These General Terms and Conditions – Sale of Goods or Services (the "Terms") govern all furnishing of materials, goods, equipment, products, parts, accessories, services, or labor (collectively, the “Goods”) by DDM Materials, Inc. and/or its subsidiaries, affiliates, successors, and assigns (collectively, the “Seller”) to the customer shown on the Quote (the “Quote”) and its subsidiaries, affiliates, successors, and assigns (collectively, the “Buyer”) and all other business transactions between Seller and Buyer.  By executing the Quote, requesting that Seller furnish the Goods described in the Quote, accepting any Goods from Seller, and/or making payments to Seller, Buyer is deemed to have unequivocally accepted these Terms.  The Quote is an offer to furnish Goods, and any acceptance of such offer is limited to, and expressly conditioned upon, Buyer’s acceptance of the terms of the Quote and these Terms (collectively, the “Agreement”), which form an integral part of the Quote.  Seller and Buyer are each referred to herein as a “Party” individually and collectively as the “Parties.”  

 

1. Purchase and Sale.  Seller shall, on a non-exclusive basis, sell to Buyer, and Buyer shall, on a non-exclusive basis, purchase from Seller, the Goods, on the terms and conditions set out in this Agreement.  Buyer is not obligated to purchase any minimum quantities of Goods from Seller, and Seller is not obligated to sell any minimum quantities of Goods to Buyer, under this Agreement.  The terms and conditions of all orders under this Agreement are expressly limited to the terms of this Agreement.  This Agreement encompasses the entire agreement of the Parties and supersedes all understandings, agreements, terms, or conditions between the Parties, whether oral or written (including, without limitation, those contained in any purchase orders, quotations, proposals, delivery tickets, receipts, or other document furnished by Buyer at any time or contained on Buyer’s website).  Buyer represents that it is not relying on any statement, promise, or condition not specifically set forth in this Agreement.

 

1. Orders. 

 

1. Buyer shall initiate all orders of Goods by Quote or as otherwise agreed by Seller (an “Order”).  By placing an Order, Buyer makes an offer to purchase Goods pursuant to the terms and conditions of this Agreement and on no other terms.  Any variations made to the terms and conditions of this Agreement by Buyer in any Order are void and have no effect.  Buyer shall submit all Orders not less than 48 hours prior to the requested delivery date and time.

 

1. Seller has the right, in its sole discretion, to accept or reject any Order. Seller may accept any Order by confirming the order by Signature or by delivering the Goods listed in the applicable Order, whichever occurs first. No Order is binding on Seller unless accepted by Seller as provided in this Agreement.

 

1. Seller may, in its sole discretion, cancel or amend any Order accepted by Seller hereunder if (i) Seller determines that Buyer is in violation of its payment obligations or is otherwise in breach of this Agreement or that Buyer's financial condition or creditworthiness is inadequate or unsatisfactory; or (ii) the ordered Goods are not available.

 

1. Buyer shall be liable to pay for all accepted Orders that Buyer cancels less than 24 hours prior to the requested delivery date and time.

 

1. Price and Payment. 

 

1. Prices in Seller's Quote are subject to change without notice, and all Quotes expire and become void if not unconditionally accepted by Buyer within 30 days from the date of issuance.  If the Agreement extends for more than one year, the pricing included in the Quote will increase by eight percent (8%) per annum each year until the expiration or termination of this Agreement.

 

1. Unless expressly stated otherwise in the Quote, the prices contained in Seller’s Quote do not include, and Buyer will promptly pay when due, all sales, use, property, excise, and other taxes or assessments (whether federal, state, or local), tariffs, duties, import or export customs, license, permit, environmental, or registration fees, and all other costs and expenses, however designated or levied, imposed on the Goods or related to its transportation, use, possession, control, or otherwise, excluding only taxes based on Seller’s income.  Buyer agrees to reimburse Seller for any such taxes incurred in connection with this Agreement.  If the Goods are tax exempt, Buyer shall provide Seller with an acceptable and authorized tax exemption certificate.

 

1. If Buyer has submitted, and Seller has approved, Buyer’s credit application, the Buyer shall pay all amounts due under this Agreement within 30 days from the date of Seller’s invoice.  If Buyer does not provide adequate and satisfactory proof of its financial condition or creditworthiness (or if Seller determines in its sole discretion that Buyer's financial condition or creditworthiness becomes inadequate or unsatisfactory), Buyer shall pay all amounts due for each Order and provide any other assurances requested by Seller upon Seller’s acceptance of the Order and as a condition precedent to Seller shipping the Goods or making the Good available to Buyer.

 

1. Seller transmits invoices electronically as a standard practice. Buyer must contact Seller prior to placing an Order if Buyer does not wish to receive electronic invoicing.

 

1. Buyer agrees to pay reasonable storage fees if Goods are stored at Seller's facility more than 60 days after the Goods are ready for delivery.

 

1. Seller may apply Buyer's payments against any amounts due to Seller within Seller's sole discretion.  Seller also has the right to exercise setoff or recoupment when needed to satisfy any outstanding debt.

 

1. Buyer shall pay interest on all delinquent payments at the lesser of one and one-half percent (1.5%) each month or the highest rate permissible under applicable law. Buyer shall also reimburse Seller for all costs incurred by Seller in collecting any unpaid or delayed payments, including attorneys' fees and court costs.

 

1. Buyer acknowledges that it is solely responsible for determining the suitability of and calculating the quantity of Goods ordered from Seller.  Conversion of quantities from yards to tons (or vice versa) is Buyer’s responsibility.   Buyer is solely liable for any mathematical or clerical errors included in any Order.  Buyer shall not be entitled to receive a credit for excess Goods; provided that Seller, in its sole discretion, may accept returned Goods subject to a reasonable restocking fee to be determined buy Seller.

 

1. Buyer shall provide an authorized person to sign a delivery ticket for each delivery of Goods confirming the time and quantity of each such delivery.  A signature on one delivery ticket shall be deemed a signature on all delivery tickets for all Goods delivered on the same day.

 

1. Buyer shall provide Seller all information requested by Seller to prepare and effect any notices required to perfect lien rights under applicable law.  Upon request, Buyer shall provide Seller copies of any applicable payment bonds.

 

1. Shipment and Delivery. 

 

1. Unless otherwise provided in the Quote, Seller shall deliver Goods to the delivery point stated in the Quote using Seller’s standard packaging and shipping methods and shall unload the Goods at the delivery point.  Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer under any Order. Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of an Order.

 

1. Any time quoted by Seller for delivery is an estimate only and is not guaranteed. Seller is not liable for or in respect of any loss or damage arising from any delay in delivery.  However, if Seller delays shipment of all or any Goods for more than 2 days after the estimated delivery date set out in the Order, then Buyer may, as its sole remedy therefor, cancel the related Order with respect to the delayed Goods by giving notice to Seller.  Except as provided in the previous sentence, no delay in the shipment or delivery of any Goods relieves Buyer of its obligations under this Agreement, including accepting delivery of any Goods ordered.

 

1. Inspection.

 

1. Unless otherwise stated in the Quote, Buyer does not require any inspection, test, or analysis prior to ordering the Goods and Buyer waives any claim if the Goods fail to meet inspection, test, or analysis criteria.  Any expense of any required inspection, test or analysis shall be paid by the Buyer.

 

1. Buyer acknowledges that it has had the opportunity to inspect and test the Goods and confirm that they conform to Buyer’s desired specifications and other requirements.  Regardless of whether Buyer has inspected and tested the Goods, by ordering any Goods, Buyer agrees that the Goods Seller is making available to Buyer conform to Buyer’s desired specifications and other requirements (subject to rejection following delivery as provided herein).

 

1. Buyer will visually inspect all Goods immediately upon delivery (as applicable).  Buyer will promptly (but in no event later than 48 hours after delivery (as applicable) and in all events prior to disturbing any delivered Goods) notify Seller if any of the Goods appear to materially fail to comply with the requirements of this Agreement (a “Defect” or “Defective”).  Following such notice, Buyer shall not disturb such Goods, and the Parties will arrange for a third-party testing lab to test the Goods.  The testing lab will gather and test a minimum of three different samples from different locations.  If the testing lab determines that the Goods are not Defective, the Goods will be deemed accepted by Buyer and Buyer shall pay the testing costs.  If the testing lab determines that Goods are Defective, Seller shall pay the testing costs and Buyer shall have the remedies described in Section 8.  Buyer shall be conclusively deemed to have accepted the Goods if it fails to notify Seller of the potentially Defective Goods with the time provided in this Section 5(c) or disturbs the Goods before testing, and any Defects of such Goods will be deemed waived by Buyer.

2. Buyer shall notify Seller of intent to enter into any agreement with any party to pave over Seller's base material Goods prior to obtaining passing or failing certification. Upon paving over Seller's base material without obtaining passing or failing results, Buyer assumes any and all financial responsibility for repair and/or replacement of all materials.  

 

1. Title; Risk of Loss.  Title to the Goods shall transfer to Buyer upon the later of payment by Buyer or delivery to the delivery point stated in the Quote.  Notwithstanding the foregoing, risk of loss of or damage to the Goods shall transfer to Buyer upon delivery to the delivery point stated in the Quote. 

 

1. Intellectual Property Rights.  All intellectual property rights, including copyrights, patents, trademarks, service marks, trade secrets, know-how, and other confidential information and all derivative works and all other rights (collectively, “Intellectual Property Rights”) in the Goods and in and to any designs, sketches, drawings, specification, programs, blueprints, patterns, and other work product, and any dies, models, molds, tools, plates, cuts, special appliances, and all improvements thereto, furnished to Buyer by Seller and/or created or developed in connection with or as a result of this Agreement shall be owned solely and exclusively by Seller.  Buyer shall not take any action that might interfere with any of Seller’s rights in or to Seller’s Intellectual Property Rights, including Seller’s ownership or exercise thereof or challenge any right, title, or interest of Seller in or to Seller’s Intellectual Property Rights.

 

1. Defective Goods; Limited Warranty.

a.Seller warrants only that, at the time of delivery, the physical properties of the Goods (e.g., gradation, sand equivalent, or cleanliness value) will conform to the specifications set forth in the Quote or to Seller's standard manufacturing practice.  This warranty does not apply to (i) Goods that have been disturbed or segregated after delivery; or (ii) Defects attributable to (A) abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, (B) use contrary to any instructions issued by Seller, (C) improper testing, installation, storage, handling, repair, or maintenance, (D) alteration of the Goods not executed by Seller, (E) normal wear and tear, or (F) any event or condition that is not within the reasonable control of Seller.

b.If Buyer timely notifies Seller of the allegedly Defective Goods pursuant to Section 5(c), and the testing lab determines that Goods are Defective, Seller shall, at Seller's sole discretion: (i) repair or replace the Defective Goods at a reasonable time, F.O.B. Seller's plant, or (ii) refund the purchase price for such Defective Goods.

1. SELLER’S SOLE WARRANTY FOR THE GOODS IS SET FORTH IN THIS SECTION 8, AND SELLER DOES NOT MAKE (and hereby expressly disclaims) any other warranties of any kind whatsoever. THE WARRANTIES AND REMEDIES IN SECTION 8 ARE IN LIEU OF ANY OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED, OR STATUTORY, AND SET FORTH CONTRACTOR’S EXCLUSIVE REMEDIES FOR ANY DEFECTIVE GOODS OR BREACH OF WARRANTY BY SUBCONTRACTOR.  NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE, OR NON-INFRINGEMENT SHALL APPLY. All SELLER warranties are void if BUYER FAILS TO TIMELY PAY AMOUNTS DUE TO SELLER OR OTHERWISE breaches this Agreement.

9.Indemnity.  TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER DISCLAIMS LIABILITY FOR, AND BUYER SHALL RELEASE, INDEMNIFY, HOLD HARMLESS, AND DEFEND SELLER AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTOR, SHAREHOLDERS, MEMBERS, AFFILIATES, SUCCESSORS, AND ASSIGNS (THE “INDEMNITEES”) FROM AND AGAINST, ANY CLAIM, LIABILITY, LOSS, DAMAGE (INCLUDING INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES), LOST PROFITS OR REVENUES, OR EXPENSE OF ANY KIND (INCLUDING ATTORNEY’S FEES) (COLLECTIVELY, “CLAIMS”) ARISING OUT (OR ALLEGED TO ARISE OUT OF OR CAUSED, DIRECTLY OR INDIRECTLY, BY THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING WITHOUT LIMITATION: (A) BREACH OF THIS AGREEMENT BY BUYER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTOR, SHAREHOLDERS, MEMBERS, AFFILIATES, SUCCESSORS, AND ASSIGNS (THE “INDEMNITORS”); (B) ANY NEGLIGENT OR CULPABLE ACT OR OMISSIONS OF THE INDEMNITORS (INCLUDING CLAIMS ARISING FROM BODILY INJURY DEATH OR PROPERTY DAMAGE (INCLUDING TO THE GOODS THEMSELVES)); (C) ANY INDEMNITOR’S FAILURE TO COMPLY WITH APPLICABLE LAWS; (D) SELECTION OF THE GOODS OR THE INADEQUACY OF ANY GOODS FOR BUYER’S INTENDED PURPOSE OR ANY OTHER PURPOSE; AND (E) THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.  THIS INDEMNITY PROVISION EXPLICITLY APPLIES TO ANY CLAIMS BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION AND APPLIES REGARDLESS OF WHETHER A CLAIM IS CAUSED BY AN INDEMNITEE’S ACTUAL OR ALLEGED SOLE, CONCURRENT, CONTRIBUTORY, OR COMPARATIVE NEGLIGENCE OR STRICT LIABILITY; PROVIDED, HOWEVER, THAT SELLER SHALL NOT BE OBLIGATED TO INDEMNIFY AN INDEMNITEE FOR THAT PART OF ANY CLAIM CAUSED SOLELY BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF SUCH  INDEMNITEE OR TO THE EXTENT IT IS JUDICIALLY DETERMINED THAT SUCH INDEMNIFICATION WOULD BE PROHIBITED BY LAW. 

 

10.Default; Termination; Remedies. 

 

a.Any of the following will constitute a default by Buyer if not cured within 48 hours’ notice from Seller: (i) failure to pay any amounts hereunder when due; (ii) bankruptcy or insolvency proceedings are commenced by or against Buyer, or a receiver is appointed for the business of Buyer; (iii) Buyer (A) becomes insolvent, (B) is generally unable to pay, or fails to pay, its debts as they become due, or (C) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) Buyer breaches any other term or condition of this Agreement.  Upon the occurrence of Buyer uncured default Seller may, at its option and without prejudice to any other rights, take one or more of the following actions: (i) terminate this Agreement with immediate effect and require Buyer to return any unpaid Goods to Seller at the location(s) designated by Seller at its risk and expense within 48 hours of such termination; (ii) cancel any pending or previously accepted Orders; and (iii) take immediate possession of or render unusable any or all of the Goods and, without notice, enter onto any Buyer premises without liability for doing so; or (iv) proceed by legal action to enforce performance of this Agreement and/or to recover all damages incurred by Seller.

 

b.Either Party may terminate this Agreement without cause and for its own convenience by providing the other Party 30 days’ advance written notice.

 

c.Expiration or termination of this Agreement will not affect any rights or obligations of the Parties that survive the expiration or termination of this Agreement pursuant to 15(g) below or that were incurred prior to the expiration or termination of this Agreement; provided, however, that if Seller terminates this Agreement under Section 10(a), all indebtedness of Buyer to Seller of any kind is immediately due and payable on the effective date of such termination without further notice to Buyer.

 

11.Limitations of Liability.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR PUNITIVE DAMAGES OR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, LOST REVENUE, LOSS OF BUSINESS, OR LOSS OF PROFIT, DELAY DAMAGES, OR LIQUIDATED DAMAGES), WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, AND BUYER HEREBY RELEASES SELLER FROM ANY SUCH LIABILITY.  TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO FURNISHING OF GOODS OR THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID BY BUYER TO SELLER FOR THE GOODS ON WHICH SUCH LIABILITY IS BASED.  THE FOREGOING LIMITATION OF LIABILITY PROVISIONS SHALL APPLY EVEN IF BUYER’S  REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

1. Security Interest 

   1. Buyer hereby grants to Seller a lien on and a first priority security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, as well as all proceeds (including insurance proceeds) of the foregoing.  Buyer acknowledges that the security interest granted under this provision constitutes a purchase money security interest under the Texas Uniform Commercial Code.  Buyer agrees to execute, acknowledge, deliver, file, and record such further documents (including without limitation UCC financing statements), and to take all other actions necessary to ensure that such security interest is a perfected first priority security interest

   2. Additionally, to secure payment for all purchases from Seller, now and in the future, Buyer also hereby grants Seller a continuing security interest in all of Buyer's presently owned or hereafter acquired (i) goods and tangible personal property; (ii) rights to payment of cash money, accounts, deposits, and refunds; (ii) instruments; (iii) promissory notes; (iv) chattel paper (electronic and tangible); (v) documents; (vi) books and records; (vii) accounts and accounts receivables; (viii) equipment; (ix) inventory; (x) commercial tort claims; (xi) general intangibles; (xi) payment intangibles; and (xii) software, whether now existing or later acquired, together with all proceeds, substitutions, and all support obligations thereof. Seller's security interest is explicitly limited to outstanding obligations between Buyer and Seller.

 

13.Force Majeure.  No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or named storms; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades; or (f) strikes, labor stoppages or slowdowns, transportation delays, railroad-related incidents, equipment failures, shortages in labor, transportation, fuel, or materials, or other industrial disturbances.  The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.  The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

 

14.Confidentiality.  The terms and conditions of this Agreement and the transactions contemplated by the Parties, and all non-public, confidential, or proprietary information of Seller disclosed to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or medium, and whether or not designated as "confidential," are confidential, solely for the purpose of the transactions contemplated hereby, and may not be disclosed or copied without Seller’s prior written consent.

 

15.Miscellaneous.

 

a.Buyer shall not assign this Agreement or any rights under or interest in under this Agreement without Seller’s prior written consent.  Seller may assign this Agreement or any rights under this Agreement without notice to Buyer. 

 

b.Seller’s obligation to pay for the Goods and other amounts under this Agreement is absolute and unconditional and is not subject to any abatement, counterclaim, deduction, interruption, recoupment, or setoff for any reason whatsoever.

 

c.The validity, interpretation, and performance of this Agreement and all matters relating thereto shall be governed by and construed pursuant to the laws of the State of Texas without regard to the conflict of laws principles.  The Parties agree and consent to the exclusive jurisdiction of the courts of the State of Texas for all purposes regarding any dispute concerning this Agreement and all matters relating thereto and further agree and consent that venue for any such action shall rest exclusively in Denton County, Texas.  EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE EQUIPMENT, AND ALL OTHER TRANSACTIONS BETWEEN THE PARTIES RELATED THERETO. 

 

d.If either Party institutes any legal action against the other Party relating to this Agreement, the Goods, and all other transactions between the Parties, the prevailing Party shall be entitled to receive costs incurred by such Party in conducting the action, through trial and on appeal, including reasonable attorneys’ fees and court costs.  Buyer further agrees to pay Seller’s costs incurred in any administrative or bankruptcy proceedings brought as a result of this to this Agreement, the Goods, and all other transactions between the Parties, including reasonable attorneys’ fees and court costs. 

 

e.All claims regarding delivery, billing, or product quality must be submitted to Seller in writing within 90 days from delivery of the Goods, or such claims shall be deemed waived.  No legal action shall be brought by Buyer against Seller for any claim or cause of with respect to this Agreement or the Goods more than two years after the claim or cause of action accrues.  It is agreed that any such claim or cause of action accrues on the date of delivery of the Goods from which the claim or cause of action arises.

 

f.If any provision, or any part thereof, of this Agreement is found to be invalid or unenforceable, that invalidity or unenforceability will not affect the remainder of such provision or any other provision.  Any such provision shall be replaced by an enforceable provision that comes closest to expressing the Parties’ intentions.

 

g.Any right or obligation in this Agreement that by its nature should survive termination or expiration of this Agreement shall survive, including Section 9 (Indemnity), Section 11 (Limitations of Liability), and Section 15(d)-(f) hereunder.

 

h.No amendment or modification of or to this Agreement shall bind either Party unless it is in writing and signed by Buyer and an officer or authorized representative of Seller.  For avoidance of doubt, no drivers or field personnel are authorized by Seller to amend, waive, or modify the Agreement.

 

i.No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the Party charged with such waiver.  No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. The Rights are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise.

 

j.Seller is an independent contractor.  This Agreement does not create, and shall not be construed as creating, a contractual relationship or enforceable rights by any person that is not a Party to this Agreement, and nothing in this Agreement confers any legal or equitable right, benefit, or remedy of any nature whatsoever to any third parties.  This Agreement is binding on and only inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.

 

k.When applicable, the terms of Executive Order 11246 and 41 C.F.R. Part 60-1 shall apply to this Agreement. 

• The Parties agree and expressly intend that this Agreement constitute a single, non-severable, integrated agreement.  The Quote incorporating these Terms may be executed in counterparts, each of which is deemed an original, but all of which together with these Terms and other parts of this Agreement are deemed to be one and the same agreement. Delivery by electronic transmission (including PDF) of an executed counterpart (including electronic signature) of any part of this Agreement is as effective as delivery of an originally executed counterpart.  The Electronic Signatures in Global and National Commerce Act (15 U.S.C. Ch. 96) and the Uniform Electronic Transactions Act (or its applicable state law equivalent, including Texas Business and Commerce Code Chapter 322) apply to this Agreement.  Electronic and digital signatures may be used by either Party.  If Seller electronically stores this document, a reproduction from the scanned document shall be considered to be an original counterpart and shall be enforceable.

• All agreements between Seller and Buyer (and any affiliate or subsidiary or Buyer) shall be considered as one single integrated agreement between Seller and Buyer. Buyer agrees to pay reasonable storage fees if materials are stored on Seller's yard more than 60 days after Seller is ready for delivery.