All quotations and sales of goods and products (“Products”) manufactured by United States Pipe and Foundry, LLC, Griffin Pipe Products Co., LLC, and U.S. Pipe Fabrication, LLC (collectively, “Seller”) to buyer 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”).

TERMS OF SALE. All sales to Buyer are subject to these Terms, which shall prevail over any inconsistent terms of Buyer’s purchase order or other documents. 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 contract 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 Purchaser, 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 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.

PRICES. Seller’s quoted prices are subject to change without notice, and all quotations for pipe or pipe fittings expire and become invalid if Buyer does not accept them and ship them complete within 180 days from the date of issue. All Grooved product pricing is firm for 30 (thirty) days. 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 ten (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.

All prices may be subject to a minimum 5% increase 180 days from Bid date.   Orders, releases, and or shipments placed after one year may be repriced at current market conditions.

Quotes are represented as a unit price quote and should not be considered a lump sum quote. If additional material is needed beyond the quantities represented, Seller reserves the right to re-price the products at time of order.

If a product is of a different diameter, lining or coating, or configuration is required that is not included in the quote, that product will be priced at time of order based on current pricing at the time of release.

Buyer shall review and ensure that linings and coatings are correctly quoted per their request. Seller will not be held responsible for any charges incurred if incorrect linings and coatings are quoted. Seller has quoted Seller’s standard primer. If a different primer is required, additional charges may apply.

PRICE ESCALATION. Pricing for the first year following the date of the quote may change following 180 (one hundred eighty) days from the Bid Date for pipe, flanged pipe and fabrication, and fittings and 30 (thirty) days for grooved products.

All orders, releases, and or shipments placed or made after 180 (one hundred-eighty) days of the Bid Date are subject to a minimum 5% price increase each 180 (one hundred-eighty) days following the Bid Date if a price increase occurred during the preceding 180 (one hundred-eighty) days.

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 Products sold to Buyer. If any exemption from any such taxes is available, Buyer shall present an applicable tax exemption certificate to Seller before Seller’s first shipment.

PAYMENT. Any orders not paid in full in advance are orders on credit and are subject to the Seller’s Credit Application and its Terms and Conditions for Sale on Credit, located at www.forterrabp.com/credit-terms.  Payment terms for open credit sales are NET 30 DAYS from invoice date. Open credit sales are any sales to Buyer for which Buyer has not paid Seller in immediately available funds prior to shipment of the Product. 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 provide 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 specially manufactured goods ordered by Buyer hereunder. If Buyer fail 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. Seller does not accept the withholding of any amount of retainage for any balance outstanding, even if retainage 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 Buyer fail 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 apply 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 judgment against Buyer. Notwithstanding anything stated therein to the contrary, any lien waiver or release executed by Seller related to the goods 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 agree that all funds owed to or received by Buyer from any source, resulting from the labor or material supplied by Seller shall be held in trust for the benefit of Seller. Buyer agree 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 labor or materials supplied by Seller.

COSTS OF ENFORCEMENT. Buyer agree 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.

TITLE AND RISK OF LOSS. Risk of loss with respect to the Products passes to Buyer at the F.O.B. point. Seller will not make adjustments unless Buyer give Seller a written delivery form listing Product damage or loss, signed by carrier’s agent or driver, within 48 hours after delivery. In any event, Seller will not be responsible for any lost or damaged Products for which Buyer have signed a receipt acknowledging Buyer received such Products in good order. Title to the Product passes to Buyer upon Seller’s receipt of full payment from Buyer for all amounts owed for the Product. As collateral security for the payment of the purchase price of open orders, the Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of the Buyer in, to and under the Products to which title has passed to Buyer, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under applicable law If Seller holds Products per Buyer’s instructions or because Buyer have failed to supply shipping information, Buyer agrees that Seller may invoice Buyer for the Product, and Buyer agrees to make payment in accordance with the invoice terms.

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. Seller accepts no liability for late deliveries, including any liquidated damages. Buyer’s acceptance of any Products will constitute Buyer’s waiver of any claim for damages because of any delay in delivery of such Products.

FORCE MAJEURE. Seller shall not be liable for any failure, damage, or delay in manufacture, shipment, or delivery of Products resulting from a cause beyond Seller’s reasonable control, including, but not limited to: acts of God, provisions of law, governmental action or regulations, accident, explosion, fire, weather, flood or other casualty, strike, lockout, or other labor difficulty, civil unrest or riot, war, acts of terrorism, insurrection, or scarcity of labor, raw material, production facilities or transportation. Upon 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.

In the event Force Majeure is declared, Seller will not be liable for any causes of actions for breach or damages that arise from Seller’s inability to meet Seller’s delivery or pricing obligations.

INSPECTION. Buyer shall inspect the Products immediately on the arrival thereof and within fourteen (14) days after arrival shall give written notice to Seller of any matter by reason whereof it may allege that the Products are not in accordance with the Agreement. If Buyer shall fail to give such notice, the Products shall be deemed to be in all respects in accordance with the agreement terms. All Products made to special specifications are deemed to be inspected and accepted before shipment is made and may not be canceled.

CANCELLATION AND CHANGES. Buyer may not cancel or change any Order Buyer have placed unless agreed to in writing by an authorized representative of Seller, and Buyer will remain responsible for any costs incurred by Seller prior to or because of such cancellation or 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 fifteen (15) days of such cancellation or change the contract price, including applicable taxes, for all Products which have been completed prior to Seller’s actual receipt of Buyer’s notice of cancellation or change. In addition, Buyer shall pay to Seller within fifteen (15) days of such cancellation or change all costs and other expenses incurred by Seller for uncompleted items plus a cancellation charge in an amount equal to one hundred percent (100%) of the amount of the Order. In the event of any change, Seller shall be entitled to revise its prices and delivery schedules to reflect such change.

RETURNS. Buyer shall not return Product 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 Product, Seller will accept returned Product for credit if, in its sole discretion, it finds such Product to be in good and resaleable condition. Such credit shall be the invoice price of the returned Product less 45% on acceptable Product, and less all shipping and handling charges. If such Product is not in good and resalable condition, as determined in Seller’s sole discretion, the credit given to Buyer shall be the scrap value of the Product less all shipping and handling charges.

SPECIFICATIONS. Seller is not responsible or liable for the adequacy or performance of engineering, design, or specifications furnished by Buyer.

SCHEDULE. Lead times will be established upon receipt of a valid purchase order. For a purchase order to be considered valid, it must contain accurate mutually agreed-upon ship dates and ship no later than the stated quotation terms. Material will be released for use on other Seller orders and new lead times will be negotiated if material has not shipped within 14 days of original release date.

WARRANTY. Seller warrants that its Products will conform to the description and specifications in Buyer’s Order(s) for them for a period of one (1) year from the date such Product is installed; provided, however, that Seller reserves the right to furnish thicker (wall) Product than Buyer’s order without prior notice to Buyer if it meets all other specifications in Buyer’s Order(s). 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 OTHERWISES, 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 Seller which is not specifically set forth in these terms shall be binding upon Seller.  Buyer assumes all risk and liability resulting from Product use, whether singly or in combination with other Products. 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) THE REPLACEMENT AT THE AGREED POINT OF DELIVERY OF ANY PRODUCTS THAT DO NOT CONFORM TO THE DESCRIPTION AND SPECIFICATIONS IN BUYER’s ORDER(S) FOR THEM, (ii) THE REPAIR OF ANY PRODUCTS THAT DO NOT CONFORM TO THE DESCRIPTION AND SPECIFICATIONS IN BUYER’S ORDER(S) FOR THEM, OR (iii) THE REFUND OR CREDITING TO BUYER’S ACCOUNT OF THE AMOUNT PAID FOR SUCH PRODUCTS. SELLER IS NOT RESPONSIBLE FOR ANY LABOR, REMOVAL, OR INSTALLATION CHARGES THAT MAY RESULT FROM ANY REPAIR OR REPLACEMENT OF PRODUCTS.  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 soils, earthquake, installation, vandalism, impact damage to Products, 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 of the Products. 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. Seller makes no warranty whatsoever with respect to Goods, products, accessories or parts furnished by Seller but not manufactured by Seller, which carry 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 PRODUCTS 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 SERVICES OR FROM ANY OTHER CAUSE OR BREACH.  IN NO EVENT SHALL SELLER’S LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER; BUYER WAIVES ANY CLAIM IN EXCESS OF SUCH AMOUNT.

NOTICE OF CLAIMS. Seller will promptly consider 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: (A) at the time Buyer receive Products with a deficiency (such as a shortage) or defect that can be seen by visual examination, or (B) within ninety (90) days after Buyer receive Products deficient for any other reason. As to Products 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 one (1) year after the latter of delivery or installation of the Product, or the claims shall be barred and deemed waived notwithstanding any statutory period of limitations. Seller must be given reasonably opportunity to investigate all claims. Seller is not liable for any charge or expense incident to a claim absent the written consent of an authorized representative of Seller.

INDEMNIFICATION. Buyer acknowledges that Seller does not participate in the installation of the Products. Buyer agrees to indemnify, defend, and hold harmless Seller 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 Seller arising from or related to use or resale of the Products and any of Buyer’s negligent, intentional or tortious acts or omissions, including the installation of any Product or Buyer’s failure to comply with this Agreement.

GOVERNING LAW. These terms, and each sale and purchase of Products to Buyer by Seller, 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 Seller shall be construed and governed by the law of the jurisdiction where the goods or services were delivered, consumed, or used.  The United National Convention on Contracts for the International Sale of Goods, and any successor thereto, will not apply to this Agreement.

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 in accordance with the then-current Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. No Dispute will be arbitrated as a class action, representative or general public action, collective action, private attorney-general action, or otherwise be joined with claims of any other person, and any arbitrator attempting such a proceeding shall be deemed to have exceeded the powers available under the Federal Arbitration Act. Claims shall be heard by a single arbitrator in Dallas 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 Dallas 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. 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, acknowledgment, 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 authorized representative of Seller. Buyer shall not assert that Seller’s waiver of Buyer’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 Buyer’s default is a continuing waiver of the right, and Buyer agree that Seller may exercise the right at a later time.

NO THIRD PARTY BENEFICIARIES. Buyer and Seller 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.

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.

Rev. 07.22.2021

Terms and Conditions of Purchase

All purchases of goods and services (“Products”) by United States Pipe and Foundry, LLC, Griffin Pipe Products Co., LLC, and U.S. Pipe Fabrication, LLC (collectively, “Purchaser”) from seller and its parents, subsidiaries, affiliates, or business units (collectively, “Seller”) are expressly conditioned upon Seller’s acceptance of these Terms and Conditions of Sale (this “Agreement”).

ACCEPTANCE. This Agreement, including any terms, specifications, descriptions or other information on the face of Purchaser’s purchase order form, as well as those submitted on or with Purchaser’s order for goods hereunder (the “Order”) constitutes a binding contract upon the terms and conditions herein when accepted by Seller, whether acceptance is by acknowledgment, by commencement of shipments, or otherwise. If any of Seller’s prior proposals, quotations, or writings conflicts with the terms of the Order or this Agreement, the terms hereof shall govern. Purchaser recognizes that Seller may, for operating convenience, utilize its own form of acknowledgment or confirmation of sale in accepting any Order; in such case, any provisions, terms or conditions in such form of acceptance which modify, conflict with, contradict or add to any provision, term or condition of this Agreement, shall be deemed to be waived (unless expressly accepted in writing by Purchaser), it being agreed that the provisions, terms, and conditions of this Agreement constitute the entire Agreement between the Parties. Not in limitation of the foregoing, this Agreement expressly limits acceptance to the terms and conditions of this Agreement. and any alterations, modifications, additions or deletions of any terms or provisions of this Agreement made by Seller are hereby rejected and will not be binding upon Purchaser unless expressly accepted in writing by Purchaser.

DELIVERY. Time is of the essence with respect to all Orders made under this Agreement. Delivery is subject to any schedule and/or specifications including, without limitation, any designations as to location of delivery, contained in any Order. In the event of Seller’s failure to deliver as and when specified, Purchaser reserves the right to cancel any such Order, or any part thereof without charges therefor, without prejudice to its other rights, and Seller agrees that Purchaser may return part or all of any shipment so made and may charge Seller with any loss or expense sustained as a result of such failure to deliver. Any shipment made in advance of schedule, at Purchaser’s option, will be (a) accepted but entry of invoice will be deferred until shipment was scheduled to be made, or (b) returned to Seller at Seller’s expense. Seller shall package all shipments in suitable containers to permit safe transportation and handling. Each delivered shipment must be labeled and marked to identify contents without opening and all containers must contain packing sheets listing contents thereof. Purchaser’s Order number and Seller’s vendor number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.

EXTRA HANDLING CHARGES. Any extra handling charges incurred due to the failure of Seller to follow instructions in filling an Order under this Agreement will be billed back to Seller.

PAYMENT TERMS. Payment for the goods covered by any Order under this Agreement will be made as provided on the face of Purchaser’s purchase order form or if not specified payment will be made 45 days following delivery of shipment and submission of invoice by Seller complying with the terms of the Order. Each invoice submitted by Seller must reference the applicable Order and should be delivered to the billing address specified on the face of Purchaser’s purchase order form. Purchaser will be offered and may take Seller’s customary cash discount. Should an invoice bear a date prior to date the goods and/or services are received by Purchaser, the time during which discount for payment of invoices is allowed shall not begin to run until the date the goods and/or services are received by Purchaser. Sight draft shipments will not be honored.

INSPECTION. All goods provided by Seller will be subject to final inspection and acceptance by Purchaser within a reasonable time after receipt by Purchaser at the location designated in this Order, irrespective of prior payment. Purchaser may reject any goods or portion of goods provided by Seller that are not in conformance with its Order. Any such goods or portion of goods may be returned to Seller at Seller’s risk and expense, and at full invoice price plus applicable transportation charges. Seller will replace any non-conforming or defective goods to Purchaser upon Purchaser’s request.

WARRANTIES. Unless otherwise agreed to in writing by the parties, Seller expressly warrants that all goods and/or services provided to Purchaser conform to the terms and conditions of Seller’s Order. If goods are ordered to specifications, Seller expressly warrants that such goods strictly conform thereto and to any blueprints or drawings, samples or other description furnished by Purchaser in connection with Seller’s Order or, if not ordered to specifications, such goods will be fit and sufficient for the purposes intended and, unless otherwise agreed to in writing by Purchaser, will be new and not used or refurbished. Seller further expressly warrants that all goods and/or services provided by Seller in connection with this Agreement will be merchantable, of good material and workmanship, free from defect, and not subject to any security interest or other lien. These warranties shall survive acceptance and payment and shall run to Purchaser, its successors, assigns, customers and the users of the goods and/or services ordered herein and shall not be deemed to be exclusive.

CANCELLATION. Purchaser reserves the right to cancel this Order in whole or in part in respect to goods or services covered by this Order and not shipped or performed prior to such cancellation, without incurring liability, by written notice to Seller, before such shipment or performance, unless such goods were specifically manufactured to specifications of Purchaser. In the latter case, provided that Seller is not otherwise in default hereunder, Seller shall, unless otherwise directed, cease work and follow Purchaser’s directions as to disposal of work in progress and finished goods.

GENERAL INDEMNITY. Seller agrees to defend and save harmless Purchaser, its employees, agents, affiliates, successors, assigns, customers or users of the goods and/or services ordered herein, against all damages, claims or demands and all suits at law or in equity arising out of or related to any actual or alleged injury to any person, including death, damage to any property, defect in any goods or any other damage or loss alleged to have resulted from the goods and/or services hereby ordered or resulting from or relating to any actual or alleged breach of any of Seller’s obligations hereunder or other acts, including acts of omission, of Seller, its officers, agents, employees, or subcontractors, and upon notification of any such suit or claim to Seller, Seller shall defend the same at Seller’s expense as to all costs, fees, and damages, and shall be responsible for all reasonable attorneys’ fees incurred by Purchaser. This indemnity shall survive the delivery and acceptance of any goods, materials or services and shall apply without regard to whether the claim, damage, liability or expense is based on breach of contract, breach of warranty, negligence, strict liability, or other tort. Purchaser may set off any amount owed to it by Seller against any sum payable hereunder by Purchaser to Seller.

PATENT INDEMNITY. Seller agrees to defend, indemnify and hold Purchaser, its successors, assigns, customers, and the users of the goods and/or services ordered herein, harmless against loss, damage or liability including costs, expenses and reasonable attorneys’ fees which may be incurred on account of any claim, demand, suit or judgment involving infringement or alleged infringement of any patent rights, trade names or trade secrets or other proprietary right of a third party in the manufacture, use or disposition of any goods and/or services supplied hereunder, provided Purchaser shall notify Seller of any such claim, demand or suit and to the extent possible, Seller shall be permitted to defend the same or make settlement in respect thereof. Should Purchaser’s use, or use by its distributors, subcontractors or customers, of any goods or services purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at its sole cost and expense, either (a) substitute fully equivalent non-infringing goods or services; (b) modify the goods or services so that they no longer infringe, but remain fully equivalent in functionality; (c) obtain for Purchaser, its distributors, subcontractors or customers the right to continue using the goods or services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing goods or services.

FORCE MAJEURE. Purchaser shall not be responsible for failure to receive delivery if occasioned by unforeseeable causes beyond its control which makes such receipt commercially impractical including, without limitation, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation. At Purchaser’s option the total quantity covered by this Order may be reduced to the extent of shipments refused or the delivery period specified may be extended by a time equal to that during which shipments shall be refused and such shipments thereafter made during the period of extension.

CONFIDENTIAL DATA. If Seller acquires knowledge of any Purchaser Confidential Information (as defined below) in connection with its performance hereunder, it agrees to keep such Purchaser Confidential Information confidential during and following the fulfillment, completion or expiration of the Order. “Purchaser Confidential Information” includes, but is not limited to, all information, whether written or oral, in any form, including, without limitation, information relating to research, development, products, specifications, drawings, blueprints, nomenclature, samples, models, methods of manufacture, trade secrets, business plans or practices, customers, vendors, finances, personnel data, work product, and other material information considered proprietary by Purchaser relating to the current or anticipated business or affairs of Purchaser which is disclosed directly or indirectly to Seller. Seller agrees not to copy, alter, or directly or indirectly disclose any Purchaser Confidential Information. Additionally, Seller agrees to limit its internal distribution of Purchaser Confidential Information to Seller’s employees who have a need to know such Purchaser Confidential Information, and to take steps to ensure that the dissemination is so limited. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to protect the unauthorized use of Purchaser Confidential Information. Seller further agrees not to use Purchaser Confidential Information except in the course of performing or fulfilling an Order under this Agreement and will not use such Purchaser Confidential Information for its own benefit or for the benefit of any third party. All Purchaser Confidential Information is and shall remain the property of Purchaser. Upon Purchaser’s written request, Seller shall return, transfer or assign to Purchaser all Purchaser Confidential Information and all copies thereof.

INDEPENDENT CONTRACTOR. Seller is an independent contractor for all purposes without express or implied authority to bind Purchaser by contract or otherwise. Neither Seller nor any of its employees, agents, or subcontractors is an agent or employee of Purchaser. Seller shall be responsible for all costs and expenses incident to performing or fulfilling its obligations under this Order and shall provide Seller’s own supplies and equipment. Seller agrees that this Order does not create an exclusive relationship between Purchaser and Seller, and that Purchaser is free to order any goods or services, including similar goods or services from any party.

INSURANCE. In connection with the purchase of services for the installation of products manufactured by Purchaser, Seller shall furnish evidence of workmen’s compensation and public liability insurance coverage in amounts satisfactory to Purchaser. If Seller performs services, constructs, erects, or inspects on premises owned or leased by Purchaser, Seller will present certificates of insurance to Purchaser in form and content reasonably satisfactory to Purchaser, for retention in Purchaser’s files prior to the initiation of such work.

EMPLOYMENT, SAFETY AND HEALTH LAWS. Seller agrees at its own expense to comply with all applicable Federal and State employment, safety, environmental and health laws including OSHA, and Seller assumes all liabilities or obligations imposed by anyone or more of such laws with respect to this Order.

EQUAL OPPORTUNITY EMPLOYER. Purchaser and Seller, and each of them, is an equal opportunity employer.

GOVERNING LAW. The contract resulting from the acceptance of this Order shall be interpreted under and shall be governed by the laws of the State of Texas.

Rev. 07.22.2021

TERMS AND CONDITIONS

• Terms and Conditions of Purchase
• Terms and Conditions of Sale

All purchases of goods and services (“Products”) by United States Pipe and Foundry Company, LLC, Griffin Pipe Products Co., LLC, and U.S. Pipe Fabrication, LLC (collectively, “Purchaser”) from seller and its parents, subsidiaries, affiliates, or business units (collectively, “Seller”) are expressly conditioned upon Seller’s acceptance of these Terms and Conditions of Purchase (this “Agreement”).

ACCEPTANCE. This Agreement, including any terms, specifications, descriptions or other information on the face of Purchaser’s purchase order form, as well as those submitted on or with Purchaser’s order for goods hereunder (the “Order”) constitutes a binding contract upon the terms and conditions herein when accepted by Seller, whether acceptance is by acknowledgment, by commencement of shipments, or otherwise. If any of Seller’s prior proposals, quotations, or writings conflicts with the terms of the Order or this Agreement, the terms hereof shall govern. Purchaser recognizes that Seller may, for operating convenience, utilize its own form of acknowledgment or confirmation of sale in accepting any Order; in such case, any provisions, terms or conditions in such form of acceptance which modify, conflict with, contradict or add to any provision, term or condition of this Agreement, shall be deemed to be waived (unless expressly accepted in writing by Purchaser), it being agreed that the provisions, terms, and conditions of this Agreement constitute the entire Agreement between the Parties. Not in limitation of the foregoing, this Agreement expressly limits acceptance to the terms and conditions of this Agreement and any alterations, modifications, additions or deletions of any terms or provisions of this Agreement made by Seller are hereby rejected and will not be binding upon Purchaser unless expressly accepted in writing by Purchaser.

DELIVERY. Time is of the essence with respect to all Orders made under this Agreement. Delivery is subject to any schedule and/or specifications including, without limitation, any designations as to location of delivery, contained in any Order. In the event of Seller’s failure to deliver as and when specified, Purchaser reserves the right to cancel any such Order, or any part thereof without charges therefor, without prejudice to its other rights, and Seller agrees that Purchaser may return part or all of any shipment so made and may charge Seller with any loss or expense sustained as a result of such failure to deliver. Any shipment made in advance of schedule, at Purchaser’s option, will be (a) accepted but entry of invoice will be deferred until shipment was scheduled to be made, or (b) returned to Seller at Seller’s expense. Seller shall package all shipments in suitable containers to permit safe transportation and handling. Each delivered shipment must be labeled and marked to identify contents without opening and all containers must contain packing sheets listing contents thereof. Purchaser’s Order number and Seller’s vendor number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.

EXTRA HANDLING CHARGES. Any extra handling charges incurred due to the failure of Seller to follow instructions in filling an Order under this Agreement will be billed back to Seller.

PAYMENT TERMS. Payment for the goods covered by any Order under this Agreement will be made as provided on the face of Purchaser’s purchase order form or if not specified payment will be made 45 days following delivery of shipment and submission of invoice by Seller complying with the terms of the Order. Each invoice submitted by Seller must reference the applicable Order and should be delivered to the billing address specified on the face of Purchaser’s purchase order form. Purchaser will be offered and may take Seller’s customary cash discount. Should an invoice bear a date prior to the date the goods and/or services are received by Purchaser, the time during which discount for payment of invoices is allowed shall not begin to run until the date the goods and/or services are received by Purchaser. Sight draft shipments will not be honored.

INSPECTION. All goods provided by Seller will be subject to final inspection and acceptance by Purchaser within a reasonable time after receipt by Purchaser at the location designated in this Order, irrespective of prior payment. Purchaser may reject any goods or portion of goods provided by Seller that are not in conformance with its Order. Any such goods or portion of goods may be returned to Seller at Seller’s risk and expense, and at full invoice price plus applicable transportation charges. Seller will replace any non-conforming or defective goods to Purchaser upon Purchaser’s request.

WARRANTIES. Unless otherwise agreed to in writing by the parties, Seller expressly warrants that all goods and/or services provided to Purchaser conform to the terms and conditions of Seller’s Order. If goods are ordered to specifications, Seller expressly warrants that such goods strictly conform thereto and to any blueprints or drawings, samples or other description furnished by Purchaser in connection with Seller’s Order or, if not ordered to specifications, such goods will be fit and sufficient for the purposes intended and, unless otherwise agreed to in writing by Purchaser, will be new and not used or refurbished. Seller further expressly warrants that all goods and/or services provided by Seller in connection with this Agreement will be merchantable, of good material and workmanship, free from defect, and not subject to any security interest or other lien. These warranties shall survive acceptance and payment and shall run to Purchaser, its successors, assigns, customers and the users of the goods and/or services ordered herein and shall not be deemed to be exclusive.

CANCELLATION. Purchaser reserves the right to cancel this Order in whole or in part in respect to goods or services covered by this Order and not shipped or performed prior to such cancellation, without incurring liability, by written notice to Seller, before such shipment or performance, unless such goods were specifically manufactured to specifications of Purchaser. In the latter case, provided that Seller is not otherwise in default hereunder, Seller shall, unless otherwise directed, cease work and follow Purchaser’s directions as to disposal of work in progress and finished goods.

GENERAL INDEMNITY. Seller agrees to defend and save harmless Purchaser, its employees, agents, affiliates, successors, assigns, customers or users of the goods and/or services ordered herein, against all damages, claims or demands and all suits at law or in equity arising out of or related to any actual or alleged injury to any person, including death, damage to any property, defect in any goods or any other damage or loss alleged to have resulted from the goods and/or services hereby ordered or resulting from or relating to any actual or alleged breach of any of Seller’s obligations hereunder or other acts, including acts of omission, of Seller, its officers, agents, employees, or subcontractors, and upon notification of any such suit or claim to Seller, Seller shall defend the same at Seller’s expense as to all costs, fees, and damages, and shall be responsible for all reasonable attorneys’ fees incurred by Purchaser. This indemnity shall survive the delivery and acceptance of any goods, materials or services and shall apply without regard to whether the claim, damage, liability or expense is based on breach of contract, breach of warranty, negligence, strict liability, or other tort. Purchaser may set off any amount owed to it by Seller against any sum payable hereunder by Purchaser to Seller.

PATENT INDEMNITY. Seller agrees to defend, indemnify and hold Purchaser, its successors, assigns, customers, and the users of the goods and/or services ordered herein, harmless against loss, damage or liability including costs, expenses and reasonable attorneys’ fees which may be incurred on account of any claim, demand, suit or judgment involving infringement or alleged infringement of any patent rights, trade names or trade secrets or other proprietary right of a third party in the manufacture, use or disposition of any goods and/or services supplied hereunder, provided Purchaser shall notify Seller of any such claim, demand or suit and to the extent possible, Seller shall be permitted to defend the same or make settlement in respect thereof. Should Purchaser’s use, or use by its distributors, subcontractors or customers, of any goods or services purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at its sole cost and expense, either (a) substitute fully equivalent non-infringing goods or services; (b) modify the goods or services so that they no longer infringe, but remain fully equivalent in functionality; (c) obtain for Purchaser, its distributors, subcontractors or customers the right to continue using the goods or services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing goods or services.

FORCE MAJEURE. Purchaser shall not be responsible for failure to receive delivery if occasioned by unforeseeable causes beyond its control which makes such receipt commercially impractical including, without limitation, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation. At Purchaser’s option the total quantity covered by this Order may be reduced to the extent of shipments refused or the delivery period specified may be extended by a time equal to that during which shipments shall be refused and such shipments thereafter made during the period of extension.

CONFIDENTIAL DATA. If Seller acquires knowledge of any Purchaser Confidential Information (as defined below) in connection with its performance hereunder, it agrees to keep such Purchaser Confidential Information confidential during and following the fulfillment, completion or expiration of the Order. “Purchaser Confidential Information” includes, but is not limited to, all information, whether written or oral, in any form, including, without limitation, information relating to research, development, products, specifications, drawings, blueprints, nomenclature, samples, models, methods of manufacture, trade secrets, business plans or practices, customers, vendors, finances, personnel data, work product, and other material information considered proprietary by Purchaser relating to the current or anticipated business or affairs of Purchaser which is disclosed directly or indirectly to Seller. Seller agrees not to copy, alter, or directly or indirectly disclose any Purchaser Confidential Information. Additionally, Seller agrees to limit its internal distribution of Purchaser Confidential Information to Seller’s employees who have a need to know such Purchaser Confidential Information, and to take steps to ensure that the dissemination is so limited. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to protect the unauthorized use of Purchaser Confidential Information. Seller further agrees not to use Purchaser Confidential Information except in the course of performing or fulfilling an Order under this Agreement and will not use such Purchaser Confidential Information for its own benefit or for the benefit of any third party. All Purchaser Confidential Information is and shall remain the property of Purchaser. Upon Purchaser’s written request, Seller shall return, transfer or assign to Purchaser all Purchaser Confidential Information and all copies thereof.

INDEPENDENT CONTRACTOR. Seller is an independent contractor for all purposes without express or implied authority to bind Purchaser by contract or otherwise. Neither Seller nor any of its employees, agents, or subcontractors is an agent or employee of Purchaser. Seller shall be responsible for all costs and expenses incident to performing or fulfilling its obligations under this Order and shall provide Seller’s own supplies and equipment. Seller agrees that this Order does not create an exclusive relationship between Purchaser and Seller, and that Purchaser is free to order any goods or services, including similar goods or services from any party.

INSURANCE. In connection with the purchase of services for the installation of products manufactured by Purchaser, Seller shall furnish evidence of workmen’s compensation and public liability insurance coverage in amounts satisfactory to Purchaser. If Seller performs services, constructs, erects, or inspects on premises owned or leased by Purchaser, Seller will present certificates of insurance to Purchaser in form and content reasonably satisfactory to Purchaser, for retention in Purchaser’s files prior to the initiation of such work.

EMPLOYMENT, SAFETY AND HEALTH LAWS. Seller agrees at its own expense to comply with all applicable Federal and State employment, safety, environmental and health laws including OSHA, and Seller assumes all liabilities or obligations imposed by anyone or more of such laws with respect to this Order.

EQUAL OPPORTUNITY EMPLOYER. Purchaser and Seller, and each of them, is an equal opportunity employer.

GOVERNING LAW. The contract resulting from the acceptance of this Order shall be interpreted under and shall be governed by the laws of the State of Texas.

All quotations and sales of goods and products (“Products”) manufactured by United States Pipe and Foundry Company, LLC, Griffin Pipe Products Co., LLC, and U.S. Pipe Fabrication, LLC (collectively, “Seller”) to buyer 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”).

TERMS OF SALE. All sales to Buyer are subject to these Terms, which shall prevail over any inconsistent terms of Buyer’s purchase order or other documents. 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 contract 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 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.

PRICES. Seller’s quoted prices are subject to change without notice, and all quotations for pipe or pipe fittings expire and become invalid if Buyer does not accept them and ship them complete within 180 days from the date of issue. All Grooved product pricing is firm for 30 (thirty) days. 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 ten (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.

All prices may be subject to a minimum 5% increase 180 days from Bid date. Orders, releases, and or shipments placed after one year may be repriced at current market conditions.

Quotes are represented as a unit price quote and should not be considered a lump sum quote. If additional material is needed beyond the quantities represented, Seller reserves the right to re-price the products at time of order.

If a product is of a different diameter, lining or coating, or configuration is required that is not included in the quote, that product will be priced at time of order based on current pricing at the time of release.

Buyer shall review and ensure that linings and coatings are correctly quoted per their request. Seller will not be held responsible for any charges incurred if incorrect linings and coatings are quoted. Seller has quoted Seller’s standard primer. If a different primer is required, additional charges may apply.

PRICE ESCALATION. Pricing for the first year following the date of the quote may change following 180 (one hundred eighty) days from the Bid Date for pipe, flanged pipe and fabrication, and fittings and 30 (thirty) days for grooved products.

All orders, releases, and or shipments placed or made after 180 (one hundred-eighty) days of the Bid Date are subject to a minimum 5% price increase each 180 (one hundred-eighty) days following the Bid Date if a price increase occurred during the preceding 180 (one hundred-eighty) days.

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 Products sold to Buyer. If any exemption from any such taxes is available, Buyer shall present an applicable tax exemption certificate to Seller before Seller’s first shipment.

PAYMENT. Any orders not paid in full in advance are orders on credit and are subject to the Seller’s Credit Application. Payment terms for open credit sales are NET 30 DAYS from invoice date. Open credit sales are any sales to Buyer for which Buyer has not paid Seller in immediately available funds prior to shipment of the Product. 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 provide 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 specially manufactured goods ordered by Buyer hereunder. 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. Seller does not accept the withholding of any amount of retainage for any balance outstanding, even if retainage 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 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 apply 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 judgment against Buyer. Notwithstanding anything stated therein to the contrary, any lien waiver or release executed by Seller related to the goods 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 labor 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 labor or materials supplied by Seller.

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.

TITLE AND RISK OF LOSS. Risk of loss with respect to the Products passes to Buyer at the F.O.B. point. Seller will not make adjustments unless Buyer gives Seller a written delivery form listing Product damage or loss, signed by carrier’s agent or driver, within 48 hours after delivery. In any event, Seller will not be responsible for any lost or damaged Products for which Buyer has signed a receipt acknowledging Buyer received such Products in good order. Title to the Product passes to Buyer upon Seller’s receipt of full payment from Buyer for all amounts owed for the Product. As collateral security for the payment of the purchase price of open orders, the Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of the Buyer in, to and under the Products to which title has passed to Buyer, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under applicable law. If Seller holds Products per Buyer’s instructions or because Buyer has failed to supply shipping information, Buyer agrees that Seller may invoice Buyer for the Product, and Buyer agrees to make payment in accordance with the invoice terms.

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. Seller accepts no liability for late deliveries, including any liquidated damages. Buyer’s acceptance of any Products will constitute Buyer’s waiver of any claim for damages because of any delay in delivery of such Products.

FORCE MAJEURE. Seller shall not be liable for any failure, damage, or delay in manufacture, shipment, or delivery of Products resulting from a cause beyond Seller’s reasonable control, including, but not limited to: acts of God, provisions of law, governmental action or regulations, accident, explosion, fire, weather, flood or other casualty, strike, lockout, or other labor difficulty, civil unrest or riot, war, acts of terrorism, insurrection, or scarcity of labor, raw material, production facilities or transportation. Upon 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.

In the event Force Majeure is declared, Seller will not be liable for any causes of actions for breach or damages that arise from Seller’s inability to meet Seller’s delivery or pricing obligations.

INSPECTION. Buyer shall inspect the Products immediately on the arrival thereof and within fourteen (14) days after arrival shall give written notice to Seller of any matter by reason whereof it may allege that the Products are not in accordance with the Agreement. If Buyer shall fail to give such notice, the Products shall be deemed to be in all respects in accordance with the agreement terms. All Products made to special specifications are deemed to be inspected and accepted before shipment is made and may not be canceled.

CANCELLATION AND CHANGES. Buyer may not cancel or change any Order Buyer has placed unless agreed to in writing by an authorized representative of Seller, and Buyer will remain responsible for any costs incurred by Seller prior to or because of such cancellation or 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 fifteen (15) days of such cancellation or change the contract price, including applicable taxes, for all Products which have been completed prior to Seller’s actual receipt of Buyer’s notice of cancellation or change. In addition, Buyer shall pay to Seller within fifteen (15) days of such cancellation or change all costs and other expenses incurred by Seller for uncompleted items plus a cancellation charge in an amount equal to one hundred percent (100%) of the amount of the Order. In the event of any change, Seller shall be entitled to revise its prices and delivery schedules to reflect such change.

RETURNS. Buyer shall not return Product 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 Product, Seller will accept returned Product for credit if, in its sole discretion, it finds such Product to be in good and resaleable condition. Such credit shall be the invoice price of the returned Product less 45% on acceptable Product, and less all shipping and handling charges. If such Product is not in good and resaleable condition, as determined in Seller’s sole discretion, the credit given to Buyer shall be the scrap value of the Product less all shipping and handling charges.

SPECIFICATIONS. Seller is not responsible or liable for the adequacy or performance of engineering, design, or specifications furnished by Buyer.

SCHEDULE. Lead times will be established upon receipt of a valid purchase order. For a purchase order to be considered valid, it must contain accurate mutually agreed-upon ship dates and ship no later than the stated quotation terms. Material will be released for use on other Seller orders and new lead times will be negotiated if material has not shipped within 14 days of original release date.

WARRANTY. Seller warrants that its Products will conform to the description and specifications in Buyer’s Order(s) for them for a period of one (1) year from the date such Product is installed; provided, however, that Seller reserves the right to furnish thicker (wall) Product than Buyer’s order without prior notice to Buyer if it meets all other specifications in Buyer’s Order(s). 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 Seller which is not specifically set forth in these terms shall be binding upon Seller. Buyer assumes all risk and liability resulting from Product use, whether singly or in combination with other Products. 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) THE REPLACEMENT AT THE AGREED POINT OF DELIVERY OF ANY PRODUCTS THAT DO NOT CONFORM TO THE DESCRIPTION AND SPECIFICATIONS IN BUYER’s ORDER(S) FOR THEM, (ii) THE REPAIR OF ANY PRODUCTS THAT DO NOT CONFORM TO THE DESCRIPTION AND SPECIFICATIONS IN BUYER’S ORDER(S) FOR THEM, OR (iii) THE REFUND OR CREDITING TO BUYER’S ACCOUNT OF THE AMOUNT PAID FOR SUCH PRODUCTS. SELLER IS NOT RESPONSIBLE FOR ANY LABOR, REMOVAL, OR INSTALLATION CHARGES THAT MAY RESULT FROM ANY REPAIR OR REPLACEMENT OF PRODUCTS. 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 soils, earthquake, installation, vandalism, impact damage to Products, 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 of the Products. 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. Seller makes no warranty whatsoever with respect to goods, products, accessories or parts furnished by Seller but not manufactured by Seller, which carry 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 PRODUCTS 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 SERVICES OR FROM ANY OTHER CAUSE OR BREACH. IN NO EVENT SHALL SELLER’S LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER; BUYER WAIVES ANY CLAIM IN EXCESS OF SUCH AMOUNT.

NOTICE OF CLAIMS. Seller will promptly consider 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: (A) at the time Buyer receives Products with a deficiency (such as a shortage) or defect that can be seen by visual examination, or (B) within ninety (90) days after Buyer receives Products deficient for any other reason. As to Products 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 one (1) year after the latter of delivery or installation of the Product, or the claims shall be barred and deemed waived notwithstanding any statutory period of limitations. Seller must be given reasonable opportunity to investigate all claims. Seller is not liable for any charge or expense incident to a claim absent the written consent of an authorized representative of Seller.

INDEMNIFICATION. Buyer acknowledges that Seller does not participate in the installation of the Products. Buyer agrees to indemnify, defend, and hold harmless Seller 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 Seller arising from or related to use or resale of the Products and any of Buyer’s negligent, intentional or tortious acts or omissions, including the installation of any Product or Buyer’s failure to comply with this Agreement.

GOVERNING LAW. These terms, and each sale and purchase of Products to Buyer by Seller, 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 Seller shall be construed and governed by the law of the jurisdiction where the goods or services were delivered, consumed, or used. The United National Convention on Contracts for the International Sale of Goods, and any successor thereto, will not apply to this Agreement.

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 in accordance with the then-current Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. No dispute will be arbitrated as a class action, representative or general public action, collective action, private attorney-general action, or otherwise be joined with claims of any other person, and any arbitrator attempting such a proceeding shall be deemed to have exceeded the powers available under the Federal Arbitration Act. Claims shall be heard by a single arbitrator in Dallas 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 Dallas 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. 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, acknowledgment, or acceptance of any purchase order or other form Buyer provides 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 authorized representative of Seller. Buyer shall not assert that Seller’s waiver of Buyer’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 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. Buyer and Seller 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.

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.