Shay and Company Terms and Conditions of Sale
Shay and Company hereby accepts the Buyer’s order pursuant to
and conditioned on the Buyer’s assent to the terms and conditions set forth herein. Shay
and Company agrees to furnish goods (the Product or Products) only upon these terms and
conditions. This document constitutes the entire agreement between the parties. Differing
terms and conditions shall require a separate written agreement. THE TERMS OF THIS
AGREEMENT SHALL SUPERSEDE ANY CONFLICTING TERMS CONTAINED ON THE
BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED
BY BUYER. No course of prior or current dealings between the parties and no usage of
trade shall be relevant to, supplement or explain any term nor shall course of prior or
current dealings constitute a waiver of any of the terms contained herein. Photocopies,
electronic copies, and facsimile transmissions of documents shall be effective as originals
and shall be considered a writing between the parties. Buyer is deemed to have accepted
the Terms and Conditions contained herein upon shipment of the Product. Any other
information provided by Shay and Company, including information contained in a Safety
Data Sheet (SDS), is subject to these terms and conditions. Buyer acknowledges that it has
reviewed the applicable SDS available from Shay and Company prior to Buyer’s use of the
Product, and Buyer acknowledges and agrees that the information contained in the SDS is
provided subject to both these terms and conditions and the provisions set forth in the
SDS.
– Buyer shall pay Shay and Company the standard price for Product(s)
listed by Shay and Company on the date Shay and Company ships the Buyer’s order or
any price expressly quoted by Shay and Company in writing to the Buyer. Shay and
Company reserves the right to change the price on future orders of Products. All prices
listed or quoted shall be exclusive of delivery charges, taxes, customs, duties, or other
customary shipping fees unless otherwise expressly stated.
Shay and Company makes efforts to meet Buyer’s requirements for Product
delivery whenever possible. However, any shipping, delivery, or processing dates as
indicated by Buyer or Shay and Company are estimates only, and Shay and Company shall
have no liability to Buyer for failure to complete delivery of an order by the date indicated
or for any of Buyer’s incidental, indirect or consequential damages arising from a delay.
Shay and Company shall ship Product to Buyer F.O.B. Origin, with packaging and carriers
as designated by Shay and Company, unless otherwise specified in writing between the
parties. Shay and Company title to Product passes to Buyer upon delivery of Product to the
carrier for shipment, with carrier acting as Buyer’s agent. Buyer assumes the risk of loss for
Product in transit and shall be responsible for obtaining insurance, if desired. For foreign
shipments Buyer assumes all risk and responsibility relating to entry of Product into the
country of destination, and Shay and Company makes no warranties or guaranties relating
thereto, and shall have no liability relating thereto. Shay and Company will not consider
any claim for non-conforming Product or shortages (Non-Conformances) unless Buyer
complies with the notice and authorization requirements set forth at paragraph 6.
Damaged Items in Shipping
Payment for Product shall be due as of the payment date stated on
the Shay and Company’s invoice. Any overdue payment may be subject to a late payment
charge of l.5% per month (18% per year) or the highest amount permitted by law, whichever
is less. Unless otherwise indicated in writing, each shipment shall be considered an
independent transaction and payment therefore shall be made accordingly. Invoiced
freight charges include applicable shipping, handling, and processing charges. All orders
are subject to approval of Shay and Company credit department. If in the judgment of
Shay and Company the financial condition of the Buyer at any time does not justify
continuance of shipment on the terms of payment specified, Shay and Company may
require full or partial payment in advance. In the event of bankruptcy or insolvency of
Buyer, or in the event of any proceeding brought by or against Buyer under insolvency
laws, Shay and Company shall be entitled to cancel any order of the Buyer then
outstanding and shall receive reimbursement from Buyer for Shay and Company’s cost as
of the date of cancellation. Buyer authorizes Shay and Company to investigate Buyer’s
credit and financial standing. Buyer will supply any financial information reasonably
requested by Shay and Company. Shay and Company agrees to hold such information
confidential, and Shay and Company reserves the right to require Buyer’s principles to
guaranty payment on any order before, during or after fulfillment of any order. Shay and
Company shall maintain a priority purchase money security interest in the Product (and
replacement) delivered hereunder and in the proceeds from the sale and disposition
thereof, until Buyer has made payment in full for such Product. Buyer shall, upon request
by Shay and Company, execute all documents (such as UCC-l) necessary to perfect such
security interest in Product. Shay and Company has the right, upon demand, to repossess
Product delivered hereunder if Buyer fails to make timely payment. All payments shall be
made without any deduction and free of any set-off or other counterclaim.
All Products purchased from Shay and Company and repackaged
must be marked in a conspicuous place as legibly, indelibly and permanently as the nature
of the container will permit in such a manner as to indicate the English name of the
country of origin of the article to the ultimate pur
Buyer shall be responsible for inspecting and examining all Product shipped
hereunder prior to acceptance. Buyer shall give Shay and Company written notice of
rejection specifying the alleged Non-Conformance within three days following delivery to
Buyer. Failure to provide such written notice of rejection within the three days of delivery
shall be deemed to be acceptance of the Product by the Buyer as of the date of shipment.
Any resale, commingling, alteration or incorporation of the Product by the Buyer shall be
deemed acceptance of the Product as of the date of shipment.
There are no express warranties hereunder. The liability of Shay and
Company for any claim brought by the Buyer is limited, at Shay and Company’s option,
solely to replace the Product, or apply an appropriate credit adjustment not to exceed the
sales price of the Product to Buyer. If the claim is relative to Non-Conformance, Buyer is
only entitled to the remedies listed above provided that (a) Shay and Company is notified
in writing by Buyer within three days of receipt of alleged Non Conformance setting forth
the alleged Non- Conformance, date of purchase, date of receipt, and invoice number; (b)
Buyer shall set aside and hold such Product without further use or processing until Shay
and Company advises Buyer as to the proper disposition of the Product; and (c) unless
shortage, the Products returned to or inspected by Shay and Company, and Shay and
Company determines that Non-Conformance exists, and was not caused by negligence,
misuse, improper storage, or accident. Buyer shall have no right to cover by procuring
substitute goods at the expense of Shay and Company.
SHAY AND COMPANY HEREBY MAKES NO OTHER WARRANTY EXPRESSED OR
IMPLIED. SHAY AND COMPANY EXPRESSLY EXCLUDES THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR
PURPOSE, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF SHAY
AND COMPANY.
SHAY AND COMPANY NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON
TO ASSUME FOR SHAY AND COMPANY ANY LIABILITIES. UNDER NO
CIRCUMSTANCES SHALL SHAY AND COMPANY, ITS AFFILIATES, SUPPLIERS,
SUBCONTRACTORS OR AGENTS BE LIABLE TO THE BUYER OR ANY OTHER
PERSON FOR ANY KIND OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL,
OR PUNITIVE DAMAGE, LOSS OR EXPENSE.
Buyer’s remedies under this Agreement for any claim against Shay and Company shall be
solely and exclusively limited to replacement of the Product or a credit not to exceed the
sales price of the Product to the Buyer. Said choice of remedy shall be in the sole discretion
of Shay and Company. This section sets forth the sole and exclusive remedy against Shay
and Company. No action may be taken against Shay and Company for breach of this
Agreement more than one year after the accrual of the cause of action.
All specifications, designs, data methods, patterns, and ideas
made, used, conceived, developed or acquired by Shay and Company incident to its
performance under this Agreement and all patent, trade-secret, know how, copyright,
trademark or other proprietary right therein shall be the exclusive property of Shay and
Company, and no part of the purchase price hereunder shall be deemed applicable to
acquisition of or licensing of the foregoing unless otherwise agreed to in writing by Shay
and Company. No licenses to any intellectual property of Shay and Company (including
use of trademarks and trade names) are granted to Buyer. SHAY AND COMPANY HEREBY
MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER ABOUT THE NONINFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY. SHAY AND
COMPANY WILL NOT BE OBLIGATED TO DEFEND AND DOES NOT INDEMNIFY
BUYER IN ANY WAYWHATSOEVER RELATING TO ANY THIRD PARTY’S
INTELLECTUAL PROPERTY.
Shay and Company shall be relieved of the performance of its
obligations for the duration and to the extent that it is prevented in the performance of its
obligations by reasons of force majeure. For purposes of this clause, force majeure is
defined as circumstances or events which may have not been foreseen at the time of
entering into this transaction, which are not the fault of Shay and Company and which
prevent the performance of all obligations hereunder and which are not capable of being
remedied. Force majeure events include, but are not limited to, acts of God, acts of war,
acts of the Government, acts of Buyer, inability to obtain necessary labor, materials or
manufacturing facilities, blockades, revolutions, industrial disputes and commercial
impracticality
Shay and Company represents that it does not
discriminate against its employees or applicants for employment on the grounds of race,
color, religion, sex, sexual orientation, national origin or any other protected category.
Shay and Company complies with Executive Order 11246.
Buyer shall indemnify, defend, and hold Shay and Company, its
employees, suppliers, and agents harmless from and against any and all liabilities, damages,
injuries, claims (irrespective of the legal theory on which any claim is based), suits,
judgments, causes of action, and expenses (including attorney’s fees, court costs and out-ofpocket expenses) suffered or incurred by Shay and Company as a result of any action or
omission by Buyer its employees or agents.
Shay and Company may assign or subcontract all or any portion of its
right or obligations with respect to sale of the Product or assign the right to payment
without Buyer’s consent. Buyer may not assign these Terms and Conditions, or any of its
rights or obligations herein without prior written consent of Shay and Company subject to
the restrictions in assignment contained herein. These Terms and Conditions will be
binding on and inure to the benefit of the parties hereto and their successors and assigns.
No portion of this Agreement will be deemed waived, amended or modified by either
party unless such waiver, amendment or modification is in writing and signed by both
parties.
This agreement shall be deemed to be made in Oregon and
governed in all respect by Oregon law. The parties to this agreement irrevocably consent to
the exclusive jurisdiction of the State and Federal Courts located in Oregon. If any portion
of this Agreement is found by a Court of competent jurisdiction to be invalid, illegal or
otherwise unenforceable, the same shall not affect the remainder of this Agreement.
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