Standard Terms and Conditions of Sale of Packaging Products

1. APPLICABILITY.  These terms and conditions of sale (“Terms”) are the only Terms that govern the sale of packaging products ("Products”) by International Paper (“Seller”) to buyer (“Customer”).  Unless otherwise provided for in a written agreement executed by Seller and Customer, these Terms and any accompanying confirmation or invoice (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer's general terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer's order does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.

2. SUBSTITUTION OF PRODUCT.  Seller may furnish Customer with the Products from any sources, provided the commercial quality of the Products is at least equal to the quality required hereunder.  

3. PRICE & BILLING.  Seller may change the price for future orders at any time upon notice.  Prices include the cost of delivery to the Customer’s destination, unless stated Customer Pick-up.  Shipments are subject to a margin of ten percent (10%) for over-run or under-run in filling orders hereunder.  Regardless of the place of delivery, title will transfer and Seller will invoice Customer when the Products are shipped from Seller’s plant.  Unless stated otherwise, payment terms are 1% 10 days, net 30 days.  Seller retains a purchase money security interest under the Uniform Commercial Code in each state in which performance is to take place in the products sold until payment in full has been made.  Customer agrees to execute such financing statements and other documents as Seller may request in order to perfect Seller’s security interest. Additionally, Customer acknowledges that Seller will have a lien on tooling and/or other property owned by Customer which is in the possession of Seller to secure full payment of that portion of unpaid invoices not subject to valid dispute for Products made using such tooling and/or other property.

4. EXCUSE OF PERFORMANCE.  No liability shall result from delay in performance caused by circumstances beyond the control of the party affected, including, but not limited to, act of God, fire, flood, war, government action, accident, labor trouble or shortage, inability to obtain utilities, material, equipment or transportation.  Quantities so affected may be eliminated from this Agreement at the discretion of the party affected without liability.  Seller may allocate its available supply among its purchasers, including its businesses, but this Agreement shall remain otherwise unaffected.

5. FINANCIAL RESPONSIBILITY.  If at any time and for any reason the financial responsibility of Customer shall become unsatisfactory to Seller, Seller may require cash or satisfactory security on subsequent shipments or deliveries and such request will not affect Customer’s obligations to take or pay for the quantity of Products specified in this Agreement.

6. ADDITIONAL CHARGES.  Customer shall be responsible for the payment of any applicable taxes, charges or duties that may be levied by applicable government authorities.

7. DELIVERY & RISK OF LOSS.  Delivery shall be to Customer’s destination unless stated otherwise, and Risk of loss shall pass to Customer upon delivery (which includes delivery of drop trailer(s) to Customer’s destination, if applicable).  Customer shall be responsible for unloading all Products delivered to its selected destination, and shall complete the unloading as soon as possible after the trailer or railcar is available for unloading and shall be responsible for all demurrage charges incurred. Seller reserves the right to route all shipments of Products to be delivered by International Paper to Customer’s destination.  Notwithstanding the foregoing, for all export shipments the ownership and legal title to, benefit of possession and control over, and risk of loss and/or damage to the goods covered by this contract shall pass to Customer no later than arrival at the border or port of entry of the foreign country of destination.

8. WARRANTIES, LIMITATION OF LIABILITY.  Seller warrants to Customer that at the time of delivery: (i) the Products conform to the specifications agreed to in writing between Seller and Customer, and (ii) the Products are free of lawful liens and encumbrances.  THIS IS THE EXCLUSIVE WARRANTY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED.  Seller's liability and Customer’s exclusive remedy for any cause of action arising out of the supply of nonconforming Products, including negligence, is expressly limited to (a) replacement of nonconforming Products, or (b) payment in an amount not to exceed the purchase price of the specific Products for which damages are claimed, at Seller's option. Customer shall not be entitled to deduct the amount of any claim asserted against Seller from prices invoiced to Customer without Seller's written consent.  Neither party shall be liable to the other for any incidental, indirect, consequential, special, or punitive damages, including any damages for business interruption, loss of use, revenue or profits whether due to breach of contract, breach of any warranty, tort, or any other basis of liability.  This limitation shall not apply to the parties’ obligation to indemnify each other against third party claims described in following paragraph.  The parties do not intend there to be any third party beneficiaries of this agreement.

9. INSPECTION.  Customer shall have the right to inspect and reject any non-conforming Products within 30 days after delivery regardless whether the Customer has acknowledged receipt or paid for, or Seller has invoiced for, the Products.  Customer shall give notice of any rejected Products and set aside such rejected Products for 10 days so that Seller may inspect.  If the parties agree the Products are non-conforming, the non-conforming Products will be disposed of at Seller’s cost and direction.  If Customer does not reject within 30 days after delivery, Customer shall be deemed to have finally and unconditionally accepted such Products.

10. INDEMNITY.  Each party (an “Indemnitor”) agrees to indemnify the other and hold the other (including its affiliates, and their respective employees and representatives) harmless against any and all third party claims for damages, losses, fines, expenses, or costs of any sort, including attorneys fees (collectively, “Claims”), arising out of Indemnitor’s negligence or other tortious fault, except that Indemnitor need not indemnify with respect to that portion of a Claim resulting from the negligence or other tortious fault of the Indemnitee, 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.  Indemnitee shall as soon as reasonably possible after receiving notice of a third party Claim for which indemnity might be sought, notify the Indemnitor in writing, provided that the failure to notify shall not relieve the Indemnitor of its obligations except to the extent Indemnitor is prejudiced by untimely notice.  Each party will name the other as an additional insured with respect to the obligations arising under this Agreement. Customer will indemnify, defend, and hold Seller harmless from any claims arising out of the marks, graphics, patent numbers and references, and other graphics which Seller prints on the Products at Customer’s instruction.

11. WAIVER, SEVERABILITY.  The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of this Agreement or to take advantage of any of its rights shall not operate as a continuing waiver of such rights.  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.

12. ASSIGNMENT.  This Agreement is neither assignable nor transferable, in whole, or in part, without the prior written consent of the other party. A transaction in which there is a change in ownership of a majority of the voting shares or a change in a majority of the board of directors shall constitute an assignment for purposes of this paragraph.  

13. COMPLIANCE WITH LAW, GOVERNING LAW.  Each party shall comply with all applicable laws, regulations and ordinances and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.  This Agreement shall be governed by the laws of the State of Tennessee.  All notices shall be deemed sufficient if sent by U.S. mail addressed to the party at the place of business referred to above, with copy to 6400 Poplar Avenue, Memphis, TN 38197, Attn:  General Counsel - NAC.

14. MODIFICATION.  This Agreement may be modified or revised only in writing signed by authorized agents of the parties.

15. RESOLUTION OF DISPUTES.  In the event of a breach of this Agreement or a dispute as to the meaning of this Agreement, the parties agree to expeditiously attempt to resolve such dispute, If within 30 days after one party notifies the other in writing of the existence of a dispute the matter is unresolved to the satisfaction of either party, then the matter shall be resolved by arbitration in accordance to the rules of the American Arbitration Association, except as herein modified by the parties.  However, a claim for non-payment of Product invoices shall not be subject to this dispute resolution process.

North American Container     January 2017