Talking Contract Terms
I may have previously mentioned contracts and their terms are boring – until a conflict or even worse arises.
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.
GENERAL Is just as it sounds – a starting point.
GENERAL: This agreement constitutes the only agreement between Seller and Purchaser and supersedes all previous Agreements, conditions, contracts, designs, discussions, negotiations, quotations, plans, promises, representations, and/or terms on this sale either verbal or written. It is understood that there are no oral or other agreements between the Seller and the Purchaser with regards to the Subject of this Agreement which are not incorporated herein. The extent of the Seller’s obligation is covered in this Agreement and this Agreement only. This clause is not a mere recitation of fact but is intended to be an absolute and binding acknowledgement of legal consequences. Sales and delivery (as well as installation, if provided) of the materials/goods are made subject to the terms and conditions stated herein, not withstanding any contrary provisions in purchase order since received by Seller. Purchaser shall make access to building and building site available at all times to Seller or Seller’s agents for purposes of construction or repairs. Purchase grants Seller, without limitation, the right to utilize Purchaser and aforementioned improvements for advertising and promotional purposes.
Why this is important.
Chances are good Purchaser is going to be having conversations with multiple possible providers prior to picking one. Seller might very well have hundreds (or even thousands) of clients they are interacting with. All of these back-and-forths lend themselves to a great deal of possible confusion. In order to protect all parties involved (and should there be no equitable resolution and it ends up in court), if it is not in writing, it does not exist.
Some Purchasers (generally governmental bodies) attempt to make changes to contracts by issuing Purchase Orders with contrary provisions – this terminology expressly throws out those potential changes.
Now it may seem obvious to provide access – however I have personally experienced challenges including locked gates and weapons.
Seller is going to pour their heart and soul into this building (or certainly should be) and as such deserves to be able to benefit from their efforts in advertising and promotion.
SCOPE: This is not an estimate or a bid; it is a legally binding contract. Only the written contract documents identify the scope and detail of materials to be furnished or work to be performed by Seller. Furthermore, Seller’s duty is to deliver and/or build according to the contract documents only. Any drawings, sketches or specifications furnished separately by Purchaser are expressly excluded from inclusion in the contract documents. All work performed or materials supplied by Seller, which is not specifically detailed in this Agreement, shall be performed pursuant to Section xx, “Change Orders”, of this Agreement.
Purchaser is purchasing a materials only pole (post frame) building package, designed per Seller’s plans which are produced under the direct supervision of the independently contracted (by Seller) third-party Engineer of Record (E.O.R.) and Seller’s Construction Manual. This is not a precut building, nor is the structural design to be determined by Purchaser or Purchaser’s agents. Assembly, by Purchaser or Purchaser’s agents, including measuring, cutting and the use of tools, will be required. Some components may come all or partially assembled (e.g. , entry doors are most often shipped as pre-hung), however most items (such as, but not limited to, sliding and overhead doors) require the assembly of sub-components. Steel roofing, siding and trims often require cutting and/or splicing. It is the discretion of Purchaser or Purchaser’s agents to utilize the materials provided so as to minimize splices, as well as the creation of waste or scrap. No overage of any materials is provided for in this Agreement. Any and all usable surplus materials remain the property of Seller, and are to be protected from theft, damage or deterioration by Purchaser. Purchaser is to advise Seller of any usable surplus materials. Upon request of Seller, Purchaser will either return excess surplus materials to Seller, or shall promptly pay Seller for them pursuant to Section xx of this Agreement, “Change Orders”.
Purchaser acknowledges the responsibility to read and understand fully all written and electronic information provided by Seller, including but not limited to any plans, Materials lists, Seller’s Construction Manual, as well as and including inventory and inspection guidelines.
Any Purchaser-performed work such as site preparation is to be performed promptly, without delay to Seller.
While this may appear to be ‘common sense’ common sense is far from common and again – if it is not spelled out, in writing, it does not exist.
Watch for my next thrill packed installment of this series!