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Uniform Terms and Conditions
1. Steelbuilding.com, a division of NCI
Group, Inc. (“Seller” or “Manufacturer”) provides the following terms and
conditions (“T&C”) to apply to this Purchase Order ("PO") for Seller’s line of
metal building products, goods and/or materials (sometimes referred to as “Metal
Building System”). The following T&C will apply without exception to this PO and
any and all sales by Seller to the customer named herein (“Buyer”). 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 President or
Executive Vice-President.
Terms and conditions contained within any
other document or agreement issued by Buyer, whether conflicting with the T&C
hereof or not, 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.
2.
Buyer acknowledges and agrees that this Purchase Order/Agreement 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 PO are not a part hereof and are not binding upon Seller.
The specifications as detailed or referenced in this PO as well as any drawings
created by Seller shall govern in all instances. It is solely Buyer’s
responsibility to verify that any and all applicable building and/or insurance
codes and/or ordinances, whether stated on the front of this PO or not, are
correct, complied with, observed and obeyed.
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 stated in the PO.
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.
Seamer
Rental Agreement: Some standing seam roof panels require a
special seaming tool (“Seamer”). If this PO includes a Seamer, then Seller’s
standard terms and conditions in its Seamer Rental Agreement are incorporated
herein by reference as if copied verbatim herein. A deposit will be required and
Buyer agrees to pay said deposit as directed by Seller. Rental for the standard
erection time may be included in the contract price; additional days will be
charged at the rate shown on the face of this Contract. Buyer agrees to return
the rented equipment via UPS or LTL carrier, insured, upon termination of the
rental period. Buyer is solely and strictly liable for this equipment and any
injuries resulting from the operation and handling of the equipment. Buyer
assumes the entire risk of loss with respect to the equipment including, but not
limited to, damage, theft, or acts of God. Buyer shall pay the Seller for any
loss including damages, attorney’s fees, or costs, which Seller may sustain by
reason of a claim being filed against Seller.
3.
Seller may initiate and Buyer may request changes to the Metal Building System
noted in this PO. If Seller is willing to comply with Buyer’s requested changes,
Seller will indicate its willingness by preparing a written change order
delivered 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.
4.
Either party may cancel this PO by giving written notice to the other party not
less than 7 days prior to the cancellation date. In the event of such
cancellation, Buyer agrees to pay Seller for any and all costs and damages
occasioned thereby, including, but not limited to, Seller's expenses of order
processing, engineering, detailing, purchase of material, fabrication and
applicable incidental and lost profits damages. Additionally, if Seller believes
that Buyer’s performance on this PO is substandard or if Seller receives
communication from an owner, contractor, subcontractor or any other third party
(collectively “third party”) regarding Buyer’s lack of performance on the
project covered by this PO, Buyer agrees and consents to allow Seller to
communicate directly with any such third party and further agrees that Seller
may immediately cancel this PO, sell
the Metal Building System contemplated in this PO to any third party Seller
deems necessary and Buyer shall pay Seller any and all damages in accordance
with these T&C.
5.
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
tender 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.
Notwithstanding anything to the contrary in this PO or otherwise, 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 jobsite. Buyer agrees to
reimburse Seller for all shipping costs.
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. 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.
6.
Buyer acknowledges and agrees that it will inspect the goods and/or materials
reflected in this PO immediately upon delivery. Seller shall not be liable for
any claim of shortage of materials unless notified of such claim by Buyer in
writing within 3 days after delivery of the applicable materials. 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. Any claim
that materials are defective or nonconforming in any respect or any rejection of
materials for being nonconforming under the requirements of this
PO must be made in writing within 5 days after
delivery of the materials. 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). 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. 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 within approximately 30 days, unless Buyer
notifies Seller in writing to forego such shipment.
7.
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 Houston, Texas, its lockbox
in Dallas, Texas or such other place as directed by Seller
in writing. 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 and shall
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.
If Buyer asserts the purchase of the Metal Building System is exempt from sales
tax, Buyer must immediately furnish Seller’s Tax Department 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. Notwithstanding
any other agreement to the contrary, 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’s Credit Department
and such credit terms can be revoked by Seller's Credit Department 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. Except
as otherwise agreed in writing, 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. Seller may assign its right to receive from Buyer any payments
called for hereunder at any time on 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 Houston, Harris County, Texas. 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.
8.
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. 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 expressly 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.
9.
ACCEPTANCE OF MATERIALS - Buyer also
acknowledges, agrees and stipulates that installation of materials shall
unequivocally constitute irrevocable acceptance of materials.
10. 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.
11. PRICE
INCREASES -BUYER AGREES AND STIPULATES THAT, IN THE EVENT SELLER RECEIVES
NOTIFICATION OF A PRICE INCREASE FROM ANY OF ITS SUPPLIERS BETWEEN THE DATE OF
THIS PO AND THE DATE SCHEDULED FOR DELIVERY OF THE METAL BUILDING SYSTEM, SELLER
RESERVES THE RIGHT, IN ITS SOLE DISCRETION AND JUDGMENT, TO INCREASE THE
PURCHASE PRICE STATED HEREIN IN AN AMOUNT CORRESPONDING TO SAID PRICE
INCREASE(S). MOREOVER, BUYER AGREES
AND STIPULATES THAT IT SHALL PAY TO SELLER ANY AND ALL SURCHARGES INCLUDING, BUT
NOT LIMITED TO, FUEL SURCHARGES, THAT SELLER MAY PUT INTO EFFECT PRIOR TO
DELIVERY OF ALL OF THE MATERIALS COVERED BY THE PO.
12.
JURISDICTION, MANDATORY VENUE AND WAIVER OF JURY TRIAL - Except where this PO
expressly provides otherwise, 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 Texas. Further, Buyer
acknowledges, stipulates and agrees that this PO was executed, accepted and is
to be performed in Harris County, Texas.
Buyer acknowledges, stipulates and agrees that (i) any and all claims,
actions, proceedings or causes of action relating to the validity, performance,
interpretation, and/or enforcement hereof shall only be asserted and/or
submitted to a court in Houston, Harris County, Texas and that mandatory venue
and jurisdiction for any legal action arising from this PO and/or relating to
this PO is only in a court located in Harris County, Texas, (ii) Buyer
irrevocably submits itself to the exclusive jurisdiction of the state and
federal courts in Houston, Harris County, Texas, (iii) Buyer irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of exclusive venue of any litigation arising out of
or in connection with this
PO brought in any such court, and (iv) Buyer irrevocably
waives any claims that litigation brought in any such court has been brought in
an inconvenient forum. FURTHER,
EACH PARTY KNOWINGLY AND VOLUNTARILY AGREES NOT TO ELECT AND EXPRESSLY WAIVES A
TRIAL BY JURY WITH RESPECT TO THIS PO AND/OR THE DOCUMENTS CONTEMPLATED HEREBY
FOR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION HEREWITH.
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.
13.
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 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 FURTHER AGREES, WARRANTS AND
ACKNOWLEDGES THAT IT IS AWARE THAT SELLER MUST INDEMNIFY AND HOLD HARMLESS BUYER
AGAINST LOSS, INCLUDING ALL COURT COSTS AND OTHER REASONABLE EXPENSES,
REASONABLE ATTORNEYS’ FEES, AND ANY REASONABLE DAMAGES, ARISING OUT OF A
PRODUCTS LIABILITY ACTION, EXCEPT FOR ANY LOSS CAUSED BY BUYER'S NEGLIGENCE,
INTENTIONAL CONDUCT OR OTHER ACT OR OMISSION, SUCH AS NEGLIGENTLY MODIFYING OR
ALTERING THE PRODUCT, FOR WHICH BUYER IS INDEPENDENTLY LIABLE, AS REQUIRED BY
CHAPTER 82.001 ET SEQ. OF THE TEXAS CIVIL PRACTICE & REMEDIES CODE, AND 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
AS REQUIRED BY CHAPTER 82.001 ET SEQ. OF THE TEXAS CIVIL PRACTICE & REMEDIES
CODE.
14. 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.
15.
WAIVER OF CONSUMER RIGHTS–SELLER AND BUYER WAIVE
THEIR RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES‑CONSUMER PROTECTION ACT,
SECTIONS 17.41 THROUGH 17.63 INCLUSIVE, OF THE TEXAS BUSINESS AND COMMERCE CODE,
A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. BUYER REPRESENTS THAT
IT HAS CONSULTED WITH AN ATTORNEY OF ITS OWN SELECTION AND, AFTER THAT
CONSULTATION, VOLUNTARILY CONSENTS TO THIS WAIVER. The waiver set forth herein shall expressly survive the termination of
this
PO and the transactions contemplated
herein. Each of Seller and Buyer has
waived its rights pursuant to the Deceptive Trade Practices‑Consumer Protection
Act without duress or coercion and fully acknowledges and understands the effect
of the waiver.
16. If any provisions of this PO is found to be invalid or unenforceable in any
jurisdiction, such provision shall be fully severable in such jurisdiction, and
this PO shall be construed and enforced as if in such jurisdiction such
provision had never comprised a part hereof. In such event, the remaining
provisions of this PO shall remain in full force and effect. The T&C of this PO,
the Website Terms of Use Agreement and any other terms and conditions referred
to in any other agreement referenced herein, all of which are incorporated
herein by reference, are intended by the parties as
a final expression of their agreement containing all oral and written
understandings between the parties relative to the Metal Building System
referenced herein.
THE BUYER, EVIDENCED BY CLICKING THE “I AGREE” OR “ACCEPT” BUTTON,
UNCONDITIONALLY ACCEPTS THIS PO INCLUDING THE T&C REFERENCED HEREIN 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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