Terms

Terms & Conditions

1. Applicable Terms

All Proposals by RedGuard, LLC ("RedGuard"), all acceptances by RedGuard of Lessee's orders (“Acceptance”), and all performance of services by RedGuard are submitted or made subject to these Standard Terms and Conditions for LeaseFleet Building Rentals and Purchases ("Terms and Conditions") and all specific terms and conditions set forth in the Proposal issued by RedGuard (the "Proposal"). “LeaseFleet Building” is defined as one or more LeaseFleet blast-resistant buildings, VersaBilt, CoverSix Shelters, or Turnstile buildings, supplied to Lessee by RedGuard under an individual Proposal. Technical advice or field services may also be provided by RedGuard, as described in the Proposal or separately; any technical advice or field services provided will be subject to these Terms and Conditions. In the event of any conflict between the Terms and Conditions and the specific terms and conditions or the Proposal, the specific terms and conditions of the Proposal will control. Lessee by submission of a Purchase Order, acceptance of the Proposal, submission of initial payment required by the Proposal, or any other act in furtherance of requesting RedGuard to act in accordance with the Proposal, accepts and agrees to these Terms and Conditions, and waives any conflicting or additional provisions contained in Lessee's forms. Any provision, printed or otherwise, contained in any order, acceptance, confirmation, or acknowledgement issued by Lessee that is inconsistent with, different from, or in addition to these Terms and Conditions is hereby expressly rejected by RedGuard and will not be considered as part of the agreement between Lessee and RedGuard. All references to "Lessee" include the ultimate owner, if a different entity. All Purchase Orders are subject to review and Acceptance by RedGuard prior to performing any work.

2. Representations of Lessee

Lessee represents and warrants to RedGuard, which representations RedGuard may rely upon, that (a) Lessee's acceptance of the RedGuard Proposal is authorized by appropriate act of Lessee and is executed by an individual authorized to bind Lessee; (b )the LeaseFleet Building will remain in the location specified in the Proposal during the duration of the lease term specified in the Proposal (the “Lease Term”); (c) Lessee intends to use the LeaseFleet Buildings for a use permitted by law and as represented to RedGuard in the Proposal; (d) Lessee is financially able to complete its obligations of payment of the full lease payment; and (d) Lessee will adhere to recommendations and directions made by RedGuard for the installation, maintenance, and use of the LeaseFleet Buildings, will not modify or remodel the LeaseFleet Building in any way, will maintain the LeaseFleet Building in good condition, and notify RedGuard of any damage to the LeaseFleet Building, within 48 hours of the damage, during the duration of the Lease In the event the LeaseFleet Building will be located on a third party’s premises, Lessee will obtain advanced written approval that RedGuard may enter into the premises, and remove and retrieve the LeaseFleet Building from the premises at any time upon reasonable notice to the third party.

3. Payments

RedGuard will invoice Lessee and Lessee will make all payments in accordance with the schedule set forth in the Proposal or as set forth in this Paragraph 3, whichever applies. Where a specific date for payment is set, payment must be made on or before that date. Payment in full for each invoiced amount is a condition precedent to the performance of any further work by RedGuard. Should Lessee fail to make any payment as required, RedGuard, at its sole option, and without incurring any liability, may, upon reasonable notice to Lessee, enter the premises where the LeaseFleet Building is located (including on the premises of any third party), disconnect all utilities, and remove the LeaseFleet Building from the premises. In such an event, all remaining lease payments will be immediately due and payable to RedGuard. All payments not made when due will bear interest at One and one-half percent (1.5%) per month, Eighteen percent (18%) per annum (or the highest rate permitted by law, if lower) beginning thirty (30) days after the date payment was due until paid. All risk of loss of or damage to the LeaseFleet Building will transfer to Lessee at the time the LeaseFleet Building is delivered to the location where it will be installed. In all cases, title to the LeaseFleet Building remains with RedGuard. Given the customization and reconditioning required by RedGuard for each LeaseFleet Building, Lessee understands and agrees the minimum payment required will be equal to the amount stated in the Proposal regardless of whether Lessee elects to cancel the lease prior to the expiration of the Lease Term stated in the Proposal (the “Minimum Payment”).

4. Proposal Price Limitations

All prices quoted, unless otherwise specified in the Proposal, are based on a 28-day lease cycle and not on a calendar basis, do not include transportation charges, any federal, state, or local taxes (including, for example, sales or use taxes, VAT, GST, or transfer tax) or other governmental charges on labor or the production, shipment, importation, exportation, sale, installation, or use of the LeaseFleet Buildings covered by the Proposal. All such charges, whether or not paid by RedGuard, will be for the account of Lessee and Lessee agrees to pay all such charges. All crating, Packaging, freight, and crane charges are to be paid by Lessee unless otherwise specified in the Proposal.  All price quotes expire thirty (30) days from the Proposal date, unless otherwise specified in the Proposal, and may be withdrawn or modified by RedGuard at any time before acceptance by Lessee. Unless otherwise stated in the Proposal, the Lease Term will begin on the date of delivery to Lessee’s premises through the actual date of removal of the LeaseFleet Building from Lessee’s premises by RedGuard.

5. Schedule of Work

Placement of an acceptable Purchase Order by Lessee will release RedGuard to begin preparation of the LeaseFleet Building in accordance with the Proposal. If modifications to the LeaseFleet building(s) are required per Lessee’s Purchase Order prior to delivery, Lessee is responsible for all costs incurred for such modifications. Lessee will pay for all additional costs incurred by RedGuard resulting from Lessee's delays, including, for example, failure to approve  drawings promptly or to the necessary releases to purchase materials, and to proceed with fabrication, shipment, or installation. One and a half (1.5) hours of detention time is included in proposal transportation quote. Any time spent on site after that time period will be billed at $75/half hour/truck. All delivery and completion dates, as specified in the Proposal are of critical importance; however time will not be construed to be "of the essence".

6. Force Majeure

In the event of any act, delay, or failure to act by a federal, state, or local government, war conditions, civil unrest or political disturbances, fire, flood, severe weather, high winds, or other natural disaster, labor troubles, strikes, lockouts, governmental action, inaction, delay, or restriction, or act of terrorism, or any other circumstances beyond the control of RedGuard, should prevent, curtail or delay the performance by RedGuard, then such non-performance or delay will not be considered a breach, and RedGuard will be excused while such condition or circumstances and its consequences prevail, and the time for RedGuard to perform hereunder will be extended accordingly.

7. Cancellation

After placement of an acceptable Purchase Order, the Lessee may cancel the order only upon written notice to RedGuard, which notice will be effective only upon actual receipt by RedGuard. In the event of cancellation, Lessee will be required to pay RedGuard a cancellation charge equal to the lead time or period required to prepare the LeaseFleet Building for Lessee multiplied by the lease rate stated in the Proposal, plus all costs associated with modifications, staging, and transportation arranged for the delivery of the LeaseFleet Building to Lessee, and the cost to close out all purchase orders issued to subcontractors and  vendors of RedGuard for materials, services, and transportation related to the LeaseFleet Building.

8. Warranties of RedGuard

If the LeaseFleet building is blast-resistant, RedGuard warrants that the LeaseFleet Building will: (i) meet or exceed the blast rating set forth in the RedGuard Proposal: (ii) be free from defects in materials and workmanship at the time of delivery to Lessee’s location; (iii) be manufactured in accordance with RedGuard's engineering specifications; and (iv) meet the requirements stated in the American Petroleum Institute's Standard Practices 752 & 753 (the "RedGuard Warranty"). The RedGuard Warranty is void if Lessee performs any repair or modifications to the LeaseFleet Buildings or attempts to or otherwise relocates the LeaseFleet Building without the prior written consent or approval of RedGuard. Correction of any non-conformance, in the manner provided above, will satisfy all obligations of RedGuard under the RedGuard Warranty with respect to the LeaseFleet Buildings. Unless otherwise stated on the RedGuard Proposal, any purchased pre-utilized LeaseFleet building includes a one hundred and twenty (120) day warranty from the date of purchase. Unless otherwise stated on the RedGuard Proposal, any purchased new manufactured building includes a one (1) year warranty from the date of purchase.

9. Limitation of Liability

(a.) EXCLUSION OF WARRANTIES: EXCEPT FOR THE EXPRESS WARRANTY PROVIDED HEREIN, REDGUARD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASEFLEET BUILDINGS, AND ANY RELATED TECHNICAL ADVICE OR FIELD SERVICES, PROVIDED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR (b.) EXCLUSION OF CONSEQUENTIAL DAMAGES: IN NO EVENT, WILL REDGUARD BE RESPONSIBLE FOR ANY LOST PROFITS OR OTHER ECONOMIC LOSS, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES (c.) DOLLAR LIMITATION: ANY  LIABILITY  OF  REDGUARD  OR  ITS SUBCONTRACTORS OR VENDORS WITH RESPECT TO ANY CONTRACT, OR ANYTHING DONE IN CONNECTION HEREWITH, OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, INSTALLATION, TECHNICAL ADVICE OR FIELD SERVICES REGARDING THE STORAGE, INSTALLATION, COMMISSIONING, START-UP ASSISTANCE, OPTIMIZATION, OPERATION, USE, MAINTENANCE, REPAIR OR REPLACEMENT OF ANY LEASEFLEET BUILDING, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER, WILL NOT EXCEED THE MINIMUM PAYMENT. (d.) EXCLUSIVE REMEDY: THE REMEDIES OF LESSEE ARE THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. LESSEE’S REMEDIES ARE LIMITED TO THE REMEDIES STATED HEREIN AND THESE REMEDIES SHALL NOT FAIL OF THEIR ESSENTIAL PURPOSE BECAUSE LESSEE IS LIMITED TO THE EXCLUSIVE REMEDIES PROVIDED HEREIN. (e.) Provisions applicable to Owner: In the event Lessee and Owner are different parties, the following will apply: (1) Lessee will obtain from Owner, in favor of RedGuard, an agreement that Owner will be bound by the remedies extended herein; if Lessee does not do so, Lessee, will indemnify RedGuard from and against all liability, damages, costs, losses, or expenses, including reasonable attorney fees, in excess of those remedies provided for (2) Lessee will obtain from Owner, in favor of RedGuard, its subcontractors and vendors, a release from consequential damages to the extent stated herein; or if Lessee does not do so, Lessee will indemnify and hold harmless RedGuard from and against all liability, damages, costs, losses and expenses, including reasonable attorney fees, resulting from Owner's consequential losses of any nature. (f.) Subrogation Rights: Lessee and Owner/User hereby waive the subrogation rights of their respective property damage and business interruption/extra expenses insurers in favor of RedGuard and its All liability of RedGuard and its subcontractors for damage to the property of Lessee will be subject to the limitations herein and limited to occurrences prior to the expiration of the warranty period.

10. General Indemnity

To the fullest extent permitted by law, Lessee will indemnify, defend and hold harmless RedGuard and its affiliated companies, and their respective directors, officers, managers, employees, agents, successors and assigns (the “RedGuard Group”) from and against any and all liability, loss, damages, cost, expense, penalty, lien, award or judgment, including attorneys fees and court costs, arising out of or related to any claim, demand suit, or legal action, or proceeding of any nature, including without limitation personal injury, death, or property damage, or any combination, including to the LeaseFleet Building (collectively a “Claim”), made upon or against the RedGuard Group, or any of them, and caused by, or otherwise arises under or is related, directly or indirectly, to Lessee’s installation, operation, use, maintenance, modification, repair or replacement of the LeaseFleet Buildings following delivery, any other action or omission of Lessee,  its contractors, employees,  borrowed servants, agents and representatives, or any other person for whom Lessee may be liable or Lessee’s failure to observe and perform its obligations hereunder; provided, however, Lessee will not be required to indemnify the RedGuard Group to the extent a Claim arises out of the negligence, gross negligence, or willful misconduct of any member of the RedGuard. Lessee’s indemnity obligations are in addition to any other rights available to any member of the RedGuard Group and will not be limited in any manner by the provisions of applicable workers’ compensation, disability benefits, or other employee benefit statutes, nor by Lessee’s obligation to procure and maintain insurance. The provisions of this Section will survive termination of the Lease Term. No liens will be permitted to be placed on any LeaseFleet Building. Lessee will immediately take all action necessary to remove any lien and will indemnify and hold harmless RedGuard from and against any lien claims and any other costs and expenses related to any such lien.

11. Risk of Loss & Insurance

All loss or damage to the LeaseFleet Building from any cause during the Lease Term, including wind, fire, flood, theft, and comprehensive losses will be the sole risk and responsibility of Lessee. In case of total loss of LeaseFleet Building for which Lessee is responsible, such responsibility will include payment of an amount equal to the replacement value of the LeaseFleet Building. Lessee is responsible for, and will procure and maintain at all times during the Lease Term, the insurance coverage specified in this Section and to furnish to RedGuard certificates of insurance at least ten (10) days prior to the date of delivery of the LeaseFleet Building. Such policies and certificates will certify that Lessee has and will maintain during the Lease Term, the following insurance coverage: (a) worker’s compensation and employer’s liability insurance, with limits of at least the statutory minimum or $1,000,000, whichever is greater; (b) primary, non-contributory commercial general liability insurance on an occurrence basis, including bodily injury and property damage coverage and contractual liability, with minimum limits of $2,000,000 per occurrence and $5,000,000 in the aggregate (non-contributory excess/umbrella policy may be utilized to meet aggregate limits); (c) physical damage insurance providing coverage for the LeaseFleet Building against ALL RISK PERILS in an amount no less than the full replacement value of the LeaseFleet Building; and (d) automobile liability and collision insurance with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. All policies will be written with deductibles and other terms and by insurance carriers acceptable to RedGuard. All liability policies (other than workers compensation policies) and certificates will name RedGuard as an Additional Insured. All property insurance policies and certificates will name RedGuard as an Additional Insured/Loss Payee as its interests may appear. Lessee will also provide a waiver of subrogation against RedGuard with respect to the insurance required under subsections (b) and (c) above and provide evidence of such waiver in the certificate of insurance provided to RedGuard. All policies and certificates will be endorsed to provide RedGuard with no less than (30) thirty days advance written notice of modification, cancellation, or expiration of the specified insurance coverage. RedGuard’s insurance policies will be considered excess over all of Lessee’s policies. Indemnification obligations by Lessee are in addition, and not an alternative, to the insurance coverage required, and Lessee’s maintenance of the insurance coverage will not operate to waive any indemnification obligations. If Lessee fails to procure and maintain the required physical damage insurance coverage in accordance with this Section, RedGuard will have the right (but not the obligation), without notice and at Lessee’s expense, to obtain the insurance coverage, and Lessee will pay the cost upon the terms set forth in RedGuard’s invoice issued in accordance with the provisions of Section 3. To the extent Lessee may perform hereunder without obtaining the required insurance coverage, it will not operate in any manner as a waiver by RedGuard of its right to maintain any breach of contract action against Lessee.

12. Project Documents, Installation & Removal

Any drawings, sketches, or other documents furnished by RedGuard, including the Proposal, are strictly for the stated one time use of Lessee and/or Owner as stated in the Proposal. The Proposal and all information contained in such documents are proprietary to RedGuard. Lessee will keep all information relating to the LeaseFleet Building in strictest confidence. Neither Lessee nor Owner may copy, publish, or otherwise disseminate the Proposal or any drawings, sketches, or other documents furnished by RedGuard or their contents nor provide any other information relating to the LeaseFleet Buildings or the Proposal to any other party without the prior written permission of RedGuard. Lessee may not reverse engineer or attempt to reverse engineer any feature of a LeaseFleet Building. Lessee will be responsible for preparing the pad site at the location for the installation and placement of the LeaseFleet Building, including all utility installation and connections, unless otherwise stated in the Proposal. The pad site must meet the minimum requirements provided by RedGuard. In the event of cancellation or termination of the Lease Term, Lessee will be responsible for disconnecting all utilities and preparing the LeaseFleet Building for removal by  RedGuard, and Lessee understands and agrees that RedGuard will require a minimum of five (5) days from the date of termination or receipt of the written cancellation notice to arrange for and remove the LeaseFleet Building from Lessee’s premises, have the same force and effect as personal service within the State of Kansas.

13. Default & Remedies

A default by Lessee includes, for example, Lessee’s failure to make any payment on time, modifying the LeaseFleet Building, failure to notify RedGuard of any damage to the LeaseFleet Building within 48 hours of the damage, relocating the LeaseFleet Building on or removing the LeaseFleet Building from the specified location, failure to maintain the LeaseFleet Building, breach of any provision of the Purchase Order, Terms and Conditions, or the Proposal, or Lessee enters bankruptcy or receivership. Upon default by Lessee, the obligations of RedGuard will terminate completely and automatically. All amounts due RedGuard under the Proposal will be immediately due and payable. In addition, Lessee will be responsible for all costs and expenses incurred by RedGuard as a result of exercising its rights, including reasonable attorney fees, court costs, and collection costs.

14. Non-Assignability

Neither party may assign their rights and obligations under any Purchase Order issued by Lessee without the prior written consent of the other party. Lessee may not sublease any LeaseFleet Building to any third party without the prior written consent of RedGuard.

15. Notices

Any consent, agreement, or notice required or permitted to be given or made by one of the parties hereto to other party will be in writing and in the English language and will be delivered in person, United States Postal Service, email, or by Federal Express (or other recognized international courier service requiring signature upon receipt), and receipt is verified. Such notice will be effective upon receipt. Addresses and designated contact names will be set forth in the Purchase Order or Proposal and such addresses and designated contact names may be modified from time to time, by written notice to the other party, given in the aforesaid manner.

16. Severability

It is intended that each provision of these Terms and Conditions will be viewed as separate and divisible, and that in the event any provision is held to be invalid, the remaining provisions will continue in full force and effect.

17. Binding Upon Successors

These Terms and Conditions will be binding upon and inure to the benefit of the parties hereto and their heirs, successors, administrators, and assigns as herein provided. No third party is nor will be construed as a beneficiary of any provision of the Proposal, the Purchase Order, or these Terms and Conditions, or any LeaseFleet Building provided by RedGuard.

18. Modification & Waiver

No change, modification, or waiver to any terms or scope of any order will be binding and valid unless it is accepted in writing and signed by an authorized representative of RedGuard. No waiver of any of the provisions of the Purchase Order, the Terms and Conditions, or the Proposal will be deemed or constitute, waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver.

19. Prior Agreements

These Terms and Conditions supersede and replace all prior agreements, representations and warranties (including without limitation, implied warranties of merchantability or fitness for a particular purpose), written or oral, with respect to the LeaseFleet Building to be provided by RedGuard.

20. Captions

The captions set forth herein are for convenience only and have no binding effect nor will they be considered in interpreting these provisions.

Terms & Conditions

1. Applicable Terms

These Standard Terms and Conditions of Purchase for Goods and Services (“Terms and Conditions”) apply to all orders placed and purchases made by RedGuard, LLC, (“REDGUARD”) for goods, material, and equipment purchased from Seller (collectively, “Goods”) or services to be performed by Seller (“Services”) on or after January 1, 2012. REDGUARD will not be bound by the purchase order issued by REDGUARD (“Purchase Order”) until REDGUARD has received the acknowledgment copy of this Purchase Order signed by Seller. These Terms and Conditions are hereby incorporated in all Purchase Orders by reference. Seller will be bound by the Terms and Conditions, and any specific terms on the face of the Purchase Order, when it signs and returns the acknowledgment copy of the Purchase Order, delivers any of the goods ordered by REDGUARD, or initiates any services ordered by REDGUARD.

Seller hereby accepts and agrees to these Terms and Conditions, and any specific terms on the face of the Purchase Order, and waives any conflicting or additional provisions contained in Seller's forms. Any provision, printed or otherwise, contained in any acceptance, confirmation, or acknowledgment issued by Seller that is inconsistent with, different from, or in addition to these Terms and Conditions is hereby expressly rejected by REDGUARD and will not be considered as part of the agreement between Seller and REDGUARD.

2. Price & Payment

Unless otherwise specified in the Purchase Order, all prices quoted to REDGUARD are firm and will not be subject to change. REDGUARD will provide a sales tax exemption certificate to the Seller with respect to any Goods or Services purchased and no sales tax will be included in the price. All other taxes and duties arising from the sale of the Goods or performance of Services to REDGUARD will be included in the price and will be separately identified on Seller’s quotation.

Invoices will be payable within thirty (30) days of Goods delivery and/or accepted completion of the Services rendered, as well as receipt of a correct and complete invoice by REDGUARD. Unless otherwise requested by REDGUARD, invoices will cover only one Purchase Order and include the Purchase Order number. If the invoice is subject to a cash discount, the discount period will be calculated from the date the invoice is received by REDGUARD. When required by REDGUARD and as a prerequisite for payment, the Subcontractor agrees to cooperate with REDGUARD to provide, in a form satisfactory to REDGUARD, partial lien or claim waivers and affidavits from the Subcontractor, its Subcontractors, and suppliers for any completed portions of the Work. Upon completion of all Work on the Project, the Subcontractor agrees to provide final lien waivers releasing all claims against the Project.

3. Warranties

Goods – Seller represents and warrants that all Goods sold to REDGUARD under this Purchase Order will (a) be new and of merchantable quality, not used, rebuilt, or made of refurbished materials unless expressly approved by REDGUARD in writing; (b) be free from all defects in design, workmanship, and materials, and be fit for the particular purpose for which they are intended; (c) meet all specifications and requirements of the Purchase Order; (d) conform to any sample or any specifications, drawings, or other description furnished to or adopted by REDGUARD; (e) be produced, fabricated, manufactured, sold, and delivered in compliance with all applicable state and federal laws; and (f) be free of all liens, claims, security interests, and encumbrances. Seller will assign to REDGUARD any manufacturer’s or other warranties applicable to the goods and will cooperate with and assist REDGUARD in the enforcement of any warranties passed through to REDGUARD, provided Seller will remain responsible for meeting and fulfilling all warranties under the Purchase Order. Seller will provide all necessary permits, certificates, material safety data sheets, and other documentation required with respect to the Goods or as may be specifically required by REDGUARD. Should any failure to conform to this warranty be discovered within eighteen (18) months from the date of initial operation and use, or within twenty-four

(24) months from the date of delivery, whichever occurs later, Seller will, as directed by REDGUARD, promptly repair or replace the defective Goods. These remedies will not constitute the sole remedies of REDGUARD but will be in addition to any rights or remedies available under applicable law.

Services – Seller will perform all Services as an independent contractor and will have sole responsibility for all payroll taxes, contributions payable under any applicable local, state, or federal law, workers’ compensation, and employee benefits associated with any of Seller’s employees providing the Services. Seller represents and warrants that (a) all Services will be performed in a good, safe, and workmanlike manner, in conformity with the highest industry standards, methods, and practices, including applicable environmental, health and safety laws, and that the Services will be free from defects in workmanship and be performed in strict compliance with all requirements of the Purchase Order; and (b) all Goods, if any, used in the performance of the Services will meet the warranty requirements stated above and will be free of all liens, claims, security interests, and encumbrances. Seller will, at its sole cost and expense, correct, re-perform, replace, repair, or otherwise remedy, as directed by REDGUARD, any Services or Goods that fail to conform to the foregoing warranty, and any resulting damage or corrective services caused as a result. These remedies will not constitute the sole remedies of REDGUARD but will be in addition to any rights or remedies available under applicable law.

4. Delivery, Shipping Terms, Inspection & Passage of Title

The shipping terms, risk of loss, and date of delivery will be specified in the Purchase Order. Should Seller fail to complete delivery of the Goods by the date specified, REDGUARD may, at its sole option and without any liability to Seller, refuse to accept and pay for any such Goods. The seller will provide written notice immediately to REDGUARD if any delay is foreseeable. REDGUARD will not be required to make any payment to Seller for any Goods shipped by Seller in advance of the specified shipping date until the date specified in the Purchase Order. Seller will pay all excess charges resulting from its failure to ship and route the delivery by the least expensive way or as instructed by REDGUARD and will reimburse REDGUARD for any excess charges paid by REDGUARD.

All Goods will be subject to inspection or verification by REDGUARD or its authorized representative at any time during the period of manufacture, prior to shipment, and at the delivery point, notwithstanding any prior payment, inspection, or delivery terms. REDGUARD and its authorized representatives will be permitted during normal business hours to have access to and visit Seller’s facilities or the facilities of any subcontractor or vendor, to inspect the Goods and to verify and determine whether the required standards of qualify and workmanship are being met by Seller. Inspection by REDGUARD or its authorized representative, failure of REDGUARD or its representative to make an adequate inspection, or acceptance by REDGUARD will in no event limit or discharge Seller of its obligations to comply with the Terms and Conditions and the specific terms of the Purchase Order. PAYMENT FOR ANY GOODS OR SERVICES BY REDGUARD WILL NOT BE DEEMED ACCEPTANCE. ALL RISK OF LOSS OR DAMAGE TO THE GOODS WILL REMAIN THE SELLER’S SOLE RESPONSIBILITY UNTIL THE GOODS ARE DELIVERED TO AND ACCEPTED BY REDGUARD AT THE DELIVERY POINT SPECIFIED IN THE PURCHASE ORDER UNLESS OTHERWISE AGREED IN WRITING BY REDGUARD AND SELLER.

Title to the Goods will pass to REDGUARD no later than the time of delivery provided that the passage of title will not prejudice either the right of REDGUARD to reject nonconforming Goods or any other right REDGUARD may otherwise have. In those cases where advances or progress payments have been made, title, but not risk of loss or damage, will pass to REDGUARD as soon as the Goods are identified to the Purchase Order. All Goods so identified will be adequately marked and recorded as being the property of REDGUARD.

Each package will be numbered and labeled with the Purchase Order number, contain an itemized packing list, and material safety data sheet, if applicable, and be properly packaged against damage and deterioration. No charges of any kind, including charges for inspection, packaging, crating, freight, express, or cartage will be allowed unless expressly specified on the face of the Purchase Order. Unless otherwise provided in the Purchase Order, all containers and packing supplied by Seller will be considered as non-returnable and the cost of the containers and packing will be included in the price.

5. Force Majeure

In the event of any act, delay, or failure to act by a federal, state, or local government, war conditions, civil unrest or political disturbances, fire, flood, or other natural disasters, an act of terrorism, labor or manufacturing troubles in any fabrication facility, or any other circumstances beyond the control of Seller or REDGUARD, should prevent, curtail, or delay the performance by Seller or REDGUARD of the provisions of the Purchase Order, then such non-performance or delay will not be considered a breach of the Purchase Order provisions and the affected party will be excused while such condition or circumstances and their consequences prevail, and the affected party’s time to perform will be extended accordingly.

6. Patent Infringement

Seller represents and warrants that the Goods and Services, including the use of any process or method, will not infringe any United States or other corresponding foreign patent. Seller will defend, indemnify, and hold harmless REDGUARD and its customers, and their respective affiliates, subsidiaries, officers, directors, agents, and employees, from and against all liability, claims, damages, costs, losses, and expenses, including reasonable attorney fees and court costs, related to or arising out of any infringement or alleged infringement of any patent rights with respect to the Goods and Services, including the use of any process or method by Seller, except for claims directly arising out of the use of any designs or drawings provided by REDGUARD to Seller.

7. Confidentiality & Ownership of Intellectual Property

Confidentiality and Nonuse – Seller acknowledges it has previously executed a Confidentiality and Nonuse Agreement (“Confidentiality Agreement”) with REDGUARD. Any cause of action arising out of or related to the Confidentiality Agreement will be exclusively adjudicated pursuant to the specific provisions of the Confidentiality Agreement. Nothing contained in these Terms and Conditions or the Purchase Order is intended in any way to modify, revise, or revoke any of the terms of the Confidentiality Agreement.

Ownership of Intellectual Property – Where development forms a part of the Goods to be provided or Services to be performed by Seller, the ownership of any invention, design, trade secret, or copyright arising from such development will be transferred to and become the sole property of REDGUARD. All written information, drawings, documents, materials, and other works subject to copyright protection prepared by Seller under the Purchase Order, or that relate directly to, or involve the use of Confidential Information, will be deemed "works made for hire" and the same will be the sole and exclusive property of REDGUARD, including any copyrights or other intellectual property rights associated with such works. Consultant will take all action necessary to convey all rights, titles, and interest in such works to REDGUARD. Seller will promptly disclose, grant, and assign to REDGUARD all rights, titles, and interests in and to any such invention, design, trade secret, or copyright. Seller will take all action necessary to convey all rights, titles, and interests in such works to REDGUARD and will assist REDGUARD in the filing and prosecution of patent applications or copyright filings. REDGUARD will reimburse Consultant for any out-of-pocket expenses associated with such assistance.

8. Indemnification

Seller will defend, indemnify and hold harmless REDGUARD and its customers, and their respective affiliates, subsidiaries, officers, directors, agents, and employees, from and against all liability, claims, damages, costs, losses, and expenses, including reasonable attorney fees and court costs, of any kind or nature from any party related to or arising out of (a) any breach of the Terms and Conditions and any specific terms of the Purchase Order; and (b) death, personal injury, or property damage resulting from any breach of warranty, defect, repair, or replacement with respect to any Goods provided and Services performed by Seller, except to the extent attributable to the gross negligence or willful misconduct of REDGUARD.

9. Insurance

Unless otherwise specified in the Purchase Order, for all Purchase Orders for Goods and/or Services in excess of

$5,000.00, Seller will maintain the following insurance coverage: (a) Comprehensive General Liability in the minimum amount of $1,000,000.00 per occurrence for bodily injury and property damage, including products liability, completed operations liability, and contractual liability covering Seller’s indemnification obligations; (b) Professional Liability in the minimum amount of $1,000,000.00 per occurrence; (c) Workers’ Compensation with limits as required by applicable state law; (d) Employer’s Liability in the minimum amount of $1,000,000.00 per occurrence; and (e) Automobile Liability in the minimum amount of $1,000,000.00 per occurrence. All policies will provide for a blanket waiver of subrogation. All policies other than the Workers’ Compensation policy will name REDGUARD as an additional insured. Prior to shipment of Goods or performance of Services pursuant to a Purchase Order, Seller will provide REDGUARD with a certificate of insurance evidencing the coverage required, including the waiver of subrogation and naming of REDGUARD as an additional insured, and will provide for a minimum of thirty (30) days advance written notice to REDGUARD of any cancellation or change in coverage. The required coverage will be primary and noncontributing to any insurance maintained by REDGUARD, and will not serve in any way to limit Seller’s liability to REDGUARD.

10. Consequential Damages

IN NO EVENT, WILL REDGUARD OR THE SELLER BE RESPONSIBLE FOR ANY LOST PROFITS OR OTHER ECONOMIC LOSS, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER.

11. Choice of Law, Arbitration & Venue

All disputes concerning the validity, interpretation and application of these Terms and Conditions and the Purchase Order will be governed by, interpreted under, construed and enforced in accordance with the laws of the State of Kansas, applicable to agreements made and to be performed wholly within the State of Kansas, without REDGUARD to other principles and choice of law, except to the extent the laws of United States shall apply. The parties disclaim any applicability of the United Nations Convention on the International Sale of Goods.

In the event of any dispute, controversy, claim, or disagreement arising out of or relating to the Purchase Order, or the breach thereof by either party, the parties will use their reasonable commercial efforts to resolve the matter as quickly as possible. To this effect, they will consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach a solution within sixty (60) days, then upon written notice by either party to the other, the dispute, controversy, claim, or disagreement will be resolved and settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (including the Optional Rules for Emergency Measures of Protection). A reasoned written award will be required and will be made within nine months of the filing of the notice to arbitrate and the arbitrator(s) will agree to comply with this schedule before accepting the appointment. The arbitrator(s) will have no authority to award consequential damages (as disclaimed in Section 10) or punitive damages to either party but will have the authority to award the payment of attorney fees and costs to the prevailing party. The award rendered will be final and binding on the parties. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration will be conducted in the English language in Wichita, Kansas, in accordance with the United States Arbitration Act. Seller expressly agrees it will not bring any claim, action, suit, or other legal proceeding pertaining to the Purchase Order, the Goods, and/or Services in any other forum or venue.

Any notice of dispute, controversy, claim, or disagreement or the submission of such dispute, controversy, claim, or disagreement to arbitration may be served upon the parties as provided for notices in Section 14. Delivery by mail service will have the same force and effect as personal service within the State of Kansas.

12. Termination

Termination for Convenience – REDGUARD may terminate the Purchase Order at any time by written notice to Seller, as specified in the notice. Payment for delivered Goods or Services performed at the time of termination will be made at the price specified in the Purchase Order. Any Goods that were not made-to-order or custom and designed and fabricated may be returned to Seller and a full refund will be provided to REDGUARD, less any standard restocking charge.

Termination for Default – REDGUARD may terminate this Purchase Order in whole or part by written notice of default to Seller, without any liability to Seller, if: (a) Seller fails to deliver or perform within the time specified or any written extension granted by REDGUARD; (b) Seller fails to make progress, which in the reasonable judgment of REDGUARD, endangers performance of the Purchase Order in accordance with its terms; (c) Seller fails to comply with any Terms and Conditions or any specific terms of the Purchase Order; or (d) a petition for bankruptcy is filed by or against Seller, a general assignment for the benefit of Seller’s creditors is entered into, a receiver is appointed with respect to the insolvency of Seller. Notice of termination will be effective as specified in the notice.

13. Non-Assignability

Neither party may assign their rights and obligations under any Purchase Order issued by REDGUARD without the prior written consent of the other party.

14. Notices

Any consent, agreement, or notice required or permitted to be given or made by one of the parties to the other party will be in writing and in the English language and will be delivered in person, by registered or certified mail, electronic mail, or by Federal Express (or other recognized international courier service requiring a signature upon receipt). Such notice will be effective upon receipt. Addresses and designated contact names will be set forth in the Purchase Order and such addresses and designated contact names may be modified from time to time, by written notice to the other party, given in an aforesaid manner.

15. Severability

It is intended that each provision of these Terms and Conditions and the specific terms of the Purchase Order will be viewed as separate and divisible and that in the event any provision is held to be invalid, the remaining provisions will continue in full force and effect.

16. Binding of Successors

The Purchase Order will be binding upon and inure to the benefit of the parties hereto and their heirs, successors, administrators, and assigns as herein provided.

17. Modification & Waiver

No change, modification, or waiver to any terms or scope of any order will be binding and valid unless it is accepted in writing and signed by both parties. No waiver of any of the provisions of these Terms and Conditions or the specific terms of the Purchase Order will be deemed or constitute, waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver.

18. Prior Agreements

The Purchase Order supersedes and replaces all prior agreements, representations and warranties, written or oral, with respect to the Goods or Services purchased under the Purchase Order. No course of dealing and no usage of trade will be relevant to determine the meaning of the Purchase Order even though the accepting or acquiescing party has knowledge of the performance and opportunity to object.

Terms & Conditions

Rent

Late Payments

Default and Remedies

Representations/Warranties

Representations/Warranties/Ownership of SiteBox

Condition

Sub-Leasing of Units

Cancellation

Responsibility of Cargo

Care and Maintenance of Unit

Care and Maintenance of Trailer

Delivery/Relocation

Indemnification/Disclaimer

Mutual Agreement of Customer and SiteBox

Assignment

Benefit

Severability

Situs

Counterparts

Entire Agreement

SPECIAL TERMS FOR REFRIGERATED UNITS

Use and Operation

Maintenance and Repairs

Insurance

Terms of Purchase

Purchase Shipping, Transportation and Payment