Terms & Conditions
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1. General.
These Sales Terms and Conditions (“Terms”) are between Skedco, Inc. (“Skedco,” “us,” or “we”) and the party named on the Invoice (“you”) and apply to the sale, delivery, and transfer of the products listed on the Invoice. Your purchase is subject to these terms and no other terms or conditions shall apply. These Terms are executed by both parties through the submission and acceptance of a purchase order (“PO”) as provided below, and shall be effective as of the date on the Invoice.
2. Orders, Payment, and Shipping
a. Offer and Acceptance.
Skedco may provide you with a price list, which is not an offer to sell any item, but for informational purposes only. Your delivery of a PO to Skedco constitutes an offer to buy the items listed on the PO (“Products”). If Skedco accepts the offer, we will issue an Invoice (“Invoice”) that includes these Terms. Any terms or conditions provided byany purchaser with a PO are specifically rejected and only these Terms apply. Products may be shipped with the Invoice or separate from the Invoice.
b.Transportation and Taxes.
Shipping and prices are FCA (Incoterms 2000) Skedco’s premises, and do not include shipping or handling costs, transport insurance, levies, or charges of any authorities. We retain the right to drop ship products directly from a manufacturer or supplier when doing so reduces either the cost or delivery time and to ship products on our preferred carrier. Insurance will not be placed on any order unless specifically requested by you. Skedco’s prices for the Products do not include any excise, sales, use,
property, value-add, and other taxes or duties levied with respect to the Products. You will be responsible for the payment of any such taxes and duties.
c. Payment.
Payment is due in full within 30 days of the Invoice date. Amounts not paid when due will bear interest at a rate of 2% per month or the maximum legal rate, whichever is less.
3. Cancellations/Order Changes.
You cannot modify or cancel an order without the written consent of Skedco. In the event that both parties agree to a
modification or cancellation, you agree to pay Skedco for all direct costs incurred as a result of the change. Skedco may cancel your order if you become insolvent, become subject to a bankruptcy proceeding, make an assignment to the benefit of creditors, or cease or suspend normal business operations. Skedco reserves the right to discontinue the manufacture or distribution of any Products at any time and without notice.
4. Acceptance of Products and Returns.
You have five days in which to reject the Products as delivered due to nonconformity. Products not rejected within five days will be deemed to be accepted by you on delivery as received in good condition accordance with these Terms. Rejected products must be returned to Skedco at your expense and, at Skedco’s sole discretion, will be repaired or replaced, or the value of the Products refunded once the Products are verified to be non-conforming. Returned Products are subject to a restocking fee equal to 20% of the purchase price. Conforming parts will be returned to you at your expense.
5. Warranty Returns.
Skedco warrants to you only that the Products will meet the specifications published by Skedco and be free from defects in material and workmanship for a period of one year, provided that the Products are used only under the conditions provided in Skedco’s written materials, training guides, and other documentation.
a. If any Products furnished by Skedco fail to conform to its warranty,
Skedco’s sole and exclusive liability will be, at our option, to repair or replace the non-conforming Product, or refund the amount paid for the nonconforming: Product; provided, however, that:
(i) you promptly notify Skedco
in writing that the Products are non-conforming;
(ii) you obtain written
authorization to return the Products to Skedco; and
(iii) Skedco is satisfied that the claimed non-conformities exist and were not caused by accident, misuse, neglect, alteration, repair, improper use, or improper testing. Skedco will have a reasonable time to make repairs, replace the Product, or to refund the purchase price.
b. If the Products do not qualify for a warranty replacement, you will be contacted and may send a PO for the Products to be repaired or replaced at your cost. Skedco reserves the right to refuse any returns that are not warranty returns. Skedco may return the non-conforming, non-warranted Products to you, but YOU ACKNOWLEDGE AND ASSUME ALL RISKS OF USING A NON-CONFORMING, NON-WARRANTED PRODUCT.
6. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5 OF THIS AGREEMENT, NO OTHER WARRANTIES EXIST, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANT ABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.
7. Intellectual Property Ownership and License.
Skedco owns and retains all intellectual property rights in the Products. These Terms do not grant you any license to make or have made the Products, or to reverse engineer the Products, either directly or indirectly, or otherwise attempt to discover any trade secret or confidential information related to the Products.
8. Export Compliance. You agree to comply with all applicable laws in the United States and your home country, including regulations under the United States Export Administration Act and the United States Foreign Corrupt Trade
Practices Act. You will not export, re-export, or transship any Products, directly or indirectly, without the consent of Skedco and without first obtaining any licenses or approvals as may be required from the United States Department of Commerce or any other applicable agency or department of the United States Government. You represent and warrant that the Products will not be used for terrorist or narcotics trafficking activities. You represent and warrant that you and your final customers (“end users”) are not subject to a denial or probation order issued by BIS, and that neither you nor your affiliates, employees, or end users are listed on any Denied Persons List published by BIS set forth at www.bxa.doc.gov/dpl/thedeniallist.asp. You also represent and warrant that you, your affiliates, end users, or employees are not listed on any Special Designated Nationals or Blocked Persons list published by OFAC set forth at www.treas.gov/offices/eotffc/ofac/sdnz/index.html. Any breach of this Section 8 is considered a material breach of these Terms, and Skedco may cancel your order without notice if it determines that you have breached this Section 8.
9. LIMITS OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10.Indemnification.
You will defend, indemnify, and hold Skedco, its officers, directors, agents, employees, and affiliates harmless from any and all
third-party claims, liabilities, costs and damages (including attorneys’ fees) resulting from or arising out of any act or omission of you or your employees, agents, end users, or subcontractors.
www.bxa.doc.gov/dpl/thedeniallist.asp
11.Construction.
These Terms constitute the entire agreement between Skedco and you. To the extent that any terms in any PO conflict with these
Terms, these Terms shall control and prevail. No modification hereof shall be of any force and effect unless in writing and signed by the party bound by such modification. The invalidity of any provision of the Terms shall not affect the validity of any other provision. Waiver by any party of strict performance of any provision of these Terms shall not be a waiver of or prejudice any party’s right to require strict performance of the same provision in the future or of any other provision of these Terms.
12.Choice of Law.
The rights and liabilities of the parties arising out of or relating to this agreement will be governed by the laws of the state of Oregon, without regard to conflict of laws rules. The United Nations Convention on the International Sale of Goods will not apply to any transactions under these Terms. If you reside outside of the United States, any dispute arising out of or relating to these Terms will be submitted to binding arbitration in Portland, Oregon, pursuant to the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award may be entered in any court of competent jurisdiction. If you reside within the United States, any dispute arising from or relating to these Terms must be brought in a federal or state court in Multnomah County, Oregon, and both parties hereby submit to the jurisdiction of such courts.
13.Notices.
All notices under this agreement will be in writing and will be deemed to have been given if delivered personally or by a nationally recognized courier service, faxed or mailed by registered or certified mail, return receipt requested, postage prepaid, to the parties at the addresses set forth in the Invoice.