Updated March 28, 2024
VALIDITY These General Terms and Conditions of Purchase (this “Agreement”) shall be valid for the sale of all goods and services (“Products”) by _________ (the “Supplier”) to Agru/America, Inc. (“Agru”). Unless otherwise agreed in writing, this Agreement shall apply exclusively to all Products ordered or purchased by Agru from Supplier, and other general terms or conditions of the Supplier in conflict with this Agreement are hereby expressly rejected. Any changes to and amendments of this Agreement must in writing signed by both parties to be legally binding.
COST ESTIMATES Cost estimates shall be binding upon Supplier without charge to Agru. The Supplier shall examine all information provided by Agru carefully and comply with Agru’s requirements communicated to Supplier. Unless otherwise agreed in writing each cost estimate of Supplier to Agru shall be valid for at least 30 days and a contract of sale shall be formed when Agru offers to purchase the Products from Supplier and Supplier issues a written order confirmation to Agru conforming to Agru’s requirements. If Agru does not receive written order confirmation within 4 calendar days of its offer, Agru shall no longer be bound by its offer and the Supplier shall have no claims against Agru in respect thereof. If there are deviations between Agru’s order and Supplier’s order confirmation, such deviations shall be deemed to be agreed upon only after written approval of Agru.
PRICES Prices quoted by Supplier shall be fixed prices and shall be inclusive of standard packing and all additional costs, for example freight, insurance, export-import and other approvals, unless otherwise agreed. No increase in quoted prices shall be effective unless separately negotiated and agreed to in writing by Agru.
TERMS OF PAYMENT Payment terms, including discount periods, shall not start until receipt by Agru of a complete and correct invoice from Supplier. Provided no separate payment conditions have been agreed to, payment terms shall be within 14 days minus 3% cash discount or 30 days net. If deliveries are made after the receipt of an invoice, the payment term shall begin with the receipt of the Products. The payment of the purchase price shall not constitute an acknowledgment of the correctness of the delivery of Products and does not affect any claims by Agru may have against the Supplier. Any purported assignment by Supplier of claims against Agru shall not be effective unless Agru consents to the same in writing, and if it does not so consent, Agru shall be entitled to terminate any such contract in whole or in part. In the case of Products determined by Agru to be defective, Agru shall be entitled to withhold payment in an amount reasonably calculated by Agru to reflect such defects.
INVOICE Each invoice of Supplier shall reference Agru’s purchase order by number and the name of the Agru employee requesting the same. Invoices that do not comply with this Agreement or legal requirements, including tax regulations, shall not be accepted by AGRU.
DELIVERY Delivery of Products shall be carried out according to terms agreed upon by Agru and Supplier, including applicable Incoterms, and shall comply with applicable legal requirements. Each delivery shall include a writing containing the order number and the name of the responsible Agru employee. Delivery dates and contractual obligations shall apply as agreed and shall be strictly observed. Supplier shall notify Agru promptly by telephone or electronic means of any changes in time or manner of delivery, including any anticipated delay in delivery. If Supplier fails to strictly comply with Agru’s delivery requirements, Agru shall be entitled to terminate its order without notice or grace period. In the event Supplier does not meet the agreed-upon delivery date, Agru shall be entitled to liquidated damages in the amount of 25% of the total delivery value for every day’s delay in delivery, up to 5% of the total delivery value covered by the applicable purchase order. The foregoing shall not apply to delays in delivery due to force majeure events listed in Section 11 and shall not limit any other claims and rights of Agru against the Supplier. Deliveries will be accepted by Agru from Monday to Friday 8:00 a.m. to 4:00 p.m. on days when Agru is open for business.
TRANSFER OF TITLE AND RISK OF LOSS Transfer of risk of loss shall take place according to the parties’ agreement under applicable Incoterms. For deliveries involving a formal acceptance, the transfer of risk of loss shall take place upon formal acceptance absent a written agreement to the contrary. Transfer of title shall occur: (i) upon completion of unloading at Agru or at the place of destination defined by Agru, or (ii) for deliveries involving a formal acceptance, upon formal acceptance, but in any case, not until after full payment of the purchase price.
WARRANTY
Supplier warrants that the Products will be free from any defects and comply with Agru’s purchase order and Supplier’s order confirmation. Agru shall promptly report to Supplier if a delivery does not comply in type and quantity with its order or if any visible transport damages or any other recognizable defect exists. Agru shall report such defects to Supplier as soon as possible but not later than 14 calendar days after their discovery. Any defects later detected shall be reported by Agru to Supplier within a reasonable time. Supplier may not require any further inspections and waives any objection due to a late report of a defect.
The warranty period shall be two years after acceptance of Products or, for deliveries involving a formal acceptance, for two years after formal acceptance. Within the warranty periods, the Supplier must prove the freedom from any defects at the time of acceptance.
If during the warranty period any defects or damages occur, Agru can demand an improvement [B&L: UCC term is repair, not improvement.] of the defective Products, the replacement of the defective Products, a price reduction, or withdrawal from the contract. The improvement or the replacement of the defective Products shall be carried out within a reasonable time and with the least possible inconvenience to Agru. In a case of urgency or refusal by the Supplier, Agru is entitled to carry out the improvement of the defective Products by itself or by a third party at the expense of the Supplier after prior consultation with the Supplier. All costs in connection with the improvement of the defective Products, the replacement of the defective Products, a price reduction, or withdrawal from the contract shall be borne by the Supplier. If Agru arranges for the return transport or the return of defective Products, the Supplier shall also bear these costs and the risk of an accidental loss or deterioration of the defective Products during the transport. If a warranty claim occurs and an improvement or a replacement of the defective Products takes place, the warranty period shall be suspended during the time of such improvement or replacement and shall recommence for the improved or replaced Products after acceptance or formal acceptance. The foregoing shall not be construed to limit any further legal claims and rights of Agru against the Supplier. Agru shall be entitled to carry out an audit at the Supplier’s production plant with prior notification during normal business hours. The Supplier shall provide commercially reasonable support to Agru with respect to such an audit.
PROPERTY RIGHTS Products shall be free from all liens, claims or other rights of third parties. Agru shall be and remain entitled to the possession and use of the Products throughout the world. In the event any third party makes a claim of infringement or other rights in Products, Agru may cancel the related contract and Supplier shall be liable for all damages incurred by Agru.
CONFIDENTIALITY Unless another non-disclosure agreement between Agru and the Supplier applies, all information disclosed as part of Agru’s offer or purchase order to Supplier or in any other communication shall be strictly confidential and shall be used only for purposes of filling such order. Supplier may not transfer any order to a third party without Agru’s prior written approval. Supplier may not use orders or contracts as endorsements, in advertisements or as references without the prior written approval of Agru.
FORCE MAJEURE Supplier shall be released from the performance of its duties under this Agreement if such non-performance is caused by force majeure. “Force majeure” shall mean fire, flood, earthquake, and other acts of god, and embargos on export and import where the same directly affect the performance of the agreement. The performance of Supplier’s obligation shall be suspended for as long as force majeure continues to exist. Supplier shall inform Agru about the beginning and the cessation of the force majeure event immediately, but not later than within five (5) days of its occurrence. Should the Supplier fail to promptly report the force majeure situation to Agru, the Supplier shall remain liable for non-performance of its duties under this Agreement despite the circumstances thereof. The occurrence and duration of force majeure shall be documented in a suitable form. If the period of force majeure lasts longer than four weeks, Agru shall be entitled to withdraw from this Agreement in whole or in part and Supplier shall have no claims against AGRU in respect thereof. If AGRU is unable to fulfill its obligations because of force majeure, the foregoing shall apply mutatis mutandis.
CONTRACT TERMINATION The parties are entitled to withdraw from this Agreement and cancel all outstanding orders hereunder in writing if the other party violates any provision of this Agreement and such violation is not cured within five business days of written notice from the non-breaching party.
INSURANCE, PRODUCT LIABILITY Agru may require Supplier to provide evidence of customary business and product liability insurance to cover possible product liability claims, naming Agru as additional insured. The Supplier shall indemnify Agru against any uninsured claims based on product liability.
APPLICABLE LAW JURISDICTION This Agreement shall be governed by and interpreted according to the internal laws of the State of South Carolina without applying its choice of law provisions. Any action to enforce this Agreement shall be brought in a state or Federal court located in the state of South Carolina, and any action brought by either Agru or Supplier in any other location shall, upon appropriate motion by the other, be dismissed. Agru and Supplier consent to the exclusive jurisdiction of the foregoing courts and the effectiveness of service of process by certified United States mail. The parties shall attempt to amicably resolve all disputes or claims arising out of this Agreement including disputes relating to its validity, breach, termination, or nullity, by mutual negotiations for a period of two weeks; such period may be extended by mutual agreement between Agru and Supplier.
If negotiations are unsuccessful, Agru and Supplier shall, at the request of either, attempt to mediate the dispute before a mutually acceptable mediator. The mediation shall be completed as promptly as reasonably possible after the request for mediation unless Agru or the Supplier extends the period in writing.
If the dispute or disagreement is not successfully mediated, Agru and the Supplier agree to submit the dispute to binding arbitration following the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be administered by the American Arbitration Association.
MISCELLANEOUS If any provision of this Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, under any applicable enactment or rule of law, such illegality, invalidity or unenforceability shall not affect the remainder of this Agreement, and Agru and the Supplier shall in good faith attempt to substitute a legal, valid and enforceable provision which achieves to the nearest extent possible the same effect as would have been achieved by the illegal, invalid or unenforceable provision.
