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General Terms and Conditions
Clearfield Commodities, LLC
1. Applicability.
- These terms and conditions for brokerage services (these "Terms") are the only terms that govern the provision of brokerage services by Clearfield Commodities, LLC ("Clearfield") to the end customer ("Customer") named in the order confirmation (the "Confirmation") to which these terms are incorporated.
- The Confirmation and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Confirmation, the Confirmation shall govern.
- These Terms prevail over any of Customer's general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
2. Services. Clearfield shall provide brokerage services to Customer as described in the Confirmation (the "Services") in accordance with these Terms.
3. Fees and Expenses; Payment Terms; Interest on Late Payments.
3. Fees and Expenses; Payment Terms; Interest on Late Payments.
- In consideration of the provision of the Services by Clearfield and the rights granted to Customer under this Agreement, Customer shall pay the commission set forth in the Order Confirmation.
- Unless otherwise agreed to in writing, commission payments shall be due at the end of each month for the term of the lease described in the Confirmation. Customer shall make all payments hereunder in US dollars by wire transfer, ACH transfer, check, or other method of payment agreed to between Customer and Clearfield in writing.
- In the event payments are not received by Clearfield within 15 days after becoming due, Clearfield may:
- charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law from the date such payment was due until the date paid and
- suspend performance for all Services until payment has been made in full.
d) Customer shall reimburse Clearfield for all costs incurred in collecting any overdue payments and related interest, including, without limitation, attorneys' fees, legal costs, court costs, and collection agency fees.
4. Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.5. Confidential Information.
- All non-public, confidential, or proprietary information of Clearfield, including, but not limited to, trade secrets, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing, and the terms of this Agreement (collectively, "Confidential Information"), disclosed by Clearfield to Customer, 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 the provision of the Services and this Agreement is confidential, and shall not be disclosed by Customer without the prior written consent of Clearfield. Confidential Information does not include information that is (i) in the public domain, (ii) known to Customer at the time of disclosure, or (iii) rightfully obtained by Customer on a non-confidential basis from a third party.
- The customer agrees to use the Confidential Information only to make use of the Services.
- Clearfield shall be entitled to injunctive relief for any violation of this Section.
6. Representation and Warranty. Clearfield represents and warrants to Customer that it shall perform the Services in a professional manner in accordance with generally recognized industry standards for similar services. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, CLEARFIELD MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES.
7. Limitation of Liability.
- IN NO EVENT SHALL CLEARFIELD BE LIABLE TO THE CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, 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 CLEARFIELD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL CLEARFIELD'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CLEARFIELD PURSUANT TO THE APPLICABLE ORDER CONFIRMATION IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8. Waiver. No waiver by Clearfield of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Clearfield. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
9. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Clearfield hereunder) when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's reasonable control.
10. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Clearfield. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
11. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
13. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota.
14. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Minnesota in each case located in the County of Hennepin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
15. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.
16. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
17. Survival. Provisions of these Terms, which by their nature should apply beyond the termination of this Agreement, will remain in force after any termination or expiration of this Agreement, including, but not limited to, the following provisions: Confidentiality, Governing Law, Submission to Jurisdiction, and Survival.
18. Amendment and Modification. This Agreement may only be amended or modified in writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.