Delivery Delays

Disclaimer – this and subsequent articles on this subject are not intended to be legal advice, merely an example for discussions between you and your legal advisor.

Please keep in mind, many of these terms are applicable towards post frame building kits and would require edits for cases where a builder is providing erection services or materials and labor.

In our Period of Covid, we have all experienced challenges in acquisition of things as simple as toilet paper. Delays can and will happen. Below are two sets of terms in this arena, top set is for kits:

DELIVERY DELAYS: If Purchaser delays any delivery, or refuses delivery of any or all materials, prices are subject to adjustment by Seller in order to conform to Seller’s prices in effect at date of shipment. Purchaser further agrees to pay any added costs for redelivery, manufacturer’s price increases, handling or related charges, prior to taking delivery.

In addition, Purchaser shall promptly remit to Seller the total full amount payable and agrees to pay Seller storage charges of no less than 2% of the Total Cost, per month, or every portion thereof, beginning from the originally scheduled delivery date or 30 days after Purchaser’s order, whichever comes first. Purchaser will assume any damages to materials caused by storage deterioration, due to Purchaser’s delay of delivery, including cost of replacement material(s), if needed.

DELAYS: Seller shall not be liable for any back charges, offsets or other claims against Seller by Purchaser, or third parties for any punitive, incidental, special or consequential damages. This includes, but is not limited to loss of profits or revenue, alternative habitation expenses, storage or boarding, increased financing costs or loss of use of the building due to loss, damage or delay in a manufacturer’s shipment or delivery of goods. 

Seller shall not be liable for his/her inability to perform any or all of Seller’s obligations hereunder due to any acts or omissions of Purchaser or any causes beyond Seller’s control, including, but not limited to, unforeseen shortages of necessary labor (e.g. boycotts, labor disturbances, lockouts, strikes) or materials (e.g. delays in transportation, inability to secure cars or tonnage, late delivery by Seller’s suppliers or manufacturers), restricted access to site (e.g. lack of adequate easement, road restrictions or closures), delays in communication with any building department or governmental agency, project engineer or Purchaser, acts of God or nature (e.g. earthquake, excessive hail, fires, floods, ice, rain, severe wind chill, sleet or snow storms, volcanic eruptions, windstorms), acts of civil or military authorities (e.g. civil commotion, local, State or Federal emergencies, war), Change Orders or the negligence of others. 

If any such cause results in a delay in performance, the date of delivery or of performance shall be extended for a period equal to twice the time lost by reason of the delay. This extension shall be Purchaser’s sole remedy.

STOPPAGE OF WORK/PAYMENT: Seller may halt deliveries and/or stop support at any time for nonpayment by Purchaser, without penalty for being wrong in demanding payment. Purchaser expressly waives any and all right to terminate Agreement over any minor violation of contractual obligation.

This is for erected buildings:

DELAYS: Seller shall not be liable for any back charges, offsets, damages, or other claims against seller by Purchaser or third parties for any punitive, incidental, special or consequential damages. This includes, but is not limited to loss of profits or revenue, alternative habitation expenses, storage or boarding, increased financing costs or loss of use of the building due to loss, damage or delay in a manufacturer’s shipment or delivery of goods. 

Seller shall not be liable for its inability to perform any or all of its obligations hereunder due to any acts or omissions of Purchaser or any causes beyond Seller’s control, including, but not limited to, unforeseen shortages of necessary labor (e.g. boycotts, labor disturbances, lockouts, strikes,) or materials (e.g. delays in transportation,  inability to secure cars or tonnage, late delivery by Seller’s suppliers, or manufacturers); restricted access to the work site (e.g. lack of easement, road restrictions or closures); delays in communication with the building department, project Engineer or Purchaser, acts of God or nature (e.g. earthquakes, excessive hail, fires, floods, ice, rain, severe wind chill factors, sleet or snow storms, volcanic eruptions, wind storms); acts of civil or military authorities, (e.g. civil commotion, local, State or Federal emergencies war); changes in the work (e.g. change orders) or the negligence of others. 

If any such cause delay in performance, the date of delivery or performance shall be extended for a period equal to twice the time lost by reason of the delay. This extension shall be Purchaser’s sole remedy. 

In the event delay is caused by Purchaser due to failure of Purchaser to fulfill responsibilities under this Agreement (including, but not limited to, failure to make site available on time, obtaining clear easement or access to jobsite or allowing another subcontractor to disrupt Seller’s work), changes ordered by Purchaser, or failure to provide Purchaser furnished materials in a timely manner, Purchaser may be obligated to compensate Seller at a rate of not less than $500 per day. 

STOPPAGE OF WORK/PAYMENT: Purchaser may request Seller to vacate jobsite temporarily to allow subcontractors other than Seller to perform services. If allowed by Seller, Purchaser will remit an additional amount of 5% of the Total Cost, but not less than $500 for this allowance, prior to Seller’s temporary vacation. 

Seller may stop work at any time for non-payment by Purchaser without penalty for being wrong in demanding payment. In the event of a “stop work” or other similar order being placed upon this project for failure of Purchaser to meet any of its requirements, Purchaser shall immediately remit balance of Total Cost to Seller, with the understanding that Seller shall complete its obligations under this Agreement once Purchaser has met its obligations. Purchaser expressly waives any and all right to remove Seller from the project over any minor violation of contractual obligations.

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