Terms & Conditions

Mill Creek Lumber & Supply Company Terms and Conditions of Sale

The following Terms and Conditions of Sale (“T&C” or “Agreement”) shall govern all orders,quotes and sales transactions by and between Mill Creek Lumber & Supply Company, and all subsidiary corporations thereof (collectively “Mill Creek”), and purchaser (“Purchaser”).

Purchaser’s failure to promptly object to these T&C, in writing, shall be conclusively deemed as Purchaser’s acquiescence and acceptance hereof; should Purchaser so object, in writing, Mill Creek shall be entitled to terminate all pending orders, without liability. Mill Creek hereby disclaims and disavows any conflicting Purchaser terms and conditions without Mill Creek’s express written consent thereto.

1. Purchaser and Mill Creek hereby agree to be bound by these T&C; the T&C shall take precedence over any conflicting terms contained in any other documents between the Parties.

2. All transactions are based upon Mill Creek’s understanding of the Purchaser’s needs, as communicated by Purchaser. Mill Creek makes no warranty or representation that any such order(s) are correct or in accordance with Purchaser’s requirements. Purchaser has sole responsibility to review materials and to ensure compliance with Purchaser’s requirements, contractual or otherwise. Furthermore, Purchaser has sole responsibility to determine compliance with applicable building codes, rules, regulations, contractual requirements, designs, governmental requirements or other public building mandates; Mill Creek makes no warranty or representation regarding compliance with any of the foregoing. It shall be the responsibility of the Purchaser to ascertain any material discrepancies delivered and to report any shortages to Mill Creek.

3. Mill Creek agrees to supply and Purchaser agrees to purchase goods and services as they may agree; the Parties agree that Purchaser may submit Purchase Order(s) or instructions as to its’ intent to purchase goods from Mill Creek. The Parties shall document applicable pricing and product availability. All goods shall be delivered FOB Mill Creek’s loading dock or jobsite delivery, as applicable. Risk of loss shall pass upon delivery to Purchaser. Purchaser shall have the right to inspect goods purchased from Mill Creek and reject defective or nonconforming goods. Rejection of defective or nonconforming goods much occur within five (5) days of delivery and, Purchaser’s right of rejection is subject to inspection and acceptance of the returned goods by Mill Creek, in its sole discretion.

4. Upon notification to Purchaser, Mill Creek shall have the right to m ake product substitutions as availability and supply circumstances dictate. Supply chain issues can arise and Mill Creek does not guarantee availability of any product at any time. Substitutions may be made as circumstances require. Purchaser waives any claim against Mill Creek for loss relating to delayed procurement, delayed delivery or substitution of products.

5. Purchaser agrees to comply with all account policies and procedures in place for Mill Creek.

6. Unless otherwise specifically agreed to by both Parties, each Party shall be entitled to a “commercially reasonable” time for performance of duties hereunder. Purchaser shall cooperate with Mill Creek in scheduling the delivery of material to avoid conflict or interference with the work of others.

7. IT IS EXPRESSLY AGREED THAT MILL CREEK HAS MADE NO WARRANTIES, EXPRESSED OR IMPLIED, AND THE PARTIES HEREBY DISCLAIM ALL SUCH WARRANTIES INCLUDING THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,MERCHANTABILTY OR WORKMANLIKE CONSTRUCTION. Purchaser is solely responsible for completing its scope of work; Mill Creek shall be responsible only for the materials that it delivers unto or installs for Purchaser. Purchaser may enforce manufacturer’s warranties only against manufacturers, not Mill Creek. Unless otherwise agreed to, in writing by Mill Creek, all building materials warranties from Mill Creek shall be for a period of one year from the date of delivery to Purchaser. ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED, IN FULL. Purchaser’s agrees that Mill Creek’s sole responsibility shall be to repair or replace any defective, non-conforming goods, and hereby waives any other available remedies at law or in equity.

8. Purchaser shall have no right to offset sums due hereunder due to warranty claims or defective work. Mill Creek shall have no liability for: (i) damage to other components or aspects of Purchaser’s project; (ii) cosmetic matching or blending; (iii) other loss or damage relative to delay, impact or consequential damage or loss. In the event Mill Creek fails to correct any defect, Purchaser’s sole remedy shall be repair or replacement of such non-conforming goods at Mill Creek’s election.

9. If requested, Mill Creek shall execute conditional lien waivers relative to payments made on account.

10. The Parties shall each be responsible for their own insurance and shall provide each other evidence of same at mutually convenient intervals. Should any “special endorsements” be required, appropriate charges therefor must be agreed to, in writing, prior to such insurance being in force. Performance or payment bonds shall also be agreed to in writing prior to Mill Creek providing any goods or services to Purchaser.

11. Either Party may terminate this Agreement upon written notice. Substantive obligationsshall survive the Parties’ termination of this Agreement.

12. Purchaser shall be responsible for protecting all building materials and product on the jobsite, before and after installation. Purchaser shall comply with all laws, ordinances, rules, regulations and orders of any public authority impacting Purchaser’s work. Risk of loss to all goods delivered/installed shall pass to Purchaser at delivery or installation, as applicable.

13. Each Party hereby indemnifies the other Party from their acts of negligence.

14. Mill Creek’s liability hereunder shall be limited to the dollar amount of purchases referenced on the sales transaction to which these T&C apply.

15. Each Party hereby acknowledges that they are independent of each other and expressly disavow any implication of an “employment” relationship. This Agreement shall not be assignable without the prior written consent of the other Party first obtained.

16. Should either Party have to employ legal counsel to enforce the terms hereof, the non- prevailing Party agrees to pay all court and/or arbitration costs and attorney’s fees associated therewith.

17. The parties agree to submit any dispute based upon this Supplier Agreement to mediation prior to taking legal action. Should mediation prove unsuccessful, the parties agree to submit all disputes to binding arbitration with a mutually agreeable arbitrator or panel of arbitrators.18. This Agreement shall be governed by Oklahoma law. Venue for any legal proceeding or arbitration shall be Tulsa County, State of Oklahoma.

19. NOT WITHSTANDING ANY OTHER PROVISION IN THIS T&C, MILL CREEK SHALL NOT ALLOW RETURN OF ANY SPECIAL ORDER ITEMS, WITHOUT EXCEPTION.

20. Purchaser hereby waives and releases Mill Creek from all claims and causes of action for loss, damage or injury resulting from the loading, unloading or delivery of building materials by Mill Creek hereunder.