HILLIARD ENTERPRISES, INC. TERMS AND CONDITIONS OF SALE
Effective Date: 04/07/2026
These Terms and Conditions of Sale (“Terms”) govern all sales of products (“Products”) by Hilliard Enterprises, Inc. (“Seller”) to the purchaser identified on the applicable order, invoice, or quotation (“Buyer”). By placing an order with Seller, Buyer agrees to be bound by these Terms. These Terms supersede any terms or conditions contained in any purchase order, acknowledgment, or other document issued by Buyer, and any such conflicting terms are expressly rejected by Seller.
1. Acceptance of Orders
1.1 Quotations. All quotations issued by Seller are invitations to offer (not offers) and aresubject to withdrawal or revision at any time prior to Seller’s written acceptance of Buyer’sorder. Quotations (as to the price specified therein) are valid for thirty (30) days from thedate of issuance unless otherwise specified in writing by Seller.
1.2 Order Acceptance. All orders are subject to acceptance by Seller at its sole discretion.Seller reserves the right to accept or reject any order, in whole or in part, for any reason.An order shall not be deemed accepted until Seller issues a written order acknowledgmentor ships the Products, whichever occurs first.
1.3 Order Modifications. No modification, amendment, or cancellation of any order shallbe binding upon Seller unless agreed to in writing by an authorized representative of Seller.
1.4 Minimum Orders. Seller reserves the right to establish minimum order quantities orvalues. Orders below such minimums may be subject to additional handling charges.
2. Prices
2.1 Pricing. All prices are as set forth in Seller’s written quotation or, in the absence of aquotation, Seller’s price in effect at the time of shipment. Prices are subject to changewithout notice prior to order acceptance.
2.2 Taxes. Seller’s quoted prices include all applicable import duties and tariffs incurredby Seller in connection with the procurement or manufacture of the Products. Prices do notinclude any federal, state, or local sales, use, excise, value-added, or other taxes orgovernmental charges imposed on Buyer’s purchase of the Products. Buyer shall beresponsible for all such taxes and charges, or shall provide Seller with a valid exemptioncertificate acceptable to the relevant taxing authority.
2.3 Price Adjustments. If the cost of materials, labor, transportation, or other factorsaffecting Seller’s cost of production increases between the date of quotation and the dateof shipment, Seller reserves the right to adjust prices accordingly upon written notice toBuyer.
3. Payment Terms
3.1 Payment Terms. Unless credit terms have been established in writing by Seller,payment in full is due in advance of shipment. Where Seller has extended credit terms inwriting, payment shall be due net thirty (30) days from the date of invoice, or as otherwisespecified in Seller’s written credit approval.
3.2 Credit Approval. All orders are subject to credit approval by Seller. Seller may, at anytime and in its sole discretion, modify, suspend, or revoke credit terms extended to Buyer.
3.3 Late Payment. Any amounts not paid when due shall bear interest at the rate of oneand one-half percent (1.5%) per month, or the maximum rate permitted by applicable law,whichever is less, from the due date until paid in full.
3.4 Collection Costs. Buyer shall pay all costs and expenses, including reasonableattorneys’ fees, incurred by Seller in collecting any amounts due from Buyer.
3.5 Set-Off. Seller may, without notice to Buyer, set off any amounts owed by Seller toBuyer against any amounts owed by Buyer to Seller.
3.6 Security Interest. Buyer hereby grants to Seller a purchase money security interest inall Products sold to Buyer and all proceeds thereof to secure payment of all amounts owedto Seller. Buyer agrees to execute any documents and take any actions reasonably requestedby Seller to perfect such security interest.
4. Shipment and Delivery
4.1 Shipping Terms. Unless otherwise agreed in writing, all shipments are free on board(“FOB”) Seller’s facility (Incoterms 2020 free carrier (“FCA”) Seller’s facility forinternational shipments). Title and risk of loss shall pass to Buyer upon delivery of theProducts to the carrier at Seller’s facility.
4.2 Delivery Dates. Delivery dates are estimates only and are not guaranteed. Seller shallnot be liable for any delays in delivery. Time is not of the essence with respect to anydelivery.
4.3 Shipping Method. Buyer shall be responsible for arranging and paying for all shippingand transportation from Seller’s facility. If Buyer requests that Seller arrange shipping onBuyer’s behalf, Seller may do so at its discretion, and all shipping costs, including freight,insurance, and handling charges, shall be borne by Buyer.
4.4 Partial Shipments. Seller may make partial shipments, and each shipment shallconstitute a separate sale. Delay in delivery of any installment shall not relieve Buyer ofits obligation to accept and pay for remaining installments.
4.5 Packaging. Seller shall package Products in accordance with Seller’s standardpractices. Special packaging requested by Buyer shall be at Buyer’s expense.
4.6 Inspection Upon Receipt. Buyer shall inspect all Products immediately upon receipt. Any claims for shortage, damage, or nonconformity visible upon inspection must be noted on the delivery receipt and reported to Seller in writing within five (5) business days of receipt. Failure to provide such notice shall constitute acceptance of the Products and waiver of any such claims. Any freight claims for loss or damage occurring during transit shall be the sole responsibility of Buyer, and Buyer shall file and pursue all such claims directly with the carrier.
5. Title and Risk of Loss
5.1 Passage of Title. Title to Products shall pass to Buyer upon delivery to the carrier atSeller’s facility, subject to Seller’s retention of a security interest as provided in Section3.6.
5.2 Risk of Loss. Risk of loss shall pass to Buyer upon delivery to the carrier at Seller’sfacility. Seller shall not be liable for any loss, damage, or delay occurring after delivery tothe carrier.
5.3 Insurance. Buyer is responsible for obtaining insurance coverage for Products fromthe point at which risk of loss passes to Buyer. Upon request, Seller may arrange insuranceon Buyer’s behalf at Buyer’s expense.
6. Cancellation and Returns
6.1 Cancellation by Buyer. Orders may not be cancelled or rescheduled by Buyer exceptwith Seller’s prior written consent. If Seller consents to cancellation, Buyer shall pay acancellation fee equal to the greater of (a) twenty-five percent (25%) of the order value, or(b)all costs and expenses incurred by Seller in connection with the order, including costsof materials, labor, and overhead. Seller may, in its sole discretion, waive or reduce thecancellation fee for any order.
6.2 Returns. Products may not be returned without Seller’s prior written authorization. Authorized returns of non-defective, standard Products in original, unused, and resalable condition may be subject to a restocking fee of up to twenty-five percent (25%) of the invoice price. Custom, special-order, or non-standard Products are not returnable.
6.3 Return Shipping. All authorized returns must be shipped prepaid to Seller’s designated facility. Products returned without authorization or not in compliance with Seller’s return instructions may be refused or returned to Buyer at Buyer’s expense.
7. Limited Warranty
7.1 Warranty Coverage. Seller warrants to the original Buyer that all new andremanufactured Products sold hereunder shall be free from defects in material andworkmanship under normal use and service for the warranty period specified below:
Warranty Period: The earlier of (a) eighteen (18) months after being placed in service bythe original Buyer, or (b) twenty-four (24) months after shipment from Seller’s facility.
7.2 Warranty Exclusions. This warranty shall not apply to any Product that has been:
(a) Used for any purpose other than that for which it was designed or intended;
(b) Repaired, altered, or modified without Seller’s prior written consent;
(c) Subject to misuse, neglect, accident, abuse, or abnormal operating conditions;
(d) Improperly installed, operated, or maintained;
(e) Damaged by Buyer or any third party;
(f) Subject to normal wear and tear; or
(g) Used with parts, components, lubricants, or fuels not approved by Seller.
7.3 High Sulfur Fuel Exclusion. This warranty expressly excludes any warranty claim relating to cylinder wear or damage to components that have been used with high sulfur diesel fuel, including without limitation cast iron and laser hardened cylinder liners used in high sulfur fuel applications.
7.4 Documentation Requirements. Seller reserves the right to require Buyer to provide installation records, maintenance records, operating logs, and any other documentation reasonably requested by Seller in connection with any warranty claim. Failure to maintain or provide such records may void this warranty.
7.5 Sole Remedy. Seller’s sole obligation and Buyer’s exclusive remedy under this warranty shall be, at Seller’s sole option: (a) repair of the defective Product; (b) replacement of the defective Product with a new or remanufactured unit of equivalent functionality; or (c) refund of the purchase price paid for the defective Product. All warranty service shall be performed FOB Seller’s facility. Repair or replacement of Products under warranty shall not extend the original warranty period.
7.6 Warranty Claim Procedure. To make a warranty claim, Buyer must:
(a) Notify Seller in writing within ten (10) days of discovering the alleged defect,describing in reasonable detail the nature of the defect and the circumstances underwhich it was discovered;
(b) Obtain a Return Material Authorization (“RMA”) number from Seller prior toreturning any Product;
(c) Return the allegedly defective Product, in complete condition, securely packaged,via prepaid freight, to Seller’s designated facility within thirty (30) days ofreceiving the RMA number; and
(d) Provide all documentation reasonably requested by Seller, including installationrecords, maintenance records, and operating logs.
7.7 Inspection and Determination. Upon receipt of a returned Product, Seller shall inspect and test the Product to determine, in Seller’s sole discretion, whether a warranted defect exists. Seller reserves the right to be present for any removal and inspection of Products that are subject to a warranty claim. If Seller determines that the Product is not defective or that the defect is not covered by this warranty, Buyer shall be responsible for all costs of inspection, testing, and return shipment, plus a reasonable service charge.
7.8 WARRANTY DISCLAIMER. THE WARRANTY SET FORTH IN THIS SECTION 7 IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED BY SELLER WITH RESPECT TO THE PRODUCTS. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. SELLER DOES NOT WARRANT THAT THE PRODUCTS WILL MEET BUYER’S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER, ITS AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO BUYER.
8. Limitation of Liability
8.1 LIMITATION ON DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE TOBUYER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT,CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND,INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF REVENUE,LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OFCAPITAL, COST OF SUBSTITUTE PRODUCTS OR SERVICES, DOWNTIMECOSTS, DELAYS, OR CLAIMS OF BUYER’S CUSTOMERS OR ANY OTHERTHIRD PARTY, WHETHER ARISING OUT OF OR IN CONNECTION WITH THESALE, DELIVERY, USE, OR PERFORMANCE OF THE PRODUCTS, ANDWHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE ANDSTRICT LIABILITY), WARRANTY, OR ANY OTHER LEGAL THEORY, EVEN IFSELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 MAXIMUM LIABILITY. SELLER’S TOTAL CUMULATIVE LIABILITY TOBUYER FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THE PRODUCTSOR THESE TERMS, WHETHER ARISING OUT OF OR BASED UPON CONTRACT,TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY,INDEMNITY, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THEPURCHASE PRICE ACTUALLY PAID BY BUYER TO SELLER FOR THE SPECIFICPRODUCT GIVING RISE TO THE CLAIM.
8.3 ESSENTIAL PURPOSE. THE LIMITATIONS SET FORTH IN THIS SECTION 8SHALL APPLY EVEN IF ANY LIMITED REMEDY PROVIDED HEREIN FAILS OFITS ESSENTIAL PURPOSE. BUYER ACKNOWLEDGES THAT THE PRICING OFTHE PRODUCTS REFLECTS THE ALLOCATION OF RISK SET FORTH IN THESETERMS AND THAT SELLER WOULD NOT ENTER INTO THIS TRANSACTIONWITHOUT THESE LIMITATIONS ON LIABILITY.
8.4 Time Limitation on Claims. Any claim or cause of action arising out of or related tothe Products or these Terms must be commenced within one (1) year after the cause ofaction accrues, regardless of any longer statutory period.
9. Indemnification
9.1 Indemnification by Buyer. Buyer shall indemnify, defend, and hold harmless Seller, its affiliates, and their respective officers, directors, employees, agents, and representatives from and against any and all claims, demands, actions, suits, proceedings, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to:
(a) Buyer’s use, resale, or distribution of the Products, unless otherwise agreed upon in writing by the Seller;
(b) Any breach by Buyer of these Terms;
(c) Any claims by Buyer’s customers or any third party related to the Products;
(d) Any modification or alteration of the Products by Buyer or any third party;
(e) The combination or use of the Products with any other products, equipment, or materials not provided by Seller; or
(f) Any negligent or wrongful act or omission of Buyer, its employees, agents, or contractors.
9.2 Indemnification Procedures. Seller shall promptly notify Buyer of any claim for which indemnification is sought; provided, however, that failure to provide such notice shall not relieve Buyer of its indemnification obligations except to the extent Buyer is materially prejudiced by such failure. Buyer shall have the right to control the defense and settlement of any such claim, provided that Buyer shall not settle any claim in a manner that adversely affects Seller without Seller’s prior written consent.
10. Intellectual Property
10.1 Ownership. All intellectual property rights in the Products and any related documentation, including without limitation patents, copyrights, trademarks, trade secrets, and know-how, are and shall remain the exclusive property of Seller or its licensors. Nothing in these Terms shall be construed to grant Buyer any rights in or to any intellectual property of Seller except the limited right to use the Products for their intended purpose.
10.2 Confidentiality. Buyer shall maintain in confidence all technical data, drawings, specifications, and other information provided by Seller in connection with the Products (“Confidential Information”). Buyer shall not disclose any Confidential Information to any third party or use any Confidential Information for any purpose other than in connection with Buyer’s use of the Products without Seller’s prior written consent.
11. Compliance with Laws
11.1 Export Compliance. Buyer acknowledges that the Products may be subject to export control laws and regulations of the United States and other jurisdictions. Buyer shall comply with all applicable export control laws and regulations and shall not export, re-export, or transfer any Products except in compliance with such laws and regulations.
11.2 General Compliance. Buyer shall comply with all applicable federal, state, local, and foreign laws, regulations, and ordinances in connection with its purchase, use, and resale of the Products.
12. Force Majeure
Seller shall not be liable for any delay or failure in performance resulting from causes beyond Seller’s reasonable control, including without limitation acts of God, war, terrorism, civil unrest, labor disputes, strikes, fire, flood, earthquake, pandemic, epidemic, government actions, embargoes, sanctions, shortage of materials or components, transportation delays, or failures of suppliers or subcontractors. In the event of any such delay, Seller may, at its option, extend the time for performance by a period equal to the duration of the delay or cancel all or any part of the affected order without liability.
13. Governing Law and Dispute Resolution
13.1 Governing Law. These Terms and any disputes arising hereunder shall be governed by and construed in accordance with the laws of the State of Arkansas, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to these Terms.
13.2 Jurisdiction and Venue. Any legal action or proceeding arising out of or relating to these Terms shall be brought exclusively in the state or federal courts located in Pulaski County, Arkansas, and the parties hereby irrevocably consent to the personal jurisdiction and venue of such courts.
13.3 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OR THE PRODUCTS.
14. General Provisions
14.1 Entire Agreement. These Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties.
14.2 Amendments. These Terms may not be amended, modified, or supplemented except by a written instrument signed by an authorized representative of Seller. Any additional or different terms in any purchase order, acknowledgment, or other document issued by Buyer are hereby rejected.
14.3 Waiver. No failure or delay by Seller in exercising any right, power, or remedy shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or remedy preclude any other or further exercise thereof.
14.4 Severability. If any provision of these Terms is held to be invalid, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, or if such modification is not possible, such provision shall be severed from these Terms, and the remaining provisions shall continue in full force and effect.
Page 8 of 8
14.5 Assignment. Buyer may not assign or transfer any of its rights or obligations under these Terms without Seller’s prior written consent. Seller may assign these Terms or any of its rights or obligations hereunder without Buyer’s consent.
14.6 Notices. All notices required or permitted under these Terms shall be in writing and shall be deemed given when delivered personally, sent by confirmed email, or sent by recognized overnight courier to the address specified on the applicable order or such other address as a party may designate in writing.
14.7 Relationship of Parties. The relationship between Seller and Buyer is that of independent contractors. Nothing in these Terms shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties.
14.8 Survival. The provisions of these Terms that by their nature should survive termination or expiration, including without limitation Sections 3, 7.8, 8, 9, 10, and 13, shall survive any termination or expiration of these Terms.
14.9 Headings. The headings in these Terms are for convenience only and shall not affect the interpretation of these Terms.
These Terms and Conditions of Sale are effective as of April 7, 2026, and supersede all prior versions.
