This Purchase Order shall become a binding contract upon its acceptance in writing by an authorized officer of Seller (“Contract”) and thereafter cannot be canceled by Buyer under any circumstances without Buyer first reaching an agreement in writing with Seller covering all of Seller’s damages.
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, including, www.toplinebuildings.com 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.
(A) Buyer, upon being notified that the goods are ready for shipment, shall receive and accept delivery of the goods within seven (7) calendar days of such notification. If the Buyer fails or refuses to accept delivery of the goods within said seven (7) day period, Seller may, at its option, and without notice, treat such failure as a Breach of this Purchase Order, in which event the Seller shall have all remedies for Breach of this Contract, which remedies shall include charging the Buyer storage fees for storing the completed building, as well as all of the remedies set forth in Section 5 below and at law. Unless otherwise specified, shipments are FOB the “Ship to Address” on the face hereof (“Delivery Destination”). Title of goods and all risk of loss shall pass to Buyer upon Seller’s tender of delivery of the goods to Buyer at the Delivery Destination. Buyer shall bear risk of loss as soon as the truck bearing the building or other goods arrives at the Delivery Destination and thus all risk of loss during the period of unloading, including personal injury, or any other liability, is upon the Buyer. Buyer is solely responsible for unloading and for having the necessary equipment and labor to unload the building and the goods from the delivery truck, including a forklift. Buyer shall pay the driver the full balance due COD by bank cashiers or certified check before unloading commences. All delivery and handling charges, including freight charges, are estimates only that reflect current freight and handling charges known to Seller at the time of acceptance of this Contract. All delivery, handling and freight charges, whether stated as a separate item on the face hereof or included in the building cost, are subject to adjustment and increase at the time the building and goods ordered hereunder are ready for shipment based on Seller’s subsequent additional costs, charges and changes in Seller’s delivery policy. All increases in delivery, handling and freight shall be paid in full by Buyer to Seller prior to shipment of the building and goods ordered hereunder. Buyer shall be responsible for any and all transportation, handling and storage charges that are not specified on the face hereof and for all demurrage and special shipping charges if the job-site cannot be accessed by an eighty (80) foot long semi-truck (cab and flatbed). Seller shall not be responsible for spotting, switching, drayage, demurrage or other transportation charges unless agreed to in writing prior to delivery. Buyer may also specify and use a designated freight carrier at Buyer’s cost, but in the absence of such specification, goods will be shipped by the method and carrier chosen by Seller. Notwithstanding anything to the contrary herein, if Buyer takes delivery at the factory or if Buyer specifies the carrier for shipment, then delivery shall be FOB the factory and Buyer shall bear the risk of loss after the ordered goods are tendered to the carrier for shipment. Unless otherwise indicated on the face of this Contract, all shipment is via COMMUNITY FREIGHT and not the “private freight” option and Buyer’s products will not be shipped alone, but will be shipped with those Seller’s other customers. Seller shall not be responsible nor liable for any shortages in or damages to materials or goods that are caused by any third party delivery service (including a trucking service), whether or not such delivery service is hired by Seller. In any such case any claim of Buyer shall be made solely against the delivery service. Notwithstanding the foregoing, title of goods under this Contract shall, at Seller’s sole option, revert to Seller, if any payment by or for Buyer is not made in accordance with this Contract, if any check provided by or for Buyer is dishonored or is otherwise unable to be cashed by Seller or if any wire transfer or credit card payment or any portion thereof made by or for Buyer to Seller is reversed or is not fully paid to Seller. If any payment hereunder is made by Buyer by credit card, Buyer by its signature on the face hereof authorizes Seller to charge the credit card for all amounts due hereunder.(B) 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 delivery date(s but Seller is not responsible or liable for its failure to do so. Seller shall not under any circumstances be liable to Buyer for any actual, special, punitive, incidental, consequential, direct or indirect damages of any kind whatsoever incurred by Buyer, which are caused by any delay(s) in delivery or performance hereunder, without regard to the cause of any such delay or failure(s), and the Buyer specifically waives and promises not to assert any and all claims for damages against Seller arising there from. Seller shall not under any circumstances be liable to Buyer or to any third party for damages or otherwise for any delay, default, or failure in performance by Seller hereunder, if such delay, default or failure is due to causes or conditions beyond Seller’s control, including without limitation, acts of God; acts of Buyer; acts of civil or military authority; fires; strikes or other labor disturbances; floods; disasters; epidemics, wars; terrorism; riots; disturbances; delays in transportation; accidents; and inability to obtain the necessary labor, materials, components or manufacturing facilities (“Force Majeure”).(C) Seller will attempt to make complete delivery, but 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”) may be separately delivered thereafter. 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 Contract, 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 this Contract, cancel the Contract and retain any Payment and payments made as partial payment of liquidated damages; or (ii) fulfill this Contract and charge Buyer for any additional costs incurred by Seller after the date of acceptance of the Purchase Order (“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 and labor costs and storage fees.
All goods purchased by Buyer hereunder shall be deemed fully accepted by Buyer. All claims for shortages of bulk packages or bundles 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 thirty (30) days of the date of delivery or the claims are waived. All claims for undelivered Special Products must be reported in writing to Seller within forty-five (45) days of the date of delivery of the building or structure or the claims are waived. All written notices shall state with particularity each and every alleged damage, defect, shortage and/or undelivered good or Special Product claimed by Buyer.
(A) 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, that Seller is entitled to have and recover the following liquidated damages from Buyer: (i) 60% of the Total Purchase Price if Buyer’s Breach occurs prior to the time the goods are manufactured or procured; (ii) 100% of the Total Purchase Price plus all procurement charges (including transportation charges) handling and storage costs, if Buyer’s Breach, occurs after the ordered goods have been manufactured or procured; (iii) 100% of the Total Purchase Price plus all shipping, return freight, procurement charges, handling and storage costs, if Buyer’s Breach occurs after the goods have been shipped; and (iv) 100% of the Total Purchase Price plus all shipping, return freight, procurement charges, handling and storage costs, if Buyer’s Breach is with respect to specially manufactured goods, custom ordered or procured goods or Special Products (hereinafter collectively referred to as a “Special Order”), where the Breach occurs either prior to or after shipment. A Breach entitling Seller to the liquidated damages provided herein includes, but is not limited to, Buyer’s: failure or refusal to cooperate with Seller in the scheduling of delivery of goods; failure or refusal to accept Seller’s scheduled delivery date; placing the order on hold for more than seven (7) days; failure to make any payment when due and in the manner required hereunder; attempted, threatened or actual cancellation or rescission of this Contract; anticipatory repudiation or repudiation of this Contract; and any other event, act or omission stated herein to constitute a Breach. If the price of the building has been increased by the manufacturer after the Buyer has caused a delay, this Contract will be deemed to have been amended to include all price increases after the Acceptance Date and the Buyer’s obligation 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 would be expected to incur upon a Breach by Buyer. The foregoing liquidated damages are in addition to and not in lieu of damages recoverable under Section 5(B).(B) Buyer is also responsible and liable to Seller for all damages due to delay caused by Buyer or its agents or representatives. Delays caused by Buyer, include without limitation Buyer’s: (i) notification to Seller to place the order on “hold” until further notice from Buyer; and (ii) failure or refusal to accept Seller’s designated delivery date. If there is a delay caused by Buyer or its agents or representatives, Seller may then charge Buyer whatever costs or damages Seller incurs by reason of the delay, including incidental and consequential damages, which shall be in addition to the damages provided in Section 5 (A).
6. The Engineering Payment and Manufacturing Payment paid to Seller are offered in good faith performance of contractual obligations, for Seller’s expenses and as a security Payment in the event of Buyer’s Breach. Notwithstanding any other provisions to the contrary herein, if: (a) the Payment is 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.
Any dispute about the quality, condition or workmanship of the goods or otherwise in connection with the terms of this Contract shall not entitle Buyer to reject or revoke acceptance of the goods. In the case of any dispute, Buyer shall take delivery of the goods, pay for the same without set-off against or reduction in any amount payable hereunder, and make a claim under Seller’s or a third party’s warranty, as may be applicable. Buyer’s sole and exclusive remedy against Seller in lieu of all other remedies available to Buyer shall be pursuant to this Section 7 and Sections 8, 9, and 10 below.
THE SOLE AND EXCLUSIVE REMEDY TO AND THE SOLE AND EXCLUSIVE DAMAGES OF BUYER FOR ANY SHORTAGES OR DEFECTS IN THE GOODS SHALL, AT SELLER’S SOLE ELECTION, BE LIMITED TO ONE OF THE FOLLOWING: (1) SELLER’S FURNISHING REPLACEMENT PARTS, BUT NOT THE: A) DISMANTLING OF ORIGINAL PARTS OR THE INSTALLATION OF REPLACEMENT PARTS, B), UNCOVERING OF ANY THIRD PARTY’S WORK OR REPLACEMENT OF ANY SUCH WORK, OR C) PAYMENT OF ANY LABOR CHARGES OR OTHER COSTS INCURRED IN CONNECTION THEREWITH; (2) SELLER’S REPAIR OF DEFECTIVE GOODS, WHICH DOES NOT INCLUDE THE REMOVAL, UNCOVERING OR RESTORATION OF ANY THIRD PARTY’S WORK TO EFFECTUATE THE REPAIR, AND SELLER SHALL ONLY BE LIABLE FOR REPAIRS THAT ARE AUTHORIZED IN WRITING BY SELLER PRIOR TO THE REPAIR; OR (3) SELLER’S PROVISION OF A CREDIT TO THE BUYER BASED ON SELLER’S DETERMINATION OF SELLER’S COST OF REPLACING SHORTED OR DEFECTIVE GOODS. BUYER’S REMEDIES HEREUNDER SHALL BE IN LIEU OF ALL OTHER REMEDIES AT LAW OR EQUITY. BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER RIGHTS, CLAIMS AND REMEDIES AGAINST SELLER NOT EXPRESSLY PROVIDED FOR IN THIS CONTRACT OR THE WARRANTY DOCUMENT. BUYER AGREES TO DEFEND, INDEMNIFY AND TO HOLD SELLER HARMLESS FROM ANY AND ALL LOSS, COSTS, CLAIMS, SUITS, DAMAGES AND ATTORNEYS’ FEES ARISING FROM ANY ALLEGED OR REAL INJURY (INCLUDING PERSONAL INJURY) TO ANY PERSON OR PROPERTY THAT ARISES OUT OF WORK PERFORMED OR MATERIALS SUPPLIED HEREUNDER OR ANY OTHER CLAIM OR SUIT ARISING OUT OF THIS CONTRACT.
Subject to the terms, conditions, limitations and exclusions contained herein and in Seller’s Warranty Document (the “Limited warranty”), Seller warrants that for a period of One (1) year from the date the building or structure is shipped from the factory the building or structure purchased by Buyer is substantially free from material defects in materials and workmanship on the date of shipment from the factory (“One Year Period”). SELLER’S LIMITED WARRANTY DOES NOT COVER ANY DEFECTS OR DAMAGE CAUSED BY OR RESULTING FROM: EARTHQUAKES, TORNADOES, TEMPESTS, FLOODING, HURRICANES, LANDSLIDES, FIRES, LIGHTNING AND OTHER ACTS OF GOD (INCLUDING EXCESSIVE WIND LOADS AND SNOW LOADS AND SEISMIC CONDITIONS); FALLING OBJECTS; ACCIDENTS; VANDALISM; AGGRESSIVE ATMOSPHERE CONDITIONS (INCLUDING BUT NOT LIMITED TO SALT WATER, CORROSIVE CHEMICALS, FUMES, ASH, ANIMAL WASTE, OR HUMIDITY); LONG TERM CHANGES IN WEATHER; IMPROPER ERECTION, INSTALLATION, OR STORAGE PROCEDURES; MOISTURE ENTRAPED IN STORED BUNDLED COMPONENTS; STORAGE OR INSTALLATION OF SHEETING, PURLINS, GIRTS, OR MAIN FRAMES IN A MANNER ALLOWING STANDING WATER, MOISTURE OR OTHER SUBSTANCES TO REMAIN BETWEEN, ON, OR TO COVER THESE COMPONENTS; CASCADING WATER ON COMPONENTS OR STANDING WATER ON COMPONENTS IN A NON VERTICAL APPLICATION; STORAGE OF BUNDLED COMPONENTS IN CONDITIONS OF HUMIDITY, HIGH HEAT, OR EXTREME COLD; DEFECTS OR FAILURE IN THE FOUNDATION; UNAUTHORIZED MODIFICATIONS TO OR IMPROPER ERECTION OF THE BUILDING; HANGING ANY WEIGHT ON THE BUILDING IN EXCESS OF DESIGNED CONDITIONS; LOADING CONDITIONS IN EXCESS OF THOSE SPECIFIED FOR THE BUILDING; PRODUCT MISUSE, ABUSE OR NEGLECT; IMPROPER MAINTENANCE; NORMAL WEAR AND TEAR, REGARDLESS OF CAUSE; AND ANY DEFECT OR DAMAGE CAUSED OR CONTRIBUTED BY BUYER OR THIRD PARTIES. BUILDING COMPONENTS ARE INTENDED TO BE ERECTED UPON DELIVERY AND NOT TO BE STORED IN ORDER TO PREVENT DETERIORATION. SELLER’S LIMITED WARRANTY EXCLUDES ALL DAMAGE AND DETERIORATION TO COMPONENTS OF THE STEEL BUILDING RESULTING FROM EXPOSURE TO THE ELEMENTS AND SURROUNDING ENVIRONMENT, INCLUDING HUMIDITY, RAINFALL, STANDING WATER, HIGH HEAT AND EXTREME COLD, IF ERECTION OF THE STEEL BUILDING DOES NOT COMMENCE WITHIN THIRTY(30) DAYS OF THE DELIVERY DATE AND CONTINUE THEREAFTER. ALL DOORS, WINDOWS, INSULATION, OTHER SPECIAL PRODUCTS, EQUIPMENT, CRANES, FASTENERS (STAINLESS STEEL AND OTHERWISE) AND BUILDING PAINT AND COATING ON THE SIDEWALL PANELS AND ROOF PANELS ARE NOT WARRANTED BY SELLER AND ARE WARRANTED SOLELY AND TO THE EXTENT PROVIDED BY THE STEEL MILL(S), COATING APPLICATOR(S), MANUFACTURER(S) AND VENDOR(S), SUBJECT TO THE TERMS, CONDITIONS, LIMITATIONS AND EXCLUSIONS OF THEIR RESPECTIVE WARRANTIES. SELLER WILL PASS THROUGH TO BUYER ANY AVAILABLE WARRANTY GIVEN BY STEEL MILLS, COATING APPLICATORS, MANUFACTURERS OR VENDORS TO THE EXTENT SUCH WARRANTY IS ASSIGNABLE OR MAY BE PASSED THROUGH OR TRANSFERRED TO BUYER, SUBJECT TO ALL TERMS, CONDITIONS, LIMITATIONS AND EXCLUSIONS THEREOF. SELLER MAKES NO REPRESENTATION OR COVENANT AS TO WHETHER OR THE EXTENT TO WHICH ANY SUCH WARRANTY MAY BE PASSED THROUGH, ASSIGNED, OR TRANSFERRED TO BUYER. THE TERMS OF A THIRD PARTY’S LIMITED WARRANTY ARE SUBJECT TO CHANGE AND SELLER IS NOT RESPONSIBLE FOR ANY CHANGES THAT OCCUR IN A THIRD PARTY’S WARRANTY. COPIES OF THIRD PARTY WARRANTIES ARE AVAILABLE UPON WRITTEN REQUEST TO SELLER. GALVALUME PANELS ARE NOT WARRANTED BY THE SELLER BUT ARE WARRANTED BY THE STEEL MILL. THE STEEL MILL’S TWENTY-FIVE YEAR RUST PERFORATION WARRANTY ON ROOF PANELS IS ONLY APPLICABLE TO ROOF PANELS WITH AN AZ55 GALVALUME COATING OR PAINTED ROOF PANELS WITH AN UNDERLYING AZ55 GALVALUME COATING. ALL PAINTED PANELS (OTHER THAN ROOF PANELS) HAVE AN UNDERLYING GALVANIZED SUBSTRATE COATING. THERE IS NO WARRANTY ON GALVANIZED COATINGS OR GALVANIZED PRODUCTS, INCLUDING AGAINST RUST PERFORATION. BUILDING PAINT IS NOT WARRANTED BY SELLER BUT BY THE PAINT MANUFACTURER FOR FORTY (40) YEARS AGAINST CRACKING, CHIPPING, OR PEELING ON CERAM-A-STAR 1050 PAINT COATING. KYNAR PAINTED MATERIALS ARE NOT WARRANTED BY SELLER BUT BY THE PAINT MANUFACTURER FOR TWENTY-FIVE (25) YEARS. ALL OTHER PAINTED MATERIALS CARRY A 25 YEAR PAINT WARRANTY. PRIMER COATINGS ARE NOT WARRANTED AT ALL AND ARE ONLY MEANT TO PROTECT FRAMING MEMBERS DURING THE PROCESS OF CONSTRUCTION AND FOR NO OTHER PURPOSE. THERE IS NO WARRANTY ON THE BUILDING FOR WEATHER TIGHTNESS OR AGAINST WATER OR AIR INFILTRATION FROM ROOF OR SIDE WALL PANELS OR ANY OTHER COMPONENTS OF THE BUILDING AND THE BUILDING IS NOT WARRANTED FOR WEATHER TIGHTNESS IN ANY REGARD OR RESPECT. BUILDING COMPONENTS THAT ARE NOT PURCHASED FROM SELLER AS A PRE-ENGINEERED BUILDING PACKAGE ARE EXCLUDED FROM SELLER’S LIMITED WARRANTY AND NO WARRANTY IS PROVIDED ON ANY SUCH COMPONENTS. SELLER’S LIMITED WARRANTY IS VOID AND IS NO LONGER IN EFFECT (A) IF THE BUILDING OR OTHER GOODS ORDERED FROM SELLER ARE MOVED FROM OR NOT ERECTED AT THE ERECTION LOCATION ON THE FACE HEREOF; (B) IF THE GOODS ORDERED, INCLUDING THE BUILDING, ARE RE-SOLD BY BUYER OR OWNERSHIP IS TRANSFERRED TO A THIRD PARTY; (C) TO THE EXTENT THAT THE GOODS ORDERED, INCLUDING THE BUILDING OR ANY COMPONENTS SUPPLIED BY SELLER ARE MODIFIED BY BUYER, OR ANY THIRD PARTY WITHOUT SELLER’S PRIOR WRITTEN CONSENT; OR (D) IF BUYER OR ITS BUILDING ERECTOR FAILS TO FOLLOW THE SPECIFICATIONS AND INSTRUCTIONS CONTAINED IN THE CONSTRUCTION DRAWINGS AND ERECTION MANUALS AND GUIDES SUPPLIED TO BUYER. SPECIFIC NOTES AND DETAILS SHOWN ON CONSTRUCTION DRAWINGS TAKE PRECEDENCE OVER THE BUILDING ERECTION MANUALS AND GUIDES SUPPLIED. IF THE BUILDING PURCHASED HEREIN INCLUDES A STANDING SEAM ROOF SELLER’S LIMITED WARRANTY WILL BE VOID UNLESS (A) THE ENTIRE BUILDING IS ERECTED BY A PERSON CERTIFIED BY THE BUILDING MANUFACTURER AS TRAINED AND QUALIFIED TO ERECT THE STANDING SEAM ROOF PURCHASED BY BUYER; AND (B) BUYER LEASES OR PURCHASES AT BUYER’S OWN COST AND EXPENSE FROM AN EQUIPMENT VENDOR OR LESSOR APPROVED BY THE BUILDING MANUFACTUER, THE CORRECT SEAMING EQUIPMENT REQUIRED FOR INSTALLATION OF THE SPECIFIC STANDING SEAM ROOF PURCHASED BY BUYER AND SUCH EQUIPMENT IS USED IN THE INSTALLATION OF THE STANDING SEAM ROOF. UNLESS SPECIFICALLY STATED IN A SEPARATE ADDENDUM EXECUTED BY BUYER AND SELLER, SELLER MAKES NO COVENANTS, REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE BUILDING OR ANY COMPONENTS OR MATERIALS THEREOF ARE ELIGIBLE OR WILL MEET APPLICABLE CRITERIA FOR POINTS FOR LEED® CERTIFICATION. BUYER IS RESPONSIBLE FOR ORDERING BUILDING COMPONENTS THAT ARE FIT FOR WHATEVER PURPOSES BUYER MAY HAVE FOR THE BUILDING AND THAT BUYER INTENDS TO ERECT FROM THE COMPONENTS. ADDITIONAL TERMS, CONDITIONS, LIMITATIONS AND EXCLUSIONS ARE CONTAINED IN SELLER’S WARRANTY DOCUMENT AND ARE INCORPORATED HEREIN BY THIS REFERENCE. BUYER SHALL COOPERATE FULLY WITH SELLER IN THE EVENT OF A WARRANTY CLAIM ON GOODS ORDERED INCLUDING ALLOWING INSPECTIONS ON THE ERECTION LOCATION. SELLER’S LIMITED WARRANTY IS GIVEN EXPRESSLY AND IN PLACE OF ALL OTHER EXPRESSED OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED.
All claims under Seller’s Limited Warranty must be in writing and made or initiated during the One Year Period. Written notice of all warranty claims shall also be given during the One Year Period to Seller’s President at: Steel Building Sales LLC. The written notice shall state with particularity each and every alleged claim and defect being asserted. All warranty claims not made or initiated or for which written notice has not been given during the One Year Period are waived and barred and Buyer shall have no remedy on account of any such claim.
SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OR PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND OR NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO, COSTS, LOSS OF PROFITS, LOSS OF USE, OR LOSS OF REVENUE, IN CONJUNCTION WITH OR WHICH ARISE OUT OR AS A RESULT OF PERFORMANCE OR FAILURE TO PERFORM ANY OBLIGATION CONTAINED IN THIS CONTRACT, BREACH OF THIS CONTRACT, OUT OF NEGLIGENCE IN THE COURSE OF SUCH PERFORMANCE, OR OTHERWISE RESULTING IN ANY MANNER FROM THE GOODS, ANY REPLACEMENT MATERIALS SUPPLIED OR ANY REPAIRS PERFORMED BY SELLER, INCLUDING THE DESIGN, MANUFACTURE, USE OR PERFORMANCE OF THE GOODS OR ANY CLAIMED DEFECTS THEREIN, WHETHER THE CLAIM FOR DAMAGES IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY. SELLER SHALL NOT BE LIABLE FOR ANY LOSS, CLAIM, EXPENSE OR DAMAGE CAUSED OR CONTRIBUTED BY OR ARISING OUT OF THE ACTS OR OMISSIONS OF BUYER OR THIRD PARTIES (INCLUDING WITHOUT LIMITATION CARRIERS) WHETHER BY NEGLIGENCE, FAILURE TO MAINTAIN THE BUILDING OR OTHERWISE.
Buyer is solely responsible for investigating and ascertaining all zoning by-laws, rules, regulations and ordinances and all building codes and building permit requirements applicable in and to the area or territory where the building or structure purchased hereunder is to be erected (“Building Laws”) in order to satisfy himself that the building or structure conforms to all applicable Building Laws. Buyer is solely responsible for designing a building or structure that will fit Buyer’s particular needs from the components offered for sale by Seller and that complies with all applicable Building Laws and for providing Seller with the specifications therefore. All specifications for the building or structure purchased hereunder set forth on the face hereof 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 described 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 and the materials, goods and specifications required by Buyer. 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 the erection 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 designated by Buyer include: (a) building or structure dimensions (width, length, eave height and 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. Unless otherwise indicated on the face, Buyer agrees to install roof and wall insulation in, and to continuously heat, the building.
Buyer shall pay all applicable sales taxes on the Total Purchase Price; it is expressly understood that if the rate of any applicable taxes is changed by the taxing authorities, Buyer shall pay in full the taxes set forth by those authorities. Buyer shall promptly pay the amount of such taxes to Seller upon demand regardless of whether the Contract is considered to be in interstate or intrastate commerce.
Building size and all other dimensions are approximate and intended to identify standard sizes sold by the Seller. Except when specifically indicated, all dimensions are exterior dimensions. No warranty or representation is given by the Seller as to exact dimension, as the same will vary upon concrete base and other factors. In particular, all vertical measurements are taken from the elevation at the base of the steel columns of the building shown in the drawings, and do not take into account differing elevations for the building that may result due to finished concrete floor or other floor elevations. Identification of gauge is subject to permissible industry variations and is intended to identify general gauge designations by steel producers.
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 and agrees 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.
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.
The Total Purchase Price is subject to re-costing if the full amount of the Engineering Payment is not paid or the estimated delivery date is not filled in on the face hereof at the time Buyer signs this Contract or if Buyer delays or postpones Buyer’s or Seller’s performance hereunder. Examples of such delay include Buyer’s failure to: cooperate in scheduling of delivery; accept the delivery date scheduled by Seller within seven (7) days of notice from Seller; promptly provide information needed by Seller to manufacture or procure goods; or make any payment when and in the manner due hereunder. In such event without limiting or waiving of any of Seller’s rights hereunder or at law, Seller may demand and Buyer shall thereupon immediately pay Seller all increases and increased costs that occur or are incurred after the Acceptance Date, including without limitation, increased materials, labor, freight, and delivery costs and related surcharges and storage fees (“Increased Costs”) and the Total Purchase Price shall be automatically increased by such Increased Costs. Without limiting or waiving the remedies or rights available to Seller under Section 3(A) or(3)(C) or any other provision hereof, if Buyer does not, within, seven (7) days of notice from Seller accept the delivery of the building or the goods ordered hereunder on the delivery date scheduled by Seller, (i) any future delivery date requested by Buyer shall be subject to Seller’s schedule at the time of request by Buyer (and Seller may therefore need to postpone delivery from Buyer’s desired rescheduled date), and (ii) after such future delivery date is rescheduled by Seller, Seller may notify Buyer of any Increased Costs that are due to the Buyer’s delay of Seller’s manufacture, delivery or other performance and Buyer agrees that it shall pay Seller all Increased Cost upon demand. Buyer specifically acknowledges and agrees that Seller will not under any circumstances ship the building or any ordered goods to Buyer until all Increased Costs and other increases and charges due to Seller, whether by reason of re-costing, Buyer’s delay, Change Orders, changes to drawings, or increases due under any provision of this Contract, are first paid in full by Buyer to Seller in advance of delivery, such that the only amount to be due and payable COD upon delivery of the building or structure ordered hereunder is the original balance due on delivery set forth on the face hereof. Failure by Buyer to pay Increased Costs and charges described in this section shall be a Breach by Buyer of this Contract entitling Seller to the damages and remedies described in Sections 5 and 6 above, respectively.
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.
The parties agree that this Contract has been consummated in Sedgwick County, Kansas. It is further agreed that in the event of litigation instituted by any party arising from or relating to this Contract or the Warranty Document any legal action must be maintained in the courts of Sedgwick County Kansas (“Courts”). Buyer specifically consents to the exercise of personal jurisdiction over Buyer by the Courts for the purposes of enforcing this Contract and disputes and claims arising under or relating to this Contract and Buyer waives any objection to venue with respect to any action filed in such location. Buyer and Seller knowingly and intentionally waive any right to trial by jury in regard to this Contract, including its enforcement. In the event that Buyer defaults or breaches any of the terms or conditions of this Contract and Seller utilizes an attorney to enforce or defend any of the provisions of the Contract, Buyer shall pay to Seller, Seller’s attorneys’ fees and costs to the maximum extent allowed by law. Seller’s attorney’s fees include attorney time spent by its in house counsel, which shall be payable by Buyer at the prevailing market rates of Seller’s outside attorneys in Wichita Kansas.
This Contract (including Exhibits and addenda hereto) and the Warranty Document is the final, complete, exclusive and fully integrated record of the agreement between Seller and Buyer concerning the subject matter hereof and supersedes all prior and contemporaneous understandings or agreements of Buyer and Seller. Only the specifications stated herein and the drawings or plans prepared or provided by the Seller shall apply to this Contract. Seller is not required to seek or obtain approval for goods supplied hereunder by any agents of Buyer, including architects, engineers or project managers. 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 officer 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 Buyer’s purchase order or other documents of Buyer that add to or differ from these terms and conditions are EXPRESSLY REJECTED. Notice is 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 shall be binding upon and inure to the benefit of the employees, officers, directors, agents, trustees, beneficiaries, successors and assigns of each of the parties. 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 Kansas. 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 but shall be construed so to give effect to the true intention of the parties. Buyer may request changes or add extras. Seller shall only be bound to comply with changes or extras contained in a change order signed by an officer of Seller and by Buyer or Buyer’s agent, specifying the modification to the goods and to the Total Purchase Price (“Change Order”).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. [SBC 8-1-12 Topline Steel Buildings].