Effective: September 1, 2023 Titan America and its affiliated business entities (“We” or “Titan”) are committed to protecting your personal information through our compliance with this privacy policy. Please read this policy carefully to understand our policies and practices regarding the collection, storage, use and disposition of your personal information. By accessing or using our Services (defined below), you agree to the terms of this privacy policy. Please be advised that this policy may change from time to time (see Changes to Our Privacy Policy below). Your continued use of the Services after we make changes is deemed to be acceptance of those changes, so please check this policy periodically for updates. This policy describes the types of information we collect from you when you visit https://titanamerica.com/ or any website that directly links to this policy, or of any pages, facilities, services, or capabilities accessible on or by any domain owned by Titan, (collectively, the “Website”); our telephonic or online services, such as dispatching, product ordering and delivery; and our mobile applications that directly link to this policy (via Website, online services, and mobile applications) (collectively referred to as our “Services”) and our practices for collecting, using, protecting, and disclosing that information. Mobile applications may also be subject to a separate privacy policy. This policy applies to information we collect:
As described in more detail in the following three sections, we collect information:
Information You Provide to Us
We collect information directly from you when you perform any of the following functions through our Services:
Information We Collect Automatically
As you utilize our Services, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including:
The technologies we use for this automatic data collection include:
Some web-based content or applications, including advertisements, on our Services are served by third parties, including advertisers, ad networks and servers, content providers, and application providers. These third parties may use cookies alone or in conjunction with web beacons or other tracking technologies to collect information about you when you use our Services. The information they collect may be associated with your personal information or they may collect information, including personal information, about your online activities over time and across different websites and other online services. They may use this information to provide you with interest-based (behavioral) advertising or other targeted content.
We do not control these third parties’ tracking technologies or how they may be used. If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly.
We may disclose aggregated and anonymized information. In addition, we disclose personal information that we collect about you or you provide directly to us as described in this privacy policy:
Third Party Links
We may provide links to third party websites or applications that enable you to share information with your social networks and to interact with us on platforms that we do not control. These third party websites or applications may collect or share information about you, but this Policy does not apply to the practices of those websites and applications. We encourage you to review the privacy policies and settings on those websites and applications to make sure you understand the information that may be collected, used, and shared when you leave our Services.
We strive to provide you with choices regarding the personal information you provide to us. We have created mechanisms to provide you with the following control over your information:
Tracking Technologies and Advertising
You can set your browser to refuse all or some browser cookies, or to alert you when cookies are being sent. To learn how you can manage your Flash cookie settings, visit the Flash player settings page on Adobe’s website. If you disable or refuse cookies, please note that some parts of this site may then be inaccessible or not function properly.
We do not control third parties’ collection or use of your information to serve interest-based advertising. However, these third parties may provide you with ways to choose not to have your information collected/used. You can opt out of receiving targeted ads from members of the Network Advertising Initiative (“NAI”) on the NAI’s website.
Accessing and Correcting Your Information
You may review and update your personal information by contacting your customer sales representative if you are a Titan customer, or your assigned Human Resources representative if you are a Titan employee.
Data Security
Titan uses commercially reasonable measures to secure personal information in order to protect it from unauthorized access, use, alteration, and disclosure. However, the safety and security of your information also depends on you. You are responsible for keeping any username and password for any provided to you to access any Titan account confidential. Online transmission of information is not completely secure, and while we do endeavor to protect your information, we cannot guarantee its security.
Data Retention
We store your personal information for as long as needed: to conduct business with you; for the purposes outlined in this policy or at the time of collection; or to comply with legal obligations, resolve disputes, and enforce agreements. When the applicable retention period has expired, we reserve the right to take measures to permanently delete the information, aggregate it, or anonymize it.
Minors
Our Website is not intended for minors and we do not knowingly collect personal information from anyone under 18 years of age. If you are under the age of 18, do not attempt to use our Services or provide any information in order to secure our Services. If you believe we might have any information from or about anyone under the age of 18, please contact us at titanlegal@titanamerica.com so that we can remove the child’s personal information.
How We Collect, Use, Disclose, and Store Your Personal Information
The legal basis that we rely on for collecting, using, or disclosing your information will depend upon the particular circumstances and province in which you are located, but will in most cases be with your knowledge and consent when needed. Circumstances where do not need your consent include:
Aside from the entities to whom we disclose your information, as listed above, our employees, contractors, and agents who have a legitimate reason to access or use your information will also have access to your information that we have collected.
Rights
You may have the following rights depending on the particular province in which you are located. Some of the rights you may have include:
Making a request
To exercise any of the above rights, you must issue your request to us in writing. You can make a request by mailing your request to Attn: Legal Department, Titan America, 5700 Lake Wright Drive, Suite 300, Norfolk, VA 23502.
If we change or update this policy, we will post the revised privacy policy on this page. The date the privacy policy was last revised is identified at the top of the page. We encourage you to periodically review this privacy policy for the latest information on our privacy practices.
If you have questions or concerns about this privacy policy and our privacy practices, contact us at titanlegal@titanamerica.com.
Despite our best efforts to prevent it, individuals may try to use our name or information to commit fraud. We take this threat and the concern for our consumers very seriously. If you suspect that any communication claiming to be from Titan America may be fraudulent, please do not hesitate to contact us directly at info@titanamerica.com. If you believe that you have been the victim of fraud, you should immediately contact representatives of your local law enforcement. Some examples of potential fraudulent behavior include:
Phishing
“Phishing” is the attempt to obtain sensitive information such as usernames, passwords, and credit card details (and sometimes, indirectly, money) by masquerading as a trustworthy entity in an electronic communication. Do not provide sensitive financial information to anyone calling or emailing you. Unless you initiated the contact, never provide personal information, including your Social Security Number, bank account details, credit card number or passwords over the phone, email or internet. Titan America will not contact you to request your personal information, and we will never send you an email or call you claiming we’ve lost your records or are updating them. If you are unsure whether any Titan America communication is legitimate, please visit our website by directly typing in the address www.titanamerica.com instead of using any link provided in an email or other communication. If you still aren’t sure, contact Titan America directly.
Recruiting
Titan America does occasionally engage recruiting or placement agencies in an effort to identify candidates for employment with Titan America. The companies retained by Titan America should never charge any candidate for their services.
Other Scams
Titan America will never send you a check or engage in any wire transfer transactions or other cash delivery service practices with you without your prior permission. If you have any questions about any communication from any party claiming to be acting as, or on behalf of Titan America, please contact us directly at info@titanamerica.com.
Reporting Fraud
If you believe you have been the victim of an online fraud, please report it to the proper authorities at https://www.ic3.gov/default.aspx
We appreciate your business! Please select the appropriate product selection to view the terms and conditions for that product. These Terms and Conditions of Sale apply to product purchases from Titan America, Mechanicsville Concrete (d/b/a Powhatan Ready Mix), Roanoke Cement Company and Titan Virginia Ready Mix, S&W Ready Mix Company, and Titan Florida.
Payment Terms
Provided no previous invoices are past due, a cash discount as printed on the face hereof may be taken on shipments paid in full no later than the 10th day of the month following the month in which shipment is made.
Invoices are finally due and payable in full no later than the last day of the month following the month in which shipment is made. On invoices not so paid there shall be imposed a service charge at a rate not to exceed the highest rate legally permitted by state law.
In the event it shall become necessary for Seller to retain the services of an attorney for the purpose of enforcing any of the terms and conditions of this invoice, Seller shall be entitled to recover from Buyer all cost of collection and/or suit, including reasonable attorneys’ fees, in addition to all other right and remedies Seller might have.
Time and other terms of payment are essential hereto and if Buyer defaults therein, or if Buyer’s financial responsibility becomes impaired or unsatisfactory to Seller, Seller shall have the right to terminate the unfilled portion of any contract or order or to discontinue shipments until past due payments are made or satisfactory assurance of Buyer’s financial responsibility is received (without prejudice, however, to Seller’s legal rights or claims) and no waiver of such rights shall result from any failure by Seller to exercise the same.
Shipments
Buyer shall give Seller shipping instructions within a reasonable time before shipments are desired. Shipping instructions shall be delivered to the office of the Seller stated on the face hereof.
All shipments are subject to applicable tariff regulations. Shipments of bulk cement shall be invoiced and paid for on basis of scale weights nearest to point of origin.
Claims
Seller shall not be liable to Buyer for any failure or delay in manufacturing, shipping or delivering cement or for Buyer’s damages resulting therefrom caused by fire; strikes, lockouts by seller or others; differences with workmen; accidents; war; delays in securing or shortages of labor, transportation, fuel or other material; acts of government; delay or failure of any supplier; or any other cause or causes beyond Seller’s control. During the time of any such delays, Seller shall have the right to apportion among its various customers such cement as it may be able to manufacture and ship. Seller shall have the right, but no obligation, to ship from any plant other than the one normally supplying the delivery point specified herein. In the event of delay or failure of performance not excused under the foregoing, Seller’s liability shall not exceed that portion of the invoice price represented by the quantity of cement delayed or not shipped. In no event shall Seller be liable for consequential, special or contingent damages.
Transit Loss
Claims for loss or damage in transit will not be considered unless supported by seal record and carrier’s acknowledgment on freight bill or on all copies of delivery ticket and/or bill of lading.
Specifications
The cement shipped hereunder shall conform to the applicable specifications (for their respective types) of the American Society for Testing Materials and the General Services Administration (or successor agency) of the United States Government, as appropriate.
Disclaimer of Warranties
EXCEPT AS IS EXPRESSLY SET FORTH HEREIN, THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF, THE PARTIES AGREE THAT IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED FROM THIS TRANSACTION AND SHALL NOT APPLY TO THE CEMENT SOLD HEREUNDER.
Seller, having no control over the use of cement, will not guarantee finished work in which it is used, nor shall Seller be responsible for the condition of cement after delivery to Buyer.
Any charges incident to inspection or tests made by or on behalf of Buyer to determine compliance with specifications shall be paid by Buyer.
Except as otherwise stated in any order, any claim on account of non-conforming materials or for any other cause whatsoever shall conclusively be deemed waived by Buyer unless written notice thereof is given sixty (60) days after date of shipment. Seller shall be given reasonable opportunity to investigate all claims, and no materials may be returned by Buyer to Seller until after receipt by Buyer of definite shipping instructions from Seller.
Changes
Seller assumes no responsibility for any change in Buyer’s order unless such change is confirmed in writing by Buyer and accepted in writing by Seller. Any price variation resulting from such change shall become effective immediately upon Seller’s acceptance of such change.
WARNING
CAUSES SKIN IRRITATION AND INJURIOUS TO EYES. CONTAINS PORTLAND CEMENT. FRESHLY MIXED CEMENT MORTAR, CONCRETE OR GROUT MAY CAUSE SKIN INJURY: AVOID CONTACT WITH SKIN WHERE POSSIBLE AND WASH EXPOSED SKIN AREAS PROMPTLY WITH WATER.
IF ANY CEMENT OR CEMENT MIXTURES GET INTO THE EYE, RINSE IMMEDIATELY AND REPEATEDLY WITH WATER AND GET PROMPT MEDICAL ATTENTION. KEEP OUT OF REACH OF CHILDREN.
1. All sales are subject to these terms and conditions (“Contract”) and, if buying on credit, to Buyer’s credit agreement with Seller, incorporated herein by reference; all other terms, including any terms contained in Buyer’s purchase order, are excluded. Any changes must be in writing and signed by each party. For all disputes relating to this Contract, this Contract will be governed by the laws of, and Buyer hereby consents to the jurisdiction and venue of the state and federal courts for, the location of the delivery site of the goods sold hereunder.
2. Payment is due in full on the date stated on the front of the invoice. Interest at the lesser of 1½ % per month or the maximum rate allowed by law will be imposed on outstanding and delinquent invoices from the date of delivery until paid. Buyer will pay to Seller all applicable federal, state and local sales and use taxes. In addition to any other available rights and remedies, Seller will be entitled to recover from Buyer all costs of collection and litigation including, but not limited to, reasonable attorneys’ fees. Seller reserves the right to require payments in advance or to cancel the unfilled portion of this Contract without notice in the event of Buyer default of any Contract provisions, or if Buyer’s financial status becomes impaired or deemed unsatisfactory to Seller.
3. Regular delivery hours are 7:00 a.m. – 5:00 p.m., Monday through Friday. An additional charge may be added for deliveries outside of these hours and for any waiting/unloading periods in excess of 60 minutes. Prices are based on full loads; an additional charge will apply to short loads.
4. Buyer should give Seller at least 48 hours prior notice of the time and rate of requested deliveries. Delivery schedules will be mutually agreed upon between Seller and Buyer. Seller reserves the right to reject any order. Agreed-upon deliveries will be made to the best of Seller’s ability to dispatch, however, Buyer waives any claims associated with any delays in delivery.
5. Buyer must provide suitable approaches to delivery points beyond paved streets. For delivery beyond curb lines, Buyer assumes all liability for damage to vehicles, sidewalks, driveways, pipes, septic tanks, and/or other property, and Buyer will indemnify and hold Seller harmless from and against any and all liability, loss and expense incurred as a result of such delivery, including but not limited to towing charges, except to the extent caused by Seller’s gross negligence or willful misconduct. Buyer waives any right of subrogation against Seller.
6. Buyer must provide an appropriate location and facility (in compliance with applicable law) for Seller to washout the truck’s chutes and drum after discharging concrete. Buyer is responsible for full payment of, including all costs of disposal and Seller’s return charge per truck for, (i) orders not cancelled at least one hour prior to delivery time; (ii) concrete delivered due to Buyer’s mistake or in excess of requirements; (iii) concrete not deliverable due to unsuitable approaches.
7. Concrete prices and quantities are based upon the wet volume at the time of discharge from the truck, and are not sold “form measurement” or measured “in place”. Yield will be established in strict accordance with applicable ASTM standards. Buyer will pay all charges incident to inspection or tests made by or on behalf of Buyer.
8. Limited Warranty: Buyer is solely responsible for determining the type and quantity of goods to be purchased. Concrete will be batched and delivered in accordance with ASTM C-94. Seller warrants that its products will meet or exceed applicable American Society for Testing Materials (“ASTM”) and American Concrete Institute (“ACI”) standards, when tested in accordance with ASTM and evaluated by ACI standards. Seller will repair or replace any goods supplied by Seller that fail to meet this limited warranty, within one year after delivery thereof, subject to the Limitation of Liability in Sec. 13 below. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED. THE REMEDY SET FORTH IN THIS SECTION 8 WILL CONSTITUTE THE SOLE REMEDY OF BUYER UNDER THIS LIMITED WARRANTY.
9. Seller is not responsible for slump, strength or quality of any concrete to which water or other material has been added by or on behalf of Buyer. Buyer is responsible to see that the concrete is handled in accordance with best construction practices. Seller has no control over the placing or handling of concrete after unloading and does not guarantee the finished work in which it is used. Buyer is responsible to prevent unloaded concrete from coming into contact with any material, such as aluminum, which may adversely impact concrete strength.
10. Buyer will furnish any admixtures or ingredients it desires that are not regularly supplied by the Seller in the marketplace. Buyer will be solely responsible for the effect of such admixture or ingredients on the concrete. Any extra product which may be required in excess of the mix design quoted, or which may be required to provide workability, strength, setting time or water/cement ratio, will result in an additional ingredient charge payable by Buyer.
11. Concrete temperature will be dictated by the environmental and material conditions at the time of delivery. Any requirement beyond these conditions will require the implementation of controlled measures during production at the expense of Buyer. Buyer is responsible for the requirements of ACI 305R and 306R, except as pertain to production.
12. Buyer must give Seller written notice within 48 hours after delivery of any claim against Seller as a result of any alleged nonconforming materials or any other cause whatsoever (other than failure to meet compressive strength, in which event the time for notice will be within 48 hours after the specified test age of the test cylinder in accordance with ASTM standards), time being of the essence. Seller will be given reasonable opportunity to investigate all claims. Any failure by Buyer to give written notice within such 48 hour period will be deemed a conclusive waiver by Buyer of all such claims against Seller.
13. SELLER WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATED TO DELAY, WHETHER BASED ON STATUTE, TORT, CONTRACT, OR OTHERWISE, AND WHETHER OR NOT ARISING FROM SELLER’S NEGLIGENCE, STRICT LIABILITY OR FAULT. IN NO EVENT WILL SELLER BE RESPONSIBLE FOR DAMAGES DUE TO THE ACTIONS OF OTHERS OR THE FAILURE OF BUYER TO COMPLY WITH ITS OBLIGATIONS. SELLER’S LIABILITY FOR ANY CLAIMS WILL BE LIMITED TO THE PURCHASE PRICE OF THE GOODS SOLD UNDER THIS CONTRACT.
14. Failure of Seller to exercise any of its rights hereunder will not be deemed a waiver of any such right; a waiver of any right or obligation hereunder will not constitute a continuing waiver. The unenforceability of any provision of this Contract will not affect the enforceability of any other provision of this Contract, and each other provision of this Contract will be severable and enforceable to the extent permitted by law.
WARNING: CAUSES SKIN IRRITATION – INJURIOUS TO EYES.
CONTAINS PORTLAND CEMENT. FRESHLY MIXED CONCRETE MAY CAUSE SKIN IRRITATION OR INJURY. AVOID CONTACT WITH SKIN WHERE POSSIBLE. WASH EXPOSED AREAS PROMPTLY WITH WATER. IF ANY MIXTURES GET INTO THE EYE, RINSE IMMEDIATELY WITH WATER AND GET PROMPT MEDICAL ATTENTION. KEEP OUT OF REACH OF CHILDREN. MATERIAL SAFETY DATA SHEETS (MSDS) ARE AVAILABLE AT WWW.TITANAMERICA.COM.
All sales are subject to these Terms and Conditions of Sale (“Terms”); all other terms, including any contained in Buyer’s purchase order, are excluded. Notwithstanding the foregoing, Buyer’s credit is subject to the terms of Buyer’s credit agreement with Seller, if any. These Terms will be governed by and construed in accordance with the laws of Virginia. In the event of any dispute regarding the sale of goods hereunder, Buyer consents to the exclusive jurisdiction and venue of the state and federal courts for the Seller’s location issuing the goods.
Permitted Use
Buyer represents and warrants that all fly ash ordered from Seller will be used solely as a cement replacement in concrete and/or concrete products.
Payment Terms
Payment is due in full the last day of the month following the month in which delivery is made, without deduction, retainage, set off or charge backs. A service charge at the lesser of 1.5% per month or the maximum legal rate may be imposed delinquent invoices from the date due until paid. In addition to any other rights, Seller will be entitled to recover from Buyer all costs of collection and litigation including, but not limited to, reasonable attorneys’ fees. Seller reserves the right to require payments in advance or to cancel further sales in the event of default by Buyer of any of the Terms, or, if Buyer’s financial status becomes impaired or deemed unsatisfactory to Seller. Failure by Seller to exercise any right will not be deemed a waiver of such right. Buyer is responsible all applicable federal, state and local sales and use taxes.
Shipment
Buyer will give Seller shipping instructions within a reasonable time prior to desired delivery date. Shipments will be invoiced on the basis of scale weight nearest to the point of origin. Deliveries will be loaded during the loading site’s regular operational hours. An additional charge may be added for requests for loading outside of these hours. Buyer is responsible for full payment of orders not cancelled at least twelve hours prior to delivery time.
Force Majeure
Sell will not be liable for any failure or delay in the manufacture or delivery of fly ash, or any damages relating thereto, caused by fire, labor disputes, acts of government, delay or failure by any supplier or hauler of Seller, war, civil unrest, acts of God, or any other cause beyond Seller’s reasonable control. Seller will have the right, not the obligation, to ship fly ash from other plants in the event of a supply shortage or interruption.
Fly Ash Availability
Seller does not guarantee availability of ash quantity for any set time period and will do its best to forecast and plan for unexpected interruptions of supply. However, it is recommended that the customer always have an alternate course of action if notified of reduced availability/limited supply. Notice of reduced availability/supply of fly ash will be given to the customer as quickly as possible. Unexpected utility outages, extended utility outages, maintenance issues at the ash terminal, low demand for power generation, changes in ash quality that yields lower production, less expensive alternate fuel sources for power generation are examples of the changing dynamics that affect production and potentially cause interruptions to the supply of fly ash. Any additional cost incurred by the customer, as the result of limited ash supply, is the responsibility of the customer. Notwithstanding anything to the contrary in the Purchase Order, all supply and pricing is contingent on the availability of Fly Ash processed/manufactured at Seller’s plants. Seller has no control over the use of the fly ash and does not guarantee the finished work in which it is used, nor will Seller be responsible for the condition of the fly ash after delivery to Buyer. Seller warrants that the fly ash delivered hereunder will meet
Limited Warranty
ASTM C618 Class F or Class C specifications, as applicable, or as otherwise mutually agreed upon in writing. In the event any fly ash fails to meet this limited warranty, Buyer’s sole remedy will be replacement by Seller of such nonconforming ash. all other warranties, whether express or implied, including without limitation the warranties of merchantability or fitness for a particular purpose, are excluded.
Claims
Buyer must give written notice to Seller within 48 hours after delivery of any claim against Seller as a result of any alleged nonconforming materials or any other cause (other than failure to meet compressive strength, in which event the time for notice will be within 48 hours after the customary time for analysis of the test cylinder), time being of the essence. Seller will be given reasonable opportunity to investigate all claims. Any failure to give such written notice within said 48 hour period will be deemed a conclusive waiver by Buyer of all such claims against Seller. Any charges incident to inspection or tests made by or on behalf of Buyer to determine compliance with specifications will be paid by Buyer.
Limitation of Liability
Seller will not be liable for any special, indirect, punitive or consequential damages, whether based on statute, tort, contract, or other theory of law. Seller’s liability for any claims will be limited to the purchase price of the goods sold under the corresponding purchase order.
Notices
All notices will be sent to Seller in writing at the sales office issuing the price quotation, with a copy to Credit Department, 188 Summerfield Court, Suite 201, Roanoke, Virginia 24019.
WARNING:MAY CAUSE SKIN IRRITATION – INJURIOUS TO EYES
AVOID INHALATION AND CONTACT WITH SKIN WHERE POSSIBLE. WASH EXPOSED AREAS PROMPTLY WITH WATER. IF ANY ASH GETS IN THE EYE, RINSE IMMEDIATELY WITH WATER AND GET PROMPT MEDICAL ATTENTION. KEEP OUT OF REACH OF CHILDREN.
MATERIAL SAFETY DATA SHEETS (MSDS) ARE AVAILABLE AT WWW.TITANAMERICA.COM OR UPON REQUEST AT 1-888-477-6274.
1. CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Ash Venture LLC (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer.Buyer,regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, materials, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1. CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Essex Cement Company LLC (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer.Buyer,regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, materials, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1. CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Mechanicsville Concrete LLC d/b/a Powhatan Ready Mix (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer. Buyer, regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, materials, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1. CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Norfapeake Terminal LLC (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer. Buyer, regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend, and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder. Seller agrees to indemnify, defend, and hold harmless Buyer for any claims for Worker’s Compensation benefits made by Seller’s agents or employees, including any subcontractors.
9. INSURANCE: Seller agrees to carry Auto and General Liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws and in amounts acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. Each policy of insurance shall be primary, and shall not seek contribution from Buyer, or its insurers, and shall provide a waiver of subrogation in favor of Buyer. Buyer shall be named Additional Insured on Seller’s Auto and General Liability policies. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will carefully check the drawings, plans and specifications for conformity with all local, state and federal laws, codes, rules and regulations (collectively, “Law”), including but not limited to the applicable site-specific safety, regulatory, and environmental requirements more particularly set forth in the Materials Management Plan and Operations and Maintenance Plan set forth in Attachment 1 hereto, before commencing any work. Seller will give all notices and comply with all Law bearing on the work. Seller will, and will cause all of its employees, agents and subcontractors to, comply with all of Buyer’s safety, security and other applicable policies, including but not limited to, prohibitions against carrying weapons, drug and alcohol use and theft. Engineer will immediately report to Buyer, in writing, any violation of Law or Buyer’s policy it observes. Where Seller has no control over work area conditions (except for Engineer’s work), Seller will immediately report to Buyer any unsafe or suspected unsafe conditions. Seller will immediately cause any work not in compliance with the Law to be redone and will bear all costs in connection therewith. No Work will be deemed complete until final inspection is made and approval is obtained from all applicable governmental authorities. Without limiting the provisions of this Section 10 and Section 4 above, Seller represents and warrants that all equipment, supplies, materials, parts, services and work covered by this contract will comply in all respects with all applicable standards, rules and regulations issued under the Federal Occupational Safety and Health Act (OSHA) and Mine Safety and Health Act (MSHA), as applicable.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, materials, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1. CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Roanoke Cement Company LLC (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer. Buyer, regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, materials, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer. 17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1.CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by S&W Ready Mix Concrete Company LLC (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer.Buyer,regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, materials, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1. CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Separation Technologies LLC (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer.Buyer,regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, materials, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1. CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Titan America LLC (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer. Buyer, regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, materials, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1.CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Titan Florida LLC (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer.Buyer,regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, materials, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1.CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Titan Mid-Atlantic Aggregates LLC (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods(as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”),services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer. Buyer, regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, material, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1. CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Titan Mid-Atlantic Aggregates LLC d/b/a Castle Sands (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods(as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”),services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer. Buyer, regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, material, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1.CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Titan MidAtlantic Aggregates LLC d/b/a Heard Aggregates (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer. Buyer, regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, material, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
1.CONTRACT: The order outlined on the Purchase Order together with these terms and conditions will become a binding contract (“Contract”) upon receipt by Titan Virginia Ready-Mix LLC (“Buyer”) of a written acceptance duly signed by the company identified as Supplier or Seller on the face of the Purchase Order (“Seller”). Any additional or inconsistent terms or conditions in Seller’s acknowledgment of this order are not binding on Buyer unless agreed in writing by Buyer. Shipment of Goods (as defined below) or performance of services that are the subject of the order shall be deemed to be an acceptance by Seller of the terms of this Contract.
2. DELIVERY: Time is of the essence. If any Goods are not delivered or services not performed within the time specified in this Contract (or within a reasonable time if no time is so specified), or such Goods or services do not otherwise meet the terms of this Contract, Buyer may, without limiting its other rights or remedies, refuse to accept such Goods or services and cancel this Contract or Buyer may cause the Goods to be shipped by the most expeditious means of transportation, whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. The risk of loss or damage in transit shall be upon Seller. Title to the Goods, and any portion thereof, shall pass to Buyer at the time of delivery and acceptance at Buyer’s site set forth on the Purchase Order or later designated by Buyer in writing. All shipping, handling or other delivery charges are set forth on the Purchase Order or included in the price of the Goods or services and Buyer shall not be obligated to pay any such charges except as expressly set forth on the Purchase Order.
3. CANCELLATION: Except as provided herein, this Contract may not be modified or terminated orally, and no modification or termination nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom enforced. In the event that conditions arise which in the opinion of Buyer make it inadvisable for Buyer to purchase the Goods or services, Buyer may terminate this Contract at any time upon written notice to Seller. Upon termination, Seller shall only be entitled to receive payment for: (i) Goods for which it has made firm, uncancelable contracts, provided that such Goods are delivered to Buyer; and (ii) any other bona fide obligations assumed by Seller prior to receipt of notice of termination which obligations cannot with all reasonable effort be canceled, provided any benefits accruing from such obligations are assigned to Buyer.
4. WARRANTIES AND REMEDIES: Seller expressly warrants that all goods, equipment, supplies, materials, parts, (collectively, “Goods”), services and work covered by this Contract will conform to the specifications, drawings, samples or other description furnished or adopted by Buyer, and will be merchantable, of good design, material and workmanship, fit for the purpose intended and free from defect. Such warranties shall survive inspection, test, acceptance and payment. Seller agrees to indemnify, defend and hold Buyer harmless from all claims, liability, loss, damage and expense, including attorney fees, incurred or sustained by Buyer by reason of any breach of such warranties. All Goods, services and work are subject to inspection by Buyer. Buyer, regardless of when payment is made, and without prejudice arising from any prior delivery and acceptance under this Contract, in addition to its other rights, reserves the right to reject any part of the Goods, services or work which does not conform to this Contract, and receive a corresponding adjustment in the purchase price or require prompt correction or replacement thereof at Seller’s expense, including transportation charges, for both any return or new product, and labor costs. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable at any time by Buyer to Seller. Seller warrants that title to all Goods shall be free and clear of all liens, claims, security interests, encumbrances, or other defects of title. Seller shall not permit or suffer any lien or encumbrance to exist on or against the Goods and materials, or portions thereof, by any person or entity claiming by, through or under Seller, its subcontractors or suppliers. If any such lien or encumbrance is filed or imposed, Seller shall immediately cause such lien to be discharged within five (5) days of its receipt of such lien notification. In the event Seller fails to achieve the foregoing, Buyer will have the right but not the obligation to pay all costs, including attorney’s fees and other administrative costs incurred, to obtain a release and discharge of such lien and Seller will be liable for such costs. Seller shall indemnify, defend and hold Buyer harmless from and against all claims arising out of such liens and/or encumbrances. The rights and remedies of Buyer and the warranties of Seller set forth in this Contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this Contract. The failure of either party to enforce any rights under this Contract shall not constitute a waiver of such rights or any other rights under this Contract.
5. BUYER’S PROPERTY: All equipment or material furnished to Seller by Buyer, and all drawings, blueprints, jigs, fixtures, printing plates, dies, tools or patterns, etc., prepared in connection with this order or charged by Seller to Buyer shall be the property of Buyer and shall be delivered to Buyer at its written request. Any work of intellectual property, including all patents, copyrights, trade secrets and other such rights (collectively, the “Invention”) created as a result of this order shall be the sole property of Buyer. Seller hereby assigns to the Buyer any rights it may have or acquire in such Invention, and shall execute (at Buyer’s expense) all documents as Buyer reasonably requests to evidence such assignment and/or Buyer’s ownership and rights in such Invention, including all applications and documents used to register or enforce in any and all countries Buyer’s patent, copyright, trademark, trade secret and other rights pertaining to such Invention. Seller hereby irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney in fact to execute and file any such application or documents and to do all other lawfully permitted acts to further the prosecution or enforcement of Buyer’s rights in the Invention with the same legal force and effect as if executed by Seller.
6. PATENTS: Seller shall indemnify, defend and hold Buyer harmless from and against all claims, liability, loss, damage, or expense, including attorney fees, for infringement or alleged infringement of any patents, or any litigation based thereon, arising out of the sale or use of the Goods furnished pursuant to this Contract; and Seller shall, if requested by Buyer, assume at Seller’s own expense the defense of all suits charging any such infringement.
7. INDEPENDENT CONTRACTOR: In the event any Goods ordered hereunder require, in connection with the installation thereof, the services of a contractor engaged by Seller, or a supervisor, engineer or other personnel connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such contractor, supervisor, engineer or other personnel in performing such services shall not be deemed to be an agent or employee of Buyer. Seller will be responsible for such parties’ performance under this Contract.
8. INDEMNITY: Seller agrees to indemnify, defend and hold harmless Buyer from and against any claim, liability, loss, damage, judgment or expense (including attorneys’ fees) made or recovered against Buyer occurring by reason of any property damage or any injury, including death to any person (including agents, servants and employees of Buyer and Seller), arising out of or in any way relating to any negligence on the part of Seller, its subcontractors, agents, servants, and employees in the furnishing of any Goods or services contemplated hereunder.
9. INSURANCE: Seller agrees to carry liability insurance in amounts and of a type acceptable to Buyer. Seller also agrees to carry Worker’s Compensation and Occupational Disease and Employers’ Liability insurance in accordance with applicable State and Federal laws acceptable to Buyer. Seller shall furnish two copies of each certificate evidencing the existence of the aforementioned insurance. Each certificate shall be endorsed to provide that Buyer will receive 10 days advance notice prior to cancellation or any material change. The obligation of Seller to carry such insurance shall not limit in any way Seller’s liability and its obligation to indemnify Buyer as provided above.
10. COMPLIANCE WITH LAWS: Seller warrants that in its performance of this Contract it will comply with all applicable Federal, State and local laws, regulations, rulings and orders.
11. FAIR LABOR STANDARDS ACT: TO BE APPROVED FOR PAYMENT, ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, AND THE REGULATIONS THEREUNDER.”
12. ASSIGNMENT: No assignment of this Contract or any portion thereof or any money due or which may become due hereunder shall be made without the prior written consent of Buyer. Any merger, consolidation, transfer of assets, event or transaction resulting (by operation of law or otherwise) in a change of ownership control of Seller or Seller’s business shall be deemed to be an assignment for purposes of this Contract. In addition to constituting a default under this Contract, any assignment or attempted assignment made in violation of this section shall be null and void, and the assignee shall acquire no rights thereunder.
13. APPLICABLE LAWS: This Contract and the respective rights and obligations of the parties with regard thereto, shall be governed by and construed according to the laws of the State in which the Goods are delivered or the services performed.
14. EQUAL EMPLOYMENT OPPORTUNITY: Buyer is an equal opportunity employer. Therefore, the applicable provisions of the Equal Employment Opportunity clause of Executive Order 11246 including Paragraphs 1 through 7 of Section 202 and the implementing Rules and Regulations of the Office of Federal Contract Compliance Programs, the Vietnam Era Veterans Readjustment Assistance Act of 1974, section 503 of the Rehabilitation Act of 1973, and 15 USC §637(a), each as amended, and regulations issued pursuant to each are incorporated herein by specific reference as part of this agreement. Pursuant to Executive Order 11246 and 41 CFR §60-1.8, and by acceptance of this Contract, the Contractor certifies that it does not and will not maintain any facilities in a segregated manner or permit its employees to perform where segregated facilities are maintained; and agrees that it will obtain a similar commitment from its covered suppliers and subcontractors prior to award of any nonexempt contract.
15. OSHA/MSHA: In addition to the provisions of Paragraphs 4 and 10 above, Seller expressly represents and warrants that all equipment, supplies, material, parts, services and work covered by this Contract will comply in all respects with all applicable standards, rules and regulations issued under Federal Occupational Safety and Health Act and Mine Safety and Health Act and applicable state law. With respect to the foregoing warranty Buyer shall be entitled to the benefits of the provisions of Paragraph 4 with respect to (I) survival not withstanding inspection, test, acceptance and payment, and (II) indemnification and defense obligations.
16. PROPRIETARY INFORMATION: All plans, drawings, specifications and the subject matter contained therein and all other information given to Seller in connection with this Contract involve valuable property rights of Buyer and shall be held confidential by Seller, shall remain the property of Buyer and shall not be used by Seller for any purposes other than for performance of its obligations under this Contract. Seller agrees that, as far as possible, it will keep confidential the making of this Contract and the terms hereof. Seller agrees not to use for publicity purposes any information with respect to this Contract, including the existence of this Contract and any photographs, drawing and/or materials in connection therewith, without the prior written consent of Buyer.
17. RIGHT TO AUDIT: Seller will maintain, for a period of not less than three years after completion, a true and correct set of records pertaining to work performed or services or products delivered under this Contract and all transactions related thereto. Buyer shall have the right to audit, from time to time and upon reasonable notice, so much of Seller’s accounts as Buyer reasonably deems is necessary to determine Seller’s compliance with this Contract.
TITAN AMERICA LLC SMS/MOBILE TERMS AND CONDITIONS (US-BASED TEXT MESSAGING PROGRAMS)
IMPORTANT! PLEASE READ THESE TITAN AMERICA LLC SMS TERMS AND CONDITIONS CAREFULLY BEFORE SIGNING UP FOR, OR CONSENTING TO USE OR RECEIVE MESSAGES FROM, TITAN AMERICA LLC’S (“TITAN ” OR “WE” OR “US”) TEXT MESSAGING PROGRAMS. BY CONSENTING TO RECEIVE NOTICES FROM TITAN’S TEXT MESSAGING PROGRAMS, YOU AGREE TO ABIDE BY AND BE BOUND TO THESE TITAN AMERICA LLC SMS TERMS AND CONDITIONS.
By signing up for, or consenting to receive messages from, this text messaging program, you expressly consent to receive non-marketing text messages from Titan and others texting on its behalf, at the telephone number(s) that you provide to Titan and its subsidiaries. You may opt-out of these communications at any time. Consent to receive text messages is not a condition of any purchase.
Program Description
Text messages to Employees: Titan text messages are intended to provide you with company-related announcements if you are an employee of Titan or one of its subsidiaries.
Text messages to Customers: Titan text messages are intended to provide you with information that you have requested from Us, such as transaction-related information, including notifications regarding your Titan product order and delivery updates. Twilio Inc. (“Twilio”) is a third- party service provider that sends and receives text messages on Titan’s behalf regarding product orders and delivery updates. By participating in this Titan text message program, you agree to be bound by Twilio’s Terms of Service, which is located here: https://www.twilio.com/legal/tos and Twilio’s Privacy Notice, which is located here: https://www.twilio.com/legal/privacy.
Message Frequency
The number and frequency of Titan text messages you receive will vary depending on which text program you participate in. For commercial updates, you may receive up to six automated messages per order/delivery. Employment-related text message programs may continue for the length of employment, unless you opt-out of receiving such messages.
Cost
Message and data rates may apply to each text message sent or received in connection with Titan text messages, as provided in your mobile telephone service rate plan, in addition to any applicable roaming charges. Titan does not impose a separate fee for sending Titan text messages; however, you are responsible for any fees imposed by your mobile carrier. Effective September 1, 2023
How to Opt-In
To opt-in to receive Titan text messages related to an order, please confirm with the customer service representative when you place an order for Titan product that you wish to receive such messages. You will be asked to reply in the affirmative to the customer service representative’s question “Do you agree to receive automated text alerts regarding order activity?”. You will then receive a text message from Titan which will ask you to confirm by responding in the affirmative to the text. Titan employees will be provided with information regarding our employment-related text message program during their onboarding process. Employment-related text messages sent by Titan will generally be informational in nature or for emergency purposes.
How to Opt-Out
To stop receiving text messages from Titan, text STOP in response to the number from which you no longer wish to receive messages (i.e., the five-digit number from which its text messages are being sent). You may then receive one (1) final message from Titan confirming your opt-out of that text messaging program. Following such confirmation message, no additional text messages associated with that program will be sent to you unless you re-activate your subscription.
Your Mobile Telephone Number
You represent that you are the account holder for the mobile telephone number(s) that you enroll. You are responsible for notifying Titan immediately if you change your mobile telephone number, by contacting your customer sales representative if you are a Titan customer, or your Human Resources representative if you are a Titan employee.
You agree to indemnify Titan in full for all claims, expenses, and damages related to your failure to notify Titan if you change your telephone number including, but not limited to, all those related to or arising under the Telephone Consumer Protection Act.
Access or Delivery to Mobile Network is Not Guaranteed
Your receipt of our text messages is subject to the terms and conditions of your agreement(s) with your mobile carrier.
Delivery of text messages to your mobile device may fail due to a variety of circumstances or conditions. Network services, including but not limited to mobile network services, are outside of Titan’s control, and Titan is not responsible or liable for issues arising from such network services (e.g., delayed or undelivered messages or the security of any messages).
Supported Carriers
Supported carriers may change from time to time, but currently include AT&T, Sprint, Boost, Virgin, TMobile, MetroPCS, Verizon Wireless, among others. Effective September 1, 2023
Support/Help
To request more information related to product orders or deliveries, text HELP to the number from which the text messages are being sent. You may also receive help by contacting your customer sales representative if you are a Titan customer. Contact information for Titan locations can be found on our website at https://titanamerica.com/our_company/locations/
Titan employees may contact Titan Corporate Communications at communications@titanamerica.com for additional help/support.
Eligibility
To receive Titan text messages, you must be a resident of the United States and 18 years of age or older. Titan reserves the right to require you to prove that you are at least 18 years of age.
Changes to Terms and Conditions
Titan may revise, modify, or amend these Titan America LLC SMS/Mobile Terms and Conditions at any time. Any such revision, modification, or amendment shall take effect when it is posted to Titan’s website (INSERT LINK TBD). You agree to review these Titan America LLC SMS/Mobile Terms and Conditions periodically to ensure that you are aware of any changes. Your continued consent to receive Titan text messages will indicate your acceptance of those changes.
Termination of Text Messaging
We may suspend or terminate your receipt of Titan text messages if we believe you are in breach of these Titan America LLC SMS/Mobile Terms and Conditions. Your receipt of Titan text messages is also subject to termination in the event that your mobile telephone service terminates or lapses. Titan reserves the right to modify or discontinue, temporarily or permanently, all or any part of Titan text messages, with or without notice.
Privacy
Your privacy is important to us. Please see (INSERT LINK TBD) to review our privacy statement.
Limitation of Liability
To the fullest extent permissible pursuant to applicable law, Titan will not be responsible nor liable for any damages of any nature, including without limitation any incidental, special, indirect, liquidated or consequential damages (such as lost profits or lost business opportunities), punitive damages or attorney’s fees.
Applicable Law
Except as otherwise provided herein, your use of this service under this agreement is governed by the laws of the Commonwealth of Virginia. Effective September 1, 2023
Severability
If any term of these Titan America LLC Terms and Conditions is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. If application of this severability provision should materially and adversely affect the economic substance of the transactions contemplated hereby, the party adversely impacted shall be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the party seeking such compensation.
