TERMS AND CONDITIONS
1. GENERAL – Unless otherwise specifically agreed to in writing by The Pacific Wood Preserving Companies®, Pacific Wood Preserving of Bakersfield, Inc., Pacific Wood Preserving of Oregon, Inc., Nevada Wood Preserving, Inc., and Arizona Pacific Wood Preserving, Inc., as applicable ("Seller"), these terms and conditions shall apply to any and all orders placed by the purchaser specified in the order ("Buyer") for the goods or services of Seller (the "Goods"). Seller's acceptance of all orders, and all offers and sales by Seller, are subject to and expressly conditioned upon Buyer's assent to the terms and conditions of this Agreement. The Agreement consists of these terms and conditions and Seller's quotation, order acknowledgment, sales confirmation, and invoice, as applicable. These terms and conditions shall supersede Buyer's terms and conditions in the event of contradiction or inconsistency herewith, and no understanding, agreement term, condition, or trade custom at variance herewith shall be binding on the Seller. Buyer's placement of an order or acceptance of delivery of any shipment of Goods hereunder shall constitute acceptance of Seller’s terms and conditions.
2. POINT OF ORIGIN - Quotations and sales are F.O.B point of shipment unless otherwise expressly stipulated. All prices are based on current freight rates and subject to adjustment in the event of an increase in such rates.
3. CREDIT AND TERMS OF PAYMENT - Unless otherwise specified, Buyer shall pay the amount set forth in Seller's invoice in United States dollars within fifteen (15) days after the date of invoice. Any amount not paid within fifteen (15) days after the date of invoice will be subject to a finance charge at the highest rate permitted by law, but in no event more than 1.5% per month, determined and compounded daily from the date due until the date paid. If, in the judgment of Seller, the financial condition of Buyer does not justify the commencement or continuation of performance on the terms specified herein, Seller reserves the right to suspend credit, refuse shipment and cancel the order unless Buyer makes arrangements for payment satisfactory to Seller. Buyer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Seller to collect any amount not paid when due. Seller may accept any payment in any amount without prejudice to Seller's right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any payment, accompanying any payment or elsewhere will be construed as an accord or satisfaction. A $25.00 charge is assessed on each returned check.
4. TAXES - Seller’s prices do not include sales, use, manufacturer, excise or similar taxes or duties. Any such taxes shall be paid by Buyer, or in lieu thereof, Buyer shall provide Seller with tax exemption certificates acceptable to the taxing authorities. Buyer shall promptly reimburse Seller for any such taxes paid by Seller related to any sale to Buyer.
5. DELAYS AND FORCE MAJEURE - Seller’s shipping dates are approximate. Seller will not be responsible for loss or damage arising from delays caused by lack of correct or complete data from Buyer, by changes in or tardy approval of drawings by Buyer, by inability to obtain transportation or raw materials, or by strikes, fires, floods, storms, or any other circumstances beyond Seller’s reasonable control. Should Seller be delayed by any of the above causes, Seller shall be given a reasonable extension of time for performance hereunder.
6. UNLOADING AND DEMMURAGE - All unloading shall be done by the Buyer, unless otherwise agreed upon by Seller. Buyer shall be responsible for any demurrage charges for delays in unloading, and any damage to persons or property resulting from unloading.
7. CANCELLATION AND DELAY CHARGES – Orders may not be cancelled, reduced, changed, or suspended without Seller’s written consent and payment of reasonable and proper cancellation charges as determined by Seller in its sole discretion. If Buyer delays shipment for any reason after the date that Seller is ready to ship the Goods, the order will be subject to a carrying charge not to exceed 1.5% of the total amount of the invoice per month, or fraction thereof, for the period that Buyer delays shipment.
8. LIMITED WARRANTY – Seller expressly warrants that upon delivery, the Goods will conform to the specifications set forth in Seller's quotation, order acknowledgment, sales confirmation, and invoice, as applicable. EXCEPT AS SPECIFICALLY PROVIDED IN THESE WARRANTY PROVISIONS, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CAPACITY, CONDITION, QUALITY, DURABILITY, SUITABILITY OR NONINFRINGEMENT. NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE IS GIVEN BY SELLER OR SHALL ARISE BY OR IN CONNECTION WITH THE PURCHASE AND SALE OF THE GOODS OR SERVICES UNDER THIS AGREEMENT OR THE CONDUCT OF THE PARTIES.
9. EXCLUSIVE REMEDY – Buyer shall notify Seller in writing of any Product's failure to comply with this warranty no later than 10 days after delivery. Buyer shall return, on Seller’s request, a sample or photograph of the Product at issue, charges prepaid. In the event that Seller confirms the noncompliance, Seller will, at Seller’s sole election, refund the purchase price paid for the Goods or replace, F.O.B point of shipment, the portion of the Goods that does not meet the specifications set forth in Seller's quotation, order acknowledgment, sales confirmation, and invoice, as applicable.
10. LIMITATIONS OF LIABILITY – SELLER'S LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF SELLER) WITH REGARD TO ANY GOODS OR SERVICES FURNISHED UNDER THIS AGREEMENT WILL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER TO SELLER FOR THE SAME. FURTHER, SELLER WILL NOT IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, ARISING OUT OF OR IN CONNECTION WITH ANY GOODS OR SERVICES FURNISHED UNDER THIS AGREEMENT.
11. MODIFICATON AND WAIVER – No waiver or modification of any provision of this Agreement shall be effective unless in writing and signed by authorized officers of Buyer and Seller. Any failure by Seller to insist upon or enforce performance by Buyer of any of the provisions of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of Seller's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather the same will be and remain in full force and effect.
12. GOVERNING LAW, JURISDICTION, ATTORNEYS' FEES – This Agreement and performance hereunder shall be governed by the laws of the state of California. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement or to the purchase and sale of Goods under this Agreement. Buyer and Seller agree that any litigation between Buyer and Seller arising out of or relating to this Agreement shall be conducted in federal or state courts of the state of California, and the venue shall be in Kern County, California. If any action or suit is initiated to enforce or interpret this Agreement, the prevailing party may recover from the other party, in addition to any other rights and remedies it may have, reasonable expenses and attorneys' fees incurred in any arbitration, trial, appeal, and any petition for review.
13. UNENFORCEABLE PROVISION – The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision were replaced with a valid and enforceable provision as similar as possible to the one replaced.
14. ENTIRE AGREEMENT – This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between Seller and Buyer with regard to the Goods.