KGO PURCHASE AGREEMENT TERMS

CONTRACT DOCUMENTS.  The Contract Documents consist of the Agreement to which these Terms and Conditions are attached for KGO Stone and the Buyer.  

PAYMENT TERMS.  Unless otherwise stated and/or per project basis agreements are made, payment for all Materials shall be due in full from KGO Stone’s invoice before any material moves. In the event that such agreements are made, invoices will be issued as agreed on initial cost estimates. In the event an invoice becomes overdue, then:  (a) a monthly service charge of the lesser of one and one-half percent (1.5%) or the maximum allowed by law shall be due and payable by Buyer on the outstanding invoiced balance; and (b) at its sole option, KGO Stone may cease production and/or shipments of all Materials until the overdue invoice is paid in full.  In the event that KGO Stone incurs any charges in collecting any amounts past due from Buyer or in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions or provisions of the Agreement will be the sole responsibility of the buyer.

DELIVERY, SHIPPING, RISK OF LOSS.  Shipment is F.O.B. common carrier from the quarry or fabrication facility. KGO Stone shall be the sole judge of the means, methods, and technique to package and load materials. Buyer shall bear the risk of loss for the Materials at all times after they have been put into the possession of the common carrier.  KGO Stone will make all reasonable efforts to ship the Materials in accordance with the schedule attached to the Agreement. KGO Stone is not responsible for any delay in shipping or delivery unless such delay is caused solely by KGO. KGO reserves the right to ship the Materials in partial shipments.  Buyer shall promptly unload the Materials upon arrival at the Project site.  If, for any reason, Buyer fails to accept or receive shipments, Buyer shall pay KGO Stone for loading and freight charges and storage fees as applicable. 

WARRANTY.  KGO STONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, and KGO makes no express warranty other than that the Materials shall conform to the requirements set forth in the Contract Documents. 

                Buyer shall bear the risk of loss for the Materials at all times after they have been in the possession of the common carrier. However, if the Materials are damaged during transit, and Buyer provides notice to KGO in accordance with this paragraph, KGO may, at its sole option, repair or replace damaged Materials on the condition that Buyer shall assign to KGO its right, title and interest in its claim against the common carrier for such damage.  

                Buyer shall inspect the Materials for missing items and damaged pieces before unloading same and record identification numbers and markings of damaged or missing items on the original freight receipt and shipping list and obtain the countersignature of freight carrier's agent on same.  Failure to do so shall be deemed an acknowledgment by Buyer that Materials were received and accepted in satisfactory and undamaged condition.  Wear, decomposition and damage caused by use of chemicals, abrasives, tools and equipment or techniques utilized in moving, lifting or storing Materials at the site shall not constitute defects or give rise to any claim against KGO Stone.  In any event, Buyer shall assume and pay all demurrage charges if material is not unloaded promptly upon its arrival at the Project site/ Stock yard.
Buyer must give KGO written notice of any defective Materials within 48 hours (2) days after delivery thereof.  Upon receipt of such notice, KGO Stone may, at its sole option: (1) repair or replace items proven to be defective, or (2) authorize Buyer to repair same, or (3) refund the price allocable thereto.  KGO shall have a period of five (5) days after receipt of Buyer’s notice within which to investigate and notify Buyer of the corrective action to be undertaken or authorized by KGO, during which Buyer shall keep the item in the same condition in which it was received.  If KGO elects to replace an item, it shall be afforded a reasonable period of no less than ten (10) days to do so. The remedy provided herein shall be the sole and exclusive remedy under this warranty.

LIMITATION OF LIABILITY.  KGO Stone shall not be liable for any indirect, incidental, consequential, special, punitive, or similar damages arising out of or in any way related to KGO's sale of the Materials to Buyer.  In no event shall KGO's aggregate liability to Buyer arising out of or in any way related to KGO's sale of the Materials to Buyer exceed the Price of the Materials.  Any action against KGO arising out of or in any way related to KGO's sales of the Materials to Buyer must be brought within 60 days (2) months after the date of the Agreement.

CANCELLATION FOR BREACH, TERMINATION.  Buyer and KGO Stone shall both be entitled to cancel all or any part of the Agreement, without liability to the other, if the other: (a) repudiates or breaches any of the terms of the Agreement; (b) commences reorganization proceedings, becomes insolvent or files a voluntary or involuntary petition in bankruptcy or for reorganization or arrangement under any bankruptcy act or law for the relief of debtors in the United States, has appointed a receiver for its property; or makes an assignment for the benefit of its creditors; or takes any similar action such as requesting such assignment or a composition of creditors; or voluntarily or involuntarily dissolves; or (c) assigns or transfers more than 50% of the total equity ownership or voting rights of any entity constituting the party or sells or transfers all or substantially all of its assets outside of the ordinary course of business.  The Agreement shall terminate, at the sole option of KGO, immediately If KGO’s cost of producing any Materials exceeds the Price set forth in any Agreement. Upon termination by Buyer under this Section, Buyer shall pay to KGO the following amounts without duplication: (i) the  portion of the Price attributable to any finished work not previously paid for and (ii) KGO's reasonable cost of any work-in-process.

DISPUTE RESOLUTION, JURISDICTION.  Any dispute, controversy, or claim arising out of or related to the sales of the Materials by KGO Stone shall be settled by arbitration held in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect except as specifically provided herein.  Each party shall submit to the in personam jurisdiction of the federal and state courts in Clark County, Washington for the purposes of confirming and entering judgment on any such award.

FORCE MAJEURE.  Either party's failure or inability to perform its obligations under the Agreement, if caused by "force majeure" as hereinafter defined, shall not constitute a default hereunder or subject the party affected by force majeure to any liability to the other.  If KGO Stone is unable to perform due to force majeure, it shall not be obligated to procure, or to use its best efforts to procure, any quantity of goods sold hereunder from any alternate producer or supplier.  As used herein, the term "force majeure" shall mean and include any act of God, nature or the public enemy, accident, explosion, fire, storm, earthquake, flood, drought, strikes, lockouts, labor disputes, riots, sabotage, embargo, war, federal, state or municipal legal restriction or limitation or compliance therewith, failure or delay of transportation, shortage of, or inability to obtain raw materials, supplies, equipment, fuel, power, labor, or other operational necessity, interruption or curtailment of power supply, or any other circumstance of a similar or different nature beyond the reasonable control of the party affected thereby. In this connection, a party shall not be required to resolve labor disputes, or disputes with suppliers of raw materials, supplies, equipment, fuel or power except in accordance with such party's business judgment as to its best interest.

INDEMNIFICATION.  Buyer agrees to indemnify and hold KGO Stone harmless from any and all third-party claims, demands, or causes of action, related to or arising from the Materials or sale of the Materials to Buyer and to reimburse KGO Stone for all costs and expenses (including reasonable attorneys' fees) KGO Stone incurs in connection with any such claims, demands or causes of action.

AGREEMENT TIMELINE.  From signed dates and as mutually agreed, each sale is a contract that is valid for 365 days (1) year, with both parties reserving the rights for additional time.