1. Terms Binding; Entire Agreement. The quote or order confirmation (collectively, the “Quote”) of BURT RIGID BOX, INC. (“BRB”) together with these General Terms and Conditions of Sale (“Terms”) and all other BRB created attachments and amendments to the Quote is an offer to sell BRB products (“Boxes”) to Buyer. BRB’s acceptance is subject to Buyer’s acceptance of these Terms. No amendment of these Terms will be binding upon BRB unless specifically agreed to by BRB in writing. Any BRB failure to object to any provisions contained in any purchase order or other communication from Buyer to BRB shall not be construed as an acceptance of such provisions nor as a waiver of these Terms. No action, inaction or course of dealing by or on behalf of BRB shall be deemed an acceptance of, or agreement with, any term in any other document relating to the subject matter herein to the extent same is inconsistent with these Terms. An agreement between BRB and Buyer (“Agreement”) shall be effective when BRB acknowledges that it will fulfill Buyer’s purchase order.
2. Delivery Terms; Title and Risk of Loss; Inspection and Damage. BRB states its delivery terms in each Quote, and the Quote includes all terms with respect to passage of title and risk of loss. Buyer shall inspect the Boxes upon receipt thereof, immediately report any shortage or damage to BRB and the carrier, and file any claims for shortage or damage with the carrier. Buyer must report any such claim within the earlier of: (a) sixty (60) days from Buyer’s unpacking or initial use of the Boxes; and (b) two (2) years from the delivery date to Buyer (the “Inspection Period”), or Buyer’s rights shall be waived.
3. Technical Documentation. Timely performance by BRB is contingent upon Buyer’s supplying to BRB, when needed, all required technical information, including, without limitation, plans, drawings, and specifications (“Documentation”). Buyer shall not use any Documentation that includes BRB comments, suggestions, or recommendations for any purpose (including without limitation the manufacture of any duplicate or similar Boxes referred to therein) other than in connection with Buyer’s current or future business with BRB. BRB shall retain exclusive ownership of all right, title and interest in and to, all improvements and intellectual property rights (including improvements or alternations to its production process) that may arise from or relate to BRB’s performance of the Agreement.
4. Acceptance. Unless Buyer provides BRB with written notice to the contrary within the Inspection Period, the Boxes shall be considered fully conforming to all applicable specifications. The parties agree that the Inspection Period provides a reasonable opportunity to inspect the Boxes.
5. Payment Terms; Deposits. All payment terms shall be set forth in the Quote. Unless otherwise stated, all payments shall be made in United States Dollars. Any deposit required by the Quote shall be nonrefundable unless otherwise stated.
6. Modifications. Buyer may request modifications to the Agreement, and BRB will use commercially reasonable efforts to accommodate such modification requests; provided, however: (a) any accepted modifications may require additional costs and adjustments to delivery dates and times; and (b) BRB does not guarantee that any requested modifications will be accepted.
7. Cancellations; Liquidated Damages. If Buyer requests cancellation, BRB may, at its option, either: (a) approve such cancellation, at no cost to Buyer, if BRB determines that its costs incurred in fulfilling Buyer’s Agreement are immaterial or insignificant; or (b) approve such cancellation, subject to Buyer’s prompt payment to BRB of liquidated damages in an amount equal to: (i) BRB’s unreimbursed, non-refundable raw materials costs associated with work on Buyer’s Agreement; plus (ii) BRB’s labor costs incurred in connection with BRB’s work on Buyer’s Agreement. Labor costs will be charged to Buyer at BRB’s then current retail rate for labor, which retail rate shall include a reasonable charge for overhead and margin.
8. Indemnification.
(a) By Buyer. For purposes of the Agreement, “Damages” means the aggregate of any and all claims, losses, costs, judgments, deficiencies, penalties, obligations, liabilities, damages, fines and expenses of any kind (including, without limitation, any special, incidental, consequential, punitive or any other indirect damages, and all reasonable attorneys’ fees and disbursements). Buyer agrees to indemnify, defend and hold harmless BRB and its affiliates, and their respective directors, officers, employees, shareholders and agents (collectively, the “BRB Indemnitees”) with respect to the aggregate of all Damages incurred or suffered by any BRB Indemnitees arising out of or relating to: (i) any breach of, or default in the observance or performance of any agreement made by Buyer in the Agreement or the failure of Buyer to fulfill any other obligation that it is required to perform or observe in the Agreement; (ii) any breach of or false or fraudulent, representation or warranty made by Buyer in the Agreement; (iii) any use of the Boxes by any person or entity, including any improper use of the Boxes or use for which the Boxes were not designed or intended; and (iv) any claim by any third party that any labeling, design, or instructions provided by Buyer to BRB in connection with the design, manufacture or use of the Boxes infringes in any way upon any rights, including intellectual property rights, it being the express responsibility of Buyer to secure any and all necessary licenses, consents and permissions on behalf of BRB, at no cost to BRB, for BRB to produce the Boxes to Buyer’s specifications.
(b) By BRB for Infringement – Subject to Buyer’s full compliance with all Terms (including Section 8(a)(iv)), BRB hereby represents and warrants, to BRB’s actual knowledge, that BRB’s design and manufacture of the Boxes does not infringe any third-party patent, patent application, license, trade secret, know-how, trademark or any other intellectual property right of any kind. BRB agrees to indemnify, defend and hold harmless Buyer with respect to the aggregate of all Damages (excluding any special, incidental, consequential, punitive or any other indirect damages) incurred or suffered by Buyer arising out of or relating to any breach of or false or fraudulent representation or warranty made by BRB contained in the foregoing sentence.
(c) Limitation. BRB shall have no liability under Section 8(b) to indemnify, defend or hold harmless Buyer to the extent that any Damages incurred or suffered by Buyer arise out of or relate to: (i) any addition, modification, or alteration of the Boxes by Buyer (or any third party) after delivery; (ii) use of the Boxes in any manner or for any purpose for which they were not designed or intended; (iii) design, manufacture and use of the Boxes and any components for which Buyer failed to obtain a requisite third party license, consent or permission; (iv) any aspect of the design, manufacture and use of the Boxes in accordance with any drawings, specifications, instructions and/or other materials provided by Buyer to BRB.
9. Limited Warranty.
(a) Scope. BRB warrants solely to Buyer of the Boxes that commencing on the date of delivery of the Boxes to Buyer and continuing through the Inspection Period (“Warranty Period”), the Boxes will be free from material defect in material and workmanship, under normal and intended use (“Warranty”).
(b) Remedies for Failure to Comply with Warranty. BRB reserves the right, in its sole discretion, to verify any Warranty claim by Buyer. If any of the Boxes are determined by BRB to not conform with the Warranty during the Warranty Period and if Buyer gives BRB written notice of such defect in material or workmanship within the Warranty Period, then Buyer’s sole and exclusive remedy and BRB’s sole obligation shall be, at its sole cost and expense, to correct all such defects in material and/or workmanship by repairing, replacing or modifying the defective Boxes to comply with the Warranty. Notwithstanding anything to the contrary contained herein, should this exclusive remedy be finally determined by a court of competent jurisdiction to fail of its essential purpose, then BRB’s liability to Buyer for the Boxes shall be limited to the aggregate purchase price paid for the defective Boxes.
(c) Cost of Repairs. As provided herein and during the Warranty Period, BRB shall bear the cost of repair, replacement or modification of any Boxes.
(d) Labor and Materials. During the Warranty Period, BRB will provide all labor and materials pursuant to the Warranty without charge to Buyer, as provided herein. BRB will own all materials, if any, associated with defective Boxes. BRB may use new and/or reconditioned materials in performing warranty repairs. Buyer shall pay BRB’s then current standard charges for labor and materials supplied by BRB for repairing or replacing Boxes after the Warranty Period.
(e) Exclusions. This Warranty does not cover any defects occurring: (i) from normal wear and tear (including wear and tear from customer’s storage or internal handling); (ii) in shipment to or from Buyer or the point of manufacture; (iii) due to Force Majeure, any external cause, fire, accident, problems with electrical power or any other similar cause; (iv) due to use for any purpose or application, or under any conditions, for which the Boxes were not designed or intended to be used; or (v) due to alteration or modification by any party other than BRB.
(f) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 AND THIS SECTION 9 BRB MAKES NO OTHER REPRESENTATION, WARRANTY OR GUARANTEE OF ANY KIND TO BUYER OR ANY OTHER PERSON, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ORAL OR WRITTEN, DIRECT OR INDIRECT; AND EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES AND GUARANTEES (INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION, WARRANTY OR GUARANTEE OF MERCHANTABILITY, OF FITNESS FOR AN ORDINARY, GENERAL OR PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR AS TO ANY SPECIFICATION, OR FROM ANY COURSE OF DEALING OR USE OF TRADE); WITH RESPECT TO THE BOXES.
(g) No Authority to Alter or Create Warranty. No BRB employee, agent, representative or distributor has any authority to create any warranty beyond the Warranty provided herein or otherwise alter any of the terms of the Warranty in any way, whether by oral or written statement.
10. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL BRB HAVE ANY LIABILITY OF ANY KIND TO BUYER OR ANY OTHER PERSON, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR ANY OTHER THEORY OF LAW, FOR: (a) INDEMNITY (OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 8; (b) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, (EVEN IF BRB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE); OR; (c) ANY OTHER LOSSES, DAMAGES OR INJURIES OF ANY KIND TO BUYER OR ANY OTHER PERSON. IN NO EVENT SHALL BRB’S AGGREGATE LIABILITY TO BUYER AND ANY THIRD PARTY FOR LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF OR PURSUANT TO THE AGREEMENT OR THE USE OF THE BOXES, INCLUDING, WITHOUT LIMITATION, INJURY TO ANY PERSON OR PROPERTY, WHETHER BASED ON CONTRACT, TORT, WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY, EXCEED THE AGGREGATE PURCHASE PRICE PAID BY BUYER TO BRB FOR THE BOXES THAT ARE SUBJECT TO THE APPLICABLE CLAIM.
Notwithstanding anything to the contrary contained in this Section 10, in the event that BRB has an established prior course of dealing with a Buyer pursuant to which one party provides reasonable compensation to the other for additional labor costs caused by such party’s defective products or performance, such established course of dealing will not be voided by the terms of this Section 10.
11. Exclusive Remedy. Except as set forth in Section 8(b), the Warranty is the sole and exclusive remedy of Buyer (and of any other person or entity), and in lieu of all other remedies that may be available to Buyer as against BRB.
12. Miscellaneous.
(a) Taxes All taxes, when applicable, will be the sole obligation of Buyer.
(b) Publicity. Buyer hereby consents to BRB’s use of Buyer’s name as a reference and customer in BRB sales and marketing materials and efforts including, without limitation, brochures, sales literature and BRB’s website.
(c) Force Majeure. BRB’s performance hereunder is excused if and for so long as a breach is caused by a Force Majeure and reasonable notice thereof has been given to Buyer. If BRB fails to perform hereunder because of a Force Majeure, BRB shall fulfill its obligations hereunder within a reasonable time after the Force Majeure situation ceases to exist.
(d) Credit Sales. BRB reserves the right to withdraw credit and require full payment before production, shipment, or delivery if, in its sole discretion, it determines that Buyer’s financial condition does not merit BRB’s extension of credit. A finance charge of 1.5% per month will be assessed on all past due balances. If such finance charge exceeds the maximum rate allowed by applicable law, then such finance charge shall be equal to the maximum rate allowed by applicable law.
(e) Collection Costs. Buyer shall be liable for all of BRB’s collection costs, including reasonable attorneys’ fees and costs.
(f) Governing Law; Disputes. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States without reference to principle of conflicts of law, and any dispute arising between the parties pursuant to the Agreement shall be subject to the exclusive jurisdiction of, and shall be finally settled in, an action commenced and maintained in any state or federal court sitting in Otsego County, New York, United States, and the parties irrevocably consent and submit to the personal jurisdiction of said courts and agree not to challenge or assert any defense to the jurisdiction of said courts, including, without limitation, forum non conveniens. If Buyer commences any such action in a court other than any of said courts, Buyer shall pay all of BRB’s cost and expense, including attorneys’ fees and court costs, to move such action to the appropriate court in Otsego County, New York.
(g) Limitation on Action. Buyer may not bring any action at law or in equity against BRB unless it is commenced within one (1) year from the end of the Inspection Period or from the date any alleged claim accrued, whichever is earlier.
(h) Assignment. Buyer may not assign any of its rights, duties or obligations under the Agreement without BRB’s prior written consent.
(i) Survivability. All representations, warranties and agreements herein shall survive and continue to bind the parties after the execution and delivery of the Agreement and the expiration or earlier termination of the Agreement, to the extent and for as long as may be necessary to give effect to the rights, duties and obligations of the parties pursuant to the Agreement, subject to any applicable statute of limitations.
(j) Inconsistencies. If any provision of these Terms is inconsistent with any provision of the Quote, then the provision of the Quote shall control.