1.1 The following definitions shall apply for these General Terms and Conditions of Sale:
- “Agreement” shall mean the sales agreement between Supplier and Customer (whether consisting of a sales document or agreement, purchase order and order acceptance, or otherwise), these General Terms and Conditions of Sale, the Crisis Provision (as defined in Section 14.1 below), the General Business Standards (as defined in Section 14.1 below) and any other appendices, and agreed amendments to said documents. Any reference in these General Terms and Conditions of Sale to the “Agreement” is intended to be a reference to all documents that constitute the Agreement, specifically including these General Terms and Conditions of Sale, the Crisis Provision, and the General Business Standards.
- “Business Day” shall mean any day which is not (i) a Saturday; (ii) a Sunday; or (iii) a day upon which commercial banks located in New York, New York are authorized or required to close.
- “Control” or “Controlling” shall mean the ability to direct the affairs of another person or entity, whether by virtue of the ownership of shares, contract or otherwise.
- “Customer” or “Buyer” or "Purchaser” shall mean the entity identified as the customer, buyer, or purchaser of the Deliverables and the counterparty of Supplier in the Agreement.
- “Deliverables” shall mean all goods, products, services, works, documents, certificates and packaging, as appropriate, to be delivered by Supplier to Customer pursuant to the Agreement.
- “Force Majeure Event” shall have the meaning set forth in Section 11.1 of these General Terms and Conditions of Sale.
- “Law(s)” shall mean any and all federal, state, local, foreign or other statutes, rules, regulations, ordinances, acts, codes, legislation, published judicial decisions, published administrative orders, common law and similar laws or legal requirements imposed by any governmental entity or authority (or any agency or instrumentality thereof).
- “Losses” shall mean all losses, liabilities, damages, claims, charges, costs, penalties, fees and expenses (including attorneys’ fees and other legal, professional and investigation fees and costs).
- “Parties” shall mean Supplier and Customer. Each of Supplier and Customer may be referred to as a “Party”.
- “Representatives” shall mean, with respect to a Party, the employees, officers, directors, managers, agents, consultants, contractors or sub-contractors of such Party.
- “Safety Defects” shall mean a lack of any safety feature which (i) a user or the general public can reasonably expect of the Deliverables or (ii) is required by applicable Law.
- “Supplier” shall mean the entity identified as the supplier or seller of the Deliverables and the counterparty of Customer in the Agreement.
- “Yara Group” shall mean Yara International ASA and/or any other entities which it directly or indirectly Controls (including Supplier).
2.1 Unless otherwise agreed by the Parties in writing, delivery terms shall be in accordance with Incoterms 2020; provided that if no delivery term has been agreed in writing by the Parties, delivery shall take place at the earlier of when the Deliverables are made available to (i) Customer or (ii) to a carrier, forwarder or any other person or entity responsible for the transport of the Deliverables (regardless of who appointed such carrier, forwarder or other person or entity).
2.2 Unless otherwise expressly specified in the delivery terms agreed to by the Parties in writing, if it has been agreed that Supplier shall arrange for transportation of the Deliverables:
2.2.1 Supplier may decide the mode and vehicle of transportation and carrier in its sole discretion, however, always in line with any agreed delivery terms. Customer shall at all times cooperate fully with the carrier, and with all applicable times of unloading, as communicated by either the carrier or Supplier.
2.2.2 If the delivery is to be made by vessel, Supplier’s applicable shipping terms shall apply and are hereby incorporated by reference. The shipping terms are available from the Supplier upon request by Customer.
2.2.3 Customer shall provide Supplier with adequate and timely delivery instructions in writing. If Customer requires a special delivery method, Customer must request this at the latest at the time when the order is placed. If it is not possible for Supplier to deliver the Deliverables to the designated place of delivery/port, Supplier shall inform Customer, and be entitled to, in Supplier’s sole discretion, make delivery to the next accessible and suitable place of delivery/port, or to a place of delivery/port as requested by Customer. Any additional costs incurred due to such changed place of delivery will be charged to Customer by Supplier (and paid by Customer), unless caused by fault on the part of Supplier.
2.3 Unless otherwise agreed by the Parties in writing, the following will be separately charged to Customer by Supplier or third parties (and paid by Customer), at Supplier’s sole discretion: (i) any costs or penalties incurred in case of cancelled or changed orders by Customer; (ii) any costs of freight, insurance, tax, etc. relating to the delivery, including any changes as may occur in freight rates or transportation charges used in determining destination prices (if destination prices are used) after date of quotation or sale; (iii) any terminal handling charges (THC), demurrage, detention fees or charges, pump fees or charges, water-level fees or charges, quay fees or charges, special equipment fees or charges and any other similar fees or charges; (iv) any import or export fees or charges or customs duties; (v) any costs or penalties incurred in case of damages to the vehicle of transportation, container, equipment (or similar); (vi) any fees or costs incurred due to delayed or prolonged unloading caused by Customer or its Representatives; and (vii) as freight paid prices only apply on the condition of unobstructed carriage, any costs related to additional waiting periods due to circumstances outside of Supplier’s control.
2.4 When it has been agreed that the Deliverables may be delivered in installments, each delivery shall be considered a separate contract, and shall be invoiced and paid for separately, unless collective invoicing has been agreed by the Parties in writing or stipulated in the applicable delivery terms. Any delay in delivery or defect in an installment shall not entitle Customer to cancel or reject any other installment, terminate the Agreement (including any order(s)) with respect to Deliverables undelivered or delay payment.
2.5 If Customer is responsible for transportation of the Deliverables, Customer must ensure the suitability, safety and cleanliness of the chosen mode and vehicle of transportation, and shall be liable in all respects for such transportation and for any defects in the Deliverables caused by such transportation. Supplier reserves the right to refuse to load Deliverables into a vehicle of transportation, which in its sole discretion, it considers not to comply with applicable transport regulations or Supplier’s health, environment, safety and quality requirements, which refusal shall not be considered a breach of the Agreement by Supplier or result in any liability or expense to Supplier. Loading of Deliverables shall not be deemed as an approval of any vehicle of transportation and shall be of no prejudice to Customer’s liability. Customer must agree in advance and comply with the details of the delivery and loading with Supplier’s relevant place of delivery, and ensure that the carrier is equipped with the required collection orders, etc. Supplier may, at its discretion, charge a handling fee in case Customer or its carrier does not comply with the applicable times of loading or any of Supplier’s policies or procedures (and Customer shall pay any such fee). Supplier shall have the right to refuse access to its facilities to any carrier, forwarder or other person or entity who, in Supplier’s sole judgment, poses a risk to persons, property, or the environment or otherwise does not comply with Supplier’s policies, procedures or requirements.
2.6 Unless otherwise expressly specified in the delivery terms agreed to by the Parties in writing, Customer is responsible for (i) the strict compliance with all applicable Laws (including payment of applicable taxes) regarding or relating to the import, transportation, storage, handling, use, purchase and sale of the Deliverables whether imported or not); (ii) obtaining and maintaining in full force and effect, at its own cost, such licenses, authorizations, approvals, permits and other consents in relation to the import, transportation, storage, distribution, sale and use of the Deliverables as are required from time to time (whether imported or not); and (iii) if required by Supplier, making copies of such licenses, authorizations, approvals, permits and consents available to Supplier prior to the relevant delivery date for inspection by Supplier.
3. TIME OF DELIVERY AND DELAYED DELIVERY
3.1 Due to logistical and product availability constraints, any dates quoted for delivery are indicative and estimates only, and the time of delivery is not of the essence. The delivery period shall only commence upon the later of (i) the Agreement coming into force or (ii) the receipt of any written delivery instructions and/or any other documentation or information from Customer. Supplier shall not be liable for failure to meet any requested delivery dates in Customer’s shipping or other instructions.
3.2 To the fullest extent permitted by applicable Law, delays in the delivery of Deliverables shall not entitle Customer to (i) refuse to take delivery; (ii) terminate the Agreement (including any order(s) or related deliveries of Deliverables); (iii) claim damages for any Losses; or (iv) delay payment (or any delivery). In the case of any delays in respect of which fixed and confirmed delivery dates have been provided by Supplier in writing, Customer must submit any claim relating to delayed deliveries to Supplier in writing without undue delay and at the latest within five (5) Business Days after the confirmed date. Such notice of claim shall assert the existence of the claim and contain a reasonably detailed statement of the facts on which the claim is based. If Customer does not submit its claim in writing to Supplier within the stated deadline, Customer shall be deemed to have accepted such delayed delivery and absolutely and unconditionally waived such claim irrespective of whether the facts giving rise to such claim shall have then been discovered.
3.3 Notwithstanding anything to the contrary in the Agreement, Supplier shall have no liability for any failure or delay in delivering an order or any Deliverables to the extent that such failure or delay is caused by (i) Customer’s failure to comply with its obligations under the Agreement including, but not limited to, Customer's failure to provide Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Deliverables; or (ii) any circumstances outside of Supplier’s control that hinders a timely delivery including circumstances described in the Crisis Provision.
4. TITLE AND RISK OF LOSS
4.1 Unless otherwise expressly specified in the delivery terms agreed to by the Parties in writing, risk of loss in the Deliverables shall pass to Customer upon each delivery, or in the case of bulk deliveries, progressively as each delivery is made, and in each case pursuant to Section 2.1.
4.2 Unless otherwise expressly agreed, in writing, by the Parties, title to Deliverables shall pass to Customer at the same time that risk of loss in the Deliverables passes to Customer. Title will not pass for any prepaid Deliverables until delivery has taken place.
4.3 As collateral security for the payment of the purchase price of Deliverables sold on credit (including jointly owned goods) plus interest and costs, Customer hereby grants to Supplier a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Deliverables, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code. Supplier shall have the right to file a UCC Financing Statement on all Deliverables sold on credit (including jointly owned goods) and all proceeds of the sale of the Deliverables or jointly owned goods, as security for the purchase price plus interest and costs. At the request of Supplier, Customer shall assist in taking any measures necessary to protect Supplier’s security interest as set out in this Section 4.3, including filing a Uniform Commercial Code (UCC) Financing Statement over money (both proceeds of the sale of goods and insurance proceeds relating to the goods) or goods and Customer agrees to execute appropriate financing statements evidencing Supplier’s security interests, as may be reasonably requested.
5. INSPECTIONS AND NOTICES OF CLAIM
5.1 As soon as Customer has received the Deliverables and before starting to use them, Customer is obliged to, at its own expense, carefully examine whether the Deliverables, as received, are in compliance with the Agreement and whether the Deliverables suffer from any Safety Defects or other non-conformance with the agreed specifications.
5.2 If Customer is responsible for transportation of the Deliverables, in case of any transport damage or missing quantities, Customer shall submit its notice of claim in writing (with the necessary documentation and in accordance with applicable Law) directly to the carrier immediately after receiving the Deliverables, and at the same time provide a copy of such notice to Supplier.
5.3 No claim with respect to any alleged defects in the Deliverables (in whole or in part) may be asserted by Customer unless Customer has provided Supplier with written notice of such claim which is submitted to Supplier: (i) in the case of a defect that is apparent on normal visual inspection, within five (5) Business Days of the Deliverables being made available to Customer and (ii) in any event within thirty (30) days from delivery of the Deliverables. No claim may be asserted by Customer with respect to any Deliverables unless Customer shall have given proper written notice to Supplier and Supplier shall have received such notice in such applicable time period. If Customer fails to give such proper notice of claim within the applicable deadline, Customer shall be deemed to have accepted such Deliverables and agreed to an absolute and unconditional waiver of any claims. For the avoidance of doubt, failure of Supplier to receive proper written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Customer of such claim irrespective of whether the facts giving rise to such claim shall have then been discovered or whether processing, further manufacture, resale or other use of the Deliverables shall have then taken place.
5.4 To be considered effective notice, each notice of claim must include the following information: (i) any invoice and order numbers; (ii) any traceability and batch codes; (iii) product descriptions; (iv) a detailed description of the nature and extent of the defect; (v) documentation that the defect and/or shortfall was present at the time of delivery; (vi) details of any inspection (visual or otherwise) performed; (vii) the date the Deliverables were made available to Customer; (viii) how and when the defect became apparent; (ix) mode, vehicle and details of transportation; (x) presumed circumstances leading to the defect; and (xi) place and conditions of storage of the Deliverables from the time of delivery.
5.5 Supplier may demand to examine the Deliverables at Customer’s facilities or to be sent a sample of the Deliverables for examination before agreeing to any claim. Deliverables must only be returned pursuant to an agreement with Supplier, and any costs relating to returning Deliverables without prior written agreement are to be paid by Customer. Prior to the return of any Deliverables to Supplier, Customer must identify the Deliverables or portion thereof and obtain written authorization and shipping instructions from Supplier. Supplier has the right, in its sole discretion, to permit or reject any such return. It is Customer’s responsibility to ensure that any returned Deliverables have adequate protective packaging and that Customer's order details are clearly identifiable on the outside packaging.
6. QUALITY WARRANTY AND QUANTITY
6.1 The Deliverables supplied to Customer by Supplier under the Agreement shall at the time of delivery conform to the agreed specifications for such Deliverables (as set forth in the Agreement or as otherwise agreed by Parties in writing). Due to the perishable nature of the Deliverables and their dependence on appropriate storage and handling conditions, Supplier does not provide any warranty regarding quality, usability or characteristics after delivery. If any regulatory tolerance levels are applicable, these will apply to the Deliverables and the specifications for such Deliverables.
6.2 Supplier reserves the right to make amendments to the specifications of the Deliverables at any time. If Customer has prepared the specifications, Customer shall be responsible for the specifications’ accuracy and completeness.
6.3 Sampling and analysis of Deliverables will take place as determined by Supplier. Supplier’s certificate of analysis for the Deliverables shall govern and be deemed as proof of quality (and proof of such Deliverables’ conformance to the specifications for such Deliverables).
6.4 Weights and quantity of Deliverables shall be determined by Supplier’s or shipper’s weighing systems, and such determined weights and quantities (as stated on a bill of lading, waybill, or otherwise) shall be binding and the basis for invoicing.
6.5 Any shortfall or excess of Deliverables shall not entitle Customer to reject a delivery, but a pro rata adjustment shall be made to the invoice by Supplier based on the actual quantities delivered.
6.6 Customer represents that it is familiar with the characteristics, qualities, and uses of the Deliverables and that Customer is not relying on Supplier's skill, judgement or advice to select or furnish Deliverables suitable for any particular purpose. Customer assumes all risk of use of the Deliverables, either alone or in combination with other materials. The warranty of Supplier to Customer in Section 6.1 is not transferable to any other person or entity.
6.7 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, SUPPLIER MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE DELIVERABLES (WHETHER USED ALONE OR IN COMBINATION WITH ANY OTHER SUBSTANCE OR MATERIAL), THE AGREEMENT OR ANY OTHER MATTER.
6.8 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY OF SUPPLIER IN SECTION 6.1 SETS OUT THE EXCLUSIVE WARRANTY OF SUPPLIER AND IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES OR GUARANTIES OF SUPPLIER, WHETHER EXPRESS OR IMPLIED BY STATUTE, LAW OR OTHERWISE, INCLUDING, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND/OR ANY OTHER REPRESENTATION, WARRANTY OR GUARANTY AS TO THE QUANTITY, QUALITY, KIND, CHARACTER OR CONDITION OF ANY DELIVERABLES OR THE ADEQUACY OF ANY WARNINGS CONCERNING THE POSSESSION, HANDLING, STORAGE, TRANSPORTATION, USE OR OTHER DISPOSITION OF MATERIALS, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR MATERIALS. ANY OTHER REPRESENTATION, WARRANTY OR GUARANTY OF SUPPLIER WHICH MIGHT OTHERWISE BE IMPLIED INTO OR INCORPORATED INTO THE AGREEMENT IS HEREBY EXPRESSLY EXCLUDED.
6.9 ANYTHING HERIEN TO THE CONTRARY NOTWITHSTANDING, CUSTOMERS’S SOLE REMEDY AND SUPPLIER'S SOLE OBLIGATION AND LIABILITY WITH RESPECT TO THE DELIVERY BY SUPPLIER TO CUSTOMER OF DELIVERABLES WHICH FAIL TO MEET THE AGREED SPECIFICATIONS FOR SUCH DELIVERABLES (AS SET FORTH IN THE AGREEMENT OR AS OTHERWISE AGREED BY THE PARTIES IN WRITING) SHALL BE LIMITED SOLELY TO REPLACEMENT OF SUCH DEFECTIVE DELIVERABLES AT THE ORIGINAL POINT OF DELIVERY OR THE REFUNDING OF THE PURCHASE PRICE OF ANY SUCH DEFECTIVE DELIVERABLE ACTUALLY PAID BY CUSTOMER TO SUPPLIER, AT SUPPLIER'S EXCLUSIVE OPTION.
7. PRICES, PAYMENT, COSTS AND CREDIT
7.1 If no price has been agreed in writing by the Parties before delivery, Supplier’s price list applicable at the time of delivery shall be deemed as the agreed price. Supplier reserves the right to amend its price lists from time to time. Payment by credit card may incur an additional fixed charge based on the payment value which shall be the responsibility of Customer.
7.2 Supplier may, by giving notice to Customer at any time during the term of the Agreement, increase the price of the Deliverables to reflect any increase in the cost of the Deliverables that is due to increases in labor, material, or production costs. If Supplier increases the price pursuant to this Section 7.2, Customer is entitled to cancel the relevant orders within five (5) Business Days of receiving notification of such price increase, failing which, Customer shall be deemed to have accepted such new price and agreed to an absolute and unconditional waiver of any claims.
7.3 Supplier may invoice Customer for the Deliverables on or at any time after the completion of loading of the Deliverables. Unless otherwise agreed by the Parties in writing or stated on the invoice supplied by Supplier, Customer shall pay the invoice in full, in United States Dollars and in cleared funds immediately upon receipt of such invoice, which payment shall be made to the bank account indicated by Supplier. All outstanding payments payable under the Agreement shall become due immediately on its termination or expiration. No obvious clerical error in the payment documents shall allow Customer to reject the documents or delay payment. Customer shall notify Supplier within five (5) Business Days of the receipt of any invoice in case of complaints or disputes concerning such invoice, failing which, Customer shall be deemed to have accepted such invoice and agreed to an absolute and unconditional waiver of any claims. Without limiting the foregoing, (i) if Customer disputes all or any portion of an invoice, Customer must deliver written notice to Supplier of the disputed amount and the basis for the dispute within five (5) Business Days of receiving the invoice; (ii) if Customer only disputes a portion of the invoice, Customer must pay the undisputed portion of such invoice to Supplier; and (iii) upon resolution of any dispute, Customer must pay the invoice or the remainder of the invoice, plus any accrued interest on the late payment.
7.4 All prices quoted or otherwise provided by Supplier for the Deliverables are exclusive of any applicable sales or use taxes, excise duties and/or any other tax or duty which would be applicable to the sale of the Deliverables. Customer is solely responsible for the payment of any such taxes and duties owing as a result of the sale of the Deliverables. Sales tax will be added to the price of the Deliverables unless a valid exemption from any such sales tax is provided to Supplier before any sales occurs. Customer shall be solely responsible for the determination of any exemptions from any tax or duty owing by Customer and Customer shall indemnify and hold harmless Supplier against all liabilities and losses for any and all taxes or duties, including any interest, penalties and costs incurred by Supplier regarding such taxes or duties.
7.5 If Customer fails to make any payment due to Supplier under the Agreement by the due date, Customer shall pay all costs of collection and interest on the overdue amount at the lower of (i) two percent (2%) per month or (ii) the maximum rate pursuant to applicable Law (if any). Such interest shall accrue and compound on a daily basis from the due date until the date of actual payment of the overdue amount and the interest, whether before or after judgment. For the avoidance of doubt, Supplier may add any such accrued amounts on any invoice(s) after the due date and/or offset against any refunds, discounts or rebates due to Customer. The costs of collection to be paid by Customer include reasonable attorneys’ fees and expenses incurred by Supplier if the account is placed with counsel for collection after default in payment by Customer (such attorneys’ fees (including travel time) and expenses to include fees and costs incurred in all matters of collection and enforcement, before, during and after trial proceedings and appeals, as well as appearances in and connected with any bankruptcy proceedings, creditors' reorganization and arrangement proceedings or probate proceedings).
7.6 Supplier is authorized to apply all payments received first to reasonable costs and expenses required to be paid under the terms of the Agreement, then to accrued interest on overdue amounts, and then to the principal amounts due under any invoices.
7.7 If (i) Customer fails to make any payment when due under the Agreement or under any other agreement in force between the Parties (or between Customer and any member of the Yara Group), (ii) Customer defaults under (or breaches or violates) any other term of the Agreement and fails to cure such default, breach or violation within seven (7) days from the date of a notice of default, breach or violation; (iii) Customer defaults under (or breaches or violates) any other agreement between the Parties (or between Customer and any member of the Yara Group); or (iv) an adverse change occurs in the financial or other condition of Customer and, in the opinion of Supplier, such circumstances make it unlikely that Customer will be able to perform all or any of its obligations under the Agreement and/or give rise to doubts about the solvency or creditworthiness of Customer, then, in each case and notwithstanding anything to the contrary contained in the Agreement or in any other agreement, Supplier may, at its sole discretion and without prejudice to any other rights, (a) stop any Deliverables in transit and defer any further deliveries under the Agreement, (b) require security and/or cash in advance of any delivery, until Supplier has been satisfied of Customer’s ability to pay or creditworthiness, as the case may be, (c) recover any and all Deliverables in which title has not yet passed to Customer or in which Supplier has retained a purchase money security interest pursuant to Section 4, and/or (d) terminate parts or all of the Agreement (including any order(s) and related deliveries of Deliverables) with immediate effect.
7.8 Customer shall pay all amounts due under the Agreement in full without any deduction or withholding, and Customer shall not be entitled to assert any credit, set-off, abatement or counterclaim against Supplier in order to justify withholding payment of any such amount in whole or in part. Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by Customer against any amount payable by Supplier to Customer.
7.9 Any and all expenses, costs and charges incurred by Customer in the performance of its obligations under the Agreement shall be paid by Customer. All taxes (including withholding taxes), charges, levies, assessments and other fees of any kind imposed on the loading, unloading, transportation, export, import, storage, handling, use, sale, purchase, transfer or disposal of the Deliverables (or related services) shall be the responsibility of, and for the account of, Customer and Customer shall indemnify and hold harmless Supplier against all liabilities and Losses for any and all such taxes, charges, levies, assessments and other fees, including any interest, penalties and costs.
7.10 Nothing herein shall obligate Supplier to grant credit to Customer. Supplier may at any time refuse to grant credit to Customer or condition the granting of credit on such terms as Supplier in its sole discretion may require.
8. BREACH OF CONTRACT AND INDEMNIFICATION
8.1 Should Customer fail to take or accept delivery of the Deliverables at the agreed place of delivery or meet any other related obligations, and this is not agreed by Supplier in writing in accordance with Section 5, Customer shall nonetheless pay for (i) the Deliverables and (ii) any costs incurred by Supplier (including demurrage) due to the breach. In such cases, Supplier may, but shall not be obligated, to hold or store the Deliverables for Customer, at Customer’s sole risk and expense, for such additional period as is deemed reasonable in Supplier’s sole discretion. Should Customer fail to take delivery of the Deliverables as required by the Agreement (or, if Supplier elects to hold or store the Deliverables for Customer for any additional period as set forth above, after an additional deadline which has been communicated to Customer), Supplier may (i) terminate parts or all of the Agreement (including any order(s) and related deliveries of Deliverables); (ii) resell the Deliverables at the price readily obtainable or otherwise dispose of part or all of the Deliverables; and (iii) claim compensation for any Losses that Supplier has suffered as a result of Customer’s breach of contract.
8.2 Supplier’s performance under the Agreement is contingent upon Customer timely fulfilling all of its obligations under the Agreement.
8.3 Customer shall comply with (and Customer shall load, unload, transport, export, import, store, handle, use, sell, purchase, transfer and dispose of the Deliverables in compliance with) all applicable Laws. The Deliverables shall not be used (i) in (or in connection with) the production or processing of illegal crops or substances, including in the production or processing of illegal drugs, illegal explosives or other illegal materials or products or (ii) for (or in connection with) any other illegal purposes. In addition, unless expressly agreed to in writing by Supplier, the Deliverables shall not be used (a) in (or in connection with) the production or processing of livestock feed, food products for human consumption (other than as fertilizers) or pharmaceutical products; (b) as (or in or in connection with) feed for livestock, food products for direct human consumption or pharmaceutical products; and/or (c) in (or in connection with) any nuclear facility or activity. Customer shall implement adequate monitoring systems within its supply chains to ensure that misuse of the Deliverables is prevented or can be detected and remediated immediately. The Deliverables shall not, unless otherwise specifically agreed in writing by Supplier, be used, transported, stored or resold, in whole or in part, in or to any country other than the United States of America. If the Deliverables are to be resold, Customer shall use reasonable efforts to ensure that its customers do not use the Deliverables in any way as prohibited by this Section.
8.4 Customer shall indemnify (and keep indemnified), defend and hold harmless Supplier and all members of the Yara Group from and against any and all Losses incurred by Supplier or any member of the Yara Group arising out of or relating to, directly or indirectly (i) a breach or violation of, or failure to comply with, any of Customer’s obligations under the Agreement; (ii) a defect in the Deliverables due to an act or omission on the part of Customer or any of its Representatives; (iii) Supplier following any specifications or instructions supplied by Customer or any of its Representatives; (iv) any damage to property, whether personal or real, movable or immovable, tangible or intangible, or injury or death of persons (including any of Customer’s Representatives) arising out of or relating to Customer’s loading, unloading, transportation, export, import, storage, handling, use, sale, purchase, transfer or disposal of the Deliverables; (v) any non-compliance with, or breach or violation of, any Law by Customer or any of its Representatives; (vi) any negligent (or more culpable) act or omission or willful misconduct of or by the Customer or any its Representatives; and/or (vii) any other occurrence arising out of Customer's business.
8.5 Where Customer acts as an intermediary for the sale of Deliverables from Supplier, it shall procure and maintain at its own expense insurance coverage (including liability insurance) of the types and in the amounts that are reasonable and customary for Customer’s industry, it’s operations and the nature of the Deliverables. The coverage and duration of the insurance policies shall cover all potential liabilities associated with the Agreement and Deliverables and shall waive rights of subrogation against Supplier and each member of the Yara Group. Such insurance coverage shall be with insurance companies authorized to do business in the jurisdiction in which the Deliverables are delivered. Upon Supplier’s request, Customer shall provide relevant insurance certificates as well as the relevant conditions of any such insurance policies.
9. LIMITATIONS OF LIABILITY; PRODUCT LIABILITY AND RECALL
9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER SHALL NOT UNDER ANY CIRCUMSTANCES WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER STATUTE OR ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, BE LIABLE TO CUSTOMER (OR ANY OTHER PERSON OR ENTITY) FOR ANY TRADING LOSSES, LOSS OF REVENUE, LOSS OF INCOME, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOSS OF PRODUCTION, BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA OR INFORMATION, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE LOSS OR DAMAGE OF ANY KIND IN EACH CASE HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF SUPPLIER TO CUSTOMER (OR ANY OTHER PERSON OR ENTITY) UNDER OR IN CONNECTION WITH THE AGREEMENT AND/OR THE DELIVERABLES (INCLUDING FOR ANY DEFECT AND/OR DELAY AND/OR ANY BREACH OF AGREEMENT) WHETHER ARISING UNDER STATUTE OR COMMON LAW, OR ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) BREACH OF STATUTORY DUTY, INDEMNITY OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED THE TOTAL PRICE PAID OR PAYABLE BY CUSTOMER TO SUPPLIER FOR THE RELEVANT DELIVERABLES UNDER THE AGREEMENT.
9.3 Subject to the terms of the Agreement, Supplier may, in its sole discretion, remedy any defects which arise as a result of non-conformance with the Agreement by, in its sole discretion, (i) delivering additional Deliverables to remedy a shortfall of quantity at the original place of delivery; (ii) offering a reduction in the purchase price in respect of the rejected Deliverables; (iii) modifying the rejected Deliverables so that they conform to the specifications for such Deliverables; (iv) replacing the rejected Deliverables at the original place of delivery; or (v) repaying the purchase price actually paid by Customer to Supplier in respect of the rejected Deliverables. Once Supplier has performed such redelivery and/or repayment (as determined by Supplier in its sole discretion), it shall have no further liability or obligation to the Customer (of any other person or entity) in respect of any rejected or non-conforming Deliverables and Customer shall have no other remedy or recourse.
9.4 Supplier shall not be obliged to deliver further Deliverables in the event the defect in the Deliverables is resulting from failure by Customer or its Representatives to comply with safety data sheets, other information provided by Supplier or applicable Laws or industry standards relating to the use, handling or storage of the Deliverables.
9.5 Supplier shall not be liable for Deliverables' failure to comply with the Agreement to the extent caused by any of the following events: (i) failure to follow Supplier's oral or written instructions as to the storage, handling and use of the Deliverables or (if there are no such instructions) good trade practice regarding the same; (ii) Supplier following any inaccurate or incomplete specifications or instructions supplied by Customer; (iii) Customer altering or repairing such Deliverables without the prior written consent of Supplier; (iv) normal wear and tear or willful or negligent damage; or (v) the Deliverables differing from the specifications as a result of changes made to ensure that such Deliverables comply with applicable legal, statutory or regulatory requirements. Further, Supplier shall not be liable for Deliverables' failure to comply with the Agreement in any of the following events: (a) Customer has not paid the total amount for the Deliverables to Supplier by the agreed due date; or (b) Customer makes any further use (consume, re-pack, blend or sell) of such Deliverables before or after giving notice in accordance with Section 5 (as this makes quality and quantity verification difficult).
9.6 Where Customer acts as an intermediary for the sale of Deliverables from Supplier, Customer shall ensure that that the limitations of liability, exclusions and other applicable provisions as set out in the Agreement shall be passed on to its customers, who shall in turn be obliged to do likewise, thus ensuring that the limitations of liability are maintained until the Deliverables reach the end-users.
9.7 To the extent that Supplier is made liable to a third party in respect of the Deliverables and/or the Agreement, Customer shall indemnify (and keep indemnified) and hold harmless Supplier to the same extent as Supplier’s liability is limited according to the Agreement, so that Supplier's maximum exposure in respect of such third party claim is limited to the amounts set out in Section 9.2.
9.8 Should a third party bring a claim, or threaten to bring a claim, against Customer for compensation for personal injury, death or damage to real or personal property alleged to have been caused by and/or related to the use and/or possession of the Deliverables or should Customer in any other way become aware of a Safety Defect or other dangerous defects in, or issues with, the Deliverables, Customer must (i) to the extent possible, prevent and limit any such danger and damage; and (ii) immediately inform Supplier so that necessary measures can be implemented. Customer shall use its best endeavors to mitigate any Losses being incurred from product liability.
9.9 If Supplier determines that any Deliverables sold to Customer may be defective or unsuitable for sale, at Supplier's request, Customer shall (i) cooperate fully at its own cost with any investigation; and (ii) withdraw all such Deliverables from sale and, at Supplier's sole option, either return such Deliverables to Supplier, allow Supplier to modify such Deliverables or destroy such Deliverables and provide Supplier with written certification of such destruction. If Customer returns or destroys all withdrawn Deliverables at Supplier’s request and provides Supplier with written certification of such destruction consistent with Supplier's instructions and acceptable to Supplier, Supplier will at its sole option (a) replace such returned or destroyed Deliverables; or (b) reimburse the purchase price actually paid by Customer to Supplier for such returned or destroyed Deliverables. In addition to the above, the Customer shall cooperate fully with Supplier in (i) identifying and contacting any of Customer’s customers or other end-users that may have received any portion of the defective or unsuitable Deliverables; (ii) acting to eliminate or limit any liability associated with such defective or unsuitable Deliverables and (iii) obtaining the return to Supplier or any such Deliverables (or arranging for their repair or destruction as instructed by Supplier).
10.1 In addition to the termination rights set forth elsewhere in the Agreement, either Party may without liability give notice in writing to the other Party to terminate the Agreement (including any order(s) and related deliveries of Deliverables) immediately if: (i) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up or bankruptcy of that other Party; (ii) the other Party is subject to any insolvency or bankruptcy proceedings, or has a receiver or administrator appointed over any part of its assets, or if it suffers any analogous process under any foreign law; (iii) the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or (iv) the other Party takes or suffers any similar or analogous procedure, action or event in any jurisdiction.
10.2 Termination of the Agreement shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at termination. Upon termination of the Agreement Customer shall immediately pay Supplier for all Deliverables that have been delivered and all other amounts due or owed under the Agreement. The obligations of Customer under the Agreement which by their nature are intended to survive the termination, cancellation, completion or expiration of the Agreement shall continue as valid and enforceable obligations of Customer, notwithstanding any such termination, cancellation, completion or expiration. Without limiting the foregoing and for the avoidance of doubt, Sections 8 and 9 shall survive any expiration or termination of the Agreement.
10.3 On termination of the Agreement Customer shall (i) promptly return to Supplier all equipment, materials, documentation and property belonging to Supplier that Supplier had supplied in connection with the supply and purchase of the Deliverables under the Agreement; and (ii) on request, certify in writing to Supplier that it has complied with the requirements above.
10.4 If any parts of the Deliverables or Agreement remain unfulfilled at the date of termination of the Agreement, Supplier may as the terminating Party, at its option, extend the time of delivery, cancel the delivery, or sell the Deliverables in the open market, charging any Losses to Customer.
11. FORCE MAJEURE
11.1 Supplier shall not be in breach or violation of the Agreement, nor liable for any loss or damage suffered or incurred by Customer (or any other person or entity) arising from any failure or delay in performance of its obligations under the Agreement to the extent arising from or attributable to an impediment, event, condition or circumstance beyond Supplier’s reasonable control, including: (i) Acts of God, including flood, earthquake, windstorm, plague, epidemic, pandemic, cyclone, typhoon, hurricane, tornado, blizzard, volcanic activity, landslide, tidal wave, tsunami, damage or destruction by lightning, drought or other natural disasters; (ii) explosion, fire, or destruction of machines, equipment, factories or of any kind of installation or building; (iii) break-down, mechanical difficulties or failure of equipment, machinery, pipelines, storage facilities, loading facilities, transport, (including vessel, barge, rail or truck transport), telecommunication or any utility service, including electric power, gas or water; (iv) inability to obtain energy, power, utilities (including electric, gas or water), raw materials, labor, transportation or facilities; (v) interruption of transportation or pipelines or closure or disturbance of international trade routes; (vi) war (whether declared or not), armed conflict or the serious threat of same (including hostile attack, blockade, military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilization, imposition of sanctions, breaking off of diplomatic relations or similar actions; (vii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience; (viii) acts of terrorism, sabotage or piracy; (ix) nuclear, chemical or biological contamination or sonic boom; (x) compliance with any Law or government order, rule, regulation or direction, or any action taken by a government or public authority (whether lawful or unlawful), curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, nationalization, imposing an embargo or sanctions, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; (xi) loss at sea or extreme adverse weather conditions (such as iced seaways); and (xii) general labor disturbance such as but not limited to boycott, strike or lock-out, go-slow, occupation of factories and premises (collectively, a “Force Majeure Event”). Customer acknowledges that Supplier’s suppliers may be affiliated with Supplier (including members of the Yara Group). If, due to a Force Majeure Event or any other cause, Supplier (or any member of the Yara Group) is unable to obtain or to produce sufficient Deliverables to meet its internal needs and the requirements of its customers, Supplier (or any member of the Yara Group) may in its sole discretion allocate its Deliverables in a manner it deems to be fair and reasonable considering its internal needs, needs of its affiliates (including the Yara Group), and its regular customers, and such allocation shall be binding on all Parties. If any such event continues for a period of more than three (3) months, Supplier may thereafter terminate the Agreement (including any order(s) and related deliveries of Deliverables) by giving ten (10) Business Days written notice to Customer. Such termination shall be without prejudice to the rights of the Parties in respect of any breach of the Agreement occurring prior to such termination.
12. LOSS OF SUPPLY
12.1 If Supplier (or any member of the Yara Group) loses all or part of its sources of supply, Supplier may elect, in its sole discretion, to reduce the quantity of Deliverables delivered or to postpone the delivery of Deliverables without being in breach or violation of the Agreement or otherwise incurring liability to Customer. In case of shortage of supply, Supplier (or any member of the Yara Group) shall be entitled to distribute available quantities in its sole discretion, taking into account its own requirements and other internal and external supply obligations (including obligations of other members of the Yara Group).
13. APPLICABLE LAW AND DISPUTE SETTLEMENT
13.1 The Agreement and any dispute or claim arising out of or directly or indirectly in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Florida, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. The applicability of the UN Convention on Contracts for the International Sale of Goods 1980 (CISG) is specifically excluded.
13.2 Should a dispute, controversy or claim arise between the Parties in connection with the Agreement, the Parties shall notify each other of the reasons for the dispute in writing and shall meet promptly, at a location chosen by Supplier, in good faith to attempt an amicable settlement for such dispute.
13.3 If an amicable settlement is not reached within twenty (20) Business Days after such notification, the Parties irrevocably agree that such dispute, controversy or claim arising out of or in connection with the Agreement shall be resolved and settled exclusively by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The place of arbitration shall be Tampa, Florida.
14. GENERAL; AGREEMENT AND APPLICABILITY
14.1 These General Terms and Conditions of Sale, the Crisis Provisions (available at https://www.yara.us/legal/ukraine-russia-crisis-provisions/) (the “Crisis Provision”), and the General Business Standards (Sales) (available at https://www.yara.us/legal/general-business-standards-sales/) (“General Business Standards”) shall apply to (and be incorporated into) the Agreement to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, unless acceptance is explicitly confirmed in writing by Supplier (with such written acceptance by Supplier expressly stating that Supplier is agreeing to such terms). Supplier may issue an order acknowledgement, which is merely for information purposes, and does not constitute an order confirmation or acceptance. The Agreement between Supplier and Customer shall be formed and come into force only upon both (i) receipt by Supplier of a purchase order or purchase request from Customer to purchase Deliverables; and (ii) the subsequent issuance by Supplier to Customer of a written order confirmation document or sales agreement. Once confirmed by Supplier, no orders may be cancelled or amended by Customer, except with the prior approval in writing from Supplier. Notwithstanding any provision in any Customer's purchase order, purchase request, confirmation of order or any other document, communication, acknowledgement or request provided by Customer (collectively, “Customer Request”) to the contrary, no terms of any Customer Request, including Customer's terms of procurement or terms of purchase, shall be binding on Supplier unless explicitly accepted by Supplier in writing (with such written acceptance by Supplier expressly stating that Supplier is agreeing to such Customer Request). By placing an order with Supplier, Customer is agreeing to be unconditionally bound by these General Terms and Conditions of Sale, the Crisis Provision, and the General Business Standards.
14.2 No amendment or modification of the Agreement shall be valid unless expressly agreed to in writing by an authorized Representative of each of the Parties.
14.3 In the event of any conflict between the provisions of the Agreement, the various contract documents shall be given priority in the following order: (i) the sales agreement/order confirmation issued by Supplier; (ii) these General Terms and Conditions of Sale; (iii) the Crisis Provision; (iv) the General Business Standards and (v) all other appendices to the Agreement.
14.4 Any advertising, quotations or bids provided by Supplier do not constitute an offer to enter into an agreement and are not capable of acceptance, but are rather invitations to Customer to submit a binding offer to purchase Deliverables in the form of a Customer Request (which shall not be binding on Supplier). Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Deliverables described in them, and they shall not form part of the Agreement or have any contractual force.
14.5 The Deliverables are being delivered strictly on the condition that Customer has satisfied itself of their suitability for Customer’s particular purposes. Any advice provided by Supplier or its Representatives is given to the best of their knowledge, and shall not relieve Customer from undertaking its own investigations and tests, or subject Supplier and/or its Representatives to any liability.
14.6 The Agreement constitutes the entire agreement between the Parties and supersedes and replaces all previous agreements, understandings, discussions, correspondence and negotiations between them, whether oral or in writing, relating to the Deliverables. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Supplier or any of its Representatives which is not set out in the Agreement.
14.7 Customer shall not assign, transfer, delegate, sub-license or sub-contract any of its rights, benefits or obligations under the Agreement without the prior written consent of Supplier. Supplier may assign, transfer, delegate, sub-license or sub-contract its rights, benefits and/or obligations under the Agreement to another member of the Yara Group or any other person or entity. Any purported assignment, transfer, delegation, sub-license or sub-contract in violation of this Section 14.7 shall be null and void. For purposes of the foregoing, and without limiting its generality (i) any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) and (ii) any change of control of Customer shall be deemed to be an assignment and transfer of Customer’s rights, benefits or obligations under the Agreement for which Supplier’s prior written consent is required. Subject to the foregoing, the Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
14.8 If any term or provision of the Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Agreement such that, as amended, the Agreement is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties' original commercial intention.
14.9 No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by applicable Law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.10 Nothing contained in or done pursuant to the Agreement shall be deemed or construed by the Parties, or by any third party, to create the relationship of principal and agent, partnership, joint venture or any association whatsoever between Supplier and Customer.
14.11 Notices, claims, etc. which the Agreement requires to be presented in writing, shall be sent by letter, fax or e-mail to the other Party’s authorized Representatives in accordance with any applicable conditions set forth in the Agreement.
14.12 The Agreement is for the sole benefit of Customer and Supplier (and the other members of the Yara Group) and their respective successors and permitted assigns and nothing in the Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement; provided that, for the avoidance of doubt, each member of the Yara Group is an intended third party beneficiary of the Agreement.
14.13 The Agreement and the transactions thereunder constitute “forward contracts” within the meaning of Title 11 of the United States Code, Sections 362(b)(6), 546(e), 556, and 562.
14.14 Any headings contained in the Agreement are for reference only and shall not affect the interpretation of the Agreement.
14.15 For purposes of the Agreement, (i) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation;” and (ii) the word “or” is not exclusive. The Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.