GENERAL TERMS & CONDITIONS OF SALE
Effective April 1, 2025
These Terms and Conditions (these “Terms and Conditions”) govern each sale of Materials (as defined below) by Sims Bros., Inc. (“Sims Bros.”) to you (“Buyer”).
​
1. Exclusive Terms and Conditions; Acceptance.
The parties intend for these Terms and Conditions, together with each sales contract (or other written agreement in any form) and invoice issued by Sims Bros. (each a “Sales Contract” and “Invoice,” and collectively with these Terms and Conditions, the “Agreement”), to exclusively govern and control each of the parties’ respective rights and obligations regarding the sale of Materials. Buyer’s acceptance of each Sales Contract and purchase of Materials is strictly limited to the terms and conditions in the Agreement. Without limiting the foregoing, any additional or different terms contained in any purchase order or other request or communication by Buyer pertaining to the sale of Materials, or any attempt to modify, supersede, supplement, or otherwise alter the Agreement, will not modify the Agreement nor be binding on the parties. The Agreement becomes binding when Buyer either accepts a Sales Contract, delivers a purchase order, or otherwise authorizes Sims Bros. to proceed with providing Materials.
​
2. Sale of Materials, Price, and Payment.
​
(a) Sims Bros. shall sell to Buyer, and Buyer shall purchase from Sims Bros., the materials or goods set forth on each Sales Contract (the “Materials”) at the prices set forth on the applicable Sales Contract (the “Prices”). All Prices are listed in U.S. Dollars. All Prices are exclusive of all sales, use, excise, and similar taxes, and all customs, duties, import taxes, and charges of any kind imposed by any governmental authority on the purchase of the Materials.
​
(b) Sims Bros. may, in its sole discretion, offer credit to Buyer, which may be revoked at any time. Credit may be contingent upon, among other things, Buyer’s completion of a credit application and results satisfactory to Sims Bros. If credit is offered, payment of the Prices and any other applicable costs shall be due within 30 days of the date of shipment or placement with the carrier, unless otherwise specified in the applicable Sales Contract or other writing between the parties. In cases where credit is not offered, payment in-full will be required before the Materials will be released to Buyer. At Sims Bros.’ discretion, Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Sims Bros. for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. Further, if payment of the Prices or any part of the Prices is not received by the due date, Sims Bros. shall be entitled to require payment in advance of shipment in relation to any Materials not previously shipped, and to refuse to make shipment of any unshipped Materials without incurring any liability whatsoever to Buyer for non-shipment or any delay in shipment.
​
(c) Orders cannot be cancelled or modified without Sims Bros. prior written approval once Sims Bros. accepts a purchase order from Buyer or when Sims Bros. begins processing Buyer’s order, whichever occurs first. Sims Bros. will not be required to take back any Materials unless otherwise pre-authorized in writing by Sims Bros., in its sole discretion, and any credit given is subject to reasonable restocking fees. If Sims Bros. agrees to accept the return of Materials, Buyer will be responsible for all shipping and handling charges. Sims Bros. will not be obliged to accept any Materials that are damaged in any way, and credit will only be given for Materials that are in saleable condition, as determined by Sims Bros.
​
(d) Buyer shall not, and acknowledges that it will have no right, under the Agreement, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed to Sims Bros. against any other amount owed to it by Sims Bros.
​
3. Delivery.
​
(a) The Materials will be shipped on or around the estimated ship date mutually agreed upon by the parties. The Invoice will reflect the actual shipping date. Sims Bros. shall not be liable for any delays, loss, or damage in transit. Freight terms for shipment are F.O.B. shipping point, unless otherwise agreed to by Sims Bros. in writing. Sims Bros. shall ship the Materials to the location mutually agreed upon in writing (the “Delivery Point”) using Sims Bros.’ standard methods for packaging and shipping the Materials. Sims Bros. may, in its sole discretion, without liability or penalty, make partial shipments of the Materials to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Materials shipped whether the shipment is in whole or partial fulfilment of all of the Materials set forth on the Buyer’s purchase order.
​
(b) If for any reason Buyer fails to accept delivery of or pick up, as the case may be, any of the Materials, or if Sims Bros. is unable to deliver the Materials because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss of the Materials shall pass to Buyer; (ii) the Materials shall be deemed to have been delivered; and (iii) Sims Bros., at its option, may store the Materials until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
​
4. Title and Risk of Loss.
Title and risk of loss passes to Buyer upon shipment or placement of the Materials to the carrier, unless otherwise agreed to by Sims Bros. in writing. As collateral security for the payment of the Prices and all other amounts due under the Agreement, Buyer hereby grants to Sims Bros. a lien on and security interest in and to all of Buyer’s right, title, and interest in, to, and under the Materials, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Ohio Uniform Commercial Code.
​
5. Inspection.
Buyer agrees to inspect the Materials within 24 hours after delivery (the “Inspection Period”). Buyer shall notify Sims Bros. within the Inspection Period of any material that does not conform to the specifications or grade as agreed to in the Sales Contract and provide Sims Bros. an opportunity to inspect within 48 hours after delivery any alleged nonconforming Materials prior to any comingling, blending or action which affects the original state of the Materials as they were delivered. Buyer’s failure to notify Sims Bros. within the Inspection Period or allow such inspection will constitute Buyer’s acceptance of the Materials
.
6. No Warranty.
Notwithstanding anything to the contrary, all Materials are sold “AS IS,” and Sims Bros. makes no warranty whatsoever, including, without limitation, any warranty of merchantability or fitness for a particular purpose, whether express or implied, by law, course of dealing, course of performance, usage of trade or otherwise.
​
7. Limitation of Liability.
​
(a) TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL SIMS BROS. BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, THE MATERIALS OR IN CONNECTION WITH ANY BREACH UNDER THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SIMS BROS.’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE MATERIALS OR IN CONNECTION WITH ANY BREACH UNDER THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT, (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SIMS BROS. FOR THE MATERIALS DIRECTLY RELATED TO THE LIABILITY. SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT BE ALLOWED IN YOUR JURISDICTION AND MAY NOT APPLY TO YOU. THE TERMS OF THIS LIMITATION OF LIABILITY WILL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
​
(b) Without limiting the generality of the foregoing, Buyer assumes all risk and liability for the results obtained by the use of the Materials, whether in terms of operating costs, general effectiveness, success, or failure, and regardless of any oral or written statements made by Sims Bros., by way of technical advice or otherwise, related to the use of the Materials.
​
(c) Any cause of action brought by Buyer arising from the sale, use, or performance of the Materials must be commenced within one year after the cause of action accrues.
​
8. Compliance with Law.
​
Buyer is in compliance with and will comply with all applicable federal, state, local, and foreign laws, regulations, and ordinances. Buyer has and will maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to own and use the Materials and carry out its obligations under the Agreement.
​
9. Indemnification.
​
To the greatest extent permitted under applicable law, Buyer shall indemnify, defend and hold harmless Sims Bros., its affiliates, and their respective shareholders, officers, directors, employees, agents, affiliates, successors, and assigns (each an “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, fees, or expenses of whatever kind, including reasonable attorneys’ fees, and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, in any way relating to a claim arising out of or occurring in connection with Buyer’s (a) handling or use of the Materials, (b) negligence or willful misconduct, or (c) breach of the Agreement. Buyer will not enter into any settlement without the Indemnified Party’s prior written consent, which will not be unreasonably withheld.
​
10. Insurance.
Buyer will maintain liability insurance with commercially reasonable limits and in commercially reasonable amounts for death, bodily injury and property damage and shall maintain such insurance for a period of at least two years following its last purchase of Materials. This insurance shall be written by a reputable, financially secure insurance company. Upon request, Buyer shall provide verification of this insurance coverage by submitting a certificate of insurance to Sims Bros. Buyer’s liability under the Agreement shall not be limited to the sum insured.
​
11. Termination.
In addition to any remedies that may be provided in the Agreement, Sims Bros. may terminate all Sales Contracts and purchase orders, including those previously accepted by Sims Bros., with immediate effect and without incurring any liability to Buyer, if Buyer: (i) fails to pay any amount when due under the Agreement; (ii) has not otherwise performed or complied with any of the terms of the Agreement; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
​
12. Confidential Information.
All non-public, confidential, and proprietary information of Sims Bros., however disclosed, is confidential, and may be used by Buyer solely for the use of performing hereunder and may not be disclosed or copied unless authorized by Sims Bros. in writing. Upon Sims Bros.’ request, Buyer shall promptly return all documents and other materials containing Sims Bros.’ confidential information. Sims Bros. shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Buyer shall not use Sims Bros.’ name or trademarks without Sims Bros.’ prior written consent.
​
13. Choice of Law and Forum.
The Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio, without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of or related to the Agreement, or the matters contemplated under the Agreement, shall be instituted exclusively in the federal or state courts located in Columbus, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens.
​
14. Cumulative Remedies.
All rights and remedies of Sims Bros. provided in the Agreement are cumulative and not exclusive, and the exercise by Sims Bros. of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.
​
15. Attorneys’ Fees.
In any dispute concerning the Materials or the Agreement, if Sims Bros. is the prevailing party, Sims Bros. shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees and expenses, costs of investigation, costs of any accounting or other professional advisers engaged to assist Sims Bros., and other reasonable out-of-pocket costs, in addition to any other relief to which Sims Bros. may be entitled.
​
16. Assignment.
Buyer shall not assign or transfer any of its rights or obligations under the Agreement without the prior written consent of Sims Bros. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations under the Agreement.
​
17. Entire Agreement; Amendments.
The Agreement constitutes the entire agreement between the parties and supersedes all other communications, oral and written, between the parties relating to the subject matter hereof. Sims Bros. may amend, modify or supplement these Terms and Conditions from time to time. Buyer’s issuance of a purchase order or acceptance of a Sales Contract shall be deemed Buyer’s acceptance of and agreement to be bound by the version of these Terms and Conditions in effect at that time.
​
18. Survival.
The provisions set forth in the Agreement that by their nature may reasonably be presumed to have been intended to survive any termination or expiration, shall survive any termination or expiration of the Agreement.
​
19. Independent Contractor.
Each party shall be considered to be an independent contractor under the Agreement. The relationship between the parties shall not be construed to be that of employer and employee, nor to constitute a partnership, joint venture, or agency of any kind. Neither party shall have the right to bind the other party to any contract or other commitment.
​
20. Third Party Beneficiaries.
Except as provided for in Section 9, no provision of these Terms and Conditions is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties and their respective successors and permitted assigns.
​
21. Severability.
If any term or provision of these Terms and Conditions are invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
​
22. Waiver.
No waiver by Sims Bros. of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by Sims Bros. No waiver by Sims Bros. shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.
​
23. Force Majeure.
Any delay or failure of Sims Bros. to perform its obligations under the Agreement will be excused if the delay or failure was caused by an event or events beyond Sims Bros.’ control (which events may include, without limitation, natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities). Delivery time and method shall be extended and permitted until the force majeure event has ceased.
​
24. Notices.
Any notices under or pursuant to the Agreement will be deemed duly sent when delivered to the addresses set forth in the Sales Contract in person, by courier, by registered or certified mail, return receipt requested, by FedEx or UPS, or by email to an address specified in writing by the receiving party (with confirmation of receipt).
GENERAL TERMS & CONDITIONS OF PURCHASE
Effective April 1, 2025
These Terms and Conditions (these “Terms and Conditions”) govern each purchase of Materials (as defined below) by Sims Bros., Inc. (“Sims Bros.”) from you (“Seller”).
​
1. Exclusive Terms and Conditions.
The parties intend for these Terms and Conditions, together with each sales contract (or other written agreement in any form) or purchase order issued by Sims Bros. (each a “Sales Contract”), to exclusively govern and control each of the parties’ respective rights and obligations regarding the purchase of Materials. Seller’s acceptance of each Sales Contract and sale of Materials is strictly limited to the terms and conditions in the Agreement. Without limiting the foregoing, any additional or different terms contained in any quotation, sales order, invoice, or other request or communication by Seller pertaining to Materials, or any attempt by Seller to modify, supersede, supplement, or otherwise alter the Agreement, will not modify the Agreement or be binding on the parties. The Agreement becomes binding when Seller either accepts a Sales Contract, delivers an invoice, or otherwise proceeds with providing the Materials.
​
2. Sale of Materials, Price and Payment.
​
(a) Seller shall sell to Sims Bros., and Sims Bros. shall purchase from Seller, the materials or goods set forth on each Sales Contract (the “Materials”), at the prices (the “Prices”) and in accordance with the payment terms set forth in the Sales Contract. The Prices include all applicable taxes and duties, except state and local sales and use taxes, which by statute may be passed on to Sims Bros. Such sales and use taxes shall be separately itemized in Seller’s invoice.
​
(b) Sims Bros. may cancel a Sales Contract at any time prior to Seller’s acceptance of a Sales Contract. Seller may not, without the prior written consent of Sims Bros., cancel a Sales Contract after it accepts a Sales Contract. Vendor will be deemed to have accepted a Sales Contract once it accepts the Sales Contract in writing, begins performing under the Sales Contract, or it fails to reject the Sales Contract within three business days after receipt of the Sales Contract, whichever occurs first.
​
(c) Sims Bros. shall have the right to make, from time to time, changes as to destination, specifications, grade, quantity, and delivery schedule of Materials covered by any Sales Contract. Seller shall promptly notify Sims Bros. when such changes affect price or other terms and shall request Sims Bros.’ written authorization to modify any Sales Contract accordingly. Claims for adjustments under this clause must be asserted within 30 days from the date of receipt of notification of such changes.
​
(d) Sims Bros. may set off any amount owing at any time from Seller to Sims Bros. (or any of Sims Bros.’ affiliates and subsidiaries) against any amount payable by Sims Bros. to Seller.
​
3. Shipping and Delivery.
​
(a) Time is of the essence for the fulfillment of each Sales Contract. Seller will deliver Materials by the delivery date set forth on the Sales Contract (the “Delivery Date”). Notwithstanding anything to the contrary, if Materials are not received by Sims Bros. by the Delivery Date, Seller shall ship the Materials via expedited shipping and pay for all costs associated with the expedited shipping. If Seller for any reason does not complete delivery of all Materials within the applicable Delivery Date, Sims Bros. may, at its option, either approve the revised delivery schedule, reduce the total quantity of Materials covered by the applicable Sales Contract, reduce the price pro rata, or terminate the applicable Sales Contract by notice to Seller as to stated items not yet shipped and purchase substitute items elsewhere and charge Seller with any loss sustained, without incurring any liability whatsoever for any such revision, reduction, or termination. Deliveries of Materials in advance of the specified Delivery Date are prohibited without Sims Bros.’ prior written consent.
​
(b) All shipments will be made without charge for packaging or storage unless otherwise agreed in writing by Sims Bros. Seller shall use the carriers selected by Sims Bros. if Sims Bros. so requests. Sims Bros.’ order numbers must be plainly marked on all packages, packing slips, bills of lading and shipping orders.
​
(c) Seller shall be liable for any delays, loss, or damage in transit. Seller shall deliver Materials to the location set forth on the Sales Contract (the “Delivery Point”) using methods mutually agreed upon by the parties in writing for packaging and shipping.
​
4. Title and Risk of Loss.
Title and risk of loss passes to Sims Bros. upon delivery of Materials at the Delivery Point. Without limiting the foregoing, Seller shall be responsible for proper packaging, loading, and tie-down to prevent damage during transportation.
​
5. Inspection and Rejection.
Sims Bros. shall inspect Materials within a reasonable period of time after receipt (“Inspection Period”) and inform Seller of any Nonconforming Deliverables. “Nonconforming Deliverables” means Materials delivered that are (a) damaged, (b) not in conformance with the specifications or grade set forth on the Sales Contract or (c) in a quantity different than the quantity set forth in the Sales Contract. Sims Bros.’ weight and count will be accepted as final and conclusive. At Sims Bros.’ option, Seller shall either (i) replace the Nonconforming Deliverables with conforming Materials, or (ii) refund the pro-rata Price for the Nonconforming Deliverables. Payment shall not constitute Sims Bros.’ acceptance of the Materials nor impair Sims Bros.’ right to inspect or test the Materials or exercise any of its remedies.
​
6. Warranties.
Seller warrants to Sims Bros. that the Materials (a) will not violate any applicable laws or regulations; (b) will be free from defects in title; and (c) will be merchantable and fit for the general and particular purpose and use intended. With respect to any defective Materials, Seller shall, at Sims Bros.’ option, either: (a) replace such Materials or (b) refund the pro-rata price for such Materials. Notwithstanding anything to the contrary, the remedies stated in this Section are in addition to, and not in lieu of, any different or additional remedies otherwise available to Sims Bros.
​
7. LIMITATION OF LIABILITY.
TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL SIMS BROS. BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, THE MATERIALS OR IN CONNECTION WITH ANY BREACH UNDER THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SIMS BROS.’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE MATERIALS OR IN CONNECTION WITH ANY BREACH UNDER THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT, (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY SIMS BROS. FOR THE MATERIALS DIRECTLY RELATED TO THE LIABILITY. SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT BE ALLOWED IN YOUR JURISDICTION AND MAY NOT APPLY TO YOU. THE TERMS OF THIS LIMITATION OF LIABILITY WILL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
​
8. Compliance with Laws.
Seller is in compliance with and will comply with all applicable federal, state, local, and foreign laws, regulations, and ordinances. Seller has and will maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to sell the Materials and carry out its obligations under the Agreement.
​
9. Indemnification.
To the greatest extent permitted under applicable law, Seller shall indemnify, defend, and hold harmless Sims Bros., its affiliates and their respective equity holders, directors, officers, employees, agents, affiliates, successors, and assigns (each an “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, fees, or expenses of whatever kind (including reasonable attorneys’ fees), and the costs of enforcing any right to indemnification under the Agreement, in any way relating to a claim arising out of or occurring in connection with Seller’s (a) negligence or willful misconduct, (b) breach of any representation, warranty, or covenants in the Agreement, or (c) violation of applicable laws, regulations, or ordinances. Seller will not enter into any settlement without the Indemnified Party’s prior written consent, which will not be unreasonably withheld.
​
10. Insurance.
Seller will maintain liability insurance in commercially reasonable amounts for death, bodily injury, property damage, and Material recalls and shall maintain such insurance for a period of at least two years following the last sale of Materials. This insurance shall be written by a reputable, financially secure insurance company and shall name Sims Bros. as an additional insured. Upon request, Seller shall provide verification of this insurance coverage by submitting a certificate of insurance to Sims Bros. Seller’s liability under the Agreement shall not be limited to the sum insured. Seller shall provide Sims Bros. with 30 days’ written notice prior to any cancellation or material change to this liability insurance.
​
11. Termination.
In addition to any remedies that may be provided in the Agreement, Sims Bros. may terminate all Sales Contracts, with immediate effect and without incurring any liability to Seller, if Seller: (i) fails to pay any amount when due under the Agreement; (ii) has not otherwise performed or complied with any of the terms of the Agreement; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
​
12. Confidential Information.
All non-public, confidential, and proprietary information of Sims Bros., however disclosed, is confidential, and may be used by Seller solely for the use of performing hereunder and may not be disclosed or copied unless authorized by Sims Bros. in writing. Upon Sims Bros.’ request, Seller shall promptly return all documents and other materials containing Sims Bros.’ confidential information. Sims Bros. shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party. Seller shall not use Sims Bros.’ name or trademarks without Sims Bros.’ prior written consent.
​
13. Choice of Law and Forum.
The Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio, without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of or related to the Agreement, or the matters contemplated under the Agreement, shall be instituted exclusively in the federal or state courts located in Columbus, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens.
​
14. Cumulative Remedies.
All rights and remedies of Sims Bros. provided in the Agreement are cumulative and not exclusive, and the exercise by Sims Bros. of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.
​
15. Attorneys’ Fees.
In any dispute concerning the Materials or the Agreement, if Sims Bros. is the prevailing party, Sims Bros. shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees and expenses, costs of investigation, costs of any accounting or other professional advisers engaged to assist Sims Bros., and other reasonable out-of-pocket costs, in addition to any other relief to which Sims Bros. may be entitled.
​
16. Assignment.
Seller shall not assign or transfer any of its rights or obligations under the Agreement without the prior written consent of Sims Bros. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Seller of any of its obligations under the Agreement.
​
17. Entire Agreement; Amendment.
The Agreement constitutes the entire agreement between the parties and supersedes all other communications, oral and written, between the parties relating to the subject matter hereof. Sims Bros. may amend, modify or supplement these Terms and Conditions from time to time. Seller’s acceptance of a Sales Contract shall be deemed its acceptance of and agreement to be bound by the version of these Terms and Conditions in effect at that time.
​
18. Survival.
The provisions set forth in the Agreement that by their nature may reasonably be presumed to have been intended to survive any termination or expiration, shall survive any termination or expiration of the Agreement.
​
19. Independent Contractor.
Each party shall be considered to be an independent contractor under the Agreement. The relationship between the parties shall not be construed to be that of employer and employee, nor to constitute a partnership, joint venture or agency of any kind. Neither party shall have the right to bind the other party to any contract or other commitment.
​
20. Third Party Beneficiaries.
Except as provided for in Section 9, no provision of the Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties and their respective successors and permitted assigns.
​
21. Severability.
If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement nor invalidate or render unenforceable such term or provision in any other jurisdiction.
​
22. Waiver.
No waiver by Sims Bros. of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by Sims Bros. No waiver by Sims Bros. shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.
​
23. Notices.
Any notices under or pursuant to the Agreement will be deemed duly sent when delivered to the addresses set forth in the Sales Contract in person, by courier, by registered or certified mail, return receipt requested, by FedEx or UPS, or by email to an address specified in writing by the receiving party (with confirmation of receipt).
TRIAD GENERAL TERMS & CONDITIONS OF PURCHASE
Effective April 1, 2025
These Terms and Conditions (these “Terms and Conditions”) govern each purchase of Services (as defined below) by Triad Transport, Inc. (“Triad”) from you (“Provider”).
​
1. Exclusive Terms and Conditions.
The parties intend for these Terms and Conditions, together with each sales contract (or other written agreement in any form) or purchase order issued by Triad (each a “Sales Contract”), to exclusively govern and control each of the parties’ respective rights and obligations regarding the purchase of Services. Provider’s acceptance of each Sales Contract and performance of Services is strictly limited to the terms and conditions in the Agreement. Without limiting the foregoing, any additional or different terms contained in any quotation, sales order, invoice, or other request or communication by Provider pertaining to Services, or any attempt by Provider to modify, supersede, supplement, or otherwise alter the Agreement, will not modify the Agreement or be binding on the parties. The Agreement becomes binding when Provider either accepts a Sales Contract, delivers an invoice, or otherwise proceeds with performing the Services.
​
2. Purchase of Services, Price and Payment.
​
(a) Provider shall perform for Triad, and Triad shall purchase from Provider, the Services or goods set forth on each Sales Contract (the “Services”), at the prices (the “Prices”) and in accordance with the payment terms set forth in the Sales Contract. The Prices include all applicable taxes and duties, except state and local sales and use taxes, which by statute may be passed on to Triad. Such sales and use taxes shall be separately itemized in Provider’s invoice.
​
(b) Triad may cancel a Sales Contract at any time prior to Provider’s acceptance of a Sales Contract. Provider may not, without the prior written consent of Triad, cancel a Sales Contract after it accepts a Sales Contract. Provider will be deemed to have accepted a Sales Contract once it accepts the Sales Contract in writing, begins performing under the Sales Contract, or it fails to reject the Sales Contract within three business days after receipt of the Sales Contract, whichever occurs first.
​
(c) Triad shall have the right to make, from time to time, changes as to destination, specifications, quantity, and delivery schedule of Services covered by any Sales Contract. Provider shall promptly notify Triad when such changes affect price or other terms and shall request Triad’s written authorization to modify any Sales Contract accordingly. Claims for adjustments under this clause must be asserted within 30 days from the date of receipt of notification of such changes.
​
(d) Triad may set off any amount owing at any time from Provider to Triad (or any of Triad’s affiliates and subsidiaries) against any amount payable by Triad to Provider.
​
3. Performance Timing.
Time is of the essence for the fulfillment of each Sales Contract. Provider will perform the Services in accordance with the time schedules set forth on the Sales Contract (the “Performance Date”). Notwithstanding anything to the contrary, if Services are not performed in accordance with the Performance Date, Triad may, at its option, either approve the revised performance schedule, reduce the total quantity of Services covered by the applicable Sales Contract, reduce the price pro rata, or terminate the applicable Sales Contract by notice to Provider as to stated items not yet performed and purchase substitute services elsewhere and charge Provider with any loss sustained, without incurring any liability whatsoever for any such revision, reduction, or termination. Performance of Services in advance of the specified Delivery Date are prohibited without Triad’s prior written consent.
​
4. Risk of Loss.
Provider is solely responsible for all loss and damage occurring during the performance of the Services, including, without limitation, loss and damage during transportation.
​
5. Warranties.
Provider warrants to Triad that the Services will be performed in a professional and workman like manner in accordance with all applicable laws, rules, and regulations and the terms of the Agreement.
​
6. LIMITATION OF LIABILITY.
TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL TRIAD BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, THE SERVICES OR IN CONNECTION WITH ANY BREACH UNDER THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TRIAD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES OR IN CONNECTION WITH ANY BREACH UNDER THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT, (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY TRIAD FOR THE SERVICES DIRECTLY RELATED TO THE LIABILITY. SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT BE ALLOWED IN YOUR JURISDICTION AND MAY NOT APPLY TO YOU. THE TERMS OF THIS LIMITATION OF LIABILITY WILL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
​
7. Compliance with Laws.
Provider is in compliance with and will comply with all applicable federal, state, local, and foreign laws, regulations, and ordinances. Provider has and will maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to perform the Services and carry out its obligations under the Agreement.
​
8. Indemnification.
To the greatest extent permitted under applicable law, Provider shall indemnify, defend, and hold harmless Triad, its affiliates and their respective equity holders, directors, officers, employees, agents, affiliates, successors, and assigns (each an “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, fees, or expenses of whatever kind (including reasonable attorneys’ fees), and the costs of enforcing any right to indemnification under the Agreement, in any way relating to a claim arising out of or occurring in connection with Provider’s (a) negligence or willful misconduct, (b) breach of any representation, warranty, or covenants in the Agreement, or (c) violation of applicable laws, regulations, or ordinances. Provider will not enter into any settlement without the Indemnified Party’s prior written consent, which will not be unreasonably withheld.
​
9. Insurance.
Provider will maintain liability insurance in commercially reasonable amounts for death, bodily injury, and property damage, and shall maintain such insurance for a period of at least two years following the last performance of Services. This insurance shall be written by a reputable, financially secure insurance company and shall name Triad as an additional insured. Upon request, Provider shall provide verification of this insurance coverage by submitting a certificate of insurance to Triad Provider’s liability under the Agreement shall not be limited to the sum insured. Provider shall provide Triad with 30 days’ written notice prior to any cancellation or material change to this liability insurance.
​
10. Termination.
In addition to any remedies that may be provided in the Agreement, Triad may terminate all Sales Contracts, with immediate effect and without incurring any liability to Provider, if Provider: (i) fails to pay any amount when due under the Agreement; (ii) has not otherwise performed or complied with any of the terms of the Agreement; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
​
11. Confidential Information.
All non-public, confidential, and proprietary information of Triad, however disclosed, is confidential, and may be used by Provider solely for the use of performing hereunder and may not be disclosed or copied unless authorized by Triad in writing. Upon Triad’s request, Provider shall promptly return all documents and other materials containing Triad’s confidential information. Triad shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Provider at the time of disclosure; or (c) rightfully obtained by Provider on a non-confidential basis from a third party. Provider shall not use Triad’s name or trademarks without Triad’s prior written consent.
​
12. Choice of Law and Forum.
The Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio, without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of or related to the Agreement, or the matters contemplated under the Agreement, shall be instituted exclusively in the federal or state courts located in Columbus, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens.
​
13. Cumulative Remedies.
All rights and remedies of Triad provided in the Agreement are cumulative and not exclusive, and the exercise by Triad of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.
​
14. Attorneys’ Fees.
In any dispute concerning the Services or the Agreement, if Triad is the prevailing party, Triad shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees and expenses, costs of investigation, costs of any accounting or other professional advisers engaged to assist Triad, and other reasonable out-of-pocket costs, in addition to any other relief to which Triad may be entitled.
​
15. Assignment.
Provider shall not assign or transfer any of its rights or obligations under the Agreement without the prior written consent of Triad. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Provider of any of its obligations under the Agreement.
​
16. Entire Agreement; Amendment.
The Agreement constitutes the entire agreement between the parties and supersedes all other communications, oral and written, between the parties relating to the subject matter hereof. Triad may amend, modify or supplement these Terms and Conditions from time to time. Provider’s acceptance of a Sales Contract shall be deemed its acceptance of and agreement to be bound by the version of these Terms and Conditions in effect at that time.
​
17. Survival.
The provisions set forth in the Agreement that by their nature may reasonably be presumed to have been intended to survive any termination or expiration, shall survive any termination or expiration of the Agreement.
​
18. Independent Contractor.
Each party shall be considered to be an independent contractor under the Agreement. The relationship between the parties shall not be construed to be that of employer and employee, nor to constitute a partnership, joint venture or agency of any kind. Neither party shall have the right to bind the other party to any contract or other commitment.
​
19. Third Party Beneficiaries.
Except as provided for in Section 8, no provision of the Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties and their respective successors and permitted assigns.
​
20. Severability.
If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement nor invalidate or render unenforceable such term or provision in any other jurisdiction.
​
21. Waiver.
No waiver by Triad of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by Triad. No waiver by Triad shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.
​
22. Notices.
Any notices under or pursuant to the Agreement will be deemed duly sent when delivered to the addresses set forth in the Sales Contract in person, by courier, by registered or certified mail, return receipt requested, by FedEx or UPS, or by email to an address specified in writing by the receiving party (with confirmation of receipt).