TERMS OF ORDER
1. ACCEPTANCE. This order constitutes an offer on the part of the buyer to the seller upon the terms stated herein and on the reverse hereof (this “Order”). Performance of any Order must be in strict accordance with this Order and is hereby expressly limited to the terms and conditions of this Order. This Order is not binding on buyer until seller accepts the Order in writing. Buyer may withdraw the Order at any time before it is accepted by seller. Any additional terms and conditions proposed by seller, whether on its confirmation, invoice or other documentation, are not binding to buyer unless buyer expressly accepts seller’s provisions in a written contract signed by an officer of buyer.
2. PACKAGING AND SHIPPING. Unless this Order states otherwise or unless consented to by buyer, no charge shall be made for packing, crating, drayage or other similar costs. All material or items shall be packed for shipment according to buyer’s instructions. Items shall be packaged to ensure against damage from weather and/or transportation. Each container must be marked to show order number and a packing sheet showing order number must be included in each shipment. Seller shall give written notice of shipment to buyer when the material or items are delivered to a carrier for transportation. Original bill of lading, or other shipping receipt, for each shipment shall be promptly forwarded by seller. Risk of damage and loss to any shipment shall remain with seller until delivery of the material or items to the destination specified by buyer.
3. DELIVERY. All material or items shall be delivered to the address specified in this Order. Time and rate of deliveries are of the essence of this Order. Shipments must be made as per our delivery schedule, and the dates shown are delivery dates due at destination and not shipping dates. If seller is unable to meet the delivery dates shown on the Order, seller shall promptly notify buyer (within one (1) business day of receiving the Order). Buyer may from time to time change delivery schedules or direct temporary suspension of scheduled shipments. Buyer will have no liability for payment for material or items delivered to buyer which are in excess of quantities specified in an Order unless buyer consents to purchase such excess quantities. Any such rejected material or items shall be returned to seller at seller’s risk and expense.
4. CANCELLATION AND TERMINATION. Buyer reserves the right to cancel this Order in its entirety or in part without liability, in the event of defects in material, equipment, workmanship, or quantity or quality of problems with the materials delivered or if materials are not in accordance with approved drawings, samples or specifications, or instructions given in connection therewith, or if there is delay in performance or delivery under this Order. Unless the delay in performance or delivery is due to causes beyond the seller’s control and without seller’s fault or negligence, buyer reserves the right to purchase substitute items or services elsewhere and charge the seller with any excess reprocurement costs incurred. Buyer reserves the right to cancel this Order any time as to items not yet shipped, without liability. Buyer may also cancel the Order in the event of any of the following: (i) insolvency of the seller; (ii) the filing of a voluntary petition in bankruptcy; (iii) the filing of an involuntary petition to have seller declared bankruptcy if it is not vacated within thirty (30) days from the date of filing; (iv) the appointment of a receiver or trustee for seller if such appointment is not vacated within thirty (30) days from the date of such appointment; or (v)the execution by seller of an assignment for the benefit of creditor(s). If buyer terminates the Order for any reason, seller’s sole and exclusive remedy is payment for the material or items received and accepted by buyer prior to the termination.
5. WARRANTY. Seller warrants to buyer that all material, items and work covered by this Order will (i) conform to applicable specifications, drawings, samples and/or other descriptions; (ii) be free from defects in workmanship and material; (iii) be merchantable; and (iv) be free and clear of all liens, security interests or other encumbrances. Unless the materials or articles covered by this Order are manufactured completely and solely to detailed designs furnished by buyer, seller assumes design responsibility and warrants to buyer that the items to be fit and sufficient for the purpose intended. These warranties survive any delivery, inspection, acceptance or payment of or for the materials or items by buyer. The warranties of the seller, together with its service warranties and guarantees, shall run to benefit of the buyer and its customers. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of buyer’s discovery of the noncompliance of the material or items with the foregoing warranties. If requested by buyer, seller shall furnish certifications of origin as requested by buyer.
6. INSPECTION. Material or items purchased hereunder are subject to inspection and approval at buyer’s plant. Buyer reserves the right to reject and refuse acceptance of all or any portion of the material or items which are not in accordance with this Order, applicable instructions, specifications, drawings or fail to meet seller’s warranty (express or implied). Items not accepted will be returned to seller at seller’s expense and seller shall promptly refund to buyer any payments made for such rejected goods. If buyer requires replacement of the material or items, seller shall, at its expense, promptly replace the nonconforming material or items and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective material or items and the delivery of replacement material or items. Payment for any article hereunder shall not be deemed an acceptance thereof. Any inspection or other action by buyer under this Section shall not reduce or otherwise affect seller’s obligations under this Order, and buyer shall have the right to conduct further inspections after seller has carried out its remedial actions.
7. COMPLIANCE WITH LAWS. Seller represents, warrants and covenants to buyer that in the performance of this Order it will comply with all requirements of all federal, state and local laws and regulations, including but not limited to those applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export, and/or disposal of any and all products manufactured or distributed by seller including those related to kiln dried or heat treated logs or lumber, and the Fair Labor Standards Act of 1938, the Federal Occupational Safety and Health Act of 1970 and the California Occupational Safety and Health Act of 1973, all as amended. Seller agrees to indemnify buyer against any loss, cost, damage or liability resulting from seller’s non-compliance or seller’s breach of its warranty obligations.
8. INDEMNIFICATION. Seller shall defend, indemnify and hold harmless buyer, its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders, employees, customers and the users of its products against any and all loss, injury, death, liability, claim, action, judgment, cost, expense and damage, including attorney’s fees, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with (i) the products purchased from seller; (ii) seller’s negligence, willful misconduct or breach of this Order; or (iii) the infringement of any patent, trademark, copyright or any other intellectual property right arising out of the sale or use of the materials or items furnished by seller. Seller shall not enter into any settlement without buyer’s prior written consent.
9. FORCE MAJEURE. In addition to any reasons for suspension or cancellation permitted under this Order or under applicable law, buyer reserves the right at its option and without liability either to direct suspension of the delivery or to cancel this Order, in whole or in part, at any time where such suspension or cancellation is caused by acts of God, flood, fire, earthquake, severe storm, pandemics, epidemics, power outages, government order or other requirements (including those of the country of ultimate resale destination), embargoes, acts of civil or military authorities, acts of the public enemy, inability to secure transportation facilities, strikes or other labor disruption, accidents at plant of buyer, export or import restrictions in place or country of origin or place or country of ultimate resale destination, or other law or regulation or other similar events beyond the control of buyer.
10. INSURANCE AND RISK OF LOSS. In addition to all other insurance coverage required by applicable law, seller shall maintain insurance, at its own expense, in amounts acceptable to buyer and that such insurance will adequately protect buyer against all damages, liabilities, claims, losses and expenses (including attorney’s fees). In particular, seller shall provide workers’ compensation, automobile and comprehensive general liability insurance, including coverage for contractual liability, products liability and completed operations, in the following amounts and coverages: (a) General liability insurance with limits of $1 million per occurrence and $2 million general aggregate; (b) Employment practices liability insurance with a limit of no less than $1m; (c) Commercial automobile liability with limits no less than a $1 million, combined single limit; (d) Workers’ compensation insurance in the statutory amount / with Employers Liability limits of $1 million; and (e) Excess/umbrella coverage of $5 million per occurrence applying over the primary commercial general liability, auto liability, and employer’s liability coverages. Seller agrees that such insurance will adequately protect buyer against such damages, liabilities, claims, losses and expenses (including attorney’s fees). Seller agrees to submit certificates of insurance, evidencing its insurance coverage when requested by buyer. Seller will name buyer as an additional insured on all policies specified above, indicating sellers policies shall be primary and not contributory with any coverage carried by buyer, with the exception of workers’ compensation insurance policies.
11. CHANGES IN DRAWINGS OR SPECIFICATIONS. With respect to orders which are made to buyer’s drawings and/or specifications, buyer shall have the right to make changes in such drawings and specifications prior to manufacture. If any such change causes a price increase or decrease or change in delivery schedule, seller shall promptly inform buyer in writing of the changed price and/or delivery schedule so that buyer can make an informed decision whether to pursue such change to such specifications.
12. PRICES. Seller warrants that the price or prices to be charged for the items covered by this Order will not exceed the maximum prices permitted by applicable governmental price control regulations and seller agrees to refund any amounts paid by buyer in excess of amount permitted by such regulations.
13. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of the buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by buyer to seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by buyer in writing. Upon buyer’s request, seller shall promptly return all documents and other materials received from buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the seller at the time of disclosure; or (c) rightfully obtained by the seller on a non-confidential basis from a third party.
14. ASSIGNMENT. Seller shall not, without buyer’s written consent, assign this Order in whole or in part with respect to work to be done. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the seller of any of its obligations hereunder.
15. REMEDIES. The remedies herein reserved shall be cumulative, the additional to any other or further remedies provided by law or equity. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver of a breach of any provision of this contract shall constitute a waiver of any other breach, or of such provision.
16. MISCELLANEOUS. The relationship between the parties is that of independent contractors. Nothing contained in the Order 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. No relationship of exclusivity shall be construed from this Order. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Order. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Warranty, Indemnification, Insurance and Risk of Loss, Compliance with Laws, Confidential Information, Miscellaneous and Governing Law and Venue.
17. EQUAL OPPORTUNITY. Seller will comply to the extent applicable with all provisions of Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and of the rules regulations and relevant orders of the Secretary of Labor.
18. GOVERNING LAW AND VENUE. This Order and any disputes arising out of or relating to this Order shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of law. The United Nations Convention on the International Sale of Goods is expressly excluded. Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.