1. APPLICABILITY
These Terms and Conditions of Sale (“Terms”) apply to the sales of graphics and packaging papers and ancillary services (collectively, the “Products”) by Sappi North America, Inc. and its subsidiaries, including Products manufactured by its affiliates including but not limited to Sappi Europe S.A., and subsidiaries (collectively, “Seller”), to any buyer (“Buyer”). Except as otherwise agreed to by Seller in writing, the Terms set forth herein, together with the applicable Seller order confirmation and Seller invoice, shall constitute the complete and final agreement between Seller and Buyer, superseding completely any prior oral or written communications. Terms or conditions contained in any document issued by Buyer which in any manner purport to alter, modify, change, suspend, or add to any term or condition contained herein shall be deemed excluded from such Buyer document and waived by Buyer. Seller and Buyer expressly agree that Seller may modify these Terms from time to time, and such modifications shall be binding upon Buyer.
Seller’s acceptance of Buyer’s purchase order or commencement of performance shall not constitute acceptance of any of Buyer’s terms and conditions. Buyer’s assent to these terms and conditions shall be conclusively presumed from Buyer's (1) receipt of Seller’s order confirmation (“Order Confirmation”) without written objection sent to Seller within five (5) business days after receipt of this Order Confirmation or accepted purchase order, (2) instructing Seller to begin work or to ship any of the Products after receipt of Seller’s Order Confirmation or accepted purchase order, or (3) acceptance of all or any part of the Products ordered. Seller may commence performance in reliance upon Buyer’s acceptance of these Terms.
2. CANCELLATION
Buyer cannot modify, cancel, or otherwise alter purchase orders after receipt of such purchase orders by Seller without Seller’s written consent. Any such modification, cancellation, or alteration shall be subject to conditions as negotiated at such time, which shall include payment by Buyer to Seller for all expenses incurred and damage sustained by Seller on account of the cancellation or modification, plus a reasonable profit.
3. PRICE
Unless otherwise agreed in writing, the purchase price of the Products shall be the price prevailing at the time of Buyer’s purchase order as reflected on Seller's then-current price list; provided, however, that if Seller announces a surcharge or price increase, such surcharge or price increase shall become effective for Products scheduled for shipment beginning on the date set forth in Seller’s announcement.
4. TAXES AND DUTIES
Prices do not include sales, value added, use, excise, customs, export, import, commodity, or similar taxes, levies, duties, or other charges. All taxes and duties of any kind levied by any federal, state, municipal, foreign, or other governmental authority which Seller is required to collect or pay with respect to the Products sold hereunder shall be passed on to Buyer. Buyer agrees to provide on a timely basis any and all certificates, forms and similar documents relating to sales or use tax payable by Buyer or Buyer’s status as a reseller of the Product.
5. TERMS OF PAYMENT
Seller shall issue an invoice to Buyer at the time the Product is shipped from Seller’s facility for the actual quantity of Product sent to Buyer in such shipment. Subject to limitations arising from Buyer’s credit limit with Seller and unless otherwise agreed to in writing by Seller and Buyer, all invoiced amounts shall be paid by Buyer in accordance with the standard payments for the relevant product as Sappi may announce from time to time from the date of Seller’s invoice basis via electronic funds transfer or wire transfer. Buyer must provide written notice to Seller of any disagreement with any invoice submitted to Buyer by Seller within ten (10) business days of receipt of such invoice.
6. DELIVERY; SHIPPING
Product ordered by Buyer will be subject to a quoted delivery date, which appears on the Order Confirmation document. The Buyer should review this Order Confirmation to ensure it is consistent with their requirements. Seller will publish or otherwise communicate to Buyer the last date on which Buyer is able to make any changes to the Order Confirmation or cancel an Order (the “Last Date of Change”). After this Last Date of Change, the order is considered firm and will be produced by Seller in accordance with the Order Confirmation. Seller will use good faith efforts to deliver the product prior to the quoted delivery date unless a separate schedule agreement is negotiated between the Buyer and Seller. While this quoted delivery date is not guaranteed, good faith efforts will be made to complete delivery prior to such date. When receiving any product, Buyer should note any damage on the bill of lading and all transit claims are subject to the Seller’s Transit Claim Policy as in effect from time to time.
7. TITLE; RISK OF LOSS
Unless otherwise agreed to in writing by Seller and Buyer (for example, with respect to consignment programs), title to, and risk of loss of the Product shall transfer from Seller to Buyer at the time that the Product is delivered into the hands of the carrier at Seller’s facility for transport to Buyer.
8. PRODUCT WARRANTY
The Products shall meet the specifications that Seller makes publicly available from time to time (the “Specifications”). Seller may modify its specifications at any time. Buyer must notify Seller’s designated representative (confirmed by Buyer in writing within 48 hours) as promptly as reasonably possible of any nonconformity with the applicable Specifications which Buyer may discover. Seller may modify or discontinue any Product at any time.
9. LIMITED WARRANTY
Seller warrants that it has good title to the Product, the Product will conform to the Specifications at the time of delivery and the Product is of consistent quality in conformance with the Specifications. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS BY SELLER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILTY AND FITNESS FOR PURPOSE) RELATING TO THIS AGREEMENT OR THE PRODUCT ARE EXPRESSLY EXCLUDED. Seller’s liability to Buyer under this paragraph shall be limited, at Seller’s option, to replacing without charge or making fair allowance for Product delivered in breach of the warranty set forth in this paragraph in accordance with Seller’s Quality Claims Policy as is in effect from time to time. Without Seller’s prior written agreement, Buyer shall not deduct or otherwise set off any amount due to Seller in connection with a breach of warranty. Buyer must commence any action for breach of Seller’s obligations pursuant to this paragraph within six (6) months from the date on which the Products that are the subject of such claim are delivered to Buyer. Buyer shall be deemed to have waived any claim for breach warranty or the terms and provisions of this paragraph which is not brought within such six-month period and any and all such claims shall be forever barred.
THE FOREGOING LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SELLER WITH RESPECT TO PRODUCTS SOLD BY SELLER. SELLER MAKES NO AND DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT; ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE; ANY IMPLIED WARRANTY ARISING FROM ANY USE OF ANY PRODUCTS, OR SELLER'S AND/OR BUYER'S CONDUCT IN RELATION TO THE PRODUCTS WHETHER OR NOT THE PURPOSE OR USE OF THE PRODUCTS HAS BEEN DISCLOSED TO SELLER AND WHETHER OR NOT THE PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE. SELLER ACCEPTS NO RESPONSIBILITY, RISK OR LIABILITY TO BUYER OR OTHERS CONCERNING, RELATING TO OR ARISING OUT OF THE PERFORMANCE, NONPERFORMANCE, FAILURE, EFFICACY, LENGTH OF LIFE OF OR ANY DEFECT IN THE WHOLE OR ANY PART OR PARTS OF ANY PRODUCT OR PRODUCTS MANUFACTURED OR FABRICATED FROM OR INCORPORATING OR OTHERWISE USING THE PRODUCTS SOLD HEREUNDER.
Buyer acknowledges that, except as expressly provided in these Terms, no representative of Seller is authorized to give or make any other representation or warranty or modify the above limited warranty in any way and that no Seller samples, tests, trials, data, catalogs, brochures or other publications and no statement, advice, recommendation, or instruction made or assistance given by Seller in connection with any Products or services shall constitute a representation or warranty or a waiver or modification by Seller of these Terms. Except for the above limited warranty, Buyer assumes all risk and liability from Buyer’s use of the products and acknowledges that it does not rely on, and waives any claim relating to, any such samples, tests, trials, data, catalogs, brochures, publications, statement, advice, recommendation, or instruction regarding the Products given to Buyer by Seller.
This limited warranty extends only to Buyer and to no other person.
10. TECHNICAL ADVICE
Seller assumes no obligation or liability for any technical advice furnished to Buyer or Buyer’s customers or subcontractors, including without limitation, technical advice with respect to the use of Seller's Products, all such technical advice being given and accepted at Buyer's risk. Seller will not be liable for any damages of any kind arising out of or relating to the use of or the inability to use the technical advice or information provided.
11. BUYER'S FINANCIAL CONDITION
If Buyer’s financial position becomes impaired in the reasonable judgment of Seller to the extent it is unable to meet its obligations hereunder, or if any undisputed amounts in an account shall remain unpaid at due date, Seller may defer subsequent deliveries and may demand that cash payment or satisfactory security be furnished forthwith as a condition precedent to the resumption of deliveries. In such case, should Buyer, after demand, fail to pay cash or to furnish satisfactory security or fail to take care of overdue accounts, such failure will release Seller from its obligations to make any further deliveries hereunder and all accounts of Buyer hereunder shall become immediately due and payable. If such accounts are not paid within thirty (30) days after Seller or its agent has given written notice to Buyer stipulating such default, then this outstanding purchase orders shall be, and shall be deemed to be, cancelled upon expiration of such notice.
12. INDEMNIFICATION
Buyer agrees to indemnify, hold harmless and defend Seller (and its directors, officers, employees, subsidiaries, affiliates, successors, suppliers and agents) from and against any and all claims (whether based on contract, tort, strict liability or otherwise), judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and attorneys' fees) incurred or suffered by Seller, which relate to or arise out of (i) Buyer's or Buyer’s customer’s use, handling, sale, distribution or disposal of the Products, or (ii) Buyer's breach of any representation, warranty or obligation hereunder. Buyer shall defend any such matter with counsel reasonably acceptable to Seller and shall not settle any such matter except with the consent of Seller. If Buyer fails to promptly and diligently investigate and defend or settle any claim, then Seller shall have the right, at Buyer’s cost, expense and risk, from that time forward to have sole control of the defense of the claim and the terms of any settlement or compromise.
13. INFRINGEMENT
Seller shall defend Buyer from and against any third party claim or action to the extent such claim or action in based on a third party claim that the process used by Seller to manufacture the Product infringes such third party’s United States patent, copyright, trademark, or misappropriates such third party’s trade secret, and Seller will pay those damages and costs finally awarded against Buyer in any monetary settlement of such suit or action which are specifically attributable to such claim.
The foregoing obligations are conditioned on Buyer (i) notifying Seller promptly in writing of the action, (ii) making no admission of liability and giving Seller sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating and, at Seller’s request and expense, assisting in the defense.
Notwithstanding the foregoing, Seller will have no obligation under this Section 13 or otherwise with respect to any infringement claim based upon any: (i) misuse or modification of the Products by Buyer or its employees or agents, (ii) use of the Products in combination with other materials, goods, products, or services for which the Products were not intended to be used, (iii) Products that Seller made to Buyer’s specifications or designs, (iv) allegedly infringing activity by Buyer after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) Buyer’s use of the Products incidental to an infringement not resulting primarily from the Products.
If any Product becomes, or in Seller’s opinion is likely to become, the subject of a claim of infringement, then Seller may, at its option and expense, (i) procure for Buyer the right to continue using the Products, or (ii) replace or modify the affected Products so that they becomes non-infringing.
THIS SECTION 13 STATES SELLER’S ENTIRE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
14. LIMITATIONS OF LIABILITY
IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES ARISING FROM OR RELATING TO ANY INJURY TO PERSONS, LOSS OF USE OR VALUE (INCLUDING WITHOUT LIMITATION, DIMINUTION IN VALUE OR STIGMA DAMAGES), LOSS OF REVENUE OR ANTICIPATED PROFITS, COST OF CAPITAL, DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT, CLAIMS MADE BY CUSTOMERS OR END-USERS, DEMURRAGE CHARGES, COST OF SHIPMENT, AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER FORESEEABLE OR NOT, AND EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES.
SELLER’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF, OR RELATING TO, THE PRODUCTS WILL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE FOR THE PRODUCTS GIVING RISE TO THE CLAIM.
15. NO LICENSE
The sale of the Products will not confer upon Buyer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by Seller, its subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all the rights are reserved to Seller, its subsidiaries, affiliates, or suppliers. Without limiting the foregoing, Buyer will not, without Seller’s prior written consent, use any trademark or trade name of Seller in connection with any the Products.
16. TERMINATION
In addition to any other remedies that Seller may have, Seller may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
17. CONFIDENTIALITY
All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, textures, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” is confidential, solely for the use in connection of sales of Product to Buyer, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer will promptly return all documents and other materials received from Seller. Seller will be entitled to injunctive relief for any violation of this Section 17, without having to post bond or establish the insufficiency of a remedy at law. This Section 17 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
18. FORCE MAJEURE
Seller shall not be responsible for cancellation or delay in delivery or performance resulting, directly or indirectly, from causes or circumstances beyond its reasonable control, including, but not limited to, acts of God, acts of Buyer, strikes or other labor disturbances regardless of whether Seller is capable of settling such strike or disturbance, mill conditions, temporary or permanent mill closures, equipment failure or repairs to equipment, inability to obtain fuel, raw materials, or parts, intervention or acts of government, war, acts of terrorism, riot, shortages or delays of transportation, epidemics and pandemics, floods, fires, unusually severe weather, blockades, sanctions or embargoes, accidents, unexpected increases in demand, or other contingency the non-occurrence of which was a basic assumption on which the purchase order was made and accepted (“Force Majeure”). Upon the occurrence of any Force Majeure, the time for performance by Seller shall be extended for a period equal to the time lost by reason of the controversy, and Seller shall have the right to allocate Products, in its sole discretion. Buyer waives any and all Seller liability resulting from such shortages or such allocation decision.
19. COMPLIANCE WITH LAWS; U.S. TRADE SANCTIONS
Each party will comply with all applicable laws, regulations, and ordinances, and Buyer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by these Terms. Sappi is committed to conducting business ethically and in compliance with applicable laws and expects the same of its business partners. Sappi reserves the right to review its commercial relationship where it reasonably believes a business partner has engaged in unlawful, fraudulent, corrupt or other conduct that may expose Sappi to legal, regulatory or reputational risk.
BUYER AND SELLER ACKNOWLEDGE THAT NO DIRECT OR INDIRECT (THROUGH A THIRD PARTY OR COUNTRY) TRANSACTIONS, INCLUDING THE EXPORTATION OR IMPORTATION OF PRODUCTS, TECHNOLOGIES, OR SERVICES, OR FINANCIAL TRANSFERS WILL TAKE PLACE BETWEEN U.S. PERSONS AND ANY COUNTRY OR NATIONAL, ENTITY, OR INDIVIDUAL SANCTIONED BY THE U.S. GOVERNMENT WITHOUT THE APPROPRIATE U.S. GOVERNMENT LICENSE, SUCH AS, BUT NOT LIMITED TO, A SPECIFIC LICENSE FROM THE OFFICE OF FOREIGN ASSETS CONTROL (OFAC), AND WRITTEN PERMISSION FROM BOTH BUYER AND SELLER. SELLER MAY TERMINATE THESE TERMS WITHOUT NOTICE AND WITHOUT ANY LIABILITY TO THE BUYER IF THE BUYER BREACHES THE ABOVE PROVISIONS. BUYER SHALL HOLD SELLER HARMLESS FROM ANY CLAIMS SUFFERED BY BUYER OR SELLER AS A RESULT ON ANY VIOLATION OF THE ABOVE PROVISIONS BY THE BUYER. BUYER WARRANTS THAT IT WILL NOT DIVERT THE GOODS TO DESTINATIONS OTHER THAN THE DESTINATION INDICATED IN THE PURCHASE ORDER AND, IN THE CASE OF A BUYER DISTRIBUTOR, SHALL INCLUDE THESE TRADE SANCTION PROVISIONS IN ANY SUBSEQUENT CONTRACTS UNDER WHICH THE PRODUCTS ARE RESOLD.
20. GOVERNING LAW; VENUE
All matters arising out of or relating to these Terms shall be governed in all respects by the substantive laws of The Commonwealth of Massachusetts, without regard to any conflict of laws principles that would require the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or the documents related thereto.
Buyer, acting for itself and its successors and assigns, hereby waives all rights to trial by jury in any litigation arising from or related to these Terms. Buyer expressly and irrevocably consents to the jurisdiction of the state and federal courts located in Boston, Massachusetts, and waives the right to assert that any action in any such court is in the improper venue or should be transferred to a more convenient forum.
21. MISCELLANEOUS
Buyer acknowledges that is has not been induced to purchase any the Products from Seller by any representation or warranty not expressly set forth in these Terms. If there is a conflict between the provisions of Seller’s order confirmation and these Terms, then the terms of Seller’s order confirmation will govern. No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The Section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision. If any provision of these Terms is held to be prohibited or unenforceable, the provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Buyer will not assign any quotation or accepted order for the Products, in whole or in part, without Seller’s prior written consent.
22. SURVIVAL
In addition to any other term whose context may so require, the terms contained in Sections 1, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 19, 20, 21 and 22 will survive any cancellation of the purchase order.
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