General Terms and Conditions

General Terms and Conditions

Any purchase order issued by Designed Conveyor Systems, LLC (“DCS”) to a vendor (“PO”) is made expressly subject to and conditioned upon such vendor’s acceptance of these General Terms and Conditions.

DCS and the vendor named in the PO (“Vendor”) are collectively referred to herein as the “Parties”. The PO constitutes DCS’s offer to Vendor to pay Vendor the Price (as defined below) stated in the PO in exchange for Vendor supplying the goods identified or described in the PO (“Goods”), and is a binding contract conditioned on Vendor’s acceptance of the PO, including Vendor’s consent to the terms and conditions set forth herein, which are incorporated into the PO by reference. Any additional or different terms proposed by Vendor are objected to and rejected by DCS unless expressly accepted in a writing signed by DCS. No condition stated by Vendor in accepting or acknowledging this PO shall be binding upon DCS unless expressly accepted in a writing signed by DCS.

1.0 Acceptance of PO: Vendor shall be deemed to have accepted the PO and be bound by these General Terms and Conditions by any of the following actions: (a) notifying DCS in writing within three (3) business days following Vendor’s receipt of the PO that Vendor accepts the PO (“Confirmation”); or (b) in the absence of such a Confirmation, (1) performing in any way under the PO, including, but not limited to, delivering any portion of the Goods identified in the PO; (2) accepting payment, in any amount (including, without limitation, any deposit), for any portion of the Goods identified in the PO; or (3) indicating in any other manner Vendor’s acceptance of the PO.

2.0 Time of Performance: Vendor acknowledges that time is of the essence in the performance of the PO. Vendor agrees to provide the Goods by the delivery date stated in the PO (“Delivery Date”). In the event different Goods on the same PO have different Delivery Dates, Vendor acknowledges that the Goods shall be delivered by the Delivery Date identified for each respective Good. If Vendor fails to timely deliver Goods in accordance with the Delivery Date for such Goods, DCS may: (1) cancel the PO, in whole or in part; (2) recover any portion of the Price that has been paid; and (3) and procure the same or similar goods from a third party as cover, charging all additional costs it incurs as a result of Vendor’s nonperformance as damages for Vendor’s breach.

3.0 Pricing: All prices for Goods stated in the PO (“Price”) shall constitute the full and complete compensation to be paid to Vendor for the sale of such Goods to DCS, including, without limitation, all markup, overhead, profit, home office expenses and other direct and indirect expenses related to the sale of the Goods and all costs and expenses relating to packing, crating, boxing, transporting, shipping, loading, unloading, securing, importing, insuring, customs, tariffs and duties, taxes and any other financial contributions or obligations relating to the production, manufacture, sale, shipment and delivery of the Goods. Price is FOB to the “Ship To” location specified in the PO (“Delivery Location”).

4.0 Invoicing and Payment: Invoices shall only be submitted to DCS by email to accounting@dcsmailbox.com, unless a different invoice remittance method and address is specifically required in the PO, immediately after shipment of Goods is complete. Each invoice must contain DCS’s Purchase Order Number and, if required by DCS, be accompanied by a conditional lien waiver in form and content acceptable to DCS and executed by Vendor, as express conditions precedent to DCS’s obligation to process payment for such invoice and Vendor’s right to receive payment for such invoice. Delays in receiving invoices, errors or omissions on invoices, or lack of supporting documentation required by the terms of the PO will be cause for postponing the start of the thirty (30) day period for processing payment of the invoice until the corrected and complete invoice and supporting documentation is received by DCS. DCS will not be responsible for or obligated to pay charges for Goods included on invoices which are received more than ninety (90) days after the shipment of such Goods unless DCS has specifically authorized billing for Goods shipped more than ninety (90) days before the date of invoice in a writing signed by DCS. Payment terms are net ninety (90) days after (a) DCS’s receipt of an invoice which is submitted in accordance with and fully complies with the requirements stated herein and (b) final acceptance of the Goods for which Vendor seeks payment. DCS may withhold payment for Goods which do not fully comply with the terms of the PO, including these General Terms and Conditions, until such time that any nonconformance is resolved to DCS’s reasonable satisfaction.

5.0 Changes: DCS may direct Vendor in writing at any time prior to shipment of the Goods to make changes to the Goods and the requirements relating thereto in the PO, including, but not limited to: (1) the specifications of the Goods; (2) the Delivery Location; (3) the Delivery Date; (4) the method of delivery; and (5) the quantity of Goods. Other than the changes authorized in accordance with the terms of this Section, no changes to the PO or the performance of the Parties required thereunder shall be authorized unless accepted in a writing signed by the Parties.

6.0 Shipment and Delivery of Goods: Goods shall be delivered during DCS’s normal business hours at the Delivery Location or as otherwise instructed by DCS. Unless otherwise specified in the PO, title and risk of loss shall pass to DCS after delivery of the Goods to DCS at the Delivery Location. Until such delivery of the Goods to DCS has occurred, Vendor shall be liable for any loss or damage to the Goods and any property held on DCS’s behalf, and any other loss, cost or expense incurred by DCS arising from Vendor’s shipment and delivery of the Goods. Vendor shall procure and maintain insurance covering the loss or damage to the Goods and any property held on DCS’s behalf. Vendor shall provide DCS with certificates evidencing such insurance and shall take all necessary steps to ensure that DCS is named as an additional named insured under such insurance. Partial shipments must be accompanied by identifying documents, but such shipments shall not be construed as making the obligations of Vendor under the PO severable. Vendor shall promptly replace at its own cost Goods which are damaged as a result of improper packing. Until such time as damaged Goods are replaced, Vendor’s performance will not be deemed complete and DCS may seek any remedies available to it in Section 2.0. Itemized packing lists must accompany each delivery.

7.0 Final Acceptance of Goods: Final acceptance or rejection of the Goods will be made as promptly as practical after actual delivery of the Goods to the Delivery Location. Failure of DCS to inspect and accept or reject Goods, or failure to detect defects by inspection, will not relieve Vendor from responsibility and liability for replacement or repairs of such Goods that are damaged or do not comply with the requirements of the PO, including the samples, specifications, drawings, or descriptions provided to Vendor. DCS, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming, damaged or defective. If DCS rejects any portion of the Goods, DCS has the right, upon notice to Vendor, to: (1) rescind the PO in its entirety; (2) accept the Goods at a reasonably reduced price; (3) reject the Goods and require replacement of the rejected Goods; or (4) seek any other remedy available to it at law or in equity. DCS, at its sole option, may elect to exercise the remedies of this Section alone, in any combination, or in any order that DCS deems appropriate. If DCS elects to require replacement of the Goods, Vendor, at its sole expense, shall within three (3) calendar days replace the nonconforming, damaged or defective Goods. Vendor is solely responsible for all costs and expenses associated with replacing the Goods, including transportation and shipping costs for return of the nonconforming, damaged or defective Goods and delivery of the replacement Goods. If Vendor fails to timely deliver replacement Goods, DCS may (1) cancel the PO; (2) recover any portion of the Price that has been paid; and (3) replace the Goods with the same or similar goods from a third party and charge Vendor the cost of replacement in addition to recovering all other damages incurred by DCS as a result of Vendor’s default or breach. Goods rejected and Goods supplied in excess of quantities ordered may be returned to the Vendor at Vendor’s expense. DCS’s payment for the Goods shall not constitute its acceptance of the Goods. Payment, if any, made for any Goods rejected hereunder shall be promptly refunded by Vendor upon DCS’s demand.

8.0 Pre-Delivery Inspection of Goods: All Goods supplied under the PO are subject to inspection and testing by DCS at any time and place prior to final acceptance, including during the period of and at any place of manufacture. DCS shall provide Vendor notice at least one (1) day before DCS conducts any pre-delivery inspection or testing of the Goods. DCS, at its option, may provide the notice orally or in writing including via email, text message (SMS), or equivalent.

9.0 Cancellation of PO: DCS reserves the right to cancel the PO, or any portion thereof, without liability, if: (a) delivery is not made when and as specified in the PO; (b) Vendor fails to perform in accordance with any term, condition or requirement of the PO; (c) Vendor ceases to conduct its operation in the normal course of business; (d) Vendor is unable to meet its obligations under the PO; (e) Vendor becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (f) Vendor files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency laws; (g) Vendor seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts; (h) Vendor makes or seeks to make a general assignment for the benefit of its creditors; or (i) Vendor applies for or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Any cancellation of a PO is effective upon delivery of written notice of cancellation to Vendor. In the event of a cancellation, DCS shall have no further obligations to Vendor except to pay for Goods that were delivered to and accepted by DCS prior to such cancellation. Upon cancellation, Vendor shall provide any transition assistance that may be reasonably requested by DCS. Vendor waives all rights and claims to recover any other or additional damages from DCS as a result of such cancellation, including, without limitation, any right or claim for the payment of anticipated profit on the Goods not delivered prior to cancellation.

10.0 Termination for Convenience: DCS may, in its sole discretion, terminate the PO for its convenience prior to Vendor delivering all Goods to DCS in strict accordance with all requirements of the PO. Any termination of a PO is effective upon delivery of written notice of termination to Vendor. In the event of a termination for DCS’s convenience, DCS shall have no further obligations to Vendor except to pay for Goods that were delivered to and accepted by DCS prior to such termination. Vendor waives all rights and claims to recover any other or additional damages from DCS as a result of such termination for DCS’s convenience, including, without limitation, any right or claim for the payment of anticipated profit on the Goods not delivered prior to termination.

11.0 Warranties of Goods: Vendor represents and warrants that: (a) Vendor owns all rights, title and interest in the Goods and has legal authority to sell, license or otherwise transfer the right to use such Goods to DCS; (b) the Goods are of good and merchantable quality; (c) the Goods are free from defects in design, material and workmanship; (d) the Goods conform to applicable specifications, drawings, samples, descriptions and associated documentation provided by DCS; (e) the Goods, and the production and sale thereof, and all warranties, guarantees, representations made or authorized to be made by Vendor in connection therewith are in compliance with all applicable laws, rules and regulations; (f) the Goods are safe, operate as intended and are fit for the intended purpose; (g) no Goods or their sale or use will infringe any patents, trademarks, copyrights, trade secrets or similar intellectual property rights of any third party; and (h) Vendor will comply with all federal, state and locals laws, ordinances, rules and regulations applicable to its performance under the PO. Vendor shall repair, replace or correct, at DCS’s option and at Vendor’s cost, any Goods which do not conform to the warranties in this Section. If Vendor fails to repair, replace or correct nonconforming Goods within ten (10) days from the date that DCS notifies Vendor of the nonconforming condition of such Goods, DCS may, without further notice to Vendor, (i) make such corrections or replace such Goods and charge Vendor for all costs incurred by DCS, or (ii) revoke its acceptance of the Goods in which event Vendor shall be obligated to refund the Price paid for such Goods and make all necessary arrangements, at Vendor’s cost, for the return of the Goods to Vendor. All warranties of Vendor herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by DCS. Any attempt by Vendor to limit, disclaim, or restrict these warranties or any remedies of DCS, by acknowledgment or otherwise, in accepting or performing the PO, will be null, void, and ineffective without DCS’s express consent in a writing signed by DCS.

12.0 Indemnification: Vendor shall defend, indemnify and hold harmless DCS, DCS’s client and the owner(s) of any building, facility or other structure where the Vendor’s Goods are to be supplied or incorporated into an improvement (“Project”), as well as each of their respective officers, directors, members, employees and agents (collectively the “Indemnitees”) from and against all claims, suits, losses, judgments, liens, damages, costs and/or expenses (including reasonable attorney’s fees) of any type, nature or kind, including, without limitation, all tort claims, contract claims, statutory claims, employment related claims, claims for infringement of any patent rights or copyrights, and claims for actual, direct, indirect, special, incidental, consequential and punitive damages, arising out of or in connection with the Vendor’s alleged breach of the PO or alleged negligent or wrongful acts or omissions in the performance of the PO. To the fullest extent permitted by applicable law, Vendor’s indemnification obligation extends to all such claims, suits, losses, judgments, liens, damages, costs and expenses even if the same are caused, in part, by the negligent or wrongful acts or omissions of one or more of the Indemnitees; provided, however, that Vendor’s indemnification obligation shall not apply to claims, suits, losses, judgments, liens, damages, costs and expenses caused solely and entirely by the negligent or wrongful act or omission of one or more of the Indemnitees. In claims against any Indemnitee by an employee of the Vendor or any of its suppliers, vendors or subcontractors, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, the indemnification obligation under this Section shall not be limited by a limitation on amount or type of damages, compensation, or benefits payable by or for the Vendor or its supplier, vendor or subcontractor under workers’ compensation acts, disability benefit acts, or other employee benefit acts.

13.0 WAIVER OF CONSEQUENTIAL DAMAGES: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DCS AND VENDOR WAIVE CLAIMS AGAINST EACH OTHER FOR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE PO, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL DAMAGES DUE TO EITHER PARTY’S TERMINATION IN ACCORDANCE WITH THE TERMS OF THE PO. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO PRECLUDE AN AWARD OF LIQUIDATED DAMAGES OR ACTUAL, DIRECT DAMAGES, WHEN APPLICABLE, IN ACCORDANCE WITH THE REQUIREMENTS OF THE PO.

14.0 Insurance: For the duration of the period of Vendor’s performance of the PO, Vendor agrees to obtain and maintain: (1) commercial general liability insurance with a per occurrence limit of no less than $1,000,000 and with an aggregate limit of no less than $2,000,000; (2) business automobile liability insurance with a combined single limit of no less than $1,000,000 per accident; and (3) workers compensation insurance with limits as required by law in the state(s), territory(ies), province(s) or jurisdiction(s) where the Vendor or its employees conduct any activity in the performance of the PO. Vendor shall provide DCS with certificates evidencing such insurance and shall take all necessary steps to ensure that DCS is named as an additional named insured under Vendor’s commercial general liability insurance.

15.0 Force Majeure: Each of the Parties shall be relieved from liability to the other for failure to perform due to catastrophic natural events, war, governmental restrictions, limitations or stoppages due to COVID-19 or other pandemic or epidemic, widespread labor strikes, or widespread unavailability of materials necessary to performance, or other similar unanticipated and extraordinary events or occurrences which are entirely beyond the reasonable control of such party (each a “Force Majeure Event”), provided that Vendor shall provide DCS notice in writing of the Force Majeure Event no later than forty-eight (48) hours after Vendor first becomes aware of the Force Majeure Event.

16.0 ARBITRATION: THE PARTIES AGREE THAT ANY CLAIM OR DISPUTE BETWEEN THEM ARISING OUT OF OR RELATING TO THE PO OR THE PERFORMANCE OR BREACH THEREOF SHALL BE RESOLVED BY BINDING ARBITRATION. THE PARTIES SHALL MUTUALLY AGREE UPON THE ARBITRATOR AND THE ARBITRATION SHALL BE ADMINISTERED IN ACCORDANCE WITH THE AMERICAN ARBITRATION ASSOCIATION’S CONSTRUCTION INDUSTRY ARBITRATION RULESTHEN IN EFFECT. IF THE PARTIES ARE UNABLE TO AGREE UPON THE ARBITRATOR, THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION AND THE ARBITRATOR SHALL BE SELECTED IN ACCORDANCE WITH THE ABOVE-REFERENCED RULES. THIS AGREEMENT TO ARBITRATE SHALL BE ENFORCEABLE UNDER AND SUBJECT TO THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTION 1, ET SEQ. THE PARTIES AGREE AND AFFIRM THAT THE CONTRACT AND ITS PERFORMANCE INVOLVE MATERIALS, PRODUCTS AND SERVICES IN INTERSTATE COMMERCE. THE PARTIES SHALL SHARE EQUALLY THE FEES AND EXPENSES OF THE ARBITRATOR UNLESS THE ARBITRATOR ORDERS OTHERWISE IN ITS AWARD. EACH PARTY SHALL BEAR ITS OWN ATTORNEY’S FEES AND COSTS INCURRED IN CONNECTION WITH THE ARBITRATION REGARDLESS OF THE PREVAILING PARTY. THE ARBITRATION SHALL BE HELD IN WILLIAMSON COUNTY, TENNESSEE.

17.0 Confidentiality and Non-Disclosure: Vendor shall treat as confidential and not disclose to third parties, except as it is necessary for the supply of the Goods in accordance with the terms of the PO, nor use for its own benefit, any of the documents, drawings, specifications, technical data, contractual information, business information or data, production methods and other proprietary information of DCS, DCS’s client or any Project owner which is provided to Vendor or otherwise observed or obtained by Vendor in connection with the performance of the PO (collectively “Confidential Information”). Vendor shall receive written consent from DCS before disclosing any Confidential Information necessary for Vendor to supply the Goods in accordance with the terms of the PO. Vendor also agrees to execute any non-disclosure or confidentiality agreement required by DCS or DCS’s Client which is consistent with this Section.

18.0 No Assignment: Vendor shall not assign this PO or any part thereof, including any right or interest in the PO, without DCS’s prior written consent.

19.0 Survival: The provisions of the PO relating to remedies, compliance with laws, warranties, indemnification, confidentiality and non-disclosure, insurance, effect of cancellation, and survival will survive the cancellation, termination or expiration of the PO.

20.0 Compliance with Law, Rules and Regulations: In the event that Vendor visits a DCS Project site in connection with its performance of the PO, Vendor shall comply with DCS’s, DCS’s client’s or the Project owner’s safety rules and regulations and job site rules and regulations, prevailing industry safety requirements, and all applicable local, state, and federal laws and regulations. Vendor agrees to indemnify DCS, DCS’s client and the Project owner from and against all penalties, losses and expenses (including attorneys’ fees) arising from Vendor’s failure to comply with any applicable laws, rules and/or regulations.

21.0 Governing Law: The PO, including these General Terms and Conditions incorporated therein, shall be interpreted, construed and governed by the laws of the State of Tennessee. Any dispute or claim arising from or relating to the PO or the performance or breach thereof shall be governed by the laws of the State of Tennessee.