Terms & Conditions

COMMODITIES SALE CONTRACT TERMS AND CONDITIONS

COMMODITIES SALE CONTRACTS SHALL BE SUBJECT TO THE FOLLOWING COMMODITIES SALE CONTRACTS TERMS AND CONDITIONS (THE “SALE TERMS”) IN ADDITION TO THE COMMODITIES CONTRACT GENERAL TERMS AND CONDITIONS (THE “GENERAL TERMS”). TO THE EXTENT THERE IS ANY INCONSISTENCY BETWEEN THE SALE TERMS AND THE GENERAL TERMS, THE SALE TERMS SHALL APPLY.

1. NGFA RULES: Except as otherwise set forth in these Commodities Sale Contract Terms and Conditions, the General Contract Terms and Conditions, or elsewhere in the Contract, a Commodities Sale Contract shall be subject to the National Feed and Grain Association trade rules in effect from time to time (the “NGFA Rules”) and Company shall have the right to require that every dispute under a Commodities Sale Contract shall be subject to arbitration under NGFA Rules of Arbitration.

2. CONFIRMATION: J.D. Heiskell Holdings, LLC or any of its subsidiaries (as to each, “Company”) shall send a written confirmation of each sale (the “Confirmation”) to the respective counterparty (“Customer”), the terms of which shall constitute the terms of the contract between Customer and Company unless Customer, within forty-eight (48) hours of delivery, serves written objection or by telephone confirmed by subsequent written communication to the terms upon immediate receipt of the Confirmation. Customer acknowledges that although it will be bound by any Company Confirmation and notices regardless of whether Customer signs the Confirmation or notice, Company shall have the right to require written Confirmations from Customer. The terms of any Customer Confirmation shall either accept or reject the contract terms specified in the Company Confirmation; it shall not change such terms, and the Company hereby rejects such changed terms, except to the extent Company agrees in writing to any change. The parties agree (a) that a Confirmation from Company shall constitute a confirmation under Section 2-201 (2) of the Uniform Commercial Code as adopted by the state of the Contract Location; and (b) that the 48-hour notice period for rejection of the Confirmation specified in the Contract is sufficient in light of the nature of commodities contracts. The terms of any invoice confirming a purchase by Customer shall supplement the terms of the applicable Commodities Sale Contract. Notwithstanding the prior provisions of this section, the terms and conditions of brokered contracts shall continue to be determined by the applicable broker confirmation, as prescribed under NGFA Rules.

3. MONTHLY INSTALLMENT CONTRACTS: Any Commodities Sale Contract as to which complete delivery is not anticipated to be completed within one month, or as to which no delivery period is specified shall be deemed to a “monthly installment contract.” Unless otherwise specified in the contract, all installment or “clock” contracts shall be assumed to be made and entered into on an “even take-out” basis. “Even take-out” shall be defined as requiring delivery acceptance of the amount contracted for divided by the number of months in the contract delivery acceptance period. Delivery shall be in equal monthly installments with equal installment shipments during each month the contract is in force, absent agreement of Company.

4. ADDITIONAL COSTS: All inspection fees, inspection taxes, tonnage taxes, and tax stamps or tags are for the account of Customer. Commodities sold under any Commodities Sale Contract are sold on the basis of net weight when specified in the Confirmation, or, if bulk, when loaded. Company shall not be liable for moisture loss or loss due to sifting and handling in transit, or for demurrage or storage charges at destination or for any losses or costs incurred as a result of force majeure. Any increase in freight rates or any freight surcharges or any similar increase in the cost of transportation between the date of sale and the date of shipment shall be for the account of Customer.

5. RETURNS OF NONCOMPLYING PRODUCT: Unless Customer notifies Company of any errors in the delivered product (for example, weight, quality, time or place of delivery, etc.) within forty-eight (48) hours of Customer’s receipt of purchased goods, the shipment is deemed to be correct.

6. FOR DAIRY CUSTOMERS: Customer represents it intends to use any product purchased under a Commodities Sale Contract solely for its own purpose. Resale in bulk of any product purchased by Customer is not permitted. In the event that any product purchased by Customer from Company is subsequently resold by Customer, Customer agrees that such product will be in its original packaging, that it has no right to use the trademarked labels for its own use, and that Company will retain all rights to its proprietary intellectual property.

7. FORCE MAJEURE: Company is not responsible for the inability to provide goods sold or delay in providing goods sold caused or effected by accidents, strikes, customs officials, weather, war, riots, shortage of products or labor by manufactures, interferences or obstruction of transportation routes, carrier shortages, damage to carrier, damage to goods by carrier, any act of God, pandemics or other mass health issues, failure of utilities or telecommunications, or other causes beyond Company’s control. Company shall perform as soon as practicable after the cause of delay is removed. In the event of government price, priority, rationing or other restrictive regulations shall be instituted affecting the price or distribution of the products specified in the Commodities Sale Contract after the date the Commodities Sale Contract is entered into but before the delivery of such product, Company shall have the option to cancel the remaining undelivered product by written notice to Customer.

8. SECURITY INTEREST: Company is granted a security interest in all goods sold under each Commodities Sale Contract, the products and all proceeds of such goods. The security interest expressly includes without limitation all livestock, their progeny and other animals to which the products are fed, or that consume the products, and all proceeds, milk, accounts receivable, and contract rights arising therefrom or that are related to such livestock and other animals owned or managed by Customer. The specific products and types products are described on the product invoice. Under the laws of the state where Customer is located or where the products are delivered, the sale of the products under this agreement may give rise to a lien on the goods purchased, the livestock and other animals to or for which the goods are fed or used, and the proceeds of the goods or livestock. Customer appoints any employee of Company or its attorney to act as Customer’s attorney-in-fact or agent in executing any Uniform Commercial Code financing statements, effective financing statements, notices or other documents necessary to perfect the applicable security interest or lien.

9. DEPOSIT: If the Commodities Contract calls for delivery beyond 14 days from the date of the Commodities Contract, Company may demand from Customer as a margin deposit (the “Margin Deposit”) an amount equal to 10% of the gross value of the Commodities Sale Contract. Company shall have the right to insist that this Margin Deposit be increased from time to time to assure that the Margin Deposit is at all times prior to completion of the Commodities Sale Contract an amount (a) not less than 10% of the contract price of the undelivered product under the Commodities Sale Contract, (b) plus an amount equal to the difference between the contract price and the market price of undelivered commodities under the Commodities Sale Contract. Company may draw on this Margin Deposit whenever needed to pay any delinquent invoice on the goods to be delivered under the Commodities Sale Contract. This amount will be deemed to be a partial payment.

10. DISCLAIMER & LIMITATION OF WARRANTIES & REMEDIES:

A. LIMITED WARRANTY. All products are sold “AS IS AND WITH ALL DEFECTS.” There are no warranties that extend beyond the description on the face of this limited warranty. Company makes no warranties either express or implied regarding title, quality or conformity of the products, including without limitation no implied warranty of merchantability, no implied warranty of fitness for a particular purpose, and no implied warranty arising from any course of dealing, usage of trade or advertising, except the following express warranties: (1) the title conveyed is good, and its transfer rightful; (2) the products shall be delivered free of any security interest, lien or encumbrance, except for Company’s security interest; and (3) the products will conform to the description, grade and condition of the products invoiced.

B. REMEDIES. Customer’s exclusive remedy for breach of warranty is to return the products for refund of the purchase price or replacement of the non-conforming products. Company has the exclusive right to select the remedy. Company expressly excludes liability for incidental, consequential, exemplary, punitive and other damages.

C. PAYMENT REQUIRED. Company’s warranties are effective only if Company has received payment in full for the products.

D. MANUFACTURER’S WARRANTY. The manufacturer of the products may provide its own warranty. Company does not represent or warrant the existence or scope of any manufacturer’s warranty.

11. TERMINATION: Any Commodities Sale Contract shall terminate on the earlier of the termination date specified in such contract or when total tonnage has been shipped. Any undelivered monthly portion of such contract must be arranged for delivery before the last day of each month. Customer, at the option of Company, will either forfeit the undelivered quantity or Customer will be charged the difference between current market and contract price of any remaining product.

12. GUARANTEE: If a guarantee is required by the Company on any Commodities Sale Contract, the Personal Guarantee in the form shown on Company’s website [www.heiskell.com] shall be deemed to have been executed by Customer. Company may require Customer to execute and deliver a Personal Guarantee.

SPECIAL STATE NOTICES:
Texas: The following notice is required by Chapter 188 of the Texas Agriculture Code: The sale of animal feed on credit is subject to Chapter 188, Agriculture Code. Failure to pay the agreed or reasonable charges for the feed may result in the attachment of a lien to the proceeds of the livestock for which the feed is used or the proceeds of the animal products produced from the livestock.

Effective Date: 6/1/2022