Terms and Conditions

Grain Purchase Terms and Conditions
  1. Contract; Integration; Amendment. These Grain Purchase Terms and Conditions (these “Terms”) govern all contracts for the purchase of grain by Summit Sustainable Ingredients, LLC dba Amber Wave (“Buyer”). The Confirmation and these Terms (collectively, the “Contract”) shall be binding unless Seller immediately notifies Buyer of any objection to the Contract. If any of these Terms conflict with the Confirmation, the conflicting term of the Confirmation shall govern. The Contract represents the final, complete, and exclusive statement of the agreement between the parties concerning the sale of grain stated on the Confirmation (the “Commodities”). The Contract may not be amended, modified, supplemented, or waived other than by a writing signed by Buyer’s authorized representative. Waiver of any right or obligation under the Contract shall not be a waiver of any subsequent right or obligation.  
  1. Trade Rules; Governing Law. Unless otherwise stated by the Confirmation, the Contract is subject to the Trade Rules of the National Grain & Feed Association (the “Trade Rules”). If any term of the Contract conflicts with the Trade Rules, the term of the Contract shall govern. The Contract is governed and construed in accordance with the laws of the State of Kansas, without regard to its choice of law rules.  
  1. Arbitration. ALL DISPUTES AND CONTROVERSIES OF ANY NATURE WHATSOEVER BETWEEN BUYER AND SELLER THAT RELATE TO THE CONTRACT, AND ANY OTHER AGREEMENTS FOR THE SALE OF GRAIN BETWEEN THEM (COLLECTIVELY, “AGREEMENTS”), SHALL BE RESOLVED BY BINDING ARBITRATION BEFORE THE NATIONAL GRAIN AND FEED ASSOCIATION (THE “NGFA”). The arbitrator(s) shall resolve all disputes concerning arbitrability, the scope of this provision, and/or the NGFA’s authority. The resulting arbitration award may be entered and enforced in any court having competent jurisdiction.  
  1. Delivery; Title. Unless otherwise stated by the Confirmation, Seller shall deliver the Commodities at Seller’s expense to Buyer’s location stated on the Confirmation. Buyer may, upon notice to Seller, designate any reasonable alternative delivery point. Where the Commodities are to be delivered by Seller, title to and risk of loss of the Commodities pass to Buyer when the Commodities pass through the unload spout of the means of conveyance at the time of delivery. Where the Commodities are to be tendered to Buyer elsewhere, title to and risk of loss of the Commodities shall transfer to Buyer upon loading to Buyer’s means of conveyance. Buyer shall not be obligated to accept delivery of the Commodities at a rate greater than: (a) for rail deliveries, 20 railcars per day; and (b) for truck deliveries, 50 trucks per day. For rail deliveries: (a) all top and bottom railcar hatches shall be sealed and unbroken at the time of delivery; (b) and Seller shall be solely responsible for all charges from the rail carrier due to under or overfill, uneven loading, erroneous routing, and/or excess delivery.  
  1. Grade; Discount Schedule; Acceptance. The Commodities shall meet the minimum U.S. grade and all other specifications stated on the Confirmation. The price paid for the Commodities is subject to Buyer’s posted discount schedule, which is available upon request. Buyer may, but is not obligated to, accept Commodities that do not satisfy the Confirmation’s grade and specifications. Buyer’s acceptance of the Commodities is without prejudice to and does not waive: (a) any defects in the Commodities; or (b) the warranties and representations made by Seller herein. Unless otherwise stated by the Confirmation, Buyer’s weights and grades shall govern. 
  1. Clear Title. Seller warrants and represents that at the time of tender or delivery: (a) Seller shall have sole title to the Commodities; and (b) the Commodities shall be free and clear of any penalty, lien, security interest, charge, quota regulation, or encumbrance, governmental or otherwise. The warranties and representations set forth herein are without prejudice to any warranties implied by law.  
  1. Seller’s Warranties. Seller warrants and represents that: (a) Seller is a merchant, as that term is defined by the Uniform Commercial Code, in the kind of goods sold hereunder; (b) Seller is not insolvent as that term is defined by the Uniform Commercial Code; (c) unless otherwise agreed in writing, the Commodities were grown in the continental United States; (d) the Commodities are merchantable and do not contain transgenic traits that would prohibit them from being sold in the United States, Canada, China, South Korea, the European Union, Japan, or Mexico; (e) the Commodities are not adulterated or misbranded as defined by the Food, Drug, and Cosmetic Act and its implementing regulations; (f) except as otherwise stated herein, the Commodities are free and have always been free of crotalaria, ergot, and mycotoxins; (g) the Commodities contain no more than 20 parts per billion of aflatoxin and/or 1 part per million vomitoxin; (h) the Commodities have never been intentionally mixed or blended with other grain for the purpose of diluting defects or increasing grade; and (i) the Commodities are fit for human consumption. Buyer may dispose of Commodities that are delivered in breach of the foregoing warranties at Seller’s cost and without notice. 
  1. Condemnation. Any Commodities, irrespective of grade or quality, that are tagged, seized, condemned, or declared unfit for sale or consumption by any state or federal agency shall not apply to the Contract, and ownership of such Commodities will remain with Seller. Furthermore, any change in the price or other terms of the Contract caused by government regulations, will entitle Buyer to cancel any portion thereof without penalty.  
  1. Indemnification. Seller shall indemnify, defend, and hold Buyer harmless for all losses, costs, damages, and expenses (including reasonable attorneys’ fees) that Buyer incurs due to Seller’s breach of the Contract or any of Seller’s warranties or representations, both express and implied.  
  1. Force Majeure. Buyer shall not be liable for any delay or failure of Buyer’s performance caused by reasons beyond Buyer’s reasonable control and without Buyer’s fault or negligence, including without limitation, acts of God, acts of the public enemy, governmental action, fires, floods, earthquakes, epidemics, quarantine restrictions, labor disputes, freight embargoes, plant breakdowns, transportation shortages, or unusually severe weather. Buyer shall not be required to accept or pay for Seller’s delivery or tender of any Commodities when it is reasonably anticipated that any of the foregoing would: (a) cause an unreasonable delay in the transportation of the Commodities; or (b) prevent Buyer from receiving the Commodities.  
  1. Right to Setoff. Without limiting any of Buyer’s remedies, Buyer may set off (a) any debts or claims against Seller under or in connection with the Contract and any other Agreements, against (b) amounts owed by Buyer to Seller.  
  1. Reasonable Assurances. If Buyer reasonably believes that Seller may not perform its obligations under the Contract, including without limitation if Buyer has reason to believe that Seller has become insolvent or Buyer has failed or may fail to make timely delivery under any Agreement, Buyer may request written assurances from Seller that Seller will perform its contractual obligations. Those assurances may include, but are not limited to, requiring that Seller deposit with Buyer the difference between the market value of the Commodities and the Contract price for the Commodities.  
  1. Seller’s Default. Failure to provide assurances requested by Buyer, failure to make timely delivery of the Commodities or any installment thereof, or any other breach by Seller shall be a “Seller Default.” In the event of Seller Default, Buyer may elect to grant Seller additional time to perform the Contract or, by sending written notice to Seller, cancel the Contract. If Buyer elects to cancel the Contract, Buyer may: (1) purchase replacement Commodities on the open market and Seller shall pay Buyer the difference between the price paid for the replacement Commodities and the Contract price; or (2) require Seller pay the difference between the Contract price and the fair market value of the Commodities on the date of cancellation. In the event of Seller Default, Buyer may also cancel any other grain sales Agreements with Seller in the same manner. Notwithstanding the foregoing, Buyer may pursue any remedy allowed by law and shall be entitled to collect from Seller: (a) reasonable attorneys’ fees and costs incurred in the enforcement of the Contract or collection of any amounts due from Seller; and (b) interest at a rate of 1.5% per month on all amounts owed by Seller. 
  1. Application of Deliveries. If more than one grain sales Agreement is open between Buyer and Seller, Commodities tendered or delivered shall be applied first to the Agreement with the earliest-ending delivery period, unless otherwise agreed in writing. Delivery of the Commodities under the Contract is not complete until all Commodities is received, graded, weighed and unloaded at the destination.  
  1. Pricing Election. If the futures reference price or basis price is not set by the Contract, Seller must elect to establish any open futures reference price or basis price before the close of market on the last trading day before the start of the delivery period. Otherwise, Buyer may elect to set the futures reference price or basis price using Buyer’s posted bid on the first day of the delivery period.  
  1. Assignment. The Contract shall be binding upon the heirs, administrators and executors of each party. The Contract may not be assigned by Seller without the written consent of Buyer.  The Contract may be assigned by Buyer without the consent of Seller.