GENERAL TERMS AND CONDITIONS OF SALE
GENERAL TERMS AND CONDITIONS OF SALE
Validity: as of October 16, 2019 · Reference No. 981.00
A. These Terms and Conditions of Sale (“Terms”) are the only terms which shall govern the sale of Wood Products (“Wood Products”) by Bartica LLC (“Seller”) to the buyer listed on the applicable Order Confirmation delivered herewith (“Buyer” and, collectively with Seller, the “Parties”). Seller hereby expressly rejects any of Buyer’s terms and conditions, including any terms and conditions that may have been included in any submitted purchase order.
B. The accompanying Order Confirmation (“Order Confirmation”) and these Terms (collectively, “Agreement”) comprise the entire agreement between the Parties regarding such Order Confirmation, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, except this Agreement shall not replace, supersede, or otherwise alter any Confidentiality Agreement or Non-Disclosure Agreement that may be in place between the Parties. These Terms prevail over any additional or conflicting terms, including Buyer’s general terms and conditions of purchase, regardless of whether, how, or when submitted by Buyer, and any such additional or conflicting terms are hereby expressly rejected by Seller. Fulfillment of Buyer’s purchase order does not constitute acceptance of any of Buyer’s terms or conditions and does not serve to modify or amend these Terms. If both Parties have executed an Order Confirmation, that Order Confirmation may not be cancelled by Buyer.
C. These Terms and Conditions of Sale may be amended or modified by Seller at any time and from time to time, but an Order Confirmation may not be amended except by written document signed by both Parties.
2. Price and Payment
A. Buyer shall purchase the Wood Products from Seller at the prices set forth in the Order Confirmation (the “Price(s)”). From time to time, Seller may provide Buyer a representative price list, but such price list is for informational purposes only, and the provision of such a price list shall not constitute an offer by Seller to sell Wood Products to Buyer at those prices.
B. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
C. Buyer shall pay all invoiced amounts due to Seller within five (5) calendar days following the date of Seller’s invoice, unless otherwise stated in the Order Confirmation. Buyer shall make all payments hereunder by wire transfer and in US dollars.
D. Buyer shall pay interest on all late payments at the lower of (i) the rate of eighteen percent (18%) per annum, calculated daily and compounded monthly, or (ii) the highest legal rate of interest allowable by law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments or any other monies due and owing to Seller, including, without limitation, court costs and attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Wood Products if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
E. Buyer will be liable and responsible for: (a) all costs associated with Buyer’s failure to make timely payment for the Wood Products; (b) all costs and charges for Buyer’s account under this section; (c) unloading costs, including, without limitation, demurrage costs for any waiting time incurred by a carrier or vessel, lighterage and wharfage charges, storage costs or other similar costs associated with Buyer’s failure to unload the Wood Products at the location specified on the applicable Order Confirmation (the “Delivery Point”).
F. 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, insolvency or otherwise.
3. Title and Risk of Loss.
A. Title and risk of loss passes to Buyer upon delivery of the Wood Products at the Delivery Point. Regardless of the time or place of such transfer, Seller shall retain a security interest in the Wood Products until it receives payment in full of the Price therefor. Buyer and the transportation carrier are responsible for ensuring that every load of Wood Products is properly secured before the transportation carrier departs from the point of origin, regardless of the shipment terms and notwithstanding that Seller may load the Wood Products onto the carrier’s truck, railcar or vessel. Seller reserves the right to refuse to load Wood Products onto an unsafe truck, railcar or vessel. Buyer is responsible for unloading the Wood Products at the Delivery Point.
B. As collateral security for the proper and timely payment of the purchase price of the Wood Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Wood Products, 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 as defined in the Personal Property Security Act or the Uniform Commercial Code (or any equivalent legislation) of the jurisdiction where Buyer is located.
A. The terms and conditions of Incoterms 2010 will apply to the Agreement. Seller shall make delivery of the Wood Products in accordance with the terms on the face of the Order Confirmation.
B. Any delivery schedules included in the Agreement represent Seller’s estimates only. Seller will use commercially reasonable efforts to meet any delivery schedules included in the Agreement, subject to availability of finished Wood Products. Seller shall not be liable for any delays, loss, or damage of the Wood Products in transit.
C. Unless otherwise agreed in writing by the Parties, Seller shall deliver the Wood Products to the Delivery Point specified on the applicable Order Confirmation using Seller’s standard methods for packaging and shipping such Wood Products. Buyer shall take delivery of the Wood Products immediately upon their arrival at the Delivery Point. Buyer shall be responsible for all unloading costs and provide equipment and labor reasonably suited for receipt of the Wood Products at the Delivery Point.
D. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Wood Products to the Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
E. Seller may suspend or delay deliveries at any time pending receipt of assurances satisfactory to Seller of Buyer’s ability to pay any amounts payable to Seller under this Agreement or if Customer fails to pay any such amount as and when payable. If Buyer fails to promptly provide such assurance or make any such payment, Seller may cancel all or a portion of this Agreement without further liability or obligation to Customer.
A. The quantity of Wood Products recorded by Seller upon shipment from Seller’s facility shall be conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving otherwise.
B. If Seller delivers to Buyer a quantity of Wood Products of up to 10% more or less than the quantity set forth in the Order Confirmation, Buyer shall not be entitled to object to or reject the Wood Products or any portion of them by reason of the surplus or shortfall and shall pay for such Wood Products the price set forth in the Order Confirmation adjusted pro rata.
6. Inspection and Rejection of Nonconforming Wood Products.
A. Buyer, at its cost, will inspect the Wood Products when they have been delivered to the Delivery Point. Buyer may reject the Wood Products only if the Wood Products fail to conform to the: (i) description set forth in the Order Confirmation; (ii) actual dimensions set forth in the Order Confirmation;; or (iii) grading specifications established by NELMA and in effect on the date the Wood Products are delivered to Buyer (collectively the “Specifications”).
B. Buyer shall notify Seller in writing of any Non-conforming Wood Products within five (5) days of delivery of the Wood Products to the Delivery Point (“Inspection Period”) and furnishes photos, evidence or other documentation as required by Seller. Any Wood Products not timely notified by Buyer as non-conforming, shall be deemed to be accepted by Buyer. Buyer’s rejection of any Wood Products will not relieve Buyer of its obligation to pay for any other Wood Products or otherwise perform under the Agreement.
C. If Buyer notifies Seller of any Nonconforming Wood Products prior to the expiration of the applicable Inspection Period, Seller shall, in its sole and subjective discretion, (i) replace such Nonconforming Wood Products with conforming Wood Products, or (ii) credit or refund the Price for such Nonconforming Wood Products.
D. Following to Seller request, the Buyer shall ship, at its expense and risk, the Nonconforming Wood Products to Seller’s designated facility. Buyer shall include with its shipment a receipt indicating the total cost of such shipment. After receiving Buyer’s shipment of purportedly Nonconforming Wood Products, if Seller confirms that the Wood Products are Nonconforming Wood Products and exercises its option to replace the Nonconforming Wood Products, Seller shall ship to Buyer, at Seller’s sole cost, expense and risk, the replaced Wood Products to the Delivery Point, and Seller shall issue to Buyer a credit in the amount of Buyer’s actual cost of returning the Nonconforming Wood Products to Seller.
E. Buyer acknowledges and agrees that the remedies set forth in Section 6(c) are Buyer’s exclusive remedies for the delivery of Nonconforming Wood Products. Except as provided under Section 6(c), all sales of Wood Products to Buyer are made on a one-way basis and Buyer has no right to return Wood Products purchased under this Agreement to Seller.
7. Limited Warranty.
A. Seller warrants to Buyer that, for a period of one (1) year from the date of shipment of the Wood Products (the “Warranty Period”), such Wood Products will materially conform to Seller’s published specifications in effect as of the date of manufacture under the corresponding Order Confirmation and will be free from material defects in materials and workmanship.
B. Except for the warranty set forth in Section 7(a), Seller makes no warranty whatsoever with respect to the Wood Products, including any (i) warranty of merchantability; or (ii) warranty of fitness for a particular purpose; in each case, whether express or implied by law, course or dealing, course of performance, usage of trade or otherwise. Except for the warranty set forth in Section 7(a), the Wood Products are being sold “as-is”, “where is” and “with all faults”.
C. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Wood Products. Third Party Products are not covered by the warranty in Section 7(a). For the avoidance of doubt, Seller makes no representations or warranties with respect to any Third Party Product, including any (i) warranty of merchantability; or (ii) warranty of fitness for a particular purpose, in each case, whether express or implied by law, course or dealing, course of performance, usage of trade or otherwise. All Third Party Products are being sold “as is”, “where is” and “with all faults”.
D. Seller shall not be liable for a breach of the warranty set forth in Section 7(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within the Warranty Period; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Wood Products and Buyer (if requested to do so by Seller) returns such Wood Products to Seller’s place of business at Seller’s cost for such examination; and (iii) Seller reasonably verifies Buyer’s claim that the Wood Products are in breach of warranty.
E. Seller shall not be liable for a breach of the warranty set forth in Section 7(a) if: (i) Buyer makes any further use of such Wood Products after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Wood Products; or (iii) Buyer alters or repairs such Wood Products without the prior written consent of Seller.
F. Subject to Sections 7(d) and 7(e) above, with respect to any such Wood Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Wood Products (or any defective parts) or (ii) credit or refund the price of such Wood Products at the pro rata contract rate; provided, that if Seller so requests, Buyer shall, at Seller’s expense, return such Wood Products to Seller.
G. The remedies set forth in Section 7(f) shall be Buyer’s sole and exclusive remedies and Seller’s entire liability for any breach of the limited warranty set forth in Section 7(a).
8. Limitation of Liability.
A. In no event shall Seller be liable to Buyer or any third party for any loss of use, revenue or profit or loss of data or diminution in value, or for any 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.
B. 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 total of the amounts paid to Seller for the Wood Products sold under the applicable Order Confirmation.
9. Compliance with Law.
A. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Wood Products under this Agreement or any resale of the Wood Products by Buyer. Buyer assumes all responsibility for shipments of Wood Products requiring any government import clearance.
B. Seller may terminate this Agreement, with no liability or recourse to Buyer except for the return of the purchase price set forth in the applicable Order Confirmation, if (i) any governmental authority imposes antidumping or countervailing duties, (ii) any other penalties are imposed by any governmental entity on any Wood Products, or (iii) any new customs regulations, duty impositions, or other similar legislation is imposed which, in Seller’s sole discretion, frustrates the intent or impact of this Agreement or the sale of the Wood Products.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment from Seller; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement 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.
Buyer will indemnify, defend and hold harmless Seller and its directors, officers, employees, agents and contractors from and against any and all losses, damages, liabilities, injuries to persons or property, claims, proceedings, judgments and expenses incurred or sustained directly or indirectly as a result of: (a) any breach by or default of Buyer under any of the provisions of the Agreement; or (b) any act or omission of Buyer or any of its directors, officers, employees, agents and contractors, including, without limitation: (i) any warranty Buyer makes to any other person with respect to any Wood Products, (ii) Buyer’s or any other person’s improper use of any Wood Products, or (iii) the transportation, receipt, handling or storage of any of the Wood Products by Buyer or its agents.
13. Confidential Information.
A. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be used, disclosed or copied unless authorized in advance by Seller in writing.
B. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure and received from a source other than Seller; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
14. Force Majeure.
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
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 is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
16. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
17. Third-Party Beneficiaries.
This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, 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 these Terms.
18. Governing Law.
All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Maryland without giving effect to any choice or conflict of laws provision or rule (whether of the State of Maryland or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Maryland. The United Nations Convention on the International Sale of Wood Products is expressly excluded and will not apply.
19. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the State of Maryland located in the City of Baltimore, Maryland, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Both Parties consent that venue is proper in such jurisdiction.
All notices, requests, 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 the Order Confirmation 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). Seller may deliver Order Confirmation to Buyer via email. Where Seller seeks Buyer’s signature on an Order Confirmation, such Order Confirmation may be executed in counterparts, each of which shall be deemed an original, but all of which constitute one and the same agreement. Electronic delivery of an executed Order Confirmation shall be as effective as delivery of an original, executed counterpart of the Order Confirmation. 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.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their respective terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Indemnity, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.