Vendor Terms and Conditions
The following terms and conditions govern orders and purchases of fish, shellfish and other seafood products (“Products”) by Marder Trawling, Inc. (together with its stockholders, officers, employees, affiliates, agents or representatives, “Marder Trawling”). By accepting an order by Marder Trawling for any Product you sell or distribute, you are agreeing to be bound by these terms and conditions (the “Agreement”). You understand and acknowledge that we may modify or change these terms and conditions from time to time by post- ing such modifications or changes in this location.
You represent and warrant to Marder Trawling, that: (i) you have complied with all applicable requirements under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et seq.), as amended by the Farm Security and Rural Investment Act of 2002 (the “2002 Farm Bill”) and all applicable rules and regulations promulgated by the U.S. Food & Drug Administra- tion, the U.S. Department of Agriculture and the U.S. Department of Commerce; (ii) all Products have been segregated according to the country of origin; (iii) all Products are accu- rately labeled with the proper country designation under the Country of Origin Labeling provisions of the 2002 Farm Bill; (iv) all Products are accurately labeled with the proper method of production; and (v) you have and will maintain documents and records sufficient to verify compliance with applicable law. You agree to indemnify and hold harmless and, at your expense, to defend Marder Trawling from and against any cost, expense, liability, claim, loss or damage, direct, consequen- tial, and/or incidental in nature (including reasonable legal fees and other expenses) to which Marder Trawling may become subject, insofar as such cost, expense, liability, claim, loss or damage arises out of, in connection with, or relates to any breach by you of any of the terms of this Agreement, any failure by you to perform any of your obligations under this Agreement or any default by you in the due payment of any amount for which you are responsible under this Agreement or in the due delivery of any Products for which you are responsible under this Agreement. You may elect, by written notice to us within ten (10) days after receiving notice from us of any such claim, action or proceeding, to assume the defense thereof with counsel reasonably acceptable to us. If you do not so elect to assume such defense or dispute your indemnity obligation with respect to such claim, action or proceeding, or if we reasonably believe that there are conflicts of interest between us and you or that additional defenses are available to us with respect to such defense, then we may retain our own counsel to defend such claim, action or proceeding at your expense. We shall have the right, at our own expense, to participate in the defense of any claim, action or proceeding against which we are indemnified hereunder. You, in the defense of any such claim, action or proceeding, except with our written consent, shall not consent to entry of any judgment or enter into any settlement which: (i) does not include, as an unconditional term, the grant by the claimant to us of a release of all liabilities in respect of such claim, action or proceeding; or (ii) otherwise adversely affects our rights.
Any dispute arising out of, relating to, or having any connection with this Agreement, including any question regarding its existence, validity, interpretation, performance, breach or termination, and any tort or other common law or statutory claims arising out of or relating to its negotiation, execution or performance shall be exclusively and finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”) by one or more arbitrators appointed in accordance with the ICC Rules. The place of arbitration shall be Boston, Massachusetts, USA, unless the parties agree otherwise. The arbitration shall be conducted in the English language. The arbitra- tion panel shall determine the rights and obligations of the parties in accordance with the substantive laws of The Commonwealth of Massachusetts other than those laws that would refer the matter to the law of another jurisdiction. The arbitration panel shall be composed of three arbitrators to be selected in accordance with the ICC Rules. The costs of the arbitration proceeding, including attorneys’ fees and expenses, shall be borne in the manner determined by the arbitration panel. The award shall be final and binding on the parties. Judgment on the award may be entered by any court having jurisdiction over the person or the property of the person against whom enforcement of the judgment is sought.
No failure or delay on the part of either party in exercising any right or remedy available hereunder for any one or more non-performance or other defaults shall be construed to prejudice its rights or remedies available hereunder for such or for any other or subsequent non-performance or other default. If any part of this Agreement shall be held unen- forceable, the remainder of this Agreement will nevertheless remain in full force and effect, so long as it still expresses the intent of the parties as expressed hereby.