Terms and Conditions

The following terms and conditions govern all contracts with METROWALL, LLC (“METROWALL”).

Acceptance of all contracts with METROWALL is based on the express condition that Supplier agrees to all of the terms and conditions expressed herein. These terms and conditions represent the final and complete agreement of the parties, and no terms or conditions in any way modifying or changing the provisions stated herein shall be binding upon METROWALL unless made in writing and signed and approved by an officer or authorized person at METROWALL’s office in Rockland County, New York. No modification of any of these Terms and Conditions shall be modified by Supplier’s shipment of goods following receipt of METROWALL’s purchase order, shipping request, or similar forms containing printed terms and conditions additional to or different from the terms herein.

1. OBLIGATIONS: With respect to the labor, material, equipment and services necessary to produce the supplied materials (collectively, “Work”) to be performed and furnished by Supplier, Supplier agrees to be bound to METROWALL by each and all of the terms and provisions of the Contract Documents (as defined below), and to assume toward METROWALL all of the duties, obligations, and responsibilities that METROWALL by the Contract Documents assumes toward the Owner or Construction Manager or General Contractor. Supplier further agrees that METROWALL shall have the same rights and remedies as against Supplier as Owner or Construction Manager or General Contractor, under the terms and provisions of the Owner or Construction Manager or General Contractor, has against METROWALL with the same force and effect as though every such duty, obligation, responsibility, right or remedy were set forth herein in full. These Terms and Conditions with respect to the Work to be performed and furnished by Supplier are intended to be and shall be in addition to and not in substitution for any of the terms and provisions of the Contract Documents.

The Contract Documents (“Contract Documents”) include all of the contract documents for the Project which are hereby incorporated by reference herein by which METROWALL is bound to Owner or Construction Manager or General Contractor including, without limitation, the written agreement between METROWALL and Owner or Construction Manager or General Contractor, any general, special or supplementary conditions and all bid documents, plans, specifications, drawings, addenda, modifications and exercised alternates and all documents referred to in the Owner or Construction Manager or General Contractor contract and the Scope of Work. All liabilities incurred and obligations assumed by METROWALL under the general contract agreement/prime contract (hereinafter “prime contract”) with the Owner or Construction Manager or General Contractor are hereby assumed by the Supplier, so far as they arise out of or are connected with the Scope of Work to be performed or materials furnished under this Agreement. Supplier agrees that it shall be responsible to METROWALL in all respects and to the same extent as METROWALL is responsible to the Owner or Construction Manager or General Contractor under the prime contract/general contract with Owner or Construction Manager or General Contractor. However, in instances where these Terms and Conditions affords METROWALL additional and/or different rights or remedies with respect to the Supplier, these Terms and Conditions shall govern. Upon the Supplier’s request, METROWALL shall afford the Supplier an opportunity to review any or all of the Contract Documents, at METROWALL’s main office or at the Project site.

These Terms and Conditions and the provisions of the Contract Documents are intended to supplement and complement each other and shall, where possible, be thus interpreted. If, however, any provision of these Terms and Conditions irreconcilably conflicts with a provision of the Contract Documents, the provision(s) imposing the greater duty or obligation on Supplier shall govern.

2. DEFAULT: If Supplier defaults in the performance of its obligations hereunder or breaches any of the provisions of these Terms and Conditions, METROWALL shall be entitled, in addition to all other rights and remedies, to recover from Supplier all costs and expenses (including without limitation, attorney’s fees and court costs) incurred in enforcing the provisions of these Terms and Conditions.

3. ARBITRATION: Any claim or dispute in question between METROWALL and Supplier shall be resolved as follows:

(a) if the claim or dispute involves $10,000 or less, by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association;

(b) if the claim or dispute involves more than $10,000 then, at the sole and exclusive option of METROWALL, the claim or dispute may be submitted to arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. If the Contractor exercises this option, then the arbitration shall be held at a location within 20 miles of the project;

(c) if METROWALL decides not to submit the claim or dispute to arbitration in accordance with subpart (b) hereof, then the claim or dispute shall be decided by the state or federal court having jurisdiction where the project is located.

4. LIQUIDATED DAMAGES: If Owner or Construction Manager or General Contractor assesses damages or penalizes METROWALL because of late completion, Supplier agrees to pay the full amount of damages for all delays that are due to Supplier’s late or nonperformance or pay its prorated share.

5. INDEMNITY: To the fullest extent permitted by law, Supplier shall indemnify, defend (with counsel acceptable to METROWALL) and hold harmless METROWALL, the Contractor, Owner, and all Additional Insureds, together with all entities and individuals owning a beneficial interest in such entities and their respective officers, partners, principals members, parents, affiliates, managers, shareholders, directors, agents, employees, servants, successors and assigns (collectively, “Indemnitees”, individually, “Indemnitee”) from and against all losses, claims (including without limitation those alleging injury to third parties or damage to property of third parties), demands, causes of action, lawsuits, liens, costs, charges, fines, penalties, damages (including without limitation any personal injury, sickness, disease or death, or damage or injury to, loss of or destruction of property, and the loss of use resulting therefrom, and damage to Supplier’s Work and/or the work of others), expenses (including without limitation the deductible amount of any insurance, self-insured retention payments, attorneys’ fees and disbursements, court costs, expert witness fees and expenses, and any resulting settlement, judgment, or award), liabilities (including without limitation any economic loss suffered by the Indemnitees), obligations, actions and judgments (collectively, “Claims”), arising from, in connection with or relating to: (i) the performance (or non-performance) of the Supplier’s Work; (ii) any negligent or wrongful act or omission of the Supplier, its employees, Sub-subcontractors, representatives or other persons for whom Supplier is responsible; (iii) any breach of the Contract Documents by the Supplier, its employees, Sub-subcontractors, representatives or other persons for whom the Supplier is responsible; (iv) any claim asserted, or lien or notice of lien filed, by any Sub- subcontractor or supplier of any tier against the Project, or against any Indemnitee in connection with the Supplier’s Work; (v) any violation of Legal Requirements by the Supplier, its employees, Sub- subcontractors, representatives or other persons for whom the Supplier is responsible; (vi) means, methods, procedures, techniques, or sequences of execution or performance of the Supplier’s Work; and (vii) failure to secure and pay for permits, fee approvals, licenses, and inspections as required under the Contract Documents, or any violation of any permit or other approval of a public authority applicable to the Supplier’s Work, its employees, Sub-subcontractors, representatives or other persons for whom the Supplier is responsible. Such obligations shall arise regardless of any claimed liability on the part of an Indemnitee, provided, however, Supplier shall not be required to indemnify any Indemnitee to the extent attributable to such Indemnitee’s negligence. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any Indemnitee.

In any and all claims against any Indemnitee by any employee of the Supplier or of its Sub- subcontractors or anyone directly or indirectly employed by either the Supplier or its Sub- subcontractors or anyone for whose acts may be liable, the indemnification obligation herein shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Supplier under workers’ compensation acts, disability acts or other employee benefit acts.

No provision requiring the furnishing of insurance shall be construed to affect, impair, or excuse Supplier’s obligation to indemnify and save the Indemnitees as set forth above; any amounts payable to the Indemnitees by reason of the application of the indemnification provisions herein shall be paid promptly upon the arising of Supplier’s obligations under such provisions. If a Claim is asserted against any Indemnitee, METROWALL may withhold from any payment under this Agreement an amount sufficient to protect and indemnify the Indemnitees to the full extent required under the indemnification provisions herein. Should Supplier fail to perform its duties to defend and indemnify any of the Indemnitees as required herein, and upon written notice by METROWALL of such failure and allowing reasonable time for Supplier to cure, METROWALL and the other Indemnitees may defend or settle such claims as they deem prudent, in the exercise of reasonable judgment, and Supplier agrees to be bound by any such defense, settlement, judgment, or award that may result from such action by Contractor or the other Indemnitees.

6. REGULATIONS: Supplier agrees to observe and comply with all provisions and requirements of the Occupational Safety and Health Act of 1970 (“OSHA”), Executive Order 11246 as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 and Section 503 of the Rehabilitation Act of 1973 concerning qualified handicapped individuals, in performance of the Work under these Terms and Conditions. Supplier agrees to indemnify and hold harmless METROWALL from all penalties and damages resulting from failure of Supplier to comply with these regulations.

7. LIEN WAIVERS: As a prerequisite for payments, Supplier shall provide, in form satisfactory to METROWALL, lien waivers in the amount of the payment and affidavits covering its subcontractors and suppliers for completed Work.

8. SUPPLIER’S WAIVER OF CONSEQUENTIAL DAMAGES: Supplier waives claims against METROWALL for consequential damages arising out of, or related to these Terms and Conditions, including but not limited to losses of revenue, business, reputation, and profit. METROWALL does not waive claims against Supplier for consequential damages. Further, nothing contained in this paragraph shall be construed to preclude the imposition of liquidated damages against the Supplier.

9. ACCEPTANCE OF AGREEMENT: Although Supplier may utilize its own form of sale invoice or other form acknowledging acceptance of the Work, said invoice or other form shall not apply to the Work and materials provided hereunder and all terms and conditions in such invoice or other form shall be null, void and of no effect. Acceptance of these Terms and Conditions shall be limited to the terms and conditions stated herein, and any additional or different terms, conditions or instructions proposed by Supplier are rejected by METROWALL unless expressly assented to in writing by METROWALL. Supplier shall be bound by these Terms and Conditions when it executes and delivers a copy or when it delivers or performs any of the Work hereunder.

10. TITLE, RISK OF LOSS: Title shall pass through METROWALL to owner upon METROWALL’s receipt of materials at the project site, subject to METROWALL’s right to inspect and inventory materials. Risk of loss of all materials shall remain on the Supplier until receipt and acceptance by METROWALL at the project site.

11. SCHEDULE: All materials must be delivered in accordance with the lead times provided by the Supplier.

12. SUBMITTALS: All materials on this project require submittals per the terms of the project specifications. This agreement is based upon materials that meet the requirements and products specified per the terms of the project specifications. No substitutions are allowed without prior written approval and this agreement is contingent upon written approval of the submittals by the owner or their design consultant. Failure by the supplier to deliver submittals in a timely and complete submission or failure to obtain written approval of the submittals are grounds for METROWALL to cancel and terminate the agreement without payment of any kind to the supplier.

13. PAYMENT TERMS: The Supplier hereby acknowledges that it relies solely upon the credit of the Owner or Construction Manager or General Contractor, not METROWALL, for payment of its Work and Materials and that receipt of payment from the Owner, by METROWALL, for the Supplier’s work is a condition precedent to payment by METROWALL to the Supplier.

10% due from METROWALL to Supplier at signing of Contract. Monthly requisition based on progress starting 30 days after contract signing. Supplier is only to requisition for completed fabricated materials approved by METROWALL.

14. RETAINAGE: Ten percent (10%) of each amount for payment requested by Supplier shall be retained by METROWALL until final payment.

15. DELAY DAMAGES: If METROWALL is delayed from completing its work on the Project because of Supplier’s failure to provide the fabricated materials in accordance with these Terms and Conditions, METROWALL shall be entitled to claim monetary damages for such delay.

16. TERMINATION:

16.1 Should the Supplier fail at any time to supply a sufficient number of properly skilled workmen or sufficient materials and equipment of the proper quality, or fail in any of the agreements herein contained, METROWALL may at its option, provide such labor, materials and equipment and to deduct the cost thereof, together with the loss or damage occasioned thereby, from any money then due or thereafter to become due to the Supplier under this Agreement.

16.2 If the Subcontractor at any time shall refuse or neglect to supply sufficient properly skilled workmen or materials or equipment of the proper quality and quantity, or fail in any respect to prosecute Supplier ‘s Work with promptness and diligence, or fail in the performance in any of the covenants herein contained or be unable to meet its debts as they mature, METROWALL may at its option at any time after serving written notice of such default with direction to cure in a specific period, but not less than two (2) working days, and the Supplier fails to cure the fault, terminate the Supplier by delivering written notice of termination to the Supplier. Thereafter, METROWALL may take possession of the plant and work, materials, at the building site, and through itself or others provide labor, equipment, and materials to prosecute Supplier ‘s Work on such terms and conditions as shall be deemed necessary, and shall deduct the cost thereof, including without restriction thereto all charges, expenses, losses, costs damages, attorney’s fees, incurred as a result of the Supplier ‘s failure to perform, from any money due or thereafter to become due to the Supplier under this Agreement.

16.3 If METROWALL terminates these Terms and Conditions, the Supplier shall not be entitled to any further payments under this agreement until Supplier’s Work has been completed and accepted by Owner or Construction Manager or General Contractor, and payment has been received by METROWALL from Owner or Construction Manager or General Contractor with respect thereto. In the event that the unpaid balance due exceeds METROWALL’s cost of completion, the difference shall be paid to the Supplier, but if such expense exceeds the balance due, the Supplier agrees promptly to pay the difference to METROWALL.

Supplier warrants that all materials and equipment furnished under this Agreement shall be new, unless otherwise specified, of good quality, in conformance with the Contract Documents, and free from defective workmanship and materials. The Supplier agrees to promptly make good without cost to METROWALL, Owner or Contractor any and all defects due to faulty workmanship and/or materials which may appear within the guarantee or warranty period so established in the Contract Documents; and if no such period be stipulated in the Contract Documents, then such guarantee shall be for a period of one year from the date of completion and acceptance of the project by the Owner. The Supplier further agrees to execute any special guarantees as provided by the terms of the Contract Documents, prior to final payment. Warranties shall commence on the date of Substantial Completion of the Subcontract Work or a designated portion thereof.

17. WARRANTY: Supplier warrants that all materials and equipment furnished under this Agreement shall be new, unless otherwise specified, of good quality, in conformance with the Contract Documents, and free from defective workmanship and materials. The Supplier agrees to promptly make good without cost to METROWALL any and all defects due to faulty workmanship and/or materials which may appear within the guarantee or warranty period so established in the Contract Documents; and if no such period be stipulated in the Contract Documents, then such guarantee shall be for a period of one year from the date of completion and acceptance of the project by the Owner. The Supplier further agrees to execute any special guarantees as provided by the terms of the Contract Documents, prior to final payment. Warranties shall commence on the date of Substantial Completion.

18. OBLIGATIONS DERIVATIVE. The Supplier binds itself to METROWALL under this Agreement to all obligations directly or indirectly applicable to the Supplier’s Work or performance to which METROWALL is bound to the Owner or Construction Manager or General Contractor under the Contract Documents or otherwise by Laws, including, without limitation, provisions in the Contract Documents pertaining to the scope, performance and quality of the work, the scheduling limitations and obligations, and the time-frame within which the work must be completed.

19. COMPLIANCE WITH LAWS, REGULATIONS, ETC. The Supplier agrees that all work, materials and equipment to be furnished, supplied or performed by the Supplier as part of this Agreement and without any additional compensation, shall strictly comply with all Federal, State, Local, and Municipal laws, as well as the rules, regulations, statutes, ordinances, and directives of any other governing jurisdictions and authorities and union rules (hereinafter “Laws”). If the Supplier discovers any variance between this Agreement, including the Contract Documents, and any of the governing Laws, the Supplier shall notify METROWALL promptly, in writing, and make the necessary changes before proceeding with its work. To the fullest extent permitted by law, the Supplier agrees to indemnify and save METROWALL, Contractor, Owner, Architect/Engineer and their respective agents, employees, representatives and all additional insureds harmless from and against any and all claims, loss, damages and/or expense caused or occasioned by its failure to fully comply with this paragraph. The Supplier shall comply with all environmental, safety and health laws, and shall take all necessary precautions for the safety of all employees and all other persons who may be affected thereby. In an emergency affecting the safety of persons or property, the Supplier shall act immediately to prevent threatened damage, injury, and/or loss.

20. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement. The Supplier shall assure that the performance of the Supplier’s Work, whether performed by the Supplier itself or by Sub-subcontractors, is prosecuted in such manner that the entire Project and the phase in which the Supplier’s Work is included is completed within the time allowed under the Contract Documents and in accordance with the Project Schedule set forth by the Owner or Construction Manager or General Contractor and as same may be updated by the Owner or Construction Manager or General Contractor from time to time. If necessary to assure such prompt performance, the Supplier shall accelerate its performance, including working overtime or double shifts, if necessary, at its own cost, to make up any delays caused by its own actions or omissions or those of its subcontractors or suppliers. If the Supplier fails to do so, METROWALL may itself take whatever actions it deems necessary to expedite material deliveries or completion of work, and charge the resulting costs to the Supplier.

21. CHANGE ORDERS. METROWALL, at any time, without invalidating this Agreement, may order changes in the work by written Change Order (“Change Order”). No alteration, addition, omission or change shall be made in the Supplier’s Work, or in the method or manner of performance of Supplier’s Work, except upon the written Change Order of the Contractor. In no event may the Price be changed other than by written Change Order signed by METROWALL. If the Supplier shall proceed with any changed or extra work without METROWALL’s prior written approval, the Supplier shall proceed at its own risk and expense. Any change or adjustment in the Price and/or time of performance by virtue of a Change Order shall be specifically stated in the Change Order. No Change Order shall vary, abrogate, avoid, or otherwise affect the terms, conditions and provisions of this Agreement except as specifically.

22. NON-CIRCUMVENTION. The Supplier will not, in any manner, circumvent, or attempt to circumvent METROWALL by entering into any direct or indirect negotiations, communications, or transactions, or solicit or accept any business or financing from or for, any parties, contacts or sources introduced (“Introduced Party”) to the Supplier by METROWALL, without the express prior written consent of METROWALL. The Supplier will not disclose to any third parties any names, addresses, telephone numbers, fax numbers, or email addresses of any Introduced Party, and the Supplier recognizes that such information about any Introduced Party is the exclusive and valuable property of METROWALL. The Supplier will not, directly or indirectly, circumvent METROWALL to market, sell, supply or distribute (or to assist any other parties to manufacture, market, sell or distribute) any materials, goods or services to any Introduced Party.

23. LAWS AND EFFECT. This Agreement shall be governed by the laws of New York without regard to New York conflict of law principles. The Supplier hereby submits itself to New York’s jurisdiction and agrees to accept service of process by regular mail as if it were personally served within New York State. Exclusive venue for any judicial proceeding shall be in either state or federal court within the State of New York, County of Rockland.

24. ENTIRE AGREEMENT. This Agreement is solely for the benefit of the signatories hereto and represents the entire and integrated agreement between the parties hereto and supersedes all prior or contemporaneous negotiations, representations, or agreements, either written or oral.

25. OTHER CONTRACTS. If one or more other contracts now or hereafter exist between METROWALL and Supplier or any affiliates or subsidiaries of the parties concerning this or any other Project, a breach by the Supplier of any such contract may be deemed by METROWALL to be a breach of all such contracts. METROWALL may terminate any or all such contracts so breached or may withhold money due or to become due on any and all such contracts and apply then to the payment of damages sustained on any and all such contracts.

25. TERMINATION FOR CONVENIENCE. This Agreement may be terminated by METROWALL in whole or in part at any time. If the Agreement is terminated before performance is completed, the Supplier will be paid only for that work satisfactorily delivered to the Project for which costs can be substantiated. Such payment, however, may not exceed an amount which is the same percentage of the Contract price as the amount of work satisfactorily performed.

27. WRONGFUL EXERCISE. If METROWALL terminates this Agreement for default, and it is determined that such termination was wrongful, then the termination shall be deemed to have been one for convenience, and the Supplier’s sole remedy shall be as provided for in the TERMINATION FOR CONVENIENCE section of this Agreement.

28. ATTORNEY’S FEES AND COSTS. The Supplier shall be liable for any damages incurred by METROWALL as a consequence of the failure by Supplier to comply with this Agreement, including METROWALL’s attorney’s fees and costs. Likewise, Supplier shall be liable for METROWALL’s attorney’s fees and costs in connection with enforcing terms of this Agreement, including in any lawsuit and/or arbitration proceeding in connection with damages incurred by METROWALL as a result of Supplier’s beach of this Agreement.

Supplier acknowledges that these Terms and Conditions is not subject to the terms and conditions of any other proposal.

THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.