HAMPTON LUMBER SALES
TERMS AND CONDITIONS
1. BUYER ORDERS/INVOICES – Buyer’s orders are for the sole purpose of identifying the purchased goods and the requested delivery dates. No Buyer order will be binding on Hampton unless and until, as applicable: (a) Hampton provides Buyer a printed acknowledgment of the order (an “Acknowledgment”); (b) Hampton sends an invoice to Buyer for the order (an “Invoice”); or (c) Hampton ships the goods being purchased under the order. Acknowledgments and Invoices, along with these Terms and Conditions, constitute the entire agreement between Hampton Lumber Sales and/or Hampton Distribution Companies LLC (“Hampton”) and customer (“Buyer”) with respect to any and all goods purchased by Buyer from Hampton, 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 hereby rejected by Hampton unless specifically agreed to in writing by an authorized representative of Hampton. Any representations, promises, warranties, or statements by any officer or agent of Hampton 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. 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 parties. Buyer may not cancel or terminate an order for convenience, except with Hampton’s prior written consent and only then upon payment of reasonable termination charges. The Terms and Conditions set forth herein, and the terms and conditions set forth on the face of any Acknowledgment or Invoice, constitute a contract between the parties hereto and may not be added to, modified or altered in any way except by a written instrument signed by an authorized representative of Hampton.
2. TERMS OF PAYMENT – Terms of payment shall be as set forth on the face of the applicable Acknowledgment and/or Invoice. Any and all term discounts allowed will be A.D.F. (After Deducting Freight). The price on all goods or services provided shall be Hampton’s price in effect on the date order is placed. Unless payment is accompanied by Hampton’s invoice number, Hampton, 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 Hampton the amount of any claim asserted by Buyer against Hampton, unless such claim shall have been allowed, in writing, by an authorized representative of Hampton. If Buyer fails to pay any sum owed when due, interest shall accrue on the past due balance at the rate of 1 ½ percent per month or the highest rate allowed by law, whichever is lower. Hampton may setoff any amount owed by Hampton to Buyer against any amount owed by Buyer to Hampton. Buyer shall pay all costs of collection incurred by Hampton, 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).
3. GOVERNING LAW – 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.
4. TAXES – All sales tax, excise taxes, or other forms of taxes levied against this transaction shall be paid by Buyer over and above all other sums Buyer is or may become obligated to pay.
5. LIMITED WARRANTIES; LIMITATIONS OF LIABILITY –
(a) Hampton warrants to Customer only that the goods to be supplied will, at time of Delivery by Hampton pursuant to Section 6 below, conform to the description, grade and condition of the goods indicated on the face of Hampton’s Invoice or Acknowledgment. Hampton will have no responsibility under the foregoing warranty in the event that the goods: (i) are improperly handled after Delivery by Hampton pursuant to Section 6 below; (ii) are otherwise improperly installed or maintained (such as, without limitation, having been exposed to extreme temperatures or atmospheric conditions); or (iii) are modified or altered in any way (including but not limited to, being used or incorporated into any structure, building or product). In the event of any breach of the foregoing warranty, Buyer acknowledges and agrees that Hampton’s sole and exclusive liability and Buyer’s sole and exclusive remedy (whether in contract, tort or otherwise) shall be, at Hampton’s option, to repair those goods which Hampton’s examination shall disclose to its satisfaction do not conform to the above warranty, or the replacement thereof with conforming goods. Buyer agrees that Hampton 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 more than one (1) year after the accrual of the cause of action thereof. 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 Hampton in writing. Hampton will have the right to investigate all warranty claims and Buyer agrees to reasonably cooperate with any such investigation. If Hampton 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. Buyer agrees that all goods returned to Hampton pursuant to a warranty claim will become Hampton’s property. “Delivery” as used in this Section 5(a) means the performance by Hampton of its delivery obligations: (1) as set forth in Section 6 below; or (2) as otherwise set forth in the applicable Acknowledgment or Invoice.
(b) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 5 ARE NOT TRANSFERABLE AND MAY NOT BE ASSIGNED. THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 5 ARE THE EXCLUSIVE WARRANTIES PROVIDED BY HAMPTON. ACCORDINGLY, EXCEPT AS OTHERWISE SET FORTH IN SECTION 5(a) ABOVE, THE GOODS ARE SUPPLIED “AS IS” AND WITH ALL FAULTS. HAMPTON DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IF ANY APPLICABLE LAW OR STATUTE OF A JURISDICTION CONFLICTS WITH THIS SECTION 5, THEN THIS SECTION 5 SHALL BE MODIFIED ONLY TO THE EXTENT NECESSARY TO COMPLY WITH ANY SUCH LAW OR STATUTE AND AVOID THE CONFLICT.
(c) IN NO EVENT SHALL HAMPTON BE LIABLE 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, OR GOODWILL), EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS.
6. DELIVERY –
(a) Hampton will use commercially reasonable efforts to effect delivery of the goods at the desired time, but delivery dates are not guaranteed. In no event will Hampton 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 (Incoterms 2010) Hampton’s designated shipping point, with Hampton being responsible for loading costs. 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 the shipping point (provided that, Buyer will remain obligated to pay in full the amount of the Invoice). Buyer is solely responsible for obtaining insurance covering the goods during shipment, at its expense. Hampton may, as set forth in the Acknowledgment or Invoice, either prepay the shipping costs and invoice the charges to Buyer, or where the goods are sold on a delivered cost basis, pay the shipping costs on its own. In either scenario, Hampton reserves the right to select the carrier, and Buyer agrees to provide all information necessary to facilitate delivery to the end destination. Buyer acknowledges and agrees that Hampton is not responsible for the goods (including the delivery thereof) once the shipment has been loaded with the carrier, and once loaded, Hampton’s delivery obligations shall be deemed fully satisfied. Notwithstanding the preceding sentence, Hampton will, however, use commercially reasonable efforts to: (i) assist the carrier in the delivery of the goods; and (ii) in the event of loss or damage to the goods during shipment or a delay in delivery, provide reasonable assistance to Buyer in connection with filing a claim with the carrier. In the event Hampton assists Buyer in connection with filing a claim with the carrier pursuant to subsection (ii) of the preceding sentence, Buyer acknowledges and agrees that Buyer remains ultimately responsible for any claim made by Buyer against the carrier, that Hampton has no control over any decision by the carrier to reimburse or refund any amounts claimed to be owed by the carrier to Buyer, and that, except for Hampton’s obligation to provide reasonable assistance to Buyer in connection with the claim, Hampton shall have no responsibility or liability in connection with the claim and/or any dispute between Hampton and the carrier.
(b) 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 Hampton 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.
7. DELAYS – In the event the mill at which any order is placed or any other mill owned by Hampton which is capable of making the goods covered by any Acknowledgement and/or Invoice is forced to shut down or curtail its production or is unable to ship on the date specified because of fire, flood, windstorm, or other act of God, labor disturbance, civil disturbance, shortage of raw materials, energy, transportation (including but not limited to railcar shortages) or any other cause whether or not similar to the causes listed above, beyond Hampton’s reasonable control, Hampton reserves the right, at its option, to either transfer this order to another Hampton mill or to cancel Buyer’s order, in either case, without any fault, penalty or liability on the part of Hampton whatsoever. In no event shall Hampton be obligated to purchase material from third parties to enable Hampton to deliver goods to Buyer hereunder. During the period of such a contingency, and during the resumption of normal deliveries after the expiration of such contingency, Hampton shall have the right to allocate its available supply among its customers in Hampton’s sole discretion. Buyer’s orders are subject to shipments being withheld or, at the option of Hampton, cancelled if the financial condition of Buyer is such so as to give Hampton, in its sole judgment, reasonable grounds for insecurity concerning Buyer’s ability to perform its obligations.
8. CLAIMS – Claims for shortages or incorrect or damaged goods must be made in writing to Hampton within five (5) days after Buyer receives the applicable shipment. Failure to give such notice 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 The West Coast Bureau of Lumber Grades and Inspection or other applicable association. All material is sold under current West Coast terms and conditions of quotation and sale, or conditions of sale or other applicable association.
9. 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 or Conditions are mailed to Buyer or transmitted Buyer by email or facsimile machine, 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 Hampton hereunder. Buyer’s purchase of goods from Hampton shall be strictly upon the Terms and Conditions stated herein, unless Hampton gives its prior written consent to differing terms and conditions.