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have the right to deliver the entire order at one time or in portions from time to time within the time of delivery herein provided.
PRORATA DELIVERY: In case seller is unable to make full delivery by reason of government commandeer, requisition or reservation, strike, flood, fire, crop damage, failure of transportation facilities, or for any cause or condition beyond seller's control, seller shall prorate remaining stocks. If seller shall deliver less than seventy-five per cent (75%), buyer may require seller to produce certificate from Canners' League of California, without expense to buyer, justifying such delivery, which certificate shall release seller from all further obligations on account of short delivery. If delivery is not so justified, Canners' League of California shall assess damages and seller agrees to pay same. If seller is unable to perform any other of its obligations under this contract by reason of any of the foregoing causes, such obligation shall at once terminate and cease.
SWELLS: The goods covered by this contract are guaranteed by seller against swells until July 1st following the date billed, but in no case for less than six months, unless said swells arise from improper handling or storage by carrier or buyer. All claims for swells must be made and bills rendered by buyer on or before July 10th, or not later than six months after date of invoice, and swells held subject to seller's order. Established claims shall be paid by seller within thirty days at invoice price and freight. Where local food laws require the destruction of swells, notice shall be filed with the canner or his representative giving him ten days' opportunity for inspection. If the seller or his representative fails to inspect within ten days, or if the goods are destroyed meantime by the authorities, official certificate bearing identification marks shall be accepted as prima facie evidence and voucher for the claim.
GUARANTY: Seller guarantees goods covered by this contract to conform to the requirements of the National Food and Drug Act of June 30, 1906, as amended, except that seller shall be relieved of any liability for misbranding when goods are not shipped under seller's label and/or brands.
DRAWBACK: Drawback, if any, for seller's account, buyer to furnish necessary documents.
NON-ASSIGNABILITY: This contract is not assignable and goods sold hereunder are not to be shipped or diverted to any destination other than that herein specified, without consent of seller.
CLAIMS: Claims other than for swells must be presented within ten (10) days from receipt of goods.
ARBITRATION: Disagreement as to any matter of fact arising out of this contract to be settled by arbitration in New York, Chicago or San Francisco. In the absence of agreement by the parties, arbitration shall be held in the above city nearest to the point where the goods are located. Arbitrations shall be held before and under the rules of the joint arbitration boards appointed or approved by the National Wholesale Grocers' Association, the National Food Brokers' Association and the National Canners' Association. The arbitrators shall assess the costs
of arbitration and the decision shall be final and binding upon both parties, who hereby agree to comply therewith. No unimportant variation in the execution of this contract shall constitute basis for a claim.
SCOPE OF CONTRACT: This contract is complete and supersedes and includes all other contracts, warranties, representations and statements, verbal or written, relating to goods specified herein. Brokers and salesmen have no authority to waive, change, or add to any of the terms or conditions covered by this contract.
This contract shall not be binding upon seller until signed by
(Signatures of seller and buyer.)
British Isles Canned Food Contract
Adopted April 25, 1923, by Canners' League of California, San Francisco, Calif.
Face of contract has the usual date line, the name and address of buyer, port of destination, route, party to be notified, time of shipment (seller's option), purchase as per cable of, and: The buyer has this day bought and (name of company) hereinafter called seller, has this day sold the following quantities of canned foods, as per specifications, prices named below and all terms and conditions stated on the reverse side of this contract. Below this is the form for specifications giving the cases, dozens, size, brand, grade, variety, price per dozen and extensions both in our own money and in the English equivalent.
The contract is signed in triplicate; one copy for buyer, one for the broker and the original for the seller. On the reverse side is printed the following terms and conditions:
PRICES: Unless otherwise provided on obverse side hereof, the prices specified include cost and freight and marine insurance to port of destination. Goods packed in unlacquered, labeled cans, in wooden cases suitable for export branded and marked. Cases to be either single or double strapped or wired at seller's option and expense.
PAYMENT: Against thirty (30) days' sight draft on buyer with documents attached.
SHIPMENT: Goods to be shipped as soon as practicable after being packed unless otherwise agreed.
DOCUMENTS: The documents attached to draft shall be invoice, bill of lading and insurance policy and/or certificate of the underwriters or their recognized insurance brokers.
On water shipments an ocean bill of lading shall acknowledge receipt on board, the loading date to be stated in bill of lading. On overland or sunset gulf shipments bill of lading may be either through export bill of lading or on board ocean bill of lading from Atlantic or Gulf port, accompanied by certified copy of domestic inland bill of lading, date thereof establishing date of despatch from point of origin to Atlantic or Gulf port.
DRAWBACK: If any, for seller's account, buyer to complete the necessary documents to be furnished by seller.
QUALITY: Unless otherwise specifically provided for goods to be of
the current season's pack and (count and syrup excepted) to be equal to, or better than the average of the grade or grades, contracted for. The count of fruit and syrup shall conform to the specifications adopted by the Canners' League of California, published February 20, 1922. Goods sold to originate and to be packed outside of the State of California shall be equal to, or better than, the fair average of the season's pack of the district named but count of fruit and syrup shall conform to the specifications adopted by the Canners' League of California published February 20, 1922.
Unless otherwise specifically provided for, in the case of apricots, covered by this contract, seller shall tender only northern California apricots.
SEPARABLE LOTS: This contract shall be deemed separable as to all goods sold hereunder and buyer may not refuse to receive any lot or portion of any lot because of non-delivery, or delay in delivery, of any other lot or portion thereof, or failure of any other lot or portion thereof to conform to contract requirements. Seller may ship the goods in one or more installments within the time herein allowed for shipment.
GUARANTY: Seller guarantees goods covered by this contract to conform to the requirements of the U. S. Government National Food and Drug Act of June 30, 1906, as amended. Seller shall be relieved of any liability through misstatements that may appear on labels when goods are shipped under buyer's labels.
RESPONSIBILITY: Notwithstanding shipped to seller's order, the goods are at risk of and for account of buyer from and after delivery to carrier, or to carrier's agent, and seller shall not be responsible for any loss, damage or diversion in transit after issuance of through export or certified copy of domestic inland and/or on board ocean bill of lading, which shall be evidence of delivery on the date they bear. On any route the carriage by water may be by one or more vessels direct or indirect with or without transshipment.
CHANGE OF ROUTING: Should buyer request a change of, or deviation from the routing herein specified (any such requested change or deviation to be subject to seller's approval) any difference in freight, insurance or other expense caused thereby shall be for buyer's account.
LIABILITY: Seller shall not be held responsible for non-fulfillment for reasons resulting from or contributed to by fire, strikes, floods, war, civil uprising, governmental requisitions or reservations or other exercise of governmental authority, embargo, failure, shortage or interruption of transportation facilities, or delayed loading of vessel or other cause beyond seller's control. In any such event the time for the performance by seller shall be extended for a period of thirty (30) days after expiration of shipping period specified herein with respect to any goods not then shipped.
In case seller is unable to make full delivery by reason of the foregoing causes, crop damage or short pack, seller shall prorate remaining stocks. If seller shall tender less than seventy-five per cent (75%) of the quantity of any grade or grades described herein he shall produce certificate of the Canners' League of California (without expense to
buyer) justifying such delivery, which certificate shall release seller from all further obligation on account of such short delivery. Certificate to be attached to and to be part of the documents provided for above and in the absence of such certificate the matter shall be submitted to arbitration as provided for hereafter.
In any case within the provisions of the preceding paragraph seller shall cable buyer direct or through his broker, stating the fact and cause of shortage or prevention or delay before or within eight (8) days after expiration of the time for shipment originally specified herein. All cables to be confirmed in writing.
In the event of seller being unable because of the foregoing causes to complete delivery of all or any portion of the goods to the carrier or carrier's agent within the original period named or extended period, seller's responsibility shall terminate and cease without liability for compensation or further tender, but buyer shall have the option of taking all or any portion of unshipped goods for despatch at earliest opportunity seller can arrange, any additional expense incurred for freight or insurance or other charges to be for account of buyer.
Neither party shall be liable for loss arising from the non-delivery of, or errors or delays in, transmission of cable, telegraphic or wireless messages, nor for delays or loss of letters or documents in mail.
MARINE INSURANCE: Seller shall insure goods for contract price plus ten per cent (10%) and in addition thereto shall include (if obtainable) pilferage insurance cover for seventy-five per cent (75%) of the contract price, said insurance to cover quay risks at port of destination named, at which it is customary to take delivery from the quay or wharf or dock warehouse in event of London being destination named. Insurance shall be effected with leading British companies or with Lloyd's Underwriters or leading American companies, and shall provide for payment of claim in the United Kingdom on the basis of three per cent (3%) particular average on each package.
WAR RISK: Seller shall insure against war risk at buyer's expense.
SWELLS: Allowance of one-half of one per cent (% of 1%) based on contract price shall be deducted from invoice in lieu of an allowance for defective cans. Buyer shall have the right on arrival of goods at destination to claim a ten per cent (10%) examination of externally clean, dry, unopened and/or unbroken cases, provided such claim be lodged with seller or seller's broker before removal of the goods from the quay or within fourteen (14) days of the landing of sufficient quantity at wharf or dock warehouse in London. Buyer may also cause full examination to be made separately of externally fruit-stained cases. Should the combined results of these examinations show burst, blown, leaky cans in excess of one per cent (1%) of invoice value, buyer shall be entitled to an allowance on burst, blown, and leaky cans in full and on badly rusty of one-half (2) value of contract price and on slightly rusty cans caused by burst, blown or leaky cans one shilling (1/-) per case, together with the cost of this ten per cent (10%) examination, less the half of one per cent (1⁄2 of 1%) already deducted from invoice.
Should the result of such examination show one per cent (1%) or less, the buyer shall pay entire cost of examination.
Either party may claim further examinations of externally clean, dry, unopened and/or unbroken cases at his own expense, the result thereof to be averaged with the first examination and claim, if any, established accordingly.
Seller shall not be held liable for transit risks.
No claim shall be recognized by seller unless accompanied by certificate of competent examiner or warehouseman.
ARBITRATION: Unless settled amicably any dispute arising under, out of, or in connection with, or in relation to, this contract shall be arbitrated as follows, and the award shall be accepted by both parties as final and binding.
All arbitrations shall be by two arbitrators, one to be appointed by each party with power to appoint a third as their umpire.
The arbitrators and/or their umpire shall in all cases be members of the canned food trade.
In the event of one party failing, after seven (7) days' notice, to appoint an arbitrator, the arbitrator appointed by the other party shall, after seven (7) days' notice, proceed ex parte and issue his award, which shall be accepted by both parties as final and binding.
Disputes concerning short delivery or non-delivery or late delivery shall be submitted to arbitration in San Francisco. The seller shall appoint as his arbitrator a disinterested member of the arbitration committee of the Canners' League of California and the buyer shall be at liberty to appoint as his representative a disinterested member of the said committee or any other independent disinterest party, and the said arbitrators shall have power to appoint a third party as their umpire.
All other disputes arising out of this contract shall be submitted to arbitration at destination. Should the destination not be either London or Liverpool, the arbitration shall be held at either London or Liverpool at the option of the buyer.
Should any tender and/or tenders not comply as to quality, weight or condition with the guarantees contained in this contract such tender and/or tenders shall be accepted by the buyer with an allowance to be decided by arbitration, but should the arbitrators or their umpire decide that the quality is a full grade or more lower than the grade contracted for, they or he shall issue the award, giving the buyer the option of taking the goods with an allowance to be specified or of rejecting the tender and receiving in lieu thereof a specified sum, but such sum shall not exceed the difference between the contract price and the replacement value on the day of default, as liquidated damages for non-fulfillment of that part of the contract, and such sum shall be forthwith payable by the seller to the buyer.
The buyer shall be deemed to have waived all claims not communicated to the seller or the seller's broker, or arbitration thereon demanded within fourteen (14) days after discharge of the goods at port of arrival and before same are removed from the quay, where it is customary to take delivery from the quay, or from the wharf or warehouse in London.