Definitions: “Seller” means Cascade Resources, LLC d/b/a Buckeye Mats, its subsidiaries, if any, and when it does business under any assumed business name. “Buyer” means the company(ies) referenced herein, its subsidiaries, and when it does business under any assumed business name. “Agreement” means this credit application and agreement between Buyer and Seller. “Goods” shall mean any and all materials, equipment, labor, services, or other property provided, performed, furnished, sold, rented, leased or delivered by or through Seller or otherwise subject to this Agreement.
NO WARRANTIES. SELLER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE GOODS. THERE ARE NO EXPRESS WARRANTIES AND THERE ARE NO IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THERE ARE NO OTHER IMPLIED OR EXPRESS WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO THE GOODS. ANY AND ALL GOODS ARE PROVIDED ON AN “AS IS” BASIS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE GOODS IS WITH THE APPLICANT(S). THIS DISCLAIMER OF WARRANTIES APPLIES TO ALL GOODS, INCLUDING BUT NOT LIMITED TO GOODS THAT ARE USED OR OF ANY GRADE OTHER THAN “NEW”. No obligation of Seller concerning or relating to the goods shall be deemed a performance specification of any kind.
No delivery date(s) or times. Risk of Loss. Orders subject to availability. Seller does not agree, will agree to and is not obligated to provide any specific goods on any delivery dates or times. All orders are subject to availability to Seller at its then existing locations, sources, suppliers and costs. All delivery dates and times which may be provided, if any, are estimates only and do not establish agreed delivery date(s) or time(s). Seller reserves the right to make partial shipments. Unless expressly agreed by Seller, title and risk of loss shall transfer to Buyer upon delivery of goods to any carrier at Seller’s location or other shipping point. In the event of shortages of goods for any reason, Seller shall have the right to allocate available goods in a fair and reasonable manner among its customers in such manner as Seller, in its sole and absolute discretion, may deem appropriate. Special order goods may not be returned.
Taxes, freight and handling costs: Unless otherwise agreed by Seller in writing, all prices are exclusive of applicable federal, state, local and foreign sales, use, excise, value added and other taxes, as well as charges for shipment, handling, storage and insurance. Any and all current or future tax or other governmental charge applicable to the sale, delivery, shipment or storage of the Goods that Seller is required to pay or permitted to collect shall be for Buyer’s account and shall be added to the price, and shall not be subject to any reduction. Buyer shall pay all transportation and delivery costs not prepaid by Seller, and Seller will credit against invoice price, upon receipt of paid freight bill, actual freight paid by Buyer but not in excess of freight charges shown on the Order Confirmation. If the delivering carrier charges an amount of freight larger than that for which Buyer received credit as aforesaid, it shall be Buyer’s obligation to file a claim for overcharge with the appropriate carrier.
Order of precedence: The terms of this Agreement take precedence over any terms and conditions set forth in Buyer’s purchase order or other similar document, or any other agreement between Buyer and Seller, whether now existing or arising at any time in the future, and to the extent of any conflict this Agreement shall control. Only the credit manager of Seller is authorized to modify any term of this Agreement. All modifications must be in writing signed by the credit manager of Seller and no other act (or omission) by Seller shall modify this Agreement. Buyer expressly waives the requirement, if any, that Seller respond, reject or otherwise communicate with the Buyer concerning any now existing or future purchase order, agreement or document sent, delivered or otherwise provided to Seller for on behalf of the Buyer and Buyer agrees that any term therein which conflicts with the terms of this Agreement shall not be binding upon Seller and the terms of this Agreement shall control.
Proposals: Seller may propose or suggest certain labor, materials, equipment or services (“Seller Proposals”) to Buyer or others. It is expressly agreed that Seller is not providing directly or indirectly any licensed or regulated design, architecture, engineering or any other regulated or licensed services and that Seller shall have no liability for Seller Proposals. Buyer shall check and review all Seller Proposals and Buyer shall accept full, final and overall responsibility for any Seller Proposal which may be implemented in whole or in part.
Authorization to contact bank and trade references: Seller may contact any banks and trade references and make any and all other credit inquiries it deems necessary, including but not limited to the utilization of outside credit reporting services, and Buyer authorizes the release of information to Seller. This authorization is continuing in nature and may be used to obtain updated information. Buyer represents and warrants, upon which Seller has a right to rely, that the information provided by the Buyer herein is complete, true and correct.
Invoice terms: Invoices must otherwise be paid in full no later than the 30th day after the invoice date. No pay if paid or paid when paid clause is applicable to amounts due Seller. A late payment charge of 2% per month (24% per annum), or the maximum rate permitted by law (if less than 24%), is due on all past due principal amounts. If any amount owing to Seller is not paid when due, Seller may at its option: place the account on a cash basis, terminate any unfilled orders or discontinue any deliveries until all past-due payments (including principal and interest) are paid in full and adequate assurance of Seller’s financial ability is received. The amount of any Seller’s invoice shall be conclusively binding upon Buyer as due unless, Buyer objects in writing before the invoice is due.
Change of business structure: Any change in Buyer’s business structure shall not affect Buyer’s obligations under this Agreement unless Seller agrees otherwise in writing. This Agreement may not be assigned by Buyer, but may be assigned by Seller.
Attorney fees: In case of any default in relation to this Agreement, Buyer shall pay Seller’s reasonable attorney fees and costs, even if no action is filed. If an action is filed Buyer shall pay Seller’s reasonable attorney fees and costs (whether in the state or federal courts, including but not limited to the bankruptcy courts), for any court annexed arbitration, on any appeal, and on denial of any petition for review even if no action is filed. This Agreement shall be governed by and construed in accordance with law of the principal state of delivery of the goods to Buyer without resort to its principles on conflict of laws.
Retainage: Under no circumstances does Seller accept retainage to be held on materials supplied. Should retainage be held on materials we supply, your account will be aged without consideration for retainage amounts and will therefore be subject to finance charges as any other past due account is subject to such charges.
Excuse of performance: Any delay in or failure of performance by Seller shall not be a breach of these Terms if and to the extent such performance is prevented or delayed due to insufficient production capacity or events beyond the Seller’s reasonable control, including (without limitation) acts of God, embargoes, governmental restrictions, compliance with law or government authority, military action, terrorism, riots, civil disorders, fires, floods, accidents, labor strikes, lockouts and shortages, computer system failures, loss of electronic data, unavailability of materials, fuel products or components, or delays in transportation. Seller’s obligations shall be suspended, without liability, for so long as such event continues.
Inspection and claims procedure: Buyer shall inspect the Goods, at its sole cost and expense. In the event of any claims related to the Goods, including but not limited claims for compliance with specifications, shortages, defects, noncomformity, errors and for in transit loss or damage, (hereinafter, “Claims”), Buyer shall give written notice of any Claims to Seller within two (2) days of shipment by Seller. Written notice as required herein shall be sent to (503)-226-2249 if faxed, or sent to email@example.com and firstname.lastname@example.org if emailed, or sent to PO Box 168, Portland, OR 97207 if mailed by USPS, together with all documents supporting any Claims and a summary of all material facts upon which any Claims are made. FAILURE TO GIVE TIMELY RECEIVE NOTICE OF ANY CLAIMS IN WRITING SHALL CONSTITUTE IRREVOCABLE AND UNQUALIFIED ACCEPTANCE OF THE GOODS BY BUYER AND SHALL CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS WITH RESPECT THERETO. Provided that Buyer provides timely written notice of Claims, Seller may, in its sole discretion, either replace the portion of the Goods found by Seller to be nonconforming on the same terms applicable to the initial order, ship additional Goods to remedy any shortage or in transit loss as determined by Seller, repair any defects in the Goods confirmed by Seller at Buyer’s expense, or refund to Buyer the portion of the purchase price or portion thereof actually received by Seller for the affected portion of the Goods.
Limitation of Liability: In no event shall Seller be liable to Buyer for any indirect, consequential, exemplary, special, incidental or punitive damages. Seller’s total liability to Buyer in connection with this Agreement and the Goods shall be limited to the lesser of: (1). direct damages proven by Buyer; or (2). the amount paid by Buyer to Seller for the specific Goods giving rise to the cause of action. The foregoing limitation shall apply, to the extent permitted by applicable law, to all causes of action and claims, including (without limitation) breach of contract, warranty, infringement, negligence, strict liability, and other torts. Without limiting the applicability of the foregoing, Seller shall not be liable for any damages that could have been avoided by Buyer’s use of reasonable diligence. NO LITIGATION BY BUYER CONCERNING THE GOODS SHALL BE COMMENCED LATER THAN ONE YEAR AFTER THE DATE OF SHIPMENT.
Indemnity: To the fullest extent permitted by law, Buyer shall fully and forever defend (with counsel satisfactory to Seller), indemnify and hold Seller and its agents, officers, directors, employees, insurers and assigns harmless from any and all claims and damages, direct, consequential, incidental, or otherwise arising by reason of or related to the goods or the acts or omissions of the Buyer or Buyer’s employees or agents.
All orders are subject to acceptance by Seller All prices are subject to change without notice. Buyer shall pay the price prevailing at the time of delivery. All prices are exclusive of sales, use and other taxes, and shipping, insurance, handling and delivery charges, all of which shall be paid by the Buyer.
Miscellaneous: (a). If any term of this Agreement is invalid, the invalid language shall be considered deleted from this Agreement and shall not invalidate the remaining language. (b). This Agreement may be executed and transmitted to Seller by facsimile machine and the facsimile so transmitted to Seller shall be deemed an original and shall be binding upon the Buyer upon its receipt by Seller. (c). Regardless of any prior or contemporaneous agreements, this Agreement amends and modifies any and all of said prior or contemporaneous agreements and contains the entire agreement between the parties and cannot be changed or terminated orally. (d). All goods shall be for use in Buyer’s business and commercial use only and not for Buyer’s consumer, personal or household use. (e). Any provision of this Agreement may be modified by Seller upon 30 days prior written notice to Buyer. (f). This Agreement may be terminated at any time by Seller for any reason at any time. (g) No waiver by Seller of any breach or any term or condition of this Agreement shall constitute a waiver of any prior or subsequent breach and Seller shall not be affected by any delay, failure or omission to enforce or expressly forbear with respect to any of Seller’s rights, remedies or defenses herein.