Temco Property.  The delivery by Buyer of any tooling, molds, technical specifications or other property of Buyer (“Temco Property”) to Seller is a bailment and is not a consignment, sale or transfer of property to secure a debt. Seller will utilize the Temco Property only as authorized by Buyer and in strict compliance with any written or oral instructions provided by Buyer. The Temco Property shall at all times remain the sole and exclusive property of Buyer. Seller has not and will not acquire any ownership or other rights in the Temco Property. Seller will not affix any labels or markings on the Temco Property and will not remove or alter any Buyer labels, markings, serial numbers or other identifying characteristics on the Temco Property. Until the Temco Property is returned to Buyer’s actual possession, Seller will bear the risk of loss from all causes. If the Temco Property is not returned to Buyer in the same condition as when received by Seller, ordinary wear and tear excepted, Seller will reimburse Buyer for the cost to repair or replace the Temco Property. Buyer may at any time enter on Seller’s premises to obtain possession of the Temco Property. In addition, upon request by Buyer, Seller will at its expense promptly return the Temco Property to Buyer in accordance with Buyer’s instructions.

 

Indemnity.  Seller agrees unconditionally and irrevocably to hold harmless, indemnify and defend Buyer (including its officers, directors, employees, agents and insurers) from, for and against any and all claims, demands, lawsuits, losses, damages, injuries (including personal injury, sickness, death or property damage), expenses (including attorney fees in a bankruptcy or any other proceeding, at trial and on appeal), and other liabilities of any kind or nature, of or to any person or entity (including Buyer), whether in contract, tort, or otherwise, actually or allegedly arising out of or in connection with the negligent performance, nonperformance or breach of this Agreement by Seller (including its employees, agents, contractors, subcontractors and consultants), any nonconformity, defect or breach of warranty as to the goods or services, any violation or infringement by the goods or services of any patent, copyright, trademark, trade secret, nondisclosure agreement, or other proprietary rights of any third party or any dispute under any bankruptcy law.

 

Independent Contractor.  Seller is an independent contractor, and no employment, partnership, or joint venture relationship shall be deemed to exist between Buyer and Seller or Seller’s employees or agents.

 

Security Agreement.   Seller hereby grants to Buyer a continuing security interest in all or any part of the goods, whether or not completed, that are identifiable to this Agreement to secure all obligations of Seller under this Agreement, even if such goods have not yet been delivered to Buyer. In addition to any other rights and remedies available to Buyer, Buyer shall be entitled to all rights and remedies available to secured parties under the Uniform Commercial Code.

 

Assignment.  Seller shall not delegate or subcontract any of its duties or obligations, or assign any rights or claims under this Agreement, without the prior written consent of Buyer. Any attempted delegation or assignment shall be void. This Agreement shall inure to the benefit of and bind the parties, their successors and permitted assigns.

 

Waiver.  No delay or omission in the exercise of any right or remedy shall be deemed a waiver of any right or remedy. No waiver of any term, condition, default, breach, right or remedy under this Agreement shall be valid or binding unless executed in writing by the party making the waiver. No waiver shall constitute a waiver of any other term, condition, default, breach, right or remedy under this Agreement, nor shall any waiver constitute a continuing waiver.

 

Modification.  No term or condition of this Agreement shall be amended, supplemented, or modified except by a writing signed by the party against whom enforcement is sought.

 

Severability.  If a court of competent jurisdiction or arbitrator finds any term or condition of this Agreement to be invalid or unenforceable for any reason as to any person or circumstance, then the term or condition shall continue in effect only to the extent that it remains valid, and the court's finding shall not render that term or condition invalid or unenforceable as to any other person or circumstance; and all other terms and conditions of this Agreement in all other respects shall remain valid and enforceable.

 

Governing Law; Jurisdiction.  This Agreement shall be governed in all respects by the internal laws of the state of Oregon, without regard to choice-of-law provisions. The parties agree that exclusive jurisdiction over and venue in any legal proceeding arising out of or relating to this Agreement shall be in the state or federal courts located in Multnomah County, Oregon. The prevailing party in any arbitration or other legal proceeding relating to this Agreement will be entitled to recover its costs and expenses, including without limitation, attorney fees (including before trial, at trial and on appeal) in addition to any other costs allowed by law. For purposes of this Agreement, the prevailing party means the party that prevails, either affirmatively or by means of a successful defense, with respect to claims having the greatest value or importance as determined by the court or arbitrator having jurisdiction over the matter.

 

 

Back to Page 1

HOME