USER AGREEMENT AND GENERAL TERMS & CONDITIONS
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Your failure to follow these rules, whether listed below or in bulletins posted at various points in the Site, may result in suspension or termination of your access to the Site, without notice, in addition to MetalBuildingDepot.com's other remedies.
USE OF PASSWORD
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USE OF THE SITE BY YOU
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USE OF MATERIAL SUPPLIED BY YOU
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MATERIALS POSTED BY OTHERS
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EDITING AND DELETIONS
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DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY:
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TERMINATION OF ACCESS TO THE SITE
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Service Provider makes not representation that materials on the Service are appropriate, available or legal in any particular location. Those who choose to access the Service do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
You agree that this Agreement, for all purposes, shall be governed and construed in accordance with the laws of the State of Texas applicable to contracts to be wholly performed therein, and any action based on or alleging a breach of this Agreement must be brought in a state or federal court in Brazoria County, Texas. In addition, you agree to submit to the personal jurisdiction and venue of such courts.
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Buyer/End User Responsibilities
It is the responsibility of the BUYER/END USER to obtain appropriate approvals and secure necessary permits from City, County, State, or Federal Agencies as required, and to advise/release MetalBuildingDepot.com / ICON Building Systems to fabricate upon receiving such. Customer deposit/down payment shall constitute release for fabrication.
MetalBuildingDepot.com / ICON Building Systems standard specifications apply unless stipulated otherwise in the Contract Documents. MetalBuildingDepot.com / ICON Building Systems design, fabrication, quality criteria, standards, practice, methods and tolerances shall govern the work with any other interpretations to the contrary notwithstanding. It is understood by both Parties that the BUYER/END USER is responsible for clarification of inclusions or exclusions from the architectural plans and/or specifications.
In case of discrepancies between MetalBuildingDepot.com / ICON Building Systems structural steel plans and plans for other trades, ICON Building Systems plans shall govern. (Section. 3 AISC Code of Standard Practices, 9th Edition)
Approval of MetalBuildingDepot.com / ICON Building Systems drawings (written or verbal) and calculations indicates that MetalBuildingDepot.com / ICON Building Systems has correctly interpreted and applied the Contract Documents. This approval constitutes the contractor/owners acceptance of the MetalBuildingDepot.com / ICON Building Systems design concepts, assumptions, and loading. (Section 4 AISC Code and MBMA 3.3.3)
Once the BUYER/END USER has signed/agreed (written or verbal) MetalBuildingDepot.com / ICON Building Systems Approval Package and the project is released for fabrication, changes shall be billed to the BUYER/END USER including material, engineering and other costs. An additional fee may be charged if the project must be moved from the fabrication and shipping schedule.
The BUYER/END USER is responsible for overall project coordination. All interface, compatibility, and design considerations concerning any materials not furnished by MetalBuildingDepot.com / ICON Building Systems are to be considered and coordinated by the BUYER/END USE CUSTOMER. Specific design criteria concerning this interface between materials must be furnished before release for fabrication or MetalBuildingDepot.com / ICON Building Systems assumptions will govern (Section 4 and Commentary, AISC Code of Standard Practice 9th Edition).
It is the responsibility of the BUYER/END USER to ensure that MetalBuildingDepot.com / ICON Building Systems plans complies with the applicable requirements of any governing building authorities. The supplying of sealed engineering data and drawings for the metal building system does not imply or constitute an agreement that ICON Building Systems or its design engineers are acting as the engineer of record or design professional for a construction project. These drawings are sealed only to certify the design of the structural components furnished by MetalBuildingDepot.com / ICON BUILDING SYTEMS.
The BUYER/END USER is responsible for setting of anchor bolts and erection of steel in accordance with MetalBuildingDepot.com / ICON Building Systems "For Construction" drawings only. Temporary supports such as guys, braces, false work, cribbing or other elements required for the erection operation shall be determined furnished and installed by the erector. No items should be purchased from a preliminary set of drawings, including anchor bolts. Use only final "For Construction Drawings" for the use. (Section 7 AISC Code of Standard Practice, 9th Edition)
MetalBuildingDepot.com / ICON Building Systems is responsible for the design of the anchor bolt to permit the transfer of forces between the base plate and the anchor bolt in shear, bearing and tension, but is not responsible for the transfer of anchor bolt forces to the concrete or the adequacy of the anchor bolt in relation to the concrete.
Unless otherwise provided in the Order Documents, MetalBuildingDepot.com / ICON Building Systems does not design and is not responsible for the design, material and construction of the foundation or foundation embedment. The END USE CUSTOMER should assure himself that adequate provisions are made in the foundation design for loads imposed by column reactions of the building, other imposed loads, and bearing capacity of the soil and other conditions of the building site.
It is recommended that a Registered Professional Engineer experienced in the design of such structures design the anchorage and foundation of the building. (Section A10 1996 MBMA Low Rise Building Systems Manual)
Normal erection operations include the corrections of minor misfits by moderate amounts of reaming, chipping, welding or cutting, and the drawing of elements into line through the use of drift pins. Errors which cannot be corrected by the foregoing means or which require major changes in member configuration are to reported immediately to MetalBuildingDepot.com / ICON Building Systems by the BUYER/END USE CUSTOMER, to enable whoever is responsible either to correct the error or the approve the most efficient and economic method of correction to be used by others. (Section 7 AISC Code of Standard Practice, 9th Edition)
Neither the fabricator/erector nor the BUYER/END USER will cut, drill or otherwise alter his work, or the work of other trades, to accommodate other trades, unless such work is clearly specified, the BUYER/END USE CUMSTOMER is responsible for furnishing complete information as to materials, size location and number of alterations prior to preparation of shop drawings. (Section 7 AISC Code of Standard Practice, 9th Edition)
Owner, Contractor, and/or Builder Responsibilities
The owner, contractor, and/or builder must secure all required approvals and permits from the appropriate agency as required. Approval of MetalBuildingDepot.com / ICON Building Systems drawings and calculations indicates that MetalBuildingDepot.com / ICON Building Systems has correctly interpreted and applied the requirements of the contract drawings and specifications. (Sect 4.2.1. AISC Code of Standards Practice, 9th Edition). Where discrepancies exist between ICON Building Systems Structural Steel Plans and the plans of other trades, the Structural Steel Plans will govern. (Sect. 33 AISC Code of Standards Practice, 9th Edition). The builder is responsible for all erection of steel and associated work in compliance with MetalBuildingDepot.com / ICON Building Systems "Construction Drawings".
No changes to this building system should be made unless approved in writing by the manufacturer Engineers. Unapproved changes could result in unsafe building design and could endanger public safety.
All bracing, strapping, & bridging shown and provided by MetalBuildingDepot.com / ICON Building Systems for this building is required and shall be installed by the erector as a permanent part of the structure. If additional bracing is required for stability during erection, it shall be the erector's responsibility to determine the amount of such bracing and to procure and install as needed. ERECTION NOT BY MetalBuildingDepot.com / ICON BUILDING SYTEMS.
Any claims or shortages by buyer must be made to MetalBuildingDepot.com / ICON Building Systems within five (5) working days after delivery, or such claims shall be considered waived by the customer and disallowed.
Correction of Errors and Repairs (MBMA 6.10)
Claims for correction of alleged misfits will be disallowed unless MetalBuildingDepot.com / ICON Building Systems shall have received prior notice thereof and allowed reasonable inspection of such misfits. The correction of minor misfits by the use of drift pins to draw the components into line, moderate amounts of reaming, chipping and cutting, and the replacement of minor shortages of material are a normal part of erection and are not subject to claim. No part of the Building may be returned for alleged misfits without the prior approval of MetalBuildingDepot.com / ICON BUILDING SYTEMS.
The Structure described in your contract has been designed and detailed for loads and conditions stipulated in the contract and shown on your respective drawings. Any alterations to the structural system or removal of any component parts, or the addition of other construction materials or Loads must be done under the advice of a Registered Architect, Civil or Structural Engineer. MetalBuildingDepot.com / ICON Building Systems will assume no responsibility for any loads not indicated.
Complete sets of Construction Drawings are furnished with every building. Each plan is specially prepared for each individual building and should be strictly adhered to. Familiarize yourself with these drawings prior to start-up.
In no case should Galvalume® steel panels be used in conjunction with lead or copper. Both lead and copper have harmful corrosive effects on the Galvalume® alloy coating when they are in contact with Galvalume® steel panels. Even run-off from copper flashing, wiring, or tubing onto Galvalume® should be avoided.
MetalBuildingDepot.com / ICON Building Systems has a commitment to manufacture quality buildings that can be safely erected. However, the safety commitment and job site practices of the erector are beyond the control of MetalBuildingDepot.com / ICON BUILDING SYTEMS. It is strongly recommended that safe working conditions and accident prevention practices be the top priority of any job site. Local, State, and Federal safety and health standards should always be followed to help ensure workers safety. Make certain all employees know the safest and most productive way of erecting a building. All employees should know emergency procedures. Daily meetings highlighting safety procedures are also recommended. The use of hard hats, rubber sole shoes for roof work, proper equipment for handling material, and safety nets where applicable, are recommended.
Emergency telephone numbers, location of first aid stations and emergency procedures should be known by everyone present at the site.
MetalBuildingDepot.com / ICON Building Systems produces high quality, pre-engineered metal buildings. For your new building to yield optimum integrity and durability, proper assembly is required. MetalBuildingDepot.com / ICON Building Systems shall furnish detailed and general assembly instructions. The MetalBuildingDepot.com / ICON Building Systems Erection Manual is intended to be an aid to the your Pre-Engineered Drawings which dictate specific building parts and construction details. The manufacturer intends that this manual be interpreted and administered with sound judgment consistent with good safety practices. MetalBuildingDepot.com / ICON Building Systems assumes that only an experienced, knowledgeable erector with trained crews and proper equipment will perform the assembly.
MetalBuildingDepot.com / ICON Building Systems is committed to producing quality building components that can be safely assembled. It is a top priority to always utilize proven and safe procedures while employing accident prevention methods. The safety practices at the job site are beyond the control of MetalBuildingDepot.com / ICON Building Systems. To help ensure worker safety, adhere to Local, State and Federal safety and health standards. Make certain all employees know the safest and most productive way of erecting a building. Take careful note of any overhead electric lines or other utilities to avoid hazards and damage.
It is understood that MetalBuildingDepot.com / ICON Building Systems is not engaged in the erection/assembly of its product(s). The provided erection suggestions are intended only as a guide as to how the components should be assembled. The expertise and skills of the erection crew(s) as well as the available equipment will determine the customer's satisfaction and quality of the completed building.
It is important to research and investigate any vendor or contractor for comparing price, quality, and time of completion as related to the assembly of your new building. The manufacturer(s) will answer any questions that may arise but will not physically be involved in the assembly process. Any agreement or representation between dealer or contractor and buyer concerning delivery, construction, modifications or other items are between the parties thereto.
It is understood that MetalBuildingDepot.com / ICON Building Systems is not liable for the quality of erection, erection safety procedures, poor foundation design, or assembly, site selection and preparation, including soil and drainage testing or the negligence of other parties. Due to variations in loading and zoning requirements, it is the customer's responsibility to make certain that the building conforms to all codes. At an additional cost, MetalBuildingDepot.com / ICON Building Systems can engineer and supply building components to meet special requirements.
Moderate cutting and reaming or correcting minor misfits are considered part of the assembly process. Any fabrication errors preventing proper assembly or the fitting of parts by moderate use of reaming, chipping, or cutting should be reported to the manufacturer(s), so that he may either correct the error or approve the method of correction to be used.
To ensure against any loss or damage, it is the customer's responsibility to purchase and maintain liability insurance for complete assembly process and thereafter.
To the best of our knowledge, this information is accurate. However, MetalBuildingDepot.com / ICON Building Systems disclaims any responsibility for damages that may result from the use of any erection details/manual since the actual erection and assembly operations and conditions are beyond our control.
Prior to construction, it is recommended that you read the erection manual and thoroughly study the "Pre-Engineered Drawings". Understanding the assembly process allows the erector to properly plan the assembly and help to avoid unnecessary delays. It is the customer's responsibility to be familiar with all laws and regulations that govern permitting, labor and employment, safety, materials handling and disposal, and any other issues which may apply. A copy of this manual may be obtained at a nominal cost.
BUILDING SITE ASSESSMENT
A.1. Ensure the transport company has sufficient permission and access to the building site.
A.2. To perform the tasks required for building assembly, confirm the building site has adequate workspace.
A.3. The availability of any required utilities should also be considered at this time.
Foundation design and construction are important to the assembly process. To ensure optimum integrity of your new building, the foundation must meet certain design criteria and load conditions. It is required that all building foundations be designed by an experienced foundation engineer, and coordinated with all local city, county and state codes. This engineer may also provide recommendations on excavation, drainage, formwork, reinforcing steel, and concrete proportioning. The customer is solely responsible for the quality of the foundation. Improper foundation construction will limit the building's performance, which may lead to costly repair(s). The foundation should be sharply formed with true corners, straight sides, and a level top. This will allow for proper alignment and seating and good of all building components. Strict adherence to OSHA and other local codes or laws governing "shoring of excavation to prevent accidental cave-ins" is critical.
MetalBuildingDepot.com / ICON Building Systems will furnish anchor bolt drawings to outline basic guidelines and considerations for foundation design. Careful consideration of the following notes will be helpful in completing the foundation. Your new building has been manufactured to extremely close tolerances; therefore your foundation must posses the following characteristics.
Warning: The accuracy of foundation construction and anchor bolt settings is the most important factor in achieving trouble-free component alignment and fit-up. Foundation errors and mis-location of anchor bolts are among the most frequent and troublesome errors made in metal building construction. The following procedures and methods should help to minimize these costly errors and delays.
Always follow all OSHA safety recommendations.
Notice: The foundation and erection contractor(s) should supply all necessary tools and equipment.
1. Your foundation must posses the following characteristics.
1.1. It is recommended that the foundation be designed by an experienced foundation engineer, and coordinated with all local city, county and state codes.
1.2. The foundation must be square, level and smooth.
1.3. Anchor bolts must be set within +/- 1/16" of the specified anchor bolt drawing dimensions.
Notice: The foundation contractor is responsible for providing all "embedded" structural steel, i.e.: wire mesh, reinforcing bars, and anchor bolts.
Note: This website is provided for the exclusive use of individual customers who intend on purchasing a pre-engineer steel building system. The site is used to generate computerized (automated) pricing. By accepting the terms and agreements/general conditions of this website you agree and understand that the possibility of errors may occur. It is further agreed that in no case shall MetalBuildingDepot.com / ICON Building Systems be held liable for pricing errors or any exclusions omissions on any quote generated by the Site. The possibility of errors may exist on rare occasion. MetalBuildingDepot.com / ICON Building Systems reserves the right to cancel any quote/bid/estimate any time without notice.
GENERAL CONDITIONS OF CONTRACT
: The following definitions shall apply to this Contract:
Means Metalbuildingdepot.com, aka. ICON Building Systems, 9364 CR 628, Brazoria, TX. 77422, hereinafter referred to as MBD.
- Means SELLER and its parent, subsidiary and affiliated companies, SELLER's subcontractors and all other parties with whom SELLER has a contractual relationship (with the exception of BUYER) and its and all of their officers, directors, employees, agents, assigns, representatives, invitees, contractors, subcontractors, and the subrogees of said parties.
- Means the person or entity represented by the authorized signature on the acceptance page of the Contract.
- Means BUYER, any party claiming an ownership interest in the Building and its and their respective parents, subsidiaries and affiliated companies and its and all of their respective officers, directors, employees, agents, assigns, representatives, invitees, contractors, subcontractors and the subrogees of said parties.
- Means the custom designed Metal Building(s) covered by and supplied under this Contract.
- Means the contract between BUYER and SELLER in which SELLER agrees only to design, fabricate and deliver materials for a Building to BUYER for the agreed upon Price.
- Means all approval, permit and/or construction drawings, all anchor bolt plans, design calculations and other specifications provided by SELLER with reference to the Building.
- Means the written notification of approximate fabrication and shipment dates provided by SELLER to BUYER before fabrication of the Building.
: Metal Building Manufacturers Association, 1300 Sumner Ave., Cleveland, Ohio 44115-2851.
- Means the document containing SELLER's Standard Products and Specifications.
- Means sales taxes, ad valorem taxes, VAT or any other taxes, insurance, transportation charges, storage charges, building permit costs, performance bonds, bid bonds, payment bonds or change orders.
: The Price payable by BUYER shall be as set forth on the pricing and acceptance portion of this Contract. Unless otherwise noted on the Contract, the Price does not include any Additional Fees. In the event that SELLER becomes liable for any Additional Fees concerning this Contract, then BUYER agrees to either (i) directly pay such Additional Fees, or (ii) reimburse SELLER for the cost of such Additional Fees. Prices are valid for three (3) calendar days after the date the Contract is submitted to Buyer for acceptance.
: The Customer is responsible for paying any and all taxes that may be imposed on this contract by any and all taxing authorities. When invoicing this Contract, MBD will use all available information in an attempt to charge the appropriate tax in effect on shipment date, as required by the various states. However, should a subsequent state tax audit reveal a different tax amount is due on this contract, the Customer agrees to be responsible for paying any tax deficiency.
4.0 PAYMENT/CREDIT TERMS
: All amounts due SELLER under this Contract shall be due and payable in United States dollars at SELLER's offices in Brazoria, Texas, Brazoria County, U.S.A. without offset or withholding of any kind. Payment in cash for contract value of material and additional fees shall be due and payable upon each shipment, or if shipment is delayed at request of BUYER, upon offer to make shipment. In the event that Credit Terms apply to the payment of the Price for this Contract, such Credit Terms shall be determined by SELLER's Credit Department. Payment terms shall be stated on the face of the invoice. If BUYER fails to make payment in accordance with terms of the Contract, the unpaid balance will be subject to a finance charge of the maximum legal non-usurious rate applied to such unpaid balances. Further, SELLER reserves the absolute right to discontinue further shipment of the Building to BUYER under this Contract, or any other contract between BUYER and SELLER until payment is made or until SELLER receives adequate assurances of performance from BUYER acceptable to SELLER. In the event SELLER pursues its legal remedies to collect amounts due and owing under this Contract, SELLER shall be entitled to recover any and all costs associated with such legal remedies from BUYER, including, but not limited to, its attorneys fees. SELLER reserves the right to divide the deliverables under this Contract into separate shipments and to invoice for such shipments to BUYER separately, in which case each shipment shall be deemed a separate Contract subject to the terms and conditions set forth herein and payment thereof shall be due in accordance with terms and conditions of this Contract. There shall be no retainages, withholdings or deductions by BUYER.
5.0 PRICE ESCALATION
: If fabrication of the Building is delayed for any reason including, but not limited to, the request of the BUYER or for Force Majeure, for a continuous period of ten (10) calendar days or more, the Building shall be subject to re-pricing by SELLER to reflect any increases in labor and/or material cost along with reasonable and normal profit margins on such increases, all of which BUYER agrees to pay.
6.0 FABRICATION AND SHIPMENT
: Unless otherwise stated elsewhere herein, the Building shall be delivered to BUYER ex works from SELLER's designated manufacturing facility. BUYER shall be responsible for costs and expense of transportation. Risk of loss or damage shall pass to BUYER upon commencement of loading onto BUYER's transportation vehicle and BUYER shall protect, defend, indemnify and hold SELLER harmless from and against any loss or damage to the Building REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE IS CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT, CONCURRENT OR GROSS NEGLIGENCE) OF ANY MEMBER OF SELLER GROUP OR ANY OTHER FAULT ATTRIBUTABLE TO ANY MEMBER OF SELLER GROUP, INCLUDING STRICT LIABILITY. BUYER must accept delivery of the Building when tendered by SELLER and all demurrage, standby, off-loading or other costs associated with any delay in accepting delivery of the Building shall be borne by BUYER. SELLER shall use reasonable efforts to accommodate BUYER's requested shipping dates, but shall not be bound by those dates thereby. Fabrication and shipping dates specified in SELLER's "Scheduling Notice" are approximate in nature. SELLER shall not be responsible for delayed direct shipment of materials by third party suppliers. If shipment of the Building is delayed at BUYER's request then BUYER shall be responsible for all costs associated with the storage of the Building and for any necessary rework performed to the Building due to wear and tear while in storage and BUYER will be invoiced at the originally scheduled shipping date.
7.0 BUILDING WARRANTIES
: SELLER warrants to BUYER that the Building will be consistent with SELLER's current design and specifications, unless otherwise noted, and will conform, within customary industry tolerances, to MBMA Standards, as modified by the standards and specifications contained in the SELLER's Product Manual, and will be and remain free of defects in workmanship for a period of one (1) year from the date of Building shipment. With respect to equipment, materials or other products purchased from third parties, SELLER's warranty obligations are expressly limited to the assignment to BUYER of all warranties and guarantees received from the manufacturers and suppliers of equipment, materials or other products. THE WARRANTIES SET FORTH IN THIS CLAUSE 7.0 SUPERSEDES AND ARE EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, BOTH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY BUYER WITH RESPECT TO THE BUILDING AND ALL EQUIPMENT, MATERIALS OR OTHER PRODUCTS.
SELLER shall extend to BUYER those additional or other warranties for exterior sloped roof panels or vertical wall panels, or roof weather tightness warranties as specified in the External Paneling section of this Contract, if any. If BUYER has requested such additional warranties, the terms, conditions and limitations thereof shall be as expressly stated in the Warranty Certificates issued by SELLER with respect thereto. NO ADDITIONAL OR OTHER WARRANTIES SHALL BECOME EFFECTIVE OR BIND SELLER UNLESS AND UNTIL FULL PAYMENT FOR THE BUILDING AND/OR ANY WARRANTY FEE(S) PAYABLE WITH RESPECT THERETO SHALL HAVE BEEN RECEIVED BY SELLER.
BUYER, shall present all warranty claims in writing, within one (1) year of the date of SELLER's delivery of the Building to BUYER. BUYER shall afford SELLER jobsite access to and a reasonable opportunity to inspect all alleged defects.
SELLER will, at its option, either furnish replacement Building materials ex works, or without replacement, render a reasonable credit for any portion of the Building or its materials that, prove to be defective. SELLER shall have no obligation to remove or dismantle defective Building materials or to erect or install replacement Building materials. THIS SHALL BE THE SOLE AND EXCLUSIVE OBLIGATION OF SELLER WITH RESPECT TO THE BUILDING COVERED BY THIS CONTRACT, AND BUYER SHALL BE ENTITLED TO NO OTHER OR ADDITIONAL REMEDIES.
SELLER reserves the right and may, without notice, change or modify the design and/or construction of the Building without liability or obligation to furnish or install such changes or modifications on the Building sold to BUYER under this Contract. Damages or misfits caused by outside sources, improper installation, improper storage or handling, misuse or abuse, lack of proper maintenance, or normal wear and tear is not covered under this warranty. The warranties made herein are transferable and/or assignable exclusively to the original end user of the building and are not transferable or assignable thereafter.
8.0 DESIGN WARRANTIES
: SELLER warrants to BUYER that the design of the Building will conform to generally accepted steel building design and shall comply with the requirements and standards of the Code specified in the "Building, Design Data" section of this Contract. SELLER makes no warranty and hereby disclaims any responsibility with respect to the design, engineering or construction of (i) any portion of the project to be provided by third parties and (ii) of the foundation (including the design of anchor bolt embedment in the foundation) upon which the Building is erected by BUYER or third parties.
9.0 ERECTION AND CONSTRUCTION DRAWINGS
: SELLER shall furnish to BUYER certain Construction Drawings (excluding shop drawings) reasonably necessary for the erection of the Building by competent and experienced workmen, but makes no other warranty, whether expressed or implied, with respect thereof SELLER reserves the right to change or modify the design and construction of the Building and to substitute material equal to or superior to that originally specified per Products Manual. Construction Drawings are not intended to specify any particular method or sequence of erection to be followed by BUYER or that BUYER may engage for that purpose. BUYER is and shall remain solely responsible for the safety and appropriateness of all techniques, methods and procedures utilized in the erection of the Building as well as the completeness and appropriateness of the Construction Drawings as approved by BUYER. SELLER makes no warranty or guarantee and hereby disclaims any responsibility with respect to the integrity of the erection of the Building by the BUYER or third parties. In the event of any conflict between the Contract and SELLER's Construction Drawings, SELLER's construction drawings shall govern over the Contract. Claims for correction of alleged errors and misfits (as such term is defined in the MBMA Standards) shall be covered by SELLER's standard Building Warranties, as set forth in this Contract. Claims for correction of errors and misfits and shall not be allowed unless BUYER has given SELLER timely written notice of such claims and afforded SELLER reasonable time and jobsite access to inspect the alleged misfits. Ordinary inaccuracies in fabrication and shop work, within customary industry tolerances, shall not be considered misfits. This Contract does not include any material or labor in connection with foundations, concrete, setting of anchor bolts, grouting under columns or around bottom of wall sheets, electrical installations, plumbing, painting, heating, masonry, interior finish, partitions, step flashing to existing buildings, valley gutter downspouts or drains or any other materials other than metal building materials unless specifically provided for in the Contract.
: Requests for additions, deletions or revisions to the materials covered by this Contract must be presented to SELLER by written Change Order. SELLER shall review all written Change Order requests submitted to it and deliver to BUYER a written Change Order reflecting the additions, deletions or other revisions requested by the BUYER and specifying the price adjustment, if any, to be made by SELLER in connection therewith. No Change Order request submitted to SELLER shall become a part of this Contract or obligate SELLER in any fashion unless and until SELLER issues a Change Order with respect thereto, executed by the BUYER, and has been returned to SELLER. SELLER will not be responsible for any delay in fabrication or shipment caused by Change Orders made at a point in time whereby the completion of the Change Order would cause a delay in the completion of fabrication of the Building.
11.0 SHORTAGES / DAMAGES
: SELLER shall not be liable for any shortage of Building materials unless notified by BUYER in writing within five (5) calendar days after delivery of material to the jobsite. SELLER shall not be responsible for loss or damages to materials after delivery to the jobsite.
12.0 CANCELLATION / TERMINATION BY DEFAULT
: BUYER's Termination. Prior to fabrication of the Building covered by this Contract, BUYER may cancel this Contract upon written notice to SELLER and upon the payment of SELLER's cancellation charges which shall include but are not limited to, SELLER's engineering cost and expenses for the design of the Building and the preparation of drawings as well as all other costs incurred but unpaid at the time of termination by BUYER. BUYER may not cancel this Contract once fabrication has begun without making payment to SELLER of all damages suffered by SELLER. SELLER's Termination. If BUYER shall fail to make any payment when due and owing; or if BUYER shall commit a material or anticipatory breach of any of the provisions of this Contract and such breach shall not be corrected or corrective action commenced within five (5) calendar days after the alleged breach; or if BUYER shall become insolvent, enter voluntary or involuntary bankruptcy or receivership, SELLER shall have the tight (without prejudice to any other rights or remedies it may have hereunder or by operation of law) to terminate this Contract and to seek all remedies available. Survival of Clauses. Notwithstanding anything to the contrary contained elsewhere herein, the provisions of Clauses 6.0, 10.0, 12.0, 13.0, 14.0, 15.0, 16.0 and 19.0 shall survive the termination, cancellation or early expiration of this Contract.
13.0 FORCE MAJEURE / Delays
: SELLER shall not be liable to BUYER or to any third parties for whose use the Building is intended for any penalties, damages (whether liquidated or unliquidated), claims or any other losses occasioned by SELLER's failure to make delivery of the Building or for any delay in making delivery of the Building when such failure or delay results from causes or events beyond SELLER's reasonable control, including, but not limited to, fires, floods, storms, casualty losses, accidents, or other acts of God, stress, labor disputes or difficulties, acts or requirements or government or civil authority, riot, war, embargo, truck or car shortage or any other transportation delay or difficulty or inability to obtain or scarcity of labor or raw materials or delayed direct shipment of materials by third parties or approval drawings which are not timely returned by BUYER or architect. In the event of any delay caused by any cause or event, the delivery date(s) shall be postponed for a period of time equal to the time required to remedy, corrector alleviate such cause or event.
14.0 WAIVER OF CONSEQUENTIAL DAMAGES
: Notwithstanding anything to the contrary contained elsewhere herein, no member of SELLER GROUP shall be liable to any member of BUYER GROUP for any special, consequential, incidental, indirect or punitive damages of any kind or character, including, but not limited to, loss of use, loss of profit, loss of property, loss of revenue whenever arising under this Contract or as a result of, or relating to or in connection with the Building, and no claim shall be made by any member of BUYER GROUP against SELLER GROUP or any member of SELLER's GROUP REGARDLESS OF WHETHER SUCH CLAIM IS BASED OR CLAIMED TO BE BASED ON NEGLIGENCE (INCLUDING SOLE, JOINT, ACTIVE, PASSIVE, CONCURRENT OR GROSS NEGLIGENCE), FAULT, BREACH OF WARRANTY, BREACH OF AGREEMENT, STATUTE, STRICT LIABILITY OR OTHERWISE. BUYER agrees to protect, defend, indemnify and hold SELLER harmless from and against any special, consequential, incidental, indirect or punitive damages of any kind or character, including, but not limited to, loss of use, loss of profit, loss of property, loss of revenue, claimed against SELLER by any third party claiming any interest, whether ownership or otherwise, in the Building and whenever arising, as a result of, relating to or in connection with the Building and REGARDLESS OF WHETHER SUCH CLAIM IS BASED OR CLAIMED TO BE BASED ON SELLER's NEGLIGENCE (INCLUDING SOLE, JOINT, ACTIVE, PASSIVE, CONCURRENT OR GROSS NEGLIGENCE), FAULT, BREACH OF WARRANTY, BREACH OF CONTRACT, STATUTE, STRICT LIABILITY OR OTHERWISE.
: BUYER shall be liable in any case of illness, injury or death, suffered by BUYER GROUP's employees and in loss or damage to BUYER GROUP's property, including the Building and all materials incorporated or to be incorporated therein, arising out of, relating to or in connection with the sale, erection, use, or maintenance of the Building and REGARDLESS OF WHETHER CAUSED OR BROUGHT ABOUT BY SELLER GROUP's NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT OR CONCURRENT NEGLIGENCE) OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY, AND INCLUDING PRE-EXISTING CONDITIONS and BUYER shall release, defend, protect, indemnify and hold harmless SELLER GROUP from and against any loss, cost, claim, obligation to indemnify another, suit, judgment, award or damage (including reasonable attorney's fees) on account of such illness, injury or death, loss or damage, with respect to loss, damage, illness, injury or death to third parties and their property not covered by the indemnities specifically set forth in this Clause 13, BUYER shall protect, defend, indemnify and hold harmless SELLER GROUP from and against any loss or damage to property and any illness, injury or death to persons and REGARDLESS OF WHETHER CAUSED OR BROUGHT ABOUT BY SELLER GROUP's NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT OR CONCURRENT NEGLIGENCE) OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY, AND INCLUDING PRE-EXISTING CONDITIONS.
16.0 APPLICABLE LAW AND DISPUTE RESOLUTION
: (a) THE LAWS OF THE STATE OF TEXAS SHALL CONTROL THE VALIDITY, CONSTRUCTION AND INTERPRETATION OF THIS CONTRACT EXCLUDING ANY CONFLICTS OF LAWS PRINCIPLES WHICH WOULD DIRECT THE SUBSTANTIVE LAW OF ANOTHER JURISDICTION TO APPLY. This agreement has been entered into and is to be performed in the County of Brazoria, State of Texas and any legal action or claim brought hereunder shall be brought in any Justice, County, State or Federal District Court in Brazoria County Texas at the option of and in the sole discretion of SELLER. BUYER agrees to waive any claim that personal jurisdiction is improper and agrees to stipulate that venue is proper in Brazoria County Texas. BUYER irrevocably waives any right to transfer any action brought in a Court in Brazoria County Texas. (b) Subject to 14 (a) above, at SELLER's sole and exclusive option, all claims, disputes or controversies arising out of, or in relation to the interpretation, application or enforcement of this Contract shall be decided by arbitration utilizing a single arbitrator in accordance with the Construction Industry Rules of the American Arbitration Association. The arbitration shall be held in Brazoria, Texas. The decision of the arbitrator shall be final, binding and enforceable in any court of competent jurisdiction and the Parties agree that there shall be no appeal from the arbitrator's decision. All statutes of limitation that would otherwise be applicable shall apply to any arbitration proceeding. The right to arbitrate shall survive the termination of the Agreement. Except for the exchange of relevant, material and non-privileged documents between the Parties and a reasonable number of depositions, there shall be no interrogatories or other discovery in any arbitration hereunder. The Parties acknowledge and agree that this Agreement includes activities in Interstate Commerce and that the Federal Arbitration Act, 9 U.S.C. *1 et seq shall control and apply to any arbitration conducted hereunder, notwithstanding any state law provisions to the contrary. If so requested by SELLER, BUYER agrees to be joined as a party and to participate in any arbitration or court proceedings related to the Building to which SELLER shall be made a party. The Parties stipulate and agree that the activities to be performed under this Contract involve activities outside of the State of Louisiana and that it is, therefore, interstate in nature. The Parties agree to waive any right or redress under Louisiana Revised Statute 9:2779 as it relates to the forum and choice of law for this Contract.
17.0 LEGAL CONSTRUCTION
: (a) The terms and conditions of this Contract shall exist concurrently and cumulative with the terms and conditions of SELLER's Credit Application, credit documents and, where applicable, with SELLER's Builder Agreement. Additionally incorporate into and made a part of this Contract are the Drawings, the Standard Industry Specifications and Practices as published by the MBMA and all Standards and Specifications shown in SELLER's Products Manual. In the event of any conflict between any of these documents, the order of priority shall be as follows; the Drawings, this Contract, SELLER's Credit Application, SELLER's Products Manual, and then the Standard Industry Specifications and Practices as published by the MBMA. (b) As used in this Contract the Masculine, Feminine, or Neuter gender, and the Singular or Plural number shall each be deemed to include the other whenever the Contract so indicates. (c) In the performance of its work under the Contract, SELLER's status shall be that of an independent contractor and the relationship of the Parties shall in no event be construed or interpreted as being that of principal and agent, master and servant, or employer and employee, and the employees of each Party shall not be deemed to be employees of the other Party for any purpose. (d) Neither Party to this Contract shall assign, transfer or sublet the Contract, any portion thereof or any of the obligations, benefits or interests contained therein or created thereby in any manner whatsoever without prior written consent of the other Party. (e) This Contract is the entire agreement between the Parties and supersedes all prior agreements, promises, correspondence, discussions, representations and understandings, except those expressly set forth herein. No other agreements, promises, correspondence, discussions, representations or understandings, either express or implied, unless expressly set forth herein, are binding between the Parties. (f) Except as specifically provided for elsewhere in this Contract, this Contract shall not be construed to confer any benefit on any third party not a Party nor shall it provide any rights to such third party to enforce its provisions. (g) No benefit or right accruing to either Party under this Contract shall be waived unless the waiver is reduced to writing and signed by both Parties. The failure of either Party to exercise any of its rights under this Contract shall in no way constitute a waiver of those rights, nor shall such failure excuse the other Party from any of its obligations under this Contract. (h) This Contract shall be binding upon and inure to the benefit of the Parties hereto, their respective successors and permitted assigns. (i) Each and every covenant and agreement contained in this Contract is, and shall be construed to be a separate and independent covenant and agreement. If any term or provision of this Contract or the application thereof to any Party or circumstances shall to any extent be declared invalid and/or unenforceable by any court of competent jurisdiction or arbitration tribunal, the remainder of this Contract, or the application of such term or provision to Parties or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby. (j)The captions used in this Contract are for convenience only and shall in no way define limit, or describe the scope or intent of this Contract or any part thereof.
18.0 LIMITATION OF LIABILITY
: Notwithstanding anything to the contrary contained elsewhere in the Contract, SELLER's aggregate liability to BUYER, whether such liability arises under this Contract, at law or in equity shall be limited to ten percent (10%) of the Price above which amount BUYER waives all claims and agrees to forever release SELLER and REGARDLESS OF WHETHER CAUSED OR BROUGHT ABOUT BY SELLER GROUP's NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT OR CONCURRENT NEGLIGENCE) OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY, AND INCLUDING PRE-EXISTING CONDITIONS.
19.0 REPRESENTATIONS AND WARRANTIES
: SELLER and BUYER agree that this Contract constitutes a legal, valid and binding obligation for each Party, enforceable against such Party in accordance with its terms, subject always to applicable bankruptcy, insolvency, receivership and other similar laws relating to or affecting the enforcement of creditor's rights generally and to general principles of equity. Further, BUYER and SELLER warrant and represent the following to each other; that each (i) is duly formed and organized and validly existing under the laws of the jurisdiction of its formation, (ii) has all necessary corporate or similar power and authority to execute and deliver this Contract and to consummate the transactions contemplated hereby; and that this Contract, its execution and the fulfillment and compliance with the terms and conditions hereof, do not violate or conflict with any provision of or result in any breach of or default under any (i) organizational documents of each Party, (ii) law or judicial, award, or similar decree, or (iii) agreement, to which SELLER or BUYER are bound.
20.0 CHANGES IN LAW
: The Contract is based on the laws and regulations existing at the date of execution. BUYER agrees to reimburse SELLER for all documented costs associated with any changes in the applicable law, regulations or the administration of either which occurs after the date of execution of this Contract and which has a material and demonstrable adverse impact on SELLER.
21.0 SUPERSEDING DOCUMENT
: If any of the terms and conditions of BUYER's purchase order or other confirmation document associated with the acquisition of the Building are additional to, vary or are different from any of the terms and conditions of this Contract, then the terms and conditions of this Contract shall control and BUYER irrevocably and unconditionally waives any additional and different terms and conditions not included in this Contract.
: The freight charges shown on contract documents reflect amounts applicable as of the Contract date, including any fuel surcharges currently being imposed by the various freight lines. The current unstable conditions in the energy (fuel) sector of the economy make it impossible to project the amount of future fuel surcharges. The Customer therefore agrees to be responsible for paying any increase in fuel surcharge above that included in the freight amount as shown in this Contract. This project includes erection/construction plans. MBD will use erection/construction plans for reference only and not as a design guide. MBD takes exception to all details and specifications unless expressly stated on the MBD contract. MBD price includes only those items listed on the MBD contract. Specifically, this project will be fabricated in accordance with MBD standard procedures and specifications.
MBD's scope of work contains certain exclusions, including but not limited to:
1) Anchor Rods
2) Anchor Rod embedment design
3) Foundation design
4) All other items not specifically listed in this agreement
Payment: COD with Down Payment Open Terms Cash in Advance
QUOTATION AND CONTRACT ARE SUBJECT TO THE GENERAL CONDITIONS OF CONTRACT AS OUTLINED ABOVE. THIS PROJECT IS BEING QUOTED USING MBD / ICON STANDARD SPECIFICATIONS UNLESS NOTED OTHERWISE.