1 THE AGREEMENT

 

1.1 Seller’s Offer and Buyer’s Acceptance. Seller’s acceptance of any Order is expressly conditioned on Buyer’s assent to these Terms. Seller explicitly rejects any different or additional terms contained in any Purchase Order or other document submitted by Buyer. Fulfillment of Buyer's order does not constitute acceptance of Buyer's terms. Buyer’s acceptance of these Terms shall be deemed to occur 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.

 

1.2 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.

 

1.3 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 authorized representative of Seller.

 

1.4 Predominant Purpose. The Parties agree that the predominant purpose of this Agreement is the sale of Goods, and the Texas Uniform Commercial Code (UCC) shall govern the entire transaction.

 

2 ORDERS, CANCELLATION, AND RETURNS

 

2.1 Orders. All orders are subject to acceptance by Seller in its sole discretion.

 

2.2 Cancellation or Modification. Buyer may not cancel or modify an Order (including changes to specifications, quantity, or delivery dates) without Seller's written consent. If Seller agrees to such cancellation or modification, Buyer shall pay to Seller: (i) the contract price for all completed Goods; (ii) all actual costs for work in progress (including engineering and molds); and (iii) a charge equal to the greater of 25% of the affected contract value OR Seller’s lost profits on the canceled or modified portion of the Order.

 

2.3 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.

 

3 PRICE AND PAYMENT

 

3.1 Prices and Quotations.

1. 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.

2. 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.

3. Any changes by Buyer in quantities, destination, or schedule may result in a price adjustment by Seller.

4. Market 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, labor, 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. Seller reserves the right to increase prices to reflect increases in raw material, fuel, or labor costs upon 15 days notice.

5. Seller will provide Buyer with written notice of any such necessary price adjustment, which will be processed as a formal Change Order.

 

3.2 Taxes. All prices are exclusive of any and all taxes. Buyer is responsible for paying all taxes related to the sale, use, or delivery of the Goods.

 

3.3 Payment Terms. Payment for all sales is due upon receipt of Seller’s invoice. All sales on credit are subject to Seller’s continuing approval of Buyer’s credit. If Seller deems Buyer’s credit unsatisfactory, Seller may require advance payment or other security.

 

3.4 Delay Escalation. Prices quoted are firm for delivery within ninety (90) days of the original scheduled delivery date. If shipment is deferred by Buyer beyond this period, Seller reserves the right to: (i) charge monthly storage fees; and (ii) adjust the Price of the Goods to Seller's then-current rates at the actual time of shipment.

 

3.5 Late Payments and Disputes. Buyer must notify Seller in writing of any payment dispute within five (5) days of the invoice date. All past-due amounts shall be subject to an interest charge of 1.5% per month or the maximum rate permitted by law. If Buyer fails to make any payment when due, Buyer’s entire account shall become immediately due and payable, and Seller may suspend all further performance.

 

3.6 No Retainage or Set-Off. This Agreement and the prices quoted herein do not contemplate the withholding of retainage. Any proposal by Buyer to withhold retainage must be agreed to by Seller in a separate written instrument and may be subject to a price adjustment to account for the associated costs and risks. Buyer's payment to Seller is not contingent on Buyer receiving funds from any other party. Buyer shall have no right to withhold or set off any amounts owed to Seller.

 

3.7 Lien Rights and Security Interest. Seller expressly reserves its right to file liens on property where the Goods are used. As collateral security for payment, Buyer grants Seller a purchase money security interest (PMSI) in all Goods purchased and all proceeds thereof. This security interest persists until full payment is received. Buyer authorizes Seller to file any financing statements (including UCC-1) necessary to perfect this security interest.

 

3.8 Funds Held in Trust. Buyer agrees that all funds received by it from any source resulting from the labor or materials supplied by Seller shall be held in trust for the benefit of Seller and shall be promptly paid to Seller.

 

4 DELIVERY, TITLE, AND RISK

 

4.1 Delivery and Shipping Terms. All sales are governed by the term FOB Origin / Will Call. Buyer (or Buyer’s designated Service Provider) is responsible for arranging transportation. Seller’s responsibility ceases upon making Goods available at the Delivery Point. The ‘Delivery Point’ for all sales is therefore Seller's facility. All delivery dates are estimates only. Seller is not liable for any damages for any delay. When Seller arranges shipping on Buyer's behalf, the destination specified in the quotation is for freight purposes only and does not alter the Delivery Point.

 

4.2 Title and Risk of Loss. In accordance with FOB terms, risk of loss passes to the Buyer at the Delivery Point, which is the moment the Goods are loaded onto the carrier's truck at Seller's facility. Title to the Goods shall remain with Seller until full and final payment is received.

 

4.3 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, Seller shall be entitled to invoice Buyer for the full Contract Price of the Goods as if delivery had occurred ('Bill and Hold'), and such Goods shall be held at Buyer’s sole risk. 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.

 

5 WARRANTIES AND LIABILITY

 

5.1 Limited Warranty. Seller warrants that for a period of 1 year from the date of shipment (‘Warranty Period’), the Goods will materially conform to Seller’s specifications and be free from material defects in material and workmanship.

 

5.2 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.

 

5.3 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. SELLER IS NOT RESPONSIBLE FOR ANY LABOR, REMOVAL, OR INSTALLATION CHARGES.

 

5.4 Warranty Exclusions. This warranty is void if the 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.

 

5.5 Additional Warranty Terms

1. 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.

2. 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.

3. Seller provides no warranty for parts not manufactured by Seller, and hereby assigns to Buyer any applicable manufacturer's warranties to the extent permissible.

 

5.6 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, 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.

 

6 Buyer’s Obligations

 

6.1 Buyer-Furnished Specifications. Seller is not responsible for the adequacy or performance of any design or specifications furnished by Buyer.

 

6.2 Safety and Compliance. Buyer must provide a safe site for delivery and comply with all applicable laws. Buyer shall maintain all necessary licenses and permits.

 

6.3 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, or 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, 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 shall not apply to the extent that any claim, damage, loss, or expense is caused by the sole or concurrent negligence, fault, or breach of contract of the Seller or its employees, agents, or subcontractors.

 

This indemnification obligation does not apply to claims caused by Seller’s gross negligence or willful misconduct. This obligation applies regardless of whether Seller is alleged to be partially at fault, to the fullest extent permitted by law. 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.

 

7 LEGAL PROVISIONS

 

7.1 Dispute Resolution

1. 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.

2. 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. Judgment 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.

3. 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 defense that it is not subject to personal jurisdiction in such venue or that the forum is inconvenient.

 

7.2 Inspection, Shortages, and Deemed Acceptance.

1. Visual Defects & Shortages: Buyer shall inspect Goods immediately upon receipt. Buyer shall be deemed to have accepted the Goods as delivered unless Seller receives written notice of visible defects (chips, cracks) or quantity shortages within five (5) days of delivery. Failure to provide such notice constitutes irrevocable acceptance of the quantity and visual condition.

2. Latent Defects: For defects not discoverable by visual inspection (‘Latent Defects’), Buyer must provide written notice within ten (10) days of discovery, but in no event later than one (1) year from the date of delivery.

3. Right to Investigate: Buyer shall furnish such evidence as Seller may reasonably require (including photos) and shall grant Seller access to inspect the Goods. Seller shall not be liable if Buyer repairs or alters the Goods without Seller’s prior written consent.

 

7.3 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 characterization of this Agreement or its terms shall be resolved under Texas UCC principles, ensuring the Sale of Goods remains the primary transaction.

 

7.4 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, labor 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.

 

7.5 No Assignment. Buyer shall not assign its rights or obligations without Seller’s prior written consent.

 

7.6 Cost of Enforcement. If Buyer is in breach, it shall pay all of Seller's costs of enforcement, including reasonable attorneys' fees.

 

7.7 Entire Agreement and Severability. This Agreement, including all Exhibits and Attachments, constitutes the sole and entire agreement of the Parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral. Each party acknowledges that in entering into this Agreement it has not relied on and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. No waiver or modification is effective unless in writing and signed by an Authorized Representative of Seller. If any provision is invalid or unenforceable, the remaining provisions shall continue in full force and effect. Headings are for convenience only.