Vendor Terms
Farmer’s Business Network, Inc. (“FBN®”)
Purchase Order Terms and Conditions
Please read these terms and conditions carefully. They contain important information concerning the legal rights, warranties, obligations and available dispute resolutions remedies of you as the seller (“Seller”) and FBN (hereinafter, Seller and FBN are collectively referred to as the “Parties”). They also provide that if the Parties are unable to resolve any matter to their satisfaction, the Parties will exclusively use arbitration to decide the dispute and they will bring any claim solely on an individual basis and not in a class action or representative proceeding.
If FBN and Seller enter into a separate written contract for the purchase of goods providing for separate terms of sale, then those terms and conditions will apply. No general terms and conditions of either party referred to, invoices, order confirmations or in any other documentation shall apply, unless expressly agreed in writing by the Parties.
GENERAL PROVISIONS. Terms and conditions appearing on the face of this order, any exhibits attached hereto and any specifications, drawings, samples, models, formulas or other descriptions (collectively “Specifications”) attached hereto or furnished to, specified or approved by FBN are incorporated herein by reference (collectively, the “Order”). FBN’S OFFER TO PURCHASE GOODS PURSUANT TO THIS ORDER SHALL BE SUBJECT TO THESE TERMS AND CONDITIONS. FBN HEREBY REJECTS AND OBJECTS TO ANY MODIFIED, ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS, WHETHER IN ANY PRINTED FORM OF SELLER OR ELSEWHERE, AND SUCH MODIFIED, ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SHALL BE DEEMED MATERIAL AND SHALL NOT BE RECOGNIZED BY OR BINDING UPON FBN UNLESS SPECIFICALLY AGREED TO IN WRITING BY FBN’S AUTHORIZED REPRESENTATIVE. SELLER’S ACCEPTANCE OF THIS ORDER IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS HEREIN AND THIS ORDER UPON ACCEPTANCE SHALL CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES. IF THIS ORDER IS OR IS CONSTRUED TO BE AN ACCEPTANCE BY FBN OF A PRIOR OFFER FROM SELLER, FBN’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON SELLER’S ASSENT TO THE MODIFIED, ADDITIONAL AND DIFFERENT TERMS AND CONDITIONS CONTAINED HEREIN. EACH DELIVERY SHALL BE DEEMED TO BE ONLY UPON THE TERMS AND CONDITIONS CONTAINED HEREIN WHICH SHALL CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES.
ACCEPTANCE OF ORDERS. FBN's Order shall be deemed accepted subject exclusively to these terms and conditions upon the earliest of Seller's acknowledgement or statement of intent to furnish any goods ordered, or the furnishing or shipment thereof, or the commencement of performance by Seller pursuant to this Order.
PACKING AND SHIPPING. Each package shall: (a) be numbered and labeled with FBN’s Order number, stock number, contents, and weight; (b) contain an itemized packing slip; (c) be properly packed, marked and shipped to meet legal and common carrier requirements, provide for efficient handling, and insure adequate protection against damage; and (d) be packed, shipped, and routed in accordance with FBN’s instructions. Unless otherwise specified, shipments via limited liability carriers (air freight, overnight courier, etc.) and those subject to released value ratings shall be declared at actual value. Seller shall forward an original bill of lading or signed delivery receipt with Seller’s invoice as evidence of shipment. FBN shall not pay for packing, crating, freight, express cartage, or other additional costs unless specified on the face of the Order.
DELIVERY AND PERFORMANCE. Deliveries of goods shall be made at the location(s), on the date(s), and in the quantity(ies) specified on the face of this Order. If delivery of conforming goods is not completed by the time(s) specified (or within a reasonable time if no time is specified), or if Seller breaches any other term or condition of this Order, FBN may, at its option, without liability and in addition to its other rights and remedies, cancel this Order for cause and/or refuse to accept or reject in whole or in part the goods, and purchase substitute goods elsewhere and charge Seller and hold Seller liable for any loss, expense or damage incurred, or require Seller to deliver or complete delivery by the most expeditious means at no additional cost to FBN. FBN assumes no obligation for goods shipped in excess of quantities ordered hereunder and may return such excess at Seller’s expense. Any provision herein for the delivery in installments shall not be construed as making Seller's obligations severable.
PRICES, TAXES, INVOICES AND PAYMENT. Except as expressly provided on the face hereof, prices are fixed and firm, provided that FBN shall receive the benefit of any general reductions in Seller’s prices prior to the later of the date of delivery or completion of installation. In no event shall FBN be charged higher prices than Seller’s other customers that purchase similar quantities. All credits or other benefits from payment of such taxes shall be the sole property of FBN. Seller’s invoices shall specify FBN’s Order the delivery date of the goods, or completion of installation services, whichever is the latest date. Payment terms shall be net forty-five (45) days unless specified on the face of this Order. Payment for any goods shall not be deemed acceptance. FBN may withhold amounts owed by Seller to subcontractors or other third parties. Any claim against Seller or any of its related entities by FBN or any of its related entities which arises out of this or any other transaction may be set off against money due Seller under this Order.
CANCELLATION, ORDER CHANGES. FBN may cancel this Order or any part hereof, at any time without cause, by giving Seller written notice, without prejudice to FBN’s other rights and remedies. Upon notification of cancellation, Seller shall protect all property in its possession in which FBN has an interest and shall terminate all work and commitments pursuant to this Order as quickly and expeditiously as possible. FBN on canceling this Order or any part thereof shall be released from any obligation or liability it may have with respect to this Order or the part thereof so cancelled, other than payment for satisfactorily completed work. FBN may at any time make changes in types or quantity of goods, specifications by written notice to Seller from FBN’s authorized representative. Equitable adjustments to this Order shall be made for changes in price or in delivery caused by such changes upon express agreement in writing signed by both Parties.
TITLE, RISK OF LOSS. Seller represents and warrants that it has good and marketable title to the goods covered by this Order and that such goods are free and clear of any and all liens, security interests, charges and other encumbrances. Without limiting Seller’s indemnity or other obligations under this Order, title to, risk of loss and damage with respect to goods shall pass from Seller to FBN when such goods have been delivered to FBN at the FOB Destination, (or other delivery) point specified on the face hereof or when the goods have been installed, whichever is later; provided that the passage of title and risk of loss and damage upon such delivery/installation shall not constitute acceptance by FBN. Seller hereby waives for itself, its subcontractors, and its and their employees, any statutory, common law, mechanics, materialman, suppliers, laborers, or other liens, privileges or claims (Encumbrances”) against FBN, the goods, FBN’s property, or otherwise and any right to file or enforce any such Encumbrances related to this Order.
WARRANTIES. In addition to all other express and implied warranties prescribed by law, Seller warrants that: (a) all goods and materials furnished hereunder shall (i) be free from defects in design, material, manufacture and workmanship, (ii) conform to any and all Specifications, (iii) meet accepted industry codes and standards; (iv) be genuine and as represented, and (v) be merchantable and fit for the intended purpose and (b) all services shall (i) be rendered in a good and workmanlike manner by skilled personnel, (ii) be free from any defects, and (iii) meet and be performed in accordance with any and all Specifications and accepted industry codes and standards. All these warranties and other warranties as may be prescribed by law shall explicitly extend beyond delivery and run for a period of 12 months after delivery or after installation, whichever occurs later, and benefit FBN and its successors, assigns, customers, and employees. Claims under these warranties must be made within the applicable period prescribed by statute. All goods, materials and services provided by Seller shall at all times be subject to FBN’s inspection, but FBN’s inspection, failure to inspect or acceptance shall not relieve Seller of any obligations, or constitute a waiver of any claim, right or remedy to which FBN may be entitled under this Order, at law or equity.
DEFECTIVE ITEMS. If FBN determines that any goods, materials or services are defective, deficient, counterfeit, or nonconforming in any way, or are not otherwise as ordered, or if Seller otherwise breaches any term or condition of this Order, then FBN may, at its sole option, without liability and in addition to its other rights and remedies: (i) cancel any undelivered and unperformed portion of this Order and any other Order with Seller, (ii) reject or revoke acceptance of such defective or nonconforming items and require, at FBN’s option, correction (at FBN’s location) or replacement thereof, all at Seller’s expense, (iii) accept such items with an equitable adjustment in price or (iv) reject or revoke acceptance of such items and, at Seller’s risk and expense, hold them (pending Seller's shipping instructions) or return them and in either event charge Seller with the cost of inspection, storage, handling, transportation and any like expense. Correction or replacement of defective or nonconforming items (i) shall be made upon FBN’s request in writing and (ii) shall be performed as promptly as possible, including use of overtime and all expedited procedures at Seller’s sole cost. Acceptance of all or part of any defective items, use thereof and/or payment therefor or failure to notify Seller promptly that such items are defective or nonconforming shall not constitute a waiver of or diminish any of Seller’s obligations or FBN's rights and remedies under this Order, at law or equity.
SUBCONTRACTORS. Seller is responsible for making any subcontractor aware of these terms and conditions and any subcontractor that provides goods or services shall be subject to these terms and conditions. Notwithstanding the foregoing, Seller, if permitted to subcontract, shall be fully responsible for all services performed by subcontractors.
INTELLECTUAL PROPERTY. Seller represents and warrants that the sale, provision, use or resale of any of the goods, materials, services, or service results will not violate or infringe upon any patent, copyright, trademark or other proprietary or intellectual property right (“FBN IP”).
INDEMNIFICATION. To the fullest extent permitted by applicable law, Seller shall indemnify, defend and hold harmless FBN and its affiliates and all of their employees, agents, representatives and other sellers and contractors, from and against, any and all damages, claims, liabilities, losses, costs and expenses (including but not limited to attorneys’ fees and litigation costs) arising out of, or resulting in any way from (i) any actual or alleged nonconformance, defect or deficiency in the goods, materials or services purchased hereunder; (ii) any act or omission of Seller, its agents, representatives, employees, subcontractors, subcontractor employees or any other person under the control, whether direct or indirect, of the Seller; (iii) breach of the terms and conditions of in this Order; or (iv) actual or alleged infringement of any patent or other intellectual property right or unfair competition, relating to the goods, materials, services, or service results. In addition to any rights or remedies of FBN hereunder, at law or equity, Seller shall, upon FBN’s request and at Seller’s expense, secure a license to allow FBN to continue to use the alleged offending item without interruption or additional expense.
INSURANCE. Seller, at its sole cost, shall maintain (and cause its subcontractors to maintain) the following minimum insurance should Seller be required to enter FBN property as part of installation of Goodsas follows:
In the United States or Canada:
workers’ compensation insurance, both statutory limits and employers’ liability insurance with a limit of US/CAN $1,000,000 / Statutory limits for each occurrence, both coverages to apply to liability as applicable under any state, provincial or federal statute or through any common law process; (b) business or commercial automobile liability insurance with a combined bodily injury and property damage limit of US/CAN $1,000,000 for each occurrence; (c) commercial general liability insurance with a combined bodily/personal injury and property damage limit of US/CAN $1,000,000 for each occurrence; (d) until passage of risk of loss, as appropriate, casualty, cargo and/or stock throughput (transit) insurance in amounts equal to value of in-process, completed and in-transit goods; and (e) Each subcontractor must carry insurance in these amounts.
In Australia:
workers’ compensation insurance, both statutory limits and employers’ liability insurance with a limit of $20,000,000 AUD Liability (public liability), both coverages to apply to liability as applicable under any state, provincial or federal statute or through any common law process; (b) business or commercial automobile liability insurance with a combined bodily injury and property damage limit of $30,000,000 AUD for (3rd party liability); (c) until passage of risk of loss, as appropriate, casualty, cargo and/or stock throughput (transit) insurance in amounts equal to value of in-process, completed and in-transit goods; and (d) Each subcontractor must carry insurance in these amounts.
14. INSTALLATION SERVICES. Seller may be asked to provide installation services upon request and shall cause Seller’s and each subcontractor’s employees, agents, licensees and permitees to take all necessary precautions (including but not limited to those required by FBN’s rules and regulations for its facilities) to protect the premises and all persons and property thereon from damage or injury. Seller and subcontractors shall comply with all Federal, state, and local employment, environmental, health, and safety requirements, applicable industry standards, and FBN specific policies while performing work on FBN premises.
15. COMPLIANCE WITH LAWS. Seller agrees that the performance of this Order shall be subject to, and Seller shall comply with, all applicable federal, state, provincial, and local laws, rules, codes and regulations, including, without limitation, occupational health and safety laws, fair labor standards laws, process safety management laws, US government contract laws, marking and labeling laws, and environmental laws. Seller further represents and warrants that it has not offered or given and will not offer or give to any employee, agent, or representative of FBN or any of its affiliates any gratuity with a view toward securing any business from FBN, any of its affiliates or influencing such person with respect to the terms, conditions or performance of any contract with or Order from FBN or any of its affiliates. Any breach of this warranty shall be a material breach by Seller of each and every contract between the FBN (or any of its affiliates) and Seller. Seller prior to the performance of any work or the rendering of any services pursuant to this Order shall procure at its expense, all necessary permits, certificates, and licenses.
16. FORCE MAJEURES. If Seller or FBN is prevented from carrying out the provisions hereof by reason of act of God; war; revolution; riot; earthquake; flood; governmental action, order, or regulation; or that could not have been avoided or mitigated by the exercise of due diligence, interfering with the production or receipt of goods and/or services as herein comtemplated, the party so interfered with upon prompt written notice to the other party shall be excused from making or taking delivery of goods and/or services to the extent of such interference. Such delay shall not exceed 60 days total and should it exceed 60 days, it shall constitute default hereunder.
17. DUMPING DUTY. If Seller intends to manufacture or purchase any materials or equipment from outside the U.S., or Canada, Seller must ensure that Seller, its agent, or its representative is the importer of record for customs purposes. Seller shall indemnify and defend FBN and its affiliates in respect of any dumping penalty (provisional or otherwise) which may be levied on the FBN as a consequence of Seller’s import of goods. Seller shall provide FBN with an affidavit by an officer that goods imported by Seller and provided to FBN are not being dumped as “dumping” is defined by applicable authorities.
18. INDEPENDENT CONTRACTOR/STATUTORY EMPLOYER. Seller is an independent contractor and subject to these terms and conditions, shall control the means, method, and manner of providing goods and services. Neither Seller nor its subcontractors nor Seller’s or subcontractor’s employees, agents or representatives shall be deemed to be an agent, partner, venturer, representative or employee of FBN.
19. CHOICE OF LAW.
If the Goods in scope are for an FBN facility location based in the United States, then this Order and all matters arising out of or relating to this Order, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
If the Goods in scope are for an FBN facility location based in the Canada, then this Order and all matters arising out of or relating to this Order, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the Province of Alberta, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Province of Alberta.
If the Goods in scope are for an FBN facility location based in the Australia, then this Order and all matters arising out of or relating to this Order, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of Western Australia, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of Western Australia.
ARBITRATION AND CLASS ACTION WAIVER. Except for any claim for injunctive or other provisional relief arising out of a breach of Seller’s obligations to protect the FBN’s proprietary information for which FBN may seek relief in any court of competent jurisdiction, including any appellate court; to ensure rapid and economical resolution of any disputes regarding this Order as follows:
If the FBN’s principal address listed on this Order is located in the United States:
Seller and the FBN agree that any and all claims, disputes or controversies of any nature whatsoever arising out of, or relating to, this Order, or its interpretation, enforcement, breach, performance or execution, shall be resolved by final, binding and confidential arbitration in San Mateo, California, conducted under the Judicial Arbitration and Mediation Service (JAMS) Streamlined Arbitration Rules & Procedures, which can be reviewed at http://www.jamsadr.com/rules-streamlined-arbitration/. Seller and the FBN each acknowledge that (except as set forth above) by agreeing to this arbitration procedure, Seller and the FBN waive the right to resolve any such dispute, claim or demand through a trial by jury or judge or by administrative proceeding. Except as set forth above regarding the FBN IP, the arbitrator, and not a court, shall also be authorized to determine whether the provisions of this paragraph apply to a dispute, controversy, or claim sought to be resolved in accordance with these arbitration procedures. The arbitrator may in his or her discretion award attorneys’ fees to the prevailing party. All claims, disputes, or controversies subject to arbitration as set forth in this paragraph must be submitted to arbitration on an individual basis and not as a representative, class and/or collective action proceeding on behalf of other individuals. Claims will be governed by applicable statutes of limitations. This Order is enforceable under and governed by the Federal Arbitration Act. The number of arbitrators shall be one.
If the FBN’s principal address listed on this Order is located in Canada:
Seller and FBN agree that any and all claims, disputes or controversies of any nature whatsoever arising out of, or relating to, this Order, or its interpretation, enforcement, breach, performance or execution, shall be resolved by final, binding and confidential arbitration under the Arbitration Rules of the ADR Institute of Canada Inc. Seller and the FBN each acknowledge that (except as set forth above) by agreeing to this arbitration procedure, Seller and the FBN waive the right to resolve any such dispute, claim or demand through a trial by jury or judge or by administrative proceeding. Except as set forth above regarding FBN IP, the arbitrator, and not a court, shall also be authorized to determine whether the provisions of this paragraph apply to a dispute, controversy, or claim sought to be resolved in accordance with these arbitration procedures. The arbitrator may in his or her discretion award attorneys’ fees to the prevailing party. Claims will be governed by applicable statutes of limitations. The language of the arbitration will be English. The number of arbitrators shall be one.
If the FBN’s principal address listed on this Order is located in Australia:
Seller and FBN agree that any and all claims, disputes or controversies of any nature whatsoever arising out of, or relating to, this Order, or its interpretation, enforcement, breach, performance or execution, shall be resolved by final, binding and confidential arbitration in accordance with the ACICA Arbitration Rules under the ACICA Arbitration Rules. Except as set forth above regarding FBN IP, the arbitrator, and not a court, shall also be authorized to determine whether the provisions of this paragraph apply to a dispute, controversy, or claim sought to be resolved in accordance with these arbitration procedures. The arbitrator may in his or her discretion award attorneys’ fees to the prevailing party. Claims will be governed by applicable statutes of limitations. The language of the arbitration will be English. The number of arbitrators shall be one. The seat of the arbitrator will be in Western Australia. The language of the arbitration will be English. The number of arbitrators shall be one.
20. ASSIGNMENT. This Order, the performance hereof, and any right or obligation hereunder, including the right to receive monies due or to become due hereunder, may not be assigned, delegated or subcontracted by Seller without the prior written consent of FBN, and any purported assignment, delegation or subcontracting without such written consent shall be void.
21. REMEDIES. The rights and remedies of FBN hereunder shall be cumulative and in addition to any other or further rights or remedies provided in law or equity.
22. ENTIRE AGREEMENT. If any provision of this Order are declared invalid or unenforceable, the remainder thereof shall be given effect to the fullest extent permitted by law. Headings are for convenience only and shall not affect the interpretation of this Order. Whenever any action in this Order is subject to FBN’s approval or consent, FBN shall have the right to withhold its approval or consent, in FBN’s sole and absolute discretion.
23. MODIFICATION & N0N-WAIVER. No claim of waiver, modification, supplementation, amendment, consent or acquiescence with respect to any provision of this Order or the transactions contemplated hereunder shall be made against FBN except on the basis of a written instrument executed by an authorized representative of FBN.
No waiver of any of the provisions of this Order by FBN shall be deemed or shall constitute a waiver of any other provision, nor shall such waiver constitute a continuing waiver. No delay or failure on the part of FBN in exercising any rights or remedies hereunder or at law shall constitute a waiver by FBN of any rights or remedies. In no event shall FBN be liable to Seller for any anticipated profits or for incidental or consequential damages.
21. SURVIVAL. All representations, warranties, and other obligations and undertakings of Seller, whether statutory, implied or contained herein, and all claims, rights, and remedies of FBN shall survive delivery, installation, performance, testing, acceptance and payment.