General Terms and Conditions

The following terms and conditions (“Terms and Conditions”) shall apply to the sale of products and related services (“Products”) by AgroFresh Inc. or any of its affiliates (collectively, “AgroFresh”) to a purchaser of Products (“Customer”). Any purchase order covering the purchase of Products shall be governed by these Terms and Conditions, and the terms in any Sales Contract signed by both AgroFresh and Customer incorporating these Terms and Conditions (“Sales Contract”), if any. Any oral understandings are expressly excluded. AgroFresh shall not be deemed to have waived these Terms and Conditions if it fails to object to any provisions in any Customer purchase order, or document attached to Customer’s purchase order form, and any such provisions are hereby expressly rejected. Customer’s acceptance or use of Products constitutes acceptance of these Terms and Conditions.

  1. Price and Payment Terms.
    1. Price. At any time and without notice, before acceptance by AgroFresh of a purchase order, order form, or such other form or agreement by which Customer desires to purchase Products from AgroFresh, AgroFresh may change the price or terms of payment for any Products unless otherwise stated in a written quote issued by AgroFresh to Customer or a Sales Contract. In addition, AgroFresh may, without notice before acceptance of an order, change transportation terms or minimum requirements per shipment for any purchases. If a shipment is deferred on Customer’s instructions, all quoted prices in effect on the purchase order date (unless quoted otherwise in writing) or date of completion are subject to change without notice. No discount will be allowed unless specifically agreed to in writing by AgroFresh. Prices do not include, and Customer will be responsible for and will pay in full, all taxes and similar fees now imposed, or enacted in the future, on the sale and delivery of Products (other than taxes on AgroFresh’s net income). If Customer fails to pay any amount of taxes, Customer shall remain responsible for such taxes and shall indemnify and hold AgroFresh harmless against any claim for the amount of tax and any interest and penalties, as well as all costs incurred by AgroFresh as a result of Customer’s failure to pay such taxes.
    2. 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 any open purchase orders, and any Sales Contract with Customer, without liability and without waiving any other remedies it may have against Customer.
    3. Title and Risk of Loss. Unless otherwise specified in an AgroFresh Quote or a Sales Contract, title to, and all risk of loss of, any Products shipped to Customer by AgroFresh shall pass to Customer at the point of shipment.
    4. Payments. Payment shall be made to AgroFresh as directed by AgroFresh and shall be due and payable as set forth on the face of AgroFresh’s invoice. All invoices are due and payable in full within 30 days of the invoice date unless otherwise approved by AgroFresh. Customer will incur a late charge of 1.5% of the past due amount for each month in which such payment, and any outstanding monthly late charge, remains past due, not to exceed the maximum amount permitted by law.
  1. Customer Responsibilities.
    1. Customer shall use all Products in accordance with each respective Product’s label, procedures, instructions and all other literature made available to Customer by AgroFresh (collectively, the “Product Instructions”) and provide operations and facilities in accordance with the Product Instructions sufficient to allow for the proper use and application of the Products purchased by Customer. Customer is solely responsible for ensuring that (i) all Relevant Parties have been advised of, and provided with a copy, of the most current Product Instructions prior to any application of the Products, (ii) the application of Products by Customer’s Relevant Parties will comply with the Product Instructions and all laws and regulations, including without limitation those pertaining to the labelling of produce or cartons and (iii) complying, and causing its Relevant Parties to comply, with the material safety data sheet of each Product purchased by Customer, implementing all precautions disclosed in the applicable material safety data sheet and for conveying the information contained in the material safety data sheet to all Relevant Parties. “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. Customer will provide AgroFresh’s representatives access to Customer’s facilities that is sufficient to allow AgroFresh to provide any services purchased by Customer and confirm compliance with these Terms and Conditions. If Customer’s facilities do not comply with AgroFresh’s instructions or applicable laws or regulations, or if AgroFresh’s representatives are not granted sufficient access to Customer’s facilities, AgroFresh shall not be required to perform such services and may terminate the Customer’s Sales Contract and Customer shall hold AgroFresh harmless from any liability or damages resulting therefrom. Customer shall take all reasonable precautions to ensure the health and safety of its, and AgroFresh’s, employees, subcontractors and agents while on Customer’s premises and while performing or assisting in the performance of any services purchased by Customer. AgroFresh reserves the right to terminate Customer’s Sales Contract without any further obligation to Customer in the event that the Customer makes any misrepresentations to AgroFresh, including but not limited to misrepresentations as to the compliance with the Product Instructions.
    2. Customer shall not use any Products in any manner other than as prescribed in such Product’s Instructions. Customer shall only use the Products for its internal business purposes and shall not resell any Products.
    3. In purchasing the Products, Customer represents and warrants that Customer (i) 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 these Terms and Conditions and any Sales Contract between Customer and AgroFresh, if any, and (ii) has determined the suitability of the Products for its own purposes.
    4. Customer shall comply with all applicable laws and regulations (including, without limitation, those dealing with the transportation, safeguarding, storage, use and handling of the 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 these Terms and Conditions.
  1. Warranty; Limitation of Liability. AgroFresh warrants that each Product purchased by Customer is intended for the specific crop(s) identified in AgroFresh’s approved product label for such Product. Customer acknowledges that the performance of the Products is affected by many conditions beyond the control of AgroFresh, including but not limited to: climatic factors before harvest; highly susceptible cultivars, strains, or blocks of fruit; harvest maturity; fruit color; fruit size; nutrition; delayed cold storage; storage temperature; storage duration; natural inoculums in fruit and bins; storage relative humidity; carbon dioxide level; oxygen level; and wet fruit in storage; therefore, AgroFresh cannot and does not guarantee or warrant that any crops or produce treated by Products purchased by Customer will meet any particular standards of quality or attractiveness and Customer agrees that the warranties and remedies set forth above are reasonable.WITH THE EXCEPTION OF THE FOREGOING PARAGRAPH, 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 (OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) BE LIABLE TO CUSTOMER OR ITS AFFILIATES (OR ANY OF THEIR EMPLOYEES OR AGENTS) UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO CUSTOMER’S LOST PROFITS OR GOODWILL, 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 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.
  1. Indemnity. Customer hereby agrees to indemnify, defend and hold harmless AgroFresh and its directors, officers, members, agents, and distributors from and against any and all claims, actions, liabilities, losses, costs, and expenses including, but not limited to 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 Product Instructions, (ii) Customer’s noncompliance with any applicable laws or regulations, (iii) Customer’s breach of any covenant, representation or warranty contained in these Terms and Conditions, (iv) the application of the Products to any crops, including where such crops are the property of any third party and (v) any act of negligence or misconduct by Customer or Customer’s employees, agents or subcontractors.
  1. Confidentiality. AgroFresh may disclose written and oral confidential and proprietary information to Customer, including but not limited to, information about AgroFresh’s products, services, including AgroFresh’s application services process, information and techniques, technology, prices, materials given to Customer relating to the use of the Products, the Product Instructions, trade secrets, AgroFresh supplied equipment relating to the Products, and any other information which by its nature could be considered proprietary (the “Confidential Information”). Customer acknowledges that the nature of AgroFresh’s business is highly competitive and disclosure of any Confidential Information would result in severe damage to AgroFresh. Therefore, Customer hereby agrees it shall not directly or indirectly, copy, transmit, quote, summarize or in any way use Confidential Information, except for the purpose of purchasing the Products from AgroFresh and for using the Products and for AgroFresh’s benefit in accordance with these Terms and Conditions. Further, Customer shall keep all Confidential Information confidential and shall not directly or indirectly disclose, publish or make available under any circumstances, or by any means, 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 and other Relevant Parties 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 these Terms and Conditions. Customer shall be liable for any breach of this Section by Customer’s Key Employees. All data, inventions and/or discoveries generated by either party that relate to the Products shall be considered Confidential Information and owned by AgroFresh. Any Sales Contract, and any purchase order or order acknowledgement, including all exhibits, appendices and schedules attached thereto, are deemed to be Confidential Information. Customer shall not, directly or indirectly, reverse engineer, de-compile or disassemble the Confidential Information. All Confidential Information, and all copies thereof, will be and remain the property of AgroFresh and, upon AgroFresh’s request, Customer will promptly deliver to AgroFresh all Confidential Information, without retaining any copies. Customer agrees to hold harmless and indemnify AgroFresh and AgroFresh’s successors and assigns from and against any and all claims, actions, liabilities, damages, losses, costs, and expenses including, but not limited to attorney fees, arising out of or relating to any breach of this section by Customer, or Customer’s employees, or agents. Customer acknowledges and agrees that any violation or threatened violation of this section may cause irreparable injury to AgroFresh, entitling AgroFresh to seek injunctive relief, in addition to all other remedies allowed by law. If AgroFresh seeks injunctive relief, Customer agrees that any required bond may be for the smallest amount allowed by applicable law. This section shall survive any termination of this Agreement.
  1. Force Majeure. AgroFresh may reduce or suspend its obligations in the event of an act of God, natural disaster, fire, flood, storm, pandemic, civil disturbance, labor disturbance, strike, lockout or injunction, nonperformance by third party providers of utility or telecommunications services 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) or in order to comply with any law or government regulation that affects AgroFresh or any of its suppliers. AgroFresh may suspend performance under this clause without liability to Customer, but Customer shall pay all amounts due and owing for the Product orders that have been fulfilled.
  2. Intellectual Property. All rights to any inventions or discoveries, patentable or unpatentable, related to or associated with the Products during the term of this Agreement (“Improvements”) shall be AgroFresh’s sole property, subject to any third- party rights and/or agreements. Customer will cooperate with AgroFresh or AgroFresh’s designee, at AgroFresh’s sole expense, as may be reasonably required to obtain patent protection for any Improvements.
  3. Miscellaneous.
    1. Data Protection and Privacy. Each of Customer and AgroFresh shall comply with its obligations under all applicable local personal data protection laws in respect of the collaboration to be provided under these Terms and Conditions with respect to the processing of their personal data and the free circulation of such personal data, including but not limited to the California Consumer Privacy Act if applicable. Each of Customer and AgroFresh agrees in respect of any such personal data supplied to it by the other party that it shall process such data solely for the purpose of the performance of its obligations under these Terms and Conditions and during the period of time required without being able to transfer such data to third parties except (i) third parties providing a service to AgroFresh related to services to be provided to Customer or (ii) in cases where there is a legal obligation of such party. Further, each of Customer and AgroFresh may exercise its rights by providing notice to the other party at the addresses provided by it to the other party. In cases where the processing of personal data relates to an identified or identifiable natural person, each of Customer and AgroFresh undertakes to (i) comply strictly with all applicable laws and regulations regarding personal data, (ii) take measures ensuring the respectful use of the data collected and (iii) respect the rights of the persons concerned. This clause will survive for the duration provided for by the applicable laws and regulations.
    2. Assignment. Customer shall not directly or indirectly assign its obligations, or any of its rights, under these Terms and Conditions, including any Sales Contract incorporating these Terms and Conditions, without the prior written consent of AgroFresh. For the 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.
    3. Termination. In addition to AgroFresh’s rights in Section 1(b), AgroFresh may terminate any open purchase orders, or any Sales Contract incorporating these Terms and Conditions, upon the breach of Customer of these Terms and Conditions or the terms of any such purchase order and/or Sales Contract.
    4. Relationship of Parties. AgroFresh and Customer are operating as independent contractors, and nothing in the Sales Contract between Customer and AgroFresh or these Term and Conditions shall be construed as creating a partnership, franchise, joint venture, employer-employee or agency relationship.
    5. Entire Agreement; Amendment. These Terms and Conditions, any order acknowledgement and invoice issued by AgroFresh, and any Sales Contract incorporating these Terms and Conditions, if any, contain the entire agreement of the parties with respect to the subject matter hereof and thereof and supersedes all prior communications, agreements and understandings in connection with such subject matter. The terms of these Terms and Conditions shall prevail over any contrary language appearing on any printed forms used in connection with the performance of any duties under this Agreement, including any purchase order. 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 these Terms and Conditions shall prevail. No additions, modifications or alteration of these Terms and Conditions or any Sales Contract shall be binding unless executed in writing by both parties.
    6. Costs and Attorney Fees. If as a result of any breach or default in the performance of any of the provisions of these Terms and Conditions 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, 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 clause, the amount due shall be based on actual fees and costs incurred, and not upon any applicable presumption under applicable law.
    7. Governing Law; Jurisdiction. All purchases of Products pursuant to a purchase order, and each Sales Contract, shall be exclusively governed by and construed according to the laws of the State of Delaware without regard to its conflicts of laws provisions. Any dispute, controversy or claim arising out of or in relation to such purchases or Sales Contract 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.
    8. 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.
    9. Severability. If any provision of these Terms and Conditions or a Sales Contract 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.
    10. Headings. All captions and headings are intended solely for convenience, and none will affect the meaning of any provision.