Document VK2Y7Nd7G7GNaNVLNoyQG6p0N

5X0408609 PLAINTIFF'S EXHIBIT THE DOW CHEMICAL COMPANY PURCHASE ORDER / CONTRACT / CONTRACT RELEASE LUMP SUM P.O. 7605573-P009 COMMITMENT DATE 02-09-89 MAIL DUPLICATE INVOICES TO: 02/09/89 DOW CHEMICAL COMPANY TEXAS OPERATIONS CONTRACTOR PAYABLE, APB BUILDING FREEPORT TX 77541 VENDOR WIN-WAY INC P 0 DRAWER GG FREEPORT (409-238-6725) K TX 77541 DELIVER TO DOW CHEMICAL COMPANY LUMP SUM P.O. 7605573-P009 RECEIVING B401, TEXAS OPERATIONS DEL TO: L R BRADEN JR/A-1146 FREEPORT TX 77541 BUYER: H M JOHNSTON 409-238-2098 SHIPPING DATE: 02-09-89 PAYMENT TERMS: RECEIPT INVOICE PLUS 15 DAYS MODE OF TRANSPORT: NOT APPLICABLE DELIVERY TERMS: NOT APPLICABLE FRT TERMS: SHIP FROM: DFI NOT APPLICABLE W/O COST CTR 7. 1183 100.00 LED SUF-AC SUBF SOURCE-1 251 SOURCE-2 612 LOG EXPEDITOR: H M JOHNSTON REQUISITION NUMBER: 07605573 REQUISITIONER: L R BRADEN JR DEPARTMENT: PROJECT/CONTRA BLDG: A-1146 409-238-4851 IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THAT CERTAIN CONTINUING CONTRACT DATED 04-01-85. ITEM QUANTITY UNIT ITEM CODE DESCRIPTION LOC 1 1.000 SHIPPING DATE LOT 02-09-89 FURNISH LABOR, MATERIALS, TOOLS AND EQUIPMENT FOR MISCELLANEOUS ASBESTOS REMOVAL, BLOCK A-36 AND A-40, PLANT A, IN ACCORDANCE WITH JOB SPECIFICATIONS M101-1183A40, DATED JANUARY 20, 1989. WORK SHALL BE COMMENCED WITHIN TWENTYONE CALENDAR DAYS AFTER DATE OF ORDER AND SHALL BE COMPLETED WITHIN THIRTY- PAGE L R BRADEN JR A-1146 STOdCIRfinQ ST04086 10 TERMS AND CONDITIONS 1. THIS ORDER AND PERFORMANCE HEREUNDER IS TO BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE FROM WHICH THIS ORDER ISSUES AS SHOWN BY THE ADDRESS OF BUYER WHICH IS PRINTED ON THE FACE OF THIS ORDER. 2. BUYER RESERVES RIGHT TO CANCEL ANY PORTION OR ALL OF THIS ORDER IF ANY SHIPMENT IS NOT MADE AS SPECIFIED. 3. NO CHARGE WILL BE ALLOWED FOR HANDLING. PACKING. CRATING. DRAYAGE OR STORAGE WITHOUT THE WRITTEN PERMISSION OF BUYER. 4. ANY GOODS OR MATERIAL DELIVERED IN EXCESS OF AMOUNT CALLED FOR ON THIS ORDER. OR ANY DEFECTIVE MATERIAL MAY BE REFUSED AND RETURNED AT EXPENSE OF SELLER. 5. THIS PURCHASE ORDER FORM MAY BE USED IN CONNECTION WITH PURCHASE RELEASES UNDER FORMAL WRITTEN CONTRACTS AND, IN SUCH CASES. THE CONTRACT TERMS SHALL PREVAIL IF INCONSISTENT WITH EITHER TERMS HEREIN OR THE ACKNOWLEDGEMENT HEREOF, UNLESS OTHERWISE SPECIFICALLY AGREED UPON IN WRITING. 6. SHIPMENT CF ANY PART OF THIS ORDER WITHOUT WRITTEN ACCEPTANCE CONSTITUTES ACCEPTANCE OF ORDER AND ITS CONDITIONS BY SELLER. 7. SELLER SHALL NOT ASSIGN THIS ORDER. OR ANY PART THEREOF, WITHOUT CONSENT OF BUYER. SUCH CONSENT SHALL NOT RELEASE SELLER FROM ITS OBLIGATIONS AND LIABILITIES. B. PAYMENT FOR THE GOODS UNDER THIS ORDER SHALL NOT CONSTITUTE ACCEPTANCE THEREOF. ALL MATERIALS SHALL BE RECEIVED SUBJECT TO INSPECTION AND REJECTION BY BUYER. DEFECTIVE MATERIAL OR MATERIAL NOT IN ACCORDANCE WITH SPECIFICATIONS OF BUYER MAY BE HELD FOR INSPECTION BY SELLER AND AT RISK AND EXPENSE OF SELLER. IF INSTRUCTIONS ARE NOT RECEIVED WITHIN FIFTEEN (15) DAYS AFTER NOTICE OF REJECT1 ON, GOODS MAY BE RETURNED OR SOLD FOR ACCOUNT AND AT EXPENSE OF SELLER. NO GOODS RETURNED AS DEFECTIVE SHALL BE REPLACED WITHOUT THE WRITTEN PERMISSION OF BUYER. 9. IF MATERIAL IS FURMSHED BY BUYER TO SELLER OR DESIGNEE OF SELLER IN CONNECTION WITH THIS ORDER, SELLER SHALL BE SOLELY RESPONSIBLE FOR ALL SUCH MATERIAL. 10. NEITHER PARTY SHALL BE LIABLE FOR DELAYS OR DEFAULTS DUE TO ACTS OF GOD. ACTS OF GOVERNMENTAL AUTHORITY, ACTS OF PUBLIC ENEMY, WAR, FIRES. FLOOOS, EPIDEMICS. STRIKES, LABOR TROUBLES, OR CAUSES OR CONTINGENCIES REASONABLY BEYOND ITS CONTROL, BUT THIS PARAGRAPH SHALL NOT PREVENT BUYER FROM CANCELLING IN ACCORDANCE WITH ARAGRAPH 2 HEREOF. 11. SELLER WARRANTS GOODS FURNISHED HEREUNDER SHALL BE OF THE QUALITY AND SPECIFICATIONS STATED HEREIN. AND FREE FROM ALL DEFECTS IN DESIGN, WORKMANSHIP, AND MATERIALS. 12. SELLER WARRANTS THAT THE GOODS COVERED BY THIS ORDER ARE PRODUCED AND SOLD FREE OF PATENT INFRINGEMENTS. 13. NO WAIVER OF OR EXCEPTION TO ANY OF THE TERMS. CONDITIONS OR PROVISIONS CONTAINED IN THIS ORDER SHALL BE VALID UNLESS SPECIFICALLY AGREED TO iN WRITING. NO WAIVER OF A BREACH OF ANY PROVISION OF THIS ORDER SHAlL CONSTITUTE A WAIVER OF ANY OTHER BREACH, OR OF SUCH PROVISION. 14. THIS OFFER IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. ANY AOOITIONAL OR CONFLICTING TERMS AND CONDITIONS CONTAINED IN ANY ACKNOWLEDGMENT OF THIS OFFER SHALL HAVE NO EFFECT. 15. THIS ORDER MUST NOT BE FILLED AT HIGHER PRICES THAN LAST QUOTED BUYER WITHOUT NOTICE TO BUYER AND ACCEPTANCE. 16. SELLER WARRANTS THAT IT iS IN COMPLIANCE WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS. RULES AND REGULATIONS. 17. SELLER MUST INCLUDE AN ITEMIZED PACKING LIST WITH EACH SHIPMENT. SHOWING INDIVIDUAL ITEM NUMBERS AS THEY APPEAR ON THIS OROER. 18. ANY INVOICES BEARING TRANSPORTATION CHARGES MUST BE SUPPORTED WITH ORIGINAL RECEIPTED TRANSPORTATION BILLS SHOWING WEIGHT AND RATE. 19. IN THE EVENT THAT THE PERFORMANCE By SELLER HEREUNDER REQUIRED ENTRANCE ON OR INTO PREMISES OF BUYER, SELLER SHALL COMPLY WITH ALL SAFETY RULES AND REGULATIONS OF BUYER, AND SELLER FURTHER AGREES THAT IT WILL PROTECT, INDEMNIFY AND SAVE HARMLESS BUYER FROM ANY AND ALL CLAIMS, DEMANOS AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER MAOE AGAINST BUYER BY SELLER OR ANY EMPLOYEE OR AGENT OF SELLER, BECAUSE OF INJURY OR ALLEGED INJURY (INCLUDING DEATH) OR DAMAGE OR ALLEGED DAMAGE TO PROPERTY OF SELLER OR ITS EMPLOYEE OR AGENT OCCURING IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE BY SELLER HERE UNDER, HOWEVER CAUSED. FORM. PURCBK IDENTIFIER 8334 RTrunafiin $10408611 I* ^ THE DOW CHEMICAL COMPANY PURCHASE ORDER / CONTRACT / CONTRACT RELEASE COMMITMENT NUMBER 7605573 VENDOR WIN-WAY INC LUMP SUM P.O. K ITEM ___ QUANTITY UNI_T_ ITEM CODE 1 **** CONTINUED DESCRIPTION 02/09/89 FIVE WORKING DAYS THEREAFTER. FEE APPLICABLE TO PARAGRAPH 6.01 (C) UNDER ARTICLE VI OF DOW'S CONTRACT FORM ---------- 55 7.. THE CONTRACT PRICE IS BASED ON THE FOLLOWING CONDITIONS: 1) DOW TO FURNISH ALL ASBESTOS MATERIALS PER 6.0 OF BID SPECIFICATIONS AND ASBESTOS BAGS AND POLYFILM. 2) DOW TO FURNISH JLG LIFT. 3) WIN-WAY TO FURNISH SUFACTANT TO WET ASBESTOS. FIELD WORK IS NOT TO BEGIN UNTIL AN AVO HAS BEEN ISSUED BY J. F. MCCREARY, BUILDING A-802, PHONE 238-3489. TAXES REMITTED BY CONTRACTOR ON LUMP SUM PORTION ONLY. ANY ADDITIONAL COST PLUS WORK - DO NOT TAX - DOW WILL REMIT TAX DIRECT PAY AUTHORIZATION //3-00001-7597-3 LO PAGE L R BRADEN JR A~ L146 ST0408611 TERMS AND CONDITIONS ST0U08612 C* ' ~ _ 1 THIS ORDER AND PERFORMANCE HEREUNDER IS TO BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE FROM WHICH THIS ORDER ISSUES AS SHOWN BY THE ADDRESS OF BUYER WHICH IS PRINTED ON THE FACE OF THIS ORDER. 2. BUYER RESERVES RIGHT TO CANCEL ANY PORTION OR ALL OF THIS ORDER IF ANY SHIPMENT IS NOT MADE AS SPECIFIED. 3. NO CHARGE WILL BE ALLOWED FOR HANDLING. PACKING, CRATING. DRAYAGE OR STORAGE WITHOUT THE WRITTEN PERMISSION OF BUYER. 4. ANY GOODS OR MATERIAL DELIVERED IN EXCESS OF AMOUNT CALLED FOR ON THIS ORDER, OR ANY DEFECTIVE MATERIAL MAY BE REFUSED AND RETURNED AT EXPENSE OF SELLER. 5. THIS PURCHASE ORDER FORM MAY BE USED IN CONNECTION WITH PURCHASE RELEASES UNDER FORMAL WRITTEN CONTRACTS ANO. IN SUCH CASES, THE CONTRACT TERMS SHALL PREVAIL IF INCONSISTENT WITH EITHER TERMS HEREIN OR THE ACKNOWLEDGEMENT HEREOF. UNLESS OTHERWISE SPECIFICALLY AGREED UPON IN WRITING. 6. SHIPMENT OF ANY PART OF THIS ORDER WITHOUT WRITTEN ACCEPTANCE CONSTITUTES ACCEPTANCE OF OROER AND ITS CONDITIONS BY SELLER. 7. SELLER SHALL NOT ASSIGN THIS ORDER, OR ANY PART THEREOF, WITHOUT CONSENT OF BUYER. SUCH CONSENT SHALL NOT RELEASE SELLER FROM ITS OBLIGATIONS ANO LIABILITIES. 8. PAYMENT FOR THE GOODS UNDER THIS OROER SHALL NOT CONSTITUTE ACCEPTANCE THEREOF. ALL MATERIALS SHALL BE RECEIVED SUBJECT TO INSPECTION AND REJECTION BY BUYER. DEFECTIVE MATERIAL OR MATERIAL NOT IN ACCORDANCE WITH SPECIFICATIONS OF BUYER MAY BE HELD FOR INSPECTION BY SELLER ANO AT RISK AND EXPENSE OF SELLER. IF INSTRUCTIONS APE NOT RECEIVED WITHIN FIFTEEN <151 DAYS AFTER NOTICE OF REJECTION. GOODS MAY BE RETURNED OR SOLD FOP ACCOUNT AND AT EXPENSE OF SELLER. NO GOOOS RETURNEO AS DEFECTIVE SHALL BE REPLACED WITHOUT THE WRITTEN PERMISSION CF BUYER. 9. F MATERIAL IS FURNISHED BY BUYER TO SELLER OR DESIGNEE OF SELLER IN CONNECTION WITH THIS ORDER, SELLER SHALL BE SOLELY RESPONSIBLE FOR ALL SUCH MATERIAL. 10 NEITHER PARTY SHALL BE LIABLE FOR DELAYS OR DEFAULTS DUE TO ACTS OF GOD, ACTS OF GOVERNMENTAL AUTHORITY. ACTS OF PUBLIC ENEMY, WAR, FIRES, FLOODS, EPIDEMICS, STRIKES, LABOR TROUBLES, OR CAUSES OR CONTINGENCIES REASONABLY BEYOND ITS CONTROL, BUT THIS PARAGRAPH SHALL NOT PREVENT BUYER FROM CANCELLING IN ACCORDANCE WITH PARAGRAPH 2 HEREOF. 11. SELLER WARRANTS GOODS FURNISHED HEREUNDER SHALL BE OF THE QUALITY ANO SPECIFICATIONS STATED HEREIN, AND FREE FROM ALL DEFECTS IN DE5IGN, WORKMANSHIP, AND MATERIALS. 12. SELLER WARRANTS THAT THE GOODS COVEREO BY THIS ORDER ARE PRODUCED AND SOLD FREE OF PATENT INFRINGEMENTS. 13. NO WAIVER CF OR EXCEPTION TO ANY OF THE TERMS, CONDITIONS OR PRO VIS' ONS CONTAINED IN THIS OROER SHALL BE VALID UNLESS SPECIFICALLY AGREED TO IN WRITING. NO WAIVER OF A eREACH OF ANY PROVISION OF THIS ORDER SHALL CONSTITUTE A WAIVER OF ANY OTHER BREACH, OR OF SUCH PROVISION. 14. THIS OFFER IS EXPRESSLY LIMITEO TO THE TERMS AND CONDITIONS CONTAINED HEREIN. ANY ADDITIONAL OR CONFLICTING TERMS AND CONDITIONS CONTAINED IN ANY ACKNOWLEDGMENT OF THIS OFFER SHALL HAVE NO EFFECT. 15. THIS ORDER MUST NOT BE FILLED AT HIGHER PRICES THAN LAST QUOTED BUYER WITHOUT NOTICE TO BUYER AND ACCEPTANCE. 16 SELLER WARRANTS THAT IT IS IN COMPLIANCE WITH ALL APPLICABLE FEDERAL, STATE ANO LOCAL LAWS, RULES AND REGULATIONS. IT. SELLER MUST INCLUDE AN ITEMIZEO PACKING LIST WITH EACH SHIPMENT, SHOWING INDIVIDUAL ITEM NUMBERS AS THEY APPEAR ON THIS ORDER. ia ANY INVOICES BEARING TRANSPORTATION CHARGES MUST BE SUPPORTED WITH ORIGINAL RECEIPTED TRANSPORTATION BILLS SHOWING WEIGHT AND RATE. 19. IN THE EVENT THAT THE PERFORMANCE BY SELLER HEREUNOER REQUIRED ENTRANCE ON OR INTO PREMISES OF BUYER, SELLER SHALL COMPLY WITH ALL SAFETY RULES ANO REGULATIONS OF BUYER, AND SELLER FURTHER AGREES THAT IT WILL PROTECT. INDEMNIFY ANO SAVE HARMLESS BUYER FROM ANY AND ALL CLAIMS, DEMANDS AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER MADE AGAINST BUYER BY SELLER OR ANY EMPLOYEE OR AGENT OF SELLER, BECAUSE OF INJURY OR ALLEGED INJURY {INCLUDING DEATH) OR DAMAGE OR ALLEGED DAMAGE TO PROPERTY OF SELLER OR ITS EMPLOYEE OR AGENT OCCURING IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE BY SELLER HERE UNDER. HOWEVER CAUSED. FORM PURCBK IDENTIFIER 8334