TERMS AND CONDITIONS OF SALE

 

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The following terms and conditions apply to purchases set forth in a Proposal.  This Proposal is between the Customer set forth on the Proposal (“Customer”) and Stainless, a business of FDH Infrastructure Services, LLC (“Stainless”).  These terms and conditions become a valid and binding obligation of the parties upon the earlier of:  (i) Stainless’s receipt of a signed copy of a Proposal by an authorized representative of the Customer; (ii) receipt of a purchase order from the Customer; or (iii) Customer’s request, in writing, to commence performance under a Proposal.  Any other terms, except those expressly agreed to in writing and signed by an authorized Stainless representative, regarding a Proposal are not valid. The following terms and conditions apply to purchases set forth in a Proposal.  This Proposal is between the Customer set forth on the Proposal (“Customer”) and Stainless, a business of FDH Infrastructure Services, LLC (“Stainless”).  These terms and conditions become a valid and binding obligation of the parties upon the earlier of:  (i) Stainless’s receipt of a signed copy of a Proposal by an authorized representative of the Customer; (ii) receipt of a purchase order from the Customer; or (iii) Customer’s request, in writing, to commence performance under a Proposal.  Any other terms, except those expressly agreed to in writing and signed by an authorized Stainless representative, regarding a Proposal are not valid.

In consideration of the mutual promises and conditions set forth herein, receipt of which is hereby acknowledged, and intending to be legally bound, the Parties hereto agree as follows:

Section 1: Definitions

In addition to the terms defined elsewhere in these Terms, the following have the meanings set forth below:

“Contract Price” means the price agreed upon between the Parties in the Proposal.

“Party” or “Parties” means Stainless and Customer

“Purchase Order” means a Customer purchase order relating to the subject matter of the Proposal agreed to by the Parties.

“Proposal” means a separate document in a form similar to Exhibit A that contains the agreed upon Work and Contract Price and is incorporated by reference herein, as signed by Customer and Stainless, as may be amended from time to time in accordance with these Terms.

“Work” means the construction and services required by these Terms, whether completed or partially completed, and includes, without limitation, all equipment, material and labor provided or to be provided by Stainless under these Terms.

Section 2: Scope of Work

2.1 Scope of Terms

Stainless shall provide equipment, materials and qualified, experienced employees, professionals and others necessary for the performance of the Work described in the Proposal and in the issued Purchase Order.  Stainless reserves the right to make reasonable substitutions of labor or materials that are deemed necessary to facilitate the completion of the Work.  Any substitutions that increase the cost to Customer require Customer’s written consent by means of a Change Order executed in accordance with Section below, “Change Orders.”  Stainless shall not begin the Work until a Purchase Order has been accepted.  Unless rejected by Stainless, all Purchase Orders will be deemed accepted after ten (10) days of receipt or immediately if Work has begun.  Any terms that contradict these Terms and any preprinted terms and conditions on any Purchase Order or communication for conditions of sale, are void.

2.2 Change Orders.

A. Change in Work.  Stainless and Customer contemplate the possibility that changes in the Work may be required.  Any such change shall be done by way of a Change Order (“Change Order”) specifically detailing the proposed change in the Work.  Such changes may require an adjustment to the Contract Price to reflect the cost incurred or saved, if applicable, or to Stainless’ time for performance hereunder, or both.  Such adjustments shall be included in the Change Order to which the adjustments relate.

B. Change Order Process.  If Customer is requesting changes to the Work, Customer will submit written notice of the requested changes. Stainless will provide a written quote within two (2) business days including the cost/savings of the requested changes, and any effect on the Work schedule.  Customer shall approve Change Order within one (1) business day. Customer shall issue a confirming Purchase Order or revision to the existing applicable Purchase Order for all such approved Change Order requests.  If Stainless identifies a need for a change to the Work, Stainless will provide a written quote within two (2) business days including the cost/savings of the requested changes, and any effect on the Work schedule.  Customer shall approve Change Order within one (1) business day. Customer shall issue a confirming Purchase Order or revision to the existing applicable Purchase Order for all such approved Change Order requests.  Stainless shall not implement changes until it receives notice of such approval from Customer.   If the Change Order is not approved, in any form, Stainless shall have no obligation to perform any Change in Work described in the proposed Change Order and Customer shall not have any obligation to pay Stainless for such work.

C. Emergency Work.  For emergency changes to Work, Stainless will provide a written estimate of the cost of Work to be performed and Customer shall provide written confirmation to proceed based on this estimate. Stainless will finalize the pricing with a written proposal once the Work is complete and final costs are known. Customer will then issue or adjust their Purchase Order.

2.3 Order of Precedence.

The Parties hereby agree that in the event of any conflict between or among the terms of two or more of these Terms, Proposal or Purchase Order, the order of precedence shall be the Proposal, Terms and then Purchase Order.

Section 3: Payment and Fees

3.1 Invoicing and Payment. Stainless will invoice Customer for fees and expenses associated with Work and Contract Price adjustments as indicated in the Proposal.  Unless otherwise indicated in Proposal, Customer shall pay each such invoice in full within thirty (30) days from the invoice date.

3.2 Price Adjustments.  The Contract Price is subject to change based on certain conditions (following the process outlined in Section “Change Order Process”), if applicable, which are reasonably contemplated by the Parties at the time of these Terms and may include the following:

A. Weather: The Contract Price includes labor but does not include Inclement Weather days as hereinafter defined.  The Contract Price may be subject to an upward adjustment by Stainless for any Inclement Weather days in accordance with this Section “Payments and Fees.”  Each Inclement Weather day shall be calculated at the rate as specified in the Proposal.  All days lost due to Inclement Weather shall be reported to the Customer as soon thereafter as reasonably possible, but will have the effect of extending the number of days required to complete the Proposal.  Notwithstanding the foregoing, it shall be understood that ground activities may continue even on Inclement Weather days if it is safe to conduct such activities.  In the event of an extended weather delay, Customer and Stainless may mutually agree in writing to cease work and have crews return at a later date.  Inclement Weather is based on local reports by the National Weather Service and industry experience and shall be defined as those days that in the reasonable discretion of Stainless’s on-site supervisor are unsafe or ill advised to perform the Work. Stainless agrees that the crew is to arrive at the site and reasonably attempt to work for two hours on any day prior to submitting a claim for a weather related delay.

B. Transmission Line Removal – Stainless agrees to use commercially reasonable efforts regarding removal and storage of transmission line and to not cause damage or render the line unusable. However, Stainless cannot be held responsible for existing damage that may or may not be readily visible to the crew. Concerning heliax cable and waveguide, these types of transmission line do not generally lend themselves to relocation and it is highly likely that kinking or other damage may occur during the removal or coiling of the cables. Customer agrees that Stainless shall not be held responsible for damage due to removal or relocation or heliax cable or waveguide.

C. Materials and Information:  The Contract Price is based on carrying out the Work in one continuous operation and does not contemplate interruption or delays due to missing information to be supplied by Customer or materials purchased separately by Customer, including but not limited to, necessary permits, coaxial lines, transmission line hangers, antenna, reflectors or electrical power.  All materials to be furnished by Customer that are necessary for completion of the Work must be on the tower site prior to the commencement of tower erection or, in the alternative, scheduled in such a manner as to avoid delaying the erection crew.  Customer shall also furnish all requested information in a timely manner including, but not limited to, transmission line drawings (if necessary).  The Contract Price may be subject to an upward adjustment including remobilization charges if the foregoing conditions are not met.   Any such delay may have the effect of extending the number of days required to complete the Work.

D. Outsourced material: Due to instability in the pricing of guy wires, steel and zinc (galvanizing), the Contract Price assumes the project will be awarded in less than sixty (60) days after the proposed date unless otherwise indicated in Proposal.  Should additional time be required, price adjustments may be required. Stainless agrees to submit back-up documentation should a price increase be forthcoming.

E. Access:  The Contract Price does not contemplate site preparation, which is the obligation of Customer.  Expenses incurred by a delay attributable to improper site preparation shall cause the Contract Price to be upwardly adjusted.  If applicable, site preparation shall include all of the following if applicable to the Proposal:

i. Provide one (1) tagline twenty-five (25) feet wide and equal in length to the proposed height of the tower, cleared of all obstructions in order to permit a truck to be driven thereon;

ii. Clear a fire lane down each guy radial twenty-five (25) feet wide on each side of the guy line, extend this lane fifty (50) feet beyond the outer guy anchor; a ten (10) foot width of this fifty (50) feet wide fire lane must be cleared of all obstructions in order to permit a truck to be driven thereon;

iii. Grade the area immediately surrounding the tower in order to permit the use of trucks, cranes and other equipment that may be required to handle or erect the tower;

iv. Clear an area at least two hundred fifty (250) feet by two hundred fifty (250) feet adjacent to the base of the tower to permit unloading, sorting, assembling and work space;

v. Provide the necessary trusses to support the antenna during construction;

vi.Provide necessary fittings and any gases (i.e. nitrogen) required to pressure check all the transmission lines;

vii. Provide electrical power to the base of the tower;

viii. Provide the necessary building and construction permits;

ix. Provide any police service necessary to direct traffic in the event the guy lines should cross a public or private road;

x. Provide toilet facilities if required by local, state or federal authorities;

xi. Provide access to a telephone hookup;

xii. Temporarily lower or remove overhead power lines that impede or otherwise create an unsafe work site;

xiii. Remove and replace fencing around the tower base and guy anchors as necessary for the completion of the work; and

xiv. Provide temporary storage for transmission line and/or small tools.

Customer understands that heavy equipment will be needed on site and rutting and disturbance of the sod and soil should be expected. Except to the extent expressly provided in the Proposal, Stainless will not provide any site restoration work and has made no financial allowance as part of the Work.

F. Foundations:    If the Proposal does not include foundations Work, Customer must complete the foundations prior to the start of Work and in accordance with Stainless’s specifications, in such condition so as to permit continuous work by Stainless.  When foundations are part of the Proposal, it is assumed and Customer warrants that site conditions will be as described in the Customer supplied Geo-technical Report. This report shall contain information such as soil strengths, water table, unit weights and any other pertinent design and construction data. Stainless shall have the right to rely on all information furnished by Customer in the preparation of foundation drawings and the installation of foundations. Blasting, cribbing, fill, removal of obstruction planking, snow, road, building, clearance for easy access to the site, existence of swamp, sand, mud, water and frozen ground conditions that are not included in the report may cause the Contract Price to be upwardly adjusted.

G. Maintenance Window:  If any Work must be done in a maintenance window and was not identified in the Proposal, it will be considered a change in the scope of work and will result in a Change Order.

3.3 Late Payments.  Invoices shall be paid in full within 30 days from the date thereof. Any amount not paid by the due date will be deemed past due.  Customer may be assessed a late charge equal to the lesser of 1.5% per month (or portion thereof) on any past due amount or the maximum allowed by applicable law.  Additionally, Customer shall reimburse Stainless for all costs and expenses reasonably incurred by Stainless in efforts to collect past due amounts, including but not limited to, court costs and reasonable attorney’s fees.  If a payment is more than sixty (60) days past due, Stainless has the immediate right to cease work and remove the crew from the work site, including the filing of liens, pending payment. Customer shall be responsible for all mobilization, re-rigging and remobilization costs.  Additionally, such nonpayment shall have the effect of extending the number of days required to complete the Work.

3.4 Taxes and Fees.  The Contract Price does not include any applicable taxes, permits or fees.  In addition to the Contract Price, Customer shall pay all present and future foreign, federal, state and local taxes, permits and fees applicable to the construction, sale, purchase, transportation, delivery, storage or use of the deliverables included in the Work.  To the extent Stainless is required to pay such taxes or fees, Customer shall reimburse these to Stainless within 30 days after receipt of invoice or in lieu thereof, Customer shall provide a tax exemption certificate acceptable to the taxing authorities.

3.5 Security Interest To secure payment of all amounts which are or may be due to Stainless hereunder, Customer hereby: (i) grants to Stainless a security interest in all of Customer’s right, title and interest in and to all products provided by Stainless to Customer under these Terms and all “Proceeds” thereof (as such term is defined in the Uniform Commercial Code of Pennsylvania (“UCC”)) (such products and Proceeds, collectively, the “Collateral”) and

(ii) irrevocably authorizes Stainless to execute and file financing statements and any amendments thereto on Customer’s behalf with respect to such security interest.  Customer will segregate or otherwise render easily identifiable all Proceeds.  Customer will not grant a security interest in the Collateral to any other person, and will refrain from any act tending to impair Stainless’s security interest in the Collateral.  Stainless shall have all the remedies and may exercise all the rights of secured Party under the UCC or any other applicable law with respect to the Collateral.  Stainless’s rights and remedies under the UCC or otherwise pursuant to this Section are not intended to be exclusive of any other right or remedy.

Section 4: Force Majeure

Neither Party shall be liable for any failure or delay in performance under these Terms, other than for delay in the payment of money due and payable hereunder, if such failure or delay is as a result of conditions beyond its control including, but not limited to Acts of God including fire, flood, earthquake, storm, hurricane or other natural disaster, war, invasion, act of foreign enemies, hostilities regardless of whether war is declared, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or other utility service.

Section 5: Warranty

5.1 Express Warranty. For a period of twelve (12) months from the date of completion of the Work, Stainless warrants that its product and/or service provided pursuant to these Terms shall conform to the specifications and terms provided in these Terms and the Proposal, and that such product and/or service provided hereunder will be free from defects in material and workmanship, except defects in the raw materials (including steel) supplied to Stainless by others, if applicable. Stainless makes no warranty with respect to those products or components thereof included in the deliverables and not manufactured by Stainless, but agrees that Customer shall be entitled to any assignable benefits of any warranties given to Stainless by the manufacturers or suppliers of such products or components.  This warranty is valid only if all of the following conditions have been satisfied:

i. Stainless receives written notice of any claimed defect within thirty (30) days of the time Customer learns or should have learned of the defect, whichever is earlier, but in no event later than twelve (12) months from the day the Work was completed;

ii. Customer affords Stainless a reasonable opportunity to inspect and examine the alleged defect; and

iii. Stainless determines, in its sole reasonable discretion, that the product and/or service is nonconforming or is defective as to material or workmanship which is not wholly or in part due to any misuse, improper maintenance, neglect, accident, vandalism, unauthorized repair or modification, defect in the raw materials or severe weather conditions.

This limitation on the validity of warranties shall govern not only the express warranty made by Stainless herein, but also any other warranty that, contrary to the terms of these Terms is deemed or implied by law to be in effect.

5.2 Final Inspection. Stainless may provide a final inspection to verify the work has been performed according to project specifications. This final inspection, and any subsequent “punch list” is to be scheduled, performed and delivered prior to Stainless’s crew down-rigging the tower and demobilizing from the site. Stainless assumes the responsibility to notify Customer of the anticipated substantial completion at least two (2) weeks in advance. It will be Stainless’ responsibility to demonstrate that any punch list items have been completed.

5.3 Warranty Limitation. THE WARRANTY SET FORTH IN THIS SECTION “WARRANTY,” IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION “WARRANTY,” STAINLESS HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  Stainless shall not be obligated to change, modify or repair any of its Work due to a Customer change in loading configuration of the structure.  Stainless’ performance shall be judged in accordance with the specifications, designs, drawings, and other information provided to Stainless for the applicable Purchase Order prior to completion of Work and the standards and customs that were generally accepted in the tower design industry as of the date the Work was completed.  This Section “Warranty” shall survive the termination or expiration of these Terms.

Section 6: Limitations of Liability

To the fullest extent permitted by law, except with respect to the Customer’s indemnification obligations pursuant to Section  “Indemnification,” Stainless’ total liability to Customer or any third Party for any and all injuries, claims, losses, expenses or damages whatsoever arising out of or in any way related to the Work or these Terms from any cause or causes including but not limited to Stainless’ negligence, errors, omissions, strict liability, breach of contract or breach of warranty shall not exceed the total amount of the Purchase Order related to the Work from which the applicable injuries, claims, losses, expenses or damages arose.

Furthermore, Customer agrees that to the fullest extent permitted by law, except with respect to the Customer’s indemnification obligations pursuant to Section “Indemnification,” Stainless shall not be liable to Customer for any special, indirect or consequential damages whatsoever, whether caused by Stainless’ negligence, errors, omissions, strict liability, breach of contract, breach of warranty or other cause or causes whatsoever, including but not limited to, loss of use of equipment or facility, and loss of actual or anticipated profits or revenue.

This Section “Limitations of Liability” shall survive the termination or expiration of these Terms.

Section 7: Insurance

Stainless will secure and maintain at its sole cost and expense during the term of these Terms Comprehensive General Liability Insurance and Umbrella/Excess Liability Insurance in the amount of ten million dollars ($10,000,000.00), Worker’s Compensation Insurance at statutory limits and fleet and automobile insurance in the amount of one million dollars ($1,000,000.00) naming Customer as an additional insured, and, if applicable, Professional Liability in the amount of one million ($1,000,000).   Stainless will be responsible for providing insurance for or verifying the insurance of any subcontractor used to complete work under the contract.

Section 8: Events of  Default

Should either Party fail to perform any material obligation or breach any material term or covenant or condition under these Terms and fail to cure such failure of performance or breach within thirty (30) days after receipt of written notice thereof, sent in accordance with Section below, “ Notice”, such failure or breach shall be deemed an Event of Default.  The non-defaulting Party shall have the option of terminating these Terms, is entitled to recover any damages sustained as a result of the breach including, but not limited to, expectation damages, court costs and reasonable attorney’s fees and may avail themselves of any remedy available at law or in equity.   These remedies shall be cumulative and not in the alternative.  The foregoing remedies shall not include damages for actual or anticipated revenues due to loss of airtime or damage to business reputation.

Section 9: Dispute Resolution

9.1 Mediation: Prior to filing any claims (as provided below), the Parties hereto shall in good faith first attempt to negotiate a written resolution of such dispute or claim for a period not to exceed thirty (30) days from the date of receipt of a Party’s request for such negotiation.  Executives or managers of each Party who have the authorization to resolve any such dispute or claim shall conduct such negotiations.  In the event the Parties hereto cannot negotiate a written resolution to such dispute or claim during the thirty (30) day negotiation period provided hereunder, either Party may submit the matter to non-binding mediation in accordance with the provisions of this Section.  Except as otherwise agreed by the Parties hereto, the venue for any mediation shall be reasonably near the location of the majority of Work pertaining to these Terms or such other location as mutually agreed by the Parties. Each Party shall pay its own costs and expenses incurred in connection with any mediation, including legal fees, and each Party shall pay one-half the mediator’s professional fees.

9.2  WAIVER OF TRIAL BY JURY; ATTORNEYS’ FEES: IF ANY ACTION AT LAW OR IN EQUITY, INCLUDING AN ACTION FOR DECLARATORY RELIEF, IS BROUGHT TO ENFORCE OR INTERPRET THE PROVISIONS OF THESE TERMS, THE MATTER SHALL BE TRIED TO A JUDGE, AND THE PARTIES HEREBY EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY, AND THE PREVAILING PARTY SHALL BE ENTITLED TO REASONABLE ATTORNEYS’ FEES, WHICH MAY BE SET BY THE COURT IN THE SAME ACTION OR IN A SEPARATE ACTION BROUGHT FOR THAT PURPOSE, IN ADDITION TO ANY OTHER RELIEF TO WHICH THAT PARTY MAY BE ENTITLED.

Section 10: Indemnity

Each Party to these Terms agrees to indemnify, defend and hold harmless the other Party and its Affiliates, and their directors, officers, employees, agents, successors and assigns (collectively, the “Other Parties”) from and against all liabilities, losses, damages and costs (including reasonable attorneys’ fees) (collectively, “Losses”) they may suffer as the result of third Party claims, demands, actions, suits or judgments against them resulting from or arising out of: (a) the negligence, recklessness or willful misconduct on the part of the indemnifying Party; (b) the failure by the indemnifying Party to comply with applicable laws in connection with the exercise of any of its rights or the performance of any of its obligations hereunder; and/or (c) any breach of these Terms by the indemnifying Party. The foregoing indemnification obligation shall not apply to Losses to the extent resulting from or arising out of: (i) the negligence, recklessness or willful misconduct on the part of any of the Other Parties; (ii) the failure by the other Party to comply with applicable laws; (iii) any breach of these Terms by the Other Party; (iv) any action or omission of any Customer indemnitee if such Losses are to be indemnified by Stainless pursuant to this Section “Indemnity;” and/or (v) any action or omission of any Stainless indemnitee if such Losses are to be indemnified by Customer pursuant to this Section herein.

Section 11: Confidentiality

Neither Party shall not disclose confidential information that may include, but is not limited to, drawings, business, financial and technical information, proposed products and services, emails, pricing/rates, qualification forms and any other information that reasonably could be described as confidential (“Confidential Information”) to affiliates, agents, subcontractors or others without the prior written approval of the other Party.  In the event of such approval, the disclosing Party shall obtain written agreement, in a form acceptable to the Other Party, to protect confidential information provided hereunder and if requested, provide a copy of such agreement to Other Party.

Section 12: General

12.1 Section Headings.  The section headings contained in these Terms are inserted as a matter of convenience and are for reference only and in no way define, limit or describe the scope or intent of these Terms or in any way affect the interpretation of the terms and provisions hereof.

12.2 Waiver of Rights.  Neither Party’s exercise of any right hereunder, nor its delay or failure to do so, shall constitute a waiver of such right or any other right hereunder nor shall any right be deemed to have been waived unless the waiver be in writing and signed by a duly authorized officer of Stainless or Customer.

12.3 Governing Law and Venue.  The laws of the state where the Work is performed shall govern the validity, performance and enforcement of these Terms.  Any controversy, dispute or claim under, arising out of or in relation to these Terms shall be arbitrated (see Section 9 “Dispute Resolution”) or adjudicated in the state where the Work is performed.

12.4 Integration.  These Terms represents the entire agreement of the Parties with respect to the subject matter hereof.  All agreements entered into prior hereto are revoked and superseded by these Terms.  Except as expressly set forth herein, the Parties have made no representations, warranties, inducements or oral agreements.  These Terms may not be changed, modified assigned or rescinded except in writing and signed by all Parties hereto; any attempt at oral modifications of these Terms shall be null and void.

12.5 Authority.  Each Party represents by signing these Terms that they have the authority to enter into the same and binds each Party, their heirs, successors, and assigned fellow beneficiaries in trust and/or partners to the terms and conditions as herein set forth.

12.6 Cancellation. Customer may cancel the Work with notice in writing. Stainless is entitled to recovery of all expenses and financial commitments in the normal course of business, including margin and/or mark-up for the Work completed prior to receipt of notice of cancellation. Materials may be subject to a 100% re-stocking fee.

12.7 Notices.  Any notice or other communication hereunder must be given in writing and (a) delivered in person, (b) transmitted by email or (c) mailed by certified or registered mail or nationally recognized courier service, postage prepaid, receipt requested, as follows:

If to Stainless, address to:

Stainless, a division of FDH Velocitel
200 North Warner Road, Suite 215
King of Prussia, PA 19406-2886
Attn: Jon Marcusse, National Sales Manager
Phone:  214-717-2282

And copy:

FDH Infrastructure Services
6521 Meridien Drive
Raleigh, NC 27616
Attn: Legal Department
Phone:  919-755-1012

If to Customer, address to:

To the address listed on the Proposal

or to such other address or to such other person as either Party shall have last designated by such notice to the other Party.  If such notice is submitted by fax, a hard copy addressed to the appropriate Party must follow.

12.8 Relationship of the Parties.  These Terms are not intended to create, and does not create, any partnership, joint venture, agency, fiduciary, employment, or other relationship between the Parties, beyond the relationship of independent parties to a commercial contract.  Neither Party is, nor will either Party hold itself out to be, vested with any authority to bind the other Party contractually, or to act on behalf of the other Party as a broker, agent, or otherwise.

12.9 No Publicity.  Except as permitted by law, neither Party may not use the other Party’s name, or any trademark, service mark, trade name, logo or other commercial or product designations of the other Party for any purpose without the prior written consent of such other Party in each instance.  Without limiting the generality of the foregoing, unless required by law, neither Party will, without the prior written approval of the other Party, make any public statement, press release, presentation, or other announcement relating to the existence or terms of these Terms.

12.10 Counterparts.  These Terms may be executed and delivered by email, facsimile machine and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

EXHIBIT A

This exhibit contains three sample proposal letters that typify the language a Customer will see in a proposal. Each letter addresses a unique category of Work Stainless proposes to perform for Customer and does not represent all services Stainless provides. These are samples only.

(SAMPLE MODIFICATION PROPOSAL)

11/17/2017

<First Name> <Last Name>, <Title>

<Call Letters>-<Classification>, <Company>

<Address 1> <Address 2>

<City>, <State> <Zip>

Re: Proposal # ****

<OA Height> <Tower Type> Tower

Location: <Site Name>, <Site State>

Dear <First Name>,

Attached please find our proposal for materials, installation services and all-risk builders insurance to upgrade the existing tower.  This proposal is in accordance with the recommendations as outlined in structural analysis, Report #«AnalRepNum» dated «AnalRepDate», while supporting equipment as specified in accordance with TIA Standard 222-[[insert Standard letter]] to retain the original design wind load rating of [[wind speed]] MPH.

Should you have any questions regarding this proposal, or need further information at this time, please don’t hesitate to contact me at <MY:Phone>

Sincerely

 

Stainless, a business of FDH Infrastructure Services, LLC

<MY:First Name> <MY:Last Name>

<MY:Title>

Attachment

PROPOSAL: EXHIBIT “A”

<Company>, <Call Letters>

<Address 1> <Address 2>

<City>, <State> <Zip>

Attention: <First Name> <Last Name>


Engineering and Fabrication service for <Site Name> site to include:

Lot 1. Modification materials to upgrade the existing tower.

a. Provide Guy Link Plates, dampers, pins as required for FDH Infrastructure Services supplied new 1 5/16” HSS guy wire for replacement of guy level #6.

b. Design and fabrication of New Pipes to be welded to existing tower legs from 0.0’ to 73.75’ elevation.

c. Design and fabrication of new diagonals as defined below.

1227.5’-1252.5’

4 bays

d. Design and fabrication of frame for use during replacement of diagonals.

e. Design and fabrication of new horizontals as defined below.

183.8’ 1 bay

f. Design and fabrication of additional horizontal braces at the midpoint of the following diagonal bracing panels.

758.8’-808.8’ 8 bays
1033.8’-1040.8’ 1 bay
1308.8’-1383.8’ 12 bays

g. Provide Line layout, design and fabricate transmission support angles required for tower and bridge to support new 7 3/16” transmission line from TUV-28GTH-3L-R04SP-04 antenna to be located at top of tower. (Antenna, mount, transmission line and transmission line hangers to be supplied by others).

h. Design and fabrication of new Antenna platform, new horizontals and internal member to accept new TUV-28GTH-3L-R04SP-04 antenna at tower top.

i. Assembly, Installation and guy tension drawings for above mentioned items.

Lot 2. Erection Services will include installation of the above-mentioned materials.  Additional services to include:

a. (Insert from Costing)

PRICE FOR ALL MODIFICATIONS AND SERVICES «ContractAmt»

PAYMENT TERMS:

30% Down payment due upon execution of this proposal

30% Payment due thirty (30) days after down payment

20% Upon shipment of steel

Progress payments as field work progresses and invoices are received

Final balance upon completion

GENERAL NOTES:

  1. This proposal is for material and labor as stated.  Any additional work to be performed will be quoted on a cost plus or fixed price basis.
  2. Price includes temporary support while replacing diagonal or horizontal members.
  3. All work to be completed during daylight hours.
  4. Power reduction on some antennas, as well as down time, should be expected during tower modifications.
  5. Assumes no RF protective clothing is required.
  6. Assumes service crews have full access to customer’s site and tower.
  7. Erection is based on normal site access to base and guy anchors by two-wheel drive construction vehicles and the use of erection procedures and methods that have been employed in the industry for the last 50 years.  Any conditions that alter or modify those conditions shall be cause for re-negotiation.  A level, cleared area at the tower base for tower assembly and crane operation will be required.
  8. All antennas, transmission lines and mounting hardware are to be provided by customer at the time of tower services.  Customer is responsible for insuring adequate line testing and troubleshooting before the erector demobilizes from site.

Presented by:

Stainless, a business of FDH Infrastructure Services, LLC
____________________________________________________________

<MY:First Name> <MY:Last Name>, <MY:Title>

Accepted by:

<Company>

____________________________________________________________

<First Name> <Last Name>, <Title>

Or Authorized Representative

ALL PROPOSALS ARE SUBJECT TO STAINLESS TERMS AND CONDITIONS OF SALE.  BY SIGNING THIS PROPOSAL, YOU HEREBY AGREE TO BE BOUND BY SUCH TERMS AND CONDITIONS. EXCEPT FOR TERMS EXPRESSLY AGREED TO IN WRITING SIGNED BY AN AUTHORIZED STAINLESS REPRESENTATIVE, ANY TERMS THAT CONTRADICT THE PRINTED TERMS REFERENCED IN THIS PROPOSAL AND ANY PREPRINTED TERM AND CONDITION ON ANY COMPANY PURCHASE ORDER OR COMMUNICATION FOR CONDITIONS OF SALE, ARE VOID.

 

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