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. Determining 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 of the intended use. Products may fail due to temperature variances, excessive pressures, abrasion, or damaging substances. The circumstances and conditions of use limit the wear life of Agru’s Products. 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 or damage to persons and property.
TECHNICAL INFORMATION 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. Buyer assumes all risk of the use of or results obtained from such advice or assistance or 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 APPLICATION OF THE INFORMATION OR USE OF AGRU’S PRODUCTS, REGARDLESS IF CAUSED BY AGRU’S NEGLIGENCE 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, which, together with these Terms, will be the agreed purchase contract (the “Agreement”) between Agru and Buyer. The Buyer shall examine all information of Agru carefully and comply with the guidelines of Agru in the Agreement. Unless otherwise agreed in writing, Agru’s offer to sell Products is valid for 30 days.
The Agreement between Agru and Buyer with regard to the subject matter hereof supersede all oral or written agreements and understandings with respect thereto. No terms in addition to or that conflict with these terms and conditions or Agru’s product specifications contained in any document produced by Buyer shall be binding upon Agru unless agreed to in a document bearing the manual signature of an authorized officer of Agru. If a purchase order, acceptance, confirmation, or other communication from Buyer includes any term or condition contrary to, or in addition to the terms and conditions stated herein or in Agru’s product specifications, Buyer’s acceptance of the Product and services which are the subject hereof shall constitute Buyer’s complete and unconditional assent to the terms hereof unless Buyer clearly instructs Agru in writing, prior to acceptance of the Product(s), to cancel the order. Buyer’s communication of contrary or additional terms and conditions following acceptance of the Product(s) shall be construed as an offer to supplement and/or amend these Terms. Such offer shall be deemed rejected unless accepted by Agru in a document bearing the manual signature of an authorized officer 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.
PAYMENT Subject to the approval of Agru’s credit department, the payment terms 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 make the full payment of the purchase price at the conclusion of the contract. Invoices must be paid within designated terms as stated on such invoices. 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. Payments are always applied to the oldest unpaid invoices when the payment date has lapsed. A charge of 18% per annum or, if lower, the maximum applicable lawful interest rate, shall be charged on all overdue amounts. If requested materials on your purchase order have been manufactured but not released within forty-five days after manufacturing, Agru will invoice for these materials, and invoices will be due based on your established terms. Customers will have 30 days from the date of the above invoice to release materials for shipment. A monthly storage charge of 1.0% of the unreleased material value will be assessed starting on Day 31; at this time, the customer will need to provide Agru with a Certificate of Insurance covering the value of these materials and naming Agru America, Inc. as an Additional Insured. Agru will assess a 1.5% interest charge per month on the outstanding invoice value if an invoice is not paid within the established terms. In addition, Buyer agrees to pay the 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 a 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 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 Buyer’s sole expense.
Agru will be responsible for invoicing, collecting, and remitting sales tax for shipments, unless the customer provides proper tax-exempt documentation or the state does not require sales tax collection. For all tax-exempt shipments, we must receive a Resale Certificate or Exemption Certificate from the customer prior to shipment—otherwise, the required sales tax will be charged.
DELIVERY Unless otherwise expressly stated in Agru’s Order Acknowledgment, all Product sales are F.O.B. Agru’s place of shipment. Agru will determine the point of shipment, the transportation method, and the shipment routing, 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.
Agru reserves the right to use materials not released and/or paid for as needed. Agru will re- manufacture this material based on updated delivery requirements. Any increases in raw material costs at the time of manufacturing will be charged to the customer, including any extra cost associated with third- party testing.
INSPECTION; RETURNS 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 and/or concealed damage not reported to the carrier at the delivery time. 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.
Non-standard Product returns will be accepted only with Agru’s authorization number and 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 total purchase price upon proper return of the Products. No Product returns will be accepted for Geotextile, Geocomposite, or Geosynthetic Clay Liner. No request for returns based on damaged or defective Products will be approved unless received by Agru within the required time periods.
If on Buyer’s own behalf, Buyer makes modifications or repairs on the delivered Products or their components, Agru’s Limited Product Warranty is nullified. Agru’s guarantee obligation is limited to replacing the defective delivered products. The availability of defect does not entitle the Buyer to repair it itself or by a third party, but Agru has to be given the possibility for improvement or replacement within an adequate period of time. The period of guarantee is one (1) year.
CANCELLATION 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 the manufacturing status of the subject Product(s). For example, orders for Products manufactured explicitly for Buyer cannot be canceled once Product manufacturing begins.
MODIFICATION OR TERMINATION FOR CONVENIENCE Products are non-standard and made to order. Therefore, in the event of a termination of this Agreement or a Purchase Order for Convenience, Suspension, or Extension of the time for Agru’s performance (Deferment) of a Purchase Order, Agru requires payment of all Products already manufactured but not shipped as of the date of Agru’s written acknowledgment of the written notification of a Termination for Convenience, Suspension or Extension. Agru also requires payment for 100% of the cost of unused raw material already purchased, plus a reasonable manufacturing fee for the order for which the Termination for Convenience, Suspension, or Extension is given. If the order is canceled after the final acceptance of material, Agru requires payment in full for the purchase order. No waiver or modification of these Terms or any other provision of this Agreement shall be binding upon Agru unless made in writing and manually signed by a duly authorized officer of Agru. Additional or different terms submitted by anyone other than as confirmed by Agru in a document bearing the manual signature of an authorized officer of Agru are specifically rejected and shall be deemed to be of no effect.
TITLE AND RISK OF LOSS; SECURITY INTEREST Subject to the following 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 WARRANTY,” WHETHER BASED ON NEGLIGENCE, BREACH OF WARRANTY, 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.
LIMITATION OF LIABILITY, REMEDIES BUYER’S EXCLUSIVE REMEDY, AND THE LIMIT OF AGRU’S LIABILITY FOR BREACH OF ITS “LIMITED PRODUCT WARRANTY,” WHETHER BASED ON NEGLIGENCE, BREACH OF WARRANTY, 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.
FORCE MAJEURE 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, or pandemics(Covid-19)); (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; (e) machinery mechanical failure beyond Agru’s control and (f) 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 this Agreement.
SEVERABILITY 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, a valid and enforceable provision shall be substituted for the affected provision as similar as possible to the affected provision.
CONFIDENTIALITY Unless another non-disclosure agreement between Agru and Buyer exists, all information disclosed during the offer, the order, or in another way reached the other party shall be strictly confidential. Such information shall be used only for the purpose of an order. A transfer to third parties is only permitted with the prior written approval of the other party. Buyer shall keep order and contracts strictly confidential and is not allowed to advertise or use them as a reference without the prior written approval of an authorized officer of Agru.
MISCELLANEOUS These Terms and the specific order provisions contained or referred to in Agru’s Order Acknowledgement set forth the contract between the parties with respect to the subject order(s) and cancel and supersede all previous agreements, confirmations and terms, and conditions, oral or written. This Agreement can be modified only by a written amendment duly signed by the parties, including a Change Form duly signed by the parties, and shall not be supplemented or modified.
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 and acknowledged by Agru in writing.
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 to enforce Agru’s or Buyer’s rights hereunder shall be brought in a state or Federal court located in the state of South Carolina, and any action brought by either Agru or Buyer in any other locations shall, upon appropriate motion by the other, be dismissed. Agru and Buyer consent to the exclusive jurisdiction of the foregoing courts and the effectiveness of service of process by certified United States mail.
All disputes or claims arising out of or in connection with this Agreement including disputes relating to its validity, breach, termination or nullity shall be amicably resolved by mutual negotiations for a period of two weeks to resolve. This period may be extended by mutual agreement between Agru and Buyer.
If negotiations are unsuccessful, Agru and Buyer 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 Buyer extends the period in writing.
If the dispute or disagreement is not successfully mediated, Agru and Buyer agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be administered by the American Arbitration Association.
This Agreement is binding upon and inures to the benefit of Agru and Buyer hereto, and their respective successors and permitted assigns. Agru nor Buyer may assign any of its rights or obligations under this Agreement without prior written consent by the other, which consent will not be unreasonably withheld, delayed, or conditioned. The foregoing notwithstanding, Agru may assign this Agreement to any 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.
Agru nor Buyer may give any director, employee, or representative of the other 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.