1 — Applicability & Acceptance

 

1.1 Applicability

All purchases of Goods and Services ("Products") by Hawk Construction, LLC or Hawk Precast, LLC (collectively, "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 Purchase ("Agreement"). This Agreement, including any terms, specifications, descriptions, or other information on the face of Purchaser's Purchase Order ("Order"), constitutes a binding contract upon the terms and conditions herein when accepted by Seller, whether acceptance is by acknowledgment, by commencement of work, shipment, or performance. This Agreement supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, and communications, whether written or oral.

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1.2 Controlling Terms

This Agreement expressly limits acceptance to the terms and conditions stated herein. Any alterations, modifications, additions, or deletions of any terms or provisions of this Agreement made by Seller are expressly rejected and will not be binding upon Purchaser unless expressly accepted in a writing signed by an authorised representative of Purchaser. Purchaser hereby objects to and rejects any additional or different terms proposed by Seller. If any of Seller's prior proposals, quotations, or writings conflict with the terms of the Order or this Agreement, the terms hereof shall govern. Seller's use of its own acknowledgment or confirmation form does not modify, add to, or supersede any provision of this Agreement.

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1.3 Acceptance by Performance

Seller's commencement of work on the Goods or Services subject to this Order, shipment of such Goods, or performance of such Services — whichever occurs first — shall be deemed effective acceptance of this Order and these Terms. Silence or continued performance by Seller after receipt of Purchaser's Order shall constitute Seller's acceptance of the price and all other terms stated therein.

 

2 — Price Certainty & Written Confirmation

 

2.1 Binding Price

All pricing is subject to Purchaser's written acceptance. Any quotation, proposal, verbal statement, text message, e-mail, or other communication from Seller that has not been expressly incorporated into Purchaser's Purchase Order or expressly accepted in a writing signed by an authorised representative of Purchaser shall be non-binding on Purchaser.

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2.2 Price Increases

Seller shall not increase the price stated on Purchaser's Purchase Order unless Seller delivers written notice of the proposed increase to Purchaser at least fifteen (15) days prior to the commencement of manufacture or shipment of the affected Goods or performance of the affected Services. Purchaser shall have the absolute right to cancel the Order without liability if it does not accept the proposed increase in writing within ten (10) days of receipt of such notice.

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2.3 Taxes and Exemptions

Purchaser operates primarily as a lump-sum contractor and anticipates the inclusion of applicable state and local sales taxes on Seller's invoices for Goods and/or Services consumed in its operations. However, if Purchaser provides Seller with a valid, executed Texas Resale Certificate or Tax Exemption Certificate prior to or concurrent with a specific Order, Seller shall not assess or include any such taxes for that exempt Order. If Seller improperly includes taxes on an explicitly exempt Order, Purchaser reserves the absolute right to short-pay the invoice by the tax amount without penalty or breach.

 

3 — Payment Terms & Set-Off

 

3.1 Payment Terms

Payment for the Goods and/or Services covered by any Order will be made as provided on the face of Purchaser's Purchase Order form, or if not specified, payment will be made net forty-five (45) days following delivery of shipment or performance and submission of a compliant invoice by Seller. Each invoice submitted by Seller must reference the applicable Order number and be delivered to the billing address specified on the face of Purchaser's Purchase Order. Sight draft shipments will not be honoured. Should an invoice bear a date prior to the date the Goods and/or Services are received by Purchaser, the payment period shall not begin to run until the date the Goods and/or Services are received.

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3.2 Set-Off and Back-Charges

Purchaser reserves the absolute right to set off any amounts owed by Seller to Purchaser — including back-charges for delays, defective Goods, non-conforming Services, or indemnity claims — against any sum payable to Seller under this or any other Order. Any extra handling charges incurred due to Seller's failure to follow instructions in filling an Order will be billed back to Seller.

 

4 — Delivery & Packaging

 

4.1 Delivery Schedule

Time is of the essence with respect to all Orders made under this Agreement. Delivery is subject to any schedule and/or specifications, including 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 such Order, or any part thereof, without charges and without prejudice to its other rights. Purchaser may return part or all of any shipment made in breach of schedule and may charge Seller with any loss or expense sustained as a result of such failure to deliver.

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4.2 Advance Shipments

Any shipment made in advance of schedule, at Purchaser's option, will be: (a) accepted, but entry of invoice deferred until the shipment was scheduled to be made; or (b) returned to Seller at Seller's expense.

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4.3 Packaging and Labelling

Seller shall package all shipments in suitable containers to permit safe transportation and handling. Each delivered shipment must be labelled and marked to identify contents without opening. All containers must contain packing sheets listing contents. Purchaser's Order number must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading.

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4.4 Delay and Consequential Damages — Flow-Down

Seller acknowledges that Purchaser is procuring these Goods and/or Services to fulfil obligations under contracts with third-party customers. In the event of Seller's late delivery, delivery of non-conforming Goods, or other breach, Seller shall be fully liable to Purchaser for all direct, incidental, and consequential damages arising therefrom. This explicitly includes, but is not limited to, any liquidated damages, daily standby fees, crew downtime costs, or project delay penalties assessed against Purchaser by its customer as a result of Seller's failure. Purchaser reserves the absolute right of set-off against any current or future Seller invoice to recover such damages.

 

5 — Inspection, Acceptance & Warranties

 

5.1 Inspection and Right to Reject

All Goods and/or Services provided by Seller will be subject to final inspection and acceptance by Purchaser within a reasonable time after receipt at the location designated in the Order, irrespective of prior payment. Purchaser may reject any Goods and/or Services, or any portion thereof, that are not in conformance with the Order. Any non-conforming Goods and/or Services may be rejected or returned to Seller at Seller's risk and expense, at full invoice price plus applicable transportation charges. Seller will replace or correct any non-conforming or defective Goods and/or Services upon Purchaser's request.

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5.2 Express Warranties

Unless otherwise agreed to in writing, Seller expressly warrants that all Goods and/or Services provided to Purchaser: (a) conform to the terms and conditions of the Order; (b) if ordered to specifications, strictly conform to those specifications and to any drawings, samples, or other descriptions furnished by Purchaser; and (c) if not ordered to specifications, are fit and sufficient for the purposes intended, and — unless otherwise agreed in writing — are new and not used or refurbished. Seller further expressly warrants that all Goods and/or Services will be merchantable, of good material and workmanship, free from defect, and free from any security interest or other lien.

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5.3 Survival of Warranties

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. These warranties are not exclusive and are in addition to any other warranties, express or implied, available at law or in equity.

 

6 — Cancellation

 

6.1 Purchaser's Right to Cancel

Purchaser reserves the right to cancel this Order in whole or in part in respect of Goods and/or Services not yet shipped or performed, without incurring liability, by written notice to Seller before such shipment or performance — unless such Goods were specifically manufactured to Purchaser's specifications. For custom-manufactured Goods, upon Purchaser's cancellation notice, Seller shall cease work and follow Purchaser's directions as to disposal of work in progress and finished Goods. Purchaser shall reimburse Seller for documented actual costs incurred prior to the cancellation notice — but in no event shall Purchaser be liable for lost profits, overhead recovery, or any other consequential damages on cancelled custom Goods.

 

7 — Force Majeure

 

7.1 Excused Performance

Purchaser shall not be responsible for failure to receive delivery if occasioned by unforeseeable causes beyond its reasonable control that make such receipt commercially impractical, including without limitation: acts of God, fire, flood, acts of war, government action, accident, labour difficulties or shortage, or inability to obtain materials, equipment, or transportation. At Purchaser's option, the total quantity covered by the Order may be reduced to the extent of shipments refused, or the delivery period extended by a time equal to that during which shipments were refused, and such shipments thereafter made during the period of extension.

 

8 — Indemnification & Patent

 

8.1 General Indemnification

Seller agrees to defend, indemnify, and hold harmless Purchaser, its employees, agents, affiliates, successors, assigns, customers, and users of the Goods and/or Services ordered herein, against all damages, claims, 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 ordered herein — or resulting from or relating to any actual or alleged breach of Seller's obligations hereunder or other acts, including acts of omission, of Seller, its officers, agents, employees, or subcontractors. Upon notification of any such suit or claim, Seller shall defend the same at Seller's expense and shall be responsible for all reasonable attorneys' fees incurred by Purchaser. This indemnity shall survive delivery and acceptance and shall apply without regard to whether the claim is based on breach of contract, breach of warranty, negligence, strict liability, or other tort. This indemnification obligation shall be construed and limited to the fullest extent permitted by the Texas Anti-Indemnity Act.

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8.2 Patent Indemnification

Seller agrees to defend, indemnify, and hold Purchaser, its successors, assigns, customers, and users of the Goods and/or Services harmless against any loss, damage, or liability — including costs, expenses, and reasonable attorneys' fees — arising from any claim, demand, suit, or judgment involving infringement or alleged infringement of any patent rights, trade names, trade secrets, or other proprietary rights of a third party in the manufacture, use, or disposition of any Goods and/or Services supplied hereunder. Purchaser shall notify Seller of any such claim and, to the extent possible, Seller shall be permitted to defend or settle it. Should Purchaser's use of any Goods and/or Services be enjoined or threatened by injunction, Seller shall, at its sole cost and expense: (a) substitute fully equivalent non-infringing Goods and/or Services; (b) modify the Goods and/or Services so they no longer infringe but remain fully equivalent in functionality; (c) obtain the right to continue use; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods and/or Services.

 

9 — Insurance

 

9.1 Seller's Insurance

In connection with the purchase of any Services or the installation of Goods, Seller shall maintain at its own expense: workers' compensation insurance at statutory limits; commercial general liability insurance in amounts satisfactory to Purchaser; and, if applicable, commercial auto liability insurance. Prior to the initiation of any work on premises owned or leased by Purchaser, or in conjunction with contracted projects of Purchaser, Seller shall present certificates of insurance (COI) in form and content reasonably satisfactory to Purchaser. Seller shall provide a COI listing Purchaser as additional insured and provide any required endorsements, including a waiver of subrogation in favour of Purchaser.

 

10 — Confidentiality

 

10.1 Confidential Information

If Seller acquires knowledge of any Purchaser Confidential Information in connection with its performance hereunder, Seller agrees to keep such information strictly confidential during the term of the Order and for a period of three (3) years following the completion, fulfilment, or expiration of the Order. "Purchaser Confidential Information" includes all information, whether written or oral, in any form, relating to research, development, products, specifications, drawings, blueprints, samples, methods of manufacture, trade secrets, business plans or practices, customers, vendors, finances, personnel data, work product, and other proprietary material relating to Purchaser's current or anticipated business. Seller agrees not to copy, alter, or disclose any Purchaser Confidential Information, and to limit internal distribution to those employees with a need to know. Seller shall use no less than reasonable care — and no less than the degree of care it uses to protect its own information of like kind — to prevent unauthorised use or disclosure. 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.

 

11 — Compliance, Employment & Independent Contractor

 

11.1 Safety and Employment Laws

Seller agrees at its own expense to comply with all applicable federal and state employment, safety, environmental, and health laws — including OSHA — and assumes all liabilities or obligations imposed by any such laws with respect to this Order.

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11.2 Independent Contractor

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. This Order does not create an exclusive relationship between Purchaser and Seller.

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11.3 Equal Opportunity

Purchaser and Seller are each equal opportunity employers and shall each comply with applicable anti-discrimination laws in connection with this Order.

 

12 — Legal Provisions

 

12.1 Governing Law

This Agreement and all Orders issued hereunder shall be governed in all respects by the laws of the State of Texas, including the Texas Uniform Commercial Code where applicable, without giving effect to conflict of laws principles that would require the application of any other jurisdiction's substantive laws.

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12.2 Dispute Resolution

Before initiating arbitration, the Parties shall attempt to resolve any dispute arising out of or relating to this Agreement through mediation administered by the American Arbitration Association in McKinney, Collin County, Texas, within thirty (30) days of written notice of a dispute. Mediation costs shall be shared equally. Any controversy or claim not resolved by mediation shall be settled by binding arbitration administered by the AAA under then-current Commercial Arbitration Rules, before a single arbitrator in McKinney, Collin County, Texas. Judgment on the award may be entered in any court having jurisdiction. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL. If this arbitration provision is deemed invalid, the venue for any proceedings shall be exclusively in the state and federal courts of Collin County, Texas.

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12.3 Notice

All notices, requests, and other communications under this Agreement shall be in writing and delivered by: (a) email to the address shown on the face of the applicable Order, with confirmation of receipt; or (b) overnight courier to the billing address on the Order. Notices are effective upon confirmed receipt.

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12.4 No Waiver

No failure or delay by Purchaser in exercising any right or remedy under this Agreement shall operate as a waiver thereof. No waiver shall be effective unless made in a writing signed by an authorised representative of Purchaser.

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12.5 Severability

If any provision of this Agreement is found invalid or unenforceable, the remaining provisions shall continue in full force and effect without impairment.

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12.6 Entire Agreement

This Purchase Order, together with these Terms and Conditions of Purchase and any attachments expressly incorporated herein, constitutes the entire and exclusive agreement between the Parties with respect to the subject matter of the Order. No prior or contemporaneous oral or written understandings, course of performance, course of dealing, or usage of trade shall modify, supplement, or explain these terms. Any modification or addition must be in a writing signed by an authorised representative of Purchaser.