Orenco Systems® Terms and Conditions
1. Offer and Acceptance
This document (the “Terms and Conditions”) contains all of the terms and conditions of purchasing merchandise offered for sale by Orenco Systems, Inc. (“Orenco”). Unless a separate written agreement has been previously executed by duly authorized representatives of both Orenco and Purchaser that explicitly supersedes these Terms and Conditions (a “Prior Written Agreement”), Orenco’s offer of sale is expressly limited to, and expressly made conditional on, the exclusive use of the terms and conditions herein. Absent such a Prior Written Agreement, Purchaser’s order of merchandise constitutes an acceptance of Orenco’s offer to sell under these Terms and Conditions, regardless of Purchaser’s order form or other documentation associated with the order that stipulates different or additional terms or conditions. Orenco deems any such different or additional terms as material alterations to these Terms and Conditions, and hereby objects to and rejects them. Upon receipt of an order for merchandise from Purchaser, Orenco will verify the accuracy of the order before releasing it for manufacturing. After the order is released for manufacturing, Orenco will send Purchaser an Order Confirmation, which reiterates these Terms and Conditions. Once Orenco releases an order for manufacturing, Purchaser shall pay a Change Fee to Orenco if Purchaser changes or cancels the order, or any part thereof, prior to delivery. Orenco, in good faith, will determine the fee in an amount approximating the costs it actually expends on the changed or cancelled order, not to exceed the full price of the merchandise.
2. Custom Products
Merchandise not listed in Orenco’s catalogs or standard price lists, or that must be custom built to the specifications of Purchaser or its technical representative, will be considered “Custom Products” within this document. Custom Products do not include standard merchandise that requires minor modifications, such as being cut to a specified length. Unless a Prior Written Agreement controls, if Purchaser orders a Custom Product, and Orenco agrees to manufacture and/or sell it: (a) these Terms and Conditions will exclusively govern the purchase; (b) Purchaser will defend Orenco at its cost and expense, and will indemnify and hold Orenco harmless from and against any United States or foreign patent infringement suit related to the Custom Product brought upon Orenco by third parties; and (c) Purchaser will defend Orenco at its cost and expense, indemnify and hold Orenco harmless, and assume all responsibility for ensuring: (i) the components it provides Orenco for use in the Custom Product meet Purchaser and/or its technical representative's functional requirements and/or specifications; (ii) the compatibility of the Custom Product for its intended use; and (iii) the adequacy of the engineering, design or specifications furnished by Purchaser and/or its technical representative to Orenco. Prior to releasing an order for a Custom Product for manufacturing, Orenco will submit its drawings, schematics, and/or other documentation of the critical elements of the Custom Product to Purchaser or its technical representative for review, to ensure that it will be manufactured to meet its functional requirements and/or specifications. Orenco will only release the order for the Custom Product for manufacturing once it has received confirmation that Purchaser or its technical representative has reviewed and approved any such submittal documents.
3. Manufacturing Cost Surcharge
Orenco reserves the right to assess a Manufacturing Cost Surcharge at any time after accepting and confirming an order, but prior to shipping, to reflect any unanticipated increase in Orenco’s manufacturing cost during the period between order confirmation and shipping, including, but not limited to, increases in materials, labor, energy, or freight costs. Orenco warrants that it will avoid such increased manufacturing costs to the extent reasonably possible. Orenco will provide the Purchaser with notice of any such Manufacturing Cost Surcharge as early as reasonably possible prior to shipping, and in no case less than 30 days before the surcharge attaches to the order. Orenco will provide Purchaser with a statement explaining the basis and need for the Manufacturing Cost Surcharge and presenting facts justifying the surcharge.
4. Delivery
Orenco agrees to deliver all merchandise ordered by Purchaser for shipping by the ship date specified on the Order Confirmation, unless Orenco notifies Purchaser prior to the ship date, and as soon as reasonably possible, of any delays that were not reasonably foreseeable earlier. In the event Purchaser requests expedited delivery of merchandise, and Orenco agrees to the request, Purchaser shall pay an Expedite Fee to Orenco in an amount agreed upon between the parties, relative to the price of the merchandise and the difficulty in meeting the expedited delivery schedule, but not less than $50.00. Merchandise will be delivered FOB Shipping Point (Origin), and Purchaser will assume the risk of loss for the merchandise, when Purchaser, a carrier arranged by Purchaser, or a carrier Orenco arranged on behalf of Purchaser takes possession and/or control of the merchandise to load it for shipping or to transport it from Orenco’s facilities, whichever is sooner.
5. Shipping
Purchaser is responsible for shipping its merchandise from Orenco’s facilities. Purchaser may transport the merchandise itself, arrange for transportation of the merchandise with carriers of its choosing, or have Orenco arrange transportation of the merchandise on its behalf. If Purchaser fails to clearly identify which Party it chooses to make the arrangements on an order, Orenco will arrange the transportation of the merchandise associated with the order by selecting the method, carrier, and routing of the shipment directly or through a broker on behalf of the Purchaser. Purchaser will be responsible for all costs associated with transporting the merchandise from Orenco’s facilities, including all freight and insurance costs, as follows: (a) Will-Call; Collect. If Purchaser arranges transportation with a third-party carrier, Purchaser will arrange to pay the third party for the service directly. Purchaser shall pay a Storage Fee to Orenco if Purchaser or a carrier it arranges fails to take delivery of the merchandise on or within 5 business days of the ship date. Orenco, in good faith, will determine the fee in an amount relative to the price and physical size of the merchandise, the length of time between the ship date and when Purchaser or its carrier takes delivery, and the risk for damages. (b) Prepaid and Add. If Purchaser has Orenco arrange transportation of the merchandise on its behalf, Orenco will pay the third party for the service directly or through a broker. Purchaser agrees to pay Orenco for both Shipping and Handling, as itemized on a quotation, Order Confirmation, or invoice, as follows: (i) “Shipping” consists of reimbursement of all actual freight and insurance costs paid by Orenco, including all accessorial charges from the carrier for items such as residential or construction site deliveries, unloading delays, or use of lift gates, as well as any other fees, duties, tariffs, or taxes that may be applied on the merchandise by third parties after they are delivered, including storage fees and import, export, and transportation fees, duties, tariffs, and taxes. (ii) “Handling” consists of a fee for arranging transportation in an amount equal to 5% of the Shipping costs paid by Orenco. In instances where Orenco arranges for the transportation of merchandise on Purchaser’s behalf, Orenco will promptly notify Purchaser of any information it receives from its broker or a carrier indicating a delay in the scheduled arrival of the transport at the agreed-upon destination, and Purchaser agrees to ensure that the equipment necessary to unload the merchandise is present at the carrier’s destination at the time of the scheduled arrival. Unless Orenco fails to notify Purchaser of a delay in the scheduled delivery of the merchandise for shipping or withholds information it receives regarding a delayed arrival at the destination, Purchaser will hold Orenco harmless from and against any and all charges, costs, and other consequential damages caused by a delay in the arrival of the merchandise at the agreed-upon destination at the scheduled time.
6. Taxes
Purchaser will be responsible for the payment of all federal, state, provincial, county, local, or government taxes, including but not limited to, sales tax, use tax, value-added tax, goods and services tax, or other excise tax that may be applied on the merchandise (“Taxes”), and will indemnify and hold Orenco harmless from those Taxes. Orenco will be responsible for any tax based solely upon its net income. Purchaser may supply Orenco with a valid Resale Certificate or other form certifying an exemption from the payment of Taxes from the taxing authority having proper jurisdiction over the sale.
7. Payment Terms
Purchaser agrees to promptly pay Orenco for merchandise, and any Change Fees, Expedite Fees, Storage Fees, Taxes, Shipping, Handling, or other costs associated with the merchandise, in accordance with the terms below: (a)Prepayment. Purchaser may pay Orenco prior to delivery for merchandise, Change Fees, Expedite Fees, Taxes, estimated Shipping and Handling, and other costs associated with the order. However, Purchaser must prepay in the following circumstances: (i) If Purchaser does not have a credit account with Orenco, Purchaser must pay 100% of the full price of the merchandise, plus Change Fees, Expedite Fees, estimated Shipping and Handling, and other associated costs, before Orenco will release an order for manufacturing. (ii) If Purchaser does not have available credit remaining on its account with Orenco, it must pay all amounts in excess of its available credit, up to 100% of the full price of the merchandise, Change Fees, Expedite Fees, Taxes, estimated Shipping and Handling, and other associated costs, before Orenco will release an order for manufacturing. (b)On Account. If Purchaser has been approved for a discretionary credit account with Orenco, has available credit on its account, and has not prepaid in full, Orenco will invoice Purchaser for amounts owed for delivered merchandise, Change Fees, Expedite Fees, Storage Fees, Taxes, Shipping, Handling, and other associated costs. Unless otherwise agreed upon by the Parties in writing for a particular order, Purchaser must pay each invoice in full within 30 days from the date of the invoice (“Net 30”). If Purchaser fails to pay an invoice in full within the term of the invoice: (i) the delinquent amount will bear a finance charge of 1.5% per month, accruing daily from the day after it is due; (ii) Purchaser must pay all of Orenco’s reasonable collection expenses incurred in collecting delinquent invoices or finance charges; (iii) Purchaser must pay all of Orenco’s investigation and litigation costs incurred before, during, or after trial or appeal, including reasonable attorneys’ fees, if Orenco must institute a suit, action, or proceeding to collect delinquent invoices, finance charges, or collection costs; and (iv) Orenco may refuse to honor any subsequent order from Purchaser until all delinquent invoices, finance charges, and collection costs are paid in full.
8. Return of Merchandise
Purchaser may not return merchandise without the prior approval of Orenco. Merchandise approved for return must be securely packed to reach Orenco without damage. Except when covered by a Limited Warranty, merchandise accepted for return is subject to a Restocking Fee and all transportation charges. Orenco, in good faith, will determine the amount that will be credited or refunded to Purchaser for the returned merchandise by subtracting the Restocking Fee and any transportation charges paid by Orenco from the purchase price of the merchandise.
9. Limited Warranty
Subject to the exclusions, limitations, and conditions contained herein, Orenco warrants to Purchaser and subsequent owners, for a period of one year after delivery, that all merchandise will be free from defects in materials and workmanship that cause the merchandise to lose structural integrity, or to electrically or mechanically operate improperly. Neither merchandise consumed in the regular course of use, damage caused by abuse, misuse, accident, negligence, or catastrophic event beyond the control of Orenco, nor the loss of structural integrity or improper electrical or mechanical operation that results from a failure to follow any installation, operation, or maintenance instructions provided by Orenco, constitute a defect in the merchandise. If a separate written warranty instrument exists between Orenco or another manufacturer and Purchaser, the terms and conditions of said instrument control. Exclusive Remedy. The exclusive remedy under this Limited Warranty will be the obligation of Orenco to repair or exchange, at its discretion, any defective merchandise. Defects in materials or workmanship will be determined in good faith upon inspection by Orenco. When practicable, Purchaser should return merchandise for inspection. Labor is not covered under this Limited Warranty. In the event Orenco determines that merchandise is defective in materials or workmanship and covered by this Limited Warranty, Orenco will credit or reimburse Purchaser for all reasonable transportation charges incurred in returning the merchandise, if applicable, and will be responsible for all charges to transport repaired or exchanged merchandise to Purchaser. The warranty period for such repaired or exchanged merchandise will continue to toll from the delivery date of the original purchase. In the event Orenco determines that merchandise is not defective in materials or workmanship, or is not covered by this Limited Warranty, Orenco will charge Purchaser for all inspection costs incurred by Orenco, including reasonable travel costs, testing fees, and all reasonable transportation charges required to return the merchandise to the purchaser, as applicable. IN EXCHANGE FOR THIS WARRANTY COVERAGE, PURCHASER AGREES THAT ORENCO WILL NOT BE LIABLE FOR ANY LOSS, INJURY, OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM FAILURE OF, OR ANY DEFECT IN, THE MERCHANDISE. NOR WILL ORENCO BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES OF ANY KIND. IN NO EVENT MAY THE LIABILITY OF ORENCO UNDER THIS LIMITED WARRANTY EXCEED THE INVOICED PRICE OF THE MERCHANDISE. Disclaimer. EXCEPT AS SPECIFIED IN THIS LIMITED WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY OF INFORMATIONAL CONTENT, OR THOSE ARISING FROM A COURSE OF DEALINGS, LAW, USAGE, OR TRADE PRACTICE, MAY ONLY BE CLAIMED DURING THE WARRANTY PERIOD, AND THEREAFTER ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED TO THE EXTENT ALLOWED BY LAW.
10. Waiver
The failure of either Party on any occasion to exercise any right granted hereunder will not operate as a waiver of the right as to subsequent occasions and will not act to modify these Terms and Conditions.
11. Force Majeure
Orenco will not be deemed to have defaulted or failed to perform under these Terms and Conditions if its inability to perform or default has been caused by an event or events beyond its reasonable control and without its fault or negligence, including, without limitation, acts of God, government, or public enemy; pandemic or other governmentally recognized public health crisis; vandalism, fire, flood, labor disputes, civil riots or commotions; or embargoes or the inability to procure necessary raw materials, supplies or equipment or to procure them at commercially reasonable prices. Orenco must give Purchaser prompt written notice, with full details, following the occurrence relied upon. Dates by which performance obligations are scheduled will be extended for a period of time equal to the time lost because of the event.
12. Governing Law
The laws of the State of Oregon will govern these Terms and Conditions, together with all rights, obligations, and disputes arising out of or related thereto. The Parties hereby expressly disclaim any and all rights, obligations, or procedural or jurisdictional requirements granted or imposed by the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). Any dispute or legal action arising out of or relating to these Terms and Conditions must be brought in and decided by State Courts of Oregon. In any such dispute or action, Purchaser consents to the jurisdiction and venue of the Circuit Court of the State of Oregon for Douglas County.