PART A: FOUNDATIONAL TERMS
A.1. Seller’s Offer and Buyer’s Acceptance. This document constitutes Seller’s offer to sell Goods to Buyer and is expressly limited to the terms herein. Buyer’s acceptance of this offer is strictly limited to the terms of this Agreement. Buyer’s acceptance shall be deemed to have occurred upon the earliest of the following:
(a) Buyer issuing a Purchase Order for any Goods;
(b) Buyer signing and returning a quotation provided by Seller;
(c) Buyer accepting shipment of or taking possession of any Goods; or
(d) Buyer providing any other written or oral assent.
A.2. Controlling Terms. This Agreement shall exclusively govern all sales of Goods by Seller to Buyer. All other terms and conditions are expressly rejected. Seller objects to and is not bound by any different or additional terms, whether oral or written, in any of Buyer’s documents, including any Purchase Order, subcontract, or correspondence.
A.3. Superseding Effect. This Agreement supersedes all prior or contemporaneous understandings, agreements, negotiations, and communications, whether written or oral. No modification of this Agreement is effective unless made in a writing signed by an authorised representative of Seller.
A.4. Predominant Purpose and UCC Governance
The Parties stipulate and agree that the predominant purpose, thrust, and essence of this Agreement is the sale of specially manufactured Goods. The services detailed in Exhibit B are ancillary and incidental to this primary transaction, consisting of the final assembly and placement of the purchased Goods necessary to ensure their proper function and stability. Accordingly, the Parties agree that the Texas Uniform Commercial Code (UCC) shall govern the entire transaction and all disputes arising hereunder.
A.5. Relationship of the Parties
The parties expressly agree that Seller is acting as a manufacturer and supplier of Goods and not as a construction subcontractor. Buyer acknowledges that Seller’s corporate name is for historical and administrative purposes only and does not define the scope of Seller's obligations. Buyer agrees that it shall not identify or list Seller as a subcontractor in any project documents without Seller's prior express written consent.
PART B: COMMERCIAL AND PAYMENT TERMS
B.1 Pricing and Adjustments
(a) 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 site plans and/or specifications; any material change may result in a change in price.
(b) Any claims by Buyer related to billing errors must be made in writing to Seller within 10 days from the invoice date, or they are waived.
(c) Any changes by Buyer in quantities, destination, or schedule may result in a price adjustment by Seller.
(d) Price Escalation. Notwithstanding any other provision, the Contract Price and any rates included herein are not fixed. The Price shall be subject to adjustment to account for any fluctuation, escalation, and/or increase in Seller’s costs of production. Such adjustments may result from, but are not limited to, increased costs of raw materials, labour, energy, freight, changes in standard concrete mix designs, or as a consequence of any tariff, duty, surcharge, or other governmental action imposed after the date of the quotation.
(e) Seller will provide Buyer with written notice of any such necessary price adjustment, which will be processed as a formal Change Order.
B.2 Taxes
If applicable, Buyer agrees to pay all city, county, state, and federal taxes imposed on the Goods or Coordinated Placement. Seller’s prices are exclusive of such taxes. Buyer shall present any applicable tax exemption certificate to Seller before the first shipment.
B.3 Payment
(a) Due Dates and Credit. 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. Payment for all sales is due upon receipt of Seller’s invoice. Any orders not paid in full in advance are orders on credit and are subject to Seller’s approval. All orders are subject to Seller’s continuing approval of Buyer’s credit. If Seller deems Buyer’s credit unsatisfactory, Seller may require payment in advance, a deposit, or other security.
(b) Disputes. In the event of a payment dispute, Buyer must notify Seller in writing within 5 days of invoice date, specifying the nature of the dispute. Undisputed portions of any invoice must be paid on time, per Texas Property Code § 28.003.
(c) Default and Late Fees. If Buyer fails to make any payment to Seller when due, Buyer’s entire account with Seller shall become immediately due and payable, and Seller may suspend further performance. 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 law.
(d) Lien Rights, Trust Fund, and Assignment. Seller expressly reserves its right to file liens if payment is not received. Buyer agrees that all funds owed to or received by Buyer from any source resulting from the coordinated placement or Goods supplied by Seller shall be held in trust for the benefit of Seller. Upon request, Buyer shall irrevocably assign to Seller its account receivable from anyone to the extent that such is resulting from the coordinated placement or Goods supplied by Seller. Seller may utilise 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.
(d) Lien Waivers. Any lien waiver or release executed by Seller is effective only to the extent payment is received, paid by the drawee bank, and not avoidable as a preference under the United States Bankruptcy Code.
(e) No Retainage or Contingent Payment. Seller does not accept the withholding of retainage for any Goods produced or delivered by Seller. Buyer’s payment to Seller is not contingent on Buyer’s ability to collect or obtain funds from any other party, per Texas Property Code § 28.002.
B.4 Invoicing for Stored Goods. Upon execution of an order, 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. Failure to pay for invoiced Goods may result in the suspension of further performance.
B.5 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.
Part C: Performance and Execution
C.1 Title and Risk of Loss. Title, Shipping Terms, and Risk of Loss. Title to the Goods shall remain with the Seller until the Buyer has paid the Total Purchase Price in full. The Buyer shall not sell, transfer, or encumber the Goods until full payment is received. Shipping for this Agreement is governed by the term DAP (Delivered at Place) Buyer's Job Site (Incoterms® 2020). Therefore, the risk of loss passes to the Buyer upon the Goods' arrival at the Delivery Point (the site specified in Exhibit B), when they are ready for unloading.
C.2 Security Interest (PMSI). 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.
C.3 Delivery, Performance, and Delays. All listed delivery dates are estimates only. The Seller accepts no liability for late deliveries, including any liquidated damages, and Buyer’s acceptance of the Goods constitutes a waiver of any claim for damages due to delay. The time for delivery shall be extended for any delay beyond the Seller’s reasonable control.
C.4 Coordinated Placement. Seller shall provide the Coordinated Placement of the Goods as further described in Exhibit B and the governing documents referenced therein.
C.5 Buyer's Obligations for Coordinated Placement. Buyer shall cooperate with Seller in all matters relating to the Coordinated Placement, including but not limited to:
(a) Providing safe and adequate access to the Placement area;
(b) responding promptly to Seller requests for information or approvals; and
(c) obtaining all necessary licenses and consents for the Placement area.
(d) Provide a safe placement area for the coordination of the placement; and
(e) obtain and maintain all necessary licences and consents and comply with all applicable laws concerning the placement before the date on which the placement is to start.
C.6 Delays Caused by Buyer. If Seller’s performance is prevented or delayed by any act or omission of the Buyer, its agents, or other contractors, Seller shall not be deemed in breach of its obligations or liable for any costs or losses sustained by the Buyer resulting from such delay.
PART D: CHANGES, CANCELLATIONS, AND TERMINATION
D.1 Cancellation and Changes. Buyer may not cancel or change any Purchase Order without Seller’s prior written consent. If Seller consents, Buyer shall be responsible for all costs incurred by Seller as a result. If Buyer attempts to cancel any Order without Seller’s consent, Buyer shall pay to Seller within 15 days: (i) the contract price for all completed Goods, (ii) all costs incurred by Seller for uncompleted items, and (iii) a cancellation charge equal to 25% of the purchase price of the applicable order.
D.2 Changes to Coordinated Placement. Proposed changes to the Coordinated Placement must be submitted in writing by the Buyer. Seller will review the proposed changes for acceptability and advise the Buyer of any impact on schedules and prices. The changes become effective as amendments to this Agreement upon Buyer's written acceptance of the amended terms.
D.3 Returns. ALL SALES ARE FINAL. Buyer shall not return Goods to Seller without Seller’s prior written consent. Approved returns are subject to a minimum 45% restocking fee and all shipping and handling charges.
D.4 Termination by Seller. Seller may terminate this Agreement with immediate effect upon written notice if the Buyer: (i) fails to pay any amount when due and such failure continues for 5 days after receiving notice of non-payment; (ii) fails to comply with any of these Terms; or (iii) becomes insolvent or subject to any bankruptcy or receivership proceeding.
D.5 Buyer's Cancellation Charges. This Agreement is not subject to cancellation by the Buyer except with Seller’s prior written agreement and after full payment by Buyer of Seller’s cancellation charges. Such charges shall be equal to all amounts incurred by Seller for materials, services, and overhead for the cancelled Coordinated Placement, plus reasonable profits.
PART E: RISK, LIABILITY, AND WARRANTY
E.1 Buyer-Furnished Specifications. Seller is not responsible or liable for the adequacy or performance of engineering, design, or specifications furnished by Buyer.
E.2 Limited Warranty
(a) Limited Warranty for Goods. Seller warrants to Buyer that for a period of 1 year from the date of shipment of the Goods (‘Goods Warranty Period’), the Goods will materially conform to the specifications set forth in Exhibit A and will be free from material defects in material and workmanship. This warranty applies only to the Goods as manufactured by Seller and does not cover defects or damage arising from improper site conditions, soil instability, or other factors outside of Seller's control as outlined in this Agreement.
(b) Limited Warranty for Placement Services. Seller warrants that the incidental placement and assembly services described in Exhibit B will be performed in a professional manner consistent with industry standards for the assembly of precast concrete components (‘Services Warranty Period’). The Services Warranty Period shall extend for 1 year from the completion of the placement services. Buyer's sole remedy for a breach of this services warranty shall be the correction of the non-conforming placement work by the Seller.
(c) Relationship of Warranties. The Limited Warranty for Goods and the Limited Warranty for Placement Services are separate and distinct. A claim under one warranty shall not affect the validity or terms of the other. The proper performance of placement services is a condition for the final acceptance of the Goods in their assembled state but is not a condition precedent for the validity of the Limited Warranty for Goods as it applies to the manufacturing quality of the individual components.
E.3 DISCLAIMER OF ALL OTHER WARRANTIES. THE EXPRESS WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANSHIP, AND NON-INFRINGEMENT.
E.4 EXCLUSIVE REMEDY. SELLER'S SOLE LIABILITY AND BUYER'S EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY SHALL BE LIMITED TO, AT SELLER’S OPTION, THE REPAIR, REPLACEMENT, OR CREDIT OF THE PURCHASE PRICE OF THE DEFECTIVE GOODS, INCLUDING ANY COORDINATED PLACEMENT NECESSARY TO REMEDY THE DEFECT. SELLER IS NOT RESPONSIBLE FOR ANY LABOUR, REMOVAL, OR INSTALLATION CHARGES THAT MAY RESULT FROM ANY REMEDIAL WORK PROVIDED BY A THIRD PARTY.
E.5 Warranty Exclusions. This warranty is void if a defect results from forces or conditions that exceed the Goods' documented design specifications or performance criteria, or from other external events including, but not limited to, seismic activity, soil instability or pressure from corrosive or expansive soils, flood, fire, improper placement or installation, vandalism, impact damage, frost damage, misuse, accident, modifications, unsuitable physical or operating environment, improper maintenance, or improper storage.
E.6 Additional Warranty Terms
(a) No representation or warranty made by any sales representative or agent of Seller that is not specifically outlined in these terms shall be binding upon Seller.
(b) Any claim related to allegedly defective Goods is waived unless Seller receives written notice within 12 months of delivery. Seller must be given a reasonable opportunity to investigate all claims.
(c) Seller provides no warranty for parts not manufactured by Seller, and hereby assigns to Buyer any applicable manufacturer's warranties to the extent permissible.
E.7 LIMITATIONS 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, COORDINATED PLACEMENT, 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 BUYER; BUYER WAIVES ANY CLAIM ABOVE SUCH AMOUNT.
E.8 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, delivery, coordinated placement; (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, or coordinated placement, 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.
E.9 Insurance. During the term of this Agreement, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including Goods liability) in a sum no less than $1,000,000.00 with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide the Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name the Seller as an additional insured. Buyer shall provide Seller with 30 days advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
E.10 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 service, 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.
PART F: DISPUTES AND LEGAL BOILER-PLATE
F.1 Notice of Claims and Time Limits. Buyer shall inspect the Goods immediately upon receipt. 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 Buyer receives Goods with a deficiency (such as a shortage) or defect that can be seen by visual examination, or (ii) within 90 days after Buyer receives Goods deficient for any other reason. As to Goods the 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 1 year after the delivery of the Goods at the Delivery 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.
F.2 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.
F.3 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 where the Goods were delivered, consumed, or used, or where the placement or installation of the Goods occurred. The United Nations Convention on Contracts for the International Sale of Goods, and any successor thereto, will not apply to this Agreement. Any incidental and coordinated placement 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 characterisation of this Agreement or its terms shall be resolved under Texas UCC principles, ensuring the Sale of Goods remains the primary transaction.
F.4 Dispute Resolution
(a) 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.
(b) Arbitration. 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. 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. Judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL.
(c) Consent to Venue. 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.
F.5 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 licences, permissions, authorisations, consents, and permits that it needs to carry out its obligations under this Agreement.
F.6 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.
F.7 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.
F.8 No Third-Party Beneficiaries. Only Buyer and Seller are the only intended beneficiaries of this document, and there are no third party beneficiaries.
F.9 Corrections. Seller reserves the right to correct typographical or clerical errors in a quotation, order, or agreement without prejudice or legal effect.
F.10 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.
F.11 Headings. Paragraph headings are for convenience of reference only, are without substantive meaning, and shall not be used to construe or interpret these terms.