Taxes: The appropriate state sales or use tax shall be added at time of delivery based on tax rates in force on day of delivery by the state where the building is delivered.
Conformity of Goods: Except where this Contract may expressly provide otherwise, the specifications of the goods described herein shall be governed by the recommended code of standard practice for the design, manufacture, sales, and erection of metal buildingsas set forth in the Metal Building Systems Manual latest edition published by the Metal Buildings Manufacturers Association, 1300 Sumner Ave, Cleveland, OH 44115; or you may order the manual online at: www.mbma.com. In the event the Metal Buildings Manufacturers Association's standards are silent as to the interpretation of a specification of the goods, the Uniform Commercial Code, Article 2, under the laws of the State of Arkansas shall govern. Any non-conformity shall be interpreted in favor of the specifications in the Contract.
Specifications and Building Code Compliance: The specifications as detailed in the Contract shall govern in all instances including but not limited to where the related drawings indicated a specification or addition to the contrary. The Buyer, evidenced by his acceptance of these terms herein, accepts this provision and is solely responsible for the accuracy of the specifications as detailed in the Contract. That is, it is the sole responsibility of the Buyer to verify the specifications as contained in this Contract to the Buyer's drawings and local building and insurance codes for conformity, and any non-conformity shall be interpreted in favor of the specifications in this Contract.
Compliance with State and Local Building Codes: It is solely buyer's responsibility to verify that the building codes stated on the Purchase Order comply with local building and insurance codes. Buyer understands and agrees that local ordinances are outside of the scope of the Seller's knowledge and that Seller assures only that the building will meet specific loadings as stated in the Purchase Order.
Adopt UCC Terms: Unless specifically defined herein the terms used in the Contract shall be defined by the Uniform Commercial code §2-103. In addition, the definition and principles of construction set forth in Article 1 are applicable. Except where otherwise expressly stated in the Contract, all terms herein employed shall have the same definition as set forth in the UCC in the State of Arkansas.
Variation on Conforming Goods: The goods must conform exactly to the specifications set forth in this Contract except that variation is permitted in quality or quantity if the variation does not affect the merchantability of the goods and is in accordance with usage of trade customs.
Permit Hold Orders: In some instances an order is placed on "Permit Hold" status, either at the request of the Buyer or at the unilateral discretion of Seller. When an order is placed on Permit Hold status, one or more sets of permit drawings, which are to be submitted as part of the permit application, are forwarded to Buyer by Seller. When Buyer obtains necessary permits, Buyer must submit to Seller a written request to release the order for fabrication and written notification that Buyer has obtained the necessary permits. Buyer is subject to any cost increases which Seller incurs after the date the order was placed with Seller. Should Buyer be subject to any such price increase, Seller will provide Buyer with a Change Order which specifies the adjusted price. Buyer shall be required to sign and return the Change Order within ten (10) business days from the date that the Change Order was shipped to Buyer. In the event Buyer fails to return the signed Change Order within that period of time, Seller shall consider the order to be cancelled and Buyer's deposit will be forfeited.
Changes, Extras, or Discrepancies in Plans or Contract Provisions: Buyer may request changes or add extras. Seller shall only be bound to comply with changes or extras which have been approved by Seller and a change order signed by the Buyer or Buyer's agent. The change order shall specify the change and the contract price will be modified accordingly.
Delay: Seller shall not be liable for any loss, cost, or damages which Buyer may suffer by reason of Seller's delay. If any of the following events occur, Buyer shall bear the expense for delay. The events are:
Buyer, its agents or employees, notifies Seller to place order, or any part of order, on "hold" until further notice;
Buyer delays delivery of parts after fabrication has begun.
In the event a) above occurs, Seller may then charge Buyer whatever cost or damages Seller incurred by reason of the delay, including incidental and consequential costs. In the event b) above occurs, Seller will immediately invoice Buyer and Buyer's payment is due upon receipt of invoice.
Risk of Loss - Other Liability: Buyer understands and agrees that the Seller has contracted with the carrier of the goods as described in this Contract and that the carrier shall accept risk of loss while the goods are in transit. Immediately upon arrival of the goods by the carrier and prior to unloading same, Buyer shall bear risk of loss as to any parts of the shipment, personal injury (i.e. for unloading) and any other liability which may occur. Seller shall not be responsible for spotting, switching, drayage, demurrage or other transportation charges unless agreed to in writing prior to delivery. Buyer shall hold Seller harmless from any loss, costs, claims, suits, damages, and attorney's fees arising from any alleged or real injury (including death or total destruction) to any person or property which arises out of work performed or materials supplied hereunder.
Representative's Authority: Buyer understands and agrees that no agent, employee, or representative of Seller has authority to bind Seller to any affirmation, representation or warranty concerning the goods sold hereunder or the building to be erected there from, which is not set forth herein, and Buyer further understands and agrees that any such affirmation of fact or representation made by any such agent, employee or representative which is not set forth herein shall not bind Seller.
Delivery and Payment: All shipments shall be F.O.B. factory. Contract price shall be paid by Buyer with a cashier's check payable to Seller or its assigns (together with any balance due on the purchase price, as directed by seller) prior to unloading shipment at its destination. Seller does not guarantee date of delivery and in no event shall be responsible for delay damages. Seller will exercise good faith in working toward requested delivery dates. No statements made by Seller's agents or employees with regard to delivery dates shall be binding to Seller. Buyer is responsible for demurrage charges for truck line. Payment may be required immediately upon receipt of invoice by Seller and prior to Buyer's receipt of building in accordance with Paragraph 10. The Seller shall provide Buyer with a packing list of materials to be delivered. Buyer shall inventory the materials at the time of delivery or waive any discrepancies.
Assignment of Contract: In the event of default by Buyer of any of its obligations hereunder, Buyer hereby irrevocably appoints Seller to act as its agent and attorney-in-fact to sell the building to any third party at the same price as on the face of this contract.
Option of Seller to Deliver in Installments: Seller shall have the option to deliver goods in two or more installments as Seller shall elect.
Limited Warranty: Seller warrants only that its products are free from defects in materials and workmanship on the date of shipment from its plant. The Seller's obligations under this warranty shall be limited to repairing or replacing (but not dismantling and installing) such products which prove to be defective within one (1) year from the date of the original shipment by Seller, provided, however, Buyer has performed maintenance for the general upkeep of the building. As a condition precedent to the effectiveness of the foregoing warranty, the Metal Building System must be erected within 180 days of the date of shipment from Seller's plant and must be erected in strict accordance with Seller's procedures and guidelines as stated in its Erection Manual. Damage due to faulty or improper erection by others, misuse and abuse, lack of proper maintenance, normal wear and tear, and any other circumstance not directly attributable to the negligence or willful misconduct of the Seller shall NOT be covered. Any products repaired or replaced shall be subject to warranty only for the remainder of the time applicable to the original period. THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THIS CONTRACT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SELLER SHALL NOT BE RESPONSIBLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSS OF ANY KIND WHATSOEVER. Seller shall determine whether correction of any defect or failure under this warranty shall be by repair or replacement. Seller's liability shall not arise unless repairs are made under the supervision, or with written approval, of Seller. Shipping costs incurred in returning defective material shall be paid by Seller if such shipment is authorized in writing by Seller. Title to any returned materials shall pass immediately to Seller. This warranty does not cover products, accessories, parts, or attachments that are not manufactured by Seller except to the extent of any replacements or reimbursements that are obtained pursuant to any warranty given Seller by the original manufacturer. This warranty is specifically non-assignable and non-transferable. Notwithstanding the foregoing, installation of materials shall unequivocally constitute acceptance of materials.
DISCLAIMER OF WARRANTY—THE ABOVE WARRANTY DOES NOT COVER PRODUCTS, ACCESSORIES, PARTS OR ATTACHMENTS THAT ARE NOT MANUFACTURED BY SELLER. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE METAL BUILDING SYSTEM AND ANY AND ALL IMPLIED WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 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 GREATER DAMAGES. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, LIQUIDATED, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, COST OF COVER OR BACK-CHARGE DAMAGES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, 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 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 AGREEMENT REFLECTS THE INTENT OF THE PARTIES TO LIMIT SELLER'S LIABILITY AS PROVIDED HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS ARTICLE ARE INTENDED TO LIMIT SELLER'S LIABILITY AND WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ANY ACTION, CLAIM OR PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, MUST BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE ACTION OR EVENT GIVING RISE TO SUCH ACTION, CLAIM OR PROCEEDING. BUYER AGREES TO USE REASONABLE EFFORTS TO MITIGATE ANY DAMAGES SUSTAINED BY BUYER PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT. 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.
Maintenance: Roof and wall panels should be cleaned on a regular basis to prevent staining or discoloration of panel finishes. Buyer should take precautions to properly maintain the buildings once erected to ensure that no damage is caused by the accumulation of snow or ice on the top, ends, or sides of the structure.
Forfeiture: Buyer has placed on deposit with Seller an amount as described on the front of this Contract. This deposit is required for expenses Seller shall incur in the preparation of building drawings. Buyer understands the drawings are commenced immediately upon receipt of Buyer's order. Therefore, in the event of cancellation or other breach of Buyer's obligations under this Contract, the deposit shall be retained by Seller as liquidated damages. Buyer agrees that this represents the approximate damage to Seller due to the breach of buyer and is not intended in any manner to be a penalty.
Governing Law: This contract shall be governed by and construed according to the laws of the State of Arkansas.
Jurisdiction and Venue: It is agreed by and between Buyer and Seller that all disputes or other matters whatsoever arising under, in connection with or incident to the Contract shall be litigated, if at all, in and before a court located in Little Rock, Arkansas to the exclusion of the courts of any other state, territory or country. Buyer hereby waives any jurisdiction or venue objections that Buyer may have to any such action or proceeding being brought in any court located in Little Rock, Arkansas.
Waiver of Trial by Jury: EACH PARTY HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND FULLY WAIVES ANY RIGHT TO TRIAL BY JURY TO THE EXTENT THAT ANY SUCH RIGHT NOW OR HEREAFTER EXISTS WITH RESPECT TO THIS AGREEMENT AND/OR THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION HEREWITH. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY SUCH PARTY AND IS INTENDED TO ENCOMPASS EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO TRIAL BY JURY WOULD OTHERWISE ACCRUE. EITHER PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.
Attorney Fees: In the event Buyer in any manner defaults or breaches the terms and conditions of this Contract, or threatens to do same, or in the event it becomes necessary for Seller to employ an attorney to enforce any provision of this Contract, obtain injunctive relief, collect damages on account of a breach or threatened breach of this contract, or if Seller prevails in a tort action commenced by Buyer, Buyer shall pay to Seller, Seller's attorney fees and costs.
Separability Provisions: Each provision of this contract shall be considered separable and if for any reason any provision or provisions hereof are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this contract which are valid.
Force Majeure: Under no circumstances shall Seller be liable in any way to Buyer, building owner or any other party for delays, 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; war; 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, whether or not similar to the foregoing. FURTHER, BUYER HEREBY AGREES AND STIPULATES THAT IF THIS PURCHASE ORDER REQUIRES SELLER TO PREPARE APPROVAL AND/OR PERMIT DRAWINGS AND IN THE EVENT SELLER RECEIVES NOTIFICATION OF A SCHEDULED PRICE INCREASE FROM ANY OF ITS STEEL SUPPLIERS, SELLER RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO INCREASE THE PURCHASE PRICE STATED HEREIN IN AN AMOUNT CORRESPONDING TO SAID PRICE INCREASE.
Indemnification: BUYER ASSUMES ENTIRE RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR ACTIONS BASED ON OR ARISING OUT OF INJURIES, INCLUDING DEATH, TO PERSONS OR DAMAGES TO OR DESTRUCTION OF PROPERTY, SUSTAINED OR ALLEGED TO HAVE BEEN SUSTAINED IN CONNECTION WITH OR TO HAVE ARISEN OUT OF OR INCIDENTAL TO THE PERFORMANCE OF THIS CONTRACT BY BUYER, ITS AGENTS AND EMPLOYEES, AND ITS SUBCONTRACTORS, THEIR AGENTS AND EMPLOYEES, INCLUDING CLAIMS OR ACTIONS FOUNDED IN WHOLE OR IN PART UPON THE ALLEGED ACTS, OMISSIONS OR NEGLIGENCE 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.
Entire Agreement: This writing contains the total agreement of the parties and all agreements entered into prior to or contemporaneously with the exercise of the Contract are excluded whether oral or in writing.