1. TERMS AND CONDITIONS – These Terms and Conditions For Lumber Sales (“Terms and Conditions”) apply to all quotations, offers, and agreements made by orders by customers (“Buyer”) accepted by Southport Lumber Co., LLC, an Oregon limited liability company and its affiliates (“Southport”). These Terms and Conditions are subject to change by Southport without prior written notice at any time, in Southport’s sole discretion. The latest version of these Terms and Conditions will be posted on Southport’s website, and Buyer should review these Terms and Conditions before making any purchases. Buyer’s continued purchase after a posted change in these Terms and Conditions will constitute Buyer’s acceptance of and agreement to such changes.
2. BUYER ORDERS/INVOICES – Buyer orders are for the sole purpose of identifying the purchased goods and the requested delivery dates. No Buyer order will be binding on Southport unless and until, as applicable: (a) Southport provides Buyer a sales order acknowledgment (an “Acknowledgment”); or (b) Southport sends an invoice to Buyer for the order (an “Invoice”). Acknowledgments and Invoices, along with these Terms and Conditions, constitute the entire agreement between Southport and Buyer with respect to any and all goods purchased by Buyer from Southport, and supersede any terms appearing in Buyer’s purchase order which may be different or in addition to these Terms and Conditions and/or the terms and conditions of any Acknowledgment and/or Invoice. Any additional terms or different terms stated on or referenced on any Buyer purchase order shall have no force or effect, and are rejected by Southport unless specifically agreed to in writing by an authorized representative of Southport. These Terms and Conditions prevail over any of Buyer’s terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms and Conditions. Any representations, promises, warranties, or statements by any officer or agent of Southport that are not expressly contained in these Terms and Conditions or in an Acknowledgment or in an Invoice shall be given no force or effect. Notwithstanding anything to the contrary in these Terms and Conditions, if a separate specific written contract signed by Buyer and Southport is in existence covering the sale of the goods, the terms and conditions of such contract shall prevail to the extent they are inconsistent with these Terms and Conditions. Buyer may not cancel or terminate an order for convenience, except with Southport’s prior written consent and only then upon payment of reasonable termination charges.
3. PRICE – Buyer shall purchase the goods from Southport at the price[s] (the “Price[s]”) set forth in the applicable Acknowledgment and/or Invoice.
4. TAXES – All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes over and above all other sums Buyer is or may become obligated to pay.
5. TERMS OF PAYMENT – Terms of payment shall be as set forth on the face of the applicable Acknowledgment and/or Invoice. Buyer shall make all payments for goods by wire transfer, ACH, or other method approved by Southport in advance, and in U.S. dollars. Any and all term discounts allowed will be A.D.F. (After Deducting Freight) and after deducting any other lumber processing or handling costs. Unless payment is accompanied by Southport’s invoice number, Southport, in its sole discretion, may apply all payments it receives to Buyer’s account in any manner it deems appropriate. Buyer shall not deduct or setoff from the price invoiced to it by Southport the amount of any claim asserted by Buyer against Southport or any of its affiliates, unless such claim shall have been allowed, in writing, by an authorized representative of Southport. If Buyer fails to pay any sum owed when due, interest shall accrue on the past due balance at the rate of 1½ percent per month or the highest rate allowed by law, whichever is lower, calculated daily, and compounded monthly. Southport may setoff any amount owed by Southport to Buyer against any amount owed by Buyer to Southport. Buyer shall pay all costs of collection incurred by Southport, including reasonable attorneys’ fees and expenses, should a default in payment or any other obligation of Buyer occur (including, without limitation, fees and costs incurred in any bankruptcy or similar action or on appeal). In addition to all other remedies available under these Terms and Conditions or at law (which Southport does not waive by the exercise of any rights under these Terms and Conditions), Southport shall be entitled to suspend the delivery of any goods if Buyer fails to pay any amounts when due under these Terms and Conditions or any Invoice or Acknowledgment.
6. LIMITED WARRANTIES –
(a) Southport warrants to Buyer only that the goods to be supplied will, at time of Delivery by Southport pursuant to Section 8 below, materially conform to the description, grade, and condition of the goods indicated on the face of Southport’s Invoice or Acknowledgment. Southport will have no responsibility under the foregoing warranty in the event that the goods: (i) are improperly handled after Delivery by Southport pursuant to Section 8 below; (ii) are otherwise improperly installed or maintained (such as, without limitation, having been exposed to extreme temperatures or atmospheric conditions); (iii) are modified or altered in any way (including, but not limited to, being used or incorporated into any structure, building, or product); (iv) are used by Buyer after Buyer gives notice of a warranty breach; or (v) the defect arises because Buyer failed to follow Southport’s oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the goods. In the event of any breach of the foregoing warranty, Buyer acknowledges and agrees that Southport’s sole and entire liability and Buyer’s sole and exclusive remedy (whether in contract, tort, or otherwise) shall be, at Southport’s option, to (A) repair those goods which Southport’s examination shall disclose to its satisfaction do not conform to the above warranty, or the replacement thereof with conforming goods, or (B) credit or refund the price of such goods at the pro rata contract rate provided that, if Southport so requests, Buyer shall, at Southport’s expense, return such goods to Southport. Buyer agrees that Southport will have a reasonable period of time to repair or replace any non-conforming goods. No action for any breach of warranty shall be brought after the soonest to occur of the following: (A) one (1) year after the date of Delivery of the goods to Buyer; (B) the expiration of any warranty claim period under applicable Pacific Lumber Inspection Bureau guidelines or industry standards; or (C) the end of the Inspection Period (for claims related to shortages or incorrect or damaged goods under Section 10). The above warranty runs only to Buyer and is not intended to, and does not run to, any subsequent buyer, nor may it be transferred to any other person or entity, unless otherwise specifically agreed to by Southport in writing. Southport will have the right to investigate all warranty claims and Buyer agrees to reasonably cooperate with any such investigation. If Southport determines, in its reasonable discretion, that a warranty claim is proper, it will repair or replace the goods pursuant to its standard warranty claims procedure, or credit or refund the price of such goods as described above, at Southport’s election. Buyer agrees that all goods returned to Southport pursuant to a warranty claim will become Southport’s property. “Delivery” as used in this Section 6(a) means the performance by Southport of its delivery obligations: (1) as set forth in Section 8 below; or (2) as otherwise set forth in the applicable Acknowledgment or Invoice.
(b) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 6 ARE NOT TRANSFERABLE AND MAY NOT BE ASSIGNED. THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 6 ARE THE EXCLUSIVE WARRANTIES PROVIDED BY SOUTHPORT. ACCORDINGLY, EXCEPT AS OTHERWISE SET FORTH IN SECTION 6(a) ABOVE, THE GOODS ARE SUPPLIED “AS IS” AND WITH ALL FAULTS. SOUTHPORT DOES NOT MAKE, AND EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. IF ANY APPLICABLE LAW OR STATUTE OF A JURISDICTION CONFLICTS WITH THIS SECTION 6, THEN THIS SECTION 6 SHALL BE MODIFIED ONLY TO THE EXTENT NECESSARY TO COMPLY WITH ANY SUCH LAW OR STATUTE AND AVOID THE CONFLICT.
7. LIMITATIONS OF LIABILITY –
(a) IN NO EVENT SHALL SOUTHPORT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, FOR INJURIES TO PERSONS OR PROPERTY, FOR COMMERCIAL LOSSES OR FOR ANY OTHER LOSS OR DAMAGE (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, DIMINUTION IN VALUE), IN EACH CASE WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SOUTHPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS.
(b) IN NO EVENT SHALL SOUTHPORT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SOUTHPORT FOR THE GOODS SOLD UNDER THESE TERMS AND CONDITIONS. The limitation of liability set forth in this Section 7(b) shall not apply to (i) liability resulting from Southport’s gross negligence or willful misconduct, and (ii) death or bodily injury resulting from Southport’s acts or omissions.
8. DELIVERY –
(a) Southport will use commercially reasonable efforts to effect delivery of the goods at the desired time as stated in the Acknowledgment or Invoice, but delivery dates are not guaranteed. In no event will Southport be liable for any losses, damages, or penalties resulting from any delay in shipment or delivery of the goods. Any increase or decrease in tariff freight rates, or demurrage, after the date of order shall be for the account of the Buyer. Except as set forth in the Acknowledgment or Invoice, all goods will be shipped FOB Southport’s designated shipping point. When shipped in accordance with the preceding sentence, title and risk of loss or damage to the goods ordered by Buyer will pass to Buyer upon the goods being loaded with the carrier at Southport’s shipping point (provided that, Buyer will remain obligated to pay in full the amount of the Invoice). As collateral security for the payment of the purchase price of the goods, Buyer grants to Southport a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Oregon Uniform Commercial Code.
(b) For orders that are FOB Southport’s designated shipping point, Buyer acknowledges that Southport is acting as an agent for Buyer as defined by Rule 150-317-1100 of the Oregon Administrative Rules for purposes of handling the freight, handling, and other related expenses. Buyer reserves the right to select the carrier, and Buyer agrees to provide all information necessary to facilitate delivery to the end destination.
(c) Southport may, in its sole discretion, without liability or penalty, make partial shipments of goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. The quantity of any installment of goods as recorded by Southport on dispatch from Southport’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
(d) Buyer will be the importer and exporter of record on all cross-border transactions relating to these Terms and Conditions (including any authorized warranty returns). Buyer agrees that Southport will not participate in any manner in any export or import processes or procedures relating to Buyer’s purchase of goods under these Terms and Conditions. Buyer is solely responsible for: (i) ensuring that any cross-border sales comply with applicable export and import regulations; and (ii) complying with all applicable import, re-import, export, and re-export control laws, including any applicable license requirements, and country-specific sanctions programs.
9. DELAYS – Southport shall not be in default or otherwise responsible for any delay in delivery caused by circumstances beyond its control, including, but not limited to, fire, flood, windstorm, an act of God, labor disturbance, civil disturbance, shortage of raw materials, energy, transportation (including, but not limited to, railcar shortages), pandemic or epidemic (including COVID-19), or any other cause whether or not similar to the causes listed above, beyond Southport’s reasonable control. Southport reserves the right, at its option, to cancel Buyer’s order, without any fault, penalty, or liability on the part of Southport whatsoever. In no event shall Southport be obligated to purchase material from third parties to enable Southport to deliver goods to Buyer under any Invoice or Acknowledgment. During the period of such a contingency, and during the resumption of normal deliveries after the expiration of such contingency, Southport shall have the right to allocate its available supply among its customers in Southport’s sole discretion. Buyer’s orders are subject to shipments being withheld or, at the option of Southport, cancelled if the financial condition of Buyer is such so as to give Southport, in its sole judgment, reasonable grounds for insecurity concerning Buyer’s ability to perform its obligations.
10. INSPECTION OF GOODS; CLAIMS – Buyer shall inspect all goods within the time period for inspection provided under Pacific Lumber Inspection Bureau guidelines and/or other applicable industry standards (“Inspection Period”). Claims for shortages or incorrect or damaged goods must be made in writing to Southport within the Inspection Period. Buyer will provide such written evidence or other documentation as requested by Southport. Failure to give such notices shall constitute an unqualified acceptance of the goods and the waiver by Buyer of all claims for such shortages or incorrect goods. All claims shall be handled in conformity with the current standard grading and dressing rules of Pacific Lumber Inspection Bureau or other applicable association used by Southport. If Buyer timely notifies Southport of any claim under this Section 10, Southport shall, in its sole discretion, in accordance with Section 6 either (i) replace such incorrect or damaged goods with conforming goods, or (ii) credit or refund the price for such incorrect or damaged goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Goods shall not be deemed nonconforming unless they are incorrect or damaged, as described in this Section 10. Buyer acknowledges and agrees that the remedies set forth in this Section 10 are Buyer’s exclusive remedies for the delivery of nonconforming goods. Except as provided under this Section 10, all sales of goods to Buyer are made on a one-way basis and Buyer has no right to return goods purchased to Southport.
11. INSURANCE – Buyer is solely responsible for obtaining insurance covering the goods during shipment, at its expense, which insurance coverage shall be in an amount no less than the delivered price of goods ordered.
12. ACCEPTANCE OF TERMS AND CONDITIONS – In the event Buyer fails to expressly reject these Terms and Conditions in writing within ten (10) days from the date these Terms and Conditions are sent or made available to Buyer (whether via mail, email, facsimile, posting online, or other means), or in the event Buyer otherwise pays any Invoice or accepts any goods delivered under these Terms and Conditions, Buyer will be deemed to have irrevocably accepted these Terms and Conditions for any and all purchases made by Buyer from Southport. Buyer’s purchase of goods from Southport shall be strictly under the Terms and Conditions and the accompanying Invoice or Acknowledgment, unless Southport gives its prior written consent to differing terms and conditions.
13. COMPLIANCE WITH LAWS – Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms and Conditions.
14. DEFAULT; TERMINATION – In the event Buyer defaults, Southport shall have, without limitation, all remedies afforded under the Oregon Uniform Commercial Code, at law, or in equity. Without limiting the generality of the foregoing, Southport may immediately accelerate all amounts due from Buyer to Southport, bring an action for the Price[s], withhold further deliveries or terminate any order without notice, or stop in transit any shipment to Buyer or Buyer’s designee. Southport shall have the power, but not the duty, of resale of any goods in Southport’s possession for Buyer’s account after seven (7) days’ written notice thereof has been given to Buyer. In addition to any remedies that may be provided under these Terms and Conditions, Southport may terminate any Invoice or Acknowledgment and any order with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms and Conditions or any Invoice or Acknowledgment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Southport’s remedies set forth in this Section 14 are cumulative.
15. INDEMNITY – Buyer assumes all liability (including, without limitation, liability for injury to person or property, economic loss, or business interruption) for all claims arising from the sale or use of the goods sold by Southport. Buyer will indemnify, defend, protect, and hold harmless Southport and its members, managers, officers, and affiliates, at all times, from and after the date of each Acknowledgment or Invoice, for, from, and against all claims, damages, actions, suits, proceedings, demands, assessments, adjustments, costs, and expenses (specifically including reasonable attorneys’ fees and expenses of investigation and penalties) incurred by Southport as a result of or arising from (a) any goods sold by Southport to Buyer, (b) any use of the goods sold under these Terms and Conditions by Buyer or any third party, (c) any nonfulfillment of any covenant or agreement on the part of Buyer under these Terms and Conditions, and (d) any claim made by a third party, or the commencement of any action or proceeding by a third party, that would give rise to Southport’s right of indemnification under these Terms and Conditions.
16. CONFIDENTIAL INFORMATION – All non-public, confidential, or proprietary information of Southport, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Southport to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with these Terms and Conditions or any Invoice or Acknowledgment is confidential, solely for the use of performing these Terms and Conditions or any Invoice or Acknowledgment, and may not be disclosed or copied unless authorized in advance by Southport in writing. Upon Southport’s request, Buyer shall promptly return all documents and other materials received from Southport. Southport shall be entitled to injunctive relief for any violation of this Section 16. This Section 16 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. GOVERNING LAW; VENUE – All issues concerning the performance or interpretation of these Terms and Conditions (and any Invoice or Acknowledgment) shall be governed by the laws of the State of Oregon, excluding its conflicts of laws principles. The applicability of the UN Convention on Contracts for the International Sale of Goods is expressly waived by Buyer and Southport and it will not apply to these Terms and Conditions or any other agreement between Buyer and Southport. Buyer and Southport shall be subject to the jurisdiction of the state and federal courts located in Oregon with respect to any dispute or litigation arising under or in connection with the sale of goods under these Terms and Conditions. Venue for purposes of any dispute or litigation shall be in Coos County, Oregon, and each of Buyer and Southport waives all claims that such a forum is inconvenient or that a more convenient forum can be found.
18. NO THIRD PARTY BENEFICIARIES – These Terms and Conditions and any Invoice or Acknowledgment are for the sole benefit of Buyer and Southport and their respective successors and permitted assigns, and nothing in these Terms and Conditions, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions or any Invoice or Acknowledgment, other than any third parties entitled to indemnification under these Terms and Conditions.
19. NOTICES – All notices, requests, consents, claims, demands, waivers, and other communications under these Terms and Conditions or any Invoice or Acknowledgment (each, a “Notice”) shall be in writing and addressed to the Buyer or Southport at the addresses set forth on the face of the Acknowledgment or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms and Conditions, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 19.
20. AMENDMENT; MODIFICATION; WAIVER – These Terms and Conditions, and the terms and conditions set forth on the face of any Acknowledgment or Invoice, constitute a contract between the Buyer and Southport and may not be added to, modified, or altered in any way except by a written instrument signed by an authorized representative of Southport. No waiver of these Terms and Conditions or any Acknowledgment or Invoice, or any part thereof, shall be effective unless in writing and signed by the waiving party. These Terms and Conditions and the terms and conditions of any Acknowledgment and/or Invoice shall not be modified, waived, or amended by course of performance or course of dealing between the Buyer and Southport.
21. SEVERABILITY – If any term or provision of these Terms and Conditions or any Invoice or Acknowledgment is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or any Invoice or Acknowledgment or invalidate or render unenforceable such term or provision in any other jurisdiction.
A22. ASSIGNMENT – Buyer shall not assign any of its rights or delegate any of its obligations under these Terms and Conditions or any Invoice or Acknowledgment without the prior written consent of Southport. Any purported assignment or delegation in violation of this Section 22 is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms and Conditions or any Invoice or Acknowledgment.