GENERAL TERMS AND SALES CONDITIONS

GENERAL TERMS AND SALES CONDITIONS

1. General

1.1 LISTIMBER UNIP. LDA is herein referred to as the “Seller” or ‘TRADINGTIMBER’, and the customer or person or entity purchasing goods from the Seller is referred as the “buyer”.

1.2 These General Terms and Conditions of Sale (hereafter these “Conditions”) govern the entire agreement between Buyer and Seller (hereafter the “Parties”) regarding all deliveries of goods and services (hereafter the “Goods”). These conditions prevail over any other general terms and conditions, including those of Buyer. Only the special terms expressly agreed in writing between the Parties (hereafter the “Special Terms) may have precedence over these Conditions and may complete them.

1.3 These Conditions apply to all transactions between Seller and Buyer, including subsequent transactions, even those where reference to the Conditions is not expressly stated. The same will also apply where Buyer, in connection with subsequent orders, makes reference to its own general terms and conditions.

1.4 This contract cannot be cancelled after delivery of the first documents relating to the issue of the goods.

2. Conclusion of the Agreement

2.1 Each accepted order normally takes the form of a summary contractual document issued by LISTIMBER, LDA that contains the following Special Terms (without being exhaustive): contract number; Seller and Buyer identification; goods quantity and description; origin and quality; specifications; price; cost sharing and passing of risk (unless the use of an ICC Incoterm 2010 is specified; type of packing; estimated date of shipment; port of loading; destination; consignee identity (unless the bill of lading is consigned “to order”); insurance clause (in the absence of an Incoterm);payment date; banking correspondents of the parties. Any information missing from the Special Terms is supplemented, as required, by the terms stated in these Conditions.

2.2 The contractual document referenced in subparagraph 2.1 with its special terms, added to these Conditions, constitute the entire contract of sale (the “Agreement”) between Seller and Buyer.

3. Prices

3.1 The agreed price corresponds to the amount expressly quoted for each accepted order. When the order is not performed within six-month period, an upward revision of the prices may occur in case of any event causing an increase in Seller’s costs, unless the delay is attributable to the Seller. Under this subparagraph 3.1, prices can never be revised downward, even in adverse market conditions.

3.2 The price is determined on the basis of taxes, tariffs and duties, and freight rates applicable in the country of Seller or the country of origin of the Goods, in such manner that any increase or reduction of these taxes, tariffs and duties or rates at the time of performing the transaction will be applied to the detriment or in favour of Buyer.

3.3 Prices quoted do not include Value Added Tax or any other sales, tax, the Value Added Tax, import tariff or any other similar tax or custom duty charged at the rate prevailing on the date of the invoice.

3.4 Without prejudice to a non-breaching Party’s right to recover damages from the Party shall bear its own bank charges.

3.5 The invoice may be issued by Seller as from the receipt of the goods by the carrier, it being specified that the date of receipt shall be determined in accordance with the receipt for shipment given by the transporter.

4. Payment terms

4.1 Unless otherwise expressly agreed in writing, the payment procedure is Cash Against Documents, meaning that intermediary or representative of Seller shall release title documents for the goods to Buyer upon payment in cash. This solution also applies when a documentary credit providing for sight payment is put in place. In any case, payment shall not be considered as made until any and all cheques or wire transfers by which payment is to be effected have been cleared or honoured.

4.2 When Seller, contrary to 4.1m expressly accepts that the transaction is executed by way of a documentary credit providing for deferred payment or a negotiable instrument (bill of exchange or draft), the Special Terms shall define the agreed interest rate to cover the term of payment. In absence of any provision in this respect, the interest rate provided in 4.3 shall apply if the payment period is greater that thirty says as of the invoicing date.

4.3 Any purchase unpaid in whole or in part by the due date shall bear interest in favour of Seller from the due date to the date of full payment. In the absence of any express provision relating to the date of payment, interest for late payment shall begin to run from the thirtieth day following the invoicing date. Except as otherwise expressly provided on the Special Terms, the letter of credit or financial instrument, interest for late payment shall be equal to the interest rate applied by the European Central Bank to its main refinancing operation carried out before the first calendar day of the half-year in question, plus ten percentage points, with monthly accumulations, without prejudice to any other remedies available to Seller.

5. Navigation (transport/ freight/ shipment)

5.1 Unless otherwise specified in the Special Terms, the carriage and transport of the Goods shall be free on board (FOB Incoterms 2010), meaning costs of whatever nature incurred in placing the Goods upon the ship be borne by Seller, ich also shall be responsible for any and all export duty. Until the Goods are actually on board all risks and liabilities with respect to the Goods shall remain with Seller, as further defined in 7.1.

5.2 Should the carrier, unpaid by Buyer embargo Goods or claim to exercise any retention right having this effect, this impossibility for Buyer to take possession of Goods shall not exonerate the latter from his obligations towards Seller. In particular, Buyer shall pay Seller the purchase price under the terms and conditions set forth in the Agreement. All costs incurred in connection with storing the Goods, including redress for any loss that might be caused by depreciation of or damage to the Goods, shall be borne by Buyer in the event that, in the absence of payment of the purchase price and by application of the retention of a title clause or cancellation of the Agreement for default of payment, Seller retains or regains title to the  Goods.

6. Delivery

6.1 Unless otherwise agreed, delivery dates are approximate only and are subject to confirmation by Seller at time of shipment. Shipping shall be left subject to unavoidable delays caused by material shortages, constraints due to local haulage conditions or production planning, or Force Majeure as defined in Article 11. Any delay in delivery due to the above-mentioned causes shall not, under any circumstances, give Buyer the right to cancel the order or claim any compensation. In such a case Buyer shall, upon notice by Seller that shipping is delayed, specify the extension he grants, which will be not less than 30(thirty) days. However, any delay exceeding eight months announced by Seller shall entitle Buyer to cancel its order.

6.2 By exception, in case a sale with main carriage paid by Seller (“C”-term sale), or a sale “Arrival Term” (“D” – term) is expressly concluded in the Special Terms, Buyer shall notify Seller of a delivery point that shall be an entry port, or an inland location with a clear access and safe hard road, at least 30(thirsty) days before delivery scheduled. Buyer is in charge of unloading the Goods forthwith when tendered at the delivery point. All deliveries stipulated at Buyer’s premises are curb side deliveries in the sense that Buyer is required to meet the delivery truck in front of his establishment and is responsible for receiving the product from the truck. Seller reserves the right to charge Buyer for any additional costs caused by conveyance between the port of entry and Buyer’s premises, delay of off-loading, diversion, or return of Goods.

6.3 If Buyer fails to receive the Goods on the agreed date, Seller shall be entitled to charge Buyer for the costs of Goods storage, without prejudice to the Seller’s right to recover interest for late payment from Buyer, under Article 4 of these Conditions.

7. Transfer of Risk and Retention of Title

7.1 Expect as otherwise provided in Special Terms, Buyer must bear all risks of loos or damage to the Goods from the time they have passed the ship’s rail at the named port of shipment, according to FOB Incoterms 2010. Buyer is advised to subscribe to na insurance against risk and/or loss during transit.

7.2 TITLE TO THE GOODS SHALL REMAIN WITH SELLER AND SHALL NOT PASS TO BUYER UNTIL PAYMENT IN FULL FOR THE SAME HAS BEEN RECEIVED BY SELLER. Risk in the Goods shall remain with Buyer at all times, according to the above-mentioned provisions or the Incoterm specified in the Special Terms, unless Seller retakes possession of the Goods in accordance with this clause, Until the Goods have been paid for in full Buyer must segregate and store he Products in such manner as to clearly indicate that they are the propriety of Seller. If Buyer intends to sell or otherwise dispose of the Goods or any part thereof before full payment has been received by Seller, Buyer shall obtain Seller’s prior written consent thereto, after he has advised Seller in writing specifying full details of the Goods to be sold or disposed, to whom they would be sold or disposed, the intended terms of such sale or disposal and the amount (s) received or receivable by Buyer.

8. Non-conforming goods or delivery

8.1 The Goods delivered shall meet the criteria of quantity, quality and description specified in the accepted order, provided that (i) Seller may adjust the delivery quantity ten percent upward or downward, except as otherwise provided, and (ii) timbers or logs are measured and classified according to the ATIBT (Association Technique Internationale des Bois Tropicaux) rules.

8.2 The warranty stipulated in 8.1 shall only cover the quality requirements and standards for Goods expressly agreed by ALL OTHER EXPRESS OR IMPLIED TERMS, CONDITIONS, WARRANTIES OR REPRESENTATIONS WHATSOEVER IN RESPECT OF LISTIMBER WITH REGARD TO THE GOODS, OR ANY RELATED INFORMATION OR SERVICE, ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

8.3 Goods are inspected and approved, or regarded as such, at the port of departure. However, Buyer is responsible for inpecting the Goods upon delivery or opening the container, and for then verifying quantities of Goods received. In case any Goods are delivered in damaged condition or in insufficient quantities, Buyer must notify in writing the carrier and Seller within three (3) days of delivery and describe precisely the nature of the claim. This claim shall not exempt Buyer from paying in full the purchase price. In the event the claim submitted in time s well-founded and accepted by Seller, the Parties shall agree on the procedures for carrying out, in good faith, the appropriate solution depending on the nature of the complaint.

8.4 Any claim regarding hidden defects or hidden non-conformities shall be notified to Seller in writing at the latest ten (10) days after the earlier to occur of either the date on which the defect or non-conformity has become apparent or the date in which Buyer has become aware of it. Any legal action against Seller must be instituted within (6) months after the claim was submitted, after which no legal proceeding can be initiated. THERE IS NO GUARANTEE AGAINST HIDDEN DEFECTS, WHN BUYER IS A PROFESSIONAL OF THE SAME SPECIALITY AS SELLER.

8.5 Seller shall not be liable, whether in contract, tort, negligence, breach of statutory duty or otherwise for loss of profit or other economic loss or any indirect, incidental or consequential loss arising out of or in connection with the agreement or the supply of the goods.

8.6 When Goods are damaged during shipment, a and even if Seller is responsible or shipping according to the Special Terms, Buyer shall take in a timely manner any necessary step to fully protect and preserve all legal rights and actions, if necessary, in Seller’s interest, against the carrier or any other responsible third party.

9. Cancellation

9.1 Buyer is not entitled to cancel or suspend the Agreement without Seller’s prior consent in writing resulting from an arrangement between both parties. The arrangement shall state the amount to be paid by Buyer to Seller as compensation for the cancellation. This paragraph does not apply in the event Seller is in breach of its obligations.

9.2 After the first documentation of the listed goods has been issued, this contract cannot be cancelled.

10. Termination

10.1 Seller reserves the right to terminate the Agreement on simple notification by facsimile or telex, without being held.

(i) In the event Buyer becomes insolvent, has filed for bankruptcy, or is prohibited from trading; or

(ii) If Buyer fails to pay any amount due to Seller, whether under the Agreement or otherwise; or

(iii) If Buyer breaches any material term of Agreement; or

(iv) if Buyer is not able to provide Seller with the promised letter of credit, or if Buyer lost the benefit of Coface coverage as may be agreed by the Parties.

11. Force Majeure and Act of third party 

11.1 Seller shall not be liable to Buyer in respect of any matter which results from any act of God, such as extreme weather or any natural event (earthquake, flood, severe drought, fire due to lightning, etc.), or resulting from certain man-made events such as war, hijacking, riot, strikes, epidemics, or a sovereign or other act of government (including refusal or revocation of any licence or consent) or – more generally – any other event that is beyond Seller’s reasonable control (hereinafter: “Force Majeure”). In case Seller in unable to comply with its obligations due to Force Majeure, Seller shall be entitled to suspend the delivery or terminate the Agreement concerned by providing simple notice and without prior judicial intervention, Buyer not being entitled to claim any damages for this suspension or termination.

11.2 The following also shall be deemed to constitute Force Majeure:

(i) Delay, for reasons beyond Seller’s control, in the transmission of documents (bill of lading, phytosanitary certificate, certificate of origin, or any other document as agreed upon by the Parties), especially following strikes, aircraft accident, loss of documents in the course of delivery by a third-party provider.

(ii) Seller’s inability to get an available ship fitted with the necessary room to freight the Goods towards the destination port. In such a casa Seller and Buyer shall meet promptly and negotiate in good faith to determine another reasonable destination. Absent such an arrangement, Seller shall be obligated to accept the partial delivery of the Goods and to pay for them.

11.3 If, in case of unforeseen circumstances beyond its reasonable control, Seller is not able to deliver all ordered quantities, Buyer except as otherwise expressly provided in the Special Terms, shall be obligated to accept the partial delivery of the Goods and pay for them.

11.4 SELLER SHALL HAVE NO LIABILITY TOWARD BUYER FOR ANY DAMAGE CAUSED BY AN ACT OF A THIRD PARTY, EVEN IF THS ACT IS NOT BEYOND SELLERS RESONABLE CONTROL, IN PARTICULAR ANY DAMAGE CAUSED BY INACCURATE INFORMATION CONTAINED IN A DOCUMENT PREPARED BY A PERSON INDEPENDENT OF SELLER, SUCH AS THE BILL OF LADING OR ANY TRANSPORTATION DOCUMENT, CUSTOMS DOCUMENT DRAWN UP BY A FOWARDING AGENT, THE PHYTOSANITARY CERTIFICATE OR THE CERTIFICATE OF ORIGIN.

12. Applicable law and jurisdiction

12.1 Except for the matters expressly provided for in those Conditions, the Agreement shall be ruled and interpreted according to the Vienna Convention on the International Sale of Goods dated 11 April 1980(CISG), without regard to choose of law provisions and regardless of the place or places of its actual execution or performance. The application of CISG shall be supplemented when necessary by the law of Portugal.

12.2 FOR ANY DISPUTE, CONTROVERSY OR CLAIM ARISING UNDER, OUT OF OR RELATING TO THIS AGREEMENT AND ANY SUBSEQUENT AMENDMENTS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, AS TO ITS FORMATION, VALIDITY, BINDING EFFECT, INTERPRETATION, PERFORMANCE, BREACH OR TERMINATION, AS WELL AS NON-CONTRACTUAL CLAIMS, THE COMMERCIAL COURT OF NIORT (TRINUAL DE COMERCIO DO PORTO), PORTUGAL, SHALL HAE JURISDICTION.