1. Nichols Pistachio, a California corporation (“Nichols” or “Seller,”) and the party identified on the attached Contract (“Buyer”) are sometimes referred to herein separately as a “Party” or collectively as the “Parties.” The agreement between the Parties shall be referred to herein as the “Contract.” No contractual term or condition shall be binding on Nichols until a formal Nichols Contract has been reviewed and specifically approved in writing by an authorized representative of Nichols. The sale of any Nichols’ product is expressly conditioned on Buyer’s assent to these Terms and Conditions (hereinafter “General Conditions”) and Nichols expressly objects to any additional or different terms. No Buyer document or written communication shall modify these General Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these General Conditions. Any order to purchase product shall constitute Buyer’s acknowledgment of, and assent to, these General Conditions. Buyer represents and warrants that it is not subject to any trade sanctions imposed by the U.S., EU and/or UN and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including trade sanctions imposed by the US, EU and/or UN) with respect to product sold hereunder, and shall provide evidence of compliance with the foregoing as Nichols may reasonably request from time to time.
  2. Sale of Goods. Nichols shall transfer and deliver to Buyer, and Buyer shall pay for and accept the goods described in the Contract.
  3. Price. Contract prices are exclusive of: a. All sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; however, Buyer shall not be responsible for any taxes imposed on, or with respect to, Nichols’s income, revenues, gross receipts, personnel or real or personal property or other assets. b. Shipping and handling charges are the obligation of Buyer unless otherwise specified herein and will be added to the invoice if prepaid by Nichols.
  4. Payment Terms. Terms of payment are (i) cash in advance of shipment unless, after submission of a credit application by Buyer, credit is approved in writing by an authorized representative of Nichols, (ii) cash against documents (CAD) or (iii) submission of an acceptable letter of credit paid upon submittal of shipping documents, all payable in the currency specified in the invoice. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Nichols for all costs incurred in collecting any payments, including, without limitation, attorneys’ fees and court costs. In addition to all other remedies available under these General Conditions or at law (which Nichols does not waive by the exercise of any rights hereunder), if Buyer fails to pay any amount when due, Nichols shall be entitled to (i) cancel the remaining shipments or (ii) suspend delivery of any remaining shipments until Buyer provides adequate assurance of timely future payments. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Nichols, whether relating to Nichols’s breach, bankruptcy or otherwise. If Buyer disputes any invoice or portion thereof, it shall notify Nichols in writing within thirty (30) days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.
  5. Delivery and Shipping. For shipments that do not involve export, Nichols shall deliver product to Buyer F.O.B. Nichols’s Facility unless otherwise specified herein. For export shipments, Nichols shall deliver product to Buyer Cash Against Documents (CAD); FOB Nichols’ Facility, Hanford, CA; or as otherwise designated in the Contract. Partial deliveries are permitted. Delivery times are approximate and are dependent upon prompt receipt by Nichols of all information necessary to proceed with processing the product without interruption. If product delivered does not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Nichols within ten (10) days after receipt.
  6. Title and Risk of Loss. Unless otherwise specified herein, title shall pass to Buyer upon departure of product from Nichols’ facility. Shipping and risk of loss is Buyer’s responsibility unless designated otherwise in this Contract. Nichols may, at its sole option, arrange shipping upon Buyer’s request, and may charge logistics fee. Export shipments requiring aflatoxin testing require a minimum of 14-days’ notice prior to shipment and may result in additional charges to Buyer for testing and certification requested by Buyer or when required by government authorities at origin or destination. When Buyer arranges export shipment, Buyer will provide Nichols evidence of exportation acceptable to the relevant tax and custom authorities. Risk of loss shall pass to Buyer upon passage of title. If any product to be delivered under this Contract cannot be shipped to or received by Buyer when ready, due to any cause attributable to Buyer, Nichols may ship the product to a storage facility or to an agreed freight forwarder. If Nichols places product into storage, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Nichols upon delivery or shipment shall be due; and (iii) a fee of two percent (2%) of the contract amount will be charged to Buyer.
  7. Packaging and Processing. Nichols shall package goods in accordance with timely provided instructions of Buyer. Special requests or changes to orders, whether to packaging, grade, size or otherwise, must be approved by Nichols in writing and may cause delay in shipment and additional charges.
  8. Nichols Right to Substitute Product. In the event that the product ordered is unavailable for any reason at the time of a scheduled shipment, including the natural variability in annual crop production, Nichols reserves the right to substitute product and will provide written notice to Buyer of the substitution and any price adjustment.
  9. Cancellation of Purchase Order. Buyer may cancel its order only with the prior written consent of Nichols, which Nichols may withhold in its sole discretion. All cancelations will be subject to payment to Nichols of reasonable cancelation charges. Buyer may return product only at its sole cost and only with the prior written authorization of Nichols, subject to a restocking fee. No returns of special, custom, or made-to-order product will be permitted. No returns will be permitted more than sixty (60) days after delivery.
  10. Nichols’ Lien. As collateral security for the full payment of the purchase price of the product, Buyer hereby grants to Nichols a lien on, and security interest in, the product, wherever located, as well as all proceeds (including insurance proceeds) covering the product. Nichols shall have the right to file any and all documents and take any action it deems necessary to fully protect its security interest in the product; however, the failure of Nichols to file any such document shall not in any way act as a waiver of Nichols’s right to such security interest.
  11. Disclaimer of Express Warranties. Nichols warrants that the goods are as described in the Contract. NICHOLS MAKES NO OTHER WARRANTY WITH RESPECT TO THE GOODS AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Nichols personnel are not authorized to alter this disclaimer of warranty.
  12. Limitation of Liability. Any liability of Nichols for non-delivery of the product or any portion thereof shall be limited to replacing the product within a reasonable time or adjusting the invoice respecting such product to reflect the actual quantity and product delivered. (a) IN NO EVENT SHALL NICHOLS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT NICHOLS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (b) IN NO EVENT SHALL NICHOLS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO NICHOLS FOR THE PRODUCT SOLD HEREUNDER. (c) This limitation of liability is a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between Nichols and Buyer, without which Nichols would not have agreed to provide the product at the price charged.
  13. Unpasteurized Product. For Buyers purchasing unpasteurized product: Buyer acknowledges that it is purchasing raw, untreated and unpasteurized product. Buyer accepts product on an “as is” basis. Buyer is responsible for treating the product to achieve compliance with common food safety practices to ensure validated kill steps are taken. Buyer agrees to indemnify and hold Nichols and any related entities harmless from and against any and all claims resulting from injury, death or damage resulting from the sale or distribution of unpasteurized or improperly pasteurized product.
  14. Adequate Assurance. Nichols reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to Nichols in the event of: (i) Buyer’s insolvency, (ii) Buyer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Buyer or (iv) the execution by Buyer of an assignment for the benefit of creditors. Nichols reserves its right to suspend its performance until payment or adequate assurance of performance is received and also reserves its right to cancel Buyer’s credit at any time for any reason.
  15. Remedies. The Parties shall have all remedies afforded by the Uniform Commercial Code. In addition to all other remedies available under these General Conditions or at law (which Nichols does not waive by the exercise of any rights hereunder), Nichols shall be entitled to suspend the delivery of any product if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof. Nichols reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to Nichols in the event of: (i) Buyer’s insolvency, (ii) Buyer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Buyer or (iv) the execution by Buyer of an assignment for the benefit of creditors. Nichols reserves its right to suspend performance until payment or adequate assurance of performance is received and also reserves its right to cancel Buyer’s credit at any time for any reason.
  16. Arbitration. All questions and disputes with respect to rights and obligations of the Parties arising under the terms of the Contract shall be resolved by binding arbitration. If a dispute arises, either Party may demand arbitration by filing a written demand with the other party. If the Parties cannot agree on one arbitrator, there shall be three: one named in writing by each Party within twenty (20) days after the Parties fail to agree on one arbitrator, and a third chosen by the two appointed. Should either Party refuse or neglect to join in the appointment of the arbitrator(s) or to furnish the arbitrator(s) with any papers or information demanded, the arbitrator(s) may proceed ex-parte. A hearing on the matter to be arbitrated shall take place before the arbitrator(s) in the state of California. The arbitrator(s) shall select the time and place promptly and shall give each Party written notice of the time and place at least 90 days before the date selected. The Parties shall be entitled to conduct discovery by agreement or by order of the arbitrator(s). Each Party may present any relevant evidence at the hearing. The formal rules of evidence applicable to judicial proceedings shall not govern and evidence shall be admitted or excluded in the sole discretion of the arbitrator(s). The arbitrator(s) shall hear and determine the matter and shall issue an award in writing and cause a copy of the writing to be delivered to each of the Parties. If there is only one arbitrator, his or her decision shall be binding and conclusive on the Parties. If there are three arbitrators, the decision of any two shall be binding and conclusive. If three arbitrators are selected, but no two of the three are able to reach an agreement regarding a decision, then the matter shall be decided by one arbitrator selected by a majority of the original arbitrators. The new arbitrator shall examine the evidence and the decisions of the initial arbitrators and shall choose between the proposed decisions of the three initial arbitrators. The alternate arbitrator’s decision shall be final. A judgment confirming the award may be given by any Superior Court having jurisdiction. The costs of the arbitration shall be borne by the losing party or shall be borne in such proportions as the arbitrator(s) determine(s).
  17. Interpretation and Parol Evidence. This writing is intended by the Parties as a final expression of their agreement concerning the matters contained herein and is also intended as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the Parties and no usage of the trade shall be relevant to supplement or explain any term used in the Contract. Acceptance or acquiescence in a course of performance rendered under the Contract shall not be relevant to determine the meaning of the Contract even though the accepting or acquiescing Party has knowledge of the nature of the performance and opportunity for objection.
  18. Amendment and Modification. These General Conditions may only be amended or modified in a writing, signed by authorized representatives of Buyer and Nichols, which specifically states that it amends these General Conditions.
  19. Waiver. No waiver of any of the terms or provisions of the Contract is effective unless explicitly set forth in writing and signed by an authorized representative of Nichols. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising under the Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  20. Assignment or Delegation. Buyer shall not assign any of its rights without the prior written consent of Nichols. Any purported assignment in violation of this Section is null and void. No assignment relieves Buyer of any of its obligations under the Contract.
  21. Force Majeure. Nichols shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached its obligations, for any failure or delay in fulfilling or performing any term of its Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Nichols including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
  22. Time for Bringing Action. Any arbitration for an alleged breach of contract must be commenced within two years after the cause of action accrues.
  23. Applicable Law. The Contract shall be governed by the Uniform Commercial Code as adopted in the State of California as effective and in force on the date of the Contract.
  24. Submission to Jurisdiction. Any action or proceeding arising out of or relating to this Contract shall be instituted in the Superior Courts of the State of California, County of Kings. Each party irrevocably submits to the exclusive jurisdiction of such court.
  25. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing addressed to the address that each Party provides to the other. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  26. Severability. If any term or provision of the Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
  27. Survival. Provisions of these General Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these General Conditions including, but not limited to, the following provisions: Compliance with Laws, Governing Law, Submission to Jurisdiction/Arbitration and Survival.
  28. Complete Agreement. These General Conditions, when combined with the Term Sheet between Nichols and Buyer, constitute the entire agreement between Buyer and Nichols relating to the sale of product and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof.