- Integration. These Benson Hill Standard Terms and Conditions of Sale of Goods (“Terms and Conditions”) are incorporated into the Benson Hill Confirmation of Sale (“Confirmation”) and collectively form the “Contract” between the Benson Hill entity on the face of the Confirmation, as the “Seller” and the other party on the face of the Confirmation (together with its affiliates, “Buyer”). This Contract is for Goods stated on the face of the Confirmation (“Goods”). This Contract represents the final, complete, and exclusive statement of the agreement between Buyer and Seller regarding the sale of the Goods. In the event of a conflict between the terms on the face of the Confirmation and these Terms and Conditions then the terms provided in the Confirmation shall control.
- Delivery; Title; Risk of Loss. All delivery dates are estimates only. Title and risk of loss to the Goods shall transfer to Buyer at the time of delivery to the delivery location under the applicable Incoterms® shipping terms (“Delivery”). Once risk of loss passes to Buyer, Buyer shall be responsible for submitting claims to the carrier, if any, for any shortages or Goods damaged in shipment. Seller shall not be responsible for shortage or damage upon Delivery unless, within 30 days of Delivery, Buyer provides a certification and inspection report from the carrier reflecting that the loss did not occur during transit.
- Grades; Weights; Inspection; Quality Claims. Origin weights and grades shall govern. Buyer shall immediately inspect the Goods upon receipt. If the Buyer claims any defect or deficiency of the quality or quantity of the Goods, Buyer shall submit Buyer’s claim in writing, including Buyer’s analysis and scale tickets as applicable, within five (5) business days of Buyer’s receipt of the Goods. If Buyer fails to submit its claim within the five (5) business day period, Buyer waives all claims concerning or relating to defects of quality, grade, or quantity. All other claims of Buyer shall be waived unless submitted in writing to Seller within thirty days from the transfer of title of the Goods.
- Prices. All prices for Goods are those found on the face of the related Confirmation (“Price”) and are subject to change without notice unless otherwise provided in the Confirmation. If you are notified of any Price increase, such increase will only apply to orders accepted on or after the effective date of the increase. Prices do not include sales, use, excise or other taxes, fees or duties or other government imposition, or charges for shipping and handling unless otherwise specified in the Confirmation.
- Packaging; Freight Rates. Seller will pack, mark and ship the Goods (i) in accordance with its standard policies and requirements pertaining the Goods, including but not limited to ingredient specifications and quality manuals; and (ii) in accordance with the requirements of all Food & Drug Administration and other regulatory agency requirements, and with applicable common carriers. Unless otherwise stated on the Confirmation, delivered prices specified thereby are based on freight rates in effect on the date of sale and any subsequent increase in freight rates or fuel surcharges are for Buyer’s account. Any existing, new or increased tax, charge, duty, tariff or any similar fees hereinafter imposed by any governmental entity shall be paid by Buyer.
- Over-Fills and Under-Fills; Partial Delivery; Allocation. Seller may satisfy its obligations to tender the Goods by tendering the quantity of Goods stated on the Confirmation, plus or minus five percent (5%). Seller may make delivery in installments and require payment for such installments without regard to subsequent deliveries. Failure on the part of Seller to deliver, delay in delivery, or non-conformity of any installment shall not be a breach of the entire Contract or any other contract between the parties. Seller shall have the right to allocate Goods among its customers in such manner as Seller deems proper.
- Payment Terms. Unless Seller extends other payment terms in a signed writing, the undisputed portion of any invoice is due and payable net 30 days from the date of invoice. Without waiving any of our other rights or remedies, Seller may refuse additional orders and suspend the delivery of any Products until all overdue amounts are paid in full.
- Right to Setoff. Without limiting any of Seller’s rights and remedies, Seller shall have the right, at its sole discretion and upon written notice to Buyer, to set off any mutual debts and claims of any kind between Buyer and Seller against amounts owed by Seller to Buyer.
- Buyer’s Remedies; Limitation of Liability. Seller’s liability for any breach of this Contract or any claim arising from or relating to this Contract shall not exceed the price paid or to be paid by Buyer for the Goods under the applicable Contract or applicable shipment under such Contract if shipped as a partial delivery. In the event that the tendered Goods do not conform to the terms of this Contract, Buyer’s sole remedy shall be, at Seller’s sole discretion: (a) return of the purchase price paid for the Goods; (b) replacement of the Goods; or (c) return of the Goods pursuant to instructions provided by Seller. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Warranties. Seller warrants that at the time of Delivery to the delivery term associated with the applicable Incoterms®, the Goods will materially comply with the Seller specifications for such Goods. EXCEPT FOR THE WARRANTY SET FORTH IN THE PRECEDING SECTION, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, AND SELLER DISCLAIMS ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; AND (d) ALL OTHER WARRANTIES EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
- Events of Default. Buyer shall have defaulted on this Contract if any of the following events occur: (1) Buyer fails to accept a tender of conforming Goods; (2) Buyer fails to make full and timely payment for the Goods when due; or (3) Buyer is in material breach any other obligation of this Contract or any other contract between Buyer and Seller; (4) a voluntary or involuntary petition for bankruptcy is filed by or against Buyer; (5) a court appoints a receiver of Buyer in favor of Buyer’s creditors; or (6) dissolution, liquidation, merger, or sales of Buyer or a substantial part of Buyer’s assets. Seller may avail itself of any and all remedies available to it for an event of default, including but not limited to (i) reselling the Goods in which Buyer shall pay the difference between the extended Price and the resale price; (ii) cancelling this Contract in which case Buyer shall pay the extended Price; and (iii) extending the anticipated delivery date or suspending delivery.
- Right to Assurances. If Seller has reasonable grounds for insecurity regarding Buyer’s performance of any of Buyer’s obligations under this Contract or Buyer’s default (which shall include, without limitation: (a) a material change in the creditworthiness of Buyer or its guarantor; and (b) default or perceived risk of default by Buyer on any other agreement between Buyer and Seller), Seller may demand that Buyer provide any reasonable written assurances of performance requested by Seller. Failure by Buyer to provide the requested assurances by the date requested by Seller, or within five (5) business days if no date is stated, shall be a repudiation and default of this Contract by Buyer.
- Indemnification. Buyer shall defend, indemnify, and hold harmless Seller, its affiliates, and any of their employees, agents, and successors, against any losses, damages, claims, liabilities, costs and expenses, including without limitation, reasonable attorneys’ fees, arising from or relating to: (a) this Contract; (b) the Goods (other than with respect to non-conformity to the warranty provided in these Terms and Conditions), including Buyer’s handling, use, or resale of the Goods, or any product claims or labeling used related to the Goods; (c) transport of the Goods; or (d) Buyer’s negligence or willful misconduct. Buyer’s obligation to defend, indemnify, and hold harmless extends to and includes claims of Seller’s sole negligence.
- Attorneys’ Fees; Costs. The prevailing party in any litigation or arbitration that relates in any way to this Contract shall be entitled to recover from the non-prevailing party all reasonable attorney fees and costs incurred in defending or prosecuting the litigation or arbitration.
- Force Majeure. Neither party shall be liable for failure or delay to perform this Contract (except any payment obligations) if such failure or delay is caused by or results from a condition beyond that parties’ reasonable control (a “Force Majeure Event”); providing such party is taking reasonable steps to mitigate the effect of such Force Majeure Event. Causes beyond Seller’s reasonable control include, without limitation, acts of God, floods, crop failures, the unavailability of raw materials, labor shortages, or production stops caused by natural disaster, act of war or terrorism, riot, labor condition, governmental action, hacking, or pandemics (including the COVID-19 pandemic).
- General Compliance with Laws. Buyer shall at all times comply with all laws applicable to this Contract, Buyer’s performance of its obligations hereunder, and Buyer’s use, sale, handling, or disposition of the Goods, including any U.S. export or import laws, anti-bribery, or anti-boycott laws.
- Non-Waiver. Any right of Seller under this Contract shall not be deemed to have been waived by Seller unless evidenced by a writing signed by Seller, and in the event of any such waiver, it shall apply only to the referenced occurrence and shall not apply to any future occurrences.
- Choice of Law; Venue. The law of the State of Delaware, without regard to the choice of law rules and without regard to the United Nations Convention on the International Sale of Goods, shall govern this Contract and the parties’ rights and obligations arising thereunder, except as modified herein. Except as otherwise provided herein, including the mandatory arbitration provision, the parties consent to the exclusive jurisdiction of the federal and state courts of Delaware.
- Confidentiality. All non-public, confidential or proprietary information of either party, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by one party to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Contract is confidential, solely for the use of performing this Contract and may not be disclosed or copied unless authorized in advance by the other party in writing.
- Intellectual Property. Buyer acknowledges and agrees that:
(a) Seller (or its licensors) will retain all intellectual property rights used to create, embodied in, used in and otherwise relating to the Goods and any of their component parts, including any improvements to such Goods and components thereof;
(b) any and all Seller’s intellectual property rights are the sole and exclusive property of Seller or its licensors;
(c) Buyer shall not acquire any ownership interest in any of Seller’s intellectual property rights under this Contract;
(d) any goodwill derived from the use by Buyer of Seller’s intellectual property rights inures to the benefit of Seller or its licensors, as the case may be;
(e) if Buyer acquires any intellectual property rights in or relating to any product (including any Goods) purchased under this Contract (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either party; and
(f) Buyer shall use Seller’s intellectual property rights only in accordance with this Contract and any instructions of Seller.
- Amendment. The terms of this Contract may be amended, modified, or supplemented only if the writing expressly identifies the terms in this Contract to be changed and is signed by an authorized representative of each party.
- Assignment. Seller may, in its sole discretion, assign its rights and obligations under this Contract upon written notice to Buyer. Buyer may not assign its rights and obligations under this Contract without the prior written consent from Seller, signed by an authorized representative of Seller. Any attempted assignment in violation of this Section shall be null and void. Any permitted assignment shall be binding on and inures to the benefit of the Buyer, Seller, and their permitted successors and permitted assigns.