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DocuSign Envelope ID: AOD5DO06- 1BO4- 4F7B- 96D7- OF7A4E374317
<br />TERMS AND CONDITIONS
<br />"H &H" shall mean Hoffman & Hoffman, Inc.
<br />1. Controlling Terms & Conditions: This Agreement, upon Buyer's acceptance, is limited to the terms and conditions stated herein, despite any additional or conflicting terms
<br />and conditions contained in any purchase order, any other document presented by Buyer, or any contract document between Buyer and any third -party (i.e. an owner, other
<br />contractor, etc.), all of which additional or conflicting terms are hereby rejected by H &H. No waiver of, or modification to, these Terms and Conditions shall be valid unless made
<br />in writing and signed by an authorized representative of H &H. The terms of any written proposal / quote made by H &H ( "proposal ") and these Terms and Conditions shall
<br />constitute the entire agreement of the parties.
<br />2. Acceptance: Any H &H proposal expires if not accepted by Buyer within thirty (30) days from the date of the proposal. Prices are firm after acceptance provided the Buyer
<br />releases the order for production by written notice to H &H within sixty (60) days of placing the order. Otherwise, prices are subject to escalation. Typographical and clerical errors
<br />in quotations, orders and acknowledgments are subject to correction. Buyer is deemed to have accepted any H &H proposal to purchase goods or services, including these Terms
<br />and Conditions, when Buyer either (a) receives and retains an acknowledgement from H &H without written objection within ten (10) days, (b) accepts delivery of all or any part of
<br />the goods ordered, (c) provides to H &H delivery dates, shipping instructions, or other instructions evidencing acceptance, or (d) otherwise executes or assents to any proposal or
<br />these Terms and Conditions. If Buyer accepts any proposal, without the addition of any other terms and conditions or any other Buyer modification, Buyer's order shall be
<br />deemed acceptance of the proposal subject solely to H &H's terms and conditions. If Buyer's order is expressly conditioned upon H &H's acceptance or assent to terms and /or
<br />conditions other than those stated herein, return or acknowledgment of such order by H &H with H &H's Terms and Conditions attached or referenced serves as H &H's notice of
<br />objection to, and rejection of, Buyer's terms and as H &H's counter -offer to provide goods or services in accordance with the H &H proposal and H &H's Terms and Conditions. If
<br />thereafter Buyer does not reject or object in writing to H &H within ten (10) days by written notice to Legal @hoffman- hoffman.com, H &H's counter -offer will be deemed accepted
<br />by Buyer. In any event, Buyer's acceptance of all or any part of any goods ordered will constitute Buyer's acceptance of H &H's proposal subject to H &H's Terms and Conditions.
<br />3. Terms of Payment / Taxes: Payment is due net thirty (30) days from date of H &H's invoice to Buyer. Interest at the rate of 1 12% per month (or the highest interest rate
<br />allowed by applicable law, if lower) may be charged after the 30 -day period until payment is received. Buyer shall pay all costs of collection incurred by H &H including, but not
<br />limited to, reasonable attorneys' fees, collection fees, and court costs. H &H may suspend all further services and transactions (regardless of their status) without liability if Buyer's
<br />account is more than thirty (30) days past due or if Buyer's credit, in the sole judgment of H &H, is impaired at any time. Partial invoices may be submitted for any portion of
<br />completed work and /or delivered materials. While risk of loss passes to Buyer, Seller will have a purchase -money security interest in all goods (including any accessories and
<br />substitutions) purchased under this Agreement to secure payment in full of all amounts due H &H, and the underlying proposal, together with these Terms and Conditions, form a
<br />security agreement (as defined by the UCC.) Buyer shall keep all goods purchased under this Agreement free of all taxes and encumbrances, shall not remove said goods from
<br />their original installation point and shall not assign or transfer any interest in said goods until all payments due H &H have been made. The purchase -money security interest
<br />granted herein attaches upon H &H's acceptance or acknowledgment of this Agreement and Buyer's receipt of said goods, but prior to installation. Buyer will have no rights to set
<br />off against any amounts which become payable to H &H under this Agreement or otherwise. Notwithstanding any Buyer form or document to the contrary, H &H shall not release
<br />any rights to make a lien and /or bond claim, or other claim for damages, in connection with goods purchased or services provided until H &H has obtained payment in full for such
<br />goods or services and any damages. Furthermore, Buyer is responsible to pay in full for the goods or services provided by H &H regardless of whether such goods or services are
<br />funded for Buyer pursuant to any extraneous contract and /or by an applicable project owner or contractor. Unless otherwise agreed by H &H in writing, Buyer shall pay to H &H, in
<br />addition to the contract price, all sales, use, excise, privilege or other taxes imposed by any local, state or federal taxing authority payable in connection with the goods or
<br />services furnished.
<br />4. Shipments / Claims: All shipments of goods are at Buyer's risk, f.o.b. factory, or if shipped from another location, f.o.b. point of shipment, with charges either allowed, added
<br />to invoice, or collected as noted. Any claims for damage or shortage or loss in transit must be filed by Buyer against the applicable carrier. If requested, H &H will reasonably
<br />assist the Buyer when making its claim for damages and /or losses while in transit. Claims against factory shortages will not be considered unless made within sixty (60) days after
<br />Buyer's receipt of the goods.
<br />5. Approval: H &H shall not be liable in any way should any third party (such as a project architect, engineer, owner, etc.) fail to accept or approve equipment ordered by Buyer.
<br />H &H cannot guarantee to meet or equal specifications written around another make of equipment different than that purchased by Buyer.
<br />6. Warranties and Liability: Upon condition that H &H receives payment in full for all amounts owed, H &H extends to Buyer the manufacturer's warranty (a copy of which is
<br />available upon request), and manufacturer's warranty is in lieu of any warranties contained in any applicable project contract, conditions, plans, or specifications. H &H ITSELF
<br />MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE
<br />EQUIPMENT, ITS MERCHANTABILITY, IMPLIED WARRANTIES OF DESIGN OR FITNESS FOR A PARTICULAR PURPOSE. H &H SHALL HAVE NO LIABILITY FOR ANY
<br />DIRECT DAMAGES BY REASON OF FAILURE OF THE EQUIPMENT TO OPERATE OR FAULTY OPERATION OF THE EQUIPMENT, AND UNDER NO CIRCUMSTANCES
<br />SHALL H &H BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR LIQUIDATED DAMAGES OR LOSSES, INCLUDING
<br />BUT NOT LIMITED TO, LOSS OF USE, INCOME, PROFIT OR PRODUCTION, LOST DATA, SPOILAGE, DELAY, OR INCREASED COST OF OPERATION. SAID
<br />EXCLUSIONS APPLY EVEN IF H &H HAS BEEN ADVISED OF SUCH POSSIBLE DAMAGES OR IF SUCH POSSIBLE DAMAGES WERE REASONABLY FORESEEABLE.
<br />Buyer acknowledges that H &H is not responsible for the design of goods or services purchased and did not participate in any project design in connection with such goods or
<br />services.
<br />7. Limitation of Remedy: H &H shall have no liability for any damage caused by negligence, accident, misuse, improper storage, improper installation, improper service,
<br />maintenance or operation of equipment by Buyer or any third party. As determined at H &H's option and in its sole discretion, H &H's liability (whether under theories of warranty,
<br />negligence, strict liability or contract) is limited solely to (a) repair or replacement of purchased equipment or its parts by H &H or its duly authorized representative or (b) refund of
<br />the purchase price, and the foregoing shall be the sole and exclusive remedy against H &H. In no event shall H &H's liability exceed the purchase price paid by Buyer under this
<br />Agreement, and Buyer waives all other remedies at law or in equity. Furthermore, Buyer waives any claim with respect to goods or services purchased under this Agreement,
<br />unless Buyer notifies H &H in writing within ten (10) days of the date Buyer discovered, or by reasonable inspection should have discovered, the basis for such claim.
<br />8. Hazards: H &H is not responsible for the identification, detection, abatement, encapsulation or removal of hazardous substances, such as (without limitation) asbestos,
<br />products or materials containing asbestos, mold, fungi, mildew, or bacteria. At all times now and in the future, H &H takes no responsibility for and makes no representations or
<br />warranties concerning any existing or future hazardous substance or condition (i.e. mold) or the remedy or prevention thereof. Furthermore, Buyer has a duty to alert H &H of any
<br />known or likely potential hazards at any project site where H &H's representatives and affiliates may be present in connection with this Agreement.
<br />9. Indemnification: To the fullest extent permitted by law and except as provided in this Paragraph, Buyer shall indemnify, hold harmless and defend H &H and its officers,
<br />employees and agents from and against all claims, demands, liabilities, suits, judgments, awards, or expenses of any kind (including reasonable attorneys' fees and costs
<br />incurred defending such claims or demands, regardless of whether they result in legal action or are prosecuted to final judgment or award), which result from any alleged
<br />damage, loss of and /or injury to property or person, arising from Buyer's purchase or use of goods or services provided by H &H. Buyer shall indemnify H &H against, without
<br />limitation, liability arising from any acts or omissions whether deemed negligent, accidental or intentional, which is caused, in part, by the active or passive negligence or other
<br />fault of H &H. To the fullest extent permitted by law, the obligations of defense and indemnification set forth herein shall be binding upon Buyer no matter what the nature of the
<br />claim asserted may be (whether it be for negligence, warranty, strict liability, or otherwise) and shall be binding even if H &H is alleged or proven to have acted negligently;
<br />provided, however, that Buyer shall have no obligation to provide indemnification to H &H if the claim asserted arises in negligence and is finally adjudicated to have arisen solely
<br />from the negligence of H &H. Buyer shall also indemnify and hold harmless H &H from all liability for taxes owing in connection with Buyer's purchase of goods or services. The
<br />obligations and rights to indemnity herein shall not negate, abridge or reduce other such rights or obligations under law.
<br />10. Claims Resolution / Governing Law: All claims and disputes between Buyer and H &H arising out of or relating to performance of any agreement or breach thereof shall be
<br />decided by binding arbitration in accordance with the Construction Industry Arbitration rules of the American Arbitration Association (AAA). Notice of Demand for Arbitration must
<br />be filed in the regional office of the AAA in Charlotte, North Carolina, and the filing party must serve such Notice upon the other party in accordance with AAA rules. The
<br />procedural and substantive law of the State of North Carolina shall apply in and to all arbitration proceedings, and Greensboro, North Carolina, is designated as the venue for
<br />such proceedings. Both parties will have the right to conduct discovery in accordance with the Federal Rules of Civil Procedure within reasonable time limitations imposed by the
<br />AAA or the applicable arbitrators. Any award arising from such proceedings shall be final and binding upon the parties and enforceable in accordance with the Federal Arbitration
<br />Act. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina.
<br />11. Delays / Penalties / Force Majeure: Delivery dates are approximate and not guaranteed. In no event and under no circumstances whatsoever, will H &H be liable for any
<br />damages or expenses caused by any failure or delay in making delivery of goods or in performing services hereunder. No penalty clause or liquidated damages of any kind (for
<br />delays or otherwise) apply to H &H unless pre- approved in writing by an H &H officer. Furthermore, in no event and under no circumstances whatsoever, will H &H be liable under
<br />this Agreement for any event of force majeure, an event or cause beyond the reasonable control of H &H.
<br />4 Hoffman & Hoffman, Inc. • 2741 Noblin Rd, Suite 100 Raleigh, NC 27604 • 919 - 781 -8011
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