TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (“Terms”) apply to all sales by Central National-Gottesman (“Seller”) to its Customers (each, a “Customer”). All Customer orders are expressly subject to these Terms. No quotation or agreement is binding upon Seller unless confirmed by Seller's written acknowledgment or confirmation (an “Acknowledgement”), which states the only obligations to which Seller is bound. Unless Customer objects promptly upon its receipt, such Acknowledgment, together with these Terms, shall constitute the entire agreement between Seller and Customer and there are no understandings, agreements or representations, express or implied, not specified herein or therein. Subject to the express provisions of these Terms, the customs of the American paper trade relating to merchandise of the type and quality herein provided for shall apply.
Testing: If after testing any pulp, Customer disputes the invoiced air-dry weight by more than 1%, Customer may demand a retest, holding the shipment, and simultaneously furnishing Seller, in writing, with the details. Within 15 days a retest shall be made in accordance with methods approved by the Technical Association of the Pulp and Paper Industry by a paper chemist agreed upon by Customer and Seller. If the difference shown by the retest does not exceed 1% the invoice shall stand as rendered. Customer shall in any case pay the invoice in full when due subject to refund adjustment, if any, on a retest. The cost of the retest shall be borne by the party in error.
Price: Payments shall be in United States currency, New York funds. All pulp shall be invoiced on air-dry weight and the term "air-dry" shall mean 90% absolutely dry pulp and 10% atmospheric moisture. The price set forth in an Acknowledgement is subject to increase if Seller's supplier’s price to Seller is increased at or before shipment. Seller shall advise Customer in writing of any proposed increase within five (5) days thereafter. Customer shall advise Seller in writing if such increase is unacceptable. If Customer fails to so advise Seller, such increased price shall be the price in connection with such transaction. If not acceptable, such transaction shall be deemed cancelled with respect to merchandise to which such proposed increase would have been applicable.
Taxes and Additional Charges: All import and export duties, taxes, consular fees, tariff charges, and other charges, foreign and domestic, imposed upon the manufacture, sale, transportation, delivery and/or use of any pulp sold to Customer by Seller in the present or future, and any increase in freight or insurance, whether or not included in the price under the Acknowledgement relating thereto, shall be paid by Customer or reimbursed to Seller by Customer and shall be paid by Customer and shall be added to the prices provided for in the Acknowledgement and the Terms.
Delivery, Title and Contingencies: Seller shall have the right to deliver within 10% more or less of the quantities specified and within 30 days of the time specified. Seller may make partial deliveries and Customer shall accept and pay for same. No defect or nonconformity in any shipment or delivery shall excuse Customer from accepting and paying for any other shipment or delivery. If Customer fails to take the stated quantity in any period, Customer shall not be entitled to demand the deficiency in subsequent periods and Seller may cancel all or any part of the remaining unshipped tonnage. If Seller's performance is, in whole or in part, prevented, delayed, hindered or rendered impracticable by a circumstance caused in whole or in part by any condition beyond Seller's reasonable control, whether affecting the Seller, the carrier or Seller's supplier or manufacturer, including but not limited to acts of God, war, mobilization, strikes, embargoes, lock-outs, drought, flood, accidents, total or partial fire, obstruction of navigation by ice or other cause, loss, damage, detention at sea, delay at place of shipment, failure by the manufacturer to ship merchandise by reason of bankruptcy or other cause (including allocation), legislation, acts, orders, decrees, demands, priorities, directions, rulings or requests of any government or any political subdivision or agency thereof, it shall not constitute a default; but Seller may either cancel such transaction as to the undelivered portion or may deliver when and where (within, however, the country of destination) reasonably able; and when making deliveries, Seller may apportion Seller's available supply among Seller's customers in a reasonable manner. Shipments in transit must be accepted by the Customer. Customer shall reimburse Seller for demurrage and warehouse charges and extra delivery expense on merchandise subject hereto which cannot be reasonably delivered as designated because of conditions beyond Seller's reasonable control. If for any reason beyond Seller's reasonable control, delivery is made at a location other than the location designated or if the carrier shall make delivery elsewhere than as designated under the force majeure provisions of its bill of lading, such place of delivery shall be deemed substituted for all purposes for the place so designated.
Claims and Returns: SELLER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, EXCEPT THAT ANY MERCHANDISE DELIVERED SHALL BE OF THE MANUFACTURER'S STANDARD QUALITY FOR MERCHANDISE OF SUCH KIND. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FOREGOING AND SELLER'S SOLE RESPONSIBILITY HEREUNDER IS AS STATED. SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR LOSS OF USE), OR FOR ANY AMOUNT IN EXCESS OF THE PRICE FOR THE SHIPMENT INVOLVED, UNDER THE FOREGOING OR ANY OTHER PART OF THESE TERMS, ANY ACKNOWLEDGEMENT OR ANY OTHER AGREEMENT BETWEEN SELLER AND CUSTOMER. ANY LEGAL ACTION AGAINST SELLER FOR BREACH OF THESE TERMS, ANY ACKNOWLEDGEMENT OR SUCH ANY OTHER AGREEMENT INCLUDING ANY WARRANTIES HEREUNDER, MUST BE INSTITUTED WITHIN ONE YEAR AFTER DELIVERY. Seller shall have no liability for any claim or liability arising out of the consumption or use by Customer or any other person of the merchandise subject hereto. No claims by Customer of whatever nature may be made except in writing within 30 days after the arrival of the carrier at its destination or of the merchandise at any other place of delivery or if merchandise is stored at any point for Customer's account or delivered at any place other than specified in an Acknowledgement, within 30 days after the commencement of such storage, or the date of delivery. Due opportunity must be given for investigation by Seller's representative. Good delivery shall be conclusively deemed to have been made if no claim is made as provided above.
Seller's Rights. If Customer fails, in connection with any transaction with Seller, to furnish proper letter of credit or other document, shipping instructions or specifications with respect to any merchandise in ample time prior to earliest date specified for shipment, or to accept delivery of any merchandise or to make payment when due of any sum owing to Seller or otherwise defaults in the performance of any of its obligations, regardless of the materiality of such default, or becomes insolvent or makes an assignment for the benefit of creditors or if a petition is filed by or against Customer under any bankruptcy or insolvency law or for the appointment of a receiver of Customer, Seller may recover all sums due or to become due and in addition may without prior notice (a) recover any loss and damages sustained, (b) rescind the transaction, in whole or in part, (c) ship any undelivered merchandise to Customer or hold it as bailee for Customer or store it in a public warehouse, in either case at Customer's risk and expense and recover the price for such merchandise, (d) resell any undelivered merchandise and recover from Customer the difference between the price for such merchandise under the applicable Acknowledgement and the resale price, plus expenses and charges, or (e) defer deliveries until default is made good. If Customer fails to furnish any instructions or specifications, Seller shall also have the right to determine the specifications for itself and/or ship to Customer's address stated or to Customer's address last known to Seller, and Seller shall be relieved from all further obligations with respect thereto. Acceptance by Seller of payment for any delivery or shipment shall not be construed as a waiver by Seller of any default on the part of the Customer. Seller’s rights and remedy herein are not exclusive and shall be cumulative and in addition to any other right or remedy given herein or now or hereafter existing under law. If in Seller's opinion Customer's credit becomes impaired, Seller may at any time delay, suspend or cancel shipments or demand cash in advance of delivery, or limit credit or alter credit terms before or after delivery, in which case payment shall be due in accordance with such demand, limitation or alteration. At its option Seller may make deliveries of withheld shipments so withheld during or after the term hereof, and Customer's refusal to accept such shipments shall constitute a default. Customer shall pay interest on any overdue amount at the rate of 2% over the prime rate of Citibank, N.A. (or at the maximum lawful rate if less).
Miscellaneous: All claims and controversies arising out of, or relating to any transaction to which these Terms relate shall be submitted to arbitration in New York, NY, USA, in accordance with the rules of the American Arbitration Association; provided, however, that upon any such arbitration the arbitrators shall not have the power to vary, modify or disregard any of the provisions hereof, or to award special, consequential, indirect, incidental, exemplary or punitive damages or specific performance against the Seller. Notices may be given by certified or registered mail or recognized express delivery service to a party at its address stated on the reverse side hereof, or at the address last known to the other party, and such notice so given shall have the same effect as if served personally within the State of New York. No provision hereof or of any Acknowledgment may be modified, amended or rescinded unless by a written instrument executed by Seller and Customer. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of these Terms or any Acknowledgement, or to take advantage of any of its rights, shall not operate as a continuing waiver of such rights. This transaction shall be governed by the laws of the State of New York, without reference to choice of law rules or to the Convention on Contracts for the International Sale of Goods. Neither any Acknowledgment, nor any right thereunder, may be assigned, either in whole or in part, by customer without the prior written consent of Seller.