VALMONT INDUSTRIES, INC.
VALMONT TUBING STANDARD TERMS AND CONDITIONS OF SALE
AGREEMENT: This document (“Document”) contains the standard terms and conditions of sale by Valmont Industries, Inc. (“Supplier”), to Purchaser, of products, materials, other goods, equipment, operations, or services (“Product”). Purchaser shall be deemed to have accepted the offer and terms and conditions contained herein upon the earlier of: (1) Purchaser’s signature and return of this Document to Supplier by fax or any other means; (2) Supplier’s receipt of any order or any other writing from Purchaser indicating Purchaser’s acceptance and agreement to the terms hereof; or (3) Purchaser’s acceptance of any shipment of Product. Whether this Document is a quote, an invoice, or otherwise, the terms and conditions of the parties’ agreement shall consist solely of the terms and conditions contained in this Document, together with any separate written agreement previously executed by both Purchaser and Supplier, any invoices generated in connection herewith, and any written addenda to the foregoing that are signed by Purchaser and Supplier (all of which are hereinafter collectively referred to as the “Agreement”). Any additional or different terms contained in any order or other document submitted by Purchaser to Supplier shall be deemed rejected, unless expressly accepted in writing by Supplier. In no event shall Supplier’s silence or failure to respond to any such additional or different terms be deemed to constitute acceptance or approval thereof. If this Document is a quotation, then failure of the Purchaser to reject these terms and conditions in writing upon the first to occur of the receipt of this or any other document from or on behalf of the Supplier containing these terms and conditions or the delivery of Product pursuant to the Agreement shall constitute final acceptance of the terms and conditions hereof. To the extent this document is in any way deemed to be an acceptance of an offer of the Purchaser, any such acceptance of the Supplier is expressly conditioned upon the consent of the Purchaser to the terms and conditions of the Agreement.
MODIFICATIONS & CANCELLATION: The Agreement may be modified or rescinded only in writing signed by duly authorized representatives of the parties. Orders may be canceled only with Supplier’s written consent and upon terms which will save Supplier from loss, including all out-of-pocket costs and lost profits.
LIMITED WARRANTY: Supplier warrants the Product to be free of material (excluding corrosion) and workmanship defects for a period of six months from the date of manufacture. Supplier warrants the Product to be free from corrosion for a period of 45 days from the date of manufacture depending on storage conditions. Said warranty is limited to material and workmanship of Product designed and manufactured by the Supplier. For product manufactured or fabricated by Supplier according to specifications or designs provided by Purchaser or Purchaser’s designee, Supplier makes no warranty concerning the adequacy or sufficiency of the specifications or designs themselves. All warranty claims alleging defects of materials or workmanship must be submitted in writing within seven (7) days after the discovery of the defect or such claim shall be considered waived. Supplier will not accept Product returned for repair or replacement, unless Supplier is previously notified of the defect in writing and the return or correction is authorized by Supplier in writing. Any Product deemed by Supplier, in its sole discretion, to be defective in material or workmanship will be repaired or replaced, at Supplier’s option, F.O.B. Supplier’s plant. Supplier’s obligation to repair or replace any defective Product shall not include any obligation to reimburse the Purchaser for transportation, installation, removal, unauthorized repairs, or any other expenses that may be incurred by the Purchaser or others in relation to any Product defect. THIS WARRANTY EXCLUDES DAMAGE CAUSED BY IMPROPER STORAGE, INSTALLATION, MISUSE, ABUSE, ACCIDENT OR NEGLECT. In addition, this warranty does not cover alterations, modifications, or additions unless the change is acknowledged and accepted, in advance in writing, by Supplier.
THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES GIVEN BY SUPPLIER, AND SUPPLIER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING FROM STATUTE, COMMON LAW, CUSTOM, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE. THE REMEDY OF REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT SET FORTH IN THE FOREGOING WARRANTIES SHALL BE THE EXCLUSIVE REMEDY AVAILABLE TO ANY PERSON. SUPPLIER SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, EXPENSE, OR DAMAGE, WHETHER DIRECT, CONSEQUENTIAL, INCIDENTAL, OR OTHERWISE (INCLUDING LOST PROFITS, LOSS OF CONSTRUCTION BONUS OR INCENTIVES), RESULTING FROM THE POSSESSION, INSTALLATION, ERECTION, START-UP, USE, MAINTENANCE, OPERATION, REMOVAL, OR RESALE OF SUPPLIER’S PRODUCT OR CAUSED BY ANY DEFECT, FAILURE, OR MALFUNCTION OF ANY PRODUCT, WHETHER A CLAIM FOR SUCH DAMAGES IS BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, OR OTHERWISE. No person has the authority to bind the Supplier to any representation or warranty other than the foregoing limited warranties as disclaimed.
DELIVERY, FREIGHT & RISK OF LOSS: All products are sold F.O.B. factory, full freight allowed within the continental United States, consisting of the lower 48 contiguous states, unless otherwise specified in writing. For shipment destinations outside the continental U.S., freight charges will be prepaid and added to the invoice to the nearest port of exit with all other applicable charges from said point of delivery being the responsibility of the customer, unless otherwise noted. The customer assumes and will pay all charges for special services such as cartage, airfreight, express deliveries, parcel post and multiple deliveries on one order. Risk of Loss, including transportation delays and losses, shall pass to Purchaser upon the earlier of (i) completion of the Product’s manufacture, if shipment is delayed by Purchaser, (ii) delivery of the Product to the Purchaser in cases where shipment is F.O.B. destination, or (iii) delivery of the Product to the carrier in cases where shipment is collect or is F.O.B. point of shipment.
PRICING: Prices are in effect at time of delivery. All prices and discounts are subject to change without advance notice except those shown on a specific quotation indicating the prices to be firm for thirty (30) days from the date of the quotation. For quotations accepted by Purchaser, Purchaser agrees that if the contract documents or designs or the prices of raw materials change from that contained in the quotation, Supplier has a right to charge additional compensation for increased costs, including, without limitation, costs related to freight and raw materials, as well as for increased margin associated therewith. Additional charges may be made for special boxing, packing, crating, or cartage unless otherwise agreed. Orders delayed or put on customer hold may not be price protected beyond the date of a general price increase announcement.
RETURNS & CLAIMS FOR SHORTAGES: Supplier will not accept returns for custom-made Product for any reason, provided that Supplier will accept returns made solely for repair or replacement under the foregoing express warranties, but only if Supplier has previously authorized said returns in writing. Standard (non-custom) Product may not be returned without the written consent of Supplier obtained within thirty (30) days after shipment, and only upon the following conditions: (i) all returned Product must be in excellent and merchantable condition and in the original packaging; (ii) the outbound and return freight must be pre-paid; and (iii) the return is subject to certain charges depending on current pricing and product. All claims for shortages must be made in writing within 10 days of receipt of shipment at destination.
PRODUCT SHIPPED WITH PROTECTIVE COVERING: Product received at the point of destination with protective covering should be unwrapped immediately and inspected. Any exposure to moisture during transportation or storage may cause the wrapping materials to stain the Product. Product is wrapped for protection during shipment in some cases.
DELAYS: Supplier will deliver or ship with reasonable promptness, but shall not be liable, either directly or indirectly, for Supplier’s failure to perform or delays for any reason beyond the Supplier’s reasonable control, including, but not limited to, delays caused by acts of God, war, riot, embargoes, acts of civil or military authorities, fires, floods, accidents, quarantine restrictions, mill conditions, strikes, differences with workmen, delays in transportation, shortages of cars, fuel, labor or materials. IN ANY SUCH EVENT, SUPPLIER SHALL HAVE SUCH ADDITIONAL TIME WITHIN WHICH TO PERFORM AS MAY BE REASONABLE AND NECESSARY UNDER THE CIRCUMSTANCES, AND SUPPLIER SHALL NOT BE LIABLE TO PURCHASER FOR ANY DAMAGES ARISING FROM SUCH DELAYS, LOSS OF USE OR FOR OTHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND WHATSOEVER. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR CLAIMS FOR LABOR RESULTING FROM FAILURE OR DELAY IN DELIVERY. If the shipment of Product is delayed more than 90 days from the date of entry of Buyer’s order, for any reason specified above, then Supplier reserves the right to revise the price at the time of shipment so as to include any increase in cost to Supplier due to the delay.
TERMS, INVOICES, PAYMENT, LATE CHARGE & TAXES: Payment terms are NET thirty (30) days from the date of Supplier’s invoice, unless otherwise specified and approved in advance in writing from the Valmont Credit Department. Invoices will be rendered upon shipment of each order to Purchaser. All payments shall be made to the “remit to” location as stated on the Supplier’s invoice. Supplier reserves the right to invoice, and Purchaser agrees to pay for, any or all Product ready for shipment, together with expenses, costs, and losses associated therewith, whenever shipment is delayed pursuant to Purchaser's written instructions or for other reasons beyond Supplier’s control. All past due accounts will be charged the maximum contractual rate of interest or such higher rate as may be permitted by applicable law on the unpaid balance hereof. Buyer shall pay Supplier’s reasonable attorney’s fees, court costs, and expenses as related to the collection of the past due account. Any tax or other charge imposed by law on the sale of goods or the performance of services shall be paid by the Purchaser, unless the law specifically provides that such payment must be absorbed by Supplier. Purchaser shall inform the Supplier, in advance in writing, of such taxes or other charges imposed by state, municipal, or other law that are to be paid by the Supplier.
DEFAULT OF PURCHASER: In the event that (i) Purchaser fails to pay any invoice when due; (ii) Purchaser breaches this Agreement or any other contract with Supplier or any of its affiliated companies; or (iii) Purchaser’s financial strength becomes unsatisfactory, Purchaser shall thereby be in default, and Supplier reserves the right, in its sole discretion, to do any one or more of the following: (i) cancel this Agreement and any work in progress, shipments, and pending orders without further notice and charge the Buyer all incidental, special and consequential damages sustained by Supplier; (ii) declare all sums owing from Purchaser to Supplier to be due and payable and charge the Buyer all incidental, special and consequential damages sustained by Supplier; (iii) require payment in advance of performance, in certified funds; (iv) foreclose any security interest; (v) require other security satisfactory to Supplier. Purchaser shall be liable to Supplier for any and all damages, whether direct, indirect, consequential, special or any other kind of damages, caused by or arising out of any breach of this agreement, provided that the exercise of any rights under this contract shall not bar Supplier from exercising its rights under the UCC or any other applicable law. The Purchaser waives any applicable statutory exemptions and shall pay all expenses incurred by Supplier in the collection of the amounts due under the Agreement, including attorneys' fees.
EQUAL EMPLOYMENT OPPORTUNITY. Seller and Buyer agree to comply with all application provisions of Executive Order 11246, as amended, and its implementing regulations and all other applicable EEO Non-Discrimination Provisions of the State and Federal Order.
BUY AMERICA REQUIREMENTS. Buyer must clearly and affirmatively notify Seller of the applicability of any order, law, regulation or other requirement that the products to be sold to Buyer consist wholly or partly of materials or components produced in the United States, or that the material comprising such products be assembled in the United States. If Buyer fails to notify Seller of any such requirements, Buyer shall be obligated to accept delivery and pay for the products, regardless of any such requirement, and Buyer agrees to fully indemnify and hold Seller harmless from and against any costs and expenses, including reasonable attorney fees, incurred by Seller in connection with Buyer’s omission.
INDEMNIFICATION & GOVERNING LAW: Purchaser shall indemnify and hold Supplier harmless from all expenses (including attorneys’ fees), claims, demands, suits, judgments, actions, costs, and liabilities (including without limitation those alleging Supplier‘s own negligence) which may arise from, relate to, or be connected with the Purchaser’s possession, installation, use, maintenance, operation, removal, or resale of the Product described herein and any manuals, instructions, designs, drawings or specifications related thereto. All disputes relating to the execution, interpretation, construction or enforcement of the rights and obligations of the parties hereto shall be governed by the laws of, and resolved in the State and Federal courts in the State of Nebraska, and the parties hereby consent to venue in Omaha, Nebraska. THE PURCHASER AND SUPPLIER EACH HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY ON ANY CLAIM (INCLUDING COUNTERCLAIMS) ARISING WITH RESPECT TO THE GOODS PURCHASED HEREUNDER. Any lawsuit based on or related in any way to the Agreement or the Product described therein must be commenced within one (1) year after delivery of the Product or other goods to the Purchaser or it shall be barred.