The terms of any prior offer to sell, quotation or proposal referred to herein are made a part of this order to the extent of specifying the nature and description of the goods and services ordered, and then only the extent that such terms are consistent with the other terms of this order. This order is expressly limited to and made conditional upon acceptance by seller of the exact terms contained herein and on the face of this order and any supplements, specifications or documents expressly incorporated herein by reference. The terms of this order shall govern and no oral agreement or other undertaking shall in any way modify or change this order or the terms thereof, unless agreed to in writing, and signed by an authorized officer or employee of Portland Bolt. Commencement of performance by the vendor shall constitute acceptance of the terms and conditions of this purchase order.
Portland Bolt may cancel, without further obligation, any undelivered portion of this order at any time if vendor does not make delivery of acceptable quality, within the time specified herein or if vendor otherwise breaches any of the terms or conditions hereof. Vendor will not, however, be liable for delay in delivery due to causes beyond vendor’s control and without vendor’s fault or negligence, provided vendor promptly notified Portland Bolt in writing or other acceptable communication, of any such delay or expected delay, as soon as such delay becomes, or should have become apparent.
3. WARRANTY, INDEMNITY AND INSPECTION
Vendor warrants that all goods and services covered by this order shall
conform to the specifications, drawings, samples or other description upon which this order is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from defect. This warranty shall apply to Portland Bolt, its customers and users of its products. Seller agrees to promptly replace or correct defects of any goods or services not conforming to the foregoing warranty, without expense to Portland Bolt, when notified of nonconformity by Portland Bolt. In the event vendor fails to promptly correct said defects or replace such nonconforming goods and services, Portland Bolt after reasonable notice to vendor, may make such corrections by replacing such goods and service and charge vendor for costs of materials, labor, transportation or other costs incurred by Portland Bolt. In addition to any other remedies it may have. Portland Bolt may reject all nonconforming goods and return same to vendor at vendor’s expense; nonconforming goods may not be replaced without written authorization by Portland Bolt.
Portland Bolt reserves the right, by written notice or other accepted forms of communication, to make changes in specifications, quantities ordered and in the dates on which materials are due.
Assignment of this order or any interest the rein or any payment due or to become due hereunder, without the written consent of Portland Bolt, shall be void.
6. COMPLIANCE WITH LAWS
Vendor agrees and warrants to comply with all applicable federal, state and local laws and will indemnify Portland Bolt against all liability for vendor’s failure so to comply.
7. APPLICABLE LAWS
The rights and obligations of the parties under this order shall be interpreted and governed in all respects by the laws of the state of Oregon.
If vendor ceases to conduct its operations in the normal course of business, including inability to meet its obligations as they mature or if any proceeding under bankruptcy or insolvency laws is brought by or against vendor, or a receiver for vendor is appointed or applied for the benefit of creditors is made by the Vendor, Portland Bolt may terminate this order without liability, except for deliveries previously made or for goods and services covered by this order completed and subsequently delivered in accordance with the terms of the order.
Portland Bolt may assert such legal rights including termination for anticipatory breach of contract as deemed appropriate, without further notice, upon receipt of information or disclosures that the vendor’s ability to complete this order satisfactorily and on a timely basis is in jeopardy. In such event, Portland Bolt may terminate the order without liability except as to deliveries of goods and services previously furnished, and covered by the order and in accordance with the terms of the order.
The failure of Portland Bolt to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provisions nor the right of Portland Bolt thereafter to enforce each and every such provision.
Seller shall defend any suit or proceeding brought against Portland Bolt or its customers that is based on a claim that any article or apparatus, or any part thereof constituting goods furnished under this order as well as any device or process necessarily resulting from the use thereof, constitutes an infringement of any patent of the United States or other country, if notified promptly in writing and given authority, information, and assistance (at vendor’s expense) for the defense of same and vendor shall pay all damages and costs awarded therein. In case use of goods an
d services is enjoined, vendor shall, at its own expense and at its option, either procure for Portland Bolt the right to continue use of said goods or services or replace same with a non-infringing equivalent, or remove said goods or services and refund the full purchase price and the transportation and installation costs thereof.
The vendor agrees to hold harmless and indemnify Portland Bolt from all claims, losses, damages, costs and legal fees arising out of bodily injuries, property damage, or other awards related thereto, including death and damage to property of Portland Bolt, its customer(s) or other third parties, resulting from the use of the goods or services provided by the vendor which result from the acts or omissions, including negligence of vendor, its agents, subcontractors or suppliers.
13. PACKAGING, MARKING AND TRANSPORTATION
Shipments shall be routed in accordance with instructions on this purchase order, and vendor agrees to reimburse Portland Bolt for all expense incurred as a result of improper packing, marking or routing. Portland Bolt purchase order number must appear on all shipping documents and invoices. Unless expressly agreed herein, no charge shall be made by vendor for containers, crating, boxing, bundling, dunnage, drayage or storage.
14. ATTORNEY FEES
In the event either party files suit to enforce the terms of this purchase order, the prevailing party shall be awarded in addition to any other remedy, its court costs and attorney fees at the trial court and on appeal, if any.