1. General.
1.1. Applicable Contract Provisions.
For the purpose of this GTCS: (i)
"Buyer" means any individual or entity purchasing Product, and any
affiliates, subsidiaries, successors and assigns thereof; (ii) “Seller” or
"Citrofrut" means Citrofrut, S.A. de C.V., and/or Citrofrut USA, LLC;
(iii) "Order" means any written order, purchase order, contract or any
other document accepted in writing by Citrofrut for the supply of Product,
which shall include description and specifications of Product, quantity,
delivery terms, final purchase price and payment terms, among others
particular terms; (iv) "Product" means all products and/or services to be
supplied by Seller to Buyer under an Order
1.2. These GTCS and an Order, together with any other documents,
which Seller has attached or referenced hereto as part of this GTCS (the
"Agreement"), are the sole and complete contract between Buyer and
Seller in respect to the Product and supersede all prior oral and written
understanding. Seller rejects those provisions of any previous order,
offer, or other communication from Buyer, which are additional to or
different from the terms hereof. Neither Seller’s delivery of the Product
nor any other Seller’s action at any time shall constitute acceptance of
such additional or different terms. Buyer shall be bound by all of the
terms of this Agreement when Buyer accepts this Agreement by any
statement, act or course of conduct which constitutes acceptance under
applicable law, including failure to object in writing hereto within a
reasonable time and acceptance of delivery of the Product, shall be
deemed as a Buyer’s acceptance to the terms and conditions contained
hereunder, and shall supersede and amend any and all conflicting terms
and conditions contained in any Order.
1.3. The Product representing the subject-matter of the Agreement is
restricted to such from Seller´s manufacturing, and for the avoidance of
doubt, Seller will not warrantee any Product from any other source.
2. Orders.
2.1. The Parties agree that all Orders are subject to Seller’s written
acceptance.
3. Shipment and Delivery Terms.
3.1. Shipment mode (and routing, as applicable) will be at Seller´s sole
discretion unless otherwise specified in writing by Seller. Each shipment
or delivery hereunder shall be construed and considered as a separate sale
insofar as the Buyer´s obligation to pay for the Product under the terms
of the Order, and Buyer agrees to accept and pay for each such shipment
or delivery without regard to other shipments or deliveries. Seller´s
failure to meet the delivery dates specified in the Order, shall not be
deemed a breach. Unless otherwise agreed by Seller, all shipments shall
be received by Buyer within the contract term, and as specified in the
following section 5.
3.2. Product to be made available to Buyer by Seller shall be in
accordance with the agreed INCOTERM (published by the International
Chamber of Commerce “ICC”) stated in the Order.
3.3. All weights of Product shall be determined as of the points of origin.
3.4. If the shipment of Product is through Goodpack containers, Buyer
shall request without any cost its collection upon arrival but no later than
180-calendar days from the invoice date, made to Goodpack container's
collection contact available by Seller's sales executive. Buyer accepts to
pay any delayed delivery penalties, including additional expenses if the
term in this Section 3.4. exceeds. Buyer provides its consent to pay Seller all invoiced amounts due to delay on delivery, included damages, repairs, or replacement containers cost due to Buyer's negligence
4. Pricing/Taxes.
4.1. Pricing shall be as set forth in an Order. Unless agreed otherwise in
an Order, Pricing is based upon taxes, tariffs, duties, assessments,
surcharges, and other levies existing at the time of confirmation by Seller.
4.2. A clerical error in stated prices is subject to correction at any time,
including after the acceptance of an Order by Seller.
5. Quantities.
5.1. Unless otherwise expressly stated in the Order, the minimum order
quantity must be met for the price to apply
6. Quality Standards.
6.1. All Product purchased and delivered shall seek to meet the quality
standards outlined in the Product purchase confirmation and Buyer´s
specifications. In the event Product does not conform to the standard,
Buyer shall notify Seller of such nonconformance as established in
section 7 below; Seller shall have the right to replace the non-conforming
Product with an equal quantity of Product which meets the standards set
forth in the confirmation. Any dispute of the quality standards, the United
States of Department of Agriculture (“USDA”) score sheet shall control
to the extent that the item in dispute is covered by such score sheet.
7. Inspection and Rejection.
7.1. Inspection of Product shall be made by Buyer upon arrival of the
Product at Buyer´s point of delivery.
7.2. Buyer shall notify Seller in writing, if any container (bins, drums,
pails) used for the packing of the Product is found to be damaged, opened
or non-sealed properly, within the next twenty-four (24) hours after the
arrival of the Product.
7.3. Buyer shall notify Seller in writing of any failures to conform the
Product quality specification, in a period no more than fifteen (15)
calendar days after the arrival of the Product, stated that, in the case of
any product transported in bulk containers, the period of notification from
Buyer to Seller must be no more than twenty-four (24) hours after
delivery.
7.4. All claims submitted by Buyer must include material evidence of their claim.
8. Force Majeure.
8.1. Seller shall not be liable for failure or delay due to causes beyond its
control, Acts of God, or force majeure affecting the delivery of the
Product. These causes shall include, but not be restricted to, fire, storm,
flood, earthquake, explosion, accident, acts of any public enemy, war,
rebellion, insurrection, sabotage, terrorism, epidemic, quarantine
restrictions, labor disputes, or controversies (including disputes or
controversies which exist by reason of the refusal of Seller to prevent,
settle, or resolve such dispute or controversy on terms unacceptable to it),
plant break down, labor shortages, transportation, embargoes, or failures
or delay in transportation, fuel or energy shortages, power interruption of
failures, acts, rules, regulations, orders or directives of any government
or political subdivision (including changes in tariffs and taxes), agency
or instrumentality thereof, or the order of any court, or arbitral body of
competent jurisdiction or other events. In such event, Seller may
postpone or cancel delivery without liability.
9. Cancellation.
9.1. If Buyer desires to cancel or modify an Order, Buyer shall notify
such request to Seller in writing. If cancellation or modification is agreed
upon by Seller, Buyer agrees to pay to Seller all expenses incurred, and
damage sustained by Seller on account of the cancellation or
modification.
10. Payment Terms and Credit.
10.1 If in Seller´s sole judgment the financial responsibility of Buyer
shall become impaired or unsatisfactory to Seller, the terms of payment
can be modified at the Seller’s sole discretion.
10.2. Buyer is responsible for ensuring that payment is made to Seller´s
correct lieu of payment. For fraud avoidance purposes, Seller will never
initiate payment method changes via email or telephone. In the event
Seller needs to change its payee bank account information or payment
method, then Seller will send Buyer a notification letter. Upon receipt of
such letter and prior to changing bank account information or payment
method, Buyer must contact Seller’s representative to positively confirm
the account change, and Buyers accepts responsibility for misdirected
funds.
10.3. Should Buyer fail to pay within the agreed payment terms Seller,
may at its option, defer further shipments, or without any liability
terminate the contract or Order, and Buyer shall be responsible for any
expenses or losses sustained by Seller because of such termination.
10.4. The standard method of payment of any Order shall be via wire
transfer of funds. If Buyer is allowed to make payment via check,
reception of the check by Seller must be made within the agreed payment
term.
11. Interest/Collections.
11.1. Any amount not paid to Seller when due shall be subject to a late
payment fee computed monthly until such unpaid amount is paid in full,
at an interest rate of one-point-five percent (1.5%) per month. Buyer shall
be liable for all costs of collection, including but not limited to Seller´s
reasonable attorney’s fee, court costs and disbarments, and Seller
reserves the right to (i) withhold shipment of the Product until full
payment is made, and/or (ii) revoke any credit extended to Buyer.
11.2. In the event of any dispute regarding an invoice, no finance charges
will apply in the event that Buyer provides written notice of the dispute
prior to the due date for such payment.
12. Urgent Delivery
12.1. Seller´s price calculation is based on standard shipping charges on
regular dates of shipment; additional charges for urgent or express
delivery will all be billed in addition to the quoted price.
13. Warranty and Limitation of Remedies.
13.1. Seller makes no warranty with respect to the merchantability of any
Product sold hereby for any particular purpose or use unless such a
warranty is expressly set forth in the applicable Order.
13.2. In case of any damages, the Seller´s sole liability hereunder shall
not exceed either (i) replacement of any defective Product or, at the sole
option of Seller, (ii) refunding to the Buyer the Purchase Price paid for
such defective Product by means of a credit note.
13.3. Seller shall have no liability for indirect, incidental, consequential
or special damages of any kind, these limitations are agreed allocations
of risk.
14. Indemnification.
14.1. Buyer will defend, indemnify, and hold harmless Seller and its
parent companies, their respective subsidiaries, affiliates, successors, and
assigns and their respective directors, officers, shareholders, and
employees from, and against any loss, injury, death, damage, liability,
claim, deficiency, action, ,judgment, interest, award, penalty, fine, cost,
fees (including import and export customs fees), or expenses (including
reasonable attorney and professional fees and costs, and the cost of
enforcing any right of indemnification hereunder and the cost of pursuing
any insurance providers) ("Claims") arising out of or occurring in
connection with the negligence or willful misconduct of Buyer or its
employees or agents, including but not limited to; (a) any misuse or
modification of the Product by Buyer or its employees or agents, or (b)
the failure to store, or maintain the Product in accordance with the
Seller’s instructions.
15. Compliance with Laws.
15.1. Each Party shall comply with applicable laws, regulations,
ordinances, and conventions and standards that relate to the contents,
source of contents applicable by the laws in the matter without limitation
environmental matters and applicable regulations and related in any
country where the Parties do business.
16. Applicable Law and Arbitration.
16.1. This Agreement, unless otherwise stipulated or agreed to in writing,
shall be construed according to and governed by the laws of the State
Texas, or the by the federal laws of the State of Nuevo León, México, at
the sole discretion of Seller.
16.2. Any controversy or claim arising out or relating to this Agreement,
or the breach thereof, shall be settled by arbitration and be carried out in
the State of Texas; or in the federal courts located in the State of Nuevo
León, México at the sole discretion and election of Seller, and must be
held in accordance with the rules of the International Chamber of
Commerce (“ICC”) and judgment upon the award rendered by the
Arbitrator(s) may be entered in any court having jurisdiction thereof. The
award of the Arbitrator(s) shall contain the reasons or grounds therefor.
Non-applicable shall be the United Nations Convention on Contracts for
the International Sale of Goods (“CISG”) of 11.04.1980.
17. Termination
17.1. This Agreement shall continue in effect as hereinabove until termination agreed by the Parties.
17.2. Seller shall have the right to immediately terminate this Agreement
if Buyer shall (i) become insolvent, commence or file any voluntary or
involuntary proceeding or petition in bankruptcy in any court; (ii) make
any assignment for the benefit of creditors; (iii) enter into any
composition with its creditors; (iv) fails with any payment obligation
hereunder; (v) fails with its obligation to ratify this document before
notary public designated by Seller; (vi) fails to comply with any of its
obligations hereunder whatsoever, or (vii) if a receiver is appointed for
any of the Buyer’s property.
18. Severability.
18.1. If any provision of this Agreement is held to be unenforceable by
final order of any court of competent jurisdiction, that provision shall be
severed from this Agreement, and shall not affect the interpretation or
enforceability of the remaining provisions of this Agreement.
For any Order accepted by Seller and emitted from Buyer, the latest
expressly accepts and
