The Barden & Robeson Corporation, Barden Buildings systems, Barden Homes, Barden Commercial, Barden Churches, Barden Log Systems (Barden) is a supplier of material.
Barden is not a General Contractor or Contract Manager
Your Independent Dealer (Dealer) is not an employee of Barden.
Your Dealer is not an agent of Barden.
Your Dealer has no authority to act for, or bind Barden.
Initial Design Services – Barden shall prepare and submit to Buyer for Buyer’s approval initial design drawings (the “Design Drawings”), which shall include floor plans, elevations and sections sufficient to convey the architectural design of the Buyer’s project to the Buyer, and an initial price estimate for the materials to be supplied by Barden based on the Design Drawings.
AT THE CONCLUSION OF THE DESIGN PHASE, PRIOR TO DELIVERY OF FINAL DRAWINGS, YOU WILL RECEIVE THE CONTRACT PRICE FOR THE BARDEN PACKAGE. YOU AGREE THAT YOU WILL BE BOUND BY THE CONTRACT PRICE UNLESS YOU SPECIFICALLY OBJECT IN WRITING TO BARDEN WITHIN TEN (10) DAYS OF DELIVERY TO YOU OF THE CONTRACT PRICE. IF YOU REQUEST SUBSEQUENT CHANGES TO THE DESIGN, THESE CHANGES MAY AFFECT THE CONTRACT PRICE. IN SUCH EVENT, BARDEN WILL PROVIDE YOU, IN WRITING, REVISED PRICING INFORMATION (THE “REVISED PRICING”), AFTER THE CONTRACT PRICE HAS BEEN AGREED UPON. THIS MAY BE IN THE FORM OF A CHANGE ORDER OR A MISCELLANEOUS INVOICE. YOU AGREE THAT UNLESS YOU OBJECT IN WRITING WITH IN TEN (10) DAYS OF DELIVERY TO YOU OF THE REVISED PRICING, BARDEN MAY RELY UPON THE WRITTEN REVISIONS, EVEN IF YOU FAIL TO EXECUTE AND RETURN A WRITTEN CHANGE ORDER. THE CONTRACT PRICE AND THE REVISED PRICING ARE SUBJECT TO CHANGE OR REVOCATION BY BARDEN UNLESS SHIPMENT OF THE BARDEN PACKAGE IS SCHEDULED WITH IN SIXTY (60) DAYS AFTER THE ACCEPTANCE OF THIS CONTRACT BY BARDEN.
Contracting Parties to this agreement; Authority to act – The buyer referred to herein as “Buyer” or “you”. If there is more than one buyer, “you” refers to all Buyers. The following Documents provided by the Barden & Robeson Corporation (hereafter Barden), form your agreement or contract (hereafter “Contract”) to purchase materials from Barden (the “Barden package”): (i) these Terms and Conditions, (ii) the Material Contract (includes specifications), and (iii) the Drawings. No modification may be made to the contract except in writing, and agreed to by an authorized officer at Barden (a “Barden Officer”). This contract is not valid, effective or binding until executed by a Barden Officer. A Salesperson, Independent Dealer, or Representative is not a Barden Officer, is not an agent of Barden and has NO AUTHORITY to execute the Contract on behalf of Barden, alter the Contract, drawings or specifications either before or after it is signed, or to bind Barden to any other agreement, promise or undertaking. If the buyer is an entity, the person signing the contract on Buyer’s behalf represents that he or she has the authority to execute this contract and that the contract is the valid and binding obligation of the Buyer.
Deposit – Upon execution of this Agreement, Buyer has paid Barden to start the design process. This amount is non-refundable and shall be applied to the purchase price of materials to be supplied by Barden (the “Barden Package”) if the Buyer elects to purchase the Barden Package. If Buyer elects not to purchase the Barden Package, Buyer will reimburse Barden for design expense above the amount of deposit received.
Drawings – The Drawings being furnished are part of the Barden Package being supplied to you by Barden. The Drawings, which are part of the contract, remain the sole property of Barden, and may not be used for any purpose other than erection of the Barden Package, unless otherwise agreed to in writing by a Barden Officer. You agree to carefully review all Drawings and any revisions to the drawings. Final Drawings will not be delivered before you approve the Design Drawings and Contract Pricing. Barden is not responsible for providing any Drawings for materials not provided by Barden and makes no representations regarding the interfacing of Barden materials with material supplied by others. You agree to obtain independent verification from third parties regarding the ability of such third parties materials fitting with Barden materials including that of the foundation. You agree that the design services by Barden form a significant and material portion of the materials to be provided.
Payment – Unless otherwise specifically agreed to in writing by a Barden Officer, you agree that you will pay Barden before your product is manufactured. A service charge of 1 ½ % per month will be imposed on all balances unpaid after 30 days. Even if a third party, including but not limited to your Dealer, is to provide construction services, you acknowledge and agree that it is your responsibility to pay Barden. You agree you shall be responsible for, and shall indemnify Barden against all costs and attorney fees incurred by Barden as a result of failure to make timely payments to Barden, including legal expenses of arbitration. Barden does not provide financing to purchase its materials.
Delivery – Delivery dates will be established when funding arrangements for the building project have been completed. If funding is to be obtained by you and it has not been obtained within three (3) month period from the date you signed this contract, Barden has the right to cancel the Contract without recourse. If you fail to make payment as agreed herein, Barden has the right at its discretion to delay or stop further shipments of materials. Delivery of material will be to the roadside next to your site. Delivery beyond that point shall be at your risk and request. Barden may hire a local crane and operator.
Site preparation – Purchaser acknowledges that it alone is responsible to ensure that the construction site has adequate ingress and egress for the Crane and tractor-trailer. Purchaser acknowledges that it is responsible for damage to Barden equipment as a result of site preparation. Purchaser also agrees that it shall be responsible for any direct, consequential, insurable, or other damages to Barden equipment as a result of inadequate site preparation. Purchaser agrees to inform Barden in advance of a truck being dispatched, of any unusual condition that may interfere with the proper operation of the crane or access of the crane to the work site. These include, but are not limited to, hill side sites, the presence of overhead wires in the swing area of a crane, access limited by trees, or drives that are steep, narrow or winding, or muddy.
Acknowledgement of Arbitration of Disputes – Any dispute of any nature in law or equity, between you and Barden shall be submitted to arbitration by one arbitrator, in accordance with the Rules of the American Arbitration Association, Construction Industry Rules. Commercial and Supplemental Rules will not apply. This contract shall be specifically enforceable in arbitration, the arbitration award shall be final, and a judgment may be entered upon the arbitration award in accordance with applicable law in any court having jurisdiction thereof. You understand that by signing this Contract you will not be able to bring a lawsuit concerning any dispute between you and Barden. Instead, you agree to submit any such dispute to arbitration. In the event of any arbitration, the parties agree that place of arbitration shall be in Buffalo, NY and that New York law shall control. If you fail to arbitrate a dispute, Barden shall be entitled to recover attorney’s fees, costs and disbursements incurred by it in compelling arbitration. The party seeking arbitration shall be be responsible for paying the initial filing fees. The prevailing party in arbitration shall be entitled to be reimbursed for reasonable attorney fees, as well as the costs and disbursements incurred, in arbitration and enforcement of the award. This arbitration provision shall be deemed self-executing, and in the event that either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against that party notwithstanding its failure to appear.
Right of Rescission– Under the laws of certain states, you may have a three (3) day right to review this contract and rescind it. You agree that this three (3) day period starts from the date you signed this Contract. You must deliver written notice of rescission to Barden, you agree that you have no other rights of cancellation, except as provided herein, or in the pricing paragraph, above.
Limited Warranty – Some states do not allow the exclusion or limitation of incidental or consequential damages, so this limitation may not apply to you. This warranty gives you specific legal rights, and you may have other rights that vary from state to state. Barden warrants to the buyer that all materials for the Barden Package will be free from structural defects and that this warranty will be in full force and effect for a period of one (1) year from the date of delivery of such material. Barden will repair or replace defective material at no cost to the Buyer, but Buyer shall be responsible for installation of the replacement material. In no event shall Barden be responsible for more than the cost of material replacement (not including installation). Wood products, both natural and manufactured, have characteristics that may change over time. You will need to properly maintain these products to assure long term, proper performance. Some manufactured products are made with chemical preservatives to which a small number of people may have sensitivity. You agree that you have considered these issues before placing your order with Barden, and waive any claim, and agree to indemnify Barden against any damages, liabilities and expenses (including without limitation, attorney’s fees and costs) in connection with any claim, against Barden for health related effects, if any, experienced through the use of such materials. This warranty does not extend to material not properly installed, failure to properly maintain, non-structural cosmetic defects, and any defect, malfunction or failure caused by misuse, accidents, acts of God, vandalism, or use of the material for purpose for which it is not intended. The remedies stated are the sole remedies available to you. There are no other express or implied warranties contained herein. Warranties of merchantability and fitness for a particular purpose are disclaimed and excluded. Barden shall not be liable for any indirect, special, punitive, incidental or consequential damages. This warranty does not extend to any equipment or material for which the manufacturer provides a separate warranty to you. If you have failed to pay in full for materials purchased under this Contract, Barden shall have no obligation under this warranty.
Crane Allowance Crane Time includes the setup, operation and teardown of the crane. In addition, there may be portal to portal transportation charges based upon the building location. Purchaser agrees to pay for Crane Usage as follows: $600 for up to five hours of crane time in a day. This is a flat charge. If Crane Time exceeds five hours in any one day, Purchaser shall be responsible for an additional charge for Crane Time on that day, billed at a rate of $125 per hour. Calculations shall be based upon quarter hour (15 minute) increments.
Operation Only Barden authorized operators may operate the crane.
Estimated Cost of Crane Allowance The Independent Dealer and the Purchaser have estimated that the cost of the crane usage is set forth above. Purchaser acknowledges that this estimate is dependent upon many variable factors, including but not limited to weather related delays, failure of non-Barden work crews to appear on time, and the speed that those work crews install the materials. Purchaser agrees that Purchaser is responsible to make sure that all crews necessary to assist in the unloading of the materials shall be on site at the time the delivery truck is scheduled to arrive, and that inclement weather and/or failure to have a work crew on site at a scheduled time may result in higher charges due to delays in the installation of materials. Purchaser acknowledges that it shall not be relieved of usage charges if other subcontractors are not on the site at an agreed time or if the operator is waiting on the site as a result of the other workers not being present. If the site is deemed inadequately prepared Barden will quote hourly crane rate based on the size of crane needed to assist in the setting of wall panels and trusses. The same process of quoting the hourly rate will occur based on the project size regarding the crane needed in order to adequately set the wall panels and trusses.
(Note: Crane Allowance should be estimated at $1.00 per square foot)