Terms and Conditions for Sale of Products and Services

Revised: August 11, 2025

These Terms apply to the purchase by Buyer from Seller of Products and Services, each of which is identified in the Contract. The Contract comprises the entire agreement between the parties, except as hereafter modified by the parties in writing and signed by the parties’ authorized representatives. Buyer accepts these Terms by signing and returning Seller’s proposal, by sending a purchase order in response to the proposal, by submitting instructions to Seller to ship the Product or commence the Services, or by accepting or paying for the Product or Service. No additional or different terms, conditions, or warranties other than those identified in the Contract, and no agreement or understanding, oral or written, in any way purporting to modify these Terms, whether contained in Buyer’s purchase order or shipping release forms, or elsewhere, shall be binding on Seller unless hereafter made in writing, signed by Seller’s authorized representative, and specifically referencing these Terms and stating that it modifies them. Buyer is hereby notified of Seller’s express rejection of any terms inconsistent with these Terms or to any other terms proposed by Buyer. Neither Seller’s subsequent lack of objection to any terms, nor the delivery of the Products or Services, shall constitute an agreement by Seller to any such terms. Trade custom, trade usage and past performance are superseded by these Terms and shall not be used to interpret these Terms.

Definitions.

“Buyer” means the entity to which Seller is providing Products or Services under the Contract.

“CMS” has the meaning set forth in Section 15(b).

“Confidential Information” has the meaning set forth in Section 18(a).

“Contract” means the accompanying proposal, credit application, quotation, order acknowledgment, or invoice identifying the Products and/or Services purchased by Buyer from Seller, together with these Terms and any other documents incorporated therein by reference, the agreed scope(s) of work, and Seller’s order acknowledgement as well as any changes under Section 14.

“Contract Price” means the agreed amount stated in the Contract for the sale of Products or Services, including adjustments (if any) in accordance with the Contract.

“Data” has the meaning set forth in Section 18(c).

“Limited Warranty” has the meaning set forth in Section 23(a).

“Required Consents” means all permits, approvals, licenses, authorizations, waivers, filings, and consents that are necessary under applicable laws or under any agreements, covenants, easements, or restrictions affecting the project or Site, in order for Seller to lawfully access, perform, and complete the Services. Required Consents include, without limitation, all approvals from governmental authorities, utility providers, property owners, landlords, easement holders, and adjacent property owners (if applicable), as well as any third-party consents required to ensure that Seller’s performance of the Work is not delayed, obstructed, or deemed noncompliant.

“Required Disclosure” has the meaning set forth in Section 25(f).

“Seller” means Betco, Inc.

“Seller Indemnitees” has the meaning set forth in Section 20(a).

“Services” means all services Seller has agreed to perform for Buyer under the Contract, either directly or through a Seller-authorized subcontractor.

“Site” means the premises where Products are used or Services are performed.

“Terms” means these Terms and Conditions.

Buyer Responsibilities.
1. Buyer agrees it bears sole responsibility for selecting Products and for determining whether such Products are appropriate for use by its employees, customers, and agents in their applicable work environment(s). Buyer agrees to: (i) cooperate with Seller’s performance of the Services; and (ii) respond promptly to any reasonable requests from Seller for instructions, information, or approvals required by Seller to provide the Services.
2. Buyer shall bear full responsibility for addressing and complying with any building department or code requirements, including but not limited to increased live or wind load specifications, firewall construction, accessibility (ADA) compliance, energy code compliance, and any plumbing, mechanical, or electrical provisions required by the applicable authorities having jurisdiction. Buyer will promptly obtain all Required Consents necessary for Seller to provide the Services, and provide evidence of the same to Seller where reasonable or necessary. Buyer will indemnify, defend, and hold Seller, its affiliates and subcontractors, and their respective directors, officers, employees, and agents harmless against any and all claims, losses, liabilities, and damages (including reasonable attorneys’ fees and costs) arising from or in connection with any claims made against Seller, alleged to have occurred as a result of Buyer’s failure to provide any Required Consents. Seller will be relieved of the performance of any obligations to the extent such obligations would reasonably be expected to be affected, or are affected, by Buyer’s failure to promptly obtain any Required Consents.
3. Buyer agrees to take any and all actions reasonably necessary to enable Seller to perform the Services in an effective and efficient manner, including, but not limited to, (i) reviewing architectural blueprints and site plans and making certain they conform to Seller’s drawings; (ii) verifying that Seller’s drawings, load criteria, and fire code requirements (i.e. ‘live load,” ‘wind load,” “firewalls”) conform to all building codes, zoning codes, and any other requirements of local authorities; (iii) clarifying any inclusions or exclusions from the architectural plans and/or specifications; (iv) obtaining all Required Consents (including work permits or licenses); (v) furnishing and installing any electrical, plumbing, heating, sprinklers, trash removal, sweep-up, wash down of driveways, and any work not specified to be performed by Seller; (vi) educating, coordinating, overseeing, and supervising all aspects of the Site conditions and workplace safety; (vii) procuring security of the Site, twenty-four (24) hours per day; (viii) providing a dry, clean, and unobstructed work area. Water on floors will impede progress and Seller will not be held responsible for water stains or water/snow removal or water/snow clean up inside building or onsite unless directly caused by Seller; (ix) supplying a safe and secure storage area for Seller’s materials and supplies; (x) keeping the Site freely accessible to Seller personnel, including subcontractor(s), at all times; (xi) ensuring the Site is properly graveled (only product grade ABC aka crush and run) or paved prior to any delivery of materials to facilitate delivery and installation of materials and other items; (xi) clearing and removing all debris both man-made and nature caused during the construction process, provided, however, that the use of salt to melt ice and/or snow is prohibited; (xii) provide a safe and legal location for unloading materials at the Site or, if the on-site unloading is not feasible, make arrangement for lawful unloading in a nearby street or other suitable area, at no cost to Seller; (xiii) provide all temporary or permanent power, as reasonably deemed necessary by Seller. At a minimum, power must include: (a) 120-volt outlets available every 200 feet throughout the Site; (b) one 15-amp duplex receptacle per 20-amp circuit; (c) power sources shall not require drop cords exceeding 200 feet in length; and (d) if the grid power is not available, Buyer shall supply generators, including fuel, at its sole expense; (xiv) provide temporary or permanent water supply and restroom facilities at the Site, at Buyer’s expense, as reasonably required by Seller.
4. Buyer accepts all risks of transit, theft, vandalism, and any other loss of Seller or its subcontractors’ materials, tools, and equipment at the Site or stored off premises; provided, however, that Buyer does not accept any loss of Seller or its subcontractors’ materials, tools, and equipment at the Site or stored off premises if such loss directly results from Seller or its subcontractors’ gross negligence. Seller reserves the right to require Buyer to provide, at Buyer’s sole cost and expense, additional arrangements for the security of materials and equipment storage at the Site. If materials, tools, or equipment of Seller or its subcontractors are stolen or lost from the Site, Buyer as the party charged with security of the Site will fully compensate Seller or its subcontractors for any loss suffered by Seller or its subcontractors that is not fully reimbursed by insurance.
5. Buyer shall provide satisfactory written proof of funding sufficient to cover the Contract Price, as reasonably determined by Seller. Such proof may include, but is not limited to, bank statements, letters of credit, financing agreements, or other verifiable evidence of available funds. In the event that Buyer fails to provide adequate proof of funding within the time period specified by Seller, Seller reserves the right to increase the required deposit amount to mitigate financial risk. Seller shall not be liable for any delays resulting from Buyer’s failure to timely provide proof of funding or an increased deposit.
Price; Payment.
1. Buyer agrees and acknowledges that certain characteristics of Products may influence their price. The Contract Price may be adjusted by Seller, upon thirty (30) days’ written notice to Buyer at any time prior to shipment and regardless of the acceptance or issuance of a sales confirmation, to reflect any increase in Seller’s cost of raw materials, components (e.g., steel), special features (e.g., color), operational costs (e.g., customs duties and taxes), transportation costs (e.g., fuel surcharges), acts by any governmental authority, or other factors beyond Seller’s control (e.g., specifications, quantities, and delivery schedules). Any changes to the Contract Price are effective as of the first day of the following month. If the Contract Price increases prior to delivery of the Products to a carrier for shipment to Buyer, then the Contract shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.
2. Except as otherwise agreed to by Seller in writing, the following payment terms apply:
  1. Seller shall be entitled to payment by Buyer of all charges associated with Seller’s performance of Services and/or delivery of Products. Buyer shall pay Seller all invoiced amounts in U.S. dollars prior to commencement of manufacturing of the Products. All payments shall be made in full and without any right of set-off. Buyer shall pay interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) and all costs of Seller’s collection efforts, including reasonable attorneys’ fees, on all late payments.
  2. Buyer shall remit payment to Seller in full and on time, as specified in the Contract, regardless of whether Buyer has received payment from any third party. Payment obligations are not subject to “paid-if-paid,” “paid-when-paid” or similar conditions, and no delays or disputes with third parties may be used to withhold or defer payment to Seller.
  3. Unless prohibited by applicable law, Seller may charge a fee for accepting payment of moneys due and owing under this Contract by way of credit card. The amount of the fee will be equivalent to 4% of the amount of any such payment(s).
  4. If at any time Seller reasonably determines that Buyer’s financial condition or payment history does not justify the continuation of Seller’s performance, Seller shall be entitled to, including, but not limited to, restructure payments requiring full or partial payment in advance, request additional forms of payment security, suspend Contract fulfillment, or terminate the Contract.
3. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under these Terms (collectively, “Taxes”). Any Taxes related to the Products and Services purchased pursuant to these Terms are the responsibility of Buyer (excluding taxes based on Seller’s net income), unless Buyer presents, within thirty (30) days of the date of the applicable invoice, an exemption certificate acceptable to Seller and the applicable taxing authorities. The failure to timely provide such written notice shall serve to waive any right of Buyer to require Seller to refund, or to seek a refund from any governmental agency, of any sales tax charged to Buyer, received by Seller, and remitted to any governmental agency. If possible, Seller will bill Taxes as a separate item on the invoice presented to Buyer. In the event Seller is required to pay any such taxes or other charges, Buyer shall reimburse Seller therefor on demand. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will immediately pay Seller the amount of the Taxes and any penalties and interest related thereto.
4. If a dispute arises between the parties concerning Buyer’s alleged right to setoff or recoupment against Seller, the parties shall negotiate in good faith to resolve such dispute. Notwithstanding the foregoing, Buyer agrees that payments owed to Seller for Products supplied or Services rendered under the Contract are not subject to any setoff or recoupment by Buyer unless and until Seller agrees in writing to such setoff or recoupment, and that Buyer shall not exercise its right to setoff or recoupment in connection with any disputes or claims.
5. Buyer grants Seller a purchase money or similar security interest in Products located in any jurisdiction where such security interest is permitted, as well as any proceeds therefrom, for the purpose of securing all obligations of Buyer hereunder. Buyer authorizes Seller to execute on Buyer’s behalf and file such financing statements as Seller deems appropriate to perfect and/or notify Buyer’s creditors of Seller’s security interest. In this regard, Buyer hereby grants Seller an irrevocable power of attorney, coupled with an interest, with respect to filing any such financing statements.
6. Seller shall have no liability whatsoever if Buyer makes payment (in whole or in part) to: (i) any bank account other than the bank account specified by Seller or (ii) to any entity other than the entity listed on the Contract. Seller shall not be responsible for any losses suffered by Buyer due to third party fraud, including, without limitation, false change of bank account communications, identity theft and other scams. To the extent Buyer receives any communication notifying Buyer of a change in Seller’s designated bank account, Buyer is required to verify the authenticity of the same directly with Seller.
7. Seller expressly reserves the right to require a deposit in connection with any Contract as a condition precedent to Seller’s performance. Any deposit(s) delivered by Buyer are non-refundable. Buyer understands and acknowledges that its delivery of a deposit is used by Seller in reliance on Buyer’s acceptance of the Contract, and as a result, is expressly non-refundable in the event of Buyer default, in connection with any termination (except for Section 16(b)), or as otherwise set forth in the Contract.
8. Estimated state sales or use tax as applicable. Some localities have begun to impose a special tax/charge/subcontractor fees and if your project should fall into one of these localities Seller may pass this along to you via a separate invoice at a later date.
General Contractor, Architect, and Engineer of Record.
1. Seller is not acting as a state-licensed general contractor, architect, or engineer of record for the Site unless required by applicable law and explicitly stated in writing. Seller’s responsibility for permits and code requirements is limited to those outlined in the Contract. Buyer represents and warrants that all plans, specifications, and design documents provided to Seller are adequate and conform to all applicable laws and building codes. Seller disclaims all responsibility for any loss, damage, or expense arising from defects within the aforementioned plans, specifications, or any violations of building codes, unless directly attributable to a deviation made by Seller without prior authorization or in conflict with the provided documentation.
2. Buyer shall determine whether a licensed general contractor is required to obtain permits or perform construction activities. If such a requirement exists, Buyer shall be solely responsible for securing and providing such contractor.
Engineering.
1. As a condition precedent to Seller’s obligation to begin processing Buyer’s order and performing any engineering services, Buyer must provide all of the following items to Seller’s satisfaction: (i) Seller-approved terms of payment, including, where applicable, a standby letter of credit, bank guaranty, or other financial assurance acceptable to Seller; (ii) a fully completed and signed credit application; (iii) a fully completed and signed customer information sheet; (iv) signed contract drawings; (v) payment of the required deposit to Seller; (vi) a fully executed Contract and all applicable Change Orders (to the extent any such Change Order has been executed prior to commencement of order processing); (vii) a letter from Buyer’s financial institution confirming the availability of funds sufficient to satisfy Buyer’s payment obligations under the Contract; and (viii) any other information, documentation, or materials not specifically listed above that are reasonably necessary for Seller to complete the work and fulfill its obligations under the Contract, provided that Seller shall notify Buyer of any such additional requirements in writing prior to initiating order processing.
2. Engineering fees are included in the nonrefundable deposit and shall not be subject to reimbursement under any circumstances.
3. Seller shall provide Buyer with up to four (4) sets of engineered drawings in connection with the project. Any timelines or durations referenced with respect to the delivery of such engineered drawings are provided solely as good faith estimates and shall not be deemed binding deadlines. Buyer acknowledges and agrees that Seller shall not provide approval drawings, and no engineering work shall commence unless and until a written and executed proposal, quotation, or order acknowledgment has been received and accepted by Seller. The lead time for engineered drawings is contingent upon, and may be affected by, the applicable local code requirements, the accuracy and completeness of the site plan, and the timely receipt of necessary information from Buyer and/or other contracts. Buyer further acknowledges that Seller’s customized prefabricated metal self-storage building systems require the full and final submission of all project information before Seller can begin preparation of engineering drawings or fabrication of materials. The project will be entered into Seller’s design and production schedule only upon Seller’s receipt of all required information, and scheduling will be managed so as not to interfere with other projects that have submitted their information in a timely and complete manner.
4. Seller may provide engineering design services solely for the purpose of meeting the building code expressly identified in the Contract. In the event Seller’s drawings reference insulation, vapor barriers, or similar components, such references shall be deemed for general coordination purposes only and are included as placeholder allowances. These components are not included in Seller’s scope unless specifically furnished and installed by Seller as part of the agreed deliverables.
5. Seller may furnish foundation drawings for the project only where the soil plasticity index is less than 35 as determined by a qualified geotechnical engineer. Buyer acknowledges that all soil testing and geotechnical analysis are outside the scope of Seller’s services and shall be performed at Buyer’s sole expense. Seller shall have no responsibility or liability for inaccuracies or deficiencies in any geotechnical data or reports provided by third parties.
6. If the services of civil, site, mechanical, electrical or plumbing engineers are required for the project, Buyer shall be solely responsible for retaining and providing such professionals. Buyer is also responsible for ensuring proper coordination between Seller’s design documents and any design documents prepared by others. Seller shall not be held liable for any inconsistencies, conflicts, or discrepancies arising from or related to the integration or coordination of such documents. Buyer’s retained mechanical engineer shall be exclusively responsible for the overall building envelope design as a complete and functioning system. All matters relating to humidity control, condensation, prevention, and mold mitigation fall strictly within the scope of the mechanical engineer’s responsibilities.
Concrete.
1. Buyer shall be solely responsible for the construction and maintenance of all concrete grade slabs and foundations, which shall be level at all times unless expressly stated otherwise in the Contract. The foundation and floor slab designs provided by Seller are based upon the minimum requirements and assumptions set forth in the foundation plans. Buyer acknowledges that Seller shall have no responsibility for site-specific conditions, including but not limited to subsurface or geotechnical issues, unless specifically addressed in the Contract.
2. All concrete work performed by or on behalf of Buyer shall strictly conform to Seller’s drawings, designs, and specifications, as well as all applicable federal, state, and local laws, building codes, ordinances, regulations, and generally accepted industry standards. Buyer shall perform, at its sole expense, all necessary site preparation, including compaction, grading, and other work required to meet the design assumptions underlying Seller’s plans. Buyer shall bear full responsibility for the proper and timely installation of all foundations and floor slabs in strict accordance with the Contract documents.
3. Seller shall have the right, but not the obligation, to inspect the concrete work at any time during or after performance. Seller may, in its sole discretion, withhold delivery of materials or suspend its performance under the Contract until all concrete work has been completed in full conformance with the Contract and approved by Seller in writing. Seller’s inspection or approval shall not constitute acceptance of non-conforming work or relieve Buyer of its obligations.
4. In the event any concrete work fails to conform to the requirements of the Contract, Buyer shall, at its sole cost and expense, promptly correct such non-conforming work. Buyer shall also bear all direct and indirect costs related to such correction, including but not limited to, demolition, removal, disposal, replacement, reinstallation, additional testing, inspections, and any expenses incurred by Seller as a result of the non-conformance. To the extent the correction of non-conforming concrete work causes delay in the project schedule, Seller shall be entitled to an equitable extension of time. The duration of such extension shall be determined by mutual written agreement of the parties. Buyer shall be solely responsible for any and all costs or damages incurred by Seller as a result of such delays.
5. Buyer shall indemnify, defend and hold harmless Seller, its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (i) the failure of any concrete work to meet the requirements of the Contract; and (ii) any act or omission of Buyer or its subcontractors, agents, or representatives in connection with such work. Nothing in this Section 6 shall be construed to impose upon Seller any responsibility, liability for the adequacy, quality, or code compliance of any concrete work performed by or on behalf of Buyer.
Preconditions to Manufacturing and Scheduling.
1. Prior to the commencement of manufacturing of the inclusion of Buyer’s order in Seller’s production schedule, the following preconditions must be fully satisfied:
  1. Seller has received a fully executed Contract and if applicable, received payment of the required deposit (if) any in the amount and within the time specified in the Contract.
  2. Buyer must provide proof of funding as required in Section 2(e).
  3. Buyer shall, at its sole cost and expense, procure all Required Consents, insurance, and notices required by federal, state, municipal, or other governmental or quasi-governmental authorities (domestic or foreign).
  4. Buyer shall notify Seller in writing once the Site is ready for inspection. The Site must be certified as suitable for delivery and erection by an authorized representative of Seller.
  5. Buyer shall complete all site preparation work including, without limitation, site grading, foundation construction, concrete, masonry, and installation of embedded materials, all in compliance with Seller’s final engineered drawings and to the satisfaction of Seller’s site supervisor.
  6. Buyer shall ensure adequate space for unloading of materials. If no such area is available, Buyer shall be responsible for arranging and obtaining lawful permission to unload in a street, road, or other adjacent area.
  7. All delivery paths must be graveled or paved. Gravel must be product grade ABC (also known as “crush and run”).
  8. Buyer shall provide temporary or permanent power, as reasonably deemed necessary by Seller. At a minimum, power must include: (a) 120-volt outlets available every 200 feet throughout the Site; (b) one 15-amp duplex receptacle per 20-amp circuit; (c) power sources shall not require drop cords exceeding 200 feet in length; and (d) if the grid power is not available, Buyer shall supply generators, including fuel, at its sole expense.
  9. Buyer shall provide temporary or permanent water supply and restroom facilities at the Site, at Buyer’s expense, as reasonably required by Seller.
  10. Buyer shall provide dumpsters and designated areas for waste.
  11. If the state or local law requires a notice of commencement (or similar document), Buyer must provide a signed copy to Seller.
  12. Buyer must provide proof of insurance as required in Section 17(a).
  13. If SMARTREADY™ materials included, Buyer must review and approve the Seller’s SMARTREADY™ drawings. If Buyer does not respond and Seller begins work, Buyer is deemed to have received, reviewed, and approved the SMARTREADY™ drawings.
2. The estimated timelines for manufacturing any materials are non-binding and subject to availability of raw materials.
Deliveries; Title Transfer; Risk of Loss; Storage; Extra Materials.
1. Seller shall deliver Products to Buyer using Seller’s standard methods for packaging and shipping. All delivery costs and charges are prepaid by Seller and added to Buyer’s invoice. Seller may deliver any or all Products in advance of the delivery schedule. Partial deliveries will be permitted. Each shipment will constitute a separate sale, and Buyer will pay for the Products shipped whether the shipment is in whole or partial fulfillment of Buyer’s order. Freight rates are subject to fuel surcharges at the time of shipping and invoicing. Delivery times are approximate and are dependent upon prompt receipt by Seller of all materials, payment security (if any), and information necessary for Seller to proceed without interruption with its obligations under the Contract. Buyer shall dispose of the packing materials at its own expense, and shall defend, indemnify, and hold harmless Seller for any and all costs or expenses of any kind in connection with such packing waste.
2. Title to Products shall pass to Buyer on the earlier to occur of: (i) shipment of the Products to Buyer, (ii) pickup of the Products by Buyer from Seller, or (iii) shipment of the Products to storage. Notwithstanding the foregoing, title to leased equipment, including equipment of Seller which will be located at the Site during all or some portion of the Contract term without Seller’s personnel present shall remain at all times with Seller. In all events, risk of loss shall transfer to Buyer upon title passage.
3. Seller may, at its sole discretion and expense, deliver additional materials to the Site as a precaution to prevent delays or shortages. Any such materials remaining unused upon completion or termination of the project shall remain Seller’s exclusive property. Seller shall remove all unused materials from the Site within a commercially reasonable time following project completion or termination. Buyer shall provide Seller reasonable access to the Site for this purpose. Buyer shall be responsible for safeguarding all materials stored at the Site and shall be liable for any loss, damage, theft, or deterioration of such materials occurring while the materials are stored at the Site.
4. If Buyer fails to take delivery of all materials specified in the Contract within twenty-six (26) weeks from the Contract date, Seller may, at its sole discretion, increase the Contract Price to reflect then-current material and productions costs. Seller shall provide written notice of the adjusted pricing, which shall become effective immediately upon notice. Buyer shall remain liable for all losses, costs, and damages incurred by Seller as a result of Buyer’s failure to timely take delivery, including but not limited to, restocking fees, storage costs, administrative expenses, loss in material value, and third-party handling or storage charges.
5. If any Products cannot be shipped to or received by Buyer when ready due to any cause not attributable to Seller, Seller will notify Buyer and then may ship Products to a storage facility, including a facility within the place of manufacture. If Seller places Products in storage, the following conditions shall apply: (i) title and all risk of loss or damage shall immediately pass to Buyer if they had not already passed and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be payable upon presentation of Seller’s invoices; (iii) a storage charge equal to 5% of the Contract Price allocable to the stored Products, which Buyer agrees is a reasonable amount under the circumstances; and (iv) when conditions permit and upon payment of all amounts due hereunder, Seller shall resume delivery of Products to the originally agreed point of delivery.
6. If Products delivered do not conform to the specifications set out in the Contract, Buyer shall provide Seller with written notice within twenty-four (24) hours after delivery, which Buyer agrees is a reasonable period of time under the circumstances. In the absence of any such notification, Buyer shall be deemed to have accepted the Products. In the event that any Products are demonstrated to have been delivered in nonconformance with the Contract and such non-conformance is reported within the twenty-four (24) hour period, Seller’s liability shall, at its option, be limited to: (i) replacing such nonconforming Products with conforming Products; or (ii) credit or refund the Contract Price for such nonconforming Products.
7. Seller’s Products are packaged and loaded with care to minimize transit damage. However, due to road conditions and shipper handling procedures outside Seller’s control, there are exceptions. Accordingly, minor cosmetic imperfections incurred during transit—such as small dents, dings, scratches, or other superficial wear and tear—shall be considered normal and acceptable. Such conditions shall not constitute a defect, nonconformity, or breach of warranty, and shall not be grounds for rejection, return or refusal to accept delivery of the Products.
8. Visible shipping damage to Products other than those described in Section 8(g) must be reported to Seller, in writing, immediately. In the absence of any such notification, Buyer shall be deemed to have accepted the Products. Buyer must check the Products upon arrival as Seller will not be responsible for any damage once Buyer has already signed for them. In the event that there is damage to a shipping carton, Buyer must ask permission from the carrier to open and inspect the package before signing for it. In the event that any Products are demonstrated to have been delivered in a damaged state (excluding the damage identified in Section 8(g)) and such damage is reported as set out herein, Seller’s liability shall, at its option, be limited to: (i) replacing such damaged Products with conforming Products; or (ii) credit or refund the Contract Price for such damaged Products.
Services.
1. Services will be performed by one crew and in the event that additional crew(s) are required additional costs may apply. Services shall be performed in a workmanlike manner consistent with the generally recognized industry standards for similar services and in accordance with any applicable federal, state, and local laws, rules, codes, and regulations.
2. Seller may engage subcontractors to provide or assist in providing Services, in which case Seller remains responsible for the fulfillment of its obligations under the Contract and for the performance of the Services.
3. Buyer shall provide Seller and its affiliates and their employees, subcontractors, and agents access to Site and any other facilities free of charge as necessary for Seller’s performance of the Contract. Prior to Seller starting any work on Site, Buyer will provide documentation that identifies any existing Hazardous Materials on or about the Site. Seller will have no responsibility or liability for existing Site conditions.
4. Unless expressly stated otherwise in the Contract or incorporated through a written Change Order or amendment executed by an authorized representative of Seller, the following items are specifically excluded from Seller’s scope of work and shall not be the responsibility or obligation of Seller under any circumstances: (i) masonry or block walls; (ii) additional shipping, handling, staging, storing, or labor costs arising from (a) phased installation or delivery necessitated by site constraints or construction sequencing; or (b) phasing requested by Buyer or Buyer’s contractors beyond what is contemplated in the agreed installation plan; (iii) labor or materials necessary to cut, trim, or modify framing to accommodate mechanical, electrical, or plumbing components; (iv) permits, licenses, inspection fees, or governmental approvals required for the performance of the work or the completed project; (v) demolition, removal, or disposal of existing structures, materials, or finishes; (vi) removal, collection, or disposal of construction waste, trash, packaging materials, or other debris generated at the Site; (vii) performance bonds, payment bonds, or other surety instruments; (viii) building signage, unit numbering, lettering, or other identifying elements; (ix) studs, furring, block, or backing required to support Seller’s work; (x) excavation, grading, or related site preparation work; (xi) concrete, block, electrical wiring or fixtures, or heating, ventilation, or air conditioning systems; (xii) caulking, sealing, or other finishing work required to close or finish joints, seams, gaps, or connections between Seller’s structure and any pre-existing building or any new structures, masonry, brickwork, or other materials supplied or installed by others; and (xiii) any item, service, or material not expressly described in the Contract as part of Seller’s obligations.
5. If, at the Site, Seller encounters Hazardous Materials that require special handling or disposal, Buyer shall immediately take whatever precautions are required to eliminate legally the hazardous conditions so that the work under the Contract may safely proceed. Seller shall not be obligated to commence or continue work until Buyer causes the hazardous conditions to be removed. If any such Hazardous Materials cause an increase in Seller’s cost of or time required for performance of any part of the work, the parties shall make an equitable adjustment to the price and schedule and modify the Contract in writing accordingly. Buyer shall indemnify and hold Seller harmless for any claims, damages, losses, causes of action, demands, judgment, and expenses arising out of or relating to any Hazardous Materials which are or were (i) present on or about the Site prior to commencement of Seller’s work, (ii) improperly handled or disposed of by Buyer or its employees, agents, contractors, or subcontractors, or (iii) brought, generated, produced, or released on Site by parties other than Seller.
6. In the event Buyer engages Seller to perform roofing, re-roofing, or roofing related services and/or to supply roofing, re-roofing, or roofing related materials, the additional terms set forth in Exhibit A shall apply in addition to the Terms. In the event of a conflict between the Terms and the terms set forth in Exhibit A, the terms in Exhibit A shall govern.
Moisture and Condensation.
1. Buyer is hereby advised that condensation may occur within unheated metal or concrete structures under certain weather and environmental conditions, including but not limited to fluctuations in temperature and humidity. This phenomenon is inherent to the building materials and design and is not considered a defect in materials or workmanship. While the installation of a fiberglass condensation blanket insulation on the ceiling may assist in reducing the formation of ceiling condensation, such insulation is not designed to, nor will it, eliminate condensation on other interior surfaces of the building, including, but not limited to, walls, doors, and concrete slab floors. Seller strongly recommends that items susceptible to moisture damage not be placed directly on concrete slab floors or in direct contact with metal walls, as such placement may result in damage due to moisture accumulation.
2. Seller shall not be responsible for providing ventilation or humidity control within the building. However, to assist in mitigating condensation, Seller recommends the installation of roof insulation. Seller’s standard roof insulation will be overlapped but not taped, sealed, or stapled at the seams. Buyer acknowledges that this method may not prevent all moisture migration or condensation.
3. Seller makes no representations or warranties, express or implied, regarding the performance or sufficiency of any insulation in preventing or eliminating condensation. Seller does not assume responsibility for evaluating climate conditions or recommending insulation for specific geographic areas or applications. The decision to install insulation, and the type and extent thereof, is solely within the discretion of Buyer.
Shop Primer.
1. All structural members of the building that are not fabricated from corrosion-resistant materials or protected by a corrosion-resistant coating shall receive a single coat of shop-applied primer paint furnished by Seller. The shop-applied primer is intended solely as a temporary protective coating during storage, transit, and brief exposure to ordinary atmospheric conditions prior to installation. This primer does not provide a uniform appearance or long-term durability and is not equivalent to a field-applied finish coat of paint. Seller makes no representation or warranty as to the suitability, durability, or performance of the shop primer under long-term environmental exposure or for any aesthetic purpose.
2. Seller reserves the right, at its sole discretion, to substitute pre-painted material in place of shop-primed steel. Such pre-painted materials shall be considered equivalent to shop priming solely for the purposes of the Contract.
3. Seller shall not be responsible for (i) any deterioration, corrosion, or rusting of the shop-applied primer resulting from exposure to atmospheric, environmental, or Site-specific conditions, or (ii) any incompatibility between the shop-applied primer and any field-applied paints, finishes, or coatings. It is the responsibility of Buyer to ensure compatibility and performance of any subsequent coatings applied in the field.
Roof and Gutters.
1. In geographic regions subject to snowfall and ice accumulation, Seller recommends that Buyer install heat tape or another electrically powered ice-mitigation system along the roof eaves to reduce the risk of water back-up and infiltration due to ice dams. Seller shall not be liable for any damage to the building or for any third-party claims arising from water leaks or damage resulting from water build-up in gutters, including damage caused by ice or snow accumulation.
2. For roof systems with a slope greater than 1/4” rise over a 12” run, Seller recommends the installation of snow guards to prevent large accumulations of snow or ice from sliding off the roof and causing injury or damage to building components, including gutters. Snow guards are not provided or installed by Seller and are the sole responsibility of Buyer.
Contract Time.
1. All timeframes provided by Seller, including but not limited to those relating to engineering, procurement, delivery, construction, or installation activities, are good faith estimates only and are provided for general planning purposes. Such estimates are expressly non-binding and are subject to change based on, among other factors, project-specific requirements, permit or regulatory delays, manufacturing schedules, site readiness, availability of materials, labor conditions, weather, force majeure events, and actions or omissions of Buyer or third parties. Seller shall not be liable for any loss, cost, or damages incurred by Buyer or others arising from or relating to any delay or deviation from the estimated times unless expressly agreed to in a separate written agreement signed by an authorized representative of Seller.
2. Seller shall not be liable nor in breach or default of its obligations under the Contract to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond its reasonable control, including, but not limited to, acts of God, fire, terrorism, war (declared or undeclared), epidemics, material shortages, insurrection, acts (or omissions) of Buyer or its agents, any act (or omission) by any governmental authority, strikes, labor disputes, transportations shortages, or vendor non-performance.
3. In the event the project, or any portion thereof, is damaged or destroyed by any cause beyond Seller’s control, including but not limited to acts of God, fire, flood, windstorm, riot, war, terrorism, civil unrest, or any other force majeure event, and Seller performs any work in connection with the rebuilding or restoration of the project, such work shall be deemed extra work outside the scope of the Contract. Buyer agrees to reimburse Seller for all labor, materials, and related costs incurred in performing such extra work, in accordance with Seller’s standard rates or as otherwise agreed in writing by the parties.
4. Any increase in cost, expense, or procurement difficulty arising out of or caused by events beyond Seller’s control, including but not limited to supply chain disruption, material shortage, labor unavailability, governmental order, or other force majeure condition, shall be passed through to Buyer in the form of a surcharge. Seller shall provide reasonable documentation of such cost increases upon request.
5. If the performance of Seller’s obligations under this Contract is delayed, hindered or prevented by any cause beyond Seller’s reasonable control, including but not limited to force majeure events as described herein, then the delivery or performance date shall be automatically extended by a period equal to the duration of such delay, plus such additional time as may be reasonably required for Seller to overcome the effects of the delay and resume full performance.
6. If Seller’s performance is delayed or disrupted due to any act, omission, or failure of Buyer, or of any of Buyer’s contractors, consultants, or suppliers, including but not limited to failure to complete prerequisite work, provide access, or furnish necessary information, then Seller shall be entitled to an equitable adjustment in both (i) the Contract Price and (ii) the schedule for performance.
Changes.
1. Seller reserves the right to alter, modify, redesign, or discontinue Products or any components of Products and change its service, warranty, support, or other policies, without notice and without any obligation to Buyer.
2. Either party may propose changes to the schedule, scope, or nature of the Products or Services by submitting a draft change order. The parties shall act in good faith to review proposed changes and may agree on a reasonable timeframe for a decision. Seller is not obligated to proceed with any change unless a written change order is signed by authorized representatives of both parties. Each change order shall detail the revised scope, any adjustment to the Contract Price, and any modification to the estimated performance schedule.
3. Adjustments required by changes in applicable laws or regulations will be handled as change orders. Unless otherwise agreed, additional work due to such changes will be billed at Seller’s standard time and material rates.
4. For clarity, any revised performance or delivery timelines included in a change order shall remain estimated and non-binding, consistent with the general provision of the Contract stating that all engineering, delivery, and completion dates provided by Seller are estimates only.
Completion and Acceptance.
1. The signing of a completion certificate by Buyer, or the occupancy or use of any portion of the Site that are the subject of the Contract, shall constitute acceptance by Buyer that the work has been completed in accordance with the Contract, subject only to any punch list items identified at final walkthrough. A final walkthrough shall be scheduled within three (3) weeks following the date of substantial completion, as determined by Seller’s sole and reasonable discretion. Buyer or Buyer’s duly authorized representative shall attend the walkthrough to inspect the work and identify any remaining items for completion. Any such items shall be listed in a mutually agreed punch list to be complete by Seller within a reasonable time. If Buyer fails to participate in a final walkthrough within the specified time, or otherwise refuses to schedule or attend the walkthrough, the work shall be deemed accepted as completed, and final payment shall be due in accordance with the Contract. Seller shall not be responsible for any damage to the work occurring after the earlier of: (i) the final walkthrough, or (ii) the expiration of the specified walkthrough timeframe.
2. In the event that the SMARTREADY™ cable management system (“CMS”) is incorporated in the Contract, Buyer acknowledges that Seller’s pricing and design were based on the inclusion of the CMS, and that the CMS was an integral component of the approved project scope. Accordingly, Buyer shall still pay the full contract price for the CMS even if the CMS is ultimately not used.
3. Buyer acknowledges and agrees to the following with respect to the erection process, fit, finish, and dimensional accuracy:
  1. Claims for correction of alleged misfits will not be permitted unless Seller receives written notice of the alleged misfit and is provided a reasonable opportunity to inspect the condition prior to any corrective action. Minor adjustments such as the use of drift pins, moderate reaming, welding, chipping, or cutting, and the replacement of minor material shortages are customary in the erection process and shall not constitute grounds for any claim or price adjustment. No components of the building may be returned for alleged misfits without the prior written consent of Seller.
  2. Minor scratches on factory-painted surfaces of doors, panels, roofs, or other components are a normal part of erection and are not subject to claim. Buyer’s sole remedy for such scratches shall be field-applied touch-up paint, which may result in variations in color or sheen. Such variations are not considered defects.
  3. Minor dings or dimples that may appear on panels, doors, or roofs during shipment or erection are standard in the industry and shall not constitute defects or grounds for claim.
  4. Seller may use power-activated tools during erection, and incidental chipping or cracking may occur as a result. Seller shall not be responsible for such damage.
  5. Buyer acknowledges that oil canning and pillowing may occur in the flat areas of roof panels, ridge lines, and between purlins, which may lead to some water ponding. These conditions are visual in nature, do not affect performance or warranty coverage, and do not constitute a basis for rejection or claim.
  6. Due to industry practices, construction tolerances, and variations in measurement methodologies, all unit dimensions in Seller’s proposals, drawings, and the Contract are considered nominal estimates only. Final dimensions may vary. Buyer agrees that the only way to determine actual rentable or usable area is by field measurement of the as-built condition using Buyer’s preferred methodology. Seller disclaims responsibility for compliance with any specific area calculation method unless explicitly agreed in writing.
Termination.
1. No Products may be returned, rescheduled, or cancelled without prior written approval of Seller. A 25% restocking fee may be assessed on any returned Products. Orders placed with and accepted by Seller may not be cancelled except with Seller’s written consent prior to shipment and Buyer’s acceptance of Seller’s cancellation charges, which shall protect Seller against all costs and losses. Seller reserves the right to cancel any sale hereunder prior to delivery in Seller’s sole discretion without liability to Buyer (except for refund of monies already paid).
2. Buyer may terminate the Contract (or any portion thereof) for cause and/or cause any Products in transport to Buyer or in storage for Buyer to be returned to Seller wherein in either event ownership thereof shall immediately revert to Seller, if Seller: (i) substantially breaches a material obligation which does not otherwise have a specified contractual remedy, provided that: (A) Buyer shall first provide Seller with detailed written notice of the breach and of Buyer’s intention to terminate Contract, and (B) Seller shall have failed, within thirty (30) days after receipt of the notice (or such extended period as is considered reasonable by the parties), to either commence and diligently pursue cure of the breach, or provide reasonable evidence that the breach has not occurred; or (ii) becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws. If Buyer terminates the Contract as provided in this Section, Buyer shall pay Seller all portions of the Contract Price allocable to Products delivered and Services performed at Seller’s then-current standard time and material rates.
3. Seller shall have the right to suspend or terminate the Contract (or any portion thereof) immediately for cause if: (i) Buyer becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws; (ii) there is an excusable delay lasting longer than 120 days; (iii) any representation or warranty made by Buyer herein or in any document or certificate furnished by Buyer in connection herewith proves to be incorrect in any material respect; (iv) Buyer materially fails to comply with any terms of the Contract; or (v) Buyer fails or delays making any payment when due or fulfilling any payment conditions under any contract between the parties.
4. If the Contract (or any portion thereof) is terminated for any reason other than those set forth in Section 16(b), Buyer shall pay Seller for all Products completed or partially completed and Services performed before the effective date of termination, plus a cancellation charge equal to 5% of the Contract Price allocable to the uncompleted Products and unperformed Services, as liquidated damages and not as a penalty. The following shall apply when determining the amount due from Buyer for Services performed before the date of termination: (i) for Services performed under time and material pricing, Buyer shall pay for all hours performed at Seller’s then-current standard time and material rates, and (ii) for Services performed under a firm fixed price, Buyer shall pay (A) the applicable price for all milestones achieved and (B) for any milestone not yet achieved, all hours performed in connection with the unachieved milestone(s) at Seller’s then-current standard time and material rates.
5. Seller shall not enforce the Contract if Required Consents as required in Section 2(b) cannot be obtained upon diligent effort of Buyer and if written notice of the inability to obtain those documents is received by Seller prior to processing the order by Seller, EXCEPT Seller will keep the deposit, which is non-refundable.
Insurance.
1. Buyer accepts all risks of transit, theft, vandalism, and any other loss of materials, tools, and equipment of Seller, or Seller’s subcontractors, on the job site or being stored off premises. Buyer, at its own cost and expense, before work commences, must procure all risk builders risk insurance, which includes but is not limited to coverage endorsements for transit, off premises storage, theft, vandalism, and malicious mischief; the insurance to be in a sum at least equal to the Contract price, plus 15%. Buyer will maintain such insurance in full force and effect for the duration of the work. The insurance must protect Buyer and Seller as the interests of each may appear. Seller must be an additional named insured. Seller reserves the right to require additional arrangements for the security for materials and equipment storage at the job site at Buyer’s expense. Buyer shall provide to Seller, prior to start of work, written certificate(s) of insurance issued by the insurance carrier(s) showing that the required insurance is in force satisfactory to Seller. Each certificate must waive the insurer’s right of cancellation or reduction in coverage without at least thirty (30) day’s prior written notice by certified mail to Seller. Should any policy be canceled prior to completion of work and Buyer fails to procure other insurance immediately in accordance with the Contract requirements, Seller may procure such insurance at Buyer’s expense, but is not required to do so. If materials, tools, or equipment of Seller, or Seller’s subcontractors are stolen or lost from the job site, Buyer as the party charged with security of the job site will satisfy Seller for any loss suffered by Seller which is not fully reimbursed by insurance procured under this provision.
2. Seller will provide insurance policies for the project in accordance with the limits stated below. In the event the project is in a state where the statutorily required minimums exceed the limits specified herein, Seller will carry up to the applicable statutorily required minimums, subject to the reimbursement requirements specified in this provision. The limits below supersede any other contractual obligations with respect to the insurance requirements for the project. Seller will maintain and carry the insurance policies below at its own expense for the duration of its work on the project and shall provide Buyer with evidence of said policies upon request from Buyer.

Worker’s Compensation/Employer’s Liability: $1,000,000.00 (Each Accident)

Commercial General Liability: $1,000,000.00 Occurrence/$2,000,000.00 Aggregate

Commercial Auto Liability: $1,000,000.00, Combined Single Limit (Each Accident)

Excess/Umbrella Liability: $5,000,000.00 Occurrence/$5,000,000.00 Aggregate

Seller’s policies do not provide coverage for: (i) additional insured status; or (ii) a waiver of subrogation issued in favor of the Buyer or any other party. In the event additional coverage is required, whether by statute or Buyer’s demand, Seller and/or Seller’s lower-tiered Buyers will provide the additional insurance and a change order will be issued to Buyer for the incremental cost of the additional insurance. Buyer acknowledges and agrees that it is liable to and expressly obligated to pay Seller for all costs associated with procuring said additional insurance as specified on any change order(s) issued in connection with the project. Notwithstanding the foregoing, in the event Buyer requires Seller to provide an endorsement to any policy held by Seller which requires Seller to name Buyer (or any other third party) as an additional insured, Seller may provide a blanket additional insured endorsement listed on a certificate of insurance in lieu of said endorsement.

Confidentiality.
1. Any non-public, confidential or proprietary information, including, without limitation, pricing information, Data (hereinafter defined), production processes or specifications (collectively, “Confidential Information”), provided by Seller to Buyer is proprietary to Seller and shall be held in confidence by Buyer, shall only be used by Buyer in connection with the respective sale, and shall not be used for any other purposes or disclosed to third parties without Seller’s prior written consent. Buyer shall be liable for any loss to Seller or commercial gain by others from unauthorized use of Seller’s Confidential Information occasioned by Buyer’s failure to comply with this provision. The purchase of Products shall not include any right to supply of technical information such as drawings or specifications.
2. Buyer will protect Seller’s Confidential Information with at least the same degree of care as Buyer would protect its own Confidential Information, but in no event with less than a reasonable degree of care and in accordance with applicable laws.
3. Proprietary information, including drawings, documents, technical data, reports, software, designs, inventions and other technical information, whether or not constituting a trade secret (hereinafter collectively referred to as “Data”), supplied in connection herewith, by Seller shall remain Seller’s sole property and shall be held in confidence by Buyer. Data shall not be reproduced, used or disclosed to others by Buyer without Seller’s prior written consent. Upon completion of the Contract, Buyer shall promptly destroy, at its own costs, all Data together with all copies or reprints thereof then in Buyer’s possession or control, and Buyer shall deliver within forty-eight (48) hours of such destruction to Seller written certification signed by an authorized representative of its compliance with this Section. Buyer shall thereafter make no future use, either directly or indirectly, of any Data or any information derived therefrom without Seller’s prior written consent. The foregoing shall in no way obligate Seller to provide or supply Data. Data shall not include information that is readily available to the public through no wrongful act of Buyer or others.
4. The obligations of this Section 18 shall survive expiry or termination of the Contract for any reason.
5. Buyer agrees that any unauthorized disclosure of Seller’s Confidential Information will cause immediate and irreparable injury to Seller and that, in the event of any breach of this Section 18, Seller will be entitled to immediate injunctive and other equitable relief, in addition to any other available remedies.
Intellectual Property.
1. All drawings, details, calculations, specifications, and other documents, data, or materials provided by Seller (collectively, the “Seller Materials”) are and shall remain the sole property of Seller. All intellectual property created, conceived, or delivered by Seller, whether independently or in collaboration with Buyer, shall be owned exclusively by Seller. To the extent Buyer may acquire any rights therein, Buyer irrevocably assigns all such rights to Seller, waives any moral rights, and agrees to execute any documents necessary to confirm Seller’s ownership. Each party retains ownership of its respective pre-existing intellectual property and Confidential Information.
2. Buyer is granted a limited, non-exclusive, non-transferable, and non-assignable license to use the Seller Materials solely for the purposes of: (i) facilitating the purchase, resale, or use of the Products (where Seller is providing materials only); or (ii) carrying out the specific project identified in the Contract (where Seller is providing Products and Services).
3. Unless expressly authorized in writing by Seller, the Seller Materials may not be: (i) used for any project other than the one for which they were provided; (ii) reproduced, distributed, transmitted, or disclosed to third parties; (iii) reverse engineered or modified; or (iv) used as the basis for design, engineering, or construction without Seller’s continued involvement.
4. Upon completion or termination of the Contract or upon Seller’s request, Buyer shall return all original Seller Materials and permanently delete or destroy any copies. Buyer shall certify such destruction in writing upon request.
5. Any breach of this provision shall entitle the other party to all available legal and equitable remedies, including injunctive relief, damages, and recovery of reasonable attorneys’ fees.
Indemnification.
1. To the fullest extent permitted by applicable law, Buyer agrees to indemnify, defend, and hold harmless Seller, its affiliates, subcontractors, officers, directors, members, employees, agents, representatives, insurers, and assigns (collectively, “Seller Indemnitees”) from and against any and all claims, demands, actions, suits, liabilities, losses, damages, judgments, costs, and expenses (including reasonable attorneys’ fees) of every kind and nature whatsoever, whether in law or equity, arising out of or relating to the Contract, the work performed under it, or the use, occupancy, or condition of the building(s) or Site, regardless of the cause or legal theory asserted and regardless of whether such claims are alleged or proven to have arisen from the active or passive negligence, fault, strict liability, statutory liability, or other act or omission of any Seller Indemnitee. This indemnification obligation shall apply to all such claims, demands, and liabilities, whether asserted by Buyer’s employees, agents, subcontractors, tenants, licensees, invitees, or any third parties, including tenants or users of the project or facility; provided, however, that Buyer shall not be required to indemnify, defend, or hold harmless Seller Indemnitee to the extent any such claim, loss, or damage is determined by a final, non-appealable judgment of a court of competent jurisdiction to have arisen directly and solely from the negligence or willful misconduct of such Seller Indemnitee. Buyer expressly acknowledges that the parties intend to allocate all risks related to the project, to the extent legally permissible, to Buyer and that Buyer has obtained and shall maintain, at its own expense and throughout the term of the Contract, the insurance coverage described in Section 17(a) for the purpose of supporting this indemnity and risk allocation. This indemnity provision and its effect are material terms of the Contract and a part of the bargained-for consideration.
2. Buyer shall also require all tenants, licensees, and users of the building(s) or related facilities to obtain and maintain insurance covering the full replacement value of any and all property stored, placed, or used on the Site. Such insurance shall name both Buyer and Seller as additional insureds. To the fullest extent permitted by law, Seller shall not be liable for, and expressly disclaims all responsibility for, any loss or damage to any property stored in the building(s), whether caused by fire, theft, water, structural failure, vandalism, or otherwise. In the event any third party asserts a claim for damages related to such loss, Buyer shall defend and indemnify Seller against such claims, subject to the exception above regarding Seller’s negligence or willful misconduct. In any dispute between Buyer and its tenant, licensee, or user, Buyer agrees to pursue and exhaust all remedies directly against such party and shall not involve Seller in such disputes, except as may be required by law or court order.
3. Seller, at its sole expense, shall defend Buyer from any action based upon a claim that a Product infringes any valid third-party U.S. patent, copyright, trade secret, or other proprietary right, and shall reimburse Buyer for all damages, costs, and expenses (including reasonable attorneys’ fees) awarded against Buyer pursuant to any such actions. Seller’s obligations hereunder are contingent upon Buyer providing Seller prompt written notice of the claim; complete control of the defense of and the right to settle such claim; and all available information, assistance, authority, and cooperation to enable Seller to defend or settle such claim. If Buyer fails to provide a claim notice to Seller under Section, Seller shall not be liable for any losses that result from a delay in providing a claim notice, which delay materially prejudices the defense of the related third-party claim. Each claim notice must contain a description of the third-party claim and the nature and amount of the related losses (to the extent that the nature and amount of the losses are known at the time). If a Product or Service or any component thereof becomes, or in Seller’s opinion is likely to become, subject of such a claim of infringement, Seller shall be entitled to, at its sole option, either procure the right for Buyer to continue to utilize the Product or such impacted component of the Product, or replace or modify it so that it becomes non-infringing. If neither of the foregoing is commercially and reasonably available to Seller, where applicable, Buyer shall return all Products. Seller shall have no obligation or liability with respect to any Claim based upon: (i) any Products that have been altered, modified, or revised; (ii) the combination, operation, or use of any Products with other products or services when such combination is part of any allegedly infringing subject matter; (iii) unauthorized use of Products, including, without limitation, a breach of Contract provisions; or (iv) Products made or performed to Buyer’s specifications. This Section states Seller’s entire liability for indemnification for intellectual property rights infringement for Products and Services. Notwithstanding the foregoing, with respect to any Products or Services, or portions thereof, which are not manufactured or developed by Seller, only the indemnity of the manufacturer or developer, if any, shall apply.
Limitation of Liability.
1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, UNDER OR IN CONNECTION WITH THE CONTRACT, OR ANY BREACH OF THE SAME IN ANY MANNER, OR FOR ANY OTHER CLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR: (I) ANY INDIRECT CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES; (II) DAMAGES FOR LOSS OF USE, LOSS OF BUSINESS OR BUSINESS INTERRUPTION; OR (III) DAMAGES RESULTING FROM DAMAGED OR MISFIT MATERIALS, LATE ARRIVAL OF A METAL BUILDING SYSTEM TO THE JOB SITE OR FROM FAILURE TO COMPLETE CONSTRUCTION WITHIN THE ESTIMATED CONSTRUCTION TIME.
2. The total liability of Seller for all claims arising out of or relating to the performance or breach of the Contract or use of any Products or Services shall not exceed THE PRICE ALLOCABLE TO THE PRODUCT OR PART THEREOF WHICH GIVES RISE TO THE CLAIM, REDUCED BY ANY AMOUNT DUE SELLER. Seller’s liability shall terminate upon the expiration of the applicable warranty period, provided that Buyer may enforce a claim that accrued prior to that date by commencing an action before the expiration of the applicable statute of limitations or repose, but not later than one (1) year after the expiration of such warranty period
3. Liquidated damages are not applicable to this Contract.
Health and Safety Matters.
1. Buyer shall take all necessary precautions, at all times, for the health and safety of Seller personnel at Site. These include, but are not limited to: providing Seller for review, and instructing Seller’s personnel regarding, Buyer’s safety practices, proper and safe handling of, and protection of Seller’s personnel from exposure to, Hazardous Materials; energization and de-energization of all power systems (electrical, mechanical, and hydraulic); and conducting periodic safety meetings.
2. If, in Seller’s reasonable opinion, the safe execution of the Contract at Site is, or is apt to be, imperilled by safety concerns, local conditions, war (declared or undeclared), armed conflict or threatened conflict, civil unrest, terrorist acts or threats, threat to safety or well-being of the Site or personnel or Seller’s persons or interests, the presence of or threat of exposure to Hazardous Materials or unsafe working conditions, Seller may, in addition to other rights or remedies available to it, evacuate some or all of its personnel from Site, suspend performance of all or any part of the Contract, and/or transfer such performance and supervise it at a location solely determined by Seller. Buyer shall assist in any evacuation. Any delay that results shall be considered excusable.
3. Before signing and returning Seller’s proposal, issuing a purchase order, or submitting instructions to Seller, Buyer shall advise Seller in writing of all applicable Site-specific rules, regulations, safety codes, and laws that apply to Products and Services.
Limited Warranty.
1. Seller’s warranty obligations are governed exclusively by a separate written warranty document (“Limited Warranty”) provided by Seller. There is no other warranty or guarantee to Buyer by Seller. No person, advertisement, or other writing gives, extends, or alters any warranty binding on Seller. Further, Buyer and Seller agree that Seller has not adopted, and Seller shall not be liable for, any component manufacturer’s warranties. However, to the extent assignable, at Seller’s expense, Seller shall make available to Buyer any rights of Seller under any warranties of component manufacturers. The Limited Warranty will be issued only after all payments are made in full to Seller and completion certificate is signed by Buyer or its authorized representative. To the extent of any conflict between the summary of the Limited Warranty provisions set forth herein and the full warranty as listed in the separate written warranty document, the provisions of the full warranty in the separate written warranty document shall control.
2. Seller’s liability for breach of this Limited Warranty shall be limited to repairing, repainting, or replacing of the defective materials or workmanship utilizing such normal materials, methods, and workmanship as should result in providing the warranted performance for materials and workmanship under the original Contract. Seller shall have the sole discretion to determine which of the above methods will be used to fulfill its obligation. Seller will not in any event be liable for the cost of labor expended by others on any defective materials or workmanship or any special indirect or consequential damages to anyone by reason of the facts that such materials or workmanship shall have been defective.
3. The Limited Warranty is limited to the normal use of each product for the purpose such product is intended to serve. The Limited Warranty is non-assignable and non-transferable and shall only apply to the original Buyer.
4. Warranty repairs will be evaluated within ten (10) working days of receipt of written notification to Seller, provided Seller is granted convenient access to the area to be repaired. Repairs, replacement, or repainting, as applicable, will commence within thirty (30) days of written notification, weather permitting.
5. This warranty shall not be effective and is not binding on Seller unless and until Seller has been paid in full for the project pursuant to the terms of the Contract.
6. Seller will also include its standard specific warranties for products Seller has furnished. The Limited Warranty applies to components of the building that are manufactured by Seller. Door and door component parts will carry that item’s manufacturer’s warranty.
Dispute Resolution; Governing Law. To the fullest extent permitted by law:
1. This Contract shall be governed by and construed in accordance with the law of the State of North Carolina.
2. The parties submit to the federal and state courts jurisdiction of the State of North Carolina. The parties further consent that any process or notice of motion or other application to the court or a judge of the court may be served outside North Carolina by registered mail or by personal service, provided a reasonable time for appearance is allowed.
3. The parties agree that the parties will litigate any disputes arising out of this Contract or contractual relationship exclusively, solely and only in the courts of the State of North Carolina, except to the extent necessary for BETCO to preserve and enforce its lien rights at the locale of the project.
4. Notwithstanding the foregoing, the parties understand that BETCO, at any time and in its sole discretion in accordance with Paragraph 10(e) may elect to submit any dispute arising out of or in any way related to this Contract to mediation or directly to arbitration pursuant to the Construction Industry Rules of the American Arbitration Association. The arbitration shall be before a single arbitrator mutually agreed upon by the parties from the panel of neutrals or, if no such agreement can be reached, by selection pursuant to the rules of the Construction Industry Rules of the American Arbitration Association. The Arbitration Award shall be final and binding and shall be enforceable in any court of competent jurisdiction. Nothing herein shall preclude BETCO from filing suit for the purpose of obtaining temporary or preliminary injunctive relief or to compel arbitration pursuant to the terms of this Agreement. The exclusive forum for adjudication of any such action to compel arbitration shall be in either federal court in the Western District of North Carolina or state court in Iredell County, North Carolina. Buyer and BETCO hereby consent to exclusive personal jurisdiction and venue in such courts in any proceeding authorized hereunder. In the event BETCO chooses not to submit any dispute to mediation and/or arbitration as specified in this section, the remainder of Paragraph 35 shall govern. Any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity, or termination, shall be resolved in accordance with this Section 24 and will be settled, if possible, by negotiation of the parties. If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to a meeting of appropriate higher management of each party, to be held within twenty (20) business days after giving notice. If the dispute is not resolved within thirty (30) business days after the date of the meeting of higher management, or any later date to which the parties may agree, either party may submit any claim, legal action, or proceeding (including without limitation claims for set-off or counterclaim) regarding the dispute shall be brought in the U.S. District Court for the Western District of North Carolina, or in the event that court lacks jurisdiction to hear the claim, in the appropriate state courts of Iredell County, North Carolina, and the parties irrevocably consent to the exclusive jurisdiction of those courts for such claims. Each party submits to and accepts generally and unconditionally the jurisdiction of those courts with respect to its person and property.
General Clauses.
1. Seller may change the Terms at any time and without notice to Buyer. The Terms in force at the time Buyer enters into a Contract with Seller will apply to such Contract.
2. Seller may assign its rights and obligations under the Contract, in part or in whole, to any of its affiliates without Buyer’s consent. Buyer agrees to execute any documents that may be necessary to effect Seller’s assignment. The delegation or assignment by Buyer of any or all of its duties or rights under the Contract without Seller’s prior written consent shall be void.
3. Buyer agrees that in connection with its purchase hereunder, it shall comply with all applicable anti-corruption laws, including the Foreign Corrupt Practices Act of 1977 (15 U.S.C. Sections 78DD-1, et. seq.). Seller may terminate the Contract if it has a good faith belief that Buyer has violated, intends to violate, or has caused a violation of any anti-corruption laws.
4. Buyer shall notify Seller immediately upon any change in the ownership of more than 50% of Buyer’s voting rights or in Buyer’s controlling interest. If Buyer fails to do so or Seller objects to the change, Seller may (i) terminate the Contract, (ii) require Buyer to provide adequate assurance of performance, or (iii) put in place special controls regarding Seller’s Confidential Information.
5. Buyer shall not issue or permit to be issued press releases or publicity in any form that relates to the Contract or the subject matter thereof without the express written consent of the Seller, except if and to the extent that Buyer (based on the reasonable advice of counsel) is required (i) by applicable law, (ii) pursuant to any rules or regulations of any securities exchange of which the securities of Buyer are listed or traded, or (iii) in connection with enforcing its rights under the Contract (each a “Required Disclosure”) to make a public disclosure or filing. In the event of a Required Disclosure under (i) and (ii), Buyer shall consult with Seller regarding the substance of the Required Disclosure and allow Seller to review, comment on, and reasonably change the content of the Required Disclosure prior to its publication or filing. Buyer shall be liable for any failure of its affiliates or representatives to comply with the restrictions set forth under this Section.
6. Any covenant or provision of the Contract which by its express terms is required to be observed, kept or performed after termination hereof, or which by its nature and effect is intended to survive termination of the Contract shall so survive termination of the Contract.
7. No waiver by Seller of any of the provisions of the Contract is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Contract operates, or may be construed, as a waiver thereof.
8. The Contract may be executed in multiple counterparts that together shall constitute one agreement. A signed copy of the Contract executed electronically and delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Contract.
Notification. All notices, approvals, consents, requests for demands required or permitted to be given under these Terms to Seller shall be in writing and shall be deemed sufficiently given when deposited in the mail, registered or certified, postage prepaid, and addressed to:

Mailing Address

With a Copy to:

Betco, Inc.

c/o President

228 Commerce Blvd

Statesville, NC 28625

Betco, Inc.
c/o Legal Department
135 Janus International Blvd
Temple, GA 30179

EXHIBIT A

RE-ROOFING TERMS AND CONDITIONS

Roofing Scope of Work. Seller is not the Engineer of Record (“EOR”) and does not provide engineering or architectural services. It is the Buyer or Owner’s responsibility to retain a licensed architect or EOR to determine proper design and code compliance, including a determination as to whether and what type of a vapor or air barrier is required. If plans, specifications, or other design documents have been furnished to Seller, Buyer warrants that they are sufficient and conform with all applicable laws and building codes. Seller is not responsible for any loss, damage, or expense due to defects in plans, specifications, or building code violations unless such damage is a direct result of a deviation made by Seller in conflict with what was previously provided. Unless included as part of Seller’s scope of work, Seller is not responsible for: (i) condensation, (ii) moisture migration from the building interior, roof deck, or other building components, (iii) location or size of roof drains, (iv) adequacy of drainage, (v) ponding on the roof, (vi) structural conditions, or (iv) the properties of the roof deck or substrate where Seller’s roofing work is installed. Seller is not required to replace or repair any existing roof penetrations unless specifically included as part of the scope of work. Seller is not liable for repairing roof penetrations caused by a party other than Seller. In the event work performed by Seller is damaged in any manner by Buyer or any third party, then Buyer shall reimburse Seller on a time and material basis for repairs to Seller’s work, which resulted from the acts or omissions of Buyer or third parties.
Protection of the Interior. Buyer understands and acknowledges that re-roofing of an existing building may cause disturbance, dust, debris, fireproofing, or materials to fall into the interior. Buyer shall remove or protect property directly below the roof in order to minimize potential interior damage. Seller shall not be responsible for: (i) the disturbance or detachment of fireproofing or other materials from the underside of the deck, or (ii) damage, clean up, or loss to interior property (including property that may belong to third parties) that Buyer did not remove or protect prior to commencement of roofing operations. Buyer shall notify tenants of re-roofing and the need to provide protection underneath areas being re-roofed prior to Seller’s commencement of the work. Buyer agrees to indemnify, defend, and hold Seller harmless from any and all claims of tenants or any third parties who were not so notified and did not provide protection.
Roof Deck; Repairs. Buyer warrants that the deck and structures on which Seller is to work are in sound condition and capable of withstanding roof construction, equipment and operations. Seller’s commencement of roof installation indicates only that Seller has visually inspected the surface of the roof deck for visible defects. Unless included as part of Seller’s scope of work, Seller is not responsible for the structural sufficiency, quality of construction, undulations, fastening, or moisture content of the roof deck or other trades’ work or design. Seller is not responsible to test or assess moisture content of the deck or substrate.
Deck Repairs; Insulation; Unforeseen Conditions. Any work required to replace rotten, missing, deteriorated, rusted, or crumbling decking shall be done on a labor and material or unit price basis as an extra unless specifically included in the Seller scope of work. When re-roofing over an existing roof, replacement of visible wet or deteriorated insulation will be an extra or billed at unit prices unless otherwise stated in the scope or work or in the respective proposal. Unforeseen conditions that may affect the work will be reported to Buyer and authorization requested prior to the commencement of permanent repairs.
Limitation of Liability; Seller conducts inspections of Buyer’s roof and issues inspection reports as a courtesy to Buyer and at a nominal fee. Buyer and Seller agree that Seller does not warrant or guarantee that the inspection will discover every potential source of roof failure or leak. Seller also does not warrant or guarantee that the inspection will cause the roof to last for the full life of the manufacturer’s warranty or as long as noted in the inspection report. Should the roof experience a leak or failure that Buyer alleges Seller should have discovered during the inspection, Buyer and Seller agree that Seller’s maximum liability arising out of the alleged missed failure will be Seller’s fee for the inspection. Buyer’s exclusive remedy against Seller, its owners, affiliates agents, and employees for any claimed failure or leak that Buyer alleges Seller did not discover is to claim for return of Seller’s fee for the inspection and report. Buyer and Seller agree that Seller is not liable for any consequential, indirect, special, incidental, exemplary, or punitive damages arising out of or in connection with any claimed roof failure or leak that Seller did not discover during the inspection or note on Seller’s inspection report.
Wind Loads or Uplift Pressures. Seller is not responsible for design (including calculation or verification of wind-load design). To the extent minimum wind loads or uplift pressures are required, Seller’s bid is based solely on manufacturer’s printed test results. Seller itself makes no representation regarding wind uplift capacity and assumes no liability for wind uplift. Seller makes no representation or warranty regarding the responsibility for the soundness of any structure and therefore offers no opinion on and expressly disclaims any responsibility for the soundness of any structure. Buyer understands and acknowledges that Seller shall not be liable for any structural failure or damages resulting from said structural failure(s). It is Buyer’s express responsibility to consult a competent structural engineer prior to installation if the structural soundness or structural ability to properly support a planned installation is in question.
Tolerances. All labor and materials shall be furnished in accordance with normal industry standards and industry tolerances for uniformity, color, variation, thickness, size, weight, finish and texture. Specified quantities are intended to represent an average over the entire roof area.
Fumes and Emissions. Buyer acknowledges that odors and emissions from roofing products will be released as part of the roofing operations to be performed by Seller. Buyer shall be responsible for interior air quality, including controlling mechanical equipment, HVAC units, intake vents, wall vents, windows, doors, and other openings to prevent fumes and odors from entering the building. Buyer is aware that roofing products emit fumes, vapors, and odors during the application process. Some people are more sensitive to these emissions than others. Buyer shall indemnify, defend, and hold Seller harmless from claims from third parties relating to fumes and odors that are emitted during the normal roofing process.
Roof Top Safety.Buyer warrants there will be no live power lines on or near the roof servicing the building where Seller will be working and that Buyer will turn off any such power supplies to avoid an electrocution risk to Seller employees or subcontractors. Seller’s price is based upon there not being electrical conduit, cables, wires or other materials embedded within the roof assembly or attached directly to the underside or topside of the roof deck upon which Seller or its subcontractors will be installing the new roof. Buyer will defend, indemnify, and hold harmless Seller from personal injury and other claims and expenses if Buyer fails to turn-off power or to cause power to be turned off so as to avoid injury to Seller personnel or subcontractors or resulting from the presence of electrical conduit and live electrical power. Seller is not responsible for costs of repair or damages, including, without limitation, disruption of service resulting from damage to undisclosed or concealed electrical or other utility lines. Buyer shall shut down (or shall cause to be shut down) roof located electronic equipment that emits or receives radio frequency waves while Seller is to be working on the roof so that roofing personnel will not be subject to radio frequency waves or electromagnetic radiation while working on the roof and Buyer shall defend, indemnify and hold Seller and its personnel harmless from any personal injury claims resulting from a failure by Buyer or the Owner to do so. Seller is not responsible for the safety of persons on the roof other than its own employees. Owner and Buyer agree to indemnify, defend, and hold Seller harmless from claims for personal injury by persons or entities whom Owner or Buyer have allowed or authorized to be on the roof.
Site Conditions.Seller shall be provided with direct access to the work site for the passage of trucks and materials and direct access to the roof. Seller shall not be required to begin work until underlying areas are ready and acceptable to receive Seller’s work and sufficient areas of roof deck are clear and available and free from snow, water, or debris to allow for continuous and full operation. If Seller is required to perform its work out of sequence, to undertake multiple mobilization and demobilization efforts, or to work around obstructions or equipment that were not shown on the original plans, Seller shall be entitled to additional compensation and time commensurate with the additional costs and time expended by Seller. The raising, disconnection, re-connection or relocation of any mechanical equipment on the roof that may be necessary for Seller to perform the roofing work shall be performed by others or treated as an extra.
Existing Conditions. Seller is not responsible for leakage through the existing roof or other portions of the building that have not yet been re-roofed by Seller. If applicable, Seller is not responsible for satellite dish recalibration unless specifically stated in the scope of work.
Mold. Seller is committed to acting promptly so that roof leaks are not a source of potential interior mold growth. Buyer will make periodic inspections for signs of water intrusion and act promptly including prompt notice to Seller if Buyer believes there are roof leaks in order to correct the condition. Upon receiving notice, Seller will make roof repairs provided the repairs arising out of its original work. Buyer or Owner is responsible for monitoring any leak areas and for indoor air quality. Seller is not responsible for mold or indoor air quality. Buyer shall defend, indemnify, and hold Seller harmless from claims due to indoor air quality and resulting from a failure by Buyer or Owner to maintain the building in a manner to avoid growth of mold. In performing roof maintenance or repair services, it is understood and agreed that Seller is held harmless by Buyer and Owner and released from any and all liability in connection with or, directly or indirectly, arising out of any pre-existing or future mold problems. Buyer and Owner waive any direct, incidental, special, indirect, exemplary, punitive, or consequential damages, including damage to the building structure, contents or health problems, attributable to past, present or future water intrusion and associated mold, fungus, mildew, or algae growth. Buyer and Owner WAIVE ALL RIGHTS OF SUBROGATION against Seller and its subcontractors from damages related to such issues, in whole or in part.
Oil-canning.Metal roofing and especially lengthy flat-span sheet-metal panels often will exhibit waviness, commonly referred to as “oil-canning.” The degree of oil-canning and the appearance of the panels will vary depending on factors such as the length and color of the panels, alloy, gauge, galvanizing process, substrate condition, and exposure to sunlight. Oil-canning pertains to aesthetics and not the performance of the panels. The type of metal roofing panels specified can affect the degree of oil-canning. Seller is not responsible for oil-canning or aesthetics. The presence of oil-canning is not justification to withhold payment or to reject panels of the type specified.
Material References. Seller is not responsible for the actual verification of technical specifications of product manufacturers (i.e., R-value or ASTM or UL compliance), but rather the materials used are represented as such by the material manufacturer. All materials and work shall be furnished in accordance with normal industry tolerances for color, variation, thickness, size, weight, amount, finish, texture, and performance standards.
OSHA. Both Seller and Buyer shall ensure that all Occupational Safety and Health Act (OSHA) requirements and other similar applicable safety laws or codes are adhered to in their performance under this agreement.

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Terms and Conditions for Sale of Products and Services