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STANDARD TERMS AND CONDITIONS – MATERIAL PURCHASE ORDER

STANDARD TERMS AND CONDITIONS – MATERIAL PURCHASE ORDER

A Purchase Order issued by Oldcastle Precast, Inc. may contain a description of goods, applicable prices and delivery details and may contain special conditions (if any). The Purchase Order may also include attachments (if any) referenced therein. These Standard Terms and Conditions shall supplement and apply to any other terms and conditions included in a Purchase Order issued by Oldcastle Precast, Inc.

These terms and conditions are effective from September 22, 2017.

1. Applicability. These Standard Terms and Conditions (“Terms”) shall apply to the purchase of all products or services (“Goods”) purchased pursuant to an Oldcastle Precast, Inc. purchase order (“Order”) and may be changed from time to time at Oldcastle Precast, Inc.’s (“Buyer”) sole discretion. The party to whom an Order is addressed (the “Seller”), together with Buyer, may be referred to herein as the parties (the "Parties"). These Terms, together with any terms and conditions on the face of a written Order issued to Seller by Buyer, constitute the sole and entire agreement of Buyer and Seller with respect to the purchase of products and services referenced in the Order and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with an Order. Buyer is not obligated to any minimum purchase or future purchase obligations under any Orders. No change to any Order is binding upon Buyer unless it is in writing, signed by Buyer and specifically states that it amends the Order.
2. Acceptance. Seller shall be bound to the Order, as supplemented by these Terms, when it (a) executes and delivers the Order; or (b) delivers to Buyer any of the Goods. No contract shall exist except as herein above provided and no other form of acceptance is binding on Buyer. However, if the Order is signed before Buyer is awarded a contract for which the Goods are being elicited, then the Order shall constitute a pre-bid agreement which cannot be canceled by either party, and upon award of the contract to Buyer, shall become a binding Order. If no such award is made, the Order shall have no effect.
3. Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in the Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no Delivery Date is specified, Seller shall deliver the Goods as directed by Buyer. Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in the manner required, Buyer may terminate the Order immediately by providing notice to Seller.
4. Quantity. If an Order is designated a requirements purchase order, then the Order is for all the requirements of Buyer for the Goods for the project for which the Goods are supplied. If an Order is specified as a “unit price” Order, any quantities are estimates only, actual quantities may be more or less than the estimates. In any event, prices are firm for the duration of the project.
5. Delivery Location; Shipping Terms. At no additional cost to Buyer, all Goods shall be delivered to the address or location specified in the Order (the “Delivery Location”), or to such other location as Buyer may hereafter direct.
6. Title and Risk of Loss. Title passes to Buyer upon delivery of conforming Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until Buyer accepts the Goods.
7. Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate the Order for cause as further set forth herein. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order.
8. Price. The price of the Goods is the price stated in the Order (the “Price”). Unless otherwise specified in the Order, the Price includes all delivery costs to the Delivery Location, including without limitation all insurance costs, fees and applicable taxes.
9. Payment Terms. Seller shall issue an invoice to Buyer on, or any time after, the completion of delivery. Buyer shall pay all undisputed, properly
invoiced amounts due to Seller the earlier of (a) 30 Days after Buyer’s receipt of such invoice, or (b) as required by law. In the event of a payment dispute, the parties shall work to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
10. Set-off. Without prejudice to any other right or remedy it may have, Buyer and/or its affiliates may set off any amount owing to it by Seller against any amount payable by Buyer to Seller under any Order, or pursuant to any other agreement between Buyer, and/or its affiliates, and Seller.
11. Warranties. Seller warrants to Buyer that for a period of 60 Months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer, or, in the event no such specifications are provided, all Goods furnished shall be of the highest quality regularly produced by Seller and comply with (1) all applicable American Standards (including but not limited to ASA, ASME, ASTM and NEMA) and (2) all applicable Department of Transportation standards in effect at the time of the Order; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations shall be tolled and shall commence on the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties.
12. INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER SHALL DEFEND, INDEMNIFY AND HOLD BUYER, ITS OFFICERS, EMPLOYEES, AGENTS, INSURERS, SURETIES, AND PARENT AND AFFILIATED CORPORATIONS, HARMLESS FROM ANY AND ALL LOSSES, CONSEQUENTIAL DAMAGES, EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS', CONSULTANTS' AND EXPERTS' FEES), CLAIMS, SUITS, LIABILITIES, FINES, PENALTIES, AND REMEDIAL OR CLEAN-UP COSTS ARISING OUT OF OR IN ANY WAY RELATED TO: (I) THE GOODS; (II) ANY BREACH OF AN ORDER; OR (III) ANY ACT OR OMISSION BY SELLER, ITS INVITEES, OR ANY PERSON PROVIDING THE GOODS DIRECTLY OR INDIRECTLY ON BEHALF OF SELLER, REGARDLESS OF WHETHER BUYER IS PARTIALLY AT FAULT. ANY DAMAGES RECOVERABLE BY BUYER FROM SELLER SHALL BEAR INTEREST AT THE ANNUAL RATE OF 18%, OR THE HIGHEST RATE ALLOWED BY LAW, IF LOWER. WHERE REQUIRED BY LAW, SELLER HEREBY AGREES THAT $500.00 OF THE PURCHASE PRICE CONSTITUTES THE SEPARATE CONSIDERATION FOR SELLER’S INDEMNITY HEREUNDER. SUCH AMOUNT SHALL BE DEEMED PAID OUT OF THE FIRST PAYMENT PAID HEREUNDER. IN THE EVENT THAT A MONETARY LIMITATION IS REQUIRED BY LAW FOR THE ENFORCEABILITY OF SELLER’S OBLIGATIONS UNDER THIS ARTICLE, SUCH LIMITATION SHALL BE THE GREATER PER OCCURRENCE OF $5,000,000 OR THE ESTIMATED TOTAL PURCHASE PRICE, WHICH AMOUNT BUYER AND SELLER AGREE BEARS A REASONABLE COMMERCIAL RELATIONSHIP TO THE ORDER.
13. Insurance. Seller shall, and shall cause each of its subcontractors to, maintain: (i) worker's compensation and employer’s liability insurance to fully protect against loss from personal injury, including death, to any of its employees; (ii) comprehensive automobile liability, general liability (including product liability and completed operations coverages), excess or umbrella coverage, owners and contractor’s liability, and property damage insurance; (iii) and any other insurance required by Buyer. Umbrella coverage may be used to satisfy the required limits. All such insurance shall be written by insurers acceptable to Buyer. The minimum required limits are as follows: Workers Compensation Coverage A-Statutory Limits; Workers Compensation Coverage B-$1,000,000 per occurrence; Auto Liability-$1,000,000 Combined Single Limit; General Liability-$1,000,000 per occurrence and $2,000,000
aggregate; and Excess Umbrella coverage with minimum limits not less than $1,000,000. All such insurance shall provide coverage on an "occurrence" basis and not on a "claims made" basis and be written by insurers acceptable to Buyer. All policies, except for worker’s compensation policies, shall name the Buyer as an additional insured on a primary basis. Buyer’s coverage shall be deemed secondary and noncontributory. To the maximum extent allowed by law, such insurance shall indemnify and defend Buyer from all claims, expenses and liabilities in any way connected with any act or omission of Buyer, its invitees, or any person providing Goods directly or indirectly on behalf of Seller, regardless of whether Buyer is partially at fault. All insurance shall expressly provide that all rights of subrogation against the Buyer are waived and that no amendment or cancellation of any policy shall be effective until 30 days’ prior written notice to Buyer. Before supplying the Goods and at any time Buyer so requests, Seller shall furnish certificates of insurance satisfactory to Buyer evidencing the required insurance.
14. Compliance with Law. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all licenses, permissions, authorizations, consents and permits required to fulfill an Order.
15. Termination. Buyer may terminate an Order, in whole or in part, at any time with or without cause on twenty-four hours prior notice to Seller. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate an Order upon notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
16. Waiver. No waiver by Buyer of any of the provisions of an Order is effective unless explicitly set forth in writing and signed by Buyer. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17. Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, 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 an Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
18. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under an Order to the extent that such delay or failure is caused by acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered force majeure. Seller shall use its best efforts to end the failure or delay of its performance, ensure that the effects of any force majeure event are minimized and resume performance under the Order. If a force majeure event prevents Seller from carrying out its obligations under the Order for a continuous period of more than seven business days, Buyer may terminate the Order immediately by giving written notice to Seller.
19. Assignment. Seller shall not assign any of its rights or delegate any of its obligations under an Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section is null and void. No permissible assignment or delegation relieves Seller of any of its obligations under the Order.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in an Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from an Order.
21. No Third-Party Beneficiaries. An Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature.
22. Governing Law. Orders shall be governed by and construed in accordance with the internal laws of the state where the project which the Goods are being incorporated into is located.
23. MANDATORY BINDING ARBITRATION. ALL CLAIMS AND CONTROVERSIES ARISING OUT OF OR RELATED TO AN ORDER, INCLUDING CLAIMS INVOLVING ANY SURETIES, SHALL BE SUBMITTED TO AND RESOLVED BY BINDING ARBITRATION IN THE COUNTY AND STATE WHERE THE PROJECT WHICH THE GOODS ARE BEING INCORPORATED INTO IS LOCATED. THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) SHALL CONDUCT THE ARBITRATION AND THE COSTS OF THE ARBITRATION SHALL BE BORNE EQUALLY BY THE PARTIES. NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY IN ANY ORDER, THE PARTIES HEREBY AGREE: THAT THE UNDERLYING AWARD MAY BE APPEALED PURSUANT TO THE AAA’S OPTIONAL APPELLATE ARBITRATION RULES (“APPELLATE RULES”); THAT THE UNDERLYING AWARD RENDERED BY THE ARBITRATOR(S) SHALL, AT A MINIMUM, BE A REASONED AWARD; AND THAT THE UNDERLYING AWARD SHALL NOT BE CONSIDERED FINAL UNTIL AFTER THE TIME FOR FILING THE NOTICE OF APPEAL PURSUANT TO THE APPELLATE RULES HAS EXPIRED. FOLLOWING THE APPEAL PROCESS THE DECISION RENDERED BY THE APPEAL TRIBUNAL MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
24. Cumulative Remedies. The rights and remedies under an Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
25. 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.
26. Trust Funds. All funds paid by or to Seller from Buyer or a third party, with respect to the Goods or any portion of the Goods sold to Buyer hereunder, shall be deemed in trust for the payment of all Goods and all component pieces of the Goods, and such funds shall not become the property of Seller nor may any portion of such funds be used by Seller for any other purpose, until full payment is made by Seller to its suppliers for all Goods or component pieces of the Goods sold by Seller to Buyer hereunder.
27. Special Provisions. To the extent required by law, Seller certifies that it will comply with the Required Contract Provisions for Federal-Aid Construction Contracts outlined in Form FHWA -1273. Where applicable, a copy of the Form FHWA-1273 is attached to and incorporated into the Order and shall be incorporated into any of Seller’s subcontracts or supply agreements. To the extent required by law, this Buyer and Seller shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered entities take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Pursuant to 49 CFR 26.13, Seller shall not discriminate on the basis of race, color, national origin, or sex in the performance of an Order. Where required by law, the Seller shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the Seller to carry out these requirements is a material breach of an Order, which may result in the termination of the Order or such other remedy as the recipient deems appropriate. Failure by the Seller to carry out these requirements shall constitute a material breach of the Order.
28. Buyer Code of Conduct. In connection with the performance of an Order, Seller shall, and shall cause its suppliers and subcontractors to abide by the CRH Supplier Code of Conduct which can be viewed at http://www.crh.com/our-group/our-people/corporate-governance/codes-of-conduct (the “Code of Conduct”). In accepting the Order, Seller acknowledges on behalf of itself, and on behalf of its suppliers and subcontractors, familiarity with the Code of Conduct and agrees to comply with the terms and conditions set forth in the Code of Conduct. Any violation of the terms and conditions of the Code of Conduct by Seller or its suppliers, subcontractors or agents shall constitute a material breach of the Order.