1.1 Blue Diamond Growers will arrange shipment unless the parties otherwise specifically agree in writing. Shipping costs will be paid for by the party responsible for them as provided in the INCOTERMS specified in the Sales Contract, or if none, by Buyer. Blue Diamond Growers may ship the Goods by any route, whether all water or by land bridge, by one or more carriers, direct or indirect, with or without trans-shipment.
1.2 When the Sales Contract provides for Buyer to arrange for shipment of Goods:
(a) All carriage arrangements made by Blue Diamond Growers at Buyer’s request are made as agent for Buyer as provided in this Section 1.2.
(i) For North American shipments, Buyer will pay all shipping related costs and expenses including freight, insurance, storage, unloading, handling and other charges. Blue Diamond Growers will pay all loading costs at point of shipment.
(ii) For international shipments of full container loads of Goods other than shipments to be delivered EXW or FCA, Blue Diamond Growers will pay all inland transportation and terminal charges to the Oakland, California port. Buyer will pay all inland transportation and terminal charges for shipments of partial containers and in all other instances. All other shipping related costs and expenses including freight, insurance, storage, loading, unloading, handling and other charges will be borne by the parties in accordance with the INCOTERMS specified in the Contract, or if none, by Buyer.
(b) Buyer will provide instructions to Blue Diamond Growers for shipment of the Goods, including the port of destination (“Buyer’s Shipment Instructions”), not less than thirty (30) Days prior to the first day of the Shipment Period. Buyer may request a specified carrier or liner service by doing so in Buyer’s Shipment Instructions. Blue Diamond Growers will exercise reasonable efforts to comply with a request for shipment by a carrier specified by Buyer, however, if compliance is not reasonably practicable, or if no carrier is specified, Blue Diamond Growers will be entitled to select an alternative vessel line and/or carrier, as may be appropriate, in Blue Diamond Growers’ discretion.
(c) If Buyer fails to give Buyer’s Shipment Instructions for a Contract or shipment within the time specified in the Sales Contract, Blue Diamond Growers may either (1) mutually agree with Buyer on an extension of the Shipment Period for the Contract or shipment, or (2) terminate the Contract or shipment. If a Contract or a particular shipment is terminated, Buyer will reimburse Blue Diamond Growers for the out of pocket costs incurred by Blue Diamond Growers to the date of termination.
(d) Blue Diamond Growers is not responsible for ensuring that the Goods arrive in the port of final destination by any particular date, unless otherwise expressly agreed in writing.
(e) Buyer will pay any demurrage and storage costs incurred after the Goods reach the port of final destination.
2.1 Each party will obtain and pay for insurance of the Goods in accordance with the INCOTERMS provided for in the Sales Contract. When Blue Diamond Growers is responsible for arranging insurance, the following provisions will apply:
(a) Blue Diamond Growers will procure a policy of marine insurance against the risks of carriage. The insurance will be on Institute Commodity Trade Clauses (A) (‘All Risks’), if obtainable, or otherwise on the best terms reasonably obtainable. The policy of marine insurance will cover the Contract price plus ten percent (10%).
(b) If, in addition to the insurance described in Section 2.1(a) above, Buyer requests war risk insurance and/or comprehensive general liability insurance (including third party and product liability, broad form vendor’s liability, participants’ and contractual liability, personal injury, property damage, costs of recall, destruction and similar heads of claim), Blue Diamond Growers will exercise reasonable efforts to procure such insurance in the United States market for Buyer’s account and expense. If the requested insurance cannot be obtained on commercially reasonable terms, Blue Diamond Growers will notify Buyer accordingly.
3. TITLE AND RISK
3.1 The following provisions govern title and risk issues:
(a) Blue Diamond Growers retains title to the Goods until Blue Diamond Growers has been paid in full. If the Goods are mixed or modified prior to Blue Diamond Growers being paid, Blue Diamond Growers will own the mixed or modified product until such time as Blue Diamond Growers has been paid. Buyer will ensure that the Goods can be identified and separated from other goods held by Buyer by storing them separately or labeling them and by keeping stock records. Blue Diamond Growers can recover the Goods at any time following the occurrence of a Buyer Event of Default or Blue Diamond Growers considers its ownership of the Goods may be threatened by Buyer continuing to hold them. Upon forty-eight (48) hours advance notice to Buyer, Blue Diamond Growers may enter Buyer’s premises within normal business hours to recover the Goods or to ensure that Buyer is complying with this clause.
(b) Risk of loss and/or damage to Goods will pass from Blue Diamond Growers to Buyer at the point designated by the INCOTERMS specified in the Sales Contract.
4. QUALITY, GRADE, SIZE AND CONDITION
4.1 Goods at the time of shipment will be of the size, quality and grade specified in the Contract except when product substitutions are provided for in the Contract or otherwise agreed upon in writing by the parties.
4.2 The following section is limited to international transactions:
(a) Where an Aflatoxin Certificate has been issued by request or if required by law, and such certificate is either attached to the payment documents or otherwise furnished to Buyer prior to Arrival of Goods at the port of discharge, such certificate will constitute final and conclusive evidence as to aflatoxin content of the Goods at Delivery.
(b) For shipments to a country within the European Union only, where an inspector acting in accordance with Decision 2006/504EC as amended by 2007/563/EC determines that the Goods contain aflatoxin which exceeds the level permitted within the European Union, Buyer will be entitled to reject the Goods by providing written notice to Blue Diamond Growers within fourteen (14) Days of Buyer’s receipt of notice of the inspector’s determination. Where such a rejection occurs, Buyer will provide a copy of the Inspector’s determination and findings with laboratory analysis from an authorized European Union laboratory. In this event, (i) Blue Diamond Growers will ship substitute Goods to Buyer within sixty (60) Days of receipt of Buyer’s notice of rejection, on the same terms as the rejected consignment other than the Shipment Period, and (ii) Buyer, at the direction of Blue Diamond Growers, will either return the defective Goods to Blue Diamond Growers or redirect the rejected Goods to a third party, at the cost of Blue Diamond Growers.
(c) Subject to Section 4.2(b) above, the costs of an inspection at discharge will be for the Buyer’s account.
5.1 Pounds avoirdupois will be converted to kilograms at the rate of 2.2046 pounds per kilogram or as per the specific prevailing industry norm. CWT, or hundredweight, will mean 100 pounds avoirdupois. Almonds are sold on a net weight basis.
5.2 Blue Diamond Growers’ weight certificate is based on net pounds shipped. If the parties ever disagree on the weight of a particular shipment, Buyer will have the burden of proving that Blue Diamond Growers’ weight certificate is not accurate.
6.1 The Contract will be deemed separable as to all Goods sold thereunder and Buyer will not refuse to receive any lot or portion because of non-delivery or delay in delivery of any other lots or portion or the failure of any lot or portion to conform to Contract requirements. Blue Diamond Growers may ship the Goods in one or more shipments within the Shipment Period but will not, following shipment of ninety-five percent (95%) of the total contracted quantity, ship additional quantities unless such previous shipment has been noted as “partial delivery.” Where Goods are sold in shipments, and Buyer fails to pay for a shipment within ten (10) Days of the date it is due, Blue Diamond Growers may suspend all further shipments pending full performance by Buyer or consider the shipment or Contract terminated by Buyer.
7.1 Buyer will be deemed to have accepted a shipment of Goods and waived any and all claims with respect to them upon Arrival of Goods and Receipt of Documents, unless (a) Buyer notifies Blue Diamond Growers within two (2) Days of Arrival of Goods and Receipt of Documents of any carton damages and/or shortages, and/or (b) Buyer notifies Blue Diamond Growers within thirty (30) Days of Arrival of Goods and Receipt of Documents of any concealed damage to the Goods or that the Goods do not conform to any material specification expressly stated in the Sales Contract. Buyer’s notice of claim, to be effective, must include details of the basis for the claim, and supporting documentary evidence.
7.2 Notwithstanding the pendency of any claim with respect to a shipment of Goods, or with respect to any other shipment of Goods, Buyer will pay Blue Diamond Growers the full amount of the invoice for such shipment without offset, discount or other deduction.
8.1 Blue Diamond Growers will indemnify, defend and hold harmless buyer, with counsel reasonably acceptable to Buyer from and against any and all suits, claims, demands, loss, damage, liability and expense (collectively, “Liabilities”) arising from death of persons or damage to property caused by (a) Blue Diamond Growers’ shipment to Buyer of adulterated Goods pursuant to this Contract, and/or (b) Blue Diamond Growers’ breach of any representation, warranty or covenant established in this Contract.
8.2 Buyer will indemnify, defend, and. hold harmless Blue Diamond Growers, with counsel reasonably acceptable to Blue Diamond Growers from and against any liabilities arising from death of persons or damage to property caused by (a) Buyer’s or any agent or contractor of Buyer’s removal of the goods from their containers or alteration or modification of, addition to, misuse of, or otherwise tampering with the Goods, and/or (b) Buyer’s breach of any representation, warranty or covenant established in this Contract.
9. DEFAULT AND REMEDIES
9.1 Buyer Defaults. Each of the following will constitute a Buyer Event of Default:
(a) Buyer fails to make any payment due to Blue Diamond Growers owed under this or any other Contract within ten (10) Days of the date it is due as provided in the Sales Contract or Blue Diamond Growers’ invoice, regardless of whether there is a bona fide dispute between the parties as to the amount owed;
(b) Buyer breaches any other representation, warranty or covenant established in this Contract which is not cured within thirty (30) Days of receipt of notice from Blue Diamond Growers of the breach; and
(c) Buyer (i) declares a voluntary bankruptcy or fails to vacate an involuntary bankruptcy, insolvency or reorganization petition or petition for an arrangement or composition with creditors filed against such party within thirty (30) Days after the date of such filing, (ii) makes an assignment for the benefit of creditors, (iii) fails to vacate the appointment of a receiver or trustee for such party for any interest in such party’s business within thirty (30) Days after such appointment, or (iv) ceases to do business as a going concern or ceases to conduct its operations in the normal course of business.
9.2 Blue Diamond Grower Defaults. Each of the following will constitute a Blue Diamond Growers Event of Default:
(a) Blue Diamond Growers breaches any representation, warranty or covenant established in this Agreement, which is not cured within thirty (30) Days of receipt of notice from Buyer of the breach; and
(b) Blue Diamond Growers (i) declares voluntary bankruptcy or fails to vacate an involuntary bankruptcy, insolvency or reorganization petition or petition for an arrangement or composition with creditors filed against such party within thirty (30) Days after the date of such filing, (ii) makes an assignment for the benefit of creditors, (iii) fails to vacate the appointment of a receiver or trustee for such party for any interest in such party’s business within thirty (30) Days after such appointment, or (iv) Blue Diamond Growers ceases to do business as a going concern or ceases to conduct its operations in the normal course of business.
9.3 Remedies. In the event of a Buyer Event of Default or a Blue Diamond Growers Event of Default, the non-defaulting party will have the right and option to either (i) maintain this Agreement in full force and effect and enforce its rights at law or in equity subject to and in accordance with the terms and conditions of this Agreement, or (ii) terminate this Agreement and enforce its rights at law or in equity subject to an in accordance with the terms and conditions of this Agreement. The decision by either party to continue to perform its obligation under this Contract following an Event of Default by the other party will not constitute a waiver of the Event of Default or in any way affect the performing party’s remedies at law or in equity.
10. FORCE MAJEURE AND LIABILITY
Blue Diamond Growers will be excused from performance under this Contract for the duration of a force majeure event, as defined below, provided that either party may terminate this Contract upon notice to the other party if a force majeure event continues for more than twenty-one (21) consecutive Days. A “force majeure event” will mean any period of interruption in Blue Diamond Growers’ ability to perform its obligations under this Contract caused by crop shortage, fires, explosions, elements, floods, drought, or other acts of God, governmental action (including Blue Diamond Growers’ good faith efforts to comply with such action), war or hostilities, insurrection, rebellions, sabotage, riots or any other civil disorder, embargoes, wrecks, failure or delay in transportation, loss at sea, labor disputes, strikes, slowdowns, or other concerted acts or threatened acts of workmen, inability to obtain necessary materials or equipment, criminal conduct of third parties, acts of Buyer, or any other cause or contingency whatsoever beyond Blue Diamond Growers’ control. Blue Diamond Growers will notify Buyer of the date of occurrence of a force majeure event as soon as practicable following its occurrence.
Blue Diamond Growers will not be liable for a delay in shipment of the Goods or for non-delivery, or short delivery, within the Shipment Period, or for loss or damage to the Goods, caused or contributed to by a carrier engaged by Blue Diamond Growers to transport the Goods. In the case of a delay in shipment for any cause relating to carriage and/or the route, Blue Diamond Growers will promptly notify the Buyer of the delay and the reason for it, and the Shipment Period will be automatically extended for the duration of the delay as determined by Blue Diamond Growers in its reasonable discretion. Upon receipt of notice of delay from Blue Diamond Growers, Buyer may instruct Blue Diamond Growers to ship the Goods by an alternate route. All additional costs for such alternative routing will be for Buyer’s account and expense.
11.1 The Contract will be binding upon and inure to the benefit of the respective successors and assigns of Buyer and Blue Diamond Growers. Neither Buyer nor Blue Diamond Growers may assign its respective rights and obligations with respect to any sale governed by these terms and conditions without the prior written consent of the other party.
11.2 The Contract is the complete and final agreement between Buyer and Blue Diamond Growers concerning its subject matter, and supersedes all prior oral or written negotiations or agreements between the parties.
11.3 The terms of the Contract will be upheld to the fullest extent allowed by law. The terms of this Contract are severable, and the holding of any provision hereof void or unenforceable will not affect the validity or enforceability of any other provision.
11.4 All notices regarding legal service of process will be given as provided in the Sales Contract. All other notices required or contemplated by this Contract will be given in writing and will be personally served or delivered by one party to the other at the recipient’s address as shown on the Sales Contract, by either (a) prepaid priority delivery by Federal Express, UPS or another internationally recognized carrier, or (b) facsimile transmission or email to the party at its facsimile number or email address as specified in the Sales Contract. A notice will be deemed delivered on the date of delivery if personally served, on the next business day following the date of posting for overnight mail, or on the date of transmission if sent by facsimile or email transmission before or during the recipient’s normal business hours as confirmed by transmission receipt, or the date after transmission if sent after normal business hours.
11.5 If any legal action or proceeding is brought for the enforcement of this Contract, or because of an alleged dispute, breach, default, or misinterpretation in connection with any of the provisions of this contract, the successful or prevailing party will be entitled to recover reasonable attorney fees and other costs incurred in connection therewith (including fees and costs of collection of any amount due Blue Diamond Growers, whether incurred before or after commencement of such legal action or proceeding), in addition to any other relief to which it may be entitled.
11.6 Buyer recognizes and acknowledges Blue Diamond Growers’ ownership and the validity of Blue Diamond Growers’ trademarks, and no right to use these trademarks is conferred to the Buyer, without Blue Diamond Growers’ prior written consent and Buyer’s compliance with Blue Diamond Growers’ usage guidelines or requirements and quality control standards.
11.7 This Contract may be executed in any number of counterparts, each of which may be deemed an original, but all of which will constitute one and the same instrument.
12.1 “Aflatoxin Certificate” means a certificate issued by a laboratory approved by the United States Department of Agriculture (“USDA”), or a laboratory undergoing the USDA approval process, which has been accredited in accordance with EN/ISO/IEC 17025, regarding the presence or absence of aflatoxin in the Goods. For consignments destined to the EU, the Aflatoxin Certificate will comply with Decision 2006/504/EC as amended by Decision 2007/563/EC.
12.2 “Arrival of Goods” means the date of arrival of the Goods’ shipping container at the port or city of final destination.
12.3 “Blue Diamond Event of Default” has the meaning set forth in Section 9.2 of the General Terms.
12.4 “Buyer Event of Default” has the meaning set forth in Section 9.1 of the General Terms.
12.5 “Buyer’s Shipment Instructions” has the meaning set forth in Section 1.2(b) of the General Terms.
12.6 “Contract” has the meaning set forth in Section 2 of the Sales Contract.
12.7 “Days” means calendar days, rather than business days.
12.8 “Goods” means the quality, quantity and description of the commodity stated on the Contract Confirmation.
12.9 “INCOTERMS” means the eighth edition (2010) of international commercial terms published by the International Chamber of Commerce as they may be modified from time to time.
12.10 “Receipt of Documents” means that original documents have been presented to either Buyer or Buyer’s bank.
12.11 “Shipment Period” means the time period stated in the Contract in which Blue Diamond Growers is obliged to make Delivery of the Goods.
12.12 “Unit Price” means the price for a box or container of Goods of a standard weight or count as defined on the Contract Confirmation.