GOVERNING TERMS OF SALE
- ORDERS AND ORDER FORMS.
All orders (each an “Order”) for purchase of equipment or services shall be made in writing between the purchasing party (“Purchaser”) set forth in the applicable Order Form with Shelter Containers, LLC (“Shelter Containers”), and each Order shall be subject to these Governing Terms of Sale (the “Terms”).
In connection with each Order Purchaser may place, the scope of the Order shall be Shelter Containers’ prior written offer set forth on the applicable written proposal form (“Proposal”) to sell goods (“Products”) and/or services (“Services”) to Purchaser. Any acceptance of the Proposal by Purchaser as required to form an Order is expressly conditioned upon Purchaser’s unfettered acceptance of, and agreement to be bound by, these Terms. Purchaser shall notify Shelter Containers in writing, as soon as practicable after receipt of a Proposal to sell Products or Services to Purchaser, and in no event later than the date on which Purchaser returns the signed Order Form to Shelter Containers, of any objection to these Terms. Purchaser’s failure to notify Shelter Containers of any objection shall conclusively indicate Purchaser’s assent to and acceptance of these Terms.
These Terms, together with the applicable Order Form, represent the final, complete and exclusive agreement between the parties with respect to each Order, and no terms or conditions in any way modifying or changing the provisions stated herein, including but not limited to any additional terms contained in any purchase order or other document submitted by Purchaser to Shelter Containers in connection with an Order, shall be binding on either party hereto unless accepted in a writing signed by an authorized representative of each party. Any and all prior or contemporaneous negotiations, agreements, understandings, representations, promises and statements, whether oral or written, are merged and integrated into, and superseded by, these Terms and the applicable Order.
Purchaser acknowledges that the Products made the subject of an Order may require substantial lead time, may include non-standard items, and may require binding commitments be entered into by Shelter Containers in order to fulfill as set forth in an Order. Accordingly, Purchaser agrees that all Orders shall be non-cancellable and non-returnable unless otherwise specified in the applicable Proposal to sell Products to Purchaser or the applicable Order Acknowledgement.
Shelter Containers reserves the right, without prior notification to Purchaser, to substitute an alternative Product of like kind, quality and function from that set forth in an Order. If Purchaser will not accept a substitute, Purchaser must specifically declare that no substitution is allowed when the Purchaser requests a Proposal from Shelter Containers. If Shelter Containers consents to waiving the right to substitute a Product, it shall so provide in the Order Form.
Each Order shall become effective upon delivery of the Order Form signed by Purchaser or Purchaser’s authorized representative to Shelter Containers, and shall thereafter continue in full force and effect through the later of: (1) payment by Purchaser for all Products and Services thereunder; or (2) termination by mutual agreement of the parties or by operation of law. Upon termination of an Order, the provisions of these Terms set forth in Sections 2 and 4 through 13, together with any provision of these Terms reasonably required to survive in order for a party to enforce a right or obligation accruing prior to termination of the Order, shall survive expiration or termination of such Order for any reason.
- PURCHASER OBLIGATIONS; ADDITIONAL PROFESSIONAL SERVICES REQUIRED; ASSUMPTION OF STRUCTURAL RISKS.
Because of the unknown nature of the subsurface and other conditions where Products are to be installed, and the varied nature by which purchasers wish to install and use Products, Shelter Containers specifically disclaims any warranty based on the fitness of Products for a particular purpose or the Products’ structural characteristics. Purchaser agrees and acknowledges that Shelter Containers has no liability or obligation to inspect Purchaser’s installation site, analyze Purchaser’s proposed use and installation of the Products, or verify any other element related to the installation of the Products.
Purchaser acknowledges and agrees that the Products sold by Shelter Containers are intended for installation and use primarily in a one-level horizontally installed orientation, and that use of its Products in any other application or installed configuration, including but not limited to “tower” or “multi-story” configurations, requires further analysis by a licensed structural engineer and/or architect, even if Shelter Containers has been advised of Purchaser’s intended use of the Products. Installation of the Products in alternate configurations may require addition of structural bracing, specific foundational requirements, or other modifications to make the Products suitable and safe for Purchaser’s intended use.
If the structural properties of the SELECTED Products are not sufficient for Purchaser’s planned installation of the Products, substantial damage to the Products may occur in both the long- and short-term, including but not limited to cracks, leaks, separations, deflections, subsidence, collapse, or other damage which may render the Products unusable, unsafe, or cause damage to adjacent or nearby structures. FAILURE OF PURCHASER TO OBTAIN A STRUCTURAL ANALYSIS OF PURCHASER’S INTENDED USE OF THE PRODUCTS FROM A LICENSED ENGINEER OR ARCHITECT AND IMPLEMENT ANY SUGGESTED MODIFICATIONS TO THE PRODUCTS PRIOR TO INSTALLATION MAY PRESENT A LIFE-SAFETY ISSUE AND RISKS SUBSTANTIAL PERSONAL INJURY OR EVEN DEATH TO USERS OF THE PRODUCTS OR PERSONS IN THE VICINITY OF THE PRODUCTS.
Purchaser acknowledges that it is being advised in the strongest possible terms to consult with and follow any recommendations suggested by a licensed structural engineer or architect before proceeding in connection with its installation and use of the Products. Further, Purchaser agrees and acknowledges that in proceeding without such analysis or without implementing any recommendations generated with such analysis, Purchaser is assuming all risks, of whatever kind or nature, associated with proceeding without the analysis including but not limited to all structural risks. Accordingly, Purchaser agrees to defend, indemnify, and hold harmless Shelter Containers, its officers, employees, members, affiliates, representatives, agents and assigns from and against any and all claims, losses, demands or liabilities of whatever kind or nature in connection with Purchaser’s use of the Products.
- RELATED SERVICES.
In connection with Purchaser’s purchase of Products, an Order may include Services to be provided by Shelter Containers to Purchaser as set forth in the Proposal. Any Services performed by Shelter Containers in connection with an Order which are not expressly set forth in a Proposal shall be subject to these Terms, including but not limited to the warranties, limitations of warranties, and limitations of liability set forth herein. Purchaser agrees to provide Shelter Containers reasonable assistance and cooperation in connection with provision of the Services. Purchaser shall be responsible for provision of access to its facilities and basic utilities (i.e., electrical service) as reasonably required to perform the Services. To the extent the Services require use or ongoing placement of Shelter Containers’ equipment, including but not limited to computer equipment, such equipment shall remain the exclusive property of Shelter Containers and Purchaser agrees to return such equipment upon the earlier of a request by Shelter Containers or termination of the Order for Services necessitating placement of such equipment.
Except as may be expressly stated to the contrary in a Proposal or Order Acknowledgement, the Services shall not include installation of Products.
- PRICING AND PAYMENT
The pricing for all Products and Services to be supplied by Shelter Containers pursuant to an Order shall be set forth in the applicable Proposal. The pricing set forth in a Proposal shall be valid for the period set forth in the Proposal or, if not set forth in the Proposal, for thirty (30) days from the date of the Proposal unless otherwise extended by Shelter Containers. Pricing designated as valid for a specific period under a Proposal may be revoked by Shelter Containers if the revocation is in writing (including by electronic mail) and is transmitted to Purchaser prior to Purchaser communicating acceptance of the Proposal by submitting the executed Order Form.
Any applicable federal, state, local or other government tax or charge on the sale or shipment of Products (collectively, “Taxes”) shall be paid by Purchaser directly to those taxing authorities assessing such Taxes. In the event Shelter Containers is required by law to collect and remit Taxes to a taxing authority, Purchaser agrees to remit such amounts to Shelter Containers in addition to the purchase price and any other charges associated with Purchaser’s order, and Purchaser agrees to hold Shelter Containers harmless from all such Taxes, including any interest and penalties thereon and any costs and expenses in connection therewith, unless Purchaser signs and submits a valid tax exemption certificate prior to issuance of an applicable Order Acknowledgment in a form which is acceptable to the applicable taxing authority.
The schedule for payment of the purchase price of any Products or Services pursuant to an Order shall be as set forth in the written offer forming the basis of the Order and if no payment schedule is specified, Shelter Containers reserves the right to request payment prior to undertaking to fill the Order, request payment prior to shipment of any goods and prior to performance or scheduling of any Services set forth in the Order, and/or to extend credit to Purchaser on terms set forth in the applicable offer. All sums due under an Order shall be invoiced to Purchaser by Shelter Containers, and Purchaser agrees to pay each invoice within thirty (30) days from the date of the invoice. If complete payment under any invoice by Purchaser is not received by Shelter Containers when due, Purchaser shall pay interest on any overdue amount at the rate of the lesser of one percent (1%) per month or the highest rate permitted by applicable law, from the date such amount became past due until payment is made, without prejudice to any other rights or remedies of Shelter Containers.
- PRODUCT WARRANTIES AND LIABILITY LIMITATION.
A. Manufacturer’s Products Warranties. Shelter Containers may, pursuant to a valid Order, provide certain Products for which Shelter Containers is entitled to warranties from the manufacturers or suppliers of such Products. For each Product made the subject of an Order, Shelter Containers shall pass through to Purchaser the benefits of such warranties, if any, to the extent Shelter Containers is able to do so pursuant to any agreements between Shelter Containers and such manufacturers or suppliers. At or prior to the time of installation of such Products, Shelter Containers will use commercially reasonable efforts to provide Purchaser with a copy of applicable manufacturer warranty documentation and, if such manufacturer warranty does not by its terms pass through to the end-user or end-purchaser, then to the extent permitted Shelter Containers shall assign to Purchaser Shelter Containers’ rights in such manufacturer warranty.
For Products manufactured by Shelter Containers, Shelter Containers warrants that the Products will be free from defects in material and workmanship for a period of twelve (12) months from shipment, ex-factory, whichever occurs first, provided that the Products are: (1) at all times stored, operated and maintained in strict accordance with Shelter Containers’ specifications; (2) not modified or altered in any way, nor damaged as the result of negligence or misuse by Purchaser, or Purchaser’s agents, contractors, or the like, such as the installer of the Products. Should an inspection of the Products manufactured by Shelter Containers indicate, in the sole and absolute discretion of Shelter Containers, defects in material or workmanship, Shelter Containers’ only obligation shall be, at its unilateral option, to either repair or replace the applicable Products.
B. Services Warranty and Limitation of Remedy. Shelter Containers warrants that the Services shall be performed in a good and workmanlike manner. Any warranty claim under the foregoing must be submitted to Shelter Containers by Purchaser within twelve (12) months of the date the allegedly deficient Services were performed and, if not communicated to Shelter Containers by Purchaser during such period, shall be deemed waived by Purchaser. In the event of the breach of the foregoing warranty by Shelter Containers, THE PARTIES AGREE THAT Purchaser’s sole and exclusive remedy, and Shelter Containers’ only obligation shall be, for Shelter Containers to re-perform the APPLICABLE Services.
C. Limitation and Waiver of Warranties. THE FOREGOING WARRANTIES MADE BY SHELTER CONTAINERS ARE EXCLUSIVE AND ARE MADE IN LIEU OF ALL OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTIES ARISING FROM OR IN CONNECTION WITH PROVISION OF THE PRODUCTS OR SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE PRODUCTS AND SERVICES ARE PROVIDED “AS-IS” AND “WITH ALL FAULTS”, AND SHELTER CONTAINERS EXPRESSLY DISCLAIMS, AND PURCHASER HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGMENT, OR MERCHANTABILITY. PURCHASER ASSUMES ALL RISKS AND LIABILITIES RESULTING FROM THE USE OF THE PRODUCTS AND SERVICES.
D. Limitation of Liability. EXCEPT FOR PURCHASER’S INDEMNITY OBLIGATIONS UNDER THESE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW Neither party will be liable to the other for, AND EACH HEREBY WAIVES, ANY indirect, incidental, or consequential damages, including but not limited to loss of use, lost revenues or profits, or for any other special loss or damage, arising out of the purchase or use of the products or services or any obligation resulting therefrom, even if such party has been advised of the possibility of or could have foreseen such damages; provided, however, that this exclusion will not apply to any damages caused by a party’s gross negligence or willful misconduct.
Except to the extent prohibited by law or the express provisions of these Terms, Shelter Containers’ total aggregate liability, if any, to Purchaser, to any party claiming by or through Purchaser under an Order, or to any third party, whether in contract or tort or otherwise, arising out of its sale of any Products or performance of Services under these Terms, shall not exceed IN THE AGGREGATE the price paid by the Purchaser for the Products or Services giving rise to the liability, and Shelter Containers shall be entitled to offset or reduce such liability, if any, to the extent of Purchaser’s or its agents’, representatives’ and/or contractor’s negligence, gross negligence, willful misconduct, or misuse of the Products TO THE MAXIMUM EXTENT PERMITTED BY LAW. To the maximum extent permitted by law, Shelter Containers shall in no way be liable to Purchaser for any claim or action by any third person arising out of or alleged to arise out of the delivery of Products covered hereby or out of the presence of such third parties on Purchaser’s premises in connection with Purchaser’s purchase of Products from Shelter Containers, or out of the use, by Purchaser or third persons, of the Products. “Third persons” shall include, without limitation, employees of Purchaser as well as all third persons not connected with Purchaser or Shelter Containers.
- INSURANCE AND RISK OF LOSS
For all Products, risk of loss shall transfer to Purchaser shall be F.O.B. shipping point at the manufacturer’s dock, and Shelter Containers shall not be liable for any damages caused by shipping carriers or freight delays.
Purchaser shall be solely responsible for maintaining policies of insurance in the amounts and types of coverage it deems prudent to cover any loss or damage to the Products or Purchaser’s other interests which may be impacted by any loss or damage to the Products, Purchaser’s operation or use of the Products (including but not limited to potential personal injury arising from misuse of the Products), and the risks Purchaser assumes pursuant to these Terms (including but not limited to Purchaser’s indemnity obligations hereunder). In each policy of insurance providing coverage to Purchaser, except for worker’s compensation coverages required to be maintained by law, Purchaser shall procure an endorsement or rider by which Purchaser’s insurers agree to waive any rights of subrogation against Shelter Containers for any loss except losses proximately caused by Shelter Containers’ gross negligence or willful misconduct.
- INDEMNIFICATION
To the fullest extent permitted by applicable law, Purchaser will indemnify, release, defend and hold harmless Shelter Containers, its subsidiaries, affiliates, licensees and assigns, and their respective officers, directors, agents, representatives, subcontractors and employees, whether acting in the course of their employment or otherwise (each, an “Indemnified Party”), from all claims, demands, losses, damages, liabilities, judgments, costs (including reasonable attorneys’ fees), expenses, liens or actions (collectively, “Claims”) incurred by or asserted against an Indemnified Party, in any manner arising out of or relating to: (1) Purchaser’s performance or failure to perform its obligations, or breach of any of the representations, certifications or covenants, contained in these Terms; (2) any modifications or alterations to the Products made by any person or entity other than Shelter Containers; and (3) Purchaser’s use, storage, or operation of the Products, even if such Claim is alleged to be caused by Shelter Containers’ negligence; including without limitation, Claims relating to death, personal injury, damage to property or violations of any civil regulations both local and federal. Notwithstanding the foregoing, Purchaser’s indemnification obligations hereunder shall not operate to indemnify an Indemnified Party for its own gross negligence or willful misconduct.
- COMPLIANCE WITH LAW
Purchaser shall comply with all laws and regulations governing, or otherwise applicable to, the installation and use of the Products. Purchaser acknowledges that installation and use of the Products may require federal, state or local approval or permitting, and as between Purchaser and Shelter Containers, Purchaser shall be solely responsible for compliance with such requirements. Purchaser further represents and warrants to Shelter Containers that at all times it shall comply with all applicable laws and governmental regulations relating to its use of the Products and Services.
- GOVERNING LAW AND JURISDICTION
Any obligation based upon these Terms has been entered into, and shall be construed, enforced, and governed in accordance with the laws of the State of Texas, United States of America, without reference to conflicts of laws principles; provided that if any Texas law shall dictate that the laws of another jurisdiction be applied in any proceeding, such Texas law shall be superseded by this paragraph, and the remaining laws of Texas shall nevertheless be applied in such proceeding. Venue and jurisdiction for any proceedings arising out of any obligation based upon these Terms shall lay exclusively in the state and federal courts located in and serving Dallas County, Texas, United States of America, and Purchaser and Shelter Containers each hereby irrevocably consent to the exercise of jurisdiction by, and submit to the jurisdiction of, such courts.
- RELATIONSHIP OF PARTIES
Shelter Containers and the Purchaser are independent parties and the relationship formed by an Order is that of independent contractors. These Terms and any Order shall not constitute or be construed as creating a partnership or joint venture between the parties, nor shall it make either party an agent or legal representative of the other for any purpose whatsoever.
- FORCE MAJUERE
Neither party shall be liable to the other for any delay or failure in performing its obligations under an Order to the extent that such delay or failure is caused by an act of nature, accident, fire, strike or other labor dispute, riot or civil insurrection, act of public enemy, terrorist act, war, order or act of government, material change in raw materials pricing, supply chain disruptions, pandemic, or any other cause beyond the reasonable control of the delayed or non-performing party hereto or other similar events; provided, however, that such delay or failure to perform was not caused by the gross negligence or willful misconduct of the delayed or non-performing party (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Purchaser’s economic hardship is not considered a Force Majeure Event. Each party affected by a Force Majeure Event shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized, and resume performance under the Order.
- AMENDMENT AND WAIVER
The provisions of these Terms may be amended, modified or eliminated, or the observance or performance of any term, covenant or provision herein may be omitted or waived (either generally or in a particular instance, and either prospectively or retroactively) only by a writing signed by Shelter Containers and Purchaser. The waiver by Shelter Containers of any breach by Purchaser of any term or provision of these Shelter Containers Terms and Conditions of Sale shall not be construed as a waiver of any subsequent breach, and shall not in any way affect, limit, or waive Shelter Containers right thereafter to enforce and compel strict compliance with every term, condition, and specification hereof.
- INTERPRETATION
Whenever possible, each provision of these Terms will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of these Terms should be prohibited or invalid under applicable law, that provision will be deemed deleted and the remaining provisions of these Terms will remain in full force and effect. The subject headings of the sections of these Terms are included for the purpose of convenience only and will not affect construction or interpretation of any of its provisions.