The following General Terms & Conditions are part and parcel of the Purchase Order Agreement between Targhee Trading Company LLC (Seller) and the Purchaser (Buyer) listed on the Purchase Order Agreement, to wit;
TITLE AND RISK OF LOSS: Title to the products (doors) to pass from Seller to Purchaser at the same time and place as the risk of loss under the INCOTERMS (2000) method of shipping used in the Purchase Order Agreement.
JURISDICTION: Each party expressly submits to the exclusive jurisdiction of the State of Wyoming, United States of America and the federal courts situated in the State of Wyoming, and to service of process by registered mail.
PAYMENTS: All payments to be made in U.S. dollars in immediately available funds unless otherwise agreed, without set-off or counterclaim. In case of Purchaser’s non-payment of any amounts due and owing, Seller may defer shipments, accelerate the payments or cancel the contract. Purchaser will remit any balance of funds due in accordance with the stated Payment Terms in the Purchase Order Agreement. Purchaser agrees to pay all costs and expenses, including reasonable attorney’s fees, incurred by Seller in the collection of such payments.
FORCE MAJEURE: Neither Seller nor Purchaser shall be liable in damages or otherwise for any failure or delay in performance of any obligation under this Purchase Order Agreement or other related sales documentation, other than the obligation to make payment where such failure or delay is caused by: force majeure, being any event, occurrence, or circumstance reasonably beyond the control of that party, including without prejudice to the generality of the foregoing: failure or delay caused by or resulting from acts of God, strikes, fires, floods, wars (whether declared or undeclared), riots, destruction of the material, delay of carriers due to breakdown or adverse weather, perils of the sea, embargoes, accidents, disruption or breakdowns of production or refinery facilities, or prevention or delay in loading or discharging of vessels or barges due to such disruptions or breakdowns, restrictions imposed by any governmental authority (including allocations, priorities, requisitions quotas and price controls). The time of Seller to make, or Purchaser to receive delivery shall be extended during any period in which delivery shall be delayed or prevented by reason of any of the foregoing causes up to a total of thirty (30) days. If any delivery shall be so delayed or prevented for more than thirty (30) days, each party may terminate the Purchase Order Agreement or other related sales documentation with respect to such delivery upon written notice to the other party.
LIABILITIES: Seller’s liability and Purchaser’s exclusive remedy for any cause of action arising out of this Purchase Order Agreement or other related sales documentation, including negligence, is expressly limited at Seller’s option to: (a.) a repair of the door(s) without cost, (b.) a replacement of the door(s) without cost; in the same state of finishing as when it was originally shipped, or (c.) a refund of the full purchase price of the door(s) upon receipt of the defective door(s).
Purchaser shall inspect the products furnished immediately after delivery. If upon receipt of the doors by Purchaser, a reasonably conducted inspection reveals any legitimate door defects which cause Purchaser to reject any products received for the reason of not conforming to the specifications as explained in the Limited Door Warranty section of this Agreement, Purchaser must, within thirty days of receipt of products and before the door is hung or altered in any manner, notify the Seller in writing that such defects exist and briefly describe the nature of the defects. Purchaser shall only have the right to return any products to Seller after inspection, if required, by Seller or Seller’s agent, and upon receipt of definite shipping instructions from Seller. This Warranty excludes any refinishing, labor or installation costs.
WARRANTIES: The Seller warrants that the product will meet specifications as described in the warranties section of the Purchase Order Agreement. ALL OTHER CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, OR MERCHANTABILITY, FITNESS, OR SUITABILITY OF THE MATERIAL FOR ANY PARTICULAR PURPOSE OR OTHERWISE ARE HEREBY EXCLUDED.
ASSIGNMENT: This Purchase Order Agreement or other related sales documentation is not transferable or assignable by Purchaser.
DELIVERIES: At Seller’s option, deliveries may be effected by any subsidiary of Seller. Any deliveries made under this condition may be invoiced by such subsidiary.
GOVERNMENT CONTROLS: The Purchaser and Seller agree to comply with all applicable government regulations and laws pertaining to the importation of the product(s).
TRANSPORTATION: If Seller absorbs any portion of the freight charges, Seller shall have the right to designate carriers.
NON-WAIVER: The failure by one party to require performance of any provision shall not affect that party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Contract constitute a waiver of any subsequent breach or default or waiver of the provision itself.
CONSENT TO ASSIGN: Any attempted assignment or delegation by either party, in whole or in part, of the rights and duties arising under this Agreement without the prior written consent of the other, which shall not be unreasonably withheld, shall be null and void.
RELATED ENTITIES: This Agreement shall not be assigned in whole or in part by Purchaser or any agent of the Purchaser without the written consent of the other party except that either party may upon written notice to the other party assign its rights and obligation hereunder to any corporation, subsidiary or other business entity affiliated with the assigning party. Any attempted assignment by either party of any of its rights, duties, or obligations pursuant to this Agreement without the consent of the other party shall be void.
INDEMNIFICATION: The Purchaser agrees to all foregoing terms and agrees to indemnify the Seller for any costs or losses as a result of this order and should this occur, the Purchaser has the duty of informing the Seller, or the Purchaser shall bear all the Seller’s costs and losses. This writing constitutes the whole of the terms of the contract and shall not be modified except by a writing formally acknowledged by both parties.
ARBITRATION: The parties are desirous of reducing the time and costs of resolving disputes. At the option of either party, disputes arising from or connected with the contract may be settled by arbitration initiated by either party giving written notice to the other of its intention to arbitrate the dispute with the American Arbitration Association. The decision of the arbitrator in such arbitration shall be binding on both parties.
GOOD FAITH ATTORNEY’S FEES AND COSTS: The parties desire that each raise only good faith disputes for arbitration and litigation. To discourage the bringing of such proceedings without a good faith reason, this provision is enacted. If either party fails to comply with any of the provisions of the contract and the other party takes action to enforce such provisions or to enforce any payment stipulated in the contract, the losing party will pay to the prevailing party reasonable costs and expenses, including attorney’s fees and the value of time lost by the prevailing party or any of its employees in preparation for or participating in any arbitration or litigation in connection therewith as determined by the court or arbitrator, all lawsuits under the contract, unless otherwise specified shall be filed in the county where the contract was executed.
ENTIRE AGREEMENT: This Agreement, consisting of a Purchase Order Agreement Form; and Addendum A which consists of the Terms and Conditions, Limited Door Warranty, Recommended Door Care Instructions, Warranty Exclusions and Warranty Advisory; and Addendum B which consists of the Terms and Conditions for the Irrevocable Commercial Letter of Credit, together express the complete and final Agreement between the parties and supersede any and all previous agreements, oral or otherwise.
