GENERAL: This Agreement constitutes the only agreement between Hansen Pole Buildings, LLC (herein known as Seller) and Member and supersedes all previous Agreements, conditions, contracts, discussions, negotiations, promises, representations, and/or terms either written or verbal, and applies ONLY to Membership in this program, not the terms and conditions incorporated with an individual project purchase. It is understood there are no oral or other agreements between Seller and Member with regard to the subject of this Agreement which are not incorporated herein. The extent of Seller’s obligation is covered in this Agreement and this Agreement only. This is a legally binding contract. This clause is not a mere recitation of fact, but is intended to be an absolute and binding acknowledgment of legal consequences. Member grants Seller, without limitation, the right to utilize Member and any Member purchases for advertising and promotional purposes.
OVERVIEW: Seller will be Member’s primary supplier of Post Frame/Pole Building kit packages and components (hereafter referred to as “kits”). Member shall not seek to purchase kits from Seller’s vendors during the term of this Agreement plus 360 calendar days unless approved by Seller. Member acknowledges the responsibility to read and understand fully all written and electronic information provided by Seller.
LEADS: Any leads furnished by Seller to Member, remain the property of Seller. Any lead may purchase direct from Seller’s website, and by input of Member’s unique identifier, Member in Good Standing shall be eligible to receive any applicable discount. Identifier MUST be entered at time of purchase.
REVOCATION OF MEMBERSHIP: Any of the following will be cause for immediate revocation of membership, without notice to Member: Failure to adequately service leads provided by Seller to Member; Member’s consummation of a sale to a Seller provided lead, without purchase of kit from Seller (either by Member or direct purchase by lead); Failure to promptly perform satisfactory warranty work to end user on any building constructed by Member; Any misrepresentations by Member to Seller or end user; Member’s failure to make any payment due to Seller in a timely manner; Member becomes negatively rated by a Better Business Bureau; Member files for bankruptcy or is charged with a felony; Member allows Contractor’s required Contractor’s Registration, Liability Insurance or Bonding to lapse.
RESALE CERTIFICATE: Member shall furnish Seller with valid resale certificate(s) for any sales tax collecting state Member makes a purchase for delivery in.
TAXES: Seller does not collect taxes from, or for the benefit of Member. Member will be solely responsible for paying all taxes arising out of or resulting from their services, including but not limited to income, social security, worker’s compensation, and employment insurance taxes. Member will file all tax returns and forms, and make all filings required by applicable authorities in connection with compensation received in connection with this Agreement.
PAYMENTS: Member authorizes a non-refundable $240 ACH withdrawal, from member’s checking account on, or after, January 2nd of each year, in order to maintain “Membership in Good Standing” in the program. If less than six months remain in the year then this yearly membership shall be pro-rated at $40/month for the first year due immediately after approval of Member by Seller. The standard yearly membership will then be due the following January. All payments from Member to Seller, under this Agreement, will be automatically charged against Member’s checking account via ACH, without need for prior notice. Any payments not made when due, are subject to a late payment fee of 5% of the amount of the payment, plus interest at a rate of 1.5% per month, beginning the date payment was due. A re-billing fee of $50 will be paid by Member for each and every invoice on Member’s account. It is Member’s responsibility to have adequate funds available, in Member’s account, to process any and all payments under terms of this Agreement. Seller will not be liable for any costs incurred by Member for insufficient funds, other similar fees or charges. Dishonored payments, for any reason, will be assessed a $40 fee. In the event Member’s account must be turned over to collection, Member agrees to pay the amounts owed to Seller PLUS collection costs of up to 50% of the amounts owed plus any court costs, filing and service fees, or attorney fees. Seller may accept and process payments without losing any rights. Seller may resubmit and electronically collect returned payments.
ALTERNATIVE PAYMENT SERVICES: Seller may make services available which allow Member to make payments through a customer service representative, wire transfer, FedEx, USPS or other means rather than via the online portal. Seller will describe the terms for using these services, before Member uses them. Member does not have to use these other payment services, and Seller may charge a Fee for using them. If a Fee applies, Seller will tell Member the amount of the Fee at the time service is requested. Seller is not responsible if a payment made using an alternative payment service is rejected or not paid. Even if it is, Seller may still keep the Fee.
CREDIT REPORTS: Seller may provide information about Member to consumer (credit) reporting agencies, business reporting agencies and others as allowed. Information provided by Seller might appear on Member’s credit reports. This could include negative information if Member does not comply with the terms of this Agreement.
ITEMS WITH RESTRICTIVE WORDS, CONDITIONS, OR INSTRUCTIONS: Both parties acknowledge any payments submitted by Member with restrictive words, conditions, or instructions added (including Items marked with the words, “Paid in Full” or similar language) are to be accepted as payment towards the account of Member only, and any such restrictive words, conditions, or instructions will not be binding upon the parties.
EXCLUSIONS: Seller is not a contractor in any state, and both parties agree no such representation has been made. Member is an independent contractor, not an employee, representative or agent of Seller. Member is free from direction and control over the means and manner of providing their services, subject to the right of Seller to specify the desired results. Member is customarily engaged in, and will continue to customarily engage in, an independently established business, separate from the business or location of Seller. Member bears all risk of loss related to Member’s provision of services. This Agreement does not create an agency relationship, establish a joint venture or partnership between the parties. Member does not have the authority to bind Seller or represent to any person that Member is an agent of Seller.
UNCONDITIONAL AND FULL RELEASE: Member acting independently, as well as agent for any person, persons or entity, employed or paid by Member, releases Seller, its officers, vendors, employees and/or agents from any and all claims, demands, damages, actions, causes of action, suits in equity of whatever kind or nature as well as liability, for any and all lost time, delays, storage or rental costs or fees due to any reason, regardless of cause of fault, including, but not limited to any and all forms of negligence, resulting from this Agreement. Member agrees to indemnify and defend Seller against any claims, for any reason, filed by any agent, person, or contractor. Notwithstanding anything appearing to the contrary in this Agreement, Member shall not assume or maintain control of the defense of any Third Party Claim, but shall pay the fees and expenses of counsel retained by Seller if the third party claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, an adverse determination with respect to the Third Party Claim would, in the good faith business judgment of Seller, be detrimental in any material aspect to Seller’s reputation or future business prospects, the Third Party Claim seeks an injunction or equitable relief against Seller, or Member has failed or is failing to prosecute or defend vigorously the Third Party Claim. Should any Seller employee, representative or agent be called upon to provide documentation, evidence or testify for Member, in or for any legal proceedings (whether a court case is actually involved or not), an advance non-refundable retainer is required. As well, Member agrees to reimburse Seller at a rate of no less than $120 per person hour, with a four (4) hour minimum, including any travel time, plus any travel, meal and lodging expenses (travel methods, meals and lodging choices to be made by Seller).
CHANGES TO THIS AGREEMENT: At any time, Seller may add, delete or change any terms of this Agreement unless the law prohibits Seller from doing so. Seller will give Member notice of any changes as required by law. If Seller notifies Member of changes, Seller will send Member a separate notice or inform Member via Member’s log-in at Seller’s website. Seller may send this notice electronically as permitted by law. Notice will tell Member when and how the changes will take effect and describe any rights Member has in connection with the changes.
CANCELLATION: Member needs to provide 30 days notice for cancellation of contract. This needs to be submitted via email or in writing to 12167 Lake Road Browns Valley, MN 56219. Contract will remain in force, subject to other restrictions herein, until notice of cancellation is provided.
THE LAW WHICH APPLIES TO THIS AGREEMENT: Seller makes all decisions in regards to Member’s account from Seller’s office in South Dakota. This Agreement will be interpreted using South Dakota law. Member waives any applicable statute of limitations as the law allows. If any part of this Agreement is found to be unenforceable, the remaining parts will remain in effect.
ASSIGNMENT: This Agreement will be binding on, and benefit, any of Member’s and Seller’s successors and assigns. Member may not transfer this Agreement to someone else without Seller’s written permission. Seller may transfer Member’s account and this Agreement to another company or person (aka. “Successor”), without Member’s permission and without prior notice to Member. “Successor” will take Seller’s place under this Agreement. Member must pay the “Successor” and perform all of Member’s obligations to them and not Seller.
DISPUTES AND REMEDIES: This clause expressly supersedes all statutes and court rules dealing with determination of prevailing party, offers of settlement, and the award of attorney’s fees, and is the sole and exclusive procedure for resolving disputes. The right to small claims proceedings against Seller by Member is hereby waived. Regardless of any individual State’s regulations, laws, codes or prior rulings to the contrary, any dispute between the parties over $3,000 shall be decided according to the Mandatory Arbitration Rules (MAR) of Roberts County in the State of South Dakota. AND in all cases the parties expressly submit themselves to the venue and jurisdiction of Roberts County in the State of South Dakota. The arbitrator’s award shall not be limited by otherwise applicable MAR rules. The arbitrator shall have authority to determine the amount, validity and enforceability of a lien and to award equitable relief. The parties each waive their right to file any appeal for a trial de novo in Superior Court. Provision is hereby made for Judicial review of the Arbitrator’s award (or lack thereof) of attorney’s fees. Member acknowledges this Disputes and Remedies clause is not a mere recitation of fact, but is intended to be the absolute and binding contractual agreement, for resolving disputes, between Member and Seller.