Pulp Products/Liquid Packaging Board Terms of Sale
YOU UNDERSTAND THAT THE PROVISIONS IN THIS TERMS OF SALE (INCLUDING WARRANTY DISCLAIMERS AND LIMITATIONS ON LIABILITY) REPRESENT AN AGREED UPON PRICE-RISK ALLOCATION. NIPPON DYNAWAVE PACKAGING CO. WOULD NOT BE ABLE TO OFFER YOU ITS CURRENT PRICING STRUCTURE “BUT FOR” THIS ALLOCATION.
1. WARRANTY AND LIMITATIONS
Seller warrants that: (i) upon arrival at the delivery point specified in the applicable Incoterm, the Pulp/LPB will conform in all material respects with the specifications and tolerances published by Seller or attached hereto and will be free of all liens and encumbrances of title; and (ii) Seller has complied in all material respects with those laws applicable to Seller’s manufacture and sale of the Pulp/LPB.
Buyer warrants to Seller that: (i) Buyer complies in all material respects with laws applicable to the purchase, further manufacture, storage, shipment, import, export and use of the Pulp/LPB; and (ii) if Buyer gives written notice to Seller of any failure of Pulp/LPB to conform with the specifications within 30 days after delivery to the delivery point specified in the applicable Incoterm, and if such failure is established to Seller’s satisfaction, then at Seller’s option it will either make an allowance for such Pulp/LPB, refund to Buyer its purchase price, or replace it with Pulp/LPB meeting the foregoing warranty.
EXCEPT FOR THE WARRANTY SET FORTH ABOVE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. A CLAIM UNDER THE FOREGOING WARRANTY IS BUYER’S SOLE REMEDY FOR NON-CONFORMING PULP/LPB UNDER THESE TERMS OF SALE AND THE PULP/LPB AGREEMENT BETWEEN BUYER AND SELLER (COLLECTIVELY, THE “AGREEMENT”). NEITHER BUYER NOR SELLER SHALL BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE PRICE FOR THE SHIPMENT INVOLVED, UNDER THE FOREGOING WARRANTY, UNDER ANY OTHER PART OF THIS AGREEMENT, OR OTHERWISE, AND NEITHER PARTY SHALL BE RESPONSIBLE FOR THE ACTS OR OMISSIONS OF CARRIERS. ANY LEGAL PROCEEDING AGAINST BUYER OR SELLER FOR BREACH OF THIS AGREEMENT, INCLUDING ANY WARRANTIES THEREUNDER, MUST BE INSTITUTED WITHIN ONE YEAR AFTER DELIVERY, OR IF DELIVERY WAS NOT MADE, WITHIN ONE YEAR AFTER THE DATE SPECIFIED FOR DELIVERY, IN ACCORDANCE WITH THIS AGREEMENT.
Unless otherwise agreed to in the provisions of any applicable Pulp/LPB Agreement between Buyer and Seller, terms are net cash 30 days from date of invoice, subject to continued compliance with Seller’s normal credit standards. A late payment charge of 1.75% per month on the unpaid balance will be made on all past due accounts. Should this rate exceed the maximum rate that is lawful under the circumstances, that maximum rate shall apply. The maximum rate shall be governed by the law of the state of the Buyer’s designated billing office. Buyer also agrees to pay any damages incurred by Seller by reason of delay or default in performance of Buyer’s obligations to accept and pay for the Pulp/LPB, as well as reasonable attorneys’ fees and other costs incurred at collection. Any such award of attorneys’ fees and costs is limited to the Seller’s collection efforts under this Section 2 and shall not entitle either party to an award of attorneys’ fees and costs under Section 8. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. If at any time Buyer’s financial responsibility shall become impaired or unsatisfactory, Seller may, without prejudice to other rights, demand security or advance payment in cash.
Unless otherwise agreed in the body of the Agreement or in the order acknowledgment, all export shipments will be made under a confirmed irrevocable sight letter of credit in favor of Seller, issued by a bank acceptable to Seller. The letter of credit shall make adequate provision for quantities in excess of the amount ordered to the extent permitted by the Agreement, and also shall remain valid in the event of partial shipments or reduced quantities. In all instances, remittances shall be made free of exchange or other charges in U.S. funds, by wire transfer at the time and location specified by Seller. The Uniform Customs and Practice of Documentary Credits, ICC Publication No. 600 (2007 Revision) or its revision also shall be applicable.
Buyer agrees to make prompt inspection of the Pulp/LPB delivered hereunder. All claims of whatever nature applying upon any shipment made under this Agreement must be made in writing, including such written evidence or other documentation as required by Seller, within thirty (30) days after arrival of the Pulp/LPB at the delivery point. Buyer shall hold not less than one half the shipment in dispute, pending examination by Seller or its nominee for this purpose. Seller shall examine the Pulp/LPB within 10 days of notification by Buyer, and shall immediately advise disposition of the Pulp/LPB.
4. TIME AND PLACE OF SHIPMENT
Unless Seller expressly guarantees an indicated or scheduled shipping date, all advance information as to date of shipment is an approximation only based upon Seller’s best judgment at the time. Irrespective of any provision concerning freight or price, title and risk of loss or damage shall pass to Buyer upon delivery of Pulp/LPB to any carrier at Seller’s plant or other shipping point. Seller reserves the right to route all shipments, and may assist Buyer in processing claims against carriers without incurring liability therefor.
5. TRANSPORTATION COSTS AND TERMINAL HANDLING CHARGES
When prices include any costs of transportation from point of manufacture (e.g. applicable freight rate and shipping tariff), any increase in such costs becoming effective after the applicable price is quoted or established by Seller, and any costs for services beyond those provided by the carrier at no charge, shall be for Buyer’s account. Any extra costs of utilizing substitute methods of delivery, when the intended type of carrier, vehicle or loading or unloading facilities become unavailable, also shall be for Buyer’s account.
When prices include ocean freight, Seller is entitled to select the route, port of shipment and vessel with privilege of stopping in transit. Seller reserves the right to discharge at a port other than the named port of destination, in which event any differences in Buyer’s direct cost of taking delivery and inland transportation to ultimate destination shall be for Seller’s account, unless such discharge is authorized by conditions specified in the carrier’s Bill of Lading. Where the Incoterm is DAT, or DAP, CPT, CIP, CFR or CIF where the Pulp/LPB is placed at the disposal of Buyer at a named port or terminal, the costs of handling and moving the Pulp/LPB within such port or terminal facilities (i.e., destination terminal handling charges) shall be paid by Buyer.
6. TITLE AND RISK TRANSFER
Title and risk of loss shall transfer from Seller to Buyer upon delivery to any carrier at Seller’s plant or other shipping point, or, in the case of export shipments, the delivery point specified in the Incoterm applicable to the order. Trade terms shall be interpreted in accordance with the 2010 edition of “Incoterms,” published by the International Chamber of Commerce, except as set forth in Section 4 above and as follows:
a) Seller shall not be responsible for delays caused by any carrier; and
b) Seller shall continue to have a title retention interest (which includes a purchase money security interest) in the Pulp/LPB sold hereunder and the proceeds of the products containing such Pulp/LPB until Seller has received full and final payment. Upon default, Seller may repossess the Pulp/LPB or products, but prior to any repossession Buyer is revocably authorized to sell the Pulp/LPB in the regular course of its business. Any such sale shall automatically constitute an assignment to Seller of the account receivable resulting from such sale.
Unless an order under this Agreement specifies EXW, FCA, FOB, CFR, CPT, or FAS shipping terms or the like, prices quoted include insurance in accord with the terms of Seller’s open cover cargo insurance policy as in force from time to time. Notwithstanding the provisions on title passage and risk of loss, such insurance shall be maintained for the benefit of Buyer or Seller, as their interests may appear, until delivery to the delivery point specified in the Incoterm applicable to the order. Upon request, and when provided in whole or in part to protect an interest of the Buyer, Seller will provide evidence of such insurance coverage.
8. GOVERNING LAW [AND ARBITRATION]
The laws of the State of Washington, (including the Uniform Commercial Code as in force therein), without reference to any choice of law principles that would provide for the application of the laws of any other jurisdiction, shall govern the interpretation and enforcement of this Agreement and all disputes arising under or relating thereto, (whether in tort, in contract, under statute or otherwise) including any dispute regarding its validity, interpretation, performance, operation or enforcement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or transactions hereunder. [Any dispute under this Agreement shall be heard exclusively in the federal and state courts in Seattle, and Buyer and Seller expressly, and irrevocably, consent to the personal jurisdiction of those courts and waive any objection to the laying of venue in any such court. Judgment on any award may be entered in any court of competent jurisdiction. For the avoidance of doubt, the parties confirm that the courts of any jurisdiction in which such party or any of its assets may be found is a court of competent jurisdiction, and each party irrevocably submits to the personal jurisdiction of each such court, and waives any objection to the laying of venue in any such court.]
– OR –
[Notwithstanding the foregoing, any arbitration hereunder shall be governed by the Federal Arbitration Act, and, to the extent not inconsistent with the Federal Arbitration Act, the laws of the State of Washington.
Any claim, controversy or dispute arising out of or relating to this agreement, or the breach or alleged breach thereof, including any dispute as to the existence, scope or validity of this Agreement or of this arbitration agreement, shall be finally settled by arbitration in accordance with the rules then prevailing of the International Centre for Dispute Resolution of the American Arbitration Association, before a panel of three arbitrators, unless the parties are able to agree on a single arbitrator, chosen in accordance with such rules. The seat of any such arbitration shall be in the Seattle, Washington.
The arbitrators may award any remedy or relief that could be granted by a judge of a court of general civil jurisdiction located at the seat of the arbitration. Judgment on any award may be entered in any court of competent jurisdiction. For the avoidance of doubt, the parties confirm that the courts of any jurisdiction in which such party or any of its assets may be found is a court of competent jurisdiction, and each party irrevocably submits to the personal jurisdiction of each such court, and waives any objection to the laying of venue in any such court. The parties further irrevocably submit to the non-exclusive jurisdiction of the United States District Court for the Western District of Washington and the Supreme Court of the State of Washington, King County, with respect to any proceeding to enforce this arbitration agreement, or for relief ancillary thereto or to any arbitration commenced hereunder.]
9. SUSPENSION OF PERFORMANCE
Seller may suspend performance of the Agreement when its manufacture or delivery of products is prevented, and Buyer may suspend performance of this Agreement when its receipt or consumption of products is prevented, in either case only to the extent caused by act of God, labor difficulty, shortage of transportation facilities, governmental acts or orders, the public enemy, or any like or different circumstance beyond the reasonable control of such party, provided that shipments in transit must be accepted by Buyer. Quantities omitted in whole or in part while such suspension of performance is in effect shall be deemed automatically eliminated from this Agreement. For the avoidance of doubt, the parties confirm that general economic or business conditions, or the business conditions of one of the parties hereto, do not come within this Section 9 and do not allow a suspension of performance.
Any and all taxes, import tariffs, or charges of any nature (other than taxes imposed on the gross or net income of Seller), imposed by any governmental authority, which shall become payable by reason of the sale, delivery and/or use of Pulp/LPB hereunder shall be deemed for Buyer’s account, and Seller may either bill the same to Buyer separately, or add the same to the price of Pulp/LPB shipped hereunder. Seller will notify Buyer in writing of the nature of any such tax or charge and of the law imposing same. If Buyer declares that it is exempt from any tax, Buyer must provide Seller with necessary certificates or other documentation to support such declaration and absent such certificates or other documentation Seller may charge Buyer for such tax.
No waiver by either party of any of the provisions of these Terms of Sale is effective unless explicitly set forth in writing and signed by the party against whom the enforcement is sought. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms of Sale operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Confidential Information (“Confidential Information”) shall be limited to the terms of this Agreement and any information disclosed to the receiving party by the disclosing party in writing or other tangible form and marked “Confidential” or, if orally or visually disclosed, confirmed in writing as being confidential within thirty (30) days after the oral or visual disclosure. For a period of three (3) years from the date of disclosure the receiving party shall keep the disclosing party’s Confidential Information in confidence and shall disclose such Confidential Information to its employees, representatives and agents only on a need to know basis and who must be subject to the confidentiality obligations herein. Each party further agrees, except as required by law, not to disclose such Confidential Information to any third party without the prior consent of the disclosing party. Confidential Information subject to the restriction of this Agreement shall not include: (i) information already in the possession of the receiving party as evidenced by the receiving party’s prior written records; (ii) information disclosed to the receiving party by a third party entitled to make such disclosure without obligation of confidentiality to the disclosing party; (iii) information which becomes public through no fault of the receiving party; (iv) information developed independently by the receiving party; or (v) information required to be disclosed pursuant to a subpoena or court order or by law, provided, however, that to the extent not prohibited the receiving party shall provide reasonable prior notice to the disclosing party such that the disclosing party may seek an order preventing or limiting such disclosure.
13. ENTIRE AGREEMENT
This Agreement, including its Exhibits and documents referenced herein, constitutes the entire agreement between the parties related to the subject matter hereof, and cancels and supersedes all prior or contemporaneous agreements, whether oral or written, relating to the subject matter of this Agreement and all prior requests for proposals, bids, quotations, agreements, negotiations, email exchanges, conversations, dealings and understandings, whether written or oral, regarding the subject matter hereof are hereby superseded and merged into this Agreement. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement the terms or conditions of this Agreement shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification shall be effected by the acknowledgement or acceptance of a purchase order or shipping instruction, invoice or other forms containing terms or conditions at variance with or in addition to those set forth in this Agreement.
If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable under law, the validity and enforceability of the remaining provisions shall be enforced to the extent legally possible.
Either party may terminate this Agreement if the other party fails to cure any default in the performance of any covenant or obligation under this Agreement within thirty (30) calendar days after written notice; provided, however, that: (i) no notice or opportunity to cure shall apply to Buyer’s obligation to pay invoices within terms; and (ii) with respect to warranty claims relating to the Pulp/LPB, the procedure set forth in Section 1 shall apply. This Agreement will terminate immediately and automatically if either party files a voluntary petition in bankruptcy, or enters into an arrangement with its creditors, or applies for consents to the appointment, or suffers or permits the entry of an order adjudicating it to be bankrupt or insolvent.
16. MUTUAL INDEMNIFICATION
a) Mutual Indemnification. Seller and Buyer (“Indemnitor”) each agrees to indemnify and hold the other, and its respective parent company, affiliates, agents, employees, officers, directors, successors, and assigns (“Indemnitee”) harmless, against any and all third-party claims, damages, fines, penalties, costs, liabilities or losses (including sums paid in settlement of claims, reasonable attorneys’ fees, consultant fees, expert fees and costs) (“Claim”) arising out of its negligence or other tortious fault, including that of its officers, employees, contractors (but not carriers) and agents, or arising out of its infringement of any patents, copyrights, trade secrets or similar intellectual property rights covering the Pulp/LPB furnished hereunder by such party, except that no right of indemnity shall exist in that portion of such Claim resulting from the negligence, tortuous fault or infringement of Indemnitee, its officers, employees, contractors, agents and subcontractors, or if the Indemnitor has relied on the express written approval, acceptance or instructions of Indemnitee with respect to the act or omission giving rise to the Claim.
b) Procedure. Indemnitee shall, within ten (10) calendar days after receipt of notice of the commencement of any third-party Claim against Indemnitee, for which indemnity may be sought, notify Indemnitor; provided, however, that the failure to provide such notice shall not relieve Indemnitor of its indemnity obligations, unless the Indemnitor is prejudiced by such delay. Indemnitor shall, upon Indemnitor’s request, be entitled, at its own expense, to assume the defense of any such Claim with reputable counsel reasonably acceptable to Indemnitee. Indemnitor shall be entitled to settle any such Claim without Indemnitee’s written consent if the settlement is only for money damages and the Indemnitor pays the damages and does not admit fault upon Indemnitee, but shall otherwise require Indemnitee’s consent, which may be granted or withheld in Indemnitee’s reasonable discretion. Indemnitee, at Indemnitor’s cost, shall reasonably cooperate with Indemnitor in the defense of such Claim as Indemnitor may reasonably request. Upon the institution of any Claim alleging infringement against Buyer relating to Seller’s intellectual property, Seller may, at its option but without obligation to do so: (i) procure the right for Buyer to continue using the Pulp/LPB; (ii) replace the Pulp/LPB with non-infringing Pulp/LPB; or (iii) modify the Pulp/LPB so they become non-infringing. This indemnity obligation shall survive the expiration, termination or cancellation of this Agreement.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 17 is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 18.