The General Terms and Conditions, as published at https://www.melamine-papers.com/ (the “Terms”), govern all sales of goods and services by BMK Americas, LLC (“Seller”) to a buyer (“Buyer”). Seller hereby notifies Buyer that Seller objects to any terms and conditions in Buyer’s purchase order or other document which are additional to or different than Seller’s Terms, whether or not such additional or different terms would materially alter the contract.
General Terms and Conditions
- General.
These General Terms and Conditions (these “Terms”) apply to sales by BMK Americas, LLC (“Seller”) to any buyer (“Buyer”) and are the only terms that govern the sale of goods by Seller to Buyer in whatever form or quantity (hereinafter referred to as “Goods”). Any other document(s) containing terms and/or conditions that are in addition to or inconsistent with these Terms listed herein, including but not limited to penalties or liquidated damages for Seller’s failure to meet shipment dates or any other reason, shall not be binding upon Seller without the express written acceptance of liability by an authorized representative of Seller. Seller’s failure to object to any additional, inconsistent, or other provisions contained in any order or other form of communication from Buyer shall not be construed as either a waiver or acceptance of such provisions. Seller reserves the right to correct any clerical or typographical errors at any time.
- Acceptance.
These Terms and any other written stipulations to which these Terms apply, including but not limited to quotations, order confirmations, and invoices (collectively, this “Agreement”), constitute the entire agreement between Seller and Buyer and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms shall prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. No modification(s), waiver(s), alteration(s), or additional term(s) shall be valid against Seller unless said modification(s), waiver(s), alteration(s), or additional term(s) have been acknowledged in writing by Seller’s duly authorized representative.
- Prices.
All prices are in US dollars, unless otherwise provided for in the Agreement. In the event that there is an increase in taxes, custom duties, or costs incurred by Seller as a result of governmental actions, then Seller may increase the prices accordingly.
- Taxes and Other Charges.
Unless otherwise agreed to by the parties in writing, in addition to Seller’s quote or invoice price, Buyer is also responsible for the payment of any and all (i) use, sales, and excise taxes; (ii) duty, custom, inspection or testing fees; and (iii) any other fees, taxes, or charges imposed by any governmental or non-governmental authority arising from the Goods provided by Seller; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. In the event Seller is required to pay any of the fees, taxes or charges Buyer is responsible for as provided in this Section, Buyer herewith agrees to immediately reimburse Seller for such fees, taxes or charges, or Buyer agrees to timely provide an exemption certificate or other comparable document sufficient to waive such payment by Seller to the entity or authority imposing said fee, tax and/or charge. Buyer further agrees to waive any and all claims regarding the reasonableness of such payment and will indemnify, defend, and hold Seller harmless from any liability, loss, cost, damage, injury, deficiency, or expense, including reasonable attorneys’ fees and court costs incurred by Seller as a result of Buyer’s failure to reimburse or indemnify Seller as provided in this Section.
- Limited Warranty.
Seller warrants to Buyer that for a period of three (3) months from the date the Goods are delivered to the Delivery Point (as defined in Section 11) (the “Warranty Period”), that such Goods will materially conform to the samples and specifications agreed by the parties and will be free from material defects in material and workmanship when used as directed under normal conditions (the “Warranty”). The foregoing Warranty is not transferable. If any Goods do not conform to the Warranty during the Warranty Period, Seller may, at its option, either repair or replace any defective Goods or refund the purchase price of such defective Goods. Such repair or replacement, however, shall not extend the Warranty Period provided in this Section. In the event that Buyer makes, or has a third party make, any changes or repairs to the Goods, the Warranty shall be void and Seller shall have no liability for actions that occur subsequent to such Buyer or third-party modification to the Goods. The Warranty excludes labor and costs of labor for the removal of any Goods.
EXCEPT FOR THE FOREGOING WARRANTY, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Products manufactured by a third party (i.e., non-affiliates) (“Third-Party Products”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the Warranty and are sold “AS IS”.
Seller shall not be liable for a breach of the Warranty if: (i) Buyer makes any further use of the Goods after giving such notice; (ii) the defect arises due to failure to follow Seller’s oral or written instructions regarding the storage, installation, commissioning, use, or maintenance of the Goods; or (iii) the Goods are altered or repaired without Seller’s prior written consent.
Seller shall not be liable for a breach of the Warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within ten (10) days of when Buyer discovers or ought to have discovered the defect; (ii) the notice is given within the Warranty Period; (iii) Seller is afforded a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iv) Seller reasonably verifies Buyer’s claim that the Goods are defective.
THE REMEDIES SET FORTH IN THIS SECTION SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY.
Buyer shall test the quality of the products incorporating the Goods after the first ten (10) press cycles. - Design Improvements.
Seller’s Goods (and related specifications) may be changed from time to time to improve the design and construction of the Goods. As such, any illustrations, specifications or other descriptive material submitted to Buyer may not exactly depict the Goods at the time of delivery, are merely intended as a general description of the Goods, and are not deemed to constitute a warranty as to the particular specifications of the Goods.
- Delay.
Seller is not responsible for delay(s) in delivery for reasons beyond Seller’s reasonable control, including but not limited to, Force Majeure (as defined below). In the event of a delivery delay, the delivery schedule shall be extended for a period of time as may be reasonably necessary to compensate for such delay.
- Force Majeure.
“Force Majeure” means any cause not within the reasonable control of the party affected. Events of Force Majeure include, without limitation, acts of God, epidemics, pandemics, lockouts or other labor disturbances, wars, blockades, quarantines, embargoes, national or regional emergencies, riots or other civil unrest, fires, floods, earthquakes, explosions, terrorist threats or acts, failures of production facilities, shortages of fuel transportation, utilities, or raw materials, and governmental orders, actions, laws and regulations. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from Force Majeure. The party whose performance is impacted by Force Majeure (the “Impacted Party”) shall give notice of the Force Majeure event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. Notwithstanding anything contained herein to the contrary, in no event shall Force Majeure excuse Buyer’s payment obligations under the Agreement.
- Payments.
Unless otherwise agreed to by the parties in writing, payment is due within ten (10) days after delivery of the Goods. Notwithstanding any terms to the contrary, in the event of a delinquency, all sums due and owing to Seller will be subject to interest charges at the rate of one and a half percent (1.5%) per month or the maximum allowable interest rate under applicable law, whichever is lower, and Buyer shall be responsible and liable for all expenses incurred by Seller in collection, including reasonable attorneys’ fees. Seller reserves the right to require a security deposit from Buyer prior to fulfillment of the Agreement.
- Cancellation.
Buyer may request a cancellation of the order prior to Seller starting production of the Goods. In the event Seller approves Buyer’s cancellation request, Buyer shall be responsible for and shall pay any and all costs and charges incurred by Seller as a result of the cancellation.
- Delivery.
Unless otherwise expressly agreed in writing by the parties, Seller shall deliver the Goods within a reasonable time from Seller’s acceptance of Buyer’s order (subject to the availability of Goods) to Seller’s warehouse (the “Delivery Point”) using Seller’s standard method for packaging such Goods. Buyer shall take delivery of the Goods within fifteen (15) days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Delivery of the Goods shall be deemed completed once the Goods have left the Delivery Point via Buyer’s carrier or via a common carrier. Seller is not responsible for, and shall not be liable for, any damage, loss, or delays occurring during transit, and Buyer must make all claims directly to the carrier. Seller may, in its sole discretion, without liability or penalty, make partial shipments of the Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of this Agreement.
- Acceptance of Goods.
Buyer shall inspect the Goods within ten (10) days of receipt at Buyer’s facility (the “Inspection Period”). Failure to inspect and notify Seller of any nonconformity within the Inspection Period shall constitute a waiver of the right to inspect prior to payment for the Goods and shall also waive any claims for defects that a reasonable inspection prior to payment would have revealed.
If Buyer timely notifies Seller of any nonconforming Goods and provides the written evidence or other documentation as required by Seller, Seller shall, in its sole discretion, either (i) repair or replace the nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the nonconforming Goods to the Delivery Point. If Seller exercises its option to repair or replace nonconforming Goods, Seller shall, after receiving Buyer’s shipment of nonconforming Goods, deliver the repaired or replaced Goods to Buyer, at Buyer’s expense and risk of loss, to the Delivery Point.
- Title and Risk of Loss.
Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.
- Indemnification.
Seller shall not be liable whatsoever to Buyer for any claim or action by any third party arising out of, or alleged to rise out of, the delivery of or use of the Goods. Buyer agrees to indemnify, defend, and hold harmless Seller and its parents, affiliates and subsidiaries, and its and their respective directors, officers, employees, successors, and assigns from and against all claims, liabilities, losses, duties, and expenses, including attorneys’ fees and litigation expenses, arising out of (i) any third party claim regarding the delivery or use of the Goods; (ii) Buyer’s breach of the Agreement; (iii) any alteration or modification of the Goods not approved in writing by Seller, or any irregular design, use, storage, installation or application thereof by Buyer or any of Buyer’s employees, agents, subcontractors, invitees, customers or others with access to the Goods; or (iv) as to any claim that Seller’s fabrication of the Goods pursuant to designs supplied by Buyer infringed any patents, trade secrets or other rights of third parties. Third parties shall be deemed to include, without limitation, employees of Buyer as well as all third parties not connected with Buyer or Seller.
- Governing Law and Venue.
This Agreement shall be exclusively governed by the laws of the State of North Carolina without giving effect to any choice or conflict of law provisions or rule (whether of the State of North Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of North Carolina. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of North Carolina in each case located in the City of Greensboro and County of Guilford, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Return of Goods.
Except as provided under Section 12, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
- Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Agreement or to such other address that may be designated by the receiving party in writing, and a copy of a Notice to Seller shall also be provided at the address set forth below. All Notices shall be delivered by personal delivery, nationally or internationally recognized courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.
BMK Americas LLC
144 Welcome Center Ct.
Lexington, NC 27295
- Limitation of Liability.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
- Compliance with Law.
Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Goods.
- Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Waiver.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Confidential Information.
All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
-
Severability.
If a court of competent jurisdiction holds any term or provision of this Agreement to be invalid or unenforceable, such provision or portion thereof shall be considered separate and apart from the remainder of the Agreement and the other provisions shall remain fully valid and enforceable. -
Modification.
The terms of this Agreement may not be amended, modified, waived, superseded, or rescinded except by a writing signed by Seller’s duly authorized representative. -
Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. -
Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. -
No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. -
Entire Agreement.
The Agreement, together with these Terms and any attachments, manuals, guidelines, requirements, exhibits and supplements specifically referenced therein, constitutes the entire agreement between the parties and supersedes any and all other prior contracts and undertakings, both written and oral, among the parties or any of them, with respect to the subject matter herein and, except as otherwise expressly provided herein, is not intended to confer upon any other person any rights or remedies hereunder.
BMK Resitance Products Terms and Conditions
Last updated: March 2024