Tag Archives: holdback

Contracts: Inspect It, Inventory It

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.

It may behoove you to read this article first: https://www.hansenpolebuildings.com/2011/12/building-materials/

INSPECTION/INVENTORY: Purchaser must inspect and inventory, at Purchaser’s sole expense, all items delivered (including doors and accompanying hardware, each piece of lumber, siding or roofing, trims, etc., whether arriving individually, in sealed containers or unitized) and report, within 48 hours, any and all “hidden damage”, missing or damaged goods, claimed nonconformity, defects or differences between the goods and materials described in the Agreement, or an approved Change Order, and as received by Purchaser. 

The ONLY method of reporting is through Seller’s online account page, as Emailed or telephone reports cannot be accepted. All damage/unusable reports must include digital photos. Any materials reported by Purchaser and verified as being damaged or unusable within 48 hours after delivery can be exchanged at the supplier’s location for a replacement with absolutely no charge to Purchaser. Any confirmed shortages reported within 48 hours after delivery will be delivered as quickly as is reasonably possible or Seller will arrange for Purchaser to “will call” at a location within vicinity of the site, either with no charge to Purchaser. 

At time of delivery, Purchaser must note any obvious shortage or damage on the bill(s) of lading. Once the 48 hours Inventory Time after material delivery has expired, should you question quantity/size/grade or color of materials delivered, a $120 deposit will be required for Hansen Buildings to recount all materials on your Material Takeoff. Should there be a shortage, your deposit will be returned along with any missing materials delivered as soon as reasonably possible. Should the materials delivered agree with the Material Takeoff, or you have an overage, you will not be required to return the extra materials. However the deposit will become property of Hansen Buildings.

PAYMENTS: In the event order includes a payment tied to the delivery of lumber (or any other specific delivery or time frame), those amounts will be automatically charged against method of payment selected by Purchaser at time of order, without need for prior notice, on or after the date of delivery, or time frame specified. 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. Other than the original online “Instant Invoice”, a re-billing fee of $50 will be paid by Purchaser for each and every invoice on Purchaser’s account.

It is Purchaser’s responsibility to have adequate funds available, in Purchaser’s account, to process any and all payments under terms of this Agreement. Seller will not be liable for any costs incurred by Purchaser for insufficient funds, other similar fees or charges.

Dishonored payments, for any reason, will be assessed a $40 fee. In the event Purchaser’s account must be turned over to collection, Purchaser 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. Even if Seller credits Purchaser’s payment to Purchaser’s account, Seller may delay availability of further deliveries until Seller confirms payment has cleared. Seller may resubmit and electronically collect returned payments.

ALTERNATIVE PAYMENT SERVICES: Seller may make services available which allow Purchaser 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 Purchaser uses them. Purchaser 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 Purchaser 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 Purchaser and the Account to consumer (credit) reporting agencies, business reporting agencies and others as allowed. Information provided by Seller might appear on Purchaser’s credit reports. This could include negative information if the Purchaser does not comply with the terms of this Agreement.

ITEMS WITH RESTRICTIVE WORDS, CONDITIONS, OR INSTRUCTIONS: Both parties acknowledge any payments submitted by Purchaser 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 Purchaser only, and any such restrictive words, conditions, or instructions will not be binding upon the parties.

HOLDBACK: No holdbacks, back charges or retainages are allowable, for any reason.

UTILIZATION: Prior to complete payment of the balance owed on this Agreement, Purchaser shall refrain from utilizing the materials as described in the Agreement. If Purchaser uses any of the materials provided by Seller, prior to making full payment to Seller, Purchaser agrees unequivocally to accept materials as provided, and as is, without recourse.

Contracts: Punch Lists for Erected Buildings

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.

‘Punch lists’ give new building owners an opportunity to inspect their completed building and builders/erectors to be able to remedy non-conforming work, without it becoming an ongoing challenge. 

CORRECTION OF WORK: Purchaser must inspect the completed building, at Purchaser’s sole expense, and notify Seller by Certified Mail, Return Receipt Requested within five (5) days of completion of any claimed non conformity, defects, or difference between the goods and materials described on the face hereof or an approved Change Order, and as received by Purchaser, Purchaser’s written notification must be only one (1) “punch list” identifying specifically work to be completed or corrected and must be signed by Purchaser. 

Purchaser’s failure to make said written claim constitutes a waiver by Purchaser of said non-conformity, defect or difference by failure to so promptly. A claim that goods are non-conforming shall not permit Purchaser to deduct any sum from any payment due unless such claim has been allowed in writing by Seller. 

Payments shall be paid in full in agreement with Terms of Sale and in the event of later allowance for any claim, Seller shall promptly make payment to Purchaser for the amount so allowed.  

Seller shall expeditiously complete all work stated on the punch list for which Seller is responsible under the terms of this agreement only. Purchaser cannot contract with any alternative contractor for the performance or completion of any work, nor claim a credit or back charge for the cost of completing any item stated on the written punch list, nor occupy or use Seller’s work until and unless Seller shall have first been given reasonable notice and opportunity to correct the work stated on the Punch list. 

If Purchaser contracts with an alternate contractor to perform any pick up work or otherwise complete the project without first affording the opportunity to Seller to do so, or if Purchaser commences to use or occupy the space in which Seller performed work, Purchaser agrees to accept all work “as is” and thereby waives any claim against Seller. 

Any repairs or corrections made by Purchaser must have prior written authorization by Seller, to receive reimbursement. Upon Seller’s completion or correction of the work identified on the single written punch list, any retainage or amount withheld from any payment(s) shall be paid immediately to Seller. All further work shall be performed as warranty work.

HOLDBACK: Purchaser may withhold a sum of money equal to Purchaser’s estimated cost of completing or correcting the work stated on the punch list. If holdback option is selected by Purchaser, this condition shall serve as Seller’s written demand to Purchaser that Purchaser shall deposit a dollar amount equal to the withholding in a joint interest bearing account (with all accrued interest on dispersed money stated on the punch list). These are the exclusive remedies of the Purchaser.

UTILIZATION: Prior to complete payment of the balance owed on this Agreement, including any and all retainage and holdback, Purchaser shall refrain from utilizing the premises upon which Seller has performed work, unless mutually agreed upon in writing between Seller and Purchaser. If Purchaser uses or occupies any of the work performed by Seller prior to making full payment to Seller, Purchaser agrees to thereby unequivocally accept all of Seller’s work as is, without recourse.