General Terms and Conditions
1. Payment Terms.
a) Price. At any time and without notice, before acceptance by AgroFresh Inc. or any of its affiliates (collectively “AgroFresh”), of a purchase order, order form, or such other form or agreement by which Customer desires to purchase goods or services from AgroFresh (such purchase order, order form, or other form or agreement, together with these General Terms and Conditions are hereinafter referred to as the “Agreement”), AgroFresh may change the price or terms of payment for any products or services (collectively “Products”). In addition, AgroFresh may without notice before acceptance of an order, change transportation terms or minimum requirements per shipment for any purchases.
b) Credit. Each delivery of Products to Customer is subject to cash or credit arrangements made by Customer with AgroFresh. If Customer does not comply with such terms, or if AgroFresh believes Customer’s credit standing is impaired, AgroFresh may withhold deliveries of Products. In the case of future Product deliveries, AgroFresh may withhold performance until Customer makes cash or credit arrangements for payment of all outstanding items satisfactory to AgroFresh, or to comply with such arrangements, AgroFresh may demand in writing that Customer provide written assurances that Customer is able to make payments under the terms of this Agreement. If Customer does not provide assurances acceptable to AgroFresh within 5 days of receiving AgroFresh’s demand, AgroFresh may terminate this Agreement without liability and without waiving any other remedies it may have against Customer.
c) Title and Risk of Loss. Title to, and all risk of loss of, any Products sold hereunder, shall pass to Customer at the point of shipment.
2. Customer Covenants.
a) The Customer shall use all Products in compliance with each respective Product’s product label, the calibration procedures, and all other literature made available to Customer by AgroFresh (collectively, the “Use Instructions”). Customer is responsible for ensuring that any Relevant Parties have been advised of and provided with a copy of the most current Use Instructions, prior to any application of the Products taking place. “Relevant Parties” means all parties that are directly or indirectly involved in the process of using or applying the Products or in handling anything that the Products have been applied to.
b) Customer shall not use any Products in any manner other than as prescribed in such Product’s Use Instructions. Customer shall only use the Products for its internal business purposes and shall not resell any Products.
c) Customer is responsible for complying with the material safety data sheet of any Products, implementing all precautions disclosed in the material safety data sheet and for conveying the information contained in the material safety data sheet to all Relevant Parties.
3. Customer Representations and Warranties. Customer represents and warrants that Customer:
a) is purchasing the Products for its own internal business use.
b) has read and agrees to these General Terms and Conditions.
c) has determined the suitability of the Products for its own purposes.
d) in purchasing the Products, has not, and is not relying on any promises or agreements, whether verbal, written or in any other medium, except for such promises or agreements contained in this Agreement.
4. Warranty; Limitation of Liability. AgroFresh warrants that the Products do not infringe on the patent rights or other intellectual property of any third party.
WITH THE EXCEPTION OF THE FOREGOING, AGROFRESH MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS ANY SUCH REPRESENTATION OR WARRANTY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL AGROFRESH OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR ITS AFFILIATES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF AGROFRESH SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF AGROFRESH AND ITS AFFILIATES TO CUSTOMER OR ANY THIRD PARTY RELATING TO THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AGROFRESH FOR THE PRODUCTS IN QUESTION. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF AGROFRESH AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR UNDER ANY OTHER THEORY OF LIABILITY.
5. Indemnity. Customer hereby agrees to indemnify, defend and hold AgroFresh harmless from any and all claims, costs, damages, fees, losses, expenses and all other liabilities (including reasonable attorney fees) of whatever kind or nature whether direct or indirect arising out of or relating to (i) Customer’s use of the Products in a manner which is not consistent with the Use Instructions, (ii) Customer’s noncompliance with any applicable laws or regulations, (iii) Customer’s breach of any covenant, representation or warranty contained in these General Terms and Conditions, and (iv) the application of the Products to any crops or floriculture, including where such crops or floriculture are the property of any third party.
6. Confidentiality. The pricing of the Products, the materials given to Customer relating to the use of the Products, the Use Instructions, any AgroFresh supplied equipment relating to the Products, and any other information which by its nature could be considered proprietary is the confidential information of AgroFresh (the “Confidential Information”). Customer shall use the Confidential Information only for the purpose of purchasing the Products from AgroFresh and for using the Products. Customer shall keep all Confidential Information confidential and shall not disclose any Confidential Information to any third party without the prior written authorization of AgroFresh. Customer shall only disclose the Confidential Information to those employees and officers of Customer (the “Key Employees”) who need to know such Confidential Information to use the Products for their intended purpose. Prior to the disclosure of Confidential Information to Key Employees, such Key Employees shall be informed of the confidential nature of such Confidential Information and the restrictions on the use of such Confidential Information as set forth in this Agreement. Customer shall be liable for any breach of this Section 6 by Customer’s Key Employees. This Agreement is deemed to be Confidential Information.
7. Force Majeure. AgroFresh may reduce or suspend its obligations under this Agreement in the event of labor trouble, strike, lockout or injunction, or upon any event beyond the reasonable control of AgroFresh (including without limitation shortage of any raw material or intermediate upon which the manufacture of the Products is dependent). AgroFresh may suspend performance under this clause without liability to Customer, but this Agreement will otherwise remain in full force and effect and the Customer shall pay all amounts due and owing for the Product orders that have been fulfilled.
8. Compliance with Law. Customer agrees to comply with all applicable laws and regulations (including, without limitation, those dealing with the transportation, safeguarding, storage, use and handling of any Products, those dealing with occupational safety and health, those dealing with public safety and health, those dealing with protecting the environment and those dealing with disposal of waste) and with the provisions of this Agreement.
a) Assignment. Customer shall not directly or indirectly assign this Agreement or any of its rights under this Agreement without the prior written consent of AgroFresh. For purpose of this clause, an assignment includes any direct or indirect change in control of Customer. Any assignment made in violation of this clause shall be null and void.
b) Entire Agreement; Amendment. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior communications, agreements and understandings in connection with such subject matter. The terms of this Agreement shall prevail over any contrary language appearing on any printed forms used in connection with the performance of any duties under this Agreement, and neither party shall be bound by the terms and conditions of any invoice, purchase order or acknowledgement. Notwithstanding the foregoing, if Customer and AgroFresh enter into a separate agreement pursuant to which AgroFresh allows Customer to lease or use certain AgroFresh equipment relating to any Products (an “Equipment Agreement”), such Equipment Agreement shall not be considered merged herein. If there is any conflict between the terms of an Equipment Agreement and this Agreement, the terms of this Agreement shall prevail. No additions, modifications or alteration of this Agreement shall be binding unless executed in writing by both parties.
c) Attorney Fees. If as a result of any breach or default in the performance of any of the provisions of this Agreement by Customer, including without limitation, Customer’s failure to pay AgroFresh any amounts when due, AgroFresh uses the services of any attorneys, collections resources, or other professionals (collectively “Professionals”) in order to secure compliance with such provisions or recover damages therefor, or to terminate this Agreement, Customer shall reimburse AgroFresh upon demand for any and all Professionals’ fees and expenses so incurred by AgroFresh. In connection with any payment of Professionals’ fees and costs pursuant to this Agreement, AgroFresh and Customer hereby agree that the amount due shall be based on actual fees and costs incurred, and not upon any applicable presumption under applicable law.
d) Governing Law; Jurisdiction. This Agreement shall be exclusively governed by and construed according to the laws of the State of Delaware. Any dispute, controversy or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination thereof, shall be brought in the state or federal courts of the State of Delaware and each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts of the State of Delaware.
e) Waiver. The fact that AgroFresh fails to do or delays in doing something it is entitled to do under this Agreement does not amount to a waiver of any obligation of, or breach of the obligation by the Customer. A waiver by AgroFresh is only effective if it is in writing and signed by AgroFresh.
f) Severability. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, the provision will be enforced to the fullest extent permissible to affect the parties’ intent, and the invalidity or unenforceability will not operate to invalidate the remaining provisions of this Agreement. This Agreement will be interpreted according to the plain meaning of its terms without any presumption that it should be construed in favor of or against either party.
g) Headings. All captions and headings are intended solely for convenience, and none will affect the meaning of any provision.