Terms and Conditions Governing Quotations and Orders
This agreement (“Agreement” or “Terms”) is made between The Ulven Companies, its affiliates and subsidiaries, including Wolf Steel Foundry, Inc., Ulven Forging Incorporated, Ulven Machinery Company, Inc. dba Skookum, Ulven Aerospace & Precision Solutions, Inc., and Houston Structures, Inc., (collectively, “Seller”) and “Buyer”. These Terms shall govern and control the terms of any purchase order or confirmation form from Buyer. No terms or conditions of sale except those set forth herein shall apply unless specifically accepted by Seller in writing. These Terms shall be construed in accordance with the laws of Oregon, without regard to conflict-of-law principles, and venue shall lie exclusively in Marion County, Oregon.
- QUOTATIONS AND ORDER ACCEPTANCE. The written Quotation is an offer to sell. Any Purchase Order resulting from the Quotation shall be construed as a written acceptance of Seller’s offer to sell and shall be in accordance with the terms and conditions of sale set forth herein. Due to price volatility caused by U.S. Government tariffs or other market factors, all prices and availability in the Quotation are subject to change and will be confirmed at the time of order. Material availability is subject to prior sales. All Quotations are based upon information supplied by Buyer at the time of request for quote. Pricing is subject to change should Buyer modify its requirements. Buyer’s Purchase Order terms do not supersede the terms of this Agreement. Seller’s fulfillment of the Purchase Order is contingent upon approved credit review from Seller.
- PROCESSESS & TOOLING. When tooling is required for the manufacturing of a product, the Quotation and Purchase Order shall include “Tooling” and/or “Tooling Cavity Development and Preparation.” “Tooling” represents the estimated cost of the engineering, labor, and materials required for creation of the necessary tooling. “Tooling Cavity Development and Preparation” represents the estimated cost for the engineering and labor associated with building the necessary tooling. The cost of tool steel is not included in “Tooling Cavity Development and Preparation.” Unless otherwise agreed upon by Buyer and Seller in writing, non-use of tooling for a period of 24 months constitutes product termination. Seller retains title to all tooling or fixtures developed or manufactured by Seller in connection with any product and has the right to re-use tooling blocks or fixtures after product termination. In the event tooling modifications are necessary due to changes in Buyer’s requirements, Seller will provide Seller with a new Quotation and Purchase Order and Buyer shall be responsible for any new charges. Forging tooling will require maintenance or replacement due to normal use. The life of tooling is unique to its application. If tooling maintenance or replacement is necessary due to normal usage, Buyer shall be responsible for payment of all associated costs.
- FROZEN WINDOW. Shipment quantities may fluctuate 10% above or below the quantity requested by Buyer. Orders will be considered complete upon attaining this target. Buyer may request to change a ship date by submitting a written notice of such change at least 30 calendar days prior to the confirmed ship date. Seller reserves the right to deny such requests or any schedule adjustments within its 30 calendar day Frozen Window.
- DELIVERY DATES AND SHIPMENT QUANTITIES. All deadlines and delivery dates are approximates and estimates. Shipment of the goods is specifically conditioned upon (a) prompt receipt of all necessary information and approvals from Buyer, (b) availability of the goods, labor, transportation, and capital, and (c) the payment to Seller by Buyer of all monies otherwise due. Seller may deliver or ship the goods in installments. All installments may be separately invoiced and paid as billed without regard to subsequent deliveries. Failure to pay for any installment when due shall excuse and release Seller from making further deliveries to Buyer under any other agreement with Buyer and Seller may bring a separate action to recover the contract price of each such shipment, delivery or installment. All deadlines and dates shall be adjusted and extended, and Seller shall not be liable whatsoever for any delays in delivery or any failure to deliver the goods, due to causes beyond the control of Seller, including but not limited to acts of God, war, mobilization, civil commotion, riots, embargoes, domestic or foreign governmental regulations or order, pandemics, fires, floods, weather, strikes, machinery breakdowns, shortages or inability to obtain goods, labor, shippers, or other related items with regard thereto, or any other delay to which Buyer, when notified, makes no objection. Seller shall have such additional time to ship and/or deliver the goods as may be reasonable or appropriate under all circumstances. All risk of loss, damage, and other incidentals of ownership of and to the goods shall immediately pass to Buyer upon the earlier of the delivery of the goods to (a) the carrier or (b) Buyer. Claims for damage in transit shall be processed solely by Buyer directly with the carrier and Seller shall have no liability to Buyer with respect to any act or omission of the carrier. If delivery is delayed by Buyer or by reason of any contingency referred to herein, the storage of the goods for the account of Buyer shall constitute delivery and acceptance of the goods by Buyer.
- PRICES, TAXES, AND BUDGETARY ITEMS. Pricing and lead times are based on FOB origin. All Federal, State or Municipal taxes now or hereafter imposed related to this Agreement and/or the production, treatment, manufacture, sale, delivery, transportation or proceeds of the products specified (excepting income taxes) shall be Buyer’s responsibility. Buyer shall pay all costs and charges for or relating to delivery, shipment, freight, transportation, handling, storage, insurance, and related items with regard thereto. Prices reflected in the Quotation are based on Seller’s current costs of material and labor and, if any changes occur in such cost at any time before shipment, Seller may adjust prices proportionately to such changes in cost. If such adjustments are not mutually satisfactory, either party may cancel on the terms set forth in Section 6. Prices stated are only for the quantities indicated, and for production and shipment in lot or in accordance with the schedule indicated. Any changes requested by Buyer to the product specifications, product quantities, production schedule, or shipment dates will be accepted only if they do not affect Seller’s cost or if an appropriate adjustment in price is agreed upon by Buyer and Seller. The price for any change of design, different rate of delivery, or additional delivery will be quoted by Seller upon Buyer’s request. The new Quotation will include charges for tooling creation and maintenance. “Budgetary” items represent estimated costs which Seller cannot accurately quote without additional information or requiring Buyer’s agreement to exceptions taken. Actual charges may be greater than budgetary pricing and cannot be accurately calculated until all conditions required for a complete Quotation are met. Price is for quantity per manufacturing lot or delivery quantity, not the total quantity ordered or forecasted.
- CANCELLATIONS. Purchase Orders can be cancelled only with Seller’s written consent and upon terms which will save Seller from loss of labor, material, and time associated with production. Buyer is responsible to pay Seller for costs incurred. Buyer may not return products for credit or adjustment without written permission from Seller. Seller reserves the right to deny any cancellation request within 30 calendar days of the agreed upon delivery date, in accordance with Seller’s 30 calendar day Frozen Window. In the event Seller approves Buyer’s order cancellation, any expenses incurred by Seller for material, labor, and outside processing shall become due from Buyer immediately upon cancellation of the order. Under no circumstances will Buyer’s total price, prior payments included, exceed the contract price. All tangible, terminated inventories, for which Seller intends to file a claim, shall be held in a bonded area pending final cancellation charge. All inventory paid for by the Buyer shall become Buyer’s property and shall be disposed of at Seller’s discretion if written instructions and associated disposition costs are not provided to Seller within 30 calendar days.
- CLAIMS, INSPECTION, AND ACCEPTANCE. All claims regarding shortages or rejection of the order must be made within 10 calendar days from receipt of shipment and must be accompanied by packing list(s) covering the shipment and an explanation of the basis for the claim. Products will be presumed accepted unless Seller receives written notice within that period. Seller will have a reasonable opportunity to repair or replace rejected products, at its option. Seller assumes shipping costs in an amount not to exceed normal surface shipping charges to Seller’s designated facility for the return of properly rejected products. Following initial delivery, the party initiating shipment will bear the risk of loss or damage to Products in transit. If Seller reasonably determines that rejection was improper, Buyer will be responsible for all expenses caused by the improper rejection. The liability of Seller and the exclusive remedy of Buyer are expressly limited to either of the following, as determined at the sole and exclusive discretion of Seller, (a) replacement of the defective goods without cost to Buyer upon return of defective goods, or (b) the repayment of that portion of the purchase price paid upon the return of defective goods with regard thereto, less any applicable service, handling and related charges. In the event Seller chooses to replace the defective material, Seller shall aggregate less than the amount permitted by under run tolerances.
- NO INTELLECTUAL PROPERTY INFRINGEMENT. Buyer represents and warrants that Buyer owns or has the right to use any and all designs or specifications that Buyer provides to Seller. Buyer represents and warrants that Buyer is authorized to contract the manufacture of any products using any and all designs or specifications that Buyer provides to Seller. Buyer represents and warrants that any and all designs or specifications that Buyer provides to Seller do not infringe on any patent, trade secret, or other intellectual property rights.
- INDEMNIFICATION. Buyer shall indemnify, defend, and hold Seller harmless from and against any and all damages, claims, losses, expenses, obligations, and liabilities, arising from Seller’s manufacture of products in accordance with Buyer’s designs and/or specifications. Buyer shall indemnify, defend, and hold Seller harmless from and against any and all damages, claims, losses, expenses, obligations, and liabilities, including, without limitation, attorney fees, which Seller may incur or suffer by reason of Buyer’s breach of these Terms, including, without limitation, Buyer’s infringement on any third party’s intellectual property rights.
- WARRANTY, LIABILITY AND DESIGN. Seller warrants that products ordered will be made in conformity with Buyer’s design and specifications presented at the time of Seller’s Quotation. Should said parts be found to be non-conforming, caused by defects in material or in workmanship, Seller’s obligation hereunder is expressly limited to repair or replacement, without cost to Buyer, of defective parts, or at Seller’s option, or agreed upon conclusion, the repayment or credit memo of the purchase price upon their return. This shall constitute Buyer’s sole and exclusive remedy. Buyer will notify Seller in writing of any parts which do not conform to this warranty within 10 calendar days after their delivery. If Buyer should fail to give such notification, claims for breach of warranty, if any, shall be waived. Products may be returned at Seller’s expense only after Seller has had an opportunity to inspect and upon receipt by Buyer of definite shipping instructions from Seller. Seller shall NOT BE LIABLE for incidental or consequential damages, loss of profit, injurty to goodwill or reputation or any other special damages. Seller shall not be liable for the design of Buyer’s products or any issue or failure arising from the design of Buyer’s products. Seller disclaims all warranties, express or implied, including, without limitation, fitness for any particular purpose and warranties of merchantability, unless expressly set forth herein.
- RETAIN SECURITY INTEREST. Seller shall retain a perfected, purchase money first security interest in all goods and in all proceeds from the sale of the goods until payment of the purchase price and all other amounts owing pursuant to this Confirmation, in full. Buyer shall hold and retain any such sale proceeds in trust for and for the benefit of Seller until all money due Seller is paid in full. Buyer shall execute and deliver any Article Nine of the Uniform Commercial Code Financing Statements, or other instruments, whether under the laws of the State of Oregon or any other state and perform all acts which may be desirable for the perfection and continuation of Seller’s security interest hereunder. If Buyer (a) defaults under any agreement with Seller, including this Confirmation, or (b) becomes insolvent, is declared bankrupt, makes an assignment for the benefit of creditors, or is liquidated or dissolved, then Seller may exercise all rights, and pursue all remedies available under law, concurrently, including the right to purchase goods at any public or private sale and take immediate physical possession of the goods. Buyer shall pay all expenses, including any purchase price, incurred by Seller in retaking, holding, preparing for sale, or selling the goods, including reasonable legal fees.
- REPOSSESSION. If Buyer (a) defaults under any agreement with Seller, including this Confirmation, or (b) becomes insolvent, is declared bankrupt, makes an assignment for the benefit of creditors or is liquidated or dissolved, or misrepresents its financial condition prior to the delivery of the goods, then Seller may immediately reclaim, repossess, and take actual physical possession of all or any part of the goods which have been transferred from Seller to Buyer. Buyer shall grant unrestricted access to the goods to permit Seller to physically reclaim, repossess, and retake the goods. Buyer understands and acknowledges that Seller may not have an adequate remedy at law for the breach or threatened breach of this Confirmation and Seller may in addition to any other remedies which may be available hereunder, file a suit in equity to specifically enforce the terms and provisions hereof by obtaining the issuance of an ex-parte restraining order to enjoin and prohibit Buyer from transferring and/or altering, destroying or impairing the goods. Additionally, Seller may obtain whatever other and additional equitable relief as is appropriate to compel Buyer to permit Seller to physically reclaim, repossess and retake the goods.
- PAYMENTS. Buyer shall make all payments in United States Dollars. All payments are due pursuant to the terms on the Invoice. Any account that is past due may be placed on hold from shipping any future orders, and production on pending order halted, until the account is brought current. Accounts not paid pursuant to the Invoice terms may be charged interest at the rate of 18% per annum, or the highest rate allowed by law, beginning on the first day of the month following the date on which payment is due, but no interest amounting to less than $1.00 will be charged.
- WITHDRAWAL OF CREDIT. Seller may change, modify, amend, suspend, discontinue, terminate and/or otherwise revoke any credit extended to Buyer (a) if Buyer fails to pay any monies due Seller or (b) if in the judgment of Seller there has been a materially adverse change in Buyer’s financial condition and thereupon Seller may demand payment or other assurance as Seller may in its sole and absolute discretion require, before shipment of any further goods. Buyer represents and warrants to Seller, and Seller is relying on the fact that, Buyer is solvent, creditworthy, and has the financial ability to pay for the goods in accordance with the terms thereof.
- ATTORNEYS FEES. In the event of a dispute hereunder, threatened or actual, between Seller and Buyer, Buyer shall pay to Seller all costs incurred by Seller in enforcing the terms and provisions hereof, including, but not limited to, travel expenses, court costs, litigation costs and reasonable legal fees.
The Ulven Companies, Inc. and its affiliates are Equal Employment Opportunity Providers and Affirmative Action Plan Employers (EEOP/AAP). The Ulven Companies, Inc. and its affiliates’ policy is to recruit, hire, promote, reassign, compensate and train for all job classifications without regard to race, color, national origin, religion, sex, age, disability, or veteran status.