1. APPLICABILITY. These Terms and Conditions of Sale (“Terms”) apply to the purchase by the buyer (“Buyer”) from Super Pacific, Inc. (“Seller”) of products manufactured by the Seller (“Products”), and services provided by the Seller (“Services”), each of which is identified in the accompanying quotation, credit application, proposal, order acknowledgement, or invoice (the “Sales Confirmation”). These Terms and the Sales Confirmation comprise the entire agreement between the parties (collectively, the “Agreement”). Buyer accepts these Terms by signing and returning Seller’s quotation, by sending a purchase order in response to the quotation, by submitting instructions to Seller to ship the Product or by accepting or paying for the Product or Service. No additional or different terms, conditions or warranties other than those identified in the quotation and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions, whether contained in Buyer’s purchase order or shipping release forms, or elsewhere, shall be binding on Seller unless hereafter made in writing, signed by Seller’s authorized representative, and specifically referencing these Terms and stating that it modifies them. Buyer is hereby notified of Seller’s express rejection of any terms inconsistent with these Terms or to any other terms proposed by Buyer. Neither Seller’s subsequent lack of objection to any terms, nor the delivery of the products or services, shall constitute an agreement by Seller to any such terms. Trade custom, trade usage and past performance are superseded by these Terms and shall not be used to interpret these Terms.
2. PRICE; PAYMENT.
a. Prices for Products covered by this Agreement may be adjusted by Seller, upon notice to Buyer at any time prior to shipment and regardless of the acceptance or issuance of a Sales Confirmation, to reflect any increase in Seller’s cost of raw materials, components (e.g., steel, aluminum, electronic components), inability to secure Products, changes in law, labor, taxes, duties, tariffs or quotas, acts of Government, any similar charges, or to cover any extra, unforeseen and unusual cost elements.
b. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under these Terms (collectively, “Taxes”). Any Taxes related to the Products and Services purchased pursuant to these Terms are the responsibility of Buyer (excluding taxes based on Seller’s net income), unless Buyer presents an exemption certificate acceptable to Seller and the applicable taxing authorities. If possible, Seller will bill Taxes as a separate item on the invoice presented to Buyer. In the event Seller is required to pay any such taxes or other charges, Buyer shall reimburse Seller therefor on demand. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will immediately pay Seller the amount of the Tax and any penalties and interest related thereto.
3. DELIVERY; SHIPPING.
a. Seller will deliver or make available the Products within a reasonable time after receiving Buyer’s purchase order, subject to their availability. The delivery date provided by Seller for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. If Buyer causes Seller to delay shipment or completion of the Products, Seller will be entitled to any and all extra costs and expenses resulting from the delay. Seller will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on Seller’s part. Seller will use commercially reasonable efforts to make shipments as scheduled.
b. Unless otherwise agreed in the Sales Confirmation or otherwise agreed in writing by the parties, Seller will deliver the Products, EXW (Incoterms® 2020) Seller’s plant or factory (the “Delivery Location”), using Seller’s standard methods for packaging and shipping same. Buyer will take delivery of the Products within three (3) days of Seller’s notice that the Products have been delivered to the Delivery Location. If Buyer fails to take delivery of the Products within this three (3) day period, Buyer will pay Seller for the Products and all storage expenses incurred by Seller or, in Seller’s discretion, Seller may ship the Products to Buyer at Buyer’s expense. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether the shipment is in whole or partial fulfillment of Buyer’s purchase order. Buyer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense, and will provide the licenses and consents to the Seller before shipment. Claims for loss or damage to Products in transit must be made to the carrier and not to Seller.
c. Seller will not be liable for any non-delivery of the Products to the Delivery Location, unless Buyer gives written notice to Seller of the non-delivery within five (5) days following the date that Buyer would, in the ordinary course of business, have received the Products. Seller’s liability for any non-delivery of the Products will be limited to replacing the Products within a reasonable time or adjusting the invoice for the Products to reflect the actual quantity delivered, at the Seller’s option.
4. TITLE; RISK OF LOSS.
a. Risk of loss or damage passes to Buyer upon delivery to the carrier. If Buyer fails to accept delivery of any of the Products on the date set forth in Seller’s notice that Seller has delivered the Products to the Delivery Location, or if Seller is unable to deliver the Products to the Delivery Location on the date because Buyer has failed to provide appropriate instructions, documents, licenses, or authorizations, then: (i) the Products will be deemed to have been delivered to Buyer; and (ii) Seller, at its option, (A) may store the Products until Buyer takes possession of them, at which time Buyer will be liable for all costs and expenses resulting therefrom (including but not limited to the cost of storage and insurance), or (B) ship the Products to Buyer, at Buyer’s cost and expense.
b. Title to Products passes to Buyer upon delivery of Products to the Delivery Location. Unless Buyer has prepaid for the Products, the Products shall be subject to a security interest of Seller in the Products until Seller receives full payment from Buyer. Seller may, in its reasonable discretion, register such security interest in Products pending payment in the applicable official registers of any national or local jurisdiction where Products are delivered or physically located. Promptly upon Seller’s request, Buyer shall execute all documents and take all actions as Seller reasonably directs at Seller’s expense to enable Seller to exercise its security rights under this Section.
5. INSPECTION; REJECTION OF PRODUCTS.
a. As used in this Section, “Nonconforming Products” means only the following: (i) the items shipped are different from those identified in Buyer’s purchase order; or (ii) the labels or packaging of the items incorrectly identifies them. Buyer will inspect the Products within five (5) days following receipt thereof (the “Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies Seller in writing of any Nonconforming Products and furnishes Seller with written evidence or other documentation reasonably required by Seller.
b. If Buyer notifies Seller of any Nonconforming Products prior to expiration of the Inspection Period, then Seller will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products, or (ii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At Seller’s request and direction, Buyer will return the Nonconforming Products at Seller’s expense or dispose of the Nonconforming Products in a manner approved by Seller, and upon request Buyer shall provide Seller with a certificate of destruction of such Nonconforming Products. Upon receipt of the Nonconforming Products, Seller will promptly refund the monies owed or ship the replacement Products to the Delivery Location at Seller’s expense, with Seller retaining the risk of loss until delivery.
c. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies and Seller’s sole liability for the delivery of Nonconforming Products, and except as set forth in this Section, Buyer has no right to return the Products to Seller without Seller’s written authorization.
6. INDEMNIFICATION. Buyer shall indemnify, defend and hold harmless Seller and its related parent, subsidiary and affiliated companies, successors and assigns, and each of their respective officers, directors and employees, from and against any and all claims, losses, damages, costs, and expenses (including attorney’s fees and amounts paid in settlement in good faith) which may be suffered or incurred by any of them as a result of any claim, demand, suit, proceeding or cause of action arising in any manner from: (i) any acts or omissions by Buyer or its representative, arising out of or relating to Buyer’s purchase, handling, transportation, export, re-export, re-transfer, import, possession, use, demonstration, marketing, sale, disposition, distribution or maintenance of Products; (ii) any intentional misconduct or negligent act or omission of Buyer, its employees, or its agents; (iii) any misuse or modification of Products by Buyer or its employees or agents; or (iv) Buyer’s failure to comply with any law applicable to these Terms or the performance of Buyer’s obligations hereunder.
7. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY; RELEASE.
a. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL SELLER OR ITS AGENTS OR AFFILIATES BE LIABLE, WHATEVER THE LEGAL BASIS FOR THE CLAIM, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, LIQUIDATED OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THESE TERMS OR THE USE OF, MISUSE OF, OR INABILITY TO USE THE PRODUCTS, EVEN IF SELLER (OR ITS AGENTS OR AFFILIATES) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. IN NO EVENT SHALL SELLER AND ITS AFFILIATES AND THEIR RESPECTIVE PERSONNEL, SUPPLIERS AND VENDORS AGGREGATE LIABILITY UNDER THESE TERMS OR OTHERWISE WITH RESPECT TO THE SPECIFIC PRODUCTS AND SERVICES PURCHASED HEREUNDER EXCEED THE AMOUNTS PAID TO SELLER BY BUYER FOR THE PRODUCTS OR
SERVICES GIVING RISE TO SUCH LIABILITY, REGARDLESS OF THE CAUSE OR FAULT AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
c. BUYER RELEASES SELLER AND EACH PRESENT AND FUTURE SHAREHOLDER, DIRECTOR, OFFICER, AND AUTHORIZED REPRESENTATIVE OF SELLER FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, PROCEEDINGS, DAMAGES, LIABILITIES, AND EXPENSES OF EVERY KIND, WHETHER KNOWN OR UNKNOWN, RESULTING FROM OR ARISING OUT OF ANY ACTIONS TAKEN BY ANY AGENTS OF SELLER, INCLUDING, WITHOUT LIMITATION, THIRD-PARTY INSTALLERS OR OTHER PARTIES PROVIDING SERVICES TO BUYER RELATING TO THE PRODUCTS.
8. CHANGES; PRODUCT RECALL.
a. Seller reserves the right to alter, modify, redesign or discontinue the Products or any components of Products and change its service, warranty, support or other policies, without notice and without any obligation to Buyer.
b. In the event of a Product recall, Buyer shall immediately cease using the Product upon receipt of notice from Seller. Buyer’s sole obligation in the event of a recall of any Products shall be to repair or replace such Products. For Third Party Products, Seller will pass through to Buyer any remedies available in the event of a recall of a Third Party Product. The foregoing shall be Seller’s sole and exclusive remedies with respect to any Product recall issue.
9. CANCELLATION AND TERMINATION.
a. No Products may be returned without prior written approval of Seller. Orders placed with and accepted by Seller may not be canceled except with Seller’s written consent prior to shipment and Buyer’s acceptance of Seller’s cancellation charges, which shall protect Seller against all costs and losses. Seller reserves the right to cancel any sale hereunder prior to delivery in Seller’s sole discretion without liability to Buyer (except for refund of monies already paid).
b. In addition to any other remedies that Seller may have, Seller may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms and the failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. In addition, Seller may terminate these Terms without cause on ninety (90) days prior written notice to Buyer.
10. EXCUSABLE DELAY/FORCE MAJEURE. Seller shall not be liable nor in breach or default of its obligations under any contract to the extent its performance of such obligations is delayed, hindered, or prevented, in whole or in part, directly or indirectly, due to causes beyond its reasonable control, whether foreseeable or unforeseeable, including, but not limited to, acts of God, fires, floods, or other natural disasters (declared or undeclared), terrorism, war (declared or undeclared), armed conflict (or the serious threat of same), plagues, epidemics, pandemics, quarantines, or other public health risks and/or responses thereto, insurrection, civil disturbances, insurrection, riots, mob violence, acts or omissions of Buyer or Buyer’s suppliers or agents, any act (or omission) by any governmental authority (including any change of law or regulation), strikes, lock-outs, differences with workers, accidents, labor disputes, transportation shortages, the unavailability or shortage(s) of labor, energy, materials, production facilities, transportation, or shipping, cyber-attacks, viruses, ransomware, failures or interruptions to network systems, data breaches, vendor non-performance, or any other cause, casualty, or excusable delay beyond Seller’s reasonable control, whether similar or dissimilar to any of the foregoing. Upon the occurrence of a force majeure or other excusable delay, Seller’s performance or delivery date shall be extended for a period equal to the duration of the force majeure event or time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay. If the delay is due to any acts or omissions of Buyer, or Buyer’s agents, contractors or suppliers, Seller shall be entitled to both an equitable performance and price adjustment. If Seller incurs increased cost by reason of delay not attributable to any act or omission of Buyer (including but not limited to extended warehouses and storage fees, labor wages, etc.), the increased cost shall be distributed equitably between Seller and Buyer, or the Contract shall be cancellable at Seller’s election.
11. GOVERNING LAW; VENUE. These Terms are governed by the laws of the State of Oregon, without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing these Terms. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS OR THE DOCUMENTS RELATED HERETO AND IS HEREBY EXPRESSLY DISCLAIMED BY SELLER AND BUYER. Any action, suit, or proceeding arising out of the subject matter of these Terms will be litigated in courts located in Multnomah County, Oregon. Each party consents and submits to the jurisdiction of any local, state, or federal court located in Multnomah County, Oregon.
