Term and Conditions of Purchase
All purchases of goods and services (“Products”) by Hawk Construction LLC or Hawk Precast LLC (“Purchaser”) from seller and its parents, subsidiaries, affiliates, or business units (collectively, “Seller”) are expressly conditioned upon Seller’s acceptance of these Terms and Conditions of Sale (this “Agreement”).
This Agreement, including any terms, specifications, descriptions or other information on the face of Purchaser’s purchase order form, as well as those submitted on or with Purchaser’s order for goods and/or services hereunder (the “Order”) constitutes a binding contract upon the terms and conditions herein when accepted by Seller, whether acceptance is by acknowledgment, by commencement of shipments, or otherwise. If any of Seller’s prior proposals, quotations, or writings conflicts with the terms of the Order or this Agreement, the terms hereof shall govern. Purchaser recognizes that Seller may, for operating convenience, utilize its own form of acknowledgment or confirmation of sale in accepting any Order; in such case, any provisions, terms or conditions in such form of acceptance which modify, conflict with, contradict or add to any provision, term or condition of this Agreement, shall be deemed to be waived (unless expressly accepted in writing by Purchaser), it being agreed that the provisions, terms, and conditions of this Agreement constitute the entire Agreement between the Parties. Not in limitation of the foregoing, this Agreement expressly limits acceptance to the terms and conditions of this Agreement. and any alterations, modifications, additions or deletions of any terms or provisions of this Agreement made by Seller are hereby rejected and will not be binding upon Purchaser unless expressly accepted in writing by Purchaser.
Time is of the essence with respect to all Orders made under this Agreement. Delivery is subject to any schedule and/or specifications including, without limitation, any designations as to location of delivery, contained in any Order. In the event of Seller’s failure to deliver and/or perform as and when specified, Purchaser reserves the right to cancel any such Order, or any part thereof without charges therefor, without prejudice to its other rights, and Seller agrees that Purchaser may return part or all of any shipment so made and may charge Seller with any loss or expense sustained as a result of such failure to deliver. Any shipment made in advance of schedule, at Purchaser’s option, will be (a) accepted but entry of invoice will be deferred until shipment was scheduled to be made, or (b) returned to Seller at Seller’s expense. Seller shall package all shipments in suitable containers to permit safe transportation and handling. Each delivered shipment must be labeled and marked to identify contents without opening and all containers must contain packing sheets listing contents thereof. Purchaser’s Order number and Seller’s vendor number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.
EXTRA HANDLING CHARGES
Any extra handling charges incurred due to the failure of Seller to follow instructions in filling an Order under this Agreement will be billed back to Seller.
Payment for the goods and/or services covered by any Order under this Agreement will be made as provided on the face of Purchaser’s purchase order form or if not specified payment will be made 45 days following delivery of shipment or performance and submission of invoice by Seller complying with the terms of the Order. Each invoice submitted by Seller must reference the applicable Order and should be delivered to the billing address specified on the face of Purchaser’s purchase order form. Purchaser will be offered and may take Seller’s customary cash discount. Should an invoice bear a date prior to date the goods and/or services are received by Purchaser, the time during which discount for payment of invoices is allowed shall not begin to run until the date the goods and/or services are received by Purchaser. Sight draft shipments will not be honored.
All goods and/or services provided by Seller will be subject to final inspection and acceptance by Purchaser within a reasonable time after receipt by Purchaser at the location designated in this Order, irrespective of prior payment. Purchaser may reject any goods and/or services, or portion of goods and/or services provided by Seller that are not in conformance with its Order. Any such goods and/or services, or portion of goods and/or services may be rejected or returned to Seller at Seller’s risk and expense, and at full invoice price plus applicable transportation charges. Seller will replace or correct any non-conforming or defective goods and/or services to Purchaser upon Purchaser’s request.
Unless otherwise agreed to in writing by the parties, Seller expressly warrants that all goods and/or services provided to Purchaser conform to the terms and conditions of Seller’s Order. If goods and/or services are ordered to specifications, Seller expressly warrants that such goods and/or services strictly conform thereto and to any blueprints or drawings, samples or other description furnished by Purchaser in connection with Seller’s Order or, if not ordered to specifications, such goods and/or services will be fit and sufficient for the purposes intended and, unless otherwise agreed to in writing by Purchaser, will be new and not used or refurbished. Seller further expressly warrants that all goods and/or services provided by Seller in connection with this Agreement will be merchantable, of good material and workmanship, free from defect, and not subject to any security interest or other lien. These warranties shall survive acceptance and payment and shall run to Purchaser, its successors, assigns, customers and the users of the goods and/or services ordered herein and shall not be deemed to be exclusive.
Purchaser reserves the right to cancel this Order in whole or in part in respect to goods and/or services covered by this Order and not shipped or performed prior to such cancellation, without incurring liability, by written notice to Seller, before such shipment or performance, unless such goods were specifically manufactured to specifications of Purchaser. In the latter case, provided that Seller is not otherwise in default hereunder, Seller shall, unless otherwise directed, cease work and follow Purchaser’s directions as to disposal of work in progress and finished goods.
Seller agrees to defend and save harmless Purchaser, its employees, agents, affiliates, successors, assigns, customers or users of the goods and/or services ordered herein, against all damages, claims or demands and all suits at law or in equity arising out of or related to any actual or alleged injury to any person, including death, damage to any property, defect in any goods or any other damage or loss alleged to have resulted from the goods and/or services hereby ordered or resulting from or relating to any actual or alleged breach of any of Seller’s obligations hereunder or other acts, including acts of omission, of Seller, its officers, agents, employees, or subcontractors, and upon notification of any such suit or claim to Seller, Seller shall defend the same at Seller’s expense as to all costs, fees, and damages, and shall be responsible for all reasonable attorneys’ fees incurred by Purchaser. This indemnity shall survive the delivery and acceptance of any goods, materials or services and shall apply without regard to whether the claim, damage, liability or expense is based on breach of contract, breach of warranty, negligence, strict liability, or other tort. Purchaser may set off any amount owed to it by Seller against any sum payable hereunder by Purchaser to Seller.
Seller agrees to defend, indemnify and hold Purchaser, its successors, assigns, customers, and the users of the goods and/or services ordered herein, harmless against loss, damage or liability including costs, expenses and reasonable attorneys’ fees which may be incurred on account of any claim, demand, suit or judgment involving infringement or alleged infringement of any patent rights, trade names or trade secrets or other proprietary right of a third party in the manufacture, use or disposition of any goods and/or services supplied hereunder, provided Purchaser shall notify Seller of any such claim, demand or suit and to the extent possible, Seller shall be permitted to defend the same or make settlement in respect thereof. Should Purchaser’s use, or use by its distributors, subcontractors or customers, of any goods and/or services purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at its sole cost and expense, either (a) substitute fully equivalent non-infringing goods and/or services; (b) modify the goods and/or services so that they no longer infringe, but remain fully equivalent in functionality; (c) obtain for Purchaser, its distributors, subcontractors or customers the right to continue using the goods and/or services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing goods and/or services.
Purchaser shall not be responsible for failure to receive delivery if occasioned by unforeseeable causes beyond its control which makes such receipt commercially impractical including, without limitation, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation. At Purchaser’s option the total quantity covered by this Order may be reduced to the extent of shipments refused or the delivery period specified may be extended by a time equal to that during which shipments shall be refused and such shipments thereafter made during the period of extension.
If Seller acquires knowledge of any Purchaser Confidential Information (as defined below) in connection with its performance hereunder, it agrees to keep such Purchaser Confidential Information confidential during and following the fulfillment, completion or expiration of the Order. “Purchaser Confidential Information” includes, but is not limited to, all information, whether written or oral, in any form, including, without limitation, information relating to research, development, products, specifications, drawings, blueprints, nomenclature, samples, models, methods of manufacture, trade secrets, business plans or practices, customers, vendors, finances, personnel data, work product, and other material information considered proprietary by Purchaser relating to the current or anticipated business or affairs of Purchaser which is disclosed directly or indirectly to Seller. Seller agrees not to copy, alter, or directly or indirectly disclose any Purchaser Confidential Information. Additionally, Seller agrees to limit its internal distribution of Purchaser Confidential Information to Seller’s employees who have a need to know such Purchaser Confidential Information, and to take steps to ensure that the dissemination is so limited. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to protect the unauthorized use of Purchaser Confidential Information. Seller further agrees not to use Purchaser Confidential Information except in the course of performing or fulfilling an Order under this Agreement and will not use such Purchaser Confidential Information for its own benefit or for the benefit of any third party. All Purchaser Confidential Information is and shall remain the property of Purchaser. Upon Purchaser’s written request, Seller shall return, transfer or assign to Purchaser all Purchaser Confidential Information and all copies thereof.
Seller is an independent contractor for all purposes without express or implied authority to bind Purchaser by contract or otherwise. Neither Seller nor any of its employees, agents, or subcontractors is an agent or employee of Purchaser. Seller shall be responsible for all costs and expenses incident to performing or fulfilling its obligations under this Order and shall provide Seller’s own supplies and equipment. Seller agrees that this Order does not create an exclusive relationship between Purchaser and Seller, and that Purchaser is free to order any goods and/or services, including similar goods and/or services from any party.
In connection with the purchase of services for the installation of products manufactured by Purchaser, Seller shall furnish evidence of workmen’s compensation and general liability insurance coverage in amounts satisfactory to Purchaser. If Seller performs services, constructs, erects, or inspects on premises owned or leased by Purchaser or in conjunction with contracted projects of the Purchaser, Seller will present certificates of insurance (COI) to Purchaser in form and content reasonably satisfactory to Purchaser, for retention in Purchaser’s files prior to the initiation of such work. Additionally, Seller shall provide a certificate of insurance (COI) listing Purchaser as additionally insured and provide any endorsements, including a waiver of subrogation.
EMPLOYMENT, SAFETY AND HEALTH LAWS
Seller agrees at its own expense to comply with all applicable Federal and State employment, safety, environmental and health laws including OSHA, and Seller assumes all liabilities or obligations imposed by anyone or more of such laws with respect to this Order.
EQUAL OPPORTUNITY EMPLOYER
Purchaser and Seller, and each of them, is an equal opportunity employer.
The contract resulting from the acceptance of this Order shall be interpreted under and shall be governed by the laws of the State of Texas.