APPLICABILITY
All quotations, estimates and sales of goods and products ('Goods'), by Hawk Construction LLC or Hawk Precast LLC (collectively, 'Seller’) to the Buyer (the individual, company, or entity purchasing goods from the Seller) 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'). 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 agreement or subcontract 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 Subcontracts, 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.
TERMS OF SALE
This Agreement governs the Sale of Goods. These terms prevail over any inconsistent terms in Buyer’s purchase order or other documents. The Seller is a Manufacturer of Goods as defined under the Texas UCC. Therefore, all Buyer orders for Goods must sign and return this Agreement, or provide a Supplier Agreement or Purchase Order, that makes this Agreement apart of those documents. All ‘Subcontracts’ provided are rejected.
PREDOMINANT PURPOSE
The Parties agree that the predominant purpose of this Agreement is the sale of Goods. The Texas Uniform Commercial Code (UCC), as adopted in the Texas Business and Commerce Code, governs the entire transaction, including any disputes related to Goods.
INVOICING OF GOODS
Upon execution of any order by Buyer, and these terms, all goods that are (i) currently available, (ii) produced after the execution of this Agreement, or (iii) stored by Seller at Buyer’s request or due to Buyer’s failure to provide shipping instructions, shall be subject to invoice by Seller. Buyer agrees to pay for such goods in accordance with the payment terms set forth in this Agreement. Seller reserves the right to require prepayment or other security for any goods produced or stored prior to shipment. Failure to pay for invoiced goods within the specified payment terms may result in suspension of further performance under any order with Buyer, and Seller may exercise any other remedies available under these terms or applicable law. If goods are delayed due to Buyer’s failure to provide shipping instructions, storage fees shall accrue as outlined in the Storage Fees section below.
PICKUP, STORAGE, AND FORFEITURE POLICY
If the Buyer fails to accept delivery of the Goods or provide necessary shipping instructions in writing and within 30 days after the Seller has notified the Buyer, in writing, that the Goods are ready for delivery, storage fees shall automatically begin to accrue on the 31st day, regardless of whether the Buyer has been notified by Seller. Storage fees shall be calculated at a rate of 5% of the purchase price per month (or portion thereof), unless otherwise agreed in writing by Seller. Storage fees shall be invoiced monthly and are due upon receipt of Seller’s invoice. Seller reserves the right to require prepayment of storage fees before releasing the Goods. The total storage fees shall not exceed 50% of the purchase price. Partial payments made toward storage shall reduce the outstanding payment. If after 90 days and without written agreement between the Parties, the Buyer forfeits ownership and the Seller may at its sole discretion dispose of, resell, or destroy the Goods as it see fit. Partial payments made toward storage fees do not prevent ownership forfeiture after 90 days unless otherwise agreed in writing by Seller.
PRICES
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 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.
PAYMENT
Payment for all sales are due upon receipt of Seller’s invoice. Any order(s) not paid in full in advance are orders on credit and are subject to the Seller’s approval and these Terms and Conditions for Sale of Goods. Open credit sales are any sales to Buyer for which Buyer has not paid Seller in immediately available funds before shipment of the Goods. Each shipment is to be considered a separate sale. 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 provides 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 manufactured goods ordered by Buyer hereunder. In the event of a payment dispute, Buyer must notify Seller in writing within 5 days of invoice receipt, specifying the nature of the dispute. Undisputed portions must still be paid on time. Undisputed portions of any invoice must be paid within the specified payment terms, per Texas Property Code § 28.003. If Buyer fails 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. 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 utilize the 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 judgement against Buyer.
Notwithstanding anything stated therein to the contrary, any lien waiver or release executed by Seller related to the Goods or 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 labour 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 labour or materials supplied by Seller. Any payment made under protest or partial payment shall not constitute acceptance of disputed amounts or waiver of Seller’s lien rights. Upon receipt of full payment, Seller will provide a lien waiver to Buyer.
Seller does not accept the withholding of any amount of retainage/retention against any Goods for any balance outstanding, even if retainage/retention 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 payment is contingent on Buyer receiving funds from a third party, Buyer shall pay Seller within 60 days of invoice, regardless of third-party payment, per Texas Property Code § 28.002.
TAXES
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 Goods 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.
TITLE AND RISK OF LOSS
Title to the Goods shall remain with Seller until full payment to secure Buyer's payment obligation. Risk of loss, however, passes to Buyer upon delivery to the ‘Delivery Point’. The Buyer shall not sell, transfer, encumber, or otherwise dispose of the Goods until full payment is received by the Seller. For purposes of this Agreement, the ‘Delivery Point’ is the Seller’s facility, or as otherwise stated on the quotation, confirmation of order, or other written agreement with the Buyer. For partial deliveries, risk of loss for delivered Goods passes to Buyer upon delivery to the 'Delivery Point', regardless of remaining undelivered Goods, per Texas Business and Commerce Code § 2.509. For purposes of this Agreement, ‘Goods’ include precast concrete panels, columns, caps and retaining blocks, whether unattached (personal property) or attached to real property (fixtures). As collateral security for the payment of the purchase price of the Goods, the Buyer hereby grants to the Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions to it and replacements or modifications thereof, as well as all proceeds (including cash, accounts, insurance proceeds, or other property received from the sale or disposition of the Goods). The security interest granted under this provision constitutes a purchase money security interest (PMSI) under Title 9 of the Texas Uniform Commercial Code. Seller’s security interest persists in the Goods until full payment, regardless of whether the Goods are incorporated into real property. Buyer consents to Seller filing UCC-1 financing statements, including fixture filings with the appropriate county clerk, to perfect Seller’s security interest in the Goods, whether as personal property or fixtures. Seller may file a UCC-1 financing statement within 30 days of contract execution to perfect its security interest, as permitted by Texas Business and Commerce Code § 9.502. Seller’s security interest extends to all proceeds from the sale or disposition of the Goods, including insurance proceeds, per Texas Business and Commerce Code § 9.315. Buyer agrees to execute any necessary documents to perfect Seller’s security interest, including UCC filings. Any lien waivers executed by Seller for progress payments shall not waive Seller’s security interest or UCC-1 rights in the Goods.
DELIVERY & DELAYS
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. The Seller accepts no liability for late deliveries, including any liquidated damages. Buyer’s acceptance of any Goods shall constitute Buyer’s waiver of any claim for damages because of any delay in delivery of such Goods. Seller will make reasonable efforts to notify Buyer of any significant delays in delivery.
SAFETY
Buyer must provide a safe delivery site and comply with all federal, state, and local safety laws, rules, ordinances, and other requirements. Buyer agrees to indemnify and hold Seller harmless from any claims, damages, or liabilities arising from improper handling, misuse, or unsafe site conditions. Seller agrees that, if its employees, agents or contractors deliver the Goods or materials purchased hereunder, it and they shall comply with all federal, state, and local safety requirements.
INSPECTION
Buyer shall inspect the Goods immediately upon arrival and provide written notice of defects within 5 business days for standard Goods. Failure to notify Seller within this timeframe constitutes unconditional acceptance of the Goods. Buyer’s use or installation of the Goods, or authorisation of installation by others, constitutes acceptance under Texas Business and Commerce Code § 2.606, barring latent defects covered by Seller’s warranty. If Buyer timely rejects non-conforming Goods per Texas Business and Commerce Code § 2.601, Seller’s sole obligation, at its option, is to repair, replace, or refund the purchase price of the rejected Goods, per Texas Business and Commerce Code § 2.508. If Buyer fails to inspect within this period, Buyer waives the right to claim defects that would have been discoverable upon reasonable inspection. All Goods made to special/custom/oversized specifications are deemed to be inspected and accepted before shipment is made and may not be cancelled.
CANCELLATION AND CHANGES
Buyer may not cancel or change any order the Buyer has placed unless agreed to in writing by an authorised representative of Seller, and Buyer shall remain responsible for any costs incurred by Seller before or because of such cancellation or change. Buyer may request changes to an order by submitting a written request to Seller. Seller will evaluate the request and respond within 5 business days. 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 15 days of such cancellation or change, (i) the contract price, including applicable taxes, for all Goods which have been completed before 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. Seller reserves the right to terminate this agreement in the event of Buyer’s non-payment, insolvency, or breach of these Terms.
RETURNS. ALL SALES ARE FINAL
Buyer shall not return Goods 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 Goods, Seller may accept returned Goods for credit if, in its sole discretion, it finds such Goods to be in a good and resalable condition. Such credit shall be the invoice price of the returned Goods less 45% as a restocking fee on acceptable Goods, and less all shipping and handling charges. If such Goods are not in good and resalable condition, as determined in Seller’s sole discretion, no credit shall be given to Buyer.
COST OF ENFORCEMENT
If Buyer is found to be in breach of this Agreement, Buyer shall pay all costs, expenses, and reasonable attorneys' fees incurred by Seller in enforcing its rights.
FORCE MAJEURE
Seller shall not be liable for any failure, damage, or delay in manufacture, shipment, or delivery of Goods resulting from a cause beyond Seller’s reasonable control, including, without limitation: acts of God; flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; government order, law, or actions; embargoes or blockades in effect on or after the date of this Agreement; and national or regional emergency; and strikes, labour stoppages or slowdowns, or other industrial disturbances; and telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and other similar events beyond the reasonable control of the Seller.
Upon the 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 remain responsible for payment of completed Goods and incurred costs despite such delays.
SPECIFICATIONS
Seller is not responsible or liable for the adequacy or performance of engineering, design, or specifications furnished by Buyer.
WARRANTY
Seller warrants to Buyer that for a period of 1 year from the date of shipment of the Goods ("Warranty Period"), such Goods will materially conform to Seller’s specifications and will be free from material defects in material and workmanship.
WARRANTY LIMITATIONS
The express warranty above is in place of and excludes the implied warranty of fitness for a particular purpose, workmanship, design, or infringement of any third party’s proprietary rights. The implied warranty of merchantability, as defined by Texas Business and Commerce Code § 2.314, applies unless otherwise agreed in writing. No representation or warranty, express or implied, made by any sales representative or other agent of Seller which is not specifically outlined in these terms shall be binding upon Seller. 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) REPAIR OR REPLACE THE DEFECTIVE PART; (ii) THE REFUND OR CREDITING TO BUYER’S ACCOUNT OF THE PRORATA AMOUNT PAID FOR SUCH GOODS. SELLER IS NOT RESPONSIBLE FOR ANY LABOUR, REMOVAL, OR INSTALLATION CHARGES THAT MAY RESULT FROM ANY REPAIR OR SERVICES PROVIDED BY A THIRD PARTY. The warranty exclusions above do not apply to latent defects in the Goods not discoverable by reasonable inspection upon delivery, which are covered by Seller’s express warranty for the Warranty Period, subject to the notice requirements in this Agreement. 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 or expansive soils, earthquake, installation by others, vandalism, impact damage, 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, or improper storage. The parties agree that the above is intended as a complete allocation of risk between them and, because the price paid for the Goods reflects such risk allocation, this limitation will not have failed in its essential purpose even if it operates to bar certain remedies. Any claim arising from or related to allegedly defective Goods will conclusively be deemed waived unless Seller receives written notice thereof within 12 months of delivery of the Goods to which such claim relates. Seller must be given a reasonable opportunity to investigate all claims. Seller makes no warranty whatsoever concerning Goods, products, accessories, or parts furnished by Seller but not manufactured by Seller, which carries 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 GOODS 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 FROM ANY OTHER CAUSE OR BREACH. IN NO EVENT SHALL SELLER’S LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE PURCHASE PRICE PAID BY SELLER, EXCEPT IN CASES OF THE SELLER’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT; SELLER WAIVES ANY CLAIM ABOVE SUCH AMOUNT.
NOTICE OF CLAIMS
Seller shall promptly consider the 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: (i) within 5 days after the Seller receives Goods with a deficiency (such as a shortage) or defect that can be seen by visual examination, or (ii) within 90 days after Seller receives Goods deficient for any other reason. Seller may grant extensions for reasonable cause upon written request. As to Goods the Seller sells, Seller shall not be liable for a claim made by any claimant other than Seller. Buyer must institute legal action for all claims against Seller within 1 year after the delivery of the Goods at the FOB point as defined in this Agreement, or the claims shall be barred and deemed waived notwithstanding any statutory period of limitations. The Seller must be given the opportunity of no less than 30 days from the date of notice to investigate all claims. Seller is not liable for any charge or expense incident to a claim absent the written consent of an authorised representative of the Seller.
INDEMNIFICATION
Buyer agrees to indemnify, defend, and hold harmless Seller, its affiliates, officers, directors, managers, members, employees, agents, or other representatives (collectively, ‘Seller Parties’) from and against any and all claims, demands, liabilities, damages, losses, costs, and expenses (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to: (i) Buyer’s negligent, intentional, tortious, or otherwise wrongful acts or omissions; (ii) any conditions present on Buyer’s premises, whether known or unknown, including those that affect the Goods; (iii) the acts or omissions of Buyer’s employees, subcontractors, or agents; (iv) Buyer’s failure to comply with this Agreement, applicable laws, regulations, or industry standards; (v) improper storage, handling, modification, installation, or use of the Goods after delivery; and (vi) any third-party claims arising from Buyer’s actions or failure to act. This indemnification obligation does not apply to claims caused by Seller’s gross negligence or wilful misconduct. Additionally, this obligation applies regardless of whether Seller is alleged to be partially at fault, to the fullest extent permitted by law. Notwithstanding any contrary language in any subcontract or purchase order, or other document, Seller does not agree to indemnify Buyer for Buyer’s own negligence or sole fault, as prohibited by Texas Civil Practice & Remedies Code §151.102. Any attempt by Buyer to impose broader, mutual, or reciprocal indemnity obligations shall be null and void, and Seller specifically rejects and disclaims any such terms.
GOVERNING LAW
This Agreement, these terms, and each sale and purchase of Goods to the Buyer by the Seller shall be governed in all respects by the laws of the State of Texas, including the Uniform Commercial Code as adopted in 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 of the Goods delivery point. The United Nations Convention on Contracts for the International Sale of Goods, and any successor thereto, will not apply to this Agreement. Any incidental services provided under this Agreement shall not alter the applicability of the UCC to the primary transaction, which is the Sale of Goods. All disputes regarding the characterization of this Agreement or its terms shall be resolved under Texas UCC principles, ensuring the Sale of Goods remains the primary transaction
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 per the then-current commercial Arbitration Rules and judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. MEDIATION. Before initiating arbitration, the Parties shall attempt to resolve disputes through mediation administered by the American Arbitration Association in McKinney, Collin County, Texas, within 30 days of written notice of a dispute. Mediation costs shall be shared equally. Claims shall be heard by a single arbitrator in McKinney, Collin County, Texas. Arbitration shall apply Texas UCC principles to all disputes involving the Sale of Goods, ensuring the primary transaction remains governed by the UCC. If 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 defence that it is not subject to personal jurisdiction in such venue or that the forum is inconvenient.
COMPLIANCE WITH LAWS
Buyer is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
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, acknowledgement, 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
No waiver of these terms shall be effective against Seller unless made in writing by an authorised representative of Seller. Buyer shall not assert that Seller’s waiver of Buyer’s breach of these terms, or 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 agrees that Seller may exercise the right at a later time.
NO THIRD PARTY BENEFICIARIES
Only Seller and Buyer are the only intended beneficiaries of this document, and there are no third party beneficiaries.
CORRECTIONS
Seller reserves the right to correct typographical or clerical errors in a quotation, order, or agreement without prejudice or legal effect, provided Seller notifies Buyer of such corrections in writing within a reasonable time.
SEVERABILITY
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.
HEADINGS
Paragraph headings are for convenience of reference only, are without substantive meaning, and shall not be used to construe or interpret these terms.