Terms and Conditions
Term and Conditions for the Provision of Service
Last updated: October 1, 2021
All quotations, estimates and sales of Services (“Services”) by Hawk Construction, LLC or Hawk Precast, LLC (collectively, “Provider”) provided to the customer and its parents, subsidiaries, affiliates, or business units (collectively, “Customer”) are expressly conditioned upon Customer’s acceptance of these Terms and Conditions of the Provision of Services (this “Agreement”). Customer agrees that any terms and conditions appearing on any document submitted by Customer which are in conflict with (i) the terms and conditions contained herein, (ii) any quotation submitted by Provider, or (iii) any sales contract between Provider and Customer are hereby expressly rejected and shall not constitute terms of any sale of services by Provider. 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 Customer, whether executed by Provider or not. Modification or alteration of this Agreement must be in writing and signed by an authorized representative of Provider and Customer. Provider objects to additional or different terms and conditions in any of Customer’s purchase orders, documentation or correspondence, and those additional or different terms are of no force or effect. This Agreement covers the provision of services only. Provider’s sale of goods or products shall be governed by the Terms and Conditions of Sale.
Provider shall provide the Services to Customer as described in the Order Confirmation, the Statement of Work, Scope of Work, or similar, and in accordance with this Agreement.
Prices provided by Provider may include duties or taxes, including sales, use, gross receipts, excise or similar taxes. The amount of any such present or future taxes or duties or increases therein applicable to the Services covered by this Agreement shall be paid by the Customer unless Customer has provided Provider with tax-exemption certificates acceptable to the relevant taxing authorities. Provider’s quoted prices are subject to change without notice, and all quotations expire and become invalid if not accepted within thirty (30) days from the date of issue, or as indicated otherwise. Any claims related to billing errors or adjustments shall be made in writing to the Provider within ten (10) days from the invoice date or they are waived. Any changes in location, the Scope of Services, schedule or repair or installation requirements may result in a price adjustment by Provider.
Any orders not paid in full in advance are orders on credit and are subject to the Provider’s Credit Application and its Terms and Conditions for Sale on Credit. All payments are due Net 30 days from the date of invoice, or as indicated otherwise. Provider’s extension of credit is at Provider’s sole discretion. The Provider may at any time require full or partial payment in advance of delivery of Services or satisfactory assurances or security from Customer that invoices will be paid when due if in Provider’s judgment the same at any time become necessary. If payment is not made when due, interest at the lower of 1 1/2 % per month or the highest rate permitted by applicable law will be charged thereon and paid by Customer from the due date thereof until paid. In the event Customer does not pay within the terms of this Agreement, all collection costs incurred by Provider, including attorney’s fees, will be paid by Customer. Time and terms of payment are of the essence and if any default therein is made by Customer or if the financial responsibility of Customer shall at any time become impaired or unsatisfactory to Provider, Provider shall have the right to terminate this Agreement or to defer or to discontinue the provisions of further Services hereunder until past due payments are made or satisfactory assurances of Customer’s financial responsibility are received by Provider (without prejudice, however, to any rights or claims which Provider may have in law or in equity) and such right shall continue irrespective of any prior failure on the part of Provider to exercise such right. Each shipment is to be considered a separate sale. The Provider does not accept the withholding of any amount of retainage, even if retainage is part of a contract between Customer and a third party. Customer’s payment obligation to Provider is not contingent on Customer’s ability to collect or obtain funds from any third party. The Provider may apply payments against any open charges on Customer’s account in Provider’s sole discretion and may exercise setoff or recoupment to apply to or satisfy Customer’s outstanding debt to Provider.
COSTS 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.
Customer shall: (a) cooperate with Service Provider in all matters relating to the Services and provide such access to Customer’s property or designated work area, and such accommodations and other needs as may reasonably be requested by Service Provider, for the purposes of performing the Services; (b) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement; (c) provide such Customer materials or information as Service Provider may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; (d) provide a safe workplace for the provision of the Services; and (e) obtain and maintain all necessary permits, licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
CUSTOMER’S ACTS OR OMISSIONS
If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.
Provider shall not be liable for any failure, damage, or delay in the provision of Services resulting from a cause beyond Provider’s reasonable control, including, but not limited to: acts of God, provisions of law, governmental action or regulations, accident, explosion, fire, weather, flood or another casualty, strike, lockout, or other labour difficulties, civil unrest or riot, war, acts of terrorism, insurrection, or scarcity of labour, raw material, production facilities or transportation. Upon the occurrence of any such event, the time for Provider’s performance shall be extended reasonably, the purchase price shall be adjusted for any increased costs to Provider resulting therefrom, and Customer shall not be entitled to any other remedy.
Provider shall not be liable for any delay in fulfilment of or failure to fulfil this Agreement arising from any factory or labour conditions, fire, failure or delay in Provider’s usual sources of supply by the acts or omissions of Customer, its agents, subcontractors or material suppliers, or any cause not reasonably within the control of Provider. In the event of any delay in performance due to a cause beyond the Provider’s control, unless otherwise agreed, the time for delivery shall be deemed extended for a period equal to the period of delay.
Proposed changes in the Services subject to this Agreement, submitted in writing by the Customer, will be reviewed by Provider for acceptability and for the effect of the proposed changes on shipping schedules and prices; Provider will submit to Customer its decision to accept or not accept the proposed changes and the amendments to the performance schedules, prices and other terms upon which the proposed changes would be acceptable to Provider; the changes will become effective as amendments to this Agreement upon Customer’s written acceptance of the said amended terms.
In addition to any remedies that may be provided under these Terms, Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for 10 days after Customer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
This Agreement is not subject to cancellation by the Customer except with Provider’s prior written agreement and after full payment by Customer of Provider’s cancellation charges which shall be equal to all amounts incurred by Provider for materials, labour and overhead in respect of the cancelled Services plus reasonable profits.
The Provider is not responsible or liable for the adequacy or performance of engineering, design, or specifications furnished by the Customer.
Provider warrants that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. 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 Provider which is not specifically set forth in these terms shall be binding upon Provider. Per the claims procedure in these terms, Provider may be liable to Customer for breach of the above warranty and any actionable negligence of Provider, but PROVIDER’S SOLE LIABILITY (AND CUSTOMER’S EXCLUSIVE REMEDY) WHETHER FOR BREACH OF WARRANTY OR FOR NEGLIGENCE IS EXPRESSLY LIMITED, AT THE OPTION OF PROVIDER, TO ONE OF THE FOLLOWING: (i) REPAIR OR RE_PERFORM SUCH SERVICES (OR THE DEFECTIVE PART, IF ANY); (ii) THE REFUND OR CREDITING TO CUSTOMER’S ACCOUNT OF THE PRO-RATA AMOUNT PAID FOR SUCH SERVICES. PROVIDER IS NOT RESPONSIBLE FOR ANY LABOR, REMOVAL, OR INSTALLATION CHARGES THAT MAY RESULT FROM ANY REPAIR OR SERVICES PROVIDED BY A THIRD PARTY. This warranty does not cover failure of any part or parts manufactured by parties other than Provider, failure of any part or parts from external forces, including but not limited to corrosive soils, earthquake, installation, 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, storage or installation. 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. Any claim arising from or related to the allegedly defective provision of Services will conclusively be deemed waived unless Provider receives written notice thereof within twelve (12) months of delivery of the Services to which such claim relates. The Provider must be given a reasonable opportunity to investigate all claims. Provider makes no warranty whatsoever with respect to products, goods, accessories or parts furnished by Provider but not Manufactured by Provider, which carries only the warranty, if any, of the manufacturer thereof and Provider hereby assigns to Customer 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 Provider and manufacturer.
LIMITATIONS OF LIABILITY
No representation or warranty, expressed or implied, made by any sales representative or other agent or representative of the Provider which is not specifically set forth herein shall be binding upon Provider. Provider shall not be liable for any special, incidental or consequential damages, losses or expenses directly or indirectly arising from the manufacture, sale, or use of the Services or from any other cause relating thereto. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OR OTHERWISE, PROVIDER 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 SERVICES 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 SERVICES OR SERVICES OR FROM ANY OTHER CAUSE OR BREACH. IN NO EVENT SHALL THE PROVIDER’S LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE PURCHASE PRICE ACTUALLY PAID BY THE CUSTOMER; THE CUSTOMER WAIVES ANY CLAIM IN EXCESS OF SUCH AMOUNT.
Customer agrees to indemnify, defend, and hold harmless Provider 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 Provider arising from or related to any of Customer’s negligent, intentional or tortious acts or omissions, including any conditions present on Customer’s premises, known or unknown, the acts of Customer’s employees and contractors, and Customer’s failure to comply with this Agreement.
During the term of this Agreement, Customer 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 product liability) in a sum no less than $1,000,000.00 with financially sound and reputable insurers. Upon Provider’s request, Customer shall provide the Provider with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name the Provider as an additional insured. Customer shall provide Provider with 30 days advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Provider’s insurers and Provider.
This Agreement, and the provision of Services to Customer by Provider, 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 Provider shall be construed and governed by the law of the jurisdiction where the Services or services were delivered, consumed, or used.
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 may be entered in any court having jurisdiction thereof. 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
Customer shall not assign or transfer any contract with Provider without its prior written consent. No modification of these terms shall be effective unless specifically agreed to in writing by Provider, and no modification shall be rendered effective by Provider’s receipt, acknowledgment, or acceptance of any purchase order or other form Customer provide that stipulates different terms or conditions, and Provider hereby gives notification of objection to any such terms and conditions.
No waiver of these terms shall be effective against Provider unless made in writing by an authorized representative of Provider. Customer shall not assert that Provider’s waiver of Customer’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 Customer’s default is a continuing waiver of the right, and Customer agrees that Provider may exercise the right at a later time.
NO THIRD PARTY BENEFICIARIES
Customer and Provider are the only intended beneficiaries of this document, and there are no third party beneficiaries.
Provider 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.