ICM BIOFUELS, LLC - TERMS & CONDITIONS
PURCHASE OF GOODS AND/OR SERVICES
These terms and conditions ("Terms") apply to and are incorporated in each purchase order ("PO") issued by ICM Biofuels, LLC ("Buyer") to supplier ("Supplier"). The term "Goods" means materials, equipment, supplies, and any other tangible items supplied by Supplier. The term "Services" means all labor of every kind and character, and all design, review, investigation, diagnostics, evaluation, testing, installation and other associated services of every kind required of Supplier to fulfill the PO, whether such Services are related to Goods, or are furnished independently of any Goods.
Goods and/or Services will be supplied by Supplier to the ethanol plant facility managed by Buyer located at 2811 South 11th Street,, St. Joseph, MO 64503 (“Facility”). Buyer's POs may be documented, transmitted and acknowledged electronically.
1. Issuance and Acknowledgement of PO. Buyer will issue its PO, and Supplier shall acknowledge the issuance of each PO within three (3) business days. If Supplier furnishes the Goods and/or Services without acknowledging the Buyer-issued PO, Supplier will be deemed to have accepted the PO as issued.
2. Pricing/Delivery Schedule. The pricing of Goods and/or Services shall be as set forth in the PO. Prices are in United States dollars (US$). Supplier's acceptance of the PO constitutes Supplier's agreement to the pricing and delivery schedule stated thereon.
A. Supplier warrants that the Goods delivered by Supplier to Buyer in fulfillment of Buyer's PO are merchantable, are fit for their intended purposes, are free from infringement of any third party patents if used in accordance with Supplier’s instructions, and will be free from defects in material and workmanship under the specified use with proper maintenance (the "Warranty") for a period of (i) one year from date of delivery to Buyer, (the "Warranty Period"). As used in this Warranty provision, the parts, assemblies, accessions and attachments that are manufactured or supplied by third parties ("Third Party") to Supplier and incorporated in the Goods are referred to as "Third Party Goods". If a Third Party disclaims any express warranties on which Buyer has relied in its discussions with Supplier, or the implied warranties of merchantability and fitness for a particular purpose as to any Third Party Goods incorporated in Supplier's Goods, then this Warranty by Supplier to Buyer constitutes an express warranty that the Third Party Goods are merchantable and fit for the particular purpose used by Supplier in fulfilling Buyer's PO. As to any Services, Supplier further warrants that the Services provided will conform to the applicable specifications, will be performed by persons skilled and experienced in their respective trades and crafts, will conform to the applicable standard of care, and will be free from defects in workmanship.
B. All Goods, repairs to the Goods, and replacement Goods furnished pursuant to the Warranty will consist entirely of only new materials and components, and shall not be used or reconditioned, unless Buyer expressly notes on the face of its PO that it is purchasing used or reconditioned goods. All Services will be supervised by an appropriately licensed person, if applicable.
C. If the Goods and/or Services fail to conform to the Warranty during the Warranty Period, Buyer will give written notice of same to Supplier.
Supplier, at its sole expense, shall thereafter promptly and timely proceed to repair or replace any and all defective Goods, and remedy and cure any defect in Services. Buyer shall determine, in its commercially reasonable business judgment, whether defective Goods are repaired or replaced. If Supplier’s repair or replacement of Goods or remedy and cure of any defect in Services disturbs or interferes with other goods or work at the Facility, Supplier will also pay all deinstallation and reinstallation costs associated with such other goods and/or work. Goods repaired or replaced under the Warranty will be warranted by Supplier for an additional extended Warranty Period running until one (1) year after completion of the repair or replacement work.
4. Confidentiality Agreement; Buyer's Confidential Information.
A. Supplier acknowledges it may have previously executed, or may in the future execute a confidentiality agreement ("Confidentiality Agreement") with Buyer, and/or with one or both of Buyer’s Affiliates, ICM, Inc., or Lifeline Foods, LLC. Any Confidentiality Agreement with ICM, Inc. or Lifeline Foods, LLC shall also be deemed by this reference to apply to purchases by Buyer, and to all Confidential Information of Buyer related to its operation of the Facility. Any cause of action arising out of the applicable Confidentiality Agreement shall be exclusively adjudicated pursuant to the specific provisions of the Confidentiality Agreement.
B. All trade secrets, know-how and other "Confidential Information" (as that term is defined in any Confidentiality Agreement) furnished to Supplier in connection with the PO shall remain the exclusive intellectual property of Buyer subject only to the rights of Buyer’s Affiliates as applicable.
C. Supplier's specifications, drawings and other documentation, if any that incorporate Buyer or Buyer’s Affiliates’ Confidential Information constitute Buyer's work product that has been purchased by Buyer along with the Goods covered by the PO. Supplier is prohibited from using such work product in connection with any other supply for any other party.
D. All dies, tools and equipment required to manufacture the Goods shall remain the property of Supplier, but to the extent that same incorporate Buyer's Confidential Information, Buyer's rights are as provided in the Confidentiality Agreement.
E. Under no circumstances will Supplier transmit Buyer's Confidential Information outside the United States, unless (i) Buyer has expressly agreed in writing to such transmission to a particular party (which agreement may be withheld in Buyer’s sole discretion), and (ii) the Confidential Information has been marked for export by Buyer.
F. Notwithstanding anything to the contrary in the Confidentiality Agreement, Supplier expressly authorizes Buyer to disclose to Buyer’s Affiliates the price at which Buyer acquired Goods from Supplier, if Buyer's agreement related to its operation of the Facility requires it to do so.
5. Changes in PO by Buyer to be Confirmed by Supplier.
Supplier will not make any deviation or substitution from any drawings, data, specifications, or requirements unless it first obtains a written change order approved by an authorized Buyer representative. If Buyer has not issued an amended PO, any changes to the PO shall be confirmed in writing by Supplier, and acknowledged in writing by Buyer's authorized representative.
6. No Changes in Terms by Supplier Effective Against Buyer Unless Buyer Consents in Writing.
Any portion of Supplier's proposal, acceptance, confirmation, invoice, written terms and conditions, other writing, or shipment to Buyer that varies from or adds to: (i) these Terms; (ii) the PO's terms, conditions, deliveries, delivery dates, prices, quality, quantity, specifications, or shipping destination; or (iii) Buyer's subsequent written communications to Supplier, shall constitute different terms ("Different Terms"). The Different Terms will not become effective until and unless Buyer agrees in writing to such Different Terms in advance of any action being taken by Supplier pursuant to such Different Terms. If Supplier ships any Goods without obtaining such advance written authorization, Buyer will only pay the original unit price amount for the units of Goods shipped, and/or for the original quantity ordered, as applicable. Buyer reserves the right to change these Terms by a posting of different or amended Terms at its website at any time, without notice, and such changed Terms shall be effective as to all PO’s issued to Supplier on the day following the posting at Buyer’s website.
7. Changes in Drawings or Time/Place of Delivery by Buyer; Export Compliance.
Buyer may at any time, by written notice, make changes in drawings, designs or specifications or in the time or place of delivery. If any such changes cause an increase or decrease in the cost of, or time required for, performance of the PO, Supplier shall advise Buyer in writing of such increase or decrease within three (3) business days. Buyer shall then notify Supplier in writing within three (3) business days whether it agrees that an adjustment will be made in the price and/or the delivery schedule for the Goods.
Supplier will provide Buyer with a valid, current insurance certificate in coverage amounts and types reasonably determined by Buyer pursuant to its written notice to Supplier, and with renewal or replacement certificates as necessary on a timely basis. Buyer, at minimum, will provide evidence that it carries commercial general liability insurance with completed operations and products coverage, in an amount of not less than $1million per occurrence/year. Buyer may from time to time give Supplier written notice that it requires other types and amounts of insurance coverage be maintained by Supplier, which requirements shall be effective for each PO issued by Buyer after the date of such notice. Buyer's insurance requirements are incorporated in these Terms by reference. Except where prohibited by applicable law: (i) Buyer shall be an additional insured under Supplier's commercial general liability policy of insurance; (ii) Buyer shall receive 30 days notice of cancellation or non-renewal; (iii) Supplier's insurance policies shall be primary and non-contributory to those of Buyer; and (iv) Supplier waives subrogation against Buyer.
9. Title to Goods.
Title to and responsibility for any Goods acquired by Buyer shall pass to Buyer at the designated delivery point on the PO. All Goods delivered by Supplier pursuant to the PO shall be free and clear of all security interests, liens, encumbrances and claims of third parties of every kind and nature, and Supplier hereby covenants and warrants that Buyer shall acquire good, free, clear and marketable title thereto. Supplier expressly covenants that no liens will attach to the Facility as a result of its performance of the PO, if Buyer pays in accordance with the PO. Where required by Buyer, Supplier will execute a partial and final lien waiver upon receipt of applicable payments.
10. Inspection of Goods; Rejection of Non-Conforming Goods; Revocation of Acceptance.
A. Buyer may conduct inspections, at its costs and for its account, on all Goods, before and after delivery at destination. Buyer will refuse acceptance of, reject, or revoke acceptance of Goods and/or Services that do not fully conform to Buyer’s POs, instructions, specifications, drawings and/or designs, quality, type and quantity. Buyer will reject Services not performed in accordance with its specifications.
B. Buyer's payment of an invoice for Goods and/or Services does not constitute acceptance of the Goods or Services as conforming to Buyer's POs, and Buyer reserves all of its rights at law and in equity for cover damages for any non-conforming Goods.
C. Goods that Buyer has rejected, or for which Buyer revokes acceptance, will be returned at Supplier’s expense.
11. Damaged Goods; Packaging.
Supplier will package all Goods to ensure that they are not damaged in transit. Buyer will not be charged or invoiced for boxing, packing or crating, unless otherwise agreed to in writing by Buyer on the face of the PO. All Goods damaged prior to the transfer of title to Buyer will be returned to and replaced by Supplier at its sole cost and expense.
12. Invoices; Payment Terms; Packing Slips
A. Buyer will pay invoices in accordance with the PO. Buyer will not accept any invoice from Supplier that lists "verbal" as the PO Number. At Buyer’s request, Supplier must produce an acknowledged copy of the PO in order to obtain payment of the invoice. Supplier's shipment will include a packing slip that clearly identifies the PO number, line item number, and description as it appears on the PO.
B. Invoices will be submitted to Buyer's office location stated on the face of the PO, and shall contain the following information: (i) invoice number; (ii) PO number; (iii) item number(s); (iv) description of Goods; (v) sizes; (vi) quantities; (vii) unit prices; and (viii) extended totals. All invoices must be issued in the same unit of measure as shown on the PO.
13. Taxes Invoiced Separately.
The PO prices are exclusive of all applicable federal, state and local sales, use and excise taxes, export or import fees and duties (together, “Taxes”). Any Taxes will be added to the invoice as a separate charge to Buyer, only if Buyer is required to remit the tax by the applicable taxing authority.
14. Hold or Cancellation of PO by Buyer.
Buyer may place a Hold on its PO, and/or may cancel its PO at any time by giving written notice to Supplier. Written notice may be given by Buyer by electronic mail, facsimile or recognized overnight courier. If the notice is given by electronic mail, Supplier may reply by electronic mail, facsimile, or certified mail, and Buyer will acknowledge receipt of the reply. If the notice is given by telefacsimile, Supplier may fax back its acknowledgement, if it retains proof that the transmission was sent, or may reply by certified mail. In no event will Buyer be obligated for storage charges for a held PO unless the storage arrangement with a specific rate has been expressly agreed to by Buyer’s authorized representative in writing.
15. Cancellation Charge for Cancellation for Convenience.
Only if the cancellation is for Buyer's convenience, Buyer shall negotiate in good faith with Supplier to determine whether a cancellation charge ("Cancellation Charge") shall be paid by Buyer. Any cancellation charge must be mutually agreed to and reasonable under all of the circumstances, including whether the cancelled Goods were to be specially manufactured for Buyer, and whether the Services were partially performed. If the Cancellation Charge causes Buyer to pay for materials, semi-finished, and/or completed Goods related to the cancelled PO, Buyer may, at its election, take possession of same within a reasonable time following cancellation of the applicable PO. Supplier agrees to fully cooperate in the negotiation by providing documentation reasonably requested by Buyer to verify Supplier’s claimed charges and expenses. Notwithstanding Buyer’s cancellation of a PO, Buyer retains its right of inspection under Section 10.A.
16. Buyer's Reserved Remedies for Cancellation for Breach.
If the cancellation of the PO is for cause arising out of Supplier's breach, including but not limited to a defect in Goods for which Supplier does not timely perform its Warranty obligations as defined in Paragraph 3 above, or Supplier's failure to meet Buyer's delivery date stated on the PO, Buyer reserves all its available remedies at law and in equity for recovery of its damages.
17. Indemnification by Supplier.
A. Supplier shall fully indemnify and hold harmless Buyer, its members, officers, agents and employees, for each claim of every kind and character (including reasonable attorneys' fees incurred by Buyer in defense of any such claim), for for damage or loss to property, for bodily injury including death, or both ("the Loss Event"), where the Loss Event is caused either by (i) the Goods furnished or the Services performed by Supplier to Buyer pursuant to the PO, or (ii) by the negligence or misconduct of Supplier, its employees, agents, representatives or subcontractors. Where the Loss Event is contributed to by the negligence of Supplier and/or those acting on behalf of Supplier, comparative negligence principles shall be applied.
B. Supplier shall fully indemnify and hold harmless Buyer and the Facility Owner for each and every lien asserted or filed by any party that provided materials, labor or supplies to Supplier in connection with the Goods delivered and/or Services performed by Supplier and incorporated by Buyer at the Facility, if Buyer has fully paid Supplier for the Goods and/or Services. Supplier's indemnification shall include but not be limited to the attorneys' fees and costs incurred by Buyer and/or Facility Owner in defending against any such lien.
C. Supplier shall fully indemnify, hold harmless and defend Buyer and the Facility Owner as to any claims of patent infringement and/or misappropriation of trade secrets related to the intellectual property rights incorporated in the Goods, so long as Buyer and/or Facility Owner (i) have used the Goods in accordance with Supplier’s instructions , and (ii) in the case of equipment, parts and components, have not modified the Goods from their condition at the time of supply by Supplier.
18. Good Faith Negotiation to Resolve Disputes. Buyer and Supplier will negotiate in good faith to amicably settle each dispute arising out of or in connection with any PO.
19. Dispute Resolution Method, Choice of Law, and Forum.
A. If good faith negotiation fails to resolve a dispute, the parties agree that except for any cause of action that arises pursuant to any Confidentiality Agreement described herein, either binding mediation if the same is agreed to in writing by both parties at the time good faith negotiations fail, or arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association shall be the exclusive method utilized to resolve their differences. All arbitrated disputes concerning the PO and these Terms shall be governed exclusively by the internal laws of the State of Missouri without reference to its conflicts of laws rules. If disputes that have arisen under one or more PO(s) between Supplier and Buyer involve common questions of fact and law, the parties shall consolidate those disputes for purposes of holding a single arbitration.
B. Unless the parties jointly consent to arbitration by a single arbitrator, the arbitration shall be conducted by a panel of three (3) arbitrators. Each party will appoint one (1) arbitrator, and the Chairman will be appointed by the two (2) individually appointed arbitrators. The arbitrator(s) shall not apply course of dealing, course of performance, or custom and/or usage of trade to interpret these Terms, unless the parties have expressly agreed in their written correspondence concerning a particular PO to such special provisions.
C. The location of the mediation or arbitration, as applicable shall be the City of St. Joseph, State of Missouri. The arbitration shall be held in English, and the award rendered shall be final and binding upon both parties, and may be entered in any court having jurisdiction thereof. Supplier expressly agrees that it will not bring any claim, action, suit, or other legal proceeding pertaining to a PO and/or the Goods in any other forum or venue.
20. Force Majeure.
A. For purposes of each PO, any delay in the performance by either party shall be excused if and to the extent caused by acts of God, fire, flood, tornadoes, hurricanes, earthquake, unusually severe weather conditions, terrorism, explosion, riot, war, insurrection, sabotage, vandalism, epidemic, delays attributable to reputable common carriers not within the party's reasonable control, a goods embargo that affects Supplier's acquisition of raw materials; an act of civil or military authority; or a massive mobilization of the U.S. armed services and/or war that significantly affects Supplier's labor force. The affected party shall promptly give written notice of the event to the other party, not but later than five (5) days after the affected party has knowledge of the event or circumstances, specifying the nature of the delay and the probable extent of the delay. If such notice is given, the time for performance hereunder shall be extended for such period as may be both reasonable and necessary due to said event.
B. Except as specifically provided above, Supplier's failure to make timely delivery under a PO because of shortages, allocations, or non-delivery of materials will not be deemed to be a cause beyond Supplier's control.
21. Code/Legal Requirements. Supplier will comply with all codes and other laws and regulations applicable in supplying the Goods and/or Services to the Facility.
22. No Amendment. The PO may not be amended except in a writing executed by an authorized representative of Buyer.
23. No Assignment. No assignment of either party's rights under any PO may be made without the prior written consent of the other party.
24. No Authorization to Assume Liability or Responsibility beyond These Terms; No Effect Given to Any Other Representations. No person including any representative, employee or agent of Buyer, other than the General Manager or an officer of Buyer, is authorized to amend these Terms on behalf of Buyer, to agree to any changes in these Terms that benefit Supplier, or to assume any degree of liability or responsibility in addition to or different from that described in these Terms. All other representations or oral or side agreements are of no force or effect.
25. No Waiver. The failure of Buyer at any time to require performance by Supplier of any provision of these Terms or of a particular PO shall not constitute a waiver by Buyer of its right to enforce such provision in the future. The waiver by Buyer of any breach of any provision of these Terms or of a particular PO shall not be taken or held to be a waiver of any further breach of the same provision, any other provision, or of a particular PO. Any waiver, to be enforceable against Buyer, must be documented in a writing executed by an officer of Buyer and supported by consideration.
26. Site Safety and Confidentiality. Supplier shall provide Buyer with current Safety Data Sheets (SDS) for the Goods in accordance with applicable law. Supplier will also provide satisfactory documentation that any Goods in the nature of materials used in the production of co-products from the ethanol manufacturing process are generally regarded as safe for use in animal feed materials, and comply with all applicable feed laws. Where Supplier's delivery of Goods and/or Services requires Supplier to be on-site at Buyer’s Facility, Supplier agrees to comply with all of Buyer’s safety and site-security policies and procedures, including but not limited to drug and alcohol testing policies and procedures, key card entry and/or badge and access procedures, and to comply with all on-site confidentiality requirements.
27. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the offending provision shall be severed, and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired.
28. Time of the Essence. Time is of the essence in all matters pursuant to any PO issued by Buyer. Buyer reserves the right to cancel any PO or part thereof, and reject delivery of Goods if such delivery or performance is not undertaken and completed in accordance with Supplier’s quoted delivery schedule. Supplier shall notify Buyer immediately of any circumstances that may cause a delay in meeting Buyer’s delivery schedule, stating the estimated period of delay and the reasons therefore. In the event Supplier's schedule is expected by Supplier to slip by more than three (3) business days, Buyer may request that Supplier provide a detailed recovery plan in order for Buyer to make its determination as to whether it will cancel the PO. If Buyer cancels the PO for Supplier's breach, Supplier will have no claim or cause of action of any kind against Buyer except for those finished Goods actually delivered by Supplier in conformity with Buyer’s PO.