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Effective: November 28th, 2017 to December 16th, 2020
Terms & Conditions
Last modified: November 27, 2017 (view archived versions)
- The following Terms and Conditions (“T&C”) apply to this Purchase Order (“PO”) for all products, goods and/or materials purchased from Seller (sometimes referred to as “Metal Building System”). The T&C and PO collectively constitute the Contract between Seller and Buyer named in the PO. This Contract shall become a binding contract upon its acceptance in writing by an authorized representative of Seller (“Contract”) and thereafter cannot be canceled or modified by Buyer under any circumstances without Buyer first reaching an agreement in writing with Seller covering all of Seller’s damages and/or remedies as set forth in this Contract. By its execution and/or acceptance of this PO electronic or otherwise, Buyer unconditionally and irrevocably accepts these T&C which shall not be waived, modified or amended without the express written consent of Seller’s authorized representative. Terms and conditions contained within any other document or agreement issued by Buyer shall be of no force and effect. Any documents that Buyer may use including, but not limited to, purchase orders or sales acknowledgement forms shall be deemed to be for the administrative convenience of Buyer only, and this PO shall supersede and take precedence over any of Buyer’s terms and conditions that may be contained on any such forms. Seller has the right to modify or substitute for the design of the building or substitute manufacturer equivalent products, so long as the new design and/or equivalent products continue to meet the specifications in this Purchase Order for width, length, eave height and wind and snow loads and in any such case Seller shall have no further obligation or liability with respect to any such modification or substitution. Specifications for buildings, components, materials, and goods and the warranties stated herein and in Seller’s Limited Steel Building Warranty document (“Warranty Document”) may differ from those appearing in Seller’s brochures advertisements, communications and websites, due to supply, demand and availability of materials and goods. The specifications and warranties for ordered goods are not modified, controlled by or expanded by any statements contained in any of the foregoing and are solely as stated herein and in Seller’s Warranty Document, which is fully incorporated herein by this reference.
- Buyer will make a non-refundable up‐front payment to Seller for the preparation of building drawings (“building drawings”) and/or the purchase of steel materials to be used in the building identified in the PO. If any payment hereunder is made by Buyer by ACH, bank draft, or credit card, Buyer by it’s signature on the face of the PO authorizes Seller to debit or charge the bank account or credit card for all amounts due hereunder. The Engineering & Drawings Payment and Change Order payments, if any, paid to Seller are offered in good faith performance of contractual obligations, for Seller’s expenses and as security in the event of Buyer’s Breach. Not withstanding any other provisions to the contrary herein, if: (a) the payment or payments are insufficient to fully cover Seller’s damages in the event of Buyer’s breach; (b) the order is a Special Order; (c) Seller becomes insecure about Buyer’s willingness, intent or ability to perform Buyer’s financial or other obligations hereunder; or (d) Seller deems Buyer’s credit to be impaired, then Seller may demand (i) that Buyer provide such additional assurances as may be requested by Seller that Buyer will perform and is capable of performing Buyer’s obligations under this Contract; and/or (ii) Buyer’s payment of up to the Total Purchase Price, as may be adjusted hereunder, plus storage fees and all other costs, expenses and damages incurred by Seller due to Buyer’s delay or default, prior to Seller’s delivery of any ordered goods. Buyer’s failure to comply with Seller’s demand for additional assurances and/or to pay the Total Purchase Price shall constitute a Breach and Seller shall be entitled to payment of all damages provided for herein and at law. In addition to, or as part of, Seller’s other remedies specified herein, upon Buyer’s Breach, Seller may retain on its own account all payments paid by Buyer, and such retention shall not impair any other remedies available to Seller under this Contract or at law or equity.
- Buyer acknowledges and agrees that this Contract is not valid for plan and specification projects since it is based on Seller’s product standards only. Any plans, specifications, details, descriptions, drawings, documents, terms, and/or conditions not specifically created by Seller or referred to in this Contract are not a part hereof and are not binding upon Seller. The specifications as detailed or referenced in this PO as well as any final drawings created by Seller shall govern in all instances. Whether stated on the front of the PO or not, Buyer is solely responsible for investigating and ascertaining all zoning by-laws, rules, regulations and ordinances, all building codes, building permit requirements applicable in and to the area or territory where the building or structure purchased hereunder is to be erected (“Building Laws”) , and providing such information to seller. Buyer is solely responsible for designing a building or structure that will fit Buyer’s particular needs and that complies with all applicable Building Laws. All specifications for the building or structure purchased hereunder set forth on the face of the PO have been provided to Seller by Buyer based on Buyer’s own due diligence, judgment and determination as to Buyer’s erection location, use and occupancy requirements, and the requirements necessary for the building or structure to comply with all applicable Building Laws. Buyer agrees that the materials, goods and specifications stated herein are in all respects the materials, goods and specifications required by Buyer and Buyer accepts sole responsibility for correcting any nonconformity between the materials, goods and specifications stated herein and in Change Orders. Seller shall not be liable for any damages or losses, of any kind or nature, whether actual, incidental, special, punitive, consequential or direct or indirect, sustained by the failure of the building or structure ordered to comply with such Building Laws or Buyer’s particular requirements. The building or structure ordered is suitable only for erection at the Shipping Address location on the face hereof. Seller shall not be liable to Buyer for any costs, fees and charges of any nature whatsoever incurred in Buyer’s design, manufacture or installation of any building slabs, foundations and/or footings or otherwise incurred by Buyer in connection with construction of the structure or building. Specifications to be provided by Buyer include: (a) building or structure dimensions (width, length, eave height, roof pitch and roof type), (b) the location and size of manufacturer cut openings, (c) sidewall sheeting color, (d) roof coating (Galvalume or colored roof panels), (e) trim color, (f) wind, snow (ground and roof), live and collateral loads, deflections and seismic coefficients, (g) snow and wind exposure, and (h) all components of the building or structure ordered and accessories therefore, including Special Products. Buyer is responsible for making all payments to obtain and for obtaining all required building permits and for any other authorization needed to erect or construct the building or structure, including supplying at Buyer’s own cost any drawings, plans or information required to obtain building permits or any authorization needed for construction. Seller shall not be liable for design deficiencies set forth in specifications or drawings provided by Buyer or any other party, and correction of same shall be at Buyer’s expense. Buyer understands and agrees that the foregoing items are outside of the scope of the Seller’s knowledge and that Seller assures only that the building will meet specific loadings as ordered by Buyer and only as stated in the PO. Buyer agrees to install roof and wall insulation in, and to continuously heat, the building. Seller will not furnish detailed shop drawings of individual parts of the Metal Building System. Buyer accepts Seller’s interpretation of this PO as being correct and further accepts all responsibility for any discrepancies in the Metal Building System.
- Seller may initiate and Buyer may request changes to the Metal Building System described in this PO. Seller will indicate its willingness to comply with Buyer’s requested changes by preparing a written Change Order and delivering same to Buyer using Buyer’s contact information set forth in this PO. Buyer expressly agrees that, if any changes result in added costs of any kind, then Buyer shall bear sole responsibility for such additional costs and the fabrication and delivery time will be extended as determined by Seller in its sole discretion. Buyer agrees any change order issued by Seller shall be deemed an amendment to this PO unless, within 10 days following the date of such change order, Buyer delivers its written objections thereto to Seller’s President or Executive Vice-President.
- All goods purchased under this contract are “specially ordered” goods. Buyer agrees that, in the event Buyer attempts to rescind or cancel this Contract or in the case of a breach, repudiation or default by Buyer hereunder (collectively, a “Breach”), Seller’s full damages will be difficult to measure and, therefore, Seller must take all necessary actions and/or pursue all remedies to safeguard Seller’s position including, but not limited to, placing liens on the property (land and other structures existing on the land) that the building has been or will be placed upon and/or the property designated as the “shipping address” specified by Buyer on the PO. Seller and Buyer agree that, in the event of a Breach by Buyer, Seller is entitled to recover the following liquidated damages from Buyer: (i) 80% of the Building List Price quoted in the PO as well as 80% of any Change Order(s) Total Price if Buyer’s Breach occurs prior to Seller’s purchase of materials, parts and/or components or submission of the building order for fabrication; and (ii) 100% of the Building List Price quoted in the PO as well as 100% of any Change Order(s) Total Price, plus all shipping, return freight, procurement charges, handling and storage costs, if Buyer’s Breach occurs after Seller has purchased materials, parts and/or components or scheduled the building order for fabrication. A Breach entitling Seller to the liquidated damages includes, but is not limited to, Buyer’s: failure or refusal to cooperate with Seller in providing information or returning signed and completed forms necessary to submit the building for fabrication; failure to cooperate in scheduling delivery of the goods; failure or refusal to accept delivery or Seller’s scheduled delivery date; placing the order on hold for more than seven (7) days; failure to respond to communications from Seller for a period of thirty (30) days; failure to finalize and/or approve fabrication or change order documentation within thirty (30) days of execution of this Contract; failure to make any payment when due and in the manner required hereunder; attempted, threatened or actual cancellation or rescission of this Contract; and anticipatory repudiation or repudiation of this Contract. If the price of materials has been increased by any manufacturer or supplier, or an increase in commodity prices occurs after the Buyer has caused a delay, this Contract will be deemed to have been amended to include all price increases caused by such delay and Buyer’s payment obligations hereunder will be increased to reflect such price increases. Buyer agrees that the amount of liquidated damages specified herein is not a penalty and constitutes an actual good faith reasonable estimate of the actual damages that Seller likely will incur due to a Breach by Buyer. As an alternative to recovering liquidated damages from Buyer, or in the event the liquidated damages clause is found to be unenforceable for any reason, Seller may, in its sole discretion, elect to recover from Buyer the costs or damages Seller has incurred by reason of the Breach (such as increased manufacturing, delivery or storage costs). Buyer agrees that, in the event of a Breach by Buyer, all damages shall be immediately due and payable to Seller. In the event that Buyer Breaches this Contract, Buyer shall also be liable for any attorney fees and costs incurred by Seller arising from such Breach to the maximum extent allowed by law.
- As soon as the Metal Building System (or any portion thereof) is ready for delivery to Buyer, Seller will send notification to Buyer and inform Buyer as to the date(s) on which Seller will make delivery of the Metal Building System to a common carrier for shipment to Buyer. The Metal Building System will be shipped FOB Seller’s facilities. “Consolidated”, “Consol Incl” or “Consol Included” listed on the front of the PO under FREIGHT is valid ONLY on orders that are released by Buyer, in writing, for fabrication within sixty (60) days of original order. Orders that are not released for fabrication within sixty (60) days of the fully executed PO will not qualify for consolidated freight and regular freight rates will apply. Consolidated and regular freight rates will be calculated and applied to the PO after the project has been released into fabrication and Seller has a final weight and shipping manifesto available. Buyer shall also be responsible for all fuel surcharges, which may increase freight and estimated freight costs by 25% or more. Title to the Metal Building System sold by Seller to Buyer shall not pass from Seller to Buyer until the Metal Building System is shipped from Seller’s facilities by Seller or, when Seller uses a common carrier, when Seller tenders the Metal Building System to a common carrier for delivery to the Buyer. No Metal Building System in the possession of Seller shall be deemed to be identified to any contract between Buyer and Seller and title shall remain with Seller as to all materials and goods until shipped from Seller’s facilities or, when Seller uses a common carrier, when tendered to a common carrier. Buyer waives any rights to such goods and agrees not to assert any claim for replevin or similar claim to obtain possession of the Metal Building System. As an accommodation to Buyer, Seller may arrange for shipping of the Metal Building System to Buyer’s designated job site. All delivery, fuel, handling and freight charges will be calculated at the time the building and goods ordered hereunder are ready for shipment. All increases in delivery, handling and freight costs shall be paid in full by Buyer to Seller prior to shipment of the building and goods ordered hereunder. If Buyer desires to make its own arrangements for shipping, it must notify Seller not less than 30 days prior to the scheduled shipment date. If Buyer fails or refuses to take delivery on the date specified by Seller, then Seller may, in its sole discretion, invoice Buyer for the full price of the Metal Building System or for that portion of the Metal Building System that is ready for delivery. Additionally, Buyer shall reimburse Seller for the cost of storing such materials and transporting the materials to a storage facility, including spotting, switching, drayage, demurrage, transportation and all other costs incurred and will assume the risk of any and all damages or deterioration to the materials while in storage, including but not limited to cost of repainting. Seller expressly reserves the right, in its sole discretion, to divide this PO into separate shipments and invoice such shipments separately. Buyer agrees that any delivery dates stated by Seller shall be estimates only, may be subject to change by Seller without notice, and are based, among other things, on manufacturing and delivery schedules and Seller’s prompt receipt from Buyer of all information and documents Seller needs to supply the goods ordered. Seller will use reasonable efforts to meet the indicated deliver date(s) but Seller is not responsible or liable for its failure to do so. Buyer agrees that the Seller may, in its discretion, make partial shipments of the order with the COD amounts being adjusted proportionally by shipment. Notwithstanding the preceding sentence, the full amount of the balance shown on the face hereof must be paid by Buyer at time of time of delivery of the building or structure, even though items obtained from third party vendors, such as but not limited to, overhead doors, sliding doors, roll up doors, insulation, skylights, mezzanines, bar joists, decking and windows (hereinafter “Special Products”) have not yet been delivered. Buyer specifically agrees that Seller is not responsible or liable for timeliness of delivery of Special Products or for the suitability of Special Products for any particular use. In connection with the delivery of the goods specified in this PO, if Seller contacts Buyer to arrange for a delivery date and Buyer fails or refuses to accept Seller’s designated delivery date or postpones or attempts to postpone Seller’s designated delivery date by more than seven (7) days, Seller, may, at its option: (i) treat such conduct as a Breach of Contract, cancel the PO and retain any deposit(s) and/or payment(s) made as partial payment of liquidated damages; or (ii) fulfill this PO and charge Buyer for any additional costs incurred by Seller after the date of acceptance of the PO (“Acceptance Date”), including without limitation, any additional steel or other materials costs incurred in manufacturing the building at a later time, additional delivery, freight, handling, labor costs, and storage fees. If Buyer delays the detailing, design, fabrication and/or delivery or otherwise delays this PO in any fashion, the purchase price may be adjusted by Seller, in its sole discretion, to reflect any price increase(s) that Seller may put into effect, which Buyer shall immediately pay upon demand.
- Upon request, Seller may supply the name(s) of: potential manufacturers or vendors to supply additional components, contractors to install concrete, to erect the building or to install building components, or to perform other work pertaining to construction of the building; engineers to design a foundation for the building; and engineers or architects for performance of other work related to construction of the building. Seller has not investigated such persons and the provision of name(s) does not constitute a recommendation of their skill or competence. It is important that Buyer rely solely on its own investigation and conduct its own due diligence when selecting a manufacturer, vendor, contractor, engineer or architect. Buyer acknowledges that Seller is not an agent, employee, or representative of and is not responsible or liable for the acts or omissions of manufacturers, vendors, contractors, engineers or architects.
- Buyer acknowledges and agrees that it will inspect the goods and/or materials reflected in this PO immediately upon delivery. All goods purchased by Buyer hereunder shall be deemed fully accepted by Buyer upon acceptance of delivery. All claims for shortages of bulk packages or bundles or missing items as compared to the bill of lading or for alleged damages or defects caused by shipment of the goods shall be deemed waived unless any such claims are noted in writing on the driver’s copy of the bill of lading at the time of delivery. All claims for alleged damages to and shortages of goods within concealed containers (i.e. parts inside boxes or crates) shall be reported in writing to Seller within five (5) days of the date of delivery or the claims are waived. Buyer must include in the notice the basis of the alleged non-conformity and the description of that portion of the shipment being rejected within the time frames referenced above (which Buyer agrees and stipulates is a reasonable time). All written notices shall state with particularity each and every alleged damage, defect, shortage and/or undelivered good or Special Product claimed by Buyer. On receipt of notification of rejection, Seller may arrange to receive back the materials for shipment and return. However, Seller may have an agent inspect the materials for non-conformity; otherwise such inspection will be made on return to Seller’s plant. In the event that such materials are determined to be nonconforming, Seller will ship conforming goods to Buyer, unless Buyer notifies Seller in writing to forego such shipment. Failure to timely furnish any aforementioned written notice will constitute acceptance of the goods and/or materials and will irrevocably bar any claims for which notice was required. If Seller receives timely written notice from Buyer for claimed shortage of materials, Buyer agrees that Seller’s resolution of such claim shall be final and binding upon the parties.
- Payments under this PO and any other payments due to Seller by Buyer under any other agreement shall be paid to Seller at its office in Greenwood Village, Colorado, its lockbox in Greenwood Village, Colorado or such other place as directed by Seller. Unless specifically enumerated, the price(s) and/or amount(s) reflected on the PO does not include the cost of performance bonds, payment bonds, or federal, state or local taxes including, but not limited to, excise, privilege, occupation, value added, use or sales taxes. Any of these items or amounts that Seller may be required to pay or collect under existing or future laws, including, without limitation, taxes payable upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the Metal Building System and materials covered hereby, shall be for the account of Buyer, may be included on Seller’s invoice(s) to Buyer and shall be due and payable by Buyer in accordance with the terms and conditions herein. Buyer shall promptly pay the amount of such taxes to Seller upon demand and shall indemnify and hold Seller harmless against any federal, state or local taxes including, but not limited to, excise, privilege, occupation, value added, use or sales tax liability assessed against Seller. If Buyer asserts the purchase of the Metal Building System is exempt from sales tax, Buyer must immediately furnish Seller with a valid tax exemption certificate. Buyer agrees to be bound by Seller’s determination of the validity of any tax exemption certificate. Seller reserves the right to reject any and all tax exemption certificates presented to Seller after shipment of the Metal Building System. Seller reserves the right, prior to making any shipment, to require from Buyer satisfactory security for the payment of all taxes, costs and charges payable by Buyer. In Seller’s sole discretion, all orders shall either be pre-paid or cash payable on delivery. Buyer agrees to furnish Seller with a true, accurate and complete legal description of any property on which the Metal Building System is to be erected, Buyer’s entity type(s), state of organization/principal residence, organizational identification number, federal taxpayer identification number(s) and/or social security number(s) and any other information requested by Seller. All credit terms shall be established in the sole discretion of Seller and such credit terms can be revoked by Seller at any time. Seller, in its sole discretion, may invoice Buyer for this sale and all material associated with this sale at the time of order, fabrication or shipment. All sums owed by Buyer to Seller with respect to this sale are due and payable upon the date of invoice. If Buyer fails to fulfill the terms of payment applicable hereto, Seller may defer further shipments, and/or in its sole discretion, cancel the unshipped balance of any unfilled orders without waiving its right to recover liquidated or other damages as provided herein. Seller may assign its right to receive from Buyer any payments called for hereunder at any time upon notification to Buyer as to the assignee for receipt of such payments. If Buyer is in default of this PO or any other agreement with Seller and/or Seller’s affiliates, Seller shall have the right, in addition to all other rights stated herein, as well as in law or at equity, to withhold delivery and demand adequate assurances of Buyer’s ability to perform Buyer’s obligations. Buyer specifically agrees with Seller that any invoiced sum that has not been paid by Buyer within 30 days from the date of invoice shall bear interest at a rate of 10%, but in no event greater than the maximum rate for which Seller and Buyer could lawfully contract with respect to such payment under applicable law. Additionally, if an invoice becomes past due, is placed in the hands of an attorney for collection or if this PO is relevant to any other dispute(s) between the parties, in addition to any other claims, defenses, amounts and/or damages asserted or recovered by Seller, Buyer agrees to pay Seller any and all reasonable and necessary attorneys’ fees and costs incurred in any such dispute(s) and/or proceeding(s), together with interest, expenses, costs and any other charges. Costs incurred in the collection of sums include, without limitation, copying and mailing expenses, lien fees, lost management time, inspection expenses and expert witnesses’ expenses in addition to taxable costs incurred in litigation. Buyer agrees that all payments with lien release language on the back of any check shall be sent only to the principal office of Seller, in Greenwood Village, Colorado. Buyer agrees that any payment accepted through Seller’s lock box with lien release language on the check does not bind Seller to the attempted release. Seller’s agent(s) at the lock box who endorses and/or accepts checks for Seller is authorized only to accept unconditional payments, and no action by said agent(s) shall ever give rise to a claim of any authority, apparent or otherwise, beyond that described in this Article. Acceptance of any conditional check, including any lien release language or otherwise at the lock box or otherwise shall only be a partial release for those funds received, and never otherwise.
- LIMITATIONS OF WARRANTIES AND DAMAGES – Upon Seller’s receipt of Buyer’s payment in full of all outstanding invoices with Seller and subject to the terms and conditions set forth herein, Seller warrants the Metal Building System to Buyer only against failure due to defective material or workmanship for a period of 1 year from date of shipment from Seller’s plant. The price quoted for any warranty stated herein is subject to price adjustments due to non-standard roof geometry, details, and non-approved or non-standard roof accessories and/or fixtures. Any price adjustment will be at the sole discretion of Seller. Damage due, whether in whole or in part, to faulty or improper installation, erection or maintenance by others shall NOT be covered by Seller’s warranty. As a condition precedent to the effectiveness of the foregoing warranty, the Metal Building System must be erected promptly after shipment from Seller’s plant, without any undue delay and must be erected in strict accordance with erection procedures and guidelines. Any damage to the Metal Building System not directly attributable to the sole negligence or sole fault of Seller is not covered by this warranty. Additionally, misuse and abuse, lack of proper maintenance, and normal wear and tear to the Metal Building System are not covered by this warranty. SELLER’S SOLE OBLIGATION AND BUYER’S SOLE AND EXCLUSIVE REMEDY, IN SELLER’S SOLE DISCRETION, WITH RESPECT TO THE FOREGOING WARRANTY IS EXPRESSY LIMITED TO REPAIR OF DEFECTIVE MATERIALS OR FURNISHING NECESSARY REPLACEMENT MATERIALS FOB SELLER’S FACILITIES, BUT SHALL NOT INCLUDE ANY CHARGES FOR TRANSPORTATION, INSURANCE, OR LABOR OF DISMANTLING AND INSTALLING SUCH MATERIALS. This warranty is non-assignable and non-transferable. The above warranty does not cover products, accessories, parts or attachments that are not manufactured by Seller. DISCLAIMER OF IMPLIED WARRANTIES-SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE METAL BUILDING SYSTEM (EXCEPT FOR THE EXPRESS WARRANTY INCLUDED HEREIN) AND ANY AND ALL IMPLIED WARRANTIES ARE EXPRESSLY EXCLUDED AND DISCLAIMED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY AND ALL LIABILITY, WARRANTIES AND REPRESENTATIONS REGARDING, PAST, PRESENT OR FUTURE WATER LEAKS OR MOISTURE INTRUSIONS, DAMAGES TO THE SUBJECT BUILDING(S) OR ANY COMPONENTS OR CONTENTS THEREOF, OR ANY INTERIOR SPACE(S) OR PROPERTY THEREIN, INCLUDING CLAIMS PERTAINING TO MOLD, MILDEW AND/OR FUNGI, OR THE INTERRUPTION IN THE USE OF THE SUBJECT BUILDING(S) OR PERSONAL INJURY OR PROPERTY DAMAGE CLAIMS RESULTING FROM THE ALLEGED EXISTENCE OR GROWTH OF MOLD, MILDEW AND/OR FUNGI. LIMITATION OF DAMAGES — NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT SELLER’S MAXIMUM AGGREGATE LIABILITY TO BUYER OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY SUBSEQUENT PURCHASER, WHETHER IN AGREEMENT, UNDER ANY WARRANTY, IN TORT (INCLUDING NEGLIGENCE), IN STRICT LIABILITY OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE ACTUALLY PAID BY BUYER TO SELLER WITH RESPECT TO THE METAL BUILDING SYSTEM. ACCORDINGLY, BUYER AGREES TO ASSUME THE RESPONSIBILITY FOR INSURING AGAINST OR OTHERWISE BEARING THE RISK OF ANY AND ALL GREATER DAMAGES. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, LIQUIDATED, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, DELAY, COST OF COVER OR BACK-CHARGE DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OR REVENUE, LABOR COSTS AND EXPENSES, COSTS OF RENTING EQUIPMENT AND OTHER ADDITIONAL EXPENSES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER WILL NOT BE LIABLE FOR ANY DAMAGES, LOSSES OR EXPENSES AS A RESULT OF BUYER’S (OR ANY OTHER PARTY’S) NEGLIGENCE, WHETHER DEEMED ACTIVE OR PASSIVE AND WHETHER OR NOT ANY SUCH NEGLIGENCE IS THE SOLE OR CONTRIBUTING CAUSE OF ANY SUCH DAMAGE, LOSS OR EXPENSE. BUYER ACKNOWLEDGES THAT THE PRICING OF THE PRODUCTS AND/OR SERVICES TO BE PROVIDED BY SELLER PURSUANT TO THIS PO REFLECTS THE INTENT OF THE PARTIES TO LIMIT SELLER’S LIABILITY AS PROVIDED HEREIN. ANY ACTION, CLAIM OR PROCEEDING RELATING TO THIS PO OR THE TRANSACTIONS CONTEMPLATED BY THIS PO MUST BE BROUGHT WITHIN 2 YEARS AND 1 DAY FOLLOWING THE ACTION OR EVENT GIVING RISE TO SUCH ACTION, CLAIM OR PROCEEDING. BUYER AGREES TO USE ITS BEST EFFORTS TO MITIGATE ANY DAMAGES SUSTAINED BY BUYER, OWNER(S) OR ANY THIRD PARTIES PURSUANT TO OR IN CONNECTION WITH THIS PO. NOTWITHSTANDING THE FOREGOING, THE DISCLAIMER OF WARRANTIES AND/OR THE DISCLAIMER AND/OR LIMITATION OF DAMAGES WILL NOT BE DEEMED TO DISCLAIM LIABILITY SPECIFICALLY IMPOSED ON SELLER BY STATUTE OR REGULATION, TO THE EXTENT SUCH LIABILITY CANNOT BE WAIVED OR DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE DISCLAIMERS OR LIMITATIONS SET FORTH HEREIN MAY NOT FULLY APPLY TO BUYER. TO THE EXTENT THAT THE DISCLAIMERS AND/OR LIMITATIONS SET FORTH HEREIN ARE NOT FULLY ENFORCEABLE UNDER APPLICABLE LAW, BUYER MAY HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. Buyer acknowledges its responsibility to determine the intended use of the Metal Building System ordered, its appropriateness for all uses, applications and loads to be encountered, including but not limited to, live load, wind load, snow/ice load, water load, collateral and auxiliary loads, as well as its appropriateness for drainage systems/requirements, and compliance with the requirements of all governing code bodies, statutory and regulatory agencies. Buyer acknowledges that the Seller is only a manufacturer of goods and is in no way responsible for the use, installation and/or application of the goods and/or materials covered hereunder. Buyer acknowledges that it is not unconscionable under the commercial circumstances hereof to limit the award of consequential damages as contemplated by this PO. Except for the obligations of Seller under “Warranty,” all responsibility of Seller for the Metal Building System ceases upon delivery thereof by Seller to a common carrier for shipment to Buyer. All claims against the carrier for damage to or loss of any of the Metal Building System shall be made solely by Buyer. Buyer agrees and stipulates that Seller’s schedule is approximate only. Without limiting the above, if retrofit materials are supplied hereunder, Seller’s shall not be liable for anything that results from the transfer of any loads from one structure to another structure. Buyer acknowledges and stipulates that Seller has not performed any tests of suitability of the materials supplied hereunder and Buyer has not relied on Seller’s statement, promises or assurances in regard to such suitability. Buyer further acknowledges, agrees and stipulates that oil-canning of materials shall not be a cause of rejection of materials.
- ACCEPTANCE OF MATERIALS – Buyer also acknowledges, agrees and stipulates that erection or installation of materials shall unequivocally constitute irrevocable acceptance of materials.
- Structural design of the building or structure ordered is based on the interaction of all its component parts. Failure to make adequate provision for excessive stresses or instability occurring from whatever cause during construction is the sole risk of the Buyer. Seller makes no representation as to the adequacy of the loads ordered by Buyer; Seller only warrants that the loads for the building and components delivered will be as ordered by Buyer. Buyer is solely responsible for ascertaining that the loads and factors for the building and components ordered are adequate for the intended erection location, use and occupancy of the building or structure and that no loads other than those specified shall be imposed thereon. If this Contract is for parts or less than a complete, fully enclosed structure, Buyer assumes all responsibility for the strength, structural integrity and capacity of the building or structure unless the manufacturer certifies same in writing. Buyer is solely responsible for designing and constructing a foundation for the building or structure suitable for the Buyer’s particular use of same. Seller has no responsibility or liability whatsoever to Buyer for the erection or construction of the building, structure, components or goods purchased hereunder, including any loss or damages sustained by Buyer, even if Buyer utilizes the services of a person whose name is provided by Seller to perform work or services relating to the construction or installation of the building, components or goods purchased. With the sole exception of those claims expressly permitted to Buyer against Seller set forth in this Contract, Buyer agrees to defend, indemnify and hold Seller harmless from any and all losses, costs, expenses, claims, suits, demands and damages, including attorney’s fees, arising from or in connection with any alleged or real injury, including injury to any person or to property, incurred or asserted in connection with or as a result of work performed or materials supplied by Seller hereunder or any work performed by or for Buyer in connection with the erection, construction or installation of the Steel Building, components or goods purchased, or any other claim or suit arising out of this Contract. Buyer’s duty to defend, indemnify and hold Seller harmless, includes, but is not limited to, any such losses, costs, claims, suits, damages and attorneys’ fees arising from or incurred in connection with Seller’s performance hereunder, any actual or alleged default by Seller hereunder, any actual or alleged breach of Seller’s obligations hereunder or any actual or alleged negligence, act or omission on the part of Seller, Buyer or any third party acting on Buyer’s behalf.
- Buyer is solely responsible for assuring that soil and subsoil conditions at the construction site are of sufficient density and have a sufficient soil bearing capacity to support and sustain the foundations for the building, the building, building loads, and any materials, goods or equipment stored in the building. Roof and wall panels should remain free of any foreign substances and should be cleaned on a regular basis to prevent staining or discoloration of panel finishes. Buyer should take precautions to properly maintain the building once erected to ensure that no damage is caused by the accumulations of snow or ice, including removal of snow and ice from the roof and walls. Buyer understands that metal components are not machine precision manufactured and some field cutting, drilling or welding might be necessary for construction. Buyer accepts responsibility for making minor field modifications.
- To secure payment and performance by Buyer of its obligations set forth in this Contract, Buyer hereby grants to Seller a security interest in all Buyer’s rights in the following (collectively, the “Collateral”): (a) the pre-engineered rigid frame steel building(s) with rigid frames, wall girts, roof purlins, wall and roof panel sheeting and related hardware and accessories which are the subject of this Contract (the “Building(s)”), (b) payments, rights to payment and other rights under contracts pursuant to which Buyer is selling the Building(s) to, or installing the Building(s) for, third parties, and (c) all other proceeds of the foregoing. Upon any default in payment or performance of any of Buyer’s obligations under this Contract, Seller may declare all Buyer’s obligations hereunder immediately due and payable, Seller shall have the remedies of a secured party as provided by law, and Buyer hereby authorizes Seller to enter onto Buyer’s real property to exercise such remedies. Seller is hereby authorized to file financing statements covering the Collateral. Buyer will hereafter execute such instruments and perform such acts as Seller may request to establish and maintain a valid security interest in the Collateral in any jurisdiction.
- FORCE MAJEURE – Under no circumstances shall Seller be liable in any way to Buyer, building owner and/or any other party for water intrusion or the existence of moisture occurring prior to delivery of the Metal Building System or existing thereafter or any possible effects resulting there from; delay, failure in performance, or loss or damage due to force majeure conditions including, without limitation: fire; flood; epidemics; quarantine; lightening; strike; embargo; explosion; power surge or failure; acts of god; acts of war or terrorism; labor or employment disputes; civil disturbances; acts of civil or military authority; inability to secure materials, fuel, products or transportation facilities; acts or omissions of suppliers; or any other causes beyond Seller’s reasonable control.
- JURISDICTION, MANDATORY VENUE AND WAIVER OF JURY TRIAL – The terms of this PO shall be governed in their interpretation by the section titled “Common Industry Practices” from the Low Rise Building System Manual, latest edition, published by the Metal Building Manufacturers Association. In the event that this Manual has no provision, which applies to the subject matter of any dispute over the interpretation of any term or provision of this PO, the interpretation of such term or provision shall be governed by and construed in accordance with the laws of the State of Colorado. Further, Buyer acknowledges, stipulates and agrees that this PO was executed, accepted and is to be performed in Arapahoe County, Colorado and shall be governed by and interpreted in accordance with the laws of the State of Colorado. Buyer acknowledges, stipulates and agrees that any and all claims, actions, proceedings or causes of action relating to the validity, performance, interpretation, alleged breach and/or enforcement hereof shall (i) only be asserted, submitted for resolution, and/or heard or tried in Arapahoe County, Colorado, and (2) shall be asserted and/or submitted for resolution only by mandatory arbitration, under the commercial rules of the American Arbitration Association (“AAA”). The party initiating arbitration shall advance all costs thereof. The parties have agreed that all questions of arbitrability, including the validity and scope of the arbitration agreement, are reserved for arbitral rather than court determination. The Federal Arbitration Act shall govern the enforcement of this arbitration provision. Buyer specifically consents to the resolution of any dispute by arbitration, and irrevocably submits itself to the exclusive exercise of personal jurisdiction over Buyer by the arbitral forum in Arapahoe County, Colorado, for the resolution of such dispute. The parties agree that the arbitrator will have no authority to award exemplary, punitive, consequential or other purely non-compensatory damages, except as may be required by statute. See 13-21-102(5) C.R.S. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. In addition to any other liability Buyer may have to Seller, Buyer agrees to pay to Seller all legal and other expenses incurred by Seller in collecting any amounts due from Buyer or incurred in any other dispute, claim or controversy arising out of or relating to this Agreement. Buyer irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to venue with respect to any arbitration arising out of or in connection with this PO and Buyer irrevocably waives any claims that arbitration has been brought in an inconvenient forum. Seller shall be entitled to recover its attorneys’ fees and costs against Buyer: (a) in any court action in which Seller is required to file, and prevails upon, a motion to compel arbitration or a motion to change venue to Arapahoe County, Colorado, on a claim related to or arising under this PO; and (b) in any arbitration proceeding in which Seller is the prevailing party on any claim brought by either party. FURTHER, EACH PARTY KNOWINGLY AND VOLUNTARILY AGREES TO WAIVE A TRIAL BY JURY WITH RESPECT TO ANY CLAIM RELATING TO OR ARISING UNDER THIS PO, INCLUDING ITS ENFORCEMENT OR ANY ALLEGED BREACH. The scope of each of the foregoing waivers is intended to be all encompassing. Buyer acknowledges that the foregoing waivers are material inducements to the agreement of Seller to enter into a business relationship with Buyer, and that Seller has already relied on these waivers in entering into this PO. Buyer warrants and represents that it has reviewed these waivers with its legal counsel, and that it knowingly and voluntarily agrees to each such waiver following consultation therewith.
- ASSUMPTION OF RISK AND INDEMNITY-BUYER ASSUMES ENTIRE RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR ACTIONS BASED ON OR ARISING OUT OF INJURIES, INCLUDING DEATH, TO PERSONS OR DAMAGE TO OR DESTRUCTION OF PROPERTY (WHETHER BELONGING TO BUYER, BUILDING OWNER(S), AND/OR ANY THIRD PARTY), SUSTAINED OR ALLEGED TO HAVE BEEN SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO THE PERFORMANCE HEREOF BY BUYER, ITS AGENTS AND EMPLOYEES, AND ITS SUBCONTRACTORS, THEIR AGENTS AND EMPLOYEES, INCLUDING CLAIMS OR ACTIONS BASED IN WHOLE OR IN PART UPON THE ALLEGED NEGLIGENCE OR FAULT OF SELLER, SELLER’S REPRESENTATIVES, OR THE EMPLOYEES, AGENTS, INVITEES, OR LICENSEES THEREOF. BUYER FURTHER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER AND ITS REPRESENTATIVES, AND THE EMPLOYEES, AGENTS, INVITEES AND LICENSEES THEREOF IN RESPECT OF ANY SUCH MATTERS AND AGREES TO DEFEND ANY CLAIM OR SUIT OR ACTION BROUGHT AGAINST SELLER, SELLER’S REPRESENTATIVE, AND THE EMPLOYEES, AGENTS, INVITEES AND LICENSEES THEREOF. BUYER KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVES, DISCLAIMS, RELINQUISHES AND FOREVER RELEASES SELLER FROM ANY AND ALL OF ITS OBLIGATIONS TO INDEMNIFY AND HOLD HARMLESS BUYER AGAINST ANY LOSS ARISING OUT OF A PRODUCTS LIABILITY ACTION AGAINST BUYER.
- Buyer acknowledges and agrees that Seller is not the Engineer of Record for this or any other project. Accordingly, Seller shall not be required to carry or maintain any Professional Liability, Errors of Omissions or any other similar type insurance policy or coverage. Buyer will, at its sole expense, maintain insurance during the performance of the services covered by this PO and thereafter, including General Liability Insurance with a per occurrence limit of not less than $2,000,000. This insurance will include general liability, products liability and completed operations liability coverages, which will extend for 3 years after the completion of the services. Buyer agrees to name Seller as an additional named insured by endorsement with respect to the coverages required to be maintained by Buyer pursuant hereto and Buyer’s insurance coverages shall be primary to and not concurrent with any insurance coverages maintained by Seller. Buyer waives any and all rights of subrogation as against Seller. Buyer also agrees that it shall provide Seller with Waivers of Subrogation by endorsement on its insurance policies with respect to the insurance coverages described herein.
- This Contract (including Exhibits and addenda hereto) and the Warranty Document is the final, complete, exclusive and fully integrated agreement between Seller and Buyer concerning the subject matter hereof and supersedes all prior and contemporaneous understandings or agreements of Buyer and Seller. Seller is not required to seek or obtain approval by Buyer, any agents or representatives of Buyer or any third party, including, without limitation, any owner, architect, engineer or project manager, for any goods supplied hereunder, including any approval prior to manufacture of the Steel Buildings. No understanding, promise or representations, and no waiver, alteration or modification of any of the provisions hereof shall be binding upon Seller unless consented to expressly in writing signed by an authorized representative of Seller. Buyer has not relied on any statements or representations of any party (including without limitation any of Seller’s sales representatives) that alters, adds to or differs from these terms or conditions and no such statements or representations shall be recognized or be binding upon Seller. This Purchase Order expressly limits acceptance to the terms of this Purchase Order. Any and all provisions of other documents of Buyer that add to or differ from these terms and conditions are EXPRESSLY REJECTED. Notice of objection is hereby given to additional or different terms not contained herein. No waiver of these terms or acceptance of others shall be construed from any failure of the Seller to raise objections. The failure of the Seller to exercise any rights under this Contract, upon the Breach or default by the Buyer or otherwise, shall not be a waiver of the Seller’s subsequent ability to exercise that right. If any provision contained in this Contract (or its application to any person or circumstance) shall to any extent be held void or invalid by a Court the remainder of this Contract (or the application of such provision to persons or circumstances other than those as to which it is held or invalid) shall not be affected thereby, and each provision of this Contract shall be valid and enforced to the fullest extent of the law. This Contract is personal in nature and is not assignable by Buyer without Seller’s written consent. This Contract shall be binding upon and inure to the benefit of the employees, officers, directors, agents, trustees, beneficiaries, successors and permitted assigns of Seller. This Contract, the performance thereof, and any dispute, controversy or claim arising from the relationship of the parties to this Contract, shall be governed, construed and enforced according to the laws of the State of Colorado. Application of the United Nations Convention on Contracts for the Sale of Goods is hereby excluded. If a Court deems any of the language herein to be vague or ambiguous such language shall not be preemptively construed against either party.This Contract may be executed in multiple counterparts each of which shall be deemed an original and together shall constitute but one and the same Contract. Counterparts of this Contract may be exchanged via electronic facsimile machines or by PDF. An electronic facsimile or PDF of a party’s signature shall be deemed to be an original signature for all purposes. THE BUYER, EVIDENCED BY INITIALING THE ACKNOWLEDGEMENT THAT HE/SHE HAS REVIEWED AND, AFTER REVIEW, AGREED TO THE T&C, UNCONDITIONALLY ACCEPTS THIS PO INCLUDING THESE T&C AS IF FULLY EXECUTED IN PERSON AND FURTHER WAIVES ANY RIGHT TO CLAIM INVALIDITY BASED ON A LACK OF A WRITTEN SIGNATURE.
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