendum (an “Addendum”).
1. OPEN ACCOUNT SALE, PAYMENTS AND INTEREST: All invoices payable by Vendor are due and payable in accordance with the invoice payment terms thereon, unless otherwise agreed to in writing. Amounts unpaid by Vendor 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 Vendor to Company against any amounts owed to Vendor from Company or any of its affiliates.
2. DEFAULT: If Vendor’s account is not paid when due, or if Vendor has not complied with any other term or condition of Vendor’s Business Relationship Application (the “Application”), the terms of a Contract, or any other written agreement with Company, then Vendor is immediately in default without further notice to Vendor. Vendor represents that it is not insolvent, as that term is defined in the Uniform Commercial Code. In the event that Vendor’s financial condition is found to be or becomes unsatisfactory, Company shall have the right to terminate any Contract then in effect if Vendor does not provide assurances or collateral satisfactory to Company to secure Vendor’s performance on all open Contracts.
3. REMEDIES ON DEFAULT: If Vendor is in default, then Company may, at its sole discretion and without further notice to Vendor, exercise any one or more of the following actions and remedies: (a) temporarily or permanently suspend any further product or services to be supplied by or to Vendor under the Contract, (b) temporarily or permanently suspend Vendor’s credit, (c) temporarily or permanently conduct business with Vendor only if Vendor pays cash on delivery (“C.O.D.”) for purchases or services under the Contracts or if Vendor pays in advance for its obligations under any Contract, (d) temporarily or permanently close Vendor’s account and terminate any further transactions with Vendor, (e) exercise rights, if any, as a secured creditor pursuant to a 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, and (g) take any other action or remedy because of Vendor’s default, including, but without limitation, the remedies listed in this paragraph. Company is not obligated to (a) restore Vendor’s account and credit, or (b) provide Vendor with any other account or credit terms even if Vendor 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 Contract, it shall be entitled to recover all costs of collection, including reasonable attorney’s fees.
4. INSURANCE. So long as any Contract is in effect, Vendor shall maintain the following insurance policies from insurers with a Best rating of “A-2” or above, or with a rating reasonably acceptable to Company:
a. Comprehensive property and casualty insurance covering Vendor’s real property and tangible personal property in the amount of at least $1,000,000.00, as to which policy Company has been added as an additional payee;
b. Comprehensive liability insurance in the amount of at least $1,000,000 per occurrence and $3,000,000 combined coverage, as to which policy Company is an additional insured;
c. Worker compensation insurance sufficient to meet statutory requirements of the states where applicable employees performing Vendor’s obligations under the Contract are located;
d. Motor vehicle insurance for owned, rented or non-owned vehicles in the amount of at least $1,000,000 combined single limit and $50,000 per cargo; and
e. Any other insurance required by the applicable Addendum.
Company shall have the right to modify the insurance required of a Vendor upon reasonable written notice to Vendor. Upon request Vendor shall provide copies of such insurance coverage to Company.
5. VENUE, JURISDICTION AND DISPUTES: Company and Vendor hereby agree that any Contract shall be interpreted under the laws of the state specified as the Contract Location in the Addendum for the applicable Contract and shall be resolved in a court of competent jurisdiction in such Contract Location. Vendor agrees to submit to personal jurisdiction in such forum for any dispute under any Contract. When applicable, Company has the right to seek National Feed and Grain Association (“NGFA”) arbitration of any dispute between Vendor and Company. Vendor 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 Vendor’s relationship to Company. Except as otherwise expressly stated in the Contract or its related Addendum, Vendor and Company are the only parties to any Contract, and there are no intended or incidental third party beneficiaries.
6. PERSONAL AND FINANCIAL INFORMATION: By providing its personal and/or financial information to Company, Vendor 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 to or acquire from Vendor the applicable products and services.
7. INDEMNIFICATION: To the fullest extent permitted by law, Vendor shall defend, protect, indemnify, and save harmless Company, its members, managers, directors, officers and employees (as to each, a 8. “Company Indemnified Party”) from losses and claims relating to any product purchased from or sold to Company under any 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 Vendor or the product is under Vendor’s control; b) loss or damage to persons or property which occurs during the course of delivery to or by Vendor or possession by Vendor of such product or service; (c) breach of Vendor’s obligations under any 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 Company Indemnified Party; or (d) any representation by Vendor under the Contract is false when made.
9. LIMITATIONS OF LIABILITIES: In no event shall Company be liable for special, consequential, indirect or punitive damages under any Contract.
10. ENTIRE AGREEMENT: Each 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 Contract, and any amendments thereto agreed to mutually by Vendor and Company, shall be binding upon and inure to the benefit of the parties. A Contract may be assigned by Vendor with the written permission of Company, but no assignment shall relieve Vendor from its obligations thereunder. Company may assign its rights and/or liabilities under a Contract at any time but such assignment shall not relieve Company from its responsibilities thereunder.
11. SEVERABILITY: If any term or other provision of any 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 Contract shall nevertheless remain in full force and effect.
12. ELECTRONIC COMMUNICATIONS: Company prefers to conduct its communication with Vendors and guarantors of Vendor obligations (“Guarantors”) through electronic communications. Vendor hereby consents to the terms of the Electronic Communication Terms and Conditions set forth in Company’s website.
13. CONFIDENTIALITY: Vendor agrees that it shall not disclose the terms of any Contract to any third party without the prior written consent of Company. Notwithstanding this prohibition, Vendor may disclose such terms to (a) its legal, accounting and tax advisors, and (b) internal personnel and external subcontractors who will assist in the provision of products and services required to be performed by Vendor under such Contract; provided that any such recipient shall be advised of this legal confidentiality requirement and shall agree to be bound thereby; and provided further, that Vendor shall be liable for any breach of this confidentiality requirement by a recipient. In addition, Vendor may disclose the terms of a Contract if required by or in accordance with valid service of process; Vendor agrees to give prompt telephonic and written notice of such required disclosure to Company and to use reasonable efforts to assist Company in resisting and limiting such disclosure.
14. REPRESENTATIONS: Vendor’s signatory hereby represents and warrants personally and on behalf of Vendor that he/she is authorized to execute the Contract on behalf of Vendor; that such execution, delivery and performance by Vendor have been duly authorized; and that the Contract represents the legal, valid, binding and enforceable obligations of Vendor.
Effective Date: 6/1/2022