Unless otherwise specifically provided by separate written agreement signed by Bancroft Bag (seller), the terms and conditions below and the manufacturing specifications and other provisions, shall constitute the entire agreement between seller and buyer, and no other terms, conditions or specifications shall be of any effect. If buyer finds any term or condition or specification not acceptable, buyer must notify seller in writing immediately, and failing receipt by seller of such notification and written consent by seller to requested change hereof, the terms, conditions and specifications of this instrument shall constitute the contract between buyer and seller. Any additional or different terms, conditions, or specifications contained in buyer’s order not consented to by seller are superseded by this contract document.
Any sales or excise tax imposed or payable on any of the goods shipped under this order or the materials required for their manufacture by any Federal, State or Local Government Authority shall be added to the price specified on the face hereof and paid by the Buyer.
2. TERMS OF PAYMENT:
(a) If Seller extends credit, invoices shall be due and payable within 10 days of invoice or as stated on the face thereof. Extensions of credit may be changed or withdrawn at any time.
(b) If seller does not, or ceases to, extend credit, payment terms shall be, at Seller’s option, any type of cash terms or any type of secured transaction terms.
(c) Cash discounts, if any, shall be allowed according to the terms on the face thereof, provided that there is no past due indebtedness. All indebtedness outstanding after due date shall bear interest at the annual rate specified on Seller’s invoices unless the rate exceeds the highest rate permitted by applicable state law, in which event the rate shall be the highest permissible by law.
(d) Buyer shall make payments without expense to Seller.
(e) In the event payment is not made by Buyer in accordance with the terms of Seller’s invoice covering the goods sold, Buyer agrees to pay Seller’s cost of collection, including reasonable attorney’s fees.
3. DELIVERY TERMS:
(a) Seller will make deliveries, in whole or in part, as near as possible to Buyer’s requested delivery dates but Seller shall not be liable to Buyer for delays, irrespective of whether Seller or Buyer determines the mode of transportation.
(b) Unless otherwise specified on the face hereof, Buyer agrees to accept delivery of the goods no more than ninety (90) days from date of manufacture.
(c) Buyer shall bear all risks of loss of or damage to goods from the time goods is delivered in good order into the custody of a carrier for transportation. Buyer is urged to examine all deliveries carefully immediately upon delivery and before signing the receipt. If any goods are visibly damaged or if there are any shortages of goods delivered, Buyer must have written confirmation of the damage or shortages noted on the freight bill or other receipt by the agent of the carrier. Signing a receipt without notation of damage to, or shortages of, goods shall constitute conclusive evidence of receipt of Product in satisfactory condition and in the quantities specified in the freight bill or other receipt. Any claim of damage in transit or for shortages should be made promptly by Buyer against the carrier. If any Product is lost, disappears or is damaged or destroyed, in whole or in part, for any reason while in the possession of Buyer or any carrier, and before payment in full therefore, and Seller suffers any loss by virtue thereof, Buyer shall indemnify and save harmless Seller from such loss. If any such loss is covered by insurance to which Buyer is a beneficiary and/or by recourse by Buyer against any other party, then any such claim and any proceeds payable with respect thereto shall automatically vest in Seller.
4. SCOPE OF WARRANTY-LIMITATIONS OF WARRANTY:
(a) Seller warrants, to buyer only, that the goods manufactured and supplied are manufactured in accordance with the specifications on the order sheet, and are free from defects in materials and workmanship except as otherwise noted herein.
(b) Buyer acknowledges that seller is not the designer of the goods and that the design of said goods, and the specifications for the manufacture thereof, are solely the design and work effort of buyer who acknowledges that in buyer’s design of said goods, and in the formulation of said specifications, that buyer has relied solely upon buyer’s own judgment and expertise in determining the content of such design and specifications. Seller suggests that buyer review the current department of transportation specification manuals. Accordingly, seller does not warrant to any extent, the merchantability or fitness of the bags and goods for ordinary use, nor for any particular use, which are contemplated or intended by buyer, by buyer’s customers or assignees or by others, it being hereby acknowledged and agreed by buyer that SELLER IS NOT PROVIDING, AND THE BUYER DOES HEREBY WAIVE, ANY WARRANTY UNDER LOUISIANA CIVIL CODE ARTICLE 2524 THAT THE BAGS AND GOODS ARE REASONABLY FIT FOR THEIR ORDINARY USE, NOR THAT THE BAGS AND GOODS ARE FIT FOR THE INTENDED USE BY BUYER, OR BUYER’S CUSTOMERS OR ASSIGNEES OR OTHERS, OR FOR THE PARTICULAR PURPOSE OF BUYER, OR BUYER’S CUSTOMERS OR ASSIGNEES OR OTHERS. Buyer and seller hereby further acknowledge and agree that, other than the limited warranty provided by seller, as set forth in Section 4(a), above, the SELLER IS NOT PROVIDING, AND THE BUYER DOES HEREBY WAIVE, ANY WARRANTY AGAINST REDHIBITORY DEFECTS, UNDER LOUISIANA CIVIL CODE ARTICLE 2520, AND BUYER BY EXECUTION HEREOF HEREBY ACKNOWLEDGES AND AGREES THAT THIS EXCLUSION OR LIMITATION IS CLEAR AND UNAMBIGUOUS AND HAS BEEN BROUGHT TO THE ATTENTION OF THE BUYER.
5. CLAIMS AND LIMITATIONS OF LIABILITY:
(a) Shortages. Claims for shortages must be made to seller in writing within 10 days after receipt of shipment which buyer and seller agree is a reasonable period to allow buyer to inspect the shipment for correctness as to content. It is agreed that any claims for shortages not made with 10 days after receipt of shipment are hereby waived.
(b) Seller will replace, without charge, or make a fair allowance for any noncompliance with the specifications on the face hereof or any defects in material or workmanship in such goods which existed at the time of delivery of said goods to buyer. Seller may require the return of the goods alleged by buyer to be defective to establish such claim. Buyer shall not be entitled to deduct from the price invoiced to it by seller the amount of any claim asserted by buyer unless seller shall have allowed claim, and buyer’s failure to comply with this provision shall constitute a material breach of this agreement and entitle seller to refuse to make further deliveries hereunder.
(c) It is expressly agreed that the liability of seller for any breach of seller’s limited warranty, as set forth in Section 4(a), above, of the goods sold to buyer, shall be and is hereby expressly limited to the return by seller to buyer of the purchase price of those goods in regard to which such breach occurred, and seller shall have no liability of any kind for any incidental damages or consequential damages of any kind resulting therefrom, including but not restricted to, no liability of any kind for any damage or loss incurred or suffered by buyer or to buyer’s customers, assigns or other gaining possession of such goods from buyer or from buyer’s agents, dealer’s or others, for damage or loss to the product packaged or sought to be packaged in such goods or for loss of profits occasioned thereby, or for bodily injury of any type or for property damage of any type to the property of others.
(d) Claims against seller other than for shortages (the claims limitation for which is set forth in Section 5(a) above) shall be made in writing by buyer to seller within 30 days after receipt of shipment, and any claim not made within that time is hereby waived. Buyer and seller acknowledge that 60 days is a reasonable period to allow buyer to inspect the shipment to determine the existence of any condition of the goods which would give rise to any claims against seller.
(e) Seller shall not be liable under any circumstances to buyer or any other person in the event the goods are not warehoused, handled, used, packed or distributed in accordance with customary good practices of the trade.
6. APPLICATIONS OF LOUISIANA LAW:
It is agreed that the rights and duties of buyer and seller with regard to the manufacture and supply of the goods sold by seller to buyer, and with regard to the interpretation of, and validity and enforceability of the terms and conditions of this instrument, shall be governed exclusively by the Law of Louisiana.
7. SPECIAL OBLIGATION OF BUYER WHO IS A DEALER OR RE-SELLER OF THESE GOODS:
If buyer is a dealer or re-seller and acquires the goods for buyer’s sale to others, then buyer specially agrees to incorporate as part of terms of the sale by buyer to buyer’s customers the entirety of the provisions of Sections 4, 5(b), and 5(c) and 6 above, and further agrees specially to bring to the attention of such customer the Limitations of Warranty, Limitations of Liability, and Claims Requirements contained in such Sections. Buyer agrees to hold seller harmless from any liability of any kind which buyer has or may have to buyer’s customer or customers by reason of the failure of buyer fully to comply with the provisions of this paragraph.
Seller shall not be liable to Buyer or any other person for any failure in the performance of any obligation under this agreement due to events beyond its reasonable control including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, sabotage, strikes, lockouts, labor disputes, labor shortages, work stoppages, transportation embargoes or delays, failure or shortage of materials, supplies or machinery, acts of God, acts or regulations or priorities of the Federal, State or Local governments or branches or agencies thereof, and government contracts or shipments to purchases to fulfill government contracts. When the events operating to excuse performance by either party shall cease, this agreement shall continue in full force until all deliveries have been completed.
9. SPECIALLY MADE GOODS:
(a) Over/Under Runs. Seller may deliver and Buyer will accept delivery of a greater or lesser quantity of all specially made (whether in construction or materials) and printed goods not to exceed ten percent (10%) of that ordered. Please consult plant on purchases below established minimum order quantities, depending on bag type. Similarly, Seller may deliver, and Buyer will accept delivery of, goods varying from measurement specifications to the extent permitted by general industry practice.
(b) Upon expiration or prior termination of this agreement in whole or in part for any reason, Buyer shall (1) pay for and accept prompt delivery of all completed specially made and printed goods ordered at Seller’s regular prices in effect at date of delivery, (2) pay for and accept prompt delivery of all specially made and printed items in process which Seller at its option completes at Seller’s regular prices in effect at date of delivery, and (3) reimburse Seller for any loss on incomplete orders which Seller at its option does not complete including but not restricted to materials ordered for specially made and printed goods ordered, and (4) reimburse Seller for any loss on incomplete orders which Seller at its option does not complete including but not restricted to materials purchased to complete orders.
10. DRAWINGS AND PRINTING:
Printed orders may not be cancelled. All charges, if any, for drawings, engravings or other preparatory materials made or bought by Seller for any order are service charges only, and all such material shall be and remain the property of Seller. Seller shall not be obligated to begin production on orders for printing until Buyer approves sketches furnished by Seller of such printing.
11. RETURN OF PRODUCT:
No return of goods to Seller will be accepted, whether under warranty or otherwise, unless previously authorized in writing by Seller.
12. PRODUCT IMPRINT:
Seller reserves the right to attach its imprint to all goods unless it receives written notice from Buyer to the contrary prior to production.
In the event that Buyer becomes insolvent or unable to pay its debts as they become due or in the event of voluntary or involuntary bankruptcy proceedings by or against Buyer or the appointment of a receiver or assignee of any of Buyer’s property for the benefit of any one or more of Buyer’s creditors, Seller may elect to cancel the Agreement and any unfulfilled obligations of Seller hereunder.
(a) Buyer shall indemnify and hold Seller harmless from and against any claim for infringement or the like based upon any design, legend or other matter manufactured or printed by Seller on the goods at Buyer’s request or after Buyer’s approval, and from any action in connection therewith, and any judgment or other recovery therein. Buyer shall promptly pay or secure any judgment or recovery together with Seller’s reasonable costs and expenses, including attorney’s fees, incurred in investigating, settling or defending any claim or action.
(b) Buyer shall assume all responsibility for, and save Seller harmless from, any and all violations (including, but not limited to, all expenses and costs of every kind and nature resulting there from) of Federal and/or State Pure Food and Drug laws, Fair Packaging and labeling Act, or from any subject matter required by law or prohibited by law, authorized by Buyer to be printed or lithographed on or omitted from goods covered by this order.
(c) Seller certifies to Buyer that the goods covered by this agreement will be produced and manufactured in compliance with all applicable laws.
15. DEFAULT AND WAIVER:
(a) If Buyer fails with respect to this or any other agreement with Seller to pay any invoice when due or to accept any shipment as scheduled, Seller may, without prejudice to other remedies, defer further shipments until the default is corrected or terminate this agreement.
(b) No course of conduct, or any delay of Seller in exercising any rights hereunder shall waive any rights of Seller or modify this agreement.