PERI USA Standard Purchase Terms and Conditions

A. GENERAL TERMS AND CONDITIONS

A.1. Acceptance/Integrated Agreement.  PERI Formwork Systems, Inc. (“PERI”) is a material supplier of goods and not a subcontractor of Customer.  This agreement, which includes information on the accompanying proposal, these terms and conditions, and any plans, specifications, and other documents to the extent specifically referenced in the proposal, (hereinafter, “Agreement”) shall be the entire and exclusive agreement between the parties hereto unless otherwise agreed to by PERI in writing and executed by an authorized PERI representative.  This Agreement constitutes a binding contract for the rental and/or purchase of the materials identified in the accompanying proposal or elsewhere in the Agreement (“Material”) and is subject to the terms and conditions herein when accepted either by PERI’s acknowledgement, commencement of shipment or other performance, or acceptance of payment.  In the event of any conflict or inconsistency between these PERI Terms and Conditions (“Terms”) and the accompanying proposal and any other part of the Agreement in connection with this transaction, the provisions of the Terms shall govern but only to the extent of any such conflict or inconsistency.   These Terms shall govern all obligations of the parties, including, but not limited to the supply of Materials and any Ancillary Services by PERI to Customer.  Customer hereby specifically agrees that these Terms supplant any other terms that may be a part of any other document issued or forming a part of this transaction, including any Customer terms and conditions, regardless of the date such other document. PERI shall have no duty to object or reject the terms or other provisions in any such document, the same being rendered null and void by this clause.  These Terms shall also apply to the supply of any additional Materials or Ancillary Services, whether memorialized in a change order or other writing.

A.2. Definitions:  In addition to any terms defined elsewhere in this Agreement, the following definitions shall govern.
i. “Ancillary Service” or “attendant service” shall both mean any service that PERI offers and agrees to provide under this Agreement to Customer ancillary to the sale or lease of Materials, including, but not limited to those set forth in Section D of this Agreement.  PERI is a material supplier and neither the offer or provision of any Ancillary Service shall be intended to be deemed to be a provision of any labor or work of a subcontractor.  
ii. “Application” or “Applications” shall mean any software, apps or online services, including, by not limited to, software-as-a-service (SaaS), online portals, on-premises software or web-based applications made available in connection with the Materials or otherwise referenced in this Agreement.
iii. “Business Day” means a day other than a Saturday, Sunday or another holiday recognized by the United States federal government.
iv. “Custom Material” refers to Materials supplied to Customer that are not standard to PERI’s stocked materials offered for sale or lease or listed in PERI’s published product list, but are manufactured, designed and/or ordered by PERI from a Third-Party particularly for Customer. 
v. “Customer” shall mean the person or entity identified on the proposal and does not include any other entity or person, including related entities, or any other third party or beneficiaries, the latter of which are expressly excluded from any rights hereunder.
vi. “Formwork” means components of forming solutions supplied by PERI and assembled by the Customer (unless preassembly is part of the Agreement) into temporary moulds into which concrete is poured and formed.
vii.  “Lease” or “Leased” or “rented” in connection with Materials refers to any new or Used Materials leased to Customer as part of this Agreement, including, but not limited to, any Formwork or Scaffolding or Third-Party Materials.
viii.  “Material” refers to any goods supplied to Customer under this Agreement by PERI, including Leased Materials, Purchased Materials, Custom Materials, Preassembled Materials and Third-Party Materials. 
ix. “PERI” shall mean PERI Formwork Systems, Inc., and does not include any other entity, including, but not limited to, any other related entity of PERI.
x. “PERI Intellectual Property” shall mean all United States and foreign intellectual property owned by PERI or its affiliates, subsidiaries or related entities, including all (a) inventions (whether or not patentable or reduced to practice), improvements, patents and industrial designs (including utility models, designs, and industrial property) and patent and industrial design applications, and inventions and patent disclosures, together with all renewals, reissues, reexaminations, provisionals, divisionals, revisions, continuations, continuations-in-part, and extensions thereof; (b) works of authorship (whether or not copyrightable), registered and unregistered copyrights, mask works, database rights, and moral rights, together with all applications therefor and renewals thereof; (c) trade secrets, confidential or proprietary information (including unpublished patent applications, technical data, customer and suppliers lists, pricing and cost information, and business and marketing plans and proposals), technology, know-how, processes, techniques, protocols, specifications, data, compositions, industrial models, architectures, layouts, designs, drawings, plans, ideas, research and development, formulae, algorithms, models, and methodologies; and (d) trademarks, service marks, trade names, domain names, designs, trade dress, business names, corporate names, logos, slogans, and all other indicia of origin, together with all goodwill, registrations, renewals, and applications relating to the foregoing, that is necessary for, or used or held for use by PERI in connection with the PERI Formwork and/or Scaffolding, including, but not limited to any manuals, drawings, Assembly Drawings, specifications or other information related to the use of the same.
xi. “Project” shall mean the location at which the Materials are used by Customer identified on the accompanying proposal.
xii.  “Purchase” in connection with Materials refers to any new or Used Materials sold to Customer as part of this Agreement, including, but not limited to, any Formwork or Scaffolding or Third-Party Materials excluded as part of any Leased Materials delivered to Customer as part of this Agreement.
xiii. “Scaffolding” or “Scaffolds” means components of platform or staging solutions supplied by PERI and assembled by the Customer (unless preassembly is part of the Agreement) into temporary platforms or staging supports for work crew and materials at Projects and other facilities.
xiv. “Third-Party” in connection with Materials provided by PERI means Materials or components of Materials or attendant accessories or Applications created, manufactured, owned, hosted or provided by a third-party(including a PERI affiliate) and offered for sale or use by PERI in connection with Materials provided hereunder.
xv. “Used” in connection with Materials means PERI Formwork and/or Scaffolding components or Materials that have already been used for their intended purpose and correspondingly may bear traces of usage and repair.

A.3. Quotation Estimates /Additional Material /Change Orders. Unless otherwise expressly provided in writing, the quantities and prices for the Material are estimates and based upon information available at the time of the Agreement.  Actual product layouts and field requirements will dictate the actual quantities of Material shipped and may result in billings that are higher or lower than estimated.  PERI and Customer also may from time to time agree to the sale or lease of additional Material pursuant to this Agreement.  The parties shall endeavor to memorialize the same in writing via a change order; however, the parties agree that where additional Material is requested by Customer and PERI provides the same accordingly, Customer’s acceptance of the delivery of additional Material is sufficient to bind Customer to pay invoices for the same in the absence of a formal change order, and unless otherwise agreed in writing, the cost of such additional Material shall be based on the list value of the Material delivered, multiplied by the applicable rental rates, purchase discounts/or pricing model, as set forth in this Agreement and accompanying proposal for the project.  Requests for additional Materials will be subject to availability and applicable lead times.

A.4. Amendments.  Except as stated above in paragraph A.3, any amendment to this Contract must be in writing, signed by an authorized PERI representative to be enforceable.

A.5. Material Exclusions.  The attached proposal setting out the prices for Material only includes the items or Materials specifically listed thereon. Any safety or other mechanism that is not already built into the Material but offered for sale or lease separately by PERI or by third parties is the responsibility of the Customer.  Excluded items or Materials will only be shipped upon request subject to availability and to the terms of this Agreement.

A.6. Payment Terms.  Unless otherwise stated, Customer shall make payment on each invoice within thirty (30) days of the date of the same. Should an invoice bear a date prior to the date the Material reflected therein is received by Customer, the time during which any discount for payment is allowed shall not begin to run until the date the Material is received by Customer.   Delinquent accounts are subject to a one and one-half percent (1½%) per month finance charge.  Customer shall be liable for any additional expenses incurred by PERI as a result of collection efforts, including but not limited to attorneys’ fees from commencement of collection efforts through appeal and enforcement.  PERI shall, in its sole discretion, suspend shipments of Material hereunder or pursuant to any other agreement between PERI and Customer in the event of Customer’s failure to pay on a timely basis. Payments hereunder are sent to a lockbox or handled by administrative personnel who cannot bind PERI so any notation on a check or payment such as “paid in full”, “final payment” or other language attempting to convey an accord and satisfaction of the debt hereunder shall not be binding on PERI regardless of the negotiation of the check or payment unless a separate agreement or release is executed by authorized PERI personnel.

A.7. Application and Place of Payments.  All payments, if applicable, made on account of this Agreement shall be applied first to the payment of any late charge and fees, including, without limitation, attorney’s fees, then due hereunder, second to the payment of accrued and unpaid interest then due hereunder, and the remainder, if any, shall be applied to the unpaid invoices due in the inverse order of maturities. Notwithstanding any provision contained herein to the contrary, any portion of a permitted partial prepayment applied to the unpaid principal balance shall be applied first to the outstanding principal balance due and owing at maturity and thereafter to the principal payments due in the inverse order of maturities.  All payments on account of this Agreement shall be paid in lawful money of the United States of America in immediately available funds.

A.8. Credit Check.  Any accompanying proposal and this Agreement, regardless of execution by Customer, are subject to a credit approval and execution by PERI.  Shipment of Material may require additional security, including a deposit, copies of any payment bonds on the applicable project and/or a personal guaranty at the request of PERI.

A.9. Applications.  To the extent that this Agreement includes Materials for which access to or use of any Application is necessary,  contemplated, referenced or desired by Customer, access to and/or license or use of the Application shall be contingent upon and expressly governed by a separate license agreement and/or terms of use (“License”) executed by and between Customer and the provider, developer, host and/or owner of such Application.  Customer understands that the Application is owned, developed, hosted and/or provided by a Third-Party, and PERI is neither party to the License nor responsible for the obligations of that Third-Party or the Application, notwithstanding anything to the contrary in this Agreement.   In no event will PERI be responsible for the information contained in any such Third-Party Application (or website) or for Customer’s use of or inability to use any Application. Access to any such Application is at Customer’s own risk, and Customer acknowledges that even if PERI provides information or links to or software for such Applications, PERI is not liable for the use, operation or defects in the Applications.   PERI does not guarantee the end results of using any Application or that it will remain free of any defect or errors.  PERI EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE APPLICATIONS.  Unless otherwise agreed to in writing, any fees for the use of the Applications shall be governed by the License and payable to the Third-Party identified therein.

A.10. Freight.  Unless otherwise agreed in writing, freight is F.O.B. PERI’s Warehouse or applicable shipping point, and Customer is liable for the costs of all freight.  PERI may assist in the procurement of trucking for the delivery or return of the Material but will invoice Customer accordingly for all costs. PERI shall not be liable for loss or damage occurring in transit after the carrier takes possession of the Material for shipment.  Claims for shortages or damages during shipments thereafter shall be made against carrier by Customer.  Shipping dates are estimated.  Under no circumstance will PERI be liable for any loss, damage or other inconvenience of any kind whatsoever, monetary or otherwise, resulting from the lack of performance of a third-party shipper or common carrier, including but not limited to damage or loss resulting from loading or unloading the Material from the truck at the jobsite or damage during delivery.  All common carriers are agents of Customer.

A.11. Risk of Loss. All risk of loss or damage to the Material shall pass to the Customer when the carrier takes possession of the Material. All risk of loss, including damage, theft, or destruction, to each item of Material shall be borne by the Customer. No such loss, damage, theft, or destruction of the Material, in whole or in part, shall impair the obligations of Customer under this Agreement, which shall continue in full force and effect. Customer shall be subrogated to PERI’s rights with respect to any insurance policies or claims for reimbursement by others with respect to such loss, damage, theft, or destruction.

A.12. Lead Time. PERI requires four (4) week’s lead-time from the date of the full execution of this Agreement and receipt of all necessary information to commence drawing services (if applicable) and Customer’s prompt approval of any PERI drawings before delivery of any Material. If any Material has to be obtained from a PERI yard/location outside of a project region, the lead time may increase to six (6) weeks. For any Material that has to be obtained from outside of the continental United States, the lead time shall be subject to availability and receipt of the Material by PERI.  The lead time for Preassembled Material and Custom Material (as defined herein) will be separately negotiated and agreed upon by PERI in writing.

A.13. Delivery of Material.  Material will be shipped in a good working condition.  A delivery ticket identifying the description and quantity of the Material will accompany each shipment.  A Customer representative must sign each delivery ticket; but, a failure to sign a delivery ticket shall not excuse Customer’s obligations to pay for Material delivered unless Customer provides a notice to PERI in writing objecting to any non-conforming Material or to the quantity or quality of the Material delivered within forty-eight (48) hours of the delivery and arrangements are made for the return of any rejected or non-conforming Material. Customer’s failure to provide written notice shall constitute a waiver of any and all claims, directly or indirectly, related to the delivery of non-conforming or rejected Material and it shall be conclusively presumed that Customer has fully inspected the Material, the Customer deems the Material satisfactory and acceptable in all respects, and the Material is in good condition and conforming in quantity, quality, and description to this Agreement.

A.14. Delivery Dates/Delays.  Unless otherwise agreed in writing, any delivery date(s) offered are estimated delivery date(s), which will be subject to acceptance by Customer. If Customer fails to accept delivery within five (5) business days of the estimated or agreed delivery dates, PERI has the exclusive right, without liability, after providing two (2) business days’ notice to Customer to a) return the Material to its stock and rent or sell the same to other customers, in which case PERI will not guarantee availability of the Material or like material or similar pricing as agreed hereunder; b) charge Customer a reasonable storage and handling fee for storing the Material for Customer;  and/or c) commence the rental rates for any Materials rented hereunder.   PERI shall not be liable for any loss or damage from delay in delivery of any Material or Ancillary Service as a result of causes of any kind beyond the reasonable control of PERI, such as, but not limited to, strikes or other labor difficulties, war, riots, changes in laws and regulations and other acts of governmental authorities, including customs, inclement weather, fire, flood, unavoidable casualties, delays in transportation of Material, or inability to obtain timely delivery of Material or services from suppliers or any Third-Party (“Force Majeure Event”).  In event of any such Force Majeure Event, PERI will notify the Customer within a reasonable time, and it is agreed that the time for delivery shall be extended for a period of time at least equal to the time lost by reason of the delay.  Except for delays caused by a Force Majeure Event or delays caused in whole or part by Customer, if PERI does not meet the written, agreed deadlines, then Customer must provide notice and an opportunity to cure of not less than five (5) days, and, if after notice and opportunity to cure, PERI fails to deliver the Materials, Customer can terminate this Agreement and recover any payments for undelivered Materials or Ancillary Services, but PERI is not liable for any damages caused by delays in delivery. Customer shall be obligated to accept any Material delivered or Ancillary Services completed by PERI in advance of such termination and pay for the same.

A.15. Custom Material.   If Custom Material is part of the Agreement, the price, delivery dates and Ancillary Services provided as part of the Custom Materials must be set forth in the accompanying proposal.   Notwithstanding anything to the contrary in the Agreement, a deposit of fifty percent (50%) must be paid toward Custom Material upon the execution of this Agreement.  The delivery date(s) for Custom Material must be expressly agreed upon in writing by PERI. 

A.16. General Indemnity.  Customer agrees to indemnify and hold PERI harmless from any claim, cost, losses, expenses, liability or obligation (including the costs and attorneys’ fees of any suit or claims related thereto) arising out of, connected with or resulting from Customer’s default of this Agreement, any negligence or wrongdoing of Customer or its employees, contractors, laborers, agents or subcontractors and/or the use of the Material or any Application, including but not limited to, any claims arising from:  (a) the failure to follow or deviation by Customer or its employees, contractors, laborers, agents or subcontractors or any property owners from any manufacturer’s instructions or manuals or Assembly Drawings; (b) the failure of Customer or its employees, contractors, laborers, agents or subcontractors  or any property owners to maintain or any improper handling, use or operation of the Material or any Application; (c) the negligent use of the Material with equipment, chemicals or material not furnished by PERI or otherwise expressly approved in writing by PERI in advance of that use; or (d) any negligence of Customer or any of its employees, contractors, laborers, agents or subcontractors or any property owners or their failure to follow any applicable laws, rules, regulations, codes or standards relating to the use of the Material, Applications and/or the operation or maintenance of the same.   Customer’s indemnification obligations shall expressly extend to any and all claims of any nature whatsoever, including, but not limited, to claims by, through or arising out of claims of harm to Customer’s employees, and Customer expressly waives any immunity or limitations on the amount or type of damages, compensation, or benefits payable to or for any third party under Workers’ Compensation Acts, Disability Benefits Acts, or other Employee Benefit Acts.  Customer hereby specifically agrees that the provisions of this clause take precedence and priority over any other indemnification or hold harmless provisions that may be a part of any other document issued or forming a part of this transaction. In the event such provisions are contained in any such other documents, the within clause shall be paramount and supplant such other provisions, and render such other provisions null and void regardless of the date when such other documents were issued, signed, acknowledged, or accepted. PERI shall have no duty to object or reject the indemnification or hold harmless provisions in any such document, the same being rendered null and void by this clause.

A.17. PERI Intellectual Property.  All PERI Intellectual Property, as well as any proprietary information, furnished in connection with this Agreement shall remain PERI's exclusive property.  Customer shall not use PERI Intellectual Property or other proprietary information that is furnished in connection with this Agreement for any purpose other than in connection with this Agreement, the Material supplied hereunder and/or the Project.

A.18. Cancellation.  An order once placed with and accepted by PERI, including, but not limited to, for any Materials or Ancillary Services hereunder or pursuant to any change order, can be canceled only with PERI’s written consent and upon terms that will indemnify PERI against loss, including, but not limited to, any obligation of PERI whatsoever to any third party with respect such cancellation.

A.19. Taxes.  Pricing does not include any sales or use taxes.  Any tax, assessment, or charge upon PERI’s production, sale, or shipment of Material or Ancillary Services posed by Federal, State, Municipal or other Governmental authority and any increase in costs resulting from any Governmental laws or regulations affecting the subject matter of any sale, raw material or labor involved therein, and other costs of PERI, shall be added to the rental or purchase price and paid by Customer.  In lieu of payment of any tax, Customer shall provide PERI prior to shipment with a certificate in form acceptable to the taxing authorities exempting you from the payment of such tax.

A.20. Governing Law & Venue. The Agreement shall be interpreted under and shall be governed by the laws of the state of Maryland without regard to the conflict of law principles thereof.  Any dispute between the parties arising under this Agreement that is not settled will be litigated in the federal or state courts of the State of Maryland. 

A.21. Waiver of Trial by Jury.  The Customer hereby waives trial by jury in any action or proceeding to which Customer and PERI may be parties, arising out of or in any way pertaining to this Agreement.  This waiver is knowingly, willingly, and voluntarily made by the Customer, and the Customer hereby represents that no representations of fact or opinion have been made by any individual to induce this waiver of trial by jury or to in any way modify or nullify its effect.  

A.22. Security Interest /Collection of Payment. Customer grants PERI a first priority security interest in and assignment of all receivables or accounts owing to Customer by any contractor, owner of the property where the Material is located or used in construction, bonding company or insurer of Customer as security for all of Customer’s obligations and liabilities to PERI and authorizes PERI to execute, if necessary, and file any financing statements or notices to perfect PERI’s security interests hereunder.  Upon the Default by the Customer, PERI shall be entitled to and shall have the rights and remedies of a secured party under the Uniform Commercial Code.   

A.23. Assignment. Customer may not assign this Agreement absent the express, written consent of PERI. 

A.24. Damages/Limitation of Liability. Notwithstanding any other provision of the Agreement to the contrary, (a) PERI's aggregate responsibility and liability, whether arising out of contract or tort, including negligence and strict liability, under this Agreement, including, but not limited to, all claims for breach, failure of performance or delay in performance by PERI or performance or non-performance of the Material or attendant services shall not exceed the contract price, and (b) in no event shall PERI be liable in contract or in tort, including negligence and strict liability, for any special, punitive, indirect, incidental or consequential damages of any kind or character, including, but not limited to, loss of use of facilities or equipment,  loss of revenues or profits or loss under purchases or contracts made in reliance on the performance or non-performance of the Material, Applications or services provided hereunder, whether suffered by Customer or any third party, or for any loss or damage arising out of the sole or contributory negligence of the Customer, its employees or agents or any third party.

A.25. Exclusive Remedy. In the event Material is not shipped in good working condition or is otherwise non-conforming to the Agreement in quantity or description, upon receipt of timely notice as provided in paragraph A.13 of this Agreement, PERI shall repair, replace, or furnish, as appropriate, such non-conforming Material within a reasonable time after notice. In the event any Ancillary Services are non-conforming or otherwise defective, Customer shall notify PERI of the same within twenty-four (24) hours setting forth the specific problem.  PERI shall correct such non-conforming or deficient Ancillary Service within a reasonable time. The repair and/or replacement of Materials or Ancillary Services, as applicable, is the sole exclusive remedy to Customer and the sole liability of PERI regardless of theory, including warranty, contract, or negligence. Notwithstanding the foregoing, PERI will not repair or replace and Customer shall remain liable hereunder for any Material that is: (a) Not maintained by Customer in accordance with applicable instructions or manuals and industry standards; (b) Has been modified from its original condition following delivery; (c) Damaged by use of unsuitable components, parts,  chemicals, or other materials not supplied by PERI with the Material, or negligent use or faulty operation of the  Material by Customer; or (d) Any damages caused by errors on the part of the Customer in not providing suitable premises in that the Material is to be stored or adequate protections against influences within or outside the premises that may affect the Material or its operation.  If the repair or replacement fails or PERI fails to timely commence the repair or replacement as set forth herein, Customer may, at its discretion, terminate the Agreement, in whole or in part as to the defective, non-conforming or deficient Material or Ancillary Service, and recover only the purchase or rental price paid for the defective, non-conforming or deficient Material or Ancillary Service, which shall be repaid upon the return of any defective, non-conforming or deficient Material (as applicable) to PERI.  Customer’s right to terminate and any damages arising from a minor defect, which does not significantly impair the use of the Materials or Ancillary Service, is excluded, and waived.  In the event any Application is defective, has errors or access to or use of the Application is interrupted, disrupted or unavailable, Customer’s sole rights and remedies shall be governed by License Agreement (as defined in paragraph A.7 of this Agreement), and Customer agrees that PERI shall not be liable for any damages, claims or liabilities for the same, with all causes of action to be brought against the provider, developer, host and/or owner of the Application as identified in the License.   Back charges will not be accepted by PERI attendant with any defects in Material, Applications or Ancillary Services unless PERI has agreed to such charges in writing.  

A.26. Default/Remedies/Adequate Assurances   
i. It shall be deemed a default if Customer fails to pay any amount herein provided within ten (10) days after the same is due and payable or if Customer fails to observe, keep or perform any other provision of this Agreement required of it, or if bankruptcy or receivership proceedings are commenced related to Customer’s debts.  
ii. Upon the occurrence of a default, PERI shall have the right to exercise any one or more of the following remedies: (a) to declare the entire amount immediately due and payable as to any and all Material or any service provided hereunder, without further notice or demand to Customer; (b) to sue for and recover all amounts then accrued or thereafter accruing and other amounts due hereunder; (c) to take possession of any or all items of Material, without any notice, court order or other process of law, and Customer hereby waives any and all damages occasioned by such taking and understands that any said taking or possession shall not constitute a termination as to any or all items or Material unless PERI expressly so notifies Customer in writing; (d) to terminate this Agreement as to any or all items of Material or any other lease or agreement by and between the parties for any other Material or services; and/or (e) to pursue any other remedy at law or equity.  Notwithstanding any said remedy exercised hereunder, Customer shall be and remain liable for the full performance of all obligations on the part of Customer under this Agreement. 
iii. If PERI, in its sole judgment, has reasonable grounds for insecurity regarding the ability of Customer to perform its financial obligations hereunder, or any other material obligation under this Contract, PERI may request that Customer provide “Adequate Assurance of Performance”, which shall means at the option of PERI, advance payment for Materials or Ancillary Services to be provided under this Agreement, or delivery to PERI of an acceptable letter of credit or other security, such as a payment bond. Customer’s failure to provide Adequate Assurance of Performance within ten (10) days of demand shall be deemed a default entitling PERI to the remedies set forth in this Agreement or pursuant to applicable law.

A.27. Relationship.   Nothing in this Agreement shall be construed as forming any type of partnership, joint venture, or similar relationship between the parties, and the parties expressly agree that they are not partners, joint venturers or acting in a similar capacity and have not and will not hold themselves out as partners, joint venturers or the like to any third-party and any party holding itself out as such shall indemnify the other for all losses, costs, expenses or other damages, including attorneys’ fees, arising from or connected with any such wrongful representation.

A.28. Limited Warranty.   PERI does not warrant any Materials or goods or deliverables manufactured by a Third-Party, for which Customer is entitled to the warranty provided by the applicable manufacturers.  With respect to Materials or goods or deliverables manufactured by PERI, Customer acknowledges that they may be either new or used as set forth in the accompanying proposal and/or leased on an “as is” basis and agrees that they have been examined and found in a good and/or workmanlike condition when delivered unless written objection is provided by Customer to PERI within forty eight (48) hours of delivery.  EXCEPT AS STATED IN THIS PARAGRAPH, PERI MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE MATERIALS OR GOODS OR OTHER DELIVERABLES, INCLUDING BUT NOT LIMITED TO, THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE; THE CAPACITY OF THE MATERIALS OR GOODS OR OTHER DELIVERABLES; OR COMPLIANCE OF THE MATERIALS OR GOODS OR OTHER DELIVERABLES WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR THIRD-PARTY CONTRACT REQUIREMENT RELATING THERETO.

A.29. Storage of Personal Data.  Customer acknowledges and consents to the fact that PERI may stores personal data subject to legal regulations and may use and disclose the information to fulfil this Agreement, to comply with applicable laws or for other business purposes. 

A.30. Confidentiality.   Customer shall not disclose, make commercial or other use of, or give or sell to any person any PERI Intellectual Property or make any announcement, publication, photograph or other type of public communication concerning PERI, PERI Intellectual Property or this Agreement or allow any third party to do the same without the express written consent of PERI. The duration of the obligations stated in this paragraph shall be for a period of five (5) years after the expiration or termination of this Agreement.  

A.31. Miscellaneous:
i. If any particular provision of these Terms is or becomes invalid, the remaining provisions shall remain valid and enforceable.  
ii. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together constitute one (1) agreement. Delivery of an executed counterpart of this Agreement by fax or transmitted electronically in legible form, including without limitation in a tagged image format file (TIFF) or portable document format (PDF), shall be equally effective as delivery of a manually executed counterpart of this Agreement.
iii. The PERI representative reflected in the proposal and/or who executed this Agreement has authority to enter into this Agreement on behalf of PERI but does not have any authority to amend the terms and conditions of this Agreement or enter into any other agreement with the Customer other than change orders that amend the scope and quantity of Materials and Ancillary Services subject of this Agreement.

B. SPECIAL TERMS OF PERI FOR THE PURCHASE OF MATERIALS
B.1. Applicable/Purchase.  In addition to Section A of this Agreement, this Section B shall apply to the Purchase of any and all Materials from PERI under this Agreement.

B.2. Purchase Price/Payment.  The price of the Purchase Materials is set forth in the accompanying proposal.  If, between the execution of the Agreement and delivery, there are changes in costs for PERI, in particular due to changes in material or raw material prices, collective wage agreements or other price changes of suppliers, or exchange rate fluctuations for which PERI is not responsible and which could not have been foreseen with sufficient certainty, PERI is entitled to adjust the agreed prices accordingly. PERI shall notify Customer of an increase in price.  Upon the request of Customer, PERI must establish the basis for the price increase pursuant to the foregoing. If the overall price increase is above ten percent (10%), Customer may terminate the Purchase portion of the Agreement subject of the price increase within two weeks after receipt of the notification of the price increase, the remaining provisions of the Agreement remaining valid and enforceable.  Unless otherwise agreed in writing, the purchase price of any Purchased Materials must be paid in advance of delivery.

B.3. Material Warranty.  
i. Third-Party Materials.  PERI does not warrant any Material manufactured by any Third-party, for which Customer is entitled to the warranty provided by the applicable manufacturer.  
ii. New Materials.  With respect to new Materials manufactured by PERI, PERI warrants to the Customer that the Material purchased from PERI is free from defects in material and workmanship for a period of twelve (12) months from the date of delivery of the Material provided that: (a) the Material is used and maintained by Customer in accordance with PERI’s applicable instructions/manuals and/or industry standards; (b) the Material has not been modified from its original condition; (c) Customer gives prompt written notice to PERI before the end of the warranty period specifying all alleged defects in the Material purchased; and (d) Customer preserves and turns over to PERI or permits reasonable inspection by PERI of all allegedly defective Material, parts or items. This warranty shall not cover (i) any defects arising from corrosion, abrasion, use of components, parts, chemicals, or other materials not supplied by PERI with the Material, or negligent use or faulty operation of the Material by Customer, (ii) ordinary wear and tear, or (iii) any defects caused by errors on the part of the Customer in not providing suitable premises in which the Material is to be stored or adequate protections against influences within or outside the premises that may affect the Material or its operation.  UNLESS OTHERWISE EXPRESSLY STATED IN ANY DOCUMENT ATTACHED TO THESE GENERAL TERMS AND CONDITIONS, THIS WARRANTY OF MATERIAL AND WORKMANSHIP IS THE ONLY WARRANTY MADE BY PERI AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND PERI DISCLAIMS ON BEHALF OF ITSELF, ITS VENDORS AND SUPPLIERS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE, SUITABILITY OR PERFORMANCE.  PERI's obligation under this warranty and any other warranty or guarantee that is part of the Agreement is strictly and exclusively limited to furnishing repairs or replacements for Material or parts determined to be defective on inspection by an authorized representative of PERI.  PERI assumes no responsibility and shall have no liability for any repairs or replacements by Customer without PERI's prior written authorization.  If the Customer discovers a defect in the Material, Customer shall advise PERI as soon as possible after a problem is detected by telephone, followed by written confirmation, fax or e-mail, giving detailed information of the alleged defect and the reason that it is considered PERI's responsibility. PERI and Customer will then mutually agree to a reasonable response time.  PERI will have access to any job site to inspect and review with the Customer any alleged defect when PERI believes such a visit is necessary.  Back charges will not be accepted by PERI attendant with any defects in Material unless PERI has agreed to such charges in writing.
iii. Used Materials.  With respect to the Purchase of Used Materials, any purchase shall be subject to the terms and conditions of an “as is” sale.  PERI makes no warranties whether express or implied.  PERI DISCLAIMS ON BEHALF OF ITSELF, ITS VENDORS AND SUPPLIERS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE, SUITABILITY OR PERFORMANCE.

B.4. Signage and Advertising.
i. PERI may affix advertisements for its company and products on banners, signs, posters and similar items in a size determined by PERI at a visible place on the Rental Material, which shall not interfere with the use of the Rental Materials.
ii. PERI may photograph PERI’s scaffolding and/or Formwork and to use them in PERI advertisements, along with the name of Customer, in any form, such as catalogues, prospectuses, on reference lists, on its online homepages (and www.peri-usa.com), social-Media platforms and similar locations. Customer shall secure the written authorization, release and permission of each employee or agent photographed or named for use in PERI’s advertisements.  Neither Customer nor its employees shall be compensated for or have any rights to the marketing materials generated by PERI, which shall be the sole and exclusive property of PERI.  Customer must ensure that the advertisement affixed by PERI is not damaged or misplaced. Placing advertisements of Customer, or its clients or a third party on the Rental Material requires PERI's prior consent and shall not, in any case, completely or partially hide or cover the advertisement by PERI.

B.5. Title/Security Interest on Purchases/Collection of Payment.   Title to any Purchased Material shall remain with PERI and not transfer until payment in full, notwithstanding when Customer takes possession of the Material.  Once title transfers, Customer grants PERI a security interest in all Purchase Materials purchased hereunder, wherever located and regardless of the transfer of title, to any obligations of Customer to PERI related to this Agreement or any other agreement between the parties, as permitted by applicable law.  The foregoing security interest shall secure all of the Customer’s present and future debts, obligations and liabilities to PERI, however arising, whether matured or unmatured, direct or contingent, voluntary or involuntary, and including any extensions of renewals thereof, plus all costs, expenses, advances and liabilities that may be made or incurred by PERI in the administration and collection of such obligations.   Customer agrees that PERI will execute, if necessary, and file any financing statements to perfect PERI’s security interests hereunder.  Upon the default by the Customer, PERI shall be entitled to and shall have the rights and remedies of a secured party under the Uniform Commercial Code.   

C. SPECIAL CONDITIONS FOR RENTAL MATERIALS

C.1. Applicable/Rentals.  In addition to Section A of this Agreement, this Section C also shall apply to the rental of any and all Materials from PERI under this Agreement.

C.2. Rental Term.  Unless otherwise agreed to in writing, rental shall commence upon shipment from the PERI’s warehouse identified in the accompanying proposal to respective F.O.B. point and shall cease upon receipt of Customer’s return of Material to PERI’s warehouse from respective F.O.B. point.  If no particular warehouse is stated in the proposal, then the warehouse shall be deemed to be the particular warehouse from which and to which the Material is shipped.   If Customer picks up the Rental Material from PERI’s location(s), the rental period shall commence upon Customer’s agreed pick-up date.   Rental is calculated on a twenty-eight (28) day period.  The minimum rental period is twenty-eight (28) days.    Unless otherwise expressly agreed in writing, Customer is not entitled to any credits for delays, suspensions of use or downtimes associated with the use of Rental Materials.  PERI does not grant suspension or reductions of rent for holidays, bad weather or technical downtimes.

C.3. Rental Material Warranty.  PERI does not warrant any Material manufactured by others, for which Customer is entitled to the warranty provided by the applicable manufacturers.  With respect to rental Material manufactured by PERI, Customer acknowledges that the rental Material may be either new or used and leased on an “as is” basis and agrees that the rental Material has been examined and found in a good and workmanlike condition when delivered pursuant to paragraph A.13 of this Agreement.  PERI MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE RENTAL MATERIAL, INCLUDING BUT NOT LIMITED TO, THE MERCHANTABILITY OF THE MATERIAL OR ITS FITNESS FOR ANY PARTICULAR PURPOSE; THE CAPACITY OF THE MATERIAL; OR COMPLIANCE OF THE MATERIAL WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING THERETO.

C.4. Location. At all times, rental Material shall be located at the project location identified in the proposal and shall not be removed therefrom except with the written consent of PERI. All rental Material shall be located at the project location and used and maintained at all times in strict accordance with all applicable National, State, Local, Administrative, Police and other laws, ordinances and regulations. Customer is solely liable for any deviation from the aforementioned.  If Customer relocates the rental Material without the express, written consent of PERI to another location, Customer agrees to pay PERI a liquidated damage of $__________, which shall not be deemed a penalty but the measure of damage to PERI caused by the improper removal and transport and risks associated with the same of the rental Materials from the agreed location.

C.5. Proper Use, Storage, Maintenance.  
i. Customer is responsible for the correct and proper use (including assembly and dismantling procedures), storage, intermediate and final cleaning, and maintenance of rental Material, as well as full compliance with all applicable Manuals, Assembly Drawings, any other instructions provided for the Material, and all applicable standards, laws, ordinances and regulations (including, but not limited to the guidance and/or regulations issued by the United States Department of Labor, Occupational Safety and Health Administration, or applicable state’s and/or jurisdiction’s department of labor or occupational health). 
ii. Customer must continuously inspect the rental Materials before assembly and during use and immediately cease use of any defective Materials or Materials that do not comply with the Manuals, Assembly Drawings or applicable laws or standards and promptly notify PERI of the same in writing.  Except in cases of imminent danger, Customer may not repair or alter rental Material without PERI's express written consent, and PERI shall not be liable in any case for Customer’s repair or alteration costs.
iii. Customer must safeguard and protect the rental Material against theft. In case of theft, embezzlement or any other illegal misplacement, Customer is obliged to notify PERI and the competent regulatory authority in writing immediately about the theft, embezzlement, or other illegal misplacement. In case of theft, embezzlement, or any other suspected criminal act related to the rental Material, the Customer shall file a police report and lodge a complaint regarding all potential offences involved as soon as signs of any criminal offence regarding the rental Material are noticed. A copy of the police report should be sent immediately to PERI after the submission of the report.

C.6. Subletting.  Customer may not sublet or loan rental Material to third parties without the express written consent of PERI.  

C.7. Ownership.  Title to the rental Material is and shall at all times remain with PERI. Customer shall have no right, title, or interest therein except as expressly set forth in this Agreement. Customer will not cause or allow any attachment or execution to be levied upon the Material by any third party for any reason. Customer shall give PERI immediate written notice of any attachment or other judicial process affecting any item of Material.

C.8. Insurance. Customer, at its own expense, will keep PERI’s rental Material insured under polices satisfactory to PERI. PERI shall be listed as additional insured on Customer’s polices for the list value of the Material. 

C.9. Returns.   Customer is responsible for the return of the rental Material and bear all costs and risks associated with the same.  Returns require forty-eight (48) hours prior notice to PERI. Returns shall be during regular business hours on Business Days.  PERI will not accept returns after 3:30 p.m. and is not responsible for any damage, costs or loss that occurs to items not returned in accordance with these provisions.  Customer must adhere to any packaging or shipment requirements of PERI.  

C.10. Condition of Material on Return.  Material shall be returned by Customer in good working condition, subject to normal wear.  Customer must return rental Material in its complete, original technical condition without any other damage apart from the normal wear and tear, in a cleaned and reusable condition, dismantled, bundled according to dimensions and like materials, palletised and arranged properly for unloading with a forklift.  Any components of the Formwork Material or Scaffolding Material that are lubricated by PERI before delivery must be lubricated before return.   Customer shall not alter or modify the Material in any way, except with the prior written consent of PERI.  Customer will not remove, alter, or deface PERI’s ownership tags, plates, labels, lettering, or identification on Material. Customer shall be liable for unreturned, missing, lost, destroyed or stolen Material.  A service fee will be levied on every rental invoice to cover cleaning, repairs, damage, wear & tear, and scrap incurred on PERI Material during the course of its intended application and use. However, scrap, repairs, or damages resulting from abuse or misuse of PERI Material, including but not limited to the result of its misapplication or incorrect handling are not included in the Service Fee, and PERI reserves the right to charge the Customer for the applicable cost to repair and/or replace the same.  For safety reasons, Customer shall not be entitled to the return and possession of any Material damaged beyond repair for which Customer is charged, and Customer will not be entitled to any discount for any scrap value applicable to such Material.    PERI will use reasonable efforts, which reasonableness shall be dictated by actual conditions at the applicable PERI warehouse to which the Materials are returned, to timely assess return deliveries for damaged and missing Materials, which period shall not be less than thirty (30) days from the date of return.   Invoices for any damaged, uncleaned or missing Material will be invoiced thereafter.

C.11. PERI’s Inspection.  PERI shall have the right at any time to enter into and upon the premises where the rental Material may be located for the purpose of inspecting the same or observing its use.

C.12. Conversion to Purchase of Rental Material.   To the extent set forth in the accompanying proposal or otherwise agreed by PERI in writing, Customer has the option to purchase any rental Materials for the rates or applicable discount set forth in the accompanying proposal.    Such a purchase shall be deemed a purchase of Used Materials and is made as is.  THE PURCHASE OF USED GOODS IS SUBJECT TO THE TERMS AND CONDITIONS OF AN “AS IS” SALE. PERI MAKES NO WARRANTIES WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 

D. PERI ANCILLARY SERVICES FOR MATERIALS

D.1. Applicable/Ancillary Services.  In addition to Section A of this Agreement, this Section D also shall apply to any and all Ancillary Services provided by PERI under this Agreement, including those identified below.

D.2. Assembly Drawings/Manuals.  
i. PERI manuals are available upon request.  To the extent set forth in the accompanying proposal, necessary layout drawings and/or assembly drawings (“Assembly Drawings”) for the application of the Material, including, if requested, drawings generated by AutoCAD or similar program.  Revisions to accommodate changes to structural/architectural drawings and/or construction sequence will be invoiced at the rate of One Hundred Sixty-Five Dollars ($165.00) per hour.  Manuals and Assembly Drawings generated by PERI are provided to conceptually illustrate the assembly of PERI Material only. Manuals and Assembly Drawings generated by PERI are neither intended to be fully directive nor cover engineering details for PERI’s Material or materials not furnished by PERI.  Drawing service does not include reshoring/back shoring calculations for Formwork, which are Customer’s sole responsibility.  Any manuals, information or instructions for use related to Third-Party Materials are available from the Third-Party.   PERI is not liable for any errors or omissions related to any manuals, information or instructions for use related to Third-Party Materials. All PERI-supplied Assembly Drawings are based upon information provided by Customer and/or others.  It is Customer’s responsibility to use the Material (and to ensure use by others, including Customer’s laborers, employees, subcontractors or others is) in accordance with safe engineering and construction practices and applicable law.  
ii. PERI provides its Material to sophisticated end users, and it does not control assembly or procedures at the Project site, or the grade or quality of materials or equipment supplied by third parties.  It is Customer’s responsibility to integrate PERI’s generated drawings into composite drawings suitably complete for construction purposes. Customer further expressly agrees to ensure that all Manuals, Assembly Drawings and any other information or training necessary for the proper and safe use of the Material is provided and available to Customer’s employees, laborers, subcontractors or others using the Material supplied under this Agreement.  PERI is not responsible for training Customer’s employees or laborers or supervising anyone in the use of the Material.  
iii. Customer shall review the Assembly Drawings generated by PERI for any discrepancies or non-conformities, and in the event of any discrepancies or non-conformities, Customer must notify PERI within three (3) working days] after the submission of the Assembly Drawings by PERI. Customer’s failure to provide timely written notice shall constitute a waiver of any and all claims, directly or indirectly, related to the delivery of Assembly Drawings with discrepancies or non-conformities and it shall be conclusively presumed that Customer has fully inspected the Assembly Drawings, the Customer deems them satisfactory and acceptable in all respects, and they conform in all material respects to this Agreement.  PERI is not liable for any changes by others made to or deviations from any Assembly Drawings supplied hereunder.   

D.3. Preassembled Material.  
i. Only to the extend specifically set forth in the accompanying proposal will PERI provide preassembly of those Custom or other specified Formwork or Scaffolding identified in the proposal (“Preassembled Material”). The preassembly shall be done at PERI’s warehouse pursuant to PERI’s standard assembly instructions applicable to the Preassembled Material.  To the extent that the Preassembled Material is based, in whole or part, upon drawings, specifications or instructions provided by Customer or others or to the extent that the Preassembled Material includes components not supplied by PERI, PERI shall not be liable in any manner for any damages, delays or claims arising from discrepancies, errors or omissions in the drawings, specifications or instructions or any product deficiencies of or damages to the components caused by the preassembly or use of the same. PERI further shall not be liable for any damage to the Preassembled Material once the carrier takes possession of the Preassembled Material pursuant to paragraphs A.10 and A.13 of this Agreement.   PERI shall be compensated by Customer for any additional hours attendant with preassembly or reassembly of the Preassembled Material caused by changes to or errors in any drawings, specifications or instructions provided by Customer or others or to the extent that the Preassembled Material includes defective or improper components not supplied by PERI at a rate of Seventy-Nine Dollars ($79.00) per hour.
ii. If Preassembled Material is part of the Agreement, the price, delivery dates and any other Ancillary Services provided as part of the Preassembled Materials must be set forth in the accompanying proposal.   The delivery date(s) for Preassembled Material must be expressly agreed upon in writing by PERI. Any such agreed upon delivery date is expressly contingent upon PERI obtaining all requisite information from the Customer necessary for the design and/or assembly of the Preassembled Material.  
iii. Unless otherwise agreed to in writing, any rental period for Preassembled Material that are rented shall commence on the delivery date agreed upon by the parties, regardless of whether Customer is prepared to take or accept delivery of the Preassembled Material on that date and shall terminate upon Customer’s return of the Preassembled Material pursuant to Section C of this Agreement. 
iv. Notwithstanding PERI’s preassembly of Materials, Customer shall be responsible for all required support and stability proofs and levelling for the Customer’s erection and use of Preassembled Materials at the Project site, including, but not limited to, installation of anchors, props and other Materials necessary to, adjacent or used in connection with the Preassembled Materials and inspection and adjustments to the Preassembled Materials as necessary, as well as preparation of necessary forklifts for load pick-up (e.g. cranes, forklifts) and passenger transport (hydraulic platforms) with required lifting force and range of coverage.
v. If agreed as part of the proposal, PERI will provide Assembly Drawings attendant with the preassembly of the Material subject to the terms set forth in Section D.2 and elsewhere in this Agreement regarding Assembly Drawings. 

D.4. P.E. Drawings.  PERI’s Assembly Drawings do not include review and/or stamped drawings and/or calculations by a Professional Engineer. PERI can recommend an independent third-party Professional Engineer that is familiar with PERI’s Formwork and Scaffolding. Even if PERI arranges for the service on behalf of Customer and/or passes through Customer’s payment to that Professional Engineer, absent a written contract between PERI and that Professional Engineer, under no circumstance is that Professional Engineer considered to be a subcontractor or agent of PERI and PERI has no liability for that Professional Engineer’s service. Where PERI has provided Customer with engineering data, drawings or specifications stamped by a Professional Engineer (“Engineering Drawings”) it contracted in connection with the use of the Material, the following conditions shall apply:  (a) Customer agrees to indemnify and hold PERI harmless against and from any liability or claim for damages or injuries sustained by reason of deviation in whole or in part from such Engineering Drawings even though such deviation may have been based on any verbal or mechanical representation or other statement by PERI personnel; and (b) all Engineering Drawings shall remain the sole property of PERI, and the Customer acknowledges and agrees that any such information contained therein shall not be disclosed to any third parties without the prior written consent of PERI.  Unless PERI has a written contract with the Professional Engineer to stamp any data, drawings or specifications, PERI shall not be responsible for any claim or demand with respect to any errors or omissions of the Professional Engineer.

D.5. Technical Assistance/Site Service. Only to the extent set forth in the accompanying proposal, PERI will provide technical assistance/site service (“Technical Assistance”) to answer questions related to the standard assembly of Material supplied hereunder or assembly as shown in any Assembly Drawings. This service is not designed to be full time or continuous. Technical Assistance is designed to answer questions regarding PERI’s Material and Assembly Drawings with the understanding by all parties that the Material and drawings are provided to sophisticated end users with the knowledge, training, and expertise in the applicable standards, regulations, laws and usage of the Material.  PERI does not provide any training services, supervision, inspection or installation work as part of this Technical Assistance.  Any additional days or parts thereof of requested technical assistance/site service shall be billed at the rate of One Thousand Three Hundred Eighty-Six Dollars ($1,386.00) per day (up to eight (8) hours per day), plus travel, food and lodging costs. Technical Assistance does not include any inspection or confirmation as to the proper assembly of any Material, which is the responsibility of the Customer. 

Revised November 2024.