| 1. |
Acceptance.Trellis Earth Products, Inc., an Oregon
corporation conducting business as Trellis Earth™ (the "Seller"), agrees
to sell goods (the "Goods") to the Buyer, which Goods have been ordered by the
Buyer via (a) this website, (b)a telephone order, or (c)a written purchase order
delivered to the Seller (each an "Order"), only upon the terms and conditions of
sale set forth in this document, as amended from time to time (these "Terms").
These Terms shall supersede and take precedence over any contrary or conflicting
terms and conditions contained in any document or correspondence provided by the
Buyer. The Buyer shall be deemed to have accepted and consented to these Terms
upon the earliest of the following: (a)failure to object to these Terms within
two days after placing the Order, (b)delivery of the Goods to the Buyer, or
(c)partial or full payment for the Goods. These Terms, together with an Order,
shall comprise the complete and exclusive contract and agreement for the sale of
the Goods to the Buyer. |
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| 2. |
Prices. Unless otherwise noted in writing, the Seller's quoted
prices include all charges and expenses relating to carriage and shipping of the
Goods to the Buyer, if the Buyer is located within the contiguous 48 United
States, but shall exclude all taxes, customs and duties relating to the sale of
the Goods. |
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| 3. |
Payment. The Buyer shall pay the Seller for the Goods in U.S.
Dollars within 10 days after the date of the Seller's invoice. The Seller may
invoice the Buyer upon the earlier of shipment of the Goods, or notice of
readiness to ship the Goods. If the Buyer does not pay the Seller upon the
agreed dates of payment, the Buyer shall pay the Seller 1.50 percent of the
unpaid balance due each month until paid in full. Such interest shall accrue
from and including the date of the invoice. In addition to charging such
interest, the Seller may cancel or reschedule delivery of the Goods, if the
Buyer is in default of payments or any other material terms and conditions of
these Terms. |
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| 4. |
Agreement and Security. The Buyer's Order and the Seller's
acceptance of the Order shall create a binding contract and agreement to buy and
sell the Goods. The Buyer hereby grants to the Seller a security interest in the
Goods until the Buyer pays the entire purchase price for the Goods, at which
time the security interest shall cease. |
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| 5. |
Acceptance of Goods and Replacement. The Buyer shall be deemed
to have accepted the Goods no later than 24 hours after their delivery of the
Goods to the Buyer or its designees. Any defects in material or workmanship
shall be provided for under the warranty in Section. The Seller will offer
replacement of any defective Goods or any Goods damaged during shipping, if a
claim is made by the Buyer within 24 hours after receipt of the Goods by the
Buyer; provided, that the Buyer gives the Seller sufficient and appropriate
documentation regarding the damaged Goods. |
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| 6. |
Title and Risk of Loss. Risk of loss, damage, or destruction
of the Goods shall transfer from the Seller to the Buyer upon delivery of the
Goods. Any loss, damage or destruction of the Goods that may occur after such
time shall not relieve the Buyer of its obligation to pay the Seller for the
Goods. |
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| 7. |
Delivery. The Seller will substantially meet quoted delivery
dates, which are estimated based upon conditions known at the time of quotation.
The Seller shall not be liable for any delay in delivery. If the Seller
experiences supply and material shortages or other manufacturing delays, the
Seller may ship partial shipments of the Buyer's order and invoice the Buyer for
those partial shipments. The Buyer may cancel, without each party incurring
liability to the other, an order that is not delivered within 60 days of its
quoted delivery date. |
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| 8. |
Limited Warranty. The Buyer is not relying on the Seller's
skill or judgment to select the Goods for the Buyer's particular purposes. THE
GOODS ARE SOLD AS IS. THE SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. |
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| 9. |
Limitation of Liability. THE Seller shall in no event be
liable for any consequential, incidental, indirect, special or punitive damages
arising out of or relating in any way to the orders placed by the buyer or the
goods sold by the seller, or any defect in or failure of, the Goods, including
but not limited to, claims based upon loss of use, lost profits or revenue,
interest, lost goodwill, environmental damage, increased expenses of operation,
cost of replacement goods, or claims of THE Buyer or THE Buyer's customers OR
DESIGNEES, whether or not based on contract, tort (including negligence and
strict liability) or otherwise. TO THE EXTENT PERMITTED BY LAW, THE Seller's
maximum liability under thESE TERMS shall not exceed the price PAID BY THE BUYER
for the Goods upon which such liability is based and all such liability shall
terminate no later than one year from the date of delivery of the Goods.
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| 10. |
Applicable Law. These Terms shall be governed by the laws of
the State of Oregon, exclusive of its conflicts of law principles, and generally
of the United States of America. Any disputes arising out of these Terms that
cannot be informally resolved shall be adjudicated exclusively in Portland,
Multnomah County, Oregon, in any court of competent jurisdiction. Each of the
parties expressly consents to jurisdiction and venue in Portland, Multnomah
County, Oregon. These Terms are expressly conditioned upon the exclusion of the
application of the United Nations Convention on the International Sale of Goods.
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| 11. |
Termination. Except as expressly provided in Section, the
Buyer may cancel its order or extend the scheduled delivery only upon terms
accepted in writing signed by the Seller. The Buyer either shall compensate the
Seller for damages resulting from such cancellation, including, but not limited
to, out-of-pocket costs, lost profit, and allocable overhead, or pay a
restocking and cancellation fee of 30 percent of the purchase price, whichever
is greater. The Seller may, at its option and without either incurring liability
to the Buyer or prejudicing the Seller's rights to other available remedies,
either cancel or reschedule the Buyer's order, if the Buyer either is in default
of payment obligations to the Seller under this or any other agreement, or
becomes insolvent, is the subject of bankruptcy proceedings, or ceases to do
business. The Buyer's obligations under these Terms shall survive termination of
any order. |
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| 12. |
Waiver. Failure by a party to insist on performance of any
provision shall not be a waiver of the rights or remedies available in the event
of a subsequent default by the other party. |
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| 13. |
Force Majeure. The Seller shall not be liable in any manner
for failure to perform its obligations under these Terms, if caused by war,
riot, fire, flood, volcano, earthquake, or any act of God or failure by any
third-party, or by any acts of the Buyer or its customers or designees, or by
delays in transportation, inability to obtain necessary labor or materials from
usual sources, or other causes beyond the reasonable control of the Seller.
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| 14. |
Limitation on Time. All claims of action by the Buyer against
the Seller shall be filed against the Seller within one year from the date of
the event(s) that gave rise to the claim(s) or be discharged and barred forever.
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| 15. |
Attorney Fees. In the event a suit or action is filed to
interpret or enforce these Terms, to collect payment for the Goods, or any other
matter arising out of the sale of the Goods to the Buyer, the prevailing party
shall be reimbursed for all costs and expenses incurred in connection with the
suit or action, including without limitation, reasonable attorney fees at the
trial level and in any appellate proceeding. If suit, action or proceeding is
instituted in a Bankruptcy Court for a United States District Court to enforce
or interpret any of the terms of the Terms, to seek relief from an automatic
stay, to obtain adequate protection, or to otherwise assert the interest of the
Seller against the Buyer in a bankruptcy proceeding, the party not prevailing
shall pay the prevailing party's costs and disbursements, the fees and expenses
of expert witnesses in determining reasonable attorney fees pursuant to ORCP 68,
the actual cost of a litigation or foreclosure report, and such sums as the
court may determine to be reasonable for the prevailing party's attorney fees
connected with the trial and any appeal and by petition for review thereof.
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| 16. |
Entire Agreement. These Terms supersede all prior
representations, warranties, demonstrations, discussions, advertisements,
understandings, writings, and agreements between the parties, including without
limitation, requests for quotations, printed purchase order terms and conditions
and releases, with respect to the Goods. |
