1.1 – These terms and conditions apply to all quotations, offers and agreements concerning the sale and delivery of goods by us to a buyer.

1.2 – In these terms and conditions, a “buyer” is defined as all natural persons or legal entities, who, while acting as a buyer or prospective buyer, start negotiations with us and/or enter into a contract with us involving goods to be delivered, even if several natural persons or legal entities act jointly. The term “buyer” includes its successors, assignees and authorized representatives. References to “we”, “our” or “us” shall be interpreted as references to Accoya USA LLC.

1.3 – The applicability of any terms used by the buyer is explicitly excluded.  The buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the buyer that is inconsistent with these terms and conditions. Any other terms which are implied by trade, custom, practice or course of dealing are also explicitly excluded.

1.4 – Changes to these terms and conditions are only binding to if agreed in writing by authorized persons of both parties.

1.5 – In case of any conflicts between translations of the text of these terms and conditions, the English text shall prevail.

1.6 – Each party acknowledges that in agreeing these terms and conditions, it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these terms.

1.7 – In case of any conflicts between the provisions of any applicable distribution agreement between us and a buyer and the text of these terms and conditions, the provisions of any applicable distribution agreement shall prevail.

2.1 – All quotations, in any format, are without any obligation, unless, and to the extent that, we have confirmed in writing that the quotation is binding.

2.2 – The forwarding of a quotation and/or (other) documentation and/or samples does not oblige us to accept any order or to perform any delivery, unless otherwise agreed.

2.3 – A quotation is valid for a period of seven days from its date of issue.

3.1 – Each order or acceptance of a quotation for the purchase of goods by a buyer from us shall be deemed to be an offer by the buyer to buy goods subject to these terms and conditions. No order placed by the buyer shall be deemed to be accepted by us until a written order confirmation is issued by us or (if earlier) we have delivered goods to the buyer. An order confirmation issued by the authorized persons within our organization constitutes a binding agreement between us and the buyer.

3.2 – We are entitled to refuse an order without providing an explanation or to attach certain conditions to the supply of the goods. The fact that we have supplied goods to the buyer on any regular basis in the past will not lead to: i) the creation of an continuing performance agreement; ii) an agreement concluded for a specific duration, iii) any other agreement of any nature whatsoever, between the parties, iv) nor will it mean that we are obliged to accept new orders.

3.3 – Where our order confirmation is incorrect, written objections should reach us within seven (7) days of the date of the order confirmation. Thereafter the order confirmation shall be deemed accurate.

3.4  – Whether oral or written, additional arrangements or adjustments, representations, and/or promises made by our personnel, or made on behalf of us by our salespeople, agents, representatives or other affiliates, are only binding if, and to the extent that, these arrangements, adjustments and/or promises are confirmed in writing by the authorized persons within our organization.

3.5 – We shall at any time be entitled to terminate negotiations with a buyer and to withdraw any quotations that have been made before an agreement is entered into in accordance with these terms and conditions, without being held liable for any costs, expenses or damages of the buyer.

3.6 – If an agreement has come into effect according to the provisions of this section, the buyer is not entitled to cancel this agreement unilaterally.

3.7 – The buyer warrants that the information provided to us is correct and complete. Any failures in the delivery of goods by us that are the consequence of incorrect or incomplete information originating from the buyer cannot be attributed to us. The buyer shall be liable for any loss (including extra costs) that results from any such incorrect or incomplete information.

3.8 – Whenever required by us, the buyer shall provide its reasonable assistance to enable us to perform the agreement in accordance with our obligations in respect thereof.

4.1 – Unless otherwise agreed in writing, our prices are Ex Works (Incoterms 2020) from the “pick-up location” (further described at paragraph 6.1), in US dollars and exclusive of VAT (if applicable). Fluctuations in exchange rates shall be for the risk and account of the buyer.

4.2 – We may, by giving notice to the buyer at any time up to thirty (30) days before delivery, increase our prices to reflect any increase in the cost of the goods that is due to any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labor, materials and other manufacturing costs).

5.1 – We may invoice the buyer for the goods before, on or at any time after the completion of delivery.

5.2 – Payment in full is due within thirty (30) days of the invoice date and into the bank account specified by us on our order confirmation. The buyer does not have a right of suspension, set-off, deduction or withholding of or against any payment.

5.3 – Payment is considered to have taken place at the moment the amount due has been received into our bank account. All costs in connection with payment, including any costs of providing surety, shall be borne by the buyer.

5.4 – Payments made by the buyer will be applied first to settle any interest due, then to settle any collection charges and administration costs incurred by us, and last to settle any outstanding invoices/debts, starting with the settlement of the invoice/debt due for the longest amount of time.

5.5 – All invoices and claims shall be immediately payable by the buyer in the event that any of the following occurs in relation to the buyer:

• i. Buyer has not (fully or timely) fulfilled any obligation toward us; or
• ii. Buyer had requested a moratorium; or
• iii. Buyer has been declared bankrupt; or
• iv. Buyer gone into liquidation; or
• v. The buyer’s assets and/or claims are seized; or
• vi. Any event occurs, or proceeding is taken, with respect to the buyer in any jurisdiction to which it is subject that has an effect equivalent to the aforementioned events.

5.6 – In respect of any outstanding amounts the buyer has failed to pay in accordance with these terms and conditions, the buyer is required to pay interest at four percentage points (4%) in excess of the rate shown in the Wall Street Journal as the prime rate. Such interest shall accrue on a daily basis from the due date for payment of the invoice until payment of the overdue amount is made, whether before or after judgement. The buyer shall pay the interest together with the overdue amount.

5.7 – In the circumstances mentioned in paragraph 5.6, we also have the right to suspend the (further) performance of our duties for a maximum period of two (2) months and to take back unpaid goods or to terminate the agreement as well as any other agreements with the buyer without prejudice to our other rights or remedies. During the period of suspension, we have the right, and at the end of this period we must either elect to complete (further) performance of our obligations or to terminate the suspended agreement(s).

5.8 – We have the right to set off any and all claims and /or liability, irrespective of whether these are already due and payable, against any and all claims of the buyer.  Any exercise by us of our rights under this paragraph shall not affect or limit any other rights of remedies we may have under these terms and conditions.

5.9 – If in our reasonable opinion the creditworthiness of the buyer is in doubt, we have the right to i) request cash on delivery, in which case the delivery costs have to be paid by the buyer, or ii) to demand any (further) security or collateral in order to satisfy the buyer’s payment and other obligations, including, but not limited to, a non-possessory pledge on assets that are to be indicated by us. If the buyer is unwilling to or incapable of providing the requested security, we are entitled to terminate the agreement, without prejudice to our other rights and without being obliged to pay any damages whatsoever.

6.1 – Unless otherwise agreed in writing, delivery takes place Ex Works from the “pick-up location” notifed by us to the buyer at the point the goods are made available to the buyer (including any person sent by the buyer to take possession of the goods.) At the moment the goods leave our pick-up location, the risk of loss or damage to the goods passes on to the buyer. The buyer is obliged either to check at the moment of delivery whether the delivered goods or packaging thereof show a deficit or any visible damage, or to check the goods directly after the buyer has been informed by us that the goods are at its disposal. Where goods are stored in our warehouse at the request of a buyer, risk of loss or damage is with the buyer from the point of such request.

6.2 – Possible deficits or damages to the delivered goods and/or the packaging, which have been discovered at the moment of delivery, are to be mentioned by or on behalf of the buyer on the delivery note or the invoice and/or the transport documents. We will not be liable for any defect and/or damage which is not notified to us in accordance with this paragraph 6.2.

6.3 – Unless otherwise specifically agreed on our order confirmation, the buyer shall accept weights or quantities varying up and until 5% from the contract weight or quantity and shall pay pro-rata for the actual weight or quantity delivered.  The weight or quantity stated on our order confirmation shall be conclusive evidence of the weight or quantity delivered.

6.4 – We are entitled to deliver the goods by installments, which may be separately invoiced.  In such event, the buyer is obliged to pay in accordance with paragraph 5 of these terms and conditions in respect of each invoice.

6.5 – All sales of Accoya® wood are subject to our Grading Specifications that detail acceptable sale quality and specifications of Accoya® wood. Our Grading Specifications are available on www.accoya.com or upon request.

6.6 – Any dates and/or times quoted for delivery are approximate only and the time for delivery is not of the essence. The date or time given is never to be considered as a deadline, unless this is explicitly agreed otherwise in writing.

6.7 – We are not liable to pay any compensation or damages to the buyer if delivery is delayed. If delivery is delayed repeatedly, the buyer is entitled to demand delivery within a reasonable timeframe.  If we do not deliver the goods within such reasonable timeframe, the buyer has the right to terminate the agreement, except when we cannot deliver because of force majeure as defined at paragraph 9.3.

6.8 – Notwithstanding paragraph 6.7, we are not liable for any damage or loss caused by late delivery by our suppliers to us.

6.9 – Any special packaging requirements by the buyer will incur a non-refundable additional charge.  Tariffs and other conditions connected to the provision of packaging materials will be incorporated into our offer.

6.10 – If delivery cannot take place due to circumstances which are attributable to the buyer, we are entitled to charge the buyer for the costs arising from such delay.

7.1 – Subject to paragraph 7.2, the buyer shall collect the goods from the pick-up location as specified by us. Any specific instructions from the buyer in respect of the transport, packaging or insurance will be carried out at the buyer’s expense and risk.

7.2 – The parties may agree for us to arrange the means of transport, packaging, and insurance. Where this is agreed, the transport, packaging and insurance will be determined by us acting with due care, without accepting any liability whatsoever and will be at the buyer’s expense and risk, even if the carrier demands that consignment notes, road waybills, etc., contain the provision that all damages and losses related to the transport are at the expenses and risk of the sender.

7.3 – If the buyer does not collect the goods within five (5) business days of us sending a notification to the buyer that the goods are ready for collection, we will arrange transport, packaging and insurance at the buyer’s sole cost and risk. We will invoice the buyer for these costs, plus an additional charge of 5%.

8.1 – Title of the goods delivered remains with us until the buyer has fulfilled all of its payment obligations pursuant to the agreement on which the delivery was based, including possible losses and damages, costs, interest and penalties. Until title has passed to the buyer, the buyer shall:

(a) hold the goods on a fiduciary basis as our bailee;

(b) store the goods (at no cost to us) separately from all other goods of the buyer or any third party in such a way that they remain readily identifiable as our property;

(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the goods;

(d) maintain the goods in a satisfactory condition, ensure the goods shall at all times be stored dry, cool, frost free, in the original packaging and keep them insured on our behalf for their full price against all risks to our reasonable satisfaction. On request the buyer shall produce the policy of insurance to us; and

(e) not grant security or quasi-security to any third party in respect of the goods.

8.2 – If the buyer defaults in paying any due sum, we are entitled to take back all unpaid delivered goods. The buyer authorizes us to have the goods returned at its expense.  Furthermore, the buyer authorizes us, as well as any representatives appointed by us, in advance to enter its premises, warehouses, land, factories, building sites or similar in order to enable us to retake possession of the goods.

9.1 – Our duty to perform our obligations shall be suspended during the period in which we are unable to perform due to force majeure and, for the avoidance of doubt, we are not in breach of these terms and conditions nor liable for delay in performing, or failure to perform, any of our obligations under these terms and conditions if such delay or failure is a result of a force majeure event.

9.2 – Inability to perform shall also include the situation in which the performance is seriously impacted.

9.3 – ‘Force majeure’ means any circumstances beyond our control, which include, but are not limited to, the following: act of god, a shortage on the market of necessary (raw) materials and/or manpower, labor conflicts, pandemic or epidemic, war, war risks, civil war, rioting, fire, earthquake, water damage, flooding, strikes, plant occupation, lockout, import and export impediments, measures by government or statutory bodies or equivalent entities, machine defects, failures in the delivery or timely delivery of the necessary (raw) materials, water and/or energy to our company.

9.4 – Force majeure shall also include the circumstances mentioned under paragraph 9.3 affecting any third parties from whom we receive materials, services, research reports, samples, calculations etc. necessary for the production of our products.

9.5 – Force majeure shall also include the situation in which the circumstances mentioned under paragraph 9.3 occur in relation to the storage or transport of goods, whether or not carried out under our own management.

9.6 – If as a result of force majeure the suspension of our performance of the agreement or a part of it lasts longer than three (3) months, either party has the right to terminate the agreement, by giving the other party not less than fourteen (14) days’ written notice. Neither party in that case shall be obliged to pay any compensation to the other party. Any advance payments will be refunded, provided that the buyer will pay for our performance until the day of termination or (as the case may be) any performance will be set-off in accordance with the invoice amount agreed.

10.1 – Subject to paragraph 10.2, we shall not in any respect be liable or obligated for or to suit, claim, liability, cost or expense, including without limitation attorneys’ fees, for damage to persons, equipment, goods, or other property, loss of production, time or profit or any other damage or loss whatsoever, arising out of any suits or claims resulting from or relating to buyer’s sale of goods, and buyer shall indemnify, defend, and hold us harmless and our shareholders, directors, officers, employees, agents and affiliates from and against any of the foregoing, unless such claims or damages are proven, in a court with competent jurisdiction, to be due to our willful misconduct, and then only to the extent of damages described herein.

10.2 – Nothing in these terms and conditions limits any liability which cannot legally be limited.

10.3 – We are not liable for direct or indirect damage or loss, trading losses, construction delays, loss of goodwill, or other consequential losses, irrespective of whether a party has been advised of the possibility of such damages, nor are we liable for damage or loss resulting from any liability towards third parties, caused by our personnel or other persons employed by us within the scope of the performance of the agreement (as far as they are not in charge of this performance.) This exclusion includes intentional acts and gross negligence.

10.4 – Notwithstanding any language or provision herein to the contrary, buyer’s exclusive remedy and our total liability is at all times limited to the net invoice amount of the delivered goods.

10.5 – If any goods sold by us to the buyer were obtained from third parties, our total liability to the buyer in respect of or arising from those third party provided goods is limited to the extent the third party is liable to us.

10.6 – We shall have no liability whatsoever on the grounds of infringement of patents, licenses, or other third party rights as a result of the use of the information and goods provided by us or on behalf of us to the buyer.

10.7 – In relation to the goods delivered by us, the buyer fully indemnifies us against all claims of third parties related to the damage or losses in respect of which we have excluded and/or limited liability.

10.8 – We are not liable for any defects, damage or loss where our written instructions and/or guidelines for installation or use of our product are not adhered to.

10.9 – EXCEPT AS PROVIDED HEREIN AND IN THE APPLICABLE CERTIFICATE OF WARRANTY, WE HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY SERVICES WARRANTIES OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.

10.10 – This paragraph 10 shall survive the delivery, use, and application of the goods.

11.1 – Without prejudice to the other provisions of these terms and conditions, and subject to paragraph 6.2, all complaints related to any defects have to be submitted in writing to us within thirty (30) days after discovery of the defect and in accordance with Certificate of Warranty under which the goods are sold.

11.2 – The Buyer’s sole and exclusive remedy in the event of any defect will be the Certificate of Warranty.

11.3 – Complaints related to invoices have to be submitted within eight (8) days of the date of the invoice.

11.4 – After the expiry of the time limits mentioned in paragraphs 11.1. and 11.3, the buyer will have no entitlement to any remedy.

11.5 – Complaints related to defects in delivered goods will be dealt with in accordance with the Certificate of Warranty.

11.6 – Under no circumstances does the submission of a complaint by the buyer discharge the buyer from fulfilling its payment obligations towards us.

11.7 – Delivered goods can only be returned after we have given written consent. Transport and all costs thereof are at the expense of the buyer, unless otherwise agreed in writing.

If the buyer consists of more than one natural person or legal entity, all natural persons and legal entities are jointly and severally liable for the performance of the obligations of the buyer.

Without prejudice to the provisions of paragraph 11, we shall not be liable for any claim, irrespective of whether such claim is based on an agreement or statute, unless legal action is commenced within one year of the date on which the cause of action arises. After expiry of the one year period we shall have no liability in respect of any claim and any legal action is barred.

14.1 – The buyer shall be required, at all times, to keep secret and confidential any and all information, materials, goods and samples which are not publicly available that it has obtained from us both before or during the course of our relationship and shall not use any of the foregoing for any purpose other than pursuant to a written agreement with us.

14.2 – The buyer shall, in the use of the information that has come to its knowledge, observe the greatest possible care. The buyer shall not, without our prior written consent, copy the relevant information and/or documentation.

14.3 – The buyer shall require its employees to maintain secrecy with respect to all information of a confidential nature as referred to in paragraph 14.1 and with respect to our activities. This obligation, and the obligations set out in paragraph 14.1 and 14.2 above, shall apply both during the term of the agreement and shall survive the termination or expiration of the agreement.

14.4 – The buyer and its employees shall, at the end of the agreement, return to us any and all information (or securely destroy at our request) received from us pursuant to the agreement.

14.5 – The buyer shall during the term of the agreement, as well as during a period of two years after the end of the agreement, refrain from entering into any direct or indirect contractual arrangements with our employees, unless we provide prior consent in writing.

15.1 – We retain full ownership of all information and all intellectual and industrial property rights (and the right to obtain patents, registered designs, design rights, copyright, trademarks and any other intellectual property rights), including modifications or improvements thereto, with regard to all that has been or is being delivered and/or developed by us or by third parties during or prior to the agreement between us, including, but without limitation price lists, reports, recommendations, samples, calculations, brochures, designs, sketches and drawings, production processes, know-how, technical information and any information obtained from analysis or testing of any products, samples or materials provided by us. The buyer is required to return or destroy such data upon our request, with carriage paid by the buyer.

15.2 – The buyer shall not contest or dispute any of our intellectual and/or industrial property rights nor attempt to register one or more of these rights or otherwise try to obtain protection of these rights in its favor.

15.3 – The buyer shall do all such acts and things and sign such agreements and documents as shall be necessary in order to give effect to this paragraph 15.

16.1 – No failure or delay by a party to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.2 – If any provision or part-provision of these terms and conditions, or of any other agreement between us and the buyer, is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this paragraph shall not affect the validity and enforceability of the rest of these terms and conditions.

17.1 – The buyer will, and will procure that its officers, employees, agents and subcontractors, comply with all applicable laws, statutes, regulations and codes relating to anti-bribery, anti-corruption and anti-tax evasion (“Anti-Bribery Laws”), together with all applicable laws, statutes, regulations and codes relating to anti-slavery and human trafficking (“Anti-Slavery Laws”) and all applicable laws, statutes, regulations and codes relating to fraud detection and prevention (“Anti-Fraud Laws”), and shall have and maintain its own policies and procedures to promote anti-bribery, anti-corruption, anti-tax evasion, anti-slavery, anti-human trafficking and fraud detection and prevention and such policies and procedures shall ensure compliance with the Anti-Bribery Laws, Anti-Slavery Laws and Anti-Fraud Laws and the buyer will enforce them where appropriate. The buyer further warrants that it is not aware of any bribery, corruption, tax evasion, fraud, slavery or human trafficking practices within its business or supply chain.

17.2 – We may terminate any agreement between us and the buyer immediately by giving written notice to that effect to the buyer if the buyer is in breach of this paragraph 17, without any liability towards us and the buyer shall be responsible for and indemnify us for any damages, claims or losses incurred by us as a result of buyer’s breach of paragraph 17.

17.3 – We are committed to acting with integrity in the way we conduct our business and require the buyer to know of, understand and abide by all applicable laws and regulations in the countries in which they conduct business.

18.1 – The law of the State of Tennessee is applicable to these terms and conditions, with the exclusion of the Convention on International Sale of Goods 1980.

18.2 – Concerning the interpretation of international commercial terms, the “Incoterms 2020” as compiled by the International Chamber of Commerce in Paris (I.C.C.), are applicable.

19.1 – All disputes or claims arising out of or in relation to this agreement or the legal relationship between us and the buyer shall first be the subject of negotiation between the parties in good faith.

19.2 – If the parties are unable to resolve the dispute through negotiation with thirty (30) days, then we have the right at our sole discretion to elect arbitration as the dispute resolution forum for the dispute. Such election by us is to be made within fourteen (14) days of the expiry of the thirty (30) day period for negotiation. The buyer agrees to these rights.

19.3 – Subject to paragraphs 19.1 and 19.2, and provided that we have elected to arbitrate and the fourteen (14) day period referred to at paragraph 19.2 has elapsed, any dispute, claim or controversy arising out of or relating to this agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Atlanta, Georgia USA before three arbitrators and administered by JAMS in accordance with its Comprehensive Arbitration Rules. The language of the arbitration will be English. Within fifteen (15) days of the commencement of arbitration, each party shall select one person to act as arbitrator, and the two so selected shall select a third arbitrator within thirty (30) days of the commencement of the arbitration. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator within the allotted time, the third arbitrator shall be appointed by JAMS in accordance with its rules. All arbitrators shall serve as neutral, independent and impartial arbitrators. Judgment on the award may be entered in any court having jurisdiction. This paragraph shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In any arbitration arising out of or related to this agreement, the arbitrators shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrators determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrators may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.

19.4 – Subject to paragraphs 19.1 and 19.2, if we make no election within the fourteen (14) day period referred to at paragraph 19.2, either party may submit the dispute to the courts of the state of Tennessee which have exclusive jurisdiction.

The parties hereto agree and stipulate that neither party is to be construed as acting as an agent or representative of the other in any dealings that either may have with any other person, firm, or corporation, and that neither party has the power to act for or to legally bind the other in any such transaction or transactions.