These Vendor
These Vendor Terms and Conditions (these “Terms”) govern PDX Chemical LLC’s (“PDX”) purchase, as buyer, of chemicals, raw materials, blends, intermediates, additives, solvents, industrial products, packaging, equipment, and other goods or materials (collectively, the “Products”) from the seller identified in the applicable order, acknowledgment, or invoice (“Seller”), unless otherwise expressly agreed in a written agreement signed by both parties.
These Terms supplement and, where applicable, control over any purchase order, acknowledgment, quotation, invoice, or other document, except to the extent a written agreement signed by both parties expressly supersedes them.
By accepting a purchase order, shipping Products, invoicing PDX, or otherwise performing in connection with any transaction with PDX, Seller agrees these Terms govern. Any additional, conflicting, or different Seller terms are rejected and have no effect unless accepted in a writing signed by PDX.
PDX may place orders by purchase order or other written instructions, including electronically, specifying the Products, quantities, delivery location, requested delivery date, pricing, and other commercially reasonable instructions or specifications.
No order shall bind PDX unless issued by an authorized PDX representative. Seller shall promptly notify PDX in writing of acceptance or rejection, and in any event before commencing special procurement, customization, or other non-standard effort. Seller’s failure to reject an order shall not constitute acceptance unless PDX expressly agrees otherwise in writing.
Seller accepts an order upon the earliest of: (a) written confirmation; (b) commencement of performance, including procurement, manufacture, inventory reservation, or shipment; or (c) other conduct indicating assent. Any accepted order is an “Accepted Order.”
ANY SELLER TERMS THAT ARE ADDITIONAL TO, DIFFERENT FROM, OR INCONSISTENT WITH THE TERMS ARE REJECTED AND HAVE NO EFFECT UNLESS EXPRESSLY ACCEPTED BY PDX IN A SEPARATE WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED PDX REPRESENTATIVE.
PDX may modify or cancel an Accepted Order at any time before Seller’s acceptance. After acceptance, PDX may request a modification or cancellation, and Seller shall use commercially reasonable efforts to accommodate such request; provided, however, that any resulting adjustment to price, delivery schedule, or other terms shall be subject to PDX’s written approval. Seller shall not ship any Products in excess of the quantities ordered or before the requested delivery date without PDX’s prior written consent.
Seller represents and warrants that it has authority and capacity to perform each Accepted Order, and that all Products shall conform to the applicable order, specifications, and the Terms. Seller’s acceptance shall not limit PDX’s rights or remedies for nonconforming Products, late delivery, or any other breach.
Seller shall supply only Products that strictly conform to the applicable Accepted Order, referenced specifications, and these Terms. If no specification is stated, Products shall be new, merchantable, fit for their ordinary purpose, first-class quality, and free from defects in design, materials, workmanship, and packaging.
Seller represents and warrants that all Products will:
Seller shall maintain sufficient quality control and inspection procedures and, upon PDX’s request, provide certificates of analysis or conformity, test results, traceability, origin, safety data, or other documentation reasonably requested to verify compliance.
PDX may inspect, test, and reject nonconforming Products before or after payment, acceptance, use, or resale. No inspection, testing, payment, acceptance, or failure to inspect or test waives any nonconformity, defect, or breach of warranty. If PDX rejects Products, Seller shall, at PDX’s option and sole cost, promptly replace or repair them or refund all amounts paid, including associated shipping, handling, inspection, storage, return, recall, or disposal costs.
Seller shall not materially change any Product’s design, materials, manufacturing process, source, packaging, labeling, or place of manufacture without PDX’s prior written consent. Seller shall promptly notify PDX of any actual or suspected quality issue, defect, nonconformity, safety concern, regulatory issue, or recall risk and cooperate fully in investigating, mitigating, correcting, and, if necessary, recalling affected Products.
The warranties in this clause are cumulative and in addition to any other warranties, rights, or remedies available to PDX. Seller shall bear all costs associated with nonconforming Products, including freight, rework, replacement, removal, reinstallation, and downstream costs reasonably incurred by PDX.
Prices shall be as set forth in the applicable Accepted Order or otherwise agreed in writing. Unless the Accepted Order states otherwise, prices are fixed and include Seller’s costs for manufacture, packaging, labeling, storage, handling, delivery, duties, tariffs, customs charges, insurance, freight, and transportation charges, except applicable Taxes as provided below.
Seller shall not invoice above the prices in the applicable Accepted Order without PDX’s prior written consent. PDX need not pay any invoice that does not conform to the pricing, quantities, descriptions, or other requirements of the Accepted Order and these Terms.
Unless prohibited by applicable law or otherwise expressly stated in the applicable Accepted Order, prices do not include any sales, use, excise, value-added, goods and services, withholding, gross receipts, or similar taxes, duties, levies, or governmental charges of any kind imposed on the sale, purchase, delivery, or use of the Products (collectively, “Taxes”). Seller shall separately state all Taxes on its invoice to the extent required by applicable law. PDX shall be responsible only for Taxes that are legally required to be collected from PDX and that Seller is required by applicable law to collect, provided that Seller has properly itemized and documented such Taxes on the invoice and provided further that PDX has received any exemption certificate or other documentation reasonably requested by Seller and legally sufficient to support any claimed exemption.
Seller shall pay when due all Taxes based on Seller’s net income, gross receipts, payroll, property, business operations, or performance, except Taxes that applicable law requires be collected from PDX and are properly invoiced. If PDX must withhold or deduct Taxes from payment to Seller, PDX may do so, remit the amount to the appropriate authority, and reduce the amount payable to Seller accordingly.
Seller shall provide documentation supporting any tax exemption or reduced rate before invoicing or promptly thereafter. If PDX pays Taxes Seller was obligated to pay, Seller shall reimburse PDX on demand. Tax credits, refunds, or similar benefits attributable to Taxes borne by PDX shall belong to PDX to the extent permitted by law.
Seller represents and warrants that prices charged to PDX are no less favorable than prices charged to similarly situated customers for similar quantities of substantially similar products under comparable terms, excluding bona fide non-discriminatory discounts. If Seller offers lower pricing for substantially similar products and volumes during an Accepted Order, Seller shall notify PDX and, upon request, apply such pricing to future shipments to the extent permitted by law and the Accepted Order.
Invoices shall follow PDX’s instructions and include the Accepted Order number, item description, quantity, unit price, extended price, separately stated Taxes, and supporting documentation reasonably required by PDX. Payment shall not constitute Product acceptance or waive PDX’s rights or remedies.
Seller shall, at its sole cost, package, mark, and ship all Products in accordance with the Accepted Order, these Terms, carrier requirements, and applicable law. Time is of the essence for all delivery obligations unless PDX agrees otherwise in writing.
Unless the Accepted Order provides otherwise, Products shall be delivered F.O.B. PDX’s designated destination, with Seller responsible for transportation, freight, insurance, handling, loading, unloading, customs clearance, duties, and other delivery charges. Any different delivery term in the Accepted Order controls to the extent not inconsistent with these Terms.
Title and risk of loss pass to PDX only upon receipt and acceptance at the designated destination after a reasonable inspection opportunity. Until then, Seller remains responsible for loss or damage, including in transit, and shall promptly replace, repair, or refund, at PDX’s election, any affected Products.
Seller shall maintain, at its sole expense, cargo, transit, and other insurance necessary to protect the Products until title and risk of loss pass to PDX, and shall provide evidence of coverage upon request.
Seller shall comply with PDX shipping instructions and shall not make substitutions, partial, early, or delayed shipments, or use a different carrier, without PDX’s prior written consent, except as reasonably necessary to avoid imminent loss or damage. Seller shall promptly notify PDX of any delivery issue, but notice does not relieve Seller of any obligation or liability.
PDX may reject any shipment that is nonconforming, late, incomplete, improperly packaged, mislabeled, or otherwise not in accordance with the Accepted Order or these Terms, without prejudice to other rights or remedies. Seller shall bear all costs for rejected, returned, re-shipped, or corrected shipments, including storage, freight, inspection, and administrative costs, unless PDX agrees otherwise in writing.
PDX may inspect and test Products before, during, and after delivery, including after installation or use. Inspection, testing, review, payment, or acceptance does not relieve Seller of any obligation, warranty, or liability or waive any nonconformity or defect, latent or patent.
Unless the Accepted Order states otherwise, PDX may reject Products that, in PDX’s reasonable judgment, are nonconforming, defective, damaged, late, incomplete, improperly labeled, improperly packaged, or otherwise not in strict conformity with these Terms or the Accepted Order. Seller shall provide, at no charge, reasonable assistance, documentation, certifications, samples, and access for inspection and testing.
PDX’s failure to inspect, test, or reject Products promptly is not acceptance. Products are accepted only after PDX has a reasonable inspection opportunity and either accepts them in writing or retains them beyond a reasonable time without rejection after discovering a reasonably discoverable nonconformity. Partial acceptance does not limit PDX’s rights for other Products, latent defects, warranty claims, or later-discovered breaches.
If PDX rejects Products, PDX may require Seller, promptly and at Seller’s sole cost, to: (a) replace them; (b) repair them; (c) refund all amounts paid; (d) reimburse PDX for inspection, handling, storage, transportation, return, rework, and disposal costs; and/or (e) take other corrective action PDX reasonably directs. Seller bears risk of loss for rejected Products and shall arrange return, removal, or disposition per PDX’s instructions; otherwise PDX may return, store, scrap, or dispose of them at Seller’s expense.
Corrected, repaired, or replaced Products remain subject to the same inspection, testing, acceptance, and warranty procedures. Seller shall not invoice for rejected Products, and PDX may set off amounts previously paid for rejected Products against amounts otherwise due.
Seller shall comply with laws governing Product manufacture, packaging, labeling, storage, shipment, delivery, and Taxes, and provide certificates of origin, compliance, safety data, and other documents reasonably requested by PDX.
PDX’s rights and remedies are cumulative. No course of dealing, usage of trade, prior acceptance, or payment limits PDX’s right to reject nonconforming Products or pursue breach remedies.
Seller represents, warrants, and covenants that each Product shall, as of each Accepted Order and throughout the warranty period:
Seller represents and warrants that it has full power and authority to perform the Terms and each Accepted Order, and that doing so will not violate any agreement, law, or order binding on Seller.
Seller shall promptly notify PDX of any actual or potential nonconformity, defect, recall, safety issue, regulatory issue, or claim affecting Products. Seller shall, at PDX’s election and sole cost, promptly repair, replace, re-perform, refund, or otherwise cure nonconforming or defective Products and reimburse PDX for reasonable related costs, including inspection, sorting, transportation, reinstallation, removal, recall, and customer claims, to the extent caused by Seller or the Products.
Unless otherwise stated, these warranties survive inspection, acceptance, payment, and use and remain in effect for the longer of: (a) twelve (12) months after delivery; or (b) any longer warranty period provided by Seller, manufacturer, or law. Repairs, replacements, or re-performance are warranted for the longer of the remaining original warranty period or ninety (90) days.
THE WARRANTIES SET FORTH IN THE TERMS ARE IN ADDITION TO, AND NOT IN LIMITATION OF, ANY WARRANTIES IMPLIED BY LAW OR OTHERWISE AVAILABLE TO BUYER. EXCEPT AS EXPRESSLY SET FORTH IN THE TERMS, SELLER DISCLAIMS NO WARRANTIES TO THE EXTENT SUCH DISCLAIMER WOULD BE UNENFORCEABLE UNDER APPLICABLE LAW.
If PDX rejects Products, Seller shall, at PDX’s election and sole cost, promptly: (a) replace them with conforming Products; (b) repair them; (c) refund all amounts paid; and/or (d) reimburse PDX for reasonable rejection-related costs, including inspection, sorting, handling, storage, return shipment, re-procurement, and downstream customer claims or charges to the extent caused by the nonconformity. Replacement or repaired Products remain subject to the same warranties and acceptance rights.
Seller bears all risk of loss for rejected or returned Products until conforming Products are delivered and accepted or PDX confirms no replacement is required. PDX may return rejected Products at Seller’s risk and expense or require Seller to arrange and pay for pickup, return freight, and necessary export, import, or customs documentation.
If Seller fails to timely replace, repair, or refund rejected Products, or if nonconformity is material, repeated, or not timely curable, PDX may procure substitutes and charge Seller for excess costs or terminate the applicable Accepted Order in whole or part. PDX’s rights are cumulative and in addition to all rights or remedies at law, in equity, under the Texas UCC, or under these Terms.
Seller shall not impose restocking fees, cancellation charges, return authorizations, minimum return quantities, or similar conditions on any remedy unless PDX agrees in writing. If nonconforming Products have been incorporated, mixed, or used, Seller remains responsible for resulting losses, costs, and liabilities to the extent caused by the nonconformity.
Seller shall, at its own expense, comply in all material respects with all applicable laws and governmental requirements governing Seller, the Products, their manufacture, packaging, labeling, storage, handling, transportation, delivery, sale, performance, and Seller’s obligations under these Terms.
Without limiting the foregoing, Seller represents, warrants, and covenants that it shall:
Seller shall not supply Products that are counterfeit, stolen, unlawfully obtained, or prohibited by law, and shall ensure Products are accurately described and labeled with all required warnings, instructions, disclosures, and notices.
If Seller fails to comply with this clause, PDX may suspend performance, reject non-compliant Products, cancel any affected Accepted Order, or exercise any other rights or remedies under these Terms or law, all cumulative.
Seller shall defend, indemnify, and hold harmless PDX, its affiliates, and their respective representatives, successors, and assigns from all claims, proceedings, investigations, liabilities, damages, losses, judgments, settlements, penalties, fines, costs, and expenses (including reasonable attorneys’ fees and court costs) arising out of any third-party claim to the extent resulting or alleged to result from:
Seller’s obligations apply regardless of theory of liability, but only to the extent the claim is caused by Seller or its subcontractors. Seller shall not settle an indemnified claim without PDX’s prior written consent if the settlement (a) imposes any obligation or admission on PDX, (b) lacks a full and unconditional PDX release, or (c) lacks an express denial of PDX liability. PDX may participate in the defense with its chosen counsel at its own expense, except Seller shall pay if a conflict exists or Seller fails to assume the defense. PDX shall promptly notify Seller of any indemnity claim, but failure to do so relieves Seller only to the extent materially prejudiced. PDX may, at Seller’s expense, assume the defense if Seller fails to promptly and diligently defend. These rights and remedies are cumulative and survive expiration or termination.
To the fullest extent permitted by law, neither party shall be liable for indirect, incidental, special, consequential, exemplary, punitive, or enhanced damages, or for lost profits, revenue, business, goodwill, anticipated savings, data, or business interruption, arising out of these Terms, any Accepted Order, or Products, under any theory, even if advised of the possibility and even if any limited remedy fails of its essential purpose.
Except for Excluded Claims, each party’s aggregate liability arising out of these Terms, any Accepted Order, or Products shall not exceed amounts paid or payable by PDX to Seller under the specific Accepted Order giving rise to the claim during the twelve (12) months before the event first giving rise to the claim, or, if no specific Accepted Order applies, under these Terms during that period.
The limitations and exclusions in this clause do not apply to: (a) a party’s gross negligence, willful misconduct, or fraud; (b) a party’s breach of confidentiality obligations; (c) Seller’s indemnification obligations under these Terms; (d) Seller’s obligation to replace, repair, or refund nonconforming Products or perform express warranty obligations; (e) PDX’s obligation to pay undisputed amounts due for accepted Products; or (f) liability that cannot be limited or excluded under applicable law (collectively, “Excluded Claims”).
Nothing limits liability for death or personal injury to the extent caused by negligence where limitation is prohibited by law.
In connection with these Terms or any Accepted Order, each party may receive non-public, proprietary, technical, commercial, financial, operational, or other information of the other party, however disclosed and whether or not marked confidential, that a reasonable person would understand to be confidential (“Confidential Information”). Confidential Information includes these Terms and Accepted Orders, pricing, specifications, drawings, samples, forecasts, business plans, customer information, product designs, software, processes, know-how, and derivatives thereof.
Each receiving party shall: (a) keep Confidential Information confidential using at least the same care used for its own like information, and no less than commercially reasonable care; (b) use it solely to perform or receive performance under the Terms and applicable Accepted Orders; and (c) disclose it only to representatives with a need to know who are bound by confidentiality obligations at least as protective as these Terms.
Neither party shall reverse engineer, decompile, disassemble, or otherwise attempt to derive the composition, structure, or underlying ideas of samples, software, prototypes, or other materials received from the other party, except as expressly permitted in writing or where restriction is prohibited by law.
This clause does not apply to information the receiving party can demonstrate by contemporaneous records: (a) is or becomes public without breach; (b) was lawfully known without restriction before disclosure; (c) is lawfully received from a third party without breach of confidentiality; or (d) was independently developed without use of or reference to Confidential Information.
If legally required to disclose Confidential Information, the receiving party may do so only to the extent required and, to the extent permitted, must give prompt notice and reasonably cooperate, at the disclosing party’s expense, to seek protective treatment or limit disclosure.
Upon the disclosing party’s request or termination or expiration, the receiving party shall promptly return or destroy Confidential Information, including copies, extracts, summaries, and derivatives, except it may retain one archival copy as required by law, bona fide retention policies, or automated backups; retained information remains subject to this clause and may be accessed only for legal, regulatory, or compliance purposes.
Unauthorized use or disclosure of Confidential Information may cause irreparable harm, and the disclosing party may seek injunctive or equitable relief without bond or proof of actual damages, in addition to other rights and remedies.
The obligations under this clause survive expiration or termination of these Terms for five (5) years; for Confidential Information constituting a trade secret, they survive so long as the information remains a trade secret.
Either party may disclose the Terms or any Accepted Order to its legal, financial, or tax advisors, insurers, lenders, or prospective assignees or successors bound by confidentiality obligations or professional duties, or as necessary to enforce its rights.
As between PDX and Seller, PDX retains all right, title, and interest in intellectual property and proprietary rights owned, licensed, developed, conceived, authored, or acquired by or for PDX before, on, or after the applicable Accepted Order, including specifications, drawings, designs, inventions, data, reports, works, trademarks, and materials or information furnished by or for PDX, together with related intellectual property rights (“PDX IP”). No PDX IP rights or licenses are granted to Seller except as expressly set forth in these Terms or an Accepted Order.
As between PDX and Seller, Seller retains all right, title, and interest in intellectual property and proprietary rights owned, licensed, developed, conceived, authored, or acquired by or for Seller before, on, or after the applicable Accepted Order, excluding PDX IP and deliverables, work product, or materials created specifically for PDX and assigned under this clause (“Seller IP”). To the extent Seller IP is incorporated in or necessary for Products, Seller grants PDX and its affiliates a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid-up, transferable, sublicensable license to use, reproduce, modify, distribute, import, export, sell, offer for sale, make, have made, and otherwise exploit such Seller IP as necessary to use, maintain, repair, support, integrate, market, resell, or exploit the Products and products or services incorporating them.
All deliverables, work product, customizations, developments, inventions, designs, documentation, software, data, reports, analyses, and materials created or developed by Seller specifically for PDX under an Accepted Order, and related intellectual property rights, are deemed specially ordered or commissioned for PDX to the maximum extent permitted by law and, to the extent not so deemed, irrevocably assigned to PDX upon creation. Seller shall execute, and cause its personnel and subcontractors to execute, documents reasonably requested to evidence, perfect, or enforce the assignment.
Seller represents and warrants that: (a) it has and will maintain all rights, licenses, consents, and permissions needed to perform and grant PDX the rights and licenses in this clause; (b) the Products, PDX’s use thereof, and Seller deliverables will not infringe, misappropriate, or violate third-party IP rights; and (c) Seller has not incorporated open-source software or third-party materials into any deliverable or Product in a manner requiring disclosure, source-code distribution, copyleft licensing, or obligations inconsistent with these Terms, unless PDX has given prior written consent. Seller shall promptly notify PDX of any actual or threatened related IP claim.
If any Product or deliverable becomes, or is likely to become, subject to an IP claim, Seller shall, at its sole expense and as PDX’s sole remedy for such claim, promptly procure continued use rights, replace or modify it to be non-infringing without materially diminishing functionality or value, or, if neither is commercially reasonable, accept return and refund all amounts paid plus PDX’s reasonable documented related costs. Seller shall not settle any such claim in a manner imposing any obligation, admission, restriction, or liability on PDX without PDX’s prior written consent.
Seller shall defend, indemnify, and hold harmless PDX, its affiliates, and their representatives, successors, and assigns from all claims, damages, losses, liabilities, judgments, penalties, fines, costs, and expenses, including reasonable attorneys’ fees, arising out of actual or alleged IP infringement, misappropriation, or violation by the Products, deliverables, Seller IP, or Seller’s performance, except to the extent caused by: (i) PDX IP or materials; (ii) modifications not made at Seller’s direction; (iii) combinations not supplied or approved by Seller where the claim would not have arisen but for the combination; or (iv) Seller’s compliance with PDX’s written specifications or instructions where the claim would not have arisen but for such compliance. This indemnity is subject to these Terms’ procedures and limitations, except it shall not apply to Excluded Claims.
PDX may use, reproduce, modify, distribute, display, perform, import, export, sell, offer for sale, and otherwise exploit deliverables or work product assigned to PDX without further consent, payment, or accounting to Seller. Seller irrevocably waives, and agrees not to assert, any retained moral or similar rights to the maximum extent permitted by law.
PDX may terminate any Accepted Order, in whole or part, at any time by written notice effective upon receipt unless stated otherwise. Seller shall immediately stop terminated work, mitigate costs, and, as directed by PDX, preserve and protect related Products, work in process, materials, tooling, and other property.
PDX may suspend performance under any Accepted Order, in whole or part, by written notice. During suspension, Seller shall comply with PDX’s instructions and shall not resume performance until PDX provides written authorization. Seller shall use commercially reasonable efforts to minimize suspension costs and delay.
For convenience termination, PDX shall pay only for: (a) conforming Products completed and accepted before termination; and (b) reasonable, documented, unavoidable costs incurred directly for the terminated portion before receipt of notice, to the extent not avoidable, mitigable, or recoverable, less prior payments and salvage value or credits. Seller is not entitled to lost profits, anticipated or unabsorbed overhead, consequential damages, or other indirect or speculative damages from termination or suspension.
For termination due to Seller’s default, PDX has all rights and remedies at law, in equity, or under these Terms, and owes only for conforming Products accepted before termination, subject to setoff, recoupment, rejection, and indemnity. Seller is liable for PDX’s losses, costs, and damages arising from default, including cover, inspection, storage, transportation, reprocurement, and administrative costs, to the extent permitted by law.
Seller may not terminate, suspend, or delay performance under any Accepted Order except to the extent expressly authorized in writing by PDX or required by applicable law. Any Seller suspension or termination not expressly permitted under these Terms is a material breach.
PDX’s termination and suspension rights are cumulative. Termination or suspension of one Accepted Order does not affect any other Accepted Order unless PDX states otherwise.
Upon expiration or termination, Seller shall promptly: (a) cease use of PDX IP and Confidential Information except for surviving obligations; (b) return or destroy, at PDX’s option, PDX IP, Confidential Information, and PDX-furnished property; (c) deliver completed and partially completed Products, work in process, tooling, materials, and documentation paid for or requested by PDX; and (d) reasonably cooperate in transition. Seller shall certify compliance upon request.
Rights or obligations that by their nature should survive termination or suspension shall survive, including payment, confidentiality, indemnification, warranty, limitation of liability, and other intended survival provisions.
To the maximum extent permitted by law, PDX has no liability to Seller for termination or suspension except as expressly provided in this clause, and is not liable for special, incidental, punitive, or consequential damages arising from termination or suspension.
Neither party shall be liable for delay or failure to perform, other than payment of undisputed amounts, to the extent caused by events beyond its reasonable control, including acts of God, severe weather, epidemic, war, terrorism, civil unrest, qualifying labor disputes, governmental actions, embargoes, shortages, utility failures, or similar events, not caused by the affected party’s negligence or willful misconduct and not preventable, avoidable, or overcome through commercially reasonable efforts.
The affected party shall promptly notify the other party of the event, expected duration, and anticipated effect; use commercially reasonable efforts to mitigate, resume performance, and minimize delay or damage; and keep the other party reasonably informed. Seller shall allocate available Products, materials, capacity, and resources fairly, giving PDX priority as required by law or agreed in writing.
If Seller’s performance is delayed or prevented by a force majeure event, PDX may, without liability, suspend its own performance, extend time, procure substitutes, or cancel the affected Accepted Order, in whole or in part, if the event continues for more than ten (10) days or a shorter commercially unreasonable period. If PDX cancels, it need not accept delayed performance or partial shipments unless it agrees otherwise in writing.
Notwithstanding anything to the contrary, a force majeure event shall not excuse or delay: (a) Seller’s obligations to comply with applicable law, maintain insurance, protect Confidential Information, preserve and return PDX IP, or comply with any express recall, safety, or corrective action obligation; (b) any obligation arising from a breach existing before the force majeure event; or (c) any liability for Excluded Claims. If the force majeure event continues for more than thirty (30) days, either party may terminate the affected Accepted Order upon written notice to the other party without further liability, except for payment obligations accrued before the effective date of termination and any rights or obligations that by their nature survive termination.
For the avoidance of doubt, a force majeure event does not include: (i) market changes, cost increases, or inability to obtain financing; (ii) lack of funds, insolvency, or bankruptcy; (iii) failure to perform due to the affected party’s own acts or omissions, including failure to maintain adequate staffing, equipment, inventory, or subcontractor performance; or (iv) any event preventable by compliance with these Terms, applicable law, or prudent business continuity measures.
Except as otherwise provided in these Terms, the parties shall first attempt in good faith to resolve any dispute, controversy, or claim arising out of or relating to these Terms, any Accepted Order, the Products, or the breach, termination, or validity thereof through informal negotiations between representatives authorized to settle. Either party may initiate negotiations by written notice describing the dispute in reasonable detail. If unresolved within thirty (30) days after notice, either party may pursue any remedy available at law or in equity, subject to this clause.
Any suit, action, or proceeding arising out of these Terms, any Accepted Order, the Products, or related transactions shall be brought exclusively in state courts in Harris County, Texas or, if federal jurisdiction exists, the United States District Court for the Southern District of Texas, Houston Division. Each party submits to such courts’ exclusive jurisdiction and venue and waives forum, personal jurisdiction, or venue objections. A party may seek temporary, preliminary, or injunctive relief in any court of competent jurisdiction to protect its rights pending final resolution.
These Terms, each Accepted Order, and related disputes shall be governed by Texas law, without conflict-of-laws principles requiring another jurisdiction’s law; the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
To the fullest extent permitted by law, each party waives jury trial in any action, suit, or proceeding arising out of these Terms, any Accepted Order, the Products, or related transactions.
Notices and other communications under these Terms or any Accepted Order must be in writing and are duly given only if delivered by hand, nationally recognized overnight courier, certified or registered mail, or email to the address last designated in writing by the receiving party.
Notices to PDX must be sent as designated by PDX in the Accepted Order, purchase order, onboarding materials, or other written notice, or, absent designation, to PDX at its principal place of business and designated notice email. Notices to Seller must be sent to Seller’s most recent written contact information or, absent designation, to Seller at its principal place of business.
Unless otherwise stated, notices are effective upon the earliest of: (a) actual receipt; (b) hand delivery; (c) the next business day after overnight courier deposit; (d) the third business day after mailing; or (e) email sending if no automated failure notice is received, with emails after 5:00 p.m. local time or on a non-business day effective the next business day. A party may change notice information by notice.
Notices of breach, default, termination, suspension, indemnity claims, or other notices materially affecting legal rights or obligations must also be sent by a non-email method unless the receiving party agrees in writing that email alone is sufficient. Email alone is not sufficient for service of process, subpoenas, or formal legal process.
Each party shall keep notice information current. A compliant notice is deemed received even if the addressee refuses delivery, fails to claim it, or does not open or read it.
Seller shall not assign, transfer, delegate, or otherwise dispose of rights or obligations under these Terms or any Accepted Order, whether voluntarily, by operation of law, merger, sale, change of control, or otherwise, without PDX’s prior written consent. Any violation is null and void.
PDX may assign, transfer, delegate, or otherwise dispose of any rights or obligations under these Terms or any Accepted Order without Seller’s consent, including to an affiliate or in connection with any merger, sale, or business combination.
Seller shall not subcontract, outsource, or delegate any material obligation under these Terms or any Accepted Order without PDX’s prior written consent. Seller remains liable for each approved subcontractor’s, supplier’s, agent’s, or delegate’s acts and omissions as its own and shall ensure their compliance with these Terms and law.
Seller shall indemnify PDX against losses, damage, delay, costs, and expenses arising from Seller’s subcontracting or delegation, including subcontractor nonperformance, except to the extent caused by PDX’s written instructions or PDX’s gross negligence or willful misconduct.
No subcontracting or delegation relieves Seller of any obligation or creates a contract between PDX and any subcontractor or delegate. PDX may require Seller to remove or replace any subcontractor or delegate whose performance, conduct, or compliance is unsatisfactory to PDX.
Seller shall not assign any payment right without PDX’s prior written consent, except Seller may assign receivables to a financing source upon written notice, subject to PDX’s setoff, recoupment, deduction, defenses, and claims. Payment by PDX before notice of a valid assignment discharges PDX’s obligation to that extent.
PDX and Seller are independent contracting parties. Nothing in the Terms or any Accepted Order creates any partnership, joint venture, fiduciary relationship, agency, franchise, employment, or relationship other than buyer and independent seller.
Seller is an independent contractor with no authority to bind PDX or make representations, warranties, or commitments for PDX unless expressly authorized in writing. Seller is responsible for performance means and methods, subject to PDX’s specifications, requirements, and instructions.
Neither party may act for, represent, or bind the other except as expressly provided in these Terms or a signed writing. Seller shall not hold itself out, or permit its personnel, subcontractors, or delegates to hold themselves out, as PDX’s agent, employee, partner, or representative.
Seller is responsible for all taxes, withholdings, insurance, permits, licenses, labor, employment, and similar obligations arising from its operations and performance, except as expressly stated otherwise or required by law.
These Terms and each Accepted Order constitute the entire agreement between PDX and Seller for their subject matter and supersede all prior and contemporaneous understandings, negotiations, representations, warranties, communications, proposals, quotations, and agreements, oral or written.
If documents conflict, the following order of precedence applies unless the applicable document expressly states that it controls over a higher-ranking document:
Terms in any Seller acknowledgment, invoice, confirmation, shipping document, click-through, portal term, quotation, proposal, or other document are rejected and have no effect, whether or not PDX objects, unless PDX agrees in a signed writing specifically referencing the modified document or provision.
No waiver, modification, amendment, supplement, or discharge is effective unless in a written instrument signed by an authorized PDX representative, except PDX may issue revised Accepted Orders under these Terms. Seller acknowledges that PDX has not relied on any statement, promise, representation, warranty, or course of dealing not expressly set forth in the documents identified above.
If Seller’s acceptance is conditioned on additional or different terms, it is a rejection and counteroffer unless PDX accepts in writing. Seller’s performance, shipment, or acceptance of payment constitutes acceptance of the Accepted Order and these Terms only, not Seller’s additional or different terms.
Any requirement to comply with law is cumulative and not exclusive of any greater legal obligation. If these Terms or any Accepted Order conflicts with applicable law, law controls only to the minimum extent necessary to resolve the conflict.
These Terms and each Order are interpreted as a single integrated agreement, and, to the extent permitted by law, ambiguities shall not be construed against the drafter solely because of drafting.
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