Governing Law. All orders shall be governed by and interpreted in accordance with the laws of the State of Arkansas. Manufacture, shipment and delivery are subject to any prohibition, restriction, priority allocation regulation or condition imposed by or on behalf of the United States of America or any other governmental body with appropriate jurisdiction which may prevent or interfere with fulfillment of any order.
Modification of Terms. These terms and conditions shall control the sale of Tyson products. Tyson's acceptance of any order is expressly subject to Buyer's assent to each and all of the terms and conditions set forth herein. Buyer's assent to these terms and conditions shall be conclusively presumed from Buyer's failure to submit written objection thereto, or from Buyer's acceptance of all or any part of the goods or services ordered. No addition to or modification of these terms and conditions shall be binding upon Tyson unless specifically agreed to by Tyson in writing. If Buyer's purchase order or other correspondence contains terms or conditions contrary to or in addition to the terms and conditions contained herein, acceptance of any order by Tyson shall not be construed as assent to such contrary or additional terms and conditions, or constitute a waiver by Tyson of any of the terms and conditions contained herein. In case of conflict with any other document, these terms and conditions shall control. Any reference to Buyer's purchase order by Tyson shall not affect or limit the applicability of the terms and conditions contained herein.
Price. Unless otherwise specified (a) all prices, quotations, shipments and deliveries by Tyson are F.O.B. Tyson's plant; (b) all base prices, together with related extras and deductions, are subject to change without notice; (c) all orders are accepted subject to Tyson's price in effect at the time of shipment; and (d) all transportation and other charges are for the account of Buyer, including any increase or decrease in such charges prior to shipment.
Taxes. Any tax which Tyson may be required to pay or collect through assessment or otherwise under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, storage, processing, use or consumption of any goods or services described herein, including without limitation, taxes upon or measured by receipts from sales or services, shall be for the account of Buyer and may be added to the price of such goods or services. Buyer shall promptly pay the amount thereof to Tyson upon demand but may, in lieu of such payment, furnish tax exemption certificates acceptable to the appropriate taxing authorities to Tyson.
Setoff; Deductions. In no event is Buyer authorized to deduct any amounts from the amounts owed Tyson unless specifically authorized in writing by Tyson.
Credit. All orders are subject to the approval of Tyson's Credit Department. Tyson may at any time refuse to make shipment or delivery if Buyer fails to fulfill the terms and conditions of payment or fails to provide security in compliance with Tyson's credit policies. Tyson policies or practices may be changed at any time. Tyson may require payment in full or other security in advance according to the policies.
Default in Payment. If Buyer fails to make payments on any contract between Buyer and Tyson in accordance with Tyson's terms, Tyson, in addition to any other remedies available to it, may at its option (a) defer further shipment until such payments are made and satisfactory credit arrangements are reestablished; or (b) cancel the unshipped balance of any order.
Producing or Shipping Point. Unless otherwise specified by Tyson, Tyson reserves the right to produce and ship all or any part of the goods specified in any order from any of its plants or facilities.
Packaging. Tyson will use all reasonable means to comply with any packaging, loading or bracing requirements specified by Buyer. Tyson will charge for compliance with Buyer's special requirements in accordance with Tyson's price list for extras in effect at the time of shipment. If no packaging, loading or bracing requirements are specified by Buyer, Tyson shall comply with industry standards for the method of transportation used for such goods.
Quality Assurance. Tyson shall have no obligation to ensure that any goods or services purchased from Tyson meet any special quality assurance specifications and/or other requirements unless such specifications and/or other requirements are set forth in Buyer's purchase order and expressly accepted by Tyson.
Technical Assistance. Unless otherwise expressly agreed in writing by Tyson (a) any technical advice provided by Tyson with respect to the use of goods or services furnished to Buyer shall be without charge; (b) Tyson assumes no obligation or liability for any such advice, or for any results occurring as a result of the application of such advice; and (c) Buyer shall have sole responsibility for selection and specification of the goods or services appropriate for the end use of such goods or services.
Transportation. Tyson will use all reasonable efforts to comply with Buyer's requests as to method of transportation, but Tyson reserves the right to use an alternate method of transportation, whether or not at a higher cost to Buyer, if the method specified by Buyer is deemed by Tyson to be unavailable or otherwise unsatisfactory. In any such case, Tyson shall promptly notify Buyer of any such change.
Damaged Goods. If any goods arrive at Buyer's destination in a damaged condition or a shortage occurs, Buyer shall immediately report the damage or shortage to the delivering carrier and to Tyson. Any loss or shortage caused by damage in transit will be for account of Buyer.
Claims. Unless otherwise expressly agreed by Tyson, claims respecting the condition of goods, compliance with specifications or any other matter affecting goods shipped to Buyer must be made promptly and in no event later than thirty (30) days after receipt of the goods by Buyer. In no event shall any goods be returned, reworked or scrapped by Buyer without the express written authorization of Tyson.
Force Majeure. Tyson shall not be liable for any delay in or impairment of performance resulting in whole or in part from fire, floods or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, riots or embargo delays, government allocations or priorities, raw material market conditions, shortages of transportation equipment, fuel, labor or materials, inability to procure supplies or raw materials, severe weather conditions, or any other circumstance or cause beyond the reasonable control of Tyson.
Limited Warranty. Products are sold subject to Tyson’s Pure Food Guaranty. If Buyer discovers that any of the products fails to meet the guaranty provided herein, Buyer shall promptly notify Tyson and Tyson shall promptly reimburse Buyer by means of a refund or credit for the purchase price of the products in question or replace the products, at Tyson’s option. The foregoing remedy shall be Buyer's sole remedy for failure of the products to comply with the above guaranty, provided the foregoing provision shall in no way limit Tyson’s indemnification of Buyer as to third party claims. UNDER NO CIRCUMSTANCES SHALL TYSON BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION, OTHER PECUNIARY LOSS, OR OTHER INCIDENTAL, TORT, ECONOMIC, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THE GUARANTY ABOVE EVEN IF TYSON OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT AS PROVIDED IN THIS GUARANTY, TYSON HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
Cancellation. Orders cannot be canceled or modified by Buyer except with the express written consent of Tyson.
Termination. Tyson may terminate any order or any part thereof as allowed by these terms. Upon such termination, Buyer agrees to waive all claims for damages, including without limitation, any loss of anticipated profits, and to accept as its sole remedy for termination the reasonable additional costs of obtaining substitute goods of the same quantity and quality, provided such costs do not exceed the order price. Any claim for adjustment not asserted within ninety (90) days from the date of such termination shall be deemed to have been waived by Buyer.
Waiver. Waiver by Tyson of any breach of any of the terms and conditions set forth herein shall not be construed as a waiver of any other breach, and the failure of Tyson to exercise any right arising from any default of Buyer hereunder shall not be deemed to be a waiver of such right, which may be exercised at any subsequent time.
Assignment. Buyer shall not assign any order or any interest therein without the written consent of Tyson. Any such actual or attempted assignment without Tyson's prior written consent shall entitle Tyson to cancel such order upon written notice to Buyer.
Complete Agreement. These terms and conditions, together with Buyer’s purchase order and sales contract or agreement, if any, constitute the sole and entire agreement between Buyer and Tyson with respect to any order. No addition to or variations from such terms and conditions, whether contained in Buyer's purchase order, any shipping release or elsewhere, shall be binding upon Tyson unless expressly agreed to in writing by Tyson.