PURCHASE ORDER TERMS AND CONDITIONS

  1. Definitions. As used herein the following terms shall be defined as follows:
    a. “Purchase Order” shall mean the document entitled “Purchase Order” to which these Terms and Conditions are attached and, as used herein, shall be inclusive of the Terms and Conditions.
    b. “Buyer” means A&G Piping, Inc. or AG Construction
    c. “Seller” means such person(s) or entity(ies) to whom the Purchase Order is addressed.
    d. “Project” means the construction project or projects for which the goods and services reflected in the Purchase Order are being acquired.
    e. “Premises” means the real property being improved by the Project.
    f. “Owner” means the owner of the Premises and/or any such agents, employees, lessees, or other representatives authorized to contract for the Project, as the case may be.
    g. “Principal Contract” means the contract and other documents governing the Project, including but not limited to any and all contracts between the Owner, Upper Tier Contractors, or Buyer related to the Project; any Work Orders or Change Orders related to the Project; and the plans and specifications for the Project.
    h. “Upper Tier Contractor” means any contractor working on the Project who is upstream of Buyer (i.e., a contractor who has fewer contractual relationships between it and the Owner as compared to Buyer).
    i. “Work” means the goods and services to be provided and/or work to be performed pursuant to the Purchase Order.
  2. Purchase Order. This Purchase Order constitutes Buyer’s offer to Seller, and becomes a binding contract upon the terms set forth herein when accepted by Seller either by acknowledgment or the commencement of performance hereof. No revision of this Purchase Order shall be valid unless in writing and signed by an authorized representative of Buyer; and no condition stated by Seller or in Seller’s form which is inconsistent with or in addition to the terms and conditions herein shall be binding unless expressly accepted in writing by Buyer.
  3. Warranty. Seller agrees and warrants that the material, equipment or services furnished hereunder will meet the specifications herein or otherwise required by the Principal Contract to which Buyer is bound, and shall be free from defects in material and workmanship. This warranty shall remain in effect so long as Buyer is bound to correct any defects under the Principal Contract. This warranty is in addition and supplemental to (and not in lieu of) any warranties provided by law or elsewhere in this Purchase Order.
  4. Third Party Approval/Cancellations. All goods and services furnished under this Purchase Order shall be subject to the approval of the architect, engineer, Buyer’s customer or any other party authorized under the Principal Contract to reject Buyer’s work, and Seller shall furnish the required submittal data or samples for such approval. In the event approval is not secured from Buyer’s customer, or if the order to Buyer is canceled for any reason, cancellation of this Purchase Order shall occur automatically, without cancellation charges by Seller, and no obligation of any description whatsoever shall exist on the part of Buyer toward Seller, except to return any unused goods or to pay for goods and services already used or furnished at the prices reflected in this Purchase Order.
  5. Seller Subject to Primary Contract. Seller acknowledges that it is familiar with the terms of the Principal Contract, shall be bound by the terms of the Principal Contract, and Seller shall assume toward Buyer all obligations and responsibilities which Buyer assumes towards the Upper Tier Contractors and the Owner, with respect to the Work. Buyer shall have the benefit of all rights, remedies, and redress against Seller which the Upper Tier Contractors or the Owner have against Buyer. If Seller enters into other agreements or sub-subcontracts related to the Work on
    the Project with parties other than Buyer, those agreements shall state that Buyer is not liable under or a party to said agreements, but that Buyer is a third party beneficiary with respect to said agreements.
  6. Inspection/Rejection. All goods and services supplied hereunder shall be received subject to inspection and rejection by Buyer and any Upper Tier Contractor and Owner. Defective or non-conforming goods will be held for Seller’s account at its risk and if Seller so directs will be returned at Seller’s expense. Rejected goods shall not be replaced without a new order. In addition, Seller shall reimburse Buyer for all costs reasonably incurred by Buyer resulting from or connected with the delivery of such defective or non-conforming goods or the failure to timely deliver conforming goods. Seller acknowledges that the goods or services to be provided hereunder are an integral part of the performance by Buyer under the Principal Contract, and that late or defective delivery or performance by Seller may cause Buyer to default under the Principal Contract, in which case Buyer shall be obligated to pay damages, including liquidated or consequential damages. Seller shall indemnify, hold harmless, and defend Buyer from all such damages and expenses, including attorney’s fees, caused in whole or in part by Seller’s late or defective delivery or performance. Payment for goods or services prior to inspection shall not constitute acceptance thereof, nor will acceptance remove Seller’s responsibility for defects,
  7. Delivery. Time is of the essence on this order. If delivery of the goods or performance of services is not completed by the time or times specified herein, Buyer may (i) accept late delivery or (ii) cancel the order in whole or in part without liability respecting any goods not delivered or services not performed. In either case, Buyer shall be entitled to indemnification as otherwise provided in this Purchase Order, and otherwise paid its damages and other costs reasonably incurred on account of such delay. Further, Buyer shall be entitled to exercise such other rights and remedies as it may have at law or in equity, including any right it may have to specific performance of this Purchase Order.
  8. Payment. Payment shall be made pursuant to such terms and conditions as may be provided on the reverse side hereof or as otherwise specifically acknowledged in writing by both parties. Buyer’s receipt of payment from Buyer’s customer is a condition precedent to Buyer’s obligation to pay Seller. Seller expressly assumes the risk of non-payment by Buyer’s Customer. Seller expressly acknowledges that neither the terms nor the enforcement of this condition precedent are or would be unconscionable. In all events, cash discount time will commence only upon receipt of proper invoice or material, whichever is later.
  9. Return for Convenience. Buyer reserves the right to return to Seller at the invoice price all items which are regularly carried by Seller’s stock. Buyer shall not be liable for restocking or any other charges levied by Seller for return of goods.
  10. Changes. Buyer may at any time change the quantity or specifications for, or time of delivery of, the goods or services to be supplied hereunder. If such change causes an increase or decrease in the cost of performing or time required for performance of this Purchase Order, then unless such change is necessitated by the act or omission of Seller, an equitable adjustment shall be made in the price and/or delivery schedule; provided that no such change or adjustment shall be made without written consent of Buyer. In the event such change is made as a result of a change in the Principal Contract, then such adjustment shall be determined in accordance with the applicable provisions of the Principal Contract, and Seller shall be entitled to adjustment only to the extent Buyer is so entitled and actually receives same.
  11. Taxes. Unless otherwise indicated on the face of this Purchase Order, it is agreed that the purchase price includes all Federal, State or local taxes imposed on account of the manufacture, sale or delivery of the goods or services furnished hereunder.
  12. Laws and Regulations. Seller warrants that all goods sold and services provided hereunder shall have been produced, sold, delivered and furnished in strict compliance with all applicable laws and regulations to which the goods and services are subject, including but not limited to the Occupational Health and Safety Act, any amendments thereto, and any regulations promulgated thereunder by the U.S. Department of Labor and/or Occupational Health and Safety Administration. Seller shall execute and deliver such documents as may be required to effect or to
    evidence compliance. All laws and regulations required to be incorporated in agreements of this character are hereby incorporated herein by this reference. In addition, in the event this Purchase Order creates a subcontract under a contract with the United States government, any state or any
    political subdivision thereof, any provisions which must under Federal, State and/or local law be included in such subcontracts shall also be deemed incorporated herein by this reference.
  13. Indemnity. SELLER AGREES TO INDEMNIFY, DEFEND AND FOREVER HOLD HARMLESS BUYER, UPPER TIER CONTRACTORS, OWNER, OWNER’S ARCHITECT, AND THEIR EMPLOYEES, AGENTS, SUBCONTRACTORS, REPRESENTATIVES, AND ASSIGNS (COLLECTIVELY THE “INDEMNITEES”), AND TO REIMBURSE THE INDEMNITEES
    FOR ANY LOSS, EXPENSE (INCLUDING WITHOUT LIMITATION ATTORNEY’S FEES AND COSTS OF COURT), OR PAYMENT OF ANY NATURE (COLLECTIVELY “EXPENSES”) RESULTING FROM: (A) ANY CLAIMS, SUITS, LIABILITY, OR RIGHTS (COLLECTIVELY “CLAIMS”) BY ANY PERSONS (INCLUDING WITHOUT LIMITATION SELLER’S AGENTS,
    EMPLOYEES, SUBCONTRACTORS, SUPPLIERS, INVITEES, OR REPRESENTATIVES) ARISING OUT OF OR RELATED TO THIS PURCHASE ORDER OR THE WORK, INCLUDING WITHOUT LIMITATION, ANY CLAIMS BASED ON THE NEGLIGENCE, GROSS NEGLIGENCE, OR STRICT LIABILITY OF ANY PERSON INCLUDING AN INDEMNITEE, WITH THE EXCEPTION OF CLAIMS BASED ON THE SOLE NEGLIGENCE OF AN INDEMNITEE; (B) LIENS AND CLAIMS FILED AGAINST THE PREMISES, ANY PROPERTY THEREON OR ANY PART THEREOF; AND (C) THAT THE WORK, INCLUDING ALL EQUIPMENT AND MATERIALS USED OR INSTALLED, IN USE, DESIGN, OR CONSTRUCTION, INFRINGES ANY UNITED STATES PATENT WHEN USED FOR THE PURPOSES FOR WHICH IT IS PROVIDED. SELLER AGREES TO AND DOES HEREBY, AT THE SOLE OPTION OF THE INDEMNITEE SEEKING INDEMNIFICATION AND/OR DEFENSE, ASSUME THE DEFENSE AND/OR THE EXPENSE OF SUCH DEFENSE OF ANY ACTION OR LAW OR IN EQUITY WHICH MAY BE BROUGHT AGAINST SUCH INDEMNITEE ARISING BY REASON OF SUCH CLAIMS. IN THE EVENT OF ANY SUCH CLAIMS, AN INDEMNITEE SHALL HAVE THE RIGHT TO WITHHOLD FROM ANY PAYMENTS DUE OR TO BECOME DUE TO THE SELLER IN AN AMOUNT SUFFICIENT, IN ITS SOLE DISCRETION, TO PROTECT AND INDEMNIFY IT FROM ANY AND ALL SUCH CLAIMS, LOSS, COST, EXPENSE, LIABILITY, DAMAGE OR INJURY. “CLAIMS” SHALL INCLUDE, WITHOUT LIMITATION, ANY ACTION BASED ON WORKMEN’S COMPENSATION, NEGLIGENCE, DEFAULT UNDER A CONTRACT, PERSONAL OR PROPERTY INJURY, WRONGFUL DEATH, OR FAULTY MATERIAL OR WORKMANSHIP, INFRINGEMENT ON ANY PATENT OR LICENSE IN THE USE OF ANY ARTICLES OR EQUIPMENT FURNISHED OR REQUIRED TO BE FURNISHED BY SELLER UNDER THE PURCHASE ORDER, WITHOUT REGARD TO WHETHER THE CLAIM AGAINST THE INDEMNITEE IS THE RESULT OF AN INDEMNIFICATION AGREEMENT WITH A THIRD PARTY. ADDITIONALLY, BUYER ASSUMES NO LIABILITY FOR ANY ITEMS (INCLUDING WITHOUT LIMITATION, ANY
    EQUIPMENT, TOOLS, APPLIANCES, OR MATERIAL) STORED ON THE JOB SITE BY SELLER OR ANY OF SELLER’S AGENTS, EMPLOYEES, SUBCONTRACTORS, SUPPLIERS, INVITEES, OR REPRESENTATIVES. THIS INDEMNIFICATION SHALL BE CONSIDERED TO BE IN ADDITION TO AND NOT IN LIEU OF ALL INDEMNIFICATION AGREEMENTS IN THE
    PRINCIPAL CONTRACT TO WHICH SELLER SHALL ALSO BE BOUND AS IF SUCH INDEMNIFICATION AGREEMENTS WERE ORIGINALLY MADE BY SELLER AND WHICH ARE HEREBY DEEMED TO BE MADE BY SELLER WITH BUYER ALSO AS AN INDEMNIFIED PARTY.
  14. Insurance. Seller shall obtain and maintain general liability and other insurance for personal injury and property damage (and in the event this Purchase Order provides for performance of labor, workers compensation insurance) in the required statutory limits, or at such other or
    additional limits and under such other or additional conditions as otherwise required under the Principal Contract. Upon request of Buyer, Seller shall furnish Buyer acceptable proof of such insurance. To the extent permitted by law, Buyer shall be named as an additional insured under the
    Seller’s insurance policies.
  15. Assignment/Subletting. Neither this Purchase Order nor any rights or obligations under it shall be assigned (whether by operation of law or otherwise) or contracted to third parties by Seller without Buyer’s prior written consent. Any attempted assignment or subcontracting without
    Buyer’s consent shall be void. Buyer’s permission to subcontracting and/or assignment is expressly conditioned upon Buyer’s approval of the Subcontractor or assignee, which may be withheld in Buyer’s sole discretion, and the subcontractor or assignee assuming all of the obligations of
    Seller hereunder.
  16. Cancellation. In the event of any proceeding by or against Seller in bankruptcy or insolvency or appointment of a receiver or trustee, or an assignment for the benefit of creditors of Seller, or in the event of a breach by Seller of any of the terms hereof, including any warranties hereunder, or if Buyer reasonably determines that the Seller is going to be unable to perform Seller’s material obligations under the Purchase Order, Buyer may cancel this and any or all other orders or contracts between Buyer and Seller, or reduce the quantity of goods to be delivered
    hereunder, without liability respecting goods not previously delivered or services not performed and without prejudice to Buyer’s right to damages or other remedies on account of such breach.
  17. Waiver. The waiver of a breach of any provision of this Purchase Order shall not constitute a waiver of any other breach or of a subsequent breach of such provisions for the same or any other cause.
  18. Entire Agreement. This Purchase Order constitutes the entire agreement with respect to the sale and purchase of the goods and/or services specified herein. No modification hereof shall be effected by the acceptance or acknowledgment of order forms of Seller specifying additional or
    different conditions, all of which are hereby objected to, and no modification shall be effective unless signed in writing by the party claimed to be bound thereby.
  19. Choice of Law; Venue: Jurisdiction. This Purchase Order shall be governed by the laws of the State of Texas, without regard to the rules governing conflict of laws. Venue for any dispute relating to or arising out of this Purchase Order shall be exclusively in Tarrant County, Texas. Seller hereby waives any and all objections to venue and jurisdiction of any dispute relating to or arising out of this Purchase Order lying in Tarrant County, Texas and hereby consents to personal jurisdiction over Seller within Tarrant County.
  20. Severability. If any provision of this Purchase Order is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Purchase Order shall remain enforceable.
  21. Survival. Notwithstanding anything herein to the contrary, all obligations and liabilities of Seller under this Purchase Order and the Principal Contract, including without limitation, those contained in paragraphs 3, 5, 11, 12, 13, 19, and 20 of this Purchase Order, shall survive the termination of the Purchase Order.