Oregon Precision Industries, Inc., dba PakTech
Standard Terms and Conditions of Sale
All orders for goods and services (herein referred to as “Products”) sold by Oregon Precision Industries, Inc. (“Seller”) to the purchaser thereof (“Purchaser”) are sold exclusively upon the following terms and conditions of sale (the “Terms and Conditions”):
These Terms and Conditions are the only terms that govern the sale of Products by Seller to Purchaser. Any additional or different terms or conditions set forth in any purchase order or any other previous or later communications are hereby objected to by Seller irrespective of (i) Seller’s acceptance of payment for Products, (ii) any purchase order confirmation, invoice, acknowledgement, release or acceptance issued by Purchaser or (iii) any other conduct by Seller. These Terms and Conditions prevail over any of Purchaser’s general terms and conditions of purchase. Seller expressly reserves the right to revise the terms of these Terms and Conditions at any time without notice to Purchaser and Purchaser agrees that the terms set forth in the Terms and Conditions as published at paktech-opi.com on the date of Seller’s receipt of any purchase order from Purchaser shall govern.
2. PURCHASE ORDERS
All purchase orders of Purchaser shall be in writing and set forth the quantity and specifications of the Products desired, the desired delivery date, and all other relevant information necessary to effectuate shipment of the Products by Seller. Seller’s acceptance of such purchase orders shall be limited and subject to Purchaser’s acceptance of these Terms and Conditions and Seller’s Seller’s Order Processing, Pricing and Shipping Policy (available at: paktech-opi.com, the “Order Policy”), in both cases as in effect on the date of Seller’s receipt of a purchase order from Purchaser. If Purchaser requests an order based on email, telephone or facsimile, Purchaser does so with the understanding that these Terms and Conditions and the Order Policy apply.
Purchaser shall purchase the Products from Seller at the prices set forth in Seller’s quotations, price sheets and the Order Policy in each case as in force as of the date that Seller accepts Purchaser’s purchase order. Prices do not include sales, use, excise, value added, or similar taxes. Purchaser shall be responsible for collecting and/or paying any and all such taxes whether or not stated in any invoice for Products shipped and shall indemnify Seller with respect thereto.
4. SHIPMENT, DELIVERY AND ACCEPTANCE
Prior to accepting an order or shipping any Products, Purchaser’s account must be current and in good standing. All sales are made F.O.B. point of shipment, with freight to be paid by Purchaser or freight collect to destination. All shipments are subject to the Order Policy. Title and risk of loss shall pass to Purchaser upon delivery to the carrier at the point of shipment. Purchaser is responsible for all aspects of unloading and storage upon delivery. Shipping dates given in advance of actual shipment are only estimates by the Seller of the time between (a) receipt of an instruction to begin manufacture, all necessary information, and down payment; and (b) delivery of the Products to a common carrier. Under no circumstances shall Seller be liable for any delay in delivery, additional freight, transportation, insurance, shipping, storage, demurrage or similar charges. Purchaser is deemed to have accepted Products in good condition unless Purchaser notifies the Seller in writing within three days of receipt that a Product(s) is defective or incomplete. Seller will not be responsible for delays in delivery or failure to deliver due to causes beyond Seller’s control.
5. INTELLECTUAL PROPERTY
Purchaser will not reverse engineer or assist any other party with reverse engineering Seller’s equipment (including, but not limited to, any equipment purchased from Seller, on loan from Seller, or any other equipment designed and/or built by Seller) or Products, and will notify Seller upon becoming aware of any other party having reverse engineered any of Seller’s equipment or Products.
All designs, copyrights, trademarks, licenses, and patents authorized by Seller for use by Purchaser are property of Seller, and Purchaser’s use of each shall be strictly limited to the purposes of Purchaser’s use of the Products.
Purchaser shall defend, at its expense, any suit against Seller for the infringement of any patent, trademark or the like, for or on account of the manufacture or sale of any Products furnished hereunder, and shall pay all damages and costs awarded therein against Seller, in any case where compliance by Seller with specifications prescribed by or prepared for the Purchaser constitutes the sole basis for the infringement or alleged infringement.
6. LIMITATION OF WARRANTIES AND DISCLAIMERS
Seller warrants that all Products are free from defects in design or workmanship and conform to the specifications of the proposal for a period of 12 months after shipment by Seller. Seller will, at its option, refund the purchase price of the Product or repair or replace the Product. These warranties are void if the Purchaser or others fail to operate or install the Products appropriately, or otherwise misuse the Products. Purchaser waives any warranty claim if it does not notify Seller in writing within 30 days of discovering the defect. Purchaser grants to Seller a right to inspect any claimed defects. Purchaser acknowledges that the Purchaser’s sole and exclusive remedy against Seller, and Seller’s sole liability, shall be for the refund, repair or replacement of Products as provided herein.
7. DISCLAIMER OF WARRANTY
Except as to title and the above warrantIES, Seller makes NO OTHER WARRANTIES of any kind, express or implied. In particular, Seller makes NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. While Seller may try to assist the Purchaser in selecting a Product, Seller makes no warranty that the selected Product will be fit for Purchaser’s application. No agent, employee, representative, and/or distributor of Seller has the authority to bind Seller to any affirmation, representation or warranty concerning the Products sold hereunder and will not form a part of the basis of this contract and shall not in any way be binding upon the Seller or enforceable by the Purchaser. Purchaser acknowledges that it has not relied upon any oral or implied representation of any kind made by Seller in connection with any purchase, return, or other act or omission.
8. LIMITATION OF LIABILITY
Regardless of the nature of or legal basis for any claim, Seller shall not be liable for any SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES of any kind, whether arising out of breach of contract, tort (including negligence) or otherwise, including but not limited to lost profits or revenue, increased expenses or reduced efficiency, loss of use of products or facilities, the cost or value of labor of any kind, damage to reputation, expenses of litigation or other disputes with or suits by third parties, administrative or management time or services, claims of Purchaser’s customers or others, and the cost of efforts to mitigate any damages. Under no circumstances will Seller be liable for any emotional distress or similar damages. In addition, Seller shall not be liable to Purchaser on any claim or set of related claims for a total amount in excess of the purchase price of the products or component of the products alleged to be nonconforming, defective in any way, or otherwise not provided in accordance with Seller’s obligations. Any and all legal actions and claims by Purchaser against Seller shall be barred AND WAIVED unless written notice thereof is received by Seller within 365 Days of the date of the event giving rise to such action or claim.
9. CANCELLATIONS AND RETURNS
Purchaser may not cancel all or any portion of an order after work begins or return any materials, except upon Seller’s written agreement. Payments are due within 10 days of cancellation, and thereafter shall accrue a finance charge at the same rate as an unpaid invoice. In addition, if Purchaser wishes to cancel in part, Seller may elect to cancel the remainder of Purchaser’s order without incurring any liability toward Purchaser and without waiving any rights under these Terms and Conditions.
10. FORCE MAJEURE
Neither Seller nor Purchaser will be liable for any delay or failure to perform hereunder (other than obligations of payment) to the extent caused by natural disaster, fire, explosion, war, terrorism, government actions, or other circumstances beyond its reasonable control and without its fault or negligence. The affected party will immediately notify the other party and must do everything reasonably possible to resume performance. If the period continues for more than 30 consecutive days, Seller or Purchaser may terminate the affected orders, schedules, or agreements without penalty by notifying the other party in writing.
11. PAYMENT AND SECURITY
Payments will be made within the terms stated on the invoice. All amounts not paid when shown due shall accrue a finance charge at the rate of (a) one and one-half percent per month or (b) the highest rate allowed by law, whichever is lesser, until paid. Seller reserves the right to revoke any credit extended to Purchaser. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Payments processed through exchange services are subject to a 3% convenience fee, charged at the time of payment.
a. All purchase orders and shipments are subject to the Order Policy, which is incorporated by reference to these Terms and Conditions.
b. Purchaser may not assign any agreement with Seller without Seller’s express written consent. Any assignment of any agreement with Seller, or any rights thereunder, by Purchaser without the advance written consent of Seller shall be void.
c. These Terms and Conditions may only be amended or modified in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party.
d. Seller’s failure to enforce its rights or remedies upon learning of any default or violation of any terms of any agreement with Purchaser shall not be construed as a waiver of any of Seller’s rights or remedies, or of the default or violation.
e. If any legal proceeding, including in bankruptcy, is brought to enforce or interpret any agreement between Seller and Purchaser, or in any other way asserts claims based upon or related to any sales under any such agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and related expenses (including, but not limited to, consultant and expert witness fees, the cost of title reports and asset searches, and travel expenses for witnesses and others) in amounts to be set by the court, in addition to costs and disbursements allowed by law.
f. Any controversy or claim arising out of these Terms and Conditions, any proposal by Seller, the sale and purchase of Products, or installation, commissioning, and training must be commenced within one year after the cause of action has accrued.
g. The laws of the State of Oregon, other than those pertaining to conflicts of laws, shall exclusively apply to all aspects of the parties’ relationship and dealings. Venue for any legal proceeding shall lie solely in Lane County, Oregon, to which such venue Seller irrevocably submits.