Gruma Corporation

Except as otherwise agreed in a writing signed by the buyer of the goods ("Buyer") and Gruma Corporation ("Seller"), all sales of goods by Seller to Buyer are subject to the terms and conditions set forth below.

1. Price.  The purchase price of the goods shall be as communicated by Seller, whether on the face of a Seller sales order confirmation, Seller proposal, Seller offer, Seller’s invoice or otherwise. 

2. Cancellation; Modification.  Buyer cannot cancel, modify, or otherwise alter orders without Seller's written consent.  Seller reserves the right to cancel, modify, or otherwise alter previously confirmed orders prior to shipment upon written notice to Buyer.

3. Delivery.  Unless otherwise set forth on the face of the sales order confirmation, all goods are sold and delivered F.O.B. Seller's facility (pursuant to Article 2 of the UCC), notwithstanding any agreement by Seller to pay for any freight or shipping costs.  If shipped freight prepaid, Seller may add any charges for freight to the invoice.  Title to the goods will pass upon payment in full by Buyer, and risk of loss will transfer F.O.B. Seller’s facility.  Seller agrees to reasonably cooperate with any carrier claim made by Buyer, to provide information and documentation reasonably available to Seller in relation thereto.  Buyer may pick up the goods at Seller's shipping facility provided Buyer arrives at the time and location provided by Seller, with the applicable pickup reference number available for Seller's reference. Delivery estimates provided by Seller are approximate.  Acceptance of goods upon delivery shall constitute a waiver by Buyer of any claim for damages caused by non-shipment or delays in delivery or performance.

4. Warranties; Indemnity. SELLER WARRANTS THAT THE GOODS FURNISHED HEREUNDER SHALL MEET THE WRITTEN SPECIFICATIONS THEREFOR THAT ARE ISSUED BY SELLER. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  BUYER WILL INDEMNIFY AND DEFEND SELLER FOR ANY THIRD-PARTY CLAIMS, DAMAGES, COSTS, OR EXPENSES ARISING IN CONNECTION WITH OR AS A RESULT OF BUYER'S NEGLIGENCE, VIOLATION OF LAW, OR BREACH OF ANY AGREEMENT OR PROVISION HEREOF.

5. Inspection; Remedies.  Buyer must inspect all goods delivered within twenty four (24) hours of receipt thereof.  Any claim for or any defect or alleged defect in the goods will be null and void unless Buyer has notified Seller of such defect within seventy two (72) hours of Buyer's receipt of the goods.  Seller will have no liability for any damage occurring after the goods depart Seller's facility.  Goods for which damages are claimed shall not be returned, repaired, or discarded without Seller's written consent. BUYER'S EXCLUSIVE REMEDY AGAINST SELLER, AND SELLER'S SOLE OBLIGATION, FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL BE LIMITED TO SELLER'S REPLACING GOODS THAT DO NOT CONFORM TO SPECIFICATIONS OR, AT SELLER'S OPTION, REFUNDING THE PURCHASE PRICE.  IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR DAMAGES IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE GOODS SOLD HEREUNDER, NOR SHALL SELLER HAVE ANY LIABILITY FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFIT, LOSS OF OPPORTUNITY, OR LOSS OF BUSINESS.  SELLER'S MAXIMUM LIABILITY WITH RESPECT TO ANY GOODS SOLD BY SELLER WILL IN NO EVENT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR SUCH GOODS.

6. Payment.  All amounts paid by Buyer shall be in U.S. Dollars.  If Buyer has executed and delivered a credit application to Seller (in the form required by Seller), and Seller has granted credit to Buyer thereunder, payments will be permitted as set forth on Seller’s invoice.  Otherwise, payments will be permitted on a net-30 basis, unless otherwise specified in writing by Seller. In the event Seller has not granted Buyer credit, Buyer must prepay for all goods. In the event Buyer, or any affiliate of Buyer, fails to make payment to Seller, or any affiliate of Seller, of any amounts due and owing to Seller or such affiliate (including any applicable surcharge or freight charge), Seller shall have the right to terminate any Buyer order or any unfulfilled portion thereof, and Seller or any affiliate thereof may terminate any other agreement or order between Seller or any affiliate of Seller and Buyer or any affiliate of Buyer.  Seller may charge interest on the outstanding balance at an annual rate equal to the lesser of (a) 18% per annum, or (b) the highest rate allowed by applicable law.  Seller shall have the right to employ an attorney to collect the balance due, and Buyer agrees to pay all collection costs incurred by Seller, including its reasonable attorney fees. ANY CLAIM BY BUYER DISPUTING AMOUNTS DUE FOR A SALE MUST BE MADE WITHIN ONE (1) YEAR FROM THE DATE OF THE SALE.

7. Taxes.  All taxes of any kind levied by any federal, state, municipal or other governmental authority, which tax Seller is required to collect or pay with respect to the sale or shipment of goods sold to Buyer shall be the responsibility of Buyer.  Buyer agrees to pay all such taxes and further agrees to reimburse Seller for any such payments made by Seller.

8. Security Interest. To secure the payment and performance of all of the Buyer's obligations to Seller (the "Obligations"), Buyer hereby grants to Seller a security interest in all of Buyer's interest in and to the following, whether now owned or hereafter acquired, and wherever located: all goods ordered or purchased by Buyer from Seller (including any such goods whether now or at any time in the future in the Buyer's possession), including claims and credit balances, all proceeds (including proceeds of any insurance policies, proceeds of proceeds and claims against third parties), and all products and all books and records related to any of the foregoing (all of the foregoing, together with all other property in which Seller may now or in the future be granted a lien or security interest, is referred to herein, collectively, as the "Collateral"). In all respects Seller shall be deemed a secured party regarding the Obligations and the Collateral, and Seller shall have all rights to the Collateral provided under applicable law, including without limitation UCC Article 9 as in effect under the laws of the applicable jurisdiction.

9. Other Terms.  Seller's sale of goods is expressly conditioned on Buyer's acceptance of these terms, and Seller expressly rejects any different or additional terms or conditions contained in any documents submitted by Buyer, whether in connection with any purchaser order, proposed purchase agreement, or other document issued by Buyer ("Buyer's Terms"), and Buyer acknowledges and agrees that Buyer's Terms, if any, will not apply and are excluded.  Any Seller sales order confirmation, Seller proposal, Seller offer, Seller credit application, and Seller’s invoice, together with these terms and conditions constitute the entire agreement between Seller and Buyer relating to the sale of such goods by Seller. 

10. Force Majeure.  Seller shall not be responsible for non-shipment of goods or delays in delivery or performance due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of Buyer, strikes, or other labor disturbances, governmental orders, pandemic, Seller's inability to obtain, or material increases in the cost of, raw materials or utilities, or any delays in transportation, repairs to equipment, fires, or accidents. 

11. Governing Law.  This sale shall be governed by the laws of the state of Texas.  Buyer, acting for itself and its successors and assigns, hereby expressly and irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Dallas County, Texas for any dispute which may arise out of or be related to sales of goods by Seller to Buyer.

12. Enforcement; Remedies.  Seller reserves the right to enforce these terms and conditions at any time and none shall be deemed waived unless such waiver is in writing signed by a duly authorized officer of Seller.  All rights and remedies granted herein are in addition to all remedies available at law or in equity.