Terms and Conditions of Sale
ALL ORDERS ARE SUBJECT TO THESE TERMS & CONDTIONS OF SALE
1. QUOTATIONS AND ORDERS. All orders are subject to these Terms and Conditions of Sale (the "Terms and Conditions"). All quotations by Oregon Metal Slitters, Inc. ("OMS")
(whether oral or written) shall be offers to sell by OMS at the quoted prices and on the terms hereinafter set forth. All such quotations are subject to change without notice and to
continued availability of the quoted material and, unless otherwise agreed, are binding upon OMS only if the Customer immediately submits an order. All contracts to sell are subject to
strikes, accidents or other causes of any kind beyond OMS's reasonable control. No order placed with OMS shall be binding upon OMS until full specifications identifying the material being
ordered have been provided to OMS and the order has been accepted by OMS. Acceptance is defined by either the e-mailed or faxed receipt of OMS's order acknowledgment. A Customer may not,
except with OMS's written consent, cancel any order for material which OMS has special ordered from the mill or which has been shipped by OMS. All special order material is subject to
final mill acceptance. OMS will, at a Customer's request, estimate the anticipated time of delivery of any order, but OMS will have no liability for any non-timely delivery. In the event
that an order is placed with OMS by telephone and the Customer does not send OMS a confirming order before OMS ships in response to the order, OMS's records as to the terms of the order shall
2. TITLE AND RISK OF LOSS. If material is shipped to a Customer via a carrier designated by the Customer, title and risk of loss to the material shall pass to the Customer
when the material is loaded at OMS's facility. If material is shipped to a Customer via any other carrier, title and risk of loss to the material shall pass to the Customer upon delivery
at the Customer's designated location and Customer's release of the shipping documents. However, Customer must note any shortage or damage on both the Customer's copy and the carrier's copy
of the shipping documents, which must be signed by the carrier's driver or representative. If Customer does not do so, OMS will be responsible for any shortage or damage only: (i) in the
case of a carrier that is owned or operated by or affiliated with OMS, if OMS establishes to its reasonable satisfaction that there was in fact a shortage in the delivery or that the damage
occurred prior to receipt of the material by Customer, as applicable, or (ii) in the case of any carrier that is not owned or operated by or affiliated with OMS, if OMS is able to recover the
shortage or damage from such carrier.
3. TECHNICAL ADVICE. None of OMS's agents, employees or representatives has any authority to bind OMS to any affirmation, representation, or warranty other than those stated
herein or on OMS's shipping documents or invoice form. In particular, any technical advice OMS furnishes with respect to the use of material is given without charge, and OMS shall have no
obligation or liability for the advice given or the results obtained, all such advice being given and accepted is at Customer's risk.
4. WARRANTY. OMS warrants that all material, at the time of shipment by OMS, shall conform to any specification set forth on the face of its shipping documents or invoice and
shall conform to the description contained in the Certificate of Tests or Certificate of Compliance if either has been furnished by OMS in connection with a sale. OMS does not warrant against
any non-conformity to the extent that such non-conformity results from damage, misuse, abrasion, corrosion, negligence, accident, tampering, faulty installation, improper storage, inadequate
maintenance, or any other cause affecting the material after shipment of the material.
OMS disclaims all other warranties with respect to material sold or services rendered, whether express or implied, including the warranties of merchantability and fitness of the material or
services for any particular purpose. By placing an order with OMS, a customer affirms that the customer has not relied upon the skill or judgment of OMS or any of its agents, employees, or
representatives to select or furnish material for any particular purpose, and the sale is made without any warranty by OMS that the material is suitable for any particular purpose.
Except for the specifications and certificates (if any) specifically referred to above, any description of the material or service contained on OMS's sales forms or any other correspondence is
for the sole purpose of identifying it, is not a part of the basis of the bargain, and does not constitute a warranty that the material or service shall conform to that description. The use of
any sample in connection with a sale is for illustrative purposes only, is not part of the basis of the bargain, and is not to be construed as a warranty that the material will conform to the
sample. Any affirmation of fact or promise made by OMS is not part of the basis of the bargain and shall not constitute a warranty that the material will conform to the affirmation or promise.
5. EXCLUSIVE REMEDY. OMS will, at its option and as a Customer's exclusive remedy, replace with new material, or refund the purchase price for, material that is defective at the
time of shipment if the Customer gives written notice of the defect to OMS within 45 days after receipt. This exclusive remedy shall not be deemed to have failed of its essential purpose so
long as OMS is willing and able to replace defective material or refund the purchase price within the time specified.
Under no circumstances will OMS be responsible for any other damage, including any direct or consequential damage or loss arising from contract, tort or otherwise, including, without limiting
the generality of the foregoing, lost profits, loss or damage to buildings, contents, products or persons (other than injury to persons in respect of which liability is imposed by law).
Customer must immediately discontinue use of any item claimed to be defective. No charge for labor or expense required to repair defective material or occasioned by it will be allowed. In no
event shall any of OMS's managers, members, shareholders, directors, partners or officers be personally liable for any of our obligations under these Terms and Conditions notwithstanding the
appearance of a signature of any of the parties indicated above.
6. LIMITATION OF ACTIONS. No action against OMS for breach of any sales agreement may be brought more than one year after the cause of action accrues.
7. ACCEPTANCE. OMS's sales are made pursuant to these Terms and Conditions. If OMS receives a purchase order or other document from a Customer that limits acceptance to its
terms or states that OMS's acknowledgement, shipping of material, commencing work, or other act or failure to act constitutes acceptance of any offer on the terms of the purchase order or other
document, any responding document sent by OMS which expresses acceptance or confirms the order is expressly conditioned on Customer's assent to the terms set forth herein and in such responding
document. Such assent shall be deemed given when the Customer accepts shipment of any of the material described. OMS hereby objects to any term contained in a Customer's purchase order or other
document if the term is different from or in addition to the terms herein.
8. INVOICES. Customer agrees to notify OMS in writing, of any error in any invoice within ten (10) business days after the date of that invoice. If not so noticed, the invoice
shall be deemed correct and accepted as rendered. All sums owing to OMS by Customer shall be paid in accordance with the terms and conditions expressed on any written quotation signed by OMS and
Customer, or on OMS's invoice. In the absence of such express terms and conditions, OMS's terms will be one half percent (0.5%) 10 days, net 30 days. Whether or not expressed in said quotation
or invoice, all sums past due shall bear an interest charge at the rate of one and one-half percent (1.5%) per month on the full balance of the past due amount.
Customer opening credit limits are subject to periodic review, and may be increased or decreased depending on buying patterns and payment history.
9. COSTS OF COLLECTION. If OMS is not paid on time, in accordance with OMS's terms, Customer shall pay for all costs and expenses incurred by OMS in connection with OMS's attempts
to obtain payment, including fees charged by a collection agency or attorneys and any other charges which can be legally charged to Customer. Customer agrees that for and in consideration of
OMS's extension of credit, all sales are to be construed under the laws of the State of Oregon, and that if legal action is brought to enforce collection, then, at OMS's option, Multnohma County,
Oregon shall be the exclusive jurisdiction and legal venue for said action. Nothing contained herein shall affect OMS's rights to bring a suit, action or proceeding in any other appropriate
jurisdiction. If OMS engages an attorney for enforcement, including collection of amounts which are past due, Customer agrees to pay OMS's actual attorneys' fees and costs incurred thereby,
whether or not formal proceedings are brought to remedy Customer's breach of payment.
10. NO JOINT VENTURE. Nothing in these Terms and Conditions shall be construed as creating a joint venture or partnership between OMS and the Customer.
11. SEVERABILITY. Any provision or term of these Terms and Conditions which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the remaining provisions and terms hereof or affecting the validity or enforceability of such provision or term in any other
12. HEADINGS. The various section headings in any credit application submitted by Customer or in these Terms and Conditions are inserted for convenience of reference only, and
shall not affect the meaning or interpretation of such credit application or these Terms and Conditions.
13. NO WAIVER; REMEDIES CUMULATIVE. No failure on OMS's part to exercise, and no delay in exercising, any right, power or remedy under these Terms and Conditions and/or any credit
application by Customer shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy by OMS preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. All of OMS's remedies hereunder are cumulative and are not exclusive of any other remedies provided by law.
14. MODIFICATION. No modification, amendment or waiver of any provision of these Terms and Conditions shall be effective unless the same shall be in writing and executed by OMS, and
then such waiver or consent shall be effective only in the specific instance and for the sole purpose for which given.
15. NO BROKER. Customer represents and warrants to OMS that, in connection with the sale covered by these Terms and Conditions, the Customer has not dealt with any broker, agent or
finder, and there is no commission, charge or other compensation due on account thereof. Customer shall indemnify, defend and hold OMS harmless against and from any inaccuracy in such representation.
16. CONFIDENTIALITY. Customer will, and will cause Customer's officers, directors, managers, members, counsel and authorized representatives to hold in confidence, and not disclose to
others (except for the Customer's affiliates, counsel, shareholders, officers, directors, members, managers, employees and agents) for any reason whatsoever, information concerning the terms of sale
of material by OMS to Customer. This covenant not to disclose shall not apply to disclosures: (i) to a governmental agency, which is required by pertinent law or regulation or (ii) in an action to
enforce the terms of these Terms and Conditions in a court of law.
17. NO THIRD PARTY BENEFICIARIES. These Terms and Conditions do not create, and shall not be construed as creating, any rights enforceable by any person not a party to these Terms and
Conditions, except as otherwise expressly provided in these Terms and Conditions.
18. SUCCESSORS. These Terms and Conditions shall be binding on and inure to the benefit of the respective successors, legal representatives and assigns of the parties to these Terms and
19. AUTHORITY. Each person reviewing and agreeing to these Terms and Conditions represents and warrants that he or she is duly authorized and has legal capacity to execute and cause
Customer to comply with these Terms and Conditions. Each party represents and warrants to the other that the execution and compliance of these Terms and Conditions and the performance of such
party's obligations hereunder have been duly authorized and that these Terms and Conditions constitute a valid and legal agreement binding on such party and enforceable in accordance with its terms.
20. PATENT INFRINGEMENT. If any material is furnished to Customer's specifications, Customer shall indemnify, defend and hold OMS harmless and its officers, directors, employees,
agents, shareholders, affiliated companies and their respective successors and assigns against any and all liabilities, fines, penalties, fees, costs and expenses, including, without limitation,
reasonable attorney's fees and costs and other litigation fees, costs, and expenses, resulting from or in connection with any claim of infringement of any patent in connection with the processing of