1. Agreement. This purchase order, which includes these terms and conditions, represents the final written agreement with respect to the goods or services to be purchased by TYR. If Seller does not object to the types and quantities of goods, the delivery date or destination set forth in the purchase order within 72 hours after Seller’s receipt of this purchase order, the terms of this purchase order shall be conclusively deemed correct. The commencement of work on or shipment of the goods or the commencement of services subject to this purchase order by the Seller shall be deemed an effective mode of acceptance of these purchase order terms and conditions; provided, however, that the foregoing may not be used by Seller as a defense to excuse non-performance under this purchase order. Any acceptance or confirmation of this purchase order is limited to acceptance of the express terms in this purchase order. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this order is hereby rejected. Such proposal shall not operate as a rejection of this order unless it varies the description, quantity, price, or delivery schedule of the goods or services. If this purchase order is deemed an acceptance of a prior offer by Seller, it shall be limited to the express terms in this purchase order.
2. Termination. TYR reserves the right to terminate this purchase order or any portion of the goods or services purchased at its sole convenience. Following such termination Seller shall immediately stop all work and shall immediately cause any of its suppliers or subcontractors to cease work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus any actual direct costs resulting from such termination. TYR shall not pay for any work done after receipt of the notice of termination, nor for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided. TYR may also terminate this purchase order or any portion of the goods or services purchased if Seller defaults under or fails to comply with any of the purchase order terms and conditions. Without limitation, Seller’s insolvency, filing of a voluntary or involuntary bankruptcy petition, the appointment of a receiver or trustee, late deliveries, deliveries of products or services which are defective or nonconforming, and failure to provide reasonable assurances of future performance shall each allow TYR to terminate this order for cause. If termination occurs as a result of Seller’s default, TYR shall not be liable to Seller for any amount, and Seller shall be liable to TYR for any and all damages sustained from the default which gave rise to the termination.
3. Proprietary Information — Confidentiality — Advertising. Seller shall consider all information furnished by TYR to be confidential and Seller shall not disclose any such information to any other person, or use such information for any purpose other than completion of its obligations under this purchase order, unless Seller obtains written permission from TYR to do so. This Section shall apply without limitation to drawings, specifications, or other documents provided by Seller for TYR under this purchase order. Seller shall not advertise or publish the fact that TYR has contracted to purchase goods from Seller. No information relating to the purchase order shall be disclosed without TYR’s written permission. Unless otherwise agreed in writing, no commercial, financial, or technical information disclosed in any manner or at any time by Seller to TYR shall be deemed secret or confidential. Seller shall have no rights against TYR with respect thereto except such rights as may exist under patent laws.
4. Warranty. Seller expressly warrants that all goods or services furnished under this purchase order shall (a) conform to all specifications and applicable standards (including, without limitation, government and trade standards), (b) be new (unless otherwise expressly stated in writing), (c) be free from latent or patent defects in material or workmanship, (d) conform to any statements made on the containers or labels or advertisements for such goods or services, (e) be adequately and correctly contained, packaged, marked, and labeled, (f) be merchantable, safe and appropriate for the purpose for which goods or services of that kind are normally used, (g) be fit for a particular purpose if Seller knows or has reason to know the particular purpose for which the goods and services will be used, (h) conform in all respects to any samples used by Seller, and (i) not violate any other person’s patents, copyrights, or other intellectual properties. Seller further warrants that it has good and marketable title to the goods and TYR will own the goods free of any claims of any third person. Inspections, tests, acceptance, or use will not affect Seller’s obligations under these warranties. All warranties shall survive inspections, tests, acceptance, and use. Seller’s warranties shall run to TYR, its successors, assigns, customers, and users of products or services sold by TYR. Seller agrees to replace or correct defects of any goods or services not conforming to warranty promptly, without expense to TYR, when notified of such nonconformity by TYR. If Seller fails to correct defects in or replace nonconforming goods or services promptly, TYR, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the cost.
5. Price Warranty. Seller warrants that prices shown on this purchase order are complete. No additional charges of any kind shall be added without TYR’s written consent.
6. Indemnification. Seller shall defend, indemnify, and hold harmless TYR against all damages, claims, liabilities, costs and expenses (including attorneys’ fees) arising out of or resulting in any way from any defect in the goods or services purchased, or from any act or omission of Seller, its agents, employees, or subcontractors. This indemnification shall be in addition to the warranty obligations of Seller and shall survive the expiration or termination of this purchase order.
7. Changes. TYR shall have the right at any time to change drawings, designs, specifications, materials, packaging, time, and place of delivery and method of transportation for the goods or services provided. If any changes cause an increase or decrease in the cost or the time required for performance, an equitable adjustment shall be made and a written amendment to this purchase order completed.
8. Inspection/Testing. Payment for goods delivered or services provided shall not constitute acceptance. TYR shall have the right to inspect such goods or services and to reject any or all of the goods or services which are, in TYR’s judgment, defective or nonconforming. Goods rejected and goods supplied in excess of specified quantities may be returned at Seller’s expense and, in addition to TYR’s other rights, TYR may charge Seller all expenses of unpacking, examining, repacking, and reshipping such goods. If TYR rejects any services provided, TYR, at its sole option, may require Seller to correctly perform the services or hire another person to perform the services at Seller’s expense. If TYR receives goods with defects or nonconformities not apparent on examination, TYR may require replacement, as well as payment of damages. Nothing in this purchase order shall relieve the Seller in any way from its obligations to provide conforming goods and services.
9. Entire Agreement. This purchase order and any documents referred to in it constitute the entire agreement between the parties with respect to its subject matter.
10. Assignment and Subcontracting. No part of this order may be assigned or subcontracted without prior written approval of TYR.
11. Setoff. All claims for money due or to become due from TYR shall be subject to deduction or setoff by TYR for any claim arising out of this or any other transaction with Seller.
12. Shipment. If Seller must ship by a more expensive manner to comply with TYR’s original delivery date any related increased transportation costs shall be paid by Seller unless the rerouting or expedited handling is caused by TYR’s change of the delivery date and approved in advance by TYR.
13. Waiver and Remedies. TYR’s failure to insist on performance of any terms or conditions or to exercise any right or privilege or TYR’s waiver of any breach shall not be a subsequent waiver of any other terms, conditions, or privileges. All of TYR’s rights and remedies under this purchase order shall be construed as cumulative and shall include all rights and remedies available under law and equity.
14. Delivery. Time is of the essence of this order. If goods are not delivered or services not rendered by the time promised, TYR may terminate this purchase order by notice effective when received by Seller as to items not yet shipped or services not yet rendered and to purchase substitute items or services and charge Seller with any loss incurred in addition to its other rights and remedies.
15. Limitation on TYR’s Liability–Statute of Limitations. TYR shall not be liable for anticipated profits or for incidental or consequential damages. TYR’s liability on any claim of any kind for any loss or damage shall in no case exceed the price allocable to the goods or services giving rise to the claim. TYR shall not be liable for penalties of any description. Any action resulting from any breach by TYR must be commenced within one year after the cause of action arises.
16. Governing Law. This order and all rights and obligations shall be governed by and construed under the laws of the state of Oregon without regard to its choice of law principles. The parties shall be subject to the jurisdiction of the state and federal courts located in Oregon for any dispute or litigation arising under or in connection with this purchase order. Venue for any litigation shall be in Multnomah County, Oregon, and each party waives all claims that the forum is inconvenient or that a more convenient forum can be found. The parties agree that the Convention for the International Sale of Goods shall not apply to this order.
17. Alternative Dispute Resolution. TYR, in its sole discretion, may require and compel that any claim brought by, or dispute between TYR and Seller, including but not limited to any claim filed in court, and any construction lien foreclosure action, be resolved by arbitration administered by the Arbitration Service of Portland, Inc. (“ASP”), under the then effective arbitration rules of ASP, which are incorporated herein by reference. Pursuant to the ASP Rules, the parties shall be entitled to assert all claims and defenses allowed by law, shall be entitled to discovery as allowed under the Oregon Rules of Civil Procedure, and the arbitrator shall be impartial and be required to disclose any relationship to the parties. Such arbitration shall be conducted before a single, neutral arbitrator in Portland, Oregon, and shall be subject to the Oregon Uniform Arbitration Act, ORS 36.600, et seq.
18. Compliance with Laws. Seller shall comply, and shall cause all items and services furnished hereunder to comply, with all applicable federal, state, and local laws, rules, regulations, and standards including without limitation provisions of the Equal Opportunity Clause in § 202 of Executive Order 11246 of September 24, 1965, as amended; the Affirmative Action provisions referenced in 41 CFR Parts 601 through 6060 and §§ 402503 and 41 CFR Parts 60250 and 60741; and the provisions of the Occupational Safety and Health Act of 1970 (OSHA) as amended and related standards and regulations. Seller shall certify in writing such compliance at TYR’s request.
19. Certification Regarding Debarment. Any acceptance of this purchase order is based on the Seller’s representation that it is not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any federal agency.
20. Force Majeure. Neither party shall be liable for default or delays due to acts of God or public enemy, fires, floods, or accidents. Each party shall notify the other in writing of the cause of such delay within five days after the event occurs.