Term and Conditions of Sale
All quotations, estimates and sales of goods and products (“Products”) manufactured by Hawk Construction LLC or Hawk Precast LLC (collectively, “Seller”) to buyer and its parents, subsidiaries, affiliates, or business units (collectively, “Buyer”) are expressly conditioned upon Buyer’s acceptance of these Terms and Conditions of Sale (this “Agreement”).
TERMS OF SALE
All sales to Buyer are subject to these Terms and Conditions of Sale, which shall prevail over any inconsistent terms of Buyer’s purchase order or other documents. Buyer agrees that any terms and conditions appearing on any document submitted by Buyer which conflict with (i) the terms and conditions contained herein, (ii) any quotation submitted by Seller, or (iii) any sales contract between Seller and Buyer are hereby expressly rejected and shall not constitute terms of any sale of goods or services by Seller. This Agreement supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, whether written or oral. The foregoing shall apply to all documents heretofore or hereafter submitted by Buyer, whether executed by Seller or not. Modification or alteration of this Agreement must be in writing and signed by an authorized representative of Seller and Buyer. Seller objects to additional or different terms and conditions in any of Buyer’s purchase orders, documentation or correspondence, and those additional or different terms are of no force or effect. By making an order with Seller, Buyer certifies that it is solvent and that it will advise Seller immediately if it becomes insolvent. The provision of services under any order that involves services to be provided by Seller or its subsidiary or affiliate, including but not limited to Hawk Construction LLC or Hawk Precast LLC, shall be governed by Seller’s Terms and Conditions for the Provision of Services.
Seller’s quoted prices are subject to change without notice, and all quotations expire and become invalid if Buyer does not accept them within 30 days from the date of issue. All prices are subject to adjustment upon receipt by Seller of final project plans and/or specifications; any material change in project plans or specifications may result in a change in price or additional fees. Any claims by Buyer related to billing errors or adjustments shall be made in writing to Seller within ten (10) days from the invoice date or they are waived. Any changes by Buyer in quantities, destination, schedule or installation may result in a price adjustment by Seller.
Buyer agrees to pay, and Seller’s prices exclude, all current or future city, county, state, federal, and other taxes (including, without limitation, taxes based on or measured by sale, use, manufacture or shipment) imposed on Products sold to Buyer. If any exemption from any such taxes is available, Buyer shall present an applicable tax exemption certificate or Texas Sales and Use Tax Resale Certificate to Seller before Seller’s first shipment.
Any orders not paid in full in advance are orders on credit and are subject to the Seller’s Credit Application and its Terms and Conditions for Sale on Credit. Payment terms for open credit sales are NET 30 DAYS from invoice date. Open credit sales are any sales to Buyer for which Buyer has not paid Seller in immediately available funds prior to shipment of the Product. Notwithstanding the foregoing, all orders are subject to Seller’s continuing approval of Buyer’s credit. If Seller deems Buyer’s credit unsatisfactory for any reason, Seller may require payment in advance or require that Buyer provide guarantees or other security satisfactory to Seller in its sole discretion. In addition, Seller may in its discretion require an advance deposit of up to 100% of Seller’s selling price for any specially manufactured goods ordered by Buyer hereunder. If Buyer fail to comply with these terms or the conditions of any Order, Seller may cancel any unshipped portion of the Order and exercise any other remedies available under these terms or applicable law, and Buyer shall remain liable for all unpaid amounts due to Seller. Seller does not accept the withholding of any amount of retainage for any balance outstanding, even if retainage is part of a contract between Buyer and a third party. Buyer’s payment to Seller is not contingent on Buyer’s ability to collect or obtain funds from any other party. If Buyer fails to make any payment to Seller when due, Buyer’s entire account(s) with Seller shall become immediately due and payable and Seller may suspend further performance under any order with Buyer. Seller may apply Buyer’s payments against any open charges on Buyer’s account within Seller’s sole discretion and Seller may exercise setoff or recoupment to apply to or satisfy Buyer’s outstanding debt. Seller expressly reserves its right to file liens if payment is not received for its materials and expressly disclaims any waiver of lien rights language which may be contained in any future agreements between the Parties hereto. All past-due amounts shall be subject to an interest charge equal to the lesser of 1.5% per month or the maximum amount permitted by applicable law, and interest continues to accrue after Seller obtains a judgment against Buyer. Notwithstanding anything stated therein to the contrary, any lien waiver or release executed by Seller related to the goods sold under these Terms shall only be effective to the extent payment is received, paid by the drawee bank, and not avoidable as a preference in any action under the United States Bankruptcy Code. Buyer agrees that all funds owed to or received by Buyer from any source, resulting from the labor or material supplied by Seller shall be held in trust for the benefit of Seller. Buyer agrees to promptly pay to Seller all such funds. Upon request, Buyer shall irrevocably assign to Seller its account receivable from anyone to the extent that such is resulting from the labor or materials supplied by Seller.
COST OF ENFORCEMENT
Buyer agrees to pay all costs, expenses, and reasonable attorneys’ fees incurred by Seller in exercising its rights and remedies, or in enforcing a term, condition, or provision of these Terms or any other contract between the Parties.
TITLE AND RISK OF LOSS
Risk of loss with respect to the Products passes to Buyer at the F.O.B. point. Seller will not make adjustments unless Buyer gives Seller a written delivery form listing Product damage or loss, signed by carrier’s agent or driver, within 48 hours after delivery. In any event, Seller will not be responsible for any lost or damaged Products for which Buyer has signed a receipt acknowledging Buyer received such Products in good order. Title to the Product passes to Buyer upon Seller’s receipt of full payment from Buyer for all amounts owed for the Product. As collateral security for the payment of the purchase price of open orders, the Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of the Buyer in, to and under the Products to which title has passed to Buyer, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under applicable law If Seller holds Products per Buyer’s instructions or because Buyer has failed to supply shipping information, Buyer agrees that Seller may invoice Buyer for the Product, and Buyer agrees to make payment in accordance with the invoice terms.
Seller’s shipping dates are estimates based on factory conditions at the time Seller receives Buyer’s Order and are subject to change due to circumstances which occur between the date of Seller’s quotation and Seller’s receipt of Buyer’s Order, or between Seller’s receipt of Buyer’s Order and the date of delivery. Truck deliveries are limited to suitable and accessible locations. All listed delivery dates are estimates only. Seller accepts no liability for late deliveries, including any liquidated damages. Buyer’s acceptance of any Products will constitute Buyer’s waiver of any claim for damages because of any delay in delivery of such Products.
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.
Seller shall not be liable for any failure, damage, or delay in manufacture, shipment, or delivery of Products resulting from a cause beyond Seller’s reasonable control, including, but not limited to: acts of God, provisions of law, governmental action or regulations, accident, explosion, fire, weather, flood or other casualty, strike, lockout, or other labor difficulty, civil unrest or riot, war, acts of terrorism, insurrection, or scarcity of labor, raw material, production facilities or transportation. Upon occurrence of any such event, the time for Seller’s performance shall be extended reasonably, the purchase price shall be adjusted for any increased costs to Seller resulting therefrom, and Buyer shall not be entitled to any other remedy.
Buyer shall inspect the Products immediately on the arrival thereof and within seven (7) days after arrival shall give written notice to Seller of any matter by reason whereof it may allege that the Products are not in accordance with the Agreement. If Buyer shall fail to give such notice, the Products shall be deemed to be in all respects in accordance with the agreement terms. All Products made to special specifications are deemed to be inspected and accepted before shipment is made and may not be canceled.
CANCELLATION AND CHANGES
Buyer may not cancel or change any Order the Buyer has placed unless agreed to in writing by an authorized representative of Seller, and Buyer will remain responsible for any costs incurred by Seller prior to or because of such cancellation or change. In the event of any change, Seller shall be entitled to revise its prices and delivery schedules to reflect such change. If Buyer attempts to cancel or change any Order without Seller’s consent, without limiting any other remedies available to Seller, Buyer shall pay to Seller within fifteen (15) days of such cancellation or change (i) the contract price, including applicable taxes, for all Products which have been completed prior to Seller’s actual receipt of Buyer’s notice of cancellation or change, (ii) all costs and other expenses incurred by Seller for uncompleted items, and (iii) a cancellation charge in an amount not to exceed 25% of the purchase price of the applicable Order. In addition, Buyer agrees to pay reasonable storage fees if materials are stored on Seller’s yard more than sixty (60) days after Seller is ready for delivery.
Buyer shall not return Product to Seller without Seller’s prior written consent, which may be granted or withheld in Seller’s sole discretion. If Seller consents to Buyer’s return of Product, Seller will accept returned Product for credit if, in its sole discretion, it finds such Product to be in good and resaleable condition. Such credit shall be the invoice price of the returned Product less 45% as a restocking fee on acceptable Product, and less all shipping and handling charges. If such Product is not in good and resalable condition, as determined in Seller’s sole discretion, the credit given to Buyer shall be the scrap value of the Product less all shipping and handling charges.
Seller is not responsible or liable for the adequacy or performance of engineering, design, or specifications furnished by Buyer.
Seller warrants that its Products will conform to the description and specifications in Buyer’s Order(s) for them for a period of one (1) year from the date such Product is received at the FOB point; provided, however, that Seller reserves the right to furnish thicker (wall) Product than Buyer’s order without prior notice to Buyer if it meets all other specifications in Buyer’s Order(s). THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, STATUTE OR OTHERWISE, OR IMPLIED BY INDUSTRY OR TRADE CUSTOM, COURSE OF DEALING BETWEEN THE PARTIES OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WORKMANSHIP, DESIGN OR NON-INFRINGEMENT OF ANY THIRD PARTY’S PROPRIETARY RIGHTS. No representation or warranty, express or implied, made by any sales representative or other agent of Seller which is not specifically set forth in these terms shall be binding upon Seller. Buyer assumes all risk and liability resulting from Product use, whether singly or in combination with other Products. Per the claims procedure in these terms, Seller may be liable to Buyer for breach of the above warranty and any actionable negligence of Seller, but SELLER’S SOLE LIABILITY (AND BUYER’S EXCLUSIVE REMEDY) WHETHER FOR BREACH OF WARRANTY OR FOR NEGLIGENCE IS EXPRESSLY LIMITED, AT THE OPTION OF SELLER, TO ONE OF THE FOLLOWING: (i) THE REPLACEMENT AT THE AGREED POINT OF DELIVERY OF ANY PRODUCTS THAT DO NOT CONFORM TO THE DESCRIPTION AND SPECIFICATIONS IN BUYER’s ORDER(S) FOR THEM, (ii) THE REPAIR OF ANY PRODUCTS THAT DO NOT CONFORM TO THE DESCRIPTION AND SPECIFICATIONS IN BUYER’S ORDER(S) FOR THEM, OR (iii) THE REFUND OR CREDITING TO BUYER’S ACCOUNT OF THE AMOUNT PAID FOR SUCH PRODUCTS. SELLER IS NOT RESPONSIBLE FOR ANY LABOR, REMOVAL, OR INSTALLATION CHARGES THAT MAY RESULT FROM ANY REPAIR OR REPLACEMENT OF PRODUCTS. This warranty does not cover failure of any part or parts manufactured by parties other than Seller, failure of any part or parts from external forces, including but not limited to corrosive soils, earthquake, installation, vandalism, impact damage to Products, frost damage, delays or difficulties related to limited visibility or underwater installations, or application of excessive torque. This warranty shall be void if there has been misuse, accident, modifications, unsuitable physical or operating environment, improper maintenance, storage or installation of the Products. The Parties agree that the above is intended as a complete allocation of risk between them and because the price paid for Product reflects such risk allocation, this limitation will not have failed of its essential purpose even if it operates to bar certain remedies. Seller makes no warranty whatsoever with respect to goods, products, accessories or parts furnished by Seller but not manufactured by Seller, which carry only the warranty, if any, of the manufacturer thereof and Seller hereby assigns to Buyer all of its rights and interest in the manufacturer’s warranties (if any) to the extent that this assignment is not prohibited by the terms of such warranty or agreement between Seller and manufacturer.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OR OTHERWISE, SELLER SHALL HAVE NO LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, LIQUIDATED, PUNITIVE, OR CONSEQUENTIAL DAMAGES, NON-COMPLIANCE WITH REGULATIONS OF FOREIGN GOVERNMENTS, LOST PROFITS, LOSS OF USE OF PRODUCTS OR OTHER PROPERTY OR EQUIPMENT, OR DAMAGES SPECIFICALLY EXCLUDED IN THIS OR ANY OTHER SPECIAL WARRANTY LIMITATION, LOSSES OR EXPENSES, DIRECTLY OR INDIRECTLY ARISING FROM THE SALE, HANDLING OR USE OF THE GOODS OR SERVICES OR FROM ANY OTHER CAUSE OR BREACH. IN NO EVENT SHALL SELLER’S LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER; BUYER WAIVES ANY CLAIM IN EXCESS OF SUCH AMOUNT.
NOTICE OF CLAIMS
Seller will promptly consider settlement of claims per its policies and procedures. Seller SHALL NOT BE LIABLE UNLESS IT RECEIVES WRITTEN NOTICE (for which TIME IS OF THE ESSENCE) OF BUYER’S CLAIM: (A) at the time the Buyer receives Products with a deficiency (such as a shortage) or defect that can be seen by visual examination, or (B) within ninety (90) days after Buyer receives Products deficient for any other reason. As to Products Seller sells, Seller shall not be liable for a claim made by any claimant other than Buyer. Buyer must institute legal action for all claims against Seller within one (1) year after the delivery of the Product at the FOB point, or the claims shall be barred and deemed waived notwithstanding any statutory period of limitations. Seller must be given reasonably opportunity to investigate all claims. Seller is not liable for any charge or expense incident to a claim absent the written consent of an authorized representative of Seller.
Buyer acknowledges that Seller does not participate in the installation of the Products. Buyer agrees to indemnify, defend, and hold harmless Seller and its officers, directors, managers, members, employees or other representatives from and against any claim, demand, loss, costs (including reasonable attorneys’ fees) or damages incurred or sustained by Seller arising from or related to use or resale of the Products and any of Buyer’s negligent, intentional or tortious acts or omissions, including the installation of any Product or Buyer’s failure to comply with this Agreement.
These terms, and each sale and purchase of Products to Buyer by Seller, shall be governed in all respects by the laws of the State of Texas without giving effect to conflict of laws principles that would require the application of any other jurisdiction’s substantive laws, provided, however, that the law applicable to any mechanic’s or materialman’s lien asserted by Seller shall be construed and governed by the law of the jurisdiction where the goods or services were delivered, consumed, or used. The United National Convention on Contracts for the International Sale of Goods, and any successor thereto, will not apply to this Agreement.
ARBITRATION; CONSENT TO VENUE
Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, including the arbitrability thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with the then-current Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. No Dispute will be arbitrated as a class action, representative or general public action, collective action, private attorney-general action, or otherwise be joined with claims of any other person, and any arbitrator attempting such a proceeding shall be deemed to have exceeded the powers available under the Federal Arbitration Act. Claims shall be heard by a single arbitrator in Collin County, Texas. In the event that this arbitration provision is deemed invalid or inapplicable for any reason, in whole or in part, the parties agree that the venue and jurisdiction for any proceedings arising out of or related to the Agreement shall lay exclusively in the state and federal courts of Collin County, Texas to which jurisdiction each party irrevocably consents and waives any objection or defense that it is not subject to personal jurisdiction in such venue or that the forum is inconvenient.
COMPLIANCE WITH LAWS
Each Party represents and warrants, in connection with transactions contemplated by these Terms, that it will comply with all applicable federal, state and local laws, regulations, and orders, including without limitation: (A) all applicable laws and regulations regarding export controls, economic sanctions, trade embargoes and anti-boycott restrictions, and all applicable anti-corruption laws, including but not limited to the U.S. Foreign Corrupt Practices Act (as amended) and the United Kingdom Bribery Act (collectively, “Applicable International Trade and Anti-Corruption Laws”); and (B) all applicable equal opportunity requirements including those set forth in U.S. Executive Order 11246, the U.S. Rehabilitation Act of 1973, as amended, and the U.S. Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended, and regulations promulgated thereunder, and laws prohibiting discrimination against any person because of veteran status, disability, race, creed, color, national origin, religion, age or sex in any term or condition of employment, all of which are incorporated by reference into this Agreement; and (C) all applicable laws and regulations addressing human trafficking and slavery. Each Party acknowledges and confirms that it and its officers, directors, employees, agents, contractors, and/or any representative acting on its behalf are familiar with the provisions of Applicable International Trade and Anti-Corruption Laws. Each Party agrees to indemnify, defend and hold harmless the other Party and its employees from and against any and all claims, demands, costs, penalties and fines arising in connection with any alleged breach by the indemnifying party or any of its representatives of this Section.
NO ASSIGNMENT OR MODIFICATION
Buyer shall not assign or transfer any contract with Seller without its prior written consent. No modification of these terms shall be effective unless specifically agreed to in writing by Seller, and no modification shall be rendered effective by Seller’s receipt, acknowledgment, or acceptance of any purchase order or other form Buyer provide that stipulates different terms or conditions, and Seller hereby gives notification of objection to any such terms and conditions.
No waiver of these terms shall be effective against Seller unless made in writing by an authorized representative of Seller. Buyer shall not assert that Seller’s waiver of Buyer’s breach of these terms, or of those of a later contract of the Parties, is a waiver of any other breach, nor assert that Seller’s failure to exercise a right arising from Buyer’s default is a continuing waiver of the right, and Buyer agree that Seller may exercise the right at a later time.
NO THIRD-PARTY BENEFICIARIES
Buyer and Seller are the only intended beneficiaries of this document, and there are no third-party beneficiaries.
Seller reserves the right to correct typographical or clerical errors in a quotation, order, or agreement without prejudice or legal effect.
Any of these terms that a governing jurisdiction prohibits or declares unenforceable shall be ineffective only to the extent of such prohibition or unenforceability only in that jurisdiction, without invalidating the remaining terms or affecting the validity or enforceability of such terms in any other jurisdiction.
Paragraph headings are for convenience of reference only, are without substantive meaning, and shall not be used to construe or interpret these terms.