1. Governing Terms and Conditions. These Terms and Conditions of Sale (“Terms”) are hereby incorporated into each purchase order or other client agreement between Buckeye Corrugated, Inc. (“BCI”) and Customer (together with BCI, the “Parties”) for the sale of goods (“Goods”) and the provision of related processing and fulfillment services (the “Services”) by BCI, in each case as such Goods and Services are described in an offer submitted by BCI (“Offer”). Customer agrees that these Terms and Conditions of Sale apply to all Goods and Services provided by BCI. No modification or addition to these Terms shall occur by BCI’s acknowledgment or acceptance of a purchase order, acknowledgment, release or other form submitted by Customer, and BCI hereby gives Customer notice of the rejection of all additional or different terms or conditions set forth in Customer’s printed forms. No agreement or other understanding that in any way differs from, adds to or otherwise modifies these Terms shall be binding upon BCI unless specifically accepted by an authorized representative of BCI in writing, regardless of whether such agreement, understanding, addition, deletion or modification would materially alter the terms and conditions set forth herein. Customer shall be deemed to accept these Terms as the sole and entire agreement between the Parties with respect to such Goods and any related Services upon the first to occur of the following: (i) by Customer delivering a written acknowledgement to BCI, (ii) by BCI performing the Services, or (iii) by Customer accepting delivery of any Goods.
2. Price. Each Offer given by BCI is based on prices in effect at the time such Offer is made. Unless otherwise stated, each Offer is valid for 30 days after the date indicated on such Offer. Customer acknowledges that any purchase order or other form of acceptance issued by Customer will result in a contract for the purchase of Goods at the price quoted in the Offer. Pricing for tools, dies and plating is subject to change upon notice to Customer to account for any increase in the cost to BCI of such tools, dies and plating. All Offers are exclusive of prep and film costs, which costs will be invoiced separately to Customer. Except as otherwise indicated in an Offer, all quotations are inclusive of packing and shipping costs. Mathematical and typographical errors in prices, specifications, quotations or acknowledgements are subject to correction.
3. Payment Terms. Unless otherwise agreed in writing by the Parties, payment shall be made within 30 days of the invoice date. All payments shall be made in lawful money of the United States. All payments shall be made without deductions for back-charges and other accounts between the Parties, which shall be settled independently. No payment will prejudice claims by Customer due to omissions or shortages in shipment, but no such claim is permitted unless made in accordance with Section 18(b). A service charge of 1.5% per month (18% per annum) ($5.00 minimum monthly service charge) or the highest rate permitted by law, whichever is lower, will be charged on all amounts not paid when due.
4. Financial Condition. At BCI’s request, Customer will furnish sufficient information to enable BCI to assess Customer’s creditworthiness, including preparation of BCI’s credit application. If BCI determines that Customer’s financial responsibility has become impaired or otherwise unsatisfactory to BCI, BCI may require advance cash payments, COD, shorter terms and/or the posting by Customer of satisfactory security, and may withhold shipments without liability until Customer complies.
5. Default.
(a) Customer will be in default hereunder if (i) Customer fails to pay to BCI, when due, all amounts due to BCI hereunder, (ii) Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership or reorganization and such petition or proceeding is not resolved favorably within 30 days after filing or commencement, as the case may be, or (iii) Customer makes a general assignment for the benefit of creditors, or a substantial part of Customer’s assets are attached or seized under legal process and not released within 30 days thereafter.
(b) Upon Customer’s default, BCI may, at its option, without prejudice to any of BCI’s other rights and remedies, and without demand for payments past due, (i) make shipments subject to receipt of cash in advance, (ii) declare immediately due and payable the obligations of Customer for Goods previously shipped, notwithstanding any other provision in these terms and conditions, (iii) demand reclamation, and/or (iv) suspend any further deliveries until the default is corrected, in each case, without releasing Customer from its obligations hereunder. Customer shall be liable for all losses and damages sustained by BCI in connection with Customer’s default, including, but not limited to, collection fees, reasonable attorneys’ fees, and interest at 1.5% per month or the highest rate permitted by law, whichever is lower.
6. Taxes. Customer shall reimburse BCI for all federal, state, local and other sales, use and excise taxes and all similar taxes (other than income taxes), duties and charges imposed by any governmental authority in connection with the manufacture and supply of the Goods.
7. Quantity. Customer shall accept and pay for the actual number of Goods shipped to Customer by BCI. BCI’s count shall be conclusive as to the number of Goods shipped unless Customer notifies BCI of a different count within 10 days after Customer’s receipt of the Goods. Customer shall accept and pay for any over-run of Goods up to 10% of the total number of units ordered. BCI shall not be liable to Customer for any under-run of Goods so long as such under-run of Goods does not exceed 10% of the total number of units ordered.
8. Cancellation. BCI may cancel or suspend performance of Customer’s order if Customer is in default under any contract with BCI. Customer may only cancel or suspend an order if Customer provides written notice of cancellation to BCI, provided that Customer compensates BCI for all losses incurred by BCI in connection with such cancellation or suspension. Any amounts due by Customer under this Section 8 shall be paid promptly. Amounts will be limited to rates and pricing included in the contract (Purchase Order) or market rates for work of a similar nature. Customer may not cancel or suspend any order after shipment.
9. Services. With respect to the Services, Customer shall (i) cooperate with BCI in all matters relating to the Services; (ii) respond promptly to any BCI request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for BCI to perform Services in accordance with the requirements of these Terms; and (iii) provide such customer materials or information as BCI may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects.
10. Delivery. Any shipment, delivery or performance date stated in the Offer or other contract document is approximate and does not constitute any guarantee of shipment, delivery or performance on any particular date. BCI may, in its sole discretion, without liability or penalty, make shipments of all or part of the Goods to Customer in advance of the time or times specified. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s order. Shipment of Goods shall be by any means of transportation reasonably selected by BCI.
11. Delayed Delivery & Storage. If Customer causes any delay in the manufacture, shipment or delivery of any Goods, BCI may place such Goods (or, with respect to manufacturing delays, raw materials or works in progress, if applicable) in storage for Customer’s account. Notwithstanding anything to the contrary in Section 14 of these Terms, all such Goods (or raw materials or works in progress, as the case may be) shall be held in storage at Customer’s sole risk of loss. In the case of a delay in the shipment or delivery of Goods caused by Customer, BCI may issue to Customer at any time an invoice with respect to Goods completed and ready for shipment. Unless otherwise agreed by the Parties, payment shall be made within 30 days after the invoice date.
12. Safety Stock. Subject to a warehouse agreement to be executed by the Parties, BCI may agree to keep a stock of the Goods as requested by Customer. Upon Customer’s request to keep a safety stock of Goods pursuant to this Section 12, BCI shall submit to Customer a warehouse agreement that will include the parameters describing the quantity and storage time for such safety stock.
13. Force Majeure. BCI shall not be liable for any delay in or failure to manufacture and/or deliver due in whole or in part to conditions beyond BCI’s reasonable control, including, without limitation, delay in receipt of final Specifications (as defined in Section 18(a) of these Terms) from Customer, changes in Specifications, shortages of utilities, material or labor, actions or directions of governmental authorities, or because of public enemies, strikes, accidents or delays of carriers, fires, floods, unusually severe weather, acts of God or other causes beyond BCI’s reasonable control. In the event of any of the foregoing, (a) BCI will undertake to notify Customer promptly of any significant delay and will specify a revised delivery date as soon as practical and (b) BCI’s time for delivery shall be extended for a period equivalent to the time consumed in eliminating such cause for delay or, alternatively, BCI may at its option cancel the delivery and refund any amounts paid by Customer, as Customer’s sole and exclusive remedy. Upon the occurrence of a force majeure event, BCI shall have the right to apportion its production among its customers in such manner as it may consider to be equitable.
14. Title & Risk of Loss. With respect to the sale of Goods by BCI to Customer, title and risk of loss or damage to the Goods shall pass to Customer at Customer’s point of delivery. Customer assumes all risks and liabilities arising out of unloading, storage, handling and use of the Goods, or arising out of compliance or non-compliance with federal, state, municipal or local laws and regulations governing or controlling such activity, except to the extent, if any, attributable to BCI’s gross negligence or willful misconduct.
15. Security Interest. Customer hereby grants a security interest in all Goods to secure Customer’s payment in full. Customer authorizes BCI at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction financing statements and amendments naming the Customer as debtor and describing the Goods as collateral and to give any notices necessary to perfect such security interest or establish the priority thereof.
16. Insurance. With respect to any Services provided in connection with any Order, unless otherwise agreed, BCI, at its own expense, shall procure and maintain, and shall cause its subcontractors to procure and maintain, the following insurance coverages in the minimum limits indicated: [Commercial General Liability insurance coverage, written on an “occurrence” basis with a combined single limit of at least $1,000,000 per occurrence, and $2,000,000 in the aggregate for bodily injury and property damage in a form providing coverage of not less than a standard commercial general liability policy, including hazards of operation coverage, broad form property damage liability coverage, products/completed operations coverage, and broad form contractual liability coverage with liability limits equal to at least the above limits. The insurer on this coverage shall name the Customer as an additional insured.
17. Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is a corporation, limited liability company, or other entity duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, or organization or formation (as the case may be); (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of these Terms, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations hereunder; and (c) it has the full right, power and authority to enter into an agreement governed by these Terms, to grant the rights and licenses granted under such agreement and to perform its obligations thereunder.
18. Limited Warranty.
(a) BCI warrants good and free title in the Goods and that the Goods, at the time of delivery, will conform to such quality standards and/or measurements as the Parties have agreed upon in writing (“Specifications”). If BCI provides any Services to Customer in connection with any Order, such Services shall be performed and completed in a good and workmanlike or professional manner and in accordance with applicable material industry or professional standards. BCI is complying, and will continue to comply during the provision of Goods and Services, with all applicable laws and regulations and maintains, and will continue to maintain during the provision of Goods and Services, all material permits and certifications of any governmental authority or other third party. BCI DISCLAIMS ALL OTHER WARRANTIES RESPECTING THE GOODS AND SERVICES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
(b) Customer shall examine the Goods promptly after receipt. Customer must give BCI written notice of the existence of each claim involving such defects within 30 days after receipt of the Goods. A failure by Customer to give such notice within the applicable time constraints will constitute an absolute and unconditional waiver of all such claims. BCI shall not be liable for a breach of the warranty unless Customer gives BCI a reasonable opportunity to examine the Goods either at Customer’s place of business or, at BCI’s option, after the Goods are returned to BCI’s place of business (transportation costs to be prepaid by Customer) and BCI, acting reasonably, determines that the Goods are defective. BCI’s warranties do not apply to damage resulting from accident, casualty, alteration, misuse or failure to follow BCI’s written instructions. If any model, prototype, rendering, mockup or sample was shown to Customer, such model, prototype, rendering, mockup or sample was used merely to illustrate the general type and quality of the relevant Goods and not to represent that such Goods would necessarily conform to the sample in all respects. As Customer’s sole and exclusive remedy for any breach of the warranty set forth in paragraph 18(a) above, BCI shall, at its option, either (i) repair or replace the non-conforming Goods or (ii) credit or refund the price of such Goods at the pro rata contract rate. Customer shall pay Supplier any amount(s) withheld for non-conforming Goods within five business days of delivery of such repaired or replacement Goods to Customer.
19. Confidentiality. Unless otherwise mutually agreed upon by the Parties, BCI shall protect and safeguard, with a commercially reasonable degree of care, the confidentiality of any Specifications with respect to the Goods for a period of one year after a purchase order is fulfilled; provided, however, that the confidentiality obligations of this Section 19 shall not apply to information that is (a) in the public domain; (b) known to BCI at the time of disclosure; or (c) rightfully obtained by BCI on a non-confidential basis from a third party.
20. Indemnification by Customer. Subject to the limitations set forth in Section 21, Customer shall indemnify, defend and hold BCI harmless from all costs, expenses, damages, judgments and other loss, including costs of investigation, litigation and reasonable attorney’s fees, arising out of the manufacture and sale of Goods produced in conformity with the Specifications and any use Customer makes of the Goods, including any losses arising out of any claim that the Goods constitute an infringement of any patent, copyright, trademark, unfair competition or other similar law.
21. Limitation of Liability. Any action for a breach of these Terms must be commenced within one year after the cause of action has accrued. BCI’S ENTIRE LIABILITY TO CUSTOMER FOR DAMAGES FOR BREACH OF THESE TERMS, INCLUDING BUT NOT LIMITED TO SECTION 18, MAY NOT EXCEED THE PURCHASE PRICE PAID TO BCI FOR SUCH GOODS IN NO EVENT MAY EITHER PARTY HAVE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, OR LOST PROFITS OR REVENUES, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED BY THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN AND REGARDLESS OF THE BASIS FOR SUCH CLAIM.
22. Special Tooling; Other Property of Customer. Any tools, dies, plating or similar materials that BCI makes or acquires specifically for Customer at Customer’s expense shall be and remain Customer’s property. If BCI determines that conversion or adaptation of tooling is necessary or appropriate in connection with the production of the Goods, Customer shall pay the cost thereof. BCI will retain, without storage charges, all such tools, dies, plating or similar materials for use exclusively in connection with Customer’s Goods. If, for a period of two years, no orders are received from Customer for the Goods to be made with any such tools, dies, plating or similar materials, such property may be considered obsolete and, at BCI’s option, destroyed or scrapped by BCI without notice to Customer. Any resulting scrap value of such property shall belong to BCI as payment in full for costs associated with the disposition of such property. BCI reserves the right to return such property to Customer at any time and at Customer’s expense. Customer shall reimburse BCI for handling, packing and shipping costs in such event. BCI shall exercise reasonable care with respect to such property while in BCI’s physical possession, but shall not be responsible for ordinary wear and tear or for the condition or operation of such property when removed from BCI’s plant.
23. Patterns, Designs and Drawings. Any patterns, designs or drawings prepared by BCI in connection with Customer’s Order, including any corresponding intellectual property rights, shall be and at all times remain the property of BCI notwithstanding any fee or other charge paid by Customer in connection therewith. BCI does not grant to Customer any right or license to use any of BCI’s patterns, designs, drawings, intellectual property or other proprietary information for any purpose. BCI will retain, without storage charges, all such patterns, designs or drawings for use in connection with Customer’s Goods. If, for a period of two years, no orders are received from Customer for the Goods to be made with any such patterns, designs or drawings, such property may be considered obsolete and, at BCI’s option, destroyed by BCI without notice to Customer.
24. Release of Information. Customer agrees that BCI may post any patterns, designs, renderings, mockups or drawings prepared by BCI, including any trademarks, service marks, trade names, brand names, logos, trade dress and other proprietary indicia of goods and services, whether registered, unregistered or arising by law contained therein, on BCI’s website for general advertising purposes, unless Customer provides written notice to BCI of its objection to such postings; provided, however, that any Specifications with respect to the Goods shall remain subject to BCI’s confidentially obligations set forth in Section 19.
25. Assignment/Delegation. Either party may assign its rights hereunder and/or delegate its obligations hereunder without the consent of the other party; provided however that no assignment, transfer, delegation or subcontract shall relieve Customer of any of its obligations hereunder. These Terms shall be binding upon the successors, legal representatives and permitted assigns of the Parties.
26. Employment & Labor Law Compliance. BCI certifies that all goods ordered in accordance herewith will be produced under terms and conditions of employment which satisfy all the requirements of any applicable federal, state or local laws and regulations.
27. Severability. In the event of illegality or invalidity of a provision of these Terms under the law of a particular jurisdiction, the Parties shall deem that provision stricken in its entirety; the balance of these Terms shall remain in full force and effect.
28. Applicable Law. The law of the jurisdiction from which BCI ships the Goods, including such jurisdiction’s codification of Article 2 of the Uniform Commercial Code, shall govern the interpretation and construction of these Terms and any agreement or understanding relating hereto that is permitted in accordance with the terms hereof. All litigation concerning the sale of Goods pursuant to these Terms and the Parties’ performance relating thereto shall occur only in the state and federal courts of northern Ohio, and each party consents to exclusive jurisdiction in such courts.
29. Dispute Resolution. Except where injunctive or other equitable relief is being sought by BCI or Customer, neither Party may invoke formal dispute resolution procedures other than in accordance with this Section 29. Either Party may give the other Party notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of that notice, the receiving Party will provide a written response. Within 30 days, or longer as the Parties mutually agree in writing, after delivery of the receiving Party’s written response, executives of the Parties who have authority to resolve the dispute will meet to attempt to resolve the dispute. All reasonable requests for information will be honored. If the matter has not been resolved within 60 days, or longer as the Parties mutually agree in writing, after the disputing Party’s initial notice, or if the executives fail to meet within 30 days, or longer as the Parties mutually agree in writing, of the date of the receiving Party’s response, either Party may commence legal action with respect to the dispute or claim. All negotiations pursuant to this Section 29 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
30. Notices. Any notice or other communication required or permitted under these Terms will be in writing and will be deemed to have been given (i) when delivered personally; (ii) on the fifth business day after deposit in the United States mail, by registered or certified mail, postage prepaid, return receipt requested; (iii) on the day after delivery to a reputable national overnight air courier service, prepaid; or (iv) upon receipt of a facsimile or e-mail confirmation.
