TERMS AND CONDITIONS OF USE
I. SERVICES PROVIDED: Ag Link, Incorporated (“AgLink.com”) provides a virtual marketplace whereby producers of agricultural commodities (“Vendors”) can sell directly to end users of such commodities (“Buyers”), and end users can purchase directly from producers, thus eliminating middlemen, such as brokers, commission merchants and dealers. AgLink.com also makes it more convenient for Buyers by allowing contracts with multiple Vendors to be bundled for billing purposes – thereby reducing paperwork. Thus, AgLink.com provides both a virtual farmers’ market with a convenient billing service.
II. TERMS AND CONDITIONS: All sales of Product through AgLink.com’s site shall be made pursuant to the following terms and conditions:
A. PRODUCT POSTS: Vendor shall list the specification and price information for each product (each a “Product”) it posts for sale on Ag Link’s website (each a “Post”). Vendor shall be responsible for the costs of shipping the Product to Buyer. If price will vary depending on the distance the Product must be shipped to the Buyer, Vendor must so specify.
B. PRODUCT PURCHASES: Upon confirming an on-line order, Buyer agrees to pay for the Product and for the services provided by AgLink.com as herein provided. The issuance of a purchase order by Buyer shall not modify the terms of the contract for the purchase and sale of the Product using the AgLink.com website. If Buyer is a governmental agency, the issuance of a purchase order by Buyer shall constitute Buyer’s formal approval of the terms and conditions set forth herein. Similarly, if Vendor issues an invoice in connection with the sale of the Product, such invoice shall not modify the terms and conditions set forth herein.
C. DELIVERY, SPECIFICATIONS & GRADING: The Product shall be delivered at Buyer’s specified “Point of Delivery” and shall meet the specification set forth in Vendor’s Post. Buyer shall have the right to grade the Product at the Point of Delivery as the Product is unloaded. No deliveries shall be scheduled on Saturdays, Sundays, or legal holidays, unless by mutual written agreement between Buyer and Vendor.
D. REJECTIONS: Buyer may reject nonconforming loads of the Product in whole or in commercially reasonable lots (“Nonconforming Load”). Buyer shall promptly give written notice of any such rejection to AgLink.com and to Seller. To be effective, notice of a Nonconforming Load must be sent via electronic mail or facsimile on the day of delivery, together with a copy of the shipping manifest and bill of lading. Upon timely receipt of notice of a Nonconforming Load:
1. Seller shall, at its sole cost and expense, be responsible for pickup and/or disposal of the Nonconforming Load. Buyer shall have no obligation to take any steps to protect a rejected Nonconforming Load. Seller will reimburse Buyer for any costs and expenses incurred in connection with a Nonconforming Load. The rejection of any Nonconforming Load shall not relieve the Seller of his obligation to deliver the balance of the Product, and to this extent this contract is severable.
2. AgLink.com, on behalf of Seller, shall adjust and re-issue the invoice with respect to such Nonconforming Load to reflect only that part of the Product accepted by Buyer, if any.
E. SERVICE CHARGES: As compensation for the services provided hereunder, Buyer agrees to pay AgLink.com a commission equal to 2.5% of the cost of all Product purchased (determined before sales tax). As compensation for the services provided hereunder, Vendor agrees to pay AgLink.com a commission equal to 4.0% of the sales price of all Product sold (determined before sales tax).
F. INSURANCE: As additional consideration for the services provided by AgLink.com, within 5 days of registration to use the AgLink.com website, Seller shall provide, via email or facsimile, a Certificate of Insurance that names AgLink.com as the certificate holder and additional named insured.
G. INDEMNITY: Buyer and Seller acknowledge that AgLink.com is not acting as a broker, commission merchant, or dealer, as such terms are defined in the Perishable Agricultural Commodities Act. Buyer and Seller hereby RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS AND COVENANT NOT TO SUE AgLink.com, its officers, servants, agents, and employees, from any loss, cost, expense (including without limitation attorneys’ fees), penalty, fee, action, claim, liability and/or damage arising out of, suffered, or incurred with respect to (i) Buyer’s and Seller’s (respectively) use of AgLink.com’s services, regardless of fault; (ii) the quality or quantity of Product purchased from a Post; (iii) the sale or attempted sale of Product with a Post; (iv) the purchase or attempted purchase of Product from a Post; (v) the delivery or attempted delivery of Product ordered from a Post; and/or (vi) any claim, assertion, or determination, that AgLink.Com is acting as a broker, commission merchant, or dealer in connection with the purchase, attempted purchase, sale or attempted sale of Product.
H. PAYMENT: Within 30 calendar days of acceptance of Product, or any portion thereof, Buyer shall remit payment therefore, without demand, offset, or adjustment.
I. PASSAGE OF TITLE: Title shall pass to Buyer upon grading and Buyer’s acceptance of the Product.
J. HAULING: Seller shall be responsible for transporting the Products to the Point of Delivery.
K. WARRANTY OF EXCLUSIVE SALE AND ENCUMBRANCES: Seller represents that it has not sold or contracted to sell the Product to anyone else, and that the Product is and will be kept free of mortgages, liens, or other encumbrances.
L. PERFORMANCE EXCUSED: Each party shall be excused from performance under this contract while and to the extent that it is unable to perform by reason of fire, storm, flood, earthquake, explosion, war, rebellion, insurrection, and any act of governmental or military authorities.
M. WAIVER OF TERMS OF CONTRACT OR BREACH THEREOF: No failure or omission by either party to insist upon or enforce any of the terms of this contract breached by the other shall be deemed a waiver unless such waiver shall be in writing. Neither AgLink.com, Buyer, or Seller shall have any authority to waive, change or add to any of the terms or conditions specified herein except by a writing duly executed by all parties.
N. ARBITRATION: If any controversy involving a question of fact shall arise hereunder between the parties hereto, such controversy shall be determined by arbitration. All arbitrations shall be by three arbitrators, one of whom shall be appointed by AgLink.com, one by the Seller, one by the Buyer. No officer, employee, agent or representative of the Federal Government or any department thereof or of any State, County, City or Municipal Government or any branch or department thereof shall be eligible to act as an arbitrator under this agreement. The determination of the majority of the arbitrators shall be binding and final upon the parties hereto.
O. ATTORNEYS’ FEES. If any party files suit or demands arbitration to enforce the obligations of any other party to this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all costs of suit, including, without limitation the reasonable fees and expenses of its attorneys.