1. COMPLETE TERMS.
All sales by North River Wood Products, Inc. (“NRWP”) are governed by these
Terms and Conditions which are incorporated by reference in all “Sales
Documents”, including but not limited to any purchase order, acknowledgment,
bill of lading, shipping ticket and invoice. The buyer identified in the Sales Document
into which these Terms and Conditions are incorporated is hereinafter referred
to as "Buyer." NRWP and Buyer are the “Parties.” These Terms and
Conditions constitute an offer conditioned on Buyer's acceptance of all, and
only, these Terms and Conditions. NRWP objects to any different or additional
terms. This is the final and complete expression of all Terms and Conditions of
the agreement between the Parties. Any representations, promises, warranties,
or statements that are not contained here are void. These Terms and Conditions
can be modified, waived, or amended only by writing signed by both Buyer and
NRWP.
2. INSPECTION AND
ACCEPTANCE. Buyer
has a duty to inspect any and all goods received from NRWP. Buyer’s failure to notify NRWP of any
defective or non-complying goods within ten (10) days of delivery constitutes
acceptance of said goods by the Buyer. If NRWP is notified by the Buyer of
defective or non-complying goods within the time provided for herein, NRWP
shall be given the opportunity to inspect the goods and, at NRWP’s sole
discretion, repair or replace any defective or non-complying goods.
3. TERMS OF PAYMENT. Payment is
due within the stated terms of the invoice. NRWP reserves the right to require
payment for any shipment in advance or by satisfactory security. If Buyer fails to pay any sum owed hereunder
when due, Buyer’s account shall become immediately due and payable without
demand or notice. NRWP, at its option may cancel, (in addition to other
remedies), any unshipped portion of Buyer’s order. Interest shall accrue on any
amount past due at the rate of 1.5% per month or the highest rate allowed by
law, whichever is lower. Buyer shall
remain liable for all unpaid accounts.
If NRWP, in its sole discretion, finds it necessary to employ an
attorney to collect any past due sum owed hereunder, it may collect from Buyer,
in addition to any other sum owed hereunder, reasonable attorney's fees, costs,
and expenses.
4. FINANCIAL
RESPONSIBILITY. Any credit terms offered by NRWP are available only for so long
as Buyer complies with all of its obligations under these Terms and Conditions,
including, without limitation, the provisions requiring timely payment of
invoices within stated terms. If credit terms are no longer available, Buyer
shall pay cash in advance for all purchases. If NRWP has any doubt at any time
as to Buyer's financial ability or responsibility, NRWP, at its option, either
may (a) decline to make further shipments except upon receipt of cash in
advance or upon giving of other security satisfactory to NRWP, or (b) terminate
this sale. Nothing in this paragraph is intended to affect the obligation of
Buyer to accept and pay for the goods.
5. NO DEDUCTION/SET-OFF. Buyer
shall not be entitled to deduct or set-off from the price invoiced to it by
NRWP the amount of any claim asserted by Buyer against NRWP, unless such claim
shall have been allowed, in writing, by NRWP. The provisions of the preceding
sentence are of the essence of this sale.
6. DISCLAIMER OF WARRANTIES. TO THE FULL
EXTENT PERMISSIBLE BY APPLICABLE LAW, NRWP DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRODUCTIVENESS, OR ANY OTHER
MATTER. THE GOODS ARE BEING SOLD TO BUYER ON AN
"AS IS" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. NRWP WILL NOT BE LIABLE FOR ANY DAMAGES OF
ANY KIND ARISING FROM THE USE OF ANY GOODS SOLD OR TRANSFERRED TO BUYER,
INCLUDING, BUT NOT LIMITED TO PROPERTY DAMAGE, DAMGES FOR PERSONAL INJURY OR
DEATH, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL
DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
7. INDEMNITY. Buyer agrees to indemnify, defend and hold NRWP
harmless from any and all losses,
costs, damages, expenses, penalties, claims, causes of action, whether legal,
equitable, contract, tort or otherwise, litigation, fines, settlement and/or
compromise payments, including, but not limited to NRWP’s reasonable attorney’s
fees (through all lower court, enforcement, collection and appellate
proceedings), occasioned by or resulting from the sale of
the goods under these Terms and Conditions. This indemnification includes, but
is not limited to, claims asserted against Buyer by or through its customers or
by or through any purchaser or other end-user of the goods.
8. TITLE AND RISK. NRWP
warrants it has and will convey good and marketable title to the goods. Risk of
loss shall pass to Buyer in accordance with stated terms on Sales Documents.
9. DELIVERY. All shipping dates
are estimates only and are not guarantees. Any increase in delivery costs
resulting from Buyer's instructions to the carrier and any extra costs of
utilizing substitute methods of delivery, when the intended type of carrier or
loading or unloading facilities become unavailable, shall be for Buyer's
account. Goods cannot be returned, and orders once accepted by NRWP cannot be
cancelled by Buyer without NRWP's prior written consent.
10. FORCE MAJEURE. In
the event NRWP is unable to supply the ordered goods because of fire, flood,
windstorm, or other act of God, labor or civil disturbance, shortage of raw
materials, failure of timely delivery by NRWP's suppliers, energy or transportation
shortages, or any other cause whether or not similar to the causes listed
above, beyond NRWP's reasonable control, NRWP reserves the right to cancel the
affected order without any liability to Buyer whatsoever. In no event shall
NRWP be obligated to purchase material from others to enable NRWP to deliver
goods to Buyer hereunder.
11. TERMINATION AND DEFAULT.
Buyer will be in default if (a) Buyer fails to pay to NRWP any amount when due
under this agreement, (b) Buyer becomes insolvent or bankrupt, or a petition
therefor is filed voluntarily or involuntarily and not dismissed within thirty
(30) days from filing, or (c) Buyer makes a general assignment for the benefit
of its creditors, or a receiver is appointed, or a substantial part of Buyer's
assets are attached or seized under legal process and not released within
thirty (30) days thereafter. Upon
Buyer's default, NRWP may, at its option, without prejudice to any of its other
rights and remedies, and without demand for payments past due, (a) make shipments
subject to receipt of cash in advance, (b) terminate all orders from Buyer and
declare immediately due and payable the obligations of Buyer for products
previously shipped, notwithstanding any other provision in these Terms and
Conditions, (c) demand reclamation, and/or (d) suspend any further deliveries
until the default is corrected, without releasing Buyer from its obligations
under this agreement. In any event, Buyer shall remain liable for all loss and
damage sustained by NRWP because of Buyer's default, including, but not limited
to collection fees, reasonable attorneys’ fees, costs, expenses, and interest
at the lower of 1.5% per month or the highest amount allowed by applicable law. NRWP may terminate or cancel any Sales
Document at any time and for any reason with thirty (30) days prior written
notice to Buyer.
12. ASSIGNMENT. Buyer shall not
assign or transfer any Sales Document without the prior written consent of NRWP.
13. GOVERNING LAW. This Agreement
shall be governed and construed in accordance with the laws of the State of
14. MISCELLANEOUS. These terms
and conditions of sale shall not be construed against the party preparing them,
but shall be construed as if all parties jointly prepared these terms and
conditions of sale and any uncertainty or ambiguity shall not be interpreted against
any one party. NRWP's failure to exercise any right or provision set forth
herein shall not constitute a waiver of such right or provision. If any
provision hereof is held to be illegal, invalid or unenforceable under any present
or future laws, such provision shall be fully severable and the terms and
conditions herein shall be construed and enforced as if such illegal, invalid
or unenforceable provision had never been made a part hereof. The remaining
provisions herein shall remain in full force and effect and shall not be
affected by such illegal, invalid or unenforceable provisions or by their
severance here from.