ALL QUOTATIONS, PURCHASE ORDERS, AND INVOICES ARE SUBJECT TO THE TERMS AND CONDITIONS PRINTED BELOW, WHICH INCLUDE PROVISIONS DISCLAIMING AND EXCLUDING LIABILITY FOR INCIDENTIAL AND CONSEQUENTIAL DAMAGES AND LIMITING DAMAGES. BUYER AGREES BY ACCEPTANCE OF ANY PURCHASED GOODS FROM SELLER TO BE BOUND BY THESE TERMS AND CONDITIONSWHICH SHALL CONSTITUTE THE AGREEMENT BETWEEN THE PARTIES.
TERMS AND CONDITIONS
1. AGREEMENT. By ordering or accepting the Goods described in a Quotation, Purchase Order, or invoice Buyer agrees to be bound by the Terms and Conditions set forth below. None of these Terms and Conditions may be added to, modified, superseded or otherwise altered except by written instrument signed by an authorized representative of Seller and delivered to Buyer. Any different or additional terms contained in Buyer’s acknowledgement, Purchase Order or other document from Buyer are hereby rejected, including any terms or conditions that may be contained in such acknowledgement, Purchase Order or other document of Buyer and notwithstanding Seller’s act of shipping Goods or similar acts of Seller. If a Purchase Order shall be deemed an acceptance of a prior offer by Seller, such acceptance is expressly conditioned on Seller’s written assent to any additional or different terms contained therein. Acceptance of orders and deliveries pursuant to any Quotation or Purchase Order, are at all times subject to the approval of Seller’s Chief Financial Officer.
2. TERMS OF QUOTES. Quotations are open for acceptance and issuance of a valid Buyer Purchase Order for 10 days from the date of issuance. After 10 days, price Terms and Conditions are subject to change without notice. A preproduction run First Article will be supplied upon request. The First Article sample will be sent raw for dimension check only and shipped “Red Label” at Buyer’s expense. Buyer has 72-hours from Delivery for First Article approval. Additional approval time will be charged at a rate of $250 per day for machine down time.
3. TERMS OF PAYMENT. Standard payment terms are net 30 days from date of invoice/shipment unless otherwise specified in writing. Amounts not paid when due will be charged interest at a rate of 18% per annum until paid in full. Buyer will be responsible for all costs incurred by Seller in collecting past due amounts, including reasonable attorney fees and costs.
4. TITLE. Except for Goods sold pursuant to a conditional sales contract, all Goods delivered from Seller’s stock, on any sale resulting from a Quotation shall be complete, and the title shall pass upon actual delivery at the place from which shipment is made.
5. FORCE MAJEURE. Failure of Seller to deliver hereunder, or delay in making shipments, if occasioned by epidemics, pandemics, fire, explosion, flood, earthquake, war, riots, insurrection, civil disturbance, accident, storm, interruption or delay in transportation, shortage, strike or other labor dispute, inability to obtain materials and supplies, acts of government, any act of God, or any other causes of like or different character beyond the Seller’s control shall not subject Seller to any liability to Buyer
6. BUYER’S DUTY TO INSPECT. Buyer shall have fifteen (15) business days after receipt of a shipment of Products to perform such inspections and tests on such Products as Buyer desires to perform (the “Inspection Period”). Buyer shall only be entitled to reject Products if Buyer reasonably and in good faith determines that they do not substantially conform to meet the specifications, and the express representations of Seller set forth in the Quotation and Purchase Order . In order to reject non-conforming Products, Buyer must deliver written notice of rejection to Seller prior to the expiration of the Inspection Period (the “Rejection Notice”). The Rejection Notice shall specify the exact Products rejected on an individualized basis (the “Rejected Products”), as well as a detailed explanation as to why each of the Rejected Products are non-conforming. If Buyer fails for any reason to provide the Rejection Notice to Seller prior to the expiration of the Inspection Period, Buyer shall be conclusively deemed to have accepted all Products in the shipment. In addition, Products not specified as Rejected Products in a Rejection Notice shall be conclusively deemed to be accepted by Buyer. Buyer at its expense shall be responsible for promptly returning Rejected Products to Seller. If Seller advises that Buyer is not entitled to reject products, Buyer may submit that issue be submitted to arbitration pursuant to the Commercial Rules of the American Arbitration Association.
7. PERMISSIBLE VARIATIONS, STANDARDS AND TOLERANCES. All products are produced subject to mill tolerances and variations in respect to dimensions, weight, straightness, section, surface conditions, composition, mechanical properties, internal conditions and quality; deviations from such tolerances and variations consistent with practical testing and inspection methods and regular mill practices with respect to over and under shipments, any representations or certifications by Seller shall be limited by the foregoing.
8. QUANTITIES. Buyer agrees to accept over runs not to exceed 10% of ordered quantity on each line item. Closer control of quantity requires special arrangements in writing with Seller from the Buyer and may be assessed additional fees. Any or all excess inventory within the 10% threshold can be shipped and invoiced on the final release/shipment of the item on the Purchase Order. Buyer understands and agrees that all items produced by Seller for long term or blanket orders shall be shipped to Buyer before the end of the calendar year or upon any change to the part specification requested by Buyer.
9. TOOLS AND DIES: Tools, Dies, gages, fixtures are an integral part of the manufacturing process and included in non-reoccurring charges, payment by the Buyer for these items, whether quoted separately or not, conveys neither ownership nor the right to remove them from Seller’s plant.
10. DISCLAIMER OF WARRANTIES. Seller warrants that the products will substantially conform to written specifications provided by Buyer and accepted in writing by Seller. All parts will we warrantied to have no greater than 500 DPM unless otherwise agreed to in writing by Seller. The Seller makes no other warranties and expressly disclaims all other warranties, expressed or implied, statutory or otherwise, including, without limitation, any implied warranties or merchantability, infringement or fitness for a particular purpose. The express warranties set forth herein are not assignable, extend only to Buyer, and do not extend to subsequent owners of the products or of Goods incorporating the products.
11. LIMITATION OF LIABILITY.UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL OR CONSEQUESNTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES BASED UPON LOST-GOOD WILL, LOST SALES OR PROFITS, WORK STOPPAGE, DELAY, PRODUCT FAILURE, IMPAIRMENT OF GOODS OR OTHERWISE AND WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND IN ANY CASE, SELLER’S LIABILITY FOR ANY AND ALL LOSSES AND DAMAGED SUSTAINED BY BUYER AND OTHERSSHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE OF THE PRODUCTS UPON WHICH LIABILITY IS FOUNDED.
12. ENFORCEMENT OF TERMS; NO WAIVER. Any forbearance or failure of Seller to enforce any of these Terms and Conditions or to exercise any right arising from any default of Buyer shall not affect or impair Seller’s rights, and no such forbearance or failure shall be construed as a continuing waiver of Seller’s rights to act or to enforce each and every such term or condition.
13. DEFAULT. If Buyer fails to fulfill the terms of payment on any order, Seller may defer shipments until such payments are made, or, may at its option, cancel the order. Seller reserves the right, even after partial shipment on account of any order, to require from Buyer satisfactory security for performance of Buyer’s obligations, and refusal to furnish such security will entitle Seller to suspend shipments until such security is furnished and, at Seller’s sole discretion, to cancel the order.
14. CONFLICT WITH APPLICABLE LAW; SEVERABILLITY. No term or condition herein shall be effective or binding to the extent that it may require an illegal action. If any provision of these Terms and Conditions shall be judged by a court of competent jurisdiction or by an arbitrator to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of these Terms and Conditions and the effect thereof shall be confined to the provision as to which such adjudication is made.
15. PRICES; TAXES. Prices for the materials and services whether named in a Purchase Order, quoted or proposed, may be adjusted to reflect market changes to the price of raw materials in effect at the time of the manufacturing of the ordered product. Unless otherwise indicated, prices are exclusive of all city, state and federal taxes. Any taxes or tariffs which Seller may be required to Collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption and any of the material covered hereby, including taxes upon or measured by the receipts for the sale, thereof, shall be for the account of Buyer and Buyer shall promptly pay the amount thereof to the Seller upon demand.
16. MODIFICATION. No agreement or understanding in any way modifying the conditions of any Purchase Order shall be binding upon Seller unless made in writing and approved by Seller. Additional processes or changes to the product specification will be provided only on the prior written agreement of the Seller.
17. ENTIRE AGREEMENT. The Purchase Order, together with these terms and conditions, and any attached specifications and drawings, constitutes the entire final written agreement between the parties and is a complete and exclusive statement of all the terms by such agreement. In the event there is a conflict between the Purchase Order and these Terms and Conditions these Terms and Conditions shall control.
18. ASSIGNMENT. The Purchase Order and Buyer’s duties thereunder may not be delegated or assigned by Buyer without Seller’s written consent, and any assignment attempted without such consent shall be null and void and shall constitute, at Seller’s option, a cancellation of all Seller’s obligations hereunder. Seller may assign this order and its interest therein to any affiliated corporation, or to any corporation succeeding to Seller’s business without the consent of Buyer.
19. INTERPETATION. This order shall be construed according to the laws of the State of Oregon without regard for conflict of laws principles. The application of the United Nations Convention on Contracts for the international sales of Goods (1980) is excluded.
20. VENUE. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of a Purchase Order will be brought against any of the parties in Multnomah County Circuit Court of the State of Oregon or subject to applicable jurisdictional requirements in the United States District Court for the District of Oregon, and each of the parties consents to the jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to such venue.