Common use of FALSE FREIGHT Clause in Contracts

FALSE FREIGHT. If for any reason imputable to the SELLER, it does not deliver at least ninety seven percent of the volume of FRUIT ordered by the BUYER for the following week, based on the most recent THIRTEEN WEEK ESTIMATE, the SELLER must pay a single, total and definitive indemnification of $[*] during the first semester of each calendar year (from January 1 to June 30) and $[*] during the second semester of each calendar year (from July 1 to December 31) for each box of FRUIT not delivered over the limit of the margin of tolerance of three percent until the order issued by the BUYER for that shipment is fulfilled, but in no instance will it be responsible for eventual, consequential or collateral damages to the BUYER or its affiliates for this occurrence. Situations of force majeure or fortuitous situations that may prevent the SELLER from fulfilling its obligations are excluded. Notwithstanding the above, the SELLER may exceed the margin of tolerance of three percent in two shipments, at most, during each quarter of the calendar year, so that in such shipments the SELLER may load a minimum of ninety five percent and a maximum of one hundred and five percent of the volume ordered by the BUYER, said surplus subject to availability of space in the ships chartered by the BUYER. This benefit granted by the BUYER to the SELLER is not a cumulative right from one shipment to another or from one quarter to another. The BUYER will try to mitigate its damages using banana volumes from other sources within the normal rotation of the ship to fill the space allowance onboard the ship and will not demand indemnification except for the boxes that were not supplied. The SELLER cannot use this tolerance to allege that the BUYER has waived its right to receive the volumes it ordered nor will it excuse the SELLER from making its best effort to always comply with the volumes ordered by the BUYER. When FALSE FREIGHT occurs, the BUYER will communicate this to the SELLER within the following two weeks. If not, the SELLER will lose it right to collect.

FALSE FREIGHT. If In the event that for any reason imputable cause attributable to the SELLER, Seller it does not deliver at least ninety ninety-seven percent of the volume of FRUIT Fruit volumes ordered by the BUYER Buyer for the following next week, based on the most recent THIRTEEN WEEK ESTIMATEThirteen Week Estimate, the SELLER must Seller shall pay a singlethe Buyer, as the sole, total and definitive indemnification of $indemnification, [*] during the first semester of each the calendar year (from January 1 to June 30) and $[*] during the second semester of each the calendar year (from July 1 to December 31) for each box of FRUIT Fruit not delivered over the limit excess of the tolerance margin of tolerance of three percent until completion of the order issued by the BUYER Buyer for that shipment is fulfilledthis shipment, but in no instance will it case shall be responsible for eventualcollateral, eventual or consequential or collateral damages to suffered by the BUYER Buyer or its affiliates for due to this occurrence. Situations of This excludes situations in which the Seller is not able to deliver due to force majeure or fortuitous situations that may prevent the SELLER from fulfilling its obligations are excludedand Acts of God. Notwithstanding the aboveaforementioned, the SELLER Seller may exceed the tolerance margin of tolerance of by three percent in up to two shipments, at most, during shipments each quarter trimester of the calendar year, so such that in such shipments the SELLER Seller may load a minimum of ninety ninety-five percent and a maximum of one hundred and five percent of the volume ordered by the BUYERBuyer, said surplus which excess shall be subject to the availability of space in the ships vessels chartered by the BUYERBuyer. This benefit benefit, granted by the BUYER Buyer to the SELLER Seller, is not a cumulative right that accumulates from one shipment to another or from one quarter trimester to another. The BUYER will Buyer shall try to mitigate its damages by using banana volumes from other sources within the normal vessel rotation of the ship to fill the space allowance onboard capacity in such vessel and shall not charge an indemnity greater than the ship and will number of boxes it was not demand indemnification except for the boxes that were not suppliedable to supply. The SELLER canSeller may not use allege that this tolerance to allege that margin is a waiver of the BUYER has waived its Buyer’s right to receive the ordered volumes nor shall it ordered nor will it excuse release the SELLER Seller from making using its best effort efforts to comply always comply with the volumes ordered by the BUYERBuyer. When FALSE FREIGHT occursFalse Freight shall occur, the BUYER will communicate this to Buyer shall inform the SELLER Seller within the following two weeks. If notIn the event the Buyer does not inform the Seller within such time period, it shall lose the SELLER will lose it right to collectcollect such amounts.