Goods sold to customer (Buyer) will be confirmed with an Order Confirmation from our company (Seller). The Order Confirmation will confirm the verbally transacted contract between Buyer and Seller. The Order Confirmation and the acceptance of it shall be considered a contract in the state in which Seller’s office shown on the face of the order confirmation is located and the contract shall be governed by the laws of that state.
These terms and Conditions of Sale are an offer to sell only upon terms and conditions stated below. The offer is expressly limited to Buyer’s acceptance of these terms and conditions. Any conflicting terms contained in Buyer’s order are only proposed modifications to the parties’ contract, and shall not become a part of the parties’ contract unless Seller expressly agrees to the specific conflicting term in a signed writing that expressly references any one or more of the below Terms and Conditions of Sale that are no longer applicable to the parties’ contract.
The grading and reinspection rules of the grading association (WWPA, WCLIB, SPIB,APA, NLGA, NELMA or other recognized grading agency) whose stamp appears on the goods purchased by the Buyer shall be deemed included in and part of the contract except as otherwise set out herein. Any inconsistency between those rules and the terms and conditions contained herein shall be resolved in favor of the terms and conditions contained herein. No other modification of those rules shall be effective unless made in writing and signed by Seller’s authorized representative.
Claims and Reinspection
Claims for shortages, defects, nonconforming goods or errors in shipment must be made in writing within 5 days after receipt of shipment, except that notice of claims based on moisture content must be given to Seller within 72 hours after receipt of shipment. Buyer shall within 15 days following the date of completion of delivery, furnish to Seller in support of a claim, a detailed proof of claim in writing, including allmaterial facts upon which claim is made.
If Buyer’s claim is based upon the grade or quality of the goods, or any portion thereof, Buyer shall accept delivery of and pay for, in accordance with the terms of the agreement, the portion of the goods in respect to which no claim is made, and shall hold intact and properly protect for a period of 30 days, for inspection by Seller or its authorized agent, the portion of goods in respect to which claim is being made hereunder. Any reinspection of the goods shall be conducted and governed by the association which grade stamped the goods. The rules and standards of that association, including any 10-day or other time limitation for the assertion of acknowledgement of claims or for requests for inspection, shall govern and shall be thebasis for final settlement. The findings of that association shall be binding upon the parties in the event of litigation or arbitration. The expenses of the inspection and survey shall be borne by Seller if the item complained of is found to be more than 5%below grade. If 5% or less, the expense shall be borne by Buyer.
All claims for shortage or damage related to shipments must be supported by written statement of Buyer or its agent, stating unit count, piece tally, seal number of the railcar if boxcar shipment and car numbers and initials, if any. If the shipment is a rail car and its seals have been broken or changed, there shall be a report of the transportation agent at destination, or by written statement the transportation agent was requested to make such a report and declined to do so. In cases of a complaint involving measurements and/or tally, the entire shipment shall be kept intact for inspection.
Buyer agrees that Buyer’s exclusive remedy shall be to return the goods to Seller and to obtain repayment of the purchase price, or, at Seller’s option, Seller may repair nonconforming goods, deliver replacement goods or refund the purchase price. Buyer agrees that no labor expense or any other consequential damages of any kind shall be recoverable from Seller for mis-delivery, non-delivery, defect or non-conformity of the goods, regardless of whether arising out of a contract, warranty or negligence, strict liability or other tort.
Statute of Limitations
No litigation or arbitration by Buyer concerning the sale shall be commenced later thanone year after the date of shipment.
Seller makes no representation or warranty of any kind, express or implied, with regard to the existence or nonexistence of mold on the goods. Buyer is encouraged to examine goods received. Buyer should contact organizations such as Western Wood ProductsAssociation – Portland, Oregon for information and steps that can be taken to remove any mold that might be present on the goods.
Seller is a supplier and not the manufacturer of the goods and disclaims any warranty, express or implied, as to the quality or fitness of the goods for any particular purpose. Any claim of defect in the goods should be directed to the manufacturer. Seller will cooperate in processing any such claim. Any liability of Seller is limited to the cost of replacing defective and/or nonconforming goods at the point of delivery as specified in Seller’s Order Confirmation.
Assumption of Liability
Buyer assumes all risks and liabilities resulting from the use of the shipped goods. Seller neither assumes nor authorizes any person to assume for Seller any liability in connection with the sale or use of the goods.
Seller is not responsible for loss or damages resulting from loss of merchandise at sea,or failure to make shipment within the specified time or to ship at all, when such failure is due to fire, strike, boycott, flood, earthquake, windstorm, war, riot or revolution, act of terrorism, government restriction or prohibition. In the event of force majeure, both buyer and Seller will attempt to overcome it and keep each other informed of progress. If a force majeure event continues for one month, Buyer and Seller will attempt to continue with the agreement. Failing agreement, Seller may terminate the agreement.
Shipment shall mean shipment according to the specified week of shipment in the contract. If Seller fails to make shipment within the agreed period of time because of force majeure it shall notify Buyer at once. If Seller fails to make shipment within the agreed period for any other reason it shall notify Buyer and confirm adjusted ship dates with Seller in writing. If Buyer does not respond within time specified in the notice Seller may cancel the contract.
In the event of delay of the arrival of the carrying vessel due to causes beyond Seller’scontrol, Buyer is bound to still accept the goods.
Buyer warrants that Buyer is solvent and that Buyer is able to pay the purchase price for goods purchased. Seller may cancel because of any arbitrary deductions made by Buyer or failure to comply with contract terms in respect to any shipment, including prior shipments, because of any transfer or change in Buyer’s business, Buyer’s insolvency, suit by other creditors, failure of Buyer to meet any financial obligations to Seller, impairment of Buyer’s creditworthiness, or unfavorable credit reports made to Seller through usual channels of credit information, unless, Buyer shall pay cash in advance of receiving the shipment to be made. Seller shall retain the right to renegotiate price or cancel in the event of force majeure, mill insolvency, or other causes beyond Seller’scontrol. No waiver by Seller of any breach of any term or condition of any contract between Buyer and Seller shall constitute waiver of any subsequent or other breach of such provisions.
Any controversy or claim arising out of or related to any contracts between Buyer and seller or breach thereof shall be settled by arbitration under the applicable Rules of the American Arbitration Association, or under the rules of any other organization providing arbitration services which my be agreed upon by the parties, with the place of arbitration being the city in which Seller’s office shown on the face of the order acknowledgement is located. Judgment may be entered upon the arbitration award. In connection with any arbitration proceeding, each party shall pay (a) one-half of the arbitrator’s fees and any administrative charges associated with the proceeding, and (b)all of its own attorney and other professional fees and costs.
Buyer agrees that if the Seller extends credit to Buyer and it becomes necessary for seller to place unpaid amounts in the hands of an attorney, or collection agency, Buyer will pay any and all costs of collection, including, but not limited to, reasonable attorney fees and any court costs necessary to collect the past due balance. In the event an invoice is over 30 (thirty) days past due, Buyer agrees to pay a service charge of 11/2% per month (18% per annum) calculated from the original invoice due date.
The following additional terms and conditions apply to any sales of goods manufactured outside of the United States.
Changes in Duty and/or Freight Rates
Any changes, after date of the contract, in rate of duty, United States import taxes, or valuations by United States Customs, shall be for the account of Buyer unless otherwise specified. Any change in freight rates between contract date and bill of lading date above and beyond the negotiated price shall be for the account of Buyer.
Goods are sold subject to inspection by USDA, or by any other United StatesGovernment Department, Bureau or Agency with jurisdiction over them. If the goods orany part of them are detained by the United States government and not released for entry after reasonable efforts have been made by Seller to remove such detention, it is understood that Seller is not required to make a replacement of the merchandise and that the contract in regard to the detained and unreleased merchandise shall then become void and Seller shall be released of all responsibility and liability except that seller must either refund the purchase price, if paid, plus freight charges, insurance and other expenses incurred by Buyer in connection with the transaction, or at Seller’sdiscretion provide the same material from another source.