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Rush Terms and Conditions of Purchase.

A. GENERAL TERMS

1. ENTITIES AND DEFINITIONS. Any rights of the Buyer hereunder (including the right to submit Purchase Orders) shall accrue to the benefit of Rush Enterprises, Inc. and its subsidiaries and affiliates, including without limitation Rush Truck Centres of Canada Ltd (each a “Rush Entity”). “Goods and Services” shall mean any materials, equipment, and/or services stipulated in a Purchase Order. “Purchase Order” shall mean a request by Buyer for the purchase of Goods and Services from Vendor, including all specifications, exhibits, attachments and referenced documents. A Purchase Order and these Terms and Conditions of Purchase (“Terms”) are hereinafter collectively referred to as the “Purchase Terms.” “Buyer” shall mean the Rush Entity named in the Purchase Order. “Vendor” shall mean the person, firm or company to whom a Purchase Order is addressed.

Where the Goods and Services that are the subject of a Purchase Order are to be incorporated as improvements to a facility of Rush (a “Project Site”), the additional terms and conditions located in Section B.1 (Construction; Facility Improvement) shall apply.

Where Rush Truck Centres of Canada Ltd is the Rush Entity named in a Purchase Order, the Canada-specific terms located in Section B.2 (Canada-Specific Terms – Rush Truck Centres of Canada, Ltd.) shall apply.

2. ACCEPTANCE/PRIORITY. Vendor shall be bound by the Purchase Terms on the earliest of (i) the acceptance of the Terms by Vendor, (ii) its commencement of work on the Goods and Services, or (iii) its shipment or provision of Goods and Services to Buyer. Any other terms and conditions proposed by Vendor shall not be effective unless accepted by the Buyer in writing signed by an authorized representative of Buyer. In the event of any conflicts, these documents have priority as follows: (1) Terms (2) Purchase Order, and (3) any attachments to a Purchase Order. The Purchase Terms, together with any documents incorporated therein by reference, constitutes the sole and entire agreement of the parties with respect to the Purchase Terms, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Purchase Terms. Any additional or different terms proposed by Vendor in any documents are expressly objected to without need of further notice of objection and are of no effect and will not be binding on Buyer. No terms on any invoice or other Vendor generated document shall modify these Purchase Terms even if signed by Buyer. Buyer may update these Terms from time to time by notifying Vendor of such changes by any reasonable means, including by posting the revised Terms on Buyer’s website, and Vendor agrees that it is its responsibility to regularly check this website for any updated Terms. In addition, by continuing to provide Goods and Services to Buyer after Buyer posts any changes, Vendor accepts the updated Terms.

3. COVER; DELIVERY. The dates of delivery and quantities specified herein are of the essence for Buyer’s order and delivery must be affected within the specified time period, if any. If deliveries are not made on time and in the quantities specified, Buyer reserves the right to cancel and to purchase the Goods and Services elsewhere and hold Vendor accountable therefore. Vendor shall cooperate with Buyer in respect to all customs formalities applicable to the import or export of the materials, shall be responsible for determining proper import or export classifications, and shall provide Buyer documentation to Buyer's reasonable satisfaction for such classifications.

4. SHIPPING; INSPECTION AND REJECTION. Vendor will: (a) properly pack, mark and ship goods as instructed by Buyer and in accordance with any applicable laws or regulations; and (b) not charge for costs relating to handling, packaging, storage or transportation (including duties, taxes, fees, etc.) unless otherwise expressly stated in the Purchase Terms. Materials are subject to inspection, test, and acceptance by Buyer and Buyer’s customers, if applicable. Buyer shall have a reasonable number of days from the date of arrival to inspect the materials and notify Vendor of any non-conformity to the order specifications (including quantity and delivery dates). Such inspection may not occur until final sale of the materials to Buyer's customers. Buyer reserves the right to reject any material, even after delivery and inspection at customer's site, which does not fulfill the specifications of the order or time of delivery and (i) return rejected materials to Vendor at Vendor's risk and expense for full credit at the order price without prejudice to any right to other damages for such breach, (ii) to require Vendor at Vendor's expense to replace rejected materials at the unit price of the original order, or (iii) consider the order breached as to the rejected quantity and cancelled as to any unfulfilled portion of the order, and to hold Vendor liable for such breach and cancellation. Vendor is not relieved of the responsibility imposed by this clause, either as to proper packaging, quantity of materials or specifications.

5. PURCHASE PRICE; PAYMENT. Purchase Orders shall not be filled at prices higher than those quoted or charged to Buyer or specified herein. Unless otherwise agreed in writing, prices include packaging, labeling, crating, taxes, and duties. The purchase price is a firm price and is not subject to increases in the prices of Vendor's manufacturers or suppliers, or due to any other act or event. Vendor warrants that the prices for the goods sold to Buyer hereunder are not less favorable than those currently extended to any other customer for the same or like goods in equal or smaller quantities. In the event Vendor reduces its price for such goods during the term hereof, Vendor shall reduce the prices hereof accordingly. Unless otherwise agreed in writing by Buyer, invoices approved by Buyer will be paid by the 21st of the month following the date the invoice is received by Buyer.

6. SET OFF. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Vendor against any amount payable by Buyer to Vendor.

7. WARRANTY. Vendor represents that with respect to all Goods and Services furnished hereunder: (i) title shall be good, merchantable, rightful and the materials free of any security interest, lien or encumbrance; (ii) that materials will be new, free from defects in material and workmanship, be of quality size, description and dimension required by Buyer, be fit for the purpose for which they are purchased, operate as intended, and will meet the Buyer’s specifications, if any, and that Vendor's services will be performed in a skillful and workmanlike manner; (iii) the Goods and Services will not infringe any patent, trademark, copyright (or moral rights) or other rights of any third parties (“Intellectual Property Rights"); and (iv) the Goods and Services comply with all applicable laws, ordinances, rules and regulations ("Laws"). This express warranty shall not be deemed waived by reason of either or both the receipt of the Goods and Services and payment therefore by Buyer. The foregoing is in addition to any and all other express or implied warranties applicable to the Goods and Services purchased by Buyer. Vendor’s warranty shall run to Buyer, its successors, assigns and customers and users of the Goods and Services sold by Buyer. Vendor agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Buyer, when notified of such nonconformity by Buyer. In the event of failure of Vendor to correct defects in or replace nonconforming Goods and Services promptly, Buyer, after reasonable notice to Vendor, may make such corrections or replace such goods and services and charge Vendor for the cost incurred by Buyer in doing so. Vendor recognizes that Buyer’s requirements may require immediate repairs of defective Goods and Services, without notice to the Vendor. In such event, Vendor shall reimburse Buyer for the reasonable costs incurred by Buyer to repair the Goods and Services.

8. COMPLIANCE WITH LAWS; BANNED TECHNOLOGIES; PROHIBITED VENDORS.

a. General. Vendor is in compliance with and shall comply with all applicable laws, regulations and ordinances. Vendor has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under a Purchase Order and shall include these requirements in any subcontracts and other contractual instruments related to the provision of the Goods and Services. Vendor shall comply with all export and import laws of all countries involved in the sale of Goods and Services. Vendor assumes all responsibility for shipments of Goods and Services requiring any government import clearance. In addition to any other remedies available, Buyer may terminate any Purchase Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties or any other penalties on the Goods and Services.

b. Banned/Prohibited Technologies and Vendors. Without limiting subsection 8.a. above, Vendor and any of its subcontractors shall not use or provide Buyer in the provision of Goods or Services any hardware, software, service, components, or telecommunications or video surveillance equipment or services provided or developed from any company identified by Buyer or by the U.S. Government and/or regulatory authorities as a security threat (collectively, the Prohibited Vendors (US)" ), including, without limitation, the companies identified by the U.S. Government (which are currently posted on the internet here and as published in 15 CFR, Subchapter C, part 744, Supplement No. 4 and as set forth in Federal Acquisition Regulation clauses 48 CFR 52.204-23 (Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities) and 48 CFR 52.204-25 (Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment), the full text of which may be found here, including any other technology which is or becomes subject to similar restrictions or bans. Vendor is responsible for being familiar with the Prohibited Vendors (US), including additional Prohibited Vendors (US) that Buyer may identify by notice to Vendor or that the U.S. Government may identify from time to time. Vendor's failure to comply with this requirement will be considered a material breach of this agreement.

9. TERMINATION. Buyer may terminate a Purchase Order, in whole or in part, at any time with or without cause, on written notice to Vendor, for undelivered Goods and Services or for Services provided on an ongoing or subscription basis. In addition to any remedies that may be provided under the Purchase Terms, Buyer may terminate a Purchase Order with immediate effect upon written notice to the Vendor, either before or after the acceptance of the Goods and Services, if Vendor has not performed or complied with any of the terms of the Purchase Terms, in whole or in part. If Buyer terminates a Purchase Order for any reason, Vendor's sole and exclusive remedy is payment for the Goods and Services received and accepted by Buyer prior to the termination.

10. INDEMNITY. Vendor will defend, indemnify and hold harmless Buyer, its parent and its affiliates, and their respective officers, directors, shareholders, employees, and agents (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs on a full indemnity basis, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses") arising out of or occurring in connection with: (i) the Goods and Services purchased from Vendor; (ii) Vendor’s negligence, willful misconduct or breach of the Purchase Terms; or (iii) any claim that Buyer’s or Indemnitee’s use or possession of the Goods and Services infringe or misappropriate any Intellectual Property Rights. 

11. ACTIVITIES ON BUYER'S PREMISES. Vendor will defend, hold harmless, and indemnify Buyer and Indemnitees from and against any liability, claims, demands, damages, costs or expenses (including, without limitation, reasonable attorney and other professional fees and disbursements on a full indemnity basis) arising from or in connection with Vendor's access to or use of Buyer's or Buyer's customer's premises or the performance of any service or work by Vendor or its employees, agents, representatives and subcontractors on Buyer’s or Buyer's customer's premises or the use of the property of Buyer or any customer of Buyer, except to the extent such liability arises out of the negligence or willful misconduct of Buyer or Buyer’s customer.

 12. INSURANCE. Vendor will obtain and maintain the following insurance coverage (subject to any additional insurance limits and coverages as Buyer may require, as set forth in Buyer’s Standard Insurance Requirements found here): (a) Workers' Compensation: Statutory limits for the state(s) in which this Agreement is to be performed (or evidence of authority to self-insure); (b) Employer’s Liability: $1,000,000 each accident for bodily injury by accident and $1,000,000 each employee for bodily injury by disease; (c) Commercial General Liability on an Occurrence Form covering liability arising from premises, operations, independent contractors, products/completed operations, personal injury and advertising injury, and liability assumed under an insured contract: $1,000,000 each occurrence; and (d) Automobile Liability (including owned, non-owned and hired vehicles): $1,000,000 each accident. In addition to the foregoing, Vendors who transport, deliver, or otherwise have Buyer's vehicles/property in their care, custody, or control will also obtain and maintain the following insurance coverage: (e) Garage Liability: $1,000,000 each accident; and (f) Garage Keepers Liability- Direct Primary Coverage: An amount sufficient to cover Buyer vehicles/property in Vendor’s care, custody, or control.  All insurance policies shall be issued by insurance companies reasonably acceptable to Buyer. Liability policies must be endorsed to name "Rush Enterprises, Inc. and its subsidiaries and affiliates, successors and assigns, as their interests may appear” as additional insureds (“Additional Insureds"). All policies shall be endorsed to include a waiver of subrogation in favor of the Additional Insureds and shall require that Buyer receive thirty (30) days prior written notice from the insurer of any termination or reduction in the amount or scope of coverage. With respect to any such insurance coverage, Vendor will furnish to Buyer a certificate evidencing satisfaction of the insurance requirements within ten (10) days after Buyer's request. The furnishing of certificates of insurance and purchase of insurance will not limit or release Vendor from Vendor’s obligations or liabilities under the Purchase Terms.

13. CONFIDENTIAL INFORMATION AND PERSONAL DATA.

a. Confidential Information. The Vendor will use Buyer's Confidential Information only for the benefit of Vendor in connection with its performance under a Purchase Order and will not disclose Buyer's Confidential Information to anyone without the Buyer’s prior written consent. The Vendor will take reasonable measures to avoid disclosure, dissemination or unauthorized use of Buyer’s Confidential Information. "Confidential Information” means all nonpublic information disclosed by Buyer, its affiliates, or their agents to Vendor, its affiliates, or their agents, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation (i) nonpublic information relating to Buyer’s technology, products, services, processes, data, customers, business plans and methods, promotional and marketing activities, finances and other business affairs, (ii) third-party information that the Buyer is obligated to keep confidential, and (iii) the nature, content and existence of a relationship, discussions or negotiations between Buyer and Vendor. On Buyer's request, Vendor shall promptly return or destroy all documents and other materials received from Buyer. This section shall not apply to information that is: (a) in the public domain; (b) known to the Vendor at the time of disclosure; (c) rightfully obtained by the Vendor on a non-confidential basis from a third party; or (d) is independently developed by the Vendor without use of any Buyer Confidential Information. All Confidential Information will remain the exclusive property of Buyer. Notwithstanding the foregoing, Vendor shall not use Buyer's name, brand or trademarks in Vendor’s advertising materials or otherwise in a promotional manner without the prior written consent of Buyer. Buyer shall be entitled to seek injunctive relief for any violation of this section.

b. Personal Information. To the extent Vendor receives or has access to Personal Information (as hereinafter defined) in the course of as a result of providing Goods and Services to Buyer, Vendor represents and warrants that its collection, access, use, storage, disposal and disclosure of Personal Information (as hereinafter defined) does and will comply with all applicable federal, state and/or provincial (as applicable) privacy and personal information protection laws, as well as all other applicable regulations ("Privacy Laws”). Without limiting the foregoing, Vendor shall implement administrative, physical and technical safeguards to protect Personal Information that are no less rigorous than generally accepted industry practices, and shall ensure that all such safeguards, including the manner in which Personal Information is collected, accessed, used, stored, processed, disposed of and disclosed, comply with applicable personal information protection and privacy laws, as well as the terms and conditions of this Agreement. Vendor shall collect, use and disclose Personal Information solely and exclusively with Buyer’s consent and for the purposes for which the Personal Information, or access to it, is provided pursuant to the terms and conditions of this Agreement, and shall not use, sell, rent, transfer, distribute, or otherwise disclose or make available Personal Information for Vendor’s own purposes or for the benefit of any party. For purposes of this section, “Personal Information” shall mean information provided to Vendor by or at the direction of Buyer, or to which access was provided to Vendor by or at the direction of the Buyer, in the course of Vendor’s performance under this Agreement that: (i) identifies or can be used to identify an individual ” (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to identify an individual (including, without limitation, employee identification numbers, government issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions and other personal identifiers). Vendor will reasonably cooperate and assist Buyer with meeting Buyer’s Privacy Law compliance obligations and responding to Privacy Law-related inquiries with respect to Personal Information. Vendor must promptly comply with any Buyer request requiring Vendor to provide, amend, transfer, or delete such Personal Information, or to stop, mitigate, or remedy any unauthorized processing of such Personal Information.

c. Data Security. Vendor will provide a secure environment (including appropriate technical, physical and organizational security measures and safeguards) for Buyer information and data, including Buyer Confidential Information, stored and processed by Vendor in the course of providing the Goods and Services to Buyer utilizing industry standard best practices.

14. ASSIGNMENT AND SUBCONTRACTING. Vendor will not assign or subcontract (in whole or in part) the Purchase Terms or its obligations under them without Buyer's prior written consent. In the event Vendor subcontracts any of its obligations under the Purchase Terms, Vendor shall be solely responsible for the performance of Services and all other liabilities and obligations of Vendor under the Purchase Terms, whether or not performed, in whole or in part, by Vendor or any subcontractor or agent of Vendor.

15. FORCE MAJEURE. Either party may delay or be excused from timely performance of its obligations under the Purchase Terms if such party's failure to perform in a timely manner was caused by circumstances beyond the party's reasonable control and not resulting from any action or omission of the party, including, without limitation, fire, flood, earthquake, water, wind, lightning, or other acts of God, war (declared or undeclared), embargo, accident, explosion, strike, lockout, civil disturbance, governmental order, regulations, or restrictions. Notwithstanding the foregoing, if Vendor is prevented from delivering the goods by reason of unavailability of goods or any parts or components thereof from a third party or lack or failure of transportation facilities, Vendor will not be excused from performance hereunder.

16. GOVERNING LAW; VENUE. The Purchase Terms between Buyer and Vendor shall be governed by the laws of the state of Texas (without regard to any conflicts of law rules that would direct or refer to the laws of a different jurisdiction). Vendor and Buyer agree that venue for any litigation shall be exclusively in the state district court of Comal County, Texas, or the United States District Court for the Western District of Texas, San Antonio Division (provided the amount in controversy exceeds the minimum jurisdictional limit required to file in federal court), and Vendor and Buyer agree to submit to personal jurisdiction therein; provided, however, that the foregoing shall not be construed to limit the rights of Buyer or Vendor to enforce a judgment or order from either of these courts in another jurisdiction. The Purchase Terms cannot be amended or modified as against Buyer except by a writing signed by an authorized representative of Buyer. No claim or right of Buyer arising out of any breach of any of Vendor's obligations to Buyer may be discharged by a purported waiver or renunciation unless such waiver or renunciation is made expressly by Buyer in writing and is supported by consideration. The UN Convention on Contracts for the International Sale of Goods shall not apply to the Purchase Terms.

17. EEOC. The Equal Employment Opportunity Clause in Section 202 of Executive Order 11246, as amended, and the implementing rules and regulation of the Office of Federal Contract Compliance including 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a) are incorporated herein by reference, and are binding on Vendor, unless exempted by rules, regulation or orders of the Secretary of Labor.

18. IMMIGRATION REFORM AND CONTROL ACT OF 1986. Vendor represents and warrants that it is in compliance with and agrees that it will remain in compliance with the provisions of the Immigration Reform and Control Act of 1986, including but not limited to the provisions of the Act prohibiting hiring and continued employment of unauthorized aliens, requiring verification and record keeping with respect to identity and eligibility for employment, and prohibiting discrimination on the basis of national origin, United States citizenship, or intending citizen status.

19. CONFLICT MINERALS. Vendor shall disclose any "conflict minerals” (as such term is defined below) used in the production of any product subject to this agreement, and, in the event such materials are used, shall submit, as applicable, either (i) its report filed with the Security and Exchange Commission under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection act, or (ii) a description reasonably acceptable to Buyer of measures taken to assure the appropriate sourcing and chain of custody of such materials. As used above, the term "conflict minerals" shall have the meaning ascribed to it under Dodd-Frank and shall include, without limitation, columbite-tantalite (coltan), cassiterite, gold, wolframite or their derivatives, or any other mineral or its derivatives determined by the US Secretary of State to be financing conflict in the Democratic Republic of the Congo. Vendor shall maintain effective accounting procedures, internal controls and audit procedures necessary to record the country and place of origin of all minerals included in products provided to Buyer, and to verify compliance with this section. Buyer shall be permitted to audit such records as reasonably necessary to confirm Vendor’s compliance with this section.

20. CODE OF CONDUCT – HUMAN RIGHTS.  Vendor agrees to comply with Buyer's Supplier Code Conduct, which may be updated from time to time. Vendor agrees to report to Buyer any known or suspected violations of Buyer’s Supplier Code of Conduct and Human Rights Policy. Vendor will, and will ensure that its employees will, comply with their obligations under human rights legislation applicable in the jurisdiction in which this Agreement is to be performed.  Without limiting the generality of the foregoing, Vendor and its employees will not engage in discrimination or harassment contrary to applicable human rights legislation, including in employment, contracting, and the provision of services, goods and facilities.

21. NOTICES. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and, with respect to notices to Vendor, addressed to the Vendor at the address provided to Buyer, and, with respect to Buyer, addressed to: Rush Administrative Services, Inc., 555 IH35 South, New Braunfels, TX 78130, ATTN: Purchasing, or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Purchase Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

22. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in the Purchase Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from the Purchase Terms.

23. CUMULATIVE REMEDIES. The rights and remedies under the Purchase Terms are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

24. SEVERABILITY. If any term or provision of the Purchase Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Purchase Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

25. LIMITATION OF LIABILITY. In no event shall Buyer be liable for anticipated profits or for incidental or consequential damages. Buyer's liability on any claim of any kind, for any loss or damage arising out of or in the connection with or resulting from this agreement or from the performance or breach thereof, shall in no case exceed the price allocable to the Goods and Services or unit thereof which gives rise to the claim.

26. SURVIVAL. Provisions of the Purchase Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Purchase Terms, including, but not limited to, the following provisions: Set-off, Warranty, Compliance with Laws, Indemnity, Insurance, Confidential Information, Governing Law, Venue, Limitation of Liability and Survival.

B. ADDITIONAL TERMS, CONDITIONS AND PROVISIONS

1. CONSTRUCTION; FACILITY IMPROVEMENT. - Where the Goods and Services, which are the subject of a Purchase Order, are to be incorporated as improvements to a facility of Rush (a “Project Site”), the following additional terms and conditions shall apply (“Construction Terms”):

A. DEFINITIONS: Words, Terms and Phrases. As used herein, certain words, terms and phrases shall have the meaning and shall be used in the context, as follows:

  • Buyer’s Representative. The term “Buyer's Representative" shall mean such person as has been designated by Buyer to supervise the completion of the Work on behalf of Buyer.
  • Work. The term “Work" means the construction, Goods and Services required by the Purchase Order, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by Vendor or any of its suppliers or Subcontractors to fulfill Vendor’s obligations.
  • Fully Completed. The term "Fully Completed" shall mean that the Work has been finally and fully completed in accordance with Vendor’s proposal, as well as all plans, drawings and specifications submitted as a part of the Purchase Order (the “Specifications"), with all punch-list items completed and that Buyer has been furnished with proof that all bills for labor done and material furnished have been paid.

B. CONDITION OF THE SITE; VERIFICATION. Vendor, as a part of the Purchase Order, represents that, prior to submitting any Purchase Order, Vendor has visited the Project Site, has field checked and verified all dimensions, grades, lines, levels, or other conditions of limitations at the Project Site and has become familiar with the local conditions under which the Work is to be performed, including but not limited to all applicable building restrictions, all building codes and ordinances covering the Work, all other governmental requirements relating to the performance of the Work and all environmental and safety codes and rules and regulations of all governmental authorities related to the construction of the Work to avoid construction errors. Any extra costs due to inadequate verification shall be without reimbursement or compensation to Vendor by Buyer.

C. PROGRESS PAYMENTS; APPLICATIONS; CONTENTS. Based upon applications for payment submitted to Buyer by Vendor, which have been approved by Buyer’s Representative (“Applications for Payment"), Buyer shall make progress payments to Vendor against the amounts due on the Purchase Order (the “Purchase Order Sum"). Applications for Payment shall include waivers of lien, if Vendor has been assisted with subcontractors and received materials from third parties as well as copies of invoices supporting the requested amount, together with such other information as Buyer may request. Vendor shall pay all sales, consumer use, and other similar taxes and shall itemize the taxes so paid in any statements delivered to Buyer. The submission of any Application for Payment shall, except as stated otherwise therein, be deemed conclusively as an acknowledgment of full payment for amounts requested in all prior Applications for Payment.

D. RETAINAGE/HOLDBACK. Buyer shall be entitled to retain such percentage of the amount of each Application for Payment plus applicable taxes, as is required by the jurisdiction where the Project Site is located, as retainage/holdback, to be paid to Vendor as provided for by the law of such jurisdiction, as well as such sums as would be required to satisfy any claims filed by third parties claiming sums due from Vendor relating to the Work.

E. BONDING AGAINST LIENS. In the event a lien is filed or claimed against the Work by any subcontractor, laborer or supplier of materials, Vendor agrees, unless covered by a valid lien bond, immediately to bond such lien in accordance with provisions of applicable law or to cause such lien to be discharged. If Vendor shall fail to do so, Buyer may, at its option and at the expense of Vendor (which expense shall include, without limitation, Buyer's reasonable legal fees, court costs, consultant fees and expenses and expert witness fees and expenses), bond such lien or take all steps it deems necessary, in Buyer's sole and absolute discretion, to cause it to be discharged, including payment, in such amounts as Buyer deems reasonable and appropriate in the sole and absolute discretion of Buyer, such amounts as are claimed by any lien claimant. In the event Buyer receives written notice of any such lien, Buyer may also holdback payments due to Vendor in whole or part and/or make direct payment (at Vendor’s expense) to the lien claimant, in each case in accordance with applicable law required by the jurisdiction where the Project Site is located.

F. AUTHORIZED CHANGES IN THE WORK; CHANGE ORDER REQUIREMENTS. All such changes in the Work shall be authorized only by written change order signed by Buyer prior to the commencement of such work (a “Change Order”). The Purchase Order Sum, the date or dates for the delivery of the Goods and Services and the date for the completion of the Work may be changed only by Change Order.

G. DIRECT PAYMENTS. Buyer reserves the right to make any payments, which may be due under the Purchase Order, directly to Vendor, or, in the alternative, jointly to Vendor and any other party who has provided labor, materials and/or services, which have been incorporated by Vendor into the Work, or directly to any such other party.

H. FINAL PAYMENT; REQUISITES. Final payment, constituting the entire unpaid balance of the Purchase Order Sum (the “Final Payment”), shall be paid by Buyer to Vendor when the Work has been Fully Completed, the Purchase Order fully performed, and in accordance with applicable law required by the jurisdiction where the Project Site is located, but in no event prior to (a) the time otherwise required by the Purchase Order and (b) the time period for the filing of any mechanics' or materialmen's liens relating to the Work, has expired under all applicable laws.

I. TIME LIMITATION FOR SUBMISSION OF APPLICATIONS FOR PAYMENT, ETC. Vendor must submit all bills, invoices, statements and Applications for Payment, including Applications for Payment for additional work covered by Change Orders, to Buyer's Representative, prior to the due date of the Final Payment. Buyer shall have no liability for, and Vendor waives any right to payment of, any bills, invoices, statements and Applications for Payment, including Applications for Payment for additional work covered by Change Orders, which are received by Buyer, after the earlier of: the due date of the Final Payment; the date of any abandonment by Vendor of the completion of the Work; or, the date of the termination of this Purchase Order due to the default of Vendor.

J. CORRECTION OF WORK PRIOR TO FINAL PAYMENT. Vendor shall promptly remove any Work that does not meet the requirements of the Plans, is incorrectly installed or is disapproved by Buyer's Representative, as failing to meet the intention of the Purchase Order. Vendor shall promptly replace any such Work without expense to Buyer and shall bear the cost of making good all Work of other contractors, or Buyer, destroyed or damaged by such removal or replacement.

K. STORAGE OF MATERIALS; DUMPSTER. Any enclosed or secured areas required for the storage of materials shall be furnished by and be the sole responsibility of Vendor. The location of any of these areas must be approved in advance, in writing, by Buyer's Representative. Buyer shall furnish a dumpster on the Project Site. Vendor shall require all trash to be picked up daily and deposited in the dumpster. All trash, debris and waste materials deposited in dumpsters shall be regularly removed from the Project Site. Only materials and equipment which are to be used directly in the Work shall be brought to and stored on the Project Site by Vendor. After equipment is no longer required for the Work, it shall be promptly removed from the Project Site. Protection of construction materials and equipment stored at the Project Site from weather, theft, damage and all other adversity is solely the responsibility of Vendor during the performance of the Work. Vendor shall strictly comply (and shall ensure any subcontractors strictly comply) with all applicable federal, state, provincial, municipal and local laws, statutes, by-laws, regulations and guidelines, municipal by-laws and standards set by administrative or regulatory bodies relating to the protection and preservation of the environment, including the Environmental Protection Act R.S.), 1990 c. E-19 (Ontario), the Technical Standards and Safety Act, S.O. 2000, c. 16, and the Canadian Environmental Protection Act, S.C. 1999, c. 33 (“Environmental Laws”). 

L. QUALITY OF WORK; WARRANTY AND GUARANTY OF VENDOR. Vendor hereby warrants and guarantees the Work to be in accordance with the Specifications, and that all Work shall be free from defects in materials, workmanship, design and supervision for the greater of (a) one year after the Work is Fully Completed or (b) anytime periods set forth in the Specifications, and that there shall be no structural and/or earth movement resulting from the negligence of Vendor causing damage to any portion of any property of Buyer or any negligence of Vendor causing damage to any portion of any adjoining structure.

M. THIRD-PARTY BENEFICIARIES; NONE CREATED. Other than the rights of the Indemnitees to indemnification pursuant to the Purchase Terms, nothing express or implied in this Purchase Order is intended to confer, nor shall anything herein confer, upon any person other than the parties hereto and the respective successors or assigns of the parties hereto, any rights, remedies, obligations or liabilities whatsoever.

N. MINIMIZING INTERRUPTION WITH BUSINESS ACTIVITIES OF BUYER. Vendor understands that the Work is to be performed while Buyer conducts its normal business operations and activities at the Project Site. Vendor shall coordinate the Work with Buyer's Representative in such a way at to minimize the extent reasonably possible, any interruptions to Buyer's business operations and activities. In the event of any conflict between the Additional Terms and any other terms and conditions of the Purchase Order, the Additional Terms shall control.

2. CANADA-SPECIFIC TERMS – RUSH TRUCK CENTRES OF CANADA, LTD. - Where Rush Truck Centres of Canada Ltd is the Rush Entity named in a Purchase Order, the following Canada-specific terms and conditions shall apply (“Canada Specific Terms”):

A. Prohibited Vendors. Without limiting subsection A.8.a. above, Vendor and any of its subcontractors shall not use or provide Buyer any Goods or Services provided, developed or financed from any company or entity identified by Buyer or by the Government of Canada as sanctioned or prohibited (collectively, the “Prohibited Vendors (CA)" ), including, without limitation the individuals or entities: (i) identified by the Canadian Government as under sanction (which are currently posted on the internet here: Consolidated Canadian Autonomous Sanctions List); (ii) that are listed as terrorist persons designated under the Criminal Code (which are currently posted on the internet here); (iii) that are designated under the United Nations Act (which are currently posted on the internet here: United Nations Security Council Consolidated List);  (iv) that are listed in accordance with the Freezing Assets of Corrupt Foreign Officials Act (currently listed here and here). Vendor is responsible for being familiar with the Prohibited Vendors (CA), including additional Prohibited Vendors (CA) that Buyer may identify by notice to Vendor or that the Canadian Government may identify from time to time. Vendor's failure to comply with this requirement will be considered a material breach of this agreement.

B. Insurance. Vendor will obtain and maintain the following insurance coverage (subject to any additional insurance limits and coverages as Buyer may require, as set forth in Buyer’s Standard Insurance Requirements found here): (a) Workers’ Compensation as required in the province(s) in which the Agreement is to be performed (or evidence that registration for worker’s compensation insurance is not mandatory in such province(s)); (b) Commercial General Liability on an Occurrence Form covering liability arising from premises, operations, independent contractors, products/completed operations, personal injury and advertising injury, employers liability and contingent employers liability, hired and non-owned liability, and liability assumed under an insured contract:  $1,000,000 each occurrence; and (c) Automobile Liability $1,000,000 each accident. In addition to the foregoing, Vendors who transport, deliver, or otherwise have Buyer’s vehicles/property in their care, custody, or control will also obtain and maintain the following insurance coverage: (d) Garage Liability: $1,000,000 each accident (including comprehensive and collision coverage for customer autos an amount sufficient to cover Buyer Vehicles/property in Vendor’s care, custody, or control). The General Liability insurance policy shall be issued by an insurance company reasonably acceptable to Buyer. The General Liability policy must be endorsed: (i) to name “Rush Enterprises, Inc. and its subsidiaries and affiliates, successors and assigns, as their interests may appear” as additional insureds (“Additional Insureds”); and (ii) to include a waiver of subrogation in favor of the Additional Insureds and shall require that Buyer receive thirty (30) days prior written notice from the insurer of any termination or reduction in the amount or scope of coverage.  With respect to any such insurance coverage, Vendor will furnish to Buyer a certificate evidencing satisfaction of the insurance requirements within ten (10) days after Buyer’s request. The furnishing of certificates of insurance and purchase of insurance will not limit or release Vendor from Vendor’s obligations or liabilities under the Purchase Terms.

C. Governing Law; Venue. The Purchase Terms between Buyer and Vendor shall be governed by the laws of the Province of Ontario, Canada (without regard to any conflicts of law rules that would direct or refer to the laws of a different jurisdiction). Vendor and Buyer agree that venue for any litigation shall be exclusively in the Provincial or Federal Courts in the province of Ontario, as applicable; provided, however, that the foregoing shall not be construed to limit the rights of Buyer or Vendor to enforce a judgment or order from either of these courts in another jurisdiction. The Purchase Terms cannot be amended or modified as against Buyer except by a writing signed by an authorized representative of Buyer. No claim or right of Buyer arising out of any breach of any of Vendor's obligations to Buyer may be discharged by a purported waiver or renunciation unless such waiver or renunciation is made expressly by Buyer in writing and is supported by consideration. The UN Convention on Contracts for the International Sale of Goods shall not apply to the Purchase Terms.

D. Immigration and Refugee Protection Act. Vendor represents and warrants that it is in compliance with and agrees that it will remain in compliance with the provisions of the Immigration and Refugee Protection Act and the regulations thereunder, including but not limited to the provisions prohibiting hiring and employment of unauthorized individuals, and requiring verification and record keeping with respect to identity and eligibility for employment.

E. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and, with respect to notices to Vendor, addressed to the Vendor at the address provided to Buyer, and, with respect to Buyer, addressed to: Rush Truck Centres of Canada Limited, 7450 Torbram Road, Mississauga, ON L4T 1G9 ATTN: Purchasing, or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Purchase Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

F. Compliance with Construction Act. In the event of any inconsistency between the Terms and the provisions of Construction Act, R.S.O. 1990, c. C.30 (the “Construction Act”), as may be amended, the provisions of the Construction Act shall prevail.

G. English Language. The parties confirm that it is their wish that the agreement as well as all other documents relating thereto, including all notices, have been and will be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise.

3. ORDER OF PRECEDENCE. - The Construction Terms and Canada Terms shall prevail over any conflicting terms in Section A (GENERAL TERMS). The Canada Terms shall prevail over any conflicting Construction Terms.

 

Rev. 072122