INTERNATIONAL CARTON SUPPLIERS STANDARD TERMS AND CONDITIONS FOR INTERNATIONAL SALES
DELIVERY, TITLE, AND RISK OF LOSS.
Incoterms 2000 standard trade definitions, as devised and published by the International Chamber of Commerce, are incorporated herein by reference.
Buyer will pay and indemnify Seller from the economic effect to Seller of any and all taxes, duties, fees or other fiscal charges assessed or imposed by any governmental authority other than the exporting country, and Seller will pay and indemnify Buyer from any and all taxes, duties, fees or other fiscal charges assessed or imposed by any governmental authority of the exporting country, upon or arising out of the sale to Buyer of the Commodities by Seller under the terms and conditions of this Agreement.
Buyer and Seller each acknowledge and agree that the Quantity specified is approximate. If the Quantity is specified in tons, whether metric, short or long, the order shall be considered completed when aggregate shipments are within 10% (under or over) of the Quantity ordered. The Total shall be recomputed to reflect the actual quanity shipped in light of the variance; however, the Unit Price shall not change.
If Buyer fails to fulfill any condition of its payment obligations, Seller may in its sole discretion (i) withhold deliveries, (ii) suspend performance, (iii) delay performance, or (iv) cancel this Agreement as set forth in Section 10 below. In any event, the fees and costs incurred by Seller as a result of Buyer's nonperformance shall be payable by Buyer upon submission of Seller's invoices therefor. Seller shall be entitled to an extension of time for performance of its obligations equaling the period of Buyer's nonperformance whether or not Seller elects to suspend performance. On all amounts overdue to Seller, Buyer shall pay Seller interest at the maximum legal rate during the period that such amounts are overdue.
Partial deliveries and transshipment are permitted. In each instance, if delivery is not made within the time specified in this Agreement, Buyer shall have three (3) days after such late delivery within which to reject the late delivery otherwise Buyer shall be conclusively presumed to have accepted such late delivery. In no event shall Buyer be entitled to reject any timely delivery of Commodities because of a prior, contemporaneous or subsequent rejection of a late delivery of Commodities.
Upon delivery, title to the Commodities and all risk of loss or damage shall pass to Buyer. Delivery times are approximate and are dependent upon prompt receipt by Seller of all material and information necessary to proceed with shipment without interruption.
Any and all quality claims asserted by Buyer shall be presented and resolved in accordance with the Guidelines for Paper Stock: PS-2008. Export Transactions found in the Scrap Specifications Circular 2008 published by the Institute of Scrap Recycling Industries (www.isri.org/specs). IN THE EVENT OF A DISAGREEMENT BETWEEN BUYER AND SELLER REGARDING QUALITY CLAIMS, THAT PORTION OF THE DISPUTE RELATING TO THE QUALITY CLAIM SHALL BE SUBMITTED TO ISRI FOR ARBITRATION. ALL OTHER DISPUTES SHALL BE SUBJECT TO SECTION 2; HOWEVER, EACH PARTY AGREES THAT IT SHALL BE COLLATERALLY ESTOPPED WITH REGARD TO ISRI ARBITRATED QUALITY CLAIMS. IN ALL SUCH QUALITY CLAIMS ARBITRATED BY ISRI, THE COST OF ARBITRATION SHALL BE BORNE BY THE PARTY FOUND TO BE AT FAULT, OR EVENLY SPLIT IN THE EVENT OF COMPROMISE, AS DETERMINED BY THE ISRI ARBITRATOR(S).
A moisture content of 12% is deemed to be air dry. Where moisture in excess of 12% is present in the Commodities, the Buyer has the right to request an adjustment. Whenever possible, such adjustment shall be made on an average air dry basis.
LIMITATIONS OF LIABILITY.
In no event shall either Party be liable for any contingent, special, consequential, incidental, indirect or exemplary damages, including, but not limited to, loss of profit or revenues, loss of use of the Commodities or any associated equipment, cost of capital, cost of substitute goods, facilities, or downtime costs. If Buyer transfers title to the Commodities, or otherwise permits or suffers use of the Commodities by, any third party Buyer shall obtain from such third party a provision affording Seller the protection of the preceding sentence.
Buyer shall be responsible for timely obtaining and maintaining any required import license, exchange permit or any other governmental authorization. Seller shall not be liable if any authorization of a government other than the U.S. is delayed, denied, revoked, restricted or not renewed, and Buyer shall not be relieved thereby of its obligations to pay Seller for the Commodities or any other charges which are the obligation of Buyer hereunder. All shipments hereunder shall at all times be subject to the export control laws and regulations of the U.S.A. and any amendments thereof. Buyer agrees that it shall not make any disposition of U.S.A.-origin Commodities purchased from Seller, by way of transshipment, re-export, diversion or otherwise, other than in and to the ultimate country of destination specified on Buyer´s order or declared as the country of ultimate destination on Seller´s invoices, except as said laws and regulations may expressly permit.
ENTIRE AGREEMENT; AMENDMENTS.
This Agreement, including all external documents incorporated by reference, constitutes the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly set forth in this Agreement. This Agreement may be supplemented, amended, or modified only by the mutual agreement of the parties signed by duly authorized representatives. No revision, supplement, amendment, or modification of this Agreement shall be binding unless it is in writing and signed by duly authorized representatives of both parties, and no additional term or condition stated by Buyer in any document (e.g. purchase order, order acceptance or acknowledgement, etc.) shall be binding upon Seller if in conflict with, inconsistent with, or in addition to the terms and conditions contained herein unless expressly accepted in writing by a duly authorized representative of Seller.
Seller shall not be liable for delays in delivery or failure to perform due directly or indirectly to causes beyond Seller's reasonable control, including, but not limited to, acts of God, acts (including failure to act) of any governmental authority (de jure or de facto), wars (declared or undeclared), governmental priorities, enemy or hostile governmental action, civil commotion, acts of public enemy, acts of terrorism, riots, revolutions, port congestion, strikes or other labor disputes, fires, floods, sabotage, nuclear incidents, earthquakes, storms, epidemics, and inability timely to obtain necessary and proper labor, materials, components, facilities, energy, fuel, transportation, governmental authorizations or instructions.
The foregoing shall apply even though any of such causes exists at the time of the order or occurs after Seller's performance of its obligations is delayed for other causes. Seller shall notify Buyer of any delay or failure excused by this Section and shall specify the revised delivery date as soon as practicable. In the event of such delay, subject to Section 9.3, there shall be no termination and the time of delivery or of performance shall be extended for a period equal to the time lost by Seller by reason of the delay.
If delay excused by this Section extends for more than sixty (60) days and the parties have not agreed upon a revised basis for continuing the transaction at the end of the delay, then either party (except where delay is caused by Buyer, in which event only Seller), upon ten (10) days written notice to the other, may terminate the order with respect to the unexecuted portion of the transaction.
QUALITY; COMMODITY GRADING.
Sellers commodity grade definitions, as amended from time to time, found at are incorporated and made part of this Agreement by reference (Grade Definitions). The Grade Definitions shall be used to grade Commodities transacted under this Agreement. BUYER AND SELLER AGREE AND ACKNOWLEDGE THAT COMMODITIES TRANSACTED ARE RECYCLED MATERIALS PRODUCED MANUALLY AND SHALL SUBSTANTIALLY CONFORM TO THE GRADE DEFINITIONS. The Grade Definitions may not specifically address all types of processes used in the manufacture or recycling of materials. In the event of a rejection, the Buyer shall be responsible for any Commodities used by the Buyer and the freight thereon, other than such de minimis quantity as may be considered reasonable for sampling or testing purposes. The Buyer must protect the Commodities from weather or any other elements until the claim is settled.
WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THIS AGREEMENT, ANY OTHER AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. EACH PARTY HEREBY AGREES THAT THIS AGREEMENT CONSTITUTES A WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY PURSUANT TO THE PROVISIONS OF ANY APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE PROVISIONS OF FLORIDA CODE OF CIVIL PROCEDURE SECTION 631, AS SUCH PROVISIONS MAY BE APPLIED TO THIS AGREEMENT. THE PARTIES HEREBY ACKNOWLEDGE THAT THE TRANSACTION OF WHICH THIS AGREEMENT IS A PART IS A COMMERCIAL TRANSACTION.
CANCELLATION FOR CAUSE.
In the event of bankruptcy or insolvency of Buyer, or in the event any proceeding is brought by or against Buyer under the bankruptcy or insolvency laws, Seller is entitled to cancel any order then outstanding and will receive reimbursement for the reasonable cancellation costs suffered by Seller.
In the event of insolvency as defined by the Uniform Commercial Code in effect in Florida, any act of bankruptcy, whether voluntary or involuntary, or any insolvency proceeding instituted by or against Buyer, Seller may refuse delivery of the Commodities covered by this Agreement except for cash in advance and Seller may stop delivery of Commodities in transit.
On default by Buyer, Seller has the option of refusing to perform further under this and any other existing Agreement between the parties that Seller may elect, and Seller may rescind any agreements between the parties and hold Buyer liable for all resulting damages and losses, or of reselling, at public or private sale, undelivered goods covered by this and any other existing Agreement between the parties that Seller may elect. Seller is not liable to Buyer for any profit on any resale, but Buyer remains liable to Seller for the difference between (1) the Agreement price of the goods, plus all expenses and charges for the account of Buyer specified in this Agreement and all expenses of storage and resale, and (2) the resale price of the goods.
Each party agrees to furnish upon request all reasonable cooperation to the other party in support of the other party's efforts to obtain any necessary consents, approvals, waivers, licenses, permits, visas, or clearance from appropriate governmental authorities, agencies, or officials in connection with the exporting or importing of the Commodities under this Agreement.
WARRANTY OF AUTHORITY TO EXECUTE.
Those individuals who are signing this Agreement on behalf of entities represent and warrant that they are, respectively, duly authorized to sign on behalf of the entities and to bind the entities fully to each and all of the obligations set forth in this Agreement.
No right or remedy conferred upon or reserved to any of the parties under this Agreement is intended to be, nor shall it be deemed, exclusive of any other right or remedy provided in this Agreement or by law or equity, but each shall be cumulative of every other right or remedy. All such rights and remedies may be exercised concurrently or separately.
Buyer and Seller each agree that in the performance of their respective obligations under this Agreement neither will take any action that will render the other liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits the offering, giving, or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party, or instrumentality thereof in order to assist in obtaining or retaining business. Violation of this Section by either party instantly renders this Agreement null and void.
If there is any conflict between the English and any foreign language translation of the provisions of this Agreement, the English language provisions shall control. The language in all parts of this Agreement shall be construed as a whole in accordance with its fair meaning and any rule of construction having the effect of resolving ambiguities against the drafting party shall not apply in interpreting this Agreement. Handwritten or typed words shall have no greater weight than printed words in the interpretation or construction of this Agreement. Section, paragraph, and other headings used in this Agreement are included for convenience only and shall neither affect the construction or interpretation of any provision in this Agreement nor affect any of the rights or obligations of the parties to this Agreement. If any one or more of the provisions of this Agreement are found to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision. These terms and conditions shall not be interpreted or construed to confer any rights or remedies on any third parties.