1. ENTIRE AGREEMENT
These terms and conditions, in combination with the terms and conditions attached to Seller’s invoice, purchase order and/or delivery ticket which are incorporated herein by reference (hereinafter collectively referred to as the “Terms”), represent the entire agreement between the parties. Any terms, including those on any Purchaser purchase order, which are different, conflicting, add to, modify, supersede or otherwise alter the Terms without express written approval signed by an authorized representative of the Seller are hereby rejected.
2. PAYMENT TERMS
If this Contract is accepted, Purchaser agrees to pay in full the invoice price of all purchases now or hereafter made from Seller promptly when due according to the terms set forth in this CONTRACT, without any retention. If the total invoice price is not paid in full on or before the due date, interest will accrue on the unpaid balance at the greater of 1.5% per month or the maximum rate allowed by the state laws of Seller’s principle place of business, whichever is greater. If Purchaser should fail to fulfill any of its obligations under this Contract, or if Seller in good faith deems itself insecure because the prospect for payment is impaired or the prospect of performance of any provision of this Contract is impaired, or if a default occurs for any other reason provided in this Contract, then Seller, at its option and without notice, may declare the entire unpaid balance owed by Purchaser under this Contract to be immediately due and payable, or terminate the credit privileges of Purchaser under the Contract, or both. Purchaser agrees to pay in full all costs and expenses incurred by Seller in collecting the amounts owed by Purchaser under this Contract, including any and all court costs, attorneys’ fees and collection costs. Payments received will be applied against items on unpaid invoices in an order and sequence determined by Seller in its sole discretion. Checks returned unpaid by your bank are automatically deposited a second time in an effort to clear your payments before they are returned to Seller. Returned checks regardless of the reason, are subject to a service charge in an amount not to exceed applicable law.
3. DELIVERY OF MATERIALS
Unless otherwise agreed in writing, prices include delivery F.O.B. Job Site. “F.O.B. Job Site” means trucks carrying maximum legal loads operating under their own power, with delivery as close to the job or accessible storage area as Seller deems practical. Purchaser shall provide suitable access for Seller’s delivery trucks (without pushing or towing of the truck), traffic control and labor (at least two (2) men) to assist in the off-loading of materials. Purchaser agrees that the receiving/installation location will be properly prepared and ready to receive the materials at the time specified in writing. Standby time in excess of one (1) hour from the time of arrival of Seller’s trucks at the designated point will be at Purchaser’s expense and charged to its account.
4. RISK OF LOSS
When materials are sold “F.O.B. Plant,” delivery of materials therefor shall be accomplished at Seller’s plant, and Purchaser shall bear all risks of loss, damage, injury or liability associated with transportation and placement of materials. When materials are specified to be sold “F.O.B. Job Site,” delivery shall be accomplished at agreed upon Purchaser job site, and Purchaser bears all risk of loss or damage to the materials once delivered by Seller.
5. SECURITY INTEREST
Purchaser hereby grants Seller a security interest in all products, materials, component and related parts sold hereunder, whether or not the same become fixtures. Should Purchaser fail to pay all or portions of any amounts due and payable hereunder, breach this Contract or otherwise default, Seller shall have all rights and remedies as a secured party available to it under law or equity including but not limited to rights of self-help (i.e., without notice) to repossess all or any portion of such materials.
6. PRE-ENGINEERED PRODUCTS
Unless otherwise agreed to by Seller in writing, all materials sold by Seller hereunder are pre-engineered products manufactured in accordance with standard catalog data, and are not intended for unusual or specific Contracts. If Purchaser requires specially engineered materials, Purchaser must approve in writing all applicable specifications and drawings for such specially engineered materials before Seller will commence production of the same.
7. WARRANTY, DISCLAIMER LIMITATIONS ON LIABILITY
Unless otherwise agreed to in writing by both parties, Seller warrants only that, for a period of one (1) year after installation, Seller products or materials sold hereunder shall be free from material defects in workmanship. Any failure by Purchaser to timely pay any or all amounts due hereunder shall automatically void this express warranty made by Seller. No agent, employee or representative of Seller has authority to bind Seller to any affirmation, representation or warranty concerning any products or materials sold to Purchaser, unless and until said affirmation, representation or warranty is expressed in writing and signed by an authorized Seller representation. The description of the goods contained herein is the sole basis for this agreement, and no statements or representations other than those embodied herein have been made or relied upon.
Except as expressly provided herein, SELLER does not make and specifically excludes and disclaims all other warranties, whether express, implied, or arising by trade usage or course of dealing, including without limitation, any and all implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any implied indemnities. In no event will SELLER be liable for any indirect, consequential, special, punitive or incidental damages (including but not limited to damages for lost profits, business interruption, and loss of business information) arising out of the use, inability to use or failure of any materials or products sold hereunder, even if SELLER has been advised of the possibility of such damages. ANY DEFECTS CAUSED BY IMPROPER USE, DESIGN, INSTALLATION OR MAINTENANCE VOICE ANY AND ALL WARRANTIES EXPRESSED OR IMPLIED, AND WHICH OTHERWISE APPLY. IT IS AGREED THAT SELLER SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES WHICH EXCEED THE INVOICE PRICE OF ANY MATERIALS WHICH ARE DETERMINED TO BE DEFECTIVE OR NON-CONFORMING.
8. LIMITED REMEDY
For Defective Products/Materials. Should the products or materials sold hereunder breach the limited warranty made by Seller in Section 7 above, Purchaser must provide written notice to Seller of such breach within forty-eight (48) hours of Purchaser’s initial knowledge of said defect. Purchaser hereby waives and relinquishes all actions and claims for replacement and repair thereof if Purchaser fails to deliver such written notice within the applicable 48-hour period. Upon Seller’s receipt of timely written notice, Seller’s sole obligation and Purchaser’s exclusive remedy shall be the repair or replacement of the defective products or materials within a commercially reasonable period of time. Under no circumstances shall Seller be liable for any liability, damages or costs due to delays in the approval, delivery or installation of any Seller products or materials. Purchaser understands and agrees that “but for” this limited remedy and Seller’s limitations on liability as stated in Section 6 above, Seller would not be able to sell its products and materials to Purchaser at the agreed prices and that the warranty disclaimers, the limitations on liability, and the limited remedy described in this Section 8 constitute an agreed allocation of risk between Purchaser and Seller.
Purchaser agrees to defend, indemnify and hold Seller harmless from and against all claims, losses, damages, penalties, costs and/or expenses for damage to property of whatsoever kind or nature, or injury to persons arising out of performance under this Contract by Purchaser, its agents or employees. Purchaser’s duty to indemnify Seller for liability and/or damages arising out of bodily injury to persons or damage to property caused by or resulting from the concurrent negligence of Seller and Purchaser shall apply only to the extent of the negligence of Purchaser, its agents or employees. Purchaser’s indemnification obligations hereunder shall exclude claims, losses, liabilities, costs or expenses for damage to property of whatsoever kind or nature, or injury to persons arising out of performance under this Agreement from the sole negligence of the Seller, its agents or employees.
Purchaser must provide a safe delivery site and comply with all federal, state and local safety laws, rules, ordinances and other requirements. Purchaser shall indemnify and hold harmless Seller, its agents, employees and contractors from, and shall defend any and all actions, claims, suits or proceedings that may subject Seller to liability arising from Purchaser’s failure or inability to properly handle the products or materials, or provide a safe delivery site. Seller agrees that, when its employees, agents or contractors deliver the products or materials purchased hereunder, it and they shall comply with all federal, state and local safety requirements.
11. STOP WORK
If credit conditions become unsatisfactory at any time prior to Seller’s completion of the work hereunder, Purchaser shall furnish adequate security upon Seller’s request. To the extent Purchaser fails to provide adequate security, as determined in Seller’s sole discretion, Seller may stop work.
12. PURCHASER’s BANKRUPTCY
Should Purchaser become bankrupt or insolvent during the terms of this Contract, this Contract shall automatically terminate, provided such termination shall not prejudice Seller’s rights to the amounts then due and owing.
13. GOVERNING LAW
Purchaser acknowledges that all billings, accounts receivable, and credit functions of Seller are processed either through (i) the division or branch office from which Purchaser makes purchases on credit pursuant to the credit granted hereunder; (ii) or any member of the Seller group of affiliated companies; or (iii) any other Seller related administrative entity. Therefore, in the event of arbitration between Seller and Purchaser, the arbitration, at the sole option of Seller, shall take place in any city within any State having proper jurisdiction. Seller and Purchaser agree that the laws of the State in which the Seller branch granting credit hereunder is located shall govern the interpretation of this Contract.
14. MANDATORY BINDING ARBITRATION
ANY DISPUTE ARISING UNDER THIS CONTRACT SHALL BE SUBMITTED TO AND RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH SECTION 15. THE AMERICAN ARBITRATION ASSOCIATION SHALL CONDUCT THE ARBITRATION UNLESS THE PARTIES MUTUALLY AGREE TO USE AN ALTERNATIVE ARBITRATION SERVICE. THE COSTS OF THE ARBITRATION SHALL BE BORNE EQUALLY BY THE PARTIES. JUDGMENT UPON ANY AWARD MADE BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
Purchaser shall not assign this Contract without the prior written consent of Seller. Notwithstanding the foregoing, Purchaser shall have the right to assign this Contract to any person or entity that acquires or succeeds to all or substantially all of Purchaser’s business or assets upon written notice to Seller in accordance with Section 23, so long as the assignee or transferee assumes and continues to fulfill and perform all of the assignor/transferor’s obligations hereunder. Notwithstanding anything contained herein to the contrary, Purchaser shall remain liable for any and all obligations hereunder until Seller acknowledges and approves any assignment in writing.
16. MODIFICATION AND WAIVER
Neither this Contract nor any term or provision hereof may be changed, waived, discharged, amended, modified or terminated orally, or in any manner other than by an instrument in writing signed by both parties hereto. The failure of any party hereto to insist upon strict performance of any of the covenants and agreements herein contained, or to exercise any right or remedy herein conferred, in any one of more instances, shall not be construed to be a waiver or relinquishment of any such right or remedy, or of any other covenants or agreements, but the same shall be and remain in full force and effect.
If any provision of this Contract is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Contract.
18. FORCE MAJEURE
A party is excused from its obligations under this Contract (except for Purchaser’s obligations to pay any monies due and payable to Seller hereunder) to the extent such party (or a third party upon whom such party materially relies) sustains a loss by strike, fire, flood, windstorm, accident, act of God or other similar or dissimilar calamity or occurrence out of the reasonable control of such party which materially interferes with the conduct of such party’s business, regardless of whether or not any such loss has been insured.
19. RELATIONSHIP OF THE PARTIES
Nothing contained in this Contract shall be deemed or construed by the parties hereto or by any third person to create the relationship of principal and agent or partnership or of any association between any of the parties hereto other than independent contracting parties.
20. COMPLIANCE WITH LAWS
Purchaser must comply with all federal, state and local laws, codes, regulations and ordinances. Purchaser agrees to pay all applicable fees, licenses and taxes, including sales and use taxes and inspection costs.
21. NOTIFICATION OF CHANGE IN OWNERSHIP
Purchaser hereby agrees to notify Seller, in writing, thirty (30) days prior to any change in ownership, name or business structure of Purchaser and further agrees to be jointly and severally liable for all purchases by the new business structure and/or owners should said notification not be given. Seller may, regardless of the terms herein or on any invoice, require all outstanding account balances be paid in full on demand upon change in ownership and/or business structure, and may refuse to make further sales or extend credit pending approval of the new business structure’s/owners’ credit, which approval shall be at Seller’s sole discretion.
22. EXPORT RESTRICTIONS
You acknowledge that the Products of Oldcastle Infrastructure Inc are subject to U.S. export jurisdiction. You have access to and agree to comply with all U.S. and international laws that apply to Oldcastle Products, including the U.S. Export Administration Regulations (EAR), as well as end user, end-use, and destination restrictions issued by U.S. and other governments and hereby give Oldcastle the assurances called for in Part 794 of the EAR.