GENERAL TERMS AND CONDITIONS OF SALE
All sales by BMSI, Inc. (d/b/a BMSI Packaging Services Company) (the “Seller”) of goods to the end user (the “Buyer”), are subject to the following terms and conditions of sale (the “General Terms and Conditions”), which are deemed accepted and agreed to upon the placing of an order and shall not be superseded by any other terms or conditions in other documents. These General Terms and Conditions are deemed applicable to all future engagements, transactions and activities between Seller and Buyer, and supersede all prior negotiations or agreements of the parties, either written or oral. Any additional or difference terms provided by the Buyer in subsequent purchase orders or other documents shall not be binding.
Delivery & Shipping; Title to Goods. Buyer shall give Seller prior written notice of the desired timing of deliveries. Freight costs are to be prepaidby Seller unless otherwise noted on Seller's acknowledgment of Buyer's purchase order or on Seller's current price list. When a shipment ofgoods sold are made prepaid by Seller, title to the goods sold shall remain with Seller until Buyer actually receives possession of the goods,and then risk of loss shall pass to the Buyer. When shipment of goods sold is FOB Seller's place of business, title to goods sold and the riskof loss shall pass to the Buyer upon transfer to carrier. If shipment is deferred in whole or in part at Buyer's request beyond "Final Shipping Date"specified on the order acknowledgment, Seller reserves the right to immediately bill Buyer for such unshipped portion. In absence of shippingand packing instructions, the Seller shall use its own discretion on choice of carrier and method of packaging. Seller shall not be responsiblefor insuring shipments unless specifically requested by Buyer and any insurance requested shall be at Buyer's expense and valuation.
Buyer’s Obligation to Inspect. All sales are final. Upon receipt of the goods, Buyer (including its agents and designees) shall immediatelyinspect the goods upon arrival, no later than three (3) days of receipt. No claims shall be allowed after thirty (30) days from the date of shipment.Seller will not accept goods returned without express authority in writing. When converted bags are manufactured under annual or specialmaterials contracts, Seller will allow reasonable time for Buyer to inspect manufactured merchandise, but under no conditions shall claims beallowed later than sixty (60) days from the actual date of shipment. Overrun or underrun of ten percent (10%) on plain, non-printed bags/film in fillingorder shall constitute full compliance with all others. Overrun or underrunning of twenty-five percent (25%) on printed bags/film in filling order shallconstitute full compliance with all others. Overruns shall be paid for at the unit price specified in this order. In the event this order includes morethan one item, the allowable percentage shall apply to each item.
Order Modification. Orders cannot be cancelled or modified after acceptance of Buyer's order by Seller, except with Seller's consent andsubject to conditions agreed upon which shall indemnify Seller against liability and expense incurred and commitments made by Seller and whichshall provide for profit on work in process and contract value of products or parts completed and ready for shipment. Any changes orcancellations must be made before the order is in actual production.
Product Warranty. Seller warrants that the goods sold are merchantable, unless the goods sold are designated as “sub-standard”, then thereshall be no such warranty. SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING FITNESS FORANY PARTICULAR PURPOSE. THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE.Buyer assumes all risks and liability associated with any and all matters related to or arising from the purchase, transport, payment, use or any otheraspects of the goods.
Pricing. All prices quoted are subject to change, without notice, at any time prior to Seller’s acceptance of Buyer’s orders, to such prices prevailing atthe time of acceptance.
Payment Terms/Credit. One percent (1%) ten (10) days, net thirty (30) days from date of invoice. A one and one-half percent (1-1/2%) service chargewill be made on all invoices past due. Annual service charge is eighteen percent (18%). If it becomes necessary to place Seller’s account for collectionwith any third party, the Buyer agrees to pay all collection costs, including reasonable attorney fees. In its sole judgment, Seller reserves the rightto suspend credit at any time to Buyer.
Indemnity. Buyer shall defend, indemnify and hold Seller harmless from and against all damages, causes of action (including attorneys’ fees),claims, losses, liabilities, penalties, personal injuries, environmental damages and property damage caused by Buyer’s negligence, strictliability, breach of warranty, breach of these General Terms and Conditions, fault, omissions or willful conduct, arising, without limitation, fromthe handling, transportation, modification, storage or use of the goods. Any action against Seller for any breach must be commenced within one(1)year after the cause of action has occurred. Seller shall not be liable for any loss or damages arising out of or claimed by Buyer because of oron account of strikes, fire, accidents, inability to procure raw materials, labor difficulties or other causes, either similar or dissimilar to theforegoing, beyond Seller's control. Buyers are warned against receipting goods without making careful inspection. In the event of lost or damagedshipments, it is Buyer's responsibility to file a claim with the carrier if goods are shipped FOB Seller's place of business, and it is Seller'sresponsibility to file a claim with the carrier if goods are shipped prepaid. Loss or damage should be noted on the bill of lading andacknowledged by the driver and if possible pictures should be taken.
Limitation of Liability. SELLER SHALL NOT BE LIABLE TO BUYER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL,EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WIHTOUT LIMITATION, LOST PROFITS)ARISING OUT OF OR IN CONNECTION WITH THE GOODS, THESE GENERAL TERMS AND CONDITIONS, OR ANY BREACHTHEREROF. BUYER AGREES THAT SELLER’S CUMULATIVE LIABILITY FOR ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR IN CONNECTION WITH THE GOODS, THESE GENERAL TERMS AND CONDITIONS, OR ANY BREACH THEREOF, INCLUDING WITHOUTLIMITATION ANY ACTS OR OMISSIONS BY SELLER OR ITS REPRESENTATIVES, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BYBUYER WITH RESPECT TO THE AFFECTED GOODS DURING THE CALENDAR YEAR IN WHICH THE CLAIM ARISES. THIS LIMITATIONAPPLIES ON AN AGGREGATE BASIS ACROSS THESE GENERAL TERMS AND CONDITIONS AND ALL RELATED PURCHASE ORDERS.THESE LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Governing Law and Consent to Jurisdiction. These General Terms and Conditions are made under and shall be governed by, construed inconformance with, and all disputes shall be governed by the internal laws (exclusive of conflicts of laws principles) of the State of Georgia,without regards to its conflict of laws principles. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the Northern District Court Courts for the State of Georgia, or it such courts do not have the subject-matter jurisdiction, then the state courts of the State of Georgia.
Intellectual Property. Seller shall have the right to imprint its trademark in a suitable inconspicuous locality on any goods furnished by it to Buyer.Buyer acknowledges and agrees that Seller has no control over Buyer’s (or other’s) processing, sale, use or disposition of the goods. Accordingly, Buyerassumes all liability for and responsibility for, and agrees to indemnify, defend and hold harmless Seller from and against all claims arising out of or related to infringement of any processes practiced or products made or sold or used by Buyer related to the goods or in which the goods are used, which product or process allegedly infringes on any third party’s intellectual property rights.
Taxes. All payments under these General Terms and Conditions are exclusive of all applicable taxes and governmental charges, all of whichshall be paid by Buyer regardless of which party such taxes are imposed upon (with the exception of any taxes imputed with regard to Seller’sincome). Buyer shall reimburse Seller for all taxes, excises or other charges, national, state, or local which Seller may be required to pay uponthe sale, production or transportation of the material sold hereunder within fifteen (15) days after Seller notifies Buyer of such remittance. Buyeragrees to provide Seller with a valid tax exemption certificate in advance of any remittance otherwise required to be made by Seller on behalfof or for the account of Buyer, where such certificates are applicable.
General Provisions. These General Terms and Conditions cannot be modified or amended except by a subsequent written instrument executed by the parties duly authorized representatives, which expressly supersedes the terms of these General Terms and Conditions. The rights andobligations under sections 7 through 12 shall survive the cancellation, termination or expiration of these General Terms and Conditions. TheseGeneral Terms and Conditions shall not be assigned by Buyer, either by act of Buyer or by operation of law without the prior written consent ofSeller. Any purported assignment of these General Terms and Conditions without the prior written consent of Seller shall be null and void. Sellermay assign these General Terms and Conditions at any time without notice. If any provision of these General Terms and Conditions are invalidor unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire General Terms and Conditions.Seller’s waiver of any breach or failure to enforce any of the provisions of these General Terms and Conditions at any time shall not in any wayaffect, limit or waive its right to thereafter enforce strict compliance with each provision.