Terms and Conditions

General

These terms and conditions of sale (“terms and conditions”) constitute a legal document (“sales contract”) between you (“buyer”) and Matra Americas, LLC (“seller”). Please read this agreement carefully. By using and accessing the Matra Americas, LLC web site, you indicate that you have read and understand this agreement and agree to be bound by this agreement. If you do not accept this agreement, do not access and use the Matra Americas, LLC web site. Please note that the terms and conditions may be periodically updated and modified, so please be sure to recheck them. By accessing and using the site, you accept, without limitation or qualification, the present terms and conditions. You also agree to so accept future updates and modifications of the terms and conditions.

These terms and conditions apply to buyer’s purchase of products and services (collectively, “products”) from seller, each of which is identified in the applicable price quotation, credit application, proposal, order acknowledgment or invoice. These terms and conditions shall apply to all contracts for the sale of products by the seller to the buyer to the exclusion of all other terms and conditions including any terms or conditions which the buyer may seek to apply under any purchase order, order confirmation or similar document.

Seller incorporates by reference the General Conditions of Sale of Paper and Board Manufacturers in EEC, as recommended by the European Federation of the Pulp, Paper and Board Industry (“CEPAC Terms & Conditions”). In the event of any conflict, inconsistency or ambiguity between these terms and conditions and the CEPAC Terms & Conditions, these terms and conditions govern and control.

1. Payment

Payment terms are net thirty (30) days from date of invoice. If payment is not received by the due date, invoices are considered past due. Past due payments will be subject to a service charge of one and one-half-percent (1 ½%) per month or the maximum amount allowed by law, whichever is less.
Payment shall be made by: ACH, Wire Transfer, Certified Checks, Company Checks and Personal Checks. All payments (checks) should be sent to: MATRA AMERICAS, LLC, 200 Broadhollow Rd, Suite. 207, Melville, NY 11747. Buyer’s name must be bank imprinted on the check with the correct address and telephone number. Should the Buyer’s check be dishonored for any reason, Buyer agrees to pay all collection costs, including legal fees, if applicable.
If Buyer is delinquent in paying any amount owed to Seller by more than ten (10) days, then without limiting any other rights and remedies available to Seller under the law, in equity, or under the contract, Seller may: (i) suspend production, shipment and/or deliveries of any or all products purchased by Buyer; (ii) by notice to Buyer, treat such delinquency as a repudiation by Buyer of the portion of the contract not then fully performed, whereupon Seller may cancel all further deliveries without incurring any liability whatsoever to the Buyer and any amounts unpaid hereunder shall immediately become due and payable; and/or (iii) require payment in advance of delivery in relation to any Products not previously delivered.
If Seller retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including reasonable attorney’s fees, shall be payable by Buyer.
Buyer hereby represents to Seller that Buyer is now solvent and agrees that each acceptance of delivery of the Products sold hereunder shall constitute reaffirmation of this representation at such time.
Buyer is to procure commercial credit insurance coverage in sufficient amount to protect Seller against losses for non-payment of the contract price. Buyer is aware that such insurance represents an essential element of the sales contract, and at Seller’s request, will provide evidence of such coverage.
The Buyer may not withhold payment of any invoice or other amount due to the seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever.

2. Description

Any description given or applied to the Products is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.

3. Sample

Where a sample of the Products is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so far as to constitute a sale by sample.

4. Shipments and Delivery

Unless otherwise agreed in writing, delivery of the Products shall take place at the address specified by the Buyer on the date specified by the Seller. Seller will deliver the Products within a reasonable time after receipt and acceptance of Buyer’s purchase order, subject to the availability of the Products.
The Buyer shall make all arrangements necessary to take delivery of the Products whenever they are tendered for delivery. The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract and while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Buyer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery date stated.
If the Seller is unable to deliver the Products for reasons beyond its control, then the Seller shall be entitled to place the Products in storage until such time as delivery may be effected and the Buyer shall be liable for any expense associated with such storage.
If the Buyer fails to accept delivery of Products on the delivery date or within 3 days of notification that they are ready for dispatch whether prior to or after the delivery date, the Seller reserves the right to invoice the Products to the Buyer and charge him therefore. In addition, the Buyer shall then pay reasonable storage charges or demurrage as appropriate in the circumstances until the Products are either dispatched to the Buyer or disposed of elsewhere.
The Seller shall be entitled to deliver the Products by installments, and where the Products are so delivered, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat any other related contract as repudiated.
Where the Buyer requires delivery of the Products by installments, rescheduling requires the Seller’s written agreement. Each delivery shall constitute a separate contract and failure by the Buyer to pay the Price in respect of any installment shall entitle the Seller to treat any other related contract as repudiated in addition to any other rights of the Seller pursuant to these Terms and Conditions.
Unless the parties otherwise agree in writing or as otherwise specified herein, all shipments of the Products for delivery: (i) in the United States will be at DDP terms, and (ii) in Canada, at DAP. As used herein, the terms “DDP” and “DAP” have the meanings accorded under ICC INCOTERMS 2010.

5. Packing

The usual packaging materials such as paper, wood, board (including board cores) are not returnable.
If more costly packaging is required and this packaging is reusable, it will be necessary to make a special agreement concerning its return
For special packs such as wooden crates, cylindrical packaging for reels, full trays, special cores etc., any extra expense involved will be invoiced to the buyer.

6. Weight to Be Invoiced

Papers and boards in reels: Reels of all grades are invoice at the gross weight (its weighed weight), including paper and board, wrappings, core and usual strapping.
Paper in uncounted sheets and sheets of board: These, whether delivered in parcels or on pallets, are invoiced at the gross weight (its weighed weight) including paper or board and usual packaging materials.
Paper in Counted Sheets: The packaging unit for paper in counted sheets is invoiced at nominal weight, this to the product of basis weight ((grammage per m2) actually ordered and the area of the number of sheets in the packaged unit.
In order to take account of the weight of the packaging, a widely accepted practice is to add 2 % to the weight obtained by the above calculation, round off the result to the nearest hectogramme above and invoice accordingly.

7. Force Majeure

Seller shall not be responsible for any claims or damages resulting from a delay in delivery or failure to perform which results from: governmental regulations, strike, lockouts, accident, fire, delays in manufacturing, transportation, acts of God, war, insurrection, riots, shortages of labor, energy, raw materials, production facilities, transportation or any other causes beyond the control of Seller. In case of partial or complete destruction of Products, Seller is excused unless destruction is due to Seller’s own negligence. Where delays or failures ae caused by labor difficulties, seller will not be obligated to seek or obtain settlement that, in seller’s sole judgment, is not in seller’s best interest.

8. Cancellation, Modification or Alteration of Sales Contract

Cancellation, modification or alteration of all or part of any order are subject to Seller’s prior written consent for each such event. If Seller authorizes cancellation, modification or alteration, Buyer agrees to pay to Seller all expenses incurred and damages sustained by Seller resulting directly or indirectly from such cancellation, modification or alteration, plus liquidated damages equal to 2% of the contract price between Seller and Buyer.

9. Right of Inspection; Rejection

As used herein, “nonconforming products” means only the following: (i) the items shipped are different from those identified in Buyer’s purchase order; or (ii) the labels or packaging of the Products incorrectly identifies them.
Buyer shall have the right to inspect the Products on arrival and will have ninety (90) days from receipt of the goods, at which point the Products will be deemed to have been accepted by Buyer, unless the Buyer notifies the Seller in writing of any nonconforming products and furnishes to the Seller written evidence thereof or such other reasonable documentation as may be requested by Seller. At a minimum, such notification to Seller must include Seller’s invoice number and Buyer’s purchase order number.
If Buyer timely and properly notifies Seller of any nonconforming products, Seller at its option may (i) replace the nonconforming products with conforming products; or (ii) credit or refund the purchase price for the nonconforming products, together with any reasonable shipping and handling expenses incurred by Buyer. At Seller’s request, Buyer will dispose of, or return, the nonconforming products, at Seller’s expense.
Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for Seller’s delivery of nonconforming products and except as set forth herein, Buyer has no right to return the Products to Seller without Seller’s written authorization.

10. Indemnification

Buyer agrees to defend, indemnify, and hold harmless Seller and its respective directors, officers, shareholders, and employees from any loss, damage, injury, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees, duties, levies or expense (including reasonable attorneys’ and professional fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) which Seller actually incurs, suffers or becomes liable for as a result of or in connection with the negligence or willful misconduct of Buyer or its employees or agents arising from, or related to: (i) any misuse or modification of the Products by Buyer or its employees or agents; (ii) any act or failure to act by Buyer or its employees or agents in derogation of any safety procedures or instructions that Seller provides to Buyer, or (iii) the failure to store, maintain or utilize the Products in accordance with Seller’s instructions.
Seller shall give Buyer prompt written notice of any claim, suit or demand which it believes will give rise to indemnification by Buyer under this Section; provided, however, that the failure to give such notice shall not affect the liability of Buyer hereunder. Except as hereinafter provided, Buyer shall have the right to defend and to direct the defense against any such claim, suit or demand, in its name or in the name of Seller at Buyer’s expense and with counsel of Buyer’s own choosing, which counsel shall be reasonably satisfactory to Seller. Seller shall, at Buyer’s expense, cooperate in the defense of any such claim, suit or demand. If Buyer, within a reasonable time after notice of a claim, fails to defend Seller, Seller shall be entitled to have separate counsel undertake the defense and compromise or settle such claim at the reasonable expense of and for the account and risk of Buyer. Buyer will not, without Seller’s written consent (not to be unreasonably withheld or delayed), settle or compromise any claim or consent to any entry of judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to Seller a release from all liability in respect of such claim. No right or remedy conferred in this Section is intended to be exclusive of any other right or remedy available, now or hereafter at law or in equity or otherwise, to the Parties.

11. Limitation of damages

In no event shall Seller be liable for (i) special, indirect, consequential, or punitive damages including but not limited to labor costs incurred by the Buyer or (ii) any damages whatsoever resulting from loss of use or profits arising out of or in connection with the Products sold hereunder. In no event shall Seller’s liability exceed the purchase price of the Products in question. Nothing contained in these Terms and Conditions shall be construed to limit or exclude the liability of the Seller for death or personal injury as a result of Seller’s gross negligence or that of its employees.

12. Construction

The paragraph and section headings are for the convenience of the parties and in no way alter, modify, amend, limit, or restrict the contractual obligations of the parties. The parties intend that each paragraph and section contained herein shall have independent significance.

This agreement shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to the conflict of law provisions of such state). Buyer and seller irrevocably consent to the jurisdiction of the federal and state courts located in New York County with respect to any action, suit or proceeding brought arising under this agreement.

14. Arbitration of Disputes

Except as otherwise provided, any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial and Arbitration Rules and Mediation Procedures and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. Any such arbitration shall take place in the State of New York.

15. Assignment

This agreement may not be assigned by either party without the written consent of the other party.

16. Entire Agreement

This agreement represents the entire understanding and agreement between the parties with respect to the subject matter hereof and, therefore, supersedes all prior negotiations between such parties and cannot be amended, supplemented or changed orally, but only by an agreement in writing.

17. Severability

The invalidity or unenforceability of one or more of the provisions of this agreement shall not affect the validity or enforceability of any of the other provisions hereof or thereof, and this agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.

18. Non-Waiver

The failure of either party to insist in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this agreement and to exercise any right hereunder, shall not be construed as a waiver or a relinquishment of the future performance of any such term, covenant, or condition or the future exercise of such right, but the obligation of the other party with respect to such future performance shall continue in full force and effect. No waiver of any claim or right arising under this sales contract will be effective unless the waiver is in writing and signed by the waiving party.

19. Attorney Fee Provision

In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this contract or seeks a declaration of any rights or obligations under this contract, the prevailing party shall be awarded reasonable attorney fees, together with any costs and expenses, to resolve the dispute and to enforce the final judgment.