This Sales Order Acknowledgement and General Terms and Conditions (“Order Acknowledgement”) apply to any goods (“Goods”) ordered or purchased from TYR Wood Products, Inc., dba TYR Food Products and TYR Feed Products (“TYR”) by the buyer (“Buyer”) identified in the purchase order or other document or communication from Buyer relating to the Goods (“Purchase Order”).
ENTIRE AGREEMENT. Unless a separate written agreement is signed by both parties, the entire agreement between Buyer and TYR is contained in this Order Acknowledgment, except such other terms as may be specifically incorporated in the Order Acknowledgment by reference. No alleged or actual written or oral promises or conditions not set forth in the Order Acknowledgment shall be binding upon Buyer or TYR, and any prior negotiations between the parties are merged into the Order Acknowledgment.
Conditional. TYR’s issuance of the Order Acknowledgment is expressly made conditional (i) upon Buyer’s assent to any and all terms contained in the Order Acknowledgment that are additional to or different from any terms on any Purchase Order, and (ii) upon Buyer’s further assent that the terms contained in this Order Acknowledgment constitute the sole and exclusive agreement between TYR and Buyer. Such assent shall be deemed given unless Buyer notifies TYR in writing of Buyer’s objection to specific terms within five (5) days after TYR’s issuance of the Order Acknowledgment or the shipment of the Goods, whichever is earlier. Issuance of a Purchase Order with additional or different terms is not an objection to specific terms of the Order Acknowledgment.
No Acceptance. TYR’s performance under the Order Acknowledgment does not constitute an acceptance of provisions of any Purchase Order that are different from or additional to the terms of the Order Acknowledgment, and such different or additional provisions are hereby expressly rejected and are void.
LIMITATION OF WARRANTY. TYR warrants that the Goods delivered shall conform to the grade (subject to the limitations set forth in Section 6 below) and quantity specified in the Order Acknowledgment. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. If a sale is based upon a sample, the sample shown by TYR to Buyer was for demonstration purposes only, and TYR makes no warranty that the Goods delivered shall conform to the sample; conformity of the Goods to the sample is not a part of the basis of the bargain between TYR and Buyer. If the Order includes goods which have been fabricated in accordance with shop drawings approved or supplied by Buyer, those goods are only warranted to be in substantial compliance with the specifications of any such drawings.
LIMITATION OF LIABILITY. TYR’S LIABILITY SHALL BE LIMITED TO THE FOLLOWING AS ELECTED BY TYR IN ITS ABSOLUTE DISCRETION: (A) REPLACING DULY REJECTED GOODS TO THE POINT OF DELIVERY AS SPECIFIED IN THE ORDER ACKNOWLEDGMENT WITHIN A REASONABLE PERIOD OF TIME FOLLOWING PROPER AND TIMELY REJECTION BY BUYER OR (B) REFUNDING THE PURCHASE PRICE. UNDER NO CIRCUMSTANCES SHALL TYR BE LIABLE TO BUYER FOR CONSEQUENTIAL, SPECIAL, PUNATIVE OR INCIDENTAL DAMAGES, OF ANY NATURE WHATSOEVER, ARISING FROM NONCONFORMITY OF GOODS OR DELAY IN SHIPMENT, OR ANY OTHER BREACH BY TYR.
REJECTION. Any claim of shortages and/or damaged packaging or other materials must be written on the proof of delivery receipt after the Goods arrive at the destination specified in the Order Acknowledgment. Any other rejection of the Goods shall not be effective unless it is made and written notice thereof is given within the timeframes set out below (each, the “Inspection Period”): Prior to unloading with respect to Goods delivered as bulk cargo (normally delivered by railcars or hopper trucks); and within ten (10) days after delivery of Goods other than Goods delivered as bulk cargo, including without limitation, Goods that are packaged in bags, totes or on pallets. Buyer waives any right of rejection once the Goods are mixed or combined with any other goods. If such written notice of rejection of the Goods or claim of shortages and/or damaged material is not received before the expiration of the Inspection Period, Buyer shall be deemed to have waived any right to reject such Goods or to claim shortages and/or damaged material. All claims for rejected Goods or shortages or damaged Goods must be supported by written exceptions by Buyer or Buyer’s representative and delivered to TYR at its headquarters prior to the expiration of the Inspection Period. Failure to take exceptions against the carrier for short delivery and/or damages shall constitute a waiver of such claims.
GRADING AND ASSOCIATION RULES. Unless otherwise specifically stated in the Order Acknowledgment, the Goods will be graded on the basis of official grading rules issued by the manufacturer’s association covering such Goods and in effect at the time of delivery of the Order Acknowledgment. Buyer acknowledges that any grading of the Goods is based on the subjective opinion of the grader and TYR’s only obligation is to provide Goods that have the grading as set forth in the Order Acknowledgement and TYR does not guaranty or make any representations or warranties that the grading was performed accurately. The applicable grading rules shall be designated in the Order Acknowledgment, or if none are designated, TYR shall select the rules of an appropriate manufacturer’s association upon notice of any claim. In the event of a dispute over grade, quality, tally, size, specification, or manufacture, unless agreed that inspection at time of loading is final, the reinspection and shipping provisions of the applicable manufacturer’s association shall constitute part of the contract between Buyer and TYR.
DELIVERY TERMS. All shipments, unless TYR specifically agrees otherwise in writing, are Ex Works (International Incoterms 2010) either the pertinent TYR warehouse or the pertinent Goods supplier warehouse or FOB (U.S. UCC) Seller shipping point (Origin), at which point title Buyer shall be liable to TYR for the full price of the goods, irrespective of loss or damage in transit. If the Buyer asserts a claim against the transportation company, TYR will cooperate in attempting to resolve such claim. Delivery dates are approximate and not guaranteed. Goods are deemed delivered on the day the shipment is made available to the freight forward or broker. Under no circumstances shall Seller have any liability whatsoever for loss of use or for consequential damages resulting from delay regardless of the reasons. Receipt by the Buyer shall constitute acceptance of delivery and waiver of any claims due to delay.
CHANGES IN COST. Any change in insurance premium, destination, or other shipping charges including (without limitation) fluctuations in ocean freight which may be established after the date of the Order Acknowledgment shall be for Buyer’s account and at Buyer’s sole cost and expense. All transportation expense, if included in the price, is as per current tariff at the date of the Order.
TRADE TERMS. Except to the extent that these terms and conditions expressly provide for a different interpretation, trade terms shall be interpreted as follows: (a) for Goods to be shipped to a destination within the United States, trade terms shall be interpreted in accordance with the Oregon Uniform Commercial Code; (b) for Goods to be shipped to a destination outside the United States, trade terms shall be interpreted in accordance with the Incoterms as amended and published by the International Chamber of Commerce and in effect as of the date of the Order Acknowledgment.
DEFAULT. If Buyer breaches or is otherwise in default under the Order Acknowledgment or under any other contract between the parties hereto, TYR at its option may delay delivery of the Goods until the default is cured, or may treat the default as a repudiation by Buyer of the Order in its entirety, resell the Goods and hold Buyer liable for such damages as TYR may incur, including (without limitation) consequential and incidental damages. For purposes of the Order Acknowledgment, Buyer’s insolvency shall be a default under the Order Acknowledgment.
SELLER’S LIEN. Until the unpaid contract price and any other amounts payable by Buyer to TYR under the Order Acknowledgment are paid in full, TYR shall have a lien on the Goods for the unpaid amounts. Buyer grants to TYR a security interest in the Goods to secure payment of such amounts.
FAILURE TO TAKE DELIVERY. If Buyer fails to take delivery of the Goods or any part thereof, the Goods not delivered shall be held at Buyer’s sole risk and at Buyer’s sole cost and expense in all respects. Nevertheless, TYR, acting as Buyer’s agent and at Buyer’s expense, may thereafter store, insure and/or otherwise protect such Goods or may resell same for Buyer’s account.
CANCELLATION. Except as otherwise expressly provided in the Order Acknowledgment, the Order shall be cancelled only by mutual written consent of the parties. TYR shall not be required to consent to cancellation if TYR has bound itself to purchase the Goods. If Buyer is in default by failure to pay any previous invoice within credit terms at the expected date of shipment of the Goods or any part thereof, or if TYR has received any adverse credit information about Buyer, TYR may delay shipment and/or cancel the unshipped balance of the Goods without liability. In the event of U.S. or foreign government intervention, trade restrictions, and/or quotas, which may delay or prevent delivery of the Goods or any part thereof, TYR, at TYR’s option, may cancel the unshipped balance of the Goods without liability. In the event any of the Goods shall become subject to any governmental fees or duties not presently in effect or to any increase in any existing fee or duty, including (without limitation) any antidumping duty or countervailing duty, TYR shall have the right to cancel the unshipped balance of the Goods without liability.
FORCE MAJEURE. TYR shall be free from any liability for delay or failure in shipment arising from strikes, lockouts, labor troubles of any kind, accidents, perils of the sea, fire, earthquake, adverse weather conditions, civil commotion, war or consequences of war, government acts, restrictions or requisitions, failure of manufacturers or suppliers to timely deliver conforming Goods, bankruptcy or insolvency of manufacturers or suppliers, suspension of shipping facilities, act or default of carrier or any other contingency of whatsoever nature beyond TYR’s control affecting production, transportation to boarding point, loading, forwarding or unloading at destination of the Goods, including (without limitation) disturbances existing on the date of the Order Acknowledgment. In such a situation, if shipment or delivery is not made during the period contracted for, Buyer shall accept delivery under the Order Acknowledgment when shipment is made; provided, however, Buyer shall not be obligated to accept delivery if shipment is not made within a reasonable time after the cessation of the aforementioned impediments or causes.
DISPUTE RESOLUTION. Except as set forth herein, any claim of any kind that arises out of or relates to the Order Acknowledgment, or to the interpretation or breach thereof, shall be brought solely in the state court sitting within Multnomah County, Oregon and each party irrevocably consents to the exclusive jurisdiction and venue therein. Notwithstanding this provision, TYR may take whatever action is necessary, in any jurisdiction, to file and perfect a construction (mechanics) lien claim, a public works bond claim, or similar claim, and may bring an action to foreclose or enforce such lien claim, bond claim, or similar claim, in such jurisdiction. Additionally, TYR, in its sole discretion, may require and compel that any claim brought by, or dispute between, Buyer and/or TYR, 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. If it becomes necessary for TYR to pursue collection of any amounts due TYR related to the Order Acknowledgment, TYR shall be entitled to its reasonable attorney fees, collection costs and expenses, whether or not an action is commenced. No action taken by TYR with respect to any lien claim, bond claim, or similar claim, or security interest, or any other action or inaction of TYR, shall be deemed a waiver of any provision of these Terms and Conditions. Except with respect to a lien foreclosure action, bond claim, or similar claim, which shall be governed by the law of the state where the action is filed, all claims and disputes arising out of or related to the Order Acknowledgment shall be governed by and in accordance with Oregon law, without regards to the principles of conflicts of laws thereof. BUYER WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH TYR AND BUYER MAY BE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THE ORDER ACKNOWLEDGEMENT AND ANY OTHER DOCUMENTS INCLUDING (WITHOUT LIMITATION) INVOICES AND SUBSEQUENT AGREEMENTS.
GENERAL. The rights and obligations of the parties under the Order Acknowledgment shall be governed by the laws of the State of Oregon, U.S.A. in effect as of the date of the Order Acknowledgment, including without limitation the provisions of the Oregon Uniform Commercial Code, but without regard to conflicts of law principles. The 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended, shall not apply to the Order Acknowledgment. If any provision of the Order Acknowledgment is determined by any court or arbitrator to be unenforceable, the provision shall be deleted, and the balance of the Order Acknowledgment shall be binding upon the parties. Any agreement signed and sent by facsimile shall be treated as a binding original. Buyer shall comply with all requirements under applicable laws.
INSURANCE (C.I.F., C.I.P., C.F.R., C.P.T., F.O.B., F.C.A., AND F.A.S. FOREIGN PORT SALES).
C.I.F. or C.I.P Terms. Marine insurance shall be effected by TYR at its expense for Buyer’s account, evidenced by a policy, certificate, or letter of insurance in the amount of the contract price plus not less than 10% with a recognized company or companies for whose solvency TYR is not responsible. The price specified in the Order Acknowledgment shall not include war risk insurance unless specified in writing in the Order Acknowledgment.
C.F.R., C.P.T., F.O.B., F.C.A., and F.A.S. Foreign Port Terms. Marine insurance and war risk insurance shall be effected by Buyer at its expense (unless otherwise specified) for the full value of this contract, and shall include standard warehouse-to-warehouse coverage. If requested by TYR, Buyer shall furnish a binder by the insurance carrier covering shipment under the Order Acknowledgment, all rights under said binder to be assigned to Buyer or TYR or whomsoever may appear to be of interest.
ASSUMPTION OF LIABILITY. It is understood and agreed that Buyer assumes all risks and liabilities resulting from the use of the Goods. TYR neither assumes nor authorizes any person to assume for TYR any of the liability in connection with the sale or use of the Goods. Buyer further agrees to waive, release, forever discharge and hold harmless TYR together with all of TYR’s officers, directors, employees, attorneys and agents (the “Released Parties”), from any and all losses, damages, costs, expenses, rights, claims, demands, judgments, obligations, actions and causes of action (“Losses”), which Buyer may have arising out of or in connection with its use of the Goods. Buyer further agrees to indemnify, defend and hold the Released Parties harmless from and against all Losses arising out of or related to the use, resale or distribution of the Goods. Without limiting the foregoing, Buyer expressly acknowledges and agrees that (a) Buyer assumes all risk with respect to the Goods unless Buyer inspects, tests and properly rejects such Goods within the applicable Inspection Period and (b) Buyer assumes all risk and Losses associated with or arising out of Buyer failing to timely inspect, test and properly reject the Goods including (without limitation) risks and costs associated with any recall of the Goods.
CREDIT APPROVAL. All sales are subject to continuing credit approval.
LATE CHARGE. Buyer agrees to pay a monthly late charge equal to the maximum legal interest rate for contracts, or 1 ½% per month, whichever is less, multiplied by any unpaid delinquent balance due to TYR, until the delinquent balance has been paid in full.
NO DISCLOSURE. Buyer agrees that all information as to source, quantity, and price of Goods and services provided by TYR shall be maintained in confidence and shall not (without TYR’s prior written consent, said consent not to be unreasonably withheld) be released to any private third party for any reason whatsoever other than pursuant to a validly issued subpoena from a court or governmental authority having jurisdiction over Buyer, pursuant to the rules, regulations or requirements of any state or federal agency or department or pursuant to a discovery request made under applicable court rules and to which Buyer is required to respond.
(Revised April 2017)