TERMS AND CONDITIONS OF PURCHASE

(Applicable to All Sales of Products)

 

THESE CONDITIONS CONTAINS PROVISIONS RELATING TO INDEMNITY, RELEASE, LIMITATION OF LIABILITY AND ALLOCATION OF RISK FOR SALES MADE BY Scaffold Express AND ITS AFFILIATES (“SELLER”)

 

1. GENERAL: Prompt acceptance of any Estimate (“Estimate”) or purchase order for materials and/or services (“Order”) by the customer listed on said Estimate or Order (the “Buyer”) is requested but, in any event, any delivery hereunder shall constitute an acceptance of the Estimate or Order pursuant to the terms and conditions as set forth herein (“Conditions”) and no other terms and conditions. Acceptance of any Order is expressly limited to these Conditions, and any additional or different terms of Buyer for Estimates or for Orders are hereby rejected and inapplicable. Unless both parties have signed an unexpired prior written agreement regarding the sale and purchase of Scaffold Express’s products identified on Seller's accompanying order confirmation (the "Products"), these Conditions and Seller's accompanying order confirmation supersede and replace all prior agreements, representations and understandings, whether oral or written, and contain the entire agreement between the parties regarding the sale and purchase of the Products. In case of any conflict between any of the provisions of these Conditions and any unexpired prior written agreement between the parties regarding the sale and purchase of the Products, the terms of the prior written agreement shall prevail. In the case of no applicable unexpired prior written agreement, Seller's offer to sell the Products to Buyer is expressly made conditional on Buyer's assent to these Conditions. These Conditions shall not be modified or amended orally, by the terms of any purchase orders or other documentation issued unilaterally by Buyer (and the terms and conditions proposed by any such purchase order or other documentation are specifically objected to and shall not be the basis for any agreement regarding the Products), or by any course of dealing or trade usage, but may be amended only in written form bearing a signature by both parties.
2. PAYMENT AND CREDIT: Unless otherwise specified on the first page of any invoice issued by Seller to Buyer, Buyer shall pay Seller for Product within thirty (30) days of Seller's invoice by check, wire or electronic funds transfer in immediately available funds in accordance with Seller's invoice instructions. If Buyer fails to pay Seller in accordance with the above terms, or if, in the reasonable opinion of Seller, Buyer's financial condition or Buyer's ability to otherwise perform is impaired or unsatisfactory, then Seller, at its option and without prejudice to its other rights and remedies, may without further notice to Buyer (A) suspend deliveries until all indebtedness is paid in full and/or (B) place Buyer's shipments on a cash-in-advance basis until arrangements are made for security or other assurances satisfactory to Seller, at Seller's sole discretion. In the event of Buyer's default in payment, Buyer shall pay all Seller's costs of collection, including, but not limited to, reasonable attorneys' fees. Any amounts that remain due and owing after the due date shall bear interest thereon from the date due until the date paid at a per annum rate of interest equal to the lower of (i) the maximum rate of interest allowed by law or (ii) Eighteen percent (18%). Any preexisting obligation of Buyer to make payment for Product delivered hereunder shall survive termination of these Conditions. Seller may establish a credit limit for Buyer's account. Seller reserves the right to refuse to make shipments to Buyer if such shipments would cause Buyer to exceed such credit limit. Seller may increase or decrease such credit limit from time to time, in its reasonable discretion. Seller's failure to enforce the credit limit in any instance shall not constitute a waiver of Seller's right to subsequently enforce the credit limit. Seller shall be under no obligation to hold or store Products for Buyer beyond the scheduled shipment date if, on such date, Buyer's account would exceed the established credit limit if shipments were made. Orders for Products so affected may, at Seller's option, be treated by Seller as canceled, and will be subject to cancellation charges to cover Seller's costs in relation to such cancellation. Buyer hereby grants Seller a security interest in all Product delivered by Seller to Buyer on credit until such Product has been paid for in full by Buyer in accordance with the terms of these Conditions. Buyer and Seller agree that these Conditions shall constitute a security agreement between Buyer and Seller with respect to such Product and may be used by Seller without in any way abrogating, restricting or limiting the rights of Seller under these Conditions or at law or in equity. Buyer hereby grants Seller permission to file financing statements or such other documents as are necessary under applicable law to perfect Seller's security interest in such Product or the proceeds of such Product.
3. PRICING AND TAXES: Prices quoted in any Estimate or Order shall be available without change for a maximum of fifteen (15) days. Buyer shall purchase the Products from Seller at the price set forth in an applicable Order. Seller may at any time, and without notice to or obligation of any kind to Buyer, sell Product to other buyers at prices below or on other terms different from those obtained by Buyer hereunder. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel or real or personal property or other assets.
4. CANCELLATION: Seller reserves the right to cancel the Order or make changes in quantities, pricing, specifications and/or delivery schedules for any reason whatsoever.
5. TITLE, RISK, AND DELIVERY: Notwithstanding anything in the applicable Incoterm to the contrary, title and risk of loss of Product shall pass to Buyer at Seller's designated shipping point(s). If Seller is responsible for payment of freight, Seller may select the carrier and routing. If Buyer requests delivery by a different carrier or a different route, Buyer will be responsible for any increased freight cost and Seller may invoice Buyer accordingly. Any increase in freight rates paid by Seller on deliveries covered by these Conditions in excess of the freight rates in effect on the date of these Conditions, may, at Seller's option, be added to the price of the affected Product and invoiced to Buyer accordingly. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of an Order. The quantity of any installment of Products as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. The Seller shall not be liable for any non-delivery of Products (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the non-delivery within fifteen (15) days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered
6. ALLOCATION: If sufficient Product is not available for any reason, Seller may allocate Product for its and its Affiliates' needs and among its customers. Seller will make reasonable efforts to obtain additional Product from other sources for delivery to Buyer, provided Buyer agrees to pay all additional costs associated with such Product. Allocation of Product pursuant to this Section shall completely satisfy and discharge Seller's supply obligations.
7. DISCLAIMER OF WARRANTY: SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS. TO THE EXTENT PERMITTED BY LAW, SELLER DISCLAIMS ALL EXPRESSED AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF TIME, LOSS OF USE, OR INCONVENIENCE. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT.
8. INDEMNITY OBLIGATIONS: BUYER AGREES TO PROTECT, INDEMNIFY, HOLD HARMLESS AND DEFEND SELLER, ITS OFFICERS, DIRECTORS, AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS, PENALTIES, FORFEITURES, SUITS AND COSTS AND EXPENSES INCIDENT THERETO (INCLUDING COSTS OF DEFENSE, SETTLEMENT, AND REASONABLE ATTORNEY’S FEES), WHICH IT MAY HEREUNDER INCUR, BECOME RESPONSIBLE FOR, OR PAY OUT AS A RESULT OF DEATH OR BODILY INJURY TO ANY PERSON, DESTRUCTION OR DAMAGE TO ANY PROPERTY TO THE EXTENT THAT SUCH DAMAGE IS CAUSED BY ANY NEGLIGENT ACT OR WILLFUL MISCONDUCT OF BUYER OR ITS EMPLOYEES IN THE USE OR SUBSEQUENT RESALE OF THE PRODUCT.
9. LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.
10. ASSIGNMENT: Neither the Order nor any interest or rights therein shall be assigned or transferred by Buyer without Seller’s prior written Seller may at any time assign the Order and any and all rights hereunder. In addition, Seller may, without the consent of Buyer, assign its rights to collect and receive payment of amounts due hereunder in connection with a factoring, securitization, or other similar arrangement regarding some or all of Seller's receivables.
11. NOTICES: All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Conditions, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
12. GOVERNING LAW/WAIVER AND JURY TRIAL/CONSENT TO JURISDICTION: These Conditions shall be governed and construed in accordance with the laws of Texas without regard to the conflicts of law principles thereof. Further, the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Conditions. Each party to these Conditions waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any action, suit, or proceeding arising out of or relating to these Conditions. Further, Buyer and Seller irrevocably submit to the exclusive jurisdiction of the federal courts of the United States of America located in the Southern District of Texas, Houston Division, and the state District Courts of Texas located in Harris County, Texas. Buyer and Seller submit to and grant any such court jurisdiction over the person of such parties and over the subject matter of any such dispute.
13. COMPLIANCE WITH LAWS: Buyer agrees to comply with all applicable laws, rules, and regulations ("Laws"), from whatever authority they may emanate, provided they are not in conflict with U.S. Law. Furthermore, Buyer shall comply with all applicable export control and trade embargo Laws, and shall not resell, export, re-export, distribute, transfer or dispose of the Product, directly or indirectly, without first obtaining all necessary written consents, permits, authorizations, and licenses and completing such formalities as may be required by any such Laws. Failure by Buyer to comply with such Laws shall constitute a material breach of these Conditions. Buyer agrees to impose this same compliance requirement in its contracts with third parties pertaining to the Product.
14. CONFIDENTIAL INFORMATION: All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with these Conditions is confidential, solely for the use of performing these Conditions and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
15. SPECIAL ORDER: If the Product sold hereunder is manufactured for specially Buyer and Buyer's performance is suspended or terminated for any reason, in addition to Seller's other rights and remedies, Seller may require Buyer to take delivery of and make payment for such Product as has been specially manufactured or as may be in process as of the date of such notice of suspension or termination; if Buyer cannot take delivery of such Product, Buyer shall make payment for same as if delivery had been taken and Seller may store or dispose of such Product for Buyer's account and at Buyer's expense. Buyer shall defend, indemnify and hold Seller harmless from and against any expense, judgment, liability or loss, including reasonable attorneys' fees, resulting from any claim of infringement of any patents, trademarks, copyrights or other third-party property rights that results from Seller's compliance with Buyer's specifications or instructions.
16. TECHNICAL INFORMATION: If Seller furnishes technical or other information or advice to Buyer, whether or not at Buyer's request, Seller shall not be liable for, and Buyer assumes all risks related to, such information or advice and the results thereof.
17. PROPRIETARY RIGHTS: All drawings, designs, specifications, descriptions, technical data and other information (“Information”) furnished by Seller for use with the Order constitute the property and/or trade secrets of Buyer expressly covenants and agrees that it will treat the Information as strictly confidential and use the Information only to complete the Order and to return the Information upon completion or termination of the Order along with all copies or reproductions thereof. Buyer agrees that copies of the Information can be made only with Seller’s prior written consent.
18. EXCUSED PERFORMANCE/ FORCE MAJEURE: When either party's ability to manufacture, deliver, receive or consume Product or to otherwise perform under these Conditions (other than Buyer's obligation or ability to make payment for Product delivered under these Conditions) is impeded, restricted or affected (A) by any of such causes as (or cause similar thereto) (i) fire, explosion, flood, storm, earthquake, tidal wave, act of God, terrorism, war, military operation, national emergency, civil commotion, or other event of the type of the foregoing, (ii) any strike or other difference with workers or unions (without regard to the reasonableness of acceding to the demands of such workers or unions), (iii) any governmental law, regulation, decree, order, or similar act, or (iv) any shortage in supplies of, or impairment in the production, manufacturing, transportation or distribution facilities of, either party attributable to (a) mechanical or other interruption, breakdown or failure, (b) the order, requisition, request, or recommendation of any governmental agency or acting governmental authority, or either party's compliance therewith, (c) governmental proration, regulation, or priority, or (d) the inability of Seller to obtain from its usual sources, on terms and conditions deemed practical by Seller in its sole judgment, any right, equipment, labor, transportation, or any feedstock or other raw material (including energy) necessary for manufacturing, producing or delivering Product, or (B) by any cause beyond such party's reasonable control, whether similar or dissimilar to any aforementioned cause, then the party whose ability is so impeded, restricted, or affected shall have the right, in its sole discretion, by notice to the other party, to reduce, in part or in full, deliveries or receipt of Product hereunder, and such notifying party shall have no liability or responsibility to the other party for any loss or damage resulting from such reduced deliveries or receipt of Product; any such deliveries so reduced shall be permanently canceled rather than merely suspended. If Seller's ability to supply Buyer with Product from Seller's facilities is impeded, restricted, or affected by one or more of the aforementioned causes, then Seller shall not be obligated to purchase or obtain Product for Buyer on the open market or from other producers or suppliers of Product. However, in the event that Seller should, nevertheless, determine, in its sole discretion, to purchase or obtain Product on the open market or from other producers or suppliers of Product, then any such purchase or obtaining of Product shall not constitute a waiver or estoppel of Seller's rights, or otherwise preclude Seller from asserting its rights under these Conditions, not to purchase or obtain, or continue to purchase or obtain, Product for Buyer. Seller's obligation to sell Product is subject to modification and reduction in accordance with any present or future allocation program of Seller or of any governmental authority.
19. Nothing contained herein shall be construed to create an association, joint venture, trust, or partnership, or impose a trust or partnership covenant, obligation, or liability on or with regard to the parties. Any ambiguities or uncertainties in the wording of any provision of these Conditions shall not be construed or interpreted for or against any party because that party drafted or caused its legal representative to draft the provision. Unless expressly stated otherwise in these Conditions, words used in the singular include t the plural, the plural includes the singular, and the neuter gender includes the masculine and the feminine. The headings used herein are for convenience only and shall not be used to interpret these Conditions. The failure of either party to insist, in any one instance or more, upon the performance of any of the covenants or conditions of these Conditions, or to exercise any right or privilege herein conferred, shall not be construed as thereafter waiving any such covenants, conditions, rights or privileges, but the same shall continue and remain in full force and effect. These Conditions for the sole benefit of the parties hereto and their successors and permitted assigns, and nothing herein expressed or implied shall give or be construed to give to any person, other than the parties hereto and such successors and permitted assigns, any legal or equitable rights hereunder. If for any reason any provision contained in these Conditions is held to be invalid, illegal, unenforceable, or otherwise void by a court of competent jurisdiction, the remaining provisions of these Conditions shall not be affected and shall continue in full force and effect. All wood sales are final. There shall be not returns or exchanges on wood sales. Failure to use wood products in a recommended way does not constitute a basis for refusing to pay any of the associated costs related to a wood sale.