STANDARD TERMS AND CONDITIONS APPLYING TO ALL SALES
All sales by Media Bros LLC (Seller) are expressly conditioned upon the terms and conditions set out below. Any additional or different terms or conditions in any previous or later communication from Purchaser, any course of dealing, or any custom; including but not limited to any purchase order, change order, or remittance advice; is hereby objected to by Seller. Terms additional or different from those set out in this document (except product descriptions, prices, and similar transaction specific terms) will have no force or effect unless set out in a written document, unequivocally expressing Seller’s agreement to those terms, signed by a representative of Seller with authority to do so.
Unless otherwise specifically agreed to in writing, all quotations shall expire thirty (30) days after issuance, and prices are subject to change at any time without notice. Prices do not include sales, use, excise, value added, or other taxes. Where applicable, such taxes shall be paid by Purchaser. References to “freight allowed” relate only to the specified items and quantities clearly so identified in a writing signed by Seller.
Payment is required at the time of order or in advance of shipment unless Purchaser has submitted and Seller has approved an application for credit, associated credit agreement, and any required personal guaranties. Regardless of the existence of any other agreement, Seller may require full or partial payment, or other reasonable assurances of Purchaser’s intent and ability to fully perform its obligations, as a condition of further performance if Seller has reasonable grounds to fear that Purchase may not fully perform its obligations. Unless otherwise agreed by Seller in writing, all payments on credit purchases are due on or before the 25th day of the month following the month of each purchase. To the extent allowed by Seller in its absolute discretion (normally by indication on an invoice), payment received on or before the 10th day of the month following the month of purchase may qualify for a discount. All amounts not paid on or before the due date will be deemed PAST DUE and shall accrue a finance charge of 1 1/2% per month or, if a lesser rate is required by law, the highest rate allowed by law. No payment by asserted offset or set-off shall be valid.
All invoices and monthly statements issued by Seller shall be conclusively deemed to be accurate except to the extent Purchaser notifies Seller of any error, in writing, within I0 days of receipt.
Unless otherwise agreed in writing, all sales are made F.O.B. point of shipment with freight allowed to the common free delivery point nearest the destination, or a designated port for shipments overseas, within the continental United States. Title and risk of loss shall pass to Purchaser upon the earlier of: (1) Seller’s delivery to Purchaser; (2) receipt by the first carrier for transport to Purchaser where being delivered by a party other than Seller; or (3) receipt by the first carrier for transport to Seller where Seller will be performing storage, fabrication, kitting and/or other warehousing services on Purchaser’s behalf (i.e., prior to ultimate delivery to Purchaser). Purchaser is responsible for all aspects of unloading and storing of all materials upon delivery. Any shipping or delivery dates given by Seller are approximate; are provided only for the convenience of Purchaser; and are conditioned upon the prompt provision of all necessary information by Purchaser, the ready availability of raw materials and components, normal labor relations, and customary times for manufacture. Seller shall not be liable for any delay in delivery of any kind, regardless of cause or extent. All sales are contingent on the ability of Seller and its suppliers/manufacturers to secure associated products and raw materials.
WARRANTIES AND DISCLAIMERS
All sales are “as is.” Materials sold by Seller are the products of others. Seller agrees to use reasonable efforts to help Purchaser obtain from each manufacturer, in accordance with each manufacturer’s warranty, the repair or provision of replacement products, or components of products, that may prove defective in material or workmanship. That obligation shall constitute the sole obligation of Seller, and Purchaser’s sole remedy against Seller, with respect to any defective or nonconforming materials. Except as to title, Seller makes NO WARRANTIES of any kind, express or implied. In particular, Seller makes NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PURPOSE, including any warranty of compliance with any plans or specifications.
LIMITATION OF LIABILITY
Seller shall not be liable to Purchaser or any other party for any consequential, incidental, or special damages of any kind, including but not limited to labor charges or lost profits, under any circumstances. In all events, Seller’s maximum liability for all claims or set of related claims arising from a purchase shall be the purchase price of the materials found to be defective, non-conforming, or otherwise not provided in accordance with Seller’s obligations. If only a replaceable component of any item is defective or non-conforming, Seller’s liability is limited to the cost of a replacement or reasonably allocated portion of the purchase price of any relevant component part or parts, whichever is less.
CHANGES AND CANCELLATIONS
Any request by Purchaser to cancel all or any portion of an order, or for any changes of any kind, must be made in writing and will be effective only if evidenced by a written document, signed by an authorized representative of Seller, unequivocally evidencing an intent to accept the relevant cancelation or change. Acceptance of any requested cancellation or change is subject to Seller’s absolute discretion and may be conditioned upon adjustment of prices, schedules, and other terms and/or upon the payment of one more restocking or other charges.
Materials considered by Seller to be stock items may be returned only in accordance with Seller’s current Returned Goods Policy and upon payment of restocking changes. Specially manufactured goods may not be returned.
Regardless of legal theory, any claim against Seller must be brought in an appropriate court no later than one year (or the shortest time allowed by law if longer) after acceptance of the relevant materials. If any legal proceeding is brought to determine, interpret, or enforce any rights as between Seller and Purchaser, or in any other way relating to any sales made by Seller, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and related expenses of litigation (including, but not limited to, consultant and expert witness fees, charges for non-lawyer legal staff, investigator’s charges, transcripts and other deposition expenses, the cost of title reports and asset searches, and travel expenses for witnesses and others) in amounts to be set by the court, in the trial court and on appeal, in addition to costs and disbursements allowed by law. The parties’ relationships are controlled by, and all agreements are to be interpreted and enforced in accordance with, only the laws of the State of Oregon, excluding any provisions regarding conflict of laws. Venue for any legal proceeding relating in any way to Seller or any sales made by Seller shall exclusively be Multnomah County, Oregon.
Seller shall not be liable for any delay, impairment, or prevention of Seller’s performance, in whole or in part, due to any event, circumstance, or occurrence that is not within Seller’s control, including, but not limited to, acts of God, labor disruptions, acts of war, acts of terrorism (actual or threatened), governmental decrees or controls, imposition of or changes to tariffs or duties, changes to commodity markets, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship products or obtain permits or licenses, inability to procure supplies or raw materials, severe weather, catastrophic events, or any other event, circumstance, or cause beyond Seller’s control within the normal conduct of its business (collectively, “Force Majeure”). If Seller’s performance is so delayed, impaired, or prevented by Force Majeure, Purchaser agrees that Seller may, at Seller’s option: (i) suspend or terminate performance; and/or (ii) increase pricing and/or schedules for delivery or performance, in each case, without liability or penalty to Seller.