Terms & Conditions
COMMODITIES PURCHASE CONTRACT TERMS AND CONDITIONS
COMMODITIES PURCHASE CONTRACTS SHALL BE SUBJECT TO THE FOLLOWING COMMODITIES PURCHASE CONTRACTS TERMS AND CONDITIONS (THE “PURCHASE TERMS”) IN ADDITION TO THE COMMODITIES CONTRACT GENERAL TERMS AND CONDITIONS (THE “GENERAL TERMS”). TO THE EXTENT THERE IS ANY INCONSISTENCY BETWEEN THE PURCHASE TERMS AND THE GENERAL TERMS, THE PURCHASE TERMS SHALL APPLY.
1. NGFA RULES: Except as otherwise set forth in these Commodities Purchase Contract Terms and Conditions, the General Contract Terms and Conditions, or elsewhere in the Contract, a Commodities Purchase 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 Purchase 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 to the respective counterparty (“Customer”) of each purchase by Company from Customer (the “Confirmation”), the terms of which shall constitute the terms of the contract between Customer and Company unless the 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 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. 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 Purchase 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 Purchase Contract are sold on the basis of net weight at that market specified, 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: Company shall notify Customer promptly of any disputes concerning any delivered product. Unless Customer notifies Company of any errors within forty-eight (48) hours of Customer’s receipt of purchased goods, the shipment is deemed to be correct. Company and Customer shall exercise reasonable efforts to resolve such disputes as soon as possible. Upon resolution of a dispute Company shall be entitled to a prompt refund or, at Company’s option a credit, for the agreed adjustment amount. If the dispute is not resolved between the parties it is subject to resolution in accordance with the General Terms and Conditions.
6. DEFAULTS, REMEDIES: Notwithstanding any NGFA Rules to the contrary, if Customer defaults as to any installment of any Commodities Contract, Company may at its option declare all subsequent installments under any open Commodities Contracts also in default, and may exercise its rights and remedies for any such subsequent installments. Customer will be charged, at the option of Company, (a) an amount owed as to all losses incurred by Company in purchasing the commodities not delivered by Customer, or (b) the difference between current market and contract price of any remaining product, as set forth in the Trade Rules. This right is in addition to any remedies available to Company under the General Terms.
7. TERMINATION: Any Commodities Purchase Contract shall terminate on the earlier of the termination date specified in such contract or when total tonnage has been shipped.
8. GUARANTEE: If a guarantee is required by the Company on any Commodities Purchase 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:
Nebraska: Whole grain purchases in the State of Nebraska by Company are subject to the following terms and conditions:
WARNING TO SELLER:
Effective August 27, 2016. You will have no recourse to the grain dealer’s security posted with the Nebraska Public Service Commission (NPSC) unless you are a Nebraska producer and you (1) demand payment from the grain dealer within fifteen (15) days after the date of the last shipment of any contract; (2) negotiate any negotiable instrument issued as payment for your grain by the grain dealer within fifteen (15) days after its issuance; and (3) notify the NPSC PO BOX 94927, Lincoln NE 68509-4927, within fifteen (15) days after an apparent loss. The grain dealer’s security shall provide security for direct delivery grain until a post-direct delivery storage position is created for a period not to exceed fifteen (15) days after date of the last shipment of grain. Direct delivery of grain may affect the eligibility of the grain for participation in federal price support programs.
Neb. Rev. Stat. § defines a producer as “the owner, tenant, or operator of land in this state who has an interest in and receives all or part of the proceeds from the sale of grain produced on that land.”
Effective Date: 6/1/2022