MANUFACTURED TECHNOLOGIES CO., LLC (“SELLER”) PURCHASE ORDER TERMS AND CONDITIONS (v250908)

GENERAL: This purchase order/confirmation of purchase order (“Order”) for the sale or rental of equipment, materials, and/or services (collectively, “Goods”) as reflected in the Order is expressly conditioned upon Customer’s agreement to the terms and conditions contained in this Order.  This Order constitutes the complete and entire agreement between the parties, and these terms and conditions govern the sale of the Goods as described in this Order and supersede any terms or conditions in Customer’s purchase order. Customer’s receipt and acceptance of the equipment or materials shipped and/or services performed hereunder shall constitute Customer’s agreement to these terms and conditions. If Customer declines these terms and conditions, this Order is cancelled and becomes null, and void and no obligations will be owed to Customer by Seller.

 

TRANSPORTATION COSTS; SALES AND USE TAXES: Transportation costs, insurance costs, labor costs, per diem and applicable sales and use taxes, if any, are the responsibility of and to the account of Customer.  Customer must submit tax exemption certificate with this Order, if applicable, to receive credit. 

 

PAYMENT: Payment is due within thirty (30) days of the date of Seller’s invoice unless otherwise noted. Customer becomes obligated to pay for wet-out goods at the time the goods are wet-out (saturated or injected with resin).  If Customer fails to pay when due any payment, Customer will be in default for all outstanding invoices without further notice. Without prejudice to any other rights or remedies of Seller, Seller shall have the right to cancel further deliveries and to charge interest on all overdue amounts at the rate of 1.5% per month, or the greatest amount permissible by law, whichever is less, from the date payment is due. Failure by the Customer, to remit payment for services rendered shall be considered a material breach of this Order. Should Seller incur costs or expenses to collect monies claimed due from Customer, Customer shall pay to Seller, in addition to all other sums due to Seller, reasonable attorneys’ fees, consultants’ costs, and other expenses and costs, including litigation and/or arbitration expenses and arbitrator compensation, in connection therewith. Customer authorizes the project owner, general contractor, or any other party in receipt of the goods to make any and all payments related to the goods jointly payable to Seller and Customer upon Seller’s demand, until such time as Seller provides notification that it has been paid in full for the goods sold to Customer under this Order.

       

DELIVERY AND/OR PERFORMANCE: Unless otherwise agreed in writing by the parties, Seller shall make the Goods available for pickup by Customer at Seller’s Facility (the “Delivery Point”). Customer is responsible for picking up the Goods at the Delivery Point. Seller shall not be liable for Goods which are improperly handled, stored or damaged once they leave Seller’s Facility or for Goods which are not timely picked up by Customer or Customer’s carrier. In the event Seller delivers Goods to Customer, Seller reserves the right to make delivery in installments and each such installment shall be paid for as invoiced. Delivery dates are only estimated and will be observed to the extent the circumstances reasonably permit. Delay in delivery of any installment shall not relieve Customer of its obligation to accept remaining deliveries and shall not give rise to any liability on the part of the Seller. Seller is not liable for any premature exotherm after Goods are made available to Customer, Customer’s carrier or during installation.

  

SHIPPING, TITLE AND RISK OF LOSS: Delivery shall be made FOB Seller’s Facility, which is the designated Delivery Point. Title & risk of loss passes to Customer upon delivery at the Delivery Point. As collateral security for the payment of the purchase price, Customer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code of the state where the Goods are ultimately used.

 

INSPECTION: Customer shall inspect Goods within 3 days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. All defects and nonconformities that are not so specified in writing shall be deemed waived by Customer and such Goods shall be deemed accepted. Installation of the Goods shall also constitute acceptance and no attempted revocation of acceptance will be effective. “Nonconforming Goods” means the product shipped is different than identified in the Order or defective. If Customer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's facility designated in the Purchase Order. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Customer's shipment of Nonconforming Goods, ship to Customer, at Customer's expense and risk of loss, the replaced Goods to the Delivery Point. Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided in this Section, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased to Seller.

 

TECHNICAL ADVICE: SELLER, INCLUDING SELLER’S OPERATOR(S), AGENTS AND AFFILIATES, ASSUME(S) NO LIABILITY FOR ANY TECHNICAL ADVICE GIVEN OR RESULTS OBTAINED THEREFROM, ALL SUCH ADVICE BEING GIVEN AND ACCEPTED AT CUSTOMER’S SOLE RISK. CUSTOMER SHALL BE RESPONSIBLE FOR MAKING ITS OWN INVESTIGATIONS, TESTS AND VERIFICATIONS BEFORE APPLYING SUCH TECHNICAL ADVICE OR USING, INSTALLING AND OPERATING THE

GOODS. THIS PARAGRAPH APPLIES TO ALL DEALINGS BETWEEN SELLER AND CUSTOMER, INCLUDING BUT NOT LIMITED TO ALL FORMS OF TECHNICAL ADVICE, INSTALLATION GUIDANCE OR FIELD SUPPORT AND SELLER EXPRESSLY DISCLAIMS ANY OUTCOMES FROM ITS ADVICE AND DISCLAIMS THAT IT SHOULD BE RELIED UPON BY CUSTOMER.

 

CONFIDENTIALITY:  Neither party will disclose, nor will it permit its employees or agents to disclose, the other party’s confidential information to any third party without written consent or as compelled by a properly issued request for production of documents or subpoena requiring production of such information. All information relating to this Order shall be considered confidential except for information that is: (i) rightfully known by the disclosing party prior to discussions leading to this Order; (ii) independently developed by the disclosing party without reliance on confidential information; (iii) part of the public domain or lawfully obtained from a third party without any confidentiality violation; or (iv) contributed by Seller to the Dun & Bradstreet Global Trade Exchange Program or a similar database for trade credit experiences.

 

WARRANTIES: For a period of one (1) year from date of shipment of the Goods, Seller warrants title and that Goods sold hereunder shall conform to Sellers’ standard specifications for Goods of the kind being sold and shall be free of material defect subject in each case to Customer’s proper use, installation and maintenance of the Goods. CUSTOMER ACKNOWLEDGES AND AGREES THAT INSTALLATION CONDITIONS AND EXPERIENCE AND TECHNIQUES DIFFER GREATLY. SELLER DISCLAIMS AND EXCLUDES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS AND RESULTS WHICH CAN BE ACHIEVED BY CUSTOMER IN ITS USE OF THE GOODS.  EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SELLER EXCLUDES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS SOLD HEREUNDER AS TO PERFORMANCE, COMPLIANCE WITH ANY PROJECT SPECIFICATIONS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE GOODS WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS. 

 

CLAIMS: Unless a shorter period of time is required by the Inspection section above, all claims must be made within ten (10) days after Customer learns of the facts on which such claim is based, but in no event later than the commencement of installation of the goods or thirty (30) days after Customer’s receipt of the goods. All claims not made in writing and received by Seller within the time periods specified herein shall be deemed waived.  No claim will be allowed or returned Goods accepted if the Goods have been treated or processed in any manner, except upon proof satisfactory to Seller of the existence of a latent defect not ascertainable before treating or processing and then only if such proof is submitted within ten (10) days after such defect becomes apparent.

 

LIMIT OF LIABILITY: Seller’s liability for any and all losses or damages to Customer resulting from defective Goods or from any and all other causes or arising out of or relating to this Order shall be limited in all cases and in the aggregate to the purchase price of the particular Goods with respect to which losses or damages are claimed plus any transportation charges paid by Customer for shipment of the goods to Customer. Seller shall in no event be liable for any special, indirect, incidental or consequential (including, but not limited to, lost profits, liquidated damages, delay damages) damages or punitive damages arising out of or relating to this Order. Customer assumes responsibility for and shall defend, indemnify and hold Seller harmless from liability for any personal injury and/or property damage arising out of the handling, possession, installation or use of the Goods by the Customer or the end user of the Goods. Seller is not responsible for any failures of the Goods after leaving Seller’s facility and Customer shall indemnify, defend, and hold harmless Seller against any and all losses, liabilities, and claims by any third party related to the performance or defects in the Goods and reimburse Seller for all reasonable attorneys’ fees, costs, and expenses incurred in establishing the right to indemnification.

 

STORAGE AND TRANSPORT REQUIREMENTS FOR CIPP LINERS: Customer acknowledges and agrees that the proper handling, storage, and transportation of Seller’s Cured-In-Place-Pipe (CIPP) liners is critical to preserving product integrity and performance. Seller expressly advises against the use of fiberglass ice chests, ice boxes, coolers, or similar containers for any transport or storage of CIPP liners, as such methods do not provide adequate or consistent temperature control. The use of these non-compliant containers significantly increases the risk of premature exothermic reactions and liner degradation. Seller requires CIPP liners to be transported and stored in a properly calibrated refrigeration box truck or trailer, consistently maintained at 20°F (-6.7°C), or in accordance with any specific written instructions provided by Seller. Customer assumes full responsibility and all associated risks for any deviation from these recommended conditions. Seller shall not be liable for any damage, deterioration, failure, or performance issues arising from improper or non-compliant storage or transportation. No warranties, express or implied, shall apply in such instances. 

 

TERMINATION: If payment is not received in full by the due date, or if Customer shall or has become insolvent, shall be declared bankrupt; shall be subject of proceedings under insolvency or bankruptcy law; or shall make an assignment for the benefit of creditors, Seller reserves the right to consider the sale cancelled, without having to give notice of default.  Any installments paid may be retained by the Seller by way of damages or interest. Seller shall have the right to enter Customer’s premises where the Goods are stored in order to take possession of and remove the Goods.

 

FORCE MAJEURE: Deliveries may be cancelled or materially delayed by Seller without liability in case of Act of God, war, riots, fire, explosion, flood, strike, lockout, injunction, inability to obtain fuel, power, raw materials, labor, containers, or transportation facilities, accident, malfunction of machinery or apparatus, national defense requirements, or any cause beyond the reasonable control of Seller, which prevents or hinders the manufacture or shipment of the Goods or of a material upon which the manufacture of the Goods is dependent. If, because of any such circumstance, Seller is unable to supply the total demand for the Goods, Seller may allocate its available supply among itself and all of its customers, including those not under contract, in an equitable manner.  Except to the extent of cancellation of deliveries or allocation of supply hereunder, the Order shall remain unaffected.

 

GPS TRACKING NOTICE, CONSENT, AND WAIVER. Customer acknowledges and agrees that, to protect and ensure the return of Seller’s equipment and for other legitimate business purposes, Seller affixes electronic global positioning system tracking devices (“GPS Devices”) to certain pallets furnished by Seller in connection with the Goods. When pallets equipped with GPS Devices are loaded onto vehicles owned, leased, rented, or otherwise controlled by Customer (“Customer Vehicles”) and operated by Customer’s employees, agents, drivers, or contractors (collectively, “Operators”), the geolocation of such Customer Vehicles and/or Operators may be tracked, surveilled, and otherwise monitored by Seller. By accepting possession of Goods, Customer and Operators (a) authorize, permit, and consent to the installation, use, and continued monitoring of GPS Devices for the duration of the shipment and for any subsequent period during which Seller’s equipment remains in Customer’s custody, control, or proximity; and (b) waive any right, claim, or expectation of privacy with respect to the geolocation data produced by the GPS Devices. Customers and Operators shall not remove, disable, damage, or otherwise interfere with any GPS Device. Customer further represents and warrants that it has provided notice of the foregoing monitoring to all Operators who will be subject to location monitoring as a result of a GPS Device, and has obtained each Operator’s consent to the same as required under federal, state, or local law. Such notice and consent shall be irrevocable for so long as the pallets are within Customer’s control. Customer releases, discharges, and holds harmless Seller, its affiliates, and their respective officers, directors, employees, and representatives from and against any and all liabilities, causes of action, damages, penalties, fines, costs, or expenses (including reasonable attorneys’ fees) arising out of, related to, or resulting from the use of the GPS Devices or the collection, retention, analysis, or use of any data received therefrom. Customer further agrees to defend, indemnify, and hold Seller harmless from and against any claim asserted by an Operator or other third party based upon or arising from the GPS Devices or Seller’s use of the geolocation data.

 

PATENTS & TRADEMARKS: Customer expressly assumes all risks of patent or trademark infringement by reason of his use or sale of the Goods, either alone or in conjunction with other materials.

 

APPLICABLE LAW - ENTIRE AGREEMENT: This contract is to be construed according to the laws of the State of Missouri, USA, except that its laws on conflict of laws shall be disregarded in their entirety when interpreting this agreement or the performance of the parties.  Any controversy or claim (“Claim”) arising out of or related to this contract, or the breach thereof, shall be subject to mediation between the parties as a condition precedent to further dispute resolution. In the event mediation fails to produce a satisfactory resolution of the Claim within sixty (60) days, then any Claim shall be settled by binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect.  The arbitration shall be governed by the United States Arbitration Act to the exclusion of any provision of state, national or local law inconsistent therewith or which would produce a different result.  Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction.  The arbitration shall be held in St. Louis, Missouri, USA. There shall be one arbitrator who shall have no jurisdiction to award punitive damages or exemplary damages.  The arbitrator shall determine the Claim(s) of the parties and render a final award in accordance with the substantive law of the State of Missouri, USA, excluding any conflicts provisions of such law, whether statutory or case law. In the event that any arbitration instituted to enforce any provision of this contract, and/or to remedy, prevent or obtain relief from a breach of this contract, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs, including costs of arbitration, as well as court costs incurred, including those incurred in any and all appeals or petitions therefrom. This document constitutes the full understanding of the parties, and no terms, conditions, understanding or agreement purporting to modify or vary the terms of this document shall be binding unless hereafter made in writing and signed by the party to be bound.

 

DATA PRIVACY AND CYBERSECURITY. Customer shall comply with the Cybersecurity and Data Protection Terms and Conditions available at https://www.azuria.com/privacy, with such terms and conditions being incorporated herein by reference. All references to Supplier set forth in such terms and conditions shall be deemed to apply to Customer.

 

MISCELLANEOUS: (a) Customer will not, without Seller’s prior written consent, make any news release, announcement, denial or confirmation of this Order, its value, or its terms.  Nothing in this Order grants Customer the right to use any trademarks, trade names or logos proprietary to Seller.  If Customer is granted a right to use Seller’s marks, Customer will do so only in strict compliance with Seller’s guidelines. (b) Customer will not, without Seller’s prior written consent, assign or subcontract all or any portion of this Order. (c) Failure by Seller to insist upon strict performance by Customer of any of its obligations under this Order will not waive any subsequent or other default or failure to perform by Customer. (d) The invalidity, in whole or in part, of any provision of this Order will not affect the validity of any other provision. (e) Customer is an independent contractor and not an agent or employee of Seller or any of Seller’s affiliates.  Customer is solely responsible for paying wages, salaries, fringe benefits and any other compensation to or claims by Customer’s employees. (g) Seller has the right to offset any amount owed by Customer to Seller against any amount owed by Customer to Seller under this Order.