[Last Updated 11/28/25]

These Terms and Conditions of Sale for Cement and/or Slag (the “Agreement”) governs all sales and deliveries of cement and/or slag (collectively, the “Product” or “Products”) sought to be purchased by CUSTOMER (as defined herein) from COMPANY (as defined herein). “COMPANY” shall mean the legal entity identified as the supplier of the Products on the face of an applicable purchase order, order confirmation, invoice, or quotation issued by COMPANY. “CUSTOMER” means the legal entity identified as the purchaser of the Products supplied by COMPANY. COMPANY and CUSTOMER may be referred to individually as a “Party” or collectively as the “Parties”.

By placing an Order (as defined below), issuing a purchase order, accepting delivery of the Product(s), or picking up the Product(s) from the COMPANY’s premises, CUSTOMER agrees to be bound by all of the terms and conditions as stated within this Agreement. COMPANY may publish this Agreement on a dedicated webpage and incorporate it by reference in quotations, order confirmations, invoices, or other written or electronic communications with CUSTOMER. COMPANY may revise this Agreement from time to time in its sole discretion. The “Lasted Updated” date at the top of this Agreement reflects the date of the most recent revision. Unless otherwise expressly stated by COMPANY in writing, any revision will apply only to purchases of Products by CUSTOMER on or after the Last Updated date and will not retroactively alter the terms applicable to purchases of Products previously accepted or performed.

1. CONTRACT DOCUMENTS; ORDER OF PRECEDENCE: The Agreement shall consist of the following, each incorporated by reference, in the following order of precedence in the event of conflict:
   • a. CUSTOMER’s executed Credit Agreement with COMPANY (as to payment terms and credit matters only);
   • b. The terms and conditions contained in this Agreement; and
   • c. COMPANY’s order confirmation(s), quotation(s), or other documents issued by COMPANY to CUSTOMER, but only to the extent they do not cause conflict or ambiguity with this Agreement.
2. AFFILIATES: CUSTOMER understands and agrees that COMPANY may rely on any of its affiliated entities (collectively, “Affiliates”) to supply and/or deliver Products without prior notice to CUSTOMER. To the extent any Affiliates supply Products to CUSTOMER, the Parties agree that, as to such Products, that the Affiliates shall: (i) be bound to this Agreement; (ii) perform the obligations ascribed to COMPANY; (iii) be entitled to receive performance required of CUSTOMER; (iv) be entitled to enforce this Agreement directly against CUSTOMER; and (v) have all contractual and statutory rights at law or in equity as a seller of Products to CUSTOMER.
3. ORDERS:
   • a. Placement of Orders: CUSTOMER shall order Products from COMPANY by submission of a written order or other written request acceptable to the COMPANY (each, an “Order”), which may reference this Agreement with a URL link, and COMPANY shall endeavor to attach a PDF copy of this Agreement for CUSTOMER in any order confirmation.
   • b. Order Content: Each Order shall specify at minimum: (i) the quantity and type of Products; (ii) the delivery location; (iii) the requested delivery dates and times; and (iv) any project-specific information reasonably required by COMPANY.
   • c. Quotations: COMPANY’s quotations, price lists, and proposals are invitations to offer only and do not constitute binding offers. No agreement between the Parties materializes until COMPANY accepts an Order as described below.
   • d. Acceptance: An Order is deemed accepted only when: (i) COMPANY issues a written electronic Order confirmation; or (ii) COMPANY commences production, loading, or shipment of Products identified in the Order.
   • e. Capacity and Availability: CUSTOMER acknowledges that product availability, internal conditions, equipment breakdowns, labor issues, weather, and similar factors may reduce COMPANY’s capacity to accept and/or deliver Orders. COMPANY reserves the right to decline, reduce, delay, or cancel any Order or portion thereof due to material availability, conditions at any COMPANY facility, weather, transportation constraints, or any other condition affecting COMPANY’s ability to process or deliver Orders. COMPANY shall have no liability for any such decline, reduction, delay, or cancellation beyond any express remedies provided in this Agreement.
4. NO CONFLICTING TERMS:
   • a. Agreement Controls: This Agreement shall prevail over any of CUSTOMER’s terms and conditions of purchase, regardless of whether or when CUSTOMER has submitted its own purchase order, standard terms, or other document containing additional or different terms.
   • b. Express Rejection of Additional/Different Terms: Any terms and conditions proposed by CUSTOMER that are additional to, inconsistent with, or different from this Agreement (including terms on or incorporated by CUSTOMER’s purchase orders, acknowledgements, website portals, or other forms) are hereby expressly rejected, are null and void, and shall not become part of this Agreement.
   • c. Expressly Conditional Acceptance: COMPANY’s agreement to sell and deliver Products to CUSTOMER is expressly conditioned upon CUSTOMER’s assent to this Agreement. Any acceptance, performance, payment by CUSTOMER, or acceptance of Products at the COMPANY’s premises or delivery location, shall be deemed CUSTOMER’s unqualified acceptance to this Agreement to the exclusion of CUSTOMER’s terms.
   • d. No Modification by Course of Dealing: No prior course of dealing or usage of trade, and no acceptance or tolerance of differing terms by COMPANY on any one occasion shall be construed as a waiver of this Section 3 as consent to any non-conforming terms.
5. ACCEPTANCE; INSPECTION; CLAIMS.
   • a. Deemed Acceptance: COMPANY’s Products will be deemed accepted by CUSTOMER unless CUSTOMER provides written notice of non-acceptance within forty-eight (48) hours after receipt (pick-up or delivery). Time is of the essence.
   • b. Claims: Any claim with respect to the Products (including shortage, visible contamination, visible damage, or other non-conformance discoverable upon reasonable inspection) must be asserted in writing within forty-eight (48) hours from delivery or pick-up. Claims not made within this period will be deemed a conclusive waiver by CUSTOMER of all such claims against COMPANY relating to the aforementioned.
   • c. Rejected Product: CUSTOMER’s rights with respect to Product that is properly and timely rejected are limited to the remedies expressly set forth herein. Product may not be returned without COMPANY’s prior written consent and shipping instructions.
   • d. Investigation: COMPANY shall be given a reasonable opportunity to investigate any claim before CUSTOMER disposes of or uses the Product, performs corrective work or takes unilateral corrective action, or otherwise incurs costs allegedly related to the claim. COMPANY’s determination as to whether the Product is non-conforming shall be determined in COMPANY’s sole discretion.
6. DELIVERY; PICK UP; SITE ACCESS; OTHER REQUIREMENTS.
   • a. Shipping/Pick-Up Instructions: CUSTOMER shall furnish complete shipping instructions or pickup instructions in enough time to enable COMPANY to perform its obligations hereunder. COMPANY is not obligated to proceed with shipments or pick-up in absence of shipping instructions.
   • b. Multiple Deliveries/Pick-Ups: If more than one delivery or pick-up is contemplated, CUSTOMER must furnish complete shipping or pick-up instructions to COMPANY for each delivery or pick-up. CUSTOMER understands that such instructions can affect the unit price of the Products. Unless otherwise provided herein, if the transaction provides for deliveries or pick-up over a period exceeding one month, COMPANY shall not be obligated to deliver or allow for pick-up in any thirty-day (30) period more than approximately equal monthly quantities in relation to the total amount.
   • c. Delivery Scheduling/Pick-Up Scheduling: CUSTOMER will give COMPANY at least twenty-four (24) hours prior notice of the time and rate of requested deliveries or pick-ups. If CUSTOMER cancels its order within the twenty-four (24) hour period, CUSTOMER shall be responsible for any preparation costs incurred by COMPANY. Delivery or pick-up schedules will be mutually agreed upon between COMPANY and CUSTOMER in every instance.
   • d. Delivery Requirements: CUSTOMER shall provide safe and suitable access to all delivery locations, including but not limited to stable approaches, adequate turning radius, proper signage and traffic control, and areas free from hazards, defects, debris, soft ground, unstable surfaces, trenches, holes, uneven grades, or overhead obstructions (including low-hanging wires or structures) that could reasonably be expected to cause or contribute to a motor vehicle accident, personal injury, property damage, or damage to COMPANY’s trucks or equipment. For delivery approaches beyond curb lines or into areas not designed for heavy truck traffic, CUSTOMER assumes all responsibility for any resulting damage, and COMPANY shall have no liability for damage to ground surfaces, pavement, structures, or underground utilities caused by the weight, operation, or movement of COMPANY’s trucks. CUSTOMER shall defend, indemnify, and hold harmless COMPANY, its parent and affiliated entities (including but not limited to Constructural Dynamics, Inc, Riverside Construction Materials, Inc., Carolina Cement, LLC,) and their respective owners, directors, officers, members, managers, employees, agents, representatives, and subcontractors (collectively, the “Company Parties”) from and against any and all claims, losses, damages, injuries, fines, penalties, liabilities, and expenses (including attorneys’ fees) arising out of or relating to, in whole or in part: (i) CUSTOMER’s failure to comply with its obligations under this Section; (ii) unsafe, inadequate, or improperly maintained site or access conditions; (iii) CUSTOMER’s failure to provide required signage, traffic control, or safe ingress/egress; or (iv) any accident, injury, or property damage occurring on or near the delivery location, except to the extent caused by COMPANY’s sole negligence or willful misconduct. For the avoidance of doubt, CUSTOMER’s indemnification obligations under this Section shall apply even if such claim allegedly arises out of the partial negligence of the Company Parties.
   • e. Delays; Limitations: Accepted Orders will be made to the best of COMPANY’s ability to dispatch; however, CUSTOMER waives any claims associated with any delay(s) in shipment or delivery. COMPANY shall not be liable to CUSTOMER or any third party for any delay, including any incidental, consequential, indirect, or special damages arising out of or relating to delays in shipment or delivery.
   • f. Product Availability; Suspension/Termination: COMPANY’s obligation to sell/deliver Product(s) is subject to Product availability and/or operational capacity. COMPANY in its sole discretion may: (i) decline, reduce, suspend, or reschedule shipments of any CUSTOMER Order or (ii) terminate any Order or ongoing supply arrangement, in whole or in part, if at any time, COMPANY encounters product shortages, labor disputes, weather, force majeure events, or any conditions affecting its ability to supply Products.
   • g. Routing: The routing of shipments to CUSTOMER will be at COMPANY’s sole discretion.
7. HANDLING; ALTERATIONS: COMPANY shall not be responsible for the performance or quality of Product which have been in any way altered, manipulated, contaminated, or has had any material added by CUSTOMER, their employees, agent(s), or subcontractors. Under no circumstance are CUSTOMER, CUSTOMER’s employees, agent(s) or subcontractors permitted on COMPANY’s trucks. CUSTOMER assumes all risk and responsibility for any violation of this restriction and shall indemnify Company Parties to the same extent as called for in this Agreement for any and all claims arising therefrom. CUSTOMER is responsible to see that the Product is handled in accordance with the best construction practices. COMPANY has no control over the preparation work completed or conducted by the CUSTOMER, nor handling of the Product after unloading.
8. RISK OF LOSS; TITLE. Title to and risk of loss of Products shall pass to CUSTOMER upon the earlier of:
   • a. loading of the Product onto CUSTOMER or CUSTOMER’s carrier’s designated vehicle at COMPANY’s facility (for pick-up), or
   • b. the Product crossing the threshold of COMPANY’s premises (i.e., gate or property line) in the case of a delivery.
   • c. After passage of risk of loss, CUSTOMER bears all risk of damage, loss, or deterioration of the Product.
9. PAYMENT. Unless otherwise agreed to in a mutually executed Credit Agreement with COMPANY, all invoices are due at the gross amount and payable no later than the last day of the month following delivery or pick-up, without set-off or deduction. All payments must be made by either wire transfer, certified check, bank check, or such other method mutually agreed upon between COMPANY and CUSTOMER. Any amounts outstanding by the CUSTOMER shall incur one and one-half percent (1.5%) interest per month, or the highest rate allowable by law (whichever is less) from the date due until paid. This amount shall be payable monthly if applicable. Moreover, COMPANY shall be entitled at its sole option and upon written notice to CUSTOMER, to withhold future deliveries or pick-ups if any amount(s) due to COMPANY become past due until all invoices have been paid in full. Notwithstanding anything herein to the contrary, in the event COMPANY incurs any costs or expenses, including reasonable attorneys’ fees or professional collection fees, in connection with collection of outstanding payment(s) due to COMPANY, CUSTOMER shall reimburse COMPANY for any and all such costs.
10. WARRANTY.
    • a. Company’s General Warranty: COMPANY warrants and represents to CUSTOMER that the supplied Product will meet, as applicable, ASTM C150-07 standards for Type I/II cement or ASTM C989 standards for Grade 100 slag at the time of delivery or pick-up, as applicable. No other express warranty is made with respect to the Products. CUSTOMER warrants that any and all Product purchased by CUSTOMER shall be purchased solely for CUSTOMER’s internal manufacturing needs unless otherwise waived by COMPANY in writing. CUSTOMER is not permitted to sell COMPANY Product to third parties without COMPANY’s prior express written consent, which shall be given in COMPANY’s sole discretion. EXCEPT FOR THE WARRANTIES LISTED HEREIN, COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING (I) ANY WARRANTY OF MECHANTABILITY; OR (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. UNLESS OTHERWISE SPECIFIED HEREIN, NEITHER PARTY SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATED TO LOST BUSINESS, LOST PROFITS, DAMAGE TO REPUTATION AND/OR DELAY, WHETHER BASED ON STATUTE, TORT, CONTRACT, OR OTHERWISE. THE REMEDIES STATED WITHIN THIS SECTION SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10. IN NO EVENT WILL COMPANY BE RESPONSIBLE FOR DAMAGES DUE TO THE ACTIONS OF OTHERS OR THE FAILURE OF CUSTOMER TO COMPLY WITH ITS OBLIGATIONS. COMPANY’S LIABILITY FOR ANY CLAIMS WILL BE LIMITED TO THE PURCHASE PRICE OF THE PRODUCT SOLD UNDER AN ASSOCIATED ORDER.
    • b. Customer’s Warranties: CUSTOMER represents and warrants to COMPANY that (i) CUSTOMER is in good standing under the laws of their jurisdiction and is authorized to do business in each jurisdiction in which it conducts its business; (ii) its purchase of Products and performance does not violate any existing obligations or contracts of the CUSTOMER; (iii) it has the full legal right, power, and authority to enter into and perform any and all obligations placed on CUSTOMER and that all requisite corporate and/or other approvals have been obtained and (vi) there are no pending or threatened actions or proceedings or government investigations against it that may affect its performance of this Agreement.
11. INDEMNIFICATION. To the fullest extent permitted by law, CUSTOMER agrees to defend, indemnify and hold harmless the Company Parties from and against any and all claims, losses, liabilities, damages, expenses and costs of any kind, including attorneys’ fees and court costs arising out of (i) any negligent act or omission, willful misconduct, or fraud of CUSTOMER or its employees, agents, carriers, or subcontractors; (ii) CUSTOMER’s breach of any representation, warranty, or obligation under this Agreement; (iii) CUSTOMER’s movement, loading, handling, storage, transportation, or unloading of Products or by vehicles at COMPANY’s or CUSTOMER’s delivery premises (iv) CUSTOMER’s failure to fully conform to all laws, ordinances, rules and regulations; or (v) the alteration or modification of the Products by CUSTOMER or its employees, agents, carriers or subcontractors. CUSTOMER’S AFORESAID RELEASE, INDEMNITY AND HOLD HARMLESS OBLIGATIONS, OR PORTIONS OR APPLICATIONS THEREOF, SHALL APPLY EVEN IN THE EVENT OF THE PARTIAL FAULT OR NEGLIGENCE, WHETHER ACTIVE OR PASSIVE, OR STRICT LIABILITY OF THE PARTIES RELEASED, INDEMNIFIED OR HELD HARMLESS TO THE FULLEST EXTENT PERMITTED BY LAW, BUT IN NO EVENT SHALL THEY APPLY TO LIABILITY CAUSED BY THE WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR SOLE NEGLIGENCE OF THE PARTY RELEASED, INDEMNIFIED OR HELD HARMLESS. IN ORDER TO FACILITATE ITS INDEMNIFICATION OBLIGATIONS IN THE EVENT OF CLAIMS BY CUSTOMER’S EMPLOYEES, CUSTOMER EXPRESSLY WAIVES ANY DEFENSE TO INDEMNIFICATION WHICH MAY ARISE UNDER INDUTRIAL INSURANCE OR WORKERS’ COMPENSATION STATUTE OF ANY STATE.
12. INSURANCE (PICK-UP). As a condition of accessing COMPANY’s premises for the purpose of loading, transporting, or picking up Product, CUSTOMER shall maintain, and shall require any carrier, subcontractor, or third party retained by CUSTOMER (“Customer Parties”) to maintain, at their sole expense, the following insurance coverages at all times: 1) Commercial General Liability Coverage including Products/Completed Operations contractual liability and premises liability, and coverage for loading and unloading operations – $1,000,000 per occurrence, $2,000,000 general aggregate and $2,000,000 Products/Completed Operations Aggregate – Coverage shall include bodily injury, property damage, personal and advertising injury, and independent contractor liability; 2) Commercial Automobile Liability Coverage $1,000,000 – Per Accident Combined Single Limit including Non-Owned & Hired Auto Liability, including coverage for loading and unloading operations; 3) Workers Compensation Coverage and Employers Liability Insurance with workers compensation coverage to be at statutory limits; 4) Motor Truck Cargo Insurance with limits of not less than $100,000 per occurrence or the full replacement cost of a fully loaded tanker/trailer of cement (whichever is greater) with coverage applying to loss, damage, contamination, wetting, deterioration, or spillage of Product after risk of loss transfers to CUSTOMER; and 5) Umbrella/Excess Liability providing follow-form over CGL, Auto and Employers’ Liability with limits of not less than $5,000,000 per occurrence and aggregate with coverage applying to all indemnity obligations herein. The above policies shall be maintained with insurance companies lawfully authorized to do business on an admitted basis in the jurisdiction where the CUSTOMER operates. CUSTOMER shall name, and require any Customer Parties utilized to name, COMPANY, as well as their agents, employees, representatives, officers, directors, stockholders, members, managers and parent, subsidiary and affiliated companies, including but not limited to Company Parties as additional insureds [hereinafter “Additional Insureds”] with respect to all of the above policies with the exception of Workers Compensation. Such additional insurance shall be in the form of ISO CG 20 10 10 01 and ISO CG 20 37 10 01, or equivalent coverage for ongoing and completed operations. The coverage offered to the Additional Insureds shall be primary coverage to any other coverage maintained by the Additional Insureds and shall not permit or require such other coverage to contribute to the payment of any loss. CUSTOMER hereby waives, and shall cause all Customer Parties utilized to waive, any claim against the Additional Insureds by way of subrogation or otherwise and shall cause its insurers and subcontractor’s insurers to provide the same waiver, for any and all losses covered by any policy of insurance outlined in this Agreement. The amount of coverage set forth above shall not be construed to be a limitation of the liability on the part of the CUSTOMER or Customer Parties. Prior to the commencement of work and/or payment, the CUSTOMER shall file Certificates of Insurance with COMPANY showing the policies, limits, and coverages required under these provisions for both itself and its subcontractors. Furthermore, CUSTOMER shall provide an updated Certificate of Insurance for COMPANY upon request. To the extent that CUSTOMER engages Customer Parties, CUSTOMER shall require them to indemnify, defend, and hold harmless COMPANY and any and all Company Parties under this Agreement, on terms no less protective than set forth herein.
13. TERMINATION.
    • a. By Company: In addition to other termination rights provided under this Agreement, COMPANY may terminate an Order or any supply relationship governed by this Agreement, in whole or in part, upon written notice to CUSTOMER if:
      • i. CUSTOMER breaches a material covenant, warranty, commitment or obligation under this Agreement and fails to cure such breach (i) in the event of a non-monetary breach, within thirty (30) days following written notice thereof (ii) in the event of a monetary breach, within ten (10) days following written notice thereof;
        • ii. Upon forty-five (45) days of written notice; or
        • iii. CUSTOMER breaches any of the terms of their Credit Agreement with COMPANY.
    • b. Insolvency: Either Party may terminate an Order or service relationship bound to this Agreement immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. In a case of such termination under this Section 13(b), the relationship between the parties and the Order it relates to along with these Agreement shall terminate immediately and automatically without any further action and/or notice from the terminating Party.
    • c. Effect of Termination:
      • i. Payment Obligations: CUSTOMER shall remain obligated to pay for all Products delivered, prepared, loaded, or reasonably committed for CUSTOMER prior to the effective date of termination, and for all other amounts owed under this Agreement.
      • ii. Survival: All provisions that by their nature should survive termination shall survive, including, without limitation all payment obligations, indemnification obligations, limitations of liability, warranty disclaimers, governing law, and dispute resolution clauses.
      • iii. No Further Liability: Except as expressly provided in this Agreement, COMPANY shall have no liability to CUSTOMER for any termination permitted by this Section 13, nor shall COMPANY be liable for any consequential, incidental, indirect, special, exemplary, or punitive damages arising out of or relating to termination.
14. RELATIONSHIP BETWEEN THE PARTIES. The relationship of the Parties hereto is that of a vendor and customer. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees and/or agents. Accordingly, CUSTOMER shall not be empowered to bind COMPANY in any way, to incur any liability, make any statements, representations, warranties or commitments, or otherwise act on behalf of the COMPANY. Each Party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits).
15. NOTICES. All notices relating to this Agreement shall be sent in writing via mail or email to the attention of the persons designated to a particular Order and are deemed delivered when (i) delivered personally or by international recognized overnight courier service (cost prepaid), or (ii) received by the addressee, if sent by United States certified mail, postage prepaid return receipt requested, or (iii) received and confirmed with an email response. For CUSTOMER, notice shall be sent to the e-mail and/or mailing address provided by CUSTOMER at the time of ordering, or otherwise on file with COMPANY. It is CUSTOMER’s responsibility to request any required contact information from COMPANY to the extent it is needed for notice under this Section 15 and to additionally ensure such contact information of CUSTOMER remains current with COMPANY.
16. ASSIGNMENT. CUSTOMER may not assign this Agreement or any of their obligations, either in whole or in part, nor delegate any performance hereunder, without the express, written consent of COMPANY, which consent shall be at COMPANY’s sole and absolute discretion. Any assignment without such consent will be null and void. COMPANY may assign this Agreement or obligations relating to any Order(s) with or without written notice to the CUSTOMER. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors and legal representatives.
17. COMPLIANCE WITH LAWS. CUSTOMER represents and warrants that it shall comply with all applicable international, national, state, regional, and local laws, ordinances, regulations, and common law in performing its duties hereunder and in any of its dealings with respect to the Products.
18. HEADINGS; CONSTRUCTION: The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and read reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
19. SEVERABILITY. If a provision or portion of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
20. ENTIRE AGREEMENT; MODIFICATION; WAIVER. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes any prior agreement, representation, warranty or communications between the Parties hereto, whether written or oral. This Agreement may be modified from time to time by COMPANY at its sole discretion. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter. The Parties certify and acknowledge that they have not relied on any statement, representation, warranty, or agreement of the other Party or of any other person on such Party’s behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement.
21. FORCE MAJUERE. COMPANY shall not be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, terrorism, pandemics, epidemics, local disease outbreaks, public health emergencies, or acts of God. In any such event, COMPANY’s obligations shall be suspended for the duration of the delay and for a reasonable period thereafter to permit resumption of performance. CUSTOMER acknowledges that delays or interruptions arising from such events shall not constitute a breach of this Agreement or grounds for termination. COMPANY shall provide notice of any such event as soon as reasonably practicable.
22. SALE OF ADDITIONAL PRODUCTS: If CUSTOMER purchases any additional Products or services for the same project that are not expressly identified in COMPANY’s quotation or original Order, the Parties agree that all such additional purchases, deliveries, and services shall be governed exclusively by this Agreement, regardless of whether they appear on a separate purchase order or delivery ticket. Unless the Parties execute a separate written amendment expressly modifying pricing for such additional items, CUSTOMER shall pay COMPANY’s then-current standard regional list pricing in effect at the time the additional products or services are ordered, together with all applicable surcharges, minimum load charges, delivery fees, fuel or energy surcharges, and other standard charges applicable at the time of order. CUSTOMER acknowledges and agrees that COMPANY may adjust its standard regional list pricing from time to time in COMPANY’s sole discretion.
23. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflict-of-law principles. Except for claims by COMPANY relating to non-payment, collection of outstanding amounts, or enforcement of COMPANY’s lien rights, which COMPANY may bring in any court of competent jurisdiction, all disputes, controversies, or claims arising out of or relating to this Agreement, any Order, or the Products supplied by COMPANY shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules then in effect. The arbitration shall be conducted in Philadelphia, Pennsylvania, before a single neutral arbitrator, and shall be governed by the Federal Arbitration Act. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction. THE PARTIES KNOWINGLY, VOLUNTARILY, AND EXPRESSLY WAIVE ANY RIGHT TO A JURY TRIAL, CLASS ACTION, CLASS ARBITRATION, COLLECTIVE ARBITRATION, OR ANY PROCEEDING IN A REPRESENTATIVE CAPACITY. Each Party shall bear its own attorneys’ fees and expenses, except as otherwise expressly provided herein, awarded under applicable law, or awarded by the arbitrator in his or her discretion.
24. ACCEPTANCE AS ASSENT:
    • a. Assent by Conduct: CUSTOMER acknowledges and agrees that any action taken to place an Order; request or schedule delivery or pickup; arrive at COMPANY’s premises for loading; receive, permit, or obtain possession of Products; permit unloading; or otherwise use COMPANY’s Products constitutes CUSTOMER’s unconditional acceptance of, and agreement to be bound by, this Agreement in full.
    • b. Delivery and Use as Acceptance: Without limiting the foregoing, CUSTOMER’s conduct including allowing scheduling delivery, allowing COMPANY’s trucks onto the project site, authorizing unloading, or using any portion of the Products constitutes conduct manifesting assent under applicable law.
    • c. No Signature Required: CUSTOMER expressly waives any argument that a handwritten or electronic signature is required for enforceability and agrees that assent may be formed through conduct, course of dealing, industry practice, and use of the Products.