1. Acceptance of Agreement of Purchase by MSSI
By accepting a purchase order from McMahon-Steel Supply, LLC (MSSI or "buyer"), the seller agrees to the descriptions, quantities, delivery
dates and specifications as set forth on the purchase order issued by the buyer AND to the MSSI Terms and Conditions of Purchase. This
Agreement and the Purchase Order shall control, define and govern all transactions between the seller and buyer with regard to each
purchase order issued by buyer and accepted/agreed to by seller. Any other seller terms and conditions written or published prior to the
Purchase order date are superseded by this agreement and the seller-accepted Purchase order issued by MSSI.
Neither the acceptance nor validity of these Terms and Conditions of Purchase shall be affected by the Seller's issuance of a Sales
Acknowledgment, like document, shipping requests or similar forms containing printed terms and conditions which may conflict or be
inconsistent with the terms and conditions herein.
No waiver, alteration or modification of the Terms and Conditions of Purchase shall be binding unless the same is in writing and signed by
both parties. Any waiver or acceptance by either party of a breach by the other of any provision in this Agreement shall not be deemed a
waiver of future compliance of MSSI Terms and Agreement of Purchase nor any future Purchase Orders accepted by buyer.
If MSSI discloses or grants the Seller access to any research, specifications, technical information, market or business information, of a
confidential or proprietary nature, whether in writing or not, the Seller agrees, as a condition of receiving such information, that the
Seller will not use or disclose such information to any person or entity at any time, except as may be necessary in the performance of this
Agreement, without MSSI's express, written consent.
3. Warranty and Acceptance of Products/Services
The seller warrants the Goods and/or Services set forth in the MSSI-issued purchase order to meet the descriptions and specifications agreed
to on the purchase order and as to the fitness for the particular purpose intended, merchantability, and good and workmanlike delivered
The Seller shall perform any inspections necessary to ensure no defective material is received by MSSI. Seller assumes all costs for loss or
damage to MSSI and assumes responsibility for MSSI's resulting loss(es) for claims of product liability resulting from delivery by the seller
of non-conforming materials to MSSI.
MSSI may reject products deemed 'not in accordance with the instructions and specifications on the Purchase Order' by any means necessary to
determine the adherence to the specifications set forth on the Purchase Order. MSSI may reject all or a partial quantity of non-conforming
products at its option. Seller shall assume responsibility for, and will pay any and all loss, cost, damage or expense, including attorney
fees and cost of replacement incurred by MSSI attributed to MSSI's rejection of non-conforming goods. Or due to the Seller's untimely
The seller acknowledges and understand that the Buyer may use the Goods/services purchased pursuant to this Agreement for resale to other
merchants and end-users.
The seller shall indemnify and hold the buyer harmless for any and all claims, damages, expenses, fees (including reasonable attorney fees
for the cost of defense), proceedings and causes of action, including without limitation negligence and gross negligence, arising out of any
defect or non-conformity arising with respect to the products sold, late deliveries of products by the seller, products liability regarding
the products and injuries alledgedly arising from the sale or use of the products.
Each delivery of products shall constitute a separate sale with the same effect as though made under a separate agreement covering the amount
thereof. Deliveries or partial deliveries shall constitute adherence to, or violation of delivery requirements agreed to by the seller.
Title to and risk of loss of the products shall pass to MSSI upon the Seller's delivery to MSSI's plant/warehouse as specified on the
Purchase Order agreement.
7. Payment by MSSI
The seller's performance under this Agreement will not be considered complete nor payment made until MSSI is in receipt of all Goods
specified on the Purchase order and all required documentation and/or certifications to the PO specifications have been delivered. MSSI may
withhold payment, without loss of its right to any payment discounts, until Seller meets all requirements set forth herein and on the
Payment will be due within the time period set forth in the Purchase Order.
MSSI will not be responsible for paying property taxes on undelivered products or in-transit products relative to the delivery address
specified on the MSSI purchase order.
8. Termination / Cancellation by MSSI
In the event MSSI is shall be prevented from carrying out its obligation hereunder by war, fire, flood, strike, labor trouble, breakage of
equipment, accident, riot, act of governmental authority Acts of God or contingencies beyond the reasonable control of MSSI, MSSI's
obligations as Buyer so affected shall be suspended for the period of time needed to remedy the effect of such event(s).
If, due to Government regulations, MSSI is required to make modification at any of its locations where the goods are processed, the costs of
compliance with such regulation, are in MSSI's sole judgment and discretions, economically burdensome, MSSI reserves the right to terminate
this Agreement on 30 days notice to the Seller.
In the event the seller fails to observe or perform any of the provisions of the Agreement, and if any such default is not remedied within
thirty (30) days after receipt of written notice from the buyer, specifying the default (or within thirty days in good faith is diligently
proceeding with their remedy), MSSI may terminate this Agreement upon giving thirty (30) days written notice of termination or may pursue any
other remedy provided for under the Texas version of the uniform commercial Code.
9. Jurisdiction Governing Agreement
The internal law of the State of Texas shall govern this Agreement. The seller and MSSI agree to the jurisdiction of the State courts of
Texas with respect to any conflict between parties.
If at any time during the term of this Agreement, or the subsequent inspection of the products/services, there arises any claim or
controversy relating thereto, including but not limited to claims of gross inequities in the application of the Purchase Terms and Agreement
set forth herein to conditions arising at any time after the date hereof, or claims of breach of this Agreement, the Buyer may initiate a
review of the claim or controversy by giving the seller written notice setting forth in detail the factual and legal basis upon which such
claim or controversy is founded and describing the relief sought. If the parties are unable to resolve the claim or controversy, MSSI may
seek resolution through arbitration in accordance with the Rules of American Arbitration Association and a judgement upon the award rendered
by the arbitrators may be entered in any court having jurisdiction. The number of arbitrators shall be three(s) and each of the parties
shall pay an equal share of the arbitration costs and expenses. If MSSI hereto employs attorneys to enforce or defend any provision of this
Agreement, MSSI shall be reimbursed by the other party for reasonable legal expenses and costs incurred.
10. Transfer of Agreement
The provisions of this Agreement are not assignable or transferable by the Seller without the prior written consent of MSSI.
11. Compliance with all Federal and state Laws and Regulations
The Seller warrants that it and its affiliates and agents shall act in accordance with all Federals laws regulating commerce, including
Import/Export compliance, Eithics and FCPA, OECD Priciples and the US Foreign corrupt Practices Act as well as any applicable local laws
related to anti-corruption.