Consolidated Supply Co. Terms and Conditions of Purchase

The following terms and conditions (“Terms”) apply to any purchase order (“PO”) issued by Consolidated Supply Co. (“Buyer”) to the seller named in the PO (“Seller”).

1. Applicability. These Terms and the applicable PO (together, this “Order”) constitute the sole and entire agreement of the parties with respect to this Order and supersede all prior or contemporaneous understandings and agreements, except as expressly provided herein. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller's general terms and conditions of sale or any other document issued by Seller in connection with this Order, unless expressly accepted in writing by an authorized officer of Buyer. Seller’s commencement of performance or written acknowledgement of the PO constitutes acceptance of this Order.
2. Timing. Time is of the essence in this Order. Seller is solely responsible for delivery by the date specified in the PO and all costs related to delivery, including without limitation, the cost of expedited freight charges as necessary to meet the delivery date. Any delay may be cause for cancelling all or part of the PO; in addition, subject to Section 12 of these Terms, Buyer may secure the goods from a third party, without prejudice to any other right or remedy, and charge Seller for its additional costs in securing the third party goods in excess of the price under the PO.
3. Termination. Once accepted, the PO may not be cancelled by Seller. Buyer may terminate this Order, in whole or in part, at any time with or without cause by written notice to Seller. Upon notice of termination of a PO, Seller shall immediately stop manufacture or delivery of goods under the PO. If Buyer terminates this Order for any reason, Seller's sole and exclusive remedy is payment for the goods received and accepted by Buyer prior to the termination. Any provision of these Terms which, by its nature, should apply beyond any termination or expiration of this Order will remain in force after termination or expiration.
4. Title and Risk of Loss. Title and risk of loss or damage to the goods under the PO passes to Buyer upon delivery of the goods to the location specified in the PO.
5. Change Orders; Substitutions. Buyer may make changes to the PO by written notice to Seller. Upon receipt of such notice, Seller shall proceed promptly to make such changes. If any such change causes a change in the cost of the goods or in the time required for performance, Seller shall provide prompt notice to Buyer of any such change and an equitable adjustment shall be promptly negotiated by the parties, and the PO shall be modified in writing accordingly. Seller shall not make substitutions for the goods unless such change is approved by Buyer in writing.
6. Inspection of Goods. Goods purchased under the PO are subject to approval and acceptance by Buyer. Buyer shall have the right to inspect the goods on or after delivery and, within 30 days of delivery, make claims for billing errors or adjustments, as well as claims for damage or quantity errors. Payment for goods shall not constitute acceptance, and acceptance of the goods shall not relieve Seller of any warranty or other obligation. If Buyer requires replacement of the goods, Seller shall, at its expense, promptly replace the nonconforming goods and pay for all related expenses, including, but not limited to, transportation charges for the return of defective goods and the delivery of replacement goods. If Seller fails to deliver replacement goods in the timeframe required by Buyer, Buyer may terminate the PO and replace the goods with goods from a third party and charge Seller for the additional cost of the third party goods in excess of the price under the PO.
7. Pricing and Payment Terms. Unless otherwise agreed by the parties in writing, the payment terms shall be 30 days from Buyer’s receipt of Seller’s correctly presented invoice on any order for which Seller does not grant a cash discount. All transportation costs, duties, and other charges will be included in the invoiced price. The amount of any sales, excise, or other similar taxes, if any, directly applicable to the purchase of the goods under the PO shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with a valid tax exemption certificate.
8. Ownership of Custom Design. Seller agrees and acknowledges that Buyer is the exclusive owner of any custom designs created by either party for purposes of this Order or used to produce the goods under this Order (“Custom Designs”), and Buyer does not transfer to Seller any of its intellectual property rights to or incorporated in Custom Designs. This Order shall not be construed to be or to contain an express or implied license by Buyer to Seller under any patents, patent applications, trademarks, trade name, design, or other intellectual properties owned by Buyer or incorporated in the Custom Designs, except to the extent necessary for Seller to fulfill its obligations under this Order. Seller represents, warrants, and agrees that it will not use Custom Designs or any intellectual property right contained therein in any commercial manner except for the limited purpose of producing the goods solely and exclusively for Buyer under this Order.
9. Confidentiality. Seller agrees and acknowledges that Custom Designs are the confidential information of Buyer. Seller shall keep Custom Designs strictly confidential and secret, and shall not divulge, communicate, or transmit Custom Designs to third parties without the prior written approval of Buyer. These obligations of confidentiality and limits on use of said information shall survive the termination or expiration of this Order for a period of two years, except for information that constitutes Buyer's trade secrets, which shall remain confidential for as long as such information continues to qualify as trade secrets.
10. Warranties. To the extent permitted, Seller assigns all manufacturer’s warranties to Buyer and will cooperate with all reasonable requests of Buyer to pursue remedies under these warranties including but not limited to repairs, replacement, or other applicable remedy for a breach. Seller further warrants to Buyer and customers of Buyer that (a) goods supplied conform to applicable specifications, are merchantable and fit for their intended purpose, are free from defects, and do not infringe intellectual property or other rights of others; (b) any services provided conform to specifications and will be performed by qualified personnel in accordance with standards generally accepted in the industry; and (c) goods and services are produced or provided in compliance with, and Seller will comply with, all applicable laws and regulations.
11. Indemnification. Seller shall defend, indemnify, and hold harmless Buyer and its subsidiaries, affiliates, successors, or assigns, directors, officers, and shareholders, and Buyer's customers against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorney fees in collection or investigation, at trial, and on any appeal, arising out of or occurring in connection with (a) the goods purchased from Seller; (b) the use or possession of goods or materials of the Seller that actually or allegedly infringe or misappropriate the patent, copyright, trade secret, or other intellectual property right of any third party; (c) Seller’s failure to comply with applicable laws or regulations; and (d) Seller's negligence or willful misconduct. Seller’s duty to indemnify Buyer shall not apply to any claim for personal injury or property damage caused by the sole negligence of Buyer.
12. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Order, for any failure or delay in fulfilling or performing any provision of this Order, when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (each a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; or (e) embargoes or blockades in effect after the date of this Order. The Impacted Party shall give notice within three days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of twenty days following the date written notice was required to be given by it under this section, the other party may terminate this Order upon written notice, and Purchaser may secure the goods from a third party.
13. Compliance with Laws. In its performance of all obligations, production, and delivery of goods under this Order, fully comply with all applicable federal, state, and local laws, rules, regulations, and ordinances.
14. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Order without the prior written consent of Buyer. 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. Buyer may at any time assign or transfer any or all of its rights or obligations under this Order without Seller's prior written consent.
15. Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
16. Governing Law; Venue. This Order is governed by the laws of the State of Oregon. Any legal action arising out of or related to this Order shall be instituted in Washington County, Oregon, and the parties irrevocably submit to the exclusive jurisdiction of such courts.
17. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS ORDER AND THE CONTEMPLATED TRANSACTIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, AND IT MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY.

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