AAT Standard Terms and Conditions

GENERAL SALES TERMS AND CONDITIONS

1. GENERAL: Unless otherwise agreed in writing, these General Terms and Conditions comprise the basis on which Agrium Advanced Technologies (U.S.) Inc., including any of Agrium’s Affiliates (collectively, “Seller”) sells product and/or services related to such product (together, “Product”). These General Terms and Conditions shall apply to all purchases of Product by Buyer (identified as the “Applicant” on the Credit Application and Agreement) from Seller. By accepting delivery of the Product from Seller, Buyer agrees to be bound by and accepts these General Terms and Conditions. These terms and conditions are subject to change by Seller without prior written notice at any time, in Seller’s sole discretion.

2. WARRANTIES AND QUALITY: The Buyer represents that it is familiar with the characteristics, qualities and uses of the Product it is purchasing from the Seller and that the Buyer is not relying on the Seller’s skill or judgment to select or furnish the Product suitable for any particular purpose. The Buyer assumes all risk and liability for the use of the Product, whether alone or in combination with other materials. THE SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS OF THE PRODUCT FOR ANY PARTICULAR PURPOSE. Seller may measure, sample and test Product in its customary manner at the loading location to determine the quantity and quality of Product delivered. The results of such measurement, sampling and testing shall be treated, in the absence of fraud or manifest error, as conclusive and binding as to the quantity and quality of Product loaded.

3. FORCE MAJEURE:
(a) Neither Party shall incur any liability to the other by reason of failure or delay in fulfilling its obligations where such failure or delay is beyond the reasonable control of the Party affected, has a material impact on the affected Party (“Affected Party”) and is caused by or results from acts of God, floods, fires, explosions, strike, lockouts, cessation, slowdown or stoppage of labour, sabotage, riots, war, enemy action, laws, regulations, rulings or acts of any governmental body or authority, inability to obtain electricity or other type of necessary energy, raw materials or labor, failure of equipment, storage, loading facilities, interruption of transportation or pipelines not due to the acts or omissions of the Party claiming force majeure, failure of third Party machinery due to accident or breakage, governmental restriction or prohibition of exports or imports, governmental blockade or hostility, governmental seizure or expropriation, the inability or failure by the Seller’s production facility to produce or deliver, either wholly or partially, the Product, or the inability or failure by a supplier of Product to Seller, to produce or deliver, either wholly or partially, the Product, or the closure of international trade routes, or any other cause, whether of the same type or nature to the foregoing or not, beyond the reasonable control of the Party affected and that would have a material impact on the Affected Party to perform its obligations, whether or not the contingency is of the same type or nature as those enumerated above, (collectively called “Force Majeure”).
(b) If the Buyer or the Seller is affected (“Affected Party”) by a Force Majeure event, (“Force Majeure Event”), the Affected Party shall promptly provide notice to the other Party, (“Notice”) explaining in detail the full particulars of the Force Majeure Event and the expected duration thereof. The Affected Party may elect to suspend performance of all or any portion of its obligations to the other Party for such time as may be reasonably necessary under the circumstances and shall use its commercially reasonable efforts to remedy the Force Majeure Event. At the end of a Force Majeure Event either Party may at its option choose to terminate any orders that have not yet been delivered to the Buyer, (“Terminated Orders”). Thereafter, neither Party shall have any further obligations with respect to the Terminated Orders and any minimum quantity purchase or sale contractual commitments, if applicable, shall be reduced by the amount of the Terminated Orders. If the Seller chooses to terminate an order at the end of a Force Majeure Event, the Buyer shall issue a new order in accordance with the terms hereof. In the event a Force Majeure Event extends for more than ninety (90) days and the Force Majeure Event caused material harm to either Party, any affected agreements between the parties may be terminated by either Party upon written notice thereof.

4. DELIVERY/COLLECTION - TITLE: Deliveries may, at Seller’s option, be evenly spread over the period of the Contract. Risk of loss or damage to Product shall pass to Buyer at the time the Product crosses at Seller’s plant gate. Title shall pass simultaneously with risk. For collection of Product, Buyer shall comply with the standard policies, rules and/or procedures applicable at the relevant terminal or site. Buyer shall return all pallets, containers, vehicles and other receptacles intended to be returned without delay, clean and in good condition.

5. REMEDIES AND TERMINATION FOR DEFAULT:
(a) If the Buyer shall default in the payment of any amount for a period of ten (10) days beyond the due date of such payment, the Seller shall, in its own discretion, be entitled to (i) stop any Product in transit and defer any further deliveries or require cash in advance of any delivery until the Seller has been satisfied of the Buyer’s ability to pay or creditworthiness, as the case may be, (ii) charge a reasonable rate of interest on any amounts owing, and/or (iii) terminate all agreements between Seller and Buyer with immediate effect.
(b) Either the Seller or the Buyer may terminate an agreement for the sale/purchase of Product upon ten (10) days’ prior written notice to the other in the event of the occurrence of any of the following events of default: (i) breaches of any material term or condition hereof by the defaulting Party; or (ii) if the defaulting Party shall be or become insolvent or if the normal conduct of business (or such defaulting Party’s credit) shall become substantially impaired by such defaulting Party’s credit problems; (iii) if the defaulting Party shall call any meeting of creditors or if a receiver or trustee shall be appointed for it or its assets; or (iv) if any petition, proceeding or action under any bankruptcy proceeding shall be filed or instituted by the defaulting Party or against it and, in the event such proceeding is filed against the defaulting Party, such proceeding is not dismissed within sixty (60) days; provided that during the above ten (10) day notice period, the defaulting Party may cure its default and thereby abate the termination; and provided further, that the Party giving notice of such default may, in its sole discretion, extend the period within which the defaulting Party may cure its default. In the event of termination as set forth in this Section, the Party terminating this Agreement shall have, subject to any limitations contained in this Agreement, all rights and remedies available to it at law or in equity against the defaulting Party.

6. INDEMNIFICATION: Subject to any limitations set forth herein, each Party hereby agrees to indemnify, hold harmless and to defend the other Party (and each of the other Party’s affiliates, subsidiaries and associated bodies corporate and the respective former and current shareholders, directors, officers, employees, servants and agents of each of them) until the expiration of any applicable statute of limitation period, from and against any and all actions or causes of action, claims, demands, liabilities, losses, damages, or expenses of whatever kind or nature, including attorneys’ fees, which the other Party may suffer or incur by reason of bodily injury, including death, to any third Party, or by reason of damage to or destruction of any third Party’s property, including the loss of use thereof, or by reason of environmental damage, arising out of or in any way connected with the actions or failure to act of such Party (“Losses”) to the extent such Losses are caused or contributed to by the responsible Party due to a breach of contract, breach of duty, negligence or pursuant to any other legal theory.

7. LIMITATION OF LIABILITY:
(a) Notwithstanding any other provision contained herein, Seller’s maximum liability to the Buyer on any claim of any kind for any loss or damage arising out of or in connection with or resulting from the purchase of Product by Buyer from Seller or from the performance or breach of any agreement pertaining thereto, including but not limited to these General Terms and Conditions, shall be limited to the purchase price for the Product with respect to which such matter arises or such claim relates.
(b) Notwithstanding any other provision of this Agreement, neither Party nor its Affiliates, nor its or its Affiliates’ respective directors, officers, employees, agents, contractors or subcontractors shall be liable to the other Party, its Affiliates or its or its Affiliates’ respective directors, officers, employees, agents, contractors or subcontractors, for any indirect incidental or consequential damages that may be suffered or incurred by any such Party, including but not limited to/and/or costs or claims arising from third Party contracts, down time, lost production time, or business interruption. The limitations on, and releases from, liability expressed herein shall apply regardless of how caused and under any theory of liability, including without limitation, negligence (in whole or in part), strict liability, breach of contract, default or otherwise, of the Party whose liability is limited, and shall extend to its Affiliates and its and their directors, officers, and employees, and shall survive completion of the termination of any agreements between Buyer and Seller for any reason.
(c) For purposes of these General Terms and Conditions, the term “Affiliate” shall mean a Party's ultimate parent company and any company more than 50% owned directly or indirectly by such ultimate parent company or by the Party and for greater certainty, in the case of a Party being a partnership, a partner of the partnership shall be considered an Affiliate.

8. CONFIDENTIALITY: The Parties agree that the contents hereof, all offers, prices and other information exchanged are confidential and, except as required by law, all information shall be kept strictly confidential and shall not be disclosed to any other person or company without the prior written consent of the other Party.

9. TAXES: The Buyer shall pay all government sales and excise taxes on the Product. Any tax or governmental charge enacted or increased as of or after the date of this Agreement, which is payable by Seller or which increases Seller’s cost of Purchasing, processing, transporting, delivery or selling products to Buyer, other than taxes on income, shall be paid by Buyer to Seller, in addition to the price specified herein. All import duties, taxes, wharfages, customs duty or other charges of whatsoever nature directly or indirectly applicable or relating to the import of the products into the importing country shall be for Buyer’s account.

10. COMPLIANCE WITH LAWS: The Buyer and the Seller shall comply with the relevant provisions of any national, state, provincial or local law or ordinance and all lawful orders, rules and regulations issued thereunder, which are applicable to the operation of the Buyer’s or the Seller’s respective businesses and the delivery and purchase of Product as set forth herein.

11. GOVERNING LAW: These General Terms and Conditions shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the State of Colorado. Each of the Parties hereto irrevocably attorns to the jurisdiction of the Courts in the State of Colorado.

12. DISPUTE RESOLUTION:
(a) If any controversy, dispute, claim, question or difference (a “Dispute”) arises with respect to any purchase of Product by Buyer from Seller, the Parties shall use all reasonable commercial efforts to settle the Dispute. To this end, they shall consult and negotiate with each other in good faith and understanding of their mutual interests to reach a just and equitable solution satisfactory to all Parties.
(b) Except as is expressly provided herein, if the Parties do not reach a solution within a period of thirty (30) business days following the first notice of the Dispute by any Party to the other, then upon written notice by either Party to the other, the Dispute shall be finally settled by arbitration in accordance with the provisions of the American Arbitration Association.
(c) Except as otherwise provided herein or otherwise decided by the arbitrator, the fees and other costs associated with the arbitrator shall be shared equally by the Parties and each Party shall be responsible for its own costs.
(d) The Arbitration award shall be given in writing, shall provide reasons for the decision and shall be binding on the Parties, not subject to any appeal, and shall deal with the question of costs of arbitration and all related matters.

This Section shall not, however, stop the Parties from seeking injunctive relief from a court of competent jurisdiction.

13. PAYMENT AND CREDIT TERMS:
(a) All sales made by Seller to Buyer are due and payable upon receipt of invoice whether to Buyer or to a third party on behalf of Buyer, except for sales on accounts which have established a credit relationship with Seller (“Credit Sales”). Buyer agrees and acknowledges that delivery of products (“Products”) to a third party nominated by Buyer is deemed to be a delivery to and acceptance by Buyer. Unless other written documents signed by Seller state otherwise, all Credit Sales are due and payable in full by the due date according to the terms of sale specified on the invoice. No terms or conditions of any sale different from Seller terms of sale will become part of any agreement unless approved in writing by Seller. A finance charge of 1.5% per month (18% Annual Percentage Rate) or the legal maximum state rate may be accessed against sales which have not been paid in accordance with the payment terms under the invoice(s) or other documents. Seller reserves the right to change the finance charge rate from time to time by written notice to the Buyer 15 days prior to the effective date. Unless Buyer notifies Seller to terminate their account, Buyer shall be deemed to agree to the change. Buyer agrees that all other terms and conditions of sale shall be governed by an invoice or other document, which may be sent to Buyer after delivery of the Products. For those accounts, which incur finance charges, Seller may apply payments or credits first to the finance charges and subsequently to outstanding invoice balances at the discretion of Seller.
(b) Upon Seller approval, Seller will assign Buyer a maximum credit amount (“Credit Limit”). Buyer agrees to provide Seller with a current audited financial statement, upon Seller’s request, which accurately represents Buyer’s financial condition as of the date of such financial statement and Buyer understands that Seller will rely on the accuracy of the financial information in deciding to extend credit and set a Credit Limit. Should the account balance exceed any established Credit Limit, liability for payment additionally extends for the entire balance. Seller has the right to reduce the Credit Limit and/or withdraw Buyer’s credit under this Credit Agreement at any time without prior notice, except as otherwise provided by law. Seller reserves the right to revoke credit or demand full payment if Buyer fails to pay when due or, if in the sole discretion of Seller, there has been an adverse change in Buyer’s ability to repay credit extended by Seller, whereupon Seller shall have the right to demand payment or other assurance which it deems adequate and Seller is hereby authorized to file any lien available to vendors and/or applicators of the Products in the manner provided by applicable law notwithstanding the terms of invoices or other documents or the existence of an event of default. Default by Buyer under this or any other agreement between Buyer and Seller shall be a default under all agreements. Seller does not waive its right by accepting late payments. Buyer agrees to pay reasonable attorney fees and costs of collection.

14. PRIVACY NOTICE:
By providing personal information to Seller, Buyer is consenting, to the extent that such consent is required by law, to the collection, use and disclosure of this information by Seller to enable Seller to establish, maintain and manage a relationship with Buyer.

15. MISCELLANEOUS:
(a) These General Terms and Conditions, constitute the full and complete agreement between the Parties hereto related to the subject matter hereof and supersede all prior or contemporaneous understandings, statements, or agreements between the Parties on such subject matter. Buyer acknowledges and agrees that no employee, officer, agent or representative of the Seller has the authority to make any representations, statements or promises in addition to or in any way different than those contained herein, and that it is not agreeing to these General Terms and Conditions in reliance upon any representation, statement or promise of the Seller except as expressly stated herein. No changes, amendments or clarifications of any of these General Terms and Conditions shall be valid or effective unless in writing and signed by an authorized representative of the Seller.
(b) All purchase orders issued by the Buyer to the Seller are subject to these General Terms and Conditions as if such provisions were fully set forth in such purchase orders. No other terms and conditions, whether on the reverse side of the purchase orders, or otherwise presented, shall have any application, or any transactions occurring pursuant thereto, unless these General Terms and Conditions are specifically amended in writing by the Seller and the Buyer.
(c) The provisions of these General Terms and Conditions are severable, and if any one or more provisions contained herein may be found to be judicially unenforceable, in whole or part, the remaining provisions shall nevertheless be binding and enforceable.
(d) Each remedy contained herein shall be cumulative and in addition to any other remedy provided by law. The failure of either Party to insist on strict performance of any provision herein, or to take advantage of any right hereunder, shall not be construed as a waiver of such provision or right.
(e) These General Terms and Conditions, and all the terms and provisions hereof, shall enure to the benefit of and be binding upon the Parties hereto, and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns.
(f) The Seller shall have the right to apply any monies due from the Buyer under any contract between the Seller or any of its Affiliates and the Buyer toward the payment of any sums which the Buyer may now or hereafter owe to the Seller or the Seller’s Affiliates under any agreement. In addition, in the event that the Buyer defaults in payment due to the Seller, the Seller shall have the right to withhold any unpaid sums due by the Seller or any of its Affiliates to the Buyer under any contract with the Buyer and to apply such sums to the amount owing by the Buyer to the Seller or any of Seller’s Affiliates.

06/2008