TERMS AND CONDITIONS OF SALE

 

1.             All references to “NCI Metal Depots” or “Seller” refer to NCI Group, Inc. d/b/a NCI Metal Depots.

 

2.             The parties expressly agree that none of the following Terms and Conditions of Sale, nor any Seller written terms not contained herein, may be waived, modified, or amended without the express written consent of the Seller's President or Executive Vice-President and CFO.

 

3.             Payments due Seller under the terms of this sale and any other money due Seller by Buyer shall be paid to Seller at its principal office in Houston, Harris County, Texas unless otherwise directed by Seller. The laws of the State of Texas shall govern this agreement and performance under this agreement.  Buyer consents to jurisdiction in Texas.  Any dispute under this agreement shall only be brought in the state court of Texas.  The parties hereto agree that venue shall be in Houston, Harris County, Texas, for any and all claims or disputes arising out of all transactions between Seller and Buyer.  Buyer voluntarily agrees that Houston, Harris County, Texas, is the most convenient forum and understands the choice of forum is an integral and vital part of Seller's agreement to sell to Buyer.  By agreeing to venue in Houston, Harris County, Texas, Buyer fully intends to waive its rights, if any, to venue in any place other than Houston, Harris County, Texas. The parties deem that this agreement is performable in Houston, Harris County, Texas, regardless of whether or not any part of the agreement is actually performed in Houston, Harris County, Texas.  In addition, Buyer agrees that Seller's prices reflect an analysis of the elimination of uncertainty regarding the jurisdiction for any dispute. EACH PARTY HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND FULLY WAIVES ANY RIGHT TO TRIAL BY JURY TO THE EXTENT THAT ANY SUCH RIGHT NOW OR HEREAFTER EXISTS WITH RESPECT TO THIS AGREEMENT AND/OR THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY OR ANY CLAIM, COUNTER CLAIM OR OTHER ACTION ARISING IN CONNECTION HEREWITH. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY SUCH PARTY AND               IS INTENDED TO ENCOMPASS EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO TRIAL BY JURY WOULD OTHERWISE ACCRUE. EITHER PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS IRREVOCABLE WAIVER. If Buyer purchases a Metal Building System only, the terms and conditions of this purchase order shall also be governed in their interpretation by the section titled "Common Industry Practices: from the Low Rise Building System Manual, latest edition, published by the Metal Building Manufacturers Association, 1230 Keith Building, Cleveland, Ohio, 44115.

 

4.            Buyer agrees that all payments with lien release language on the back of any check shall be sent only to the principal office of Seller, in Houston, Harris County, Texas.  Buyer agrees that any payment accepted through Seller's lockbox with lien release language on the check does not bind Seller to the attempted release.  Seller's agent at the lock box who endorses and/or accepts checks for Seller is authorized only to unconditional payments, and no action by this agent shall ever give rise to a claim of any authority, apparent or otherwise, beyond that described in this paragraph.  Acceptance of any conditional check, including any lien release language or otherwise at the lock box shall only be a partial release for those funds received, and never otherwise. This paragraph cannot be waived or modified except in writing in advance.

 

5.            Terms of sale are C.O.D. unless otherwise agreed to in writing.  Any and all credit terms shall be established at the sole discretion of Seller's Credit Department.  In the event Seller grants Buyer credit terms, said credit terms are subject to change at any time, for any reason, at the sole discretion of Seller without prior written notice to Buyer. Unless specifically enumerated herein, the price does not include any taxes (including excise, privilege, occupation, use, sales, etc.; Federal, State or local) or costs of shipment. All materials sold hereunder shall be in substantial compliance with Buyer's request. Additionally, all materials sold hereunder are sold F.O.B. Seller's plant.  Seller reserves the right to approve the carrier on all C.O.D. shipments. Buyer assumes responsibility for the accuracy of verbal orders unless written confirmation is received prior to fabrication. Confirming orders should be marked "Confirming Order-Do Not Duplicate."

 

6.            Any payments deferred after the due date as specified herein shall bear interest at the rate of ten percent (10%) per annum.  If an invoice becomes past due, is placed in the hands of any attorney for collection, if collected by any legal proceedings, or if the Agreement is relevant to any other dispute between the parties, Buyer agrees to pay Seller all of its attorney's fees and costs incurred in the collection of sums owed by Buyer to Seller on account of principal, interest or other charges. Buyer agrees that the attorney's fees incurred by Seller are reasonable and necessary. "Costs incurred in the collection of sums" as used herein is not to be limited to costs incurred in litigation, but includes, without limitation, copying and mailing expenses, lien fees, lost employee time, inspection expenses and expert witnesses expenses in addition to taxable costs incurred in litigation.

 

7.            Buyer has and does by these presents grant to Seller and Seller has and does hereby retain a security interest in all materials, parts and accessories (as well as all finished goods and/or the proceeds from the sale thereof) described in and being                purchased by Buyer pursuant to this Agreement. In addition, Buyer has and does by these presents grant to Seller and Seller has and does hereby retain a security interest in all existing or subsequently arising accounts, accounts receivable and supporting obligations which may from time to time hereafter come into existence during the term of this security interest as a result of Buyer's sale of any of the said materials, parts, accessories or finished goods thereof to any third party. The security interest herein granted by Buyer and retained by Seller is to secure payment of the full purchase price and all other charges due and owing Seller by Buyer under the terms of this sale. This Agreement is governed by Section 2.101, et.seq. of the Texas Business & Commerce Code, and the security interest hereunder constitutes a "purchase money security interest" pursuant to the Uniform Commercial Code. This instrument is a contract, security agreement and financing statement between the parties hereto.

 

8.            In addition to any right of setoff or recoupment permitted by law, Seller shall have the right at any time to setoff or recoup any amount due and owing from Buyer to Seller or any of Seller’s subsidiaries, divisions, or affiliates against any amount due and owing from Seller or any of its affiliates, divisions, or subsidiaries to Buyer.

 

9.            The Buyer or undersigned individual who is either the credit applicant or a principal/agent of the Buyer, recognizes that a credit history report may be a factor in the evaluation of the credit history of the Buyer. Buyer, therefore, consents to and authorizes the use of a commercial, consumer or any other credit report on the Buyer or undersigned individual by Seller from time to time as may be needed in the credit evaluation process.

 

10.          All orders are subject to approval and acceptance by Seller. Terms contained within any Purchase Order issued by Buyer conflicting with these Terms and Conditions shall be of no force and effect.  All sales by Seller of any nature to Buyer shall be made under the provisions of this Agreement. Any documents that Buyer may use from time to time for their convenience, including but not limited to, purchase orders or sales acknowledgment forms shall be deemed to be for administrative convenience only and the terms and conditions of this Agreement as well as the terms and conditions as stated in Seller's invoices and bills of lading shall supersede and take precedence over any of Buyer's terms and conditions which may be contained on any such forms.

 

11.            Seller shall not be liable to Buyer for any incidental, special, compensatory, consequential, expectation, exemplary or liquidated damages of any nature. Additionally, Seller shall not be liable to Buyer for back charges or loss of use to Buyer arising out of any alleged mis-fabrications or delay in carrying out this contract.

 

12.            Under no circumstances shall Seller be liable in any way to Buyer, building owner or any other party for water intrusion or the existence of moisture occurring prior to delivery of Seller's material or existing thereafter or any possible effects resulting therefrom (including fungi, mold or mildew), delays, failure in performance, or loss or damage due to force majeure conditions including, without limitation: fire; flood; epidemics; quarantine; lightening; strike; embargo; explosion; power surge or failure; acts of God; war; labor or employment disputes; civil disturbances; acts of civil or military authority; inability to secure materials, fuel, products or transportation facilities; terrorism, act of government, inability to obtain materials; loss, damage or delay of materials; acts or omissions of suppliers; or any other causes beyond Seller's control, whether or not similar or relating to the foregoing. FURTHER, BUYER HEREBY AGREES AND STIPULATES THAT, IN THE EVENT SELLER RECEIVES NOTIFICATION OF A SCHEDULED PRICE INCREASE(S) FROM ANY OF ITS SUPPLIERS BETWEEN THE DATE OF THIS AGREEMENT AND THE DATE SCHEDULED FOR DELIVERY OF THE MATERIALS COVERED HEREBY, SELLER RESERVES THE RIGHT, IN ITS SOLE DISCRETION AND JUDGMENT, TO INCREASE THE PURCHASE PRICE STATED HEREIN IN AN AMOUNT CORRESPONDING TO SAID PRICE INCREASE(S). Buyer agrees these limitations of Seller's liability are reasonable. Buyer further agrees that these limitations of Seller's liability are material parts of the consideration for this Agreement and is reflected in the amounts charged by Seller hereunder. Buyer intends that these limitations on Seller's liability are to be liberally construed in favor of Seller to eliminate any other liability of Seller other than repair or replacement of defective parts or products.

 

13.            Either party may cancel an order by giving written notice to the other party.  In the event of such cancellation, Buyer agrees to pay Seller all costs and damages incurred by Seller in preparing to perform the terms of the order and in performing the terms of the order prior to the receipt by Seller of such written notice, including but not limited to Seller's expenses of purchases of material, labor, fabrication and overhead.

 

14.            All materials sold hereunder to Buyer are final and cannot be returned to Seller for credit unless Buyer obtains prior written approval from Seller's authorized representative. A 25% restocking fee shall be charged on all returned materials. Buyer may arrange for pickup of order at Seller's plant or shipment will be made by common carrier - "Freight Collect" - unless other arrangements are previously made. If, at Buyer's request, the delivery of materials is delayed, then Seller shall have the option to invoice Buyer for the price of materials, which invoice shall be due in accordance with the terms of payment provided herein. Buyer will reimburse Seller for the cost of storing materials if shipment is delayed by Buyer, and will assume any damages to the materials caused by deterioration.

 

15.            Upon receipt of payment in full, Seller warrants its workmanship only against failure due to defective material or workmanship for a period of one (1) year from date of manufacture; however, Buyer's sole and exclusive remedy shall be limited to, in Seller's sole discretion and judgment, the replacement of defective part(s), F.O.B. Seller's plant (transportation, redesign, dismantling, disposal of material and installation are not included and shall be borne and paid for by Buyer), or repair of defective part(s). Any such replacement or repair shall not include any materials not sold by Seller hereunder, and specifically excludes any obligation by Seller related to other property of the Buyer or any property of third parties. UNDER NO CIRCUMSTANCES SHALL SELLER BE RESPONSIBLE OR LIABLE TO BUYER, OWNER(S) OR ANY THIRD PARTY, IN ANY RESPECT FOR, AND SELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS PERTAINING TO, PRESENT OR FUTURE WATER LEAKS OR MOISTURE INTRUSION(S), DAMAGE(S) TO THE BUILDING(S), OR ANY COMPONENTS OR CONTENTS THEREOF, OR ANY INTERIOR SPACE(S) OR PROPERTY THEREIN, INCLUDING CLAIMS PERTAINING TO MOLD, MILDEW OR FUNGI, OR INTERUPTION IN THE USE OF THE BUILDING(S) OR PERSONAL INJURY OR PROPERTY DAMAGE CLAIMS RESULTING FROM THE ALLEGED EXISTENCE OR GROWTH OF MOLD, MILDEW AND/OR FUNGI. As a condition precedent to the effectiveness of any warranty provided herein, all amounts due and owing to Seller under this or any other agreement with SELLER or Seller's affiliates, whether disputed or not by Buyer, must be fully paid. Seller's sole liability, if any, to Buyer shall be strictly limited to the written express warranties specified herein, and Buyer agrees and stipulates that Seller shall not be liable for any incidental, consequential, liquidated, exemplary or punitive damages, which Buyer may allegedly suffer for any reason, including reasons attributable to Seller. Seller does not warrant any products or materials that are not manufactured by Seller except to the extent of the warranty Seller may actually pass through or assign from the manufacturer. EXCEPT AS STATED ABOVE, SELLER HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE, AND THE PARTIES HERETO HEREBY STIPULATE THAT ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. Buyer acknowledges, agrees and stipulates that oil-canning of materials shall not be a cause of rejection of materials. Claims for shortages or defective materials must be made to Seller in writing within five (5) days after delivery of shipment (which the Parties agree is a reasonable time), or any and all such claim(s) shall be conclusively waived and released by Buyer. Notwithstanding the foregoing, installation of materials shall unequivocally constitute irrevocable acceptance of said materials.

 

16.            Any plans, specifications, details, descriptions, documents, terms and/or conditions not specifically referred to and accepted in this agreement are not a part hereof and shall not binding upon Seller. If requested, Seller will submit to Buyer approval drawings of the materials and/or Metal Building System which is the goods forming the subject matter of this contract. The approval drawings may consist of a floor plan, anchor bolt plan and cross section. In order for Seller to proceed with the preparation of detailed shop drawings and the manufacture of the materials, the Buyer shall return one (1) set of approval drawings to the Seller with a notation of the Buyer's outright approval subject to changes or corrections, if any, noted there on. Approval as noted by the Buyer affirms that Seller has correctly interpreted the overall contract requirements for the materials and/or Metal Buildings Systems and its accessories, and the exact location of accessories. All material sold will be in substantial compliance to approved drawings only.  Buyer may orally waive the right to receive and approve drawings; provided, however, that in waiving such right, Buyer accepts Seller's interpretation as being corrected further accepts all responsibility for any discrepancies in the materials and/or Metal Building System that a review of the said drawings would have revealed to Buyer. Detailed shop drawings of individual parts of the material or Metal Building System will not be furnished by Seller.

 

17.            Buyer may submit a written request for change orders to Seller adding, deleting or altering the Quantity, Description or Specifications of material ordered.  Seller, upon receipt of a written request for change order, shall price the requested changes and send to Buyer a price quotation thereof.  Seller shall be under no obligation to accept or perform a request for change order unless Buyer accepts in writing, without alteration or adjustment, the change order at the prices and terms quoted by Seller.

 

18.            BUYER ASSUMES ENTIRE RESPONSIBILITY AND LIABILITY FOR ANY AND ALL CLAIMS OR ACTIONS BASED ON OR ARISING OUT OF INJURIES, INCLUDING DEATH, TO PERSONS OR DAMAGE TO OR DESTRUCTION OF PROPERTY (WHETHER BELONGING TO BUYER, BUILDING OWNER AND/OR ANY THIRD PARTY), SUSTAINED OR ALLEGED TO HAVE BEEN SUSTAINED IN CONNECTION WITH OR TO HAVE ARISEN OUT OF OR INCIDENTAL TO THE PERFORMANCE OF THIS CONTRACT BY BUYER, ITS AGENTS AND EMPLOYEES, AND ITS SUBCONTRACTORS, THEIR AGENTS AND EMPLOYEES, INCLUDING CLAIMS OR ACTIONS FOUNDED IN WHOLE OR IN PART UPON THE ALLEGED ACTS, OMISSIONS, NEGLIGENCE OR FAULT OF SELLER, SELLER'S REPRESENTATIVES, OR THE EMPLOYEES, AGENTS, INVITEES, OR LICENSEES THEREOF. BUYER FURTHER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER AND ITS REPRESENTATIVES, AND THE EMPLOYEES, AGENTS, INVITEES AND LICENSEES THEREOF IN RESPECT OF ANY SUCH MATTERS AND AGREES TO DEFEND ANY CLAIM OR SUIT OR ACTION BROUGHT AGAINST SELLER, SELLER'S REPRESENTATIVE, AND THE EMPLOYEES, AGENTS, INVITEES AND LICENSEES THEREOF. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTIONS 17.41 THROUGH 17.63 INCLUSIVE, OF THE TEXAS BUSINESS AND COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH LEGAL COUNSEL, EACH VOLUNTARILY CONSENTS TO THIS WAIVER.

 

19.            This Agreement, along with Seller's store policies and any attached exhibits, constitutes the entire agreement of the parties herein.