TRINITY HIGHWAY RENTALS, INC.
TERMS AND CONDITIONS OF SALE
(Rev. July 2021)
The following terms and conditions (“Terms”) shall be the exclusive terms incorporated into all quotations, purchase orders, sales contracts and purchase order acknowledgements (collectively, an “Order”) for the sale of Seller’s Goods. No contract shall be formed except upon these Terms. No terms or conditions embodied in any other document that pertains to an Order shall be applicable to the Seller and are hereby rejected unless expressly agreed to in writing by Seller.
- CHANGES AND INSPECTION: Any changes in specifications or delivery by the Customer subsequent to Seller’s Order shall be binding on Seller only when set forth in a written agreement signed by both parties specifying the changes and the price and delivery adjustments therefor. Customer may inspect the Goods at Seller’s plant upon Customer’s prior notice to Seller and Seller’s approval. If requested by Seller, Customer shall execute a Certificate of Inspection and Acceptance covering all Goods found to be in accordance with the specifications and Customer shall deliver the executed Certificates to Seller. Each inspection Certificate, when signed by the Customer and with respect to Goods covered thereby, shall be final and conclusive confirmation that such Goods conform in all respects, to the requirements and provisions of the Order.
- DRAWINGS AND SPECIFICATIONS: No drawings, specifications, or other data submitted to Seller with Customer’s bid forms shall be made a part of Seller’s Order unless specifically referred to in the Order and then subject to, and only to the extent of, any restrictions, limitations or other provisions set forth in the Order. Seller has no responsibility for reviewing any drawings, plans, designs, specifications or other data provided by Customer for any purpose other than at Customer’s request, to determine the quantity of Goods that could be required for Customer’s planned use or construction utilizing the Goods.
- DELIVERY AND DEPLOYMENT: If a time for delivery of the Goods is set forth in the Order, it is an estimate only and is subject to and conditioned upon the date of Customer’s acceptance without exception of the Order, timely receipt by Seller of Customer’s deliverables and delays due to strikes, shortages in skilled labor, fires, accidents or any other causes or contingencies beyond Seller’s control, whether foreseeable or unforeseeable, (“Delay Event”). Delay in delivery of all or any portion of the Goods that is not due to Seller’s willful act shall not constitute a default under the Order. Seller shall not be under any obligation to arrange for shipment and acceptance of any Goods in advance of Seller’s actual needs as determined in Seller’s sole discretion. Unless otherwise agreed by the parties, the Goods are sold F.O.B. Seller’s facility even though transportation costs may be included in the price stipulated. Title and risk of loss of the Goods shall pass to the Customer upon delivery. Neither the Customer nor the consignee of the Goods shall have the right, without Seller’s prior written agreement, to divert or re-consign any shipment to any destination other than as specified by the Seller in the bill of lading covering the Goods. Should delivery be to Customer’s site, it is agreed that Seller is not responsible for the placement of the Goods in accordance with any of Customer’s plans, drawings or specifications. It is agreed that any placement of the Goods by Seller at delivery shall not be considered Seller’s confirmation or approval of Customer’s use, deployment, arrangement, design, or configuration of the Goods. The use, deployment, arrangement, design or configuration of the Goods, including but not limited to, adding water or any other material, apparatus or components to the Goods and the source of such water, material, apparatus or components are the sole responsibility of Customer.
- QUANTITY: The quantity of Goods set forth in the Order will not be exceeded without authority being first obtained from Customer or Customer’s authorized agent. Customer reserves the right to return over-shipments.
- ACCEPTANCE AND TERMS OF PAYMENT: Unless otherwise agreed in writing, Customer agrees to accept delivery of all or any portion of the Goods as they are delivered to Customer. Customer shall pay the full amount of the purchase price upon delivery of the Goods, or a portion of the total thereof to the carrier at Seller’s facility, and upon presentation by Seller of an invoice for the Goods delivered and covered by the Order and a bill of lading showing shipment of the Goods. To secure Customer’s fulfillment of its obligations to Seller under the Order Customer hereby grants to Seller a security interest in the Goods delivered and the products, proceeds and accessions of and to any of the Goods, together with all right, title and interest of Customer therein and all rights and remedies which Customer might exercise with respect thereto but for the security interest granted. Customer acknowledges that the Order, including these terms and conditions shall constitute a security agreement between the parties.
- TAXES: The quoted purchase price for the Goods does not include any international, federal, state or local sales, use or related taxes, however designated or imposed, and any such sales, use or similar tax arising out of this transaction shall be for Customer’s account.
- CANCELLATION: Customer may not cancel the Order except with Seller’s consent and subject to conditions at such time agreed upon which shall include protection of the Seller against any loss, credit or expense incurred or expected to be incurred.
- NON DISCLOSURE: Customer agrees not to disclose to any third party (other than Customer’s legal counsel, financing entity or Prime Contractor) any of the terms or prices set forth in the Order including these terms and conditions, or the information received from Seller in either negotiating for a sale of the Goods or in the performance of the Order. This obligation shall survive delivery of the Goods. The obligations set forth in this provision shall not apply to any information, data, or designs which Customer can show it possessed prior to its disclosure by Seller, were or have become available to the public domain, or are subsequently provided to it by another party having the right to possess and disclose the information, data or designs.
- PATENTS: With respect to Goods which are unmodified in any way by Customer, Seller shall defend at its own expense any suit or proceeding brought against Customer based on a claim that the Goods constitute an infringement of any apparatus claim of any patent of the U. S. issued prior to the effective date of the Order, if Seller is notified promptly in writing and is given authority, information and assistance by Customer for the defense of same. Seller shall pay all damages and costs awarded therein against Customer. In the event the Goods are held in such suit to constitute infringement and their use enjoined, Seller shall at its’ own expense and at its’ option, either: (i) procure for Customer the right to continue using the Goods, (ii) replace the Goods with non-infringing Goods, (iii) modify the Goods so as to become non-infringing or (iv) refund the purchase price of the Goods found to be infringing. The foregoing sets forth the entire liability of Seller by way of infringement with respect to the Goods. Seller shall have no liability for infringement with respect to the Goods, or any part or portion thereof, which are manufactured, supplied or obtained according to Customer’s design or specification. To the extent of Goods which are manufactured, supplied or obtained according to Customer’s design, specification, or specification modifications, Customer agrees to hold harmless, defend, and indemnify Seller against any clams by way of infringement or of infringement that arise out of compliance with the specifications.
- WARRANTY: Seller’s obligation hereunder shall not cover or apply to any part of or attachment to the Goods not manufactured by Seller. To the extent available, and in accordance with the terms thereof, Seller will make available to Customer, upon Customer’s written request, any warranty from the manufacturer of any such part or attachment not manufactured by Seller that is a part of the Goods. Seller’s sole obligation under this warranty with respect to Goods shall be limited to repairing or replacing, at a shop selected by Seller, any of the Goods, which shall within one year after delivery, be returned to Seller by Customer with transportation charges prepaid and which Seller’s examination shall disclose to have been defective. SELLER MAKES NO REPRESENTATION, AFFIRMATION OF FACT OR PROMISE RELATED TO CUSTOMER’S ARRANGEMENT, USE OR DEPLOYMENT OF THE GOODS. NO SAMPLE OR MODEL HAS BEEN MADE PART OF THE BASIS OF THE ORDER OR HAS CREATED AS AN EXPRESS WARRANTY THAT ALL OF THE GOODS CONFORM TO ANY SAMPLE OR MODEL. THE WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED. SELLER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
- INDEMNITY: CUSTOMER AGREES TO DEFEND, HOLD HARMLESS AND INDEMNIFY SELLER AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS AND EMPLOYEES (COLLECTIVELY “INDEMNITEES”), FROM AND AGAINST ANY AND ALL CAUSES OF ACTION, SUITS, DEBTS, CLAIMS, LIABILITIES, LOSSES, DAMAGES, COSTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES, COURT COSTS AND EXPENSES OF WHATEVER NATURE OR KIND, (COLLECTIVELY “LOSSES”), INCLUDING BUT NOT LIMITED TO ANY LOSSES RELATING TO BODILY OR PERSONAL INJURY, DEATH, DESTRUCTION OF OR DAMAGE TO PROPERTY, OR DAMAGE TO THE ENVIRONMENT, ARISING OUT OF, RESULTING FROM OR RELATED TO ANY ACT, ERROR OR OMISSION OF CUSTOMER, CUSTOMER’S EMPLOYEES, AGENTS OR SUBCONTRACTORS, OR ANY RESPECTIVE EMPLOYEE OF ANY SUCH AGENT OR SUBCONTRACTOR.
- NO INSTALLATION: Upon request by Customer, Seller may provide consultation regarding assembly of the Goods during pre-construction activities, or may respond to questions during the Customer’s actual installation of the Goods. However, it is understood and agreed that no installation is provided by Seller or otherwise included within the obligations included herein. Customer acknowledges that it is aware that further information regarding the Goods, their specifications, technical information, and assembly is located at www.trintyhighwayrentals.com.
- CONSEQUENTIAL DAMAGES: In no event shall Seller or its officers, directors, employees or agents be liable to Customer or any other person for any indirect, special, cover, consequential or punitive damages such as, but not limited to, delay damages, lost profits or revenue, or lost opportunity damages, resulting from or in connection with any claim or cause of action, whether brought in contract or in tort, even if Seller knew or should have known of the possibility of such damages.
- APPLICABLE LAW: The Order, including these terms and conditions, shall be governed by and construed in accordance with the laws of the State of Texas.
- MISCELLANEOUS: The Order, including these terms and conditions, shall not be modified unless such modification is written and signed by both parties. Neither party’s failure to require performance of any term, condition or instruction, or to exercise any right or privilege set forth in the Order including these terms and conditions, shall be nor act as a waiver of any term, condition, instruction, and/or any right or privilege under t, impair or waive any rights in case a default by the other party continues, or in case any subsequent default by such party occurs. Neither party shall assign any right, obligation or interest in the Goods or an Order without the express written consent of the other party.
- ENTIRE AGREEMENT: The Quotation, including these terms and conditions contain the entire agreement of the parties. The parties shall not be bound by or be liable for any statement, presentation, promise, inducement or understanding of any kind of nature not set forth herein. Any reference to Customer’s purchase order or other order does not imply acceptance of any term, condition or instruction contained in such purchase order or order.