OREGON WEST LUMBER CORPORATION
Terms and Conditions for the Sale of Goods
1. Applicability and Entire Agreement. These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of logs, lumber or any other goods (collectively, “Goods”) by Oregon West Lumber Corporation and its affiliates (collectively, “Seller”) to the buyer ordering the Goods (“Buyer”). Collectively Buyer and Seller are referred to as the “Parties” and individually as “Party.” The purchase order, but only to the extent consistent with these Terms, the credit application (if any), Seller’s acceptance of a purchase order (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Seller expressly rejects Buyer’s general terms and conditions of purchase, and fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of any Order Confirmation by Buyer (which shall be deemed accepted should Buyer not object in writing within five (5) business days of receipt of the Order Confirmation) or acceptance of the delivery of the Goods shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation. Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence covering the sale of the Goods (“Master Agreement”), then the Master Agreement shall prevail to the extent of any inconsistency with these Terms.
2. Specification of Goods. Buyer’s provision of any drawings and specifications which have been prepared by others, in no way makes Seller liable for any errors or omissions contained therein and Seller makes no representation or warranty about the fitness of the Goods for any particular project or use. Buyer acknowledges that any specification of the Goods included in the Agreement and Seller submittal documents are those requested by Buyer; any substitutions of materials are made at Buyer’s instruction and risk; and Seller makes no representation or warranty regarding any substitutions.
3. Delivery. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of the Goods. Delivery dates given by Seller are estimates only and are subject to shipping variations and requirements. Seller shall not be liable for any delays, loss, or damage in transit. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the delivery address listed on Seller’s Order Confirmation, or if there is no Order Confirmation, the delivery address listed on the purchase order (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer and to ship all Goods in quantities equal to the nearest full package, according to Seller’s normal packaging. 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 Buyer’s purchase order.
4. 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 Oregon Uniform Commercial Code.
5. Quantity Differences. If Seller delivers to Buyer a quantity of Goods of up to five percent (5%) more or less than the quantity set forth in the Order Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Order Confirmation adjusted pro rata.
6. Shortages. The quantity of any installment of Goods as recorded by Seller on dispatch from the origin of the Goods is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Subject to Section 5 above, Seller shall not be liable for any shortages of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the shortage within five (5) days of the date when the Goods were received or would in the ordinary course of events have been received. Any liability of Seller for non-delivery or shortages of the Goods shall be, at Seller’s sole option, limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. Buyer acknowledges and agrees that the remedies set forth in this Section 6 are Buyer’s exclusive remedies for any non-delivery or shortages of Goods.
7. Rejection of Goods. Buyer shall inspect the Goods within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless Seller receives a written notice from Buyer during the Inspection Period that identifies the Nonconforming Goods, including describing the non-conformity (a “Nonconforming Goods Notice”) during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Order Confirmation; or (ii) the Goods are damaged. If the Nonconforming Goods Notice is not received within the timeframe set forth in this Section 7, Buyer shall be deemed to have waived any right to reject such Goods. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to Buyer. Buyer acknowledges and agrees that the remedies set forth in Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. 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.
8. Returns. Any returns will be accepted at Seller’s sole discretion, and Seller reserves the right to refuse returns. Buyer agrees to pay a restocking charge for any returns Seller accepts, plus storage, handling, interest and freight. The amount of restocking charge will depend on the condition of the Goods and their market value. The restocking charge will be negotiated between Buyer and Seller when the Goods are returned, but in no event will it be less than 15%.
9. Price. All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; 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. The prices exclude transportation and insurance costs which are the responsibility of the Buyer.
10. Payment Terms. Buyer shall pay Seller all amounts due within thirty (30) days after the date of Seller’s invoice. Seller reserves the right to require pre-payment in its sole discretion. Buyer shall pay interest on all late payments at the lesser of the rate of one and one-half percent (1½ %) per month or the highest rate permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any amounts due, including without limitation actual costs of collection and attorney’s fees and costs whether or not litigation is commenced or prosecuted to final judgment e payment. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
11. Limited Warranty. Seller warrants the Goods will materially conform to the Agreement and Seller’s submittals, if any. If the sale is based upon a sample, the sample shown by Seller to Buyer was for demonstration purposes only, and Seller makes no warranty that the Goods delivered shall conform to the sample; conformity of the Goods to the sample is not a part of the basis of the bargain between Seller and Buyer. Seller shall have no obligation or liability with respect to any warranty claim based upon: (a) any Goods that have been altered, modified, or revised; (b) the combination, operation, or use of any Goods with other products or services; (c) failure of Buyer to implement any update provided by Seller that would have prevented the claim; (d) unauthorized use of Goods, including, without limitation, a breach of the provisions of the Agreement; or (e) Goods made to Buyer’s specifications. The limited warranties in this Section 11 are not transferable. EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION 11 SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED REGARDING THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
12. LIMITATION OF LIABILITY. SELLER’S LIABILITY AND BUYER’S SOLE REMEDY FOR THE SITUATIONS DESCRIBED IN SECTIONS 6 AND 7, ARE SET FORTH IN SECTIONS 6 AND 7, RESPECTIVELY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY, IN THE AGGREGATE, OF SELLER, INCLUDING BUT NOT LIMITED TO, SELLER’S PRINCIPALS, OFFICERS, DIRECTORS, AFFILIATES, AGENTS, INSURERS, EMPLOYEES, SUBCONTRACTORS AND SUPPLIERS (COLLECTIVELY “SELLER PARTIES”), TO BUYER, BUYER’S SUCCESSORS, ASSIGNS, INVITEES, AGENTS, AND ANYONE CLAIMING BY, THROUGH OR UNDER BUYER, FOR ANY AND ALL CLAIMS, LOSSES, COSTS OR DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATED TO THE GOODS OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR OTHER BREACHES OF CONTRACT, WRONGFUL DEATH, PROPERTY DAMAGE, PROPERTY LOSS, ATTORNEY FEES, NEGLIGENCE, INTENTIONAL TORTS OR STATUTORY VIOLATIONS (“LOSSES”) SHALL, BE LIMITED TO THE AMOUNT OF THE PRICE ACTUALLY RECEIVED BY SELLER FROM BUYER UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THIS LIMITATION OF LIABILITY WILL NOT APPLY TO LOSSES RESULTING SOLELY FROM SELLER’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA 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.
13. Assumption of Liability. It is understood and agreed that Buyer assumes all risks and liabilities resulting from the use of the Goods. Seller neither assumes not authorizes any person to assume for Seller any of the liability in connection with the sale or use of the Goods.
14. Force Majeure. In the event of any strikes, lockouts, labor troubles of any kind, accidents, perils of the sea, fire, earthquake, civil commotion, war or consequences of war, government acts, restrictions or requisitions, failure of suppliers to deliver, bankruptcy or insolvency of suppliers, suspension of shipping facilities, act or default of carrier or any other contingency of whatsoever nature beyond Seller’s control affecting production, transportation or boarding point, loading, forwarding or unloading at destination of the Goods covered by the Agreement, including disturbances existing at the time the Agreement was made, or any other commercial impracticality (collectively a “Force Majeure Event”), Seller’s performance obligations shall be suspended and Seller shall not be liable for any delay or failure in performance, including without limitation shipment. Buyer’s performance obligation, including without limitation payment obligations, s are not excused or suspended by Force Majeure Events. Upon the occurrence of a Force Majeure Event, if delivery and installation is not made during the period(s) specified in the Agreement, Buyer shall accept delivery and installation under the Agreement when shipment is made within a reasonable time after the cessation of the Force Majeure Event.
15. Compliance with Law. Buyer shall at all times comply with all laws applicable to the operation of its business, this Agreement, Buyer’s performance of its obligations hereunder, and Buyer’s use of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law.
16. Indemnification. Buyer agrees to indemnify, hold harmless and defend Seller (and its employees, subsidiaries, affiliates, successors and agents) from and against any and all claims, judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and attorneys' fees) incurred or suffered by Seller which relate to or arise out of Buyer’s purchase, use, handling, sale or distribution of the Goods sold hereunder.
17. 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.
18. 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 by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.
19. Assignment. Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer 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. Seller may assign or delegate its rights or duties under this Agreement.
20. 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.
21. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
22. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.
23. Governing Law; Jurisdiction. This Agreement is governed by, and construed in accordance with the laws of the State of Oregon without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction]. All legal proceedings shall be instituted in the state or federal courts serving the State of Oregon, County of Jackson. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
24. JURY TRIAL WAIVER. THE PARTIES AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT OF ANY CLAIM, COUNTERCLAIM, CROSS-COMPLAINT, OR CAUSE OF ACTION, WHETHER ARISING IN CONTRACT, TORT, COMMON LAW OR STATUTE, THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST, ON ANY MATTER ARISING OUT OF OR RELATED TO THE GOODS OR THIS AGREEMENT OR ANY OTHER DOCUMENTS EXECUTED IN CONNECTION THEREWITH.
25. Notices. All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested) and are deemed delivered the following business day (if by overnight carrier) or three calendar days after deposit in the mail (if by certified or registered mail).
26. Severability. If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
27. Signatures. Each of the parties executing this Agreement covenants and warrants that it is duly authorized to execute this Agreement, and that such party has duly authorized the execution of this Agreement. The parties agree that this Agreement may be electronically signed and that the electronic signatures appearing on the Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. this Agreement may be executed by affixing an electronic signature by DocuSign, AdobeSign or the equivalent electronic signature and digital transaction management service. All parties also agree that the electronic transmission of signed documents will be relied upon as signed originals, and that signatures on separate originals will have the same force and effect as if all signatures were made on single original of this Agreement