Terms and Conditions of Sale
ACCOUNT AGREEMENT – SALES TERMS AND CONDITIONS
1. GENERAL TERMS: Sales by Timber Products Co. Limited Partnership and its subsidiaries and divisions; Timber Products Company, Timber Products Co., TP Sales Co., Timber Products Michigan LP, and TP Mississippi (collectively “Timber Products” or “Seller”), are governed by the terms and conditions set forth in this Account Agreement. The terms and conditions set forth herein, and the terms and conditions set forth on the face of Timber Products’ invoice shall constitute the entire contract between the parties hereto and may not be added to, modified or altered except by written instrument signed by Timber Products referring specifically to the terms to be added, modified or altered to the exclusion of any other terms. Purchaser or Buyer, from time to time, may buy wood products, other goods and services (“Goods”) from Timber Products and request Timber Products to ship Goods to Purchaser prior to Timber Products receiving payment for the Goods. In all such instances Timber Products shall deliver to Purchaser an invoice, which may consist of a computerized data transfer, for the relevant sale of Goods and said invoice shall set forth the description of the Goods and the specific terms for payment. In the event there is a conflict between terms and conditions of a Timber Products’ invoice with the terms and conditions set forth herein, the invoice shall control.
2. PAYMENT TERMS: Terms of payment shall be as stated on Timber Products’ documentation acknowledging Purchaser's order and the invoice issued to Purchaser, and shall be binding on all parties. A monthly service charge of one and one-half percent (1½%) on the unpaid balance may be made on all past-due accounts. Should this rate exceed the maximum rate allowed by applicable law, that maximum lawful rate shall apply. Purchaser also agrees to pay Timber Products’ reasonable attorney fees and other costs incurred in the collection of any amount due on
Purchaser’s account and in the event of any suit or action arising out of any transaction between Purchaser and Timber Products, including any proceeding involving insolvency, such reasonable attorney fees as shall be set by the trial court or courts on appeal. The price on all Goods provided for herein shall be Timber Products’ price in effect on date of shipment regardless of the initial quoted price unless otherwise agreed in a writing signed by Timber Products and the Purchaser. Unless Purchaser’s payment is accompanied by a statement detailed by Timber Products’ invoice
number, Timber Products, in its sole discretion, may apply all payments it receives to Purchaser’s account in any manner it deems appropriate.
3. INTEGRATED CONTRACT: If Purchaser's order requests or requires delivery of Goods in more than one installment, then the Goods involved in each delivery installment shall be deemed to be covered by a single contract, and Purchaser's default in payment for one or more deliveries or installments of the contract shall constitute a default of the entire contract thereby relieving Timber Products of its obligation to provide the balance of the required deliveries under the contract.
4. NONCANCELLATION: Purchaser may not cancel or terminate its order for any reason except upon Timber Products’ written consent and only then upon payment of reasonable termination charges in an amount to be determined by Timber Products.
5. CREDIT TERMS: Timber Products reserves the right at any time to suspend credit or to change credit terms provided herein, when in its sole opinion Purchaser’s financial condition so warrants. In such case, in addition to any remedies herein or provided by applicable law, cash payment or satisfactory security from Purchaser may be required by Timber Products prior to delivery of Goods. Failure to pay invoices when due or if the financial condition of Purchaser is such as to give Timber Products reasonable grounds for insecurity Timber Products may, at its sole discretion, deem all outstanding invoices immediately due and payable upon written notice to Purchaser, and Timber Products may withhold all subsequent deliveries until Purchaser’s account is fully paid. Timber Products’ acceptance of less than full payment due shall not be a waiver of any of its rights. No cash discount will be allowed on payments made by trade acceptances, notes, securities, postdated checks, etc., unless approved in writing by Timber Products.
6. PRODUCT PROTECTION: To avoid warping, delamination, grain raise, mold growth; plywood, particleboard, other panel products and all dried wood products must be protected from moisture exposure during transit, storage, and use. Untreated green wood products will support mold growth.
7. DISCLAIMER OF WARRANTIES:
ALL PRODUCTS SOLD BY TIMBER PRODUCTS ARE NOT SUBJECT TO ANY REPRESENTATION OR WARRANTY OF ANY KIND AND ARE SOLD BY TIMBER PRODUCTS ‘AS IS, WITH ALL FAULTS.’ IN PARTICULAR, TIMBER PRODUCTS MAKES NO WARRANTY AS TO MERCHANTABILITY OF PRODUCTS DESCRIBED IN THIS PARAGRAPH OR AS TO THEIR FITNESS FOR ANY PURPOSE, OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW. TIMBER PRODUCTS SHALL NOT BE LIABLE TO PURCHASER OR ANY THIRD PERSON FOR LOSS OF PROFITS OR ANY INJURIES OR DAMAGES TO PERSON OR PROPERTY, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, OR FROM ANY OTHER CAUSE, OR FOR ANY INCIDENTAL INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY DEFECT OR ANY HANDLING, SALE OR USE OF PRODUCTS DESCRIBED IN THIS PARAGRAPH, EXCEPT TO THE EXTENT ALLOWED BY TIMBER PRODUCTS AS SET FORTH HEREIN. IN NO EVENT SHALL THE AMOUNT TO WHICH TIMBER PRODUCTS IS LIABLE TO PURCHASER OR ANY THIRD PERSON FOR SUCH CLAIMS OR DAMAGES EXCEED THE INVOICE PRICE OF GOODS SHIPPED OR THEIR REPLACEMENT COSTS. TIMBER PRODUCTS EXPRESSLY DISCLAIMS ANY IMPLIED OR EXPRESS WARRANTY THAT A PRODUCT WILL NOT SUPPORT MOLD.
ANY ALTERATION OF THE GOODS SHIPPED HEREUNDER, WHETHER BY TREATMENT OR OTHERWISE, WITHOUT TIMBER PRODUCTS’ PRIOR WRITTEN CONSENT, SHALL VOID ALL
REPRESENTATIONS, GUARANTIES OR WARRANTIES GIVEN BY TIMBER PRODUCTS HEREIN. ALL WARRANTIES GIVEN BY TIMBER PRODUCTS RUN SOLELY TO THE INITIAL PURCHASER HEREUNDER; THEY ARE NOT INTENDED TO, AND DO NOT, RUN TO ANY SUBSEQUENT PURCHASER, NOR MAY THEY BE TRANSFERRED TO ANY OTHER PERSON, UNLESS OTHERWISE SPECIFICALLY STATED IN A WRITING SIGNED BY TIMBER PRODUCTS. PURCHASER WILL FAMILIARIZE ITSELF WITH ALL INFORMATION AND PRECAUTIONS
DISCLOSED IN SAFETY AND HEALTH INFORMATION, INCLUDING, BUT NOT LIMITED TO, ANY SAFETY DATA SHEET (SDS) TRANSMITTED TO PURCHASER BY TIMBER PRODUCTS, OR ANY OTHER INFORMATION SUPPLIED TO PURCHASER BY TIMBER PRODUCTS OR OTHERWISE AVAILABLE TO PURCHASER FROM TIMBER PRODUCTS AT ANY TIME.
8. REMEDIES: In the event any relevant Goods sold to the Purchaser are found not to meet the foregoing warranty, Timber Products shall furnish replacement Goods conforming to said warranty or, at its sole election, provide Purchaser with a credit in an amount equal to the purchase price of said Goods provided Purchaser delivers to Timber Products timely notice, as stated in the next paragraph, of its claim under the applicable warranty. Under no circumstances is material to be returned to Timber Products unless Purchaser receives written consent from Timber Products.
The remedies provided above shall be subject to and available only if the following claims procedures are followed by Purchaser: (a) Purchaser must provide Timber Products with a reasonable opportunity to inspect the Goods subject to any such claim in an unaltered condition so as to permit Timber Products to evaluate Purchaser’s claim in accordance with procedures customary within the industry; and (b) shipment of the Goods shall be held intact and specification of objections, accompanied with tally of objectionable material, shall be submitted directly to Timber Products in writing within thirty (30) days after arrival or the claim shall be deemed waived. Timber Products’ sole responsibility and Purchaser’s sole and exclusive remedy in all claims covered by the applicable warranty shall be limited to replacement Goods or, at the sole election of Timber Products evidenced by a writing signed by an authorized representative of Timber Products, a credit or payment of the purchase price of the nonconforming Goods. Any legal action Purchaser initiates against Timber Products for breach of this agreement, including the warranty granted herein, must be instituted within one year after delivery of the Goods that are the subject of any such legal action.
Claims of defect in Goods herein described shall not entitle Purchaser to deduct any sum from the invoice therefore, unless authorized, in writing by Timber Products, and such invoice shall be paid in full in accordance with the terms of sale. In the event of subsequent allowance of any such claim, Timber Products shall promptly make payment to Purchaser for the amount so allowed.
9. DELIVERY AND FREIGHT: Timber Products may assist the Purchaser in arranging freight and delivery. If freight is prepaid and Timber Products arranges the freight, any increase in delivery costs resulting from a change in Purchaser's instructions and any extra costs of utilizing substitute methods of delivery, when the intended type of carrier or loading or unloading facilities become unavailable, or a change of tariff affecting transportation rates or charges prior to shipment and assessed to Timber Products by the shipper shall be assessed to Purchaser's account for
immediate payment. If freight is collect, then Purchaser shall arrange and pay freight. Any increase in freight rates and all demurrage shall be borne by Purchaser.
Claims for shortages or incorrect goods must be made in writing to Timber Products within 30 days after receipt of shipment. Failure to give such notice shall constitute an unqualified acceptance and waiver by Purchaser of all claims for such shortages or incorrect goods. Failure of Purchaser to take exceptions against the carrier for shortages or damages while in transit shall constitute a waiver of such claims. Timber Products may assist Purchaser with processing claims against the carrier without accepting any liability for such claims.
10. TITLE AND RISK: Timber Products warrants it has title and will convey good and marketable title to all Goods manufactured or distributed and sold by Timber Products to the Purchaser. Irrespective of any provisions concerning freight or price, title and risk of loss or damage shall pass to Purchaser upon delivery of Goods to any carrier at Timber Products’ location or other designated shipping point. Any terms issued by Purchaser to Timber Products that are inconsistent with the foregoing shall be deemed null and void.
11. SHIPPING DATE; DELAYS; CANCELLATION: Every effort will be made to effect delivery at the desired time, but delivery dates are not guaranteed. Unless Timber Products provides Purchaser with a written guarantee of the shipping date, advance information concerning the date of shipment is an estimate only. Timber Products reserves the right to cancel or extend time for delivery in the event performance is rendered more difficult by reason of a mill closure, mill production curtailments, epidemic, delays of carriers, fire, flood, windstorm, or other act of God, labor disturbance, civil disturbance, shortage of raw materials, energy, or transportation, including, but not limited to, railcar shortages or any cause whether or not similar to the causes listed above that are beyond Timber Products’ reasonable control. In no event shall Timber Products be obligated to purchase material from others to enable Timber Products to deliver goods to Purchaser hereunder.
12. SECURITY INTEREST: Purchaser grants Timber Products a security interest in all Goods Purchaser acquires from Timber Products, as specifically identified on Timber Products’ invoices to Purchaser, together with all documents relating to the acquisition of said Goods, including all proceeds there from and products thereof, to secure all existing or hereafter arising indebtedness of Purchaser to Timber Products. Purchaser hereby authorizes Timber Products to execute on behalf of Purchaser and file any documents necessary to perfect Timber Products’ security interest or to
continue perfection of Timber Products’ security interest. Timber Products may, at any time, file this document, or a copy thereof, as a financing statement.
13. DEFAULT: Failure of Purchaser to timely pay Timber Products any sum or perform any obligation due under this agreement shall constitute a default under this agreement and, at the sole discretion of Timber Products, all such other agreements now existing or hereafter arising between Purchaser and Timber Products. Purchaser’s dissolution, termination of existence, discontinuance, insolvency, consolidation or merger of Purchaser’s business, shall also constitute a default under this agreement and all such other agreements now existing or hereafter arising between
Purchaser and Timber Products.
Upon Purchaser’s default, Timber Products may, at its option, without prejudice to any of its other rights and remedies, and without demand for payments past due, (1) make shipments subject to payment of cash in advance, (2) terminate this agreement and declare immediately due and payable the obligations of Purchaser for Goods previously shipped, notwithstanding any other provision in these sales terms and conditions, (3) demand reclamation, and/or suspend any further deliveries until the default is corrected, without releasing Purchaser from its obligations under this agreement.
14. ORDER VARIANCES: Unless an order expressly requires exact quantities, Timber Products shall have the right to increase or decrease the quantity specified by Purchaser, provided such increase or decrease does not vary more than ten percent (10%) from the quantities ordered by Purchaser.
15. CLERICAL MISTATEMENTS: Errors in the extension of footage of items or in the extension of prices, in any order or invoice, are subject to correction.
16. TAXES: All sales tax, excise taxes, or other forms of taxes levied against this transaction, exclusive of income taxes assessed to Timber Products, shall be paid by Purchaser over and above all other sums Purchaser is or may become obligated to pay hereunder. In order to comply with the majority of state and local sales tax law requirements, Timber Products must have in its files a properly executed exemption certificate from all Purchasers who claim a sales tax exemption. If Timber Products does not have this certificate, it is obligated to collect the tax for the state in which the Goods or service is delivered. If the Purchaser is entitled to sales tax exemption, it is the Purchaser’s responsibility to provide Timber Products with a sale and use tax exemption certificate.
17. MUTUALITY: All debts and obligations of Purchaser and Timber Products to each other are mutual and subject to setoff. For purposes of this paragraph, "Purchaser" and "Timber Products" shall be deemed to include each party's respective subsidiaries and affiliates which directly or indirectly control or are controlled by that party through 100% equity ownership.
18. WAIVER: A waiver of any of the provisions of this agreement will not constitute a waiver of any other provision, nor will it constitute a continuing waiver.
19. GOVERNING LAW AND VENUE: All issues concerning the formation, performance, or interpretation of any contract regarding this sale shall be governed by the laws of the state of Oregon. Venue for any arbitration, suit, or other form of legal proceeding shall be, at the sole discretion of Timber Products, in Lane County, Oregon.
20. THIRD PARTY BENEFICIARIES: No provision of this agreement is intended to confer any benefit upon any third party and no third party will have the right to enforce any of the provisions of this agreement.
21. CONSTRUCTION: This agreement will be interpreted without regard to any presumption against the party that was responsible for its drafting and in an even-handed manner rather than against the drafting party.
22. SEVERABILITY: If any provision of this agreement is held invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
23. CAPTIONS AND SECTION HEADINGS: Captions and section headings are for convenience only, are not a part of this agreement, and will not be used in construing it.
24. ENTIRE AGREEMENT; AMENDMENT; CONFLICT: This agreement, together with the terms of any invoice issued by Timber Products, constitutes the final agreement between the parties with regard to the purchase and sale of Timber Products’ Goods to Purchaser and supersedes all prior understandings and agreements, oral or written, between the parties. No amendment or modification of this agreement will be binding unless it is in writing and signed by an authorized representative of Timber Products and the Purchaser. Should any conflict or inconsistency
arise between the terms of this agreement and the terms of any document provided by Purchaser (such as a purchase order), the terms of this agreement shall control.
25. SUCCESSION: This agreement shall inure to the benefit of and be binding on the successors and assigns of the parties.
TIMBER PRODUCTS PURCHASE ORDER TERMS AND CONDITIONS
1. General: Purchases by Timber Products Co. Limited Partnership and its subsidiaries and divisions; Timber Products Company, Timber Products Co., TP Sales Co., Timber Products Michigan LP, and TP Mississippi (collectively “Timber Products” or “Purchaser”) are governed by these terms and conditions. Seller agrees to sell, and Timber Products agrees to buy, the wood products, materials, goods and services (“Goods” or “Work”) described on a Timber Products’ Purchase Order (“Order”) for the prices, at the time, and on the payment terms shown on the Order. Seller’s performance against the Order, including written acknowledgement, shipment of Goods, or commencement of Work or services, constitutes acceptance of all terms and conditions in the Order.
2. Terms and Acceptance: Seller shall promptly acknowledge the Order by regular U.S. mail, electronic mail or facsimile. The Order is limited to the terms and conditions contained herein unless the parties have entered into a written agreement stating different applicable terms and conditions. Any additional or different terms proposed by Seller in any quotation, acknowledgement, or any other document are hereby deemed to be material alterations and notice of objection to them is hereby given. Any such proposed terms shall be void and the terms herein shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties. If the Order has been issued by Purchaser in response to an offer and if any of the terms herein are additional to or different from any terms of such offer, then the issuance of the Order by Purchaser shall constitute an acceptance of such offer subject to the express condition that Seller assent to such additional and different terms herein.
3. Delivery/Time of Essence: Time is of the essence in the Order. Timber Products shall have the privilege of cancelling all or any part of the Order if shipment is not made within the time specified by Timber Products. Seller shall not make any material commitment or production arrangement in excess of the amounts, nor in advance of the time necessary to meet Purchaser’s delivery schedule for goods or services covered by the Order. Any excess commitments or arrangements shall be made at Seller’s own risk. Purchaser shall not be liable for goods shipped in advance of or in excess of scheduled deliveries.
4. Warranty: Seller warrants that all Goods delivered hereunder will conform, in all respects, to the applicable drawings, specifications, samples or other descriptions given by Purchaser, and that the Goods will be of good quality, material and workmanship, merchantable and free from defects. This warranty will survive any inspection, delivery, acceptance, or payment by Timber Products for the Goods. If Goods sold pursuant to the Order are defective in any respect whatsoever, Seller shall defend, indemnify, and hold Timber Products, its successors and assigns, harmless from and against any and all demands, actions, suits, proceedings, judgments, losses, costs, damages, liabilities, and expenses, including, without limitation attorney’s fees and court costs, arising out of or in connection with any claims, injuries or damages to persons or property that occur in connection with the use or sale of such Goods except to the extent such claims result from the gross negligence or willful misconduct of Timber Products.
5. Nonconforming Goods: All material furnished on the Order must be at least equal to the standards of the industry and will be subject to Purchaser’s inspection and approval after delivery, notwithstanding any payment. Purchaser shall have a reasonable time within which to inspect prior to Purchaser’s acceptance thereof. Goods that deviate in quantity, quality, or specifications, or Goods shipped contrary to Purchaser’s instructions, Goods substituted for Goods described by Purchaser, Goods not shipped in containers conforming to Purchaser’s specifications (or, in the absence of such specifications, in recognized standard containers), or Goods allegedly violating any statute, ordinance, or administrative order, rule, or regulation may be rejected by Purchaser and returned or held at Seller’s expense and risk. Purchaser may charge to Seller all expense of inspecting, unpacking, examining, repacking, storing, and reshipping any rejected goods. The remedies herein afforded to Purchaser are not exclusive, but Purchaser may hold Seller liable for any and all damages arising from any breach or default set forth herein.
6. Shipping Instructions: Seller shall follow shipping instructions of the Order, or, if there are none, ship by least expensive means of transportation and route. Any excess cost resulting from a deviation from this condition will be charged to Seller. Seller shall furnish for each shipment, a packing list, receipted bill of lading, or other receipts from the transportation company. Purchaser will pay no labor or material charges for packaging, crating, or wrapping unless such charges are set forth in the Order. Seller shall prepay transportation charges on all goods purchased FOB Purchaser’s destination unless otherwise set forth in the Order. Seller shall send shipping notices to Purchaser on day of shipment via regular U.S. mail, electronic mail or facsimile. Seller will indicate plainly the Order number on all bills of lading, freight bills and invoices.
7. Price: Prices set forth in the Order are firm and not subject to increase. If Seller’s quoted prices for the Goods covered by the Order are reduced (whether in the form of a price reduction, close-out, rebate, allowances, or additional discounts offered to anyone) at time prior to any shipment, Seller agrees that the price of Purchaser for such Goods will be reduced accordingly, and that Purchaser will be billed at such reduced prices. Unless otherwise provided herein, such prices include all costs for packing, insuring and transporting the Goods ordered to Purchaser’s facility. Purchaser shall not be liable for any taxes or governmental charges or fees with respect to the Order other than those which Seller is required by law to collect from Purchaser or otherwise set forth in the Order.
8. Payment and Discounts: Terms of payment are as previously arranged, or if specified in the Order, then as so specified therein. Cash discount period will begin after receipt of Goods or properly completed invoice, whichever is later. All claims for money due or to become due from Purchaser shall be subject to setoff by Purchaser by reason of any counterclaim arising out of this or any other transaction with Seller.
9. Patent or Copyright: Seller warrants that the sale or use of Goods purchased hereunder will not infringe or contribute to the infringement of any patents or trademarks or copyrights either in the United States or foreign countries. Seller covenants and agrees to defend and hold harmless Purchaser, its successors, assigns, employees, agents, distributors, dealers, affiliates, customers and users of its products against any claim or demand based upon such infringement, and Seller shall, at its own expense, defend any suit or proceeding brought against Purchaser based on a claim that any apparatus, or any part thereof, furnished under the Order constitutes an infringement of any patent, trademark, or copyright. Seller shall pay all damages and costs awarded against Purchaser, its successors, assigns, employees, agents, distributors, dealers, affiliates, customers and users and, in the event such apparatus or any part thereof is held to constitute infringement and the use of such apparatus or part is enjoined, Seller shall, at its own expense, either procure for Purchaser the right to continue using such apparatus or part, or replace same with noninfringing apparatus or part, or modify it so it becomes noninfringing, or remove such apparatus or part and refund the purchase price and the transportation and installation costs thereof.
10. Inventions and Proprietary Rights: Seller agrees to promptly disclose to Purchaser all ideas, inventions, discoveries and improvements that are made, conceived, compiled or reduced to practice by Seller, solely or jointly with others, that arise from Seller design and/or deliver of goods to Purchaser in connection with the Order. Seller further agrees to assign to Purchaser all right title and interest to all such “New Developments.” Seller understands and agrees that all New Developments which are subject to copyright protection under the United States Copyright Act of 1976, as amended, shall be considered “works made for hire” within the meaning of section 101 of the Copyright Act and that such works constitute and contain valuable proprietary assets and trade secrets of Purchaser. In event that, notwithstanding the foregoing, title to and ownership of any New Development initially vests in Seller, Seller agrees to execute, at Purchaser’s request, all documents as may be necessary to grant, transfer and assign all such title and ownership thereof to Purchaser. To the extent applicable, Seller agrees to obtain written assurances from its employees and contract personnel of their agreement to the terms hereof.
11. Confidential Information: All information furnished or disclosed to Seller by Purchaser in connection with the Order which is identified as “Confidential” or “Proprietary” is received in confidence, shall remain the property of Purchaser and shall not be disclosed to any third party without Purchaser’s prior written consent. Seller shall not use any such information for any purpose other than to perform the Order. If requested, Seller shall execute Purchaser’s Non-Disclosure Agreement before receipt of any such confidential information. Seller will return, upon demand, all such confidential information to Purchaser upon completion by Seller of its obligations hereunder. The obligations of this paragraph shall survive expiration or termination of the Order.
12. Compliance with Law: Seller guarantees that all Goods delivered hereunder are produced, packed, labeled and shipped in compliance with all applicable laws. Seller agrees to comply with all federal, state, county and local laws, rules, codes, executive orders and regulations (the “Laws”) applicable to its provision of Goods (materials and services) hereunder. Timber Products will not do business with those who engage in illegal logging and we require our suppliers to source wood fiber in compliance with all relevant laws and regulations of the state, province or country where the wood fiber is harvested. Additionally, we encourage our suppliers to source wood fiber from forests managed according to generally accepted sustainable forestry practices. Seller acknowledge they comply with The Lacey Act (16 U.S.C. 3371 et seq.) and the California’s Supply Chain Transparency Act (SB 657), if applicable. Upon Purchaser’s request, Seller will promptly provide Timber Products with a statement of origin for all Goods and U.S. Customs documentation for Goods wholly or partially manufactured outside the United States. Seller agrees to hold harmless Purchaser, its successors, assigns, employees, agents, distributors, dealers, affiliates, customers and users from any liability arising from Seller’s failure to comply with such laws.
13. Indemnification by Seller: Seller will indemnify, save harmless, and defend Purchaser, from all liability for loss, damage, or injury to person (including wrongful death) or property in any manner arising out of or incident to the performance of the Order except to the extent loss, damage or injury results from the gross negligence or willful misconduct of Timber Products. Seller shall promptly pay all claims and demands for labor performed and for material, machinery, or fuel furnished in the performance of any Work contemplated by the Order, and shall fully defend and indemnify Timber Products against all such claims, debts and obligations arising from or relating thereto.
14. Safety: Seller guarantees without payment that the design and performance of all items, including machinery and structures, temporary or permanent, conform with the requirements of applicable insurance and government health and safety regulations in the state where they are being installed, including regulations administered by OSHA, EPA and other federal and state regulatory agencies, whether shown in drawings or specifications or not. The Seller or manufacturer of any items delivered hereunder must provide any information about the risk(s) associated with the use of the equipment or substance, even if the risks are considered to be common knowledge with the use of the items supplied. Seller agrees that if its employees or subcontractors are required to enter upon any premises occupied by Purchaser for purposes of constructing any improvement or operating equipment its employees or subcontractors shall follow all state and federal safety regulations including, but not limited to, fall protection, confined space entry, fire safety, and hazardous energy control, as well as all Timber Products’ safety procedures as explained in the Contractor Safety Orientation provided by Timber Products.
15. Chemicals and Hazardous Substances: All Safety Data Sheets (SDS, formerly MSDS) required by applicable state and federal law, including OSHA Hazard communication standard (29 CFR 1910.1200), EPA’s Emergency Planning and Community Right- to-Know Act (EPCRA) and all reporting requirements under federal and state environmental agencies, shall accompany all goods (including, without limitation, any chemicals or hazardous substances) provided under the Order.
16. Contractors/Subcontracting: If an Order requires a Contractor/Seller to construct any improvements or operate equipment on any premises occupied by Timber Products, the Contractor/Seller shall furnish all labor, material, services, tools, equipment, and fixtures necessary to perform and complete in a good and workmanlike manner the Work described in the Order or any written amendment thereto. All such Work shall be done in accordance with all laws, ordinances, building codes, rules and regulations applying to the Work, including, but not limited to, the Americans with Disabilities Act, environmental regulations and the Occupational Safety and Health Act of 1970, as amended. Contractor/Seller shall have control over, and be solely responsible for, all means, methods and sequences for performing the Work. Contractor/Seller also acknowledges that any of its employees or subcontractors working at any premises occupied by Timber Products must first complete a Contractor Safety Orientation before commencing the Work.
17. Insurance: Unless otherwise agreed, in the event the Order requires Seller to enter upon any premises occupied by Timber Products for purposes of constructing any improvement or operating any equipment, Seller shall, at its sole cost, carry Commercial General Liability including Premises/Operations and Products/Completed Operations with limits of $1,000,000 per occurrence and $2,000,000 aggregate; Automobile Liability with limits of $1,000,000; statutory Workers’ Compensation; all policies to be endorsed to name “Timber Products Co. LP and its subsidiaries and divisions, officers, employees and agents as Additional Named Insureds, and be primary and not contributing with or in excess of any insurance carried by Purchaser.” Subcontractors under control of the Seller and retained to assist Seller in the performance of the work described in the Order are required to maintain the same insurance coverage. Certificates of insurance evidencing coverage are required. Such insurance shall not be cancelled without 30 days prior written notice of cancellation to Timber Products.
18. Purchaser’s Property: All property and material furnished to Seller by Purchaser or specifically paid for by Purchaser shall be used only in the performance of the Order and shall remain the property of Purchaser. Such property shall be held at Seller’s sole risk and shall be kept insured by Seller at Seller’s expense in an amount equal to the replacement cost payable to Purchaser. Such property shall be delivered in good condition, normal wear and tear excepted, to Purchaser, FOB Purchaser’s plant, immediately upon request by Purchaser. Any dies or tools otherwise paid for by Purchaser shall become the Purchaser’s property upon completion of the Order.
19. Cancellation: Purchaser reserves the right at any time and from time to time, without cause, to cancel all or any part of the undelivered portion of the Order by written or verbal notice to Seller. In the event of such cancellation, Purchaser shall not be liable to Seller for loss of anticipatory profits. The provisions of this paragraph shall not limit or affect the right of Purchaser to terminate the Order for default by Seller.
20. Changes: Purchaser may direct in writing changes to the Order. Equitable adjustments will be made in price or schedule where required. Any claims for adjustment shall be made by Seller in writing not later than thirty (30) days from the date of Seller’s receipt of any such direction from Purchaser. Seller shall not be excused from proceeding with a change prior to negotiation of any adjustment.
21. Force Majeure: Purchaser shall not be liable for failure to accept any part of the Order if such failure is the result of any cause beyond the control of Purchaser. Such causes include, but are not limited to, fires, floods, strikes, differences with employees, casualties, delays in transportation, shortages of rail cars, inability to obtain necessary materials or machinery, or total or partial shutdown of Purchaser’s plant for any cause. Seller shall not be liable for delays or failure to ship or complete work or services during the time and due to causes beyond its control and not due to its fault or negligence. Both parties shall give prompt notice of an event constituting a “force majeure”.
22. Equal Opportunity:
41 CFR 60-1.4(a). The Equal Employment Opportunity Clause required under Executive Order 11246 and 41 CFR 60-1.4(a), regarding nondiscrimination and affirmative action on the basis of race/ethnicity and gender, is incorporated by reference into this contract.
41 CFR 60-741.5(a). This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
41 CFR 60-300.5(a). This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.
8 U.S.C. §1324. Seller shall comply with all provisions of the Immigration Reform and Control Act of 1986, which is incorporated by reference into this contract. This law criminalizes the act of engaging in a pattern or practice of knowingly hiring an unauthorized alien.
23. Assignment: Seller shall not subcontract, sublet, nor assign any rights or claims of any portion of the Order without the prior written consent of Purchaser.
24. No Waiver: The failure of either party at any time to require performance by the other party of any provision of the Order will not affect the right of such party to require performance of that provision in the future. Any waiver by either party of any breach of any provision of the Order will not constitute a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under the Order.
25. Rights and Remedies: All rights and remedies of Purchaser specifically set forth in the Order shall be in addition to any other or further rights and remedies provided by law or in equity. Failure of Purchaser to insist upon strict performance of any term or condition of the Order shall not be deemed to be a waiver of Purchaser’s rights and remedies.
26. Notice: All notices, demands, and requests under the Order by either party to the other shall be in writing and shall be sent by first-class, registered mail, postage prepaid and return receipt requested, electronic mail, facsimile or by personal delivery unless otherwise provided herein.
27. Choice of Law/Venue: The validity, construction, and enforceability of the Order shall be construed in accordance with the governed by the laws of the state of Oregon, without regard to principles of conflicts of law. The parties agree that all disputes relating to the Order, at the sole direction of Purchaser, shall be tried before the courts of Lane County, Oregon.
28. Severability: The invalidity or unenforceability of any particular provision of the Order will not affect the other provisions of the Order, and the Order will be construed as if the invalid or unenforceable provision were omitted or, if applicable, modified as any court of competent jurisdiction deems reasonable, necessary, and equitable.
29. Binding Effect: The Order, and all of the terms and covenants contained herein, shall be binding upon and shall inure to the benefit of all of the successors, affiliates and permanent assigns of Seller and Purchaser.
30. Entire Agreement: The Order contains the entire agreement between the parties relating to the subject matter contained herein. It can be amended only by a writing signed by both parties.