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These are the General Terms and Conditions (“Terms”) of sale for Agru-America, Inc. and each of its subsidiaries, divisions and affiliates (collectively, “Agru”). There are no other terms of sale unless Agru agrees in writing to different terms with you (“Buyer”) of Agru’s products (each, a “Product” and collectively, the “Products”):
Agru sells its Products commercially for multiple applications determined by Buyer or end-user. Determination of the suitability of a Product for the uses and applications of Buyers and end-users shall be the sole responsibility of Buyer or end-user. Consultation with qualified engineers and testing laboratories is recommended. Agru does not recommend any of its Products for any particular use or application. Buyer or end-user shall assume full responsibility for the adequacy and suitability for the intended use. Products may fail as a result of temperature variances, excessive pressures, abrasion or damaging substances. The wear life of Agru’s Products is limited by the circumstances and conditions of use. Buyer and end-users should conduct regular inspections of the Product(s) to determine if it should be replaced for operational and safety requirements, to prevent injury of damage to persons and property.
Buyer acknowledges the use of its own knowledge, expertise, skill, experience and judgment in the selection of Products(s) and /or in the selection, provision, or designation of any specifications or set of specifications for a Product(s) agreed upon by the Buyer and Agru. Any technical advice or assistance furnished by Agru to Buyer with respect to the selection or use of the Products delivered to Buyer hereunder will be given and accepted at Buyer’s sole risk, and Buyer acknowledges that Agru shall have no liability whatsoever for, and Buyer assumes all risk of the use of, or results obtained from such advice or assistance or from any inaccurate or unsuitable specifications or information provided, selected or designed by Buyer. AGRU MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SUITABILITY OF PRODUCTS FOR A PARTICULAR PURPOSE. BUYER AND EACH END USER MUST DETERMINE THE SAFETY AND SUITABILITY OF AGRU’S PRODUCTS FOR THEIR OWN PURPOSES, AND ASSUME ALL RISK, RESPONSIBILITY AND LIABILITY FOR ALL INJURIES, LOSSES OR DAMAGES ARISING FROM THE APPLICA TION OF THE INFORMA TION OR USE OF AGRU’S PRODUCTS, REGARDLESS IF CAUSED BY AGRU’S NEGLIEGENCE, BASED ON STRICT PRODUCT LIABILITY, OR OTHERWISE.
ACCEPTANCE OF ORDERS
Agru’s offer to sell Products to Buyer or acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of these Terms. Agru will provide Buyer with a sales order acknowledgment generated by Agru that, together with these Terms, will be the agreed purchase contract (the “Agreement”) between Agru and Buyer.
Each delivery of the Products by Agru will be deemed to be solely upon these Terms. Agru expressly rejects all new, different or additional terms of sale submitted by Buyer, whether in any purchase order, acknowledgement, acceptance or other document of Buyer. Acceptance of any additional, different or conflicting terms or provisions offered by Buyer must be accepted by Agru (if at all) in an express written amendment hereto signed by an authorized representative of Agru.
Buyer’s acceptance, use and/or holding of Agru’s Products for ten (10) days after shipment also establishes Buyer’s acceptance of these Terms. Agru also reserves the right to select its own customers and the right to reject any order. Affidavits or certificates of compliance must be requested when orders are placed.
Subject to the approval of Agru’s credit department, terms of payment are those in effect for Product sales as of the date of shipment. Buyer will pay Agru for Products delivered hereunder in U.S. currency at Agru’s main office. Agru may decline from time to time to make delivery of Products hereunder except for cash payable in advance or upon delivery if Agru for any reason has doubt as to Buyer’s financial responsibility and will so advise Buyer. Buyer is already obliged to the full payment of the purchase price at conclusion of contract. Invoices must be paid within designated terms as stated on such invoice. Should Buyer default in any payment obligation to Agru, Agru is authorized to declare all of Buyer’s outstanding accounts due and payable, even if other payment terms have been agreed upon. When the payment date has lapsed, payments are always applied to the oldest due invoices. A charge of 18% per annum or, if lower, the maximum applicable lawful interest rate, shall be charged on all overdue amounts. In addition, Buyer agrees to pay cost of collection, including attorney’s fees, court costs, and any other expenses incurred. Credit balances will only be applied to future purchases.
PRICE, PRICE CONTROLS AND TAXES
Unless otherwise specified in writing, (i) orders will be shipped and invoiced at the price agreed and documented by Agru’s Order Acknowledgement that has been sent to, and accepted by Buyer, and price adjustments for Products in transit or in Buyer’s inventory will not be allowed; and (ii) the Price, Transportation and Taxes for the Products will be as agreed upon and documented in the Order Acknowledgement that has been sent to, and accepted by Buyer. If there is an increase in raw materials or transportation costs prior to completion of the order, the additional cost will be borne by Buyer and reflected in a Revised Order Acknowledgement, a copy of which shall be forwarded to Buyer. Price does not include third party testing, which will be the sole expense of Buyer.
Any tax, excise or other governmental charge on the production, sale or transportation of the Products imposed by federal, state or local governmental authorities will be paid by Buyer to Seller in addition to the purchase price. For all shipments into states for which Agru is not registered to collect sales tax, the burden for payment of said tax lies with Buyer. Any sales tax exemptions for which Buyer is eligible will need to be furnished to Agru before the sales is finalized.
Unless otherwise expressly stated in Agru’s Order Acknowledgment, all Product sales are F.O.B. Agru’s place of shipment. Seller will determine the point of shipment, the method of transportation, and the routing of shipment, endeavoring to select the most favorable transit route. Freight and transportation charges will be billed to, and payable by Buyer. Agru does not guarantee any delivery or completion date. Agru shall have no liability for delays, damage or delivery failures occurring after the Product is delivered to the carrier.
Buyer will promptly unload any release transportation equipment furnished or arranged for by Agru. Buyer is solely liable for detention and demurrage charges assessed at the destination.
Agru reserves the right to ship, and Buyer agrees to accept and pay for quantity within 10% plus or minus of the quantity reflected in Agru’s Order Acknowledgment.
Agru agrees to ship a maximum of one short roll per truck. This short roll will be at least one-half the standard roll length for the subject Product. Additional short rolls may be shipped with written authorization from Buyer.
After delivery the Products are to be inspected immediately. All shipments shall be carefully inspected when received and any claims for freight damage should be noted on the Bill of Lading. Agru shall not be responsible for freight damage and/or concealed damage not reported to the carrier at time of delivery. Product shortages and visibly damaged or defective Products must be reported to Agru within ten (10) days following delivery. Buyer may not withhold payment on uncontested Product deliveries.
Product returns will be accepted only with Agru’s prior written consent. Each request for exchange or return shall describe the condition of the Products, and the reasons for the requested return or exchange. For each approved Product return, Agru will issue a credit for the quantity of Product received at Agru’s shipping point, properly packed and in resalable condition, as determined by Agru in its reasonable discretion, less (i) a 25% handling, restocking and reconditioning fee, and/or any associated cleaning and/or damage charges; or, if greater, (ii) the actual charges incurred. In addition, for returns authorized due to Buyer’s rightful rejection or justifiable revocation of acceptance of the Products, Agru will pay for reasonable handling and transportation charges for the Product return and, in addition, will, at Agru’s option, issue a refund of (in lieu of credit for) the full purchase price upon proper return of the Products. No request for returns based on damaged or defective Products will be approved unless received by Agru within the required time periods.
Requests for cancellation or modification of orders must be submitted in writing and received by Agru at least two (2) days prior to shipment. Any cancellation or modification will be effective only when acknowledged in writing by Agru and can be made subject to production status of the subject Product(s). Orders for Products specifically produced for Buyer cannot be canceled once Products are substantially produced.
TITLE AND RISK OF LOSS; SECURITY INTEREST
Subject to the next succeeding sentence, title to, and all risk of loss or damage to the Products vests in Buyer at the time Agru delivers the Products to the carrier, regardless of any shipping and insurance arrangements made by Agru on Buyer’s behalf. The foregoing notwithstanding, Agru reserves to itself a purchase money security interest in each Product delivered until full payment is received. In addition, should a third party attempt attachment of delivered Products prior to full payment therefor, Buyer shall call the attention of such third party to the fact of Agru’s ownership interest and immediately notify Agru in writing, giving exact details such as case number, attachment date, petitioning creditor, any attorney involvement and contact information and demanded amount. Buyer shall immediately reimburse Agru for all fees, expenses and other costs incurred by Agru in connection with protecting Agru’s interests.
WARRANTIES AND DISCLAIMERS
Products furnished under these Terms shall conform to the description herein. Agru warrants to the initial Buyer of the Products that (i) all first quality Products are free from material defects and conform in all material respects to Agru’s product specifications as indicated in the applicable Agru technical records, catalogs, guidelines, and test certificates in effect at the time of shipment and for the warranty period provided in the Agreement (please refer to Agru’s “Limited Product Warranty” which by this reference is referred to, and incorporated herein for all purposes); and (ii) the Products sold hereunder do not infringe any valid U.S. patent; provided, Agru does not warrant that the use of the Products, either alone or in conjunction with other materials, will not infringe any valid U.S. patent. Agru shall convey good title to Buyer. THE WARRANTIES SET FORTH IN THIS PARAGRAPH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING (WITHOUT LIMITATION) WARRANTIES ARISING FROM COURSE FOR DEALING OR USAGE OF TRADE, WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE. ALL PRODUCTS ARE SOLD AND WARRANTED ONLY PURSUANT TO AGRU’S “LIMITED PRODUCT WARRANTY” AND ITS PUBLISHED TERMS AND CONDITIONS OF SALES. AGRU EXPRESSLY DISCLAIMS, AND BUYER AGREES THAT AGRU SHALL NOT BE LIABLE OR RESPONSIBLE TO BUYER, ANY END USER OF THE PRODUCTS OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, WHETHER BASED ON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY, AT LAW OR IN EQUITY, FOR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT OR RESULTING FROM PRODUCT USE OR PROCESSING, EVEN IF THE REPAIR, REPLACEMENT OR REFUND REMEDY FOR A BREACH OF AGRU’S “LIMITED PRODUCT WARRANTY” FAILS OF ITS ESSENTIAL PURPOSE OR FOR ANY OTHER REASON.
LIMITATION OF LIABILITY, REMEDIES
BUYER’S EXCLUSIVE REMEDY, AND THE LIMIT OF AGRU’S LIABILITY FOR BREACH OF ITS “LIMITED PRODUCT W ARRANTY ,” WHETHER BASED ON NEGLIGENCE, BREACH OF W ARRANTY , STRICT LIABILITY OR ANY OTHER THEORY, AT LAW OR IN EQUITY, SHALL BE, AT AGRU’S OPTION, REPAIR, REPLACEMENT WITH A LIKE QUANTITY OF NON-DEFECTIVE PRODUCT, OR REFUND OF THE PURCHASE PRICE, PLUS REASONABLE HANDLING AND TRANSPORTATION CHARGES INCURRED FOR APPROVED RETURNS. IN NO CIRCUMSTANCES WILL AGRU’S LIABILITY EXCEED THE PURCHASE PRICE OF THE PRODUCTS.
Agru shall not be liable, nor deemed in default hereunder, for any failure or delay in delivering the Products or in the performance of its other obligations to Buyer hereunder, caused by, or arising out of any cause, contingency or circumstance beyond Agru’s reasonable control and affecting the performance of Agru’s obligations hereunder, including (without limitation): (a) compliance in good faith with any applicable foreign or domestic governmental regulation or order of whatever nature and whether foreign, federal, state or local; (b) all acts of God (such as, but not limited to floods, fires or tornadoes); (c) strikes and other labor trouble; (d) delays or nonperformance by suppliers (or other third parties) of raw materials, power or other supplies or services; and (e) delays or nonperformance by transporting carriers. Agru shall determine in good faith the extent to which it can reasonably control a cause, contingency or circumstance affecting its performance obligations.
ATTORNEYS’ FEES, COSTS
In any action taken by Agru upon a claim Buyer’s default, or in its reasonable anticipation of Buyer’s default, Buyer agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Agru, whether involving collecting payments due or otherwise enforcing these Terms.
If any of these provisions are determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of these Terms shall be unaffected. Also, there shall be substituted for the affected provision a valid and enforceable provision as similar as possible to the affected provision.
MODIFICATION OR TERMINATION
This Agreement sets forth the entire contract between the parties with respect to the subject matter hereof, and cancels and supersedes all previous agreements, confirmations and terms of sale, oral or written. No waiver or modification of these Terms or any other provision of this Agreement shall be binding upon Agru unless made in writing and signed by a duly authorized representative of Agru. Additional or different terms submitted by anyone other than Agru are specifically rejected and shall be deemed to be of no effect.
All notices, requests, claims and other communication by Buyer with respect to this Agreement, these Terms or the sales hereunder shall be in writing, and directed (i) to Agru at its corporate offices located at 500 Garrison Road, Georgetown, SC 29440, and (ii) to Buyer, at the address set forth on Agru’s Order Acknowledgment. Notice shall be effective when first received.
This Agreement is to 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 brought to enforce a party’s rights hereunder shall be brought in a state or Federal court located in Charleston, South Carolina and any action brought by either party in any other locations shall, upon appropriate motion by the other party, be dismissed. The parties consent to the exclusive jurisdiction of the foregoing courts and the effectiveness of service of process by certified United States mail.
This is binding upon, and inures to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or conditioned. The foregoing notwithstanding, Agru may assign this Agreement to an acquirer of its business to which this Agreement relates without Buyer’s consent; in such case, Agru shall give Buyer prompt notice following such assignment.
Neither party may give any director, employee, or representative of the other party any commission, fee, rebate, gift, or entertainment of significant cost or value in connection with this contract or enter into any other business arrangement with any director, employee, or representative of the other, without prior written notification to the other party.